Citizenship Eroded: Systemic Violations Of Constitutional Norms In Assam's Foreigners Tribunal Regime
Mohsin Alam Bhat & Arushi Gupta
12 Aug 2025 5:10 PM IST

“Citizenship provides a sense of belongingness and esteem, apart from furthering the self-actualization needs of individuals.” So declared the Indian Supreme Court in 2024, affirming the connection between citizenship and the rights to life, dignity, and liberty. Yet this gateway to legal identity and rights is being steadily eroded in Assam.
Foreigners Tribunals have already declared over 167,000 people as “foreigners,” with more than 85,000 cases still pending. The stakes are immense—and more troubling still is the looming prospect of 1.9 million additional appeals from those excluded from Assam's National Register of Citizens (NRC).
Our new report, Unmaking Citizens, reveals how the legal regime tasked with determining citizenship in Assam systematically undermines foundational principles of the rule of law, fair trial, natural justice, and due process. Authored by Mohsin Alam Bhat, Arushi Gupta, and Shardul Gopujkar, the report draws on over three years of research, extensive fieldwork, and an analysis of over 1,200 Gauhati High Court decisions.
The Rule of Law Undermined
At the core of the rule of law lies the idea of legality, consistency, and institutional independence. Assam's FT regime departs fundamentally from these principles.
Foreigners Tribunals in Assam exclude civil courts without possessing the safeguards expected of bodies replacing ordinary courts. FTs are not statutory bodies. They were created through an executive order, Foreigners (Tribunals) Order, 1964, pursuant to the colonial-era Foreigners Act, 1946. They are not bound by the Code of Civil Procedure or the Indian Evidence Act, and they are not governed by any detailed statutory procedures. Over time, their independence has been systematically eroded: where once retired judges presided, now even retired civil servants and practising advocates with just seven years of experience may be appointed.
Worse still, FT members are appointed and reappointed by the executive on short contractual terms of 1 to 2 years, with their continuation contingent on executive-led performance assessments. This arrangement creates a deeply troubling incentive structure: members with “low conviction rates” reportedly face non-renewal, effectively pressuring them to declare more individuals as foreigners. As the report underscores, this institutional design does not promote impartial adjudication—it rewards exclusion over justice.
The lack of statutory grounding means there is no legislated oversight, no clear criteria for appointment or review, and no system of accountability—such as regular publication of orders or appellate scrutiny. In effect, the FT regime has carved out a space where citizenship can be stripped away without the safeguards typically associated with judicial process.
Fair Trial and Equality of Arms Absent
The Foreigners Tribunal (FT) regime violates core fair trial rights and the principle of equality of arms—standards guaranteed under the Indian Constitution and international human rights law.
Section 9 of the Foreigners Act places the burden of proof on the individual accused of being a foreigner. While the Supreme Court and Gauhati High Court have held that this burden may shift to the State under certain circumstances—enabling the possibility of a fairer process—FTs routinely interpret the law as placing the entire burden on the individual throughout the proceeding. In effect, the burden never shifts, which incentivises the State Government to remain entirely passive in the proceedings.
The State is under no obligation to bring or prove any evidence explaining how or why a case was initiated. Nor can the accused challenge this omission as a ground of law to invalidate the proceedings. Police inquiry reports—which are the basis for FT referrals—are not shared with the accused. Worse, the police officials who prepare these reports are never summoned for cross-examination, denying the accused any opportunity to interrogate the basis on which they are being targeted.
Perhaps the most egregious violation of fair trial rights lies in the widespread use of ex parte declarations—orders passed in the absence of the accused. The report finds that nearly 64,000 individuals—approximately 40% of all “foreigners” declared between 1985 and 2019—[1] were declared ex parte. Many had no knowledge that proceedings had begun. Others were misled by lawyers, or were unable to appear due to illness, poverty, or caregiving obligations.
Even when individuals manage to appear and produce documentary evidence—such as voter rolls, land records, and oral testimonies from family and neighbours—these are frequently rejected on trivial or technical grounds. Common reasons include minor spelling errors, inconsistencies in dates, or discrepancies in the name of a parent across documents.
