Scope of Penology
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This article is written by Gitika Wadhwani, from Jagran Lakecity University. The article deals with immigrations laws, causes of immigration, and its impact on the logistics sector. 

Introduction

Migration is a phenomenon where people move from one place to another within borders or across borders. Migration is moving from one’s own country to another country temporarily. Immigration is entering into another country permanently. Suppose, if A lives in India and he went to reside in the USA then A has migrated from India to the USA or A immigrated to the USA. Migration is the movement of a group of people whereas, immigration refers to individuals or a family. People migrate due to several reasons such as searching for a job or due to lack of social security, etc. 

Whenever an individual moves to another country the laws that govern them have a huge impact on their lives. These immigration laws vary from country to country. Each country has its laws for nationals and immigrants. Some countries have stringent laws and some have little flexibility. Apart from each country’s laws, there are international conventions that protect each individual’s human rights irrespective of their nationality, place of origin, or status. These laws apply to immigrants who could live and work freely without any discrimination or prejudice. The immigration laws do affect the economy and various sectors contributing to the country’s growth. 

Causes of migration from India 

  1. Employment: many people migrate from one region to another in search of a job. Generally, people migrate from rural areas to urban areas where job opportunities are comparatively higher and better. According to the 2001 census, 13.1 percent of the population migrated from India due to work and business. 
  2. Education: generally in rural areas higher education facilities are not available, due to which people migrate to urban areas to pursue their higher education and settle there to earn a livelihood. People migrating from India for educational purposes was approximately 3.3 percent.
  3. Marriage: marriage is another factor that causes migration. Especially, girls migrate from one city or region to another after marriage to reside with their in-laws. In India, the migration was around 39.1 percent because of marriage.
  4. Lack of security: sometimes political disturbance or lack of stability of government creates fear among people. They migrate to safer and stable cities. Many people migrated from India post-independence because of political struggles faced by the country during that time.

Causes of immigration in India

In India, people have emigrated since long from various parts of the world especially from countries like Pakistan,  Afghanistan, and Bangladesh post-independence. There are several reasons for immigration in India.

  1. India has seen a tremendous development post-independence especially after the introduction of economic reform of 1991, due to such faster economic development and better prospects many people from other developing countries and under-developed countries immigrated to India. 
  2. People from different Asian countries immigrated to India especially due to threats and persecutions faced by them. Such as Rohingya Muslims from Myanmar, religious minorities from Pakistan, Afghanistan, and Bangladesh, and other immigrants from neighboring countries like Sri Lanka, Nepal also immigrated to India. 
  3. Due to a lack of educational facilities, healthcare services, and political instability in their home countries, many people immigrated to India. 
  4. In India, people are getting better treatment in terms of rights and liberties, every person is given equal treatment in respect of certain rights, especially fundamental rights. They have the right to life and liberty, the right against double retrospective law, double jeopardy and self-incrimination, and the right against unlawful detention.  People who faced discrimination in their home countries immigrated to India.
  5. Due to rapid growth in technology and economy, the country was coming up with job opportunities that catered to a lot of immigrants in India. 

Types of visas with which immigrants can visit India

  1. Employment visa – a foreigner who is a highly skilled and/or qualified professional is granted an employment visa. It is not granted to a citizen of Pakistan. It can not be granted for jobs for which Indians with necessary qualifications are available and for routine, ordinary or secretarial jobs.
  2. Business visa – Business visa is granted to foreign nationals who wish to visit India to establish a business or industry or explore the possibilities to set up an industrial/business venture. Foreign nationals coming to sell/purchase industrial, commercial, or consumer durable products, for recruitment of manpower, for consultations regarding exhibitions, trade fairs, business fairs, etc.  
  3. Project visa – A foreign national who is coming to India for the execution of projects in the project and steel sector is granted a project visa. This visa is project-specific and a person is not allowed to engage in another project. The visa is granted for one year or for the actual duration of the project whichever is less with a multiple-entry facility. 
  4. X-/Entry visa – Entry visa is granted to a foreigner who is of Indian origin, who does not possess an OCI card, may be granted an X-1 visa for 5 years at a time. A spouse and children of an Indian citizen/Person of Indian origin/OCI cardholder may be granted an X-2 visa for five years at a time. X-3 visas can be granted to foreign nationals coming:
  • To join Sri Aurobindo Ashram, Puducherry. 
  • To join the missionaries of charity, Kolkata. 
  • To join temples for true and spirited training.

