The Foreigners Act
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THE FOREIGNERS ACT, 1946

(Act No. 31 of 1946)l

An Act to confer upon the Central Government certain powers in respect of foreigners

[23rd November, 1946]

Whereas it is expedient to provide for the exercise by the Central Government of certain powers in respect of the entry of foreigners into 2[India], their presence therein and their departure therefrom;

It is hereby enacted as follows:

STATEMENT OF OBJECTS AND REASONS OF ACT 31 OF 1946

"At present the only permanent measures governing foreigners specifically are the Registration of Foreigners Act of 1939 and the Foreigners Act, 1864. The Act of 1939 provides for the making of rules to regulate registration of foreigners and formalities connected therewith, their movement in or departure from India. The Act of 1864 provides for the expulsion of foreigners and their apprehension and detention pending removal and for a ban on their entry into India after removal; the rest of the Act which provides for report on arrival, travel under a licence and certain incidental measures can be enforced only on the declaration of an emergency. The powers under this Act have been found to be ineffective and inadequate both during normal times and during an emergency.

The needs of the war emergency were met by the enactment of a Foreigners Ordinance in 1939 and the promulgation under it of the Foreigners Order and the Enemy Foreigners Order. Even at that time the need for more satisfactory permanent legislation was recognised but it was decided to postpone consideration of such a measure until after the war. The Ordinance was, therefore, replaced by the Foreigners Act, 1940, the life of which was to expire on the 30th September, 1946, but has recently been extended by the Foreigners Act (Amendment) Ordinance, 1946, up to the 25th March, 1947.

Meanwhile the question of permanent legislation, more or less on the lines of the Act of 1940 has been examined, in consultation with the Provincial Governments. All Provincial Governments agree that such permanent legislation in repeal of the Act of 1864, is necessary. The Bill in the main reproduces the provisions of the Foreigners Act of 1940".3

STATEMENT OF OBJECTS AND REASONS OF ACT 42 OF 1962

In view of the present emergency, it is necessary that powers should be available to deal with any person not of Indian origin who was at birth a citizen or subject of any country at war with, or committing external aggression against India or of any other country assisting the country at war with or committing such aggression against India but who may have subsequently acquired Indian citizenship in the same manner as a foreigner. It is also necessary to take powers to arrest and detain and confine

 

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1.                 Vide Gazette of India, 1946, Pt.V,p.361.

2.                Subs, by Act 38 of 1947, for the words "British India" (w.e.f. 15th December, 1947).

3.                 Published in the Gazette of India, 1946 Pt. V,p. 361.

 

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these persons and the nationals of all such countries under the Foreigners Act, 1946, should such need arise.

2. Since the Parliament was not in session and immediate action had to be taken in the interest of national security an Ordinance called the Foreigners Law (Application and Amendment) Ordinance, 1962, was promulgated on 30th October, 1962, to take the above powers. The object of the Bill is to convert this Ordinance into an Act of the Parliament.1

COMMENTS

Objects and reasons.—Though reference to the Statement of Objects and Reasons cannot be made as an aid to interpretation or for ascertaining the meaning of a particular word or words in a statute, nevertheless it is permissible to refer to the Objects and Reasons for the correct appreciation of—

(i) what was the law before the Act was passed; (it) what was the mischief or defect for which the law had not provided;

(iii) what remedy the Legislature had appointed; and

(iv) the reasons for the remedy.2

Interpretation of statute.—The objects and reasons of the Act should be taken into consideration in interpreting the provisions of the statute in case of doubt.3

Object of the Act.—In the words of K.K. Desai, J., in Bawalkhan Zelanikhanv. B.C. Shah,4 the object of the Act appears to be provided for prescribing, regulating and restricting amongst other things the presence and continued presence of. a foreigner in India. What appears to have been intended is to confer power on the executive authority to prescribe and specify conditions for continuance of a foreigner in India. Extremely wide kind of or unlimited restrictions and prohibitions and regulations can be validly prescribed and specified. The Legislature intended to give widest possible powers to the Government for obvious reasons. A foreigner is not entitled to any guarantees or fundamental rights as a citizen is entitled to under the Constitution. A foreigner can be dangerous to security of India. His presence may be undesirable for any reason of any kind and it appears to have been intended by the Legislature to leave the whole matter of the foreigners' presence in India to the executive discretion of the Government. The provisions as contained in Sec. 3 make this object of the Act abundantly clear. The last words in sub-section (2) of Sec. 3 of the Act show wide character of the powers intended to be conferred on the Government. The power is given to make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters which may be deemed expedient to or necessary by the Government for giving effect to the Act.5

 

 

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1. Published in the Gazette of India, Extraordinary, Pt. II, Sec. 2, dated 13th November, 1962.

1.                  State of Sikkimv.Palden Bhutia, 1981 Cr. L.J. 695atp. 701; Bihar Chamber of Commerce v. State of
Bihar, A.I.R. 1995 Pat. 144.

2.                   Doypack Systems Pvt. Ltd. v. Union of India, A.I.R. 1988 S.C. 782 at p. 797; Ravi Shankar Sharma
v. State, A.I.R. 1993Raj. 117 at p. 121;HotelBabajiv.StateofA.P.,A.I.R. 1993S.C. 1048; Sulochana
Amma v. Narayanan Nair, A.I.R. 1994 S.C. 152 at. p. 156; Central Coal Field Ltd. v. Bhardwaj
Construction Company, 1994 (l)B.L.J. 258 at p. 262; Union of India
v. Elphinstone Spinning and
Weaving Co. Ltd., J.T. 2001 (1) S.C. 536 at p. 556.

4.    A.I.R. 1960 Bom. 27: 61 Bom. L.R. 993.
5.
       Consul's Law of Foreigners.p.2.

 

 

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"Includes".—The word "includes" is generally used in interpretative clauses of a statute in order to enlarge the meaning of the words or phrases occurring in the body of the statute.

It is well settled that whenever the Legislature uses certain terms or expression of well-known legal significance or connotation the Courts must interpret them as used or understood in the popular sense.2

Though generally a command in negative form is construed as mandatory, yet the principle is not without exception, and, decided cases are not wanting where, though expressed in negative terms, the provision has been construed to be directory only.3 Thus the rule that the negative words are usually mandatory, is like any other rule subordinate to the context, and the object intended to be achieved by the particular enactment.4

Construction of a statute.—It is a well-settled canon of construction that a statute has to be read, as a whole and a harmonious meaning in consonance with the other provisions has to be given to each section. Where two constructions are possible, the one which is likely to lead to the possibilities of such anomalous results is necessarily to be avoided.5

1.         Short title and extent.—(1) This Act may be called the Foreigners Act,
1946.

(2) It extends to the whole of 6[India] 7[* * *].

COMMENT

The Act has been made applicable to Goa, Daman and Diu (w.e.f. 19th December, 1962),8 Dadra and Nagar Haveli (w.e.f. 1st July, 1965),9 Pondicherry10 and the State of Sikkim (w.e.f. 1st February, 1976)n

2.         Definitions.—In this Act,—

12[(a) "foreigner" means a person who is not a citizen of India;

13[ *       *          *          *          *   * ]

(b)   "prescribed" means prescribed by orders made under this Act;

(c)   "specified"   means  specified  by  direction  of a  prescribed
authority.;

COMMENTS   This section defines the various terms used in the Act.

 

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1.         Neelam Wines, Hyderabad v. Commissioner of Police, Chatta Bazar, Hyderabad, A.l.R. 1981 A.P. 191
at p. 194; P. Kiasilingarn v. P.S.G. College of Technology, A.I.R. 1995 S.C. 1395 at p. 1400.

2.        Kumari Sonia Bhatia v. State ofU.P., A.I.R. 1981 S.C. 1274 at p. 1278: Indian Aluminium Co. Ltd.
v. State of Bihar, 1994 (1) P.L.J.R. 122 at p. 147.

3.        Biswanath Khemka v. Emperor, A.I.R. 1945 F.C. 67.

4.         Zaheer Ahmad, Bhopal v. Hon'ble Kuladhipati, Bhopal University, Bhopal, A.I.R. 1984 M.P. 26 at p.
30; K.L. Varadarajan v. Official Liquidator Representing Mopeds India Ltd., (2001) 40 C.L.A.
26atp.33(A.P.).

5.         Chet Ram v. Amin Lai, A.I.R. 1983 Punj. 50 at pp. 54, 55; Union of India v. Harnam Singh, (1993)
2 S.C.C. 162 at p. 171; Gauri Shankar Gaur v. State ofU.P., A.I.R. 1994 S.C. 169 at p. 177; S.B.I.
Staff Association
v. Election Commission of India, (1994) B.L.J.R. 128 at p. 142; Baljeet Singh v.
Election Commissioner of India, A.I.R. 2001 Delhi 1 at p. 7.

6.        Subs, by Act 38 of 1947, for the words "British India" (w.e.f. 15th December, 1947).

7.        The words "except the State of Hyderabad" ins. by the Adaptation of Laws Order, 1950, were omitted
by the Part B (States) Laws Act, 1950 (3 of 1951) (w.e.f. 1st April, 1951).

8.                   Vide Regn. 12 of 1962.

9.        Vide Regn. 6 of 1963.

10.      Vide G.S.R. 1557 of 1962.

11.      Vide S.O. 208 (E), 75 dated 16th May, 1975.

12.      Subs, by the Foreigners Laws (Amendment) Act, 1957 (Act 11 of 1957), for sub-clauses (i) to (ii) of
CI. (a) (w.e.f. 19th January, 1957).

13.      Clause (aa) ins. by A.0.1950, omitted by Act 3 of 1951, Sec. 3 and Schedule (w.e.f. 1st April, 1951).

 

 

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Distinction between "repeal" and "amendment".—It is a matter of legislative practice to provide while enacting an amending law, that an existing provision be deleted. Such detection has the effect of repeal. There is no real distinction between "repeal" and an "amendment".1

In the case reported in State of Uttar Pradesh v. Mohammad Yasin,2 Mohammad Yasin entered India on 15th of October, 1953, on the strength of a Pakistani passport, dated 2nd of October, 1953, and an Indian category C. visa, dated 7th of October, 1953, which was to remain valid up to 6th January, 1954. He, however, continued to stay in India even beyond that period without getting the prescribed period extended in a proper manner. Consequently he was arrested on 20th July, 1962 at 10 a.m. in city of Bareilly and was sent up for trial for having contravened para. 7 of the Foreigners Order, 1948, by his over-stay and thus having made himself punishable under Sec. 14 of the Act.

At the trial the opposite-party pleaded not guilty to the charge. His case was that he was an Indian national having been born in India and had gone to Pakistan for a short time on disturbed condition in this country. He did not, however, state as to when he had gone to Pakistan from this country. He produced two persons in support of his case both of whom have stated that he had left India in 1950.

The learned Magistrate on the basis of defence evidence held that as the opposite-party had crossed over to Pakistan in the year 1950 he continued to be an Indian national because the question of his having lost the Indian citizenship had not been decided in accordance with Citizenship Act, 1955. He, therefore, acquitted him. On appeal against acquittal the High Court held that the acquittal could not be disturbed. The learned Judge observed:

"It is no doubt true that in his visa the opposite-party has mentioned his time of migration as the year 1949 and in his statement before the Court also he did not assert that he had migrated from this country after the enforcement of the Constitution. In fact of the admission made by him in his visa, the testimony of his two witnesses that he had left India for Pakistan in 1950, was not such on which any reliance could be safely placed. There is, however, another reason on account of which acquittal cannot be disturbed in this appeal.

"The opposite-party admittedly entered India in the year 1953. According to the definition of a foreigner as it stood in the Act of (in?) 1953, before the amendment of 1957, any person born within His Majesty's dominion and allegiance was a citizen of India. Therefore it must be held that on the date of entry in this country even on a Pakistani passport, opposite-party was a citizen of this country. The amending Act which effected a change in the definition of a 'foreigner' came into force from 19th January, 1957. Therefore, although he could not be convicted for an act done by him before the amendment on the basis that he was a foreigner, such as, his entry in India and overstaying here, he could be convicted after 19th January, 1957, for disobeying any order, or condition issued to him under the provisions of the Foreigners Act, as it stood after the amendment. In other words, if after 19th January, 1957, an order has been served on him by the authorities directing him to leave India within a certain period and if he had contravened that order, it can be said that because of the amendment in the Act he had become a

 

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1.                   Bhagwat Ram Sharma v. Union of India, A.l.R. 1988 S.C. 740 at p. 746.

2.        A.l.R. 1967 All. 320 at pp. 320,321.

 

 

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foreigner and had contravened an order passed in pursuance of the Act, and as such he was punishable under Sec. 14 of the Act.1 In this case, however, there is no evidence that any order has been passed by the authorities after 19th January, 1957, directing the opposite-party to leave India within a particular period. In the circumstances the question of contravention of any order under the Act which can be punished under Sec. 14 does not arise.

"It may be noticed here, that as has been indicated earlier, the opposite-party was not a foreigner on the date of his entry in this country. Paragraph 7 of the Foreigners Order, 1948, did not apply to him and therefore no question of any contravention of that order arises in the case. It will be, however, open to the authorities to serve an order in accordance with law on the opposite-party for leaving the country and to prosecute him if necessary for the contravention of that order."

3. Power to make orders.—(1) The Central Government may, by order,2 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.

(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner,—

(a)    shall not enter 3 [India] or shall enter 3 [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;

(b)    shall not depart from 3[India], or shall depart only at such times
and by such route and from such port or place and subject to the
observance of such conditions on departure as may be prescribed;

(c)  shall not remain in 3[India] or in any prescribed area therein;
4[(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 and of his maintenance therein pending such removal;]

(d)     shall remove himself to, and remain in, such area in 3[India] as
may be prescribed;

(e)      shall comply with such conditions as may be prescribed or
specified:—

(i) requiring him to reside in a particular place, (ii) imposing any restrictions on his movements, (Hi) requiring him to furnish such proof of his identity and to     report such particulars to such authority in such manner and at such time and place as may be prescribed or specified,

(iv) requiring him to allow his photograph and finger-impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified.

 

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1.                  Fateh Mohammad v. Delhi Administration, A.I.R. 1963 S.C. 1035.

2.        For Foreigners Order, 1948, refer Gazette of India, 1948, Ft. I, p. 198.

3.        Subs, by Act 38 of 1947, Sec. 2, for the words "British India" (w.e.f. 15th December, 1947).

4.        Added by Sec. 4, ibid., (w.e.f. 15th December, 1947).

 

 

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(v) requiring to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified,

(vi) prohibiting him from association with persons of a prescribed or specified description .

(vii) prohibiting him from engaging in activities of a prescribed or specified description.

(viii) prohibiting him from using or possessing prescribed or specified articles,

(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified.

(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;

l[(g) shall be arrested and detained or confined;]

and may make provision 2[for any matter which is to be or may be prescribed and] for such incidental and supplementary matters as may in the opinion of the Central Governments, be expedient or necessary for giving effect to this Act.

[(3) Any authority prescribed in this behalf may with respect to any particular foreigner make order under Cl. (e) 3[or Cl. (f)] of sub-section (2).]

COMMENTS

Scope.—There is a duty cast upon the authorities to decide whether the petitioner should not be permitted to stay in India because of the fact that he happened to be foreigner. That duty to decide carries with it the duty to act fairly. The concept of fairness dictates that the authorities can proceed against the person concerned only after giving him notice and opportunity of being heard, as regards the statutory grounds on which the action contemplated by the statute is proposed to be taken. Admittedly, that was not done in the instant case, The powers or functions contemplated under Sec. (2) (c) of the Foreigners Act, may not be Judicial or quasi-Judicial. They may be considered to be administrative. Still, the cult of fairness in decisional process demands that the authority can proceed only after observing the basic principles of natural justice. Therefore, in the instant case, it was held that the order under Sec. 3 (2) (c) was bad for the reason that it was violative of the principles of natural Justice.4

The Central Government has taken the stand that the decision is to be taken by the State Government as the power under Sec. 3 (2) (c) and (d) of the Foreigners Act, 1946 has been entrusted to the State Government. The State Government, though a party has adopted an attitude of "total unconcern". UNHCR inspite of tall claims, in the instant case, except issuing a refugee certificate, has done nothing.

In absence of relevant material and consideration by the concerned authorities the only direction which can be given in the present case is to ask the said authorities to consider the petitioner's case in right perspective from the humanitarian point of view.5

 

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1.              Ins. by Act 42 of 1962, Sec. 3 (w.e.f. 24th November, 1962).

2.              Added by Act 38 of 1947, Sec. 4 (w.e.f. 25th December, 1947).

3.              Subs, by Act 11 of 1957, Sec. 3, for "Cl. (f) or Cl. (g)" (w.e.f. 19th January. 1957.).

4.              P. Mohammad Khan v. State ofAndhra Pradesh (1978) 2 Andh,. W.R. 408 at p. 429; FredHoward
Hearing
v. State ofH.P., A.I.R. 1996 H.P. 27 at p. 36; Gilles Pfeiffer v. Union of India, A.I.R. 1996
Mad. 322.

