Identifying the ‘Outsider’ and deport foreigners. This resulted in the Supreme Court of India passing a range of orders and a judgment in Assam Sanmilita Mahasangha v Union of India (‘Assam Sanmilita Mahasangha’), directing the creation of the NRC for Assam and supervising its implementation. 37 Incidentally, later the presiding judge’s ethnicity was raised as a ground of bias and he declined to recuse. 38 The process of preparing the NRC in Assam involved inviting all residents to make an application for inclusion in the NRC based on documents identified by ‘stakeholders’ as valid proof of being in Assam before 24 March 1971. The Supreme Court in Assam Sanmilita Mahasangha had fixed timelines for completion of this exercise. 39 After an extension, the exercise was completed when Justice Ranjan Gogoi became the Chief Justice of India. The process resulted in the exclusion of 1.9 million people residing in the State of Assam from the NRC. Pertinently, mere exclusion from the NRC does not necessarily mean that the person is determined to be a foreigner. It must be followed up with a judicial finding by a tribunal that an excluded person is in fact a foreigner. Thus, in due course, either the excluded persons would file an appeal to a FT or the Government would make a formal request to the concerned FT to determine whether such excluded persons are foreigners, which would result in a judicial determination. 40 Once it is determined that such persons are in fact foreigners and their exclusion from the NRC is justified, they will be rendered stateless and thereafter run the real risk of perpetual detention. The experience of lawyers establishes that deportation would not be an option given that their alleged country of origin is not determined or is unlikely to be determined because many of them are Indians who could not muster proof of the same. 41 Prior to and independently from the process following the NRC, the Assam Border Police and the Election Commission of India, amongst others, have been making references to FTs to determine whether a person is not a foreigner. 42 The references are routinely made, without any serious inquiries and often do not even get the name or parentage of the concerned person right. Such a reference triggers a reverse burden of proof. In other words, unless a person has meticulous records from 50 years ago or the Government noted a person’s records accurately before 1971, upon making of a reference it is unlikely that a person would be able to prove himself or herself to be an Indian citizen. It is in this context of ‘foreigner’ identification that this paper argues that the FTs fail to satisfy the test of the rule 37 38 39 40 41 42 (2015) 3 SCC 1 (Supreme Court of India) (‘Assam Sanmilita Mahasangha’). See Apoorva Mandhani, ‘Why CJI Gogoi is under Fire for Defending Assam’s NRC While It’s Still Sub Judice’, The Print (online, 6 November 2019) <https://theprint.in/theprintessential/why-cji-gogoi-is-under-fire-for-defending-assams-nrc-while-its-still-subjudice/316032/>; ‘Harsh Mander Removed from Deportation Case, CJI Refuses to Recuse’, the Quint (online, 3 May 2019) <https://www.thequint.com/news/india/cji-gogoi-asked-torecuse-himself-in-harsh-mander-deportation-case>. Sonowal I (n 31) [48]. For procedure, cf Foreigners (Tribunal) Amendment Order, 2019 (India) GSR 409(E). See Wadud Aman (Written Testimony, US Commission on International Religious Freedom Hearing on Citizenship Laws and Religious Freedom, 4 March 2020) <https://www.uscirf.gov/sites/default/files/Aman%20Wadud.pdf>. See ‘Functions’, Assam Border Police (Web Page) <https://police.assam.gov.in/portlet-subinnerpage/functions>. Authorised by Letter No PLB.149/2008/Pt/8 (Letter, Government of Assam, 21 October 2009). See also Unstarred Question No 152 to Be Replied on 12/02/2018 (Letter, Assam Legislative Assembly, 12 February 2018); Letter No. 23/AS/96/Vol.III/2931 (Letter, Election Commission of India, 12 November 1997) <https://cjp.org.in/wpcontent/uploads/2018/10/Assam-Legislative-Assembly-Foreigners-Tribunal-12-022018.pdf>. 118