New Delhi: The legal and humanitarian crisis unfolding in Assam's citizenship trials is among the most complex in the world, with more than 165,000 people already declared “foreigners” by Foreigners Tribunals and nearly 100,000 cases still pending, even as many more are expected in the coming years.
These quasi-judicial bodies, long criticised for arbitrary procedures and devastating human consequences (here, here and here), decide who belongs and who does not, often on the basis of trivial clerical errors or flimsy police inquiries.
Our recent report, Unmaking Citizens: The Architecture of Rights Violation and Exclusion in India’s Citizenship Trials, frames this as a systemic issue, arguing that the adjudicatory machinery as a whole is structurally designed for exclusion.
At the heart of this system lies the Gauhati High Court, which, rather than acting as a constitutional check, has played a profoundly unconstructive role, entrenching and legitimizing the very flaws it was meant to correct.
The Court's jurisprudence has been instrumental in creating a legal vacuum, marked by inconsistency, ad hoc reasoning, and a failure to exercise its jurisdiction meaningfully, and perpetuating a regime of legal uncertainty.
This is the second of a two-part series on systemic issues plaguing the Foreigners Tribunal system. In the first part, we showed how nearly half of all cases are decided ex parte, with people being arbitrarily declared “foreigners” and the Gauhati High Court providing little meaningful supervision.
In this part, we turn to the Court itself, examining how its rulings have entrenched an adjudicatory system that is both unfair and crushingly burdensome.
Legitimising The FT System
A pivotal moment in Assam’s citizenship crisis came with the Gauhati High Court’s 2013 ruling in Bahaluddin Sheikh vs Union of India. In that decision, the High Court gave Foreigners Tribunals exclusive jurisdiction over citizenship disputes, shutting the door on ordinary civil courts.
The decision elevated the FT to the status of sole arbiters of citizenship in Assam.
This was a serious misstep.
Our report raises several concerns about the Bahaluddin Sheikh decision. The High Court ignored the basic rule that civil courts can only be kept out if the law clearly says so or if there’s another fair and complete way to seek justice—and Foreigners Tribunals offer neither.
Moreover, the Foreigners Tribunals were never designed to be courts of law. They were conceived as administrative bodies giving non-binding opinions, lacking the safeguards, independence and procedural framework that judicial forums require. They also lacked any system of review or appeal to higher courts, in other words any effective legal remedy.
Gauhati High Court treated these executive-run bodies as if they were legitimate courts, converting what was meant to be a system of advisory opinions into a binding legal regime—all without any legislative mandate.
The Court defined its own role narrowly, signalling that it would intervene sparingly. Individuals could now rely solely on the High Court’s limited writ jurisdiction if they sought to challenge the FT’s declarations as foreigners.
This hands-off posture has proven wholly inadequate to provide meaningful oversight in matters as grave as citizenship.
Failure To Correct Jurisdictional Errors
One of the Gauhati High Court’s most troubling failings has been its refusal to address fundamental jurisdictional defects that infect the Foreigners Tribunal system.
In its own full-bench judgment in State of Assam vs Moslem Mondal (2013), the Court held that an FT can act only on the basis of valid references from the Border Police.
These references must be based on a reasoned inquiry backed by investigation and material evidence. Without such an inquiry, FTs do not have the legal power in the first place to adjudicate whether a person is a citizen or a foreigner.
In practice, this has been systematically ignored. As we record extensively in our report, lawyers defending people in the FTs consistently complain that inquiry reports are absent or fabricated.
“In 90% of these references, inquiries are not conducted”, a lawyer told us. “The inquiry officers usually sit in police stations and make inquiry reports, and no chance is given to the proceedee (sic) to furnish their documents.”
Yet, the High Court has shown little appetite for addressing this abuse. A lawyer told us that when these concerns are raised, the High Court rejects petitions as “factually useless” and “time-wasting” tactics, and tells petitioners to “worry about proving their citizenship and not waste time on these things”.
The report’s study of 1,193 High Court orders between 2009 to 2019 substantiates this..
The case of Isha Hoque (2018) is telling. Her lawyer showed the High Court that the inquiry officer’s report had clearly stated she was an Indian citizen, yet the referral authority (superintendent of Border Police) sent her to a Foreigners Tribunal. Instead of questioning why the authority ignored its own officer’s findings, the High Court shifted the burden onto Isha to prove that the authority had failed to follow procedure. This reasoning sidestepped the core issue of jurisdiction and excused the state’s violation of its own rules.
