Consolidation Without Transformation: The Immigration and Foreigners Act, 2025, and the Statutes It Replaced

A long-form analysis of India's new immigration code, the four colonial-era laws it repeals, the jurisprudence it inherits, and the constitutional questions it leaves open.

Abstract

On 1 September 2025, the Immigration and Foreigners Act, 2025 (Act No. 13 of 2025) came into force, and four statutes that had governed the entry, registration, presence, and removal of foreigners in India for between twenty-five and one hundred and five years ceased to operate. The Passport (Entry into India) Act, 1920, the Registration of Foreigners Act, 1939, the Foreigners Act, 1946, and the Immigration (Carriers' Liability) Act, 2000, were repealed and folded into a single thirty-six-section instrument arranged across six chapters. The Government described the exercise as one of simplification: the removal of overlap, the closing of gaps, and the bringing together of provisions that had been scattered across a colonial archive and a thicket of executive notifications.

That description is accurate as far as it goes. The 2025 Act is undeniably tidier than the regime it displaces. A practitioner advising a foreign national, a university, a hospital, an airline, or a foreign investor no longer has to read four enactments alongside dozens of orders and notifications, and reconcile their inconsistencies, to state the law. But the central argument of this article is that the consolidation is one of form rather than of substance. The animating logic of the new statute is the same logic that the Constitution Bench described in 1955 as conferring upon the Union "absolute and unfettered" discretion over foreigners. The discretionary architecture of the Foreigners Act, 1946, survives almost intact in the new Sections 3 and 7. The reversed burden of proof survives, and is in fact strengthened. The penalties are heavier, the surveillance apparatus is broader and now digital, the power of arrest descends to a lower rank, and the executive's removal power acquires an express reference to an "adverse security report." What the Act does not do is supply the things that a genuine modernisation might have supplied: a structured, reviewable standard for the exercise of discretion, a statutory recognition of the position of refugees and stateless persons, a ceiling on detention, or a meaningful tier of independent appeal.

This article proceeds in seven parts. Part I reconstructs the old architecture, the four repealed statutes and the wartime and colonial conditions in which three of them were drafted. Part II sets out the jurisprudential inheritance, the line of Supreme Court authority running from Hans Muller through Louis De Raedt and Sarbananda Sonowal to the Rohingya litigation, which fixes the constitutional baseline against which the new Act must be read. Part III is an anatomy of the 2025 Act itself, chapter by chapter and section by section. Part IV is a provision-by-provision comparison of the old law and the new. Part V examines the subordinate-legislation layer, the Immigration and Foreigners Rules, 2025, and the Immigration and Foreigners (Exemption) Order, 2025, where much of the operative detail in fact resides. Part VI offers a constitutional and rights critique. Part VII turns to the practical consequences for foreign nationals, institutions, carriers, and the lawyers who advise them. A short conclusion restates the thesis.

Part I: The Old Architecture, Four Statutes and One Logic

The shape of the pre-2025 regime

Until 1 September 2025, the law governing foreigners in India was the cumulative product of four central enactments, a body of subordinate orders made under them, and a substantial gloss of judicial interpretation. The four statutes were not drafted as a coherent code. They were enacted across eight decades, in response to different pressures, and they overlapped in ways that produced both redundancy and uncertainty. Three of the four predated the Constitution. Two of those three were products of the two World Wars. The Government's own Statement of Objects and Reasons accompanying the 2025 Bill acknowledged this candidly, observing that the 1920, 1939, and 1946 Acts were "not only of pre-Constitution period" but had been brought into force "in extraordinary times of first and second world wars," and that while there was an "underlying continuity and commonality of objectives" among the four, there were "overlapping provisions" that justified replacement.

The honest reading of that Statement is that the new Act preserves the "underlying continuity and commonality of objectives" while removing the "overlapping provisions." It is a consolidation, not a reconception. To understand what was preserved, one has to understand what the four statutes did.

The Passport (Entry into India) Act, 1920

The earliest of the repealed statutes was the Passport (Entry into India) Act, 1920. It was a short instrument, enacted in the aftermath of the First World War, at a moment when the imperial government was increasingly anxious about the movement of persons across the borders of British India and about the entry of political agitators. Its essential function was to confer upon the Government the power to make rules requiring persons entering India to be in possession of passports. The 1920 Act was the statutory source of the passport requirement at entry, and the rules made under it, principally the Passport (Entry into India) Rules, 1950, gave the requirement operational content.

The 1920 Act also carried the original penal provision for entry without a valid passport. Under that Act, entering India without a valid passport was punishable with imprisonment of up to five years, a fine of up to fifty thousand rupees, or both. It conferred a power of arrest without warrant, exercisable by any police officer not below the rank of sub-inspector and by any officer of the Customs Department, in respect of persons entering India without passports. These two features, the penalty for undocumented entry and the power of arrest, are carried forward in modified and intensified form into the 2025 Act, and the comparison is drawn out in Part IV.

It is worth pausing on the genealogy. The 1920 Act was a control measure of the colonial state. It was not concerned with the rights of travellers or with the orderly facilitation of legitimate movement so much as with the imperial interest in knowing and restricting who crossed the frontier. That orientation, the foreigner as a subject of control rather than a bearer of rights, runs through the entire repealed regime and, as Part VI argues, is not fundamentally disturbed by the 2025 Act.

The Registration of Foreigners Act, 1939

The Registration of Foreigners Act, 1939, was enacted on the eve of the Second World War. Its purpose was to provide for the registration of foreigners present in India and to empower the Central Government to make rules requiring foreigners to report their presence and movements to a prescribed authority. The Registration of Foreigners Rules, 1939, made under the Act, created the apparatus of registration with which immigration practitioners became intimately familiar over the following decades: the requirement that certain categories of foreigners, broadly those staying beyond a threshold period, register with the Foreigners Regional Registration Officer or the local Registration Officer, and the obligation on keepers of hotels and other accommodation to report the presence of foreign guests through the instrument long known in practice as the C-Form.

The 1939 Act was the statutory root of the reporting and monitoring system. It is the ancestor of Sections 6 and 8 of the 2025 Act. The conceptual move that the 2025 Act makes, and that the 1939 framework had already begun, is the conscription of private actors, accommodation keepers above all, into the machinery of state surveillance of foreigners. The 2025 Act extends that conscription considerably, as Part III explains, by adding universities, other educational institutions, hospitals, nursing homes, and other medical institutions to the list of reporting entities.

The Foreigners Act, 1946

If the 1920 and 1939 Acts supplied the passport requirement and the registration apparatus, the Foreigners Act, 1946, supplied the substance of executive power. It was, and until its repeal remained, the workhorse of Indian immigration law. It was enacted in the final phase of the Second World War and the last years of colonial rule, and it conferred upon the Central Government a sweeping and largely unstructured power to regulate the entry, presence, movement, and departure of foreigners.

Section 3 of the 1946 Act was the heart of the statute. It empowered the Central Government, by order, to make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating, or restricting the entry of foreigners into India, their departure, and their presence or continued presence in India. The catalogue of specific powers that followed was extraordinarily wide. The Government could direct that a foreigner not enter India, or enter only at specified times, routes, and places and on specified conditions; that a foreigner not depart, or depart only on specified conditions; that a foreigner not remain in India or in any specified area; that a foreigner reside in a particular place; that a foreigner report his movements, furnish proof of identity, submit to medical examination, allow himself to be photographed and fingerprinted, refrain from association with specified persons, refrain from specified activities, and so on. Section 3(2)(c), the residence-and-restriction limb, was the provision under which orders confining foreigners to particular places were made.

A reader who has studied Section 7 of the 2025 Act will recognise it immediately. Section 7 of the new Act is, for practical purposes, a re-enactment of Section 3 of the 1946 Act, reorganised and lightly modernised, with the addition of express references to biometric information. The continuity is not incidental. It is the core of the statute.

Two other features of the 1946 Act demand attention because they are carried forward. The first is the reversed burden of proof. Section 9 of the 1946 Act provided that where a question arose whether a person was or was not a foreigner, or was or was not a foreigner of a particular class or description, the onus of proving that he was not a foreigner, or was not a foreigner of the relevant class, lay upon that person, notwithstanding anything in the Evidence Act. This was a startling departure from the ordinary criminal-law principle that the prosecution proves its case. It placed on the individual the burden of establishing a negative, that he was not a foreigner, and it did so in a domain, deportation and detention, with the gravest consequences for liberty. Section 16 of the 2025 Act preserves this reversal and updates the cross-reference, now disapplying the Bharatiya Sakshya Adhiniyam, 2023, in place of the Evidence Act.

The second feature is the deportation and detention machinery. The 1946 Act, read with the Foreigners (Tribunals) Order, 1964, made under Section 3, supplied the apparatus by which persons suspected of being foreigners were identified, adjudicated, and removed. The Foreigners Tribunals, quasi-judicial bodies of central creation, became, particularly in Assam, the principal mechanism for determining nationality and ordering deportation. The 1946 Act also empowered the confinement and detention of foreigners pending removal, a power whose constitutional fate is discussed in Part II in connection with Hans Muller.

The Immigration (Carriers' Liability) Act, 2000

The youngest of the four repealed statutes was the Immigration (Carriers' Liability) Act, 2000. It was a focused enactment with a single object: to make carriers liable in respect of passengers whom they brought into India in contravention of the Passport (Entry into India) Act, 1920, and the rules under it. The 2000 Act defined "carrier" as any person or association of persons engaged in the business of transporting passengers by water or air, and it imposed a penalty on a carrier that brought into India a passenger who did not possess a valid passport or travel document.

The 2000 Act reflected a global trend in immigration enforcement: the shifting of front-line document checking onto airlines and shipping lines, on pain of financial penalty, so that the state's border control is effectively privatised and exported to the point of embarkation. The 2025 Act continues and substantially expands this approach in Chapter IV. It widens the definition of carrier to cover transport of passengers and cargo by air, water, or land, through aircraft, ship, or any other mode of transport; it imports the contemporary apparatus of advance passenger information and passenger name record data; and it adds a substantial new penalty, between two and five lakh rupees, for a carrier that brings an inadmissible person into India.

The texture of the old law in practice

For the practitioner, the pre-2025 regime had a characteristic texture. The governing principles were located in the 1946 Act, but the operative detail was located in orders and notifications. The visa regime itself was not statutory; it was the product of executive orders, the Visa Manual, and a body of administrative practice. The exemptions that mattered most in practice, for citizens of Nepal and Bhutan, for Tibetan refugees, for Sri Lankan Tamil refugees, and, after 2015, for specified religious minorities from Afghanistan, Bangladesh, and Pakistan, were scattered across separate notifications issued under the 1920 and 1946 Acts. The protected-area and restricted-area permit system, governing travel to sensitive border regions, was similarly a creature of orders.

The result was a regime that was legally thin at the level of statute and legally dense at the level of subordinate instrument. The discretion that the statute conferred was vast, and the structure that confined that discretion was supplied, if at all, by administrative practice and by the courts. As Part V shows, the 2025 Act reproduces this texture. The statute is a frame; the picture is painted by the Rules and the Exemption Order. The phrase "as may be prescribed" appears throughout the new Act, and the genuinely consequential choices, what biometric data is collected, how registration is performed, what forms are filed, what categories are exempt, are made by the executive in delegated legislation rather than by Parliament in the Act.

Part II: The Jurisprudential Inheritance

The 2025 Act does not arrive on a blank constitutional canvas. It inherits a settled, and in important respects troubling, body of Supreme Court authority that defines the constitutional position of the foreigner in India. Because the new Act re-enacts the discretionary core of the 1946 Act, that authority continues to govern its interpretation. A practitioner who wishes to know how a court will read Section 3 or Section 7 or Section 29 of the new Act must read them through the lens of Hans Muller, Louis De Raedt, Sarbananda Sonowal, and the Rohingya cases. This Part sets out that inheritance.