Legal rights of migrants and immigrants

National legislation and policies

Human rights are fundamental rights to which every person including migrants is entitled. These rights have nothing to do with caste, creed, sex, nationality, etc. Every country has its laws for migrants. In India, immigration laws are governed by Constitutional provisions. Part-II of the Indian Constitution deals with citizenship and the acquisition of Indian citizenship by foreigners. In India, people can only have single citizenship. The process of acquiring citizenship by foreigners through naturalization and registration to Foreigners Regional Registration Officer (FRRO) or Foreigners Registration Officer (FRO) is provided under the Indian Constitution.  

The Registration of Foreigners Rules, 1992

The Registration of Foreigners Rules, 1992 is a supersession of the 1939 Rules. Under this, it is mandatory for foreign nationals who have entered into India on a visa for a period of more than one-eighty days and stay for a period beyond one-eighty days to follow the registration process. 

  1. In case the foreigner enters India with a visa valid for one-eighty days or less and resides for a period beyond one-eighty days, they have to present a registration report to the registration of jurisdiction of the place of foreigners, present at the time of presentation of the report.
  2. If a foreigner enters on a visa valid for more than one-eighty days then he should present a report to the registration officer as prescribed by the registration officer of the port or other place of arrival. 
  3. If the foreigner enters India other than on a visa, the registration report shall be presented to the registration officer having jurisdiction of the place where a foreigner is present at the time of report presentation.
  4. If a person becomes a foreigner by the reason of cessation of Indian citizenship while resident in India the report shall be presented to the registration officer having jurisdiction of the place where the person ordinarily resides.
  5. If a foreigner enters with a person of Indian origin, the foreigner shall register with the registration officer having jurisdiction of the place where the foreigner ordinarily resides.

Nasir Ahmed v. the Chief Commissioner (1959)

In this case, Nasir Ahmad, his wife, and their daughter were directed by the chief commissioner under Section 3 (2) of the Foreigners Act, 1946 not to stay in India after three days from which the notice was served. It was issued on the grounds that they were Pakistani nationals. Nasir Ahmad filed a petition and alleged that besides him, his wife, and their minor daughter, there are four more children residing with him in Delhi. He alleged that they all were born in Delhi and he and his wife are registered as electors in Electoral rolls. The Court held that the authorities have no power under the Foreigners Act, 1946 to order the deportation of the petitioner and his family to Pakistan without the previous decision of the Central Government under Section 9 (2) of the Citizenship Act, 1955.

International legislations and policies

International treaties provide certain human rights which apply to all human beings including immigrants. These basic rights mainly include the right to life, liberty, security of person, freedom from discrimination, freedom from arbitrary arrest and detention, freedom of association religion the presumption of innocence, and fair trial. These rights are protected by international treaties such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Some treaties specifically address the human rights of migrants. The convention relating to the status of refugees and the convention on the protection of the rights of all migrant workers and members of their families. 

International Convention on the Protection of the rights of all migrant workers and members of their families, 1990

This convention aims at protecting migrant workers’ rights. This convention deals with the human rights of all migrants under Part III including migrant workers and their family members. Various rights and protections  are guaranteed to migrant workers and members of families as follows: 

  • Protection of migrant workers from the arbitrary deprivation of property.
  • Safeguards against confiscation, destruction, or attempts to destroy identity documents of migrants or their families. 
  • Rights of migrants to have recourse to the protection and assistance of consular or diplomatic authorities of their state of origin in case of violation of rights.
  • Rights of arrested or detained migrant workers to communicate with diplomatic authorities. 
  • Right to enjoy equal rights in terms of employment conditions and remuneration. 
  • Right to similar social security and the same treatment as granted to nationals. 
  • Right to receive urgent medical care for the preservation of life and to avoid any harm to health. 
  • Right of a child of the migrant worker to have access to education. 
  • Right to be informed about their rights under the convention. 

The Migrant Workers (Supplementary provisions) Convention, 1975

This convention is adopted in furtherance of the task assigned to the International Labour Organisation by its Constitution to protect the rights of immigrants. This convention provides for:

  • Determination of illegally employed migrants and conditions to which such migrant workers were subject during residence and employment.
  • Consultation with the representative organizations of employers and workers to receive information concerning illegal migrants. 
  • To suppress illegal employment and secret movements of migrants for employment.
  • Undertaking measures to contact other states regarding migrant workers. 
  • To curtail manpower trafficking and prosecute the people who indulge in trafficking activities. 
  • The right of migrant workers to reside and enjoy equality of treatment in case of loss of employment. 
  • To ensure the employers’ and workers’ organisations’ cooperation in accepting the national policy made by the country in respect of employment, trade union, social security, cultural rights, etc. 
  • To guarantee equality of treatment to all migrant workers with regard to employment. 
  • To take necessary measures to facilitate the reunification of the families of all migrant workers. 