The High Court bench even remarked that “a half-page enquiry is sufficient,” a statement that gutted the safeguards set out in Moslem Mondal and dramatically lowered the threshold for lawful referrals.
The same pattern appears in the case of Md. Jalaluddin (2016), where the High Court remanded the case to the FT rather than quashing it outright, despite a reference built on an inquiry officer’s conclusion that Jalaluddin was a citizen.
An FT legally speaking cannot fix a defect in the police reference. Remanding the case served no purpose other than to keep the machinery running—even if it meant allowing FTs to proceed on a fundamentally rotten foundation.
This reluctance to enforce its own standards also threatens to hollow out the Supreme Court’s 2024 judgment in Rahim Ali vs Union of India, which reaffirmed Moslem Mondal and went further: it held that authorities must possess and disclose credible supporting material before even initiating proceedings in the Foreigners Tribunals, because citizenship—being a life-altering status—cannot turn on hearsay or suspicion.
Despite this emphatic direction, the Gauhati High Court has until now not inquired, even in one case that we know of since Rahim Ali, whether the police reference was conducted properly.
Ad Hoc & Contradictory Reasoning
The Gauhati High Court has compounded the problem by adopting an ad hoc and contradictory approach in its rulings.
Instead of laying down clear and consistent legal norms for citizenship trials, the Court decides cases in an unpredictable, case-by-case manner, often producing opposite outcomes for similar factual situations.
This has created a legal environment where the fate of litigants depends less on evidence and law than on the inclinations of an individual judge.
This arbitrariness is starkly visible in the High Court’s treatment of discrepancies in names and ages across documents—precisely the kinds of clerical errors common in rural records.
In Subha Das’ case (2015), the High Court accepted the petitioner’s claim against an FT order declaring her a “foreigner”. Her parents’ names appeared in different forms across records—“Ashini Kumar Roy” and “Primila Sundari” in some, “Ashini Kumar Das” and “Urmila Sundari” in others.
The Court reasoned that the rest of the particulars matched, and such minor variations did not undermine the overall reliability of the evidence.
Yet in Rajendra Das’ case (2010), the High Court refused to accept a similarly trivial discrepancy: the 1970 voter roll listed him as the son of “Radha Charan,” while the 1966 roll referred to “Radhacharan Das.” The judge treated this as fatal to his claim, offering no explanation for why the missing surname—plainly an administrative oversight—was disqualifying.
The inconsistency between these decisions shows that discrepancies are invoked selectively rather than reflecting an objective evidentiary rule.
The same unevenness appears in cases involving age discrepancies. In the Sadhana Biswas’ case (2015), the Court disregarded a minor inconsistency between the petitioner’s stated age and his school records, holding that such clerical errors were not unusual.
But in Md. Idrish Ali’s case (2018), a similar discrepancy was treated as sufficient to dismiss the entire claim, with no attempt to reconcile it against the broader evidentiary record.
Such decisions are reckless, given that loss of citizenship is an extreme consequence resulting in statelessness. A Supreme Court appeal—the only further recourse—is out of reach for most people.
Similarly, the Court’s approach to documentary evidence is erratic.
In some cases, a document is rejected as unreliable because of minor technical details such as ink usage or the absence of a serial number, while in other cases equally irregular documents are readily accepted.
The Court’s arbitrary reasoning also extends to remedies. For instance, in Reeta Kundu’s case (2010), the High Court quashed the FT’s opinion outright on account of a minor age discrepancy. But in Kayom Ali (2019), where the issue was virtually identical, the Court remanded the matter back to the FT, forcing the petitioner through a fresh round of proceedings and prolonged uncertainty.
This unexplained choice between quashing and remanding illustrates that judicial review is not principled.
Missing Effective Legal Remedies
The Gauhati High Court has failed to set clear evidentiary standards in citizenship cases, treating each matter as an isolated dispute rather than clarifying the law. This ad hoc approach empowers Foreigners Tribunals to dismiss documents arbitrarily, leaving individuals unable to predict what evidence will be accepted.
Such unpredictability is intolerable where the stakes are citizenship—the foundational legal status in a constitutional democracy, conferring other rights.
By reducing it to an administrative gamble, the Court has exposed people to the gravest consequence imaginable: the threat of statelessness, with its attendant loss of political membership, security, and dignity.
Second of a two-part analysis. You can read the first part here.
(Mohsin Alam Bhat is a lecturer in law at the Queen Mary University of London and a member of the Article 14 Editorial Board. Arushi Gupta is a masters of law candidate at Columbia Law School.)