Hans Muller and the doctrine of absolute power

The foundational authority is Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, decided by a Constitution Bench in 1955 and reported at AIR 1955 SC 367. The petitioner was a West German national who had been placed under preventive detention by the West Bengal Government on the footing that he was a foreigner within the meaning of the Foreigners Act, 1946, and that it had become necessary to arrange for his expulsion from India, for which purpose his detention was required pending an order of the Central Government.

The Constitution Bench upheld the detention and, in doing so, laid down the proposition that has anchored Indian immigration law ever since: that the power of the Government of India to expel foreigners is absolute and unlimited, and that there is no provision in the Constitution fettering this discretion. The Court observed that the legal position on this question was not uniform across countries, but that so far as the law operating in India was concerned, the executive Government had an unrestricted right to expel a foreigner. The right to expel was located in Section 3 of the Foreigners Act, and the Court treated it as a power that the executive could exercise at its discretion, subject to no substantive constitutional constraint beyond the minimal procedural floor of Articles 21 and 22.

Hans Muller did two things that continue to shape the field. First, it characterised the expulsion power as plenary and essentially unreviewable on its merits. Second, it drew a distinction, which later cases would deepen, between the position of the citizen and the position of the foreigner under the Constitution. The foreigner, the Court accepted, enjoys the protection of Article 21; he cannot be deprived of life or personal liberty except according to procedure established by law. But the foreigner does not enjoy the right under Article 19(1)(e) to reside and settle in India, which is confined to citizens. The consequence is that the foreigner has a right not to be deprived of liberty arbitrarily, but no right to remain. The state may lawfully require him to leave.

Louis De Raedt and the limits of natural justice

The next significant authority is Louis De Raedt v. Union of India, decided in 1991 and reported at (1991) 3 SCC 554. The principal petitioner was a Belgian national who had lived in India continuously since 1937, working in the Adivasi belt of what is now Jharkhand. He had stayed on the basis of residential permits renewed from time to time. In 1985 an order was passed requiring him to leave the country, and he challenged it, contending among other things that by reason of his long residence he had become an Indian citizen at the commencement of the Constitution under Article 5, that the order of expulsion was bad for want of a pre-decisional hearing, and that the officer who signed it lacked authority.

The Supreme Court rejected each contention. On citizenship, it held that long physical residence did not displace De Raedt's domicile of origin; his repeated applications for extensions, his use of a foreign passport, and his failure to take any step towards naturalisation until the mid-1980s demonstrated the absence of an intention to remain permanently, and he had therefore not acquired domicile in India for the purposes of Article 5. On fundamental rights, the Court reaffirmed Hans Muller: the foreigner's fundamental right is confined to Article 21 and does not include the Article 19(1)(e) right to reside and settle, and the power of the Government to expel is absolute and unlimited. On natural justice, the Court accepted that some opportunity to be heard might be desirable, but held that the petitioners had failed to show what additional material they could have placed before the authority had a pre-decisional notice been given, and that the absence of such a hearing did not vitiate the order.

Louis De Raedt is important for the practitioner because it confirms two propositions that bear directly on the 2025 Act. The first is that the procedural protection available to a foreigner facing removal is thin. The second is that the burden of establishing a claim of citizenship, or of non-foreigner status, rests on the individual, a proposition that connects directly to the reversed burden of proof in Section 9 of the 1946 Act and now Section 16 of the 2025 Act.

Sarbananda Sonowal and the security framing

The third authority is Sarbananda Sonowal v. Union of India, decided in 2005 and reported at (2005) 5 SCC 665. The case concerned the Illegal Migrants (Determination by Tribunals) Act, 1983, which applied only to Assam and which created a determination procedure more favourable to the person alleged to be an illegal migrant than the procedure under the Foreigners Act, 1946, applicable in the rest of the country. The petitioner contended that the 1983 Act, by making detection and deportation of illegal migrants harder in Assam than elsewhere, was arbitrary, discriminatory, and a failure of the Union's duty under Article 355 to protect Assam against external aggression.

The Supreme Court struck down the 1983 Act. It held that the geographical classification, applying a more lenient regime to Assam alone, failed the test of Article 14, because the classification bore no rational nexus to the object of facilitating detection and deportation, and indeed frustrated it. More consequentially for present purposes, the Court characterised the large-scale influx of illegal migrants into Assam as a form of "external aggression" within the meaning of Article 355, and it framed the entire question of immigration control in the register of national security and territorial integrity. The Court also affirmed, following Hans Muller and Louis De Raedt, that the determination of foreigner status and the consequent deportation lay outside the protections that attach to a criminal trial, on the reasoning that the person affected is not being deprived of life or personal liberty in the manner that a criminal conviction would entail.

Sarbananda Sonowal matters because it supplies the constitutional grammar in which the 2025 Act is written. The Act's first proviso to Section 3(1), which permits the refusal of entry or stay on grounds of threat to national security, sovereignty and integrity, relations with a foreign State, or public health, speaks the language of Sonowal. The framing of immigration as a security question, with the foreigner as a potential threat to be screened rather than a person whose interests are to be balanced, is the framing the Supreme Court endorsed in 2005, and it is the framing the legislature adopted in 2025.

The Rohingya litigation and non-refoulement

The most recent and most contested strand of authority concerns the position of refugees and the principle of non-refoulement. India is not a party to the 1951 Refugee Convention or its 1967 Protocol, and it has no domestic refugee statute. The treatment of refugees has therefore been governed by the Foreigners Act, by executive practice, and by an uneven body of judicial decisions.

In Mohammad Salimullah v. Union of India, the Supreme Court was asked to restrain the deportation of Rohingya refugees held in Jammu. In its interlocutory order of 2021, the Court declined to grant the relief sought, observing that the Rohingyas in Jammu were not to be deported unless the procedure prescribed for deportation was followed. As commentators have noted, this is a thin protection. It is not a recognition of a right to non-refoulement, the principle that a person must not be returned to a territory where he faces persecution or a real risk of torture or other serious harm. It is, at most, a protection against being removed without following whatever procedure the executive has prescribed, a procedure that may itself be minimal.

There is, however, a counter-current in the High Courts. In NHRC v. State of Arunachal Pradesh, (1996) 1 SCC 742, the Supreme Court directed the protection of Chakma refugees against forcible expulsion and held that the State was bound to protect the life and liberty of every person, citizen or not, within its territory. In Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 CriLJ 919, the Gujarat High Court read the principle of non-refoulement into Article 21, holding that the protection of life and liberty extended to a refugee facing return to persecution. In Dongh Lian Kham v. Union of India and in several Delhi High Court orders, the principle has been invoked, though inconsistently. The doctrinal position remains unsettled: there is a respectable body of authority that Article 21 prohibits refoulement to torture or to a real risk of death, but there is no statutory recognition of the principle, and the Supreme Court's most recent interventions have been cautious.

This is the gap that the 2025 Act did not fill. As Part VI argues at length, the most significant omission in the new statute is the absence of any provision recognising the position of refugees, asylum seekers, or stateless persons, or any standard governing removal to a country of feared persecution. The Act consolidates the machinery of control and leaves the question of protection precisely where the old law left it: to executive grace and to the contested and incremental development of Article 21 by the courts.

The constitutional baseline, summarised

The inheritance can be stated in five propositions. First, the foreigner enjoys the protection of Article 21 but not of Article 19(1)(e); he has a right against arbitrary deprivation of liberty but no right to remain. Second, the executive's power to expel is, on the authority of Hans Muller, absolute and unlimited, subject only to the minimal procedural floor of Articles 21 and 22. Third, the determination of foreigner status and the order of deportation lie, on the authority of Sarbananda Sonowal and Louis De Raedt, outside the fuller procedural protections that attach to a criminal trial. Fourth, the burden of proving non-foreigner status lies on the individual. Fifth, the principle of non-refoulement has a contested foothold in Article 21 but no statutory recognition. The 2025 Act is built on this baseline and, as the following Parts show, disturbs none of it.

Part III: The 2025 Act, an Anatomy of the New Statute

The Immigration and Foreigners Act, 2025, is Act No. 13 of 2025. It received the assent of the President on 4 April 2025, having been passed by the Lok Sabha on 27 March 2025 and by the Rajya Sabha on 2 April 2025, and it was brought into force on 1 September 2025 by notification S.O. 3981(E) dated 31 August 2025. The Act is organised into six chapters and thirty-six sections. The long title states its purpose: to confer upon the Central Government certain powers to provide for the requirement of passports or other travel documents in respect of persons entering and exiting India, and for regulating matters related to foreigners including the requirement of visa and registration. This Part works through the statute chapter by chapter.

Chapter I, Preliminary, Sections 1 and 2

Section 1 contains the short title and the commencement provision, which left the date of coming into force to executive notification. Section 2 is the definitions clause, and several of its definitions repay close reading because they expand the reach of the statute relative to the old law.

The definition of "foreigner" in Section 2(f) is the familiar negative formula: a person who is not a citizen of India. This is the same definition that the Foreigners Act, 1946, employed after its 1957 amendment, and it sweeps in every non-citizen, from the tourist to the long-resident permit-holder to the refugee to the stateless person. The Act does not distinguish among these categories at the level of definition. It treats them as a single class, the foreigner, and leaves any differentiation to be made by exemption under Section 33.

The definition of "carrier" in Section 2(b) is significantly wider than its predecessor. The 2000 Act spoke of a person or association engaged in transporting passengers by water or air. Section 2(b) covers a person or entity, including any association of persons or company, engaged in the business of transporting passengers or cargo by air, water, or land, by aircraft, ship, or any other mode of transport. The addition of land transport, of cargo, and of "any other mode of transport" brings road and rail carriers, and freight operators, within the carrier-liability regime for the first time.

The definition of "accommodation" in Section 2(a) is broad: a temporary or permanent premises of any nature where a foreigner is accommodated. Read with the definition of "keeper of accommodation" in Section 2(j), this captures not only hotels but any premises providing lodging, subject to the carve-out in Section 8 for non-commercial residential premises.

Sections 2(p), 2(q), and 2(s) define "prohibited place," "protected area," and "restricted area" respectively, each by reference to executive specification by order. "Protected area" is defined to include any area contiguous with India's international border or any other area the Central Government may specify; "restricted area" is any area within India outside a protected area that the Government may specify; and "prohibited place" is any place the Government may specify. These definitions matter for the permit regime in Section 11.

Section 2(t) defines "visa" as an authorisation, by such authority as may be prescribed, permitting a foreigner to enter, transit through, stay in, or exit from India. This is a notable development. Under the old regime the visa was an administrative creature, not a statutory one; the requirement of a visa derived from orders under the 1946 Act rather than from any Act in terms. Section 3 of the 2025 Act now imposes the visa requirement directly in the statute, and Section 2(t) gives the visa a statutory definition for the first time. The grant of the visa, however, remains delegated to a prescribed authority and is not itself structured by the Act.

Chapter II, Matters Related to Immigration, Sections 3 to 5

Section 3 is the operative entry-and-exit provision and the most important single section in the Act. Section 3(1) provides that no person proceeding from outside India shall enter or attempt to enter India by air, water, or land unless he is in possession of a valid passport or other travel document and, in the case of a foreigner, a valid visa, and that a foreigner present in India must also possess a valid passport or travel document and a valid visa, unless exempted under Section 33 or by intergovernmental agreement. The first proviso to Section 3(1) is the substantive screening power: no foreigner shall be allowed to enter or stay if he is found inadmissible on account of a threat to national security, sovereignty and integrity of India, relations with a foreign State, or public health, or on such other grounds as the Central Government may specify. The second proviso states that the decision of the Immigration Officer in this regard shall be final and binding.

