act 039 of 1983 : Illegal Migrants (Determination by Tribunals) Act, 1983

CHAPTER I

PRELIMINARY

CHAPTER II

ESTABLISHMENT OF TRIBUNALS

CHAPTER III

PROVISIONS APPLICABLE TO ALL TRIBUNALS

CHAPTER IV

ENFORCEMENT OF THE ORDERS MADE BY THE TRIBUNALS

CHAPTER V

MISCELLANEOUS

Section 1.Short title, extent and commencement.

This Act may be called the Illegal Migrants (Determination by Tribunals) Act, 1983.

(2) It extends to the whole of India.

(3) It shall be deemed to have come into force in the State of Assam on the 15th day of October, 1983 and in any other State on such date as the Central Government may, by notification in the Official Gazeette, appoint and different dates may be appointed for different States and references in this Act to the commencement of this Act shall be construed in relation to any State as references to the date of commencement of this Act in such State.

Section 2.Application.

Nothing in this Act shall apply to or in relation to—

(a) any person who was in any State and who had been expelled from that State or India before the commencement of this Act in that State or in relation to whose expulsion from such State or India any order made before such commencement under any other law is in force;

(b) any person detected as a foreigner at the time of his entry across any border of India;

(c) any foreigner who, having entered into India under a valid passport or travel document, continued to remain therein after the expiry of the period for which he was authorised to remain in India under such passport or travel document.

Section 3.Definitions and construction of references.

(1) In this Act, unless the context otherwise requires,—

(a) "Appellate Tribunal" means an Appellate Tribunal established by the Central Government under sub-section (1) of section 15;

(b) "foreigner" has the same meaning as in the Foreigners Act, 1946 (31 of 1946);

(i) he has entered into India on or after the 25th day of March, 1971,

(ii) he is a foreigner,

(iii) he has entered into India without being in possession of a valid passport or other travel document or any other lawful authority in that behalf;

(d) "notification" means a notification published in the Official Gazette;

(e) "prescribed" means prescribed by rules made under this Act;

(f) "Tribunal" means a Tribunal established by the Central Government under sub-section (1) of section 5.

(2) Any reference in this Act to any law which is not in force in any area shall, in relation to that area, be construed as a reference to the corresponding law, if any, in force in that area.

Section 4.Overriding effect of the Act.

(1) The provisions of this Act or of any rule or order made thereunder shall have effect notwithstanding anything contained in the Passport (Entry into India) Act, 1920 (34 of 1920) or the Foreigners Act, 1946 (31 of 1946) or the Immigrants (Expulsion from Assam) Act, 1950 (10 of 1950) or the Passports Act, 1967 (15 of 1967) or any rule or order made under any of the said Acts and in force for the time being.

(2) In particular and without prejudice to the generality of the provisions of sub-section (1), nothing in the proviso to section 2 of the Immigrants (Expulsion from Assam) Act, 1950 (10 of 1950) shall apply to or in relation to an illegal migrant as defined in Clause (c) of sub-section (1) of section 3.

Section 5.Establishment of Illegal Migrants (Determination) Tribunals.

(1) The Central Government may, by notification, establish, for the purposes of this Act, as many Illegal Migrants (Determination) Tribunals as it may deem necessary and specify the principal place of sitting of, and the territorial limits within which, each such Tribunal shall exercise its jurisdiction.

(2) No person shall be appointed as a member of any such Tribunal unless he is or has been a District Judge or an Additional District Judge in any State.

(3) Each Tribunal shall consist of ¹ [two members].

(4) On the establishment of a Tribunal, the Central Government shall appoint one of the members thereof as the Chairman of such Tribunal.

(5) Each Tribunal shall sit in its principal place of sitting and in such other place or places as its Chairman may, from time to time, appoint.

1. Subs. by Act 24 of 1988, s. 2, for "three members" (w.e.f. 25-4-1988).

Section 6.Filling of vacancies.

If, for any reason, any vacancy occurs in the office of the Chairman or ¹ [the member] of a Tribunal, the Central Government may fill the vacancy by appointing any person who fulfils the qualifications specified in sub-section (2) of section 5, as the Chairman, or, as the case may be, member of such Tribunal.

1. Subs. by s. 3, ibid., for "any other member" (w.e.f. 25-4-1988).

Section 7.Staff of the Tribunals.

