India: Amendments To Foreigners Order: Inhospitable Treatment To The Hospitality Industry?

Last Updated: 19 March 2019
Article by Saket Shukla and Soumya A.K.

The Central Government has introduced a number of reforms in the last few years, some of which have already created a major impact resulting in significant improvement in the World Bank's Ease of Doing Business rankings. The hospitality sector too benefitted from some reforms, including permitting 100% FDI under the automatic route in the tourism and hospitality sector, tourism construction projects such as development of hotels, resorts and recreational facilities. These changes and other factors have helped spur growth in the sector, resulting in a 19.1% increase in 2017 in the foreign exchange earnings from tourism over 2016.1 That said, not all changes have had a positive impact, one in particular merits our attention.

The Central Government amended the Foreigners Order, 1948 (Foreigners Order) in 2016 by way of the Foreigners Amendment Order, 2016 (2016 Amendment). The 2016 Amendment imposed an obligation on a 'keeper of hotel' to submit Form C within 24 hours from the arrival of a foreigner. While the rationale for this amendment was to remove ambiguity and streamline procedure, the non-compliance results in imprisonment of such 'keeper of hotel' of up to 5 years in addition to a fine. Theoretically, the very offence that carried a monetary penalty of up to INR 500 prior to the 2016 Amendment could now potentially result in a draconian punishment.

Laws governing foreigners pre-2016 Amendment

The laws relating to registration of arrival and departure of foreigners date back to the pre-Independence era. These legislations were enacted by the Government to keep a track on the footfall of foreigners in the country and to collect other necessary information.

Registration of Foreigners Act, 1939 (Registration Act)

Registration of foreigners coming to India is governed by the provisions of the Registration Act and the rules made under them (Registration Rules). The Registration Act was enacted so that the Government would have complete information as to the number and whereabouts of foreigners in the country, not only for national defence, but also for replying to the enquiries received from their relatives.

Under Section 3(e) of the Registration Act, the Central Government has the power to make rules requiring any person in charge of management of a hotel to report the name of foreigners accommodated in such a hotel to the prescribed authority. Section 3 requires every rule to be laid before both the Houses of Parliament for a period of thirty days and once approved, the Rules are notified in the Official Gazette.

Rule 14 under the Registration Rules required 'keepers of hotels' to submit information (in a prescribed format, i.e., Form C) to the registration officers2 within 24 hours of the arrival of a foreigner. A failure to comply with this provision, in case of an Indian national, resulted in a penalty up to INR 500.3

Foreigners Act, 1946 (Foreigners Act)

The Foreigners Act of 1946 was introduced as the provisions of the Foreigners Act, 1864 (since repealed) could only be enforced on the declaration of an emergency and the powers under the latter act were found to be ineffective and inadequate during normal times.

Section 3 of the Foreigners Act provides the Central Government with a power to pass an order to make provisions prohibiting, regulating or restricting the entry of foreigners into India, their presence therein and their departure therefrom by passing an executive order. In exercise of this power, the Foreigners Order was passed in 1948 which regulates the entry, stay and departure of foreigners from India.

Section 7 of Foreigners Act vs Registration Rules

Reporting obligation under the Registration Rules

As mentioned, the Registration Rules required a 'keeper of a hotel' to file Form C within 24 hours of the arrival of any foreigner at the hotel.

The Registration Rules defined a "hotel" to include "any boarding-house, club, dak-banglow, rest house, paying guest house, sarai or other premises of like nature". The Registration Rules also defined a keeper of the hotel to include the person having management of a hotel and any person authorized and competent to perform the duties of a keeper of the hotel.

Reporting obligation under the Foreigners Act

Section 7 of the Foreigners Act also placed a reporting obligation which applied to a 'keeper of any premises'. The expression 'premises' included a hotel.

Section 7 required a keeper of any premises "to submit to such person and in such manner such information in respect of foreigners accommodated in such premises as may be prescribed". Even though Section 7 of the Foreigners Act placed such obligation on the keeper of a hotel, neither the Foreigners Act nor the Foreigners Order prescribed the manner in or the person to which such information was to be furnished.

Confusion in application of reporting obligations

Given that both the Registration Rules and the Foreigners Act imposed a similar reporting obligation, there were instances where the police authorities were under the impression that information to be furnished under Section 7 of Foreigners Act and the report to be filed under Rule 14 of the Registration Rules were the same. In other words, the consequences of a contravention in reporting under the Registration Rules was treated as a contravention of the reporting obligation under the Foreigners Act.

In Vijukumar v. State of Kerala4, the Kerala High Court observed that the police authorities were charging persons under Section 14 (which provides for penalty in case of contravention) of the Foreigners Act for contravention of the provisions of Registration Act and the Registration Rules.