Section 3(2) imposes a symmetrical requirement at exit, notwithstanding Section 3 of the Passports Act, 1967: no person shall depart or attempt to depart from India unless in possession of a valid passport or travel document and, for a foreigner, a valid visa, with a proviso that no person shall be allowed to depart if his presence is required in India by any authorised agency or on grounds the Central Government may specify, and a further proviso making the Immigration Officer's decision final and binding. Section 3(3) empowers the Immigration Officer to examine documents and require information; Section 3(4) empowers the seizure of a passport or travel document that has been declared lost, stolen, damaged, forged, or fraudulently obtained, or on the direction of the passport authority or a court; and Section 3(5) vests overall supervision of visa and related matters in the Central Government.

Two features of Section 3 are constitutionally significant. The first is the "final and binding" formula in the provisos to both sub-sections. It purports to make the Immigration Officer the conclusive arbiter of inadmissibility and of the bar on departure. The second is the open-ended specification power, the words "or on such other grounds as the Central Government may specify," which permit the executive to add grounds of inadmissibility by order, without further legislative sanction. Both features are examined in Part VI.

Section 4 empowers the Central Government to notify designated immigration posts for entry and exit, to be manned by Immigration Officers or other specified officers. This is a useful clarification relative to the old law, which left the location of entry and exit points to administrative arrangement. Section 5 places the Bureau of Immigration on a statutory footing for the first time. The Bureau, which has functioned administratively since 1971 under the Intelligence Bureau, is now constituted by Section 5(1) for performing immigration functions and such other functions as may be prescribed, staffed by officers appointed by the Central Government, and supervised by a Commissioner of the Bureau of Immigration, who is assisted by the Foreigners Regional Registration Officers, Foreigners Registration Officers, Chief Immigration Officers, and authorised Immigration Officers. The statutory recognition of the Bureau is a genuine modernisation; it gives a legal identity to the body that has long carried out immigration functions in fact.

Chapter III, Matters Related to Foreigners, Sections 6 to 16

Chapter III is the largest chapter and the one in which the continuity with the 1946 Act is most visible. Section 6 requires foreigners, on arrival in India, to register with the Registration Officer concerned, subject to conditions and in the manner prescribed. This is the statutory hook for the registration regime that the Rules elaborate.

Section 7 is the omnibus power, and, as noted in Part I, it reproduces the substance of Section 3 of the 1946 Act. Section 7(1) empowers the Central Government, by order, direction, or instruction, to make provision, generally or with respect to all foreigners or any particular foreigner or any class or description of foreigner, for prohibiting, regulating, or restricting the entry of foreigners, their departure, or their presence or continued presence in India. Section 7(2) sets out the now-familiar catalogue: a foreigner may be directed not to enter, or to enter only on conditions; not to depart, or to depart only on conditions; not to remain in India or any specified area; to bear the cost of his own removal and maintenance pending removal; to remove himself to and remain in a specified area; and to comply with conditions requiring him to present himself for examination, reside in a particular place, accept restrictions on his movement, furnish proof of identity and report particulars, allow his photograph and biometric information to be taken and furnish handwriting and signature specimens, submit to medical examination, refrain from association with specified persons, refrain from specified activities, refrain from using or possessing specified articles, and otherwise regulate his conduct. Section 7(3) adds a residual power to provide for any matter that may be specified and for incidental and supplementary matters, and Section 7(4) permits a specified authority to issue conditions under clause (f) with respect to a particular foreigner.

The one substantive addition to the catalogue, relative to the 1946 Act, is the express reference in Section 7(2)(f)(v) to biometric information. The 1946 Act spoke of photographs and fingerprints; the 2025 Act speaks of "photograph and biometric information, as may be specified," a formulation broad enough to capture facial recognition data, iris scans, and whatever future modalities the executive chooses to prescribe. This is the statutory anchor for the biometric apparatus discussed in Part V.

Sections 8, 9, and 10 set out the reporting obligations of private institutions, and they widen the net considerably. Section 8 obliges the keeper of accommodation to submit information about foreigners accommodated, with a proviso exempting residential premises of a non-commercial nature unless the civil authority directs otherwise in a specified area; it also obliges the foreigner to furnish the relevant particulars to the keeper. Section 9, which has no clear predecessor, obliges every university, educational institution, or other institution admitting a foreigner to furnish information to the Registration Officer. Section 10, also new, obliges every hospital, nursing home, or other medical institution providing medical, lodging, or sleeping facilities to furnish information about any foreigner taking indoor treatment, and about attendants for whom lodging is provided. The reporting net, which under the 1939 regime fell principally on hotel keepers, now extends across the accommodation, education, and healthcare sectors.

Section 11 requires a special permit or permission for a foreigner to enter or stay in a protected area, restricted area, or prohibited place. Section 12 carries forward the old prohibition on a foreigner changing his name while in India without specific permission, with the long-standing exception for a married woman's assumption of her husband's name. Section 13 deals with foreigners whose movements are restricted under Section 7(2)(f), subjecting them to conditions of maintenance and discipline determined by the Central Government, and making it an offence to assist such a foreigner to escape, to harbour him, or to assist him with intent to prevent his apprehension. Section 14 empowers the civil authority to control places frequented by foreigners, by directing closure, conditional use, or refusal of admission; this is the provision under which premises associated with "undesirable" foreigners may be regulated, and it carries a thirty-day appeal to the Central Government. Section 15 addresses the foreigner who is a national of more than one country, permitting the civil authority or Immigration Officer to treat him as the national of the country on whose document he entered or with which he is most closely connected, subject to revision by the Central Government.

Section 16 is the burden-of-proof provision, and it is one of the most consequential sections in the Act. It provides that where a question arises whether a person is or is not a foreigner of a particular class or description, the onus of proving that he is not a foreigner, or not a foreigner of that class, lies on that person, notwithstanding anything in the Bharatiya Sakshya Adhiniyam, 2023. This is the successor to Section 9 of the 1946 Act, and it preserves the reversed burden in full, now overriding the new evidence code rather than the old. The constitutional difficulty with this reversal, particularly in a domain that can result in detention and removal, is examined in Part VI.

Chapter IV, Liability of Carriers, Section 17

Chapter IV consists of a single, long section. Section 17 imposes on a carrier landing or embarking at a port or place in India the obligation to furnish to a civil authority or Immigration Officer the passenger and crew manifest, the advance passenger information data of passengers and crew, and the passenger name record information of passengers arriving or departing, in the form, with the particulars, in the manner, and within the time prescribed. Sub-section (2) defines passenger name record information. Sub-section (3) makes a carrier that fails to furnish the information, or furnishes false information, liable to the penalty in Section 18, subject to a hearing. Sub-sections (4) to (6) provide an appeal against that penalty.

Sub-section (9) provides that a foreigner whose entry is refused shall be handed over to the carrier, which is responsible for ensuring his removal without delay. Sub-section (10) empowers the civil authority or Immigration Officer, within two months of an unlawful entry, to direct the carrier to provide accommodation for removal at the carrier's expense. Sub-section (11) requires a carrier, on direction and tender of payment, to provide accommodation for the removal of a foreigner ordered under Section 7 not to remain in India. Sub-section (12) prohibits the departure of any aircraft, vessel, or other mode of transport from India until clearance has been obtained from the Immigration Officer on submission of a general declaration in the prescribed form. Sub-section (13) extends the meaning of "carrier" to include pilots, masters, company representatives, station managers, and operators, and defines "passenger."

Section 17 represents a substantial modernisation of carrier liability. It imports the international apparatus of advance passenger information and passenger name record data, it extends liability to land carriers and freight, and it tightens the removal-cost and clearance regime. The combined effect is to make the carrier a more comprehensive instrument of border control than it was under the 2000 Act.

Chapter V, Offences, Penalties and Appeal, Sections 18 to 26

Chapter V contains the penal architecture, and it is here that the new Act is markedly more severe than the old. Section 18 makes a carrier liable to a penalty of up to fifty thousand rupees for contravening Section 17. Section 19 imposes on a carrier that brings a person into India in contravention of Section 3 a penalty of not less than two lakh and up to five lakh rupees, with a hearing and an appeal, and a recovery mechanism in sub-section (5) that permits seizure or detention of the aircraft, ship, or other transport, and seizure or sale of the carrier's goods or property.

Section 20 is a deeming provision: a person who contravenes, attempts to contravene, abets, attempts to abet, or does any act preparatory to a contravention of the Act, or fails to comply with a direction, is deemed to have contravened the Act; a person who assists a contravenor with intent to prevent his arrest, trial, or punishment is deemed to have abetted; and a carrier by which a foreigner enters or leaves India in contravention is deemed to have contravened the Act unless it proves due diligence.

Section 21 sets the penalty for entry without a valid passport, travel document, or visa: imprisonment of up to five years, or a fine of up to five lakh rupees, or both. Section 22 sets the penalty for knowingly using or supplying a forged or fraudulently obtained passport, travel document, or visa to enter, stay in, or exit India: imprisonment of not less than two years and up to seven years, and a fine of not less than one lakh and up to ten lakh rupees, with an attempt treated as an offence. Section 23 sets the penalty for overstaying, for staying without valid documents, for acting in violation of visa conditions, and for other contraventions for which no specific punishment is provided: imprisonment of up to three years, or a fine of up to three lakh rupees, or both. Section 24 makes an abettor liable to the same punishment as the principal offence under Sections 21, 22, or 23, adopting the meaning of "abetment" from Section 45 of the Bharatiya Nyaya Sanhita, 2023.

Section 25 introduces a compounding mechanism, new to this area of law. Notwithstanding the Bharatiya Nagarik Suraksha Sanhita, 2023, offences under Sections 21, 23, or 24 may be compounded, before or during trial, by officers and for sums the Central Government specifies, capped at the maximum fine for the offence, subject to a bar on compounding a similar offence within three years of a previous compounding. The compounding power is a meaningful practical innovation: it allows many document and overstay offences to be resolved by payment of a specified sum rather than by prosecution to conviction, which reduces the burden on the criminal courts and gives the foreign national a route out of the criminal process. Notably, Section 22, the forged-document offence, is excluded from compounding.

Section 26 is the power of arrest. It empowers any officer of police not below the rank of Head Constable to arrest without warrant any person who has contravened, or against whom a reasonable suspicion of contravention exists, in respect of Section 3 or any rule or order made under it, with the provisions of Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023, applying to the arrest. The descent of the arrest power from the sub-inspector of the 1920 Act to the Head Constable of the 2025 Act is a significant practical change, examined in Part IV.

Chapter VI, Miscellaneous, Sections 27 to 36

Chapter VI contains the machinery and saving provisions. Section 27 confers a power to use reasonable force to secure compliance with directions, exercisable by any authority empowered under the Act and by any police officer not below the rank of Head Constable, with an express right of access to land and property. Section 28 empowers the Central Government to delegate its powers to subordinate officers or authorities, or to State Governments and their officers, the constitutional mechanism by which the State-level machinery, including the district Superintendent of Police and the Foreigners Regional Registration Officers, exercises authority under a central statute.

Section 29 is the removal power. It empowers the Central Government, by general or special order, to direct the removal of a foreigner from India for contravention of the Act or any rule or order, "or an adverse security report," and confers on any officer of the Government all reasonable powers necessary to enforce the direction. The phrase "an adverse security report" is new and consequential. Under the old regime, removal was effected through orders under Section 3 of the 1946 Act; the express statutory recognition of an "adverse security report" as a free-standing ground of removal, untethered to any contravention, codifies a purely executive and intelligence-driven basis for expulsion, and it does so without specifying any standard, procedure, or disclosure obligation. This is the provision that most clearly expresses the security framing of the statute.