5.              Ktaer Abbas Habib Ali Qutaifi v. Union of India, 1999 Cr.L.J. 919 at p. 927 (Guj.)

 

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Validity of order restricting the movement of a foreign national.—A foreign national though entitled to equality before the law and the equal protection of the laws guaranteed by Art. 14 of the Constitution, is not entitled to the protection of the fundamental rights guaranteed by Art. 19 (1) (d) and (e) that is, the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, as they are rights reserved for Indian citizens. On the other hand, Cl. 22 of the Foreigners Order empowers the civil authority appointed by the Central Government to direct by order in writing that any foreigner shall comply with such conditions as may be specified by the order in respect of his place of residence and his movements, Clause II gives very wider power to the civil authority but it goes without saying that the wider power vested in the executive the greater the circumspection with which it must be exercised. Though Cl. 11 gives wide power to the civil authority, it does not mean that the power can be exercised arbitrarily or mala fide like all other discretionary powers vested by statute in the executive it must be exercised honestly and in good faith. Arbitrariness and bad faith are the very antithesis of equality before the law and the equal protection of the laws.

Appointment of civil authorities by State Government for affecting arrest and detention.—Section 2 of the Foreigners" (Internment) Order, 1962, defines civil authority as the civil authority appointed under para. 2 of the Foreigners Order 1948 and Sec. 5 of the aforesaid order invests " civil authority" of the area to arrest or cause to be arrested any Pakistani national or other foreigner. It is, therefore, obvious that the appointment of the civil authority by the State Government under the Foreigners Order, 1948, is valid having been made in exercise of the power delegated to it by the Central Government and the "civil authority" so appointed is also the "civil authority" for the purposes of the Foreigners (Internment) Order, 1962, and the power of arrest which he exercises in respect of the foreigners and Pakistani national is a power which has been vested in him by the Foreigners' (Internment) Order, 1962. Therefore, the fact that when the Government of India entrusted its functions to the State Government in respect of the Foreigners' Act, 1946 and the Foreigners (Internment) Order, 1962, sub-clause (g) of Sec. 8 of the Foreigners Act, was then not in existence, is not of any significance.2

The President has under Art, 258, Lawfully entrusted Inter alia to the Government of Jammu and Kashmir the function of the Central Government under Sec. 3 (2) (c), fdj, (e) and (fl of the Foreigners Act.3

Power of sovereign State to expel aliens.—It is well settled that every sovereign State has a power to expel aliens from its territories. The question of expulsion properly speaking is one of Municipal and not International law.4

Citizenship—Plea for grant of—Refused.—A Pakistani citizen visits India twice on Pakistani passport and then prays for Indian Citizenship, Such request was refused and he was directed to leave India by an order issued under Sec. 3 (2) (c). A writ-petition was filed alleging that the order was bad. Having gone through the entire materials on record and looking to the provisions of law the Court did not find any merit in the writ-petition.

 

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1.                  Vincent Ferrer v. District Revenue Officer, Anantpur, A.I.R. 1974 A. P. 313 at p. 314.

2.                 Shahadat v. Superintendent, District Jail, Kanpur, A.I.R. 1967 All. 11 at p. 12:1967 A.L.]. 201.

3.        Anwar v. State of Jammu and Kashmir, A.I.R. 1971 S.C. 337.

4.        Rev. Mons Sebastiao Francisco Xavier dos Remedies Monterio ofCardolim v. State, A.I.R. 1968 Coa
17 at p. 28.

 

 

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The Court held that the petition appeared to be thoroughly misconceived and speculative. The writ-petition was accordingly rejected with costs.l

A foreign national cannot automatically be deemed to be an Indian citizen without complying with the procedure established by law.2

Right to file petition.—Dealing with the question of locus standi first, it shall be noticed that petitioner is none other than father of undertrial Kanwar Singh and obviously, father-in-law of Kulbir Kaur and grand father of Ranbir Singh. The persons, for whom the reliefs indicated above have been asked for, are admittedly in judicial lock-up. In the very nature of things, it is not possible for them to contact lawyers nor is it possible for lawyers to go to jail and contact them time and again due to their busy professional engagements. It is also well knwn that from time to time various kinds of pleadings are necessitated and it becomes very difficult, if not impossible, to obtain the signatures or thumb impressions of those who are detained in jail. In these circumstances, a person who is vitally interested in the welfare of those, who are detained in jail, in view of the Court would have every locus standi to ask for the reliefs as have been asked in the present writ.3

[3-A. Power to exempt citizens of commonwealth countries and other persons from application of Act in certain cases.—(1) The Central Government may by order, declare that all or any of the provisions of this Act or any order made thereunder shall not apply, or shall apply only in such circumstances or with such exceptions or modifications or subject to such conditions as may be specified in the order, to or in relation to—

(a)  the citizens of any such commonwealth country as may be so
specified; or

(b)  any other individual foreigner or class or description of
foreigner.

(2) A copy of every order made under this section shall be placed on the table of both Houses of Parliament as soon as may be after it is made.]

4. Internees.—5( 1) Any foreigner (hereinafter referred to as an internee) in respect of whom there is in force any order made under Cl. (g) of sub-section (2) of Sec. 3, directing that he be detained or confined, shall be detained or confined in such place and manner, and subject to such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline as the Central Government may from time to time by order determine.

(2) Any foreigner (hereinafter referred to as a person on parole) in respect of whom there is in force an order under Cl. (e) of sub-section (2) of Sec. 3 requiring him to reside at a place set apart for the residence under supervision of a number of foreigners, shall while residing therein be subject to such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline as the Central Government may from time to time by order determine.

 

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1.                  Mohd. Ishaaue v. Deputy Commissioner, (1988) 231.J.R. 237 at p. 241 (Cal.).

2.        Akbar v. Union of India, 86 (2000) D.L.T. 672 at p. 674 (Delhi).

3.                  Dildar Singh v. State of Punjab, 1995 (1) Crimes 29 at p. 32 (P.& H.).

4.                  Added by Act 11 of 1957, Sec. 4 (w.e.f. 19th January, 1957).

5.        Deleted by Act 11 of 1957 and Ins. by Act 42 of 1962, Sec. 3 (w.e.f. 24th November, 1962).

 

 

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1 [(3) No person shall—

(a)  knowingly assist an internee or a person on parole to escape
from custody or the place set apart for his residence, or knowingly
harbour an escaped internee or person on parole, or

(b)   give an escaped internee or person on parole any asistance with
intent thereby to prevent, hinder or interfere with the apprehension of
the internee or the person on parole.

(4) The Central Government may, by order, provide for regulating access to, and the conduct of persons in, places in India where internees or persons on parole are detained or restricted, as the case may be, and for prohibiting or regulating the despatch or conveyance from outside such places to or for internees or persons on parole therein or such articles as may be prescribed.]

COMMENT

An alien—Have not permanent abode.—It is well settled that an alien cannot have a right of permanent abode in India. In Louis Raedt v. Union of India,2 it was held that the Fundamental right of the foreigner is confined to Art. 21 and does not include the right to reside and settle in this country. In Hans Mutter ofNurenburg v. Superintendent, Presidency Jail, Calcutta,3 the Supreme Court held that the power of the Government of India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion.4

5. Change of name.—(1) No foreigner who was in 5[India] on the date on which this Act came into force shall, while in 5[India] after that date, assume or use or purport to assume or use for any purpose any name other than that by which he was ordinarily known immediately before the said date.

(2)         Where, after the date on which this Act came into force, any
foreigner carries on or purports to carry on (whether alone or in association
with any other person) any trade or business under any name or style, other
than that under which that trade or business was being carried on
immediately before the said date, he shall, for the purposes of sub-section
(1), be deemed to be using a name other than that by which he was ordinarily
known immediately before the said date.

(3)         In relation to any foreigner who, not having been in 5[India] on the
date  on which  this Act  came  into  force,  thereafter enters  5[India],
sub-sections (1) and (2) shall have effect as if for any reference in those
sub-sections to the date on which this Act came into force there were
substituted a reference to the date on which he first enters 5[India]
thereafter.

(4)         For the purposes of this section,—

 

(a)     the expression "name" includes a surname, and

(b)     a name shall be deemed to be changed if the spelling thereof is
altered.

 

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1.                  Subs, by Act 42 of 1962, Sec. 3(w.e.f. 24th November, 1962).

2.                  A.I.R. 1991 S.C. 1886.

3.                  A.I.R. 1955 S.C. 367:1955 Cr.LJ. 876.

4.                 Yaro Khan alias Ahmad Shah v. Foreigners Regional Registration Officer, 1999 Cr.LJ. 3861
at p. 3864 (Delhi).

5.                  Subs, by Act 38 of 1947, Sec. 2, for the words "British India" (w.e.f. 15th December, 1947).

 

 

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(5) Nothing in this section shall apply to the assumption or use—

(a)     of any name in pursuance of a 1 [* * *] licence or permission
granted by the Central Government; or

(b)     by any married woman, of her husband's name.

COMMENTS

What is contemplated order under the section.—The emphasis under Sec. 6 (4) is that a foreigner while in India shall not assume or use any other name other than that by which he was ordinarily known. If a foreigner enters into this country, and remains in this country, even for short period, with a known name and he subsequently assumes or uses another name for any purpose without the permission of the Central Government, he will come within Sec. 5 (3). If a foreigner visits this country with a known name and returns to his country and changes his name in his country according to the law and procedure of that country and if he comes again with that assumed name to this country and uses that assumed name, it cannot be said that he had assumed or used the name while he was in this country. What is contemplated under Sec. 5 is that a foreigner shall not change or use any other name other than the name by which he was known previously while he was in this country without the permission of the Central Government.2

Object of introducing Sec. 5.—The object of introducing this section appears to be that the Government should have control over all the foreigners, while in India and if the names are changed the identity of the foreingers may become difficult. The Government in India cannot have any control over any foreigner who has visited this country once to have his name changed in his country according to the law of that country. If a foreigner has lawfully changed his name and comes to this country, it cannot be said he is commiting an offence under Sec. 5 (3). It will cause hardship and inconvenience to any foreigner who comes with his name lawfully changed to expect him to get permission from the Central Government even before landing. How can any foreigner get permission from the Central Government before landing. And the permission will again depend upon the discretion of the Government which may take in some cases considerable time.

A foreigner who changes his name other than the name known and recognized while he is in India, commits the offence contemplated under Sec. 5. It does not apply to a foreigner who changes his name in his country and obtains a passport in that name lawfully and comes to this country with a valid passport.3

Change of name by a foreigner.—Under Sec. 5 of the Foreigners Act what was prohibited was that a foreigner entering into India does not change his name or assume a different name without the permission of the Central Government.

In Bachomal Sadoromal v. Milkhiram Lahrumal,4 Bachomal Sadoromal at no time assumed a different .name than by which he was known before he entered the territories of India. As a partner he declared his name by which he was known under Sec. 4 the partnership would be

 

- - -

1.                   The word "Royal" deleted vide Act 11 of 1957 (w.e.f. 19th January, 1957).

2.                  Darnel Hailey Waloctt v.State, (1968) 1 M.L.R. 229 at p. 245; (1968) M.L.W. (Cr.) 49: A.l.R. 1968
Mad. 349.

3.                   Ibid.

4.         1975M.P.L.).473atp.476.

 

 

- - -


collectively known by a name called the "firm name." Instead of calling the association by individual names of the particulars, the partnership had to be called by a firm name and this was permissible under Sec. 4 of the Act. The partnership here was different entity and it would not be said that Bachomal assumed a name different than by which he was called when he entered into India. It was not the same thing as trading in an assumed name. Thus there is no force in the argument that such an agreement was opposed to Sec. 5 of the Foreigners Act, and was thus against the public policy.

6. Obligations of masters of vessels etc.—(1) The master of any vessel landing or embarking at a port in 1 [India], passengers coming to or going from that port by sea and the pilot of any aircraft landing or embarking at any place in 1 [India], passengers coming to or going from that place by air, shall furnish to such person and in such manner as may be prescribed a return giving the prescribed particulars with respect to any passengers or members of the crew, who are foreigners.

(2)       Any District Magistrate and any Commissioner of Police or where
there is no Commissioner of Police, any Superintendent of Police may, for
any purpose connected with the enforcement of this Act or any order made
thereunder, require the master of any such vessel or the pilot of any such
aircraft to furnish such information as may be prescribed In respect of
passengers or members of the crew on such vessel or aircraft, as the case
may be.

(3)       Any passenger on such vessel or such aircraft and any member of
the crew of such vessel or aircraft shall furnish to the master of the vessel
or the pilot of the aircraft, as the case may be, any information required by
him for the purposes of furnishing the return referred to in sub-section (1)
or for furnishing the information required under sub-section (2).

2 [(4) If any foreigner enters India in contravention of any provision of this Act or any order make thereunder, the prescribed authority may, within two months from the date of such entry, direct the master of the vessel or the pilot of the aircraft on which such entry was effected or the owner or the agent of the owner of such vessel or aircraft, to provide, to the satisfaction of the said authority and otherwise than at the expense of Government, accommodation on a vessel or aircarft for the purpose of removing the said foreigner from India.

(5) The master of any vessel or the pilot of any aricraft which is about to carry passengers from a port or place in India to any destination outside India, or the owner or the agent of the owner of any such vessel or aircarft shall, if so directed by the Central Government and on tender of payment therefor at the current rates, provide on the vessel or aircraft accommodation to such port or place outside India, being a port or place at which the vessel or aircraft is due to call, as the Central Government may specify, for any foreigner ordered under Sec. 3 not to remain in India and for his dependents, if any travelling with him.]

3[(6)] For the purposes of this section—,

faj "master of the vessel" and "pilot of any aircraft" shall include any person authorised by such master or pilot, as the case may be, to discharge on his behalf any of the duties imposed on him by this section;

 

- - -

1.     Subs, vide Act 38 of 1947, for the words "British India" (w.e.f. 15th December, 1947). 1.     Sub-sections (4) and (5) added by Sec. 5 ibid., (w.e.f. 15th December 1947). 3.     Original Sub-section (4) renumbered as sub-section (6) by ibid.

 

 

- - -


(b) "passenger" means any person not being a bonajide member of the crew, travelling or seeking to travel on a vessel aircraft.

COMMENT

Notice for termination of agency—When inadequate.—The counsel for the petitioner submitted that as a shipping agent, the petitioner has civil and criminal liability under Sec. 6 (4) of the Foreigners Act. There is an onerous liability. Even such important obligation were being discharged by the writ petitioner. Under those circumstances, where an agency which had existed for a long number of years is terminated abruptly, the order is bad. As a matter of fact, in the case of a contract of insurances the Privy Council in Sohrabjiv. Oriental Gov. Sec. Life Asce. Co. Ltd.,1 felt that even two-year notice would be inadequate.2

7. Obligation of hotel-keepers and others to furnish particulars.—(1) It shall be the duty of the keeper of any premises whether furnished or unfurnished where lodging or sleeping accommodation is provided for reward, to submit to such person and in such manner such information in respect of foreigners accommodated in such premises, as may be prescribed.

Explanation.—The information referred to in this sub-section may relate to all or any of the foreigners accommodated at such premises and may be required to be submitted periodically or to any specific time or occasion.

(2)         Every person accommodated in any such premises shall furnish
to the keeper thereof a statement containing such particulars as may be
required by the keeper for the purpose of furnishing the information referred
to in sub-section (1).

(3)         The keeper of every such premises shall maintain a record of the
information furnished by him under sub-section (1) and of the information
obtained by him under sub-section (2) and such record shall be maintained
in such manner and preserved for such period as may be prescribed, and
shall at all times be open to inspection by any police officer or by a person
authorised in this behalf by the District Magistrate.

3[(4)] If in any area prescribed in this behalf the prescribed authority by notice published in such manner as may in the opinion of the authority be best adapted for informing the persons concerned so directs, it shall be the duty of every person occupying or having under his control any residential premises to submit to such person and in such manner such information in respect of foreigners accommodated in such permises as may be specified; and the provisions of sub-section (2) shall apply to every person accommodated in any such premises.]

COMMENT

Explanation.—It is now well settled that an explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clasify certain ambiguities which may have crept in the statutory provision.4

 

 

- - -


1.

2.

3. .

4.
(1945) 2 M.LJ. 496.

K.V.P. Sheik Mohammed Rowther and Co. Pvt. Ltd. v. The Shipping Corporation of India (1988) 20

I.}. Reports 20 226 at p. 229 (Mad.).

Added by Act 38 of 1947, Sec. 6 (w.e.f. 15th December, 1947).

S. Sundaram Pillai v. V.R. Pattabiraman, A.I.R. 1985 S.C. 582 at p. 592; Keshavii Ravii & Co v

Commissioner of IT., A.I.R. 1991 S.C. 1806.

 

 

- - -


[7-A. Power to control places frequented by foreigners.—(1) The prescribed authority may, subject to such conditions as may be prescribed direct the owner or person having control of any premises used as a restaurant or as a place of public resort or entertainment or as a club and frequented by foreigners—

(a)      to close such premises either entirely or during specified
periods, or

(b)      to use or permit the use of such premises only under such
conditions as may be specified, or

(c) to refuse admission to such premises either to all foreigners or to any specified foreigner or class of foreigner.

(2)       A person to whom any direction has been given under sub-section
(1) shall not, while such direction remains in force, use or permit to be used,
any other permises for any of the aforesaid purposes, except with the
previous   permission   in  writing  of the   prescribed   authority   and   in
accordance with any condidtions which that authority may think fit to
impose.

