175Th Report On The Foreigners (Amendment) Bill, 2000

[Cites 50, Cited by 0]

Law Commission Report

175Th Report On The Foreigners (Amendment) Bill, 2000

LAW COMMISSION OF INDIA

ONE HUNDRED SEVENTY FIFTH REPORT

on .

THE FOREIGNERS (AMENDMENT) BILL, 2000

SEPTEMBER, 2000



JUSTIQE LAW COMMISSION OF INDM
l.gF."JlEVAN RIDDY sl-IASTBI IHAWAN
chairman, Law commission' of indie
. r . TEL. : 3384475
Residence:
1. JANPATI-I -
NEW DELI-ll-110011

TEL. : 3019483

 

D.O.No'.6 ' 6/ -L S ' Sept.2l,2000

 J» 

I am forwarding  One Hundred Seventy Fifth
Report on "The Foreigners (Amendment) Bill, 2000".

2. Thesubjectwastakenupinpursuancetotlwreferencermdeby
the Government of India on 16'" February, 1999. Prior to it, certain
amendments were mooted in the Foreigners (Amendment) Bill, 1998
introduced in Rajya Sabha by the Home Minister, Shri LK. Advani.
The Parliamentary Standing Committee on Home Affairs felt that the

_ Government should undertake an in-depth study regarding the eﬂicacy
of the proposed amendments in checking inﬁltration of foreigners ﬁom
across the borders. The Committee ﬂavoured a holistic approach in
dealing with the acute problem of inﬁltration. Various suggestions
were made before it which included, inter alia, the desirability of
summaryt1ials,settingupofspecialcourts,nnalch1gg1-antofbailmore
dimcult, etc. The matter was referred to the Law Commission for
consideration. -

3. The Commission has considered the relevant material including
the reports and views of the States and Union Territories regarding their
experience in implementation of the provisions of the Foreigners Act,
1946 and other cognate statutory enactments. While dealing with the
issue, the Commission had to choose between two options which were
available. The ﬁrst was to recommend a comprehensive Act repealing
the existing legislation rules and orders etc. The second option was
to recommend to the existing legislative ﬂame-work.
Instead of codifying the entire law concerning the foreigners, the
Commission chose the second option of recommending incorporation of
new provisions in the Foreigners Act so as to make it effective enough
to meet the main problem conﬁonted by the country today, namely,
illegal migration, without interfering with the existing legal frame-work.
The Commission is of the view that the problem of illegal migration
ﬁ'om neighbouring countries has to be tackled seriously by providing a
machinery for eﬁective and speedy detection of illegal entrants. The
ﬁmction of determining whether a person is an 'illegal entrant' or not is
proposed to be entrusted to the Immigration Oiﬁcers whose orders shall
be appealable, to be heard and decided by an Immigration Tribunal,
marmedbyapersonwhoisorhasbeenaDistrictJudgeoran
Additional District Judge. The matters shall be decided by these

L p®/ 

NEW DELHI-110001 *  



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ﬁmctionaries according to the principles of natural justice. Besides,
facilitation centres are also proposed to be provided for detaining the
foreigners pending the determination of their status. and pending their
deportation. So ﬁat as the offences under the Act are concerned, they
are proposed to be tried by the Immigration Court which would be a
court of District & Sessions Judge to be speciﬁed by the appropriate
Government,' in each district. We have also recommended the repeal of

The Immigrants (Expulsion ﬁ'om Assam) Act, 1950 and The Illegal'

Migrants (Determination by Tribunals) Act, 1983. In order to concretise
our recommendations, we have annexed with the report the Foreigners
(Amendment) Bill, 2000 b incorporating the proposed provisions in
the Foreigners Act, 1946.

4. The measures suggested by the Commission need to be
implemented expeditiously to curb the menace of illegal migration in
our country.

With regards,
/;<_)(u5_s_§i,[llcerely,
(Justice B.P. Jeevan Eeddy)
,  Jhitley,

Hon'iile Minister of State ibr Law, Justice & Co. Affairs,
Ciovbrillite" ' nt of India,

 Bllavan,

New 



S1.No. Pgrpicglgrs Egges
1. Report on the proposed Foreigners

(Amendment) 3111, 2000 1-61
2. Annexure-I

(The Foreigners (Amendment) B111, 2000 62-76

3. Annexure-II (Questionnaire) ' 77
4. Annexure--III
(Responses of the States and
Union Terr1tor1es) 73-81

5. References 82-84



REPORT ON THE PROPOSED FOREIGNERS (AMENDMENT) BILL, 2000

1. Reference to the Law commission

Certain amendments to the Foreigners Act, 1946 were
mooted by the Ministry of Home Affairs with a view to
providing for classification of offences and making its penai
provisions more deterrent. Keeping this in view, the
Foreigners (Amendment) Biil, 1996 was introduced in Rafye
Sabha on 28th Ju1y, 1998 by the Home Minister shri L.K.
Advani. It was then referred to the Pariiamentsry Standing
committee on Home Affairs which discussed the amendments at
its meeting heid on 10th September, 1998. The Committee fe1t
that the Government shouid undertake an indepth study
regarding the efficacy of the proposed amendments in checking
infiltration of foreigners from across the borders. The
Committee favoured ho1ietic approach in ndeaiing with the
vioiations of the provisions of the Act specificaily with a
view to effectively deal with the probiem of infiitration.

Various suggestions which 'came up in the discussion, inter

siia, inciuded the desirability of summary triais, setting up

of spec1a1 courts, making grant of baii more difficu1t, etc.
The suggestions made by it raised important questions of iaw
which invoived the national security interests. Consequent1y,
on 30th September, 1998 the Minister of Home Affairs referred
this matter to the Ministry of Law, Justice and company

Affairs for the consideration of the Law Commission. The



Ministry of Law, Department of Legai Affairs, referred the
proposed amendments for the detaiied examination by the Law

Commission of India on 16 February, 1999.

The issue has attained importance and urgency in the
context of the probiem posed by iiiegai migration especiaiiy
from across the borders and deiicate security situation

arising therefrom.

2. Probiem of Iiiegai Migration

2.1 9 The entry of iiiegai migrants and other undesirabie
aiiens into India has posed a grave threat not only to our
democracy but aiso to the security of India, especiaiiy in the

eastern part of the country and Jammu and Kashmir.

2.2 The probiem has attained gigantic proportions as is
evident from an estimated popuiation of about is miiiion
foreigners iiving unauthorizediy in India. This has

aggravated the empioyment situation and has distorted the

.e1eotora1 ro11s in some States. The undesirabie activities of

foreigners inciude smuggiing of narcotic drugs. spreading
terrorism and other such activities. It is, therefore. of
utmost importance to devise fooiproof administrative measures
such as border fencing, modernized electronic surveiiiance
system as we11 as an effective iegisiation to deai with the

11160808 .



-:3 :-

2.3 The present study is aimed at examining the existing
legislation and suggesting appropriate revision to deal with

the issue more effectively.
3. Situational Review

3.1 The migration of people from one place to another has
been an ongoing phenomenon since the dawn of civilization.
India, being an ancient civilization. accepted new races and

new people at various stages of history. Even the invaders

made India their home and got submerged in the Indian society.'

Different people and different races lived together in peace
and harmony for ages. The turmoil, however. began with 'the
entry of the British. initially as traders and later on with

their acquisition of political power in India.

3.1.1 The British needed cheap labour for their plantations
and industrial establishments not only in India but in other
parts of the world under their political authority. This they
ensured through inter-country and intra-country migration of
labour. It is on record that since 1920, they moved people to
serve as labourers from eastern region of Bengal to Assam for
developing their tea industries. Later, the political divide
of the people on the basis of religion which ultimately led to



the Partition of the country resulted into the largest ever
-1..
migratory movement in the world history; India had to absorb

the bulk Of the migrants.

3.1.2. Partition was not the only event that resulted in
large scale migration of population. Persecution of various
sections of the people in the newly created State of Pakistan
also resulted in the flow of people into India. Even after
the formation of Bangladesh in 1971, the migration of people

from the new State continued to the bordering states of India.

3.1.3 Infiltration also took place in 1948 from across the
border into Jammu and Kashmir following the armed attack by
Pakistan in the guise of 'raiders'. The developments in Tibet
also resulted in exodus of a large number of people from Tibet
and their migration to this country. A number of other events
also led to the exodus of people from other countries to
India, eygy. the Chinese aggression against India in 1962: the
second attack by Pakistan in 1965: the insurgency in Sri Lanka
resulting in migration of a large number of Sri Lankan Tamils
to Tamil Nadu; the coming of many Afghans to India after the
takeover of Afghanistan by Taliban and, recently, the

infiltration into Kargil.



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These events, in varying degrees. have been
resnonsib1e_for entry into India of foreigners as refugees and

D.
i11ega1 migrants.'

3.2 Since the iiberation of erstwhiie East Pakistan. the
influx of migrants from Bengiadesh has remained unabated and
has acquired frightening proportions. There is no reaiistic
estimate of these migrants in India. In fact. no census has
been carried out to determine their nﬂmber. According to the
Ministry of Home Affairs, the tots} number of Bangladeshis
iliegaiiy residing in India is estimated at 15 to 18 miliion
and every year at ieest 3.5 inc or more peopie are

infiitrating into the countr§§

3.2.1 on the basis of theoreticai extrepoiations the number

'of iiiegai migrants in border states has been estimated to be

5.4_imi11ion in west Bengai, 4 million in Assam, and 0.8
miiiion in Tripura. It is evident that the number of such
migrants is highest in the State of west Bengal. These
migrants have spread out to other parts of the country; In
Maharashtra. their number is estimated at 0.6 miiiion, in
Rajesthan, 0.5 miiiion and, in Delhi. 0.3 miiiion? These
figures are mindboggling and eiarming indeed; India with its
own unmanagsabie popuiation is hardly in a possession to take

upon this additional burden.



