Suspicion as Procedure: A Constitutional Critique of the MHA’s 2025 Deportation SOP

I. Introduction

On 2 May 2025 the Foreigners Division of the Ministry of Home Affairs addressed a letter to the Chief Secretaries of all States and Union Territory Administrations, their Directors General of Police, and the heads of the Border Security Force, the Assam Rifles and the Coast Guard. Titled “Procedure for deportation of illegal Bangladeshi nationals / Rohingyas” and marked “SECRET” on every page, it announces “revised instructions regarding deportation of illegally staying Bangladeshis /Rohingyas (Myanmar nationals)” to be followed “for strict compliance by all concerned”. It has come to be described as a standard operating procedure, and that is how it is referred to here.

The instrument is brief. Its consequences are not. In fourteen paragraphs it constructs a complete apparatus for the detection, detention, removal and civil erasure of human beings, and it does so without once mentioning a court, a tribunal, a hearing, legal representation or an appeal. This essay examines the SOP from the standpoint of administrative and constitutional law. Its argument is that the SOP is defective in form, excessive in reach and corrosive in premise. It substitutes executive suspicion for legal determination; it collapses detection, adjudication and enforcement into a single police office; and, in so doing, it offends the constitutional commitments to the rule of law, to fraternity and to the principle that the law must not entrench the subordination of any class of persons.

II. The architecture of the SOP

It is necessary first to state what the instrument provides, in its own words.

• At the border (para 7.1). Persons intercepted while crossing “shall immediately be sent back by the designated Border Guarding Forces / Coast Guards, then and there”, after their biometrics and demographic details are captured on the Foreigners Identification Portal.
• “Inadvertent border crossers” (para 8). They are taken into custody and interrogated. “After interrogation, if found innocent”, they may be handed over to the border force of the neighbouring State. If “not found innocent after interrogation”, they are handed over to the State or UT police “for further appropriate action”.
• Special Task Forces (para 9(i)). Every State and UT “shall set up a Special Task Force in each District under the police” to “detect, identify and deport /send-back”.
• Holding Centers (para 9(ii)). Every State and UT “shall set up adequate Holding Centers in each District under the Police of the State/UT to detain”.
• Claims of citizenship (para 9(iv)). Where a “suspected Bangladesh / Myanmar national” claims Indian citizenship and residence elsewhere in India, particulars are sent to the authorities of the claimed home district, who are to report within 30 days. Meanwhile, “the suspected person shall be kept in the Holding Center”. The paragraph ends: “If no report is received within the period of 30 days, the Foreigners Registration Officer may take necessary, action to deport/ send-back the suspected Bangladesh / Myanmar national.”
• Removal and blacklisting (paras 9(v) to 9(viii)). After an “enquiry” and biometric capture, the person is escorted under an order under section 3(2)(c) of the Foreigners Act, 1946 and handed to the border force. “Such illegal immigrants … shall also be Blacklisted.” In “emergent situations” the border force may collect persons directly from Holding Centers.
• Civil erasure (para 9(xiii)). The Bureau of Immigration “shall publish a list … on a public portal”, and the data “shall also be shared with the UIDAI, Election Commission of India, Ministry of External Affairs (Passports Division)” and other agencies “to enable deactivation / suspension of Identity cards / social benefits”.
• Silence (para 12). States are asked to “take measures to avoid unnecessary publicity on the issue of deportation”.

Two further features complete the picture. Paragraph 6 records that the Foreigners Registration Officers, who wield these powers, “are generally the District SPs or DCPs”. And the SOP is notable for what it omits: there is no reference to the Foreigners (Tribunals) Order, 1964, to any tribunal or court, to a right to be heard, to counsel, to an appeal, or to judicial oversight of detention in a Holding Center.

III. The administrative law problem: form, source and secrecy

A. A letter in the place of law

The SOP locates its authority in the definition of “illegal migrant” in section 2(1)(b) of the Citizenship Act, 1955, in the Passport (Entry into India) Act, 1920, the Foreigners Act, 1946 and the Foreigners Order, 1948, and in the entrustment of the Central Government’s functions to the States under Article 258(1) of the Constitution by a notification of 19 April 1958. Section 3 of the Foreigners Act, 1946 empowered the Central Government to make provision “by order”. An administrative letter conveying “instructions” is not, on its face, such an order.

It is settled administrative law that executive instructions may supplement a statute where it is silent, but cannot supplant it, and cannot confer on officials powers that the statute does not. The SOP does considerably more than fill gaps. It creates institutions (district Special Task Forces and Holding Centers); it prescribes a period at the end of which the silence of one bureaucracy becomes authority for another to deport; and it directs the deactivation of identity documents and entitlements that exist under other statutes, each with its own procedure for cancellation. A circular of the Foreigners Division cannot rewrite the procedure under which an elector is removed from a roll, a passport is revoked or an entitlement is withdrawn. Where the instrument purports to do so, it travels beyond any power it can claim.

