Identifying the ‘Outsider’ is being applied to determine whether some of the Indian residents are Indian citizens. In international law, there is a clear distinction between ‘statelessness determination’, ‘citizenship determination’ and ‘citizenship re-verification’. 58 In its simplest formulation, in order to satisfy the test of proportionality, it must be established that there is a rational nexus between the means to achieve a legitimate end, and that there is no other less intrusive or harmful alternative. 59 Given this analysis, it is doubtful whether the Foreigners Act, 1946 providing for ‘determination of foreigner status’ is a proportionate tool for citizenship ‘verification’ — because in the garb of determination of citizenship, a state cannot arbitrarily strip their citizens of nationality. In the Indian context, laws enacted by parliament are presumed to be valid unless held otherwise. However recently, the Supreme Court of India in Navtej Singh Johar v Union of India has held that Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Penal Code. 60 The houses of parliament that, after the adoption of the Constitution, consider themselves constrained by the fundamental rights enshrined in Part III of the Constitution had no opportunity to deliberate on the law before passing the Foreigners Act, 1946. 61 Therefore, in the event of a legal challenge to the Foreigners Act, 1946, the burden of proving that the law is not opposed to the Constitution would be upon the government. This is particularly important because this burden to prove that legislation is valid is a procedural limitation on the sovereign powers of the state. In the international context, this makes India an example of the fact that, in addition to government being constricted by international law, 62 they could find their sovereign power to determine citizenship controlled or limited by their domestic law. In fact, in Hans Muller of Nurenburg v Superintendent, Presidency Jail, 63 the then-Attorney General for India had admitted to the fact that the then s 4 of the 58 59 60 61 62 63 Any decision with regard to enforcement of the award by this Court may not have any bearing on the validity of the award or its enforceability in other jurisdictions. However, the question whether the award will be recognised and enforced in India, cannot be adjudicated by the arbitral tribunal, the Courts in United Kingdom or for that matter any other country; only the courts in this country are competent to consider whether the award is to be recognised and enforced in this country. The principle of res judicata is applicable only where the issue/controversy is finally decided by a court/forum of compete jurisdiction and — although prior decision on the issue by a court in another country may be persuasive — neither the decision of the Arbitral Tribunal nor of the High Court of Justice regarding enforceability of the award, is binding on this court. Since, the determination of nationality is an incident of sovereignty. Therefore, only the courts of the concerned country can decide whether a person is a national of that country or not. See generally Benjamin N Lawrance and Jacqueline Stevens (eds), Citizenship in Question: Evidentiary Birthright and Statelessness (Duke University Press 2017). Aharon Barak, ‘Proportional Effect: The Israeli Experience’ (2007) 57(2) The University of Toronto Law Journal 369, 374. [2018] 10 SCC 1 (Supreme Court of India) [344]. India gained independence on 15 August 1947 and the Constitution (n 43) was adopted on 26 November 1949. Peter J Spiro, ‘A New International Law of Citizenship’ (2011) 105(4) American Journal of International Law 694. [1955] 1 SCR 1284 (Supreme Court of India) [17]. 122