3.3 It was agreed by the Government of India. as a matter
of policy, that the Bangladeshis who entered India before 25
March 1971 would ultimately become Indian citizens (gigs
Indira--Mujib Agreement 1974 and the Assam Accord 1985). But
all those who came on or after that date without valid travel
documents or without lawful authority or overstayed after
validly entering into India would be considered illegal

migrants.

3.3.1 The number of Bangladeshis who entered India with
valid travel documents and overstayed is also fairly large,
for example. 10,24,322 Bangladeshis, who entered the State of

west Bengal since 1972, have overstayed. The number of those

' intercepted at the border while crossing illegally into west

5 ,
Bengal during 1912-98 is 5.73.334. The all India figures are

much higher.

3.4 causes of migration:- There is a variety of causes
for such migration including economic and religious. The push
factors on the other side of the border include steep and
continuous increase in population, sharp deterioration in
land-man ratio and low rates of economic growth, particularly
in the agriculture sector. The pull factors on this side
include ethnic, linguistic and religious proximity and kinship
facilitating easy shelter to the migrants. porous and easily
negotiable long border and better economic opportunities. The
availability of cheap labour from across the border is another

6
factor which has been encouraging illegal migration.



3.5 one of the major causes of the aggravation of the
probiem of iilegai migration, especialiy in the border states,
has been the crisis of identity and absence of proper
mechanism for the identification of iiiegai migrants. The
avaiiabie iegai framework has faiied to curb the iiiegai

migration.

3.5.1 This apart, the iilegai migrants continue to stay in
India with impunity on account of rampant corruption in rank
and fiie of the enforcement agencies. one of their prominent

7
destinations is Mumbai.

3.6 Another cause of iiiegai migration is the ciandestine
oross~border trade between' India and Bangladesh which is
estimated at 5 5 biiiion. This is three times more than the
officiai trade. The trade has created a network of agents and
middiemen working in connivance with the authorities on both
sides of the border. Thus strong vested interests aiso appear
to be behind iiiegai migration. Further, the trade between

' 8
two countries has the backdrop of cuiturai and ethnic ties.

3.7 In most of the cases, the entry of migrants is

surreptitious and they easiiy mingie with iocai popuiation due
to ethnic, iinguistic, reiigious and physicai simiiarities.

Their identification is extremeiy difficuit. This has

resulted in alteration of demographic composition in the _



border districts of several states? The bordering States have
recorded a high rate of population growth. It has been
reported that in the case of Assam, there is a higher
percentage of rate of population growth in comparison to the

national average{

3.8 There is evidence that many of the illegal migrants
have acquired ration cards, obtained various Jobs and got
enlisted in electoral rolls by suppressing their identities
with the help of local touts. unscrupulous officials and

M
politicians.

3.9 impact of illegal migration:- The illegal migration

has strained country's economy generally and especially of the
5:

border states.

3.10 The illegal influx has assumed dangerous dimensions

affecting the security of the nation as a whole and especially
of the North-Eastern region because of its proximity with
Bangladesh. There are reports of large scale clandestine
movement and smuggling of all kinds of articles by such

. I3
migrants.

3.11. Local inhabitants of these bordering area are under
constant fear of losing their identity as they have been
reduced to a minority in their own state. This has given rise

to various movements and violent agitations especially in the



I . '-
North--Eastern areas.# The problem has economic implications
for the local people and security implications for the country

as a whole.

3.12 -Failure of agencies in checking the menace:- The

Border security Force (BSF), which is primarily _responsible
for guarding our borders, has not been effective in preventing
infiltration across the border. The concerned agencies
required to process the cases of alleged illegal migrants
encounter numerous difficulties. when police tries to collect
evidence,_ people who are illegal migrants move to another

location or disappear.

3.13 The Mobile Task Force, sanctioned by the central_

Government for States to detect and push the migrants back, is

reported to be too meagre to deal with the problem!5

3.14 sometime back, the Chief Minister of West Bengal also
brought out the issue of continuous infiltration of
Bangladeshis into west Bengal and felt that Indira-Mujib
Agreement had not been implemented in full. He, however.

expressed his reservations with respect to forcible

deportation.

3.15 The Foreigners Act, 1946, is the main legislation
which governs entry into. and departure of foreigners from,
India. The powers to identify, detect and deport illegal

migrants residing in various parts of the country have been



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deiegated under this Act to the State Governments and Union
territory Administrations. In the State of Assam, detection
of such persons, who entered India on or after 25 March 1971,
is being done by the tribunais established under the I11e9a1
Migrants (Determination by Tribunais) Act, 1983 (hereinafter
referred to as the IMDT Act). Recentiy however, the Centrai
Govt. appears to have entertained service doubts regarding
the vaiidity of this act on the ground that it has been

enforced on1y in the state of Assam.

3.16 The Central Government has issued instructions to the
State Governments and Union territory Adminsitrations to speed
up the process of identification and deportation of iilegai
migrants. It has also taken measures to suppiement the
efforts of State Governments. such as the strengthening of
Border security Force, construction of border roads, fencing
and mechanized riverine patroiling, etc. Despite these

measures, the probiem of iiiegai migration continues unabated.
4. Recommendations of the Estimates committee

4.1 In 1992, the Estimates comittse of Pariiament
considered the issue of iliegai immigration and made foiiowing

recommendations:-



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(1) Relevant provisions of the Foreigners Act, 1946 and the
Passports Act, 1967 be harmonised.' Both the Acts made
provisions relating to departure of foreigners but the
punishment for the violation of provisions relating to

departure was much less in the latter.

(11) There should be deterrent punishment for violation of the

~provisions of the law and the offences should be made

non--bailable.

(iii) There should be consultation with States having
responsibility to administer relevant laws in order to ensure
their enforcement and uniform application through out the

COUhtl'Y .

(11) Indian citizens hosting or receiving foreigners should

be made accountable for their overstay in the country.

(1) There should be periodic review of the enforcement

mechanism under the Foreigners Act.

(11) Special passport arrangements with Bangladesh and Sri

Lanka should periodically be reviewed.

(vii) separate system of passports for Bangladesh, sri Lanka

and Pakistan should be scrapped.



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(viii) After completion of the sentence by the-convicted
foreigner, his case should he proceeded with for immediate

deportation.

4.2 There was no concrete action on the Estimates
Committee report for some years but in 1996 it found echo in
the deliberations of the Parliamentary Standing Committee for
Ministry of Home Affairs when it was considering the

Foreigners (Amendment) Bill, 1998.

5. conference of chief Ministers and chief secretaries

A conference of Chief Ministers and chief secretaries
held in 1992 took serious note of the problem of illegal
migration and suggested the enactment of a special legislation

to solve it.
6. Report of the Governor of Assam on Illegal Migration

6.1 Recently, on 8 November, 1998 the Governor of Assam.
taking into account the dangers posed by the continuing silent
"demographic invasion" due to large scale illegal migration
from Bangladesh and after having discussed the problem with a
cross-section of people in Assam, as also the Indian High
Commissioner at Dhaka, submitted his report to the President

i«
of India titled "Report on Illegal Migration into Assam"f£



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The report has traced the history of migration from
Bangiadesh. took into consideration the present reaiitiee and
made recommendations for future strategy to tackie the menace

in an effective manner.

6.2 The Governor has especiaiiy high1ighted, in the
report, the dangerous dimensions of the _unprecedented
migration of Bangiadeshie to Assam and drew the attention of
the Centre to the security threats to the North-Eastern region
arising out of such migration as aiso of the strategic and

economic consequences fiowing from the same.

6.3 He has aiso pointed out the faiiure of the IMDT Act in
identifying such migrants as aiso of the Assam Accord to drive
them out of Assam. As regards the IMDT Act, he has noted that
crores of rupees had been spent on identification fo11owed by
a meagre figure of deportation and found continuation of the

said Act as a wastefu1 exercise.

6.4 Recommendations: Apart from recommending an improved
border management inciuding fencing. iighting. registration of
country boats piying in the border rivers, adequate speed
boats for the riverine sector and eocio-economic deveiopment
of Bangiadesh aiming particuiarly at the improvement of
women's lot, the report of the Governor of Assam (supra)

recommends the fo11owing measures:



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(1) Promotion of awareness about the iiiegai migration to
Assam being not only a threat to the identity of locai peopie

but aiso a grave threat to our national security.

(11) Provision of multipurpose photo-identity cards to :11

Indian nationa1s giving top priority to the border districts.

(iii) Provision for the registration of births and' deaths

'and its sorup1ous impiementation.

(11) iprovision for the Nationai Register of citizens,
updated and computerised and maintenance of a separate

register of state1ess persons.

(1) Making of maximum efforts to stem the tide of iiiegaj
migrants hereinafter and deportation of those who came after

24 March 1971 tiii date.

.(xi) Repeal of the IMDT Act. which has proved to be an

exercise in futiiity.

(xii) The deportation of mi11ions of Bangladeshis i11ega11y
staying in India is no more a practicai proposition because
uniiaterai action on the part of India cannot alone achieve
any resuit. A new legisiation is, therefore, needed to ensure

a just, fair, practice! and expeditious_ approach to the



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detection of illegal migrants and to declare them as stateless
persons without voting rights and without right to acquire

immovable property.
7. PUBLIC INTEREST LITIGATION

7.1 A petition in the nature of a public interest
litigation (PIL) was filed in the supreme Court by All India
Lawyers' Forum for Civil Liberties on 4 February, 1998 seeking
directions to the Union of India to make adequate arrangements
for the return of Bangladesh nationals illegally residing in
India, to check their further infiltration, to officially
declare them as "Bangladesh Nationals" as also to properly
identify them and the land purchased and jobs occupied by them
as well as their bank accounts. The state of west Bengal was

I
also made a party;

7.2 The Union of India and the state of west Bengal were

directed by the supreme court to file status reports regarding

Bangladeshi migrants illegally staying in India. The other
North-Eastern States were also directed by the court to do so.
The Supreme Court expressed serious concern about the
infiltration from Bangladesh and the presence of infiltratore
in certain regions of the country and hoped that the Union of
India and bordering states would take effective steps to check

infiltration and deport illegal infiltrators.