(3)       Any person to whom any direction has been given under sub­
section (1) and who is aggrieved thereby may, within thirty days from the
date of such direction, appeal to the Central Government; and the decision
of the Central Government in the matter shall be final.]

COMMENTS

"May".—Normally, the word "may" as used in a statute should be construed as discretionary but in the context of the statutory provision in which the word finds place, it may become necessary to interpret it as mandatory. In State of U.P. v. Jogendra Singh,2 the Supreme Court observed as follows:

"There is no doubt that the word 'may' generally does not mean 'must' or 'shall'. But it is well settled that the word 'may' is capable of meaning 'must' or 'shall' in the light of the context. It is also clear that where a direction is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command."3

"Shall" cannot be interpreted as "may".4

8. Determination of nationality.—(1) When a foreigner is recognized as a national by the law of more than one foreign country or where for any reason it is uncertain what nationality, if any, is to be ascribed to a foreigner, that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected:

Provided that where a foreigner acquired a nationality by birth, he shall, except where the Central Government so directs either generally or in a particular case, be deemed to retain that nationality unless he proves to the satisfaction of the said authority that he has subsequently acquired

 

- - -

1.                  Added vide Act 38 of 1947, Sec. 7 (w.e.f. 15th December, 1947).

2.                 A.I.R. 1963 S.C. 1618.

3.        Sudhira Bala Roy v. Stae of West Bengal, A.I.R. 1981 Cal. 130 at p. 135; Sub-Committee of Judicial
Accountability v. Union of India, A.I.R. 1992 S.C. 320 at p. 352; Umesh Thakur v. State of Bihar,
1994 (1) Pat. L.J.R. 727 at p. 739; Nathu v. Amar Nath Agarwal, A.I.R. 1995 All. 420 at p. 424;
Uchabkanwar v. L.R. of Ram Swamp, A.I.R. 1995 Raj. 209 at p. 211; DinkarAnna Patil v. State
of Maharashtra, A.I.R. 1999 S.C. 152 at p. 159.

4.        Spedra Engineering Corporation v. State of Madhya Pradesh, A.I.R. 1988 M.P. Ill at p. 112.

 

 

- - -


by naturalization or otherwise some other nationality and still recognised as entitled to protection by the Government of the country whose nationality he has so acquired.

(2) A decision as to nationality given under sub-section (1) shall be final and shall not be called in question in any Court:

Provided that the Central Government either of its own motion or on an application by the foreigner concerned, may revise any such decision.

COMMENT

Any Court is not empowered to question about the nationality of a foreigner as determined under the provisions of sub-section (1). The Central Government has, however, power to revise any decision in the matter.

9. Burden of proof.—If in any case not falling under Sec. 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.


10.


]


COMMENTS

The section relating to "Power to exempt from application of Act" deleted by Foreigners Laws (Amendment) Act, 1957.

Repeal.—It is a matter of legislative practice to provide while enacting an amending law, that an existing provision be deleted. Such deletion has the effect of repeal.2

11.     Power to give effect to orders, directions, etc.—(1) Any authority
empowered by or under or in pursuance of the provisions of this Act to give
any direction or to exercise any other 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 securing compliance with such direction or for
preventing or rectifying any breach thereof, or for the effective exercise of
such power, as the case may be.

(2)       Any police officer may take such steps and use such force as may,
in his opinion, be reasonably necessary for securing compliance with any
order made or direction given under or in pursuance of the provisions of
this Act or for preventing or rectifying any breach of such order or direction.

(3)       The power conferred by this section shall be deemed to confer upon
any person acting in exercise thereof a right of access to any land or other
property whatsoever.

12.     Power to delegate authority.—Any authority upon which any power
to make or give any direction, consent or permission or to do any other act
is conferred by this Act or .by any order made thereunder may, unless
express provision is made to the contrary, in writing authorise, conditionally
or otherwise, any authority subordinate to it to exercise such power on its
behalf, and thereupon the said subordinate authority shall, subject to such
conditions as may be contained in the authorisation, be deemed to be the
authority upon which such power is conferred by or under this Act.

 

- - -

1.                   Deleted vide Act 11 of 1957 (w.e.f. 19th January, 1957).

2.        Bhagat Ram Sharma v. Union of India, A.I.R. 1988 S.C. 740 at p. 746; Competent Officer, Gujarat
Housing Board
v. K.B. Parmar, A.I.R, 1993 Guj. 5 at p. 16; Ramesh Singh v. Cinta Devi, 1996 S.C.C.
(Cri.) 457 at p. 469.

 

 

- - -


13.      Attempts, etc. to contravene the provisions of this Act, etc.—(1) Any

person who attempts to contravene, or abets or attempts to abet, or does any act preparatory to, a contravention of the provisions of this Act, or of any order made or direction given thereunder, or fails to comply with any direction given in pursuance of any such order, shall be deemed to have contravened the provisions of this Act.

(2)         Any person who, knowing or having reasonable cause to believe
that any other person has contravened the provisions of this Act or of any
order made or direction given thereunder, gives that other person any
assistance with intent thereby to prevent, hinder or otherwise interfere with
his arrest, trial or punishment for the said contravention shall be deemed
to have abetted that contravention.

(3)         The master of any vessel or the pilot of any aircraft, as the case
may be, by means of which any foreigner enters or leaves 1 [India] in
contravention of any order made under, or direction given in pursuance of,
Sec. 3 shall, unless he proves that he exercised all due diligence to prevent
the said contravention, be deemed to have contravened this Act.

14.      Penalties.—If any person contravenes the provisions of this Act or
of any order made thereunder, or any direction given in pursuance of this
Act or such order, he shall be punished with imprisonment for a term which
may extend to five years and shall also be liable to fine; and if such person
has entered into a bond in pursuance of Cl.
(f) to sub-section (2) of Sec. 3,
his bond shall be forfeited, and any person bound thereby shall pay the
penalty thereof, or show cause to the satisfaction of the convicting Court
why such penalty should not be paid.

COMMENTS

Conviction without determination of citizenship, illegal.—Without determining the citizenship of Imam Illias Illai Bux in accordance with Sec. 9 (2) read with rule 30 to Sch. Ill of the Citizenship Act, the accused cannot be prosecuted or convicted under Sec. 14 of the Foreigners Act. Therefore, the finding of the learned lower Courts that the petitioner has not discharged the burden deserves to be set aside. In view of the matter, the conviction of the accused cannot be sustained.2

In the instant case it was held that the learned Magistrate was obviously in error in saying that there is no sufficient evidence to bring home the guilt of the respondent under Sec. 13 (2) of the Foreigners Act.

If any person attempts to contravene the provisions of the Act of 1946 or any order issued thereunder or abets the contravention, his act falls under Sec. 13 of the Act of 1946, which is punishable under Sec. 14 of the Foreigners Act.4

Prosecution under the Act.—In State v. Abdul Ghani,5 the respondent had entered India in 1954 on the basis of a Pakistani passport which was valid for a period of two months. He did not return back. On 3rd February, 1967, S.I. arrested him for his over-staying in India. It is not disputed that he was originally a resident of village Barauti, P.S. and district Jaunpur, before he migrated to Pakistan. During the pendency of the trial, a

 

- - -

1.                  Subs, vide Act 38 of 1947, for the words "British India" (w.e.f. 15th December, 1947).

2.        Imam illias Illai Bux v. State ofRajasthan, 11-1992 (1) Crimes 525 at p. 526 (Raj.).

3.                 State ofRajasthan v. Wajid AH, 1999 (2) R.C.C. 993 at p. 995.

4.        MohdDeen v. State ofRajasthan, 1999 (2) R.C.C. 1217 at p. 1218 (Raj.).

5.                  (1978) 2 Cr. L.J. 1345 at pp. 1346,1347; State of Gujarat v. Tandel Abu Osman, 1997 (2) Guj.L.R.
1617 at p. 1619 (Guj.).

 

 

- - -


declaration of the Central Government was made under the Citizenship Act by the order dated 14th February, 1969, that the respondent had acquired citizenship of Pakistan after 25th January, 1950. It has, therefore, got to be emphasized that he had not migrated to Pakistan prior to 25th January, 1950. Therefore, it was held that he could not be prosecuted retrospectively for an offence committed in 1954, when he could not be considered to be a foreigner under the definition given in the Foreigners Act. The view taken by the Lower Appellate Court is, therefore, correct.

In State of Uttar Pradesh v. Rahmatullah1 it was pointed out that till the Central Government determined the question of the respondent having acquired Pakistani nationality and had thereby lost Indian nationality he could not be treated as a foreigner and no penal action could be taken against him on the basis of his status as a foreigner, being a national of Pakistan.

Guilt confessed—Penalty justified.—In the instant case, the petitioner has confessed his guilt that he is a Pakistani national and had entered the country without passport. He has, therefore, rightly been convicted by the Trial Court. The petitioner has undergone more than four and half years of imprisonment. Taking all the facts and circumstances into consideration, this sentence is considered sufficient for the offence.2

Penal provision.—Penal Provision is to be construed rigidly.3 The law in its wisdom seeks to punish the guilty who commits the sin and not the person, who is innocent.4

15.        Protection to persons acting under this Act.—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.

16.        Application of other laws not barred.—The provisions of this Act
shall be in addition to, and not in derogation of, the provisions of the
Registration of Foreigners Act, 1939 (16 of 1039), the India Passport Act,
1920 (34 of 1920), and of any other enactment for the time being in force.

17.[Repeals].—[Repealed by the Repealing and Amending Act, 1950 (33 of 1950), Sec. 2 and Sch. I.]

COMMENT

Repeal.—Whenever there is a repeal of an enactment, the consequences laid down in Sec. 6 of the General Clauses Act though it has been specifically mentioned in the repealing Act or not, will follow, unless, as the section itself says, a different intention appears. In the case of a simple repeal, there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.5

- - -

1.                  A.I.R. 1971 S.C. 1382.

2.        Bhoora Khan v. State ofRajasthan, 1998 Cr.L.R. (Raj.) 856 at pp. 856, 857.

3.        Orient Fire and General Insurance Co. Ltd. v.Matias Burla (1985) 60 C.L.J. 257 at p. 260; Antaryami
Patrav. State of Orissa, 1993 Cr.L.]. 1908 at p. 1913 (Orissa); Abhilash V. Jain v. Cox & Kings (India)
Ltd., A.I.R. 1995 S.C. 1592 at p. 1596; Satya Narain Das v. Govt of India, A.I.R. 1995 Orissa 253 at
p. 255; Suman Sethi
v. Ajay K. Churiwal, 2000 (1) R.C.R. (Cr.) 780 at p. 782 (S.C.).

4.        A.S. Sulochaw v. C. Dharmalingam, A.I.R. 1987 S.C. 240 at p. 244.

5.        T. Barai v. Henry Ah. Hoe, A.I.R. 1983 S.C. 150 at p. 156; Competent Officer, Gujarat Housing Board
v. K.B. Parmar, A.I.R. 1993 Guj. 5 at p. 16.

 

 

- - -


THE FOREIGN RELATIONS ACT, 1932

(Act No. XII of 1932)

An Act to provide against the publication of statements likely to prejudice

the maintenance of friendly relations between 1[the Government

of India] and the Government of certain foreign States

[8th April, 1932]

Whereas it is expedient to provide against the publication of statements likely to prejudice the maintenance of friendly relation between 1[the Government of India] and the Government of certain foreign States:

It is hereby enacted as follows:

1.         Short title and extent.—(1)  This Act  may  be  called  the  Foreign
Relations Act, 1932.

2[(2) It extends to the whole of India, except Part B States.]

2.        Power  of  Central  Government  to  prosecute  in  certain  cases  of
defamation.—Where an offence falling under Chapter XXI of the Indian Penal
Code is committed against a Ruler of a State outside but adjoining India,
or against the consort or son or principal Minister of such Ruler, the Central
Government may make, or authorize any person to make, complaint in
writing of such offence, and, notwithstanding anything contained in Sec.
198 of the Code of Criminal Procedure, 1898,3 any Court competent in other
respects to take cognizance of such offence may take cognizance thereof on
such complaint.

Explanation.—4[* * *]

COMMENT

This section empowers the Central Government to prosecute in certain cases of defamation.

3.        Power to forfeit certain publications or to detain them in the course of
transmission through post.—The provisions of Sees. 99-Ato 99-G of the Code
of Criminal Procedure, 1898,3 and of Sees. 27-B to 27-D of the Indian Post
Office Act, 1898, shall apply in the case of any book, newspaper or other
document containing matter which is defamatory of a Ruler of a State
outside but adjoining India or of the consort or son or principal Minister of
such Ruler and tends to prejudice the maintenance of friendly relations
between ^the Government of India] and the Government of such State, in
like manner as they apply in the case of a book, newspaper or document
containing seditious matter within the meaning of those sections:

Provided that for the purposes of this section the said provisions shall be construed as if for the words "Provincial Government" wherever they occur, the words "Central Government" were substituted.

COMMENT

Offence under this Act bears criminal liability and the provisions of Indian Penal Code and Criminal Procedure Code are fully applicable.

3.         Proof of status of persons defamed.—Where, in any trial of an offence upon a complaint under Sec. 2, or in any proceeding before a High Court arising out of Sec. 3, there is a question whether any person is a Ruler of

 

- - -

1.                  Subs, vide A.L.O., 1948.

2.                  Subs, vide A.L.O., 1950.

3.        See now the Code of Criminal Procedure, 1973 (2 of 1974).

4.        Deleted vide A.O., 1937.

 

- - -

 


any State, or is the consort or son or principal Minister of such Ruler a certificate under the hand of a Secretary to the Central Government that such person is such Ruler, consort, son or principal Minister shall be conclusive proof of that fact.

COMMENT

Adjectives.—Adjectives are attractive forensic aids but in matters of interpretation they are diverting intruders.1

 

- - -

1.     Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Ltd., A.I.R. 1983 S.C. 239 at p. 250.

 

- - -

 

THE FOREIGN RECRUITING ACT, 1874 (Act No. 4 of 1874)

An Act to control recruiting in 1 [India] for the service of Foreign States

[24th February, 1874}

Preamble.— Whereas it is expedient that the Central Government should exercise full control over recruiting in 1 [India] for the service of Foreign States; It is hereby enacted as follows:

l.Short title. — This Act may be called the Foreign Recruiting Act, 1 874.

Local extent. — It extends to the whole of India 2[* * *]

2.        "Foreign State" defined.— In this Act,—

"Foreign State" includes any person or persons exercising or assuming to exercise the powers of Government in or over any country, colony, province or people beyond the limits of 4[India].

COMMENTS

Marginal notes. — It is settled law that reference can be made to headings of sections or marginal notes when difficulty arises in interpreting the scope and meaning of a provision.5

It is a well-recognised principle of interpretation of statutes that heading and marginal notes can be looked into for the purpose of ascertainment of the intention of the Legislature.6

3.      Power to prohibit or permit recruiting. — If any person is, within the
limits of l [India], obtaining or attempting to obtain recruits for the service
of any Foreign State in any capacity, the Central Government may, by order
in writing 7[* * *], either prohibit such person from so doing, or permit him
to do so subject to any conditions which the 8 [Central Government] thinks
fit to impose.

4.      Power to impose conditions. — The 8[Central Government] may, from
time to time, by general order notified in the 9 [Official Gazette], either
prohibit recruiting for the service of any Foreign State or impose upon such
recruiting any conditions which 10[it] thinks fit.

5.  Power to rescind or vary orders. — The  8[Central  Government]  may
rescind or vary any order made under this Act in such manner as 10[it]
thinks fit.

 

- - -

1.                   Subs, vide Act 3 of 1951, for "Part A States and Part C States" (w.e.f. 1st April, 1951).

2.         The words "except Part B States" deleted ibid of 1951 (w.e.f. 1st April, 1951).

3.         Rep. by Act 12 of 1876.

4.         Subs, vide A.L.O., 1950, for the words "the Provinces".

5.        Kerala State Housing Board v. E.A. Yusuff, A.I.R. 1984 Kcr. 112 at p. 113; Maharashtra Tubes Ltd.
v. S.I.I. Corpn. of Maharashtra, (1993) 2 S.C.C. 144atp.l58.

6.                  Asiatic Oxygen and Acetylene Company v. Entry Tax Officer, Banitable, A.I.R. 1984 Cal. 140 at p.
142; S.B.J. Staff Association
v. Election Commission of India, 1994 (1) B.L.J.R. 128 at p. 142.

7.                  The words "signed by a Secretary to the Government of India " deleted vide A.L.O., 1937.

8.        Subs, by ibid.,/or the words "Governor-General-in- Council".

9.        Subs, by ibid.,/or the words "Gazette of India".

10.              Subs, by ibid., for the word "he".

 

- - -

 


6.        Offences.—Whoever, in violation of the prohibition of the Central
Government, or of any condition subject to which permission to recruit may
have been accorded,—

(a)    induces or attempts to induce any person to accept or agree to
accept or to proceed to any place with a view to obtaining any commission
or employment in the service of any Foreign State, or

(b)    knowingly aids in the engagement of any person so induced, by
forwarding or conveying him or by advancing money or in any other way
whatever,

shall be liable to imprisonment for a term which may extend to seven years, or to fine to such amount as the Court thinks fit or to both.

