Last week, social media was abuzz with pictures of actor Imran Khan being detained by the Mumbai Police while participating in a protest. Shortly afterwards, it was reported that the Foreigners Regional Registration Office (FRRO) had issued Khan a notice directing him to leave India by October 28, following his participation in the protest despite being an American citizen. The episode reminded many of a scene from the movie Jaane Tu Ya Jaane Na, where Khan’s character attempts to stop Aditi from leaving the country.Beyond this, the episode raises important questions about the rights of foreign nationals, the legal status of Overseas Citizens of India (OCI), and the state’s power to expel them.AdvertisementThe rights of foreignersThe Constitution distinguishes between rights available to citizens and those available to all persons, including foreigners. While rights such as equality (Article 14), prohibition of untouchability (Article 17), life and personal liberty (Article 21), and safeguards against arrest and detention (Article 22) extend to foreigners, Article 19, which guarantees freedoms including speech, peaceful assembly and movement, and by judicial interpretation, the right to protest, is expressly restricted to citizens. Consequently, foreign nationals cannot claim a fundamental right to participate in political demonstrations under Article 19.This distinction has important consequences. Courts have held that, under the constitutional framework, foreigners cannot claim a fundamental right to reside and settle in India and have historically accorded considerable latitude to the executive in exercising its power to expel them. In Sarbananad Sonowal vs Union of India (2005), the Supreme Court observed that states reserve the right to expel foreign nationals from their territory and deny them certain rights enjoyed by citizens, including the right to vote, hold public office or engage in political activities.Khan’s OCI card offers limited protectionReportedly, Khan holds an Overseas Citizen of India (OCI) card. Introduced in 2005, the OCI framework recognises the continuing relationship that foreign nationals of Indian origin may have with India. It grants certain privileges, including a lifelong multiple-entry visa, exemption from routine registration requirements, and specified rights relating to employment, education and property ownership.AdvertisementHowever, OCI is not citizenship. Cardholders cannot vote, contest elections or claim the fundamental freedoms reserved for citizens under Article 19. Their registration may also be cancelled on grounds specified in Section 7D of the Citizenship Act, although the law requires a reasonable opportunity of being heard before cancellation.Also Read | On SIR, Opposition doth protest too much. ECI has been more right than wrongIt has been argued that OCI cardholders are not expressly prohibited from participating in political demonstrations under the applicable rules and notifications. This is correct. Unlike ordinary visa holders, whose activities are ordinarily restricted to the purposes for which their visas were granted, OCI cardholders enjoy a lifelong visa permitting visits for any purpose. According to a 2021 Notification, certain activities, including journalism, research and missionary work, require special permission, but participation in political demonstrations is not expressly mentioned. Nevertheless, OCI cardholders remain foreign nationals under Indian law. The absence of an express prohibition does not exempt them from the government’s broader powers to regulate or restrict their continued presence in India.The state must be kindKhan was reportedly served a notice under the Immigration and Foreigners Act, 2025, which regulates the entry, departure and continued presence of foreigners. Section 7 empowers the government to restrict their continued presence or direct them to leave India, while Section 29 provides for their removal on specified grounds, including contravention of the Act, rules or orders made under it.These powers are undoubtedly broad. However, courts have held that their exercise must be in accordance with the law and subject to applicable procedural safeguards. A pertinent example is the notice served on a Polish student at Jadavpur University for participating in protests against the Citizenship (Amendment) Act in 2019, allegedly in violation of his visa conditions. The Calcutta High Court set aside the notice, finding that it did not disclose adequate reasons and that the student had not been afforded an opportunity of being heard.you may likeCourts have also emphasised the need for fairness in decisions affecting OCI cardholders, whose status the Supreme Court has described as a “midway right”. Recognising their continuing “umbilical connections” with India, the Court has cautioned that the exercise of sovereign powers in such cases must not be arbitrary or “unmindful of consequences”.Ultimately, the state has considerable discretion to regulate the continued presence of foreigners. But possessing such a power does not mean that it must invariably be exercised. The state can choose to exercise restraint, particularly where the conduct involves participation in a peaceful demonstration and requiring someone to leave the country may be a disproportionate response. The law may grant the state extensive powers, but it does not prevent the state from being kinder and more tolerant.The writer leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy. Views are personal