3. Illusions of a Process: Violating the Right to Fair Trial establishing their citizenship status as a matter of preponderance of probability, the onus should shift to the State to disprove the evidence presented by the defendant. The Gauhati High Court in State of Assam v. Moslem Mondal (“Moslem Mondal”)188 clarified several procedural expectations from the FTs to ensure a fair hearing. The High Court outlined that the FT process should begin with an investigation where the individual is given a reasonable opportunity to establish their citizenship before referral.189 Although these investigations are not as rigorous as criminal ones, they must still be substantial enough to justify a reference to the tribunal.190 The High Court, further, directed that, upon receiving a valid reference, the FT must issue a notice with a clear statement of the grounds for suspicion and allow the defendant 10 days to respond.191 Upon response, the FT is expected to conduct a reasoned analysis, examining the defendant’s evidence and permitting them to make a complete representation of their case. Defendants are allotted a 10-day period after response to submit supporting evidence, and the FTs are encouraged to avoid ex parte judgments except in instances of non-response without valid cause.192 Additionally, if required, the FT may grant bail to defendants during the trial.193 At the end of the proceedings, it is required to submit a reasoned opinion based on an evaluation of all presented evidence, ensuring transparency and accountability in its decisions.194 Once the FT has issued an opinion, the Gauhati High Court and Supreme Court serve as the only review bodies for defendants who challenge the tribunal’s orders. While there is no statutory appeal process under the FT Order, defendants may approach the Gauhati High Court through writs under Article 226.195 Upon dismissal of these writs, they may approach the Supreme Court under Article 136, seeking special leave to appeal.196 This limited recourse positions constitutional courts as crucial oversight bodies tasked with rectifying any lapses in the FT’s determinations. 3.2 Misconceptualized “Burden of Proof” While §3.1 outlines the apparent procedure to be followed in the FT system, the actual process as it unfolds in the system is contrary to the picture outlined above. This is primarily because the structuring principle of the FT process—the shifting of the burden of proof on suspected foreigners— is profoundly misunderstood and wrongly applied in proceedings. The legal construction of the burden of proof in citizenship cases before the FTs has, in theory, established a mechanism of fairness whereby the onus shifts between the defendant and the State at 188 2013 SCC OnLine Gau 1. ibid [97]. 190 ibid. 191 Foreigners (Tribunals) Order 1964, paras 3(1), 3(3), 3(4). 192 ibid para 3(8) 193 ibid para 3(6) 194 ibid paras 3(1), 3(16). 195 Constitution of India 1950, art 226. 196 ibid art 136. 189 69