How India's Supreme Court Failed to Prevent Assam's NRC
The National Register of Citizens (hereinafter referred to as “NRC”) is a register consisting of names of all bonafide Indian citizens. First prepared after the 1951 Census of India, the NRC list is now being updated for the state of Assam to remove any illegal migrants living in the State and to prevent further inflow of people in Assam. People whose names appear in the 1951 NRC list, who appear in any of the electoral rolls upto 24th March, 1971 or those who can provide any documentary evidence either in the form of birth certificate, passport, government issued license/certificate, citizenship certificate, land or tenancy records issued upto the midnight of 24th March, 1971, are eligible to include their names in the NRC list.
The entire process of NRC and its update in Assam is being monitored by The Supreme Court through the case of Assam Public Works v Union of India and Ors. [Writ Petition (Civil) No. 274 of 2009] under the guidance of J. Gogoi and J. Nariman. The court for its convenience has also appointed Prateek Hajela (Home Secretary of Assam) as the designated official who shall be reporting to the court as and when required.
While the general expectation was that the entire process will be handled in a meticulous manner as per rules and laws, this has not been the case. Rather, the process has been dealt with in a very hurried manner by the court and the authorities have not been given any opportunity to verify the authenticity of the exercise, or to deal with any wrongful inclusion or exclusion that might have happened during the process,  which has led to the creation of a tussle between the court and the Assam government. Due to large number of Bengali Hindus being excluded from the NRC list, who comprise the main voter base of the BJP government, the government has been demanding the re-verification of NRC data in some districts to expose fallacies in the process  which has excluded close to 19 Lakh people out of the 3.3 crore people who had applied to be included in the NRC.
The general adjudication process of NRC consists of a three tier system for dealing with claims and appeals arising from non-inclusion of people in the NRC process. Firstly, there is the Foreigners Tribunals which have been constituted under The Foreigners Act, 1946. Secondly, there are High Courts which the person can appeal to against the tribunal’s order. Finally, the Indian Supreme Court (as the apex court) is the final appellate court in the adjudication process.
However, one look at the foreigner’s tribunal reveals that the selection and appointment of judges was arbitrary and opaque, and is an attempt to mock people who approach the tribunal in the hope of receiving justice and for being a part of the NRC list. Perhaps the most stark mockery of due process, guaranteed to all ‘persons’ (citizen or otherwise) under Art. 21 of India’s Constitution, is the very existence of these tribunals themselves. This is because the body creating them – the Parliament – lacked competence to do so in the first place. Article 323B of the Constitution of India provides 9 grounds on which any tribunal may be created, none of these grounds talks about citizenship. A test to the constitutional validity of these tribunals has not yet been fully carried out in courts, but they continue to function unhindered. By the time a challenge is fully considered, it might be too late. 
The appointments process are also tarnished. Recently, close to 221 members were appointed to the tribunal by the Guwahati High Court in August 2019 without any prescribed selection process or transparency . Those who believe the process to be fair might argue that a High Court is appointing them and all members are either retired judges or advocates and civil servants. However, while the selections are made by the High Court, appointments are carried out by the Home and Political Department of Assam, thereby leaving the possibility and scope for government interference and favouritism open in the selection process. In the absence of a publicly available selection criteria, there is very little material available to judge whether this has been the case.
Another cause for concern is the fact that the government is required to send in appraisals regarding tribunal members, which is generally in the form of “percentage of foreigners declared” by each member . This creates a systemic motivation to declare more number of people as foreigners – a glaring manifestation of everything that is wrong with this process.
More importantly, the Supreme Court lost a golden opportunity to adjudicate on defining citizenship and migration issues in India, and the validity of the NRC process, by rushing the process. This case could have immense implications for the entire North-East region and has a huge potential to create religious tensions between communities. If India starts detention centres in its own country, its human rights record is going to be tarnished irreparably. Though the government has not announced what it shall be doing to people who will be detained, it is not hard to imagine that they will become second class citizens since neighbouring Bangladesh is unlikely to receive them . It is important to clarify that non-inclusion in the NRC does not mean immediate detention. Individuals excluded from the NRC are to be given 120 days to present their case in front of the foreigner’s tribunal. However, given the anti-migrant sentiments prevalent in the State, social boycott, denial of imperative services, among others will become facts of life. Already, neighbouring states are refusing to allow people without IDs to enter their territory [5A].
Behind all of this, lies a sinister plot of the Narendra Modi led BJP government to deny citizenship to one community alone – Muslims. There are plans of bringing in a Citizenship Amendment bill in India’s Parliament that would allow the government to automatically grant citizenship to those excluded from the NRC, as long as they belong to a list of religions. Legally, everyone is considered to hold the faith of their parents, except when they officially convert, regardless of whether or not they practice that or any religion. Conspicuously absent from this list of religions is Islam. The official logic given for this exclusion is that both neighbouring countries from which migration takes place – Bangladesh and Pakistan – are Islamic countries and therefore other religions, not Islam, are oppressed minorities. This logic, perhaps deliberately, ignores the plight of Ahmadiyyas, Shias, and other Muslim minorities in Pakistan.
In the entire NRC process, the Supreme Court of India has ended up contributing to the travesty of human rights by prioritizing expedience over fairness on a matter of such grave importance . Furthermore, despite having already declared a similar statute in Assam as unconstitutional , it chose not to follow its own precedent. While the government will do everything in its power to re-verify the list as it goes against its major vote bank – or attempt the shortcut of the Citizenship Amendment Bill, history will remember that the Supreme Court chose not to follow its own established principles and that India’s obligations towards improving its human rights record were ignored while adjudicating this case. This would be a truly harrowing tale from the promised land of democracy in Asia.
Views expressed are solely those of the author.
...We have a small favor to ask. Polemics and Pedantics is a non-profit educational venture whose writers work only because of their penchant for the art. If you like our work, please support us by sharing it on social media and helping us reach more people. Remember to subscribe and never miss an update by providing your email on the Contact Page. We don't sell ads, and won't spam you or share your details with anyone. Comments and suggestions are welcome at email@example.com.
About the Author
Karun Gupta is a law graduate from Amity Law School, Delhi, Indraprastha University. He is a passionate speaker and an enthusiastic participant in Moots and Model United Nations Conferences. He loves research and has published a paper in a leading Law and Policy journal as well. Additionally, he works as a Student Editor at a reputed Law Journal as well. His interests lie in the field of public policy, constitutional law and international law.