54
SECTION I.A.3.1
see Section I.A.3.2 (Chapter I),
pg 56
have the power to regulate their own procedures. In practice,
they are rife with procedural inequities.46 The burden of proving
Indian citizenship rests with the individual, not the state. Many
FTs disregard oral testimony which is crucial for proving the
existence of family relationships in the absence of paperwork.47
They place an excessive emphasis on documentary evidence and
proof thereof [↘].48 Slight inconsistencies and clerical errors in
documents are used by FT members to designate individuals as
foreigners.49 The grounds of appeal are restricted: appellate
courts have repeatedly held that they cannot interfere with
questions of fact.50 Additionally, more than 50% of orders by FTs
are made ex parte, without hearing the accused person and their
defence.51 Legal aid is also not guaranteed to all affected
46 See Talha Abdul Rahman, ‘Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the
Indian State of Assam’ (2020) 2(1) Statelessness & Citizenship Review 130-136; Amnesty International,
‘Designed to Exclude: How India’s Courts are Allowing Foreigners Tribunals to Render People
Stateless in Assam’ (2019) 30 – 57; <https://amnesty.org.in/wp-content/uploads/2019/11/AssamForeigners-Tribunals-Report-1.pdf> accessed 23 April 2020; Human Rights Law Network,
‘Statelessness and Marginalisation in Assam: Report of the Public Hearing on the Citizenship
Amendment Bill and the National Register of Citizens’ (2019) 80-86 <https://hrln.org/uploads/2019/06/
Report-of-Public-Hearing-on-NRC-and-CAB.pdf> accessed 20 August 2020; Citizens Against Hate,
‘Making Foreigner: Report on NRC updation in Assam and the risk of mass statelessness’ (2018) 15
<http://citizensagainsthate.org/wp-content/uploads/2019/06/Making-Foreigner.pdf> accessed 30 July
2020.
47
Nur Begum v Union of India and Ors. (2020) W.P. (C) 1900/2019 (Gauhati High Court); Sahera Khatun v
Union of India and Ors. (2020) W.P. (C) 7482/2019 (Gauhati High Court). See also Rohini Mohan, ‘Inside
India’s Sham Trials That Could Strip Millions of Citizenship’ (VICE News, 29 July 2019) <https://news.
vice.com/en_us/article/3k33qy/worse-than-a-death-sentence-inside-indias-sham-trials-that-couldstrip-millions-of-citizenship> accessed 1 July 2020.
48 Section 50 of the Indian Evidence Act, 1872 recognizes the oral opinion of a persons who have ‘special
knowledge’, by virtue of being family members or otherwise, of a relationship between two persons.
Sections 61 – 65 of the Indian Evidence Act govern the proof of documentary evidence. See Tora
Agarwala, ‘Gauhati High Court rejects Assam woman’s eight documents, mother’s testimony’ The
Indian Express (26 February 2020) <https://indianexpress.com/article/north-east-india/assam/
gauhati-high-court-rejects-assam-womans-8-documents-mothers-testimony-6286923/> accessed 2
August 2020.
49 Amnesty International, ‘Designed to Exclude’ (n 46) 37- 39; Ipsita Chakravarty, ‘Declaring foreigners:
How Assam’s border police and tribunals form a secretive system of justice’ (Scroll.in, 19 August 2018)
<https://scroll.in/article/890134/declaring-foreigners-how-assams-border-police-and-tribunalsform-a-secretive-system-of-justice> accessed 27 July 2020.
50
State of Assam v Moslem Mandal and Ors. (2013) 3 Gau LR 402 (Gauhati High Court). See also Talha
Abdul Rahman, ‘Identifying the ‘Outsider’ (n 46) 136.
51
Unstarred Question No. 3558 Answered on 10 December 2019 <http://164.100.24.220/loksabhaquestions/
annex/172/AU3558.pdf> accessed 15 July 2020; Unstarred Question No. 3804 Answered on 16 July 2019 <
http://loksabhaph.nic.in/Questions/QResult15.aspx?qref=4102&lsno=17> accessed 15 July 2020;
Unstarred Question No. 1724 Answered on 2 July 2019 <http://loksabhaph.nic.in/Questions/QResult15.
aspx?qref=1909&lsno=17> accessed 15 July 2020.
SECURING CITIZENSHIP