4.
Violations of Natural Justice and the Right of Due Process
4.1
Systemic Violations Leading Up to Status Determination
4.1.1
What the Superior Courts Have Said
In the absence of the Foreigners (Tribunals) Order, 1964 prescribing any meaningful procedure for
pre-trial inquiries, the Gauhati High Court has laid down essential procedural norms. In Moslem
Mondal (2013), the full bench of the Court held that the jurisdiction of Foreigners Tribunals is
conditional on the Referral Authority’s satisfaction, based on material evidence, that the person in
question may be a foreigner.252 Nine years later, Justice Kotiswar Singh further clarified in another
High Court judgment in 2022 that referrals must clearly articulate the grounds of suspicion—including
the alleged date or period of entry—and that vague referrals result in a jurisdictional defect.253
In Rahim Ali (2024), the Supreme Court ruled that the burden of proof under Section 9 of the
Foreigners Act can only shift after authorities provide the defendant with sufficient information and
materials to enable a meaningful defence. Without substantive allegations or access to evidence,
proceedings amount to a denial of a fair hearing.254
The Gauhati High Court in Anjana Biswas (2022) made explicit that “if there was no proper enquiry,
the subsequent acts including the reference made, and proceeding before the Tribunal may be
vitiated and the opinion of the Tribunal may not be sustained.”255 Courts have thus affirmed that
jurisdictional facts—established through due and diligent inquiry—are a legal prerequisite for initiating
proceedings under the FT system.
These standards include: (1) reasonable suspicion based on material evidence; (2) fair inquiry
with opportunity to present documents; (3) evaluation by the Referral Authority; and (4) a prima
facie review by the Tribunal. Each stage is constitutionally significant. In Moslem Mondal, the Court
underscored that “fair investigation and fair trial [are] fundamental human right[s] of a person,”256
protected under Article 21 of the Constitution.
4.1.2
Denying Access to Inquiry Reports
Despite these judicial pronouncements, the implementation of these standards has been negligible.
For these standards to have any viable chance of being met, defendants must have access to all
materials collected against them, allowing them to challenge the jurisdiction of the FTs effectively.
The inquiry report serves as the basis for initiating proceedings, and its validity must be subject to
preliminary challenges. If a defendant raises concerns about an impartial inquiry, the FT should
summon the inquiry officer and allow scrutiny of the inquiry process. This step is crucial because a
fair assessment of preliminary challenges forms the foundation of the FT’s jurisdiction.
252
Moslem Mondal (n 188) [98].
Anjana Biswas v. Union of India WP(C) 7280/2021 (Gauhati High Court, 28 September 2022) [52], [63].
Rahim Ali (n 2) [35].
255
Anjana Biswas (n 253) [47].
256
Moslem Mondal (n 188) [97].
253
254
89
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