The Foreigners Act 1946 was, for close to eight decades, the statute that decided what the Indian State could do about a person it treated as not its own. It was a short Act, and most of it was machinery: a definition, a power to make orders, a penalty clause, a protection clause. Its consequence, however, did not lie in its length. It lay in a single provision, Section 9, which provided that where a question arose whether a person was or was not a foreigner, the onus of proving that the person was not a foreigner lay upon that person. A statute that places the burden of disproving foreignness on the individual, in a country where documentary records of birth, parentage and residence are missing for very large numbers of people in the relevant generations, is a statute whose real content is that burden. Everything else in the Act, the orders, the tribunals, the detention, is the working out of that one allocation of proof.

The Act was repealed in 2025. The Immigration and Foreigners Act 2025, which replaced it, repealed three other enactments alongside it and rewrote the administrative law of entry, registration and removal. It did not rewrite the burden. Section 16 of the new Act carries Section 9 forward in materially the same terms, and says so against the new evidence statute in words as emphatic as the original used against the old one. This article therefore treats the Act of 1946 as its subject in full: its origin as a wartime instrument, its definition, its order-making power, the burden provision and the case law that confined it, the tribunals that an order under it created, the Assam detour through a separate statute that the Supreme Court struck down, the penalties, and the detention that followed a declaration when removal could not be carried out. It closes with the repeal and with the savings, because the repeal is the frame within which everything said about the 1946 Act must be read: the Act is history, the proceedings and orders made under it survive by the savings clause, and the burden that made it consequential is operative law in its successor. A reader who wants the map of the whole field, within which this statute sits beside the citizenship statute and the passports statute, will find it in the complete guide to citizenship law in India; this article is the pillar treatment of the foreigners statute itself.

A wartime instrument placed on a permanent footing

The Act of 1946 was not written for peacetime administration and did not pretend to be. Its predecessor was an ordinance of 1939, issued when war began, under which the colonial government took power over the entry, presence and departure of foreigners in India. Ordinances of that kind were emergency instruments, and the legislation of 1946 converted the emergency arrangement into an ordinary statute without changing its character. The Foreigners Act 1946, Act 31 of 1946, received the assent of the Governor-General in November 1946, months before independence, and it survived the transfer of power, the Constitution and every subsequent decade of amendment of the surrounding law, because the need it answered, a general power in the executive over the foreigner, was one that every successor government also felt. The Constitution itself distributed the subject to the Union: citizenship, naturalisation and aliens fall in the Union List, and Parliament’s power over citizenship under Article 11 sits beside the executive’s long-recognised authority over the admission and expulsion of foreigners. The Supreme Court put the constitutional position plainly in Louis De Raedt v Union of India, (1991) 3 SCC 554, holding that a foreigner has no fundamental right to reside or settle in India, that the freedom of movement and residence in Article 19(1)(e) is available to citizens alone, and that the power of the Government of India to expel a foreigner is absolute and unlimited by any provision conferring a right of hearing as a matter of course, though the foreigner remains a person within Articles 14 and 21. That holding framed the 1946 Act for its whole life: a statute of executive power over persons who stood outside the constitutional promise of residence, restrained by the guarantees that protect every person rather than by the guarantees that protect citizens.

The brevity of the Act is itself a drafting choice worth noticing. Parliament did not enact a code of foreigners law in 1946. It enacted a power and left the content to orders. Section 3 authorised the Central Government to make orders on the whole subject; the Foreigners Order 1948, made under that section, supplied much of the working law on entry, landing permits, residence permits and protected areas; the Registration of Foreigners Act 1939, a separate statute, handled registration and reporting; the Passport (Entry into India) Act 1920 handled the passport requirement at the border. The field was therefore a patchwork from the start, four statutes of 1920, 1939, 1946 and, much later, 2000, administered together. The pillar statute was the one of 1946, because it held the order power and the burden. When the replacement came in 2025, it was the patchwork that the legislature cited as the reason for consolidation, and the Statement of Objects and Reasons of the new Act described the Acts of 1920, 1939 and 1946 as enactments of the pre-Constitution period brought in during the extraordinary times of the two world wars. The description is accurate, and it is also incomplete in the way that matters: the wartime origin explains the width of the power, but the burden provision was not a wartime improvisation. It was retained, examined, defended and re-enacted across the whole period, and its retention in 2025 was a legislative choice made with the case law on it fully available.

The definition in Section 2(a): a negative that decides everything

Section 2(a) of the Act defined a foreigner as a person who is not a citizen of India. The definition is a negative, and its negative form is the source of both the statute’s reach and its difficulty. The Act did not say who a foreigner was by reference to any foreign nationality, passport or allegiance. It said that a foreigner was anyone who failed the citizenship test, which meant that the entire operative content of the definition was borrowed from a different statute and a different part of the Constitution. Whether a person was a citizen was determined by Part II of the Constitution for the commencement generation and by the Citizenship Act 1955 for everyone after, and the determination of that question, with its rules on birth, descent, registration and naturalisation and its special provisions for Assam, belongs to the article on the Citizenship Act 1955, which owns the subject. The foreigners statute took the answer as its input. A person held a passport of another country: a foreigner, plainly. A person held no passport and no papers of any country, and claimed citizenship by birth on Indian soil: the definition gave no answer of its own, because everything turned on the citizenship question that the definition presupposed. The class of persons for whom the Act mattered most was precisely the class the definition could not resolve, persons whose citizenship was the very thing in dispute.

Two consequences follow from the negative definition. The first is that the Act applied, in terms, to every human being in India who was not a citizen, from the visiting tourist who overstayed a visa to the person born in an Indian village whose family had never held a document. The statute drew no line between the documented foreigner, whose status was admitted and whose dealings with the Act were about conditions of stay, and the disputed person, whose status was the question. The same order power, the same penalty clause and the same burden governed both. The second consequence is that the Act created the possibility of the stateless proceedee: a person found not to be a citizen of India was a foreigner under the Act whether or not any other State recognised the person as its national. The Act required no proof of foreign nationality. It required only the failure of the proof of Indian citizenship, and once that failure was recorded by a tribunal, the person was a foreigner for every purpose of Indian law while remaining, very often, a national of nowhere for every purpose of removal. The gap between those two positions, declared foreigner in India and national of no State willing to receive the person, is where the detention question lived, and it was created by the definition itself, before any question of burden arose.

Section 3: the order-making power at the centre

The operative power of the Act stood in Section 3. By Section 3(1), the Central Government could by order make provision, either generally or with respect to any particular foreigner or any specified class or description of foreigners, for prohibiting, regulating or restricting the entry of foreigners into India, their departure from India, or their presence or continued presence in India. Section 3(2) then listed, without limiting the general power, the matters an order could cover: that a foreigner shall not enter India, or shall enter only at specified times, by a specified route and at a specified place, subject to specified conditions; that a foreigner shall not depart, or shall depart only on specified terms; that a foreigner shall not remain in India or in any specified area; that a foreigner required not to remain shall meet the cost of removal and of maintenance pending removal; that a foreigner shall remove himself to and remain in a specified area; that a foreigner shall comply with conditions, including residing in a particular place, observing restrictions on movement, furnishing proof of identity, reporting particulars, allowing a photograph and fingerprints to be taken and submitting to medical examination; and, in clause (g) of Section 3(2), the provision on which the detention framework rested, that a foreigner may be arrested and detained or confined. Section 12 allowed an authority on which a power under the Act was conferred to authorise a subordinate authority in writing to exercise it, and the working administration of the Act, through civil authorities, Foreigners Registration Officers and the police, ran on authorised and delegated power for the whole of the Act’s life.

What did Section 3 of the Foreigners Act 1946 empower the Central Government to do?

Section 3 empowered the Central Government to make orders prohibiting, regulating or restricting the entry of foreigners into India, their departure, and their presence or continued presence in India, generally or for any class or individual, including orders for arrest and detention under clause (g) of Section 3(2).

Three features of Section 3 deserve emphasis, because together they explain why a statute of seventeen sections governed so large a field. The first is that the power was a power to legislate by order on the whole subject matter, subject to no statutory criteria for its exercise beyond the purposes the section itself named. The courts did not read substantive limits into it. In Hans Muller of Nurenburg v Superintendent, Presidency Jail, (1955) 1 SCR 1284, the Supreme Court upheld the width of the power and of the detention it could authorise, treating the satisfaction of the Government on the matters within Section 3 as a matter of executive judgment into which the Court would not substitute its own. The second feature is the individual order: Section 3 was not confined to general rules, and an order could be made against a named foreigner, directing departure, restricting movement or requiring residence in a place. The expulsion jurisprudence of the Act, of which Louis De Raedt is the leading modern statement, is a jurisprudence of individual orders made under a general power. The third feature is detention. Clause (g) did not create a detention regime with grounds, periods, review or release conditions stated in the Act. It authorised orders providing for arrest and detention or confinement as one item in a list of restrictions, and the Act nowhere prescribed a maximum period, a reviewing authority or a duty to release when removal proved impossible. That silence, present from 1946 to the repeal, is the single most important structural fact about detention under the Act, and it is why the law of detention under the foreigners statute was made by the courts, in habeas corpus and in the Assam detention proceedings, and not by the statute at all.

Reading the Act: an anatomy in seventeen sections

The Act rewards being read as a whole, because its seventeen sections divide into groups that reveal the drafting intention. Sections 1 and 2 are formal: short title, extent to the whole of India, and the definitions, of which only the definition of a foreigner carries weight. Sections 3 to 8 are the executive code: the order power and its particular heads; the exemption power in Section 3A; the internee and parole regime in Section 4; the name provision in Section 5; the carriers’ duties in Section 6; the accommodation duties in Section 7 and the control of frequented places in Section 7A; and the determination of nationality in Section 8, by which a foreigner acknowledged to be foreign but of contested or multiple nationality could be treated as the national of the country of closest connection, the decision being final subject to revision by the Central Government. Sections 9 to 12 are the rules of decision and enforcement: the burden, the exemption provision in Section 10 that the Foreigners Laws (Amendment) Act 1957 repealed in 1957, the force provision in Section 11 and the delegation provision in Section 12. Sections 13 to 17 are the sanction and savings: attempts and abetment, the penalty, the good-faith protection in Section 15, the non-derogation clause in Section 16 and the repeal clause in Section 17, itself repealed in 1950. Two absences structure everything. There is no provision for appeal anywhere in the Act: not from an order under Section 3, not from a nationality determination under Section 8 beyond revision by the same Government that made it, and not from a tribunal’s opinion beyond the constitutional writ. And there is no provision conferring rights on the foreigner as such: the Act is written throughout in the grammar of power and duty owed to the State, and every protection the foreigner in fact enjoyed under it entered from outside, from the Constitution as the courts applied it. An enabling statute of this completeness, delegating its content to orders and its application to authorities, is a characteristic instrument of its decade, and the courts’ interpretive posture matched it: in Hans Muller of Nurenburg the Court declined to sit in judgment on the executive’s satisfaction under Section 3, and in the decades after, challenges to the Act were almost never challenges to its text. They were challenges to the fairness of its application in the case at hand, which is another way of saying that the constitutional law of the subject grew in the interstices of an unreformed statute. The amendments the Act received across seventy-nine years were correspondingly modest: the insertion of Section 3A and the repeal of Section 10 in the nineteen fifties, the insertion of Section 7A on places frequented by foreigners, the restructuring of Section 14 and the insertion of Section 14A in 2004. Parliament repeatedly touched the edges of the Act and left the centre, Sections 3 and 9, exactly where the drafters of 1946 had put it.

