Pre-publication draft September 2023 disenfranchising voters.65 In the aftermath of the Choudhury case, several petitioners have approached the High Court and argued that none of the procedures mandated by the judgment were actually carried out. Most recently, a set of petitioners have approached the Supreme Court, armed with the responses to their right to information applications, indicating that the Commission had not conducted any hearings or inquiries, nor collected or maintained any information or reasons regarding marking voters ‘D’.66 The response of the courts has not been to enforce standards of legality, but to perform exceptionalism through the refusal to apply legal norms. For instance, in February 2019, the High Court while deciding one such petition skirted the issue altogether.67 The petitioners argued that the Commission must produce the grounds and investigations that led it to mark them as ‘D’. But rather than asking the election officials to justify their actions — something that should have been expected under India’s administrative law — the High Court ordered the petitioners’ cases to be heard by the Foreigners Tribunal. This has now become a norm. Take a recent matter in January 2021,68 where the petitioner in a case alleged that the Election Commission had not conducted any semblance of inquiry before taking away his right to vote. ‘Whether a person is a ‘D’ voter or not’, the High Court noted, ‘is a matter of factual determination, and the appropriate forum to do the same is the concerned Foreigners’ Tribunal’.69 The High Court held that it did not have the ‘competence’ to decide factual questions under its writ powers and directed the police to refer the matter to the tribunals. However, contrary to the High Court’s framing of the matter, the petitioner’s argument did not directly involve the factual determination of his citizenship status. It involved the administrative legal question of whether a government agency — India’s Election Commission — had acted under its legal authority by following due process. In framing the case as merely ‘factual’, the Court failed to meet its constitutional obligation to enforce the legal boundaries of legitimate state action. Persons marked ‘D’ are now stuck in a peculiar conundrum. The moment they approach the courts to enforce judicial standards, their cases are referred to the tribunals — the institutions that have increasingly become notorious for arbitrarily declaring people foreigners. The Choudhury case proclaimed the rule of law. The tactics of non-application have maintained the field of exception. Citizens in Suspension Thus far I have shown how the legal apparatus of citizenship in India has fused racialization and exceptionalism. This occurred most decisively in the Indian Supreme Court’s Sonowal judgment. The Sonowal case reflected a paradoxical relationship of India’s jurisprudence on 65 66 67 68 69 Zahan (n 58). Abraham Thomas, ‘SC Seeks Centre, EC Response on Listing 26 Assam Women in Doubtful Voters List’ Hindustan Times (New Delhi, 4 March 2021) <www.hindustantimes.com/india-news/sc-seeks-centre-ecresponse-on-listing-26-assam-women-in-doubtful-voters-list-101614837635342.html> accessed 1 March 2022. See Sayam Uddin v Union of India (2019) 5 GLR 479; Sayam Uddin v Union of India, WA No 170 of 2019 (29 July 2019) (Gauhati High Court). Samsul Haque v Union of India, WP(C) No 5265 of 2020 (11 January 2021) (Gauhati High Court) <https://indiankanoon.org/doc/104841051> accessed 1 March 2022. ibid. 13 Electronic copy available at: https://ssrn.com/abstract=4111014