COMMENT

The law in its wisdom seeks to punish the guilty who commits the sin and not the person, who is innocent.1

7.        Place of trial.—Any offence against this Act may be inquired into and
tried, as well in any district in which the person accused may be found as
in any district in which it might be enquired into and tried under the
provisions of the Code of Criminal Procedure.2

COMMENT

For violating the provisions of this Act, a person, whether a national of India or a foreigner is liable for prosecution in a criminal Court, and the provisions of the Criminal Procedure code shall be followed in the trial.

 

- - -

1. A.S. Sulochana v. C. Dharmalingam, A.I.R

2.Refer Criminal Procedure Code, 1973 (2 of 1974).

 

 

- - -


THE FOREIGN MARRIAGE ACT, 1969

(Act No. 33 of 1969)1

The following Act of Parliament received the assent of the President on the 31st August, 1969, and is hereby published for general information:

[31st August, 1969]

An Act to make provision relating to marriages of

citizens of India outside India

Be it enacted by Parliament in the Twentieth Year of the Republic of India as follows:

STATEMENT OF OBJECTS AND REASONS OF

ACT 33 OF 1969

This Bill seeks to implement the twenty-third Report of the Law Commission on the law relating to foreign marriages. There is, at present, considerable uncertainty as to the law on the subject, as the existing legislation touches only the fringes of the subject and the matter is governed by principles of private international law which are by no means well settled, and which cannot readily be applied to a country such as ours in which different marriage laws apply to different communities. The Special Marriage Act, 1954 sought to remove the uncertainty to some extent by providing that marriages abroad between citizens of India who are domiciled in India might be solemnised under it.

In the course of the debates in relation to that Act in Parliament, it was urged that a provision should be made for marriages abroad where one of the parties alone is an Indian citizen. In this context, an assurance was given that Government would, after careful consideration, introduce comprehensive legislation on the subject of foreign marriages. The present Bill is the outcome of that assurance.

2. The Bill is modelled on the Special Marriage Act, 1954, and the existing English and Australian Legislation on the subject of foreign marriages, subject to certain important modifications rendered necessary by the peculiar conditions obtaining in our country.

The following are the salient features of the Bill—

(i) It provides for an enabling form of marriage more or less on the same lines as the Special Marriage Act, 1954, which can be availed of outside India where one of the parties to the marriage is an Indian citizen; the form of marriage thus provided being not in supersession of but only in addition to or as an alternative to, any other form that might be permssible to the parties;

(ii) It seeks to lay down certain rules in repsect of capacity of parties and conditions of validity of marriage and also provides for registration of marriage on lines similar to those in the Special Marriage Act, 1954;

(iii) the provisions of the Special Marriage Act, 1954, in regard to matrimonial reliefs are sought to be made applicable, with suitable modifications, not only to marriages solemnized or registered under the proposed legislation, but also to other marriages solemnized abroad to which a citizen of India is a party.2

 

- - -

1.                  Published in the Gazette of India, Extraordinary, Pf. II, Sec. 1, dated 31st August, 1969.

2.                 Published in the Gazette of India, Extraordinary, 1963, Pf. II, Sec. 2.

 

- - -

 


CHAPTER I PRELIMINARY

1.     Short title.—This Act may be called the Foreign Marriage Act, 1969.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) "degrees  of prohibited  relationship"  shall  have  the  same meaning as in the Special Marriage Act, 1954 (43 of 1954);

(b)    "district" in relation to a marriage officer, means the area within
which the duties of his officer are to be discharged;

(c)     "foreign country" means a country or place outside India and
includes a ship which is for the time being in the territorial waters of
such a country or place;

(d)    "marriage officer" means a person appointed under Sec. 3 to be
a marriage officer;

(e)     "official house", in relation to a marriage officer means —

(i) the official house or residence of the officer, (ii) the office in which the business of the officer is transacted, (iii) a prescribed place, and (f) "prescribed" means prescribed by rules made under this Act.

COMMENT

This section defines the various expressions occurring in the Act.

Any ship in the territorial waters of a foreign country is deemed to be a foreign country and the said expression is defined accordingly so as to facilitate solemnization of marriage on board of such ships.

Interpretation of section.—The Court can merely interpret the section; it cannot re-write, re-cast or re-design the section.1

3.        Marriage Officers.—For  the  purposes  of this  Act,   the   Central
Government may, by notification in the Official Gazette, appoint such of its
diplomatic or consular officers as it may think fit to be marriage officers for
any foreign country.

Explanation.—In this section, "diplomatic officer" means an ambassador, envoy, minister, high commissioner, commissioner, charge d'affaires or other diplomatic representative or a counsellor or secretary of an embassy, legation or high commission.

COMMENT

This section empowers the Central Government to appoint diplomatic or consular officers to be marriage officers for any foreign country for the purposes of this Act.

Explanation.—An explanation added to a statutory provision is not a substantive provision in any sense of the term but it is merely meant to explain or clarify certain ambiguities which might have crept in the statutory provision.2

CHAPTER II SOLEMNIZATION OF FOREIGN MARRIAGES

3.  Conditions relating to solemnization of foreign marriages.—A marriage
between parties one of whom at least is a citizen of India may be solemnized
under this Act, by or before a marriage officer in a foreign country, if, at the
time of the marriage, the following conditions are fulfilled, namely:

 

- - -

1.                   State of Kerala v. Mathai Verghese, A.I.R. 1987 S.C. 33 at p. 35; R.S. Sharma v. State, 1993 Lab. 1C.
987 at p. 991 (Raj.); Margadarsi Chit Fund Pvt. Ltd. v. Government ofAndhra Pradesh, (2001)
103 Comp. Cas. 876 at p. 896 (A.P.).

2.                   Keshavji Ravji v. Commr. of IT., A.I.R. 1991 S.C. 1806.

 

 

- - -


(a)   neither party has a spouse living;

(b)   neither party is an idiot or a lunatic;

(c)    the bridegroom has completed the age of twenty-one years and
the bride the age of eighteen years at the time of the marriage; and

(d) the parties are not within the degrees of prohibited relationship:

Provided that where the personal law or a custom governing at least

one of the parties permits of a marriage between them, such marriage may

be  solemnized,  notwithstanding that they are within  the  degrees  of

prohibited relationship.

COMMENT

There are four express conditions in this Act for solemnization of foreign marriage with only one exception.

A proviso has been provided so as to permit a marriage within the degrees of prohibited relationship.

Proviso.—A proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself.1

5.        Notice of intended marriage.—When a marriage is intended to be
solemnized under this Act, the parties to the marriage shall give notice
thereof in writing in the form specified in the First Schedule to the Marriage
Officer of the district in which at least one of the parties to the marriage has
resided for a period of not less than thirty days immediately preceding the
date on which such notice is given, and the notice shall state that the party
has so resided.

COMMENT

The law as codified under this Act requires that in every intending marriage, the parties are required to give a notice to the Marriage Officer in the prescribed form.

6.  Marriage Notice Book.— The Marriage Officer shall keep all notices
given under Sec. 5 with the records of his office and shall also forthwith
enter a true copy of every such notice in a book prescribed for that purpose,
to be called the "Marriage Notice Book", and such book shall be open for
inspection at all reasonable times; without fee, by any person desirous of
inspecting same.

7.      Publication of notice.— Where a notice under Sec. 5 is given to the
Marriage Officer he shall cause it to be published —

 

(a)      in his own office, by affixing a copy thereof to a conspicuous
place, and

(b)      in India and in the country or countries in which the parties
are ordinarily resided, in the prescribed manner.

COMMENT

This section makes provision for publication of marriage notice in India as well in the country of residence of the parties as the marriage is to take place outside India and one of the parties would be an Indian citizen.

8.       Objection to marriage.—(1) Any person may, before the expiration of
thirty days, from the date of publication of notice under Sec. 7, object to

 

- - -

1. S. Sundaram Pillai v. V.R. Pattabirman, A.I.R. 1985 S.C. 582 at p. 591; IF. Ltd. v. C.I. of Factories And Boilers, 1993 (66) F.L.R. 171 at pp. 177 (Orissa); Dr. B. Sudhakar v. Union of India, A.I.R. 1995 A.P. 86 at p. 95; Dileep v. State of Kerala, 2000 (84) F.L.R. 110 at p. 113 (Ker.).

 

 

- - -


the marriage on the ground that it would contravene one or more of the conditions specified in Sec. 4.

Explanation.—Where the publication of the notice by affixation under Cl. (a) of Sec. 7 and in the prescribed manner under Cl. (b) of that section is on different dates the period of thirty days shall for the purposes of this sub-section, be computed from the later date.

(2) Every such objection shall be in writing signed by the person making it or by any person duly authorized to sign on his behalf, and shall state the ground of objection; and Marriage Officer shall record the nature of the objection in his marriage notice- book.

9.        Solemnization of marriage where no objection made.—If no objection
is made within the period specified in Sec. 8 to an intended marriage, then,
on the expiry of that period, the marriage may be solemnized.

10.      Procedure on receipt of objection.—(1) If an objection is made under
Sec. 8 to an intended marriage the Marriage Officer shall not solemnize the
marriage until he has enquired into the matter of the objection in such
manner as he thinks fit and is satisfied that it ought to prevent the
solemnization of the marriage or the objection withdrawn by the person
making it.

(2) Where a Marriage Officer after making any such enquiry entertains a doubt in respect of any objection, he shall transmit the record with such statement respecting the matter as he thinks fit to the Central Government; and the Central Government, after making such further enquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon in writing to the Marriage Officer who shall act in conformity with the decision of Central Government.

11.      Marriage not to be in contravention of local laws.—(1) The Marriage
Officer may, for reasons to be recorded in writing, refuse to solemnize a
marriage under this Act if the intended marriage is prohibited by any law
in force in the foreign country where it is to be solemnized.

(2)         The Marriage Officer may, for reasons to be recorded in writing,
refuse to solemnize a marriage under this Act, on the ground that, in his
opinion, the solemnization of the marriage would be inconsistent with
international law or the comity of nations.

(3)         Where a marriage officer refuses to solemnize a marriage under
this section, any party to the intended marriage may appeal to the Central
Government in the prescribed manner within a period of thirty days from
the date of such refusal, and the Marriage Officer shall act in conformity
with the decision of the Central Government on such appeal.

COMMENT

This section finds place in the Act with a view to ensure that marriage prohibited by any law in force, in the foreign country or marriage appearing to be in contravention of international law or the comity of nations are not solemnized under the Act.

12.        Declaration by parties and witnesses.—Before    the     marriage     is
solemnized, the parties and three witnesses shall, in the presence of the
Marriage Officer, sign a declaration in the form specified in the Second
Schedule, and the declaration shall be countersigned by the Marriage
Officer.

13.        Place and form of solemnization.—(1) A marriage by or before a
Marriage Officer under this Act shall be solemnized at the official house of


the Marriage Officer with open doors between the prescribed house in the presence of at least three witnesses.

(2) The marriage may be solemnized in any form which the parties may choose to adopt:

Provided that it shall not be complete and binding on the parties unless each party declares to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties, "I (A) take the (B), to be my lawful wife (or husband)":

Provided further that where the declaration referred to in the preceding proviso is made in any language which is not understood by the Marriage Officer or by any of the witnesses, either of the parties shall interpret or cause to be interpreted the declaration in a language which the Marriage Officer or, as the case may be, such witnesses understands.

14.      Certificate of marriage.—(1) Whenever a marriage is solemnized
under this Act, the Marriage Officer shall enter a certificate thereof in the
form specified in the Third Schedule in a book to be kept by him for that
purpose and to be called the "Marriage Certificate Book",  and such
certificate shall be signed by the parties to the marriage and the three
witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to the conclusive evidence of the fact that a marriage under this Act has been solemnized, and that all formalities respecting the residence of the party concerned previous to the marriage and the signatures of witnesses have been complied with.

COMMENT

This is a provision for the issue of a marriage certificate which is a conclusive evidence of marriage between the parties.

The word "whenever" means at whatever time or at what time so ever.:

15.      Validity of foreign marriages in India.—Subject     to     the     other
provisions contained in this Act, a marriage solemnized in the manner
provided in this Act shall be good and valid in law.

16.     New notice when marriage not solemnized within six months.—
Whenever a marriage is not solemnized within six months from the date of
notice thereof has been given to the Marriage Officer as required under Sec.
5 or where the record of a case has been transmitted to the Central
Government under Sec. 10, or where an appeal has been preferred to the
Central Government under Sec. 11, within three months from the date of
decision of the Central Government in such case or appeal, as the case may
be, the notice and all other proceedings arising therefrom shall be deemed
to have lapsed, and no Marriage Officer shall solemnize the marriage until
new notice has been given in the manner laid down in this Act.

CHAPTER III

REGISTRATION OF FOREIGN MARRIAGES SOLEMNIZED UNDER OTHER LAWS

17.   Registration of foreign marriages.—(1) Where—

(a) a Marriage Officer is satisfied that a marriage has been duly solemnized in a foreign country in accordance with the law of that country between parties of whom one at least was a citizen of India; and

 

- - -

1.     Mohammad Mustaqueem v. A/tab Ahmad, A.I.R. 1983 All. 368 at p. 370.

 

 

- - -


(b) a party to the marriage informs the Marriage Officer in writing that he or she desires the marriage to be registered under this section; the Marriage Officer may, upon payment of the prescribed fee, register the marriage.

(2)        No marriage shall be registered under this section unless at the
time of registration it satisfies the conditions mentioned in Sec. 4.

(3)        The Marriage Officer may, for reasons to be recorded in writing
refuse to register a marriage under this section on the ground that in his
opinion the marriage is inconsistent with international law or the comity of
nations.

(4)        Where a Marriage Officer refuses to register a marriage under this
section the party applying for registration may appeal to the Central
Government in the prescribed manner within a period of thirty days from
the date of such refusal; and the Marriage Officer shall act in conformity
with the decision of the Central Government of such appeal.

(5j Registration of a marriage under this section be effected by the Marriage Officer by entering a certificate of the marriage in the prescribed form and in the prescribed manner in the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and by three witnesses.

(6) A marriage registered under this section shall, as from the date of registration, be deemed to have been solemnized under this Act.

CHAPTER IV MATRIMONIAL RELIEF IN RESPECT OF

FOREIGN MARRIAGES

18. Matrimonial reliefs to be under Special Marriages Act, 1954.—(1) Subject to the other provisions contained in this section, the provisions of Chapters IV, V, VI and VII of Special Marriage Act, 1954 (43 of 1954), shall apply in relation to marriages solemnized under this Act and to any other marriage solemnized in a foreign country between parties of whom one at least a citizen of India as they apply in relation to marriages solemnized under that Act.

Explanation.—In its application to the marriages referred to in this sub-section, Sec. 24 of the Special Marriage Act, 1954 (43 of 1954), shall be subject to the following modifications, namely:

(i) the reference in sub-section (1) thereof to Cls. (a), (b), (c) and (d) of Sec. 4 of that Act shall be construed as reference to Cls. (a), (b), (c) and (d), respectively of Sec. 4 of this Act, and

(ii) nothing contained in Sec. 24 aforesaid shall apply to any marriage—

(a)     which is not solemnized under this Act; or

(b)     which is deemed to be solemnized under this Act by
reason of the provisions contained in Sec. 17:

Provided that the registration of any such marriage as is referred to in sub-clause (b) may be declared to be of no effect if the registration was in contravention of sub-section (2) of Sec. 17

(2) Every petition for relief under Chapter V or Chapter VI of the Special Marriage Act, 1954 (43 of 1954), as made applicable to the marriage referred to in sub-section (1), shall be presented to the District Court within the local limits of whose ordinary civil jurisdiction—


(a)    the respondent is residing at the time of the presentation of the
petition; or

(b)    the husband and wife last resided together, or

(c)     the petitioner is residing at the time of the presentation of the
petition, provided that the respondent is at that time residing outside
India.

Explanation.—In this section, "District Court" has the same meaning as in the Special Marriage Act, 1954 (43 of 1954).

(3) Nothing contained in this section shall authorize any Court—

(a)   to make any decree of dissolution of marriage, except where—

(i) the parties to the marriage are domiciled in India at the time of the presentation of the petition; or

(ii) the petitioner, being the wife, was domiciled in India immediately before the marriage and has been residing in India for a period of not less than three years immediately preceding the presentation of the petition;

(b)  to make any decree annulling a voidable marriage, except
where—

(i) the parties to the marriage are domiciled in India at the time of the presentation of the petition;

(ii) the marriage was solemnized under this Act and the petitioner, being the wife, has been ordinarily resident in India for a period of three years immediately preceding the presentation of the petition;

(c)   to make any decree of nullity of marriage in respect of a void
marriage, except where—

(i) either the parties to the marriage is domiciled in India at the time of the presentation of the petition, or

(ii) the marriage was solemnized under this Act and the petitioner is residing in India at the time of the presentation of the petition;

(d)  to grant any other relief under Chapter V or Chapter VI of the
Special Marriage Act, 1954 (43 of 1954), except where the petitioner is
residing in India at the time of the presentation of the petition.

(4) Nothing contained in sub-section (1) shall authorize any Court to grant any relief under this Act in relation to any marriage in a foreign country not solemnized under it, if the grant of relief in respect of such marriage [whether on any of the grounds specified in the Special Marriage Act, 1954 (43 of 1954), or otherwise] is provided for under any law for the time being in force.