'Z151'

7.3. Status Report filed by the Union of India in the

Supreme Court

(1) The istatus report submitted by the Union of India in
the above case paints a grim picture of the iilegai migrants
from Bangiadesh in various parts of India, especiaiiy in west

Bengai and some North-Eastern States.

(11) It brings out the magnitude and gravity of the problem

%of i11ega1 migration from Bangladesh, causes for the same as

aiso its impact, especiaiiy on the security of India.

(111) It enumerates measures taken by the Government of
India to curb the menace of infiitration. These include
deiegation of powers under the Foreigners Act to identify,
detect and deport iliegal migrants to state Governments and
Union territory Administrations and issuance of instructions
to them to speed up the process of identification and
deportation; the strengthening of 'the BSF, construction of
border roads and fencing, sanction of_ posts under the
Prevention of Infiitration of Foreigners/Mobiie Task Force
Schemes, mechanized riverine patroiiing in certain parts of

the country and dipiomatic initiatives.

(11) It aiso brings out the foiiowing ground Ievel
arrangements arrived at between the Border Security Force
(BSF) and Bangiadesh Rifies (BDR) in respect of handing over

of iilegal migrants:



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(Q) Persons convicted by courts would be accepted on
the basis of verification of nationality by the

respective prescribed authorities.

(Q) Persons apprehended in the process of inadvertent
or deliberate border crossing would be accepted
immediately on the basis of disclosures. After
verification, they would be accepted within three

days.

(g) All other categories of illegal entrants would be
handed over within 7-15 days depending on the place of

arrest and place of claimed domicile after required

verification.

(1) There is a proposal to issue multipurpose national
identity cards to all citizens of India of the age of 14 years
and above. Those below 14 would separately be registered
under the Registration of Births and Deaths Act, 1969, and
their names included in father's/mother's cards. Separate
colour cards would be issued to non-citizens. The main idea
behind this scheme is to stop illegal migration and to
identify and easily trace illegal migrants. The scheme
envisages a National Registry having on--line access to data

from all the districts of the country.

(xi) In 1997, instructions were issued on the deportation

of illegal migrants from Bangladesh which are as follows:



~:18:-

(a) The nationais of Bangiadesh intercepted at the
border, whiie crossing into India unauthorisedly,

wouid immediately be sent back by BSF;

(Q) Nationais, detected as unauthorisediy iiving in
India, would be deported after they are served
deportation order by the competent authority of the

concerned State Government.

These instructions were reviewed in 1998 by the
Government of India and the foilowing decisions were
communicated to the state Governments and the Union territory

Administrations for comp1iance.

(a) whiie identifying and detecting such migrants, the
state Governments wouid send detaiis of residentiai
address etc. ciaimed by the suspect to the Government
of the concerned state (of which he ciaims to be a
resident, being an Indian nationai) for verification

and report within 30 days.

(b) During this period, the competent authority wi11
ensure his detention (by obtaining permission of the

court, if necessary) for deportation.



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(c) If no report is received within this period, the
competent authority wouid take action to deport

iilegai migrant.

(d) Advance information about the movement of
deportees under the po1ice escort from one State to
another wouid be given by the State from where they

are being sent to the concerned State poiice.
7.4 status Report by the state of west Bengai

(1) The status Report fiied by the State of west Bengai
aiso brings out the magnitude and the causes of the probiem of

iiiegai migration.

(11) The report indicates that it is a gigantic task to

detect and convict iliegai migrants. Despite the number of

' measures being taken by the Union of India at different Ieveis

to prevent infiux of i11ega1 migrants, the magnitude of the

probiem requires more concerted efforts for border management.

(111) It is impossib1e_to prosecute a11 migrants and secure
a conviction in respect of each one under the Foreigners Act.
Thereafter, to push them back is aii the more difficuit
Keeping in view the internationai 1aw and conventions. The

Union Government may possibly need to enter into an



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international agreement with the Government of Bangladesh for
simplifying the procedure governing repatriation of

Bangladeshi nationals who are illegally staying in India.

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 the

Governer-General of India or any of the Local Governments or



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the officers authorised by them so to do. It empowered the
Governer~Genera1 of India in Council to order removai of any
foreigner from British India. The Local Governments were aiso
empowered to make simiiar 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 himseif from British India or therefrom by a
particuiar route, neglected or "refused so to do or after
having been removed, wi1fu11y returned back without a iicence,
then he might be apprehended or detained in custody and
discharged upon such terms and conditions as the
Governer--Genera1 of India or the Locai Government deemed
sufficient for peace and security of British India and of the

neighbouring States.

8.1.1 Two more lawe were enacted in 1939. One was the
Registration of Foreigners Act. 1939, sti11 in force, and the
other was the Foreigners ordinance, 1939 promu1gated to meet
the emergency arising out of the second worid 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 repiaced by the
Foreigners Act, 1940. section 1(3) of the Act provided that

it wouid remain in force during the continuance of and for a



-:22:-

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 aiso in 1951, 1957 and 1962 each. The amendment
of 1947 was the resuit of the transfer of power from
Britishers to Dominion Government and the Partition of the
country. The amendment of 1951 was made as a resu1t of the
incorporation of Hyderabad into Indian Union. The free entry
of nationais of certain Commonweaith countries was faci1itated

by the amendment in 1957.

8.1.3 The Act is a sma11 Tegisiation, consisting of Just 15
sections after the repeai of sections 10 and 17 respectiveiy.
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 appiicable to the whole of the country. The_ re1evant

provisions of the Act are as foiiows:

(1) The Centrai Government is empowered under section 3(1)
to prohibit, reguiate or restrict the entry into, departure
from, or presence in, India of a1! or any ciass 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 medicai examination; prohibition of association with
certain persons or engagement in certain activities and
prohibition to possess certain articies; the regu1ation of
conduct of foreigners in particuiar 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
appiy, by order, the Act to foreigners oniy in certain
circumstances or subject to specified exceptions,

modifications or conditions.

(iii) Section 4(1) confers powers on the centre} Government
to issue orders iaying down conditions as to the maintenance,
discipiinei and punishment of offences and breaches of
discipiine 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 paroie
to reside in a specified piece and to observe the said

conditions.



'Z24-i'

(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 imediately 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.



-:25:-

(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 sup 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.



--:26:--

(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 compiiance 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 aiso

exercisable by any poiice officer.
Such authority or the poiice officer has been given
the right of access to any iand or other property while

exercising the aforesaid powers.

(xiii) Any authority exercising powers under the Act is

ycompetent under section 12 to deiegate the same, conditionaiiy

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 compiy 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



-:27:-

pursuance of the Act or such order. The section eiso provides
for the forfeiture of bond if a person has executed it under
section 3(2) of the Act and makes him iiable to pay the

penaity or satisfy the court otherwise.

8.2 A number of orders have been issued by the centrai
Government in exercise of the powers conferred by sections 3,

3A, 4 and 8 of the Act. They are as foilowsz

_8.2.1 The Foreigners Order, 1948, made under section 3 of

the Foreigners Act, 1946 provides for the appointment of a
"civii authority" by the central Government and confers on
such authority numerous powers, QLEL, 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 vessei or piiot of an
aircraft to remove a foreigner who has entered India without
permission; the power to permit a foreigner to reside in a
prohibited piece; the power to declare, with the prior
sanction of the Centrai Government, q any area to be a
protected area and to prohibit, inter gjig, any foreigner from
entering that area; the power to permit a foreigner to
undertake empioyment or enter certain undertakings: the power
to impose restrictions on movement of foreigners and the power
to ciose ciubs and restaurants to foreigners under certain

circumstances.



-:28:-

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.



-:29:-

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 abssnting 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.

8.2.6 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 internse against internment camp discipline as

also procedure for dealing with other criminal offences.



-:30:-

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.

8i2.i2 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.



-:31:-

8.2.14 The Foreigners (Restriction on Pakistani Nationais)
Order, 1971. made under section 3. prohibited a Pakistani
nationai from Teaving or absenting himseif 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
travei documents, certificates of registration and residentiai
permits with them at aii times and to produce the same on

demand.

8.3. The Immigrants (Expu1sion from Assam) Act, 1950- This
Act was enacted to deai with the serious economic as we}! as
iaw and order problems created in the State of Assam as a

resuit of a iarge scaie migration from erstwhiie East Pakistan

,(now Bangiadesh).

(i) The Act conferred powers on the Centrai Government to
order expulsion of certain migrants from Assam who, being
ordinariiy residents of any place outside India, had come to
Assam before or after 1 March, 1950, and their stay in the
opinion of the Centrai Government was considered detrimenta1
to the interest of generai pubiic of India or of any section

thereof or of any Scheduied Tribe in Assam. However, those



-:32:--

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



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entered India on or after 25 March 1971 without a vaiid
passport and other travei documents 'so as to enabie the
Centra1 Government to expel iliegai migrants from India as
we11 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 appiy the Act in different States
through notifications. Somehow, the Government confined it to

Assam only which was badly affected by i11ega1 migrants.

(1) section 5 of the Act empowered the Central Government
to estabiish as many tribunais for this purpose as were

necessary for the purpose.

