Report No. 175

8. Existing Legal Framework

The existing legislation governing the entry into, stay in, and departure of foreigners from, India are the Foreigners Act, 1946, the Passport (Entry into India) Act, 1920, and the Registration of Foreigners Act. 1939. The Immigrants (Expulsion from Assam) Act, 1950 and the Illegal Migrants (Determination by Tribunals) Act, 1983, were enacted, especially to control the unabated influx of illegal migrants to the North-Eastern region. In addition, there are cognate Acts as well having some bearing on the subject, namely, the Indian Citizenship Act, 1955, and the Indian Passports Act, 1967.

8.1 The Principal Act dealing with this subject is the Foreigners Act, 1946. It was enacted, for the first time, in 1364 to enable the Government to prevent the subjects of foreign states from residing or sojourning in, or passing through or travelling in, British India without its consent. This Act made it obligatory on every foreigner to report his arrival in India in certain cases and not to travel "in India without a licence which was to be granted by the Governer-General of India or any of the Local Governments or the officers authorised by them so to do. It empowered the Governer-Genera1 of India in Council to order removal of any foreigner from British India.

The Local Governments were also empowered to make similar orders with reference' to any foreigner staying within the jurisdiction of such Governments. The Act provided that, if any foreigner, who had been ordered to remove himself from British India or there from by a particular route, neglected or "refused so to do or after having been removed, will fully returned back without a licence, then he might be apprehended or detained in custody and discharged upon such terms and conditions as the Governer-Genera1 of India or the Local Government deemed sufficient for peace and security of British India and of the neighbouring States.

8.1.1 Two more laws were enacted in 1939. One was the Registration of Foreigners Act. 1939, still in force, and the other was the Foreigners ordinance, 1939 promu1gated to meet the emergency arising out of the Second World War. The Ordinance provided for the imposition of restrictions on the entry of foreigners into, their presence in, and their departure from, British India. It was replaced by the Foreigners Act, 1940. Section 1(3) of the Act provided that it would remain in force during the continuance of and for a period of six months thereafter. It expired on 30 September, 1946. The Foreigners Act, 1946, was enacted on the expiry of the Act of 1940.

8.1.2 The Foreigners Act, 1946, was amended five times twice in 1947 and also in 1951, 1957 and 1962 each. The amendment of 1947 was the result of the transfer of power from Britishers to Dominion Government and the Partition of the country. The amendment of 1951 was made as a result of the incorporation of Hyderabad into Indian Union. The free entry of nationals of certain Commonwealth countries was facilitated by the amendment in 1957.

8.1.3 The Act is a small legislation, consisting of Just 15 sections after the repeal of sections 10 and 17 respectively. It was enacted with the objective to confer on the Government certain powers with respect to the entry of foreigners into, their presence in, and their departure from, India. The Act was applicable to the whole of the country. The relevant provisions of the Act are as follows:

(i) The Central Government is empowered under section 3(1) to prohibit, regulate or restrict the entry into, departure from, or presence in, India of all or any class or description of foreigners and to make specific orders under section 3(2) with respect to specific matters, such as, the proof of identity of a foreigner, his photograph, specimen signature and medical examination; prohibition of association with certain persons or engagement in certain activities and prohibition to possess certain articles; the regulation of conduct of foreigners in particular matters; and the execution of bond for due observance of specified restrictions or conditions; their arrest, detention or confinement.

(ii) Section 3A confers power on the central Government to exempt citizens of the Commonwealth countries and other foreigners from the application of the Act in certain cases specified in its order. It further empowers the Government to apply, by order, the Act to foreigners only in certain circumstances or subject to specified exceptions, modifications or conditions.

(iii) Section 4(1) confers powers on the central Government to issue orders laying down conditions as to the maintenance, discipline and punishment of offences and breaches of discipline in respect of a foreigner (internee) who has been ordered to be detained or confined under section 3(2)(g). Under section 4(2), it can also require a foreigner on parole to reside in a specified piece and to observe the said conditions.

(iv) Section 4(3) prohibits any person from knowingly assisting such an internee or a foreigner on parole to escape from custody or knowingly harbouring such a foreigner. It further prohibits any person from preventing arrest of escaped internee or a foreigner on parole.

(v) The Government may regulate by order under section 4(4) the access to, and the conduct of a person in, places where internees or foreigners on parole are detained or restricted as also to regulate the despatch or conveyance of prescribed articles from outside to such a person.

(vi) Section 5 prohibits a foreigner who enters India from changing his name or using any name for any purpose other than the name by which he was known immediately before he entered India.

(vii) Section 6 casts an obligation on the master of any vessel or pilot of an aircraft coming to, or going from, India to furnish information in respect of foreigners whether as passengers or as members of the crew to the prescribed authority, any District Magistrate or any Commissioner of Police in the prescribed manner. The section further empowers the authorities to direct the master of a vessel or pilot of an aircraft to provide accommodation on the vessel or aircraft for removal of any foreigner who enters India in contravention of the provisions of the Act or who has been ordered under this Act not to remain in India.

(viii) Hotel keepers and others are required under section 7 to furnish particulars of the foreigners accommodated in their premises, to maintain record of such information and to keep it open to inspection by any police officer or any person authorised by the District Magistrate.

(ix) Under section 7A, the prescribed authority has the power to control places frequented by foreigners.

(x) The determination of nationality in the case of a foreigner, who is recognized as a national of more than one country or where his nationality is uncertain, is dealt with under section 8. The prescribed authority may treat him, in the former case, as the national of the country with which he appears to be most closely connected, for the time being, in interest or sympathy and in the latter case, as the national of the country with which he was last so connected. The decision of the prescribed authority as to the nationality of the above persons is final and conclusive and not justiciable in any court. However, it can be revised by the Central Government suo motu or on an application made by the foreigner concerned.

(xi) Apart from determination of nationality, if a question arises whether any person is or is not a foreigner of a particular class, the onus of proving the same lies on such person under section 9.

(xii) Under section 11, any authority empowered by the Act to give any direction or to exercise any other power may, in addition, take reasonably necessary steps or use reasonably necessary force to secure the compliance of such direction or to prevent breach of such direction or order or to ensure the effective exercise of such power. Such a power is also exercisable by any police officer. Such authority or the police officer has been given the right of access to any land or other property while exercising the aforesaid powers.

(xiii) Any authority exercising powers under the Act is competent under section 12 to delegate the same, conditionally or otherwise, to a subordinate authority.

(xiv) The contravention of the provisions of the Act is an offence under section 14. The term "contravention" has been given a very wide scope under section 13. This section provides that any person who attempts to contravene, abets or attempts to abet or does any act preparatory to a contravention of such provisions, orders or directions given under any order, or fails to comply with such directions is deemed to contravene the provisions of the Act.

(xv) Section 14 prescribes punishment up to five years' imprisonment and fine for contravention of the provisions of the Act or, any order made under it or any direction given in pursuance of the Act or such order. The section also provides for the forfeiture of bond if a person has executed it under section 3(2) of the Act and makes him liable to pay the penalty or satisfy the court otherwise.