Section 30 confers the rule-making power and enumerates the matters on which rules may be made, a list that runs to twenty heads and confirms how much of the operative regime is left to delegated legislation. Section 31 requires rules to be laid before Parliament. Section 32 confers immunity from suit or proceeding for anything done in good faith under the Act. Section 33 is the exemption power, examined in Part V, which permits the Central Government to disapply the Act, or to apply it with exceptions or conditions, to citizens or classes of citizens of specified countries or to individual foreigners or classes of foreigners, and to exempt carriers. Section 34 provides that the Act is in addition to and not in derogation of other laws. Section 35 confers the customary power to remove difficulties, exercisable for three years from commencement. Section 36 is the repeal-and-saving provision: it repeals the four predecessor Acts and saves anything done under them in so far as it is not inconsistent with the new Act, preserving the continuity of orders, rules, and proceedings, and expressly preserving the operation of Section 6 of the General Clauses Act, 1897.

The structure of the Act, then, is a frame of broad executive powers, lightly modernised at the edges, resting on a foundation of delegated legislation. The next Part compares this frame, provision by provision, with the regime it replaces.

Part IV: Old Versus New, a Provision-by-Provision Comparison

This Part draws out, theme by theme, what has changed and what has been preserved in the move from the four repealed Acts to the 2025 Act. The headline is consistency with intensification. The structure of executive power is preserved; the penalties, the surveillance, the reach, and the security framing are all heightened.

The source and structure of executive power

Under the old regime, the substance of executive power over foreigners lay in Section 3 of the Foreigners Act, 1946. Under the new regime, it lies in Section 7 of the 2025 Act. A side-by-side reading shows that Section 7 is a re-enactment of Section 3, reorganised and lightly updated. The enabling formula is identical in effect: the Central Government may, by order, make provision generally or with respect to all foreigners or a particular foreigner or a class or description of foreigners, prohibiting, regulating, or restricting entry, departure, presence, or continued presence. The catalogue of specific directions, residence in a specified place, restriction of movement, reporting, identity verification, medical examination, photographs, prohibition of association and of specified activities, is carried over almost verbatim. The single substantive addition is the express reference to biometric information in place of the old reference to photographs and fingerprints.

The continuity is the most important fact about the new Act. The discretionary core that the Constitution Bench in Hans Muller described as conferring "absolute and unlimited" power is not narrowed, structured, or made reviewable. It is retained and re-promulgated. A practitioner challenging an order under Section 7 of the 2025 Act will face the same authorities, and the same uphill task, as a practitioner who challenged an order under Section 3 of the 1946 Act.

The statutory entrenchment of the visa requirement

One genuine change of legal character concerns the visa. Under the old regime, the requirement of a visa was not imposed by any Act in terms; it was the product of orders under the 1946 Act and of administrative practice through the Visa Manual. The 2025 Act, by Sections 2(t) and 3, imposes the visa requirement directly in the statute and gives the visa a statutory definition. This is a tidying of legal form. It does not, however, structure the grant or refusal of a visa, which remains delegated to a prescribed authority and unconfined by statutory criteria. The visa is now statutory in its requirement but administrative in its grant.

Penalties, a uniform escalation

The penal provisions show the clearest escalation. The table that follows states the principal changes.

Conduct	Old position	New position (2025 Act)
Entry without valid passport or travel document	Up to 5 years imprisonment, fine up to Rs 50,000, or both (1920 Act)	Up to 5 years imprisonment, fine up to Rs 5,00,000, or both (Section 21)
Using or supplying forged or fraudulently obtained passport, travel document, or visa	No dedicated provision with a high minimum; addressed through general penal provisions and the Passport Act	2 to 7 years imprisonment and fine of Rs 1,00,000 to Rs 10,00,000, with a statutory minimum (Section 22)
Overstay, stay without valid documents, breach of visa conditions	Penalties under the 1946 Act and orders, generally lower and less structured	Up to 3 years imprisonment, fine up to Rs 3,00,000, or both (Section 23)
Carrier bringing inadmissible passenger	Penalty under the 2000 Act	Rs 2,00,000 to Rs 5,00,000, with a statutory minimum (Section 19)
Carrier failing to furnish manifest, API, or PNR data	Limited obligation under the 2000 Act	Penalty up to Rs 50,000 per item of information (Sections 17 and 18)

Three features of this escalation deserve emphasis. First, the fine for undocumented entry has multiplied tenfold, from fifty thousand rupees to five lakh rupees, even though the maximum imprisonment is unchanged at five years. Second, Section 22 introduces, for the first time, a statutory minimum sentence of two years and a statutory minimum fine of one lakh rupees for the forged-document offence, removing judicial discretion to impose a lesser sentence and signalling that document fraud is to be treated as a grave offence. Third, the carrier-liability penalty under Section 19 carries a statutory floor of two lakh rupees, again removing discretion to impose a token penalty.

The compounding mechanism in Section 25 cuts the other way. By permitting offences under Sections 21, 23, and 24, but not Section 22, to be compounded for a specified sum, the Act provides a route by which many entry and overstay offences can be resolved without prosecution. For the foreign national who has overstayed, this is a significant practical benefit, converting what was a criminal exposure into, in effect, an administrative penalty. The exclusion of Section 22 from compounding confirms that the forged-document offence is treated as categorically more serious.

The power of arrest, descending the ranks

Under the 1920 Act, the power to arrest without warrant a person entering India without a passport was conferred on any police officer not below the rank of sub-inspector, and on officers of the Customs Department. Under Section 26 of the 2025 Act, the power to arrest without warrant a person who has contravened, or is reasonably suspected of contravening, Section 3 is conferred on any officer of police not below the rank of Head Constable.

The descent from sub-inspector to Head Constable is more than a technical adjustment. A Head Constable is a substantially more junior officer, far more numerous, and present at the front line of routine policing. Conferring the power of warrantless arrest in immigration matters on so junior a rank widens enormously the number of officers who may initiate the deprivation of a foreigner's liberty, and it does so in a domain where the burden of proving non-foreigner status rests, under Section 16, on the arrested person. The same descent appears in Section 27(2), which permits a police officer not below the rank of Head Constable to use reasonable force to secure compliance. The practical consequence is a lowering of the threshold of officialdom at which coercive immigration power may be exercised.

Carrier liability, from a narrow penalty to a control system

The 2000 Act was a narrow instrument: it penalised water and air carriers that brought undocumented passengers into India. Section 17 of the 2025 Act is a comprehensive control system. It extends the definition of carrier to land transport and to cargo; it requires the furnishing of passenger and crew manifests, advance passenger information, and passenger name record data; it makes the carrier responsible for the removal of refused passengers; it permits the seizure of the carrier's transport and property to recover penalties; and it conditions every departure on the obtaining of clearance through a general declaration.

This is a qualitative change. The carrier is no longer merely a person who may be fined for a documentary lapse. It is an extension of the border-control apparatus, obliged to transmit detailed passenger data to the state in advance of travel, to bear the cost of removal of those it carries, and to obtain affirmative clearance before departure. The shift mirrors the global movement towards advance passenger information and passenger name record regimes, and it aligns India's carrier-liability law with the practice of the major aviation jurisdictions.

The reporting net, from hotels to a sectoral web

Under the 1939 regime, the principal private-sector reporting obligation fell on keepers of hotels and similar accommodation, who reported the presence of foreign guests. The 2025 Act widens this into a sectoral web. Section 8 retains and broadens the accommodation-keeper obligation, capturing any premises providing lodging and, where the civil authority so directs in a specified area, even private residential premises. Section 9 adds universities, educational institutions, and other admitting institutions. Section 10 adds hospitals, nursing homes, and other medical institutions. The Rules, examined in Part V, add reporting of births and deaths of foreigners and obligations on employers in respect of foreign employees.

The cumulative effect is that the points at which a foreigner's presence is reported to the state multiply. A foreign student is reported by the university; a foreign patient by the hospital; a foreign guest by the hotel; a foreign employee by the employer; and all of this feeds a central digital database. The reporting obligation also extends, under the Rules, to holders of Overseas Citizen of India cards in the accommodation context, a point of some sensitivity given that OCI holders are persons of Indian origin who may regard themselves as more closely connected to India than the label "foreigner" suggests.

The burden of proof, preserved and re-anchored

Section 9 of the 1946 Act reversed the burden of proof, placing on the individual the onus of proving that he was not a foreigner. Section 16 of the 2025 Act preserves this reversal in full, updating the cross-reference so that it now overrides the Bharatiya Sakshya Adhiniyam, 2023, rather than the Evidence Act. The substance is unchanged: in any question whether a person is or is not a foreigner of a particular class, the person must prove the negative.

The preservation of the reversed burden is significant precisely because it was not reconsidered. A modernising statute might have asked whether, in a domain that can result in detention and removal, it is just to require an individual to prove a negative about his own nationality, particularly where the consequence of failure is the loss of liberty. The 2025 Act does not ask the question. It re-enacts the reversal and re-anchors it to the new evidence code.

The Bureau of Immigration and the digital backbone

A clear modernisation is the statutory recognition of the Bureau of Immigration in Section 5. The Bureau has operated administratively since 1971; Section 5 gives it a legal identity, a Commissioner, and a defined relationship with the Foreigners Regional Registration Officers and Chief Immigration Officers. Alongside this, the executive has signalled the replacement of the older Immigration, Visa and Foreigners Registration and Tracking system with an Integrated Immigration Management System, intended to link airports, land border posts, and registration offices for real-time verification. The digital backbone, combined with the biometric provisions in Section 7 and the Rules, represents the most substantial operational change relative to the old paper-based regime.

The removal power and the "adverse security report"

Under the old regime, removal was effected by orders under Section 3 of the 1946 Act. Section 29 of the 2025 Act confers a dedicated removal power and adds, as a free-standing ground, "an adverse security report." This is a codification of intelligence-driven expulsion. It permits removal not for any contravention of the law but on the basis of a report, the contents and authorship of which the statute does not require to be disclosed, and against which it provides no appeal. The "final and binding" provisos in Section 3, the broad order power in Section 7, and the "adverse security report" ground in Section 29 together constitute the discretionary spine of the Act, and they are examined as a group in Part VI.

What was removed and what was added, in summary

The repeal removed four separate statutes, their overlapping definitions, and the need to reconcile them. It removed the conceptual untidiness of a visa requirement that was administrative rather than statutory, and it removed the dispersal of exemptions across unconnected notifications. The new Act added a statutory Bureau of Immigration, a statutory visa definition, a comprehensive carrier-data regime, a compounding mechanism, heavier and in places minimum-mandated penalties, a wider reporting net, an express biometric power, and an express "adverse security report" ground of removal. What the new Act conspicuously did not add was any structuring of executive discretion, any tier of independent appeal against inadmissibility or removal, any ceiling on detention, or any recognition of refugees, asylum seekers, or stateless persons. The architecture of control was modernised. The architecture of rights was left untouched.

Part V: The Rules and the Exemption Order, Where the Operative Regime Lives

A reading of the Act alone gives a misleading impression of completeness. The genuinely operative regime, the registration procedures, the forms, the biometric requirements, the timelines, the categories of exemption, and the permit system for sensitive areas, lives in the subordinate legislation made under the Act. Two instruments matter most: the Immigration and Foreigners Rules, 2025, and the Immigration and Foreigners (Exemption) Order, 2025, both notified to take effect with the Act on 1 September 2025. This Part examines them and explains why the location of so much consequence in delegated legislation is itself a feature of the design worth scrutinising.

The pervasiveness of "as may be prescribed"

The phrase "as may be prescribed," or its cognates "as may be specified" and "as the Central Government may by order specify," recurs throughout the Act. The conditions and manner of registration under Section 6 are prescribed. The manner of furnishing information under Sections 8, 9, and 10 is prescribed. The functions of the Bureau of Immigration and the manner of appointment of its officers are prescribed. The authority that grants visas is prescribed. The forms, particulars, manner, and timing of carrier data under Section 17 are prescribed. The grounds of inadmissibility beyond the four named in Section 3 are specified. The areas that are protected, restricted, or prohibited are specified. The biometric information to be taken under Section 7 is specified.

