4. Violations of Natural Justice and the Right of Due Process Defendants are also often denied access to the materials gathered by the inquiring authorities. In many cases, even after counsels have filed formal applications to obtain these materials, the FTs refuse to share them. Applications are frequently dismissed without explanation, and counsels are often discouraged from filing such requests. FT members typically tell defence counsels to challenge the inquiry report in their Written Statement—a plea that is often either summarily dismissed without explanation or rejected on the basis that the burden of proof lies with the defendant, who must demonstrate that the inquiry was improperly conducted or lacked due diligence. However, without access to the underlying report, defendants are unable to effectively mount such a challenge. According to lawyers practicing before the FTs, review of these inquiries is rarely conducted in practice. In one infamous case,257 a retired Army officer and veteran of the Kargil War was declared to be a foreigner by the FT, solely on the basis of a faulty inquiry report. The FT failed to note his Army service as well as the fact that he had been serving as a Sub-Inspector in the Assam Border Police, while the inquiry report wrongly claimed he was a “labourer” by profession. Despite the glaring factual errors and the absurdity of the claim, neither the FT nor the High Court undertook any meaningful review of the inquiry process. The proceedings continued as if the referral were legally sound. Advocate NN told us: “In 90% of these references, inquiries are not conducted. The inquiry officers usually sit in police stations and make inquiry reports, and no chance is given to the proceedee to furnish their documents… [My client] is present on voters rolls of 1966, on what basis at a preliminary stage can they say that he has crossed over from Bangladesh? These are all non-factual claims, you will see three or four districts in Bangladesh being repeated across inquiries. The inquiring officer never bothers actually finding out….” This indifference facilitates widespread and unchecked abuse by Referral Authorities. One lawyer cited the case of a person from the Dhubri district who was referred even though the Inquiry Officer had concluded that the individual was an Indian citizen. Despite this, the Referral Authority—without giving any reasons or justification—proceeded to initiate the FT process. These practices severely compromise fair trial, which includes the right to fair disclosure. This is certainly the case in criminal proceedings, but fair trial would demand that it is applicable in citizenship status determination cases because of their profound significance. The Indian Supreme Court has underscored this principle of fair disclosure, noting that this right is “the very foundation of a fair investigation and trial” and materials that have bearing on the case must be disclosed to the accused “in the interest of justice and fair investigation and trial.”258 The Court has ruled that “the 257 Manu Sebastian, ‘Ex-Army Man, Who Was Detained After Being Declared A “Foreigner” By Assam Tribunal, Moves Guahati HC For Release’ (LiveLaw, 1 June 2019) <https://www.livelaw.in/top-stories/ex-army-man-who-was-detained-after-being-declared-a-foreigner-moves-guahatihc-for-release-145395> accessed 22 January 2025. 258 Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) 2010 (6) SCC 1 [92]. 91