CONSTITUTIONALITY:

1. Human rights are inherent and inalienable in nature. Natural rights were meant to be
converted into our constitutionally recognised fundamental rights, so that they may be
found within it and not outside it. The constitution guarantees certain rights not only to its
citizens but also non-citizens. It is noted that this act is constitutional and does not curtail
any right of an individual moreover the restrictions imposed are reasonable and not
arbitrary. Each and every individual which is currently residing in India whether a
refugee or an immigrant or an certified Indian Citizen are protected by Article 21 and 14
of the Constitution and certain International Guidelines.
2. Every person is guaranteed equality before law and equal protection of laws,1 irrespective
of whether he is a citizen or a non-citizen. However the Hon’able SC in the case of Ram
Krishna Dalmia v. Justice S.R. Tendolkar AIR 1958 SC 538 has established certain
important principles which further illuminate the scope of permissible classifications only
if it is reasonable.
3. The classification is reasonable depends upon two conditions Union of India v. N.S.
Rathnam and Sons(2015) 10 SCC 681
a) It should be based on intelligible differentia, some real and substantial distinction, which
distinguishes persons or things grouped together in the class from others left out of it.
b) The differentia adopted as the basis of classification must have a reasonable nexus with
the object sought to be achieved by the statute in question.
4. Article 14 will be treated as violated only when equal protection is denied even when the
two persons belong to the same class or category. Union of India v. N.S. Rathnam and
Sons(2015) 10 SCC 681. In the present case the citizens and the illegal immigrants
cannot be treated under the same class or category.
5. In Louis Deraedt v. Union of India reported in , the Apex Court held that the
fundamental rights of the foreigners is confined to Article 21 for life and liberty and does
not include right to reside and settle in this country as mentioned in Article 19(1)(e)
which is applicable only to the citizens of this country.
6. No person shall be deprived of his life or person liberty except according to procedure
established by law.2 The due procedure has to be reasonable, which has to be ‘right and
just and fair’ and not arbitrary, fanciful or oppressive. 3 Thus Article 21 has not been

1
Under Article14 of the Constitution of India
2
Under Article 21 of the Constitution of India
3
Supra 37 at 11
 violated as the due procedure has been followed[2.1] secondly the due procedure is not
arbitrary[2.2] thirdly the procedure established is reasonable[2.3]
7. The Parliament has the power to make provisions with respect to acquisition and
termination of citizenship and all other matters relating to citizenship.4
8. Moreover section 3 of the Foreigner’s Act, 1946 empowers the Central Government to
make provisions with respect to all the foreigners for prohibiting, regulating or restricting
the entry of foreigners into India. Furthermore, the Central Government can make order
of detaining certain persons if it is satisfied with respect to any person that with a view of
preventing him from acting in any manner prejudicial to the security of state and public
order5 or if it is satisfied with respect to any person being a foreigner within the meaning
of Foreigner’s Act, 1946 that with a view to regulating his continued presence in India or
with a view to making arrangements for his expulsion from India it is necessary to do,
making an order directing that person to be detained.

DETENTION:
1. Detention is a precautionary measure. The illegal immigrants were a threat to the culture
and language of the state of Kerala. The act of detention has been carried out in order to
maintain public order and peace in the state. The state has acted in accordance with the
doctrine of parens patriae, to conserve its culture and protect the state from external
aggression and internal disturbances. Moreover the act of detention is based on a rational
differentia (identifying the illegal immigrants) having reasonable nexus with the object
(deportation of the illegal immigrants). The rationale behind detention is to prevent the
act of vanishing, and giving the illegal immigrants an opportunity to forge duplicate
documents. Thus it is submitted that the act of detention is not arbitrary and is under the
well defined boundaries of law and order.
2. The National Securities Act,1890 gives authority to the Central and State Government to
make orders for detention in respect to any foreigner with a view to regulate his
continued presence in India or with a view to making arrangements for his expulsion
from India.

4
Under Article 11 of the Constitution of India
5
Section 3(1)(a)(ii) Preventive Detention Act,1950