The Central Government shall make available to every Tribunal such staff as may be necessary for the discharge of its functions under this Act.

Section 8.References or applications to Tribunals.

(1) If any question arises as to whether any person is or is not an illegal migrant, the Central Government may, whether such question has arisen on a representation made by such person against any order under the Foreigners Act, 1946 (31 of 1946) requiring him not to remain in India or to any other effect or has arisen in any other manner whatsoever, refer such question to a Tribunal for decision.

(2) ¹ *** any person may make an application to the Tribunal, for its decision, as to whether the person whose name and other particulars are given in the application, is or is not an illegal migrant:

² [Provided that no such application shall be entertained by the Tribunal unless the person in relation to whom the application is made is found, or resides, within the jurisdiction of the same police station wherein the applicant has the place of residence.]

(3) Every application made under sub-section (2) shall be made in such form and in such manner as may be prescribed and shall be accompanied by affidavits sworn by not less than ³ [two persons residing within the jurisdiction of the same police station] in which the person referred to in the application is found, or residing, corroborating the averments made in the application, and shall also be accompanied by such fee, being not less than ⁴ [ten] and not more than one hundred, rupees, as may be prescribed.

⁵ [(4) Every reference under sub-section (1) shall be made to the Tribunal within the territorial limits of whose jurisdiction the place of residence of the person named in such reference is, at the time of making such reference, situated:

Provided that where such person has no place of residence, the reference shall be made to the Tribunal within the territorial limits of whose jurisdiction such person, is at the time of making such reference, found.

(5) Every application under sub-section (2) shall be made to the Tribunal within the territorial limits of whose jurisdiction the person named in such application is found or, as the case may be, has his place of residence, at the time of making such application.]

1. The words, brackets and figure "Without prejudice to the power conferred on the Central Government by sub-section (1)" omitted by s. 4, ibid. (w.e.f. 25-4-1988).

2. Subs. by s. 4, ibid., for the proviso (w.e.f. 25-4-1988).

3. Subs. by Act 24 of 1988, s. 4, for "two persons residing within three kilometres of the area" (w.e.f. 25-4-1988).

4. Subs. by s. 4, ibid., for "twenty-five" (w.e.f. 25-4-1988).

5. Subs. by s. 4, ibid., for sub-section (4) (w.e.f. 25-4-1988).

Section 8A.Application to the Central Government for reference.

¹[8A. Application to the Central Government for reference.-- (1) Any person may make an application to the Central Government, for decision by a Tribunal, as to whether the person whose name and other particulars are given in the application, is or is not an illegal migrant, and where any such application is received by the Central Government, it may, on the basis of any information in its possession or after making such inquiry as it deems fit, reject the application on the ground that the application is frivolous or vexatious or it does not comply with the requirements of this section or refer such application to a Tribunal for decision.

(2) Every application made under sub-section (1) shall be made in such form and in such manner as may be prescribed and shall be accompanied by a declaration by another person residing within the jurisdiction of the same revenue sub-division in which the applicant resides in such form as may be prescribed to the effect that the particulars mentioned in the application are true to his knowledge, information and belief:

Provided that no person shall make more than ten such applications or more than ten such declarations.

(3) Every reference under sub-section (1) shall be made to the Tribunal within the territorial limits of whose jurisdiction the place of residence of the person named in such reference is, at the time of making such reference, situated:

Provided that where such person has no place of residence, the reference shall be made to the Tribunal within the territorial limits of whose jurisdiction such person is, at the time of making such reference, found.]

1. Ins. by s. 5, ibid. (w.e.f. 25-4-1988).

Section 9.Powers of Tribunal.

Every Tribunal shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of witnesses and examining them on oath;

(b) discovery and production of any document;

(d) requisitioning of public records from any court or office;

(e) issuing of any commission for the examination of witnesses.

Section 10.Procedure with respect to references under sub-section (1) of section 8.

On receipt of a reference under sub-section (1) of ¹ [section 8 or sub-section (1) of section 8A] the Tribunal shall serve on the person named in such reference, a notice, accompanied by a copy of such reference, calling upon him to make, within a period of thirty days from the date of receipt of such notice, such representation with regard to the averments made in the reference, and to produce such evidence as he may think fit in support of his defence:

Provided that if the Tribunal is satisfied that the person aforesaid was prevented by sufficient cause from making his representation and from producing evidence in support of his defence within the said period of thirty days, it may permit him to make his representation and to produce evidence in support of his defence, within such further period, not exceeding thirty days, as it may, by order, specify.