B. Secret law and the Star Chamber

The SOP is classified “SECRET” and asks the States to avoid publicity. This is not a matter of style. Among the minimum conditions of a legal order is that its rules be promulgated: a person cannot conform to, contest or seek protection under a rule he is not permitted to read. A rule that determines who may be detained, removed and stripped of identity, but which is withheld from those to whom it applies, is in substance secret law.

The common law has a long memory of this danger. The Court of Star Chamber, an emanation of the royal prerogative, sat in private, without a jury, under procedures of its own devising, and came to be used against those whom the Crown regarded as threats. Its abolition by the Long Parliament in 1641 became a founding moment of the idea that coercive state power must be exercised through ordinary courts, in public, according to known law. The SOP does not create a court, and the comparison is not one of form. It is one of method: consequences of the gravest kind are visited on persons through a process conducted outside the courts, under rules known only to officials, and shielded from public scrutiny by design.

C. Delegation upon delegation

The chain of authority traced in paragraphs 4 to 6 runs from Parliament to the Central Government, from the Central Government to the States under Article 258(1) (and to UT Administrations under Article 239), to the Joint Director of the Bureau of Immigration by a notification of 2000, and finally to the District Superintendent of Police in the guise of Foreigners Registration Officer, who now acts through a district Special Task Force. At each remove, the distance between the authority that Parliament trusted and the officer who acts grows wider, and accountability thins. The maxim delegatus non potest delegare is a rule of construction rather than an absolute bar, but it expresses a real constitutional anxiety: powers that touch liberty were conferred on identified authorities for a reason, and their progressive devolution to the operational police by administrative letter is precisely the dilution the maxim guards against.

D. Executivisation and the Henry VIII spectre

By the Statute of Proclamations of 1539, Parliament allowed the proclamations of Henry VIII to carry the force of statute. The name of that monarch has since attached to the “Henry VIII clause”, the device by which the executive is permitted to amend or override primary legislation. Such clauses are viewed with deep suspicion in every parliamentary democracy because they invert the relationship between the legislature and the executive.

The SOP is not formally a Henry VIII clause. Functionally, however, it achieves a comparable result. The question whether a person is a foreigner is a question of legal status. The settled design of Indian law has been that such a question, when disputed, is to be referred for determination by an adjudicatory body, the Foreigners Tribunal. Whatever the deficiencies of those tribunals, and they are many, the principle that disputed status calls for adjudication is the one thing that distinguishes determination from mere decree. The SOP silently relocates that question from an adjudicatory forum to the police station. This is executivisation in its plainest form: a question of law is converted into a matter of administration, and the conversion is effected not by Parliament but by a letter.

IV. The rule of law and the limits of law

The rule of law is not the rule of rules. It demands that power be exercised under law; that the law be general, public and prospective; that it be applied by bodies independent of those who enforce it; and that it treat like persons alike. Article 14 states the last of these in terms that admit of no exception for non-citizens: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 21 is framed in the same universal language: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The Supreme Court has long accepted that these guarantees protect non-citizens. In National Human Rights Commission v State of Arunachal Pradesh, concerning Chakma refugees, the Court held that Article 21 extends to every person, citizen or not. In Louis De Raedt v Union of India, while holding that a foreigner cannot claim the right to reside and settle in India, the Court accepted that the foreigner’s right under Article 21 remains. And since Maneka Gandhi v Union of India, the “procedure established by law” that Article 21 requires must be fair, just and reasonable, not arbitrary, fanciful or oppressive.

Measured against these standards, the SOP’s difficulties are evident. A thirty-day detention in a police-run Holding Center, imposed on a person who asserts that he is a citizen of India, is a deprivation of personal liberty. The SOP provides no hearing before it, no independent authority to authorise it, and no mechanism to end it other than the arrival of a report from elsewhere. The safeguards that Article 22 attaches to arrest, including production before a magistrate, are nowhere mentioned. The capture of biometrics, their retention on a national portal, publication of names on a “public portal” and the sharing of data for the deactivation of identity cards engage the right to privacy recognised in Justice K S Puttaswamy v Union of India, which requires any intrusion to satisfy the tests of legality, legitimate aim, proportionality and procedural safeguards. An unpublished administrative letter struggles to satisfy even the first.

There is a further dimension, which may be called the limits of law. Law does not only authorise; it also marks what the State may not do, or may do only by particular means. Certain consequences, such as expulsion from the political community, loss of the vote and the erasure of legal identity, are so grave that a constitutional democracy reserves them for processes of the highest regularity. The SOP inverts this ordering. The gravest consequences are attached to the lowest form of legal instrument and the least formal of procedures. It is a measure of how far the instrument strays from the limits of law that the outcome which ought to require the most process here requires the least.

One more point bears on legality. The statutes on which the SOP rests, the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946, have since been repealed by the Immigration and Foreigners Act, 2025, which came into force on 1 September 2025. Whether the SOP survives that repeal depends on the repeal and savings provisions of the new Act. Either the instrument has lost its foundation, or it continues only by force of a savings clause. In neither case can its legal basis be presumed; it must be identified and demonstrated.

V. A jurisprudence of suspicion

The vocabulary of the SOP repays close attention. It speaks of the “suspected Bangladesh / Myanmar national” and the “suspected person”. It speaks of persons “found innocent” and “not found innocent” after interrogation. Innocence is the language of criminal law, but no offence is charged, no trial is held and no standard of proof is stated. The person occupies a peculiar space: treated as an accused, but without the protections that attend an accusation.

The SOP nowhere states the grounds on which suspicion may arise. It prescribes no criteria, no threshold and no record of reasons. Unstructured discretion of this kind is the classic marker of arbitrariness under Article 14. Suspicion, moreover, is not merely the trigger of the process; it is very nearly its whole content. Once a person is suspected, he is detained. If he claims citizenship, his claim is not adjudicated; it is referred to a distant administration. If that administration does not reply within thirty days, the Foreigners Registration Officer “may take necessary, action to deport”. The suspicion is thus never tested. It simply hardens, through the passage of time and the silence of a third party, into a basis for removal.

Section 9 of the Foreigners Act, 1946 was itself an extraordinary provision: it cast on “such person” the onus of proving that he was not a foreigner. But it at least presupposed a forum in which that proof could be offered and weighed. The SOP goes further. It shifts the decisive burden not even onto the person, but onto the diligence of a District Magistrate in another State. A citizen may lose everything because an official elsewhere failed to send a letter. This is a jurisprudence of suspicion in the strict sense: a body of practice in which suspicion is not the beginning of inquiry but its conclusion.

VI. When the police become judge and executioner

It is worth pausing on the institutional consequence. Under the SOP the same office, the District Superintendent of Police acting as Foreigners Registration Officer, detects through the Special Task Force, detains in the Holding Center, conducts the enquiry, draws the conclusion from silence, issues or acts upon the order of removal, and escorts the person to the border. The separation between those who accuse and those who decide, which the principle that no one shall be a judge in his own cause seeks to secure, has disappeared. The police are no longer a party before an adjudicator; they are the adjudicator. And while no sentence of death is pronounced, the outcome they execute is a form of civil death: removal from the territory, blacklisting, and the extinction of every document by which a person proves that he exists in law.

VII. Fraternity and anti-subordination

The Preamble resolves to secure to all citizens justice, liberty and equality, and to promote among them all “FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation”. Fraternity is often treated as the least justiciable of the Preamble’s values. It is, however, the condition on which the others depend. Dr Ambedkar understood it as a sense of common brotherhood among all Indians, without which liberty and equality would be no deeper than a coat of paint.

The SOP works against fraternity in a direct way. Nationality is not visible on the body. A Special Task Force charged with detecting “Bangladeshi nationals” in every district of the country must act on proxies, and the proxies available to it are language, dialect, dress, name, religion, occupation and poverty. Whatever the intention, a procedure of this kind renders every person who shares those markers, including the very large number of Indian citizens who speak Bengali or who migrate for work, a potential suspect in his own country. It invites citizens to see one another through the eyes of the Special Task Force. That is the opposite of a sense of common brotherhood.

The same features engage the principle of anti-subordination. Equality, on this understanding, requires more than formally identical treatment; it forbids legal measures that entrench the subordinate position of a group already disadvantaged. A procedure whose burdens fall predictably on poor migrant workers and on a linguistic and religious minority, which detains without hearing and which then strips those affected of identity documents and social benefits, will deepen their subordination whether or not that is its purpose. The constitutional objection does not depend on proof of animus. It depends on what the instrument does, to whom it predictably does it, and the absence of any safeguard that might prevent the burden from falling where it does.

VIII. Conclusion

The State’s interest in regulating the presence of foreigners is legitimate, and nothing in this essay denies it. The objection is to the means. The 2025 SOP is less a procedure for deportation than a procedure for dispensing with procedure. It is secret where law must be public; it is administrative where the gravest consequences demand adjudication; it entrusts to the police a judgment that belongs to an independent forum; and it turns suspicion, unstated and untested, into the operative fact on which liberty, residence and legal identity depend.

A constitutional response would require, at the least, a statutory basis enacted by Parliament; published criteria for the initiation of proceedings; determination of disputed status by an independent adjudicator; the right to be heard and to be represented; judicial authorisation and periodic review of any detention; a fair allocation of the burden of proof; and data safeguards that satisfy the test of proportionality. Until then, the SOP will stand as a reminder that the danger to the rule of law does not always come through dramatic acts of legislation. Sometimes it arrives as a letter, marked secret, issued “for strict compliance by all concerned”.

This post is commentary and not legal advice.