2020 Statelessness & Citizenship Review 2(1) mere lip service. Most of the persons alleged to be foreigners are impoverished and may not have the necessary documentation concerning ownership of properties, or documents to show that they were residents of Assam 50 years ago before the cut-off date of 24 March 1971. Thus, even if legal aid were to be provided, the reverse burden regime would operate oppressively. In fact, a reading of some of the orders or ‘opinions’ of the FTs, and the orders passed by the High Court, establishes that many of the cases are lost by the persons accused of being foreigners because their lawyer either did not draft their response properly or relevant documents were not produced. Despite poor legal assistance, the Indian courts rarely apply the ‘Strickland Test’. 128 The same has not been applied so far in any of the FT cases. On the contrary, the High Courts have reasoned that parties have the autonomy to choose their lawyers, and if their lawyers fail to deliver, the consequences must be faced by the person who engaged such lawyers. 129 For instance, the High Court held: All that has been stated in the writ petition is that the petitioner is an illiterate and a poor person. This is no ground for remand. When the petitioner had engaged a lawyer to defend herself before the Tribunal, such averments on the face of it are untenable and cannot be accepted. 130 However, the experience of lawyers shows that the High Court or the Supreme Court remands the matter for fresh adjudication by the FT when it is found that the FTs omitted considering a material aspect of the case — a natural consequence when people lacking ‘judicial experience’ preside over the FTs. 131 For example, the High Court set aside an order passed by FT that had declared a serving officer in para-military force as a foreigner. 132 This resulted in the person having to face the proceedings all over again. There are various other gaps in the procedure. For example, there is no guiding principle available to doubt any person’s citizenship and no prescribed standard 128 Strickland v Washington [1984] 466 US 668 (United States Supreme Court). In this case, the 129 130 131 132 United States Supreme Court held that where it could be shown that a person was given deficient legal assistance and such assistance resulted in prejudice to the person, the courts would regard that a person’s Sixth Amendment right to effective legal assistance was violated. Roimon Nessa v Union of India [2011] Case No WP(C) 1396 of 2011. ibid [18]. Sabastian (n 109); ‘Gauhati High Court Sets Aside 57 Orders of Foreigners Tribunal’, The Sentinel (online, 25 September 2019) <https://www.sentinelassam.com/topheadlines/gauhati-high-court-sets-aside-57-orders-of-foreigners-tribunal/>. This article notes that A division bench of the Gauhati High Court comprising Justice Manojit Bhuyan and Justice Kalyan Rai Surana has set aside 57 cases ‘disposed off” by Foreigners Tribunal No. 4, Morigaon and ordered their fresh hearing. The article notes that the High Court has also observed that ‘before parting with the record, we express our disappointment over the way the Member conducted himself. This was not expected. In the ordinary course this would have called for some action, disciplinary or otherwise. We leave it at that’. The Gauhati High Court passed such an order in Xxxx v In Re — The State of Assam [2019] Case No WP(C)(Suo Moto) 11/2018. Bikash Singh, ‘Gauhati High Court Sets Aside Order of a Foreigners’ Tribunal Which Declared Assistant Sub Inspector of BSF as Foreigner’, The Economic Times (online, 7 September 2019) <https://economictimes.indiatimes.com/news/politics-and-nation/gauhatihigh-court-sets-aside-order-of-a-foreigners-tribunal-which-declared-assistant-sub-inspectorof-bsf-asforeigner/articleshow/71028181.cms#:~:text=GUWAHATI%3A%20The%20Gauhati%20H igh%20court,matter%20within%20two%20months'%20time.>. 135