The Migration for Employment Convention, 1949

This convention is binding on members of the International labor organisation (ILO) who have adopted and undertaken to follow the convention. It provides for: 

  • The obligation of members to make available the information on national policies, laws, and regulations relating to emigration and immigration to ILO and other members on request. 
  • To make available information related to special provisions for migration for employment and working conditions and livelihood of migrants. 
  • To maintain adequate and free service to assist migrants for employment.
  • To take appropriate steps against misleading propaganda relating to emigration and immigration. 
  • To ensure proper and adequate medical services for migrants for employment and their families. 
  • Equal treatment to immigrants applies to nationals in matters of remuneration, trade unions, accommodation, social security, employment taxes, and legal proceedings. 
  • The family members of migrant workers who have been employed permanently shall not be returned to their territory of origin if the migrant worker does not continue to follow his occupation due to illness or injury. 

The Universal Declaration of Human Rights, 1948

The UDHR lays the common standard for all nations and all people. These standards are as follows:

  • No discrimination on the basis of race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth, or another status. 
  • Every person has a right to life, liberty, and security. 
  • Prohibition of slavery and the slave trade in all forms.
  • No person shall be subject to cruel, inhuman, or degrading punishment.
  • Right to an effective remedy in case of violation of fundamental rights. 
  • Freedom from arbitrary arrest, detention, or exile. 
  • Equality to fair public hearing without prejudice.
  • Freedom from arbitrary interference with privacy, family, home, or correspondence.
  • Right to leave a country and to return to his country. 
  • Right to marry and to find a family without limitation due to race, nationality, or religion. 
  • Right to freedom of thought, conscience, and religion.
  • Right to work under favorable conditions without discrimination, equal pay for equal work. 
  • Right to a standard living including food, clothing, housing, and medical care.
  • Right to education. 

The International Covenant on Civil and Political Rights, 1966

This convention states all the state parties to take all necessary measures to ensure:

  • Right to liberty and security.
  • Right to the same employment opportunities. 
  • Right to choice of profession and employment.
  • Right to job security and training.
  • Freedom from arbitrary arrest and detention. 
  • Equality before the courts and tribunals.
  • Freedom of expression, thought, and religion.
  • Right to equal protection against discrimination. 
  • Right to protection of health and to safety in working conditions.

International Convention on the Elimination of All Forms of Racial Discrimination, 1965 

The state parties should prohibit and eliminate racial discrimination in all its forms and guarantee the right to everyone without discrimination based on colour, race, or national or ethnic origin.

  • Right to equal treatment before any organ administering justice.
  • The right to security.
  • Right to freely move or reside within the borders of the state.
  • Right to free choice of employment and protection against unemployment.
  • Right to medical care, social security, and public health.
  • Right to education and training.

Citizenship Amendment Act, 2019

In India, citizenship is governed by the Citizenship Act. Recently the Citizenship Amendment Bill, 2019 was passed by the parliament to amend the Citizenship Act, 1955. The Citizenship Act provides various ways in which citizenship can be acquired either by birth, descent, registration, naturalization, and by incorporation of the territory in India. It also regulates the registration of Overseas Citizen of India Cardholders (OCIs) and their rights. Indian citizenship cannot be acquired by an illegal migrant. A person who is a foreigner who has entered India illegally without valid documents or stays beyond the period permitted by travel documents is called an illegal migrant and he could be prosecuted in India. 

The Citizen (Amendment) Act, 2019 exempts certain groups of illegal immigrants from being prosecuted. It states that any Hindu, Sikhs, Buddhists, Jains, Parsis, and Christians who have fled from Afghanistan, Bangladesh, and Pakistan to India on or before December 31, 2014, will not be treated as illegal migrants. Also, the Act provides certain exceptions, to obtain citizenship by naturalization one of the conditions is to reside in India or be in the service of the central government for 11 years. The amendment provides an exception for Hindus, Sikhs, Parsis, Jains, and Christians from Afghanistan, Bangladesh, and Pakistan; the term is reduced to 5 years for these people. However, these provisions for illegal migrants under the citizenship Act, will not apply to the tribal areas of Assam, Meghalaya, Mizoram, and Tripura. This Act aims to provide safety to the persecuted minorities.

Criticism

The Citizenship (Amendment) Act, 2019 was heavily criticized by the people. The very first criticism was that this Act is discriminatory as it provides citizenship to only non-Muslims and not Muslim people that too from particularly three countries. It violates the secular spirit of our Constitution and it is observed that to stay in a free society is a very important feature of our Constitution.  To this criticism, the government countered by saying that it is not discriminatory because the idea behind providing citizenship only to the non-Muslim communities from Pakistan, Afghanistan, and Bangladesh is to protect these people from persecution that they are facing because of their religion and only the Act include these three countries because they are Muslim dominated countries and are Islamic nations where Muslims are not the one who are being persecuted. 

The second criticism was that people were opposing the Act believing that this Act will take up their rights, resources and Muslim people will face challenges, but the Act does not have anything to do with the existing citizens be it a Hindu or Muslim, the rights will remain the same. And if we talk about people of Assam who were concerned about resources, this Act has excluded certain areas that are covered in the Inner Line Permit. So apart from those areas if a person applies for citizenship and fulfills all the requirements necessary then he/she will be eligible for getting citizenship of India. Another violation of the Constitution is the Right to Equality. Article 14 guarantees every person equality before the law and equal protection of the law. It was observed that the aim of both equality before the law and equal protection of the law is equal justice. 

Validity

To determine whether CAA, 2019 is valid or not let us see the other criteria that define the validity of a law. It must fulfill the criteria of reasonable classification and the classification test has three tests- the objective of the law, intelligible differentia, and rational nexus. So it fails the objective test because the main aim of the government is to protect the people from pre-partition. Then why exclude people from Sri Lanka and Myanmar. There also people faced religious persecution. CAA creates unreasonable differences between illegal migrants based on religion. So it can be said that the objective is arbitrary. And this arbitrariness can be seen in the number of cases. The next test of intelligible differentia says that the Act must differentiate between the two classes and give protection to one class in accordance with the law. But this Act does not prove to be based on intelligible differentia and last it must have some nexus between two classes but the objective of government has no nexus with the classification.

Impact on the logistics sector

Immigration helps in mobilizing the workforce which gives greater economic benefits. immigration derives growth by increasing the workforce, increasing demand and investment, increased labour market flexibility, etc. Immigrant laws affect the logistical sector. If the law is flexible enough to accommodate and facilitate the free movement of immigrants it will benefit the logistics sector in the following ways:

  • By attracting skilled immigrants the sector could grow. 
  • Creating a dynamic environment, encouraging innovation, and effective education and training would help in the development of new technologies.
  • Proper education, occupational training, and learning abilities help supply managers to make the most of their work.
  • Good medical care facilities will help them to focus on their work and contribute to the sector.
  • Job security, social security, equality in treatment will create a competitive environment leading to the productivity of workers. 

Ministry of Home Affairs Guidelines, 2016

OCI Miscellaneous services guidelines

The miscellaneous services can be availed by only registered OCI for issuing or re-issuing the duplicate OCI documents in the case of the following contingencies:

  • Issuance of new passport.
  • Change of personal particulars.
  • Loss or damage of OCI registration certificate/visa.
  • Filing of wrong personal particulars while submitting online applications.
  • Mistakes committed by the Indian mission/post/office while entering the personal particulars in application filling manually.
  • Change of address/occupation. 

G.S.R 702(E) Passport Amendment Rules, 2016 

The central government made rules to amend the Passport (Entry into India) Rules, 1950.  In clause (ha) of sub-rule (1) of rule 4, the words “Afghanistan, Bangladeshi” are substituted for “Bangladeshi”.

Conclusion 

Every person is born free and has the right to freely enjoy basic human rights without any discrimination on the grounds of caste, creed, sex, nationality, place of birth, and status. To ensure that these rights are being safeguarded, various conventions bind the member states to promote equality, protection, security to all the people be it a citizen or non-citizen. These laws that protect immigrants impact various sectors of the country. One such sector is the logistics sector. Human resource is an indispensable asset for any sector, logistics is no exception to it. By providing proper opportunities and facilitating immigrants, the contribution of the migrant workforce fosters the growth of the sector. 

References

  1. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3572571
  2. http://www.legalservicesindia.com/article/259/Immigration-Laws-in-India.html
  3. https://www.logisticsmgmt.com/article/global_migration_can_make_a_positive_impact_on_supply_chains
  4. https://www.drishtiias.com/daily-updates/daily-news-analysis/2011-census-data-on-migration

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