Document: The Foreigners Act, 1946 (31 of 1946), dated 23rd November, 1946, as amended. Download the Act (PDF)
Status: This Act has been repealed by the Immigration and Foreigners Act, 2025, which came into force on 1 September 2025. It is reproduced here for its historical and legal importance, and because proceedings and orders framed under it shaped the law on foreigners for nearly eight decades. The effect of the repeal on pending matters depends on the repeal and savings provisions of the 2025 Act, which will be covered in a separate post.
The text of the preamble
An Act to confer upon the Central Government certain powers in respect of foreigners.
WHEREAS it is expedient to provide for the exercise by the Central Government of certain powers in respect of the entry of foreigners into [India], their presence therein and their departure therefrom;
The word “India” appears in square brackets because it was substituted for “British India” by Act 38 of 1947, with effect from 15-12-1947, as the footnote to the Act records.
What the preamble says
The preamble is short, and its brevity is revealing. It does three things.
- It names the holder of power: the Central Government. The Act does not lay down a detailed code. It confers powers on the executive, and section 3(1) makes clear that the substance is to be supplied by executive order: “The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into [India] or, their departure therefrom or their presence or continued presence therein.”
- It names its subject: foreigners. Section 2(a) defines a “foreigner” only in the negative: “‘foreigner’ means a person who is not a citizen of India;”. The Act does not say who is a citizen. That question belongs to Part II of the Constitution and the Citizenship Act, 1955.
- It names three objects: entry, presence and departure. On its own terms, this is a law about controlling the movement and stay of non-citizens. It says nothing about deciding whether a person who claims to be a citizen is one.
A colonial frame in a free country
The Act was enacted on 23rd November, 1946, before independence and before the Constitution. It was written for “British India”, for a government that answered to a foreign power. After 1947 it was carried forward and amended (by Acts of 1947, 1951, 1957, 1962 and 2004, and by the Adaptation of Laws Order, 1950, according to its footnotes), but it was never re-enacted as a whole. Its basic design, broad executive power over persons labelled “foreigners”, remained unchanged.
The Constitution of 1950 rests on a different premise. Article 14 provides: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 21 provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Both protect every “person”, not only citizens. The provisions below sit uneasily with that premise.
Where the provisions do not align
1. Detention by executive order. Section 3(2)(g) allows orders providing that the foreigner “shall be arrested and detained or confined;”. The power to deprive a person of liberty is located in an order of the Central Government, while Article 21 speaks of “procedure established by law”.
2. The reversed burden of proof. Section 9 provides: “If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.” The section speaks of “any person”, not “any foreigner”. A law whose preamble is about the entry, presence and departure of foreigners thus became a means by which a person claiming to be a citizen must prove that claim. This is the point at which an immigration statute began to operate as a citizenship statute.
3. Exclusion of the courts. Section 8(2) provides: “A decision as to nationality given under sub-section (1) shall be final and shall not be called in question in any Court:”. Its proviso leaves revision to the Central Government alone. Such a clause reflects a pre-constitutional view of executive power. Under the Constitution, the writ jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 remains available.
4. Individualised orders. Section 3(1) permits orders “with respect to any particular foreigner”, and section 3A permits exemptions for citizens of specified Commonwealth countries or for “any other individual foreigner or class or description of foreigner”. The Act sets no standard to guide these choices, which raises questions under the equal protection guarantee of Article 14.
5. A gendered exception. Section 5 restricts foreigners from changing their names, but section 5(5)(b) exempts the assumption or use of a name “by any married woman, of her husband’s name.” The law assumes that a woman takes her husband’s name, and treats that change alone as natural.
6. Force and immunity. Section 11 allows the use of “such force as may, in its opinion, be reasonably necessary” and confers “a right of access to any land or other property whatsoever”. Section 15 provides: “No suit prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.”
Why the preamble matters
A preamble states what a law is for. This one states that the law is for controlling the entry, presence and departure of foreigners, by the Central Government. It does not claim to decide citizenship, and it does not speak of rights. Read beside the Constitution, which places Parliament in charge of citizenship and guarantees equality and liberty to every person, the gap is plain. The real question was never whether India may regulate foreigners. It may, and must. The question is whether a colonial statute built for executive control should have been allowed to decide who belongs.
Sources
- Text of the Act: the attached PDF; also published by the Government of India at indianvisaonline.gov.in
- Article 14 and Article 21 of the Constitution: Indian Kanoon, Article 14; Indian Kanoon, Article 21
- Repeal by the Immigration and Foreigners Act, 2025: PRS Legislative Research
This post is commentary and not legal advice.
Leave a Reply