COMMENT

The Indian Divorce Act, 1869 can be invoked to dissolve the marriage in the instant case even though the marriage was preformed out of India. In this view of the matter Sec. 18 (4) of the Foreign Marriage Act, 1969 is applicable and not Sec. 18 (1) thereof.1

CHAPTER V PENALTIES

19. Punishment for bigamy.—(1) Any person whose marriage is solemnized or deemed to have been solemnized under this Act and who,

 

- - -

1.     Vincent ]oseph Konath v. Jacintha Angela Uinccnt Konath, A.I.R. 1994 Bom. 120 at p. 123.

 

 

- - -


during the subsistence of his marriage, contracts any other marriage in India shall be subject to the penalties provided in Sees. 494 and 495 of the Indian Penal Code (45 of 1860), and the marriage so contracted shall be void.

(2) The provision of sub-section (1) apply also to any such offence committed by any citizen of India without and beyond India.

COMMENT

For this offence the provisions of the Indian Penal Code is made applicable. Penal provision is to be construed rigidly.1

20.      Punishment   for   contravention   of   certain   other   conditions   for
marriage.—Any citizen of India who procures a marriage of himself or herself
to be solemnized under this Act in contravention of the condition specified
in Cl.
(c) or Cl. (d) of Sec. 4 shall be punishable —

(a)  in the case of a contravention of the condition specified in Cl.

(c)            of Sec. 4, with simple imprisonment which may extend to fifteen days,
or with fine which may extend to one thousand rupees, or with both;
and

(b)  in the case of a contravention of the condition specified in Cl.

(d)            of Sec. 4 with simple imprisonment which may extend to one month,
or with fine which may extend to one thousand rupees; or with both.

21.      Punishment for false declaration.—If any citizen of India for the
purpose of procuring a marriage, intentionally—

(a)  where a declaration is required by this Act,  makes false
declaration; or

(b) where a notice or certificate is required by this Act, signs a false
notice or certificate;

he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.

22.      Punishment for wrongful action of Marriage Officer.—Any Marriage
Officer who knowingly and wilfully solemnizes a marriage under this Act in
contravention of any of the provision of this Act shall be punishable with
simple imprisonment, which may extend to one year, or with fine which
may extend to five hundred rupees, or with both.

COMMENT

The law in its wisdom seeks to punish the guilty who commits the sin and not the person, who is innocent.2

CHAPTER VI MISCELLANEOUS

23.      Recognition of marriage solemnized under law of other countries.— If
the Central Government is satisfied that the law in force in any foreign
country for the solemnization of marriages contains provisions similar to
those contained in the Act, it may, by notification in the Official Gazette,
declare that marriage solemnized under the law in force in such foreign
country shall be recognized by courts in India as valid.

24.     Certification of documents of marriages solemnized in accordance with
local law in a foreign country.—(1) Where—

(a) a marriage is solemnized in any foreign country specified in this behalf by the Central Government, by notification in the Official Gazette

 

- - -

1.                  Orient Fire and General Insurance Co. Ltd. v. Mat ias Burla, (1985) 60 C.L.T. 257 at p. 260; Antan/ami
Patra v. State or Orissa, 1993 Cr.L.J. 1908 at p. 1913 (Orissa).

2.        AS. Sulochana v. C Dharmalingam. A.I.R. 1987 S.C. 242 at p. 244.

 

 

- - -


in accordance with the law of that country between parties of whom one at least is a citizen of India; and

(b)   a party to the marriage who is such citizen produces to a
Marriage Officer in the country in which the marriage was solemnized—

(i) a copy of the entry in respect of the marriage in the marriage register of the country certified by the appropriate authority in that country to be a true copy of that entry; and

(ii) if the copy of that entry is not in the English language, a translation into the prescribed language of that copy; and

(c)   the Marriage Officer is satisfied that the copy of the entry in the
marriage register is a true copy and that the translation, if any, is a true
translation;

the Marriage Officer, upon the payment of the prescribed fee, shall certify upon the copy that he is satisfied that the copy is a true copy of the entry in the marriage register and upon the translation that he is satisfied that the translation is a true translation of the copy and shall issue the copy and the translation to the said party.

(2) A document relating to a marriage in foreign country issued under sub-section (1) shall be admitted in evidence in any proceedings as if it were a certificate duly issued by the appropriate authority of that country.

COMMENT

"As if.—The expression "as if is used to make one applicable in respect of other, the expression "as if' would mean and imply that the application for renewal must be made in the same manner and, to same extent as an application for a fresh permit and must be processed as such.1

25.      Certified copy of entries to be evidence.—Every certified copy
purporting to be signed by the Marriage Officer of an entry of a marriage in
the Marriage  Certificate Book shall be  received  in  evidence without
production or proof of the original.

26.      Correction of errors.—(1) Any marriage officer who discovers any
error in the form or substance of any entry in the Marriage Certificate Book
may, within one month next after the discovery of such error, in the
presence of the persons married, or in case of their death or absence, in the
presence of two other witnesses, correct the error by entry in the margin
without any alteration of the original entry and add thereto the date of such
correction.

(2) Every correction made under this section shall be attested by the witnesses in whose presence it was made.

27.      Act not to affect validity of marriages outside it.—Nothing in this Act
shall in any way affect the validity of a marriage solemnized in a foreign
country otherwise than under this Act.

COMMENT

"Shall".—When the Legislature employs the expression "shall" it must normally be construed to mean "shall" and not "may".2 "Shall" cannot be interpreted as "may".3

 

- - -

1.                  Sher Singh v. Union of India, A.I.R. 1964 S.C. 200 at p. 205.

2.        Karnataka State Road Transport Corporation, Bangalore v. Karnataka State Transport Authority,
A.I.R. 1984 Knt. 4 at p. 14; Proposed Dhamvad Distt. Ex-Servicemen's Coop. Society Ltd.
v. State,
A.I.R. 1993 Knt. 117 at p. 119.

3.        Spedra Engineering Corpn., v. State ofMadhya Pradesh A.I.R. 1988 M.P. Ill at p. 112; Nathu v.
Amar Nath Agarwal, A.I.R. 1995 All. 420 at v. 424.

 

 

- - -


28. Power to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality' of the foregoing power, such rules may provide for all or any of the following matters, namely:

(a)    the duties and powers of Marriage Officers' and their district;

(b)    the manner in which a Marriage Officer may hold any enquiry
under this Act;

(c)     the manner in which notices of marriage shall be published;

 

(d)      the places in which and the hours between which marriages
under this Act may be solemnized;

(e)       the form and the manner in which any books required by or
under this Act to be kept shall be maintained;

(f) the form and manner in which certificate of marriage may be entered under sub-section (5) of Sec. 17;

(g) the fees that may be levied for the performance of any duty imposed upon a Marriage Officer under this Act;

(h) the authorities to which, the form in which and the intervals within which copies of entries in the Marriage Certificate Book shall be sent, and, when corrections are made in the Marriage Certificate Book, the manner in which certificates of such corrections shall be sent to the authorities;

(i) the, inspection of any books required to be kept under this Act and the furnishing of certified copies of entries therein;

(j) the manner in which and the conditions subject to which any marriage may be recognized under Sec. 23;

(k) any other matter which may be, or requires to be, prescribed. (3) Every rule made under this section 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 1[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; however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

COMMENT

Retrospectivity.—It is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect.2

Rules—Validity of.—The question whether rules are validly framed to carry out the purposes of the Act can be determined on the analysis of the provisions of the Act.3

 

- - -

1.                  Subs, by Act 20 of 1983, Sec. 2 and Schedule, item No. 45 (w.e.f. 15th March, 1984).

2.        A.A. Calton v. Director of Education, A.I.R. 1983 S.C. 1143 at p. 1145; Mohananand Jha v. The
Receiver in respect ofK.J.R. & D. Collieries, A.I.R. 1992 Pat. 107 at p. 108; Dahiben
v. Vasavji
Kevalbhai, A.I.R. 1995 S.C. 1215 atp. 1218; SaffiaBeev.B. Sathar, A.I.R. 2000Mad. 167atp.l73.

3.        Minerva Talkies v. State of Karnataka, (1988) 1 S.C./. 208 at pp. 211-213, A.I.R. 1988 S.C. 526 at p.
530; Union oflndiav. Harnam Singh, (1993) 2 S.C.C. 162 atp. 171; Umesh Thakurv. State of Bihar,
1994 (1) Pat. L.J.R. 727.

 

 

- - -


29.       Amendment of Act 43 of 1954.—In the Special Marriage Act, 1954,—

(a)      in Sec. 1, in sub-section (2), for the words "outside the said
territories", the words "in the State of Jammu and Kashmir" shall be
substituted;

(b)   in Sec. 2, Cls. (a) and (c) shall be omitted;

(c)    in Sec. 3, for sub-section (2), the following sub-section shall be
substituted, namely:

"(2) for the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers for the State or any part thereof;

(d)   in Sec. 4, for Cl. (e), the following clause shall be substituted,
namely:

"(e) where the marriage is solemnized in the State of Jammu

and Kashmir, both parties are citizens of India domiciled in the

territories to which the Act extends";

(f) in Sec. 10, for the words "outside the territories to which this Act extends in respect of an intended marriage outside the said territories", the words "in the State of Jammu and Kashmir in respect of an intended marriage in the State" shall be substituted;

(g) in Sec. 50, in sub-section (1), the words "diplomatic and consular officers and others" shall be omitted.

30.       Repeal.—The Indian Foreign Marriage Act, 1903 (14 of 1903), is
hereby repealed.

COMMENT

Repeal.—It is a matter of legislative practice to provide, while enacting an amending law, that an existing provision be deleted. Such deletion has the effect of repeal. *

THE FIRST SCHEDULE

(See Sec. 5) Form of Notice of intended marriage

To

The Marriage Officer

for     

We hereby give you notice that a marriage under the Foreign Marriage Act, 1969, is intended to be solemnized between us within three months from the date hereof.

 

Name and     Condition    Occupation      Date of father's                                                       birth name

Dwelling place

Permanent dwelling place and present dwelling place if not permanent

Length of residence in the present dwelling place

 

- - -

Bhagat Ram Sharma v. Union of India, A.I.R. 1988 S.C. 740 at p. 746; Competent Officer, Gujarat Housing Board v. K.B. Parmar, A.I.R. 1993 Guj. 5 at p. 16; Ramesh Singh v. Cinta Devi, 1996 S.C.C. (Cr.) 467 at p. 469.

- - -

 

Unmarried A.B. Widower

Divorcee

Unmarried C.D. Widow

Divorcee

Witness our hands, this.............. day of         19

(Sd.) A.B. (Sd.) C.D.

THE SECOND SCHEDULE

(See Sec. 12) Declaration to be made by the bridegroom

I, A.B., hereby declare as follows:

1.        I am at the present time unmarried (or a widower or divorcee, as the case
may be).

2.   I have completed    years of age.

3.   1 am not related to C.D. (the bride) within the degrees of prohibited
relationship.

4.................... I am a citizen of          

(to be filled up)

5.        I am aware that, if any statement in this declaration is false, I am liable
to imprisonment and also to fine.

(Sd.), AB. (the bridegroom)

Declaration to be made by the bride

1,        C.D., hereby declare as follows:

1.1 am at the present time unmarried (or a widow, or a divorcee, as the case maybe).

2._________________ I have completed          years of age.

3.1 am not related to A.B. (the bridegroom) within the degrees of prohibited relationship.

4.________________ I am a citizen of

(to be filled up)

5.        I am aware that, if any statement in this declaration is false, I am liable
to imprisonment and also to fine.

(Sd.) C.D. (the bride).

Signed in our presence by the above-named A.B. and C.D. So far as we are aware, there is no lawful impediment to the marriage. (Sd.) G.H. I

(Sd.) I.J. I Three witnesses.
(Sd.) K.L. 1
(Countersigned) E.F.
Marriage Officer.
Date the_________ day of___________ 19____


THE THIRD SCHEDULE

(See Sec. 14) Form of Certificate of Marriage

I, E.F., hereby certify that on the ............ day of. ....... 19 ........ A.B. and C.D.

..........................   appeared before me and that the declaration required by Sec.

....... ....... 2of the Foreign Marriage Act, 1969, was duly made, and that a marriage

under that Act was solemnized between them in my presence and in the presence of three witnesses who have signed hereunder.

(Sd.) E.F. (Marriage Officer)

(Sd.) A.B. (bridegroom)

(Sd.) C.D. (bride)

(Sd.) G.H. I

(Sd.) I.J. I Three witnesses.

(Sd.) K.L. 1

Dated the------------ day of------- 19- .

- --

 

I.     Herein give particuars of the parties.

 2.     To be entered.

 

- - -

 

 

THE REGISTRATION OF FOREIGNERS

ACT, 19391 (Act No. 16 of 1939)

An Act to provide for the registration of Foreigners in  [India].

[8th April, 1939}

Whereas it is expedient to provide for the registration of foreigners entering, being present in, and departing from, 2[India].

It is hereby enacted as follows:

1.         Short title and extent.—(1) This Act may be called the Registration of
Foreigners Act, 1939.

(2) It extends to 3[the whole of India] 4[* * *].

COMMENT

Interpretation of statute.—In the past according to the "golden rule" for interpretation of a statute grammatical and ordinary sense of the word was to be looked into but now the Court looks for the "intention" of the Legislature or the "purpose" of the statute.5

2.        Definitions.—In this Act,—

6[(a) "foreigner" means a person who is not a citizen of India;]

7[ *    *        *        *        *        *  * ]

(b) "prescribed" means prescribed by rules made under this Act.

COMMENTS

This section defines the various expressions occurring in the Act.

Interpretation of section.—The Court can merely interpret the section; it cannot re-write, re-cast or re-design the section.8

3.        Power to make rules.—(1)   The   Central   Government   may   after
previous publication, by notification in the Official Gazette, make rules9
with respect to foreigners for any or all of the following purposes, that is to
say,—

(a) for requiring any foreigner entering, or being present in 2[India] to report his presence to a prescribed authority within such time and in such manner and with such particulars as may be prescribed;

 

- - -

1.                  The Act extended to Goa, Daman and Diu (w.e.f. 19th December, 1962) by Regn. 12 of 1962; Dadra
and Nagar Haveli (w.e.f. 1st July, 1965) by Regn. 6 of 1963; Laccadive, Minicoy and Amindivi Islands
(w.e.f. 1st October, 1967) by Regn. 8 of 1965; Pondicherry (w.e.f. 24th November, 1962) by G.S.R.
1557, dated 24th November, 1962; Himachal Pradesh, (w.e.f. 25th December, 1948) and Sikkim (w.e.f.
1st February, 1976) by G.S.R. 208 (E) of 1975.

2.        Subs, by Act 37 0/1949, Sec. 2, for the words "the Provinces of India" (w.e.f. 28th April, 1949).

3.        Subs, by Sec. 3, ibid., for the words "all the Provinces of India" (w.e.f. 28th April, 1949).

4.        The words "except the State of Hyderabad", ins. by the A.O., 1950, omitted by Act 3 of 1951, Sec. 3
and Schedule (w.e.f. 1st April, 1951).

5.        Kehar Singh v. State (Delhi Administration), A.I.R. 1988 S.C. 1883 at p. 1945; I.A.S. Association v.
Union of India, (1993) 1 S.C.J. 58 at p. 63; Miracle Sugar Factory v. State of U.P., A.I.R. 1995 All.
231 at p. 233; Munnalal Agarwal v. Jagdish Narain, 2000 (1) S.C.C. 31 at p. 33.

6.                  Subs, by Act 11 of 1957, Sec. 8, for the former clause (w.e.f. 19th January, 1957).

7.                 Clause (aa) ins. by the A.O., 1950, omitted by Act 3 of 1951, Sec. 3 and Schedule (w.e.f. 1st April,
1951).

8.                  State of Kerala v. Mathai Verghese, A.I.R. 1987 S.C. 33 at p. 35; Ravi Shankar Sharma v. State, 1993
Lab.I.C. 987 at p. 991 (Raj.); State of Maharashtra v.MangoliDewaiyya, 1994 Mah. L.J. 483atp.487.

9.        For Registration of Foreigners Rules, 1939, see Gazette of India, 1939, Pt. I, p. 1059.

 

- - -

 


(b)   for requiring any foreigner moving from one place to another
place in 1 [India] to report on arrival at such other place, his presence to
a prescribed authority within such time and in such manner and with
such particulars as may be prescribed;

(c)    for requiring any foreigner who is about to leave 1 [India] to report
the date of his intended departure and such other particulars as may be
prescribed to such authority and within such period before departure
as may be prescribed;

(d)   for requiring any foreigner entering, being present in,  or
departing from,   1 [India]  to  produce,   on  demand  by  a  prescribed
authority, such proof of his identity as may be prescribed;

(e)   for requiring any person having the management of any hotel,
boarding-house, saraior any other premises of like nature to report the
name of any foreigner residing therein for whatever duration, to a
prescribed authority, within such time and in such manner and with
such particulars as may be prescribed;

(f) for requiring any person having the management or control of any vessel or aircraft to furnish to a prescribed authority such information as may be prescribed regarding any foreigner entering, or intending to depart from, 1 [India], in such vessel or aircraft, and to furnish to such authority such assistance as may be necessary or prescribed for giving effect to this Act;

(g) for providing for such other incidental or supplementary matters as may appear to the Central Government necessary or expedient for giving effect to this Act.

