Statelessness & Citizenship Review 2020 2(1) Sarbananda Sonowal v Union of India (‘Sonowal II’), 102 on the grounds that it dilutes the judgment rendered by it in the earlier round of litigation. 103 Thus, the effect of both the Sonowal judgments is that it is permissible to have a separate citizenship regime for a resident of Assam, but it is impermissible to have a separate procedural regime for ‘verification’ of citizenship in Assam. A Due Process Guarantees Are Not Available in FTs The limited procedure that is to be followed by FT is set out in [3] of the FTO. Under the marginal heading of ‘Procedure for Disposal of Questions’, [3] enables a person to be given a reasonable opportunity of making a representation and producing evidence in support of his case and after considering such evidence as may be produced and after hearing such persons as may desire to be heard. Such a succinct procedural rule must be considered in the backdrop of the reverse burden of proof specifically mandated by s 9 of the Foreigners Act, 1946. Thus, where a reference is made against a person by the Assam Border Police or by the Election Commission or by the State Government, a person is presumed to be a foreigner and the burden is upon him or her to establish that the person is not a foreigner. It was not clear until recently whether the reverse burden of proof was to be discharged ‘beyond reasonable doubt’ or ‘on a preponderance of probabilities’. 104 However, given that the tribunals reject the evidence and declare persons as foreigners for minor technicalities or flaws — including the English spelling of the name of persons’s ancestors 105 — it could be argued that the yardstick that is being applied is ‘beyond reasonable doubt’. It is only recently that the Gauhati High Court has clarified that the strict rules of evidence are not applicable to FTs and nothing is required to be proven beyond reasonable doubt. 106 In this case before the High Court, the FT had declared a person to be a ‘foreigner’ as his name was not included in the voters’ list of 1975, even though he had attained voting age by then. The Tribunal had also ignored the facts his father’s name was included in the voters’ list of 1965 and his name was included in the voters’ list of 1985 and 1989. 107 The High Court held that the Tribunals were not to expect the person to prove his citizenship beyond reasonable doubt. It is interesting that while insisting upon and justifying the application of ‘reverse burden of proof’ in citizenship regime in Sonowal I, the Supreme Court of India relied upon, inter alia, s 188 of the Australian Migration Act, 1958 and certain others. 108 It is arguable that even under Indian law, prior to making a 102 [2007] 1 SCC 174 (Supreme Court of India) (‘Sonowal II’). 103 Sonowal I (n 31). 104 Idrish Ali v Union of India [2020] Case No WP(C) 4116/2019 (Guahati High Court) (‘Idrish Ali’). 105 Report of Public Hearing On Statelessness and Marginalisation in Assam in February (Report, Human Rights Law Network 2019) 21 <https://hrln.org/wpcontent/uploads/2019/06/Report-of-Public-Hearing-on-NRC-and-CAB.pdf>. 106 Idrish Ali (n 104) 4. 107 ibid 3–4. 108 Sonowal I (n 31). Migration Act 1958 (Cth) (Australia) s 188 triggers reverse burden only when ‘[a]n officer may require a person whom the officer knows or reasonably suspects’, and further allows the person (subject to regulations) to produce oral evidence as well. Therefore, it is hard to conclude that Australian law has full reverse burden of proof akin to what is presently being applied by Foreigners Tribunal in India. 131