3. Illusions of a Process: Violating the Right to Fair Trial 3.3 Everyday Experiences in the Foreigners Tribunals In Sonowal I and Sonowal II, the Supreme Court ruled that the burden of proof in citizenship cases involving the FTs must shift between the State and the defendant at different stages to ensure a fair process. Initially, at the time of reference, the State must provide a prima facie basis to demonstrate a bona fide suspicion that a person is a foreigner. Then, as the proceedings unfold, the onus may shift back to the State if the defendant sufficiently meets their burden by presenting credible evidence of citizenship. In theory, this back-and-forth shift is essential to uphold fairness, as imagined by the judiciary, with the FTs expected to apply their minds to both parties’ evidence, communicate effectively with defendants on whether the burden has been met under Section 9 of the Foreigners Act, and ensure State presence to rebut any evidence offered. However, interviews with advocates practising in these tribunals reveal that these conditions are often absent, leading to a deeply flawed system. 72 Advocates report that FTs frequently bypass the initial requirement for the State to establish a bona fide suspicion before initiating proceedings. According to Advocate ARB, the FTs issue notices based on generic, “cyclostyled” statements without indicating specific grounds or materials to justify suspicion of foreign status. “There is nothing to show cause, no documents or grounds,” he explained. In one instance, the High Court dismissed ARB’s challenge to a faulty notice, instructing him to address his grievances with the FT—a process that ultimately revealed the inquiry officer’s admission that the reference was baseless. This highlights the superficiality of the initial State inquiry, directly contravening the requirement for a prima facie case. Multiple advocates shared experiences of being denied the opportunity to challenge the veracity of inquiry reports. Advocate HP recounted that in most cases, incomplete or inaccurate inquiry forms lay the groundwork for references. “In maximum cases, the enquiry forms were not completely filled up,” she explained, noting instances where false references were allegedly made due to police demands for bribes. Despite such serious allegations, advocates have found that FT members typically dismiss or ignore objections raised in the written statement. Advocate ZH shared that in his experience, preliminary objections are seen as unnecessary delays, with FT members encouraging him to proceed directly with evidence rebuttal rather than questioning inquiry accuracy: “No point in filing preliminary objections… cases ought to be finished in a summary manner, within 60 days,” he noted. An underlying principle set in Sonowal I and Sonowal II requires the State to rebut evidence presented by defendants. However, the interviews reveal that State representatives often do not appear at hearings or fail to provide meaningful rebuttals when present. Advocate HP emphasised that even though the burden is on the defendant, “there should be a rebuttal” by the State, especially when key documents like school or panchayat certificates are introduced. In practice, however, this rebuttal is often omitted, leaving the defendant’s evidence unchallenged, not due to acceptance, but due to procedural neglect.