The article below endeavours to explain the legal framework of immigration in India and touches upon the sociological perspectives affecting immigrants.
Introduction:
Migration is a cross-cultural phenomenon that contributes to human livelihood. The concept of immigration and migration is not a recent development. Since the olden days, people have been travelling from one location to another in search of safety, employment, trade or education, to list a few reasons. This benefits the source and the destination locations – the source locations may receive more economic opportunities, and the destination country can increase its economic input.
Today, India is seen not only as an emigration country with one of the most significant numbers of emigrants1 but also as a country that attracts and accepts a large number of people from countries all around the world. This includes refugees from countries like Afghanistan and Myanmar. People from Nepal, Tibet and Bangladesh have settled in India, and their numbers are significant enough to influence demographic profiles in some Indian states.2
Historically as well, India has long been involved with immigrant inflow. For example, post-partition, there was chaos in India and Pakistan, and many immigrants moved into India. In 1971, when Bangladesh and Pakistan were made distinct, millions of refugees fled to India.3 Thus, immigration policies are vital to India’s security and growth.
Assuming that most migrants move to other countries to flee misery is a poor understanding of immigration theories. In reality, most migrants move to other countries by exercising their free will.4 Through the article, we shall see why immigration occurs, what is India’s immigration framework and what sociological perspectives are on immigration.
Reasons for people migrating to other countries:
People migrate to other countries for the primary reason of seeking a better life than the one they live. The motivating factors may vary, but most immigrants seek to improve their lifestyle and move forward. The following types of immigrants are based on the reason that motivates such individuals.
Economic immigrants are those who leave their country for work in another country. These immigrants may be skilled or unskilled.5 For instance, the number of Bangladeshi nationals in India as per the 2011 census is 2.7 million, which is a decrease from the 3.7 million recorded in the 2001 census.6 A lot of these people immigrate to India for unskilled labour. Nepali immigrants in India are also predominantly for labour, which includes employment in multiple sectors.7
Family immigrants are typically an extension of economic migration. Initially, economic migrants immigrate to a country. Once they have settled in and can sustain more people, the rest of the family migrates. These are typically the kind of immigrants that contribute to second and third-generational immigrants.
Political immigrants flee their home country due to political instability, fear of persecution and ethnic/religious turbulences. They are also known as refugees. These immigrants are mostly faced with no choice and are forced to move out of their homes. For example, refugees from the Afghanistan crisis in 2021 were accepted by India and many other Asian countries. Recently, refugees from the Ukraine war were accepted by many European countries.
Student immigrants are those who migrate to other countries for better educational opportunities and to broaden their scope in their fields. While students from the Middle East smaller countries in Asia come to India for lower or higher education, Indian students immigrate to American and European nations for higher studies.
Illegal immigrants are those who enter countries without proper legal documentation and permission. Bangladesh and Nepal (countries that share a border with India) are prominent sources of illegal immigrants to our country.8 The cost of legal immigration, or the fear of persecution by the border forces may motivate certain immigrants to enter countries illegally. Illegal immigration typically takes place through land or the sea, as it is easier to access the destination countries through these means.
Medical tourism is another reason for immigration into India. India has a robust system of healthcare which attracts people from developed and developing countries who seek affordable and quality health solutions.9
Urbanisation can be another factor that motivates people to migrate.10 For example, Indians may seek to migrate to North America or Europe in search of an improved urban lifestyle. Moreover, Nepalis and Bangladeshis may migrate to India for the same reason.
Indian provisions regarding immigration:
Immigration policies of countries, including India are shaped and modelled by factors like labour shortages, demographic imbalances, competition in the global market, investment requirements and security concerns. The Indian Government keeps a close eye on changes in any of these factors that may raise concerns so that they may effectively alter the policies.