Section 30 enumerates twenty heads of rule-making power, and the breadth of that enumeration confirms that the Act is a frame to be filled by the executive. This is not, in itself, unconstitutional; delegation is a normal feature of modern regulatory statutes. But the degree of delegation here, in a domain that touches liberty, is unusually high, and it means that the rights-affecting choices are made in instruments that receive only the limited parliamentary scrutiny of the laying procedure in Section 31, rather than in the Act itself. Part VI returns to the constitutional dimension of this delegation.

The Immigration and Foreigners Rules, 2025

The Rules give procedural content to the Act's obligations. They prescribe the manner of registration of foreigners under Section 6, including the role of the Registration Officer and the timelines within which registration must occur for those staying beyond the relevant threshold. They prescribe the obligations of accommodation keepers under Section 8, requiring the keeper to obtain the necessary particulars from every foreigner, including an Overseas Citizen of India cardholder, on arrival, to record the foreigner's signature on arrival and the date, time, and onward address on departure, and to maintain these records electronically for at least one year. They prescribe the obligations of universities and educational institutions under Section 9 and of hospitals, nursing homes, and other medical institutions under Section 10, the latter including a requirement to report births and deaths of foreigners within seven days. They prescribe obligations in respect of foreign employees, requiring employers to ensure that foreign employees register with the concerned Registration Officer.

On the carrier side, the Rules prescribe the forms and timelines for the manifest, advance passenger information, and passenger name record data under Section 17, and the form and timing of the general declaration that must precede departure, with a defined cut-off relative to scheduled departure. They prescribe the appellate authorities, forms, and fees for the carrier-penalty appeals under Sections 17 and 19.

The Rules also operationalise the institutional architecture. The district Superintendent of Police, or in metropolitan areas the Deputy Commissioner of Police, is designated as the local civil authority for the regulation of immigration and foreigners, exercising the powers conferred on the civil authority by the Act. The network of Foreigners Regional Registration Officers is vested with powers for specified regions and functions. This designation matters for the practitioner because it identifies the authority before whom registration is effected, to whom reports are made, and against whose decisions relief must be sought.

Biometrics, the database, and the surveillance dimension

The Rules, read with Section 7(2)(f)(v), give effect to the biometric apparatus. Foreigners applying for visas, and persons applying for registration as Overseas Citizens of India, are required to submit biometric data. The biometric data, together with travel history and registration records, feeds the Integrated Immigration Management System, intended to replace the older tracking system and to link airports, land border posts, and registration offices for real-time verification.

The surveillance dimension of this apparatus is considerable, and it is the dimension that most clearly distinguishes the new regime from the old in operational terms. The old regime collected photographs and fingerprints in paper files. The new regime collects biometric data into an interlinked central database accessible to enforcement and intelligence agencies. The collection of biometric data from Overseas Citizen of India applicants is particularly notable, because OCI holders are persons of Indian origin, often with deep family and economic ties to India, who are nonetheless treated, for the purposes of biometric capture, as foreigners. The interface between this biometric regime and the Digital Personal Data Protection Act, 2023, is examined in Part VI; for present purposes it suffices to note that the Act itself contains no data-protection safeguard, no retention limit, and no purpose limitation, leaving these to the general data-protection law and to executive practice.

The Immigration and Foreigners (Exemption) Order, 2025

The Exemption Order, issued under Section 33, is where the politically and humanitarianly sensitive choices are made. It consolidates into a single instrument the exemptions that were previously scattered across notifications under the 1920 and 1946 Acts. The principal exemptions are these.

Indian Armed Forces personnel on duty and their families are exempt from passport, travel-document, and visa requirements in defined circumstances. Indian citizens entering by the Nepal or Bhutan land borders are exempt, as are, subject to conditions, citizens of Nepal and Bhutan, except where they enter via China, Hong Kong, Macau, or Pakistan. Registered Tibetan refugees holding valid certificates are permitted entry subject to conditions linked to the date and mode of their arrival, with differentiated treatment according to whether entry occurred before 2003, between 2003 and the commencement of the Act, or thereafter. Registered Sri Lankan Tamil nationals who sought shelter in India up to 9 January 2015 are exempt from restrictions for the purposes of stay and exit. Members of specified minority communities, Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians, from Afghanistan, Bangladesh, and Pakistan, who entered India on or before 31 December 2024, are exempt even where they lack valid documents or where their passports or visas have expired. Limited waivers apply to holders of diplomatic and official passports from specified countries, to nationals eligible for visa-on-arrival, and to visiting foreign naval and military personnel on official or humanitarian missions.

The Order also addresses the penalty and detention dimensions. It provides for graduated overstay penalties, beginning at modest sums for short overstays and rising for longer ones, with concessional rates for certain categories such as Tibetans, Mongolian monks, and certain South Asian nationals. It contemplates the confinement of foreigners without legal status in holding centres pending deportation. It preserves the protected-area and restricted-area permit regime for sensitive border regions, including Arunachal Pradesh, Nagaland, Mizoram, Manipur, Sikkim, and parts of Jammu and Kashmir, Ladakh, and Himachal Pradesh, with permits to be applied for through designated portals or applications.

The continuity and the controversy in the exemption design

Two observations follow from the structure of the Exemption Order. The first is one of continuity. The exemptions for citizens of Nepal and Bhutan, for Tibetan refugees, and for Sri Lankan Tamil refugees are long-standing features of Indian immigration practice, and their consolidation into a single statutory order is a genuine improvement in clarity and accessibility. A practitioner can now point to a single instrument rather than a series of disconnected notifications.

The second observation is one of controversy. The exemption for specified religious minorities from Afghanistan, Bangladesh, and Pakistan reproduces, within the new statutory framework, the religion-based selection first articulated in the 2015 notifications under the 1920 and 1946 Acts, which were themselves the administrative precursors of the Citizenship (Amendment) Act, 2019. The exemption protects Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from three Muslim-majority neighbours, while affording no comparable protection to Muslims facing comparable persecution, whether the Ahmadis or Hazaras of Pakistan and Afghanistan, the Rohingya of Myanmar, or others. Critics, including civil-liberties organisations, have argued that this codifies a selective humanitarianism, extending relief on a basis that combines nationality and religion, and that it raises a serious question under Article 14 about the equal treatment of similarly situated persons. The point is sharpened by the fact that the exemption now rests on a statutory order rather than on an ad hoc executive notification, giving the religion-based selection a more durable footing. The constitutional dimension of this design is examined in Part VI.

The lesson of the subordinate layer

The lesson of Part V is that the Act cannot be understood from its own text. The choices that determine how a foreigner is registered, what data is taken from him, which categories are protected and which are not, and how penalties are graduated, are made in the Rules and the Exemption Order. This is the same texture that characterised the old regime, in which the 1946 Act was a thin frame and the orders did the work. The 2025 Act consolidates the frame but reproduces the dependence on delegated legislation, with the result that the most rights-sensitive decisions continue to be made by the executive, with limited parliamentary scrutiny, and are alterable by the executive without recourse to Parliament.

Part VI: Constitutional and Rights Critique

The 2025 Act is, on its own terms, a successful exercise in consolidation. Whether it is a successful exercise in modernisation depends on what one expects a modern immigration statute to do. If the expectation is administrative efficiency, clarity, and the alignment of carrier and biometric provisions with global practice, the Act largely meets it. If the expectation is the structuring of executive discretion, the provision of meaningful review, and the recognition of the rights of vulnerable non-citizens, the Act falls short. This Part sets out the principal constitutional and rights concerns, drawing on the parliamentary debate, the academic commentary, and the comparative position.

Excessive delegation and the rule of law

The first concern is the degree of delegation. As Part V showed, the Act leaves the rights-affecting choices to the Rules and the Exemption Order. The Indian doctrine on excessive delegation, developed from In re Delhi Laws Act, 1951 SCR 747, through Hamdard Dawakhana and later cases, permits wide delegation provided the legislature lays down the essential legislative policy and does not abdicate its function. The 2025 Act states a policy, the regulation of immigration and foreigners in the interest of national security and orderly administration, and that policy is probably sufficient to survive a delegation challenge in the abstract.

The difficulty is qualitative rather than formal. When the matters delegated include the grounds of inadmissibility beyond the four named in Section 3, the categories of person exempted from the Act altogether, the biometric data to be compelled, and the conditions of detention, the executive is making choices that bear directly on liberty and on equality, and it is making them in instruments alterable at will and subject only to the laying procedure. The laying procedure in Section 31 is a weak control; in practice rules are rarely modified or annulled by Parliament. The rule-of-law concern is that the locus of decision on rights-sensitive questions has shifted decisively from the legislature to the executive, and that the Act, far from correcting the thinness of the old statutory frame, entrenches it.

"Final and binding" and the ouster of review

The second concern is the "final and binding" formula in the provisos to Section 3(1) and Section 3(2). On their face, these provisos make the Immigration Officer's decision on inadmissibility, and on the bar to departure, conclusive. If read literally as an ouster of judicial review, they would be unconstitutional. The power of judicial review under Articles 32 and 226 is part of the basic structure of the Constitution, as the Supreme Court held in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, and a statutory finality clause cannot exclude the High Court's or the Supreme Court's jurisdiction to review for jurisdictional error, mala fides, or violation of fundamental rights. The better reading of "final and binding" is therefore that it bars an internal administrative appeal, not that it ousts constitutional review.

Even on that reading, the provision is troubling. It signals a legislative intention to make the front-line officer's decision the end of the matter, and it provides no internal tier of appeal or reconsideration. For the affected foreigner, the practical position is that relief must be sought, if at all, by writ, a remedy that is discretionary, that does not ordinarily extend to a merits review, and that is in practice difficult to invoke from detention or from outside the country. The absence of a structured statutory appeal, in a domain that determines entry, stay, and departure, is a significant gap, and it stands in contrast to the position in jurisdictions such as the United Kingdom and Canada, which provide for tribunal review of immigration decisions.

The reversed burden of proof and Article 21

The third concern is the reversed burden of proof in Section 16. After Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the procedure by which a person is deprived of liberty under Article 21 must be fair, just, and reasonable, not merely a procedure that happens to be established by law. A provision that requires an individual to prove a negative, that he is not a foreigner, on pain of detention and removal, sits uneasily with that standard, particularly where the individual may be poor, undocumented, or unable to obtain the records that would establish nationality.

The reversed burden was upheld in the context of the Foreigners Act in the line of authority culminating in Sarbananda Sonowal, on the reasoning that the determination of foreigner status lies outside the protections of a criminal trial because the person is not being convicted of a crime. That reasoning has always been vulnerable. The consequences of an adverse determination, detention and expulsion, are among the gravest the state can impose, and the formal classification of the proceeding as administrative rather than criminal does not lessen its impact on liberty. The 2025 Act, by re-enacting the reversed burden without reconsideration, perpetuates a feature of the old law that a genuinely rights-conscious modernisation would have revisited. The experience of the Foreigners Tribunals in Assam, where the reversed burden has contributed to the exclusion of long-resident persons unable to produce documentary proof of nationality, is a cautionary illustration of what the reversal means in practice.

The refugee lacuna and non-refoulement

The fourth, and perhaps the most consequential, concern is the silence of the Act on refugees, asylum seekers, and stateless persons. India hosts substantial refugee populations, Tibetans, Sri Lankan Tamils, Rohingya, Afghans, and others, and it has done so for decades, but it has no refugee statute and is not a party to the 1951 Refugee Convention. The treatment of refugees has been governed by the Foreigners Act, by executive practice, and by the contested development of Article 21 in the High Courts and, intermittently, the Supreme Court.