(ii) If any question arises as to whether any person is or
is not an iiiegal migrant, the Centrai Government may, under
section 8. refer the same for decision to the tribuna1 within
the territoriai iimits of whose jurisdiction the piace of
residence of the person named in such reference, is situated.
The. Centrai 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 appiication of any other person. Thus,
any private person can also make an appiication to the
tribunal for deciding as to whether the person named in the

appiication, is or is not an iilegai migrant.



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(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.



-:35:-

(vii) In pursuance of the provisions of the Act, the Centrai
Government established 16 Tribunais and one Appeiiate Tribunai
in Assam. out of 16 Tribunais, only five are functionai and
the rest are virtuaiiy non-functional because of the paucity
of funds and resources. The Tribunais had taken cognizance of
about 23,976 cases and identified 9,599 migrants as iiiegai,
out of them oniy 1,454 couid be deported over a period of 15
years{8 These figures indicate that the tribunais couid not
achieve the purpose for which they were estabiished. The

entire process to identify foreigners is time consuming and

impracticai. Therefore, iiiegal migration continues unabated.

9 . C886"'L&VI

9.1 Most of the cases which cropped up under the
Foreigners Act during the period from 1950 to 1970 reiate to
the determination of the question whether a person concerned
was a foreignerﬁq The determination of this question became
simpler after the 1957 amendment of the Foreigners Act, 1946
saying that a foreigner meant a person who was not a citizen
of India. In Fatetg Mohd. v. Qgihi Adminietratiorgjo the
apex court said that the appeiiant was certainiy not a
foreigner when he entered India under the pre-1957 amendment
of the definition of the foreigner. However, he was a
foreigner under the amended definition and committed a breach

of an order served on him after the amended definition came to



-:36:-

hoid the fieid. The appeiiant had, therefore, committed an
offence within the meaning of section 14 of the Act by
disobeying the directions given to him by the Deihi
Administration.

'2

In §tate gr Andhra Pradesh v. Abd 1 Kb car,' the

Supreme Court observed that there could be no conviction under

the Foreigners Act uniess it could be held on the evidence
that the respondent was a foreigner, i.e., a person who was

not an Indian citizen.

In State ref Bombay v. Ibrahi ?2the Bombay High Court observed that a person who, having been originaily a British subject, entered India under a passport issued by a foreign country and under a visa obtained by him ciaiming that he was a nationai of a foreign country and desired to visit India for a iimited period was not a citizen of India under the amended definition ciause of the Act.

In Abdui Aieem v. State of Andhra Prade§ﬁ%3the High Court observed that what was essentiai for the appiicabiiity of section 3 of the Foreigners Act, 1946, was that a person shou1d be a foreigner on the date the order under that section was made. The date of his entry into India was irre1evant for the consideration of the question arising under section 3(2)(c) of the Foreigners Act.

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

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

[F]rom 3.3 ... 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 8.3 make this object of the Act abundantly clear.

The Madras High court in Gilles Pfejffer v. union of Lngigs held that the petitioner. being a foreigner, had no fundamental rights under article i9L1)Le1. 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 -:38:- 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 Qollector 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 Prade§hz,7 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:

-:39:-

[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 Legisﬂature 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

-:40:--

India Reporter (AIR) during the Tast six years (1994-99) are Giiies Pfeiffergoand Fred Howard Haering v. state of Himachai Pradesh.3' In Fred Howard Haering case, the petitioner, a foreigner, had iimited ieave to enter or remain in India. He did not register himseif as per the provisions of the Act of 1946 and the Registration of Foreigners Ruies. 1939. He did not appiy 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 Himachai Pradesh High Court heid that there was no infirmity or irreguiarity in the order; aiso there was no vioiation of the principies of naturai 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 iiberaily in favour of the Government action taken under the Foreigners Act. On the other hand, these refiect that, in recent years, there has not been much iitigation at the High court or the apex Court ieveis. Hence, the case iaw may not be of much he1p in offering any guideiines.

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

-:4i:-

10. The Foreigners (Amendment) Bi11, 1998 10.1 The Statement of Objects and Reasons appended to the said Foreigners (Amendment) B111, 1993 points out that the Foreigners Act, 1946 does not c1assify the vio1ations of its provisions or orders or directions issued under it. It Just prescribes a sentence of imprisonment up to five years and fine for the contravention of its provisions whi1e the quantum of punishment for various offences is 1eft to the discretion of the court. Moreover, the accused persons often managed to obtain bai1 under the provisions of the Code of Criminai Procedure, 1973 (CrPC) despite such cases being cognizab1e. non-bai1ab1e and triab1e by the first c1ass magistrates under the Act. Keeping in view these deficiencies, the B111 seeks to achieve the fo11owing objectives:

(1) to classify the offences,

(ii) to provide punishment according to the gravity of the offence committed, and

(iii) to enhance the punishment.

10.2 Provisions of the B111 (1) The Foreigners (Amendment) Bi11, 1998, proposes to substitute the originai section 14 of the Foreigners Act, 1946. with sections 14, 14A and 14B. The proposed section 14 imposes pena1ty of imprisonment up to five years and fine on a -:42:- person who contravenes provisions of the parent Act or any order or direction under it, remains in India with or without vaiid passport exceeding the period of vaiid visa or vioiates the conditions of vaiid visa. It further provides for the forfeiture of the bond, if any, and also the payment of penaity by the person bound by the bond uniess such person satisfies the court otherwise.

(11) The proposed section 14A imposes a pena1ty of imprisonment up to eight years but not iess than two years and fine 'up to Rs.50,000 but not Iess than Rs.10,000 on a person who enters into a restricted area without obtaining permission from the competent authority or who stays beyond the permitted period or enters into or stays in India without va1id documents required under the provisions of any order made under the Act or directions given in pursuance of the order. It aiso provides for the forfeiture of bond executed by him for the due observance of any prescribed or specified restrictions in pursuance of the Act. Section 14B proposes to penaiise those persons who abet any offence punishable under sections 14 and 14A, with the same punishment as the offence itseif. 'Expianation' in section 148 ciarifies that an act or offence is said to be committed in" consequence of the abetment, when it is committed in consequence of an instigation, or in pursuance of the conspiracy, or with the aid which constituted the offence.

-:43:-

A higher punishment prescribed in proposed sections 14A and 148 would consequently enable the courts of sessions to try the offences and provide an opportunity to state Governments to oppose bail applications under the Criminal Procedure code (CrPC). The last two sections. namely, 14A and 14B contemplate minimum imprisonment and fine for entry into restricted areas and other areas and the abetment of this offence. 'The punishment by way of imprisonment and fine has also been enhanced to eight years with fine upto Rs.50,000/-.

11 Parliamentary standing committee on Foreigners (Amendment) B111 The Bill was referred to the Parliamentary Standing Committee for the Ministry of Home Affairs for critical analysis and suggestions. The Committee discussed the Bill at length on 10th September 1998 in the context of the existing problem of illegal migration into border areas. 11.1 official presentation at the standing committee (1) The official side highlighted the problem of illegal migration from neighbouring countries especially from Bangladesh (other countries being Pakistan, Sri Lanka, Myanmar and Tibet) and the presence of militants and other criminal elements carrying on clandestine activities. The officers -:44:- explained the framework of the existing Foreigners Act, 1946, previous amendments and pitfalls of the Act, namely, the lack of proper machinery for identification of illegal migrants, non-existence of classification of offences and offences being bailable.

(11) The officers then dealt with the main features of the Amendment Bill which attempted a classification of offences as also prescribed a minimum and enhanced maximum punishment in certain cases thereby enabling the trial of serious offences by courts of session and rendering it imperative for the courts to issue notice to the prosecution in case there was a move for granting bail. In support, they cited the example of Pakistan where an illegal entrant was not granted bail till the trial was over. i In their opinion, those who posed a potential threat to the security of the country should be severely dealt with. In their view, the proposed amendments in the law, would make it more effective and deterrent. 11.2 Discussion on the Bill in the standing committee (1) There was unanimity among the members on the gravity of the problem posed by illegal migration to India. They were also unanimous on the fact that the existing law was quite inadequate to tackle the problem; that even the proposed amendment might not be sufficient, though desirable, to strengthen the parent legislation and that a more stringent legislation was needed to curb the menace which had become, -:45:- over the years, an all India feature. There was a specific suggestion for enacting a comprehensive legislation on this subject.

(ii) The members, however. felt that the law alone could, in no way, check the illegal infiltration but other measures like complete border fencing and strict vigil had to be strengthened. some of the members felt that, in addition to this, identity cards had to be issued to citizens so as to easily identify non-citizens especially in View of ethnic and religious similarities which had made their identification difficult. This would greatly help solve the problem of illegal migration. However, one member suggested the creation of Indian National Security and Foreign National Detection Force to identify and sternly deal with the illegal foreign elements .

(iii) some of the members suggested specific measures to strengthen the legal regime, for example, the terms jﬁogeiggggj and "citizen" should be precisely defined; summary trial through a reasonable, fair and efficient procedure should be provided wherein the burden of proof would lie on the accused; special courts to try offences under the Act should be established; and that all the offences should be made non-bailable under the Act. one member expressed the View that there should be no denial of bail but special courts may be given discretion to grant it in appropriate cases.

They also pleaded for repeal of the IMDT Act.

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(iv) Members a1so suggested harmonisation between the Passports Act and the Foreigners Act. Both the suggestions were picked up by the Home Secretary who agreed that there was a need to have a ho1ist1c view of the Foreigners Act in re1ation to the Citizenship Act and Passports Act and for the enactment of a comprehensive 1egis1ation.

11.3 The Committee cou1d not take up the B111 for further consideration_and formu1ate its recommendations as it become defunct on 26th Apri1, 1999 on account of the dissc1ution of 12th Lok Sabha.

