New Delhi: In early 2022, Rahim Ali, a 58-year-old agricultural labourer from Assam, died waiting for justice. For nearly two decades, he had fought to prove he was Indian—submitting school certificates, voter records, and community testimonies—only to be declared a “foreigner” by one of Assam’s 100 Foreigners Tribunals (FTs), quasi-judicial bodies that decide on citizenship matters in the state. 

The Supreme Court eventually overturned that decision—but by then Rahim Ali was already gone, having lived and died in fear, poverty, and legal erasure. 

His story is not an isolated tragedy. 

Over 165,000 people have been declared “foreigners” by these tribunals, with more than 85,000 cases still pending. Many, like Rahim Ali, are among India’s most marginalised—facing complex procedures, inconsistent judgments, and the devastating consequences of losing citizenship.

Our new report, Unmaking Citizens: The Architecture Of Rights Violations And Exclusion In India’s Citizenship Trials, written by Mohsin Alam Bhat, Arushi Gupta, and Shardul Gopujkar, draws on over three years of research by a network of lawyers, researchers, and students associated with the Parichay Legal Aid Clinic and the National Law School of India University, Bangalore. 

The team worked closely with defence lawyers across Assam, documenting the lived experience of those fighting denationalisation in Foreigners Tribunals and tracking the systemic challenges faced at every stage. 

Through detailed interviews and case file analysis, and an unprecedented review of more than 1,200 High Court decisions between 2009 and 2024, the report maps how citizenship is routinely denied through arbitrary reasoning, wholesale rejection of valid evidence, and the absence of legal safeguards. It is the most comprehensive legal and empirical study of Assam’s citizenship trials to date.

The report was released at an event at Teen Murti Bhavan, New Delhi, on 26 July 2025.

The report argues that the Foreigners Tribunals—rather than being flawed exceptions—have become routine instruments of exclusion, supported by legal reasoning that often disregards due process and constitutional safeguards. The report calls for a fundamental rethinking of the legal structures governing citizenship in India—because, as it makes clear, the current regime is not just broken, but actively unjust.

India’s superior courts have laid out clear procedural safeguards to govern the citizenship adjudication process in Assam. In Moslem Mondal (2013), a full bench of the Gauhati High Court ruled that the FTs can only act after referral authorities provide material evidence and clear grounds of suspicion. The Supreme Court reiterated and strengthened these principles in Rahim Ali (2024), holding that the burden of proof cannot shift to the accused unless the state first provides meaningful information and a fair opportunity to respond. These cases—along with others like Anjana Biswas (2001)—affirm a consistent legal position: flawed enquiries and vague referrals vitiate the entire legal process.

Yet, these principles are routinely ignored in practice. 

The FT regime, enabled by the Assam Border Police and upheld by the Gauhati High Court, has developed methods by which even binding judicial precedents are rendered functionally irrelevant. What results is not merely bureaucratic indifference, but a systematic and insidious dismantling of procedural justice—where individuals are summoned, tried, and sometimes declared “foreigners” without ever knowing what evidence stands against them, or why. 

This excerpt from the report traces how such violations unfold in the earliest stages of the process, from flawed police enquiries and non-speaking referrals to the enabling role of the judiciary in sustaining them.

Excerpt from Unmaking Citizens: The Architecture Of Rights Violations And Exclusion In India’s Citizenship Trials, by Mohsin Alam Bhat, Arushi Gupta, and Shardul Gopujka

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.

But applications to access the inquiry report in the FTs are routinely dismissed or simply not entertained, and objections to the absence of inquiry are recorded, at best, only as part of the final order, without any reasoned determination. Legal practitioners repeatedly emphasise that preliminary objections—such as the absence of material, contradictions in the referral, or findings in favour of citizenship within the inquiry itself—are treated as “inconvenient” or “disruptive” by FT members. They are not viewed as jurisdictional matters requiring prior adjudication but instead as distractions that “waste time.”

