A new immigration law reflects India's rising paranoia over the ‘undesirable outsider'

Indian Express

23-05-2025

Written by Aashish Yadav and Angshuman Choudhury
'India is not a dharamshala' — that's how the Supreme Court responded on May 16 to a petition by a Sri Lankan Tamil individual to not be deported to his home country out of fear of persecution. Remarkably, this is the exact language that Union Home Minister Amit Shah recently used in the Lok Sabha to defend the Immigration and Foreigners Act, 2025, which came into effect in April.
This dovetailing of the judiciary and the executive on the issue of immigration control and refugee rights reflects a troubling anti-humanitarian flare-up in the Indian state apparatus, conspicuous in a series of recent events.
Four days before the 'dharamshala' remark, another Supreme Court bench called media reports on the Indian government allegedly abandoning some 40 Rohingya refugees forcibly at sea near the southeastern coast of Myanmar 'a very beautifully crafted story'. Just over a week prior, yet another bench concluded that Rohingya refugees were 'illegal immigrants' who could be deported as per due process.
However, Assam Chief Minister Himanta Biswa Sarma recently announced that India had now begun to directly 'push back' undocumented individuals and refugees into Bangladesh, instead of following legal procedures. This was not just bluster. It coincided with reports on India pushing hundreds of undocumented individuals into Bangladesh through the land borders in Assam and West Bengal, much to Dhaka's chagrin.
Meanwhile, various state governments have been rounding up undocumented, mostly Bengali-speaking working-class individuals in recent days while the Centre seeks a countrywide verification of the identities of suspected illegal immigrants within 30 days and subsequently, deportation of those found to be undocumented.
These developments cannot be seen in isolation and must be placed in a threefold context. First, they mirror a global surge in anti-immigrant rhetoric and action, accompanied by a hardening of border control regimes. The Trump administration's actions against both undocumented and documented immigrants in the US have been the most pronounced manifestation of this xenophobic surge.
Second, the anti-immigrant and anti-refugee actions come on the heels of India's Operation Sindoor against Pakistan and the attendant anxiety over national security and borders. This phase saw the Narendra Modi government not only deporting Pakistani nationals from India, but also adopting a parallel, allusive process of expelling a broad set of 'others' who have long been profiled as threats to India's internal security. Bengali-speaking Muslims and Rohingya seem to be first among these unequals.
Third, they are synchronised with the Modi government's decision to reform the legal regime on immigration control. The Immigration and Foreigners Act, 2025, under the garb of streamlining immigration laws, sets new norms of entry, stay and exit while giving unprecedented powers to central immigration authorities to enforce them.
It is the second and third contexts that Indian civil society should be most concerned about.
The Home Minister has framed the Immigration and Foreigners Act as an outcome of the Modi government's 'compassion, sensitivity, and awareness of threats to the nation'. But, by vesting extraordinary powers in a central bureaucratic node — the Bureau of Immigration — and introducing vague norms of immigration control, the new law creates an arbitrary legal regime with broad executive discretion.
For starters, the act is littered with excessive delegation of power. Rather than formulating clear provisions through any parliamentary process, it provides sweeping powers to the Centre to specify any new ground for the entry of foreigners and even restrict their activities within the country. Under this regime, such executive decisions would be made without any institutional oversight, leaving no recourse to a statutory remedy.
This is unlike the multi-tiered immigration appeal systems most leading democracies have, including those with strong immigration laws. Particularly concerning is the act's provision on restricting the entry of a 'specified class or description of foreigner', which could potentially justify a blanket travel embargo akin to US President Donald Trump's 2017 ban on nationals of Muslim-majority countries.
The law also gives immigration officers carte blanche to restrict the entry of foreign nationals to India on vague grounds of national security and public health, among others, without providing any concrete reasons. In recent years, the government has adopted a punitive immigration stance against foreign journalists and academics critical of the regime. This includes the deportation of a British professor in 2024 and the revocation of her OCI status this week, and similar actions against a French journalist and a Swedish academic.
If these actions are to be taken as precedent, the government could weaponise the new law to deter and expel 'undesirable' foreign nationals.
Beyond standard border control, the act constricts an already restricted asylum regime, including for stateless refugees (like the Rohingya). Not only does the law remain silent on these vulnerable groups, but it also strengthens the legal rationale to expel them from or deny them entry into Indian territory through its arbitrary provisions on 'national security' and expansive government discretion.
The new law fundamentally fails to address a critical gap in the Indian legal regime — the absence of a comprehensive, protection-centric asylum law. Instead, it has fallen on the heels of the discriminatory CAA and its opaque procedures, disingenuously painting it as a humanitarian, pro-refugee law.
More concerningly, the government has signalled its intention to terminate the long-standing policy of recognising UNHCR refugee cards, which is the primary form of identification that refugees in India have. These cards are issued after a meticulous vetting process to verify the claims of each person. Unfortunately, the Supreme Court, too, has dismissed the value of these cards, most recently in a Rohingya deportation-related hearing on May 8.
Clearly, Trump's bellicose immigration policy echoes in many provisions of the act. But, its most serious radiating effect has been felt in the recent deportations in India.
Both actions reveal a paradox that, despite passing the new act, the government did not invoke it in the deportation of Pakistani citizens after the Pahalgam attack. In the case of Rohingyas, the government appears to totally circumvent any legal procedure. In that sense, the law itself appears to be overshadowed by extra-legal interests over national security and domestic politics.
What is perhaps more troubling is that the Supreme Court has indirectly supported the systematic and incremental erosion of refugee rights by not just adopting narrow interpretations of fundamental rights, but also refusing to critically scrutinise the rhetorical positions and actions of the executive. Instead, it has chosen to simply recapitulate the hostility that the government has shown towards refugees and other vulnerable groups that are routinely profiled as 'infiltrators' without any evidence.
Aashish Yadav is a doctoral candidate at the University of Melbourne. Angshuman Choudhury, formerly at the Centre for Policy Research, is a doctoral candidate in Comparative Asian Studies jointly at the National University of Singapore and King's College London. Views are personal