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Legal Framework for Illegal Migrants in India

  • 02 Dec 2019
  • 5 min read

Why in News

Recently, the Home Minister informed in the Rajya Sabha that the National Register of Citizens (NRC) will be implemented across India, and repeated again in Assam.

  • According to the Ministry of Home Affairs, the implementation of NRC is expected to keep a check on illegal migrants.
  • However, India already has a number of rules and regulations in place to control illegal migration in the country.

Existing Legal Framework

  • The clause for the expulsion of foreigners:
    • 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.
  • Introduction of Passport:
    • The Passport (Entry into India) Act, 1920
      • The act empowered the government to make rules requiring persons entering India to be in possession of passports.
      • It also granted the government the power to remove from India any person who entered without a passport.
  • Concept of ‘burden of proof’ lies with the person, and not with the authorities:
    • 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 replaced the Foreigners Act, 1940 conferring wide powers to deal with all foreigners.
      • The act 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.
      • 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.
  • Increased burden of migrants because of absence of the “ burden of a proof ” clause:
    • Illegal Migrants (Determination by Tribunals) Act, 1983
      • The absence of any provision related to the ‘burden of proof’ in the Illegal Migrants (Determination by Tribunals) Act, 1983 put a very heavy burden upon the authorities to establish whether a person is an illegal migrant.
      • Moreover, a number of non-Indians who may have entered Assam after March 25, 1971, without possession of valid documents, continued to reside in Assam.
      • The act was struck down by the Supreme Court in Sarbananda Sonowal v. Union of India (2005).The Supreme Court also closed all tribunals in Assam functioning under the Act.
      • The Supreme Court, then, transferred all pending cases at the IMDT tribunals to the Foreigners Tribunals constituted under the Foreigners (Tribunals) Order, 1964.
  • Existing Procedure for Appeal:
    • Assam:
      • Currently, 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.
    • Other states and Union Territories:
      • 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.

Source: TH

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