176 SOCIO-LEGAL REVIEW VOL. 17 The second impact of this new category has been through the effect of the Foreigners Tribunals (“FT”)135, which deals with suspected foreigners.136 As Anubhav Tiwari and Prashant Singh highlight, the FT embarked on a mission that was markedly different from the original intent of the 1946 Act. Instead of simply regulating the entry and exit of identified foreigners, the FTs now make determinations about the legality of suspected foreigners’ presence in India. Such a determination by the FT is based either by the suspected foreigners demonstrating the possession of valid legal documents to justify their presence in India, or by proving that they are Indian citizens.137 Since foreigners are defined as “persons who are not citizens of India”, and illegal migrants are foreigners who have entered India without valid legal documents, the determination of one’s status as a foreigner or an illegal migrant inherently also carries a determination of whether or not they are a citizen.138 However, the consequence of being declared one of these two categories is strikingly different – while being declared a foreigner makes one eligible for deportation, being declared an illegal migrant disqualifies one or their children from acquiring Indian citizenship. Although the FTs have not affected Sri Lankan Tamil refugees directly yet,139 they have created a jurisprudential shift by legitimising the inquiry into the citizenship status of anyone the State chooses, and blurring the demarcation between citizenship law and immigration law.140 The category of ‘illegal migrant’ was first introduced in the 1955 Act through an amendment in 2004 (“2004 Amendment”).141 The 2004 Amendment marked a sea change in citizenship law since it introduced a third, in-between 135 136 137 138 139 140 141 Interestingly, the 1946 Act does not provide for a mandate to make determinations of the citizenship status of persons, or for setting up FTs. Thus, the FTs are presently functioning without any statutory mandate, and are arguably constitutionally impermissible as in Talha; this question is to be answered by a larger bench of the SC as in Assam Public Works v Union of India (2019) 9 SCC 70. Foreigners (Tribunals) Order 1964. Tiwari and Singh (n 130); previously, illegal migrants were regulated under the Illegal Migrants (Determination by Tribunal) Act 1983 which had stronger due process requirements compared to the 1946 Act. However, the SC declared the law to be unconstitutional, all cases regarding illegal migrants came under the 1946 Act as in Malischewski (n 13). S 2 (a), s 2 (b), 1946 Act The 1964 Order which had previously been confined to Assam in its application has been extended to the entire country as in Vijaita Singh, ‘All States can now Constitute Foreigners Tribunals’ (The Hindu, 10 June 2019) <https://www.thehindu.com/news/national/ all-states-can-now-constitute-foreigners-tribunals/article27706366.ece> accessed 28 July 2021. Harsh Mander and others, ‘Citizenship and the Mass Production of Statelessness in Assam’ in Three Essays Collective and Centre for Equity Studies, India Exclusion Report 2019-2020 (2020). Citizenship (Amendment) Act 2004, s 2 (i) (‘2004 Amendment’); Ram discusses that the explicit enumeration of religion in citizenship law was encoded in ethnonationalism, wherein ‘infiltrator’ was an ‘illegal migrant’ and ‘refugee’ was code for non-Muslim ‘illegal migrant’ as in Ram (n 30).