Report No. 175

9.2 In the following cases the Courts have interpreted the object and scope of the Act.

In Bawalkhan v. B.G. Shah, the Bombay High Court referring to the object of the Act observed thus:

[F]rom S.3 the object of the Act appears to be provide for prescribing, regulating and restricting amongst other things the presence and continued presence of a foreigner in India. What appears to have been intended is to confer power on the executive authority to prescribe and specify conditions for continuance of a foreigner in India. Extremely wide kind of or unlimited restrictions and prohibitions and regulations can be validly prescribed and specified.

The Legislature intended to give widest possible powers to the government for obvious reasons. A foreigner is not entitled to any guarantee or fundamental rights as a citizen is entitled to under the Constitution. A foreigner can be dangerous to security of India. His presence may be undesirable for security of India. His presence may be undesirable for any reason of any kind and it appears to have been intended by the Legislature to leave the whole matter of the foreigner's presence in India to the executive discretion of the Government. The provisions of S.3 make this object of the Act abundantly clear.

The Madras High court in Gilles Pfeiffer v. union of India held that the petitioner, being a foreigner, had no fundamental rights under article 19(1)(e). The Act of 1946 vests the central Government with absolute and unfettered discretion and unrestricted right to expel a foreigner. Once his application for extension of stay in India had been rejected, he would have no right to claim to stay in the country, much less a fundamental right. Further, the impugned order under section 3 was not vitiated on the ground that either it was not a reasoned order or one passed in violation of the principles of natural justice.

The Kerala High Court explained the scope of the Act at in B.S.Ultrich v. District Collector and observed as follows:

[T]here is nothing either in the long title of the preamble of the Act to anyway indicate that it is only intended to operate as against the voluntary entry, voluntary presence and voluntary departure of foreigners. Whatever may be the circumstances under which a foreigner comes to India, once he is present in India, the civil authority has got ample jurisdiction to take action under the Foreigners Order read with the Foreigners Act.

9.3 Two cases in which the courts held that there was no excessive delegation of power under section 3, are the following:

In Khalil Ahmad v. State of Utter Pradesh, the High Court held that the legislature had clearly specified the matters in respect of which orders could be made under section 3 by the Central Government. It was only a piece of conditional legislation and, consequently, the power conferred on the Central Government could not be said to be in excess of section 3 of the Act.

In A.H. Magermans v. S.K. Ghose, the Calcutta High Court observed:

[T]he legislature has indicated both in the preamble and in Section 3 and in section 3A, the principle and policy of the legislation. The standards and the criteria on which the power is to be exercised have been clearly defined. The Court is not kept guessing either with regard to the object or the policy of the legislation. What has been left with the executive, is not any determination with regard to policy or principle; but the application of the principles to individual cases. That being so, it cannot be held that there has been excessive delegation of powers under the Foreigners Act, 1948 in favour of the executive.

9.4 The case law shows that the determination whether a person is a foreigner is a question of fact and this does not present any difficulty; that the widest possible powers have been conferred on the government to deal with foreigners whose presence may be a threat to the security of India; that foreigners do not enjoy certain fundamental rights guaranteed to citizens only; that the Act is intended to deal with all foreigners without any reference to any circumstances under which they may have come to India; and that the Act does not suffer from the vice of excessive delegation as the Legislature has clearly laid down the principles and policy of the legislation as well as the criteria and standards for determining the issue as is evident from the preamble and sections 3 and 3A aimed at guiding the executive while exercising powers under the Act.

9.5 It seems that not many cases have been decided by the appellate/higher courts under the Foreigners Act. Only two cases decided by High Courts which have been reported in All India Reporter (AIR) during the last six years (1994-99) are Gilles Pfeiffer and Fred Howard Haering v. state of Himachal Pradesh.

In Fred Howard Haering case, the petitioner, a foreigner, had limited leave to enter or remain in India. He did not register himself as per the provisions of the Act of 1946 and the Registration of Foreigners Rules, 1939. He did not apply for the extension of his stay before the expiry of the period of visa. An order of deportation was, therefore, passed against him under section 3 of the Act. The Himachal Pradesh High Court held that there was no infirmity or irregularity in the order; also there was no violation of the principles of natural justice as there was nothing on which the petitioner was required to be heard.

9.6 These cases, on one hand, indicate that the judiciary has interpreted section 3 liberally in favour of the Government action taken under the Foreigners Act. On the other hand, these reflect that, in recent years, there has not been much litigation at the High court or the apex Court levels. Hence, the case law may not be of much he1p in offering any guidelines.

9.7 In conclusion, despite various legal measures and some other steps such as the improved border management and setting up of the mobile task force, the problem does not show any sign of recession; rather it has aggravated