2[(2) Every rule made under this section 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 is, 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.]

COMMENT

The general power of framing rules for effectuating the purposes of the Act would plainly authorize and sanctify the framing of such a rule.3

It is well settled in law that every subordinate law-making authority has a power to frame subordinate legislation only provided it is reasonable and within the limits of the rule-making power of the body.4

4. Burden of proof.—If any question arises with reference to this Act or any rule made thereunder whether any person is or is not a foreigner or of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.

 

- - -

1.     Subs, by Act 37 of 1949, Sec. 4,/c- the words "the Provinces" (w.e.f. 28th April, 1949).

1.     Ins. by Act 4 of 1986, Sec. 2 and the Schedule, Sec. 14 (w.e.f. 15th May, 1986).

3.                 Ram Autar Santosh Kumar v. State of Bihar, A.I.R. 1987 Pat. 13 at p. 17.

4.                 Perey Lai Pardiwalla v. Bar Council of India, A.I.R. 1987 Bom. 283 at p. 289.

 

 

- - -


5.     Penalties.—Any person who contravenes, or attempts to contravene,
or fails to comply with, any provision of any rule made under this Act shall
be punished, if a foreigner, with imprisonment for a term which may extend
to one year or with fine which may extend to one thousand rupees or with
both, or if not a foreigner with fine which may extend to five hundred rupees.

COMMENTS

Penal provision is to be construed rigidly.1 "Shall" cannot be interpreted as "may".2

6.       Power to exempt from application of Act.—The Central Government
may, by order,3 declare that any or all of the provisions of the rules made
under this Act shall not apply, or shall apply only with such modifications
or subject to such conditions as may be specified in the said order, to or in
relation to any individual foreigner or any class or description of foreigner:

Provided that copy of every such order shall be placed on the table of 4[* * *] 5[Parliament] as soon as may be after its promulgation.

COMMENT

Under this section the Central Government is authorized to grant exemption from application of the provisions of this Act in certain circumstances. Under the proviso to the section a copy as such an order has to be laid before the Parliament.

7. Protection to persons acting under this Act.—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.

8. Application of other laws not barred.—The   provisions   of this  Act
shall be in addition to, and not in derogation, of the provisions of the
Foreigners Act, 6[1946 (31 of 1946)], and any other law for the time being
in force.

9. 7[Application of Act to Part B States.] Rep. by the Part B States [Laws]
Act, 1951 (3 of 1951)? Sec. 3 and Schedule.

COMMENT

Repeal.-—It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted. Such deletion has the effect of repeal of the existing provision.9

 

- - -

1.                  Orient Fire and General Insurance Co. Ltd. v.MatiasBurla, (1985) 60 C.L.T. 257 at p. 260; Antaryami
Patra v. State ofOrissa, 1993 Cr.L.]. 1908 at p. 1913 (Orissa); Suman Sethi v. Ajay K. Churiwal,
2000 (1) R.C.R. (Cr.) 780 at p. 782 (S.C.).

2.                  Spedra Engineering Corporation v. State ofMadhya Pradesh, A.LR. 1988 M.P. Ill at p. 112.

3.        For Registration of Foreigners (Exemption) Order, 1957, see Gazette of India, 1957, Ft. II, Sec. 3, p.
867.

4.        The words "both Houses of" rep. by the A.O., 1948 (w.e.f. 23rd March, 1948).

5.        Subs, by A.L.O., 1950 for the words "the Central Legislature" (w.e.f. 26th January, 1950).

6.                 Subs, by Act 37 of 1949, Sec. 5, for the figures "1864" (w.e.f. 28th April, 1949).

7.                 Added by Sec. 6, ibid., (w.e.f. 28th April, 1948).

8.                  Rep. (w.e.f. 1st April, 1951).

9.        Bhagat Ram Sharma v. Union of India, A.I.R. 1988 S.C. 740 at p. 746; Competent Officer, Gujarat
Housing Board v. K.B. Parmar, A.I.R. 1993 Guj. 5 at p. 16.

 

 

- - -


THE REGISTRATION OF FOREIGNERS RULES, 1992

G.S.R. 318 (E), dated 10th March, 1992.1—In exercise of power conferred by Sec. 3 of the said act 2[and in supersession of the Registration of Foreigners Rules, 1939, except as respects things done or omitted to be done before such supersession], the Central Government hereby makes the following rules, 3[* * *] namely:

1. Short title, commencement and extent.—(1) These rules may be called the Registration of Foreigners Rules, 1992.

(2)        They shall come into force on the date of their publication in the
Official Gazette.

(3)        They extend to the whole of India.

2.Definitions.—In these rules, unless there is anything repugnant to
the subject or context,—
                                       

(a)    "Act" means the Registration of Foreigners Act, 1939 (16 of
1939);

(b)    "Certificate of Registration" means a Certificate of Registration
issued in pursuance of rule 7;

(c)     "Master of the Vessel" includes the pilot of an Aircraft and any
person authorised by such master or pilot to discharge on his behalf any
of the duties imposed upon him by these rules;

(d)    "Form" means of one of the Forms appended to these rules;

(e)     "Passenger" means any person travelling or seeking to travel on
vessel who is not a bonafide seaman;

(f) "Registration Address" means a foreigner's address in India as reported under Rule 6 and recorded in Item 11 of his certificate of Registration;

(g) "Registered Officer" means a Registration Officer appointed by the Central Government under rule 3 and includes an authority authorised in writing by a Registration Officer with the approval of the Central Government to perform the duties of the Registration Officer on his behalf;

(h) "Residence" means ordinary dwelling place in India;

(i) "Seaman" means a person employed on, or engaged in the working of a vessel;

(j) "Tourist" means a foreigner having no residence or occupation in India whose stay in India does not ordinarily exceed six months, who has no other subject in visiting in India than recreation, sight-seeing, or attending, in a representative capacity, meetings convened by the Government of India or International bodies or any other meeting or conference cleared by the Government of India;

(k) "Vessel" includes aircraft but does not include a vessel travelling solely between ports or places in India.

3. Registration Officers.—(1) The Central Government may appoint Registration Officers for the purposes of these rules for such areas as it thinks fit.

 

- - -

1.               Published in the Gazette of ip dia, Extraordinary, Part II, Sec. 3 (i), dated 10th March, 1992.

2.              Ins. by G.S.R. 55 (E), dated 29th January, 1999 (w.e.f. 29th January, 1999).

3.               Omitted by ibid.

 

- - -

 


(2) A Registration Officer may, with the approval of the Central Government, authorise in writing any authority to perform any or all of his functions under these rules.

4. Passengers on vessel to report arrival in India.—Every passenger who
arrives in India on board any vessel shall on being required so to do by or
on behalf of, the master of the vessel, furnish true particulars as to his name
and nationality, his age, sex, place or birth, and address or intended address
in India, the purpose of his visit and the proposed length of his stay in India.

5. Report by foreigners of arrival in and departure from India by land.—

Every foreigner who enters or leaves India by land shall, on being required so to do by the Registration Officer of the place of arrival or departure, as the case may be, furnish to him a true statement of the particulars set out in Form D.

6.        Report by a foreigner of his address in India, etc..—(1) Every foreigner
entering India or resident in India shall present in person or through an
authorised representative to the appropriate Registration Officer specified
in Rules, a report (hereinafter referred to as a registration report) within the
time specified in that rule:

Provided that no such report shall be necessary in the case of a foreigner who enters India on a visa for a period of not more than one hundred and eighty days and who does not remain in India beyond the said period.

(2)         Every registration report shall be made in writing in English or in
Hindi language and in quadruplicate and shall contain a true statement of
the foreigner's address in India and of the other particulars specified in
Items 2 to 10 in Para IV of Form A and such of the particulars specified in
Items 12 to 16 thereof, as may be appropriate.

(3)         For the purpose of sub-rule (2), a foreigner's address in India shall
be:—

 

(a)    the place of his residence, or

(b)    if he has no residence, the place at which, at the time of making
his registration report he is for the time being living or at which he first
intends to live after his arrival in India:

Provided that, subject to the approval of the Registration Officer, any foreigner who has no residence in India may, with the consent previously obtained of an Indian citizen residing in India, being a banker or a person having the management of hotel or of a tourist or travel agency, report as his address in India the name and address of the said Indian citizen and such name and address shall, for so long as the provisions of sub-rule (4) are complied, with, be deemed to be the foreigner's address in India:

Provided further that in the case of a foreigner who has no residence in India, whose occupation is such as to necessitate frequent travelling, who is not likely to return within a reasonable time to the district in which he is at any time living and who is unable to avail himself of the provision of the foregoing proviso, the office of the Registration Officer of the district in which he has first registered upon his arrival in India shall be deemed to be his address in India.

(4)       In any case of which the proviso to sub-rule (3) applies, it shall be
the duty,—

(a) of the foreigner to keep the Indian citizen informed of his current address; and


(b) of the Indian citizen to furnish all such information in his possession relating to the foreigner as may be demanded for any of the purposes of the Act or of these rules by any Registration Officer, magistrate or police officer not below the rank of head constable.

(5) Copies of Form-A may be obtained on application from any Registration Officer.

7. Procedure for Registration.—(1)  The  registration  report  shall  be presented,—

(a)    in the case of foreigner who enters India on a visa valid for a
stay in India for a period of one hundred and eighty days, br less wishes
to stay in India beyond a period of one hundred and eighty days, to the
Registration Officer having jurisdiction in the place where the said
foreigner is present at the time of presentation of such report;

(b)    in the case of foreigner who enters India on a visa valid for a
stay in India for a period of more than one hundred eighty days to such
Registration Officer as may be specified in his behalf by the Registration
Officer of the port or other place of arrival with the approval of Central
Government;

(c)     in the case of foreigner, who enters India otherwise than on a
visa, to the Registration Officer having jurisdiction in the place where
the said foreigner is present at the time of the presentation of such report;

(d)    in the case of a person who has become a foreigner by reason
of his having ceased to be a citizen of India while resident in India to the
Registration Officer having jurisdiction in the place where the said
person is ordinarily resident.

1 [(e) in the case of a foreigner who enters India with a Persons of Indian Origin Card, to the Registration Officer having jurisdiction in the place where the said foreigner is ordinarily resident.

Explanation.—In this clause, the expression "Persons of Indian Origin" means a person who is a foreign citizen of Indian origin settled outside India and to whom such Card has been issued by the Central Government, subject to such conditions, as it may specify in this behalf.]

(2) The registration report shall be presented,—

(a)     in the case of a foreigner referred to in Cl. (a) of sub-rule (1),
within two weeks after the expiry of one hundred and eighty days of his
arrival in India;

(b)     in the case of a foreigner referred to in Cl. (b) of sub-rule (1),
within two weeks of arrival in India;

(c)      in the case of a foreigner referred to in Cl. (c) of sub-rule (1),
immediately after the expiry of authorised period of stay in India;

(d)     in the case of foreigner referred to in Cl. (d) of sub-rule (1), within
fifteen days of his ceasing to be citizen of India.

l[(e) in the case of a foreigner referred to in Cl. (e) of sub-rule (1), within thirty days after the expiry of one hundred and eighty days of his arrival in India.]

Explanation.—For the purpose of sub-rules (1) and (2), the date on which the person concerned shall be deemed to have ceased to be a citizen of India shall be,—

 

- - -

1.     ims. by G.S.R. 483 (E), dated 1st July, 1999 (w.e.f. 1st July, 1999).

 

- - -


(a)     where he has voluntarily, acquired the citizenship of another
country by naturalisation or registration, the date of such naturalisation
or registration;

(b)     where he has obtained a passport from the Government of any
other country, the date on which such passport was obtained:

Provided that in the case of a person in respect of whom an order has been made under sub-section (2) of Sec. 9 of the Citizenship Act, 1955 (57 of 1955), holding that he had acquired the citizenship of a foreign country such date shall be the date of the order aforesaid.

(3) Every foreigner presenting a registration report shall furnish to the Registration Officer such information as may be in his possession for the purpose of satisfying the said officer as to the accuracy of the particulars specified therein and shall, on being required to do sign the registration report in the presence of the said officer and shall thereupon be entitled to receive from the said officer a certificate of registration in Part III of Form A:

Provided that, in any case in which the registration report is presented, in accordance with Cl. (b) of sub-rule (1), by a foreigner whose address in India is not within the jurisdiction of the Registration Officer of the port or other place of arrival in India, temporary certificate in Form B shall be issued and the said foreigner shall thereafter comply with the conditions set out in Form C:

Provided further that any foreigner whose passport or other documents of identification do not, in the opinion of the Registration Officer, provide adequate proof of identity, shall be required to furnish to the Registration Officer, within such period of presenting his registration report as such officer may fix, either four copies of a photograph of himself of passport size, one of which shall be affixed to Part III of Form-A and over stamped with the stamp of Registration Officer or four complete sets of his finger-impressions, one of which shall be made on Part III of Form-A, whichever the Registration Officer may require. The finger impressions shall be made in the presence of the Registration Officer and each set attested by him.

8.       Period of validity of certificate of registration.—The certificate of
registration issued in respect of any foreigner shall be valid for so long as
the foreigner does not depart from India.

9.       Production of proof of identity.—(1)   Every  foreigner   shall  within
twenty-four hours of demand being made of him by any Registration Officer,
magistrate or police officer, not below the rank of a head constable, produce,
at such places as may be specified his passport or such other proof of his
identity as may be required for any purpose connected with the enforcement
of these rules:

Provided that the said Registration Officer, Magistrate or police officer may, on sufficient cause being shown, extend the aforesaid period of twenty-four hours to such period as, in the circumstances, may be necessary for the production of the said passport or other proof of identity.

(2) Every foreigner entering India shall on demand being made of him by the Registration Officer, deliver his passport or other proof of identity to that officer and shall thereafter attend at such time and place as the Registration Officer may direct for the purpose of receiving back his passport.


(3) Where in pursuance of sub-rule (2), a foreigner surrenders his passport or other proof of identity he shall be entitled to receive a receipt for it from the Registration Officer.

10. Production of certificate of registration.—Every registered foreigner shall, within twenty-four hours of demand being, made of him by any Registration Officer, any Magistrate or any police officer not below the rank of a head constable, produce or cause to be produced his certificate of registration for his inspection of such registration officer, magistrate or police officer:

Provided that the Registration Officer, Magistrate or police officer may, on sufficient cause being shown, extend the aforesaid period of twenty-four hours to such period as, in the circumstances may be reasonably necessary for the production of the said certificate:

Provided further if the Registration Officer, Magistrate or police officer, not being below the rank of an Inspector is of the opinion that the passport or other documents of identification produced by the foreigner do not furnish adequate proof of identity and if the registration certificate does not bear the photograph of finger impressions required by the second proviso to sub-rule (3) of rule 7 the Registration Officer, magistrate or police officer not being below the rank of an Inspector may require the foreigners either to produce, four copies of a photograph of himself of passport size, one of which shall be affixed to the registration certificate and over stamped with the stamp of the officer or to furnish four complete sets of his finger impressions one of which shall be made on the registration certificate. The finger impression shall be made in the presence of the Registration Officer and each set attested by him.

11.     Report of absence from address.—(1)  If at  any  time  a  foreigner
proposes to be absent from his registered address for a continuous period
of eight weeks or more or he is changing his registered address or he is
finally departing from India, he shall, before he leaves, inform in person or
through an authorised representative or by registered post his Registration
Officer of his intention to leave either temporarily or permanently the
jurisdiction of the Registration Officer. In case he is returning he should
inform the Registration Officer of the date of return and in the case he is
moving away, the change of address. Any changes made subsequently
should also be intimated to the Registration Officer:

Provided that nothing in this sub-rule shall apply in the case of any foreigner in respect of whom, in pursuance of the proviso to sub-rule (4) of the rule 6, the address of Indian citizen is deemed to be his registered address.

(2)         Every foreigner, who stays for a period of more than eight weeks
at any place in any district other than the district in which his registered
address is situated, shall inform the Registration Officer of that district of
his presence.

(3)      The information required under sub-rule (2) may be made in
writing and the requirements of the said sub-rule shall be deemed to have
been fulfilled if prior to his arrival in a district other than that in which his
registered address is situated, the foreigner furnishes to the Registration
Officer of the said district intimation, of the date of his proposed arrival in
and departure from the said district.

12.     Change in Registered address.—A foreigner shall be deemed to have
changed his registered address:—


(a)    if he departs from India;

(b)    if he changes his residence from one place to another place in
India;

(c)     if, having no residence to return thereto within six months of
leaving it; or

(d)    if in any case to which the first proviso to sub- rule (3) of rule
6 applies, if either he or the Indian citizen whose address is deemed to
be his registered address applies to the Registration Officer to be
absolved from or fails at any time to discharge the obligations laid down
upon them by sub-rule (4) of that rule:

Provided that Cl. (c) of this rule shall not apply in any case in which in accordance with the second proviso to sub-rule (3) of rule 6 the foreigner's registered address is the office of the Registration Officer of the district in which he first registered upon his arrival in India.

13.        Reports of change other than of address.—Without prejudice to the
provisions  of rules   11   and   12  every  foreigner  shall  furnish  to  the
Registration Officer of the district in which his registered address is situated
particulars or any circumstances affecting in any manner the accuracy of
the particulars recorded in his certificate of registration within fourteen
days after the circumstances has occurred, and generally shall supply to
the Registration Officer all such information as may be necessary for
maintaining the accuracy of the certificate.