The Constitution of India, in Part II (Citizenship) Articles 5 to 11, lays down the Grundnorm for laws relating to immigrants. It lays down the law for citizenship of those born in India and those relating to the Partition, and it also provides citizenship rules for those of Indian origin who reside outside India. Article 11 allows the Parliament to acquire and terminate the citizenship of Indians.
The Passport (Entry into India) Act of 1920 is a colonial-era Act that made the possession of passports by those entering India mandatory. The entry of that person into India could be prohibited, imprisonment for five years maximum, or a fine of Rs. 50,000 or both. Subsequent offences shall attract a double penalty.
The Registration of Foreigners Act of 1939 is vital to the immigration policies of India as it requires foreigners to register themselves upon their entry and departure from India. A person who does not comply with the Act or its Rules shall be imprisoned for up to a year or with a fine up to Rs. 10,000. Rule 6 of the 1939 Act’s Rules gives the procedure that foreigners must follow upon their arrival in India.
The Foreigners Act of 1946 is the primary Act dealing with foreigners and immigrants. It is very simply defined in Section 2(a) that foreigners are those who are not citizens of India. The act enables the Government to make rules that allow the authorities to decide when foreigners may or may not enter India and may or may not leave India. They have discretionary power in allowing foreigners to stay in a particular location, to restrict their movements, to take a medical examination of foreigners and many other restrictive rules. The places frequented by foreigners can also be controlled. Suppose the foreigner stays in India past the period in the issued visa, contravenes the conditions of their valid visa, or contravenes the provisions of this Act. In that case, the foreigner shall be punished with imprisonment up to five years and may also be liable for a fine. Penalties are defined for entry into restricted areas, forged passports, and abetment of the offences under this Act.
The Immigrants (Expulsion from Assam) Act of 1950 was enacted to expel certain immigrants from Assam. It targeted that class of people whose presence was detrimental to the interests of the Indian public or Assam’s Scheduled Tribes. This did not include those individuals who were impacted by the Partition. The penalty for non-compliance is extended to three years imprisonment and might include a fine, depending on the facts and circumstances. However, this Act was repealed in 1957 after the objective was achieved.
The Immigration (Carriers’ Liability) Act 2000 is a central legislation that is still enforced. This Act made carriers (those who are engaged in the business of transporting individuals into and out of the country through water or air, i.e., through ship or aircraft) liable for the passengers whom they brought into India, who had contravened the Passport (Entry into India) Act of 1920. If a career is found liable, a penalty of Rs. 1,00,000 shall be imposed on the carrier after the proper procedure is followed.
Recently, the Citizenship Amendment Act of 2019 made the headlines for its controversial nature. While the CAA was designed to grant citizenship and protection to minority groups from Pakistan, Afghanistan and Bangladesh, there was an uproar against this Act due to its exclusionary nature.
The laws discussed above show that the Indian Government and its associated organisations have the power to enforce strict immigration laws, as well as regulate the presence of immigrants in India. The Ministry of External Affairs regulates the issuance and revocation of Indian visas, which range from visitor’s visas to student and work visas.
Apart from this, India’s Bureau of Immigration is critical in facilitating and regulating the immigration of foreigners into India. The officers of this government branch are located in all international airports, sea ports and land entry points through immigration check posts set up by the bureau.
In the case of Stelmakh Leonid Iuliia v. Secretary to the Ministry of External Affairs, Government of India and Union of India[11], the Bombay HC adjudicated upon a Writ Petition under Article 226 regarding the rejection of an E-Visa to a Ukraine-based Petitioner. The court held that the decision for issuing visas is the jurisdiction of the Ministry of External Affairs. The court cannot decide on such matters, nor can it lay down guidelines or give directions to the Ministry of External Affairs. Thus, the case was dismissed.
Social theories of Migration:
Sociologists have researched multiple theories of migration. The two leading theories are listed below:
The functionalist social theory of migration12 sees society as a system consisting of individuals and holds it analogous to that of an organism – multiple elements function but ensure that equilibrium is achieved and maintained. By this theory, immigrants are considered to contribute positively to productivity and consequently lead to the prosperity of the society they assimilate into. Immigrants gain a more secure future, and the society or country gains a better economic standing. The contribution of unskilled labourers in India can be considered in this theory.