1. Subs. s. 6, ibid., for "section 8" (w.e.f. 25-4-1988).

Section 11.Procedure with respect to applications under sub-section (2) of section 8.

(1) On receipt of an application under sub-section (2) of section 8, the Tribunal shall issue a notice, accompanied by a copy of the application, to the prescribed authority calling upon it to furnish, after making such inquiry as that authority may deem fit, a report to the Tribunal with regard to the averments made in the application.

(2) If, on a consideration of the report made by the prescribed authority, the Tribunal is satisfied that—

(a) the person named in the application is not an illegal migrant or that the application is frivolous of vexatious, or has not been made in good faith, the Tribunal shall, after giving the applicant an opportunity to be heard, reject the application;

(b) there are reasonable grounds to believe that the person named in the application is an illegal migrant, the Tribunal shall issue a notice accompanied by a copy of the application, to the person named in the application, calling upon him to make, within thirty days from the date of receipt of the notice, such representation with regard to the averments made in the application and to produce such evidence as he may think fit in support of his defence:

Section 12.Determination of the question as to whether a person is an illegal migrant.

(1) The Tribunal to which a reference has been made under ¹ [section 8 or section 8A, or to which an application has been made under section 8], shall, after taking such evidence as may be adduced before it and after making such inquiry as it may think fit and after hearing such persons as it may deem appropriate, by order, decide the question as to whether the person named in such reference or application, as the case may be, is or is not an illegal migrant:

Provided that where for the determination of such question in any case the decision on any issue renders any decision on any other issue or issues unnecessary, the Tribunal may not decide such other issue or issues.

² [(2) Where the members of the Tribunal differ in their opinion on any point, the Chairman of the Tribunal shall state the point or points on which they differ and make a reference to the President of the Appellate Tribunal which exercises jurisdiction in relation to the Tribunal who shall refer the case for hearing on such point or points by a member of another Tribunal under its jurisdiction and such point or points shall be decided according to the opinion of that member and such decision shall be deemed to be the decision of the Tribunal.]

(3) The Tribunal shall send a copy of every order passed by it to the prescribed authority ³ [or authorities] and to the parties to the reference, or the application, as the case may be.

(4) Every order passed under sub-section (1) shall, subject to the decision of the Appellate Tribunal, be final and shall not be called in question in any court.

1. Subs. by Act 24 of 1988, s. 7, for "section 8, or to which an application has been made under that section" (w.e.f. 25-4-1988).

2. Subs. by s. 7, ibid., for sub-section (2) (w.e.f. 25-4-1988).

3. Ins. by s. 7, ibid. (w.e.f. 25-4-1988).

Section 13.Reference and application to be disposed of within six months.

Every reference made to a Tribunal under ¹[section 8 or section 8A or application made to a Tribunal under section 8] shall be inquired into as expeditiously as possible and every endeavour shall be made to conclude such inquiry within a period of six months from the date of the service, on the person concerned, of a copy of such reference or application.

1. Subs. by s. 8, ibid., for "section 8 or application made to a Tribunal under that section" (w.e.f. 25-4-1988).

Section 14.Appeal.

The Central Government, or any person, named in a reference or an application under section 8, or any applicant under sub-section (2) of that section ¹ [or any person named in a reference under section 8A] may, if it or he is not satisfied with any order made by a Tribunal under section 12, prefer an appeal to the Appellate Tribunal against such order.

1. Ins. by Act 24 of 1988, s. 9 (w.e.f. 25-4-1988).

Section 15.Appellate Tribunal.

(1) The Central Government may, by notification, establish for each State in which this Act is in force an Appellate Tribunal to be known as the Illegal Migrants (Determination) Appellate Tribunal for deciding appeals preferred under section 14 against orders made by Tribunals in the State and specify the principal place of sitting of such Appellate Tribunal.

(2) No person shall be appointed as a member of an Appellate Tribunal unless he is or has been a Judge of a High Court.

(3) An Appellate Tribunal shall consist of as many members, not being ¹ [less than two] and more than six, as the Central Government may think fit.

(4) The Central Government shall appoint one of the members of an Appellate Tribunal to be the President thereof.

(5) An Appellate Tribunal shall sit in its principal place of sitting or any such other place or places as the President thereof may, from time to time, appoint.

