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