Identifying the ‘Outsider’ or judicially applied requirement to be met before a show cause notice is to be issued. 133 It is only now that the state government has promised to extend legal aid to those excluded from NRC. 134 There is no appeal on facts against the order passed by the FTs. NGO from Assam have filed an application before the Supreme Court of India praying that procedure to be followed by the FT be prescribed by the Supreme Court itself. The procedure of ‘appeal’ in cases of exclusion from the NRC list that would govern the exclusion of 1.9 million persons is distinct and is not being discussed here. The government has been assuring civil liberty groups that irregularities, if any, in the process of the determination of foreigners can be looked at by the High Court in the exercise of its writ jurisdiction, 135 and then by the Supreme Court of India in an appeal to it. Therefore, one must not worry. The Supreme Court of India has also agreed with the same. 136 However, the Supreme Court’s trust upon the High Court’s exercise of limited judicial review jurisdiction under art 226 of the Constitution is, to the say least, painting a rosy picture. Case after case the Gauhati High Court has consistently held that: Such a finding being a finding of fact [arrived at by the FT], a writ Court exercising jurisdiction under Article 226 of the Constitution of India does not, ordinarily, interfere with such finding of fact unless there is perversity because the jurisdiction so exercised is supervisory and not appellate. 137 At any rate, a limited judicial review under art 226 of the Constitution is not a substitute for a vested ‘right of appeal’ both on law and on facts. The appeals from High Court orders to the Supreme Court are rarely entertained, as the Supreme Court often refuses to decide the questions of fact in its discretionary appellate jurisdiction. 138 CONCLUSION: ‘DESIGNED TO EXCLUDE’ The analysis in this article has identified many serious procedural concerns with the current process for identifying ‘foreigners’ in the Indian state of Assam. Assam’s FTs are neither created nor regulated by statutory law, but by executive instructions and other delegated legislations. The FTs currently determining citizenship of local Indian residents in the Indian State of Assam involve a drastic system of adjudication and have limited procedural safeguards, which are discretionary and are not applied consistently. There is no effective ‘appeal’, but only a limited judicial review. While every step forward towards the functioning 133 In Sonowal II (n 102) [29]–[42]. The Supreme Court had expressed the faith that if the Central 134 135 136 137 138 Government make an order making a reference to the FT, it must arrive at a subjective satisfaction that must be reflected in the order of reference. It further held that the same may be subject to the principles of the judicial review. However, such a power of the Central Government now stands delegated to various other state-level authorities. The Supreme Court’s observation is sound in law but breached in practice. ‘Assam Govt to Provide Legal Aid to “Needy People Excluded from Final NRC List”, Says MHA; 200 New Foreigner Tribunals Set Up’, Firstpost (online, 3 September 2019) <https://www.firstpost.com/india/assam-govt-to-provide-legal-aid-to-needy-peopleexcluded-from-final-nrc-list-says-mha-200-new-foreigner-tribunals-set-up-7273821.html>. Special jurisdiction of the High Courts in India to issue prerogative writs. Abdul Kuddus v Union of India [2019] 6 SCC 604 (Supreme Court of India). See, eg, Anowara Khatun v the Union of India [2019] Case No WP(C) 3038 of 2019 (Gauhati High Court). Dhakeswari Cotton Mills Ltd v CIT [1955] 1 SCR 941 (Supreme Court of India) [7]. 136