Report No. 175
13. The scheme of amendments proposed by the Law commission
13.1 The Law Commission has considered the views expressed by the Ministry of Home Affairs, recommendations of the Estimates Committee of the Parliament and Conferences of Chief Ministers and Chief secretaries, Report of the Governor of Assam on Illegal Immigration. the pleadings of the parties in the public interest litigation pending in the Supreme Court (including the Status Reports filed by the Union of India and the State of west Bengal therein), views of the states and Union Territory administrations regarding their experience in implementation of the provisions of the Foreigners Act, 1946 and all the other relevant material referred to hereinbefore.
The Law Commission had to take a decision with respect to the shape of proposals to be framed by it. one idea was to go in for a comprehensive Act incorporating' the features of the several existing Acts and of the Orders/Rules made there under. In short, the idea was to codify the entire law concerning the foreigners, which is now scattered in several enactments and Orders made there under, into one enactment. The other idea was to introduce provisions in the Foreigners Act effective enough to meet the main problem faced by this country today, namely, illegal migration without interfering with the existing legal framework.
On a consideration of all the pros and cons, the Commission has chosen to adopt the second alternative. The Foreigners Act was enacted in 1946. A large number of Orders (in exercise of the order-making power conferred by section 3 of the Act) have been issued from time to time, regulating various aspects concerning foreigners. Besides the Foreigners Act, there are two other Acts, namely, the Immigrants (Expulsion from Assam) Act, 1950 and the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), the former deals with expulsion of migrants from Assam and the latter exclusively deals with determination and deportation of illegal immigrants.
There is the Registration of Foreigners Act, 1939, the Passport (Entry into India) Act, 1920 and the Passports Act, 1967. Codifying the provisions of all these Acts and of the orders made there under would take a long time and there is always the problem of new provisions creating room for fresh litigation. The better course, we thought, was to leave the existing mechanism unaffected except insofar as it is inconsistent with the provisions now proposed by way of this Amendment Bill.
Accordingly, the Commission has suggested insertion of certain definitions in section 2 and the insertion of new sections 7(3) to 7(U) in the Foreigners Act, 1946. These provisions shall have effect notwithstanding anything to the contrary in other enactments in force. we have defined the expression "illegal entrant", created a new category of officers called Immigration Officers with a chief Immigration officer at the head and laid down their powers, duties and functions.
We have also specified that certain classes of persons are not to be admitted into India even if they are holding a visa or other valid document in that behalf. The function of determining whether a person is an illegal entrant has been entrusted to the immigration officers. Their orders are made subject to an appeal to be heard and decided by an Immigration Tribunal, to be manned by a person who is or has been a district judge or an additional district judge.
The immigration officers and the immigration tribunals shall decide the matters according to the principles of natural justice which necessarily means. after making such inquiry as may be called for in a given case. We have a1so provided for facilitation centres for detaining the foreigners pending the determination of their status and pending their deportation. So far as the offences under the Act are concerned, they are, of course, to be tried by Immigration Court. Immigration court is a court of District and Sessions Judge to be specified by the appropriate government in that behalf, in each district.
13.2 At this stage the Commission thinks it necessary to refer to a particular aspect. According to the provisions of the Amendment Bill suggested by us herein. a "foreigner" means a person who is not a citizen of India - and "Citizen of India" as proposed in clause (ea) of the Bill is "a person who is a citizen of India within the meaning of and as provided in Part II of the Constitution of India or the Citizenship Act, 1955". According to section 6-A of the Citizenship Act, 1955 (which section was introduced by Amending Act 65 of 1985 w.e.f. 7th December 1985), the position with respect to citizenship of persons covered by the Assam Accord is the following:
a) "All persons of 'Indian Origin' who came before the first day of January 1966 to 'Assam' from the 'specified territory' (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of People held in 1967) and who have been ordinarily residents of Assam since the dates of their entry to Assam shall be deemed to be citizens of India as from the 1st January 1966." ('Indian origin' is defined in the said section in the following words "a person shall be deemed to be of Indian origin if he or either of his parents or any of his grandparents were born in undivided India.") ("Assam" in the said section means "the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985.")
b) So far as persons of Indian origin who have come to 'Assam' on or after first day of 1966 but before the 25th day of March 1971, are concerned, the position is different. Where such person has been ordinarily residing in "Assam" since the date of entry into Assam and has been detected to be a foreigner and has registered himself in accordance with the rules made by the Central Government in that behalf under section 18 of the Citizenship Act, with the prescribed authority, he acquires ail the rights of Indian citizenship on the expiry of ten years from the date on which he was detected to be a foreigner.
In other words, the position is that in case of a person of Indian origin who has entered "Assam" but has not been detected to be a foreigner and accordingly has not applied for registration, wi11 not become a citizen of India irrespective of the length of his stay. (See sub-sections (3), (4) and (5) of section 6A of Citizenship Act).
c). It also follows from the above provisions that if a person who is not a citizen of India according to the provisions of the Constitution or the Citizenship Act, has entered the territories of India (except the territories included in "Assam"), he shall not be treated as a citizen of India, irrespective of the length of his stay in India.
d). The IMDT Act, 1983 is concerned only with a limited class of persons, i.e., "foreigners who migrated into of the eastern and India across the borders north-eastern regions of the country on and after the 25th day of March 1971." Such persons were sought to be identified and deported from India. This Act does not purport to nor can it be construed as conferring citizenship upon persons who have entered India before 25.3.1971. This Act is not indeed concerned with conferment of citizenship.
However, according to the Note furnished to us by the Home Ministry, "(2) According to Indira-Mujib Agreement 1974, all persons from erstwhile Pakistan who came to India before 25.3.1971 would continue to live in India and would ultimately become Indian citizens and those who had come to India on or before (after ?) 25.3.1971 without any valid travel document would be treated as illegal migrants and, therefore, have to be deported to Bangladesh subsequently".
This note of the Home Ministry does not appear to correctly reflect the legal position as is evident from a perusal of the Constitution and the Citizenship Act. It is, however, a matter of policy for the government to decide whether the government wishes to treat all migrants, to territories of India except "Assam" from the territories which now constitute Bangladesh, prior to 25.3.1971 as illegal migrants or whether it would allow them to be treated as Indian citizens.
Another policy decision which may have to be taken is what does the Central Government propose to do to those Bangladeshis (to use a convenient expression) who have entered "Assam" between 1.1.1966 and 25.3.1971 but who do not satisfy the requirements of sub-section (3) of section 6-A of the Citizenship Act. Are they to be treated as "illegal entrants" or not and if the former, are they to be deported?
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