Pre-publication draft September 2023 safeguards obstructed local officials and the police from surveilling, identifying and detaining foreigners. In his report, Governor Sinha noted that it may not be possible to deport all irregular immigrants. But he expressed that short of that, after identifying immigrants, the government must deny them voting rights, the right to acquire property, and the right of their children to be eligible for Indian citizenship. In a remarkable sentence, Sinha recommended that foreigners ‘will not be deported but will be made Stateless citizens’.44 In 1998, Sinha’s configuration of the immigration question in Assam along racialized and exceptionalist lines remained an outlier. Ironically, it was the Supreme Court in its 2005 judgment of Sarbananda Sonowal v Union of India (Sonowal) that endorsed his views and legitimized it in the language of the rule of law, and finally shaped the country’s citizenship policies in racialized and exceptional terms.45 In answering a constitutional challenge against the IMDT Act, the Supreme Court in the Sonowal case endorsed the contents and conclusions of Governor Sinha’s report. The Court noted that Bangladeshi immigration posed ‘a threat to the integrity and security of north-eastern region’, by reducing ‘the local people of Assam ... to a status of minority in certain districts’.46 The judgment was writ large with anxieties not only of the ‘unabated influx’ of Bangladeshi nationals, but also of Islamic fundamentalism and Muslim terrorists.47 The threat of immigration, according to the Court, was a form of international ‘aggression’ and required exceptional countervailing measures.48 But the IMDT Act, by providing far too many safeguards, did not meet these needs. Parliament had enacted the legislation to replace the Foreigners Act that was far more permissive towards the Executive. In doing so, the Court held that Parliament had failed in its duty to prevent aggression and perform its constitutional obligation to protect states. The Indian state had, the Court ruled, violated its constitutional obligation to ‘prevent any trespass and make the life of the citizens safe and secure’.49 The Sonowal judgment fused the increasing racialization of citizenship on the axes of ethnicity and religion, with the discourse of national security. This fusion produced the logic of exceptionalism based on a paradoxical relationship with the rule of law. The best reflection of this was how the Court dealt with the application of due process norms to the adjudication of citizenship status. In a remarkable moment in the judgment, the Court held that the ordinary constitutional standard of just, fair and reasonable procedure had ‘no application here’ since ‘in the matter of identification of a foreigner and his deportation, he is not being deprived of his life or personal liberty’.50 The determination of citizenship status was to operate in the twilight zone of legality. The Supreme Court offered the legitimising language of the law to the state’s creation of a vast legal apparatus of citizenship deprivation that has since operated at the brink of due process. Through complex and insidious legal processes, this apparatus — the tribunals and border police at the helm — has targeted thousands of Assam’s residents. 44 45 46 47 48 49 50 ibid 19. Sarbananda Sonowal v Union of India [2005] 5 SCC 665 (Sonowal). ibid [70]. ibid [62]. ibid [51]–[63]. ibid [51]. ibid [73]. 10 Electronic copy available at: https://ssrn.com/abstract=4111014