Citizenship in a Limbo

**Tiyasha

Introduction 

The Supreme Court in Louis De Raedt and later in Sarbananda Sonowal held that the power of  the Government of India to expel foreigners is absolute and unlimited and there is no provision  in the Constitution fettering its discretion. Although delivered in the context of a self-admitted  foreign national, years later, the constitutionally grave implications of this pronouncement are  palpable. 

Article 11 of the Constitution has played a central role in the defence of the Citizenship  Amendment Act of 2019. It was claimed that Article 11 exempts citizenship law from any form  of constitutional objection, that even encompasses part III (fundamental rights) of the  constitution. Article 13 of the Constitution in clear language states that any law passed by the  Parliament has to adhere to the constraints of the fundamental rights and thus citizenship laws  are not outside the checks of Part III.  

Despite of this seemingly straightforward proposition of what is constitutionally valid and what  is ultra vires, the on-ground translation of this is rather mired with the trampling of due process,  manifest arbitrariness owing to bureaucratic excess and the consequent crusade of basic rights.  Pursuant to Article 11, it is the Parliament that is empowered to write down laws concerning  Indian citizenship and the Parliament has indeed altered and modified the conditions of  citizenship from time to time. For the purposes of this piece, the focus will be on the nascent  Immigrants and Foreigners Act of 2025, the Immigration and Foreigners Order of 2025 and  the May 2025 Ministry of Home Affairs letter laying down the procedure for deportation of  illegal Bangladeshi nationals and Rohingyas. Before I engage with the deeper questions of  constitutionality of these authorities, it is pertinent to note the current state of the process of  ascertainment of citizenship in India.  

What proof is enough? 

Today, birth certificates, Passports or Aadhaar cards do not prove Indian citizenship. The  Gauhati High Court has held that even electoral photo identity cards, PAN Cards, bank  documents or land tax receipts are not sufficient to prove citizenship while a trial Court in  Mumbai has held that electoral identity cards do prove a person’s citizenship. 

In a press release in 2019, the Government of India stated that: 

“citizenship can be proved by submitting any documents related to date and place of birth.  However, a decision is yet to be taken on such acceptable documents. This is likely to include voter cards, passports, Aadhaar …….. documents relating to land or home or other similar  documents issued by government officials. This list is likely to include more documents…”.  

The sheer uncertainty in the language accentuates the grave vulnerability that persons,  suspected of being illegal migrants, are subjected to. Justice Dhulia in one of his interviews  referring to his own birth stated that during those times the idea of institutionalised registration  of birth was elusive. In June 2026, the MEA stated that the Indian passport is a travel document  and not a proof of citizenship. Passports are issed after a rigourous verification process  conducted by the state authorities. Countries like the United States and the United Kingdom  generally consider a valid passport as a strong evidence of nationality as the same is issued  through a state-verified process, while the state retaining the power to revoke it in cases of  fraud. In these circumstances, even minor discrepancies such as spelling errors or name  changes or variations from transliteration are treated as fatal flaws that can prejudice the  determination of citizenship.  

On 20 June, 2025, the Delhi Police raided a slum in Rohini and detained a 25-year old Sunali  Khatun, a pregnant domestic worker from West Bengal’s Birbhum district. She was detained  along with her husband Danish and their eight-year old son Sabir. The family possessed  localised identity cards, verified voter registration lists and official land records that dated back  to 1956 tracing the last five generations of the family. However, the police demanded birth  certificates, that had been lost in a recent slum fire. Bypassing a mandatory Home Ministry  directive to verify citizenship claims with local authorities in her home state, the Foreigners’  Regional Registration Office (FRRO) summarily expelled the family to Bangladesh within six  days based on a highly contested police “confession”. Sunali and her family are now stranded  in a geopolitical limbo, having been arrested by Bangladeshi authorities for illegal infiltration.  While her father has filed a habeas corpus writ petition in the Calcutta High Court, the matter  may not be resolved in time, as she risks giving birth in Bangladesh before a final decision is  rendered. Since May 2025, the Government of Assam has illegally “pushed-back” hundreds of  persons-allegedly undocumented Bangladeshi migrants and Rohingya refugees into  Bangladesh. 