The Act at ground level: information, places and internees

Between the order power of Section 3 and the burden of Section 9, the Act carried a set of provisions that constituted the everyday law of foreigners in India, and an account of the statute is incomplete without them, because they show what kind of instrument it was: a system for knowing where foreigners were and what they were doing, built out of duties laid on the people around the foreigner as much as on the foreigner personally. Section 5 regulated identity, prohibiting a foreigner from assuming or using, for any purpose, a name other than the name by which the foreigner was ordinarily known, spelling changes included, except under licence or in the case of a married woman taking her husband’s name. Section 6 laid the first reporting duty on carriers: the master of a vessel or the pilot of an aircraft landing or embarking in India was bound to furnish returns of prescribed particulars about passengers and crew who were foreigners; a District Magistrate, a Commissioner of Police or a Superintendent of Police could require further information for enforcement; and where a foreigner had entered in contravention of the Act, the prescribed authority could, within two months of the entry, direct the carrier to provide accommodation on the vessel or aircraft, otherwise than at Government expense, to remove the foreigner from India. A carrier about to depart could likewise be directed, on tender of payment at current rates, to carry a foreigner ordered not to remain in India, with dependants travelling with the foreigner. Section 7 made the keeper of any premises where lodging or sleeping accommodation was provided for reward responsible for submitting prescribed information about the foreigners accommodated, periodically or on a specific occasion; the guest was bound to furnish the keeper the particulars required; the keeper was bound to maintain a record open to inspection by the police; and in a prescribed area the duty could be extended to every occupier of residential premises. Section 7A empowered the prescribed authority to control places frequented by foreigners, directing the closure of a restaurant, place of public resort or club, or its use on conditions, or the refusal of admission to all foreigners or to a specified class, with an appeal to the Central Government within thirty days. Section 3A empowered the Central Government to exempt citizens of specified Commonwealth countries, and any other individual foreigner or class of foreigners, from provisions of the Act or of orders under it, with the order laid before Parliament.

Section 4 addressed the interior of detention. A foreigner against whom an order under Section 3(2)(g) directed detention or confinement was called an internee, and the Act provided that the internee was to 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 might from time to time by order determine. A foreigner under an order to reside in a place set apart for the residence under supervision of a number of foreigners was a person on parole, subject to a parallel order-made regime of maintenance and discipline. Section 4 also made it an offence knowingly to assist an internee or a person on parole to escape, or to harbour an escaped internee, and empowered the Central Government to regulate access to places of detention or restriction and the despatch of articles to the persons held there. The architecture is instructive: the Act did not ignore the conditions of confinement, as later criticism sometimes assumed; it assigned them, wholly, to executive order. The detainee’s entitlements were whatever the orders said they were, and the statute set no floor of its own beneath them, which is why, seven decades later, the conditions of the Assam facilities were litigated as matters of constitutional right under Article 21 rather than as matters of statutory entitlement under the Act that authorised the detention. Section 11 completed the scheme by arming the authorities with force: an authority empowered to give a direction could take such steps and use such force as appeared reasonably necessary to secure compliance or to prevent or rectify a breach, a police officer held the like power in respect of orders and directions, and the power was deemed to confer a right of access to any land or property. Read together, Sections 3 to 13 describe a complete administrative state in miniature: a power to order, duties to inform, places controlled, persons interned under order-made conditions, force authorised, authority delegated under Section 12, and contravention answered by Section 14. Section 9, to which this article turns next, was the gear that engaged the whole machine against a person whose very status was in doubt.

The area permit regime that grew from this structure deserves separate mention, because it was the part of the foreigners framework that touched lawful visitors in the largest numbers. Under the Foreigners Order 1948 and the orders that accompanied it, the Foreigners (Protected Areas) Order 1958 and the Foreigners (Restricted Areas) Order 1963, specified areas, principally along the international borders and in the north-eastern region, were declared protected or restricted, and a foreigner could enter or remain in them only under a permit granted for the purpose and on the conditions the permit stated. The regime was a direct exercise of the Section 3 power to regulate presence in a specified area, and the offence under Section 14A, described later in this article, of entering or staying in such an area without the permit was its penal edge. Its existence qualifies any account of the Act as merely a statute about disputed status: for the tourist, the researcher and the mountaineer, the Foreigners Act was the permit on the desk of the district authority, and the framework’s ordinary face was administrative, not adversarial.

Section 9: the burden of proof, the provision that made the statute

Section 9 of the Act was headed “Burden of proof”, and its text was short enough to be the whole law of the subject. It provided that if in any case not falling under Section 8, which dealt with disputed nationality of a person acknowledged to be a foreigner, any question arose whether a person was or was not a foreigner, or whether a person was or was not a foreigner of a particular class or description, the onus of proving that the person was not a foreigner, or was not a foreigner of that class or description, as the case might be, lay upon that person, notwithstanding anything contained in the Indian Evidence Act 1872. Every element of the provision repays attention. The question it governed was not confined to proceedings before a tribunal; it arose in any case, before any authority, in which foreignness was in issue. The onus it imposed was not a burden of producing some evidence to shift an inquiry; it was the onus of proving the negative proposition, that the person was not a foreigner, which given the negative definition in Section 2(a) meant proving the positive proposition that the person was a citizen of India. The closing words displaced the ordinary law of evidence: the general rules by which a party alleging a fact must prove it, and by which a prosecution must establish its case, were set aside for this question by express legislative command. And the provision made no distinction between classes of case. It applied to the person proceeded against on suspicion of having entered from across a border in 1975 and to the person proceeded against on a defective electoral roll entry, in identical terms.

Why does Section 9 place the burden of proof on the person?

Section 9 places the burden on the person because the facts that establish citizenship, birth, parentage and residence, lie within the personal knowledge of the person concerned and not within the knowledge of the State, the reasoning the courts gave when upholding the provision against challenge over decades.

The reasoning the courts gave for the provision drew on a familiar principle of the evidence law that Section 9 displaced. Under the ordinary law, a fact especially within the knowledge of a person is a fact that person must prove, and the Gauhati High Court, in the Full Bench decision in State of Assam v Moslem Mondal, (2013) 1 GLT 809, collected the reasoning in the form in which the tribunal jurisprudence used it: to establish citizenship, a person may be required to give evidence of date of birth, place of birth, the names of parents, their place of birth and their citizenship, and all of these facts lie necessarily within the personal knowledge of the person concerned and not of the authorities of the State. On that footing the reverse burden was defended as an application of common sense to a peculiar subject matter. The State cannot prove, of any given resident of a border district, where that person’s grandparents were born. The person, if anyone can, can. The Supreme Court had earlier sustained the scheme of the Act in Sarbananda Sonowal v Union of India, (2005) 5 SCC 665, where the reverse burden was the express ground of contrast with the statute the Court struck down: the Illegal Migrants (Determination by Tribunals) Act 1983 had placed the burden on the complainant and the authorities, and the Court treated that placement as part of what made detection unworkable. The burden provision also had a defensive use in argument about the tribunal system as a whole: because the person bore the onus, the proceeding could be structured as an inquiry into documents the person produced, which allowed a small tribunal system to process a large caseload without the State investigating each life history from the beginning.

The case for the reverse burden, and the case against it, at full strength

The stance this series takes on contested questions is to state each side in its strongest form, in the voice of those who make it, and then to give a verdict where the record supports one. The reverse burden has been contested for as long as it has existed, and both cases are genuinely strong, because they answer different questions. The case for the provision answers the question of administrability. The case against answers the question of what the provision does to the person who cannot discharge it.

The case for the burden, as governments made it in Parliament and as the Union made it in court, runs as follows. India has long land borders across which movement has been continuous for generations, much of it undocumented at the time it occurred. A determination system in which the State had to prove, for every person whose status was questioned, that the person was born outside India or to foreign parents, would be a system that determined nothing: the evidence of a negative fact about events decades old in another country is not available to the Indian State at all, and the consequence of placing the burden there would not be that citizens were protected but that the question of status could never be opened. The person, by contrast, is the one actor in the proceeding who has access to the materials of a life: family knowledge, village records, school records, electoral rolls, land documents. Section 106 of the old evidence law, and its successor provision in the Bharatiya Sakshya Adhiniyam 2023, recognise exactly this allocation for facts especially within knowledge. The burden is also, defenders point out, a burden on the civil standard, discharged on a preponderance of probabilities by documents and testimony, not proof beyond reasonable doubt; and the courts confined it, as the next section of this article describes, by holding that it arises only inside a lawful proceeding opened on material, so that the State cannot set the machinery in motion on nothing and then rest on the person’s failure. On this view Section 9 is the only workable allocation, hedged by procedural law, and its critics are really critics of record-keeping in rural India, which is a failure of administration rather than of the provision.

The case against, as jurists and scholars of citizenship have made it, answers that the hedge and the burden cannot be separated from the records that actually exist. Anupama Roy, in her study of the documentation of citizenship in India, traced how citizenship in practice became a paper status, established by chains of documents linking a person to an ancestor in a dated roll or record; B. S. Chimni, writing on the legal condition of persons without recognised status, placed the Indian framework within the wider problem of people whom no State will document. The objection proceeds in steps. First, the records the burden demands are absent for very large numbers of people in the relevant generations: births were not registered, schools were not attended or kept no surviving rolls, floods and displacement destroyed papers, and women’s names in particular appear in the record, if at all, as wives and daughters in documents issued to men. Second, the chain the tribunal system demands is generational: the proceedee must commonly link to a parent or grandparent in a legacy record and then prove each link, so that a gap anywhere in sixty years of paper defeats the whole chain, and minor discrepancies of spelling, age and date, the ordinary texture of rural record-keeping, have been treated in tribunal practice as failures of proof rather than as the noise they are. Third, and decisively for the critics, the consequence of failure is unlike the consequence in any ordinary burden case. A litigant who fails to discharge a burden loses a claim to property or compensation. A proceedee who fails loses status itself, and does not thereby acquire any other: no other State is obliged to receive the person, no nationality is conferred by the declaration, and the result is a person pronounced foreign by the only country the person has known, liable to detention and removal to a destination that does not exist. A rule that is workable where records exist, the critics conclude, operates as a rule of exclusion where they do not, and its fairness cannot be assessed without the second half of that sentence.

The verdict the record supports is narrower than either side’s full claim. The burden provision, considered as an allocation of proof between a State that cannot know and a person who may, is defensible, and the courts were not naive in sustaining it. But its defensibility is conditional, and the condition is the one the courts themselves built: that the burden operates only after the State has placed material that raises a genuine question, inside a proceeding that observes notice, disclosure of grounds and a reasoned decision. Where that discipline held, Section 9 was an evidentiary rule. Where it did not, in ex parte declarations on undisclosed grounds and unreasoned opinions, Section 9 became something else, a presumption of foreignness that the person was never given a fair chance to answer. The provision’s history is the history of the distance between those two operations, and the same conditional verdict applies, unchanged, to Section 16 of the Act that replaced it.

Section 8 and Section 9 read together: the two tracks of status

Section 9 opened with an exclusion that repays attention, since it marked the boundary between the Act’s two tracks for questions of status. The burden provision applied in any case not falling under Section 8. Section 8 dealt with the person who was admittedly a foreigner and whose question was of another kind: where a foreigner was recognised as a national by the law of more than one foreign country, or where it was uncertain what nationality, if any, was to be ascribed to the foreigner, the prescribed authority could treat the foreigner as the national of the country with which the person appeared most closely connected in interest or sympathy, or, if of uncertain nationality, of the country with which the person was last so connected, subject to the proviso protecting a nationality acquired by birth unless another had been subsequently acquired and was still recognised. The authority’s decision under Section 8 was declared final and not to be called in question in any court, with a power in the Central Government to revise it of its own motion or on the foreigner’s application. The design is coherent once seen: the Act separated the question whether a person was a foreigner, which went to tribunals and courts under the burden rule, from the question which foreigner a person was, which it reserved to executive determination with finality. The separation mattered most at the point of removal, where the Section 8 determination identified the destination State, and its executive character, finality clauses and all, survived in substance into Section 15 of the Act of 2025, which provides for the foreigner who is a national of more than one foreign country in corresponding terms, including the revision power of the Central Government. The two-track design also explains a feature of the old case law that puzzles readers who meet it first in the tribunal context: decisions under the Act that appear to treat status as a matter of executive satisfaction, of which Hans Muller is the type, belong largely to the track of the admitted foreigner and the order power, while the insistence on material, grounds and hearing belongs to the track of the disputed person. A statute that looks monolithic from outside was, in operation, two statutes, one of administration over the acknowledged alien and one of adjudication over the claimed citizen, and the burden provision stood at the gate of the second.

