Lalu Prasad Yadav (Parody) @ModiLeDubega आज पूर्व CJI रंजन गोगोई को राज्य सभा भेजने से एक बात तो साबित हो गया कि
अयोध्या पर फैसला कश्मीर पर फैसला CBI अलोक वर्मा पर फैसला Triple तलाक पर फैसला राफेल घोटाले पर फैसला
पूरी तरह गलत और एक डील मात्र था
Wasim Akram Tyagi @akramtyagi राफेल घोटाले पर गोल मोल फैसला देने वाले, बाबरी मस्जिद पर तथ्य होने के बावजूद न्याय देने के बजाय निर्णय करने वाले जस्टिस रंजन गोगोई को BJP राज्यसभा सांसद बना रही है। चौंकिए मत, आधी रात को बाबरी मस्जिद मे मूर्ती रखवाने वाले फैजाबाद के ‘कलट्टर’ K.K नैय्यर को जनसंघ ने सांसद बनाया था
Om Thanvi @omthanvi “एनआरसी रंजन गोगोई का सरकार को तोहफा है। .. राफेल के अलावा जिन मामलों की उन्होंने सुनवाई की उनमें वैसा ही होता रहा जो सरकार के लिए काफी सुकून पहुंचाने वाला था. अयोध्या विवाद, अनुच्छेद 370, सीबीआई से आलोक वर्मा के हटाया जाना …”
Shahnawaz Ansari @shanu_sab पूर्व चीफ़ जस्टिस रंजन गोगोई को भाजपा ने राज्यसभा के लिए मनोनीत किया है।
अब आप अंदाज़ा लगा लीजिए तीन तलाक़ से लेकर राम मंदिर तक के फैसले कितने निष्पक्ष हुए होंगे, रंजन गोगोई द्वारा दिये उन तमाम मुस्लिम विरोधी फैसलों के लिए भाजपा ने उन्हें रिटर्न गिफ्ट दिया है। #ShukriyaOwaisi
Yash Meghwal @YashMeghwal जब राम मंदिर का फ़ैसला आया तो सब चकित हो उठे थे। मैंने पहले भी कहा था निर्णय और न्याय में फ़र्क़ होता है।
RSS के एजेंट देश के हर विभाग में घुस चुके हैं।आप सब कमर कस लीजिए, लड़ाई लंबी चलेगी।
Priyanka Jha @JhaPriyankha आप कमीनालॉजी समझिए
1 ,पहले NRC का फैसला 2 , फिर राफेल पर फैसला
3 , फिर अयोध्या फैसला 4 . फिर जज लोया की जांच की पिटीशन खारिज करना
और तब जाकर राज्यसभा की सीट ऐसे ही कोई रंजन गोगोई नहीं बन जाता सरकार
Mukesh Gupta @MukeshForInc जज लोया जी को सचाई की सज़ा मिली, रंजन गोगोई को भाजपा की दलाली का इनाम, इसीलिए तो देश की जनता कहती है “मेरा भारत देश है महान” ख़ैर गोगोई राज्यसभा के लिए नामित हुवे…!!Winking face with tongue
Times Media 24 Hindi @TimesMedia24hi डील पूरी हुई, राम मंदिर पर फैसला सुनाने वाले रंजन गोगोई को मोदी सरकार ने बनाया राज्यसभा मेंबर
Wasim Akram Tyagi @akramtyagi रंजन गोगोई का शुक्रिया अदा किजिए, शुबहे को यक़ीन में बदलने के लिए। बाकी सही/गलत के लिए सबके पास अपनी अपनी दलीलें तो हैं ही। आज मेरे दिल का बोझ भी हल्का हुआ और हाँ मैंने उनके सामने जस्टिस नहीं लगाया क्यों कि जस्टिस तो वो अब रहे नहीं और जब थे तब किया नहीं। सरफराज़ नज़ीर
Javed_Khan_Official @JavedKhanOffic1 रंजन गोगोई को अयोध्या, राफेल, कश्मीर, कर्नाटक हॉर्स ट्रेडिंग आदि केसों में दिए गये फ़ैसलों का ‘रिटर्न गिफ्ट’ राज्यसभा की सीट के रूप में मिल गया है…! दलाली मुबारक हो…
Jaiveer Shergill @JaiveerShergill पूर्व सीजेआई #रंजन_गोगोई को #राज्यसभा के लिए नामित करके #भाजपा ने स्वतंत्र न्यायपालिका का अपहरण कर उसकी हत्या कर दी | पहले कानून अँधा होता था अब भाजपा ने उसे राजनीतिक फंदा भी पहना दिया | #RanjanGogoi
Akhilesh Sharma अखिलेश शर्मा @akhileshsharma1
सुप्रीम कोर्ट के पूर्व मुख्य न्यायाधीश रंजन गोगोई को सेवानिवृत्त होने के ठीक चार महीने बाद राज्य सभा के लिए मनोनीत किया गया। गोगोई की अध्यक्षता वाली पीठ ने अयोध्या में राम मंदिर का फैसला दिया था। रफाल सौदे में सरकार को क्लीन चिट भी दी गई थी।
डा.सीमा @bghwa02 राष्ट्रपति रामनाथ कोविंद ने सुप्रीम कोर्ट के पूर्व मुख्य न्यायधीश जस्टिस रंजन गोगोई को राज्यसभा के लिए नामांकित किया है..! Thinking face आपके विचार…!!
Gurpreet Garry Walia @_garrywalia पूर्व चीफ़ जस्टिस रंजन गोगोई राज्यसभा के लिए मनोनीत
साहेब है कमाल के !!
Adv. Somnath Bharti @attorneybharti वाह जी वाह! 12.01.2018 को जस्टिस रंजन गोगोई जी तीन और सम्मानित जस्टिस साहिबान के साथ मोदी सरकार के खिलाफ प्रेस कॉन्फ्रेंस किया था और आज उनको वहीं मोदी सरकार राज्यसभा के लिए मनोनीत कर रहे है! कुछ समझ में नहीं आता! क्या आपमें से कोई समझा सकता है?
Vinod Kapri @vinodkapri भक्ति का प्रसाद चखने वाले रंजन गोगोई की पाँच जजों की संविधान पीठ ने आज से ठीक एक साल पहले मार्च 2019 में अपने एक फ़ैसले में कहा था : रिटायरमेंट के बाद जजों द्वारा पद लेना न्यायिक स्वतंत्रता पर एक दाग है। #RanjanGogoi
और हाँ चौकीदार चोर था, चोर है और चोर रहेगा जो आज बुरी तरह बेनकाब हुआ
डिस्क्लेमर : इस आलेख में व्यक्त किए गए विचार लेखक के निजी विचार हैं. लेख सोशल मीडिया फेसबुक पर वायरल है, इस आलेख में दी गई किसी भी सूचना की सटीकता, संपूर्णता, व्यावहारिकता अथवा सच्चाई के प्रति तीसरी जंग हिंदी उत्तरदायी नहीं है. इस आलेख में सभी सूचनाएं ज्यों की त्यों प्रस्तुत की गई हैं. इस आलेख में दी गई कोई भी सूचना अथवा तथ्य अथवा व्यक्त किए गए विचार तीसरी जंग हिंदी के नहीं हैं, तथा तीसरी जंग हिंदी उनके लिए किसी भी प्रकार से उत्तरदायी नहीं है
Sealed and Delivered Ranjan Gogoi’s gifts to the government
ARSHU JOHN ===========
WHEN THE INDIAN EXPRESS GROUP picked Ranjan Gogoi—the second-most senior judge of the Supreme Court at the time—to deliver the third Ramnath Goenka Memorial Lecture, in July 2018, few progressives questioned the choice.
While introducing Gogoi, Raj Kamal Jha, the editor-in-chief of the Indian Express, showered praise upon the soon-to-be Chief Justice of India. He said that both journalists and members of the judiciary had to work “without fear or favour” to do their job well, which was how he believed Gogoi had conducted himself.
Jha said that there could not be a more fitting tribute to Ramnath Goenka—the founder of the Indian Express. “One thick red line in the newsroom which we tell all our reporters is never impute a motive to a judgment or a judge,” Jha said. “I’m going to push that line and I’ll take some liberty here. Justice Gogoi’s work and his words reinforce the feeling, reinforce the perception that … the search for justice is without fear or favour. Be it from the high court in Guwahati to the Punjab and Haryana High Court to the Supreme Court or to a lawn on a winter morning in January, Justice Gogoi has always pushed to bridge the gap between what he calls constitutional idealism and constitutional realism.”
The lawn Jha was referring to was the venue for a press conference, held on 12 January that year, by four Supreme Court judges, including Gogoi. For the first time in the history of the apex court, four sitting judges came together to address the media. They publicly raised their grievances with the manner in which the then CJI, Dipak Misra, was running the court. Misra’s controversial decisions in favour of the Bharatiya Janata Party-led central government, and allegations that he was assigning crucial cases involving the government to judges who were likely to favour it, had sparked widespread criticism. Gogoi, who was supposed to succeed Misra as chief justice, was hailed for his courage and people speculated if his actions might jeopardise his elevation to the top post. Gogoi became a hero, engendering expectations of a CJI who could restore the Supreme Court’s reputation as a guardian of the Constitution.
In the lecture—a lengthy speech with many academic digressions—Gogoi made several remarks that pleased his liberal admirers. He quoted an article in the Indian Express that said that “independent judges and noisy journalists are democracy’s first line of defence.” Then, Gogoi said, “I agree but will only suggest a slight modification in today’s context—not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges.” The next day, Gogoi’s quote made headlines in several newspapers.
However, soon after Gogoi became the CJI in October 2018, he began making noise for very different reasons. Within days of assuming his new position, he was faced with a case that could have far-reaching consequences for the Narendra Modi government: the Rafale deal, involving the Indian government’s purchase of 36 fighter aircraft from the French company Dassault Aviation. A three-judge bench led by him heard four petitions challenging the intergovernmental agreement for the purchase between India and France.
Gogoi’s actions in the case were quite inexplicable. The opposition had alleged, among other things, that the government had artificially escalated the cost of the aircraft, which benefitted the corporations involved. Defying the principle of transparency, Gogoi sought the pricing details in a sealed envelope, and then held an informal “interaction” with air-force officers. Ultimately, in December that year, the court dismissed the petitions. The final judgment referred to a report by the comptroller and auditor general that had not yet been tabled before parliament and was not available in the public domain.
“We are satisfied that there is no occasion to really doubt the process, and if even minor deviations have occurred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the Court,” the majority opinion, authored by SK Kaul on behalf of Gogoi and himself said. “We find no reason for any intervention by this court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.” The third judge, KM Joseph, wrote a separate opinion largely concurring with the majority.
The court explained its actions citing “national security.” The judgment said, “The scrutiny of the challenges before us, therefore, will have to be made keeping in mind the confines of national security, the subject of the procurement being crucial to the nation’s sovereignty.” It remains anyone’s guess how revealing details of the pricing of the aircraft endangered national security. Effectively, the three-judge bench dismissed petitions seeking an inquiry into grave allegations of government corruption without any detailed examination of the key questions raised.
The expectations of Gogoi died down, and people began to speculate about what had gone wrong. But those who had followed Gogoi’s career closely never expected him to be an agent of change in the Supreme Court. “He was a man with a quick mind, a man who cut through a lot of nonsense, he was decisive,” the senior advocate Sanjay Hegde told me. “But one never saw a great judicial philosophy one way or the other. Once he became chief justice, there were lots of hopes because of the standing up to Dipak Misra. But then it became clear that the instinct to make a ruling, and then stick by it, was more dominant than anything else. And when his instincts allied too closely with the government, people began making their assessment.” Even as I spoke to Gogoi’s friends, family and colleagues over the last year, virtually no one spoke of a commitment to an idea of justice. Born to an illustrious family, Gogoi was never short of connections in the legal and political world. Combining privilege and ambition with an inclination for efficiency, Gogoi rose meteorically through the judicial ranks.
Through his tenure as the CJI, Gogoi heard several cases in which people were left wondering whether this was the same judge who had been part of the press conference against Misra. Many of the matters he heard, besides the Rafale case, progressed in a way quite convenient for the government. This included the Ayodhya temple dispute, the reading down of Article 370 in Jammu and Kashmir, Alok Verma’s removal as the director of the Central Bureau of Investigation, and several others. There was an apparent shift in the attitude of pro-government television channels, such as Republic TV and Times Now, towards him. While these channels had criticised the four judges for holding the press conference, they became Gogoi’s staunch defenders when, during his tenure as CJI, allegations of sexual harassment against him came out.
There are several theories among legal circles about what could have been the reason for Gogoi’s trajectory from a perceived liberal maverick to the favourite chief justice of the government’s cheerleaders. In January 2019, the former Supreme Court judge Markandey Katju made serious accusations against Gogoi that added to the speculation. Katju called for Gogoi to “come clean.” He wrote that, in 2016, when TS Thakur was the CJI, the collegium—a committee of the five most senior Supreme Court judges—had recommended the transfer of Valmiki Mehta, then a judge of the Delhi High Court, because of “some very serious charges” against him. Gogoi’s daughter is married to Mehta’s son. “What I have heard,” Katju wrote, “is that Justice Gogoi, who was then a puisne Judge in the Supreme Court, went to PM Modi or some other high ranking Minister in Modi’s cabinet and begged that his sambandhi”—relative—“be not transferred.” If this was true, Katju said, “then Gogoi has obviously taken an obligation from the BJP govt which he has to return.” Some people I spoke to speculated whether the sexual harassment allegations facing Gogoi had made him vulnerable to pressure, causing him to act ever more favourably towards the government as his tenure progressed.
“You’ll never have a smoking gun for any of this,” the legal scholar Gautam Bhatia told me. “But honestly, it’s very hard to explain a lot of things he did. A lot of things that simply do not make sense unless you think that he was following instructions in some respect. Even accounting for the Supreme Court’s incoherence and lack of logic, there are things that just can’t be explained without thinking that there’s something wrong here.”
“Gogoi’s most valuable gift to the Bharatiya Janata Party government was clearly the update of Assam’s National Register of Citizens, which provided the government a roadmap for a national policy that threatens the citizenship of India’s nearly two hundred million Muslims.”
Gogoi’s most valuable gift to the Bharatiya Janata Party government was clearly the update of Assam’s National Register of Citizens, which provided the government a roadmap for a major national policy. From April 2013 to October 2019, Gogoi heard several cases related to the NRC. Through them, he laid down a framework for the detection and possible deportation of those branded “foreigners” in the state. The exercise proposed stripping millions of individuals of their Indian citizenship, after subjecting them to a gruelling and hyper-technical evaluation process that allowed no room for inevitable discrepancies. The costs of this punishing process were grave and often irreversible, but Gogoi seemed to show little consideration for those who fell by the wayside. Instead, he led the Supreme Court bench that monitored, supervised and administered a project that was supposed to have been the responsibility of the government.
However, any benefit Gogoi’s supervision of the project might have caused the BJP could be inadvertent. Assam’s politics since Independence have in large part been driven by an anti-immigrant movement that has sought the identification and deportation of illegal immigrants. Gogoi hails from the Ahom, one of the communities that have led the movement. The anti-immigrant sentiment held by many of the state’s dominant communities was reflected in the hearings Gogoi held in the NRC cases. The activist Harsh Mander, who had filed a petition about the inhuman living conditions in the state’s detention centres—parts of prisons where those declared to be foreigners are being held—found Gogoi using his petition to seek more detentions and expedite deportations. Mander filed an application seeking Gogoi’s recusal from the case, reasoning that the judge’s remarks during the hearings showed his “subconscious bias” on the issue—an application that Gogoi dismissed with disdain.
Gogoi’s demands and deadlines served well the ruling BJP governments at the centre and in Assam. The case gave the BJP a roadmap for a far more ambitious and insidious plan: a countrywide NRC. The BJP began turning other cogs in its machine. The Modi government passed executive orders that introduced religious distinctions into the rules governing entry into India. It passed the Citizenship (Amendment) Act, which provides members of most non-Muslim communities previously judged to be illegal immigrants an easy path to citizenship. Together, the CAA and the spectre of a countrywide NRC threaten the citizenship of India’s nearly two hundred million Muslims. The government has already begun gathering data for a National Population Register, which would be used in preparation of the NRC. With ongoing protests across the country against the BJP’s actions and plans, Gogoi’s successor as the CJI, Sharad Arvind Bobde, is heading the bench currently hearing pleas challenging the constitutional validity of the CAA.
“Gogoi was a judge; he is supposed to rise above his personal interests and prejudices,” Sumita Hazarika, a Supreme Court advocate, told me. “But I don’t think he did that with the NRC. If he felt so strongly about it, if he couldn’t detach himself from the issue, more the reason for him to not do the case in the first place. Coming from Assam, he seems to have his own personal agenda, which he was trying to fulfil through the court and using his power as a judge. I think he should not have dealt with the matter at all.”
“The fact is that he was the most disappointing chief justice because we had such high expectations of him,” the senior advocate Chander Uday Singh said. “As far as I’m concerned, the less said about Gogoi, the better. He’s an unmitigated disaster, one of the worst chief justices we’ve ever had.”
BORN ON 1 NOVEMBER 1954, in the Dibrugarh district of upper Assam, Ranjan Gogoi enjoyed considerable social, economic and political privilege. Gogoi’s ancestors on his mother’s side can be traced to the Ahom dynasty, which ruled over Assam for about six hundred years. The Ahoms themselves were once migrants to the area. The first Ahom king, Sukapha, is said to have left Maulang—the modern-day Chinese province of Yunnan—in 1215, and wandered for thirteen years before establishing his kingdom in Assam. In 2018, scientific studies showed a genetic relation between the Ahoms and the modern-day Thai population.
Gogoi’s maternal grandparents were both politicians in the Congress party. His grandfather, Jogesh Chandra Borgohain, was a member of Assam’s legislative assembly before Independence. His grandmother, Padmakumari Gohain, was a Congress MLA elected to three terms, in 1957, 1962 and 1967. She became Assam’s first woman cabinet minister, serving as the minister for social welfare, sericulture and weaving in the early 1970s.
Gogoi’s mother, Shanti, did not take to politics. She is a well-known social activist in Assam, and has authored several books. In 2000, she founded the Socio Educational Welfare Association, a Dibrugarh-based NGO that aims to serve marginalised communities in Assam. At the early age of 16, Shanti married Keshab Chandra Gogoi.
Keshab Chandra was a wealthy, successful lawyer who practised only in Dibrugarh, with a specialisation in criminal and excise law. He joined politics in 1978 and contested the state assembly elections from the Dibrugarh constituency as a member of the Janata Party. He won the seat, and entered the political fray just ahead of the Assam Agitation, which began the following year. Soon after, he switched to the Congress. In 1982, in the midst of the agitation, Keshab Chandra served as the state’s chief minister for two months before the governor dissolved the assembly and president’s rule was imposed in the state for the third time since the agitation began.
Keshab Chandra continued to contest assembly elections from Dibrugarh as a Congress candidate and won every time, until 1996. That year, he split from the party and contested from a rival faction, only to be defeated by the Congress candidate. He died two years later.
Despite the dominant presence of politics and law in the household, according to his family, Ranjan Gogoi was interested in neither in his childhood. In early October, on the front porch of his family home on Dibrugarh’s KC Gogoi Path—named after his father—I sat with Gogoi’s mother, and with Nandita and Nalin Hazarika—Gogoi’s youngest sister and her husband. Shanti, now 85 years old, was more comfortable speaking in Assamese, and Nalin translated for me as she spoke.
“He was quite serious in his childhood,” Shanti Gogoi said. “He had friends, but he was not very close to anyone. He was very straightforward and very upright about rules. If he was playing a game with his brother or anyone else, and somebody was breaking a rule, he would be very strict about it.”
Gogoi studied at Don Bosco School in Dibrugarh, a twenty-minute walk from his house. “He was very studious,” Shanti said. Nandita recalled an incident when, during his tenth-standard exams, Gogoi wrote eighty pages and the invigilator came to check what he was writing. “In his school life, as in his work life, he was very serious,” Nandita said.
“The senior advocate KN Choudhary accused Gogoi of delaying the appointment of Amitava Roy, the former CJI’s childhood friend and colleague, in order to ensure that they were not elevated together.”
After completing high school, Gogoi went to Cotton College in Guwahati for his pre-university studies. He developed a close relationship with his history teacher, Udayaditya Bharali, a prominent Assamese historian and intellectual who is also Ahom by ethnicity. Bharali remembered Gogoi very fondly. “He was one of my best students,” Bharali told me at his house in Guwahati’s South Sarania locality. “He was very friendly and respectful.” He recalled that Gogoi approached him after their first class to ask for recommendations for books he should read. “He used to meet me very frequently—definitely once in a month. He became so friendly.”
Over the years, Gogoi continued to occasionally meet Bharali, whom he held in high esteem. In 2003, while still a judge in the Gauhati High Court, he invited Bharali to be the chief guest to release a book his mother had written. Though Bharali told me that the two of them did not discuss the Assam agitation, it is likely that Gogoi was influenced by his history teacher’s articles on the issue. Between 1996 and 2001, Bharali wrote over seventy articles in Asomiya Pratidin—an Assamese daily that is currently the most widely circulated newspaper in the state—on the need to update the NRC.
“I was the person who started a process in Assam, in 1996, where I stated that there is only one solution to the foreign nationals in Assam: to prepare the complete list of citizens in Assam based on the Assam Accord,” Bharali said. “All the articles had one point: to solve the foreign-nationals problem in Assam, you forget about the foreign nationals, you concentrate on the citizens. You get all the citizens united in a single register, taking 25 March 1971 as the cut-off date, and the rest will automatically be either people from other parts of India or foreigners.” Bharali added, “Finally, it was Ranjan who did it. I am very grateful.” After Gogoi became chief justice, Bharali said, he wrote an “emotional article” saying that one of his best students had finally updated the NRC.
Bharali’s influence on the former CJI is also reflected in the fact that, after Cotton College, Gogoi pursued further studies in history, at St Stephen’s College in Delhi. “He was always an arts person,” Nandita told me. “He never liked science and he hated maths. But he had a sharp memory. Dates, figures, he remembered everything. I think he had a photographic memory.”
Nilay Dutta, a senior lawyer and the advocate general of Arunachal Pradesh, was Gogoi’s senior at St Stephen’s. “He was a straightforward guy,” Dutta said. “He was not an extrovert, but he was very strong, tough-willed.” According to him, Gogoi was never political nor involved in student politics, even during the Emergency. After graduating from St Stephen’s, Gogoi pursued a master’s degree in history from the University of Delhi.
Nandita said that Gogoi “never showed an inclination towards law.” After completing his MA, Gogoi appeared for the civil-services examination, but he did not get selected for a service of his choice. Shanti noted that Gogoi believed that “whatever he does, he must do well. That is why after he did not get the service of his choice, he decided that he will never do services again.”
Instead, Gogoi decided to pursue law, joining Delhi University’s law faculty in the mid 1970s. In his first letter to his parents from law school, his mother recalled, Gogoi wrote, “I never knew law was so interesting. If I had known, I would have worked with you from the start,” referring to his father’s law practice in Dibrugarh. His time at the law faculty overlapped with that of several other future judges, including Madan Lokur, Deepak Gupta and Rohinton Nariman. Lokur had also studied history at St Stephen’s, though he was one year junior to Gogoi.
In 1978, after completing his legal education, Gogoi joined the chambers of JP Bhattacharjee, a prominent senior advocate practising in Guwahati. Bhattacharjee, who specialised in tax, service and company matters, also served as the advocate general of Nagaland, because of which his office received a lot of cases from the hill regions around Assam.
Despite being a young lawyer working in Guwahati during the Assam Agitation, Gogoi maintained his distance from the movement. One explanation for this would be his father’s involvement with the Congress. Nandita said one of the reasons the issue was not discussed at the Gogoi household was because her father “was in Congress and the agitation was anti-Congress.” She said that Keshab Chandra spoke very less. “After he returned home, every day he would have dinner at 9 pm and then go to bed, even when he was the chief minister.”
A lawyer who has known Gogoi since the 1980s, and requested not to be identified, attributed Gogoi’s early disinterest in the movement to his careerism. “He never had any inclination for any social cause,” the lawyer told me. “He would remain in court only as long as his matter was there, and as soon as it was over, he would go home.” The lawyer added, “To do some social service or take up some cause, you need to have courage.”
Lokur, who would go on to serve with Gogoi in both the Gauhati High Court and the Supreme Court, noted that Gogoi “was not passionate about social justice.” In 2014, he said, HL Dattu, the CJI at the time, constituted a two-judge “social-justice bench” headed by Lokur. When TS Thakur became the CJI, he dissolved the bench. Thakur’s successor, JS Khehar, reconstituted it as a “social-justice and environment bench.” But Gogoi dissolved the bench again once he took charge.
An email sent to the official address Gogoi used as the CJI and a letter posted to his house in Guwahati both went unanswered. I was unable to get Gogoi’s personal email address and phone number, despite several efforts. His close friends Pranab Pathak and SN Sarma, both senior advocates, said that they did not know of any email address he currently used, and declined to share his personal number. Nandita told me that Gogoi would not speak to the press and refused to provide any contact details. Lokur said he did not have any personal phone number or email address for Gogoi. Officials at the Supreme Court and Gauhati High Court registries said that the former chief justice had not left any contact details.
Gogoi’s ambition worked well for him through the 1980s, as he made his way up the ranks within Bhattacharjee’s chamber. In 1991, he started his independent practice at the Gauhati High Court. While most lawyers I spoke to in Assam sang Gogoi’s praises, there were a few who were not as kind. KN Choudhary, another Guwahati-based senior advocate who knew Gogoi from his days as a litigator, said that the future CJI had no great practice to boast of. “Until his elevation, he only had few revenue cases, but nothing else,” Choudhary said.
Choudhary accused Gogoi of delaying the appointment of Amitava Roy, the former CJI’s childhood friend and colleague, in order to ensure that they were not elevated together. “In 2000, the recommendation of both their names went together,” Choudhary said. “Gogoi became a judge in 2001, and Amitava Roy was appointed in 2002, after 17 months. If the files would have been processed together, then all throughout Amitava Roy would have been senior to Gogoi, so he would have missed the bar as far as Supreme Court is concerned. Amitava Roy would have retired as the chief justice of India, and Gogoi would have retired as the chief justice of the Gauhati High Court.” A former high-court judge also confirmed these allegations about the circumstances of Gogoi’s elevation, adding that the then law minister Arun Jaitley and Gogoi were “good friends” and that the former had ensured that Roy would not be senior to Gogoi.
“If a man can go to the extent of scuttling somebody’s prospects in this fashion, you can imagine how desperate he is,” Choudhary told me. “His friend from childhood, and he scuttled his progression. That makes it very clear, what sort of man he is.”
SN Sarma recalled that Gogoi often blew his top at lawyers if they were unprepared. It did not matter if they were junior or senior. It was common for him to shout at lawyers, Sarma said, adding that he had had several screaming matches with Gogoi in court.
Gogoi was also known to throw case files in court when he lost his temper. Sarma recalled a case he was arguing before Gogoi, in which one of the parties had submitted a thick pile of documents to the court. Sarma and his colleagues knew Gogoi would not be happy about it. Sarma and Nilay Dutta got into a bet over whether Gogoi would be able to throw the files as they were too heavy.
During the hearing, when Gogoi saw the documents, he lost his temper, as expected. “Do you think this is a trial court?” he asked. “Go and produce this before the labour court!” Sarma gestured how Gogoi then tried to pick up the files, but failed. Instead of throwing the files, he used all his strength to push them off his table. Dutta and Sarma started laughing. When he was told about the bet, Gogoi started laughing too.
Efficiency remained Gogoi’s primary concern as a judge. Sarma recalled that Gogoi brought about major changes in how judges conducted themselves in the Gauhati High Court through leading by example. At the time, Sarma said, judges would not read files properly, because of which lawyers were forced to brief the judges on the entire history of the case at every hearing. But Gogoi “knew the entire pleadings. He used to take up sixty to seventy to eighty cases per day, and the other judges noticed this, and they also started reading the cases before coming to court.”
Another story I heard from multiple lawyers testified to Gogoi’s work ethic. In October 2008, Guwahati was hit by serial blasts, including at a district court that stands adjacent to the high-court building. When a lawyer came into Gogoi’s court to inform him that there had been a bomb blast, he responded, “Well, the work must go on.” One of the lawyers who recounted this incident to me noted that Gogoi continued to hold court for a little while before he realised that all the other judges were rising from their courts because of the severity of the situation. “That is how unconcerned he was,” the lawyer said.
Gogoi remained at the Gauhati High Court until September 2010, when he was transferred to the Punjab and Haryana High Court, where he served as chief justice for one year, from February 2011.
According to the lawyer who had known Gogoi since the 1980s, the former CJI has had influence in judicial appointments at the Gauhati High Court for a while. His former colleague from Bhattacharjee’s chamber, Hrishikesh Roy, was elevated to the position of a judge in October 2006.
Even as the CJI, Gogoi has overseen several controversial appointments. Recently, Saumitra Saikia, once a junior in Gogoi’s chamber, was appointed as an additional judge at the Gauhati High Court. The judge Surya Kant was appointed despite allegations of corruption and tax evasion. Sanjiv Khanna was appointed, overruling an earlier collegium proposal to elevate his senior from the Delhi High Court, Pradeep Nandrajog; and Dinesh Maheshwari entered the apex court despite accusations that he had been acting under executive influence.
While Gogoi’s record bears out this pursuit of efficiency, it does not reflect certain other qualities of a good judge: transparency in judicial conduct, a concern for public welfare and basic compassion. Sanjay Hegde told me that “there was no great case of individual liberty where he had sided with the individual against the state. One is hard pressed to find any of those.”
IN GOGOI’S ENTIRE TENURE at the Supreme Court, first as a judge and then as the CJI, the January 2018 press conference stands out as an aberration, where he seems to have taken an ethical stand despite a risk to his career.
The decision to hold the conference was triggered by the assignment of a high-profile case, in which petitioners sought an investigation into the suspicious death of BH Loya, a judge at a special CBI court in Maharashtra. At the time of his death, in 2014, Loya was adjudicating the trial into an extrajudicial killing of the gangster Sohrabuddin Sheikh, in which the current home minister, Amit Shah, was the prime accused.
Jasti Chelameswar, one of the four judges at the press conference, noted that for a few months the group had been raising the issue of assigning sensitive cases to particular judges. Early on the day of the conference, they had approached the chief justice “with a specific request.” The Loya petitions were listed before a two-judge bench led by Arun Mishra, who ranked tenth in seniority among the judges at the time. When asked at the press conference if the specific request pertained to the Loya petitions—which were listed to be heard before lunch that day—Gogoi answered, “Yes.”
In late November, I spoke to Madan Lokur—who also took part in the press conference—at his office in Delhi. Lokur retired from the Supreme Court in December 2018. “We got to know that sensitive cases were going to a particular bench,” he said. “We felt that Chief Justice Misra was not exercising his powers as chief justice in a proper manner. We brought it to his notice, we sent him a letter, but we received no response. When we took the issue to him that morning, he was intransigent. The decision to hold the press conference was taken after that.”
While Lokur had shared the limelight with Gogoi at the time, his opinion of the former chief justice had clearly changed. Three days after Gogoi retired, Lokur wrote an article in the Hindustan Times in which he called upon Gogoi’s successor “to restore the credibility and stature of what is incorrectly described as the most powerful court in the world.” Lokur pulled no punches, though he refrained from naming Gogoi. “A few recent judicial verdicts and administrative decisions seem to suggest that some of our judges need to show some backbone and spine,” he wrote.
“In addition to presiding over his own case, Gogoi appeared to have refuted the veracity of the sexual harassment allegations against him without offering the complainant an opportunity to speak before the court.” I asked him about this during our meeting. “As an observer, I have noticed in the last two or three years that there has been a pattern of assigning certain cases to a specific bench,” he said. “Dipak Misra was responsible for the creation of the pattern, and the pattern does not seem to have changed under Ranjan Gogoi.” He emphasised that this was a cause for concern only because it was becoming a “pattern.” Lokur conceded that while the pattern was limited to one bench under Misra, under Gogoi, there were multiple judges who would be assigned sensitive cases.
The failure of the Supreme Court as an institution, and of its judges as individuals, to keep a check on Gogoi’s improprieties as chief justice was most starkly visible after a former Supreme Court employee accused him of sexual harassment and persecution, in a sworn affidavit dated 19 April 2019. The former employee described two instances of molestation that took place in October 2018, days after Gogoi was sworn in as the CJI. She stated that after she refused Gogoi’s sexual advances, she and her family faced “consistent persecution,” including loss of their jobs, arrest and even torture in police custody. “I say that the CJI has misused his position, office and authority and abused his clout and power to influence the police,” she wrote. “I have been victimised for resisting and refusing the unwanted sexual advances of the CJI and my entire family has also been victimised and harassed due to that.”
The next day, hours after The Caravan and three other publications broke the news, the Supreme Court announced a special sitting, on a Saturday, in a case dramatically titled, “In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary.” Gogoi convened a bench made up of himself, Arun Mishra and Sanjiv Khanna—in clear violation of a basic principle of justice that a judge cannot adjudicate their own cause. A court notice announced that the matter was being taken up on a special mention made by the solicitor general, Tushar Mehta. The former chief justice then proceeded to proclaim his innocence, claiming that the accusations against him were part of a larger conspiracy to destabilise the judiciary, and raised allegations about the criminal character of the complainant. “Things have gone too far,” Gogoi said, in reference to the accusation against him, noting that he “should not stoop low even in denying it.”
The mind boggles at the impropriety of these proceedings. In addition to presiding over his own case, Gogoi appeared to have refuted the veracity of the complainant’s allegations without offering her an opportunity to speak before the court. The other judges acquiesced to be party to this. In its order of the day’s hearing, the court left it to the “wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary.”
The order omitted the chief justice’s name from the list of judges presiding over the case—ostensibly to erase the fact that Gogoi had been a judge in his own cause. “Removing a judge’s name from an order is wrong,” Lokur told me. “For it to happen, there has to be a specific instruction in that regard from that judge.”
The proceedings were widely condemned. The Supreme Court Bar Association and the Supreme Court Advocates-on-Record Association passed resolutions against how the court had handled the case, calling upon the full court to investigate the allegations. The Women in Criminal Law Association demanded that the court conduct a “fair, just and reasonable” inquiry, stressing the precedent it would set. Instead of heeding the advice, the court adopted an approach that was yet again an embarrassment to the institution.
Three days after the hearing, the Supreme Court appointed a three-member committee comprising the judges SA Bobde, NV Ramana and Indira Banerjee to conduct an inquiry into the allegations. The complainant opposed Ramana’s presence in the committee, noting that he was known to be close to Gogoi, and the judge Indu Malhotra replaced him on the committee. From the outset, the committee informed the complainant that the proceedings were not part of a sexual-harassment inquiry, a departmental proceeding, or even an in-house proceeding.
According to the complainant, she was directed not to speak to the media, was not allowed a lawyer, was not given a copy of her deposition and was not allowed to record the proceedings. On 30 April, the complainant issued a press statement withdrawing from the proceedings. “I felt I was not likely to get justice from this committee and so I am no longer participating,” she wrote. The judges continued without her. On 6 May, the Supreme Court uploaded a notice on its website stating that the committee had “found no substance in the allegations.” The complainant was denied a copy of the committee’s report.
Most of Gogoi’s friends and colleagues dismissed the allegations against him. But a few believed that the manner in which he had handled the situation lent credence to the accusations. “That he has even given a scope for that sort of controversy is bad enough,” the lawyer who spoke of Gogoi’s response to the Guwahati bomb blast said. “Then he reacted like a fool.” When I asked the lawyer specifically if he believed the allegations, he responded, “I don’t know, but the way it has been handled makes it seem like there was something.” Similarly, the lawyer who has known Gogoi since the 1980s noted, “The manner in which it was dealt does not look well for the judiciary.” He added, “How can you judge your own cause? In which jurisprudence? She was entitled to better procedural safeguards.”
Two weeks after the committee dismissed the former employee’s complaint, Lokur wrote an article in the Indian Express criticising the proceedings. “To me, the trappings of institutional bias are clearly made out whichever way one looks at the events of April 20,” he wrote. Lokur’s article ended with a plea: “Can any member of the internal committee or somebody from the Supreme Court please help?”
During our meeting, he said, “I did hope that someone would help the staffer.” He, too, criticised Gogoi’s handling of the accusations. “The person against whom allegations are made should stay out of it.” I asked him how these sort of issues should be addressed. “Ideally, there would be guidelines in place. But in its absence, the next senior-most judge should select the judges who will conduct the inquiry. Ideally, two, three and four”—the judges second, third and fourth in seniority—“should sit over the cases.” The fundamental principle guiding the proceedings, Lokur said, was that “it should be done in a manner that makes it comfortable for the complainant to speak.”
The Supreme Court and Gogoi’s handling of the issue fell woefully short of this standard. It was apparent to anyone paying attention that the proceedings were not conducted to arrive at the truth. In June 2019, the Delhi police reinstated the complainant’s husband and brother-in-law into the service, both of whom had lost their jobs after the complaint. In December, the complainant was also reinstated to the Supreme Court, effective from the date of termination of her services, with full back pay. The Hindustan Times reported that the complainant had to first submit written assurance that she would not pursue the matter further, and that a “top government functionary” assured her that “everything would be sorted out” if she did so. Her advocate, Vrinda Grover, noted, “The SC staffer stands vindicated. Her reinstatement with full back wages is an acknowledgment of the truth of her affidavit, complaining of sexual harassment and the systematic victimisation suffered by her.”
GOGOI”S ADJUDICATION of many cases as the CJI was highly controversial. ============== On 5 August 2019, Amit Shah announced in parliament that the Indian government was effectively abrogating Article 370 of the Constitution, which provided for Jammu and Kashmir’s special status. Anticipating protests from the people of Kashmir, the government put the state under an indefinite lockdown, suspending internet services and beefing up the presence of the armed forces in Kashmir. Since then, there have been widespread arrests and detentions, and horrific accounts of abuse and torture have emerged from the valley.
That month, two habeas-corpus petitions were filed before the Supreme Court, demanding that individuals believed to have been illegally detained by the Indian state be produced in court. Both petitions were heard by a bench led by Gogoi, and his response to the cases suggest an abdication of judicial principles and responsibility. In one case, he did not list the petition for hearing until 18 days after it was filed. “Habeas-corpus writs should be taken up on priority, and any exception should be treated as an aberration,” Lokur told me.
After listing the cases, Gogoi did not issue a notice to the centre and made no attempt to inquire whether the concerned individuals had been illegally detained. On this aspect, too, Lokur told me, “If there is an allegation of illegal detention, then the court should issue notice.” Gogoi violated many legal norms in handling these cases. He directed the petitioners to visit their concerned detainees in Kashmir. “Under the Supreme Court Rules of 2013, the detainee has to be produced before the court,” Lokur noted. Gogoi also directed the petitioners to submit an affidavit of their visit upon their return. “I do not know under what provision this has been done,” Lokur said.
The habeas-corpus writs were not the only Kashmir-related petitions that Gogoi dealt with in a suspicious manner. In early September, Iltija Mufti, the daughter of the former Jammu and Kashmir chief minister Mehbooba Mufti, sought the Supreme Court’s permission to visit her mother—who has been in custody since the lockdown began—and to travel within Srinagar. While Gogoi granted her permission, subject to the agreement of the local government authorities, he asked in court while hearing the case, “Why do you want to move around? It is very cold in Srinagar.”
On 10 August, Anuradha Bhasin, the executive editor of the Kashmir Times, filed a petition challenging the communication blackout in the state. The case was listed for its first proper hearing almost a month later, on 5 September. At its next effective hearing, on 1 October, Gogoi listed it before a bench headed by NV Ramana, Subhash Reddy and Bhushan Gavai. In January this year, five months after the case was filed, the court passed a judgment criticising the Indian government for the indefinite internet shutdown in Kashmir, but without any order directing the state to revoke the suspension.
In another curious order, Gogoi permitted the Congress politician Ghulam Nabi Azad to visit Srinagar on the condition that he would not “indulge in any political rally or political activity during his visit.” The order noted that Azad had offered this undertaking “of his own volition,” though it was left unclear what comprised “political activity” and why the restriction was necessary. “The visit will solely be concerned with making an assessment of the impact of the present situation on the life of the daily wage earners, if any,” the order stated.
In September, Enakshi Ganguly, an eminent child-rights expert, filed a petition challenging the illegal detention of minors in Jammu and Kashmir. Once again, instead of treating the petition with the urgency that it deserved, a Supreme Court bench led by Gogoi procrastinated. Gogoi first directed the petitioner to approach the Jammu and Kashmir High Court. When the lawyer responded that the shutdown had made access to the high court difficult, Gogoi responded, “It’s very, very serious if people are unable to approach the High Court, I will myself visit Srinagar.” This raises the question whether Gogoi did not recognise until that moment that the crackdown in Kashmir was, in fact, very serious. Gogoi then directed the chief justice of the Jammu and Kashmir High Court to submit a report on the inaccessibility of the court, and told the petitioner, “If J&K HC chief justice’s report indicates contrary, then be ready for the consequences.”
It is unclear why Gogoi made a threat to the petitioner, instead of dealing with such cases on priority. “Coming to Supreme Court under Article 32 is a fundamental right,” Lokur told me. “The Supreme Court should entertain these petitions. It should not direct the petitioners to go to the high court except under very exceptional circumstances.”
Ultimately, the matter was placed before the same bench as Bhasin’s petition. In December, the court dismissed Ganguly’s petition, citing the report of a four-member committee that had found no cases of illegal detention of children. The court also noted that it was aware of the media reports of juvenile detentions, and accordingly held that “if there are individual cases of illegal detention, then they are at liberty to approach the appropriate legal forum for redressal of their grievances.”
Meanwhile, the constitutional challenge to the government’s actions on Kashmir is still being heard. The Supreme Court’s response to the Kashmir cases, at best, betrays a fundamental lack of concern for, or understanding of, the urgency of the situation. At worst, it indicates complicity in maintaining the status quo. For the BJP, the reading down of Article 370 was a tremendous political victory and a significant element of its Hindutva agenda. The Supreme Court’s approach to the cases allowed the Modi government to proclaim the greatness of its achievements without any legal interference.
In August, Gogoi had also begun daily hearings in the case that would ultimately become another cause for celebration for the BJP and the Sangh: the Babri Masjid–Ram Janmabhoomi dispute. At one hearing, Gogoi had referred Kashmir-related petitions to a different bench, stating that he was too occupied with the Babri Masjid case. In early November, almost three decades after Hindutva mobs demolished the mosque, demanding that a Ram temple be built at the site, the Gogoi-led bench gave judicial clearance for building the temple.
In a cryptic judgment, which did not reveal its author, the court ruled that idols of Ram had been illegally smuggled into the disputed site and that the Babri Masjid’s demolition was also illegal, making the final decision to build a temple at the site puzzling. To compensate for the admitted illegalities committed against the Muslim community, the court also directed an allotment of five acres of alternate land in Ayodhya to the Sunni Central Waqf Board. In a subsequent article in The Hindu, the lawyers Suhrith Parthasarathy and Gautam Bhatia questioned, “What else is the final relief—of giving the Muslim parties some land at another site to make it up to them for the destruction of the mosque—but only another way of telling them, ‘you are equal, but must be separate?’”
THE HISTORY OF ASSAM is marked by co ntinuous migration. In the nineteenth century, the British discovered the fertility of Assamese soil and its potential for large-scale tea production. As the British converted large swathes of land into tea plantations, they met the demand for labour by bringing in workers from various parts of the country, including Uttar Pradesh, Madhya Pradesh, Bihar, Odisha and Tamil Nadu. Most of these migrants went on to settle in Assam. Meanwhile, to run the plantations, the British brought in Bengali Hindus from Calcutta—the capital of British India at the time. In fact, among the first Indians to have a colonial education, English-speaking Bengali Hindus were continuously brought in to staff administrative positions in Assam, which also led others from the community to migrate and settle in the state. Bengali became the language of the administration, and so began anti-Bengali sentiment among the Assamese-speaking communities of the state.
A Bengali family who escaped a massacre of predominantly Bengali Muslims at the village of Nellie in Assam in February 1983. AP In the early twentieth century, with the construction of railway lines that connected East Bengal to the state, many Bengali Muslims migrated to Assam. Unlike their middle-class Hindu counterparts, these immigrants were landless and seeking agricultural land. The Bengali Muslims settled in Assam’s marshlands and chars—sandbars along the Brahmaputra—encouraged by the British to enhance food production and generate greater tax revenue. In the second decade of the twentieth century, Bengali Muslims migrated in increasingly large numbers, leading the British to introduce the Line System, in 1916, in the wake of opposition from the locals. The line demarcated areas for migrants and locals, forcing many of them to remain in the chars, which were often eroded as the Brahmaputra shifted its course, continuously creating landlessness for those living along the river.
Migration continued in the following decades, leading CS Mullan, a British census superintendent, to make a now infamous claim that has since been repeated countless times by anti-immigrant activists and politicians of Assam. “Probably the most important event in the province during the last 25 years, likely to alter permanently the whole structure of the Assamese culture and civilization, has been the invasion of a vast horde of land-hungry Bengali immigrants, mostly Muslims from the districts of eastern Bengal,” Mullan wrote in his report on the 1931 census. While East Bengali Muslim migrants adopted the Assamese culture, and the Assamese language as their mother tongue, anti-Bengali sentiment continued rising, with sporadic ethnic violence against Bengalis. The Bengali Muslims became especially reviled among the dominant communities of the state.
Partition led to large-scale migration of both Bengali Hindus and Muslims from East Pakistan into Assam, and the anti-Bengali sentiment came to be expressed as an “anti-immigrant” sentiment. Bengalis came to be seen with suspicion as possible immigrants from East Pakistan. A movement against Bengalis gathered steam, and the Assam government, under the Congress chief minister Gopinath Bordoloi, passed the Immigrants (Expulsion from Assam) Act, 1950. The act empowered the government to order the expulsion, without any trial or judicial process, of any group of persons deemed unsafe to Indian citizens. Thousands of Muslims were evicted from their homes and sent to East Pakistan.
The persecution of Bengali Muslims continued in the 1960s. The Congress state government, under Bimala Prasad Chaliha, expelled hundreds of thousands of people who had been branded illegal immigrants.
The 1970s witnessed another wave of migration, sparked by the 1971 war for the liberation of Bangladesh. The incident that triggered Assam’s six-year-long anti-foreigner agitation took place at the close of the decade. In 1979, following the untimely death of Hiralal Patwari, a sitting MP from Assam’s Mangaldai seat, the constituency was set for by-elections. Ahead of the elections, there were reports of a large number of foreign nationals being included in the Mangaldai electoral roll.
“In a cryptic judgment, which did not reveal its author, the court ruled that idols of Ram had been illegally smuggled into the disputed site and that the Babri Masjid’s demolition was also illegal, making the final decision to build a temple at the site puzzling.” According to Abdul Mannan’s book Infiltration: Genesis of Assam Movement, Hiranya Kumar Bhattacharya, the deputy inspector general, and Premkanta Mahanta, the superintendent of police, “joined hands to embark on a concerted venture to inject into the Assamese minds the notion that millions of Bangladeshis had already swamped Assam posing a threat to the existence of Assamese nationality.” Mannan notes that Bhattacharya “came up with the idea that since more time was granted, the names of foreign nationals on the rolls of 1978 might also be struck off.” As a result of their efforts, the border police received complaints against 47,658 voters, and 36,780 of them were identified as foreigners. In his memoir, Mahanta wrote, “I affirm that … the six-year-long Assam movement would not have taken place if we had not come together at this point.”
Once these numbers became public, sentiment in Assam shifted dramatically. The All Assam Students’ Union held a 12-hour bandh demanding what came to be known as the three Ds: the detection of illegal immigrants, their deletion from Assam’s voter rolls and their deportation out of the country. In November 1979, nearly seven hundred thousand people in Guwahati and an estimated two million people across Assam participated in a protest, courting arrest. The next month, the protestors carried out an economic blockade, preventing the movement of crude oil from Assam to the rest of the country. The state was put under president’s rule. That year, elections were cancelled in 12 out of Assam’s 14 parliamentary constituencies.
As the movement grew popular, Assam’s Bengal-origin communities—both Hindus and Muslims—were once again subjected to increasing hostility and persecution. Soon, reports emerged of violence against tea workers and attempts to shut down tea plantations. As the persecution of Assam’s minority communities continued unabated, in March 1980, the All Assam Minority Students’ Union was formed after several minority-rights’ organisations came together to counter AASU. The AAMSU demanded that all migrants who entered Assam before 1971 be given citizenship. Meanwhile, in November 1980, the army was called in to the state to break the oil blockade.
The next month, after almost a year of president’s rule, the Congress appointed Anwara Taimur as the new chief minister. Taimur’s government lasted six months, before president’s rule was again declared. Keshab Chandra Gogoi became chief minister in January 1982, but his government lasted just two months before he realised he did not have a majority in the assembly. President’s rule was re-imposed.
The efforts of the Congress, which then held power at the centre, to squash the protests made them flare up even more. The party set out to clear the state bureaucracy of those sympathetic to the agitation. Indira Gandhi, the prime minister, was determined to hold assembly elections in the state the following year, without revising the electoral rolls that had precipitated the entire Assam Agitation.
The Indira Gandhi government’s decision to conduct the elections led to tragic consequences of unforeseen magnitude. In February 1983, armed rioters went on a murderous rampage in and around the village of Nellie, in Assam’s Nowgong district, killing over three thousand people, predominantly Bengal-origin Muslims. The election brought to power a Congress government under Hiteswar Saikia, another leader who was Ahom by ethnicity.
On 15 August 1985, following a year of negotiations, an agreement was signed between the government of India, the leaders of the Assam movement and the state government to put an end to the agitation, in what came to be known as the Assam Accord. The accord promised to identify illegal immigrants in the state, delete them from the voter rolls and deport them from Assam. To this end, it created three categories of Assamese residents: those who have been in the state since before 1966, those who entered between 1 January 1966 and 24 March 1971, and those who entered after the 1971 cut-off date. Only the individuals forming the first category would be immediately treated as regular residents of Assam. Those falling in the second category would be deleted from the voter rolls for a period of ten years and those falling in the third category would be continuously identified and expelled from the state.
That year, the central government also amended the Citizenship Act, 1955, to introduce Section 6A, which provided for the implementation of the accord. The provision gave legislative impetus to the accord by introducing the three categories into law, effectively creating a special framework to govern Indian citizenship for Assamese residents. The identification and deportation of foreigners required an updation of Assam’s 1951 NRC. Yet, successive governments in Assam and at the centre failed to implement the law.
After the accord was signed, the Election Commission conducted an intensive revision of the state’s voter rolls, using the 1971 electoral roll as the reference point. On the basis of this revised list of voters, Assam went to elections the same year, and the Asom Gana Parishad, a political offshoot of the AASU led by the erstwhile student leader Prafulla Kumar Mahanta, was voted to power. But the outfit that spearheaded the Assam Agitation did not implement the accord. Instead, in 1987, it demanded another intensive revision using the 1966 electoral roll. Accordingly, the process was repeated and a new final roll was published once again.
The AGP was not the only organisation born out of the Assam movement. The period was also marked by the growing influence of a radical, militant group known as the United Liberation Front of Asom. The ULFA sought to establish a sovereign, socialist Assam. Though it was established in 1979, and grew parallel to the Assam Agitation, the author Sanjib Baruah notes in India Against Itself: Assam and the Politics of Nationality that the group distanced itself from the immigration issue. “ULFA often made its appeal to all Axombaxi—people living in Assam rather than to the Assamese people, a term that can be construed more narrowly—a striking contrast from what was then the mainstream of Assamese subnational discourse,” Baruah writes. “As AGP’s popularity began to decline because of its failure to deliver on the promise to resolve the immigration crisis and because of charges of corruption against many of its young ministers, ULFA’s star began to rise.”
The disillusionment with the AGP government was well known. In a report from May 1990, India Today noted that Mahanta and his colleagues in the AGP were initially “hailed as the true heroes of Assam” but were now seen as “the arch villains,” whereas the members of ULFA, the “guntoting, dreaded underground militants,” were now being seen as the saviours of Assam. In November 1990, president’s rule was imposed in the state, and the centre launched a military counterinsurgency operation against the ULFA, called “Operation Bajrang,” which continued till the following April. While the military operation had some success in destroying many training camps and arresting ULFA cadre, it was unable to break the social legitimacy that the group had gained in the public eye. It would take two more decades before the centre, the state and the ULFA signed a tripartite agreement for the suspension of operations. Talks with the militant group are still ongoing.
