Report No. 175

8.2 A number of orders have been issued by the central Government in exercise of the powers conferred by sections 3, 3A, 4 and 8 of the Act. They are as follows:

8.2.1 The Foreigners Order, 1948, made under section 3 of the Foreigners Act, 1946 provides for the appointment of a "civil authority" by the central Government and confers on such authority numerous powers, e.g., the power to grant permission to enter or to depart from India; the power to examine foreigners who want to enter or to depart from India, the power to require the master of a vessel or pilot of an aircraft to remove a foreigner who has entered India without permission; the power to permit a foreigner to reside in a prohibited place; the power to declare, with the prior sanction of the Central Government, q any area to be a protected area and to prohibit, inter alia, any foreigner from entering that area; the power to permit a foreigner to undertake employment or enter certain undertakings; the power to impose restrictions on movement of foreigners and the power to close clubs and restaurants to foreigners under certain circumstances.

Other provisions of the Order relate to the grant of a special permit to land to seamen and crew of an aircraft, restrictions on certain activities like production of a film, mountaineering expeditions; removal of foreigners from cantonments areas and expenses on deportation. The "civil authority" has been defined under the Order to mean an authority which may be appointed by the Central Government in that behalf for such an area.

8.2.2 The Foreigners (Exemption) Order, 1957 was made under section 3A of the Act to exempt citizens of some Commonwealth countries and other persons from application of this Act and the Foreigners order but rescinded with effect from 18 June, 1984.

8.2.3 The Foreigners (Protected Areas) order, 1958, made under section 3, restricts the entry of foreigners into protected areas.

8.2.4 The Foreigners (Restriction on Movements) Order, 1980, made under section 3, restricts the entry into, or departure of Chinese nationals (including indigenous inhabitants of the Tibet region of china) in India.

8.2.5 The Foreigners (Restriction on Activities) Order, 1962, made under section 3, prohibits foreigners (other than nationals of Bhutan and Nepal) from taking photographs etc. in certain areas in the state of west Bengal without the permission of the civil authority.

8.2.6 The Foreigners (Internment) Order, 1962, made under sections 3, 4 and 8, provides for arrest and internment of nationals of Pakistan and certain other countries at war with India or which assist such countries as also other foreigners assisting such countries.

8.2.7 The Foreigners (Restriction on Chinese Nationals) Order, 1962, made under section 3, prohibits Chinese nationals from absenting themselves from their registered residences without permission or leaving India by air or sea except from the ports at Bombay, Calcutta, Madras and New Delhi.

8.2.8 The Foreigners (Restricted Areas) Order, 1963, made under section 3, restricts the entry of foreigners except the specified ones into restricted areas without the permission of prescribed authorities.

8.2.9 The Internees (Discipline and Offences) order, 1963, made under section 4, prescribes penalties for offences committed by an internee against internment camp discipline as also procedure for dealing with other criminal offences.

8.2.10 The Foreigners (Tribunals) order, 1964, made under section 3, empowers the Central Government to constitute a tribunal and refer to it for its opinion the question whether a person is or is not a foreigner.

8.2.11 The Foreigners (Restriction on Pakistani Nationals) Order, 1965, made under section 3, prohibits a Pakistani national from leaving his registered place without permission of the civil authority concerned.

8.2.12 The Foreigners (Restriction on Residence) Order. 1968, made under section 3, prohibits a foreigner (other than a foreigner who is a member of a foreign diplomatic mission, consular post or trade mission or member of his family or in employment of such foreigner) from staying or residing in any premises occupied by a diplomatic mission or consular post or trade mission in India without the written permission of the civil authority.

8.2.13 The Foreigners (Report to Police) Order, 1971, made under section 3, casts an obligation on a householder or any other person to report to the police about the arrival or presence of a foreigner in his household or other premises.

8.2.14 The Foreigners (Restriction on Pakistani Nationals) Order, 1971, made under section 3, prohibited a Pakistani national from leaving or absenting himself from his place of residence without prior permission. The Order was rescinded in 1978.

