process. The earlier legislation28 introduced in 1983, which had established a complaints process requiring a prima facie case prior to the initiation of trials was legally challenged by a leader of the Assam Movement and struck down by the Supreme Court in 2005. The Supreme Court stated that this process inhibited the objective of detecting foreigners by introducing too many procedural hurdles and safeguards. 29 It also invoked strong anti-foreigner rhetoric, describing those who migrated into Assam as “external aggressors” who could not claim due process under law. 30 21. For an individual to establish their citizenship under this Assam specific regime, they must have documentary proof of: (a) birth; (b) parental identities; and (c) continuous stay in Assam since prior to 1 January 1966 (either directly or through a parent). Notably, this standard ignores the historical reality of documentation practices in the state, and the fact that this level of proof is next to impossible for most rural and marginalised persons to fulfil. Decisions of the FTs are not published and therefore cannot be analyzed for trends. However, lawyers conducting these cases have revealed that a significant challenge in most cases emerges in establishing parental identities in the absence of birth records. The registration of births in India was made mandatory only in 1969, and rules for the state of Assam were only introduced in 1978. Therefore, birth registration has historically been very low.31 Historically low levels of literacy present an additional barrier, and many do not have access to supporting records to establish parental information and address questions of lineage.32 22. Women from rural communities who lack birth certificates and school records and who are married as teenagers are especially disadvantaged by the documentary requirements, rendering them particularly vulnerable to deprivation of citizenship. In official documentation, such women are recorded in relation to their husband rather than parents. They therefore have no documentation to prove their parents’ identities. Moreover, new brides – who traditionally move to their husband’s village after marriage – are more likely to draw suspicion on account of being newcomers. Overall, women are more vulnerable to being questioned and constitute 62% of those marked as “doubtful voters“.33 Additional barriers to accessing documentation result from frequent internal displacement and migration for those residing near the flood plains of the river Brahmaputra. Annual floods also destroy property, including documents. Language, ethnicity, and religion also impact the likelihood of an individual being brought before 28 The Illegal Migrants (Determination by Tribunals) Act, 1983 https://legislative.gov.in/sites/default/files/A1983-39.pdf 29 Sarbananda Sonowal v. Union of India, reported in A.I.R. 2005 S.C. 2920, struck down the Illegal Migrants (Determination by Tribunal) Act, 1983 which had a three stage complaint, investigation and verification process before a case could go to trial. 30 Ibid at paragraph 47: “The view taken by this Court is that in a criminal trial where a person is prosecuted and punished for commission of a crime and may thus be deprived of his life or liberty, it is not enough that he is prosecuted in accordance with the procedure prescribed by law but the procedure should be such which is just, fair and reasonable. This principle can have no application here for the obvious reason that in the matter of identification of a foreigner and his deportation, he is not being deprived of his life or personal liberty.” 31 The first National Health and Family Survey in 1992-93 records that only 49.3% of women giving birth in Assam received any form of ante-natal care (including a midwife) and only 11.1% of births were in medical institutions indicating poor likelihood of birth registration.Even as of 2015-16, only 86.1% of births in Assam were registered with a birth certificate issued. See Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and ICF. 2018. National Family Health Survey (NFHS-4), India, 2015-16: Assam, Table 8 at p. 40. See also, International Institute for Population Sciences (IIPS), National Family Health Survey (Ministry of Child Health and – 1 (NFHS-1), Table 9.7 at Chapter 9, p. 16. 32 Literacy in the state was only 18.3% at the time of the first census in 1951 and has gradually increased to 73.18% in the most recent census of 2011. See: Office of the Registrar General, India: State wise Literacy Rates, available at https://www.indiabudget.gov.in/budget_archive/es2006-07/chapt2007/tab94.pdf 33 Assam State Legislative Assembly, Reply to Unstarred Question No. 152 on 12 February 2018 available at https://cjp.org.in/wp-content/uploads/2018/10/Assam-Legislative-Assembly-Foreigners-Tribunal-12-02-2018.pdf 7