In this backdrop, what is the process of determining Indian citizenship? – Any person despite  possessing valid documents may be suspected to be an illegal migrant on vague and remote  grounds. This is exactly what the Indian Foreigner’s Act of 2025 does – it empowersthe Central  Government to direct the removal of any foreigner on an “adverse security report” and the  police to arrest any person without warrant against whom a reasonable suspicion of illegal  migration exists. In most of these cases, the individual is neither appraised of the grounds for  arrest nor furnished with the reports forming the basis of the adverse action. Veteran journalist  R. Rajagopal disclosed that his application for renewal of his passport had got into a bind as  his name was struck off the voter’s list during the Special Intensive Revision (SIR) of electoral  rolls in West Bengal. The Kolkata Police had sent an adverse report to the passport authorities  mentioning the deletion of his name from the voter’s list. The passport office thereafter  refrained from moving forward on his application.  

According to the May 2025 Ministry of Home Affairs letter laying down the procedure for  deportation of illegal Bangladeshi national and Rohingyas, all State Governments or UT  Administrations have been empowered to detect, identify, conduct inquiry, deport illegal  immigrants or detain them in holding centres. The Immigration and Foreigners Order of 2025  provides for the detention of foreigners and illegal migrants in holding centres and camps and  is conspicuously silent as to the duration for which such persons are to be detained. And as  empirical evidence shows, such persons have been detained for as long as ten years. It is this  wide subjectivity in the exercise of discretion that renders the act arbitrary.  

In May 2025, the Ministry of Home Affairs issued a circular to various states and union  territories asking the authorities to accelerate the verification process of “suspected” Bangladeshis and Rohingyas illegally residing in India. This order on a plain reading is  unchecked exercise of administrative discretion –no disclosure of grounds, no opportunity of  constructive hearing given to the suspect, no maximum detention limits, no provision for legal  assistance.  

Suspicion to Expulsion: The Due Process Deficit 

There are primarily two fundamental questions that arise from this context – Firstly, on what  grounds will an individual be labelled as an illegal immigrant and secondly, given the extent  of indeterminacy in this area, can a determination of such a magnitude be left solely in the  hands of the executive with no effective scope of judicial review? 

It is the uncertainty in the answer to the first question that affirms and reinforces the answer to  the second question. Reflecting upon the status quo, the Parliament is yet to come up with a  clear and coherent framework to ascertain Indian citizenship and therefore, the complete  vesting of such powers in the executive is a precarious proposition. The Supreme Court has 

held that the absence of arbitrary power is the sine qua non to rule of law with confined and  defined discretion. Arbitrariness is uncanalised and unguided discretion bestowed upon the  executive. Justice P.N Bhagwati had remarked that “mala fide exercise of power and  arbitrariness are different lethal radiations emanating from the same vice; in fact the latter  comprehends the former.”  

The Apex Court in Sarbananda Sonowal reversed the burden of proof from the Government to  the alleged illegal immigrant. In the former, when the burden of proof was on the government,  it was exceedingly difficult to prove the illegality of the immigrant’s claims of citizenship.  However, today when the burden is reversed the question that we grapple with is how does a  suspected individual even prove his citizenship to the satisfaction of the government in the first  place.  

The enforcement of these laws by the authorities is exactly what was shunned by the Apex  Court in Rahim Ali. The Court iterated that though the burden is on the foreigner to prove that  he is an Indian, a mere allegation is not enough to doubt a person’s nationality. In the absence  of substantial material to corroborate such claims, the Court observed, ‘it cannot be left to the  untrammelled or arbitrary discretion of the authorities to initiate proceedings, which have life  altering and very serious consequences for the person, based on hearsay or bald and vague  allegation(s).” 

In National Human Rights Commission v. State of Arunachal Pradesh, the Court held that the  Indian State is obligated to protect the life and liberty of every human being, be he a citizen or  otherwise. This approach of the judiciary is in line with Article 9 and 13 of the International  Covenant on Civil and Political Rights (ICCPR). Article 9 of the ICCPR states that everyone  has the right to liberty and security of person and no on shall be subjected to arrest and  detention.  

