On 9.09.2025, Assam’s Chief Minister approved the Standard Operating Procedure (‘SOP’) for implementation of the Immigrants (Expulsion from Assam ) Act 1950 (‘Act’), thereby empowering the state government to bypass the existing citizenship determination process through the Foreigners Tribunal (‘FT’).  Instead, District Collectors (‘DC’) are now enabled to give ‘Suspected foreigners’ 10 days notice to satisfy that they are Indian citizens or issue them ‘expulsion orders’, mandating them to leave the country within 12 hours, or be taken to a holding centre.

This is Part 1 of a two-part blog. Here, I shall examine the arbitrariness of the procedure, leading to erosion of the right to fair hearing, and its conflict with India’s constitutional commitments and international obligations.

Recently, Parichay, NLSIU, and Queen Mary University of London released a joint report on the fragile citizenship determination process in Assam, finding structural deficiencies of the FT, which violated three foundational principles of  (a) Rule of Law, (b) Right to Fair Trial and Equality of Arms, and (c) Principles of Natural Justice, due to their operation under shadow of executive control, which ends up disproportionately harming marginalised communities.

The proposed process, by authorising DC to bypass the FT altogether, extinguishes the hint of judicial oversight previously present in the process of citizenship adjudication. Such a procedure contradicts India’s obligations under customary international law and Article 2 (3) of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to an effective remedy and prohibits arbitrary deprivation of nationality.

The foremost issue is that the term ‘suspected foreigner’ is undefined, rendering its scope undetermined. Assam’s National Register of Citizens (‘NRC’) exercise has already fragmented people into sub-categories according to their citizenship status. Consequently, a case could come to the FT in 3 ways: (a) referral by Assam Border Police, (b) the Election Commission’s tagging of ‘doubtful’ voter, and  (c) the appeals process in the NRC (which hasn’t started). Take the example of ‘doubtful voters’: as of 2024, about 3.7 lakh persons were classified as ‘doubtful voters’, rendering their citizenship status in limbo. This denies them the right to vote and legal security and often leads to referral to FTs. Despite the Central Government’s direction to Assam’s Government for issuance of rejection slips highlighting reasons for non-inclusion in NRC list to enable individuals to file appeals, these rejection slips have not seen the light of day. This pre-existing suspicion, coupled with unguided discretionary power given to the DC would have severe consequences. Moreover, the threshold of consideration for DCs is the existence of suspicion over citizenship status of an individual and not the proof of them being a foreigner. This violates the right to dignity of the individuals, forcing them to prove their belongingness to India without clarity on what the law requires them to produce. Not only this, but past experience has shown the denial of corroborative documents and rejection of documents for inaccuracies about facts they were not intended to prove. Such piecemeal reading of evidence prevents the interaction of different pieces of proof, undermining fair adjudication. This contradicts the ruling of the Supreme Court in Md. Rahim Ali @ Abdur Rahim v State of Assam, where it was observed that a ‘mere allegation’ is insufficient to call a person’s nationality into question, as this could have life-altering consequences, and the Foreigner’s Tribunal was mandated to serve the primary material supporting allegations against citizenship.

A second issue is the time duration to complete the process. Significantly, not only a reverse burden of proof is mandated on the individual, but the person also has exactly 10 days to prove his citizenship, without any specification of documents that are required to validate such status. In the context of Assam, this is more complicated given the socio-economic and flood-ridden geographical conditions. Also, upon failure to sustain his case, such person is directed to voluntarily leave the country within 12 hours, which directly violates principles of natural justice. Finally, the entire procedure lacks an appellate mechanism, which leads to direct violation of the right to an effective remedy. The only safeguard is to approach the writ court. However, for an average person of the state, to approach the writ court within 12 hours is improbable. Even otherwise, Guwahati HC’s reliance on certiorari jurisdiction under Article 226 of the Constitution permits intervention only on errors of law, without clarifying what such errors entail, and excludes factual errors with the pretext of avoiding reappreciation of evidence. This self-imposed limitation, justified as deference to the tribunal’s findings, denies individuals the right to an effective remedy against grave factual misjudgements.

Overall, the procedure prescribed is perverse to what Hannah Arendt described as a ‘right to have rights’, by having arbitrary requirements without any framework for judicial oversight and the absence of an appellate mechanism.