Identifying the ‘Outsider’ devised and applied. It is peculiar that in India, for instance, National Company Law Tribunals, which are a few in number, have extensive rules to regulate their procedure. 120 However, the government has left 300 FTs in Assam to come up with their own procedure, which is a recipe for unequal application of the law and discretion. The rule-making power is essentially legislative in nature, but parliament could lawfully delegate to the courts the power to vary minor regulations in the outlines marked out by parliament. However, in the present case, even the outlines of the procedural rules are not provided by parliament. While some guidance is provided under the FTO, the procedure is sufficiently vague and discretionary. For instance, FTs can refuse a prayer for cross-examination of witnesses if the FT is of the view that such a prayer is made to delay the proceedings. 121 Having regard to the fact that a person in this case could be rendered stateless, the right to cross-examine or to adduce documents ought not to be in the realm of discretion but should be provided as of right by procedural rules. As a consequence of this power to regulate their own procedure, the FTs have become opaque 122 — anathema to the rule of law. Journalists have reported that FTs do not allow them access to sit through the proceedings; and, in many cases even relatives of the proceedees are not allowed to attend the proceedings. 123 The Supreme Court has explained the necessity and merits of public access to courts and tribunals in Swapnil Tripathi v Supreme Court of India, 124 and therefore it is against the rule of law to have ‘justice’ behind closed doors. Many of the persons accused of being a foreigner have alleged bias in the manner proceedings are conducted and therefore there is a compelling argument to allow journalists and members of the public to witness the proceedings of the FTs in Assam. 125 Such a bias has also been reflected in recent developments, where a member of a tribunal made a donation to state government’s ‘Health Fund’ but with a caveat that it should not be used for ‘tablighi jamaat, jihadi and jahil’ — insinuating Muslims. 126 Interestingly, there is no provision in the FTO that obliges FTs to ensure legal assistance/legal aid to the proceedees. Arguably, the state is duty-bound to provide legal aid, 127 but given the systemic issues with FTs, it would not be more than 120 See National Company Law Tribunal Rules, 2016 (India) GSR 716(E). 121 Foreigners (Tribunals) Order, 1964 (n 67) [3](9). 122 Teesta Stealvad, ‘Foreign Journalists Ask to “Leave” Assam, Post NRC: State Declared 123 124 125 126 127 “Protected Area”’, CJP (online, 4 September 2019) <https://cjp.org.in/foreign-journalistsask-to-leave-assam-post-nrc/>. See also Lawfulness of Detention of Declared Foreigners in Assam under International Law (Report, South Asia Human Rights Documentation Centre 8 September 2019) <https://www.dtp.unsw.edu.au/sites/default/files/u4/Lawfulness%20of%20Detention%20of %20Declared%20Foreigners%20in%20Assam-SAHRDC.pdf>. Sagar (n 85). [2018] 10 SCC 639 (Supreme Court of India). ‘NRC: Fact-Finding Team Finds Anomalies, Bias in Functioning of Foreign Tribunals’, National Herald (online, 20 September 2019) <https://www.nationalheraldindia.com/india/nrc-fact-finding-team-finds-anomalies-bias-infunctioning-of-foreign-tribunals>. ‘Assam: Foreigners Tribunal Member Sends Donation to Govt for COVID-19, Urges Not to Aid Tablighi Jamaat Attendees’, Inside NE (online, 11 April 2020) <https://www.insidene.com/assam-foreigners-tribunal-member-sends-donation-to-govt-forcovid-19-urges-not-to-aid-tablighi-jamaat-attendees/>.The said member later withdrew his letter and apologised for the same. The government subsequently issued him a show cause notice, and later his services were dispensed with. Constitution (n 43) art 39A. 134