Defendants are also often denied access to the materials gathered by the inquiring authorities. In many cases, even after counsels have filed formal applications to obtain these materials, the FTs refuse to share them. Applications are frequently dismissed without explanation, and counsels are often discouraged from filing such requests. 

FT members typically tell defence counsels to challenge the inquiry report in their Written Statement—a plea that is often either summarily dismissed without explanation or rejected on the basis that the burden of proof lies with the defendant, who must demonstrate that the inquiry was improperly conducted or lacked due diligence. However, without access to the underlying report, defendants are unable to effectively mount such a challenge.

According to lawyers practicing before the FTs, review of these inquiries is rarely conducted in practice. In one infamous case, a retired Army officer and veteran of the Kargil War was declared to be a foreigner by the FT, solely on the basis of a faulty inquiry report. The FT failed to note his Army service as well as the fact that he had been serving as a Sub-Inspector in the Assam Border Police, while the inquiry report wrongly claimed he was a “labourer” by profession. Despite the glaring factual errors and the absurdity of the claim, neither the FT nor the High Court undertook any meaningful review of the inquiry process. The proceedings continued as if the referral were legally sound.

This indifference facilitates widespread and unchecked abuse by Referral Authorities. One lawyer cited the case of a person from the Dhubri district who was referred even though the Inquiry Officer had concluded that the individual was an Indian citizen. Despite this, the Referral Authority—without giving any reasons or justification—proceeded to initiate the FT process. 

These practices severely compromise fair trial, which comprises the right to fair disclosure. This is certainly the case in criminal proceedings, but fair trial would demand that it is applicable in citizenship status determination cases because of their profound significance. The Indian Supreme Court has underscored this principle of fair disclosure, noting that this right is “the very foundation of a fair investigation and trial” and materials that have bearing on the case must be disclosed to the accused “in the interest of justice and fair investigation and trial.” The Court has ruled that “the right of the accused to receive the documents/statements submitted before the court is absolute and it must be adhered to by the prosecution and the court must ensure supply of documents/statements to the accused in accordance with law.” Although the Foreigners (Tribunals) Order, 1964 does not explicitly guarantee the right to fair disclosure, this right is integral to ensuring a reasonable opportunity to be heard, as underscored by these judgments. 

Shielding of Inquiry Officers

Closely related to denying access to inquiry reports is the systemic refusal to summon inquiry officers and allow their cross-examination. Even where referral documents contain material contradictions or flawed inquiry reports, applications to summon the responsible officer are routinely rejected—often on the pretext that the officer is no longer in service, has been transferred, or that “the Tribunal does not issue summons.”

As one senior lawyer put it: “They simply say, ‘not our lookout.’ Even if you point out that the EO has made false statements, the Tribunal will say, ‘you prove your case; the burden is on you.’” This approach relieves Referral Authorities of lawful accountability and shields them from scrutiny. The 2012 amendment to the FT Order has entrenched this further, shifting focus almost entirely to the defendant’s documentation and rendering procedural objections—even those raising jurisdictional failings—effectively irrelevant.

The result is a system where the very agents initiating proceedings are insulated from legal oversight. Tribunals ignore the legality of referrals, dismiss objections without reason, refuse to summon inquiry officers, and operate with no meaningful enforcement of procedural standards—turning the state’s failure to follow lawful process into a legally inconsequential fact.

Failure of the High Court 

Despite these systemic defects, the Gauhati High Court has consistently treated procedural failures in the referral process as remediable technicalities rather than as fundamental violations. The Court has also contributed to lowering the threshold for lawful referral. Lawyers report that judges often assert an “enquiry need not be exhaustive” and that it suffices for the Referral Authority to have “subjective satisfaction” based on “some material”—a standard so vague it enables arbitrary action. As one lawyer put it: “When the Court says even a half-page enquiry is sufficient, you can’t expect much justice.”