The 2025 Act was an opportunity to address this. It did not. The word "refugee" does not define a status under the Act. The protection that exists is the protection of exemption under Section 33, which is a matter of executive grace, conditional, and revocable, as the Exemption Order's treatment of Tibetans and Sri Lankan Tamils illustrates. There is no statutory recognition of the principle of non-refoulement, no procedure for the determination of a claim to protection, and no bar on the return of a person to a country where he faces persecution, torture, or death.

The doctrinal position remains as it was. There is a respectable body of High Court authority, including Ktaer Abbas Habib Al Qutaifi v. Union of India before the Gujarat High Court and several Delhi High Court orders, reading non-refoulement into Article 21, and the Supreme Court's direction in NHRC v. State of Arunachal Pradesh to protect Chakma refugees against forcible expulsion. But the Supreme Court's interlocutory order in the Rohingya litigation, Mohammad Salimullah, declined to recognise a substantive right to non-refoulement, holding only that the Rohingyas in Jammu were not to be deported except in accordance with the prescribed procedure. The 2025 Act leaves this contested terrain untouched, and by consolidating the machinery of removal while saying nothing about protection, it arguably tilts the balance further towards control. The "adverse security report" ground of removal in Section 29, in particular, provides a statutory basis for expulsion that makes no allowance for a claim that return would expose the person to persecution or torture.

Biometric surveillance, privacy, and proportionality

The fifth concern is privacy. In Justice K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1, a nine-judge Bench recognised the fundamental right to privacy under Article 21, and in the Aadhaar judgment, (2019) 1 SCC 1, the Court applied a proportionality standard to state collection of biometric data, requiring a legitimate aim, a rational connection, necessity, and a balancing of the measure against the rights affected. The biometric apparatus of the 2025 Act, compulsory biometric capture from visa applicants and Overseas Citizen of India applicants, feeding an interlinked central database accessible to enforcement and intelligence agencies, is a measure of precisely the kind that the proportionality standard governs.

The Act itself contains no privacy safeguard. It does not limit the purposes for which biometric data may be used, does not impose a retention period, does not provide for deletion when the data is no longer needed, and does not regulate access. These matters are left to the Rules, to executive practice, and to the general framework of the Digital Personal Data Protection Act, 2023. Whether the biometric regime satisfies the Puttaswamy proportionality standard will depend on how it is operated and on whether the data-protection framework supplies the safeguards the Act omits. The collection of biometric data from Overseas Citizen of India holders, persons of Indian origin with deep ties to India, is the sharpest instance of the concern, because the necessity of compelling biometric data from this category, as against the intrusion it represents, is not self-evident.

Religion-based exemption and Article 14

The sixth concern is the equal-protection question raised by the Exemption Order. By exempting Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan who entered on or before 31 December 2024, while affording no comparable relief to Muslims facing comparable persecution, the Order draws a classification that combines nationality and religion. Article 14 permits classification, but the classification must be founded on an intelligible differentia bearing a rational nexus to the object sought to be achieved.

The Government's position, articulated in the parliamentary debate and in the litigation over the Citizenship (Amendment) Act, is that the classification rests on the historical position of religious minorities in the three named States and on India's particular relationship with persons facing religious persecution there. Critics respond that the object, the protection of persons facing persecution, has no rational nexus to a differentia that excludes Muslims who face persecution on grounds of sect or ethnicity, and that the classification is therefore under-inclusive in a manner that betrays a religious rather than a humanitarian rationale. The question is presently before the Supreme Court in the challenge to the Citizenship (Amendment) Act, and the consolidation of the religion-based exemption into a statutory order under the 2025 Act extends the same controversy into the immigration domain. The point for the present analysis is not to resolve the constitutional question but to observe that the 2025 regime imports it rather than avoiding it.

Detention without a statutory ceiling

The seventh concern is detention. The Act and the Exemption Order contemplate the confinement of foreigners without legal status in holding centres pending deportation, but the Act imposes no ceiling on the duration of such detention and provides no procedure for periodic judicial review of its continuation. The risk is indefinite detention, particularly of stateless persons or of persons whose country of origin will not accept their return, who may be held without a foreseeable end to their detention because removal is not in fact possible.

The comparative position is instructive. The Australian High Court, in NZYQ v. Minister for Immigration in 2023, held that indefinite immigration detention where there is no real prospect of removal is unlawful, departing from earlier authority that had permitted it. Several jurisdictions impose statutory time limits on immigration detention and require periodic review. The 2025 Act does neither. It leaves the duration of detention to executive discretion and to whatever protection the courts may extend under Article 21, which, on the authority of the Rohingya litigation, is presently thin. For the practitioner, this means that the principal protection against prolonged immigration detention is the writ of habeas corpus, exercised case by case, rather than any statutory limit.

The parliamentary process

The eighth concern is procedural. The Bill was passed without referral to a Select Committee, despite demands from opposition members for such referral and for substantial amendments. In the Rajya Sabha, the leader of the Congress members opposed the Bill on the ground that it infringed the fundamental rights of foreigners and sought substantial changes; members from the DMK and the BJD sought referral to a Select Committee; and the DMK and AIADMK pressed for the exclusion of Sri Lankan Tamil refugees from the definition of foreigner and for protective measures, including a path to citizenship. The Government resisted these demands, and opposition members, including from the Congress and the Trinamool Congress, staged a walkout during the reply. The Bill was then passed.

The significance of the process is that a statute consolidating the entire law of immigration and foreigners, and re-enacting powers of the gravest consequence for liberty, was passed without the detailed clause-by-clause scrutiny that a Select Committee would have provided. The concerns canvassed in this Part, the reversed burden, the finality clauses, the refugee lacuna, the biometric regime, the religion-based exemption, the absence of a detention ceiling, are precisely the concerns that committee scrutiny exists to surface and to address. Their persistence in the enacted statute is, in part, a consequence of the truncated process.

The shape of the critique

The critique, taken together, is not that the 2025 Act is lawless or that it will be struck down. Most of its provisions are likely to survive constitutional challenge, because they re-enact powers that the courts have already upheld, and because the Indian doctrine on the rights of foreigners, anchored in Hans Muller, is deferential to executive discretion in this field. The critique is rather that the Act is a missed opportunity. It modernised the machinery of control without modernising the framework of rights. It consolidated four statutes into one without asking whether the discretionary, security-centred, rights-thin logic of those statutes was fit for a constitutional democracy that hosts millions of non-citizens and substantial refugee populations. It tidied the law without transforming it.

Part VII: Practical Implications for Foreign Nationals, Institutions, Carriers, and Their Advisers

The preceding Parts have approached the Act doctrinally. This Part approaches it practically, from the standpoint of the persons and entities who must now comply with it and the lawyers who advise them. The audience for an immigration practice is varied, the foreign national who has overstayed or whose visa has been refused, the university registrar who must report an international intake, the hospital administrator who admits foreign patients, the airline or freight operator who carries passengers and cargo, and the employer who sponsors foreign talent. Each faces a changed compliance environment.

For the foreign national

The single most important practical point for the foreign national is the heightened penalty environment, tempered by the new compounding mechanism. Entry without valid documents now exposes the person to a fine of up to five lakh rupees, ten times the old maximum, alongside the unchanged five-year imprisonment ceiling. Overstay, stay without valid documents, and breach of visa conditions are now consolidated in Section 23, with a three-year imprisonment ceiling and a three-lakh fine. Use of a forged or fraudulently obtained document carries a statutory minimum of two years and one lakh rupees under Section 22, and is excluded from compounding.

Against this, the compounding mechanism in Section 25 is the foreign national's principal mitigating tool. For offences under Sections 21, 23, and 24, the matter may be compounded, before or during trial, for a sum the Central Government specifies, capped at the maximum fine. For the overstayer in particular, this converts a criminal exposure into, in effect, a graduated administrative penalty, the bands of which are set out in the Exemption Order, beginning at modest sums for short overstays. The practical advice in many overstay cases will therefore be to regularise and compound rather than to contest, subject always to the three-year bar on repeat compounding of a similar offence.

The foreign national should also understand the registration and reporting obligations. Registration with the Registration Officer on arrival, where required by the conditions prescribed under Section 6, is now a statutory duty, and the reporting of the foreigner's presence by accommodation keepers, universities, hospitals, and employers means that non-compliance is far more likely to be detected than under the old paper regime. The biometric requirements for visa and Overseas Citizen of India applications are now standard.

Finally, the foreign national facing inadmissibility, a bar on departure, or removal must understand the limits of the remedies. The "final and binding" provisos in Section 3, and the "adverse security report" ground in Section 29, mean that there is no internal appeal against these decisions. The remedy, if any, is a writ petition under Article 226 before the High Court or Article 32 before the Supreme Court, and the scope of that remedy is confined, on the prevailing authority, to jurisdictional error, mala fides, and violation of fundamental rights, rather than a merits review. The reversed burden of proof under Section 16 means that a person whose nationality is questioned must be prepared to prove that he is not a foreigner, which makes the early assembly and preservation of documentary proof of nationality, passport, birth records, citizenship documents, a matter of practical urgency.

For accommodation providers

Keepers of accommodation, hotels above all but also guest houses, hostels, serviced apartments, and any premises providing lodging, must now collect the prescribed particulars from every foreign guest, including holders of Overseas Citizen of India cards, record the guest's signature on arrival, record the date, time, and onward address on departure, and maintain these records electronically for at least one year. The carve-out in Section 8 for non-commercial residential premises does not apply where the civil authority directs otherwise in a specified area, so even private hosts in sensitive areas may find themselves subject to reporting obligations.

The practical compliance steps are the migration of guest registration to a digital system capable of generating the prescribed reports to the Registration Officer, the training of front-desk staff to collect and verify the required particulars, including from OCI holders who may not expect to be treated as foreigners, and the retention of records for the prescribed period. The inclusion of OCI holders is a point on which guests are likely to object, and accommodation providers should be prepared to explain that the obligation is statutory.

For universities and educational institutions

Section 9 imposes, for the first time as a clear statutory obligation, a duty on every university, educational institution, and other admitting institution to furnish information about every foreign student or admittee to the Registration Officer in the prescribed manner. Institutions with significant international enrolment must therefore establish a reporting process integrated with admissions, capable of transmitting the prescribed information promptly, and they must ensure that foreign students complete any required registration with the Registration Officer. The institutional registrar becomes, in effect, a node in the immigration-reporting network. Non-compliance exposes the institution to the residual penalty in Section 23 for contravention of a provision for which no specific punishment is provided.

For hospitals and medical institutions

Section 10 imposes a parallel obligation on hospitals, nursing homes, and other medical institutions providing medical, lodging, or sleeping facilities, to furnish information about any foreigner taking indoor treatment and about attendants for whom lodging is provided. The Rules add the reporting of births and deaths of foreigners within seven days. For the medical-tourism sector, which serves substantial numbers of foreign patients, this is a material compliance burden, requiring the integration of immigration reporting with patient administration, the collection of the prescribed particulars at admission, and the timely reporting of births and deaths. Hospital administrators should establish a designated compliance function for foreign-patient reporting.

For employers of foreign nationals

The Rules require employers to ensure that foreign employees register with the concerned Registration Officer, and they contemplate audits and inspections of employer premises by officials. Employers sponsoring foreign talent must therefore treat immigration registration as part of the onboarding process, maintain records demonstrating the foreign employee's valid visa and registration status, and prepare for the possibility of official inspection. The positioning of India as a destination for global talent, which the Government has emphasised, is in tension with the heightened compliance and surveillance burden, and employers will need robust internal compliance frameworks to manage that tension.

