The country today stands at the brink of catastrophic human suffering and injustice, if the government implements, nation-wide, the National Register of Citizens (NRC), as announced by Union Home Minister Amit Shah. Combined with the Citizenship Amendment Bill — assuring citizenship to all undocumented persons except those of Muslim faith — it risks tearing the country apart, reopening the wounds of Partition, and ultimately destroying India’s secular democratic Constitution.
For six years, the people of Assam were compelled to scramble for documents of land ownership, birth, schooling and voters’ lists to establish that their parents and they were citizens of this country. Too much was at stake. If they failed, they ran the risk of being lodged for years in detention centres carved out of jails, separated from their families, and threatened with deportation. Impoverished people in desperation sold all their belongings to engage expensive lawyers, and weathered often hostile or corrupt officials. Some despaired and killed themselves.
When the final list was published, nearly 2 million people were excluded, but at least the rest hoped that they would at last be able to get on with their lives. But the announcement by Shah that the NRC would be reopened in Assam has reignited dread and uncertainty even among those who found their names in the NRC. Even more gravely, after the CAB, this means only Muslim residents of Assam will be subjected to this renewed interrogation of their citizenship. There is no closure to their suffering. The defence of the ruling establishment is that the NRC process was led by the Supreme Court. This, indeed, is true. The Supreme Court, most of all under Chief Justice Ranjan Gogoi, not just monitored, but energetically drove the NRC.
Justice Gogoi chose a moment, a few days before he remitted office, in a public function in Delhi, to vigorously defend the NRC in Assam. It is unusual for an incumbent Chief Justice to publicly declare his views on highly politically fraught matters. He described the NRC as “a base document for the future”, which musters the facts about “illegal immigration”, in order to end the “turbulence whose effects changed the course of life of not only individuals but of communities and cultures across the region.” He dismissed the critics of this process variously as “armchair”, “careless”, “irresponsible”, “worsening the situation”, people “playing with fire” who “thrive through their double speak”, are “far removed from the citizenry”, with “vile intentions”. Many of these critics were litigants in his court. I was one of them.
The NRC in Assam was envisaged as an instrument to end a long, troubled history of violence in Assam, to address legitimate anxieties of vulnerable communities about culture, land and migration. But we combated the way it was implemented, violating constitutional guarantees and due process, extracting a huge toll of avoidable suffering. A decade earlier, the Supreme Court described illegal immigration as “external aggression” and an “invasion” of India. It used this to shift the burden of proof to the person who claims to be a citizen, and not the state which accuses the person of being a foreigner.
Injustices of the process mounted through the period when the judiciary directed the NRC. The Supreme Court, between 2014-2019 — a decisive part of this was under Justice Gogoi — resembled more an executive than judicial forum. A People’s Tribunal including many respected retired judges and thinkers, held on September 7 and 8, observed that in the normal course of things, “administrative processes are managed by the executive, and in cases of rights violations, the remedy lies before the courts. However, when the courts themselves ‘take charge’ of such processes (and in executive-style fashion, as indicated by the opacity and use of sealed covers, and by the Court’s insistence on setting deadlines despite the scale of the exercise and the potential injustices that might follow), the entire system of remedies is taken away, as there can hardly be an appeal against the Supreme Court’s own devised procedures.”
This resulted in “huge burdens on millions of impoverished and unlettered people because the burden of proof was shifted to the resident to prove that they were citizens, based on documents such as of birth, schooling and land-ownership which impoverished and unlettered rural residents anywhere would find hard to muster. Even when residents succeeded in producing these documents, these were often rejected for small discrepancies such as in the English-language spelling of Bengali names, or in ages even though it is well-known that most rural people do not know their date of birth. Many do not have legal land records. And in the middle of the NRC process, an arbitrary category was introduced of ‘indigenous’ Assamese, who were treated much more leniently even when they could not produce the required documents.”
I had approached the Supreme Court questioning the constitutional legality of detaining persons deemed “foreigners” by these processes indefinitely in inhuman detention centres. Detainees are housed in prisons within prisons. Families are separated, with husbands in one detention centre and wives in another, not allowed to communicate with each other. Children are often alone outside. Detainees have no work or recreation, and are denied parole. They have no hope of release, because there is no question of Bangladesh accepting them.
I was deeply dismayed by remarks made by Justice Gogoi during the hearings, reported in the press. For instance, he said to the Chief Secretary of Assam, “The existing centres are housing 900 people as against the so many who have been declared foreigners. Why are there not thousands?” This spurred further panic among Bengali-origin Assamese people, and a reported drive to detain more people.
I therefore sought the recusal of Justice Gogoi from hearing this matter. Justice Gogoi ruled that there was no question of recusal. Instead, he took the singularly unorthodox step of removing me as petitioner from my own petition. As I said to him in court, I am convinced that true justice is always tempered with compassion. And it is compassion, above all, that I found conspicuously absent in the actions of Chief Justice Gogoi.
It is this same compassion that I find mislaid in his now public remarks about the NRC, and as much in the announcement of Home Minister Shah. They seem profoundly indifferent to the intense human suffering the NRC process has left in its trail for millions of our most impoverished and vulnerable people.
Mander is a human rights worker and writer