The right to Personal liberty is a basic human right that is protected by international and domestic law and is frequently enshrined in the constitutions of various nations. Individuals are entitled to move and act freely, without intrusion or coercion from the state or other external forces. Foreign nationals’ personal liberty has become a controversial topic in recent years, with debates and discussions centred on whether foreign nationals have the same rights and freedoms as citizens of the country in which they reside. Finally, personal liberty is a fundamental right that should be upheld and protected for all individuals, regardless of nationality.
In this blog, we will explore the concept of personal liberty as it pertains to foreign nationals, specifically in the context of India. We will examine how personal liberty is protected under international and domestic law, the challenges that foreign nationals may face concerning their personal liberty, and ways in which they can seek to protect their rights.
PERSONAL LIBERTY IN INTERNATIONAL LAW
International law recognizes the importance of personal liberty and has established various provisions to protect it. For example, the Universal Declaration of Human Rights states that “no one shall be subjected to arbitrary arrest, detention or exile.” The International Covenant on Civil and Political Rights (ICCPR) also protects the right to personal liberty, stating that “no one shall be deprived of his liberty except on such grounds and following such procedure as are established by law.” In addition to these provisions, several international conventions and treaties protect the personal liberty of foreign nationals, such as the Convention Relating to the Status of Refugees and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
In India, personal liberty is protected under the Indian Constitution, which guarantees the right to life and personal liberty to all individuals within its jurisdiction. This right is protected under Article 21 of the Constitution, which states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” In addition, the Indian Supreme Court has recognized the importance of personal liberty and has issued several rulings to protect it. For example, in the landmark case of Maneka Gandhi v Union of India, the Supreme Court held that personal liberty is a fundamental right and that any deprivation of this right must be in accordance with the principles of natural justice.
In the case of A.K. Gopalan v The State of Madras, the Supreme Court of India held that the right to personal liberty under Article 21 of the Indian Constitution is available to all persons, including foreign nationals, who are within the territory of India.
Similarly, in the case of Francis Coralie Mullin v Administrator, Union Territory of Delhi, the Supreme Court of India held that the right to personal liberty is not restricted to Indian citizens and that foreign nationals are also entitled to the protection of this right.
PERSONAL LIBERTY IN DOMESTIC LAW
In India, personal liberty is protected under various laws and regulations. For example, the Code of Criminal Procedure (CrPC) provides for the protection of personal liberty by establishing procedures for the arrest and detention of individuals. The CrPC also sets out the rights of arrested persons, including the right to be informed of the grounds for arrest, the right to consult with a lawyer, and the right to be produced before a judicial officer within 24 hours of arrest. In addition to the CrPC, various other laws protect personal liberty in India, such as the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences Act (POCSO).
Personal liberty is typically safeguarded under Indian law, but this right may be different for foreign nationals. For example, it is possible that foreign nationals who break immigration regulations could be detained or deported. Additionally, foreign nationals may have limits on their movement within India, such as needing to register with local police or get permission to travel to specific areas. These differences illustrate the intricate connection between international and domestic laws regarding personal liberty and how domestic laws might vary in their protection of this right for foreign nationals.
CHALLENGES TO PERSONAL LIBERTY FOR FOREIGN NATIONALS
Foreign nationals’ personal freedom is compromised by detention. Foreign nationals may be detained in various countries for a variety of reasons, including overstaying their visas, illegally entering the country, or engaging in activities deemed a threat to national security. Even individuals who have committed a crime can be detained for long periods without being tried. This is especially common in countries with a high number of refugees or asylum seekers, who may be detained for months or even years while their cases are evaluated.
Foreign nationals’ personal freedom can suffer greatly if they are detained. They are not only deprived of their liberty, but they may also be subjected to deplorable conditions such as overcrowding, inadequate medical care, and limited access to legal representation. These circumstances can result in physical and mental health problems, as well as death in some cases.
One example of the use of detention as a means of addressing immigration issues in India is the case of Rohingya refugees. The Rohingya are a minority group from Myanmar who have faced persecution and violence in their home country, leading many to seek refuge in India. However, the Indian government has classified the Rohingya as illegal immigrants, and many have been detained in detention centres while their asylum claims are being processed.
According to the United Nations High Commissioner for Refugees (UNHCR), the detention of asylum seekers should be used only as a measure of last resort, and alternatives to detention should be considered whenever possible.
Deportation can jeopardize foreign nationals’ personal liberty. Foreign nationals who are perceived to be a threat to national security or who have committed a crime may be deported to their home country. For the individual, who may face persecution or death upon their return, this can be a difficult and distressing experience. Furthermore, deportation can infringe on an individual’s personal liberty. In some cases, the individual may be detained in their home country and subjected to abuse or torture. This can have serious consequences for one‘s mental and physical well-being and can even result in death.
The use of deportation as a means of addressing immigration issues has been criticized by human rights organizations, as it can result in the violation of the individual’s right to liberty and protection from torture and other forms of ill-treatment. The United Nations Human Rights Committee has stated that deportation should only be carried out if it is following the principles of non-refoulment and if the individual’s rights are protected.
The personal liberty of foreign nationals is also threatened by the use of surveillance and monitoring. In many countries, foreign nationals are subjected to intrusive surveillance and monitoring, with their movements and activities tracked by government agencies and law enforcement. This can be a violation of their privacy and can have a chilling effect on their freedom of expression and association. One of the most concerning aspects of this surveillance and monitoring is that it is often carried out without the individual’s knowledge or consent. In many cases, foreign nationals are not informed that they are being monitored, and may not even be aware that their privacy is being violated. This can be a serious breach of their personal liberty and can have a detrimental impact on their mental health and well-being.
The personal liberty of foreign nationals is a complex and controversial issue that requires careful analysis. It is important to recognize that all individuals, regardless of their nationality, are entitled to personal liberty. However, foreign nationals often face discrimination, harassment, and even violence due to their country of origin or their religious beliefs. This is particularly true in countries with a history of racial or religious tension, where foreign nationals may be perceived as outsiders or even threats to national security. In order to understand and address these issues, it is necessary to carefully examine how international and domestic laws intersect to protect or restrict the personal liberty of foreign nationals, and to consider the ways in which social and political factors may impact the personal liberty of foreign nationals.
Author(s) Name: Sandesh S Bhasri (Karnataka State Law University)