Identifying the ‘Outsider’ reference to the tribunal, the authority making a reference must satisfy itself of the existence of reasonable grounds whether or not a person should be subjected to the process of the status determination under the FTO. However, in practice, the references are mechanically made 109 — and there is no mechanism that is deployed to ‘filter’ out bad references by requiring to establish a prima facie case — as that is exactly what the Foreigners (Tribunals for Assam) Order, 2006 sought to do, which was invalidated by the Supreme Court in Sonowal II. 110 The procedural rules further provide for the issuance of a show cause notice to the person concerned, indicating that the burden of proof is upon him and requiring him to reply within 10 days. The rules also provide for a mechanism for service of a ‘show cause’ notice upon the ‘proceedee’ (a term used for a person accused to be a foreigner). However, in practice, this is not observed and it is reported that out of approximately 129,009 determinations made by FTs, 63,959 are ex parte 111 — passed without giving an opportunity of hearing to the person affected. 112 The officers who are required to make the report of service of the show cause notice often do not even bother to check whether the person who is served is actually the person concerned or any other who shares the same name. Sometimes the migrant labourers who are accused of being foreigners are not found at the temporary address that they take, which is noted by the police at the time of inquiries. 113 In many cases, show cause notices are not actually served by the police. These aspects are also not adequately verified by FT. This could be because their ‘disposal rates’ as well as declaration as foreigner rates are being ‘monitored’ by the High Court and the Committees appointed by the High Court, and therefore there is an urgency to decide cases 114 — even if that means not hearing the person accused of being a foreigner. This is more so when the renewal of contracts to continue as members of FTs, and to draw remuneration for the same, depends upon their ‘performance’ being ‘monitored’ by external agencies. 115 It follows that that 109 See Manu Sabastian, ‘Ex-Army Man, Who Was Detained after Being Declared a “Foreigner” 110 111 112 113 114 115 by Assam Tribunal, Moves Guahati HC for Release’, Live Law (online, 1 June 2019) <https://www.livelaw.in/top-stories/ex-army-man-who-was-detained-after-being-declareda-foreigner-moves-guahati-hc-for-release-145395>. This article highlights that the reference concerning Mohammad Sanaullah, who served in the Indian army from 1987 to 2017, Assam Border Police in 2008 mentioned his profession as ‘labour’. The article also mentions that after retirement from army, Sanaullah was working as sub-inspector in the Assam Border Police. Interestingly, the reference made by Assam Border Police relies on Sanaullah’s confessional statement where he admits to being born in Dhaka, Bangladesh. See Sonowal II (n 102). Unstarred Question No 1724 (n 94). ibid. The proceedings are ex parte on account of non-adherence to the rules that have detailed procedure about how service is to be effected. Ipsita Chakravarty, ‘Special Report: Ex Soldier Was among 100-Plus ‘Foreigners’ Held in Assam in Post-Poll Drive’, Scroll.in (online, 3 June 2019) <https://scroll.in/article/924958/post-lok-sabha-elections-assam-has-seen-a-spurt-indetentions-of-those-declared-foreigners>. Due to external watch on performance, members of the FTs could be in a hurry to pass exclusion order, for their functioning is reviewed monthly and being seen as accommodating may result in non-renewal of contract. Failure to produce a document and the maker of that official document results in exclusion of that document from consideration due to reverse burden of proof. Fatima Khan, ‘Job in Assam Foreigners Tribunal Depends on Conviction Rate, Says Civil Rights Group Report’, The Print (online, 19 September 2019) <https://theprint.in/india/jobin-assam-foreigners-tribunal-depends-on-conviction-rate-says-civil-rights-groupreport/294030/>. 132