2016 Amendment

In view of the above, the Government introduced the following two amendments, viz.:

  1. Registration of Foreigners (Amendment) Rules, 2016 (Registration Rules Amendment) which omitted Rule 14 of the Registration Rules and consequently the requirement filing of Form C5; and
  2. the 2016 Amendment, which added a new para 16 to the Foreigners Order6 imposing substantially the same obligations under the Foreigners Order as were present in Rule 14 of the Registration Rules and had as a consequence of the Registration Rules Amendment been omitted (see (a) above). In other words, the obligation to file Form C within 24 hours of the arrival of a foreigner in a hotel became an obligation under the Foreigners Order.

Effect of the 2016 Amendment

Given that the reporting obligation under Form C became a part of the Foreigners Order, any non-compliance with it would result in a contravention of the Foreigners Act unlike the pre-2016 Amendment era when a non-compliance resulted in a contravention of the Registration Rules. A contravention of the Registration Rules resulted in the imposition of a monetary fine of up to INR 500. However, as a consequence of the 2016 Amendment, a contravention in filing Form C by a keeper of a hotel is now governed by Section 14 of the Foreigners Act which provides for a much harsher punishment of imprisonment, which may extend to five years in addition to a fine, thereby making it a cognizable and non-bailable offence under the Code of Criminal Procedure, 1973 (CrPC).

Notably, the 2016 Amendment does not streamline the procedure in any way but has merely made the punishment more stringent in case of non-compliance.

What is striking is that while every rule made under the Registration Act has to be laid before both Houses of Parliament for comments, there exists no such obligation on the Central Government to place the Foreigners Order made under the Foreigners Act before Parliament, thereby entirely precluding the 2016 Amendment from any degree of public or legislative scrutiny. As a result, by way of an executive order, a significantly harsher punishment has been imposed on Indian nationals for an offence under the Foreigners Order which was until 18 March 2016, subject only to a penalty of a meagre sum extending to INR 500. Importantly, given that the Registration Rules had been placed before both Houses of Parliament, the penalty of INR 500 with no other consequences had the blessings of both Houses of Parliament.

More importantly, the cardinal prerequisite of criminal intent or mens rea, which is otherwise necessary in all such offences under the CrPC that result in imprisonment of up to 5 years, is manifestly absent in the Foreigners Order. A reading of Para 16(6) of the Foreigner Order affords no leeway to a keeper of the hotel and does not account for circumstances beyond the control of a keeper of the hotel (system failure, no internet connectivity, etc.). Therefore, even a small delay due to reasons beyond a keeper's control could result in imprisonment. This creates a situation where the severity of sanction has been enhanced without a corresponding adjustment to potential mitigating circumstances accepted as legitimate defenses thereto. As a result, punishment for non-compliance which was earlier a fine of up to INR 500 can now result in imprisonment of up to 5 years.

Conclusion

The 2016 Amendment was introduced to effectively enforce Section 7 and to provide clarity on the interplay between the Registration Act and the Foreigners Act. However, merely omitting Rule 14 and inserting it under the Foreigners Order only seems to have heightened the burden on keepers of hotels and possibly served no other purpose in view of the fact that even an inadvertent error in submission of Form C could lead to arrest without warrant and imprisonment of up to 5 years.

Regrettably, even the Centralized Public Grievance Redress and Monitoring System7, which has generally been an extremely effective tool in addressing grievances, has not provided any reassurance on the matter except issuing a response that "Your suggestion has been noted."

It therefore remains unclear as to how imprisonment for non-fulfilment of a mere procedural requirement serves to achieve the legislative intent behind the Foreigners Act. In line with its bid to remove obsolete laws, the Central Government should perhaps consider re-evaluating these pre-independent legislations and bring about a single law to truly remove ambiguities and attract growth and development.

Footnotes

1. India Tourism Statistics,

http://tourism.gov.in/sites/default/files/Other/ITS_Glance_2018_Eng_Version_for_Mail.pdf,accessed on 14 March 2019

2. The Foreigner Regional Registration Office

3. Section 5 of the Foreigners Registration Act. In case of a foreigner, punishment could extend to imprisonment of up to a year or a fine which may extend to thousand rupees or both.

4.2009(3)KLT684

5. Notification No. G.S.R.324 (E) published by the Ministry of Home Affairs in the Official Gazette with effect from 18 March, 2016

6. Notification No. G.S.R.325 (E) published by the Ministry of Home Affairs in the Official Gazette with effect from 18 March 2016

7. https://pgportal.gov.in/

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