Prosecution of foreigners: The Bill lays down five penalties for the contravention of its provisions
Mar 18, 2025 12:58 IST First published on: Mar 18, 2025 at 12:58 IST
Immigration policies and deportations have been in the news ever since the new US government decided to initiate mass deportations. Around the same time as these deportations took off, India’s legislative drafters were giving final touches to the Immigration and Foreigners Bill, 2025, introduced last week in the Lok Sabha. With the aim to strengthen laws governing immigration and foreigners, the Bill repeals and replaces four laws, including three pre-Independence laws — Foreigners Act, 1946, Registration of Foreigners Act, 1939 and Passport (Entry into India) Act, 1920 — as well as the relatively newer Immigration (Carriers’ Liability) Act, 2000.
The statement of objects and reasons accompanying the Bill cites the need to empower the central government to regulate entry and exit requirements, registration and visa processes, while also avoiding multiplicity of laws. However, the Bill falls short of addressing long-standing gaps and procedural flaws concerning the entry, prosecution and removal of foreigners.
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Entry of foreigners: The Bill continues to define a foreigner as “a person who is not a citizen of India”. While seemingly straightforward, this definition overlooks the complexities of modern migration. Foreigners in today’s era of globalisation and open borders are not your typical migrants from centuries ago. They are migrant workers, immigrants intending to acquire permanent residency, economic migrants, tourists, students, undocumented migrants, refugees, asylum seekers or even stateless persons. The legal, social and economic needs of each of these categories are distinct, and should be addressed in the Bill.
The Immigration and Foreigners Bill, 2025 presents a good opportunity for the Government to create a legal framework recognising these varied categories of foreigners. For instance, given its long-history of providing refuge to migrants from neighbouring countries like Sri Lanka and Afghanistan. Legally acknowledging “asylum seekers” and “refugees” in the Bill as a distinct category would have paved the way for progressive legislation aligned with international norms and domestic realities.
Similarly, the Bill has a separate clause pertaining to foreigners who are nationals of more than one foreign country, but it remains silent on cases where the foreigner is not a recognised citizen of any country, that is he or she is categorised as “stateless”. This absence of formal recognition will result in continued neglect for the plight of stateless persons, leaving them vulnerable to legal and administrative uncertainty.
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Prosecution of foreigners: The Bill lays down five penalties for the contravention of its provisions, including penalty for the carrier, penalty for entry without valid passport/travel documents, penalty for using or supplying forged or fraudulently obtained passport/travel document/visa, penalty for overstaying the visa period or other provisions of the Act and the penalty for abetment. These provisions are similar to extant provisions, the terms of imprisonment and quantum of fines differ.
An oft-critiqued feature of the Foreigners Act, retained in the Bill, is that the onus of proving whether a person is a foreigner or not is on the accused person and not on the state. This reversal of the burden of proof means that there is no onus on the prosecution to verify the actual nationality of the accused, which poses a number of difficulties in ensuring consular access and initiating repatriation procedures etc. There have been several instances where Indian nationals with mental illness were apprehended near border areas and were wrongfully prosecuted due to this flawed provision. The Bill should have corrected this based on legal research and practical experience. A positive inclusion, however, is a clause permitting compounding of certain offences – meaning the accused can enter into a compromise, and get the charges dropped either before the institution of prosecution or during trial.
Removal of foreigners: A major gap in the Bill is the absence of clear provisions on the removal and deportation of foreigners, especially those detained or imprisoned. Current deportation and repatriation procedures are governed by standard operating procedures (SOPs) that are not publicly accessible. This lack of transparency often results in indefinite detentions and administrative confusion. As a result, foreign nationals, their families and legal representatives face numerous challenges and are forced to navigate between state government departments and central government ministries with each deflecting responsibility and none offering a clear solution.
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Another major concern is the sweeping power granted under the present Act as well as the Bill to the government to issue directions to foreigners, including requiring them to stay in a particular place or restricting their movements. This is a curtailment of their liberty, without the opportunity to be heard, appeal the decision or seek periodic reviews of such restrictions. Such provisions directly contravene constitutional guarantees of personal liberty and due process. This aspect of the Bill requires further deliberation and discussion in the Parliament.
The Bill reflects lack of research, consultation and engagement with ground functionaries and affected communities. Its provisions largely recycle outdated laws without adapting to ground experiences and current realities. There is an imminent need to address the aforementioned concerns, as without these changes the Immigration and Foreigners Bill, 2025 will be a missed opportunity for meaningful reform.
The writer is a lawyer and expert on prison reforms and criminal justice systems
