Pre-publication draft September 2023 The most insidious expression of this anxiety was when India’s Election Commission marked more than 370,000 voters as ‘D’ (or ‘doubtful’) in 1997 and 1998.58 The Election Commission has a constitutionally prescribed responsibility of preparing voter lists of Indian citizens. While this responsibility may involve the verification of citizenship status, the Commission in practice does not adjudicate but relies only on easily accessible information, like the residential status and basic documents, for incorporating the voters. Supreme Court precedent lays down that before removing any voter, the Election Commission must conduct a fair and individualized inquiry that includes a reasonable opportunity to be heard.59 Despite these norms and conventions, the Commission disenfranchised thousands of voters without any legal process or publicly accessible evidence.60 The ‘D-voters’ have now lost their right to participate in elections. They are expected to prove their Indian citizenship in the tribunals, without which they are exposed to being imprisoned for being unauthorized aliens. The Commission’s disenfranchisement of Indian citizens is the institutional manifestation of irregular citizenship. Its justification has always been both racialized and on the grounds of exceptionalism. The courts have consistently refused to subject the Election Commission’s decision to any established legal standard.61 In the 2002 case of HRA Choudhury v Election Commission of India (Choudhury),62 the petitioners challenged the power of the Commission to mark voters as ‘D’. The Assam High Court followed the Supreme Court precedent to hold that the Election Commission was bound to give a reasonable hearing to all affected persons. But the High Court upheld the Commission’s unprecedented power to en masse classify voters as suspected foreigners based on the exceptionalist logic most visible in the Sonowal case. The High Court held that the Election Commission had this evidently extraordinary power of enormous political consequence because of ‘the peculiar situation relating to influx and presence of a large number of foreigners in Assam’.63 The legal discourse of doubt is marked by a profound paradox. Formally, the High Court in the Choudhury case subjected citizenship status to ordinary administrative mechanisms, constituted by the established legal standards of bureaucratic discretion. This normalcy worked as a legitimizing tool for a dramatic exercise of state power that disenfranchised thousands of Indian citizens. It framed state action to be, as the High Court put it, ‘in consonance with the rule of law’.64 But simultaneously, normal legality has unravelled under the pressure of exceptionalism. Since the Election Commission’s decision, thousands continue to be marked as ‘doubtful’ and hence unable to participate in elections. In most cases, neither the Commission nor other state institutions have conducted further investigations. Increasing evidence suggests that the Commission’s officials maintained no record whatsoever of any inquiry before 58 59 60 61 62 63 64 Syeda Ambia Zahan, ‘Assam: 22 Years On, RTI Finds Removes Doubts about 33 “D-voters”’ The Times of India (Mumbai, 22 November 2019) <https://timesofindia.indiatimes.com/city/guwahati/22-years-on-rtifinds-removes-doubts-about-33-d-voters/articleshow/72174241.cms> accessed 1 March 2022. Lal Babu Hussein v Electoral Registration Officer [1995] 8 SCC 100. See Nazimuddin Siddique, ‘Discourse of Doubt’ (2019) 54(10) Economic and Political Weekly 25. This section is drawn from the author’s critique of the Assam High Court’s jurisprudence on ‘D-voters’. See M Mohsin Alam Bhat, ‘Citizenships Rule of Exception’ The Leaflet (Mumbai, 26 January 2021) <https://theleaflet.in/citizenships-rule-of-exception> accessed 15 March 2022. HRA Choudhury v Election Commission of India (2002) 1 GLT 1 (Choudhury). ibid. ibid. 12 Electronic copy available at: https://ssrn.com/abstract=4111014