The push-pull model is used in the Neo-classical migration theory13 (the most prominent sociological migration theory). Push factors are negative, i.e., the cons of whichever country they migrate from. These include poverty, natural calamities, the country’s economic instability, and unemployment concerns. Pull factors are those which are positive, i.e., these factors are the pros in the country chosen for migration. Pull factors include better economic opportunities, higher study options, more security for health, improved working conditions and better quality of life. Given the economic crises and lack of better employment or education opportunities in Bangladesh & Nepal, and the ethnic crisis in Myanmar, the push factors for migrants in India is gleaned.
Immigrants face a lot of sociological difficulties when they migrate into a country. For instance, integration is one of the most significant issues faced by immigrants. Integration is where immigrants adapt to life in the destination country by attempting to assimilate with the local communities while maintaining their cultural identity and expression. Diverse socio-cultural practices may lead to easier or harder integration. The integration may be easier if the local communities consist of many immigrants. Integration is much more complicated if the local communities are not very diverse.
Immigrants also face harassment at the hands of their employers. Women immigrants are vulnerable and may be exploited sexually, physically and economically. It does not help that most immigrants are unaware of their rights.14 Identity issues are common, as many immigrants lack proof of identity from their home countries. They are vulnerable to diseases like HIV/AIDS and water-borne diseases like cholera and diarrhoea.15
Conclusion:
Apart from human rights concerns of slavery and deportation, immigrants in India make the active decision to move for a better and improved life. This includes better economic opportunities, better political stability and improved national security. While historically, immigrants are generally portrayed as those who have no choice but to migrate, the reality is that, while refugees as immigrants do exist, most immigrants make a conscious and motivated decision to immigrate to India.
A critical change that can be made is the increase in the number of bilateral agreements India has signed. Currently, India has twenty social security bilateral agreements with countries like Australia, Canada, France, Germany, Japan, South Korea, Portugal and Switzerland, to name a few.[16] However, this list does not include Bangladesh and Nepal, and many other smaller countries from which people immigrate to India. Signing such an agreement protects the immigrants’ lives in India and benefits India by improving relations and gaining more skilled and unskilled labour from abroad.
References
[1] Immigration by Country 2023, World Population Review (2023) https://worldpopulationreview.com/country-rankings/immigration-by-country
[2] Binod Kharia et al, International Migration Policy: Issues and Perspectives for India, IMDS Working Paper Series, 1, 2 (2008)
[3] Id. at 5
[4] Hein de Haas, A theory of migration: the aspirations – capabilities framework, 9(1), Comp Migr Stud., 8 (2021)
[5] Supra note 2, at 3
[6] Paran Balakrishnan, Does India really have a Bangladeshi problem? The Hindu Business Line (Feb. 8, 2020) https://www.thehindubusinessline.com/opinion/does-india-really-have-a-bangladeshi-problem/article30764235.ece
[7] Keshav Bashyal, A survey on Nepali migrants in India: An Empirical Study, 7, The Geographic Base, 54, 56 (2020)
[8] Supra note 2, at 7
[9] Supra note 6
[10] Supra note 4
[11] Stelmakh Leonid Iuliia v. Secretary to the Ministry of External Affairs, Government of India and Union of India, WP No. 1648 of 2010 (India)
[12] Supra note 4
[13] Supra note 4
[14] Binod Khadria and Perveen Kumar, Immigrants and immigration in India: A Fresh Approach, 50(8), Economic & Political Weekly, 65, 67 (2015)
[15] Id. at 68
[16] Social Security Agreement, Government of India – Ministry of Labour & Employment (2023) https://labour.gov.in/social-security-agreement
This article was authored by Vibha Chinni Krishnan, a student of Symbiosis Law School, Hyderabad.