Section 9 beyond the tribunal: prosecutions and the electoral roll

The burden provision was not a tribunal rule. Its words governed any case in which the question arose, and two other fields of its operation shaped the Act’s history. The first was the criminal trial. In prosecutions under the Act, the question whether the accused was a foreigner was a constituent of the offence, and the Supreme Court applied Section 9 to that question in State of Uttar Pradesh v Rehmatullah, decided in 1971, holding that the onus the section casts on the person governed the proceeding, so that an accused who claimed Indian citizenship in answer to a charge under the foreigners law had to establish the claim. The holding matters for understanding the provision’s reach: Section 9 was not hedged as a rule for a specialised forum but operated as a general rule of decision for the status question wherever it arose in the legal system, in the magistrate’s court as in the tribunal. The second field was the electoral roll, and it is the channel through which the largest number of Assam cases began. Citizenship is the qualification for registration as a voter, and the revision of rolls in Assam repeatedly raised the question of enrolled persons whose citizenship was doubted. During the intensive revision of the rolls in 1997, the Election Commission’s instructions led to a category of doubtful voters, marked on the roll and referred for determination of their status to the tribunals, with their voting rights held in abeyance in the meanwhile. The Supreme Court had already held, in Lal Babu Hussein v Electoral Registration Officer, (1995) 3 SCC 100, in the context of roll revision in Bombay, that the deletion of a name from the electoral roll on the ground that the person was not a citizen could not be made without an inquiry at which the person was heard, since the consequence of deletion was the loss of the franchise and the exposure of the person to the foreigners machinery. The roll, the reference and the tribunal thus formed a single pipeline, and the quality of the inquiry at its first stage, an administrative marking by electoral and police officials, determined the fairness of everything that followed; it is at that stage that the material-first discipline described in the next section of this article did its most important work, because a reference generated by a marking, without objective material behind it, was the paradigm case the Gauhati Full Bench held to be no reference at all.

A threshold point of principle runs under both fields and should be stated once, clearly. The foreigners law, by its own definition, applies only to a person who is not a citizen. It follows that the Act can never be the instrument by which a citizen is dealt with, and that where citizenship is genuinely in issue, the issue is anterior to the Act’s operation. The Supreme Court recognised the structure in the cognate Partition-era legislation in Ebrahim Vazir Mavat v State of Bombay, (1954) SCR 933, holding Section 7 of the Influx from Pakistan (Control) Act 1949 void in so far as it authorised the removal of a citizen, as an infringement of the citizen’s right under Article 19(1)(e) to reside and settle in India. The Influx Act was a different statute, and the holding is not a holding on the Foreigners Act; but the constitutional logic is the logic of the whole family of entry and removal laws, and it explains why the determination of the citizenship question, by the tribunal under the burden rules, is the real subject of the foreigners framework. The Act’s powers over the admitted foreigner are wide but rarely contested. Its powers over the disputed person are the powers to decide, by a rule of proof, whether the person is within the Act at all.

The discipline the courts built: material first, grounds disclosed, reasons given

The jurisprudence that confined Section 9 was built in three layers, and a reader of the field needs all three, because together they state the operative law that governed tribunal proceedings for most of the Act’s later life. The first layer is the Full Bench of the Gauhati High Court in State of Assam v Moslem Mondal, (2013) 1 GLT 809, decided on 3 January 2013 on a reference arising from conflicting division bench views. The Full Bench held that the tribunal is required independently to apply its mind to the grounds and materials produced before it by the State and to reach a conclusion that sufficient grounds exist to initiate proceedings; that in the absence of grounds supported by objective materials the tribunal has no jurisdiction to issue notice; that the notice must contain the main grounds on which the tribunal is satisfied the case is fit to proceed; and that if it does not, the proceedings are void from the beginning, the reverse burden is never cast on the proceedee, and any opinion rendered is void. The Full Bench also restated the burden’s rationale, the personal knowledge of birth and parentage, while refusing to let the rationale dissolve the process: the burden operates within a legal process and does not replace it.

The second layer is Sarbananda Sonowal v Union of India (II), (2007) 1 SCC 174, where the Supreme Court, striking down a 2006 order that had re-created a special tribunal regime for Assam, endorsed the same propositions: the tribunal must apply its mind to the material, and the reference is not conclusive merely because it has been made. The third layer is the Supreme Court’s judgment in Md. Rahim Ali v State of Assam, 2024 INSC 511, decided on 11 July 2024, which stated the discipline as a matter of natural justice at the level of the individual case. The Court held that the authorities must first possess a material basis for suspecting that a person is a foreigner before proceedings begin, that proceedings cannot be initiated on hearsay or on bald and vague allegations, that the main grounds are distinct from mere allegations and that the material on which the proceeding rests must be shared with the person, since the obligation to hear includes the obligation to disclose what is to be answered, and that minor discrepancies in documents, of spelling or date, common in rural records, cannot by themselves ground a doubt about citizenship. In that case the Court did not remit the matter; it declared the appellant a citizen, observing that the consequences of a declaration of foreignness are penal and severe, since the moment a person is declared a foreigner that person is liable to be detained and deported to the country of origin. Read together, the three layers convert Section 9 from a bare command into a sequenced inquiry: material in the hands of the State first, grounds disclosed to the person, an opportunity to answer with documents and witnesses, a reasoned opinion, and only within that sequence, the onus on the person to prove citizenship. A reference on no material, which the brief for this article flags as one of the errors common in published accounts of the Act, was never the law as the courts stated it; it was, in too many instances, the practice that the courts were correcting.

The documentary character of the proceeding deserves a passage of its own, because it is where the burden is discharged or lost in fact. The materials by which citizenship was proved before tribunals were the legacy records of the State itself: electoral rolls of dated years, the National Register of Citizens of 1951 where it survived, land records, school certificates, bank and post office documents, and linkage documents connecting the proceedee to the person named in the legacy record. The Supreme Court in Rupajan Begum v Union of India, (2018) 1 SCC 579, held that a certificate issued by a gram panchayat could be used as a supporting document for establishing linkage, subject to verification of its genuineness, a holding that mattered because for many women the panchayat certificate was the only linkage paper in existence. The evidentiary file a family possesses, older electoral rolls, land records, school leaving certificates and documents of parents and grandparents, is therefore not memorabilia; it is the substance of the defence in a status proceeding, and its preservation across decades is a practical question of the first order for the households that hold such papers. Families assembling and keeping that file in durable form, in an encrypted vault for preserving older records and family documents, are doing the one thing that the structure of Section 9 rewards: keeping the chain intact before anyone asks for it. This article describes the law and the procedure; it is legal information about a repealed statute and its successor, not advice on any individual case, and a person facing a reference requires representation in the proceeding itself.

The evidence in practice: legacy data, linkage and the standard of proof

Because the burden was discharged with documents, the practical law of Section 9 was the law of the archive, and its main lines can be stated. The tribunal asked, in substance, two questions. Was the proceedee’s claimed ancestor, or the proceedee personally where age allowed, recorded in a legacy document of the State, an electoral roll of a dated year, the National Register of Citizens prepared in 1951, a land record or a comparable public record, of a date that placed the family in India within the meaning of the citizenship law? And could the proceedee connect the person in that document to the proceedee in the room, by an unbroken chain of linkage, births, marriages and names, each link supported? The first question was about the record; the second, which defeated more claims, was about the chain. A grandfather in the roll of 1965 was the beginning of a proof, not the proof, where the proceedee’s father had to be shown to be that man’s son and the proceedee to be the father’s child, across generations in which births were registered rarely, marriages by custom, and names recorded by officials who wrote what they heard. The standard throughout was the civil standard: the tribunal decided on a preponderance of probabilities, and the proceedee’s evidence was tested by cross-examination and against the State’s records, including the inquiry report of the border police, whose contents the discipline of disclosure required to be shared.

Three features of this evidentiary practice determined outcomes often enough to be part of the law of the subject. The first is the treatment of discrepancy. Names in the records of the relevant generations vary in spelling between documents as a matter of course; ages were estimated and vary by years; dates of birth were assigned. Tribunal practice in a large number of cases treated such variance as failure of proof, rejecting documents as unreliable for inconsistencies that were the normal product of the record system itself. The Supreme Court’s insistence in Md. Rahim Ali that minor discrepancies cannot by themselves raise a doubt about citizenship was directed at precisely this practice, and it restated, at the end of the Act’s life, a principle that the Gauhati High Court had articulated in its own jurisprudence on the appreciation of documentary evidence in status cases. The second feature is gender. The chain of linkage ran predominantly through male ancestors, because the legacy records predominantly recorded men; a married woman’s connection to her natal family’s documents required proof of the marriage link and of her parentage from records that might never have carried her name, which is why the gram panchayat certificate litigation, resolved in Rupajan Begum, mattered beyond its facts: it concerned the only document class by which many women could connect themselves to their own families’ records. The third feature is the asymmetry of the archive. The State’s records were the measure of the person’s claim, and the State was also the opposing party and, through the tribunal system, the forum’s appointer; where the State’s own record-keeping was the reason a document did not exist, the loss fell, under the burden as allocated, on the person. That asymmetry is the concrete form of the critics’ case against Section 9, and no account of the provision that omits it describes the provision as it operated.

It should also be recorded what the evidentiary system was not. It was not a test of language, culture, allegiance or belonging; the tribunal had no mandate to ask whether the proceedee was, in any social sense, of the place. It was a test of paper descent from a dated public record. Persons whose families had been in Assam for generations without entering the dated records failed it; persons with a single surviving legacy document and a well-kept chain passed it. The burden provision made the archive the arbiter of status, and the long politics of the National Register of Citizens in Assam is unintelligible except as a dispute about that archive: who compiled it, on what material, and with what consequences for those it omitted.

A Union subject administered by State machinery

The constitutional distribution of the subject produced a working arrangement that shaped the Act’s operation as much as its text did. Aliens and citizenship stand in the Union List, and the Act is a Union statute conferring powers on the Central Government; but the Central Government maintains no foreigners police of its own in the districts, and the Act was administered, for its whole life, through State machinery acting on delegated and authorised power. The Central Government delegated powers under Section 3 to State Governments and Union Territory administrations by notification, for classes of foreigners and purposes stated in the delegations, so that the leave-India notice served on an overstaying visitor in a State capital issued, in form, from the State authority exercising the Centre’s power. The registration machinery ran in parallel: Foreigners Registration Officers, in most places officers of the State police, and Foreigners Regional Registration Officers in the metropolitan centres, administered the registration and reporting regime of the Act of 1939 and the orders under the Act of 1946 together, as one counter at which the foreigner’s presence was recorded, extended, conditioned or terminated. The border organisation of the Assam Police, a State force, generated the references that fed the tribunals. The arrangement had a federal logic, the Union deciding status and the States executing it, and a federal friction that the politics of the subject repeatedly exposed: State governments of different parties accused the Union of inaction on detection or of harassment by reference, and the Union accused State administrations of swelling or starving the reference pipeline for electoral reasons, charges that surfaced in the Sonowal litigation itself, where the State and the Union appeared, unusually, with aligned interests against the statute the Union’s predecessor had enacted for the State. For the individual, the distribution mattered practically: the authority whose order the person received was usually a State authority, the records against which the person was measured were State records, the police who inquired were State police, and the Union, in whose name the power existed, appeared in the proceeding, if at all, at the stage of removal and diplomatic verification. The Act of 2025 preserved the arrangement in its own idiom, with the Bureau of Immigration as the Union’s statutory arm and delegation to State Governments and their officers expressly provided in Section 28, so that the federal structure of the field, like its burden, crossed the repeal unchanged.

