Skip navigation

Overview: Understanding The Foreigners Act, 1946

Aug. 15, 2020   •   Architi Batra

[Profile of the author: Abhyudey Kabra is a second-year Law student at Maharaja Agrasen Institute of Management Studies, IP University. He is a Criminal law enthusiast, an abstract artist and a voracious reader, training to become a renaissance man.]

Introduction

The Foreigners Act, 1946 is an act of the legislative assembly which was the lower house of the Imperial Legislative Council, the legislature of British India. This act confers upon the Central Government certain powers in respect of foreigners. This is colonial legislation.

Salient Features of the Act

  • This act provides for the definition of the term ‘Foreigner’ as a person who is not a citizen of India.[1]
  • This act regulates and restricts the entry and departure of foreigners.[2]
  • This Act purports to confer upon the Central Government, the powers to make orders regarding all foreigners or regarding any particular foreign or a class of foreigners.[3]
  • According to this Act, a foreigner who was in India when the act came into force, and while still remaining in the territory of India, cannot change his/her name from the one he/she was earlier known from.[4]
  • This act imposes certain obligations on the master of any vessel and the pilot of any aircraft landing or embarking at any port or airport respectively to furnish the information regarding any passengers or members of the crew who are foreigners to any district magistrate, and or any Commissioner of Police as and when required.[5]
  • If any foreigner enters in India in contravention of any provisions of this Act through any vessel or aircraft, he can be removed from India within two months from the date of such entry.[6]
  • Section 7 of this Act places a reporting obligation which applies to a ‘keeper of any premises’. This section requires a keeper of any premises “to submit to such person and in such manner such information in respect of foreigners accommodated in such premises, as may be prescribed”. The keeper of every such premise shall maintain a record of the information furnished by him/her and this shall be available at all times to inspection by any police officer or by a person authorised by the District Magistrate.
  • When a nationality of any person is in question, the power to decide in such a situation is with Central Government according to this Act.[7]
  • This act provides for penalty for contravention of provisions of this act. Whoever remains in any area in India[8] for a period exceeding the period for which the visa was issued to him/her or whoever does any act in violation of the conditions of the valid visa[9] issued to him/her shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine.
  • It imposes a penalty on foreigners for using a forged passport.[10] This is punishable with imprisonment for a term of two years and may extend to eight years and shall also be liable to fine amounting to ten thousand rupees and may extend to fifty thousand rupees.

Reason for the introduction of this Act

The Foreigners Act, 1864 was the first enactment which provided for the arrest, expulsion, detention pending removal, and for a ban on foreigners. The drawback of this act was that the powers it provided were ineffective and inadequate during normal times because certain provisions like for reporting of foreigners on arrival, their travel under a license and other certain incidental measures were applicable only at the time of an emergency. During the Second World War, the imperial legislative assembly introduced the concept of ‘burden of proof’ by enacting the Foreigners Act, 1940; but the drawbacks of the 1864 Act we’re still visible in this new 1940 Act.

In order to deal with all the problems of the 1864 Act the legislature later enacted the Foreigners Act, 1946, by repealing the 1940 Act. This act bestowed the powers to make provisions for restricting, prohibiting and regulating the movement of foreigners in India upon the Central Government. The 1946 Act, reserved the 1940’s concept of ‘burden of proof’[11] which lied upon the person in question and not with the authority.

Relevance in current times

Section 3 of this act grants power to the Central Government to make provisions by passing an order either generally or with respect to any particular foreigner or any prescribed class or description of foreigners, for prohibiting, regulating or restricting their entry or departure therefrom or their presence or continued presence therein. The Foreigners (Tribunals) Order, 1964 was enacted by the Central Government by using such power. Though this order, issued by the Ministry of Home Affairs was applicable country-wide, it was only intended for the state of Assam for all practical purposes. Foreigners Tribunals were established as per this order (The Foreigners (Tribunals) Order, 1964 ). These tribunals are quasi-judicial bodies and only these have the right to declare a person as a foreigner. According to the order passed in 1964, these tribunals have the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908.