For carriers

The carrier regime in Section 17 is the most operationally demanding of the new obligations. Airlines, shipping lines, and now land and freight carriers must furnish passenger and crew manifests, advance passenger information data, and passenger name record information in the prescribed form and within the prescribed time, must obtain clearance through a general declaration before every departure, must take responsibility for the removal of refused passengers, and must bear the cost of accommodation for removal where directed. The penalties are substantial: up to fifty thousand rupees per item of information not furnished under Section 18, and two to five lakh rupees under Section 19 for bringing an inadmissible person into India, recoverable by seizure of the carrier's transport and property.

The compliance implications are the establishment of data-transmission systems compatible with the prescribed formats and timelines, the training of station staff in the general-declaration and clearance process, and the management of the removal-responsibility and cost-bearing obligations through carriage contracts and operational procedures. The extension of the regime to land and freight carriers brings within its scope operators who may not previously have considered themselves subject to immigration liability, and such operators should assess their exposure.

Litigation strategy under the new Act

For the litigator, the new Act presents both old difficulties and some new openings. The old difficulties are the deferential standard of review of executive discretion, the reversed burden of proof, and the finality clauses. The principal litigation routes remain the writ jurisdiction under Articles 226 and 32, habeas corpus against unlawful or indefinite detention, and challenges for jurisdictional error, mala fides, or violation of fundamental rights. The basic-structure protection of judicial review in L. Chandra Kumar means that the "final and binding" provisos cannot exclude the constitutional courts, and a well-framed writ challenging an inadmissibility or removal decision on grounds of procedural unfairness, non-application of mind, or disproportionality remains available.

The new openings lie in the very modernity of the Act. The biometric provisions invite a Puttaswamy proportionality challenge where data is collected or retained without safeguard. The "adverse security report" ground in Section 29 invites a challenge, in an appropriate case, to expulsion ordered without disclosure of the substance of the report or any opportunity to respond, on the principle that even a thin procedural protection under Article 21 requires some opportunity to be heard. The detention provisions invite a challenge to prolonged or indefinite detention where removal is not in prospect, drawing on the comparative jurisprudence and on the Article 21 protection against arbitrary deprivation of liberty. And the religion-based exemption in the Exemption Order is exposed to the equal-protection challenge already pending in the Citizenship (Amendment) Act litigation. None of these challenges is assured of success, given the deferential baseline, but each is arguable, and the practitioner should frame the client's case to engage the strongest available ground.

The compounding mechanism also changes litigation strategy in the routine overstay and entry cases. Where the offence is compoundable under Section 25, the practitioner's first assessment should be whether compounding is available and advisable, because compounding before the institution of prosecution avoids prosecution altogether, and compounding during trial results in discharge. The three-year bar on repeat compounding, and the exclusion of the forged-document offence, define the limits of this strategy.

Transitional and saving issues under Section 36

A point of immediate practical importance is the effect of the repeal on matters pending or completed under the old Acts. Section 36(2) saves anything done, any action taken, and any rules, orders, directions, instructions, regulations, proceedings, penalties, or fines made, issued, taken, given, or imposed under the repealed Acts, in so far as not inconsistent with the new Act, deeming them to have been done under the corresponding provisions of the new Act. Section 36(3) preserves the general operation of Section 6 of the General Clauses Act, 1897, which protects accrued rights, liabilities, and pending proceedings against the effect of repeal.

The practical consequence is that orders made under the 1946 Act, registrations effected under the 1939 regime, and proceedings pending at the commencement of the new Act continue in force and are read into the new framework. A removal order under Section 3 of the 1946 Act, for example, survives the repeal and is treated as an order under the corresponding provision of the new Act. A prosecution under the old Acts that was pending on 1 September 2025 continues, governed by the saving. The practitioner handling a matter that straddles the commencement date must therefore identify the corresponding provision of the new Act, assess whether the old action is inconsistent with the new framework, and advise accordingly. In most cases the continuity will be seamless, because the new Act re-enacts the substance of the old; the points of potential inconsistency are likely to arise where the new penalty structure or the new procedural requirements differ, in which case the saving operates only to the extent of consistency.

The practitioner's bottom line

For the adviser, the bottom line is that the compliance burden has risen across the board, the penalty exposure has risen for the non-compliant foreign national, the surveillance and reporting net has widened to capture institutions that were previously outside it, and the carrier regime has become a comprehensive control system. At the same time, the compounding mechanism offers a practical route out of the criminal process for many routine offences, and the constitutional remedies, though confined, remain available against the gravest exercises of discretion. The practitioner who understands both the heightened exposure and the available mitigations is well placed to advise clients through the transition.

Part VIII: A Concordance of the Old Law and the New

It is useful, for the practitioner who must move between the repealed Acts and the 2025 Act, to set out a concordance, a mapping of the principal functions of the old regime onto the provisions of the new. The exercise also makes visible, in a single view, the proposition that the new Act is a re-arrangement of the old rather than a fresh start.

From the Passport (Entry into India) Act, 1920

The passport requirement at entry, formerly imposed by rules under the 1920 Act, is now imposed directly by Section 3(1) of the 2025 Act, with a statutory definition of passport in Section 2(n). The penalty for entry without a valid passport, formerly five years and fifty thousand rupees under the 1920 Act, is now found in Section 21, at five years and five lakh rupees. The power of arrest without warrant, formerly conferred on a police officer not below the rank of sub-inspector and on customs officers, is now found in Section 26, conferred on a police officer not below the rank of Head Constable. The examination and seizure of travel documents, addressed in practice under the 1920 regime, is now expressly provided in Sections 3(3) and 3(4).

From the Registration of Foreigners Act, 1939

The requirement that foreigners register their presence, formerly imposed by rules under the 1939 Act, is now imposed by Section 6 of the 2025 Act. The obligation of accommodation keepers to report foreign guests, the old C-Form obligation, is now found in Section 8, broadened to all accommodation and, in specified areas, to private residential premises. The apparatus of the Registration Officer and the Foreigners Regional Registration Officer, formerly a creature of the 1939 Rules and administrative practice, is now recognised in Sections 2(r) and 5 and operationalised by the 2025 Rules. The power to require reporting of movements, identity, and particulars, formerly under the 1939 framework and Section 3 of the 1946 Act, is now consolidated in Section 7.

From the Foreigners Act, 1946

The omnibus power to prohibit, regulate, or restrict the entry, departure, presence, and continued presence of foreigners, formerly Section 3 of the 1946 Act, is now Section 7 of the 2025 Act, re-enacted in substance with the addition of biometric information. The power to restrict the movements of foreigners and to require residence in a specified place, formerly Section 3(2)(c) and (e) of the 1946 Act, is now Section 7(2)(c) and (e), read with Section 13 on foreigners whose movements are restricted. The control of places frequented by foreigners, formerly addressed under the 1946 framework, is now Section 14. The change-of-name prohibition, a feature of the old regime, is now Section 12. The reversed burden of proof, formerly Section 9 of the 1946 Act overriding the Evidence Act, is now Section 16 overriding the Bharatiya Sakshya Adhiniyam, 2023. The power of removal, formerly effected by orders under Section 3 of the 1946 Act, is now the dedicated Section 29, with the added "adverse security report" ground. The power to exempt, formerly exercised through notifications under the 1946 and 1920 Acts, is now Section 33, exercised through the Immigration and Foreigners (Exemption) Order, 2025. The good-faith immunity, the delegation power, the rule-making power, and the difficulties-removal power, all features of the old statutory furniture, are now Sections 32, 28, 30, and 35 respectively.

From the Immigration (Carriers' Liability) Act, 2000

The liability of a carrier for bringing an undocumented passenger into India, formerly the central provision of the 2000 Act, is now Section 19 of the 2025 Act, with a raised and minimum-mandated penalty. The definition of carrier, formerly confined to water and air passenger transport, is now Section 2(b), extended to land transport and to cargo. The carrier's obligations, formerly limited under the 2000 Act, are now the comprehensive set in Section 17, including manifests, advance passenger information, passenger name record data, removal responsibility, and the general-declaration clearance. The penalty for failing to furnish information is now Section 18.

The lesson of the concordance

The concordance confirms the thesis. Every significant function of the old regime has a counterpart in the new Act, and in the central instances, the omnibus power, the reversed burden, the removal power, the carrier liability, the counterpart re-enacts the substance of the original with modernised drafting and, in the penal and surveillance dimensions, with intensification. There is no function of the old law that the new Act abandons in favour of a different conception. The novelties, the statutory Bureau, the statutory visa definition, the carrier-data regime, the compounding mechanism, the biometric power, the "adverse security report" ground, are additions to and extensions of the old architecture, not departures from it. The consolidation is, in the most precise sense, a consolidation: the same content, gathered into one place and brought up to date.

Part IX: The Comparative Frame

The 2025 Act can be located within a global movement in immigration law, and the comparison both illuminates what is conventional about the Indian reform and sharpens what is distinctive about it. Across the major jurisdictions, the direction of travel over the past two decades has been towards digitisation, advance data collection, carrier liability, biometric identification, and a security-centred framing of border control. In these respects the Indian Act is conventional. What distinguishes it is the comparative weakness of its procedural protections and the absence of the structured review and rights recognition that several of its peers provide.

Digitisation and advance data, the convergent trend

The carrier-data provisions of Section 17, advance passenger information and passenger name record data, mirror the regimes long operated by the United States, the European Union, the United Kingdom, and Australia, each of which requires carriers to transmit passenger data in advance of travel and conditions carriage on documentary compliance. The Integrated Immigration Management System, linking entry points and registration offices for real-time verification, is the Indian counterpart of the integrated border systems of those jurisdictions. The biometric capture of visa and Overseas Citizen of India applicants parallels the biometric visa and entry-exit systems of the United States, the Schengen area, and the United Kingdom. In adopting these features, India is aligning itself with the operational standard of the major destination jurisdictions, and the alignment is, on its own terms, sensible: a country that aspires to be a hub for talent, tourism, and investment requires border systems interoperable with those of its peers.

The security framing and its analogues

The security framing of the Act, the inadmissibility grounds in Section 3, the "adverse security report" ground in Section 29, the characterisation of immigration control as a matter of national security and territorial integrity, has analogues in the recent practice of other states. The United States has employed artificial-intelligence tools to identify and revoke the visas of persons linked to proscribed groups. The United Kingdom has tightened its asylum and settlement regime, moving towards temporary rather than permanent refugee status and restricting routes to citizenship for those who entered irregularly. Australia permits the detention of non-citizens regarded as security risks. The Indian framing is therefore not anomalous; it participates in a broad turn towards securitised border management across the democracies.

Where India diverges, due process and review

The divergence lies in due process. The United Kingdom and Canada, whatever the recent tightening of their substantive policies, provide structured tribunal review of immigration decisions. The British system channels immigration and asylum appeals through the First-tier Tribunal and the Upper Tribunal, with onward appeal to the courts. The Canadian system provides for review through the Immigration and Refugee Board, an independent administrative tribunal, with priority given to refugee determination and family reunification, and clear statutory pathways to permanent residence and citizenship. Both systems, in other words, embed the immigration decision within a framework of independent review and articulated criteria.

The Indian Act provides nothing comparable. The inadmissibility decision under Section 3 is "final and binding"; the removal decision under Section 29 is an executive order against which the Act provides no appeal; the determination of foreigner status proceeds under a reversed burden of proof; and the only external check is the discretionary and merits-limited writ jurisdiction of the constitutional courts. Where the British and Canadian systems have moved towards points-based and criteria-driven regimes that constrain official discretion by objective standards, the Indian regime remains, as the academic commentary has observed, largely discretionary, and broad discretion of this kind tends, empirically, to be applied unevenly.

