India shares around 15,106.7 km long and porous international boundary with other states. However, there are some disputed boundaries as well. Border sharing plays a significant role, but it also poses problems like illegal migration, a common but difficult problem. Illegal migrants are those individuals who violate the immigration laws of a State.
There are various reasons for illegal migration to India. Firstly, the growing population but low economic growth leads to illegal migration. In such a situation, people often migrate for better opportunities. Additionally, porous borders, corruption by some security personnel, the same ethnicities which enable the authorities to recognize the migrants and, a political agenda that is vote bank are some factors that facilitate such migration.
Illegal migration causes various problems like uneven distribution of opportunities and resources, circulation of fake currency, drug smuggling, ethnic conflict. Under these circumstances, the law and order are highly impacted. Issues like fraudulently attaining voting rights and Aadhar cards are a constant concern. Therefore, the government adopts different means to regulate illegal migration.
THE LEGAL FRAMEWORK TO CONTROL ILLEGAL MIGRATION
The honourable Home Minister Amit Shah had announced that a National Register of Citizens (NRC) would be implemented across India. The Ministry of home affairs expects that it would keep a check on illegal migrants. But there already exists a legal framework to control it.
We will discuss various rules that were formulated to tackle illegal migration in India.
- Foreigners Act, 1864
This is the first enactment that deals with foreigners related to their expulsion, arrest, detention, and a ban on their entry after detention into India.
- The Passport (Entry into India) Act, 1920
This act empowers the government to formulate rules related to the entry of people into India. It empowers the government to remove any person entering India without a passport.
- Foreigners Act, 1940
This act was enacted during the second World war. This resulted in the concept of ” burden of proof”. Section 7 of this act deals with the questions raised, related to the nationality of an individual and suggests that the onus of proving that an individual is not a foreigner simply lay upon that individual and not on the authorities.
- Foreigners Act, 1946
The Foreigner Act, 1946 replaced the Foreigner Act,1940. It conferred vast powers to deal with the foreigners. This act empowers the government to take necessary steps to tackle the matter of illegal migrants. The government is authorized to use force to prevent illegal migrants. The concept of burden of proof does not lay upon authorities but on individuals is still applicable in all States and Union territories. The concept of burden of proof has been upheld by the constitutional bench of the Supreme Court.
It provides authority to the government to establish tribunals that would have the same powers as civil courts. It also defined a foreigner as “a person who is not a citizen of India”. It authorized the government to formulate provisions related to regulation, prohibition, or restriction of the entry of a foreigner in India. This act also suggests that the rights of a foreigner can be restricted in terms of their stay if the authority passes any such order.
The government brought a Foreigner( tribunal) order in 1964. The tribunal is empowered to decide whether an individual is a foreigner as per the Foreigner Act, 1946. The tribunal has similar powers as Civil Courts, which provide an individual reasonable opportunity to present evidence in support of their case, before the final judgment. Amendments made in 2019 to Foreigners ( tribunal) order, 1964 has authorized District Magistrate to set up tribunals in all States and Union territories to decide whether an individual that is illegally staying is a foreigner or not.
- Illegal Migrants (Determination by Tribunals) Act, 1983
The aim behind the introduction of this act was to detect and deport the illegal migrants who have entered on or after March 25, 1971. This act was considered to be a failure as it put a huge burden on authorities to decide whether a person is a foreigner or not. There was an absence of the concept of ‘burden of proof’ in this act. This resulted in the continuation of the stay of a huge number of non- Indians, who may have entered Assam after March 25, 1971, without proper and valid documents, in Assam. These actions culminated in a landmark judgment by the Supreme Court, filed by Sarbananda Sonowal ( Chief Minister of Assam), who challenged this act. During the proceedings of the case, Sarbananda Sonowal v. Union of India (2005), the Central government submitted that only 1,494 illegal migrants had been deported from Assam till June 30, 2001, since the enforcement of illegal migrants (determination by tribunals) act(IMDT). While 4,89,046 Bangladeshi nationals have been deported from West Bengal between 1983 and November 1998 under the Foreigner Act, 1946. The honourable Supreme Court quashed the IMDT Act and closed down all the tribunals that were functional under this act. Additionally, it transferred all the pending cases filed in IMDT tribunals to foreigner tribunals that were constituted under the Foreigner(tribunals) order, 1964.
The individuals can approach the foreign tribunals, established only in Assam if they are excluded from the NRC, within 120 days of receiving a certified copy of rejection. In other states, a suspected foreigner is brought before a local court under the Passport Act,1920 or the Foreigner Act, 1946.
- The Registration of Foreigners Act, 1939
It is mandatory under FRRO, that all foreign nationals (excluding overseas citizens of India) who visit India on a long-term visa(more than 180 days) should register with a registration officer within 14 days of their arrival in India. While Pakistani nationals have to register within 24 hours of arrival and duration of their stay does not matter.
CHALLENGES FACED BY INDIA
It is very clear that there are various issues and concerns related to illegal migrants like human trafficking, political instability, clash of interest, disturbance in law and order, a rise of militancy, and threat to national security and to address these issues various steps had been taken but still, there is an influx of illegal migrants in India. These issues still exist because of various challenges faced by India. These challenges are as follow-
- There is a lack of specific and appropriate legislation that could address the issue of illegal migrants. The Foreigner Act, 1946 fails to deal with the problem of refugees as a class. Additionally, it provides excessive power to the Central government as it can deport any foreigner
- The policies towards the issue of illegal immigrants as well as refugees are a bit unclear. According to the Indian laws, refugees as well as illegal immigrants are considered the same and are covered under the Foreigners Act, 1946.
- The lack of a proper legal framework leads to ambiguity in policy as India’s refugee policy is guided by ad hocism. It provides authority to the government in office to decide the entry of an individual and provides a choice to select the entry of refugees. This is a discriminatory action and it violates human rights.
There emerges a need to clinically address this issue and adopt appropriate legal and institutional methods. There are various gaps while monitoring the border’s security. The government should adopt an integrated as well as holistic approach for tackling this issue. It should integrate high-tech surveillance, human resource, weapons, artificial intelligence equipment. There is a need for a dedicated, efficient, and appropriate communication network for easy and quick transmission of information collected by surveillance equipment. While monitoring the security of borders, socio-economic infrastructure plays a crucial role. The various schemes like border infrastructure management and border area development should be implemented effectively and appropriately. Additionally, the construction of strategic roads, infantry battalions, advanced airstrips help in dealing with this problem. The use of space technology can be advantageous in dealing with this issue. Moreover, India should formulate Domestic refugee laws as it could deter oppressive neighbourhood governments to persecute their citizen and make them flee to India.
Author(s) Name: Prashansa Agarwal (Bennett University, Greater Noida)
 Soibam Rocky Singh, “What are the laws in place to tackle illegal non-citizens?”( The Hindu, November 24, 2019),< https://www.thehindu.com/news/national/what-are-the-laws-in-place-to-tackle-illegal-non-citizens/article30063702.ece>
(accessed on August 20,2021)
 Foreigners Act, 1864
 The Passport (Entry into India) Act, 1920
 Foreigners Act, 1940
 Foreigners Act, 1940, section 7
 Foreigners Act, 1946
 Illegal Migrants (Determination by Tribunals) Act, 1983
 Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665
 The Foreigner Act, 1946
 Shri Nityanand Rai, ‘Policy on Illegal Migrants’ (11 August, 2021, 6:14PM) < https://pib.gov.in/PressReleseDetail.aspx?PRID=1744875> (accessed on 20 August, 2021)