11.4 The new Committee after its constitution on 31st December, 1999 took up further consideration of the B111 on 7th February, 2000. The fo11owing views/suggestion emerged during the course of the meeting. (See pages 21-31 of the Report):-

(i) The proposed amendment to Section 14 of the Act is not sufficient to achive the object.

(ii) Accused shou1d not be granted bai1 ti11 the tria1 is over

(iii) Time frame shou1d be prescribed for the tria1 of offences -:47:-

(iv) Burden of proof shali lie on the accussed for aii kinds of vio1ations/contraventions inciuding rules and orders of the act by amending Section 9 of the Act.

(v) Offences under the act shouid be tried by specia1 courts manned by the Judges of the rank of sessions court

(vi) The court should be empowered to order deportation of convicted foreigner whiie announcing punishment for him.

12. Views of the states and Union Territories 12.1 The Ministry of Home Affairs, Government of India, sought the views of State Governments and Union territory Administrations regarding the provisions of the Amendment Biii and their experience in the impiementation of the provisions of the Foreigners Act, 1946. as aiso ithe difficuities encountered by them in the impiementation process. For this purpose, the Ministry of Home Affairs addressed a questionnaire containing specific questions and caiied for the suggestions of the States and Union Territories. The questionnaire is appended at Anneuxre II. The responses thereto are given in a tabuiated form at Annexur-ILI.

-:48:-

12.3 The States and Union territory Administrations, in their responses, though favoured the amendment Bill, expressed the necessity of the amendment of other provisions of the of the Act for they encountered numerous difficulties in implementing its provisions and made following suggestions with respect to the Foreigners Act.

(i) A provision should be made to enable temporary detention of foreigners by immigration authorities pending finalization of their verification.

(ii) offences should be classified and punishments accordingly prescribed. The harbouring of foreigners or aiding or assisting them in obtaining ration cards, driving licences and citizenship as also in undertaking illegal activity should be made an offence.

(iii) Any act under section 4(3)(a) of the Act should be regarded as an act of abetment. This section prohibits every person from knowingly assisting an internee or a person on parole to escape from custody or a place earmarked for his residence or knowingly harbouring such an internee or person.

(iv) Special cells should be established for the purpose of speedy investigation.

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(v) All offences under the Act should be tried by courts of session. Special courts shouldi be established to try offences under the Foreigners Act on a day to day basis, completing the trial within 90 days. some of the States wanted time-bound trial by courts of session.

(vi) There should be summary trial of all offences.

(vii) Foreigners contravening the provisions of the Act or those entering clandestinely should not be granted bail to prevent them from absconding. No anticipatory bail should be granted to foreigners.

(viii) There should be a provision for the verification of sureties offered by foreigners. Sureties should deposit the amount of bail in the court.

(ix) Lawyers should be held accountable for obtaining bail on forged documents.

(x) stringent punishments should be provided for entry without documents and with forged documents, for carrying fake currency notes and indulging in terrorist activity as also for the contravention of orders issued under section 3 of the Foreigners Act, espionage activities and acts endangering the security of State.

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(xi) There shouid be a provision to seize the property purchased by foreigners direct1y or benami especia11y on conviction.

(xii) The term "whoever" in proposed section 143 should be quaiified by the terms 'an Indian or foreigner' so that Indian nationais resorting to the abetment of offences may be punished.

(xiii) There shouid be an instant deportation after the compietion of sentence by the foreigner-convict because, during the intervening period, surveiiiance is very difficuit.

(xiv) There shouid be specie) fund to meet the expense on deportation in cases where aiiens do not have enough money to go back to their countries. This wi11 prevent their going underground.

(xv) Courts shouid not grant stay on 'notice to Teave India' issued to foreigners by the competent authority.

(xvi) The Probation of offenders Act, 1958, shouid not be appiicabie to convict for offences under the Foreigners Act.

(xvii) The registration of tourists on arrivai shou1d be made compuisory. Currentiy, they are exempted from registration for a period of six months under the Registration of Foreigners Act 1939.

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(xviii) Fine under section 5 of the Registration of Foreigners Act shouid be enhanced to Rs. 20,000 for foreigners and to Rs. 10,000 for Indians (The section provides imprisonment for a term which may extend to one year in case of foreigners).

12.2 some States aiso expressed the need to strengthen the Passports Act, 1967, and suggested the foiiowing measures in this regard.

(i) Provision for Pre-verification of sponsors/referees before the grant of visa to foreigners.

(ii) Prohibition of granting of passport/visa to persons convicted under the Foreigners Act at ieast for five years.

(iii) communication of Information regarding the issue of passport to a person to the District superintendent of Poiice.

(iv) Enhancement of punishment under the Pasports Act, 1967 on the iines of one prescribed in the proposed section 14A of the Foreigners (Amendment Bill), 1998.

(v) Enhancement of penaity under ruie 6 of the Ruies made under the Passports (Entry into India) Act, 1920.

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12.4 The need to strengthen the citizenship Act was pointed out by a number of states and the Union Territory Administrations. It was suggested that foreigners who are convicted should not be granted Indian citizenship under any circumstances.

13. Ihg scheme of amendments proposed by the Law gommission 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 thereunder. In short, the idea was to codify the entire law concerning the foreigners, which is now scattered in several enactments and Orders made thereunder, into one enactment. The other idea was to introduce provisions in the Foreigners Act effective -:53:- 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 thereunder 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 -:54:- with a chief Immigration officer at the head and iaid 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 vaiid document in that behaif. The function of determining whether a person is an i11ega1 entrant has been entrusted to the immigration officers. Their orders are made subject to an appeai to be heard and decided by an Immigration Tribune1. to be manned by a person who is or has been a district judge or an additionai district judge. The immigration officers and the immigration tribunais shaii decide the matters according to the principles of naturai justice which necessarily means. after making such inquiry as may be ca11ed 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 particuiar aspect. According to the provisions of the Amendment Bi11 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 Bi11 is "a person who is a citizen of India within the meaning of and as provided in ~:55:-

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 foiiowingz

a) "A11 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 inciuded in the eiectorai roils used for the purposes of the Generai Election to the House of Peopie heid in 1967) and who have been ordinariiy residents of Assam since the dates of their entry to Assam shail be deemed to be citizens of India as from the 1st January 1966." ('Indian origin' is defined in the said section in the foiiowing words "a person sha11 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 inciuded in the State of Assam immediateiy 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 ordinariiy

c)

d)

-1562* residing in "Assam" since the date of entry into Assam and has been detected to be a foreigner and has registered himseif in accordance with the ruies made by the Central Government in that behaif 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 appiied for registration, wi11 not become a citizen of India irrespective of the iength of his stay. (See sub-sections (3), (4) and (5) of section 6A of Citizenship Act).

It aiso foiiows 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 inciuded in "Assam"), he shaii not be treated as a citizen of India, irrespective of the iength of his stay in India.

The IMDT Act, 1983 is concerned oniy with a iimited ciass 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 -:57:- 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, s11 persons from erstwhiie Pakistan who came to India before 25.3.1971 wouid continue to iive in India and wouid uitimateiy become Indian citizens and those who had come to India on or before (after ?) 25.3.1971 without any vaiid travei document wouid be treated as iiiegai migrants and, therefore, have to be deported to Bangiadesh subsequentiy". This note of the Home Ministry does not appear to correctiy refiect the iegai position as is evident from a perusai of the Constitution and the Citizenship Act. It is, however, a matter of poiicy for the government to decide whether the government wishes to treat e11 migrants, to territories of India except "Assam" from the territories which now constitute Bangladesh, prior to 25.3.1971 as iiiegai migrants or whether it wouid aiiow them to be treated as Indian citizens. Another poiicy decision.

which may have to be taken is what does the Centrai Government propose to do to those Bangiadeshis (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 -:58:- 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?

14. REQOMMENDATIONS After considering the provisions of the existing legislations on the subject, we are of the iconsidered view that the problem of illegal migration from neighbouring countries has to be tackled seriously by providing a machinery for effective and speedy detection of illegal entrants in the statute. In order to concretise our recommendations, we have drafted the Foreigners (Amendment) Bill, 2000 (Annexed as Annexure-I) to amend the Foreigners Act, 1946 by incorporating proposed provisions in the Foreigners Act, 1946. The radical proposals reflected in the Bill are as follows:

(i) The long title of the Bill provides for the regulation of entry into, stay in and departure from, India of foreigners and also to prevent their illegal migration from neibouring countries and for matters connected therewith, incidental or ancillary thereto.

(ii) we propose to include various definitions, the important among them are 'foreigner', 'citizen of India', 'removal order' and 'deportation order'.

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(iii) we have specifically included the definition of the term 'illegal entrant' in the definition clause so as to make it more explicit as to how a foreigner who entered into India is an illegal entrant.

(iv) A new definition has been included to define 'inadmissible class' which enlist the inadmissbile classes of foreigners who are barred entry into India. Such classes are also enlisted in the immigration laws of other countries.

(v) Specific clause has been included in the Bill empowering the immigration officer to refuse permission to enter India if he belongs to an inadmissible class or fails to produce a valid passport or valid travel documents or is not able to establilsh his identity or nationality. This provision will enable the authorities at the entry point or port of entry to immediately deport the concerned foreigner, thereby avoiding the need to decide whether a foreigner is an illegal entrant or not through the processes of law.

