An Exposition of Section 3(2) of the Foreigners Act, 1946

An Exposition of Section 3(2) of the Foreigners Act, 1946: Powers, Scope, and Judicial Scrutiny

Introduction

The Foreigners Act, 1946 (hereinafter "the Act") is a pivotal piece of legislation in India that confers upon the Central Government extensive powers to regulate the entry, presence, and departure of foreigners. At the heart of these powers lies Section 3, particularly sub-section (2), which enumerates specific types of orders the Central Government can issue. This article aims to provide a comprehensive analysis of Section 3(2) of the Foreigners Act, 1946, by examining its legislative contours, judicial interpretations by Indian courts, its constitutional validity, the mechanism of delegation of these powers, and its interplay with other relevant statutes. The analysis will draw strictly upon the provided reference materials, reflecting the development and application of this significant legal provision in Indian jurisprudence.

The definition of a "foreigner" under the Act is crucial for its application. Initially, under the 1946 Act, a foreigner was defined in relation to British nationality laws.[6, 11] However, this definition was amended with effect from January 19, 1957, by Act 11 of 1957, to mean "a person who is not a citizen of India."[8, 9, 10, 11, 15] This amended definition forms the basis for the exercise of powers under Section 3(2).

Legislative Framework of Section 3

General Powers under Section 3(1)

Section 3(1) of the Foreigners Act, 1946, grants the Central Government broad authority. It stipulates that "The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating, or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein."[8, 10, 12, 13, 17] This general power provides the overarching framework for the specific powers detailed in sub-section (2).

Specific Powers Enumerated in Section 3(2)

Section 3(2) particularizes the orders that can be made without prejudice to the generality of the powers conferred by sub-section (1).[10, 12] These include provisions that a foreigner:

  • (a) shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;[13]
  • (c) shall not remain in India or in any prescribed area therein;[8, 10, 11, 15, 17, 21] This clause forms the basis for orders of expulsion or deportation.
  • (cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India;[10, 18, 22]
  • (d) shall remove himself from India in such manner, by such time and by such route as may be specified in the order;[10, 18, 22]
  • (e) shall comply with such conditions as may be prescribed or specified, including:
    • (i) requiring him to reside in a particular place;[6, 7, 12, 20]
    • (ii) imposing any restrictions on his movements;[6, 7, 12, 20]
    • (iii) prohibiting him from association with persons of a prescribed or specified description;[6, 7]
    • (iv) prohibiting him from engaging in activities of a prescribed or specified description;[6, 7]
    • (v) prohibiting him from using or possessing prescribed or specified articles;[6, 7]
    • (vi) otherwise regulating his conduct in any such particular as may be prescribed or specified;[6, 7]
  • (f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of any or all prescribed or specified restrictions or conditions;[6, 10, 13, 18, 22]
  • (g) shall be arrested and detained or confined;[7, 10] This clause was reportedly introduced in 1962.[7]

Section 3(3) further provides that "Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) or clause (f) of sub-section (2)."[7] Another reference indicates Section 3(3) allows a prescribed authority to make orders under clause (c) or (f) of sub-section (2).[10]

Judicial Interpretation and Application of Section 3(2)

Nature and Scope of Powers

The Supreme Court has affirmed the government's extensive, and sometimes termed "absolute," power to expel foreigners.[2, 5] This power is seen as an inherent attribute of sovereignty. The distinction between expulsion under the Foreigners Act and extradition has been clarified, with expulsion not being contingent upon criminal liability but rather on the regulation of a foreigner's presence.[1]

Orders under Section 3(2)(c) - Expulsion and Deportation

Clause (c) of Section 3(2), empowering the government to order that a foreigner "shall not remain in India," is frequently invoked for expulsion. The Supreme Court in Union Of India & Others v. Ghaus Mohammad (1961) dealt with an order under this clause, emphasizing that the question of whether a person is a foreigner is fundamental.[15] While the government has wide discretion, the High Court in that case initially observed that there must be "prima facie material" for such an order.[15] The vires of Section 3(2)(c) were challenged in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta (1955) on the ground that it offended Article 14 of the Constitution, but the challenge was repelled.[21] The power to expel foreigners under Section 3(2)(c) is subject to principles of natural justice, though the extent may vary.[5]

Prosecution for breach of an order under Section 3(2)(c) is provided under Section 14 of the Act.[17] The validity of such orders often hinges on the correct determination of an individual's status as a foreigner.[3, 11, 16]

Orders under Section 3(2)(e) - Restrictions on Residence and Movement

Section 3(2)(e) allows the imposition of various conditions on foreigners, including requiring them to reside in a particular place and restricting their movements.[6, 12] The Madras High Court, in cases like Sree Latha v. The Secretary To Government (2007) and Sasikala v. State Of T.N. (2008), has examined whether orders restricting the movement of foreigners to special camps under Section 3(2)(e) amount to preventive detention.[7, 20] These cases often refer to earlier decisions like Kalavathy v. State of Tamil Nadu and Premavathy @ Rajathi v. State of Tamil Nadu, where it was held that orders relating to the residence of foreigners within a special camp did not necessarily amount to detention, a ratio reportedly approved by the Supreme Court.[7, 20]

The contention that Section 3 of the National Security Act, 1980, being a later Act, might impliedly repeal provisions of Section 3(2)(e) of the Foreigners Act concerning detention for regulating movement has also been considered.[7]

Orders under Section 3(2)(g) - Arrest and Detention

Section 3(2)(g) explicitly grants the power to order that a foreigner "shall be arrested and detained or confined."[7, 10] This power is distinct from preventive detention under specific preventive detention laws, although it can be used in conjunction with expulsion proceedings. In Hans Muller, the petitioner was detained under the Preventive Detention Act, 1950, "with a view to making arrangements for his expulsion from India," linking preventive detention to the Foreigners Act.[1, 19] The power under Section 3(2)(g) itself provides a direct mechanism for detention under the Foreigners Act.