14.        Report to be made to and by hotel keepers.—(1)  Every keeper of a
hotel shall require every visitor to the hotel to furnish the particulars
necessary for recording, and sign, on his arrival at the hotel, his name and
nationality in a register maintained for the purpose in Form F and, if any
such visitor is a foreigner shall further require him;

 

(a)      on his arrival at such a hotel to furnish the other particulars
specified in Items 4 to 10 of the said register; and

(b)      at the time of his departure from such a hotel to furnish the
particulars necessary for recording in the said register, the date and time
of his departure and the address to which he is proceeding.

 

(2)         The register prescribed by sub-rule (1) shall at all time be made
available for inspection, on the demand of any Registration Officer, any
Magistrate or any police-officer not below the rank of Head Constable.

(3)         Every visitor to any hotel shall, on being required so to do by the
keeper of the hotel, furnish the particulars necessary for recording, and
sign, his name and nationality, in the register referred to in sub-rule (1),
and if such visitor is a foreigner, shall also,—

 

(a)       on his arrival at such a hotel furnish, the other particulars
specified in Items 4 to 10 of the said register; and

(b)       at the time of his departure from such hotel, furnish the
particulars necessary for recording, in the said register, the date and
time of his departure and the address to which he is proceeding.

 

(4)         Every particulars, other than the signature of the keeper of a hotel
or a visitor, which is required by this rule to be recorded in the said register
shall be recorded by the keeper of the hotel and in the English language, if
he is so able, or otherwise, in an Indian language.

(5)         If a visitor does not understand the English language it shall be
duty of the keeper of the hotel, if so requested to explain to the visitor the
requirements of this rule and Form F.


(6)       The keeper of the hotel shall, as soon as may be but not more than
twenty-four hours, after the arrival of any foreigner, transmit a copy of Form
C, duly completed from the particulars furnished by such a foreigner, to
the Registration Officer.

(7)    For the purpose of this rule,—

 

(a)     "hotel" includes any boarding-house, club, dak- bungalow, rest
house, paying guest-house, sarai or other premises of like nature;

(b)     "keeper of a hotel" means the person having the management
of a hotel and includes any person authorised by him, and competent
to perform the duties of the keeper of the hotel under this rule;

(c)      "sign" includes, in respect of a visitor who is unable to write,
the making of a thumb impression or other mark by means of which he
is accustomed to attest a document; and

(d)     "visitor" means a person for whom accommodation is provided
at a hotel.

(8)       Copies of Form C may be obtained, on application, from any
registration officer.

15.      Surrender of certificate of registration on departure.—(1) Every
foreigner who is about to depart finally from India shall surrender his
certificate of registration either to the Registration Officer of the place where
he is registered or of the place from where he intends to depart or to the
Immigration Officer at the Port/Checkpost of exit from India.

If the certificate is surrendered other than to the Immigration Officer of the port or checkpost of exit, a receipt indicating such surrender of the document may be obtained and shown to the Immigration Officer.

(2) Every passenger other than a passenger for whom a berth has been engaged by or on behalf of Government, who is about to depart from India on board any vessel shall, on the request of person having the management of such vessel, furnish or cause to be furnished in writing a true statement of the particulars set out in the Form D.

1 [(3) The Central Government shall publish on the reverse of Form 'D', by way of General or Speical instructions, the requirements of any other law or the rules made thereunder, which are applicable to the passengers.]

16.      Obligations of master of vessels, etc.—(1) The master or the person
having management of any vessel arriving at or leaving any place in India
shall—

(a)     require any person who intends to disembark from or embark
on any such vessel for the purpose of entering or leaving India, to furnish
in writing a true statement of the particulars set out in Form D, as the
case may be;

(b)     cause Form D to be delivered to the Registration Officer at the
place of arrival or departure;

(c)      take steps to ensure that no foreigner disembark or embarks
until authorised so to do by the Registration Officer;

(d)     If so requested by the Registration Officer require any foreign
passenger about to depart from India to surrender his certificate of
registration and deliver such certificate to the Registration Officer;

(e)      If so required by the Registration Officer, furnish on arrival at
the said place a true statement in writing showing the name and
nationality of every seaman employed on such vessel, and at the time of

 

- - -

1.     Ins. by G.S.R. 55 (E), dated 29th January, 1999 (w.e.f. 29th January, 1999).

 

- - -


departing from such place take such steps as the Registration Officer may specify to ascertain whether or not any such seaman as aforesaid who is a foreigner is about to depart on board such vessel; and

(f) generally render to the registration Officer such assistance as he may reasonably be required for carrying out the purpose of the Act and these rules.

(2)         The master or the person having the management of any vessel
arriving at, or leaving any place in India by Sea shall also furnish, before
any passenger disembarks, to the Registration Officer of any such place, a
passenger manifest in Form E.

(3)         Every particular, other than the signature of a foreign passenger,
which is required by this rule to be recorded in Form D, as the case may
be, shall be recorded;

 

(a)    if the passenger is able to write in English language, by the
passenger and in the English language;

(b)    if the passenger is unable to write in English language, by the
passenger in an Indian language; or

(c)     if the passenger is unable to write, either in English language
or in an Indian language by the master of the vessel or by any person
having the management of such vessel or by any seaman authorised in
this behalf by such master or person, in the English language or in an
Indian language.

 

(4)         If a foreign passenger does not understand the English language
or Indian language it shall be the duty of the master of the vessel, if so
requested, to explain to the foreign passenger the requirements of this rule.

(5)         Form E shall be completed in the English language or in an Indian
language.

(6)         Copies of Form D and E may be obtained, on application from any
Registration Officer.

17. Duplicate certificate of registration.—If any certificate of registration, issued under these rules is lost or destroyed, the foreigner to whom it was issued, shall make or send to the Registration Officer of the district of his registered address a report of circumstances in which it was so lost destroyed together with an application in writing of the issue of a duplicate copy of the certificate of registration.

FORMS FORM A

(rule 6) (To be completed in quadruplicate)

Part I. - Registration report. Part II. - Duplicate registration report.

Part III. - Certificate of registration (vide rules 2, 5, 6, 7, 9, 12, 13, 15, 16 and 17).

Part IV. - Triplicate of registration report.

1.        Serial Number.

2.        Name in full (block capitals, surname first).

3.        Sex........ Height........ Colour.... eyes         

4.        Date and place of birth.

5.        Present nationality.


6.   Previous nationality (if any).

7.   Manner and date of acquiring present nationality.

8.   Occupation or profession, and purpose of visiting'India.

9.   If a member of any country's naval, military or air force, or the reserves,
state which country's and rank held.

 

10.   Number, date and office of issue of passport or particulars of other proof
of identity.

11.   Address or intended address in India.

12.   Port or place of embarkation for India.

13.   Date and place of arrival in India.

14.   Name of vessel on which or how arrived in India.

15.   Address of last residence outside India.

16.      Names   of husband/wife  and   children  and   their  nationalities   (if
accompanying the visitor).

17.    Signature of registers.

18.    Date of expiry of registration,
(only for tourists)

Signed.

(Seal)....

Signed..

(Registration Officer)
Registered at....... on............... 19      Registration transferred to:


District


Date


Signature and seal of Registration Officer of district in Column 1


1. 2. 3.

4.

NOTICE

1.—Every registered foreigner is required;

(i) on the demand of any Registering Officer or Magistrate or any Police Officer not below the rank of Head Constable to produce this Certificate and his passport or such other proof of identity as may be required of him by such Magistrate or officer.

(ii) to surrender his certificate of registration, if he is about to depart finally from India either to the Registration Officer of the place where he is registered or of the place from where he intends to depart or to the Immigration Officer at the port/checkpost of exit from India.

(Hi) to intimate in person or through an authorised representative or by post under certificate of posting the Registration Officer of the district in which his registered address is situated —

(a)    before he leaves his registered address, if he proposes to be
absent from his registered address for a continuous period of eight weeks
or more, the address or addresses at which he proposes to stay and the
date on which he expects to return to his registered address.

(b)    if he proposes to change his registered address or to leave India,
the particulars of his new address and the date of the proposed change
or departure; and


(c) any circumstances which in any way affect the accuracy of any of the particulars set out in this Certificate of Registration. (iv) if he stays for more than eight weeks at any place (other than a hotel or other premises where travellers are accommodated) in any district other than the district in which his registered address is situated to report his presence in that other district to the Registration Officer thereof within seven days of his arrival.

(2) Failure to comply with the foregoing provisions will render the holder of this certificate liable to be punished with imprisonment or fine or both, under Sec. 5 of the Registration of Foreigners Act, 1939 (XVI of 1939).

FORM B

Temporary Certificate of Registration (rule 7)

Serial Number —

Mr.... a foreigner of.................................................... nationality who arrived in India on the 19.................. is

directed to report to the             at        within seven days for the purpose of

registration.

(2)       For a period of one week or until the report prescribed above has been
made, whichever, is less, this Form will be deemed to be a Certificate of Registration
in Part III of the Form A and must be produced on the demand of any Registration
Officer, Magistrate, or police officer not below the rank of head constable.

(3)       If for any reason that report prescribed in paragraph I cannot be made
within one week the holder of this Form is directed to report in person at the officer
of the undersigned or of the nearest Registration Officer and to comply with such
directions as to registration as may then be given.

(4)       The contents of this Form have been explained to the holder thereof.

(Signed) Registration Officer.

FORM C

(rule 14)

Hotel Arrival Report (To be completed in duplicate)

1.       Name of hotel

2.       Name of foreign visitor.

(In full in block capitals, surname first)

3.       Nationality.

4.   Number, date and place of issue of passport.

5.       Address in India.

6.       Date of arrival in India.

7.       Arrived from.

8.       Whether employed in India — Yes or No.

9.   Proposed duration of stay in India.

10.     Number, date and office of issue of certificate, if any.

Manager's Signature


1[FORM 'D'

[See rules 5 and 15 (2)]

Admission No           

GOVERNMENT OF INDIA Disembarkation Card

(Please use capital letters only)

1.                                             Family Name...................................    

First (Given) Name:                                           .......................

2.        Sex:                                   Male.................. Female...................

3.        Date of Birth (D/M/Y)                                                               

(Place and country of Birth.......................................................    

4.        Nationality                                                                                

5.                  Occupation...............................................................................

6.        Passport No.'                                                                            

Place of Issue'                                                                         

Date of Issue                                             

Date of Expiry                  ........................................................

7.        Address in India                ........................................................

8.        Flight No...................................................................................

Port of Embarkation         ........................................................

9..................................................................................................... Countries visited/transited during the .................................................................................................

        last six days

(Following information to be filled in by Foreigners)

         10.   Visa No.....................        Date of Issue:.................................

Place of issue............        Valid up to.....................................

11.      Purpose of visit:

1. Tourism      2. Business     3. Employment       4. Education   5. Transit 6. Conference 7. Official Mission   8. Others (specify)

12.   Whether first trip in India?               YES                 NO
Immigration Stamp

size 3.8 cm x 3.8 cm

Signature of Passenger

(PERFORATED STRIP)

STAPLE HERE TO BE RETAINED AND HANDED OVER ON DEPARTURE

(9 digits)
Departure No

FORM 'D'

GOVERNMENT OF INDIA Embarkation Card (For Foreigners Only)

[See rules 5 and 15] (Please use capital letters only)

1.                                             Family Name.....................................

First (Given Name):                                                                 

2.        Sex:                                   Male...................... Female.............

3.        Nationality                        .......................................................

4.        Passport No.                      .......................................................

Place of Issue                   .......................................................

 

- - -

1.     Subs, by G.S.R. 55 (E), dated 29th January, 1999 (w.e.f. 29th January, 1999).

 

- - -


Date of Issue............................................................................

Date of Expiry...........................................................................

5.     Flight No.                          .......................................................

Port of disembarkation                                                              

Immigration Stamp size 3.6 cm x 2.5 cm

Signature of Passenger

FORM 'D'

GOVERNMENT OF IDNIA

Embarkation Card

[See rules 5 and 15]

To be filled by Indians (Please use capital letters only)

1.                                               Family Name............................................

First (Given) Name.....................................................................

2.                     Sex:                                     Male.................... Female..................

3.                     Date of Birth..............................................................................

Place and country of Birth  .......................................................

4.                     Nationality                                                                                 

5.                     Passport No.                       .......................................................

Place of Issue                                                                            

Date of Issue                                                                             

Date of Expiry                    .......................................................

6.                     Address in India                                                                        

7.                     Port of Embarkation            .......................................................

Flight No.                             .......................................................

8.    Purpose of visit:

1. Tourism      2. Business     3. Employment        4. Education   5. Transit 6. Official Mission   7. Conference 8. Others Immigration Stamp size 3.6 cm x 2.5 cm

Signature of Passenger

*Foreigners who do not have perforated Embarkation Card stapled in their passport may fill in this card and also mention: Port of Arrival Date of Arrival".

FORM 'E'

(rule 17)

(Passenger Manifest)

Name of shipping company...........................................

Name of vessel.................................................................

Port and date of embarkation/disembarkation in India........

 

SI.      Name of passenger      Nationality         Port of embar-                  Port of kation              disembarkation (abroad)                       (abroad)

1234                                   5


FORM 'F

(rule 14)

Hotel Register

1.       Serial No.

2.   Name of visitor in full (in block capitals, surname first)

3.   Nationality

4.   Number, date and place of issue of passport.

5.   Address in India.

6.   Date of arrival in India.

7.       Whether employed in India — Yes or No.

8.       Proposed duration of stay in India.

9.   Arrived from.

10.    Number, date and place of issue of Certificate of Registration.

If any.

11.         Purpose of visit

12.         Date and time of departure from hotel.

13.         Address to which proceeding.

14.         Signature of visitor.


THE REGISTRATION OF FOREIGNERS (BANGLADESH)

RULES, 1973

G.S.R. 209 (E), dated 27th April, 19731.—In exercise of the powers conferred by Sec. 3 of the Registration of Foreigners Act, 1939, the Central Government here by makes the following rules, namely:—

1.        Short title and commencement.—(1) These rules may be called the
Registration of Foreigners (Bangladesh) Rules, 1973

(2) They shall come into force on the date of their publication in the Official Gazette.

2.        Reporting by a citizen of Bangladesh of his address in India, etc.—
Notwithstanding anything contained in the Registration of Foreigners
(Exemption) Order, 1957, every foreigner, who is a citizen of Bangladesh,
entering India or resident in India shall present in person to the appropriate
Registration Officer appointed under rule 3 of the Registration of Foreigners
Rules, 1939, a report (hereinafter referred to as a registration report) within
the time specified in rule 3:

Provided that no such report shall be necessary in the case of a citizen Bangladesh who enters India on a visa valid for a stay in India for a period of not more than 180 days and who does not want to remain in India beyond the said period:

Provided further that the Registration Officer may, in his discretion, dispense with personal attendance for the purpose of presentation of the registration report.

3.        Procedure for registration.—(1)   The   registration   report   shall   be
presented—

(a)    in the case of a citizen of Bangladesh who enters India on a visa
valid for a stay in India for a period of not more than 180 days, and who
wishes to stay in India beyond the period of 180 days, to the Registration
Officer having jurisdiction in the place where the  said citizen of
Bangladesh is present at the time of presentation of such report;

(b)    in the case of a citizen of Bangladesh who enters India on a visa
valid for a stay in India for a period of more than 180 days, to such
Registration Officer as may be specified in this behalf by the Registration
Officer of the port or other place of arrival.

(2) The registration report shall be presented—

(a)      in the case of a citizen of Bangladesh referred to in Cl. (a) of
sub-rule (1), immediately after the expiry of 180 days of his arrival in
India;

(b)      in the case of citizen of Bangladesh referred to in Cl. (b) of
sub-rule (1), 2[within 14 days] of his arrival in India.

4.       Certificate of Registration .—Every citizen of Bangladesh presenting
a  registration  report  shall  furnish  to   the   Registration   Officer  such
information as may be in his possession for the purpose of satisfying the

 

- - -

1.                 Published in the Gazette of India, Extraordinary, Pt II, Sec. 3 (i), dated 27th April, 1973 (w.e.f. 27th
April, 1973).

2.                  Subs, by the Registration of Foreigners (Bangladesh) (Amendment) Rules, 2000, vide G.S.R.
507 (E), dated 30th May, 2000, (w.e.f. 30th May, 2000) for the words "within 7 days ".

 

- - -

 


said officer as to the accuracy of the particulars specified therein and shall, on being required to do so, sign the registration report in the presence of the said officer and shall thereupon be entitled to receive from the said officer a Certificate of Registration specified in Part III of Form "A" of the Registration of Roreigners Rules, 1939.


THE FOREIGNERS ORDER, 1948

Notifn.No.9/9/46-Political (E.W), dated 10th February, 19481. In exercise of the powers conferred by Sec. 3 of the Foreigners Act, 1946 (31 of 1946), and in supersession of the Foreigners Order, 1939 and of all notifications amending the same, the Central Government is hereby pleased to make the following Order:—

1.        Short title, commencement and extent.—(1) This Order may be called
the Foreigners Order, 1948.

(2)         It shall come into force at once.

