Foreigners Act, 1946 and Foreigners Order, 1948

Why in news?

• The Union Home Ministry has notified that a foreigner living in India shall hold a valid passport or any “other valid travel document”, which includes emergency certificate, certificate of identity and any other document issued by the government of a foreign country.
• The Ministry through a gazette notification amended the Foreigners Orders, 1948 by inserting a new provision, paragraph 3B, stating “requirement of holding a valid passport or other valid travel document while living in India.”

More about the news:

• The order assumes significance as many people from Afghanistan were not able to return or had decided to stay back in India after the Taliban takeover in Afghanistan.
• The Foreigners Order under Foreigners Act, 1946 regulates the entry and departure of foreigners in India.
• Other than this, the Passport (Entry in India) Act, 1920 prescribes the rules for foreigners authorising their stay here on the basis of visas affixed to passports or other travel documents.

About Foreigners Act:

• Foreigners Act, 1864
  • It was the first enactment made for dealing with foreigners that provided for the expulsion of foreigners.
  • It also allowed arrest, detention, and for a ban on foreigners entry into India after detention.
• Foreigners Act, 1940
  • It was enacted during the Second World War, under which the concept of “burden of proof” was introduced.
  • This meant 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.
• Foreigners Act, 1946
  • It empowered the government to take such steps as are necessary to prevent illegal migrants including the use of force.
  • The concept of ‘burden of proof’ lies with the person, and not with the authorities given by this act is still applicable in all States and Union Territories. This concept has been upheld by a Constitution Bench of the Supreme Court.
  • The act empowered the government to establish tribunals which would have powers similar to those of a civil court.
  • The Act also empowers the government to detain a person until deportation back to their country of origin.

Add ons:

• Recent amendments (2019) to the Foreigners (Tribunals) Order, 1964 empowered even 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.

PRACTICE QUESTION:

With reference to ‘Foreigners Act, 1946’, consider the following statements:

1. The Act empowered the government to establish tribunals which would have powers similar to those of a civil court

2. Under the Act, 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.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

Answer