THE DARK SIDE OF THE MOON HUMAN RIGHTS, ILLEGAL IMMIGRANTS AND THE LAW

This article highlights the return of illegal Indian immigrants who are languishing in jails abroad and have no means, resources or travel documents to return to India. In terms of the law laid down by the Apex Court in Satwant Singh Sawhney Vs. A.P.O New Delhi AIR 1967 SC 1836, holding that deprivation of passports amounts to infringement of right to personal liberty under Article 21 of the Constitution and that right to travel abroad includes the right to return to India, all such Indian citizens detained abroad are entitled to emergency travel documents under section 4 (2) of The Passports Act, 1967 read with Rules 3 & 4 of The Passport Rules, 1980.

As per a report of The United Nations Office on Drugs and Crime (UNODC) on “Smuggling of Migrants from India to Europe and in particular to UK: A Study on Punjab and Haryana, 2009” which was released in Chandigarh on March 11, 2010, it is quoted that over one lac illegal immigrants from India have been caught by foreign police authorities and are behind bars in foreign jurisdictions. The report quotes that according to statistics sourced from the Ministry of External Affairs, over one lac residents of six districts of Punjab i.e. Jalandhar, Nawanshahar, Gurdaspur, Amritsar, Hoshiarpur and Kapurthala, faced deportation from different countries for not travelling on valid travel documents during the last five years. The report also states that every year more than 20,000 youths from Punjab attempt irregular migration which is now spreading to the neighbouring States of Haryana etc.

A joint reading of various provisions of the Passports Act 1967,  amply clarifies that emergency certificates authorising an Indian citizen to enter India can be issued in exceptional and urgent cases for a period not exceeding 12 months. These provisions also provide that after doing so, the applications of such cases can be transferred to the concerned Indian Passport Authority having jurisdiction in the territory where such person who has been issued emergency certificates ordinarily resides.  Before doing so, the antecedents, parental family, permanent residence and all other details of parentage of such Indian citizens from the respective States in India can be established.      

The Protection of Human Rights Act, 1993 defines “human rights” in Section 2 (d) as follows;

            “(d)      human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the International Covenants and enforceable by Courts in India.”

Likewise, International Covenants in Section 2 (f) is defined as follows;

            “(f)       International Covenants means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December 1966.”           

            Article 6 (1) of the International Covenant on Civil and Political Rights, 1966 is quoted hereunder for ready reference;

          “Article 6(1) – Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

           It may also be relevant to quote Articles 3 and 5 of the Universal Declaration of Human Rights, 1948, which provide for the Protection of Life and Human Rights of Human beings in the following words;

            “Article 3 – Every one has the right to life, liberty and security of person.”

          “Article 5 – No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

As per the UNODC report, more than one lac persons from India are reportedly detained in jails abroad of foreign jurisdictions after having travelled abroad illegally. Such Indian citizens are unfortunate victims of unscrupulous travel agents who have duped and defrauded them to travel by illegal means. These Indian citizens having been arrested and detained in foreign jurisdictions on being detected and caught have no resources, documents, financial or legal aid. They have no means of contact with their well wishers and families in India. In such a situation, they have lost their self respect, dignity and liberty and they are in no situation to secure their personal liberty by any legal or administrative means. The respective Consular offices of the Indian Embassies/High Commissions abroad can come to the aid and rescue of such illegal Indian immigrants to aid and assist in their return home. The International Covenants quoted above clearly establish that such Indian citizens have a right to secure their liberty, respect and dignity. Article 21 of the Constitution also secures such right to life and personal liberty to them.

These gullible, innocent and unfortunate victims of human smuggling have been left to the mercy of fate. No tangible steps have been taken by the Government of India to secure their release and help them to return to India despite the matter having been publicized in the media over two years ago. There is no future hope of their release. International instruments, covenants and Indian legislation besides basic human rights warrants their release and return to India. The provisions of the Passports Act and Rules made thereunder clearly establish that all such Indian Detenues abroad can be permitted to return on emergency travel documents upon verification of their antecedents by the respective State Governments.

An exercise has been conducted to review lists of black listed non-resident Indians who could not return to India on account of alleged offences said to have been committed by them. Such an exercise is also possible in the case of illegal immigrants detained abroad who wish to return to India being Indian citizens. Government of India can seek information regarding such detained Indian nationals from the respective Embassies/High Commissions in India where such persons have immigrated illegally. Upon such list being obtained from the foreign embassies/high Commissions in India, the States Governments can be asked to verify the antecedents and particulars of such Indian citizens. Thereafter, the Consular Section of the Indian Embassies/High Commissions abroad in such foreign jurisdictions can grant them emergency travel documents to enable their return to India. These emergency certificates can be issued under the provisions of the Passport Act. In this way, the entire exercise can be conducted in the larger interest of Protection of human life and personal liberty guaranteed under Articles 14, 19 and 21 of the Constitution besides the International instruments quoted above.

If the above exercise is conducted, it will be a very big deterrent to future illegal immigrants who are proposing to travel abroad unlawfully. Moreover, even unethical and unscrupulous agents will be deterred by this process. State of Punjab has taken a task of enacting the Punjab Prevention of Human Smuggling Bill, in an attempt to end this menace. It is reported that this legislation is pending approval of the Government of India. In this backdrop, it can be mulled that even Government of India may seriously consider enacting an All India Legislation for the entire territory of India to make humans smuggling and human trafficking a punishable offence. The existing Emigration Act, 1983 neither defines nor punishes Human Smuggling or Human Trafficking and it is the need of the day that some possible law may be enacted to deal with this human problem in an attempt to stop the illegal trafficking of human beings. Traffickers of human merchandise cannot be allowed to trade in human beings. This menace must stop in the interest of human rights, civil liberties and fundamental rights.