Opinion Immigration and Foreigners Bill, 2025 is not just an administrative update. It redefines who belongs and on what basis
Its implementation is likely to shift immigration control from a regulatory function to an instrument of political and social exclusion
The Bill aligns with global authoritarian trends — especially the Trump administration’s attacks on birthright citizenship, refugees, and family-based migration. (File Photo) Citizenship forms the basis of who is entitled to rights within a state. In India, two contrasting notions of national identity have historically coexisted. One vision emphasises cultural assimilation and inclusive nation-building. As poet Firaq Gorakhpuri described it: “Sar-zameen-e-Hind par aqwaam-e-aalam ke firaq qafile baste gaye, Hindostaan banta gaya” (On the sacred land of Hind, the people of the world came, the caravans settled down, and India kept being built).
In contrast stands the ethno-cultural definition of national identity put forward by V D Savarkar: “One who considers this vast stretch of land called Bharat from the Sindhu to the Sindhu (Indus to the Seas) as his fatherland (or land of one’s ancestors) and holy land is the one who will be termed and remembered as Hindu.” The Immigration and Foreigners Bill, 2025, appears to align more with the latter vision.
While framed as a modernisation effort, replacing outdated colonial-era legislation, the Bill introduces a regulatory structure that enables broad executive discretion and restrictive enforcement. Its stated aim of national security comes at the cost of individual rights and legal safeguards.
Echoes of Trump’s exclusionary playbook
The Bill aligns with global authoritarian trends — especially the Trump administration’s attacks on birthright citizenship, refugees, and family-based migration. Trump’s proposed immigration overhaul favoured wealthy, educated migrants and excluded low-income families and refugees.
The message: Rights are for the privileged. Trump’s Muslim bans in his first term and Modi’s CAA both weaponised executive power to exclude based on religion.
Expanded executive discretion
The 2025 Bill escalates this — empowering immigration officers to bar entry without accountability. The Bill repeals the Foreigners Act of 1946 and related laws but substitutes them with provisions that grant sweeping authority to immigration officials. Officers are empowered to detain individuals perceived as “threats to national security”— a term left undefined in the legislation. There is no prescribed timeline for review, no clear criteria, and limited judicial oversight.
Under the new framework, even a junior district-level officer can authorise indefinite detention. In contrast to earlier statutes, where judicial involvement was limited but still present, the new law concentrates control in the hands of the executive.
Disproportionate impact on the poor
The Bill’s enforcement mechanisms are likely to have a disproportionate impact on economically vulnerable populations. For instance, a Bengali-speaking Muslim worker in Kolkata, who has lived in India for over a decade but lacks definitive documents establishing birthplace, could be fined substantial sums under the law’s provisions for “illegal entry”— a penalty that may equate to years of earnings — and also face deportation.
The structure of the law privileges those with access to documentation and legal assistance while penalising those without. This mirrors patterns seen in other countries, where immigration reform has often been framed in terms of merit or economic utility, sidelining humanitarian considerations.
Implicit targeting without explicit language
Although the Bill does not name any religious group, its likely implementation follows an identifiable pattern. The Citizenship Amendment Act (CAA), 2019, already created differentiated pathways to citizenship by prioritising non-Muslim refugees from neighbouring countries. The new Bill serves to reinforce that structure.
In Assam, the National Register of Citizens (NRC) excluded nearly 1.9 million individuals, mostly Bengali Muslims and Hindus. The government referred to these individuals as “infiltrators.” The current Bill potentially nationalises that designation. It also compels institutions — including schools, hospitals, and hotels — to report suspected undocumented individuals, turning service providers into enforcement agents.
Departure from historical precedents
India has a history of offering refuge without religious or ideological filters — whether to Tibetans in 1959, victims of the 1971 war in East Pakistan, or Ugandan Asians in 1972. In those instances, the state did not categorise displaced people based on belief systems.
The present legislative approach diverges sharply. For example, a Hindu from Afghanistan may be welcomed as a refugee, while a Muslim Rohingya fleeing genocide faces detention. Though the Bill does not incite violence, its logic reinforces the idea that legal protections are conditional— dependent on religious and ethnic identity.
Constitutional considerations
Several aspects of the Bill raise constitutional concerns:
● Article 14 (equality before the law): The Bill establishes a framework that treats individuals differently without reasonable classification or justification.
● Article 21 (protection of life and personal liberty): The Bill curtails due process and permits prolonged, undefined detention.
● The Bill also promotes a concept of citizenship that is narrow and precarious, with rights subject to bureaucratic discretion.
The lack of guaranteed legal aid, denial of consular access for detainees, and extended uncertainty for families are all factors that compound its impact. Past enforcement under older laws already led to questionable detentions; the new Bill increases the scope for such outcomes. Judicial oversight is largely confined only to the extraordinary remedies allowed by the writ jurisdiction of constitutional courts.
In conclusion, the Immigration and Foreigners Bill, 2025 is not merely an administrative update. It redefines who belongs and on what basis. Its implementation is likely to shift immigration control from a regulatory function to an instrument of political and social exclusion.
Given its constitutional implications and potential human rights consequences, the legislation warrants close scrutiny — legally, institutionally, and politically. The Bill reflects a shift not just in immigration policy but also in the state’s understanding of the Indian identity itself.
The writer is senior advocate, Supreme Court of India
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