Author: Suman, Army Law college Pune
Introduction
Immigration laws are the sources of intersection of national sovereign, human rights and international obligations. Although all sovereign states bear the right to control the entry, staying and departure of non-citizens in the state territory, however, these rights are not unlimited and can be restricted because of the constitution. Implementation of immigration laws is usually accompanied by the question concerning violation of basic rights including equality, process of due-process, and non-discrimination. Consequently, the statutes or executive rules concerning immigration are under challenge most of the times because of their constitutional basis.
The article aims to study the constitutional objections to the immigration regulations with specific reference to the Indian jurisprudence with occasional references to the United States and the United Kingdom, as well as the international norms of human rights.
Constitutional framework and immigration in India
Legislative competence
In India, the power relating to immigration is placed in the Union List (Entry 17, List I of the Seventh Schedule of the Constitution) and hence, the Parliament has the exclusive power to make laws in respect of immigration, emigration and aliens.
Some key statutes include: the foreigners Act 1946, The Citizenship Act 1955, The Passport (entry into India)Act 1920, The immigration Act 2000.
Fundamental Rights and Non-Citizens
Some of the fundamental rights are granted to Indians only in the Indian Constitution e.g. Article 15, 16, 19, yet some of them e.g. Article 14 (equality before law), Article 21 (right to life and personal liberty), and Article 22 (protection against arbitrary arrest) are applicable to all persons, including non-citizens also.
This has created the avenue through which immigrants, refugees and asylum seekers have questioned the constitutionality of immigration acts and deportation orders under the premise of violating the fundamental rights.
Key Constitutional Challenges in Indian Context
Right to equality (Article 14):
Article 14 ensures that there is a right to equality to every individual before the law and to protection of the law. It is under this provision that immigration laws and policies that discriminate by singling out based on a definite group or that they are applied arbitrarily are challenged. Some examples of this is NRC and CAA. Article 14 ensures that there is a right to equality to every individual before the law and to protection of the law. It is under this provision that immigration laws and policies that discriminate by singling out based on a definite group or that they are applied arbitrarily are challenged.
Right to lie and Personal Liberty (Article 21)
Immigration detention or deportation may contravene the Article 21 of the Universal Declaration of Human Rights particularly when it leads to the expulsion of the immigrants to the countries they are in grave danger. This may result to torture, persecution, or even death since most nations harbor political unrests, violence or oppressive governments. The idea of non-refoulement is a prohibition to send people back to a situation where their lives might be endangered and international laws on human rights acknowledge that intentionally taking someone back to a situation where their lives might be endangered is a violation of basic rights. The officials are expected to evaluate danger, take individual conditions into consideration and not transform imprisonment into life-threatening conduct.
For example: The case of Mohammad Salimullah is based on the idea of the enforcement of a legal system, as opposed to the imposition of a legal system. The petitioners Union of India were Rohingya refugees to whom the deportation was challenged on the basis of breaching Articles 14 and 21. Even though the Supreme Court had permitted that deportation could take place, it made some important points, noting that the constitutional provisions apply to all persons, including citizens. However, even though India is not party to the 1951 Refugee convention, it is obligated under the customary international law and Article 51(c) of the Constitution to uphold international law parameters such as non-refoulement.
Freedom of movement and residence (article 19)
According to article 19, only citizens are guaranteed freedom of movement. However, the courts have been looking into the issue of the effect that immigration acts might have on the lives of Indian citizens and whether this affects them disproportionately and hampers their ability to live with a spouse or a family member that is not a citizen.
One of the examples : in Mehmood Nayyar Azam v. State of Chhattisgarh, (2012) 8 SCC 1, the Supreme Court held that the right of persons marrying foreigners should be respected, and that an unreasonable rejection of visa should not interfere with the life of a family and gave protection to Article 21.
Detention, Due Process, and Immigration:
Arbitrary Detention and Constitutional Protection: The immigration-related detention within the framework of the Foreigners Act or some other executive acts should be executed without infringement of the Article 22, which requires safeguarding against arbitrary arrest and detention. preventive detention one of the case The Court ruled that so long as in the procedural framework, then it should not be unconstitutional in relation to preventive detention. Nevertheless, when dealing with immigration, such a detention without trial or access to the law is unconstitutional.
