India has always struggled with the constitutional meaning of the “foreigner.” The Constitution speaks in the language of persons, not merely citizens.
(File photo for representation)
India has always struggled with the constitutional meaning of the “foreigner.” The Constitution speaks in the language of persons, not merely citizens. Article 21 does not end at the border fence. Yet, across decades, the executive imagination of migration has remained deeply carceral.
The latest circular of the Ministry of Home Affairs dated 2 May 2025 – followed by the West Bengal government’s order establishing district-wise “Holding Centres” for “Bangladeshis/Rohingyas” and released foreign prisoners awaiting deportation – marks a decisive expansion of that executive imagination into a permanent architecture of suspicion, detention and bureaucratic erasure.
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The government will argue, correctly, that the Immigration and Foreigners Act, 2025 and the accompanying Immigration and Foreigners Rules, 2025 and Immigration and Foreigners Order, 2025 now provide statutory footing for holding centres, biometric collection and deportation mechanisms. That is formally true. The difficulty lies elsewhere. Constitutionalism does not end where legislation begins. A statute cannot become a constitutional laundering machine for executive excess.
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The new regime undoubtedly consolidates immigration powers into a single legislative framework. The Immigration and Foreigners Act, 2025 repeals the older architecture of the Foreigners Act, 1946, the Passport (Entry into India) Act, 1920, the Registration of Foreigners Act, 1939 and related enactments. But the repeal is accompanied by a broad saving clause: earlier “rules, orders, directions, instructions, regulations or proceedings” continue only insofar as they are not inconsistent with the new statutory framework.
That qualification is constitutionally and administratively significant. The May 2025 MHA circular repeatedly invokes the repealed Foreigners Act, the Passport (Entry into India) Act and the Foreigners Order, 1948 as the operative source of authority, while simultaneously bypassing or diluting several safeguards and institutional structures introduced under the 2025 regime – including the more structured (at least textually) Tribunal-centred adjudicatory framework contemplated by the Immigration and Foreigners Order, 2025. The problem, therefore, is not merely one of formal repeal.
It is that an older police-centric logic of suspicion, detention and deportation survives within the new regime through executive circulars that seek to preserve the coercive instincts of the past while selectively ignoring the procedural architecture of the present. The circular directs states to establish holding centres in every district. It contemplates the detention of “suspected” Bangladeshis and Rohingyas, the capture of fingerprints and facial biometrics, inter-state verification exercises, blacklisting, and even the sharing of data with UIDAI, the Election Commission and welfare agencies to facilitate suspension of identity documents and social benefits.
The bureaucratic violence here is breathtaking in its ambition. A person may not merely lose liberty; they may lose documentary existence itself. One must pause over the constitutional implications of this. The Supreme Court in Justice K.S. Puttaswamy recognised privacy not as elite abstraction but as the constitutional condition of dignity. Informational privacy was treated as intrinsic to personhood. Yet the present circular constructs precisely the kind of centralised, interlinked surveillance architecture that the Court warned against.
A “public blacklist” of deported Bangladeshis and Rohingyas, linked to identity databases and welfare exclusion, is not immigration control alone. It is digital civil death. The executive instinct is familiar. First classify a population as suspect. Then collapse legality into administration. Finally transform administrative suspicion into social invisibility. Nor is detention here meaningfully bounded. The West Bengal notification specifically includes “released foreign prisoners awaiting deportation/repatriation.”
In other words, even after a sentence imposed by a criminal court has concluded, confinement may continue indefinitely because deportation logistics are incomplete. Constitutional lawyers have seen this before. Preventive detention jurisprudence taught us long ago that the State often prefers administrative custody precisely because it escapes the discipline of ordinary criminal process. What is especially troubling is the absence of procedural imagination in the circular.
There is no meaningful hearing contemplated before detention. No clear reference to Foreigners Tribunals in several operational clauses. No periodic judicial review. No publicly available SOPs. No maximum detention limits. No legal aid guarantees. The executive appears to treat constitutional due process as something that can be diluted, if not altogether displaced, by internal circulars and administrative instructions. The targeting of “Bangladeshis” and “Rohingyas” also raises a deeper Article 14 concern.
The Immigration and Foreigners Order, 2025 itself adopts a nationality-neutral language of “illegal migrant.” The circular however does not. It repeatedly singles out specific ethnic and national groups. In contemporary India, such classification cannot be read innocently. The border has increasingly become a site where ethnicity, religion, language and citizenship anxieties converge into a single category of suspicion. The Rohingya question is particularly grave.
The Supreme Court, in Mohammad Salimullah, while refusing to constitutionalise non-refoulement, too, did not authorise instant “push-back” operations at the border. The MHA circular contemplates precisely such immediate returns after biometric capture. But constitutional democracies are judged most harshly not by how they treat citizens but by how they treat the stateless, the undocumented and the unwanted. The government will say national security requires robust immigration control. Of course, the State has legitimate authority to regulate entry and deport foreigners.
No constitutional court is likely to dispute that proposition. But constitutional democracies are defined not merely by ends but by methods. The question is not whether deportation may occur. The question is whether the Constitution permits a vast detention-and-surveillance apparatus built on executive suspicion, opaque procedures a n d nationality-specific targeting. There is also an irony here that should not be missed. India once criticised apartheid South Africa for pass laws and documentary policing. Today we appear increasingly comfortable with turning identity documentation into a weapon of conditional belonging.
Aadhaar, welfare access, electoral databases and immigration enforcement are slowly collapsing into one another. The Constitution did not envisage such a fused architecture of surveillance. Holding centres may be lawful in the narrow statutory sense. But legality is not constitutionality. The history of constitutionalism teaches precisely this lesson: executive power is most dangerous when clothed in legislative language. The borderlands of the Republic cannot become zones where Article 21 fades into administrative discretion. The Constitution does not stop at the detention gate.
(THE WRITER IS AN ADVOCATE, CALCUTTA HIGH COURT.)
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