The Indian Home Minister recently announced in the Rajya Sabha that the National Register of Citizens (NRC) will be implemented nationwide, including a reiteration in Assam. This move comes as part of an effort by the Ministry of Home Affairs to contain and monitor illegal immigration. Interestingly, India already has an array of laws and regulations designed to manage the issue of illegal migration.
The Existing Legal Framework
There is an established legal framework in place for dealing with foreigners and illegal migrants. This is constituted by several Acts, each playing a key role in maintaining control over illegal migration.
Foreigners Act, 1864
The Foreigners Act of 1864 was the first law created to deal specifically with foreigners. It provided mechanisms for the expulsion, arrest, and detention of foreigners, as well as instituting a ban on entry into India after detention.
The Passport (Entry into India) Act, 1920
This act gave the government the authority to require that anyone entering India must possess a passport. It also granted the power to remove anyone from India who had entered without proper documentation.
Foreigners Act, 1940
Introduced during the Second World War, the Foreigners Act of 1940 established the “burden of proof” concept, indicating that it was up to the individual, not the authorities, to prove they were not a foreigner.
Foreigners Act, 1946
The Foreigners Act of 1946 replaced the previous version and broadened governmental powers related to dealing with foreigners. This included provisions to prevent illegal migration, even by force if necessary.
Illegal Migrants (Determination by Tribunals) Act, 1983
The absence of any provision related to the ‘burden of proof’ in the Illegal Migrants Act of 1983 placed significant responsibility on authorities to determine a person’s immigration status. This Act was later struck down by the Supreme Court in the Sarbananda Sonowal v. Union of India (2005) case.
Amendments and Modifications
The Foreigners (Tribunals) Order of 1964 was amended in 2019 to give district magistrates in all states and territories the power to establish tribunals to verify a person’s legal status. The Supreme Court has also upheld the ‘burden of proof’ concept in all states and Union Territories, acknowledging that it remains applicable
| Act | Year | Purpose |
|---|---|---|
| Foreigners Act | 1864 | Expulsion of foreigners |
| The Passport (Entry into India) Act | 1920 | Passport requirement for entry |
| Foreigners Act | 1940/1946 | Burden of Proof lies with the person |
| Illegal Migrants (Determination by Tribunals) Act | 1983 | Absence of Burden of Proof clause |
Procedure for Appeals
In Assam, anyone excluded from the National Register of Citizens (NRC) can appeal to the Foreigners Tribunals within 120 days of receiving their rejection notice. In other states, suspected foreigners are produced before a local court under the Passport Act, 1920, or the Foreigners Act, 1946. These legal procedures uphold the justice system’s objectivity while dealing with disputes related to a person’s nationality or immigration status.