(vi) In order to curb the menace of illegal immigration, violations of conditions of visa, etc., by a foreigner, we recommend for establishing a machinery consisting of Chief Immigration Officer and immigration officers to be appointed by the Central Government at the grass roots level which can speedily and promptly decide and act on the issues related to the subject. Firstly, at the entry point, immigration officers are proposed to be empowered -:60:- to examine foreigners seeking entryi into India. Such examination would include whether a person possess passports or travel documents, whether he belongs to a inadmissilble class. If he is not in posession of such valid documents, the immigration officer is empowered to order immediate deportation or detain him in the facilitation centres pending enquiry or deportation. Secondly, the immigration officers are also proposed to be appointed for other areas in districts whenever or wherever necessary. The officers are empowered to detect whether a person is illegal entrant or not after holding an inquiry in the prescribed manner. If he determines a foreigner to be an illegal entrant, he can issue a removal order against which an appeal may be made within 15 days before the Immigration Tribunal proposed to be constituted by the Central Government. Such a tribunal shall be manned by a person of the rank of retired District Judge. Order of such a tribunal shall be final. If it upholds the removal orders passed by the immigration officer, such a foreigner will be deported. The immigration officers and the immigration tribunals shall decide the matters according to the principles of natural justice.

H -:61:-

(vii) In order to speediiy try an accused person aiieged to have committed offence or offences under the Act, we recommend that sessions court of a district be designated as Immigration Court which may take cognizance of the compiaints against the offenders. some of new offences are proposed to be added to curb the menace of iiiegai migration.

(viii) we have aiso made provisions for transfer of cases now pending before the tribunais created under the IMDT Act, 1983 and of the cases pertaining to offences under the Foreigners Act pending in criminal Courts, to the appropriate authorities/Tribunal/Court.

we recommend accordingiy.

(MR.JUSTICE B.P.JEEVAN REDDY) (RETD.) CHAIRMAN (DR.N.M. GHATATE) (SHRI T.K.VISWANATHAN) MEMBER MEMBER SECRETARY DATED: SEPTEMBER 19, 2000 Annexure - I THE FOREIGNERS (AMENDMENT) BILL, 2000 A Bill Further to amend the Foreigners Act, 1946 Be it enacted by Parliament in the Fiﬁy-first Year of the Republic of India as follows:-

Short title and commencement.

1. (1) This Act may be called the Foreigners (Amendment) Act, 2000.

(2) It shall come into force on such date as the Central Government may, by notiﬁcation in the Official Gazette appoint .

Substitution of long title

2. In the Foreigners Act, 1946 (hereinafter referred to as the principal Act) for the long title, the following long title shall be substituted, namely:-

"An Act to provide for regulation of entry into, stay in, and departure from, India of foreigners and to prevent their illegal entry and immigration and for matters connected therewith or incidental thereto"

3. For section 2 of the principal Act, the following section shall be substituted, namely:-

'2. (1) In this Act, unless the context otherwise requires ,--~

(a) "Chief Immigration Officer" means the Chief Immigration officer appointed under sub-section (1) of section 7B;

(aa) "citizen of India" means 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;

(b)"Deportation Order" means an order passed by the Immigration Officer under sub-section (1) of section 7-I, sub-section (2) of section 7-G, sub--section (6) of section 7-] or section 7S;

(c)" foreigner " means a person who is not a citizen of India :

(d) "illegal entrant" means a foreigner who, -

(i) has entered into India without a valid passport and visa or other travel document or permit; or

(ii) has entered India, whether with or without a valid passport and visa or other travel document entitling him to enter into India, through a place or a point which is not a designated point or port of entry into India; or

(iii) has stayed in India beyond the period speciﬁed in visa or other travel document or permit under which he had entered into India; or

(iv) has contravened any provision of any Act governing the entry, stay and departure of foreigners, or of any rule or order made under any such Act; or (V) has been subjected to an order of removal or deportation under this Act or has entered India after having been deported from India;

(e) "Immigration Officer" means an Immigration Officer appointed under sub~ section (1) of section 7B;

(f) "Immigration Tribunal" means a tribunal established under section 70;

(g) "inadmissible classes of persons" means classes of persons referred to in clauses (a) to (j) of section 7H;

(h) "permit" means a permit issued by the Central Government to any foreigner to reside in India for a particular purpose including employment in India;

(i) "prescribed" means prescribed by Orders or rules made by the Central Government under this Act;

(j)"Removal Order" means an order passed by the Immigration Ofﬁcer under sub-

section (1) of section 7 M;

(k) "speciﬁed" means speciﬁed by direction of a prescribed authority.

(1) "travel document" means a travel document which is issued by or under the authority of the Central Government permitting any foreigner to enter India;

(2) Words and expressions used but not deﬁned in this Act and defined in the Passport (Entry into India) Act, 1920 or the Registration of Foreigners Act, 1939 shall have the meanings respectively assigned to them in those Acts, Orders and rules made thereunder.

Insertion of new sections 7B to 7 U

3. Aﬁer section 7A of the principal Act, the following sections shall be inserted, namely:-

Immigration Authorities "7B. (1) The Central Government may, by notiﬁcation, appoint a Chief Immigration Officer and as many Immigration Ofﬁcers as it deems fit for the purposes of this Act.

(2) The Central Government may, by general or special order, define the area to which the authority of an Immigration Ofﬁcer so appointed shall extend and, where two or more Immigration Ofﬁcers are appointed for the same area, also provide, by such order, for the distribution and allocation of the work to be performed under this Act in relation to such area.

(3) The Central Government may, if satisﬁed that it is necessary so to do in public interest, authorize any person to perform all or any of the functions of an Immigration Officer under this Act.

(4) The Immigration Officers shall perform the functions assigned to them by or under this Act under the general superintendence and control of the Chief Immigration Officer.

(5) The Chief Immigration Officer may, in addition to the special functions assigned to him by or under this Act, perform all or any of the functions assigned to an Immigration Officer.

General Duties of Immigration Ofﬁcers.

7C. Subject to the other provisions of this Act, every Immigration Officer shall, in addition to the duties assigned to him by or under this Act, --

(a) prevent entry of foreigners into India without a valid passport and visa or a valid travel document or residence permit, as» the case may be, permitting him to enter India;

(b) inspect for the purposes of clause (a), to such extent and in such manner, as may be prescribed, -- V

(i) any aircraft, ship or vehicle, or any other conveyance if he has reasons to believe that an illegal entrant is traveling therein;

(ii) any place or premises, if he has reason to believe that an illegal entrant is staying or hiding in that place or premises Points or ports of entg 7D. (1) The Central Government shall notify, by a notiﬁcation published in the Official Gazette, the designated points or ports of entry into India at such places as may be speciﬁed.

(2) A designated point or port of entry shall be marmed by an Immigration Officer or such other Ofﬁcers as may be specified by the Chief Immigration Officer.

Other ImmigratiorL Officers ggd staff.

7E. The Central Government may appoint such other officers and employees (hereinafter referred to as the officers and employees of Immigration respectively), as it may think fit, to assist the Chief Immigration Officer and the Immigration Officers in the performance of their duties under this Act.

Immigration Officers to be pi_1blic servants.

7F. The Chief Immigration Officer and Immigration Officers, the officers and employees of Immigration shall be public servants within the meaning of section 21 of the Indian Penal Code. v Examination of persons disembarking in India 7 (1) An Immigration Ofﬁcer may examine any person who is disembarking or seeking to disembark in India or entering or seeking to enter into India for the purpose of determining whether he is a foreigner and if so whether he is in possession of valid passport and visa or other travel document or residence permit, as the case may be.

(2) Where the Immigration Officer, on examination of any person referred to in subsection (1), is of opinion that such person is a foreigner and is not in possession of a valid passport and visa or a valid travel document or a residence permit shall refuse to grant him leave to enter India and order his deportation.

sf Persons belonging to certain classes not to be admitted'

7.H. No foreigner shall be allowed to enter India notwithstanding the fact that such a foreigner is in possession of a valid passport, visa or other travel document or permit, if in the opinion of the Immigration Off1cer,he falls in any one of the following classes, namely:- '

(a) persons suffering from diseases or disabilities which are a danger to public health or safety and would result in excessive demands on health or social services in the country;

(b) persons unable or unwilling to support themselves or the persons dependent on them;

(d) persons engaged in trafficking in narcotics and psychotropic substances;

(e) persons engaged in plarmed and organized criminal activities;

(t) persons who are members of organizations involved in espionage, subversion or terrorism;

(g) persons who are believed to be members of organizations who have committed war crimes or crimes against humanity or genocide;

(h) skilled and unskilled labour from neighbouring countries having no work permit;

(i) foreigners previously deported from India on charges of misrepresentation to procure illegal entry into India; or

(i) such other classes as may be notiﬁed by the Central Government by general or special order in the Official Gazette.

Persons refused entry to be deported 7.1 (1) Where any person is refused entry into India under sub-section (2) of section 7G or section 7H, he shall be forthwith deported to the place from where he embarked or to a country or territory speciﬁed in sub-section (2) of section 7M, in accordance with the provisions of sub-section (2).

(2) Where a person arriving in India is refused leave to enter, an Immigration Ofﬁcer may, --

(a) give the captain of the ship or aircraﬁ or any other mode of conveyance in which he arrives, directions requiring the captain to remove him from India in that ship or aircraft or conveyance as the case may be; or

(b) give the owners or agents of that ship or aircraft or conveyance directions requiring them to remove him from India in any ship or aircraft or conveyance speciﬁed or indicated in the directions, being a ship or aircraft of which they are the owners or agents -

Provided that where the Immigration Officer is of the opinion that it would not be suitable to give the direction of the nature contemplated by this sub-section, he shall make the arrangements to remove him from India to the place of embarkation or to a country or territory speciﬁed in sub-section (2) of section 7M at the cost of that person or where such person is not in a position to bear the cost the Central Government shall bear the same.

(3) A person in respect of whom directions are given under this section may be placed, under the authority of an Immigration Ofﬁcer, on board any ship or aircraft in which he is to be removed in accordance with the said directions.

Detention gending examination of Foreigners while Disembarkiug in India 7-J .(1) Any person disembarking in India, may be detained under the authority of an Immigration Officer pending his examination and pending a decision to grant or refuse to grant leave to enter.

(2) A person in respect of whom directions may be given under sub-section (2) of section 7-I may be detained under the authority of an Immigration Officer pending the giving of directions and pending his removal in pursuance of any directions given.

(3) person on board a ship or aircraﬁ or other conveyance whose presence in India is required by law, may, under the authority of an Immigration Ofﬁcer, be removed from the ship or aircraft or other conveyance for detention under this section.

(4) If an Immigration Ofﬁcer so requires, master of a ship or pilot of an aircraﬁ or a person in charge of any other conveyance shall prevent from disembarking in India any person who has arrived in India in the ship, aircraﬁ or other conveyance.

(5) Where any person is refused entry under sub-section (4), the master of the ship or captain of an aircraft or the person in charge of other conveyance may detain such person in custody on board the ship or aircraﬁ or conveyance, as the case may be.

(6) The Immigration Officer shall order immediate deportation of a foreigner to a country as speciﬁed in sub-section (2) of section 7M if the foreigner,-

(a) belongs to an inadmissible class; or

(b) has overstayed the period of his visa or permit unless granted extension by the authorities; or '

(d) has completed his sentence for an offence under this Act or under any other law for the time being in force, relating to foreigners; or

(e) is,in the opinion of the Immigration Officer, a threat to the national security and his continued presence endangers the lives and safety of the people of India.

Facilitation Centres and Detention of Foreigners 7-K. (1) The Central Government shall establish or notify any place or centre as a facilitation centre for the purposes of this Act.

(2) Persons liable for detention under sub-sections (1) to (3) of section 7J may be detained, if so ordered by the Immigration Officer in facilitation centres or in such other places as the Central Government may, by order, direct.

(3) Where a person is detained under sub-section (1) of this section, an Immigration Officer, or any other person authorized by the Central Government, may take all such steps as may reasonably be necessary for photographing, measuring or otherwise identifying him.

Determination gt' guestion as to whether a person is an illggal entrant.

7-L. (1) If, on the 'basis of information received or otherwise, the Immigration Officer has reasonable grounds to believe that a person found residing within his jurisdiction is an illegal entrant, he shall record that fact giving reasons in support of such belief and shall call upon that person to show cause why he should not be deciared to be an illegal entrant.

(2) For purposes of sub-section (1) , the Immigration Ofﬁcer shall conduct such enquiry as may be prescribed and may determine-

(a) whether he is an illegal entrant,

(b) his nationality,

(d) the duration of his stay in India, and

(e) such other particulars as may be prescribed.

(3) The Immigration Officer shall hold the enquiry in accordance with the principles of natural justice and in accordance with the procedure, if any, as may be prescribed by rules.

Removal Order 7-M. (1) Where the Immigration Oﬁicer determines that a person is an illegal entrant he shall issue an order for his immediate removal, subject, if any, to the order of an Immigration Tribunal made under section 7-P. (2) The order of removal under sub--section (1) removal of an illegal entrant may be made to a country or territory specified in the order, being either ,-

(a) a country of which he is a national or citizen; or

(b) a country or territory in which he has obtained a passport or other document of identity; or

(d) a country or territory to which there is reason to believe that he will be admitted.

Detention pending enguig and pending deportation 7--N. (1) Every person in respect of whom an inquiry under section 7-L is pending and every person against whom an order of removal has been passed under section 7-M and who has ﬁled an appeal under section 7-P, shall be detained in facilitation centres or at such other places as the Central Government may, by general or special order, specify:

Provided that no male below the age of 16 years or a female shall be detained under this section.

(2) The person referred to in sub--section (1) may be released by the Immigration Ofﬁcer subject to observance and fulﬁlment of such conditions, as may be speciﬁed by him in that behalf, if the Immigration Officer is satisﬁed that such person will appear before him or any other authority under the Act, whenever called upon to do so.

Establishment of Immigration Tribunals:

70. (1) The Central Government may, by notiﬁcation, establish, for the purposes of hearing appeals from the Removal Orders passed by the Immigration Officer under section 7 M, as many Immigration Tribunals as it may deem necessary and the Tribunal shall sit at such places as may be designated by the Central Government or the State Government .

6'?

(2) The Central Government shall also specify in the notiﬁcation referred to in sub-section (1) the territorial limits within which, each such tribunal shall exercise its jurisdiction (3) No person shall be appointed as a member of any such Tribunal unless he is or has been a District Judge or an Additional District Judge in any State.

(4) The Immigration Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, l908(5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Govemment,, every Immigration Tribunal shall have the power to regulate its own procedure including the ﬁxing of the places and times of its inquiry and deciding whether to sit in public or in private.

Appeal against Removal Order 7-1' (1). Any person aggrieved by an order of removal passed by the Immigration Officer, may prefer an appeal to the Immigration Tribunal within fifteen days from the date of communication of such order.

(2) The Immigration Tribunal may, alter giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it may think ﬁt, conﬁrming, modifying or annulling the order appealed against or may remand the case to the Immigration Officer who had passed such order with such directions to that Immigration Officer as the Immigration Tribunal may think ﬁt, for fresh determination after taking additional evidence, if necessary.

(3) Every endeavour shall be made by the Immigration Tribunal to dispose of the appeal within thirty days from the date of ﬁling of the appeal.

(4) Notwithstanding anything contained in the Code of Civil Procedure, or in any other law for the time being in force, an order passed by the Immigration Tribunal shall be final and shall not be questioned in any court of law.

(5) No civil court shall have jurisdiction to entertain a suit or other proceeding with respect to a matter within the jurisdiction of the Immigration Officer or the Immigration Tribunal and no injunction or any other order in respect of any action taken or orders passed by the Immigration Officer or an Immigration Tribunal in respect of such matter, shall be granted or made by any civil court.

70 10

Immigration Courts 7-Q. (1) The Chief Justice of the High Court shall designate one or more Sessions Courts in each district as Immigration Courts for the purpose of providing for speedy trial of offences committed under this Act.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force, all offences committed under this Act shall be tried by the Immigration Courts on day to day basis.

(3) An Immigration Court may take cognizance of any offence under this Act without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence.

(4) Where an offence triable by the Immigration Court is punishable for a term not exceeding three years or with ﬁne or with both, an Immigration Court may, notwithstanding anything contained in sub--section (1), or section 260 or section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of sections 263 to 265 of the Code, shall, so far as may be, apply to such trial: ' Provided that when, in the course of a summary trial under this sub-section, it appears to the Immigration Court that the nature of the case is such that it is undesirable to try it in a summary way, the Immigration Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to and in relation to an Immigration Court as they apply to in relation to a Magistrate:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for an Immigration Court to pass a sentence of imprisonment for a term not exceeding two years.

Special Provisions rggarding Bail 75R. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person who is accused of having committed an offence under this Act, and arrested by the police, shall be released on bail or on his own bond, unless --

(a) the public prosecutor is given an opportunity to oppose the application for such release, and

(b) where the public prosecutor opposes the application, the Immigration Court is satisﬁed that there are reasonable grounds for believing that he is not likely to abscond while on bail.

H 11 (2) The provisions of sub-section (1) shall not apply to a foreigner who has stayed in India beyond the period permitted in the visa or other travel document or permit under which he has entered India.

(3) The limitations on granting of bail specified in this section shall be in addition to the limitations under the Code of Criminal Procedure 1973 or any other law for the time being in force on granting of bail.

Deportation of illegal entrants 7-S. Where a Removal Order has been passed by an Immigration Ofﬁcer or where no appeal has been ﬁled before the Immigration Tribunal against the Removal Order passed by the Immigration Ofﬁcer within the time speciﬁed in section 7-0, or where the appeal has been ﬁled but has been dismissed, the Immigration Ofﬁcer shall, deport the person in accordance with the order of removal or the appellate order, as the case may be.

Power to search, seize and detain persons, conveyance, etc. 7-T. All the powers for the time being conferred by the Customs Act, 1962, on ofﬁcers of customs with regard to the searching and detention of persons, vessels or aircraft or any other conveyance, or seizure of any document or thing or arrest of any person or otherwise for the purpose of prevention or detection of any offence under that Act or for apprehending a person suspected to have committed any offence under that Act may be exercised by such officers, for the purpose of prevention or detection of any offence under this Act or for apprehending a person suspected to have committed any offence under this Act.

Authorities and officers to have certain powers of civil court.

7-U.(1) The Immigration Tribunal, the Chief Immigration Officer and the Immigration Ofﬁcer shall, for the purpose of discharging their functions under this ' Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 while trying a suit, in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of witnesses;

(b) requiring the discovery and production of any document;

(c) requisitioning any public record or copy thereof from any court or ofﬁce;

(d) receiving evidence on afﬁdavits; and

(e) issuing commissions for the examination of witnesses or documents.

(2) Every proceeding before the Immigration Tribunal ,the Chief Immigration Ofﬂcer or an Immigration Officer shall be a judicial proceeding within the meaning of sections 193 and 228 oﬂ the Indian Penal'Code and the Immigration Tribunal,the Chief Immigration Officer and every Immigration Officer shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973."

Insertion of new sections 12A and 12B

4. After section 12 of the principal Act, the following sections shall be inserted, namely:-

Prohibition of employing illegal entrants "12A. No person shall knowingly employ or cause to be employed any illegal entrant.

Prohibition of harbouring illegal entrant 12B. No person shall knowingly harbour or shelter or cause to be harboured or sheltered any illegal entrant."

Substitution of new sections for section 14.

