India dispatch: new immigration bill expands state powers without safeguards – JURIST
Simone Vadiya is a JURIST staff correspondent in India and a student at Maharashtra National Law University. She filed this dispatch from Mumbai.
India’s Lok Sabha, or House of the People, is currently in the midst of its Budget Session, with parliamentarians convening to discuss and deliberate policy matters cutting across party lines. On Tuesday, the government introduced the Immigration and Foreigners Bill (‘The Bill’), which seeks to regulate the entry, exit, registration and movement of foreigners in India. Once enacted, it shall effectively repeal and replace four existing legislations- the Foreigners Act, 1946, Immigration (Carriers’ Liability) Act, 2000, Passport Act, 1920 and the Registration of Foreigners Act, 1939.
In the Statement of Objects and Reasons, the Government has observed the multiplicity of existing laws on the same subject matter. According to the Statement, the proposed Bill is an attempt to advance India’s policy of simplifying laws by consolidating overlapping provisions in one single, comprehensive legislation. It introduces a unified digital registration system for foreigners, enhanced penalties for illegal immigration and new provisions for deportation and detention.
The Bill seems to be the next step in Prime Minister Narendra Modi’s controversial citizenship and immigration policy, which has attracted widespread flak, apart from several constitutional challenges before the Supreme Court of India (SCI). The north-eastern state of Assam has historically been the biggest battleground for citizenship claims in India, and the SCI has recognised the deplorable conditions of detention centres for people detained under the 1939 Foreigners Act. It has particularly criticised the bureaucratic delays that force such detainees into a limbo of residence and Statehood. The camps are reported to be overcrowded and unhygienic, without proper sanitation systems or medical facilities.
While the Government’s efforts in introducing a uniform immigration regime are to be commended, the Bill falls short in several regards concerning the wide scope of arbitrariness and malafide exercise of executive powers. Unfettered discretion manifests in several forms as the most ambivalent provisions of the Bill pertain to the powers of immigration officers. Furthermore, there is a dearth of adequate procedural safeguards, thus violating the principles of natural justice enshrined under Article 21 of the Indian Constitution. Finally, the absence of an adequate appellate mechanism threatens the judicial process as there is no independent review process. The Bill acts as a sanction to the exercise of arbitrary power, having the potential to exacerbate the current human rights crisis looming in Assam’s detention centres.
S.G. Jaisinghani and S.R. Jayaram are conclusive Constitution bench (five-judge) judgements of the SCI linking excessive discretion to arbitrariness as a violation of the Constitutional guarantee to equality. The Bill vests wide powers in the Central Government and Immigration Officers, with Section 7(1) empowering the Central Government to issue binding orders regarding the presence, movement, and deportation of foreigners, without the need for individual assessments or justifications. Section 29 further allows the government to direct the removal of any foreigner on vague grounds, including an “adverse security report,” without defining what constitutes such a report or providing a mechanism for challenging it.
Similarly, Section 3(3) and (4) authorize immigration officers to demand, inspect, and seize travel documents without judicial approval, potentially leading to arbitrary confiscations. Section 12(1) even allows the government to confine foreigners to designated areas under supervision, again without requiring court authorization. While it is necessary for the government to regulate immigration, the lack of transparency, accountability, and independent review mechanisms raises serious concerns about abuse of power.
In Puttaswamy, the SCI highlighted the pressing need for adequate procedural safeguards while assessing the proportionality of any measure that deprived an individual of their fundamental rights. The Bill fails to incorporate procedural safeguards, leaving foreigners vulnerable to the arbitrary exercise of such wide discretionary powers. This contradicts fundamental constitutional principles, particularly Article 21. Furthermore, it heightens the risk of human rights violations.
One of the most concerning aspects of the Bill is the lack of a structured appeal mechanism for individuals affected by adverse immigration decisions. Section 29 allows the Central Government to order the removal of foreigners without any provision for independent review or appeal, meaning an affected person has no formal recourse to challenge a deportation order.
Furthermore, Section 15 grants immigration officers the authority to determine the nationality of a foreigner in cases of multiple citizenships, with their decision being final, unless the government chooses to review it at its discretion. It denies affected individuals a fair chance to contest potentially life-altering decisions, leaving their fate entirely in the hands of the executive without any checks or balances.
While the factual matrix of Maneka Gandhi v. Union of India revolved around the impoundment of a passport, it caused tectonic shifts in the interpretation of due process into the India Constitution. Now, it serves as a reckoning, as the provisions of the Bill are assessed on the anvil of the principles of justness, fairness and reasonableness established in Maneka. The bill’s effectiveness will largely depend on whether the upcoming rules and implementation framework provide clear procedural safeguards to prevent arbitrary detention and misuse of executive power
Opinions expressed in JURIST Dispatches are solely those of our correspondents in the field and do not necessarily reflect the views of JURIST’s editors, staff, donors or the University of Pittsburgh.
