By

Shivprasad Swaminathan

Designating the letter written by the Chief Minister of Tamil Nadu to the Prime Minister as communicating a “decision” to “ban” Sri Lankan players, officials and support staff from participating in any Indian Premier League (IPL) cricket game in Chennai would be imprecise. Rather, it is a putative ban; a statement of intent by the Government of Tamil Nadu to ban the Sri Lankan nationals on a future date should they set foot in the State.

The letter sought to justify the proposed ban on the grounds that the presence of the Lankans would have aggravated the already surcharged atmosphere in the State, and, presumably, have affected the law and order situation. This licences us to infer that at the appropriate time, the Police Commissioner of Chennai would have invoked, that ubiquitous and versatile tool, the prohibitory order under Section 144 of the Criminal Procedure Code — something that was also recently invoked by the Commissioner of Police, Chennai to delay the release of actor Kamal Hassan’s film Viswaroopam.

Is a State Government in India’s constitutional set up competent to do what Tamil Nadu’s did? It is difficult to see how that question could reasonably be answered affirmatively as the Tamil Nadu Government’s actions seem to fly in the face of the division of powers between the Union and the States contemplated in the Seventh Schedule of the Constitution.

Under Central domain

Regulating the admission of foreigners into the country falls exclusively within the purview of the Union Government’s competence. Entry 19 of List I (the Union List) of the Seventh Schedule authorises the Union Government to regulate admission and emigration. Further, entry 17 of List I, gives the Union Government the power to regulate “citizenship, naturalization and aliens.” This Constitutional authority is statutorily exercised by the Union Government acting under the Passport (Entry into India) Act 1920, Passport (Entry into India) Rules 1950, Foreigners Act 1946 and the Registration of Foreigners Rules, 1992.

The Constitutional and legislative regime in place gives the Ministry of Home Affairs (MHA), the exclusive power to regulate the admission of foreigners into India. If the State Government has concerns about the movement of foreigners in a certain part of India, it is at liberty to take up such concerns with the MHA. But the decision on which parts of India, foreigners are free to move in, could finally be that of the MHA alone. Once a decision to admit a foreigner without any geographical restrictions on his movements has been reached, by the MHA, it is not open to the State Government to refuse entry to a foreigner into the State.

Permitting the State Government to do so, would be to redraw the division of powers in the Seventh Schedule. State Governments and District Magistrates have the power to issue “inner line permits” for foreigners to visit “protected” or %E