Assam NRC: Who Will Judge The Judges?

GUWAHATI: A week before July 31 2019, the last date for when the final version of Assam’s National Register of Citizens (NRC) was to be published, the Supreme Court of India extended the deadline by a month — prolonging the agony of 4 million residents of Assam who were let off previous drafts and are yet to be counted as Indian citizens. 

For them, the deadline extension has meant another month of hope and fear, of waiting to see if they can resume their lives as free citizens of India or if they must submit themselves to years of litigation, and possibly imprisonment, as the state’s Foreigner Tribunals decide their ultimate fate. 

The Supreme Court’s supervision of the NRC process gives many marginalised residents of  Assam hope that their seemingly unending quest to prove their citizenship shall eventually prove fruitful.  But the Court’s intimate involvement in the minutiae of the NRC process is problematic too. It is, in a sense, the elephant in the room. 

Or as a lawyer remarked, a herd of elephants in the room.   

On paper, the NRC process and the foreigner detention camps are two separate issues: the former is a process to determine citizenship, the latter is part of the state’s infrastructure to deal with Assam’s decades old fear of being overrun by migrants from across the Indo-Bangladesh border. The state periodically forces marginalised communities to prove their citizenship by putting them through a tribunal process, and declares them “foreigners” if they cannot produce enough documents and defend them, to satisfy the state.

In fact, many early supporters of the NRC imagined a process supervised by the SC would assure them of citizenship and stop this everyday harassment of border police and Foreigner Tribunals. 

But the NRC and Foreigner Tribunals continue to be  inextricably linked: Come August 31, those who don’t make it to the NRC are probably looking at spending at some time in these detention camps.

Harsh Mander visited these camps with the National Human Rights Commission and was shocked by the infinite detention of  inmates in inhumane conditions.

Chief Justice Gogoi’s oral remarks, Mander submitted, were evidence of a “subconscious bias” on the part of the Chief Justice. As it turns out, Mander’s petition found Chief Justice Gogoi under siege. On April 20 2019, shortly before Mander filed his petition, Justice Gogoi had been rattled by accusations of sexually harassing a junior court researcher. (Justice Gogoi vehemently denied the charges, and was subsequently cleared by his fellow judges, who denied to make a report of their findings public.)

“A judge says a lot of things to test the waters,” Chief Justice Gogoi continued, dismissing Mander’s request for a recusal. “What was said in a healthy debate was understood by you as an opinion.”

Mander saw things differently. His petition said :

The Statements made by the Hon’ble Judges of the Supreme Court have a ripple effect not just within the judiciary of the country but amongst the public at large and therefore need to be made with responsibility and more gravitas than an off the cuff remark by any other citizen of the country”. 

Mander was hoping to draw the court’s attention to the suffering of those housed in the Assam government’s detention camps. But the court was far more interested in discussing why there weren’t more people in these camps. Over 50,000 people in Assam had been declared foreigners, the court said. Why weren’t they being deported?

And Harsh Mander’s petition – what came of it? 

Chief Justice Gogoi did not recuse himself. 

“Recusal is destruction of the institution,” Chief Justice Gogoi observed. “We will not allow anybody to browbeat this institution!”

The Court removed Mander’s name from the petition and Prashant Bhushan was retained as Amicus Curiae.

Reports of Justice Gogoi’s comportment in the NRC hearings gives us the impression of a man on a mission. In a hearing where the government asked for a time of two weeks to suspend NRC work during the Lok Sabha elections, he publicly berated the Ministry of Home Affairs.

“All your efforts from the beginning has been to destroy the NRC process!” he said. 

This antagonism and tension between the various wings of state and central government and the judiciary suggests a sense of the complicated dynamic between the various state agencies where the NRC is concerned.  

In such a situation, any questioning or complaint of the SC’s functioning or a judge’s individual observations, is often perceived as an attack on the judiciary itself. 

One’s subconscious political bias is only one part of the story.

But despite it all, the common man and woman caught up in the judicial nightmare of tribunals and exclusions from NRC lists cling blindly to the words of wisdom Justice Gogoi bestowed on Harsh Mander in the ‘recusal’ petition:

Learn to trust your judges! The day you don’t have faith in your judges, you have had it.