The tribunals: a forum created by order, not by the Act

The Foreigners Tribunals are the institution most associated with the Act, and the first thing to understand about them is that the Act did not create them. The tribunals were constituted by the Foreigners (Tribunals) Order 1964, an order made by the Central Government under Section 3 of the Act. Paragraph 2 of the Order empowered the Central Government to refer the question whether a person is or is not a foreigner to a tribunal constituted for the purpose, and the Order prescribed the tribunal’s composition and procedure: the tribunal was to consist of a member drawn from the judiciary or from advocates and officials of prescribed experience; it held the powers of a civil court for summoning and enforcing the attendance of witnesses, requiring the discovery and production of documents and issuing commissions for the examination of witnesses; and its task was to give an opinion on the reference, on the material and evidence brought before it. The opinion, when rendered, determined the person’s status for the executive, which acted on it by deletion from electoral rolls, by detention and by steps toward removal. The tribunal was thus a creature of delegated legislation exercising a function that decided civil status, and the whole of its law, grounds, notice, service, evidence, ex parte procedure, was contained in the Order and in the case law that grew around the Order, not in the parent Act. The brief for this article directs attention to the point because published accounts routinely attribute the tribunals to the Act itself; the attribution matters, since a forum created by order can be, and repeatedly was, restructured by order.

In practice the tribunals were an Assam institution. The Order applied to the whole of India, but references on any scale were made only in Assam, where the question of post-Partition and post-1971 migration from East Pakistan and then Bangladesh had been politically central for decades; in the rest of India, suspected foreigners were dealt with through the criminal process and executive orders under the Act without a tribunal reference. The procedure in Assam ran through the border organisation of the State police, which inquired into suspected persons and referred cases, and through the electoral machinery, which marked voters as doubtful. The person proceeded against, the proceedee in the vocabulary of the system, received a notice, filed a written statement, produced documents and witnesses, and faced cross-examination on the documents by the State. The proceeding was civil in form and standard, the burden on the proceedee being discharged on a preponderance of probabilities, but the consequences, as the Supreme Court noted in Md. Rahim Ali, were penal in effect.

What must happen before a Foreigners Tribunal can proceed against a person?

Before a tribunal can proceed, the State must place objective material that raises a genuine question about the person’s status, the tribunal must apply its own mind to that material, and the notice issued to the person must state the main grounds, failing which the proceeding is void from the start.

The procedural requirements the courts enforced around the Order were the ordinary requirements of natural justice, stated with unusual firmness because of what turned on them. Notice had to be served in a manner that gave a real opportunity to appear; the grounds had to be disclosed, on the Moslem Mondal principle; the proceedee had to be allowed to file a written statement, produce documents and examine witnesses; and the tribunal had to render a reasoned opinion dealing with the evidence, since an unreasoned opinion could not be tested in the writ jurisdiction of the High Court, which was the recourse against an adverse opinion, under Article 226 of the Constitution. The writ court did not sit in appeal over the facts; it reviewed for legality, for failure to consider material evidence, for reliance on no evidence and for breach of the procedural discipline. The Supreme Court in Abdul Kuddus v Union of India, (2019) 6 SCC 691, treated the tribunal’s opinion as a quasi-judicial determination that bound the executive unless set aside in accordance with law, which cut in both directions: it gave the opinion a finality that administrative lists could not override, and it presupposed an opinion reached by a process deserving of finality.

The failure mode of the system, extensively recorded in the case law of the Gauhati High Court, was the ex parte declaration. A large share of declarations in Assam were made without the proceedee appearing, in proceedings where service of notice was defective, where the proceedee had migrated for work, or where the notice never reached the person at all. An ex parte opinion declared the person a foreigner with the same consequences as a contested one, and the person’s first knowledge of the proceeding was frequently the arrival of the police. The courts set aside ex parte opinions where service was not proved or where the absence was explained, but the remedy required the person to approach the High Court, with the costs and representation that implies, against a declaration already operative. The gap between the procedure the case law prescribed and the procedure the caseload produced is the central administrative fact of the tribunal system, and it is the reason the burden question cannot be discussed in the abstract: Section 9 inside a served, disclosed and reasoned proceeding is one legal instrument; Section 9 inside an ex parte proceeding is another.

The Order was amended in significant respects in 2019. By the Foreigners (Tribunals) Amendment Order 2019, made on 30 May 2019, the power to constitute tribunals, which had rested with the Central Government alone, was extended so that tribunals could be constituted by the Central Government, a State Government, a Union Territory administration or a District Collector or District Magistrate, taking the forum, in law, to the whole country in preparation for register exercises beyond Assam. The amendment also opened a route that had not existed: an individual could approach the tribunal, a provision framed for persons excluded from the National Register of Citizens in Assam, who were given a window of one hundred and twenty days from the rejection of their claim to seek the tribunal’s opinion, where previously only the State administration could set the tribunal in motion. The amended Order also addressed the tribunal’s procedure, empowering it to regulate its own procedure for expeditious, time-bound disposal. The 2019 changes are the last substantial state of the Order under the 1946 Act, and they show the direction of travel before the repeal: from a single-State forum of executive reference toward a general forum of status determination, available on individual application.

The tribunal system in Assam: composition, scale and the criticism it drew

The tribunals that sat in Assam were staffed by members appointed for terms, drawn from the categories the Order and the State’s appointment practice recognised: retired judicial officers, advocates of not less than thirty-five years of age with at least seven years of practice, and, after the eligibility was widened, retired civil servants of senior rank with experience of quasi-judicial work. One hundred tribunals were functioning in Assam in the period of the register exercise, and the State moved in 2019 to constitute two hundred more, to receive the references expected from persons excluded from the final register. The appointment and continuance of members became a controversy in itself. Reporting in the press, and proceedings in the Gauhati High Court, recorded the criticism that the assessment of members for extension of tenure took account of the outcomes of their cases, including the proportion in which they had declared proceedees to be foreigners, a criterion which, if applied, would set the member’s interest against the proceedee in every doubtful case. The Union and the State defended the assessment of members as an ordinary incident of a contractual appointment system. The controversy is relevant here for a structural reason: a forum whose members hold short, renewable appointments at the pleasure of the executive that is also the referring party in every case carries an institutional question that no rule of evidence can answer, and the case law’s insistence on reasoned opinions and disclosed grounds was, in part, the judiciary’s substitute for the security of tenure the forum lacked. Alongside it ran the criticism of disposal pressure: the amended Order’s emphasis on time-bound disposal, applied to a caseload in which each case was a life, produced the standing tension of the system, between the administrative need to clear references in lakhs and the judicial need to hear each one. These criticisms were made in the Gauhati High Court’s own observations on the working of the tribunals and in the scholarly and journalistic record of the register years, and they belong in any complete account of the foreigners framework, because they mark the distance between the proceeding as the Supreme Court’s discipline describes it and the proceeding as the caseload delivered it.

The nationality verification strand completes the picture of the system’s operation after declaration. A declaration identified a person as not Indian; removal required the country of origin to accept the person as its national, and the machinery for that acceptance was diplomatic, not judicial: lists of declared persons were transmitted through the Ministry of External Affairs and the Indian mission, the other State conducted its own verification, and removals followed in the small proportion of cases in which nationality was accepted. Persons whose claimed origin was a country with which no functioning verification channel existed remained, in the phrase the officials used, of unverified nationality, and their detention or conditional release continued without a terminus in the process itself. Alongside the formal channel, the border forces of both countries dealt over the decades with the phenomenon of persons found at the border without documents, and reporting over the years described informal returns across the border fence that formed no part of the Act’s scheme of declaration, verification and removal. The formal scheme, which is this article’s subject, should not be mistaken for the whole practice at the border; but it is the scheme that determined status in law, and its defining weakness is visible in the verification strand: the legal act of declaring foreignness was unilateral and quick, and the factual act of establishing any other nationality was bilateral and slow, and the person lived in the interval.

Assam and the IMDT Act: the detour that explains the burden’s reach

The burden of Section 9 applied to Assam, in the end, because a statute designed to displace it there was struck down. The Illegal Migrants (Determination by Tribunals) Act 1983 was enacted for Assam alone, in the years of the Assam agitation, and it constructed a determination regime opposite in design to the 1946 Act: it defined an illegal migrant by reference to entry after 25 March 1971, it allowed complaints by private persons on payment of a fee and subject to conditions, and it placed the burden of establishing that a person was an illegal migrant on the complainant or on the authorities, with no reverse burden on the person proceeded against. Its tribunals determined few cases against the scale of the references the system received, and the Act became the standing example, in the Union’s argument, of a determination law designed in a manner that made determination impossible.

In Sarbananda Sonowal v Union of India, (2005) 5 SCC 665, decided on 12 July 2005, the Supreme Court struck the 1983 Act down as unconstitutional. The Court reasoned from Article 355 of the Constitution, which casts a duty on the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the Constitution. Large-scale illegal migration, the Court held, could amount to aggression within that article, and a statute that made the detection and determination of illegal migrants, in the Court’s assessment, significantly more difficult than the general law, impaired the Union’s discharge of that duty and was arbitrary in its Assam-only design. The reasoning was stated in strong terms and has been debated since, including the equation of migration with aggression; but its legal consequence was mechanical and complete. The 1983 Act fell, its tribunals were wound up, the pending cases were transferred to the Foreigners Tribunals under the 1964 Order, and the Foreigners Act 1946, with Section 9’s reverse burden, applied to Assam as it applied everywhere else. When the Union attempted in 2006 to re-create a distinct Assam regime by a Foreigners (Tribunals for Assam) Order, the Court struck that down too, in Sarbananda Sonowal (II), (2007) 1 SCC 174, as an attempt to achieve by order what the struck-down statute could not achieve. The burden in Assam is therefore not an accident of drafting. Twice litigated to the Supreme Court, it is the product of the Court’s own holdings, and that provenance is part of why the provision proved so durable when the legislature returned to the subject in 2025.

The register exercise that followed in Assam supplies the scale on which the tribunal system operated. The National Register of Citizens for Assam, updated under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003 and monitored by the Supreme Court, published its final list on 31 August 2019; according to the figures released by the office of the State Coordinator for the exercise, of about 3.3 crore applicants, about 19 lakh persons were excluded. Exclusion from the register was not itself a declaration of foreignness; it opened the route, described in the 2019 amendment to the Tribunals Order, to a tribunal reference, at which Section 9 governed. The distinction drawn in this series between the register, the tribunal and the citizenship statute should be kept: the October 2024 judgment of the Constitution Bench in In Re: Section 6A of the Citizenship Act 1955, which upheld Section 6A of that Act by four to one, was a holding about the citizenship law’s special provisions for Assam, about who is a citizen, and not a holding about the foreigners statute or its burden, and Articles 282 to 284 of this series treat it in that place. The burden question and the Section 6A question meet in the proceedee’s file, but they are questions under different statutes, answered by different authorities, and the confusion of the two is among the persistent errors in accounts of this field.

Offences and penalties under the Act of 1946

The criminal law of the Act was concentrated in three provisions. Section 13 deemed attempts, abetment and preparatory acts to be contraventions, and made the master of a vessel or the pilot of an aircraft by which a foreigner entered or left India in contravention of a Section 3 order liable unless due diligence was proved. Section 14 prescribed the general penalty in the form the provision carried at the repeal: whoever remained in India beyond the period of a visa, acted in violation of visa conditions, or contravened the Act, an order or a direction for which no specific punishment was provided, was punishable with imprisonment for a term which could extend to five years, and was also liable to fine, with forfeiture of any bond entered into under Section 3(2)(f). Section 14A, inserted in 2004, created a distinct and heavier offence directed at entry into and presence in restricted and protected areas without the permit the orders required. Section 15 protected persons acting in good faith under the Act from suit and prosecution, and Section 16 declared the Act to be in addition to the Registration of Foreigners Act 1939, the Passport (Entry into India) Act 1920 and other laws in force. Two features of this scheme are worth recording. The first is that the prosecution route and the status route were independent: a person could be prosecuted under Section 14 for overstaying without any question of disputed citizenship arising, and a person could be declared a foreigner by a tribunal without any prosecution. The second is that the penalty structure was flat: the Act graded its five-year maximum by the sentencing court’s discretion rather than by the gravity of the contravention, a design the 2025 Act abandoned in favour of graded penalties stated offence by offence. The comparison is taken up in the account of the repeal that closes this article.