Moreover, an entirely distinct and onerous evidentiary regime appears to operate in Assam's citizenship trials. Public documents are treated with suspicion. Routine documentary proof must be supported by live testimony from public officials. The requirements for proof are narrowly defined. Testimonies are subject to disproportionate scrutiny. Documents are not read together as part of a holistic evidentiary record. Some documents—such as PAN cards and Aadhaar—are rejected entirely without any reasoned explanation.
Oral evidence—particularly vital for individuals from rural or marginalised communities—is routinely disbelieved, often without cross-examination or any articulated reasoning.
That a status so central to constitutional democracy—citizenship—can be extinguished in such a perfunctory and exclusionary manner is not merely a legal irregularity. It is a deep constitutional anomaly. This is not a fair trial—it is a process designed to exclude.
Due Process and Natural Justice Violated
Natural justice is the bedrock of any adjudicatory system. It includes the right to be informed, to know the case against you, to present a defence, and to receive a reasoned decision. FTs routinely flout these principles.
Tribunals often issue barebones orders, with no explanation for why evidence was disbelieved. The refusal to accept clarificatory affidavits, the failure to summon witnesses, and the arbitrary dismissal of otherwise valid documents all point to a system where the presumption of illegality governs, and evidence—no matter how robust—fails to rehabilitate the accused.
The report identifies systematic patterns in which even the preliminary grounds and materials that trigger a reference to the FT—documents that are central to the very suspicion of foreignness—are not disclosed to the individual. This makes it virtually impossible to discharge the burden of proof fairly.
Indeed, this systematic violation reached the Supreme Court in the recent Rahim Ali case, where the Court held that materials and grounds for reference must be provided to the accused before they are brought before a Foreigners Tribunal. Yet, as the report cautions, the entrenched institutional culture within the FTs makes meaningful compliance with this ruling unlikely.
These violations cumulatively create a regime that is neither fair nor just, and which is entirely misaligned with both domestic constitutional norms and international human rights standards.
Ineffective Remedies and Judicial Abdication
One of the most troubling aspects of the regime is the absence of effective legal remedies. There is no right to appeal an FT order. The only avenue for judicial review is under Article 226, where the Gauhati High Court exercises certiorari jurisdiction—a narrow form of review limited to correcting errors of law or jurisdiction.
This is a serious institutional gap. Most legal systems, including India's criminal and civil courts, provide for multi-tiered appeals precisely to correct errors and protect rights. In the context of citizenship—a constitutional value the Supreme Court has called “foundational”—such remedies are essential.
Even in exercising its limited supervisory jurisdiction, the Gauhati High Court has largely failed to act as a check. Of the 1,193 orders between 2009-2019 analysed by in the report, nearly 47% involved challenges to ex parte orders. Of these, only 30% were remanded to the FTs. The Court upheld the majority—often without reasoned analysis or engagement with the circumstances.
In case after case, the Court has adopted an increasingly harsh view of “sufficient cause” for absence. Individuals have been told they should have followed up with their lawyers, appeared despite being unwell, or understood legal notices despite being illiterate. In Khadem Ali's case, the Court dismissed his explanation of illness as “callous” even as it eventually granted relief—without explaining why. In contrast, in other cases where Nur Banu and Jyotsna Nath suffered from spondylosis of lumbar pain or had a stroke , similar explanations were rejected outright.
Even more concerning is that the Court has failed to develop legal standards to guide FTs. It has not quashed FT orders based on inadequate or non-existent police inquiries. It has not laid down jurisprudence on what constitutes sufficient evidence or fair procedure. This lack of doctrinal clarity has allowed arbitrary and inconsistent practices to flourish.
A Legal Crisis of Citizenship
The Unmaking Citizens report presents a stark and urgent picture. Assam's citizenship adjudication regime does not merely suffer from administrative failures or gaps in implementation. It represents a systemic legal failure—one that flouts the most basic norms of rule of law, fairness, procedural justice, and effective judicial remedy. This has created a regime in which citizenship is impossible to prove—and individuals are at the mercy of the discretion of an official—and not due process.
At its core, this is not just about documentation or border policing. It is about the Indian state abandoning its legal responsibility to adjudicate citizenship with care, clarity, and compassion. What is at stake is not only the legal status of thousands of individuals, but the very integrity of India's constitutional promise.
Mohsin Alam Bhat is a Professor at Queen Mary University of London. Arushi Gupta is a researcher .Views are personal.
Click here to watch the interview with Prof. Mohsin Alam Bhat