175th Law Commission of India’s report: Part III

175th Law Commission of India’s report: Part III

Law Commission’s Report in the Parliament
In the last two parts of the series, while discussing the features of the 175th Law Commission of India’s report on “illegal migration”, the author discussed how the Law Commission’s Report proposed several important measures to effectively deal with the issue of illegal migration.
The Foreigners (Amendment) Bill 2000 proposed by the Law Commission along with its Report, contained provisions based on its stringent recommendations mainly focused on curbing illegal migration from bordering countries especially Bangladesh. Several important measures like definition of the term “illegal migrant”, setting up of “facilitation centres” for detaining foreigners, speedy trial of offences under the Foreigners Act, 1946 by an ‘Immigration Court’ etc. were its key features.
While the Law Commission Report was discussed at various platforms, including both houses of the Parliament, very few of its recommendations or provisions from the proposed 2000 Amendment Bill found place in the final Foreigners (Amendment) Act of 2004 passed on 20th February, 2004. Discussion in the Parliament over the Law Commission’s Report took place mainly in pursuance of finalising the Foreigners (Amendment) Bill, 1998, with the intention of making punishment for violating the provisions of Foreigners Act more stringent, by classifying them and enhancing the existing punishment from five years to eight years for certain offences.

Recommendations that made to list of final amendment
Originally the Foreigners Act, 1946, provided for a term of maximum five years’ imprisonment in the offence of contravening any of the provisions of The Foreigners Act. The Law Commission’s report had proposed stricter punishments for offences like living in India without a valid passport, violating visa norms, etc. For example, it had proposed that “anyone who enters into any area in India, which is restricted for his entry under any order made under the Foreigners Act without obtaining a requisite permit from the competent authority and remains in such area beyond the period for which the permission is given or enter or stays in an area without a valid document, shall be punished with imprisonment which should not be less than two years but may extend to eight years and a fine which shall not be less than ten thousand but which may extend to fifty thousand rupees”. This recommendation found resonance with the amendments proposed to the Section 14 of the Foreigners Act by the 1998 Bill. The Report also proposed punishment for abetment to the offences punishable under the 1946 Act and the same became a part of the final amendment.
On 30th January, 2004, during the Lok Sabha discussion on the Foreigners (Amendment) Bill, 2003, the Minister of State in Ministry of Home Affairs Shri Harin Pathak had told the House that the 2003 Bill aims to classify the offences under the Foreigners Act and to provide for punishment depending on the gravity of the offences committed. He said that such a measure was necessary because there was no classification of offences (major or minor) in the then 1964 Act. This was in line with the key recommendations made by the Law Commission in its Report.
While these were the only recommendations of the Law Commission that were considered and adopted to the 2004 Amendment Act, there were host of others that were completely ignored by the Legislature.

Recommendations that were not considered
An important recommendation made by the Law Commission, which was already a part of the Foreigners (Amendment) Bill, 1998, was for serious offences to become triable by the Sessions Court. It was discussed in the Lok Sabha but was not included in the final amendment.
On January 30, 2004, during the Lok Sabha debate on the Foreigners (Amendment) Bill, 2003, Shri Harin Pathak informed the House that if the Bill is approved, serious offences will become triable by the Court of Sessions. These offences formerly triable by the First Class Magistrate under Section 437 of the Code of Criminal Procedure, it has been easy for the accused to get bail and there have been many cases of bail-jumping. This lax in the law was a problem that Shri Pathak laid great stress on. He submitted before the house, that going with the proposed amendment (in line with the LC recommendation), the bail application would be presented in the Sessions Court and the State Government would then have an opportunity under Section 439 to oppose the bail.
Congress MP Shri E M Sudarsana Natchiappan had also highlighted the ignorance of the House in not considering the Law Commission Report:
The government has not considered the recommendations made by the Standing Committee which was submitted in 2000 and the recommendations of the Law Commission in their 175th Report”.
The Law Commission had recommended for setting up of Immigration Tribunals to which appeals from the Immigration officers shall lie. These Tribunals were proposed to be manned by a person who is or has been a District Judge or an Additional District Judge and the matters was expected to be decided by these officials according to the principles of natural justice. This would have created a robust system for adjudication of offences under the Foreigners Act. The Law Commission had proposed putting in place a “machinery of Chief Immigration Officer and Immigration officers” in all states, appointed by the Central Government and functioning at the grass-root level to determine whether a person is an illegal entrant or not. This would have helped to easily decide citizenship claims. The 175th Law Commission report also called for classification of foreigners into categories that would have made it easy for the authorities to decide on citizenship claims.

Therefore, we see that the Legislature did not take into account most of the recommendations made by the Law Commission that could have proven deterrent against illegal migration into India. The serious problem of illegal entry of migrants through Indian borders that poses security, economic and demographic threat to our nation was dealt with in a piecemeal manner. The entire process became an exercise that disregarded the measures of precaution and prevention and focused merely on cure post the suffering. The recommendations of the Law Commission still stand relevant and await attention from the legislature.

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