As a result, neither the FTs nor the High Court has developed a jurisprudence of procedural fairness suited to citizenship determination. Instead, there is growing tolerance for procedural evasion. Courts focus narrowly on the sufficiency of documentation submitted by the defendant, sidestepping questions about referral legality or FT jurisdiction. This approach depoliticises the process and masks its structural violence.

The failure to treat defective referrals as jurisdictional flaws reflects a deeper institutional pathology. The law recognises that proceedings based on unlawful or baseless referrals are void. Yet, the High Court routinely remands cases rather than quashing them, seemingly out of fear that rigorous scrutiny would expose the system’s illegality and overwhelm it. As one practitioner noted: “If you apply the law strictly, 80% of referrals would be thrown out. They don’t want that. So the law is bent to accommodate the process.”

Our review of 1,194 High Court orders from 2010 to 2019 found that only 20 mentioned objections regarding referral legality or inquiry quality—despite lawyers routinely raising such issues and deficiencies being evident on the record. Where such objections were acknowledged, the Court’s engagement was superficial or absent . For example, six of these orders disregarded essential contentions, such as allegations that no inquiry was conducted or that the defendant was denied an opportunity to supply documents. 

Interviews with lawyers indicate that, in practice, Tribunals consistently refuse to consider objections concerning the pre-referral inquiry. 

For instance, in Isha Hoque’s case, the defence lawyer argued that the Referral Authority had disregarded the Inquiry Officer’s report concluding that she was in fact a citizen based on her documentation. Justice Manojit Bhuyan declined to engage with this argument, holding instead that Isha Hoque had not produced additional evidence in the FT to prove the Referral Authority’s lack of due diligence. However, this response sidesteps the issue: the Referral Authority is obligated to apply its mind to the materials already collected. Given the Inquiry Officer’s finding of citizenship, the Referral Authority’s decision required justification, including concrete material collected both before and during the inquiry. Justice Bhuyan should have required the Referral Authority to justify its departure from the inquiry report rather than placing the burden on Isha Hoque to prove its inadequacy.

Justice Bhuyan’s reasoning also indicates a concerning latitude granted to Referral Authorities. He stated that preliminary investigations need not be detailed or exhaustive—a mischaracterization that undermines the legal requirement for administrative authorities to apply their mind in making decisions. This perspective essentially grants the Referral Authority broad discretion to make referrals arbitrarily, undercutting the mandate that such referrals be grounded in thoughtful consideration of collected evidence.

A similar disregard for investigative integrity appears in the case of Md. Jalaluddin, who was referred to the Tribunal despite the Enquiry Officer’s conclusion that he was a citizen. Justice Ujjal Bhuyan remanded the case, merely noting that the Referral Authority should have provided brief reasons for disagreeing with the Enquiry Officer’s conclusion. However, a remand was unwarranted, as there was no basis for the reference: the Referral Authority had failed to apply its mind to the evidence and provided no additional material to justify its decision. Remanding the case served no purpose, as the Tribunal cannot correct a fundamental defect caused by the Referral Authority’s failure to follow the required process.

In another case, Justice B.K. Sharma noted the lawyer’s submission on behalf of Sulema Khatun, alleging that the Enquiry Officer had falsified the report. However, the Court dismissed the writ on unrelated grounds, displaying a dismissive attitude toward this serious allegation. Similarly, in Usharani Biswas’s case, the contention that the inquiry officer had failed to seek her defense during investigation was ignored; Justice Manojit Bhuyan merely remanded the case to the Tribunal for reconsideration without directing any review of this critical procedural lapse. Such dismissals reveal a reluctance to scrutinize or remedy procedural defects in the inquiry process.

These cases illustrate a troubling pattern wherein both the Foreigners Tribunals and the High Court sideline essential procedural norms by failing to acknowledge or record challenges to flawed inquiries. This neglect not only undermines the fairness of the citizenship determination process but also erodes the foundational principles of due process in administrative adjudication.

Read the full report: Unmaking Citizens: The Architecture Of Rights Violations And Exclusion In India’s Citizenship Trials.) 

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