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--------------- Print Magazine --------------
  May 2016
  April 2016
Legal Article



Anil Malhotra *

The Controversy

As debates continue in India about using laws made during the British Raj, Great Britain itself is in the process of repealing 38 enactments which were legislated between 1849 and 1942 relating to construction and maintenance of Indian Railways network during the British Rule. However, we are still not following suit. Even though the Parliament has enacted The Passports Act, 1967, The Citizenship Act, 1955 and in 2005, created " Overseas Citizens of India ", till date we still rely on The Passport (Entry into India) Act, 1920, The Registration of Foreigners Act, 1939, and The Foreigners Act, 1946, for various purposes. Most of such archaic legislations made during colonial rule are redundant, do not stand the test of principles of natural justice, confer unfettered, arbitrary and draconian powers, which seriously requires them to be taken off the statute book. But, we still carry on regardless.

A Wholesome Law

The Passports Act, 1967, which is a comprehensive and wholesome law relating to issue of passports and travel documents, provides a statutory safeguard procedure for variation, impounding and revocation of passports with right of appeal to aggrieved persons against offences and penalties levied under this Act. However, the simultaneous existence of the Passport (Entry into India) Act, 1920 and The Foreigners Act, 1946, conferring absolute and unlimited powers to remove or deport a person from India summarily without following the due process of law, are an anathema and an anti-thesis to the rule of law in a democratic nation with ample scope for judicial review. Powers of house arrest, detention, solitary confinement and summary removal from India under these 1920 and 1946 Acts clearly infringe the fundamental rights of life and personal liberty guaranteed by the Indian Constitution. The reasons, therefore, to retain these pre-independence laws seem to be misplaced and defy fundamental freedoms.

New Categories

1.2 billion Indians consisting of 30 million non-resident Indians in almost 180 countries on the globe has led to compromises on dual nationality which is otherwise prohibited under Article 9 of the Constitution of India and section 9 of the Citizenship Act, 1955. Categories of "Persons of Indian Origin" (PIO) and "Overseas Citizens of India" (OCI) were carved out to confer limited benefits on persons of Indian origin. Therefore, PIOs and OCIs now enjoy limited rights in India and can enjoy residence rights in India without any visa, registration, sanction or other permissions. Moreover, under Article 5 of the Constitution, every person who has his domicile in India and was born in India or whose parents were born in India or who has been ordinarily resident in India for not less than 5 years preceding the commencement of the Constitution, shall be a citizen of India. Hence, inherent rights flow to presumption of Indian nationality by determination of law.

Determination of Nationality

Under the 1946 Act, disputes relating to questions of determination of nationality when a foreigner is recognised as a national of more than one country or when it is uncertain as to what nationality is to be ascribed to a foreigner, such person may be treated as the national of the country with which he appears to be most closely connected. The 1920 and 1946 Acts permit removal or deportation of a person from India without providing any forum or procedure for determination of the question of the nationality of the foreigner or giving any statutory rights in this process. Tribunals to determine these questions are non-existent. However, in the same breath today, now the Citizenship Act, 1955 and the Citizenship Rules, 2009 prescribe that if any question arises as to whether, when or how any person had acquired the citizenship of another country, the Central Government shall first determine such question. The Supreme Court interpreting these provisions has held that a person can not be ordered to be deported or removed from India unless the Central Government takes a conscious decision upon holding a quasi-judicial enquiry that a person has ceased to be an Indian citizen. A foreign passport simpliciter will not label a person as a foreigner and determination of his nationality is his fundamental right. It is time our Parliament reconciles this concept of freedom, personal liberty and natural justice inter-twined with determination of nationality.

Debatable Question

In the social milieu today, international Indians qualify to be PIOs or OCIs. If they wish to reconnect with their homeland, they ought not be bundled out as foreigners by invoking the colonial provisions of the 1920 and 1946 Acts which offend fundamental freedoms. The Citizenship Act, 1955 itself creates harmony. The retention of a foreign passport today cannot lead to deportation and summary removal from India. Why then, do we need to retain the 1920 and 1946 enactments which were enacted to regulate the entry of foreigners into India in circumstances prevailing in 1946. This is a serious issue which must engage the attention of our Parliament.

Need of the Hour

Today, persons of Indian origin have matters relating to matrimonial differences between spouses of global origin or nationality issues arising out of foreign domiciles. The desirable approach in the proper perspective today therefore would be to create appropriate forums or authorities within the legal system who would address such resolvable issues by granting opportunity of hearing and redressal. Accordingly, deportation or removal of a person to a foreign jurisdiction would be an abject surrender to a foreign dominion. Having resolved to be a sovereign, socialist, secular, democratic Republic, we in India, are very capable and competent of adjudicating our nationality issues to provide redressal for indigenous Indians. Our post independence laws provide the solutions which our vibrant judiciary interprets to protect fundamental freedoms guaranteed under the Constitution of India. Hence, pre-independence laws in conflict with rights today must go off the statute book.


  • The Registration of Foreigners Act, 1939 - An Act to provide for the registration of foreigners in India.
  • The Registration of Foreigners Rules, 1992 issued in supersession of the Registration of Foreigners Rules, 1939 - Rules made under the 1939 Act.
  • The Foreigners Act, 1946 - An Act to confer upon the Central Government certain powers in respect of foreigners.
  • The Foreigners Order, 1948 - An Order made under Section 3 of the 1946 Act for power to grant permission to depart from India.
  • The Foreigners (Tribunals) Orders, 1964 - An Order made under Section 3 of the 1946 Act to constitute Tribunals to determine if a person is a foreigner.
  • The Passport (Entry into India) Act, 1920 - An Act to take powers to require Passports of persons entering into India.
  • The Passport (Entry into India) Rules, 1950 - Rules made under the 1920 Act.
  • The Passports Act, 1967 - An Act to provide for the issue of Passports and travel documents to regulate departure from India.
  • The Citizenship Act, 1955 - An Act to provide for the acquisition and determination of Indian Citizenship.
  • The Citizenship Rules, 2009 - Rules made under Citizenship Act, 1955.
*   The Author practices law and can be reached at anilmalhotra1960@gmail.com. He has books “Indians, NRIs and Law” (2011), “India, NRIs and the Law” (2009) and “Acting for Non-Resident Indian Clients” (2005) to his credit.
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