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Amendment to the Foreigners Order, 1948: Living in India legally

This article addresses the March 2022 amendment made to the Foreigners Order, 1948 and articulates the major systemic change it has brought forth in terms of identifying the grounds on which a foreigner can be said to be legally residing in India.

The Ministry of Home Affairs issued a gazette notification which amended the Foreigners Order, 1948 by introducing a new provision under paragraph 3B, stating the requirement of holding a valid passport or other valid travel documents while living in India. The Foreigners Act, 1946 and the Foreigners Order, 1948 only talked about holding a valid document while entering India while the amendment brings in the clause that refers to the requirement of holding valid documents during stay in the country.

The only exception to these rules is the people from minority communities in Afghanistan, Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered India on or before 31 December 2014. The Ministry of Home Affairs stated that the exemption has nothing to do with the Citizenship Amendment Act (CAA), which grants citizenship to the above-mentioned communities from the three countries. The Act, passed in 2019, has not been implemented as its rules are yet to be framed.

Foreigners Order 1948

The Order offers guidelines to deal with all foreigners. It enables the Government to take necessary steps to prevent illegal migrants involving the use of force. The concept of ‘burden of proof’ lies with the person and not with the authorities. It allowed the Government to create tribunals which would have powers like those of a civil court. Amendments (2019) to the Foreigners (Tribunals) Order, 1964 empowered even district magistrates in all states and union territories to set up tribunals to decide whether a person staying illegally in India is a foreigner or not.

Amendment to the Foreigners Order 1948 

The regulations for the entry and departure of foreigners in India are listed in The Foreigners Order (1948) under Foreigners Act, 1946. Apart from this, the Passport (Entry in India) Act, 1920 lists the rules for foreigners sanctioning their stay in the country based on the visas affixed to their passports or other travel documents. If a foreigner is not in possession of a valid passport, it will be regarded as a punishable offence.
The Foreigners (Amendment) Order, notified on 8 March 2022, inserts paragraph 3B, which states that unless exempted via government orders provided in terms of this Order or Rule 4 of the Passport (Entry into India) Rules 1950, a foreigner must hold a valid passport or other valid travel document relating to passport, as the case may be, while living in India.

The Order further explains itself while stating that for the purpose of this paragraph, ‘other valid travel document’ includes emergency certificate or certificate of identity or any other document which has been issued by or under the authority of the government of a foreign country that satisfies the conditions underlined in the Passport (Entry into India) Rules, 1950 as made under the Passport (Entry into India) Act, 1920 (34 of 1920).

The amended Order also enables online filing of any report, application or information.

With respect to this amendment, it is important to pay attention to a few other connected legal frameworks as mentioned below.

Regulations required to stay in India legally


In terms of the provisions in the Passport (Entry into India) Act 1920, and the Rules made thereunder, every foreigner entering India must be in possession of a valid national passport or any other internationally recognised travel document establishing their nationality and identity and bearing - (a) their photograph, and (b) a valid visa for India granted by an authorised Indian representative abroad.

As mentioned above, the amendment to the Foreigners Order, 1948 states that the ‘other valid travel documents’ include emergency certificate or certificate of identity or such other document which has been issued by or under the authority of the government of a foreign country satisfying the conditions specified in the Passport (Entry into India) Rules, 1950 as made under the Passport (Entry into India) Act, 1920 (34 of 1920).

Foreigner registration is a compulsory obligation stated by the Government of India which requires all foreign nationals (excluding overseas citizens of India) visiting India on a long-term visa (more than 180 days) to register themselves with a Registration Officer within 14 days of arrival in India.
  • Pakistani nationals visiting India must register within 24 hours of arrival, irrespective of the duration of their stay.
  • Foreign children under the age of 16 are exempt from registration requirements.
  • Foreign nationals have to report in-person to the nearest Registration Officer within their jurisdiction.
  • Those suffering from medical issues may be exempt from appearing in-person for registration.
  • Foreign nationals are issued a residential permit at the time of registration which has a validity matching the period of stay specified in the visa. 
The Union Government launched the e-FRRO scheme in April 2018, which allows foreigners to register and avail visa and immigration related services online. A foreign citizen is no longer required to appear in-person at a Foreigners Regional Registration Officer (FRRO), under this scheme, unless specifically required to do so. 

An expired passport renders an active visa invalid


If one’s visa is active and the passport expires, one must apply for a new passport. Once the new passport has been obtained, one can fill the visa application form again. An expired passport will render an active visa invalid. 


Offences and Penalties for living in India without valid documents


Under the Passport Act, 1967 following are the offences and penalties for living in India without abiding to the regulations laid out by the Union Government.
  • Whoever fails to meet the regulations laid out for foreigners living in or knowingly furnishes any false information or suppresses any material information with a view to obtain a passport or travel document or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or fails to produce for inspection their passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or knowingly uses a passport or travel document issued to another person; or knowingly allows another person to use a passport or travel document issued to them shall be punishable with imprisonment for a term which may extend to seven [two years or with fine which may extend to five thousand rupees] or with both.
  • Whoever, not being a citizen of India, makes an application for a passport or obtains a passport by suppressing information about their nationality, or holds a forged passport or any travel document shall be punishable with imprisonment for a term which shall not be less than one year [but may extend to five years and with fine which shall not be less than ten thousand rupees, but which may extend to fifty thousand rupees] or with both.
  • Whoever contravenes any condition of a passport or travel document, or any provision of the Passport Act, or any rule made thereunder, for which no punishment is provided elsewhere in the Act shall be punishable with imprisonment for a term - which may extend to three months or with a fine, which may be up to five hundred rupees or both.
  • Whoever, previously convicted of an offence under the Passport Act, is again convicted of an offence under this Act shall be punishable with double the penalty for the latter offence.


Conclusion

Several foreigners have been found to be ‘overstaying’ in India, claiming to have lost their documents. Prior to the amendment, the Foreigners Act and Order only talked about holding a valid document while entering India. While it is understood that one must continue to hold the document while living in India, it has been observed that some people have been violating this condition. Hence, the amendment has been made for more clarity. In a real case of lost documents, it is expected of the foreigner to report the matter to police and contact their embassy to get temporary documents.

Besides, there are many people who have been living in India since the Partition without documents. The amendment is also a move to bring these people under the process of citizenship and to weed out those who are identified as illegal immigrants.

 

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