(6) The powers and functions of an Appellate Tribunal may be exercised and discharged by benches constituted by the President thereof from amongst the members thereof ² [which may either be single member benches or benches consisting of not less than two members.]

(7) The Central Government shall make available to every Appellate Tribunal such staff as may be necessary for the discharge of its functions under this Act.

(8) Every memorandum of appeal to an Appellate Tribunal shall be made in such form and in such manner as may be prescribed, and, in the case of an appeal preferred by an applicant under sub-section (2) of section 8, shall also be accompanied by such fee, not being less than twenty-five and more than one hundred rupees, as may be prescribed.

(9) Every appeal shall be preferred within thirty days from the date on which the order sought to be appealed against was communicated to the appellant:

Provided that the Appellate Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period, admit an appeal after the expiry of the aforesaid period of thirty days.

³ [(10) Every Appellate Tribunal shall have the same powers as are vested in an appellate court under the Code of Civil Procedure, 1908 (5 of 1908), while hearing an appeal.]

1. Subs. by s. 10, bid., for "less than three" (w.e.f. 25-4-1988).
2. Subs. by s. 10, ibid., for "and each bench shall consist of not less than two members" (w.e.f. 25-4-1988).
3. Subs. by s. 10, ibid., for sub-section (10) (w.e.f. 25-4-1988).

Section 16.Order of the Appellate Tribunal.
(1) The Appellate Tribunal may, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it may think fit, confirming, modifying or annulling the order appealed against or may remand the case to the Tribunal which had passed such order with such directions to that Tribunal as the Appellate Tribunal may think fit, for fresh determination after taking additional evidence, if necessary.
(2) Where an appeal had been heard by the Appellate Tribunal and the members thereof differ in their opinion on any point, the decision on such point shall, where there is a majority, be according to the opinion of such majority, and where there is no majority and the members are equally divided in their opinion, they shall draw up a statement of the facts of the case and the point or points on which they differ in their opinion and make a reference of the point or points or of the appeal, as the case may be, to the President of such Tribunal, and on receipt of such reference, the President of the Tribunal shall arrange for the hearing of such point or points, or the appeal, by one or more of the members of the Appellate Tribunal, and such point or points, or the appeal, as the case may be, shall be decided according to the opinion of the majority of the members of the Appellate Tribunal, who have heard the appeal, including those who had first heard it.
¹ [(3) The Appellate Tribunal shall send a copy of every order passed by it under sub-section (1) to the parties to the appeal, to the Tribunal concerned and to the prescribed authority or authorities.]
(4) ² *** every order passed under sub-section (1), other than an order remanding the case, shall be final and no order passed under that sub-section shall be called in question in any court.

1. Subs. by Act 24 of 1988, s. 11, for sub-section (3) (w.e.f. 25-4-1988).
2. The words and figures "Subject to the provisions of section 17" omitted by s. 11, ibid. (w.e.f. 24-4-1988).

Section 17.Power of superintendence by Appellate Tribunal.
¹[17. Power of superintendence by Appellate Tribunal.-- (1) Every Appellate Tribunal shall have superintendence over all the Tribunals in the State.
(2) Without prejudice to the generality of the foregoing provisions, the Appellate Tribunal may--
(a) call for returns from any Tribunal;
(b) make general rules and specify forms for regulating the practice and proceedings of Tribunals; and
(c) specify the forms in which books, entries and accounts shall be kept by the officers of Tribunals.]

1. Subs. by s. 12, ibid., for section 17 (w.e.f. 24-4-1988).

Section 18.Procedure.
Subject to the provisions of this Act and the rules made thereunder, every Tribunal and every Appellate Tribunal shall have the power to regulate its own procedure in all matters arising out of the exercise of its powers or for the discharge of its functions.

Section 19.Proceeding before every Tribunal to be judicial proceeding for certain purposes.
Every proceeding before a Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860); and every such Tribunal or Appellate Tribunal, as the case may be, shall be deemed to a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 20.Expulsion of illegal migrants.
¹[(1)] Where a person has been determined by a Tribunal, or, as the case may be, by the Appellate Tribunal, to be an illegal migrant, the Central Government shall, by order served on such person, direct such person to remove himself from India within such time and by such route as may be specified in the order and may give such further directions in regard to his removal from India as it may consider necessary or expedient.
²[(2) Any police officer not below the rank of a Superintendent of Police shall have such powers as may be necessary, including the power to obtain a bond from any person for the due compliance of an order under sub-section (1) and to arrest such person in the event of his failure to furnish such bond to the satisfaction of such police officer.]

