5. Embedding Violations: Role of the Assam’s High Court In Asmita Khatun v. Union of India (2023),544 the Gauhati High Court was tasked with examining a petition in which the FT had declared an entire family—Md. Intaz Ali (father), Asmina Khatun (wife), Md. Jakir Hussain (son), and Musstt. Imrana Khatun (daughter)—to be foreigners. The petitioners challenged these declarations, raising a fundamental question of law: whether, consistent with Moslem Mondal, the failure to conduct a lawful inquiry under the Foreigners Tribunal Order 1964 vitiated the proceedings against them. Specifically, they relied on paragraph 97 of Moslem Mondal, which held that without a proper inquiry, proceedings before the Tribunal are without jurisdiction and liable to be set aside. The petitioners demonstrated that the inquiry and reference had been made solely against Md. Intaz Ali (in WP(C) 8399/2022) and that no inquiry at all had been conducted against the other three petitioners (in WP(C) No. 3745/2019). They contended that the absence of any investigation or referral against those individuals fatally tainted the proceedings against them and that the FT’s opinions were therefore without legal foundation. Justice Bujor Barua, writing for the bench, departed from settled jurisprudence by reframing the requirements set out in Moslem Mondal. The Court held that paragraphs 92–97 of Moslem Mondal permit a more elastic standard: a “fair investigation” would suffice for proceedings under the Foreigners Act provided that the prospective defendant was given an opportunity during the inquiry to present their claim to citizenship. Crucially, the Court introduced an additional requirement not found in Moslem Mondal—that the defendant must cooperate fully with the investigating authority, including by making their whereabouts known at all times. The judgment suggested that where a litigant fails to so cooperate, the obligation of the investigating authority to conduct a fair inquiry is deemed satisfied, even in the absence of any substantive material justifying referral. This reasoning effectively shifts the burden of ensuring a lawful inquiry from the State onto the individual—a position at odds with both Moslem Mondal and broader constitutional protections under Article 21. The Court further distinguished the inquiry requirement under the FT Order 1964 from the statutory inquiry once mandated under the now-defunct IMDT Act 1983 (struck down in Sonowal I). It reasoned that the Moslem Mondal standard, grounded in Article 21, was of a different “purport, 166 nature, and extent,” and could therefore be satisfied through lesser procedural safeguards if the defendant was deemed uncooperative. Applying this novel standard, the Court found that for two of the petitioners—Md. Intaz Ali and Asmina Khatun—the investigation requirements had been met because they allegedly did not cooperate with the investigating authority. On this basis, it refused to set aside the proceedings against them. For the remaining petitioners, it offered no meaningful engagement with the argument that no inquiry or referral had ever been made against them at all, allowing the Tribunal’s decision to stand despite this fatal jurisdictional flaw. 544 WP(C) 3745/2019 tagged with WP(C) 8399/2022 (Gauhati High Court, 28 March 2023).