Pre-publication draft September 2023 the position currently stands, persons born in India after the amendment would be disqualified from citizenship by birth if one of their parents is deemed to be an ‘illegal migrant’. These amendments were applicable not only in Assam, but to the whole country. Thus, India drastically limited birthright citizenship that was a principle endorsed by India’s constitutional framers and the first generation of its policy makers. These developments introduced two barriers to a secure citizenship status. First, they made citizenship status contingent on the determination of the migration status of the parents. This determination was not to be conducted under citizenship law, but the Foreigners Act, 1946.25 A piece of colonial legislation, the Foreigners Act gave broad and unhindered powers to the government in relation to ‘foreigners’ in its territory irrespective of their immigrant status. This included the power to detain, deport or restrict movement. The legislation placed the burden of proof for establishing citizenship status on the person rather than the state. In 1968, the Indian government issued the Foreigners (Tribunals) Order, 1964,26 which instituted executive-style bodies — the Foreigners Tribunals (or tribunals) — to give their ‘opinions’ on the citizenship status of suspected foreigners. The Order provided complete discretion to tribunal members to determine their own procedures and norms of evidence. The incorporation of the ‘illegal migrant’ limitations in the citizenship regime, thus, exposed the security of citizenship status to this broad and unfettered executive process. Second, these legislative changes entrenched a profound anxiety towards foreigners as a threat, and consequently, the perennial insecurity of citizenship status in the law. One manifestation of this was the 2003 Citizenship (Registration of Citizens and Issue of Nationality Identity Cards) Rules, 2003,27 through which the Indian government mandated the creation of the ‘National Register of Indian Citizens’ to enumerate all Indian citizens based on a bureaucratic assessment of documentary proof. This mandate — implemented only in Assam and not yet at the national level — was evidently based on the fear that numerous non-citizens were masquerading as Indian citizens. Documentation, despite not being maintained or guaranteed by the state in any meaningful way, was made central to establishing citizenship status. The spectre of illegality now threatens the status of minorities, immigrants, and even the children of immigrants born in India. The evolving legal politics of Indian citizenship, thus, has increasingly incorporated exclusive tests for citizenship status against the backdrop of religious conflict. My account also shows that Indian law has not merely evolved from jus soli to jus sanguinis. It has disturbingly incorporated increasingly racialized understandings of the migrant. By racialization, I refer to ‘the process through which groups come to be understood as major biological entities and human lineages, formed due to reproductive isolation, in which membership is transmitted through biological descent’.28 In other words, racialization refers to how various social, political, and cultural processes construct groups as biologically separate. This process may not always be in relation to the groups that states recognize within the legal 25 26 27 28 Foreigners Act, 1946, Act No 31 of 1946. Foreigners (Tribunals) Order, 1964, GSR No 1405 of 1964. Citizenship (Registration of Citizens and Issue of Nationality Identity Cards) Rules, 2003, GSR No 937(E). Adam Hochman, ‘Racialization: A Defense of the Concept’ (2019) 42(8) Ethnic and Racial Studies 1245, 1246 (emphasis added). 7 Electronic copy available at: https://ssrn.com/abstract=4111014