3. Illusions of a Process: Violating the Right to Fair Trial 3.1 The Imagined Process The legal process envisioned for the FTs is informed by several landmark decisions of the Supreme Court of India and the Gauhati High Court. Over the years, these rulings have at least formally laid down procedural safeguards to lend a semblance of fairness to the FT process, given its original lack of due process protections.176 The Foreigners (Tribunals) Order, 1964 is notably silent about the initial process of referring a case to the tribunal. While it authorises specific referral authorities—such as the Central or State Government, District Collector, or District Magistrate—it provides no guidance on how these authorities should assess whether the allegation is baseless or not.177 In the companion case to Sonowal I, the 2006 judgment of Sonowal II, the Supreme Court mandated that referral authorities must apply their mind to any materials collected during investigation.178 Referral authorities must conduct a preliminary inquiry to ensure that suspicion is adequately substantiated before referring 68 a case to the tribunal.179 Although the Supreme Court stopped short of requiring a detailed recorded order, it emphasised that the referral authority must, at a minimum, confirm that the suspicion is grounded in evidence. After a reference is made, the next step is for the FT to issue notice to the defendant.180 Sonowal II laid down that the FT should verify that grounds exist to justify suspicion before burdening the individual with proving their citizenship.181 The Supreme Court expanded this in Rahim Ali v. Union of India (2024),182 holding that the State must provide materials supporting the allegation. If such materials are absent, the FT should refrain from issuing a notice.183 This requires that the State must possess documents when the reference is heard, and these are shared with defendants at the time of serving notice, thereby allowing the defendant a fair opportunity to understand the case against them.184 Paragraph 3(1) of the 1964 FT Order, which mandates a copy of the “main grounds” of suspicion to be shared with the defendant, embodies this requirement.185 The core of the FT process hinges on the burden of proof, which, under Section 9 of the Foreigners Act, is initially on the defendant to prove their citizenship.186 The Supreme Court has envisioned a phased shifting of onus to ensure fairness. As per Sonowal I, once a defendant presents their evidence—such as birth records, identification documents, and witness testimonies—the State has a duty to verify these claims and, if necessary, provide rebuttal evidence.187 This implies that upon 176 Since the FT Order 1964 does not include any appellate mechanism, litigants can challenge an opinion of the Tribunal only as writ petitions under Article 226 (to the Gauhati High Court) and Article 32 (to the Supreme Court of India) of the Constitution of India. Foreigners (Tribunals) Order 1964, para 2 (as amended in 2019). 178 Sonowal II (n 42) [30]. 179 ibid [29], [31]. Also reiterated in State of Assam v. Moslem Mondal 2013 SCC OnLine Gau 1 [98]. 180 Foreigners (Tribunals) Order 1964, para 3.1. 181 Sonowal II (n 42) [60]. 182 Rahim Ali (n 2) [35] 183 ibid [35], [40]. 184 ibid [38], [39]. 185 Foreigners (Tribunals) Order 1964, para 3.1. 186 Foreigners Act 1946, s 9. 187 Sonowal I (n 40) [26-29]; see also Sonowal II (n 42) [61]. 177