5. For section 14 of the principal Act, the following sections shall be substituted, namely:-

Penalg for the contravention of the provisions of the Act, etc. "l4. Whoever --

(a) contravenes such of the provisions of this Act, or of any order made thereunder or any direction given in pursuance of this Act or such order, for contravention of which no speciﬁc punishment is provided under this Act; or

(b) remains in India or in any area therein with or without a valid passport, exceeding the period for which the visa or -other travel document or permit issued to him for such purpose is valid;

(c) does any act in violation of the conditions of the visa or other travel document or permit issued to him for his entry and stay in India or any part therein; shall be punished with imprisonment for a term which may extend to ﬁve years and shall also be liable to fine, and if he has entered into bond in pursuance of clause (t) of sub-

section (2) of sections 3, his bond shall be forfeited, and any person bound thereby /.3 13 shall pay the penalty therefore or show cause to the satisfaction of the Immigration Court why such penalty should not be paid by him.

Penalty for egtrv ix; restricted areas, etc. 14A. Whoever --

(a) enters into any area in India, which is restricted for his entry under any order made under this Act, or any direction given in pursuance thereof, without obtaining a requisite permit from the authority, notiﬁed by the Central Government in the Official Gazette, for this purpose, or remains in such area beyond the period speciﬁed in such permit for his stay; or

(b) enters into or stays in any area in India without the valid documents required for such entry or for such stay, as the case may be, under the provisions of any order made under this Act or any direction given in pursuance thereof;

shall be punished with imprisonment for a term which shall not be less than two years, but may extend to eight years and shall also be liable to fine which shall not be less than ten thousand rupees but may extend to ﬁfty thousand rupees; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty therein, or show cause to the satisfaction of the Immigration Court why such penalty should not be paid by him.

Penalty for abetment.

14B. Whoever abets any offence punishable under section 14 or section 14A shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence.

Explanation.- For the purposes of this section.-

(i) an act or offence is said to be committed in consequence of the abetment, when it is committed in consequence of the instigation, or in pursuance of a conspiracy, or with the aid which constitutes the offence;

'(ii) the expression "abetment" shall have the same meaning as assigned to it under section 107 of the India Penal Code."

Insertion of new section 15A

6. After section 15 of the principal Act, the following section shall be inserted, name1y:-

Deportation to be without prejudice to any other action.

"15A. Any Deportation Order or Removal Order made under this Act shall be without prejudice to any other action which has been or which may be taken under this Act with respect to such contravention."

Insertion of new section 16A

7. Aﬁer section 16 of the principal Act, the following sections shall be inserted:

Power to make rules 16A.(1) The Central Government may, by notiﬁcation, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely,-

(a) the powers and duties of ofﬁcers and employees appointed for the purposes of this Act and the terms and conditions of their service;

(b) the manner in which enquiry required to be held under this Act may be held."

(c) any other matter which is required to be, or may be, prescribed.

Orders and rules to be laid before Parliament.

"16B. Every order and every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the order or the rule or both Houses agree "that the 'order or the rule should not be made, the order or the rule shall thereaﬁer have effect only in such modiﬁed form or be of no effect, as the case may be; so, however, that any such modiﬁcation or annulment shall be without prejudice to the validity of any thing previously done under the order or the rule."

7} 15 Repeal and transfer of Proceedings

8. (1) The Immigrants (Expulsion from Assam) Act 1950 and the Illegal Migrants (Determination by Tribunals) Act, 1983 are hereby repealed.

(2) On the repeal of the Illegal Migrants (Determination by Tribunals) Act, 1983 "the Tribunals constituted under sub-section (1) of section 5 and the Appellate Tribunals constituted under sub-section (1) of section 15 of that Act shall stand dissolved and ,-

(a) all references pending before the Tribunals shall stand transferred to the respective Immigration Ofﬁcers within the territorial limits of whose jurisdiction such Tribunals are situate;

(b) all appeals pending before the Appellate Tribunals shall stand transferred to the respective Immigration Tribunals within whose territorial jurisdiction such Appellate Tribunals are situate,

(c) the Appellate Tribunals and the Tribunals shall as soon as may be aﬂer such transfer forward the records of such proceedings or appeal pending before them to the concerned Immigration Officer or the Immigration Tribunal as the case may be.

(3) Any reference or appeal transferred under this section shall be dealt with by the Immigration Officer or the Immigration Tribunal as the case may be, in accordance with the provisions of the principal Act as amended by this Act.

Transfer of other cases

9. (1) With effect from the commencement of this Act all proceedings relating to offences committed under the principal Act pending before any court shall stand transferred to the Immigration Court within whose jurisdiction such court is situate.

(2) The court shall as soon as may be after such transfer forward the records of such proceedings pending before it to the Immigration Court.

'77 ANNEXURE-II QUESTIONNAIRE The Ministry of Home Affairs addressed the foiiowing questions to the State Governments and Union territory Administrations.

(1) whether the proposed amendment to section 14 which, inter aiia, provides for higher punishment for serious offences consequently making them triable by the court of session and rendering the grant of bai1 more difficuit, is sufficient? If not, suggestions with regard to the amendment of the said section may be spelt out.

(ii) whether other provisions of the Act aiso need amendment to make it more purposefui and effective to deai with the probiem of infiitration?

(iii) what has been your experience in the impiementation of the Foreigners Act and what difficuities have you come across in this process?

(iv) whether the proposed amendment wouid necessitate strengthening of Passports Act/Citizenship Act?

(v) Do you have any other suggestions to make?

75' ANNEXURE-III Response of the States and Union territory Administrations to the questionnaire in the tabu1atad form:

TABLE RBSDDDSBS States Un1on Territories 1 (3) (D) 2 (6) Amendment 8111 sufficient Desirabie Further amendment to other provisions of the Act necessary Goa, Heryana, Chandigarh.

west Ben9a1, Lakshdweep Madhya Pradesh, Orissa, Punjab Rajasthan, Tamil Nadu, Utter Pradeeh, De1hi Haryana, Madhya Pradesh, Orissa, Rajaethan, Tamil Nadu, Uttar Pradesh, De1hi (D) 3 (s)

(b) 4 (a) No further amendment Difficulties in impiementing provisions of Foreigners Act felt No d1fficu1ties Strengthening of Passports Act needed Goa, Punjab Chandigarh Goa, Haryana, Madhya Pradesh, orissa, Rajasthan, Tami1 Nadu, Uttar Pradesh, west Benga1, Delhi Punjab Chandigarh, Goa, Haryana, Madhya Chandigarh, Pradesh, Orissa, Lakshdweep Punjab, Uttar Pradesh, Tami1 Nadu, west Bengal, Delhi 39 Lakshdweep (D) Strengthening of Citizenship Act needed Speciai courts for tria1 of offences favoured stringent bail prcvisions Goa, Haryana, Madhya Chandigarh, Pradesh, Orissa, Punjab, west Benga1, De1hi Haryana Goa, Madhya Pradesh, Orissa, Punjab, Uttar Pradesh, Tam11 Nadu, wast Benga1, De1hi Lakshdweep 8/ 82 References 18 miiiion peopie crossed the artificia11y created border between India and Pakistan during 1946-47.

"uprooted and See Savita varde - Naqavi, unwelcome", The Hindu (6th June, 1999).

See "Note on i11ega1 migration from Bangiadesh", /, Ministry of Home Affairs (roreigners Division).

See "Influx and security" (the editoria1) The Hindustan Times (19 December, 1998).

According to the 'Assam Accord', those Bang1adeshi's whoinfiltrated between 1st January, 1966 to 25th March, 1971 were not to be deported rather given Indian citizenship after a iapse of 10 YGEFS .

See 'Status Report' submitted by the Union of India in A11 India Lawyers' Forum v. Union of India (W.P. NO.125 of 1998).

See supra note 5.

See supra note 1.

Ibig.

See supra note 2.

10.

11. 12I 13l

14.

15. 8'1 See Report on "I11ega1 Migration into Assam" by Governor of Assam (1998). As per Report, the immigrants are, now, exciusiveiy Musiim.

See supra note 5. The growth rate of electorate has reached a new high in the areas inhabited by migrants. The statistics reieased by Eiection Department of west Benga1 has shown a very high percentage of increase in the border districts of west Bengai. See, "Benga1 sees more claimants for inciusion in voters' iist i11ega1 immigrants may be cause", The Hindustan Times (4 June, 1999); Aiso "List revision rakes up infiitration issue", The Indian Express (3 June 1999).

The Chief Minister of west Bengai has observed that infiitration has put the economy of the State under strain. It has been specificaiiy been reported in the case of Assam by the Governor about the serious economic consequences of the "perceptibie charge in the demographic pattern of the state."

See V.N. Gadgil "Interna1 Security at Danger Levei", The Hindustan Times (25 October 1998).

AASU and ASP agigated and raised the issue of foreigners during 1980-85 in Assam.

See supra notes 10 and 12.

16.

17.

18.

20.

21.

22.

23.

24. 25!

26.

27.

28.

29.

30.

31. SH See supra note 12.

A11 India Lawyers' Forum v. Union of India (w.P. ND.125 of 1998).

S63 SLIDFE 11011.6 12 at 31-32 3.9. Chhanga Khan v. the State of U.P., AIR 1956 A11 69; Ms.Bashiran v. The State of Rajasthan, AIR The State of 1957 Raj 346; Mohd. Hussain v.

Assam, AIR 1960 Assam 209.

AIR 1963 SC 1035.

AIR 1961 SC 1467.

AIR 1959 B0m.525.

AIR 1963 A.P.441.

AIR 1960 Bombay 2?.

AIR 1996 Madras 322.

AIR 1960 Ker.177.

AIR 1962 A11.383.

AIR 1966 Ca1.552.

Id. at 558.

Supra note 25.

AIR 1996 HP 27.

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175Th Report On The Foreigners (Amendment) Bill, 2000