Expulsion in practice: the order to leave, and three processes that are not expulsion

The individual order under Section 3, directing a foreigner to leave India, was the Act’s most frequently used coercive instrument against the documented foreigner, and its procedure was the inverse of the tribunal’s. No reference, no notice of grounds and no hearing stood in its path by force of any statutory right: the order issued on the satisfaction of the authority exercising the delegated power, it specified the time and manner of departure, and non-compliance converted the person’s presence into a contravention punishable under Section 14, quite apart from the power to arrest and detain under Section 3(2)(g) and to use force under Section 11 to give effect to the direction. The Supreme Court’s holding in Louis De Raedt, that the power of expulsion is absolute and that the foreigner cannot claim a hearing as a matter of entitlement, was the governing authority, and challenges to leave-India orders succeeded, when they succeeded, on the anterior grounds available in the case law: that the person was in truth a citizen, that the order was made by an authority without the delegated power, or that it rested on no material at all in the sense the administrative law recognises as mala fide. Against classes of foreigners rather than individuals, the order power in wartime and in the wars of 1965 and 1971 produced the internment and restriction regimes for enemy nationals that Section 4 contemplated, administered by class and by nationality in the manner the Deoli passage in this article records for 1962. In peacetime administration the order’s everyday forms were the refusal of extension of stay, the leave-India notice on the expiry or cancellation of a visa, and the placement of a person’s name on the lists that governed re-entry, the blacklist in the vocabulary of the administration, maintained through the immigration posts so that a person who had departed under an order could be refused at the border on return. None of these instruments required the State to prove anything to anybody, which is the sharpest available contrast within the one statute: against the admitted foreigner, the Act was a pure power; against the disputed person, it was a burdened adjudication; and the line between the two operations was the citizenship question and nothing else.

Three neighbouring processes are habitually confused with expulsion under the Act and should be separated. Extradition is the surrender of a person to a foreign State for trial or punishment for an offence, governed in India by the Extradition Act 1962 and by treaty, conducted through an inquiry before a magistrate and a decision of the Central Government; it is directed at fugitives, most of them not proceeded against as foreigners at all, and it confers the protections its own statute states. Deportation after conviction, the removal of a foreign prisoner at the end of a sentence, is an exercise of the order power under the foreigners law and not a part of the sentence, which is why the prisoner’s status at the prison gate reproduced the detention question. And the refusal of entry at the border, the turning back of the arriving passenger who holds no visa or whose name is flagged, is an exercise of the entry limb of the order power read with the passport statute, perfected in the new framework by the provision in Section 3 of the Act of 2025 that the Immigration Officer’s decision on inadmissibility is final and binding. The Act of 1946 housed the first and third of these within Section 3 and the second at the meeting point of its penalty and order provisions, and the clarity of the distinctions is worth keeping because public discussion habitually runs them together, attributing to deportation the safeguards of extradition or to refusal of entry the adjudication of the tribunal.

The criminal process and the foreign accused

The prosecution route under the Act raised its own body of practice, distinct from the tribunal route, and a complete account should mark its main lines. A prosecution under Section 14 was an ordinary criminal trial before a magistrate, with the charge framed on the contravention alleged, overstaying, breach of conditions or presence without authority, and with the status question, where it was raised, governed by Section 9 on the Rehmatullah principle. The foreign accused held, in the trial, the protections the criminal process gives every accused, together with two that the person’s foreignness made specific. The first is consular access: India is a party to the Vienna Convention on Consular Relations 1963, Article 36 of which entitles a detained foreign national to have the consular post of the sending State notified of the detention if the person so requests, and to communicate with and receive visits from consular officers, and Indian courts and authorities treated the facility as part of the process due to a foreign prisoner. The second is comprehension: proceedings in a language the accused does not understand fail the requirement of a fair trial that the Supreme Court’s legal aid and fair procedure jurisprudence, built on Article 21 from the late nineteen seventies, extends to every person, and the provision of interpretation and of legal aid at State expense where the accused is indigent formed part of the magistracy’s obligations in foreigners prosecutions as in others. At the end of a sentence, the two routes of the Act met: the convicted foreigner became liable to removal, and the interval between the expiry of the sentence and the execution of the removal reproduced, in the smaller compass of the individual case, the detention problem this article examines at scale, a person held after punishment for no offence, pending a journey the State had not arranged. The writ courts’ answers in such cases followed the Anwar pattern described later in this article, release on conditions where removal was not genuinely in progress. The prosecution route also supplies the contrast that explains the tribunal route’s importance in Assam: a prosecution punishes a contravention and ends; it does not determine status for the future, it operates person by person through courts of limited capacity, and it places the case in the criminal lists of districts that had, in Assam, references in lakhs awaiting determination. The tribunal system existed because the criminal process could not carry the status question at the scale the politics of the State demanded an answer to it.

Detention pending removal: the position the statute did not resolve

Detention entered the Act through a door the drafting left nearly unmarked. Section 3(2)(g) empowered orders providing that a foreigner shall be arrested and detained or confined, and orders under the Act, together with the executive’s power over removal, supplied the legal basis on which a person declared a foreigner was held pending deportation. The declaration made the person liable to removal; removal required a country willing to receive the person and travel documents that country would accept; and between the declaration and the removal, which in contested cases meant the verification of nationality by the country of claimed origin, the person was held. In Assam, where the declarations ran at scale, the holding was in facilities that official documents called detention centres, generally wings of district jails in the earlier period and dedicated facilities later; in 2021 the Government of Assam renamed the facilities transit camps. In January 2019 the Ministry of Home Affairs circulated a Model Detention Centre, Holding Centre and Camp Manual to the States and Union Territories, prescribing standards for the facilities, their security, the segregation of families and the amenities to be provided, which remained, as a manual, an executive standard rather than a statutory code. The manual’s prescriptions ran to accommodation and diet, medical screening and care, communication with family members, access to legal representation, interpretation where needed, and the keeping of families together in the facility’s arrangements, and its circulation to the States was the first attempt in the history of the framework to state, in one document, what a place of detention under the foreigners law was supposed to be. The Supreme Court’s interventions in the same period had pressed on connected points, including the separation of families within the Assam facilities, on which the Court directed the State to act with urgency in orders of 2018. The manual bound no one as a statute binds; a detainee could not sue on it as on a code. Its significance is diagnostic: by 2019 the executive itself had accepted that the detention the Act authorised required standards of the kind the Act had never stated, and had supplied them at the level of a circular, which is where the framework habitually located everything it did not wish to legislate.

What happens to a person who is declared a foreigner by a tribunal?

A declaration makes the person liable to detention pending removal and to deportation to the country of origin; the person’s name is deleted from the electoral roll, and the declaration stands unless set aside by the High Court in writ proceedings, with detention governed by executive orders rather than by the Act.

The Supreme Court addressed the human consequence of the gap between declaration and removal in proceedings concerning the Assam facilities in 2018 and 2019, in petitions that brought the conditions and the duration of detention before it. The Court pressed the Union on the point that persons could not be held indefinitely in detention where the State had not been able to arrange their reception by the country to which they were to be deported. By an order of May 2019 in those proceedings, the Court directed that persons who had been in detention for more than three years could be released, subject to conditions that included the execution of a bond with two sureties of one lakh rupees each, a verifiable address, the deposit of identity documents and periodic reporting to the police. In April 2020, in the circumstances of the pandemic, the Court modified the arrangement: persons detained for more than two years became eligible for release, and the bond amount was reduced to five thousand rupees on a personal bond with sureties as the order prescribed. The directions were orders in particular proceedings, not a statutory release code; they bound because the Court made them, and they left the general position where the Act had left it, a matter of executive arrangement supervised episodically by constitutional courts.

The underlying difficulty is structural, and the brief for this article directs that it be stated plainly and without embroidery. A declaration of foreignness under the 1946 Act established a negative: the person was not a citizen of India. It established nothing about any other nationality, and under the law of nations no other State is obliged to receive a person merely because India has declared that person not its own. Bangladesh, the country of origin in contemplation in the Assam caseload, has not accepted that persons declared foreigners by Indian tribunals are its nationals, and verification exercises proceeded case by case and slowly. The result was a class of persons, small against the scale of the references but real, who were declared foreigners, could not be removed, and were not free: detained not as punishment for an offence, not as undertrials awaiting a proceeding, but as an incident of a removal that could not be executed. The statute provided no solution to this position, no time limit, no periodic review and no route to a status; the courts answered it with conditional release directions, which mitigate the detention without resolving the status, and the person released remained a declared foreigner, without the rights of a citizen, reporting to a police station, in a legal condition with no name in the Act. The position of a person who cannot be removed is the clearest instance in this field of a framework gap, a question the legislature never answered in the 1946 Act at all, and the reader should note, when the repeal is reached, whether the 2025 Act answered it either.

The constitutional floor beneath the whole subject was laid by two decisions that belong in every account of the Act. In National Human Rights Commission v State of Arunachal Pradesh, (1996) 1 SCC 742, the Supreme Court enforced the Article 21 rights of the Chakma residents of that State, holding that the State was bound to protect the life and liberty of every person within its territory, citizen or not, and that a foreigner or a person whose citizenship was in process could not be left to coercion and threat without the protection of the law. Against Louis De Raedt’s holding that a foreigner has no right to reside and that the expulsion power is wide, the Chakma decision states the complementary truth: the power is exercised over persons, and the guarantees of Articles 14 and 21 travel with the person into every proceeding and every facility of the foreigners framework. The tribunal discipline described earlier in this article, and the release directions described in this section, are the working out of that floor in the specific context of the Act.

Detention in the longer view: internment, habeas corpus and the unremovable person

The internee provisions of Section 4 were not an abstraction in the Act’s early decades. The machinery of interning enemy aliens was the wartime inheritance the Act carried, and its largest use came after the war of 1962, when persons of Chinese origin resident in India, many of them born in India and settled for generations in Calcutta and the tea districts of Assam, were interned at the camp at Deoli in Rajasthan under the emergency framework of that period, and were released in stages over the years that followed, some permitted to remain, others departing. The episode stands in the record of the Act because it displays the internee model entire: detention by executive order, of a class defined by origin, without individual adjudication of status, governed as to conditions by the detaining authority. The tribunal model that later developed in Assam was, in part, a reaction against decision by class: an individualised, if heavily burdened, determination. The distance between Deoli and the tribunal is the distance the law of the subject travelled in fifty years, from class internment to documented adjudication, and it is the strongest historical answer to an account of the framework that treats the tribunal system as nothing but an instrument of exclusion; against the alternative the Act itself contained, adjudication was a reform.

The judicial instrument against detention under the Act was, throughout, the writ of habeas corpus and the writ jurisdiction of the High Courts and the Supreme Court, and its use in individual cases established the few rules the subject has. The Supreme Court’s treatment of the Pakistani national in Anwar v State of Jammu and Kashmir, decided in 1971, is the early statement: a foreigner who had undergone the process of the law could not be held in detention indefinitely on the footing of a removal that the State was not effecting, the liberty protected by Article 21 being available to the foreigner as to the citizen, and detention under the foreigners framework being lawful as an incident of an expulsion genuinely in train rather than as a free-standing condition. The principle was applied by High Courts across the decades, in cases of detained persons of many nationalities whose removals stalled on verification, on the refusal of missions to issue travel documents, or on the absence of any country that would receive them: the court inquired whether steps toward removal were real and continuing, fixed periods within which the State was to complete them, and ordered release, generally on conditions of residence and reporting, where they were not. The pattern is the same one the Assam proceedings later produced at scale, and it generalises the point made in the detention section of this article. In the absence of a statutory scheme, the law of foreigners’ detention in India is a common law of the writ courts, made case by case on the single question the statute never answered: how long may the State hold a person for a removal it cannot presently perform, and on what showing may it go on holding. The answer the courts gave, that the showing must be of a removal in genuine progress and that the holding must end in release on conditions when it is not, is judge-made law in the strictest sense, unrepealed and unreplaced by either the Act of 1946 or the Act of 2025.

