3. Illusions of a Process: Violating the Right to Fair Trial critical stages of the process. As outlined in Sonowal I and II, this shifting of burden was envisioned to ensure that both parties participate meaningfully, with the State actively substantiating any bona fide suspicion, and the FT members applying judicial rigour in assessing and communicating each party’s evidentiary responsibilities. This mechanism, if operationalized, would require that: 1. Defendants Are Provided with Grounds and Evidence: The State must present clear grounds and evidence to the litigant, as a prerequisite for the defendant to address their burden effectively. 2. FT Members Facilitate Evidentiary Clarity: FT members should communicate transparently with defendants regarding any deficiencies in their evidence, as is standard in ordinary legal trials, to support a fair and informed burden-shifting process. 3. 70 Active State Participation in Rebuttal: For a balanced evidentiary process, Assistant Government Pleaders (AGPs) must participate actively in each case, particularly in rebuttal stages where they assess and challenge the defendants’ evidence to uphold the integrity of the proceedings. However, the burden shifting mechanism has not materialised in practice, including because the Gauhati High Court has weakened its conceptualisation. First, in Moslem Mondal, the Gauhati High Court characterised Section 9 as placing a persuasive burden on defendants, meaning that they will fail if evidence is not adduced on either side. Reverse onus clauses impose either a persuasive or an evidentiary burden.197 The former refers to the burden to establish a case, whereas the latter pertains to adducing evidence. The implication of placing a persuasive burden on defendants in FT cases is clearer in ex parte orders when FTs can declare somebody as a foreigner by default.198 This is because the State Government is not required to even prove the grounds it has relied upon to initiate the reference since the defendant did not appear and discharge their burden.199 Moreover, Moslem Mondal did not cite the paragraph in Sonowal I that explicitly directed shifting the onus after the defendant has discharged its burden.200 Effectively, this erased the State Government’s role from the hearings. Moslem Mondal also paved the way for the burden of proof to devolve into an abstract legal phrase that imposes an often insurmountable standard on the defendant. 197 Rangappa v. Sri Mohan (2010) 11 SCC 441 [26]; Kunal Ambasta, ‘Woolmington’s Long Shadow: The Dissipation of the Presumption of Innocence under the Indian Evidence Act, 1872’ [2025] The International Journal of Evidence & Proof 1, 6. Moslem Mondal (n 188) [78]. 199 The 2013 Moslem Mondal judgment reconsidered a previous decision of the High Court’s Division Bench in Moslem Mondal v. Union of India 2010 SCC OnLine Gau 241 [86], which had reached the opposite conclusion on this point: “The Tribunal cannot, therefore, render an opinion that the proceedee is a foreigner merely because the proceedee does not respond to the notice. The omission to respond to such a notice, issued by the Tribunal, as indicated hereinabove, would deny him the opportunity of placing his case before the Tribunal. It will not, as a corollary, absolve the State of its burden to prove the truth of the grounds on which it claims the proceedee to be a foreigner. If the State establishes the grounds before the Tribunal by bringing such materials, which would establish the truth of the assertions made in the ‘reference’, the Tribunal would be free to give its opinion if it finds that the grounds are sufficient to hold the proceedee a foreigner. The evidence to be given by the State, as already mentioned above, may remain confined to the grounds on which the State rests its case and it will have no responsibility to prove (apart from the grounds, which the State must prove) that the proceedee is not an Indian citizen.” 200 Moslem Mondal (n 188) [81], [88]. 198