Assam detention Centers: The detention of more than thousand individuals in Assam detention centers has been lambasted as the contravention of Article 21. In the Supreme Court Legal Services Committee v. The top department has instructed that all detainees who have been detained over 2 years should be released (Union of India (2020)). This is a display that the department is concerned about prolonged and unjustified detention.
Principles Derived from International Law
India applies the international instruments in interpreting its constitution though these instruments are not binding, some of these instruments are: Universal declaration of human rights(UDHR) 1948, International Covenant on Civil and Political Rights(ICCPR)1966, 1951 Refugee Convention and 1967 Protocol(India is not a party). The non-refoulement principle, which bars the deportation of individuals to their places of persecution, is considered to be one of the elements of customary international law.
Supreme Court Reference: Vellore Citizens Welfare forum v. In Union of India (1996), the Court stated that international environmental norms (and other norms of customary law more generally) could be imported into the domestic law at the Article 51(c) reading level.
Recent development and legislative trends:
NRC and CAA: A CAA joined with National Register of Citizens (NRC) will present a confounding constitutional problem. The critics believe that the refusal to provide Muslim with the benefit of protection under CAA without making it necessary to review NRC of anyone challenges Articles 14 and 21 and may result in statelessness.
Lack of refugee law: There is no comprehensible refugee law in India. Consequently, executive discretion is used to make decisions on deportation and asylum matters, sometimes with the lack of judicial protection or its observation in international practices.
Judicial Review and Activism: In India, courts have become increasingly agents in the trial of constitutionality of immigration legislations and policies of deportation. Although they tend to leave the matter of foreign affairs to the executive, the courts have stressed that constitutional rights could not be overruled by administrative convenience.
Recommendation
India ought to enact a concrete Refugee Protection Law that can help in offering maximum protection to refugees who have been forced to run away by conflicts, about being persecuted or disasters. It is expected that this law will be in accordance with the international standards, is intended to clarify how India treats the refugee status, and decrease on arbitrary detentions, which guarantees equitable decision-making.
India requires robust judicial review on detention of refugees as well as asylum seekers. Courts should review the cases regularly to avoid unnecessary captivity, to guard freedoms, uphold dignity, and transparency and fairness of the justice system.
The aim of immigration regulations in India should also embrace balanced approach, that is, taking into consideration the security and humanitarian considerations. The nation is under duress as it deals with issues of territorial security, illegal migration inflows and the obligation to defend sovereignty. Concurrently, India is under an obligation to host refugees and defend their rights. The laws must target the function of screening and controlling the flow of migration without turning away the victims on the run. Proper guidelines and procedures have to be in place in order to make sure that the security measures do not violate the basic rights. As an example, screening has to be fast and reasonable, and sufficient preventive measures must be established to avoid the mistreatment or discrimination of vulnerable populations applying as refugees.
The right to Indian citizenship ought to be grounded on the principles of equality, secularism and non-discrimination among the communities without any unfairness and disrespect towards others. The latter must be based on the Constitution of the country, and they should be open, consistent, and impartial, which will lead to an inclusive society that acknowledges diversity and stimulates unity.
Conclusion
The immigration laws call upon both the state sovereignty and the personal right. The state can have justifiable interests when it prepares to regulating migration, but it cannot do that in a manner that contravenes the constitutional norms. The court should take action as well as there should be a debate on the issue and laws revised so that the immigration policy in not only India but also other countries should be humanitarian, fair, and constitutionally acceptable.
We have to take the way ahead with the principles of Justice, equality, liberty and fraternity embedded in the Constitution.
FAQs
What are constitutional challenges to immigration laws?
A: Under constitutional challenges a person or a group of people challenge laws or policies on immigration on the basis that they contravene constitutional rights granted in a country of origin e.g. the right to equality, right to due process or the right to protection against discrimination.