Protection without a refugee statute: the position of the person fleeing harm

One further feature of the framework must be described, because it determined how the Act met the person who arrived in India not as a migrant in search of work but as a refugee in flight from persecution. India is not a party to the Convention relating to the Status of Refugees of 1951 or to its Protocol of 1967, and it is not a party to the Convention relating to the Status of Stateless Persons of 1954 or the Convention on the Reduction of Statelessness of 1961. No Indian statute creates a status of refugee or an asylum procedure. The consequence is that the person fleeing harm entered the legal system, if at all, through the foreigners framework itself: as a foreigner within Section 2(a), present without authority or beyond it, liable in principle to the order power, to prosecution for unlawful presence and to removal, with protection depending on executive policy towards the particular group, administered at the level of the Union Government, and on the intervention of courts. The executive has, for different groups at different times, operated that discretion protectively, through long-term visas and registration arrangements for specified communities; the framework supplied no entitlement that the individual could claim as a right, and the distinction between the refugee and the illegal migrant, which the treaty system exists to draw, was a distinction Indian law drew administratively or not at all.

The courts supplied a partial floor through Article 21. The Chakma decision, already noticed, protected a settled refugee population against coercion and affirmed that the State’s obligation to protect life and liberty extends to non-citizens. The Gujarat High Court in Ktaer Abbas Habib Al Qutaifi v Union of India, decided in 1999, recognised the principle of non-refoulement, that a person is not to be returned to a country where the person’s life or freedom would be threatened, as embodied in Article 21, in the case of Iraqi nationals facing deportation. High Courts in other cases stayed removals while claims were examined, and the office of the United Nations High Commissioner for Refugees conducted refugee status determination for certain populations in India under its mandate, with its documentation treated by the executive as relevant to the exercise of discretion. The composite position was therefore neither the treaty model nor its absence: it was protection by discretion and by constitutional floor, revocable in the one case and episodic in the other. For the purposes of this pillar article, the point to hold is structural. The repeal of 2025 did not alter this position. The Immigration and Foreigners Act 2025 contains no asylum code either; it re-enacts the framework of entry, presence and removal within which refugee protection in India has always been an exercise of executive grace measured against Article 21, and its exemption power in Section 33, under which the Exemption Order of 2025 protected specified classes who had entered by the end of 2024 from the Act’s penal and removal provisions, is the discretionary instrument restated in statutory form.

From reference to removal: the proceeding step by step

The table that follows sets out the proceeding under the 1946 Act and the 1964 Order as the case law disciplined it, from the origin of a doubt to the position pending removal. It records, at each step, who acts, what the person must produce, what the authorities must establish first, and what recourse exists, which is the order in which a person facing the proceeding needs the information.

Step	Who acts	What the person must produce	What the authorities must establish first	Recourse
Origin of the doubt	Border police or electoral authorities	Nothing at this stage	A material basis for suspicion, not hearsay or a vague allegation	The doubt alone has no legal consequence
Reference	State Government or referring authority	Nothing at this stage	Objective material fit to place before the tribunal	None until notice issues
Notice	The tribunal	A written statement answering the grounds	Independent application of mind; notice stating the main grounds	Proceedings void from the start if grounds are not stated
Hearing	Tribunal, proceedee, State	Documents and witnesses proving citizenship, on a preponderance of probabilities	Disclosure of the material relied on; a fair opportunity to answer	Adjournment and recall where service or disclosure failed
Opinion	The tribunal	The burden under Section 9 is discharged or it is not	A reasoned opinion dealing with the evidence	Opinion binds the executive unless set aside
Declaration	Executive acting on the opinion	Proof on any later challenge	The declaration follows the opinion	Writ petition to the High Court under Article 226
Detention and removal	Executive, with the country of origin	Identity and travel particulars for verification	A receiving country and acceptance of nationality	Conditional release under the Supreme Court’s directions
Pending removal	Executive and the courts	Compliance with release conditions, where released	Continued steps toward removal	Habeas corpus and writ jurisdiction on duration and conditions

The cluster as one system: the Acts of 1920, 1939 and 2000

The 1946 Act never operated alone, and its repeal took three companions with it because the four had functioned as one system for decades. The Passport (Entry into India) Act 1920 was the oldest: a post-First World War statute that empowered the Central Government to make rules requiring persons entering India to hold passports, and prohibiting entry without them, with the Passport (Entry into India) Rules 1950 supplying the operative detail, including the definition of the visa to which Section 14 of the 1946 Act referred. Its office in the system was at the border: it made the document the condition of lawful entry. The Registration of Foreigners Act 1939, Act 16 of 1939, was the second wartime measure: it empowered rules requiring foreigners to register their arrival and presence with the registration officer of the district, to report their movements and changes of residence, and to hold certificates of registration, and it built the standing machinery, the Foreigners Registration Officers and their regional superiors, through which the presence of the documented foreigner was administered for the following eighty years. Its office was the register: it made the admitted foreigner visible to the State on a continuing basis. The Immigration (Carriers’ Liability) Act 2000, Act 52 of 2000, was the late addition, enacted when the volume of air travel had made the carrier the effective first examiner of documents: it made a carrier that brought a passenger to India in contravention of the passport requirement liable to a penalty measured by reference to each such passenger, subject to a hearing, with an appeal to the Central Government, thereby moving part of the cost of document failure from the State to the airline or shipping company whose check-in desk had let the passenger board. Its office was the checkpoint abroad. The Act of 1946 stood at the centre of the three: the border statute decided who might enter, the registration statute tracked who had entered, the carriers’ statute policed the carriage, and the foreigners statute decided what could be done about any of them, and what followed when the one question the other three could not answer, whether the person was a foreigner at all, was disputed. The overlaps the Statement of Objects and Reasons of 2025 complained of were real: registration duties appeared in the Act of 1939, in the Foreigners Order under the Act of 1946 and in the rules under both; the reporting duties of carriers appeared in Section 6 of the Act of 1946 and again, with penalties, in the Act of 2000; and the definition work of the system was distributed across all four. Consolidation into one Act with one chapter for immigration, one for foreigners, one for carriers and one for offences was, as drafting, an evident improvement, and this article’s account of the repeal should not be read as denying it. The point the series makes is the narrower one: consolidation redrew everything except the one provision that decided cases.

The road to repeal: the Bill of 2025 in Parliament

Reform of the patchwork had been discussed for years before it arrived, in the language of consolidation that the Government of India applied across the statute book in the period after 2014: overlapping enactments on one subject were to be merged, colonial-era survivals reviewed, and penalties restated. The foreigners field, with four Acts of 1920, 1939, 1946 and 2000 administered as one system, was an obvious candidate, and its reform was also entangled, as the field had been for forty years, with the politics of migration and the electoral roll in Assam and West Bengal. The Immigration and Foreigners Bill 2025 was introduced in the Lok Sabha on 11 March 2025 by the Minister of State for Home Affairs, Nityanand Rai. The Statement of Objects and Reasons recorded that the Acts of 1920, 1939 and 1946 were not only of the pre-Constitution period but had been brought in during the extraordinary times of the First and Second World Wars, that there was an underlying continuity and commonality of objectives among the four Acts alongside overlapping provisions, and that the Bill sought to repeal all four and enact a single law, to avoid multiplicity and overlapping and to comply with the Government’s policy of simplification of laws. The Bill was passed by the Lok Sabha on 27 March 2025 and by the Rajya Sabha on 2 April 2025, in debates in which the Home Minister, Amit Shah, defended the measure as a security instrument, emphasising the need for the State to know who is entering the country, when, for how long and for what purpose, and members of the opposition criticised the width of the discretion it conferred, the burden provision it retained, and its possible effects on visitors, students and patients; opposition parties staged a walkout in the Rajya Sabha before the passage. The Minister of State, replying, stated that the Bill had been brought after a study of three years and that the Bureau it constituted already existed as an organisation and would be the single agency for immigration. Assent followed on 4 April 2025. What the parliamentary record shows, for the purposes of this article, is that the burden provision was visible in the debate and was retained with the debate on record; the retention of Section 9’s rule in Section 16 was not an oversight of the consolidation exercise but a choice the legislature made while the provision’s operation was being expressly criticised on the floor of the House. That provenance distinguishes the burden from the genuinely unreconsidered survivals that consolidation exercises carry, and it is the reason the series pattern stated later in this article, that replacement preserves the allocation of power, is a finding about this statute and not a surmise.

The repeal: the Immigration and Foreigners Act 2025

The Immigration and Foreigners Act 2025, Act 13 of 2025, received the assent of the President on 4 April 2025 and was brought into force on 1 September 2025 by notification S.O. 3981(E) of 31 August 2025. Section 36 of the new Act repealed four enactments together: the Passport (Entry into India) Act 1920, Act 34 of 1920, the entry statute of the group, distinct from the Passports Act 1967 that governs passports for citizens and that the article on the Passports Act 1967 treats; the Registration of Foreigners Act 1939, Act 16 of 1939; the Foreigners Act 1946, Act 31 of 1946; and the Immigration (Carriers’ Liability) Act 2000, Act 52 of 2000. The savings in Section 36(2) provided that anything done or any action taken under the repealed Acts, including any rules, orders, directions, instructions, regulations or proceedings, and any penalty or fine imposed, would, so far as not inconsistent with the new Act, be deemed to have been done or taken under the corresponding provisions of the new Act, and Section 36(3) preserved the general application of Section 6 of the General Clauses Act 1897 to the effects of the repeal. The practical meaning for this article’s subject is exact: proceedings under the 1946 Act and the 1964 Order, declarations rendered, orders made and penalties imposed did not fall with the repeal; they continued under the savings, and the tribunal jurisprudence built under the old Act remains the operative learning for proceedings that the corresponding provisions of the new Act govern.

What replaced the Foreigners Act 1946 in 2025?

The Immigration and Foreigners Act 2025 replaced it, repealing the Acts of 1920, 1939, 1946 and 2000 together with effect from 1 September 2025, and consolidating entry, visa, registration, presence and removal in a single statute of six chapters and thirty-six sections.