Article 13 of the ICCPR reads thus: 

“An alien lawfully in the territory of a State Party to the present Covenant may be expelled  therefrom only in pursuance of a decision reached in accordance with law and shall, except  where compelling reasons of national security otherwise require, be allowed to submit the 

reasons against his expulsion and to have his case reviewed by, and be represented for the  purpose before, a competent authority……”  

The Human Rights Committee has commented that this protection does not extend to illegal  migrants and aliens who have stayed longer than what the law or their permits allow, however,  if the legality of an alien’s entry is in dispute, any decision on this point leading to his expulsion  or deportation ought to be taken in accordance with article 13. Though India has made  reservation to this Article in order to apply its own laws relating to foreigners, the point is to  put forth the standard accepted by the international community – expulsion after the  individual’s non-citizenship is conclusively decided in accordance with law.  

The Foreigner’s Tribunals is now infamous for not serving notice on the suspected individuals  or giving them an effective opportunity of defending their status as citizens and passing orders  without adhering to the basic procedural guarantees. In July 2026, a bench comprising of  Justices Vikram Nath and Sandeep Mehta set aside a series of judgements delivered by the  Gauhati High Court that declared 27 individuals as foreigners. In most of these cases, the  judgements had been passed ex-parte – no opportunity given to the individual to respond. The  Apex Court shunned the mechanical exercise followed in determining citizenship – no service  of notice, no analysis of the material forming the basis of the adjudication and no evaluation of  evidence adduced by the State.  

Expressly Constructing the Guardrails  

The Apex Court in State of AP v. McDowell & Co. held that an enactment cannot be struck  down on the grounds of it being arbitrary or unreasonable and that some constitutional infirmity  has to be found before invalidating an Act. This was overruled in Shayara Bano v. Union of  India. In Shayara Bano and the Association for Democratic Reforms v. Union of India, the  Court pronounced that manifest arbitrariness is something done by the legislature capriciously,  irrationally and/or without adequate determining principle. It is this “determining principle”  that is elusive in the realm of India’s citizenship laws. As the situation presently stands,  administrative actions undertaken in the course of detecting persons suspected of being illegal  migrants is bereft of a discernible legal standard.  

In Re: Section 6A of the Citizenship Act, 1955, (“Re Section 6A”) the Respondents argued that citizenship, external aggression, migration and other related issues are matters of foreign policy  that are to be dealt by the government and thus must be excluded from the Court’s purview. In 

upholding section 6A, the Court stated that Article 11 of the Constitution confers overriding  powers upon the Parliament to make laws even when they are against other provisions. 

The Court has taken an overtly cautious approach in not impinging on the powers of the  legislature – something that is also evident in the SIR judgement (this time, with more authority  in the hands of the Election Commission of India) – and correctly so. However, the concern is,  that the Court is rarely called upon to legislate in these matters of citizenship or immigration  but rather to ensure that the process of determination of citizenship does not traverse due  process. It is imperative for the Apex Court to explicitly read certain limits, into the  implementation of these laws as ex facie the law conferring the power prescribes no guardrails.  In the same case, the Court held that a constitutional bench must be constituted to monitor the  implementation of immigration and citizenship legislations.  

The Supreme Court in Sonowal recognised illegal immigration as a threat to national security.  However, unlike other areas of national security like decisions pertaining to warfare or military  operations or defense acquisitions where the Executive has an upper hand, in the domain of  immigration, actions of the executive are more susceptible to judicial scrutiny. This can be  attributed to national security on one hand and the intersection of diversity, basic rights granted  to both citizens and non-citizens, and protection against administrative excess on the other. The  State machinery cannot use security as a blanket justification for deportation and detention. 

In light of this, it is not appropriate to leave the responsibility of oversight in the hands of  administrative or even quasi-judicial bodies (as can be deduced from the workings of the  foreigner’s tribunals). The elevated standards of independence, impartiality and procedural  fairness that is required in the process of this ascertainment of citizenship, is embodied only in  the judiciary. However, the problem with judicial scrutiny is that such excesses are checked on  an individual basis. Given the pervasiveness of these instances, the need is for the Court to  clearly lay down a set of general legal principles that the administrative authorities are  obligated to adhere to in the course of ascertainment of citizenship.  

In Re Section 6A, the Court stated that any law pertaining to citizenship has to be congruent to  Article 14, and review for intelligible differentia and manifest arbitrariness and that the Court  has the authority to review the same. Executive supremacy in this domain does not preclude  judicial supervision. To borrow from Mr. Gautam Bhatia, “Citizenship – like the fundamental  rights, the directive principles, the federal structure, and the rest of the Constitution – were  part of a coherent web of principle, not single strands floating in the air”. 

**Tiyasha is a law student at Symbiosis Law School.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.