1. S. 20 renumbered as sub-section (1) thereof by s. 13, ibid. (w.e.f. 24-4-1988).
2. Ins. by s. 13, ibid. (w.e.f. 24-4-1988).

Section 21.Delegation of powers.
The Central Government may, by notification, direct that the powers and duties conferred or imposed on it by this Act, other than the powers conferred by section 28, and the powers conferred by this section, may, subject to such conditions as may be specified in the notification, be exercised or discharged also by—
(a) any officer subordinate to the Central Government;
(b) any State Government or any officer subordinate to that Government.

Section 21A.Power to bind certain persons against whom complaint is made under the Act.
¹[21A. Power to bind certain persons against whom complaint is made under the Act.-- Notwithstanding anything contained in any other law for the time being in force, it shall be lawful for a police officer not below the rank of a Superintendent of Police, if he is satisfied that the circumstances so require and for reasons to be recorded in writing, to direct any person against whom a reference or an application has been made under this Act to enter into a bond with or without sureties for making himself available for the inquiry and observance of such restrictions or conditions as may be specified by such police officer:
Provided that if such person fails to enter into such bond he may be arrested and detained in such manner as may be prescribed.]

1. Ins. by Act 24 of 1988, s. 14 (w.e.f. 24-4-1988).

Section 22.Power to give effect to the orders, etc.
Any authority empowered by or in pursuance of the provisions of this Act to exercise any power, may, in addition to any other action expressly provided for in this Act, take, or cause to be taken, such steps, and use, or cause to be used, such force, as may in its opinion be reasonably necessary for the effective exercise of such power.

Section 23.Bar of jurisdiction of civil courts.
Where a Tribunal or Appellate Tribunal has been established for any area for the purpose of determining whether a person is or is not an illegal migrant, no civil court shall have jurisdiction to entertain any question relating to that matter in that area and no injunction or any other order in respect of any action taken by, or before, the Tribunal or Appellate Tribunal in respect of that matter shall be granted or made by any civil court.

Section 24.Transitory provision.
Where in any suit or other legal proceeding pending, whether in a civil court or in any Tribunal established under any other law for the time being in force, immediately before the commencement of this Act, a question arises as to whether a person is or is not an illegal migrant, such court or Tribunal shall, without deciding such question, make an order transferring such suit or other legal proceeding to the Tribunal under this Act within the territorial limits of whose jurisdiction such court or other Tribunal is situate and on such transfer such question shall be dealt with by such Tribunal in accordance with the provisions of this Act.

Section 25.Penalties.
Any person who,—
(a) contravenes or attempts to contravene, or abets the contravention of, any order made under section 20; or
(b) fails to comply with any direction given by any such order; or
(c) harbours any person who has contravened any order made under section 20 or has failed to comply with any direction given by any such order,
¹ [shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than two thousand rupees:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than one year or a fine of less than two thousand rupees.]

1. Subs. by s. 15, ibid., for certain words (w.e.f. 24-4-1988).

Section 26.Protection of action taken in good faith.
No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.

Section 27.Power to remove difficulties.
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order to be published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for removing the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House or Parliament.

Section 28.Power to make rules.
(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:—
(a) the form and the manner in which an application may be made and the fee which shall accompany such application, as required by sub-section (3) of section 8;
¹ [(aa) the form and the manner in which an application, and the form in which a declaration, may be made under sub-section (2) of section 8A;]
² [(b) the authority or authorities to be prescribed under sections 11, 12 and 16;]
(c) the form and the manner in which an appeal to the Appellate Tribunal may be preferred and the fee which shall accompany such appeal as required by sub-section (8) of section 15;
¹ [(ca) the manner of arrest and detention under the proviso to section 21A;]
(d) any other matter which is required to be, or may be, prescribed.
(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

1. Ins. by Act 24 of 1988, s. 16 (w.e.f. 24-4-1988).
2. Subs. by s. 16, ibid., for clause (b) (w.e.f. 24-4-1988).

Section 29.Repeal and saving.
(1) The Illegal Migrants (Determination by Tribunals) Ordinance, 1983 (8 of 1983), is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.