Where India diverges, refugee protection

The second divergence concerns refugees. Canada's system is built around a refugee determination process and a commitment to resettlement. The United Kingdom, even as it tightens its asylum regime, operates within the framework of the 1951 Refugee Convention, to which it is a party, and its courts apply the Convention's protections, including the principle of non-refoulement, as a matter of binding law. India is not a party to the Convention, has no refugee statute, and, as Part VI explained, the 2025 Act declined to create one. The protection of refugees in India remains a matter of executive grace through exemption, and of the contested development of Article 21 by the courts. In a comparative frame, this is the most significant respect in which the Indian regime lags its peers: it has modernised the machinery of control to the contemporary standard while leaving the framework of protection at a pre-Convention stage.

Where India diverges, detention

The third divergence concerns detention. The Australian High Court's decision in NZYQ in 2023, holding indefinite immigration detention unlawful where there is no real prospect of removal, reflects a broader recognition in several jurisdictions that immigration detention must be bounded, either by statutory time limits or by a requirement of periodic review and a real prospect of removal. The 2025 Act contains no such limit. It contemplates detention in holding centres pending deportation without a ceiling and without a statutory review mechanism, leaving the protection against indefinite detention to the case-by-case operation of habeas corpus. This places the Indian regime towards the more permissive end of the comparative spectrum on the duration of immigration detention.

The comparative balance

The comparative frame yields a balanced assessment. On the operational dimensions, data, biometrics, carrier liability, digitisation, integration, the Indian Act is a competent and conventional modernisation that brings the country into line with international practice. On the rights and procedure dimensions, structured review, refugee protection, bounded detention, articulated criteria for discretion, the Indian Act lags the practice of comparable democracies, and it does so not by inadvertence but by design, having declined the opportunities for reform that the consolidation presented. The Act is modern in its machinery and traditional in its conception of the foreigner as a subject of control.

Part X: The Missing Reform Agenda

If the central criticism of the 2025 Act is that it consolidated without transforming, it is fair to ask what a transformative consolidation would have contained. The purpose of setting out a reform agenda is not to fault the drafters for failing to enact a different statute than the one they intended, but to make precise the gap between the modernisation that occurred and the modernisation that was available. Five elements would have marked a genuine rather than a merely formal reform.

A structured and reviewable discretion

The first element is the structuring of discretion. The Act could have retained the executive's primacy in immigration control while confining its exercise by articulated criteria. The inadmissibility power in Section 3 names four grounds, national security, sovereignty and integrity, relations with a foreign State, and public health, and then adds an open-ended residual ground. A reform-minded statute would have defined these grounds, or required the executive to publish criteria for their application, and would have required the recording of reasons for an inadmissibility or removal decision. The Delhi High Court has observed, in the context of analogous powers, that concepts such as national security and public order must denote a threat of a high order and must not be devalued to suit administrative convenience or minor concerns. Embedding that standard in the statute, and requiring reasons, would have rendered the discretion reviewable in substance rather than only at the margins.

A tier of independent review

The second element is independent review. The "final and binding" provisos and the absence of any appeal mean that the front-line officer's decision is, subject only to the writ jurisdiction, conclusive. A reform statute would have created a tier of independent administrative review, a tribunal or appellate authority, before whom inadmissibility, refusal, and removal decisions could be tested on their merits, with the constitutional courts retained as a backstop. The comparative experience of the United Kingdom and Canada demonstrates that such a tier is compatible with effective immigration control and that it improves the quality and consistency of decision-making. Its absence is the most conspicuous procedural gap in the Act.

A statutory framework for protection

The third element is the recognition of refugees and stateless persons. India's decades of practice in hosting refugees, generous in substance but ad hoc in form, could have been given a statutory framework: a definition of those entitled to protection, a procedure for the determination of claims, a statutory bar on refoulement to persecution or torture consistent with the High Court jurisprudence under Article 21, and a regularisation of the status of long-resident refugee populations. Such a framework need not have required accession to the 1951 Convention; it could have been a sui generis Indian regime reflecting the country's particular circumstances. Its absence leaves the largest humanitarian dimension of immigration law to executive grace and contested constitutional litigation, and it is the element whose omission most clearly marks the Act as a consolidation of control rather than a balancing of control and protection.

A bounded detention regime

The fourth element is the bounding of detention. A reform statute would have imposed a ceiling on the duration of immigration detention, required periodic judicial or quasi-judicial review of its continuation, and barred indefinite detention where removal is not in real prospect, consistent with the direction of comparative jurisprudence. The contemplation of detention in holding centres without any such limit is, in a constitutional democracy committed to the protection of liberty under Article 21, a significant omission, and one that is likely to generate habeas corpus litigation that a statutory regime would have pre-empted.

Privacy safeguards for the biometric regime

The fifth element is privacy. A reform statute that introduced compulsory biometric capture and a central interlinked database would, after Puttaswamy, have built in the safeguards that proportionality requires: a defined purpose, a retention limit, a deletion obligation, access controls, and an oversight mechanism. The Act delegates all of this to the Rules and to the general data-protection law. A statute that imposed the safeguards in terms would have been both more protective and more defensible against constitutional challenge.

The shape of the missed opportunity

These five elements, structured discretion, independent review, a protection framework, bounded detention, and privacy safeguards, are not radical. They are the ordinary furniture of a modern, rights-respecting immigration regime, and several of them are present in the systems of comparable democracies. Their absence from the 2025 Act is the measure of the distance between the consolidation that was enacted and the modernisation that was possible. The Act took the opportunity to tidy the machinery; it declined the opportunity to recalibrate the relationship between the state and the non-citizen.

Part XI: The Tribunals and the Lived Reality of the Reversed Burden

The doctrinal discussion of the reversed burden of proof in Parts IV and VI is abstract. Its concrete meaning is best understood through the institution that has applied it most intensively, the Foreigners Tribunals, and the context in which they operate, principally Assam. Although the Foreigners (Tribunals) Order, 1964, was made under Section 3 of the now-repealed Foreigners Act, 1946, it is among the instruments that the saving in Section 36 carries forward, and the substance of the burden it applied is re-enacted in Section 16 of the 2025 Act. The lived experience of the Tribunals is therefore directly relevant to how the new statute will operate.

The Foreigners Tribunals are quasi-judicial bodies that determine whether a person referred to them is or is not a foreigner. In Assam, where the question of nationality has been entangled with the National Register of Citizens and with the long political contest over migration from across the eastern border, the Tribunals have adjudicated very large numbers of cases. The proceeding begins with a reference, and the person referred bears the onus, under the reversed burden, of proving that he is not a foreigner. The practical difficulty is acute. The persons most likely to be referred are often poor, frequently illiterate, and commonly unable to produce the unbroken chain of documentary records, land records, electoral rolls, school certificates, linkage documents establishing descent, that the Tribunals have required to discharge the burden. Minor discrepancies in names, dates, or spellings across documents, the very kind of discrepancy that Section 12 of the 2025 Act treats as a change of name, have been treated as fatal to the claim of citizenship.

The consequences of an adverse determination are detention and the threat of removal. Persons declared foreigners have been held in detention centres, in some cases for prolonged periods, including persons whose removal was not in practical prospect because no receiving state would accept them. The Supreme Court and the Gauhati High Court have intervened repeatedly, on questions of the constitution of the Tribunals, the standard of proof, the treatment of evidence, and the conditions and duration of detention, and the body of litigation generated by the Tribunals is among the most substantial in the field.

The relevance of this experience to the 2025 Act is twofold. First, it demonstrates what the reversed burden of proof means in practice for the most vulnerable: not an abstract evidential rule but a mechanism that, in conditions of poverty and poor documentation, can result in the exclusion of long-resident persons from recognition of their nationality, with detention as the consequence. The decision of the 2025 Act to re-enact the reversed burden in Section 16, without reconsideration and without any accompanying procedural protection, must be assessed against this lived reality rather than against the abstract proposition that the determination of foreigner status is administrative rather than criminal. Second, the Tribunal experience illustrates the detention concern of Part VI in its starkest form. The persons held in Assam's detention centres pending a removal that may never occur are the concrete instance of the indefinite-detention risk that the Act, by imposing no ceiling and providing no review, leaves unaddressed.

For the practitioner, the Tribunal jurisprudence is the most developed body of authority on the practical operation of the burden that Section 16 now carries forward, and it is the natural source of both the evidential strategy for discharging the burden, the assembly of linkage documents, the reconciliation of discrepancies, the preparation of oral testimony, and the constitutional arguments against prolonged detention and against the harshest applications of the burden. The 2025 Act has changed the statutory label under which this litigation proceeds; it has not changed its substance.

Conclusion: Consolidation Without Transformation

The Immigration and Foreigners Act, 2025, is a real and, in its own terms, successful reform. It replaced four statutes, three of them pre-constitutional and two of them products of the World Wars, with a single, coherent, contemporary instrument. It gathered into one place the passport requirement, the visa requirement, the registration apparatus, the reporting obligations, the carrier liability, the offences, and the exemptions that had previously been dispersed across an unwieldy archive of Acts, rules, orders, and notifications. It gave the Bureau of Immigration a statutory identity, the visa a statutory definition, and the carrier-data regime a contemporary form. It introduced a compounding mechanism that offers foreign nationals a practical route out of the criminal process for routine offences. For the practitioner, the institution, and the foreign national, the law is now more accessible, more legible, and more predictable than it was. These are genuine achievements, and they should not be understated.

But the achievement is one of form. Beneath the modernised drafting, the animating logic of the new statute is the logic of the Foreigners Act, 1946: the foreigner as a subject of executive control, the discretion of the state as plenary and lightly reviewable, the burden of proving non-foreigner status as resting on the individual, and the framework of protection as a matter of grace rather than of right. The Constitution Bench in Hans Muller described the expulsion power in 1955 as absolute and unlimited, and the 2025 Act does nothing to disturb that description. The reversed burden of proof that Louis De Raedt and Sarbananda Sonowal upheld is re-enacted in Section 16. The security framing that Sonowal endorsed is written into Section 3 and Section 29. The refugee lacuna that the Rohingya litigation exposed is left precisely where it was. The discretion that the old law conferred is retained, the penalties are heavier, the surveillance is broader and now digital, the power of arrest descends to a more junior rank, and the removal power acquires an express security-report ground.

The thesis of this article is therefore that the 2025 Act is a consolidation without transformation. It modernised the machinery of immigration control to the contemporary international standard while leaving the constitutional architecture of the relationship between the state and the non-citizen untouched, and in some respects intensified. The five reforms that would have marked a genuine modernisation, a structured and reviewable discretion, a tier of independent review, a statutory framework for the protection of refugees and stateless persons, a bounded detention regime, and privacy safeguards for the biometric apparatus, are absent. They were available; the consolidation presented the occasion for them; and the legislature, in a process that bypassed the scrutiny of a Select Committee, declined them.

For the immigration practitioner, the consequence is a regime that is easier to read but no kinder to the client at the sharp end. The foreign national facing inadmissibility, removal, or detention confronts the same plenary discretion, the same reversed burden, and the same thin procedural protection as before, against the backdrop of heavier penalties and a wider surveillance net, with the writ jurisdiction of the constitutional courts as the principal remaining check and the compounding mechanism as the principal practical mitigation. The institution, the carrier, and the employer confront a heightened compliance burden and a broadened reporting obligation. The refugee and the stateless person confront a statute that does not see them as a distinct category at all.

The new law is, in the end, an accurate mirror of the old law's priorities, polished and brought up to date. It reflects a settled constitutional and political consensus that the regulation of foreigners is primarily a matter of executive control and national security, and only secondarily, if at all, a matter of individual rights. Whether that consensus is adequate to a country that hosts millions of non-citizens and substantial refugee populations, and that aspires to be a destination for global talent, is a question the 2025 Act does not ask. It is a question that the courts, in the litigation that the Act will inevitably generate over its discretionary core, its biometric regime, its detention provisions, and its religion-based exemption, will be required to confront. The statute has consolidated the law. The task of transforming it, if it is to be transformed, has been left to the constitutional courts and to a future legislature.