SC grants protection from coercive steps to person adjudged foreigner

The Supreme Court on Monday granted interim protection from coercive steps to a person declared a “foreigner”, to enable him to file a review, when he sought to place reliance on the 2015 central government notification exempting migrants of specified communities from the provisions of the Foreigners Act, 1946.

On September 7, 2015, by notification being GSR 686(E), Paragraph 3A of the Foreigners Order,1948 was added, by virtue of which persons belonging to minority communities in Bangladesh, Pakistan and Afghanistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, who were compelled to seek shelter in India due to religious persecution and entered into India on or before December 31, 2014, and who do not have valid requisite documents, are granted exemption from the application of provisions of the Foreigners Act, 1946 and the orders made thereunder in respect of their stay in India.

The bench of Justices D. Y. Chandrachud and Hrishikesh Roy was hearing an SLP by one Mangla Das against the January, 2019 order of a division bench of the Gauhati High court, by which the opinion of the Foreigners’ Tribunal declaring him a “foreigner” was confirmed.

“I am not a ‘foreigner’ at all for the purposes of the Act!”, submitted the Advocate for the SLP petitioner, on the basis of the notification.

He drew the attention of court to an order passed by another two-Judge Bench of the Apex Court on November 7, 2016 in Anima Sutradhar @ Anima Rani Sutradhar v. UOI, where the petitioner-woman was declared “foreigner” by the Tribunal and confirmed by the Gauhati High Court, but the top court stayed the High Court order, granting the woman liberty to move the High Court in review on the basis of the said notification.

In its order passed on Monday, the bench of Justices Chandrachud and Roy records what the Court had directed in Anima Sutradhar’s case in 2016: “Delay condoned.

Our attention has been drawn to a notification issued in the Gazette of India on 8th September, 2015

In exercise of the powers conferred by Section 3 of the Foreigners Act, 1946(31 of 1946), the Central Government hereby makes the following order further to amend

the Foreigners Order, 1948, namely:-
1.(1) This Order may be called the Foreigners (Amendment) Order, 2015.

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

  1. In the Foreigners Order, 1948, after paragraph 3, the following paragraph shall be inserted, namely:-

‘3A. Exemption of certain class of foreigners.(1) Persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014-

(a) without valid documents including passport or other travel documents and who have been exempted under rule 4 from the provisions of rule 3 of the Passport (Entry into India) Rules, 1950, made under Section 3 of the Passport (Entry into India) Act, 1920(34 of 1920); or

(b) with valid documents including passport or other travel document and the validity of any of such documents has expired,

are hereby granted exemption from the application of provisions of the Foreigners Act, 1946 and the orders made thereunder in respect of their stay in India without such documents or after the expiry of those documents, as the case may be, from the date of publication of this order in the Official Gazette’

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