(3)         It extends to the whole of India.

2.        Definitions.—In this Order—

(1) "Registration Officer" means a Registration Officer as defined in the Registration of Foreigners Rules, 19392, or such other officer as may be authorised by him to perform the functions of a Registration Officer under this Order;

(2)         "Civil Authority" means such authority as may be appointed by
the Central Government in this behalf for such area as it thinks fit;

(3)         "Port" includes an airport.

3.        Power to grant or refuse permission to enter India.—3[(1) No foreigner
shall enter India—

(a)  otherwise than at such port or other place of entry on the
borders of India as a Registration Officer having jurisdiction at that port
or place may appoint in this behalf either for foreigners generally or for
any specified class or description of foreigners; or

(b) without the leave of the civil authority having jurisdiction at such port or place.]

(2)       Leave to enter shall be refused if the civil authority is satisfied
that,—

(a) the foreigner is not in possession of a valid passport or visa for India or has not been exempted from the possession of a passport or visa;

(b)    he is a person of unsound mind or a mentally defective person;

(c)     he is suffering from a loathsome or infectious disease in
consequence of which, in the opinion of the medical officer of the port or
the place of entry, as the case may be, the entry of the foreigner is likely
to prejudice public health;

(d)    he has been sentenced in a foreign country for an extradition
offence within the meaning of the Indian Extradition Act, 1903 (15 of
1903);

(e)  his entry is prohibited either under an order issued by a
competent authority or under,  the  specific  orders  of the  Central
Government.

(3)          The civil authority may attach such conditions as it thinks fit to
the grant of leave to enter and such conditions may be varied in such
manner or cancelled as the Central Government deems fit.

(4)          faj Notwithstanding anything contained in sub-paragraphs (1) to
(3) or in the Indian Passport Act, 1920 (34 of 1920), or in the rules made

 

- - -

 

1.                  Published in the Gazette of India, 1948, PL 1, Sec. 1, dated 14th February, 1948, p. 198,

2.                  See now the Registration of Foreigners Rules, 1992.

3.                  Subs, by S.R.0.1466, dated 21st June, 1956.

 

- - -

 


thereunder, a civil authority may, in the interests of public safety, prohibit the entry of any foreigner into India.

(b) Whenever the civil authority issues an order under Cl. (a) it shall report the matter forthwith to the Central Government which may cancel or modify the order in such manner as it thinks fit.

(5) Where leave to enter is refused to a foreigner, he may be detained at some place approved by the civil authority and may, if he has come by sea, be placed temporarily on shore for that purpose, and whilst he is so detained a foreigner shall be deemed to be in legal custody and not to have entered India.

4.        Landing of Seamen.—(1) No seaman or member of the crew of an
aircraft, being a foreigner, shall land in India without a special permit from
the Superintendent of Police or any other Police Officer not below the rank
of a Sub-Inspector or Sargent.

(2)          No such permit shall be granted unless the owners or agents of
the vessel or aircraft have undertaken either generally in respect of all
members of the crew of vessels or aircraft belonging to or managed by them
or in an individual case the responsibility for the maintenance of such
seaman or member of the crew during his residence in India and for the
expenses of his departure from India.

(3)          For the purpose of this paragraph "seaman" has the meaning
assigned to it in the Registration of Foreigners Rules, 1939.1

(4)          The provisions of this paragraph are in addition to, and not in
derogation of, the provisions of paragraph 3.

5.        Power to grant permission to depart from India.—2[(1) No foreigner
shall leave India,—

(a)      otherwise than at such port or other recognised place of
departure on the borders of India as a Registration Officer having
jurisdiction at that port or place may appoint in this behalf, either for
foreigners generally or for any specified class or description of foreigners;
or

(b)      without the leave of the civil authority having jurisdiction at
such port or place.]

(2)      Leave shall be refused if the civil authority is satisfied that:—

(a)    foreigner has failed to comply with the formalities of departure
prescribed under the Registration of Foreigners Rules, 1939;1

(b)    the foreigner's presence is required in India to answer a criminal
charge;

(c)     the foreigner's departure will prejudice the relations of the
Central Government with a foreign power;

(d) the departure of the foreigner has been prohibited under an
order issued by a competent authority.

(3)      (a)    Notwithstanding    anything    contained    in    the    above
sub-paragraphs, a civil authority may prohibit the departure of a foreigner
where it is satisfied that such departure would not be conducive to the
public interest;

 

- - -

1.     See now The Registration of Foreigners Rules, 1992.

 

 

- - -


(b) Whenever a civil authority issues an order under Cl. (a), it shall report the matter forthwith to the Central Government which may cancel or modify the order in such manner as it thinks fit.

[5-A. Power to examine persons.—The civil authority may examine any person who seeks leave to enter India or to depart therefrom or during his stay in India for the purposes of the Foreigners Act. 1946, or of any order made thereunder; and it shall be the duty of every such person to furnish to the civil authority such information in such manner and at such times, as that authority may require.]

6. Liability of Master of Vessel, etc., to remove a foreigner.—(1) A civil authority may require the master of the vessel or pilot of the aircraft in which a foreigner has arrived or the owners or agents of that vessel or aircraft, as may be appropriate in the opinion of such civil authority, to remove a foreigner who has been refused permission to enter or who has entered India without its permission 2[or who has been landed in contravention of sub-rule (3)] and the master, pilot, owner or agent, as the case may be, shall comply with such requisition, unless it is received more than two months after the date of the arrival of the foreigner in India.

(2) The master of a vessel or the pilot of an aircraft, scheduled to call at any port outside India, shall, if so required by the Central Government, receive a foreigner in respect of whom an order directing that he shall not remain in India has been made, and his dependants, if any, on board the vessel or aircraft, as the case may be, and afford him and them a passage to that port and proper accommodation and maintenance during the passage.

3[(3) The master of any vessel or the pilot of any aircraft shall not, without the permission of the civil authority, land at any port in India any person travelling by that vessel or aircraft against the wishes of such person, unless such person has been required by the Central Government to be brought to India.

(4) Nothing contained in the Foreigners (Exemption) Order, 1957, shall preclude the operation and application of the provision of sub-paragraph (3)].

[7. Restriction of sojourn in India.—5[(1) Every foreigner who enters India on the authority of a visa issued in pursuance of the Indian Passport Act 1920 (XXXTV of 1920), shall obtain from the Registration Officer having jurisdiction, "either at the place at which the said foreigner enters India or at the place at which he presents a registration report in accordance with rule 6 of the Registration of Foreigners Rules, 19396, a permit indicating the period during which he is authorised to remain in India and also indicating the place or places for stay in India, if any, specified in the visa. In granting such permit, the said Registration Officer may restrict the stay of the foreigner to any of the places specified in the visa.]

7[(2) Every foreigner to whom the provisions of sub-paragraph (1) do not apply shall obtain a permit indicating the period during which he is authorised to remain in India from the Registration Officer to whom he

 

- - -

1..  Ins. by S.R.O. 2675, dated 14th August, 1954.

2..  Ins. by G.S.R. 836, dated 18th September, 1958.

3.         Ins. by G.S.R. 547, dated 30th March, 1971.

4.         Subs, by G.S.R. 74, dated 12th January, 1959.

5.         Subs, by S.0.1793, dated 18th July, 1960 for sub-rule (I).

6.        See now the Registration of Foreigners Rules, 1992.

7.        Subs, by G.S.R. 868, dated 16th June, 1965.

 

 

- - -


presents a registration report in accordance with rule 6 of the Registration of Foreigners Rules, 1939.]

1 [(3) Every foreigner to whom a permit is issued under sub-paragraph (1) or sub-paragraph (2)—

(i) shall not, if the permit indicates the place unless the place or places for stay in India, visit any other place unless the permit is extended by the Central Government .to such other place;

(ii) shall, if the permit indicates the place or places for stay in India, report in person or in writing his arrival at, and departure from, any such place to the Registration Officer having jurisdiction at such place, within twenty-four hours after his arrival or, as the case may be, before his intended departure; and

(iii) shall, unless the period indicated in the permit is extended by the Central Government, depart from India before the expiry pf the said period; and at the time of the foreigner's departure from India the permit shall be surrendered by him to the Registration Officer having jurisdiction at the place from which he departs.]

8.        Prohibited places.—(1) No foreigner shall, without the permission of
the civil authority having jurisdiction at such place, visit, or reside in, any
prohibited place as defined in the Indian Official Secrets Act, 1923 (19 of
1923).

(2)       Where any foreigner is, on the commencement of this Order,
residing in any prohibited place and is not permitted to continue to reside
there, he shall, within such time as may be specified by the civil authority,
remove himself from such place.

(3)       The civil authority may impose on any householder or other person
in such prohibited place the obligation to report to the police or to any naval,
military or air-force authority the presence of any foreigner in his household,
or in any premises occupied by him or under his control and the departure
of any such foreigner and such other particulars with respect to such
foreigner as may be prescribed by such authority.

9.        Protected Areas.—(1) The 'Central Government or, with its prior
sanction, a civil authority may by order declare any area to be a protected
area for the purposes of this Order.

(2) On such declaration, the civil authority may, as to any protected area, by order—

(a)    prohibit any foreigner or any class of foreigner from entering or
remaining in the area;

(b)    impose on any foreigner or class of foreigners entering or being
in the area such conditions or restrictions as it may think fit as to—

(i) reporting to the police or any naval, military, or air-force authority;

(ii) surveying or making sketches or photographs;

(iii) the use or possession of any machine, apparatus, or other article of any description;

(iv) the acquisition of land or any interest in land within the area:

(v) any other matter or thing as to which it may deem it necessary in the interests of public safety impose conditions or restrictions;

 

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1.     Subs, by S.0.1793, dated 18th July, 1960.

 

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(c) impose on any householder or other person the obligation to report to the police or any naval, military, or air-force authority the presence of any foreigner in his household or in any premises occupied by him or under his control and the departure of any such foreigner and such other particulars with respect to any such foreigner as may be prescribed by the order:

Provided that the civil authority may, subject to any general or specific direction of the Central Government, grant to an individual foreigner a special permit exempting him from any or all of the conditions or restrictions imposed under this sub-paragraph.

10. Restrictions on employment.—(1) No foreigner shall, without the permission in writing of the civil authority, either enter any premises relating to or accept employment in, or in connection with,—

(i) any undertaking for the supply to Government or to the public of light, petroleum, power or water; or

(ii) any other undertaking which may be specified by the Central Government in this behalf.

(1 -A) No foreigner employed without the permission in writing of the civil authority before the commencement of the Foreigners (Amendment) Order, 1964, in any undertaking referred to in Cl. (i) of sub-paragraph (1) shall remain employed in such undertaking, without the permission in writing of the civil authority, after the expiry of a period of three months from the commencement of the Foreigners (Second Amendment) Order, 1964.

(1-B) No foreigner employed in any undertaking specified in Cl. (ii) of sub-paragraph (1) before the undertaking was so specified shall remain employed in such undertaking, without the permission in writing of the civil authority, after the expiry of a period of one month from the date of commencement of the Foreigners (Second Amendment) Order, 1964, or the date on which the undertaking was so specified, whichever is later:

Provided that no Pakistani national shall remain employed in any such undertaking as is referred to in Cl. (ii) of sub- paragraph (1), which has been, or may be specified after the 1st September, 1965, unless he has obtained permission in writing from the civil authority within twenty-four hours from the date of commencement of the Foreigners (Second Amendment) Order, 1964 or from the date on which the undertaking is so specified, whichever is later.

(2) The management of any undertaking referred to in a sub-paragraph (1) shall furnish to the civil authority such information regarding foreigner employed in that undertaking and make available for inspection such records and registers as may be called for by the authority.

11. Power to impose restrictions on movements, etc.—The civil authority may, by order in writing, direct that any foreigner shall comply with such conditions as may be specified in the order in respect of—

(1)         his place of residence;

(2)         his movements;

(3)         his association with any person or class of persons specified in
the order; and

(4)         his possession of such articles as may be specified in the order.


1[11-A. Restrictions on certain activities.—Notwithstanding anything contained in the Foreigners (Exemption) Order, 1957, no foreigner shall produce, or attempt to produce, or cause to be produced, any picture or film, including a documentary or feature film for television or the screen, intended for public exhibition, except with the permission in writing of, and subject to such conditions as may be specified in this behalf, by the Central Government.]

 

2[11-B. Restrictions on mountaineering expeditions.—Notwithstanding anything contained in the Foreigners (Exemption) Order, 1957, no foreigner or group of foreigners shall climb, or attempt to climb, any mountain peak in India without obtaining the prior permission in writing, of the Central Government on an application made in that behalf through the Indian Mountaineering Foundation, a registered society having its registered office in the Union Territory of Delhi and without complying with such condition including specification of route to be followed, accompaniment by Liaison Officer, use of photographic and wireless communication equipment, as may be laid down in this behalf by the Central Government.]

12.       Powers to remove foreigners from Cantonments.—The military officer
for the time being in command of the forces in a cantonment may, by order
in writing, direct any foreigner to remove himself from the cantonment
within such time as may be specified in the order.

13.       Power to close clubs and restaurants.—(1) A civil authority may direct
that any premises in its jurisdiction which in its opinion are used for the
sale of refreshments to be consumed on the premises or as a place of public
resort or entertainment, or as a club, and which are or have recently been
frequented by foreigners, shall be either closed altogether or kept closed
during such hours or for such purposes as may be required by it, if in its
opinion either—

(a)  the foreigner so frequenting the premises are of criminal or
disloyal associations or otherwise undesirable; or

(b) the premises are conducted in a disorderly or improper manner,
or in a manner prejudicial to the public good,

and if any premises are kept open in contravention of any such direction the occupier or person having control of the premises shall be deemed to have acted in contravention of this Order.

(2)         Where any premises have been closed under this paragraph the
occupier or person having control of the premises shall not occupy or control
any other premises which are used for the sale of refreshments, or as a
place of public resort or entertainment, or as a club without the consent of
the civil authority of the area in which the premises are situate.

(3)         Any police officer, if authorised by the civil authority may, for the
purpose of enforcing the provisions of this paragraph, enter, if necessary
by force, and search or occupy any premises in respect of which an order
under this paragraph has been made by the civil authority.

(4)         Any action taken by a civil authority under sub- paragraphs (1) to
(3) above shall be reported forthwith to the Central Government which may
cancel or modify such order in such manner as it deems fit.

 

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1.                  Ins. by G.S.R. 754, dated 14th May, 1971.

2.                 Ins. by G.S.R. 109, dated 9th January, 1979.

 

 

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14. Expenses of deportation.—Where an order is made in the case of any foreigner directing that he shall not remain in India or where a foreigner is refused permission to enter India or has entered India without permission, the Central Government may, if it thinks fit, apply any money or property of the foreigner in payment of the whole or any part of the expenses of or incidental to the voyage from India and the maintenance until departure of the foreigner and his dependants, if any.


THE FOREIGNERS (PRODUCTION OF PROOF OF IDENTITY) ORDER, 1991

No. S.D. 839 (E) dated 9th December, 19911.—In exercise of the powers conferred by Sec. 3 of the Foreigners Act, 1946 (31 of 1946), the Central Government hereby makes the following Order, namely:

1.        (1) This order may be called the Foreigners (Production of Proof of
Identity) Orders, 1991.

(2) They shall come into force on the 10th day of December, 1991 and shall remain in force up to and inclusive of 16th December, 1991.

2.        Every foreigner who is required to be in possession of a passport
or any orders travel document for the purpose of entry into India shall carry
with him at all times, while he is in the Union Territory of Delhi, his passport
or such other travel, document as it is required to be in his possession or
other proof of his identity as also the certificate of registration and
residential permit, if any, issued to him under the Registration of Foreigners
Rules, 1939, and the Foreigners Order, 1948, and shall be liable to produce
the same on demand to any police officer concerned with internal security
duty in respect of foreigners.

 

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1.     Published in the Gazette of India, Extraordinary, Pt. //, Sec, 3 (ii), dated 9th December, 1991.

 

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REGULATING ENTRY OF TIBETAN NATIONALS INTO INDIA1

In exercise of the powers conferred by Sec. 3 of the Foreigners Act, 1946/3J of 1946) and Sec, 3 of the Registration of Foreigners Act, 1939 (16 of 1939), the Central Government is pleased to direct that any foreigner of Tibetan nationality, who enters India hereafter, shall—

(a)  at   the   time   of  his   entry   into   India   obtain   from   the
Officer-in-Charge of the Police post at the Indo-Tibetan frontier, a permit
in the form specified in the annexed schedule;

(b)    comply with such instructions as may be prescribed in the said
permit; and

(c)     get himself registered as a foreigner and obtain a certificate of
registration.

SCHEDULE

PERMIT

Serial No.

Mr........................ son  of.         a foreigner of Tibetan nationality whose

description is given below having arrived in India from Tibet via    is hereby

permitted to stay in India for a period of.    months form the date hereof and to

travel to the places mentioned below. If he/she does not leave India before         

he/she will, unless he/she has obtained the permission of the Central Government to remain for a longer period, be liable to prosecution for a contravention of the provisions of the Foreigners Act, 1946, punishable with imprisonment for a period of five years and with fine and will also be liable to expulsion from India. Application

for an extension of this permit should be made at least fifteen days before          

and must be addressed to the Central Government through the State Government.

2.