Determination of "Foreigner" Status

The exercise of any power under Section 3(2) is predicated on the individual concerned being a "foreigner." As established in State Of U.P v. Rehmatullah (1971), the question of whether an Indian citizen has lost citizenship and acquired foreign nationality must be determined by the Central Government under Section 9(2) of the Citizenship Act, 1955, before they can be treated as a foreigner and prosecuted under the Foreigners Act.[3, 14] The mere possession of a foreign passport does not automatically result in the loss of Indian citizenship without such determination.[3]

Constitutional Validity and Safeguards

The powers under the Foreigners Act, including Section 3(2), have faced constitutional challenges. In Hans Muller, the Supreme Court upheld the validity of detention for expulsion and the related provisions against challenges based on Articles 14, 21, and 22 of the Constitution.[1] The Court recognized that while Article 21 (Protection of Life and Personal Liberty) is available to foreigners, certain rights like those under Article 19(1)(d) and (e) (freedom of movement and residence) are generally restricted to citizens.[4, 5] The "reasonable classification" test under Article 14 has been applied to justify differential treatment of foreigners.[1]

Procedural fairness, a component of natural justice, is expected in the application of these powers. For instance, in Louis De Raedt v. Union of India And Others (1991), it was noted that the power to expel under Section 3(2)(c) requires adherence to principles of natural justice.[5] Similarly, in State of Arunachal Pradesh v. Khudiram Chakma (1993), while dealing with eviction, the Court emphasized the importance of natural justice principles like the right to a hearing.[4]

Delegation of Powers under Section 3(2)

The Central Government can delegate its functions under the Foreigners Act. The Supreme Court in Anwar v. State Of J. And K. (1970) and the Gauhati High Court in Amena Khatun (2018) referred to the Ministry of Home Affairs Notification S.O. 590, dated April 19, 1958.[18, 22] This notification, issued under Article 258(1) of the Constitution, entrusts to the governments of various States the functions of the Central Government in making orders of the nature specified in clauses (c), (cc), (d), (e), and (f) of sub-section (2) of Section 3 of the Foreigners Act, 1946, and under the Foreigners Order, 1948.[18, 22] This delegation is subject to conditions, including compliance with Central Government directions and the Central Government retaining the power to exercise these functions itself.[18]

It has been noted that while powers under Section 3(2)(a) to (f) have been delegated, the power under Section 3(2)(g) (arrest and detention), introduced in 1962, has not been subsequently delegated in the same manner.[7]

Interplay with Other Laws

The powers under Section 3(2) of the Foreigners Act often interact with other statutes:

  • Preventive Detention Act, 1950: As seen in Hans Muller, preventive detention laws could be used to detain foreigners with a view to making arrangements for their expulsion under the Foreigners Act.[1, 19]
  • Citizenship Act, 1955: The determination of a person's status as a foreigner, particularly if they claim prior Indian citizenship, is governed by the Citizenship Act, primarily Section 9.[3, 5, 14] This determination is a prerequisite for action under the Foreigners Act.
  • National Security Act, 1980: The relationship between detention powers under the Foreigners Act (specifically Section 3(2)(e) restrictions amounting to detention) and the National Security Act has been a subject of judicial consideration.[7]
  • Foreigners Order, 1948: This Order, made under Section 3 of the Foreigners Act, prescribes various rules and procedures. For example, Clause 11 of the Foreigners Order allows a "civil authority" to direct a foreigner to comply with conditions regarding residence and movement.[4, 7, 18, 22]

The Supreme Court in Sarbananda Sonowal v. Union Of India And Another (2005), while striking down the Illegal Migrants (Determination by Tribunals) Act, 1983, reaffirmed the applicability and efficacy of the Foreigners Act, 1946, including its provisions under Section 3, for dealing with illegal migrants.[2, 10]

Conclusion

Section 3(2) of the Foreigners Act, 1946, vests the Central Government (and its delegates) with a wide array of specific powers to control and regulate the presence of foreigners in India. These powers, ranging from imposing conditions on entry and residence to ordering restrictions on movement, arrest, detention, and expulsion, are fundamental to the state's sovereignty and its ability to manage immigration and national security. Judicial review has played a crucial role in interpreting the scope of these powers, ensuring their conformity with constitutional principles such as Articles 14 and 21, and emphasizing the need for procedural fairness. While the powers are extensive, the courts have sought to balance the state's authority with the rights available to foreigners under the Indian Constitution. The delegation of these powers to State Governments underscores the cooperative federalism involved in their implementation. Section 3(2) thus remains a cornerstone of India's legal framework for the administration of foreign nationals within its territory.

References