If declared a foreigner or placed under the 'd’ or ‘doubtful’ category in the National Register of Citizens (NRC) list, the burden of proof for proving his/her citizenship will lie with the accused itself. National Register of Citizens (NRC) is a citizen register, in which names of every citizen of India is recorded, it is monitored by the Supreme Court for identifying undocumented immigrants living in Assam. The Citizenship Act, 1955 has made it mandatory for the creation of NRC. The Citizenship Rules, 2003, bestows power to the Central Government to issue an order to prepare the National Population Register (NPR). NRC list is created on the data gathered in the NPR. The ones who are left out of the NRC list have a right to appeal to the Foreigners Tribunals as per the amended Foreigners (Tribunal) Order, 2019; this non-inclusion of a person’s name in the NRC does not by itself amount to him/her being declared a foreigner.

These tribunals were essentially unique to Assam and only the Central Government had the power to constitute such tribunals but due to the amendment of Foreigners (Tribunal) Order, 1964 on May 30, 2019[12], by the Ministry’s of Home Affairs, now the state government and even the district magistrate of all states and Union Territories were given the powers to set up tribunals to identify a ‘foreigner’ who is living in India illegally.

Critical Analysis

The purpose of the Foreigners Act, 1946 was to regulate, restrict and prohibit the entry and exit of a foreigner but it does not prescribe any procedure for detecting a foreigner or identifying one.

This Act also puts the burden of proof on the person who’s nationality is being questioned and not on the authorities. The principle of ordinary Law of Evidence, “the burden of proof”[13], states that the burden of proving is on the person alleging and not the person accused, but according to the Foreigners Act, 1946 in order to prove that a person is a citizen of India, he/she will have to prove both the authenticity of their citizenship and the authenticity of the documents to build his/her case.

If any person is declared as a foreigner, he/ she will be sent to a detention centre; the drawback of this Act is that it does not provide any time limit for the detention period; according to International Conventions, when a person is declared foreigner the time period of detention is 6 months, before he/she is deported to his/her country.

Conclusion

In India, we follow the concept of Atithi Devo Bhava, which embodies the host-guest relationship of revering the guests with the same respect as a god. India has been giving shelter to many refugees of different nations since independence, our cultural and religious nature enables us to protect the interests of foreigners who visit India time and again. But many foreigners have been living illegally in India, either by violating their visa time limit or by getting inside the territory of India through illegal means. The Foreigners Act, 1946 is indirectly related to the NRC and is integral for India. Section 3 of the Act allows the centre and state government to make rules and regulations related to foreigners. NRC provides a clear cut demarcation of who qualifies to be an Indian citizen from other nationals who have been illegally living in India. With our evidently growing economy, it is important to have a clear picture of the exact number of citizens and foreign nationals living in the country and whether their inhabitation is legal or illegal. The resources available to us are limited and so to utilise them for the benefit of the citizens of India first it becomes important to eliminate the chances of any such rights getting exploited. Due to the many drawbacks of the Foreigners Act, 1946, it has failed to fulfil its purpose, it is, therefore, the need of the hour to have a strong law regulating the movement of foreigners in Indian territory is very important.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.


[1] Section 2(a), Foreigners Act, 1946.

[2] Section 3 (2) (a), Foreigners Act, 1946.

[3] Section 3 (1), Foreigners Act, 1946.

[4] Section 5 (1), Foreigners Act, 1946.

[5] Section 6 (1), Foreign Act, 1946.

[6] Section 6 (4), Foreigners Act, 1946.

[7] Section 8, Foreigners Act, 1946.

[8] Section 14 (a), Foreigners Act, 1946.

[9] Section 14 (b), Foreigners Act, 1946.

[10] Section 14B, Foreigners Act, 1946.

[11] Section 9, Foreigners Act, 1946.

[12] known as the Foreigners (Tribunals) Amendment Order, 2019

[13] Section 101, The Indian Evidence Act, 1872.


Liked the article ?
Share this: