Citizenship’s Rule of Exception

The three-pronged idea of citizenship germinating at the constitutional moment as status, rights and identity, have undergone significant transformations since the Constitution was drafted. In this Special Issue on Citizenship, we take the occasion of the Republic Day to look back at the historical and material conditions surrounding the citizenship debates in the Constituent Assembly, as well as in the everyday lives of ordinary citizens who negotiated, resisted, or facilitated legal belongings with the state.

The profound feature of this contemporary life of citizenship is the insidious practices of citizenship dispossession. Official arbitrariness and the fiat of the Foreigners Tribunals have pushed innumerable people into the grey zone of citizenship. The courts have contributed to this. They may have proclaimed the promise of the rule of law. But they have drained it of any effectiveness in the lives of the most vulnerable, writes M. MOHSIN ALAM BHAT, Associate Professor, Jindal Global Law School. This is the second article in The Leaflet’s Special Series on Citizenship edited by Jhuma Sen.

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Citizenship is perhaps the largest area of legal activity in India. It is also the most consequential, not only for those who assert their Indian-ness but also for our constitutional democracy that places citizenship as the key constitutive element of the polity.

Note the scale of the challenge. Assam’s Foreigners Tribunals (FTs) have declared more than 117,000 persons as foreigners. More than 80,000 cases are pending. The Border Police have referred innumerable individuals to the FTs and are anticipated to continue doing so. The Election Commission of India (ECI) had classified at least 313,046 persons, and continues to classify more than 113,000 persons as doubtful or “D” voters, who cannot participate in elections despite being on electoral rolls. The FTs are expected to decide these “D” cases as well. More than 1.9 million – excluded from the state’s National Register of Citizens (NRC) – may appeal to the FTs, failing which they are likely to be rendered stateless.

Also Read: CAA 2019 and the Spectre of National Citizenship

This should have led India’s judiciary to step up. There is a desperate need for the courts to clearly lay down legal guidelines and standards that are cognisant of the constitutional significance of the questions involved. But they have failed to do so. They have left the multiplicity of bureaucratic practices – often muddled and obscure – ungoverned by the rule of law.

Rule of Law, Rule of Exception

On citizenship, India’s appellate judiciary speaks in a double voice. It publicly pronounces the core constitutional values of the rule of law. And simultaneously, without pause or irony, renders citizenship into the field of exception.

The perfect manifestation of this uncomfortable paradox is the 2005 judgment of Sarbananda Sonowal I. The judgment famously struck down the Illegal Migrants (Determination by Tribunal) (IMDT) Act, 1983 on the ground of national security. Justice Mathur reasoned that India was under invasion from hordes of immigrants and Islamic fundamentalists. According to him, the permissive Foreigners Act was the only way foreigners could be identified, and this international aggression stopped.

This legal schizophrenia runs as a theme in the judicial attitude towards citizenship. What has happened in the aftermath of Sarbananda Sonowal I is the creation of a sui generis field – dissociated from ordinary constitutional standards of due process, enveloped within the exceptionalism of national security.

The petitioners pleaded before the Court that there was a need to incorporate safeguards against targeting and harassment of citizens. In response, Justice Mathur made a remarkable assertion. The principle of justice, fairness, and reasonableness under Article 21 of the Constitution may apply in a criminal trial. But this principle, the judge noted, had “no application…in the matter of identification of a foreigner and his deportation.” This was because, confoundingly, he held that citizenship determination had no bearing on a person’s life or personal liberty! And just as he held this, he also ended the passage with the assertion – without anything by way of reasoning – that the foreigners’ regime was, at any rate, “just, fair and reasonable.”

This legal schizophrenia runs as a theme in the judicial attitude towards citizenship. What has happened in the aftermath of Sarbananda Sonowal I is the creation of a sui generis field – dissociated from ordinary constitutional standards of due process, enveloped within the exceptionalism of national security.

People at Foreigners Tribunal in Assam. Source: Economic Times

The Tactics of Non-Application

The most profound example of how the country’s appellate judiciary has deployed the tactics of exceptionalism is its consistent refusal to apply its own proclaimed legal norms on the bureaucratic practices of citizenship dispossession.

In a series of circulars in 1997 and 1998, the ECI marked 313,046 persons “D” – doubtful and disputed citizens – in electoral rolls. Thousands of people consequently lost their right to vote. Immediately after the implications of the action became known, numerous petitioners approached the Gauhati High Court challenging the ECI’s decision.

Also Read: Will decision of Foreigners’ Tribunal prevail over NRC in Assam?

As expected, the High Court in  H.R.A. Choudhury held that the ECI had the plenary power to disallow a person from voting if she is found to not be an Indian citizen. But it must ensure that its decision is not “arbitrary or vitiated by malafide or partiality.” The Court laid down a series of procedural safeguards. The ECI must give the person a reasonable opportunity of being heard. They must apply their mind to all the evidence. They must pass speaking orders that recorded appropriate reasons for disallowing a person from voting. These standards, the Court held, were “in consonance with the rule of law.”

The judicial fate of these rather admirable legal propositions borders on nothing short of dark humour.

In the aftermath of the decision, numerous petitioners approached the High Court to point out that none of the processes it mandated had actually been conducted. The ECI had conducted no inquiries, no hearings, provided no reasons or information to those marked “D.” RTI responses damagingly revealed that the ECI had no record whatsoever of the grounds of marking people “D.”

The judicial fate of these rather admirable legal propositions borders on nothing short of dark humour. 

Deciding one such petition in February 2019, a single-judge bench of the High Court – later confirmed by a division bench – skirted the issue altogether. Rather than asking the ECI officials to produce grounds for marking the petitioner “D,” it ordered the police to refer his case to the FT.

This has become a norm. Take a recent matter in January 2021. The petitioner alleged that the ECI had not conducted any semblance of inquiry before taking away his right to vote. “Whether a person is a ‘D’ voter or not,” the bench noted, “is a matter of factual determination, and the appropriate forum to do the same is the concerned Foreigners’ Tribunal.” The High Court held that it did not have the competence to decide this factual question under Article 226 and directed the police to refer the matter to the FT. But the petitioner’s case was not about his status! It was about whether the ECI followed due process. In framing it as merely “factual,” the Court failed to meet its constitutional obligation of enforcing the rule of law on the actions of the state machinery.

Persons marked “D” are now stuck in a peculiar conundrum. The moment they approach courts to enforce judicial standards, their cases are referred to the FTs – institutions that have increasingly become notorious for arbitrarily declaring people foreigners. The H.R.A. Choudhury case proclaimed the rule of law. The tactics of non-application maintain the field of exception.

Overlooking Harassment

This judicial tactic can be illustrated across legal controversies. Take, for instance, the eerily similar approach to the patent targeting of individuals in the FT process.

After Sarbananda Sonowal I, there was grave anxiety that genuine citizens may be harassed in the garb of identifying foreigners. The UPA-led central government amended the Tribunals Order 1964, mandating a more searching inquiry before the FT could issue notices to suspected foreigners. The Supreme Court struck this down in Sarbananda Sonowal II.

Justice S B Sinha

But Justice Sinha appeared to be sensitive to the need for safeguards. “A person who claims himself to be a citizen,” noted the judge, “is entitled to all safeguards both substantive and procedural provided for therein to show that he is a citizen.” Proclaiming the application of the principles of fairness in citizenship determination procedures, Justice Sinha noted that before issuing the notice, the FT is “required to set out the main grounds.” “The primary onus,” he held, “would be on the State.”

A few years later, the Gauhati High Court affirmed these standards. During the proceedings, the petitioners insisted that the Border Police – the primary referring authority – consistently failed to conduct a fair and proper investigation. The FTs, they argued, mechanically issued notices, causing immense hardship to the respondents, who, despite being poor, had to engage lawyers and travel long distances to defend themselves.

“Fair investigation and fair trial,” the High Court pronounced, was “the basic fundamental/human right of a person.” This meant that the police must give an opportunity to the person to demonstrate that he is not a foreigner. There must be a demonstrably fair investigation. The FT must take this into account and not issue notices mechanically. The FT, the Court held, “is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceeded.”

The High Court practically never entertains any argument challenging these improprieties. It has limited its inquiry under Article 226 to such an extent that it never calls for the record or evaluates the process. One wonders how – with this self-imposed constraint – the Court can ever succeed in enforcing its own standards. These standards might as well have never been laid down.

What has been the fate of this “primary onus” since these pronouncements? Overwhelming evidence shows that the FTs continue to mechanically issue notices without any application of mind to police inquiries. Police inquiries are often absent, contradictory, and even sometimes, patently manufactured. Judicial precedent notwithstanding, neither the FTs nor the Gauhati High Court review such inquiries and references.

The High Court practically never entertains any argument challenging these improprieties. It has limited its inquiry under Article 226 to such an extent that it never calls for the record or evaluates the process. One wonders how – with this self-imposed constraint – the Court can ever succeed in enforcing its own standards. These standards might as well have never been laid down.

The Tactics of Evasion

India’s appellate courts have also found ways of not answering legal questions that have an immense bearing on the citizenship of millions. The Supreme Court’s record of judgments reflects a remarkable feature. Exceptions aside, it has just not delivered judgments that clarify fundamental legal controversies related to evidence, documents, and process in citizenship determination.

Also Read: Supreme Court allows conditional release of declared foreigners languishing in Assam detention centres

This is not due to a want of cases. There is a multiplicity of petitions before the Court. But in response, the Court has adopted the tactic of not legally resolving them and sending them to the High Court for review.

This is not very different from how the Supreme Court has left key constitutional questions waiting for years now. The Supreme Court continues to keep the question of birthright citizenship – under Section 3 of the Citizenship Act, 1955 – in Assam on the back-burner. The constitutionality of the 2003 amendment to the Citizenship Act, which withdrew citizenship from children born in India, remains undecided. The determination of the constitutionality of the Citizenship Amendment Act, 2019 is nowhere in sight.

The profound feature of this contemporary life of citizenship is the insidious practices of citizenship dispossession. Official arbitrariness and the fiat of the FTs have pushed innumerable people into the grey zone of citizenship. The courts have contributed to this. They may have proclaimed the promise of the rule of law. But they have drained it of any effectiveness in the lives of the most vulnerable.

(M. Mohsin Alam Bhat is an associate professor at Jindal Global Law School and heads its Centre for Public Interest Law. He is a co-founder of Parichay, a collaborative legal aid project dedicated to citizenship determination in Assam. The views are personal.)

The article was originally published in The Leaflet.