3. Illusions of a Process: Violating the Right to Fair Trial This procedural gap is reflected in the government’s routine absence from meaningful participation in FT proceedings. This absence can be attributed to two primary factors: 1. Persuasive Burden resulting in Minimal State Participation: The burden is treated as a persuasive burden, meaning the State is only incentivized to engage actively in specific circumstances. The State is not obligated to participate further as it would achieve a legal victory if the defendant is not able to discharge their burden. For example, unlike in criminal law, where the onus shifts meaningfully to the prosecution when the accused raises reasonable doubt,201 the FT process lacks analogous safeguards. Neither is there a safeguard that the State must prove foundational facts.202 Without a meaningful obligation for the State to prove its case before the burden shifts to the defendant, participation is limited. • At the reference stage, there is minimal prima facie verification by the State, resulting in poorly substantiated references. (See Chapter 4, §4.1) • After notice is issued, burden shifts to the defendant without any structured requirement for the State to prove foundational aspects of its case.203 • If, at all, the State is only incentivised to participate when defendant is likely to secure a legal victory. 2. Presumptive Passivity in Evidence Presentation: Treating the burden of proof as a persuasive burden has further minimised the State’s obligations in the FT process: • The State is neither required to prove the materials it submits nor is there a clear stage where it must substantiate the foundational facts of its case. • Even when the State ought to step in—such as to rebut a defendant’s strong evidence—the system discourages intervention, as the presumption towards documents rarely shifts in favour of the defendant. This incentivized passivity is compounded by the FT members’ overly active roles in the proceedings. Advocates’ experiences illustrate that FT members often assume roles akin to that of a government pleader, questioning and scrutinising evidence presented by defendants while the State remains silent.204 Consequently, the burden of proof in the FTs has come to embody an ill-defined standard that operates to the significant disadvantage of defendants, with none of the safeguards that typically ensure a fair adjudicative process in cases of such profound consequence. The following section will analyse, through extensive empirical evidence, the practical deficiencies in the FT process that prevent the fair application of the burden of proof as envisioned by the judiciary. 201 Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563. Noor Aga v. State of Punjab (2008) 16 SCC 417. Rahman (n 21) 131-132. 204 Lawyer interviews on file with authors. See also Sagar (n 21). 202 203 71