Judges in India rarely have a public persona beyond the one they present in court and through their judgments. So it is always refreshing to read their speeches in public fora such as the recent one delivered by the outgoing Chief Justice of India (CJI), Ranjan Gogoi. The occasion was the release of a book on the post-colonial history of Assam by journalist Mrinal Talukdar, and pre-empting the obvious questions perhaps, Justice Gogoi took to the issue of National Register of Citizens (NRC) with the intent of aheavy-weight boxer at a weigh-in.
We live in changing times, and so I will not repeat the tired cliche that sitting judges should not talk about their judgments outside of the actual judgment itself. It was a norm developed at a time when the work of common law judges was rarely the subject of public scrutiny beyond a small, elite circle, and certainly not developed in the context of a contentious constitutional culture that has to make sense of India’s contradictions.
I, for one, am glad that judges are willing to leave behind a long and interesting paper trail about their work that will help us gain immediate context, and for future historians, valuable insights.
Justice Gogoi holding forth on his views about the NRC, even as he hears the case in the Supreme Court, is most illuminating, but not perhaps quite in the way that Justice Gogoi intended it to be.
For Gogoi, NRC Exercise is Simply a Fact-Finding One
While the initial reporting of the speech was acontextual and confusing, the full text of it is very revealing of Justice Gogoi’s thought process. Acknowledging the violent agitation preceding the Assam Accord, he asks “what place does violence hold” in a constitutional democracy, and follows it up with “what forms of public spheres are best suited to articulate differences”?
For Justice Gogoi, the NRC exercise is simply a fact-finding one — that it established for posterity the number of ‘illegal immigrants’ in Assam, and is a ‘base document for the future’ — a sort of reference document to ‘determine future claims’.
At the heart of this claim is a belief that this will allow for Assamese society to peacefully accept migration and ensure greater inclusion.
Given the current discourse over the NRC and the Citizenship Amendment Bill, this is incredibly naive at best. While dismissing and berating ‘armchair commentators’ who criticise the NRC exercise, Justice Gogoi doesn’t appear to be taking into account all that the NRC actually entails.
The pragmatic and practical response lies in unpacking the phrase ‘determine future claims’. ‘Future claims’ of whom, one wonders. If it is of people left out of the NRC, does Justice Gogoi know of the traumatic experiences of people who had to try and prove their citizenship in Foreigners Tribunals? Or if he is aware that the Foreigners Tribunal members are assessed on how many claims they reject. Or if he is aware how ill-equipped they are to handle 19 lakh claims — five times more than the number of cases filed in a year in the entire state of Assam.
The Role the Judiciary Ought to Have Played
The practical considerations aside, substantial as they are both for the individuals left out, and for the judicial system, there is a principled response to Justice Gogoi’s argument.
Right from the coming into force of the Constitution, Indian citizenship was a fraught issue that required a careful balancing of universalist principles with the concerns of large scale displacement of people. The NRC of 1951, like the clauses of the Constitution relating to Partition refugees, was a temporary measure to try and address an impossible situation. With hostilities between India and Pakistan and the closing of the eastern and western borders, concerns about ‘illegal migration’ abated but following the 1971 War, the anxieties emerged once again and boiled over into violence. The solution offered, the NRC we see in Section 6A of the Citizenship Act, carving out an exception for Assam on questions of citizenship, is one whose constitutionality remains doubtful.
The proper role for the judiciary, one would have thought, would have been to adjudicate the constitutional claims with regard to the validity of Section 6A in the right and proper way.
Instead, the question was kept pending while the NRC process was undertaken at great cost and misery, with the court trying as hard as possible to be more ‘executive-minded than the executive’ in every hearing. In doing so and talking about it, what Justice Gogoi has perhaps inadvertently ensured is that the NRC process will lack the legitimacy he so hoped to give it through his actions.
A ‘Credibility Crisis’
The NRC will not, contrary to Justice Gogoi’s belief, be used to adjudicate or determine future claims. It will either be entirely discarded in favour of a legislative solution to the issue of illegal migration, or used to exclude further communities deemed insufficiently worthy of Indian citizenship. The sanctity that Justice Gogoi believes the NRC enjoys is shared by very few on any side of the debate. Even those who believe that the NRC guarantees them the certainty of citizenship will find that this is ephemeral in the face of doubts about the integrity of the process and the legitimacy of the procedure.
As Justice Gogoi heads into retirement, he leaves behind a judiciary in crisis. Public perception being that the judiciary is essentially ‘subordinated’ to the union government, ‘incapable’ of performing its basic functions in a timely manner, and suffering a ‘credibility’ crisis.
(Alok Prasanna Kumar is an advocate based in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)