8.2.15 The Foreigners (Proof of Identity) Orders of 1983, 1985, 1986, 1987, 1988 and 1991, were made under section 3, for short durations requiring the foreigners to carry their travel documents, certificates of registration and residential permits with them at all times and to produce the same on demand.

8.3. The Immigrants (Expulsion from Assam) Act, 1950. This Act was enacted to deal with the serious economic as well as law and order problems created in the State of Assam as a result of a large scale migration from erstwhile East Pakistan, (now Bangladesh).

(i) The Act conferred powers on the Central Government to order expulsion of certain migrants from Assam who, being ordinarily residents of any place outside India, had come to Assam before or after 1st March, 1950, and their stay in the opinion of the Central Government was considered detrimental to the interest of general public of India or of any section thereof or of any Scheduled Tribe in Assam. However, those who migrated on account of civil disturbances or for the fear of the same were exempted from the application of this provision.

(ii) The Act empowered the Central Government, under section 2, to direct such persons to remove themselves from India or Assam within such time and through such route as specified in the order and to give such necessary directions for their removal.

(iii) The authorities empowered under the Act may, in addition, under section 4, take such steps and use such force as is reasonably necessary for the exercise of such powers.

(iv) Under section 5 of the Act, contravention, attempt to contravene or abetting contravention of any order made under section 2 of the Act has been made punishable with imprisonment up to three years and fine. However, persons acting in good faith have been exempted from prosecution or other legal proceedings instituted under the Act.

(v) The Act was adapted by the State of Nagaland with necessary amendments in 1962 and extended to the State of Meghalaya in 1969.

8.4 The Illegal Migrants (Determination by Tribunals) Act, 1983 - It was enacted to make special provisions for the speedy detection, by a judicial process, of foreigners who entered India on or after 25 March 1971 without a valid passport and other travel documents so as to enable the Central Government to expel illegal migrants from India as well as to protect genuine citizens of India. The Act, preceded by an ordinance, was deemed to have come into force, in Assam on 15 October, 1983. The Government is, however, empowered to apply the Act in different States through notifications. Somehow, the Government confined it to Assam only which was badly affected by illegal migrants.

(i) section 5 of the Act empowered the Central Government to establish as many tribunals for this purpose as were necessary for the purpose.

(ii) If any question arises as to whether any person is or is not an illegal migrant, the Central Government may, under section 8, refer the same for decision to the tribunal within the territorial limits of whose jurisdiction the place of residence of the person named in such reference, is situated. The Central Government can make such reference on the representation made by any person against whom any order under the Foreigners Act requiring him not to remain in India has been passed, or on the application of any other person. Thus, any private person can also make an application to the tribunal for deciding as to whether the person named in the application, is or is not an illegal migrant.

(iii) Under section 9, the tribunal has the powers of a civil court in regard to summoning and examining of witnesses, discovery and production of any document, reception of evidence on affidavit, requisitioning of public records from any court or office and issuing of any commission for the examination of witnesses.

(iv) The Act requires that the person named in the reference be given sufficient opportunity to make his representation, section 13 mandates the tribunal to expeditiously conclude the reference or the application within a period of six months from the date of service of copy of such reference/application.

(v) The Central Government or any person named in the reference or the applicant, if not satisfied with any order of the tribunal, may appeal to the appellate tribunal known as illegal Migrants (Determination) Appellate Tribunal, established by the Central Government by virtue of section 15 of the Act.

(vi) The Central Government is empowered to direct removal of the persons identified as illegal migrants from India within specified time. The police officers not below the rank of a superintendent of police have been given powers to ensure compliance of such orders and even arrest the defaulters.

(vii) In pursuance of the provisions of the Act, the Central Government established 16 Tribunals and one Appellate Tribunal in Assam. Out of 16 Tribunals, only five are functional and the rest are virtually non-functional because of the paucity of funds and resources. The Tribunals had taken cognizance of about 23,976 cases and identified 9,599 migrants as illegal, out of them only 1,454 could be deported over a period of 15 years. These figures indicate that the tribunals could not achieve the purpose for which they were established. The entire process to identify foreigners is time consuming and impractical. Therefore, illegal migration continues unabated.