The architecture of the new Act may be stated shortly, since the succession is the frame of this article rather than its subject. Section 2(f) defines a foreigner, as Section 2(a) of the old Act did, as a person who is not a citizen of India, and Section 2(g) defines the immigration function to cover visa issuance and the regulation of entry, transit, stay, movement and exit. Section 3 states the requirement of a valid passport or other travel document and, for a foreigner, a valid visa, for entry and for presence. Section 5 constitutes the Bureau of Immigration as a statutory body, giving the Bureau, which had functioned for decades under executive orders, a statutory existence, with a Commissioner and the Foreigners Regional Registration Officers and Foreigners Registration Officers under the Central Government’s supervision. Section 6 requires foreigners to register on arrival with the Registration Officer, in the prescribed manner. Section 7 reproduces, in substance, the order-making power of Section 3 of the old Act, authorising orders prohibiting, regulating or restricting entry, departure, presence and continued presence, for foreigners generally or for any class or individual, with a list of particular matters that tracks the old Section 3(2) closely, including conditions of residence, reporting, identification and the furnishing of biometric information. Section 29 confers the power of removal: the Central Government may by general or special order direct the removal of a foreigner for contravention of the Act, the rules or orders, or on an adverse security report, and officers are clothed with the powers necessary to enforce the direction. Section 33 confers a wide power to exempt classes of citizens of specified countries, and individual foreigners or classes of foreigners, from the Act’s provisions; the exemptions granted by the Immigration and Foreigners (Exemption) Order 2025 to specified classes of persons who had entered India by the end of 2024 raise questions about the place of religious classification in the law of entry that this article does not take, since the debate on the Citizenship Amendment Act 2019 is where this series examines them. Section 35 gives a power to remove difficulties by order, exercisable for three years from commencement. The Exemption Order made under the new framework in 2025 illustrated the reach of Section 33 in practice: as notified, its protection from the Act’s penal and removal provisions extended to specified classes, including members of minority communities of Afghanistan, Bangladesh and Pakistan who had entered India on or before 31 December 2024, Tibetan refugees within the dates the Order stated, Sri Lankan Tamil nationals who had taken shelter in India by January 2015, and citizens of Nepal and Bhutan entering under the open-border arrangements, classes whose protection had rested, under the old framework, on executive instruction of exactly the kind the exemption power formalises. The penalty scheme is graded where the old one was flat: Section 21 punishes entry without a valid passport, travel document or visa with imprisonment which may extend to five years, or a fine which may extend to five lakh rupees, or both; Section 22 punishes the knowing use or supply of a forged or fraudulently obtained passport, travel document or visa with imprisonment of not less than two years and up to seven years, and a fine of not less than one lakh rupees and up to ten lakh rupees; Section 23 punishes other contraventions, including overstaying and violation of visa conditions, with imprisonment which may extend to three years, or a fine which may extend to three lakh rupees, or both; and Section 25 introduces compounding of specified offences. Section 26 empowers a police officer not below the rank of Head Constable to arrest without warrant in the cases it states.

What the new Act changed, and what it carried forward unchanged

The reporting obligations are the new Act’s most extensive administrative innovation. Section 8 obliges the keeper of accommodation to furnish particulars of foreigners accommodated, an obligation with ancestors in the old law of registration and in the Foreigners Order. Sections 9 and 10 are new in kind: Section 9 obliges universities and educational institutions admitting foreigners to furnish the prescribed information to the Registration Officer, and Section 10 obliges hospitals, nursing homes and other medical institutions to furnish prescribed information about foreign nationals admitted or treated. Section 17 obliges carriers to furnish the passenger and crew manifest, advance passenger information and passenger name record information. The movement of the framework is visible in these sections: the old law watched the foreigner at the border and at the police station; the new law enlists the institutions through which a foreigner’s life in India passes, the university, the hospital and the hotel, as reporting points in the system. For the organisations concerned, these are compliance obligations with penal backing, and they are the part of the 2025 Act that reaches furthest into ordinary administration.

Did the Immigration and Foreigners Act 2025 keep the burden of proof provision?

Yes. Section 16 of the Act of 2025 provides that where a question arises whether a person is or is not a foreigner of a particular class or description, the onus of proving that the person is not lies on that person, notwithstanding the Bharatiya Sakshya Adhiniyam 2023.

Set the two burden provisions side by side and the continuity is verbal as well as substantive. Section 9 of the Act of 1946: where any question arose whether a person was or was not a foreigner, or a foreigner of a particular class or description, the onus of proving that the person was not a foreigner, or was not of that class or description, lay upon that person, notwithstanding anything contained in the Indian Evidence Act 1872. Section 16 of the Act of 2025: where a question arises, in reference to the Act or any rule, order or direction under it, whether any person is or is not a foreigner of a particular class or description, the onus of proving that the person is not a foreigner or is not a foreigner of that class or description lies upon that person, notwithstanding anything contained in the Bharatiya Sakshya Adhiniyam 2023, Act 47 of 2023. The legislature of 2025 changed the evidence statute named, because the evidence statute itself had been replaced, and changed nothing else of consequence: not the placement of the onus, not its operation against a class or description as well as against foreignness itself, not the overriding words. The tribunal discipline built by the courts under the old provision, material first, grounds disclosed, reasons given, was case law on a form of words that the new Act re-enacted, and on ordinary principles of interpretation it travels with the words. The single most consequential provision of the colonial statute was carried into its replacement entire.

This series has recorded the same finding in a different field, and the parallel is worth stating in the terms the brief for this article directs. In the infrastructure cluster, a replacement telecommunications statute rewrote the law of the sector while carrying forward the interception provisions that descended from the telegraph legislation of 1885, a continuity examined in the article on the telecommunications legislation where that article owns the parallel. The foreigners legislation of 2025 is the second instance of the pattern, and two instances establish it: when India replaces a colonial statute, the provisions rewritten are the provisions about administration, machinery and money, and the provisions that survive intact are the provisions that allocate power between the State and the individual. In telecommunications the survivor was the interception power. In foreigners law the survivor is the burden of proof. The explanation is not mysterious. Replacement statutes are drafted to modernise, and modernisation audits machinery: it asks whether the bureau should be statutory, whether the penalties are graded, whether the forms should be electronic. It does not re-open the settlement between the State and the person unless politics forces the question, and on the burden of proof, politics had been settled, on the Union’s side, since Sarbananda Sonowal made the reverse burden the judicially approved alternative to a struck-down statute. A provision sustained by the courts and convenient to the administration is the least likely provision in any statute to be reconsidered on replacement, which is why the reader of the 2025 Act who looks for the significance of the repeal should look not at the four Acts that fell but at the one section that did not change.

What the repeal did not do should be recorded with equal precision, because the gaps of the old framework were legislative choices available for correction in 2025. The new Act contains no statutory code of detention pending removal either: it authorises restriction of movement and removal, and leaves the position of the person who cannot be removed, declared or held under its corresponding provisions, to executive arrangement and to the courts, as the Act of 1946 had done. The tribunal institution, which under the old law rested on an order of 1964, was addressed by subordinate legislation under the new framework rather than by the constitution of tribunals in the Act itself. And the stateless person produced by a declaration, recognised by no State, remained as the framework left that person in 1946: a person to whom the law assigns an obligation to depart and no destination at which the obligation can be performed. The colonial statute went. The reverse burden stayed. The silence around the person who cannot be removed stayed with it.

The tribunal question under the Act of 2025

One structural feature of the old framework survived the repeal without discussion in most accounts, and it deserves a passage: the status-determining forum still does not stand in the statute. The Act of 1946 created no tribunal; the Order of 1964 did. The Act of 2025 likewise contains no chapter constituting tribunals for the determination of foreignness; the determination machinery continues through subordinate instruments and the saved proceedings, and the forum that decides the most consequential civil question in the field, whether a person is a citizen, remains a creature of delegated legislation, appointable and restructurable by the executive whose references it hears. The reasons are continuous with the old design. A tribunal constituted by the Act would acquire the statutory incidents of such bodies, tenure, qualifications and procedure stated in primary legislation and amendable only by Parliament; a tribunal constituted by order remains flexible, expandable at the pace of a register exercise and adjustable by notification. The legislature of 2025, which found the will to make the Bureau of Immigration statutory, left the adjudicatory forum executive. The contrast within the one Act is the sharpest available measure of its priorities: the administrative machine was given the permanence of statute, and the adjudicative machine was kept on the tenure of an order. For the proceedee, the consequence is that the forum’s discipline continues to depend, as it depended under the Act of 1946, on the case law that the constitutional courts supply, on Moslem Mondal’s requirement of material and grounds and on Md. Rahim Ali’s requirement of disclosure, rather than on any procedural code enacted for the forum itself. Whether that dependence is a defect or a virtue has been argued both ways in the literature of the register years: flexibility allowed the forum to be multiplied from a handful of tribunals to hundreds without legislation, and the absence of a statutory charter allowed every protection the proceedee has to be litigated rather than read. The series records the fact and the argument; the institutional choice itself, made in 1964 and repeated in 2025, is among the continuities that define the field.

Transition: what the savings mean for pending lives

A repeal-and-savings clause is usually a conveyancing detail, and in this field it is not, because the things saved are proceedings about identified people. On 1 September 2025, references stood pending before tribunals in Assam at every stage the step table in this article describes; declarations stood rendered and unexecuted for want of a receiving country; persons stood detained under orders tracing their authority to the Act of 1946; prosecutions stood part-heard; bonds stood entered into; permits stood in force. Section 36(2) answered the legal question for all of them in one formula: the thing done under the repealed Act is deemed to have been done under the corresponding provision of the new Act, so far as not inconsistent with it. The reference continues; the declaration continues to ground removal, which the new Act’s Section 29 empowers the Central Government to direct; the prosecution continues under the saved penalty; the detention continues to require justification, and continues to find it in the order power, restated in Section 7 of the new Act, rather than in any new detention code, there being none. Section 36(3)’s preservation of Section 6 of the General Clauses Act 1897 carries the ordinary incidents of repeal with it, the survival of liabilities incurred and of proceedings in respect of them. Two practical consequences follow for anyone advising within this framework, and they close the account of the repeal. The first is that the case law of the old Act, the Moslem Mondal discipline, the Md. Rahim Ali disclosure rule, the conditional release directions, did not lapse with the Act that generated it; it construes language the new Act repeats and governs proceedings the savings continued, and it will be cited under the new Act as it was under the old. The second is that the repeal changed the citation, not the contest. A person proceeded against after the commencement of the Act of 2025 faces the onus of Section 16 as a person proceeded against in 2024 faced the onus of Section 9, and the fairness of the outcome will turn, as it turned for eight decades, on whether the discipline the courts built around the burden is observed in the particular case.

The statute in one view

The Foreigners Act 1946 repays study out of proportion to its length because it is the cleanest example in the Indian statute book of a law whose meaning is a single rule of proof. Its definition made every non-citizen a foreigner and left the content of citizenship to another statute. Its order power made the executive the legislator of the subject for eight decades. Its tribunals, created by order and disciplined by three layers of case law, turned the burden into outcomes for lakhs of referred persons in one State. Its detention was an executive incident of removal, supervised by courts that ordered conditional release when removal failed, because the Act itself prescribed nothing. And its repeal in 2025, which closed the patchwork of 1920, 1939, 1946 and 2000 and modernised everything around the centre, preserved the centre exactly. The reader who understands Section 9, what it said, why the courts sustained it, how they confined it, and that Section 16 of the Act of 2025 says it again, understands the foreigners law of India across both statutes, which is the understanding this pillar article exists to give.

Three questions will test the successor framework in the years of its operation, and the article closes by naming them, since each is a question the Act of 1946 bequeathed rather than answered. The first is whether the discipline of material, grounds and disclosure, built by the courts on the words of Section 9, will be administered as the ordinary practice of the new system or will have to be re-litigated provision by provision against Section 16, a waste the identity of the language makes unnecessary. The second is whether the tribunal forum will acquire, by legislation or by the slow accretion of the case law, the procedural charter it has lacked since 1964, so that the fairness of a status determination rests on enacted guarantees and not on the vigilance of the writ courts alone. The third is whether any legislature will take up the person the framework produces and cannot place, the declared foreigner whom no State will receive, and give that person a status, a limit on detention and a route out of the interval between declaration and an impossible removal. On the record of 1946 to 2025, the burden was the provision every reform preserved and the unremovable person was the problem every reform postponed. The Act of 2025 is the fourth statute to administer the subject in a little over a century. Whether it is the first to answer the third question is the measure by which its consolidation will finally be judged.

Frequently Asked Questions

Q: What did the Foreigners Act 1946 provide?

The Act, Act 31 of 1946, defined a foreigner in Section 2(a) as a person who is not a citizen of India, and empowered the Central Government under Section 3 to make orders prohibiting, regulating or restricting the entry, departure and presence of foreigners in India. Section 9 placed the burden of proving that a person was not a foreigner on that person. Section 14 punished contravention with imprisonment extending to five years and fine. The Act supplied the legal basis for the Foreigners Order 1948 and for the Foreigners (Tribunals) Order 1964, and it stood until its repeal on 1 September 2025.

