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.


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.


1. India Tourism Statistics,,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.


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


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions