The story so far: The Home Minister Amit Shah’s announcement in the Rajya Sabha earlier this week that a National Register of Citizens (NRC) will be implemented across India, and repeated again in Assam, has ignited interest in the existing legal framework in India for illegal migrants. The first enactment made for dealing with foreigners was the Foreigners Act, 1864, which provided for the expulsion of foreigners and their arrest, detention pending removal, and for a ban on their entry into India after removal.
What is the Passport Act?
One of the early set of rules made against illegal migrants, The Passport (Entry into India) Act, 1920, empowered the government to make rules requiring persons entering India to be in possession of passports. This rule also granted the government the power to remove from India any person who entered without a passport. During the Second World War, the Imperial Legislative Assembly enacted the Foreigners Act, 1940, under which the concept of “burden of proof” was introduced. Section 7 of the Act provided that whenever a question arose with regard to the nationality of a person, the onus of proving that he was not a foreigner lay upon the person.
When was the Foreigners Act made more stringent?
The legislature enacted the Foreigners Act, 1946, by repealing the 1940 Act, conferring wide powers to deal with all foreigners. Apart from defining a ‘foreigner’ as a person who is not a citizen of India, it empowered the government to make provisions for prohibiting, regulating or restricting the entry of foreigners into India.
It also restricted the rights enjoyed by foreigners in terms of their stay in the country if any such orders are passed by the authority. The 1946 Act empowered the government to take such steps as are necessary, including the use of force for securing compliance with such directions.
The most important provision of the 1946 law, which is still applicable in all States and Union Territories, was that the ‘burden of proof’ lies with the person, and not with the authorities. This has been upheld by a Constitution Bench of the Supreme Court.
What about the Foreigners (Tribunals) Order?
In 1964, the government brought in the Foreigners (Tribunals) Order. The tribunal has the authority to decide whether a person is a foreigner within the ambit of the Foreigners Act, 1946. The tribunal, which has powers similar to those of a civil court, gives reasonable opportunity to the person alleged to be a foreigner to produce evidence in support of his case, before passing its order.
In June this year, the Home Ministry made certain amendments in the Foreigners (Tribunals) Order, 1964. It was to empower district magistrates in all States and Union Territories to set up tribunals to decide whether a person staying illegally in India is a foreigner or not.
Why did the IMDT Act fail?
The Illegal Migrants (Determination by Tribunals) Act, 1983, which was unsuccessful — it was also referred to as the IMDT Act — was introduced for the detection and deportation of illegal migrants who had entered India on or after March 25, 1971. One factor for its failure was that it did not contain any provision on ‘burden of proof’ similar to the Foreigners Act, 1946. This put a very heavy burden upon the authorities to establish whether a person is an illegal migrant.
The result of the IMDT Act was that a number of non-Indians who may have entered Assam after March 25, 1971 without possession of valid documents, continue to reside in Assam. This culminated, in 2005, in the Supreme Court landmark verdict on a petition by Sarbananda Sonowal (now the Chief Minister of Assam), challenging the IMDT Act.
In the course of the proceedings, the Central government submitted that since the enforcement of the IMDT Act, only 1,494 illegal migrants had been deported from Assam up to June 30, 2001. In contrast 4,89,046 Bangladeshi nationals had been deported under the Foreigners Act, 1946 from West Bengal between 1983 and November 1998.
The top court not only quashed the IMDT Act but also closed all tribunals in Assam functioning under the Act. It, then, transferred all pending cases at the IMDT tribunals to the Foreigners Tribunals constituted under the Foreigners (Tribunals) Order, 1964.
Any person excluded from the National Register of Citizens (NRC) can approach The Foreigners Tribunals, established only in Assam, within 120 days of receiving a certified copy of rejection.
In other States, a person suspected to be a foreigner is produced before a local court under the Passport Act, 1920, or the Foreigners Act, 1946.