Q: Who bears the burden of proving citizenship?

The person whose status is in question. Section 9 of the Foreigners Act 1946 provided that where a question arose whether a person was or was not a foreigner, the onus of proving that the person was not a foreigner lay upon that person, notwithstanding anything contained in the Indian Evidence Act 1872. Since a foreigner was defined as a person who is not a citizen of India, the onus amounted to proving Indian citizenship. The courts confined the provision by holding that it operated only after the authorities placed material raising a genuine question, and Section 16 of the Immigration and Foreigners Act 2025 reproduces the allocation in materially the same terms.

Q: What are Foreigners Tribunals and how do they work?

Foreigners Tribunals are quasi-judicial bodies constituted under the Foreigners (Tribunals) Order 1964, an order made under Section 3 of the Foreigners Act 1946, and not by the Act itself. The Government refers the question whether a person is or is not a foreigner to a tribunal, which issues a notice stating the main grounds, receives the person’s written statement, documents and witnesses, and renders a reasoned opinion, holding the powers of a civil court for summoning witnesses and requiring documents. The opinion binds the executive unless set aside by the High Court in writ proceedings. In practice the tribunals functioned overwhelmingly in Assam, where references ran at scale.

Q: What is the legal basis for detention of a declared foreigner?

The basis lay in Section 3(2)(g) of the Foreigners Act 1946, which empowered orders providing that a foreigner shall be arrested and detained or confined, read with the executive’s power to direct and effect removal. A person declared a foreigner by a tribunal was liable to be removed from India, and detention pending removal rested on orders made under that power. The Act prescribed no maximum period, no reviewing authority and no release mechanism, so duration and conditions were governed by executive arrangement under a Ministry of Home Affairs manual of 2019 and by the Supreme Court’s directions on conditional release in the Assam detention proceedings.

Q: What happened to the Illegal Migrants Determination by Tribunals Act?

The Illegal Migrants (Determination by Tribunals) Act 1983, which applied to Assam alone and placed the burden of establishing illegal migration on the complainant or the authorities, was struck down by the Supreme Court in Sarbananda Sonowal v Union of India, (2005) 5 SCC 665. The Court held that the Act made detection significantly more difficult and impaired the Union’s duty under Article 355 to protect States against external aggression and internal disturbance. Its tribunals were wound up, pending cases were transferred to the Foreigners Tribunals under the 1964 Order, and the Foreigners Act 1946 with its reverse burden applied to Assam thereafter.

Q: Has the Foreigners Act been replaced?

Yes. The Immigration and Foreigners Act 2025, Act 13 of 2025, repealed the Foreigners Act 1946 together with the Passport (Entry into India) Act 1920, the Registration of Foreigners Act 1939 and the Immigration (Carriers’ Liability) Act 2000, with effect from 1 September 2025. Section 36 of the new Act contains a savings provision under which anything done or action taken under the repealed Acts, including rules, orders, directions, proceedings, penalties and fines, is deemed to have been done or taken under the corresponding provisions of the new Act so far as not inconsistent with it, so proceedings and declarations under the old Act did not fall with the repeal.

Q: What did the new immigration statute carry forward?

The Immigration and Foreigners Act 2025 carried forward the core of the old framework. The definition of a foreigner as a person who is not a citizen of India was retained in Section 2(f). The order-making power of Section 3 of the 1946 Act reappears in Section 7, covering entry, departure, presence and conditions of stay. The power of removal stands in Section 29. Above all, Section 16 carries forward Section 9’s burden of proof in materially the same terms, providing that the onus of proving a person is not a foreigner lies on that person, notwithstanding anything contained in the Bharatiya Sakshya Adhiniyam 2023. The machinery was modernised; the allocation of proof was not changed.

Q: What obligations does the new immigration statute place on institutions?

Section 8 of the Immigration and Foreigners Act 2025 obliges keepers of accommodation to furnish particulars of foreigners staying with them to the Registration Officer. Section 9 obliges universities and educational institutions admitting foreigners to furnish prescribed information, a new obligation in kind. Section 10 obliges hospitals, nursing homes and other medical institutions to furnish prescribed information about foreign nationals. Section 17 obliges carriers to furnish passenger and crew manifests, advance passenger information and passenger name record information. These reporting duties carry penal backing under the Act’s penalty sections, and they extend the reporting framework beyond the border and the police station into the institutions of ordinary life.

Q: What is the Foreigners Order 1948 and what does it regulate?

The Foreigners Order 1948 was the principal order made by the Central Government under Section 3 of the Foreigners Act 1946, and it supplied much of the working law that the short parent Act left to subordinate legislation. It regulated the grant and refusal of landing permits and residence permits, the conditions on which foreigners could enter and remain, the power of civil authorities over the movement of foreigners, and the permit regime for protected and restricted areas, under which entry to specified regions required a special permit. Because the Act itself enacted a power rather than a code, the Order was the text that administrators and foreigners dealt with in daily practice.

Q: What penalty did Section 14 of the Foreigners Act 1946 prescribe?

Section 14 prescribed the Act’s general penalty. A person who remained in India beyond the period for which a visa was issued, who acted in violation of the conditions of a valid visa, or who contravened the Act, an order or a direction for which no specific punishment was provided, was punishable with imprisonment for a term which could extend to five years, and was also liable to fine. Where the person had entered into a bond under Section 3(2)(f), the bond stood forfeited and its penalty payable unless cause was shown to the convicting court. Section 14A, inserted in 2004, prescribed a separate and heavier offence for entering or staying in protected or restricted areas without the required permit.

Q: Can a Foreigners Tribunal decide a case without the person appearing?

Yes, the 1964 Order permitted an opinion to be rendered ex parte where the proceedee did not appear after service of notice, and a large share of declarations in Assam were made in that manner. An ex parte opinion carried the same consequences as a contested one: declaration, liability to detention and removal, and deletion from the electoral roll. The courts set aside ex parte declarations where service of notice was not proved, where the absence was explained, or where the procedural discipline of grounds and disclosure had not been observed, but the remedy lay in a writ petition to the High Court, against a declaration that was operative in the meanwhile. The weakness of service in practice was the system’s most criticised feature.

Q: What did the Supreme Court hold in Sarbananda Sonowal’s case in 2005?

In Sarbananda Sonowal v Union of India, (2005) 5 SCC 665, decided on 12 July 2005, the Supreme Court struck down the Illegal Migrants (Determination by Tribunals) Act 1983 as unconstitutional. The Court reasoned that large-scale illegal migration could amount to aggression against a State within Article 355 of the Constitution, that the Union bore a duty to protect States against such aggression and internal disturbance, and that a statute which placed the burden on complainants and authorities and made detection significantly more difficult failed that duty and was arbitrary in applying only to Assam. The consequence was that the Foreigners Act 1946, with the reverse burden in Section 9, applied to Assam as elsewhere.

Q: What records can a person rely on to show they are not a foreigner?

The proceeding before a tribunal is documentary, and the materials relied on are the records of the State itself: electoral rolls of dated years, land records, school certificates, birth and other civil records, bank and post office documents, and, centrally, legacy data linking the person to a parent or grandparent named in an early roll or record, with linkage documents for each generation between. In Rupajan Begum v Union of India, (2018) 1 SCC 579, the Supreme Court held that a gram panchayat certificate could serve as a supporting document for linkage, subject to verification of genuineness. Minor discrepancies of spelling and date in such records cannot by themselves defeat a claim, on the Supreme Court’s holding in Md. Rahim Ali.

Q: When did the Immigration and Foreigners Act 2025 receive assent and come into force?

The Act, Act 13 of 2025, received the assent of the President on 4 April 2025, following its passage by Parliament as the replacement for the four older foreigners and immigration enactments. Its commencement was left to notification, and the Central Government appointed 1 September 2025 as the date of commencement, by notification S.O. 3981(E) dated 31 August 2025. The repeals in Section 36 and the whole operative scheme, including registration, the Bureau of Immigration, the reporting obligations and the graded penalty structure, took effect from that date. Proceedings and things done under the repealed Acts were carried over by the savings provision in Section 36(2).

Q: What does the savings provision of the Immigration and Foreigners Act 2025 preserve?

Section 36(2) provides that, notwithstanding the repeal, anything done or any action taken or purported to have been taken under the repealed Acts, including any rules, orders, directions, instructions, regulations or proceedings made, issued or taken, and any penalty or fine imposed, is deemed, so far as it is not inconsistent with the new Act, to have been done or taken under the corresponding provisions of the new Act. Section 36(3) preserves the general application of Section 6 of the General Clauses Act 1897. The effect is continuity: tribunal proceedings, declarations, orders and penalties under the Foreigners Act 1946 survived its repeal and are administered under the corresponding provisions of the Act of 2025.

Q: What penalty does the Immigration and Foreigners Act 2025 prescribe for forged travel documents?

Section 22 of the Act punishes whoever knowingly uses or supplies a forged or fraudulently obtained passport or other travel document or visa for entering into India, staying in India or exiting from India. The punishment is imprisonment for a term which shall not be less than two years but may extend to seven years, together with a fine which shall not be less than one lakh rupees but may extend to ten lakh rupees. An attempt to use such a document for entry or exit is treated as an offence under the same section. The graded structure contrasts with the single five-year maximum that Section 14 of the repealed Act of 1946 prescribed for contraventions generally.

Q: How can detention end when a declared foreigner cannot be removed?

The 1946 Act contained no release mechanism, so the ending of such detention came from the courts. In the Assam detention proceedings, the Supreme Court by an order of May 2019 directed that persons detained for more than three years could be released on conditions, including a bond with two sureties of one lakh rupees each, a verifiable address and periodic reporting; in April 2020 it reduced the qualifying period to two years and the bond to five thousand rupees. Release under these directions is conditional and does not alter the declaration: the person remains a declared foreigner, without a status in the country of origin, because no statute under either framework confers one.

Q: What is the difference between a foreigner and an illegal migrant in Indian law?

The two expressions come from different statutes and answer different questions. A foreigner, under Section 2(a) of the Foreigners Act 1946 and Section 2(f) of the Act of 2025, is any person who is not a citizen of India, a status category that includes the lawful visitor and the disputed resident alike. An illegal migrant is a term of the Citizenship Act 1955, defined in Section 2(1)(b) of that Act as a foreigner who entered India without a valid passport or travel document or with such documents but remained beyond the permitted period; its legal work is done inside the citizenship statute, where it disqualifies the person, and in specified respects descendants, from citizenship by registration or naturalisation. The foreigners framework governs presence and removal; the citizenship framework governs acquisition of status.

Q: What is the Bureau of Immigration under the Immigration and Foreigners Act 2025?

Section 5 of the Act constitutes the Bureau of Immigration as a statutory body for performing the immigration functions and such other functions as may be prescribed. The Bureau had functioned for decades under executive orders, administering immigration checks at airports and other posts, and the Act gives it a statutory basis for the first time. The general supervision, direction and control of the Bureau vest in the Central Government, and its overall supervision of immigration functions vests in a Commissioner of Bureau of Immigration, assisted by the Foreigners Regional Registration Officers, Foreigners Registration Officers, Chief Immigration Officers and other Immigration Officers authorised under the Act.

Q: What did the Foreigners (Tribunals) Amendment Order 2019 change?

The Amendment Order of 30 May 2019 changed who could set the tribunal system in motion and where it could operate. The power to constitute Foreigners Tribunals, which had rested with the Central Government alone, was extended to State Governments, Union Territory administrations and District Collectors or District Magistrates, taking the forum in law to every State and Union Territory. An individual was empowered to approach a tribunal, a route framed for persons excluded from the National Register of Citizens in Assam, who were given a window of one hundred and twenty days from the rejection of their claims; previously only the State administration could move the tribunal. The amendment also empowered tribunals to regulate their own procedure for expeditious, time-bound disposal of cases.