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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 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, 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 .

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 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 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.