In June 1991, the Congress and Hiteshwar Saikia returned to power in Assam. Two years later, the state conducted yet another electoral revision. Then, in 1996, Mahanta returned to power, and the following year, the Election Commission directed another intensive revision of the electoral roll. The repeated updating of the electoral roll at the insistence of successive state and central governments serves to illustrate a point that was repeated to me by several lawyers and activists: there was no political will in Assam to implement the accord.
According to MGVK Bhanu, a former additional chief secretary of Assam who has served in the state bureaucracy since the 1980s, “The issue of foreigners has become a political tool for the politicians to influence elections. Every election since 1985, this has been happening in Assam.” Bhanu believed that the issue could have been addressed through focussed administrative efforts. “But because of the failure in governing the particular issue—or maybe they did not want to touch this issue—everyone has taken advantage of it.”
This is a common refrain across the political spectrum. Samujjal Bhattacharya, the chief advisor of the AASU, told me that the “NRC was never updated due to vote banks.” Similarly, Azizur Rahman, the AAMSU chief advisor, said that “political parties did not want to finish this issue.” Rahman added, “Congress, AGP and BJP are all the same. When they go to Muslim localities, they assure the people that they will ensure that the issue is resolved without any harassment, and when they go to non-Muslim areas, they say, ‘Give us the votes, there are so many infiltrators. We will remove them.’”
According to Mustafa Khadam Hussain, the AAMSU’s legal advisor, “Assam ought to have been the fastest growing state in India,” but it never received an opportunity because the political class focussed on the migration issue. “Assam stands behind Punjab in amount of rice produced in the state,” Hussain told me. “Yet the land is so fertile here that the same area of land in Assam can produce more than double the amount of rice than in Punjab. But who cultivates these rice-growing lands? The Muslims of East Bengali origin. If they were given agricultural equipment like those given to the farmers of Punjab—machinery, water supply, electricity—they will be able to prove it.” Instead, Hussain argued, the state and central governments had kept the immigrant issue alive for political mileage at the cost of the state’s development.
On 15 August 1985, the Assam Accord was signed between the central government, the state government and the leaders of the All Assam Student Union and the All Assam Gana Sangram Parishad, at the residence of Prime Minister Rajiv Gandhi in Delhi..
The electoral revision of 1997, however, introduced one process that affected hundreds of thousands of individuals and continues to bring into question people’s claim to citizenship: the identification of “D-voters.” During the intensive revision, election-commission officials began putting the letter “D”—for doubtful—next to the names of individuals whose citizenship could not be confirmed. Such cases were then referred to the local superintendent of police, who was supposed to conduct an investigation and refer the cases to Foreigners Tribunals when necessary. From the moment they are marked as D-voters till they are cleared by the tribunals—if at all—the concerned individuals are disenfranchised and deprived of the benefits of the public-distribution system.
The D-voter identification process is marred by arbitrary practices designed to increase the number of individuals suspected of illegal immigration, in order to suit the state’s ethnocentric narrative. The process allowed low-level government functionaries to mark certain individuals as D-voters at random, without conducting any investigation or awarding them an opportunity to prove their citizenship. Numerous accounts have surfaced of suspected immigrants whom Foreigners Tribunals had subsequently cleared as Indian citizens—for many, the wait was over twenty years. Several people had no idea when they were marked D-voters, despite having previously voted in elections, and multiple cases emerged of families with only one member absurdly accused of being an illegal immigrant.
When the Election Commission published the revised electoral roll in 1997, over three hundred and seventy thousand individuals were identified as D-voters. According to a submission by the home ministry in the Lok Sabha, as of October 2019 there were a total of 113,738 D-voters in Assam, of whom 70,723 were women. The home ministry has also stated in the Lok Sabha that a total of 468,905 cases had been referred to Assam’s Foreigners Tribunals as of October 2019. In these cases, 114,225 people were declared Indian citizens, and 129,009 people were declared foreigners.
In 2001, the Congress returned to power in the state and Tarun Gogoi was sworn in for the first of his three full terms as chief minister. In 2005, the Congress governments at the centre and the state began talks with the AASU for the implementation of the Assam Accord. On 5 May, they decided at a tripartite meeting to update the 1951 NRC. Accordingly, in 2009, the Congress government at the centre notified rules for how the NRC would be updated.
The next year, the Assam government decided to hold pilot projects for the NRC-updating exercise in the tehsils of Chaygaon and Barpeta, in Kamrup and Barpeta districts, respectively. The exercise was conducted in haste without any standard operating procedure or modalities on the manner in which the information was to be collected or verified. Fearing the anti-Muslim nature of the Assam movement and the potential consequences of the NRC, the AAMSU organised protests against the pilot project in Barpeta. On 21 July 2010, thousands of protestors assembled outside the office of Barpeta’s district magistrate.
“We asked them to call the DM and told them that we would submit our memorandum and leave,” Azizur Rahman, who was present at the protest that day, recalled. “The DM did not come. But suddenly, the superintendent of police arrived.” Soon after, violence ensued, but there are different versions of what transpired. According to Rahman, the police took four AAMSU leaders inside and then opened fire, unprovoked, on the protesters, killing four and injuring over a hundred others, which caused the protesters to turn violent as well. AASU’s Samujjal Bhattacharya, on the other hand, claimed that Barpeta witnessed “violence by the Bangladeshi lobby”—referring to the AAMSU.
“Gogoi thus embarked on his mission to update the NRC, with public opinion on his side. In the course of doing so, he not only violated important principles of jurisprudence but also laid the groundwork for a national policy that threatens the citizenship status of Indian Muslims.”
“You see, the government of India had no experience, neither we had any experience,” Tarun Gogoi told me at his Guwahati office. “There was no procedure on how to proceed. Nobody had any idea. It was the responsibility of the government of India and the Registrar General of India, but he didn’t know the procedure.” Despite this, the former chief minister noted, the state and central governments decided to hold pilot projects. “But when that pilot project was started, there was a great agitation by AAMSU. The police resorted to firing; people were killed. Then we stopped the pilot project.”
However, the government did not give up on the idea. In 2011, the state government started a consultation process and invited all the stakeholders, including both the AASU and the AAMSU, to prepare a standard operating procedure and modalities that would govern the NRC update. After reaching a consensus, the modalities were presented to the Registrar General of India. On 5 December 2013, the registrar general’s office issued a notification for updating the NRC across Assam, to be completed within three years.
By this point, in Guwahati, there was little patience among the Assamese residents for outsiders—particularly those from Delhi—who expressed concern about the NRC project. Broadly speaking, there appeared to be two categories of people: those who supported the NRC because it would identify illegal immigrants in the state, and those who supported it because they believed it would finally put an end to the persecution they had faced. It was rare to meet someone who entirely opposed the project as an idea. Among the former category, most people spoke with a tone of self-assured righteousness about the burdens that the state’s population had already borne. The latter, on the other hand, often spoke with a resignation but were also optimistic that the NRC would finally put an end to questions being raised about their citizenship.
It was at this point that Ranjan Gogoi began hearing two petitions concerning the NRC: one asking that the NRC be updated, and the other challenging the constitutionality of Section 6A of the Citizenship Act. Gogoi thus embarked on his mission to update the NRC, with public opinion on his side. In the course of doing so, he not only violated important principles of jurisprudence but also laid the groundwork for a national policy that threatens the citizenship status of Indian Muslims.
This is Gogoi’s greatest gift to the present BJP government, and undoubtedly a significant part of his legacy as the CJI. But, as several people told me, it is unlikely that Gogoi was acting under government pressure while hearing the NRC cases. “He was acting independently,” the senior advocate and activist Prashant Bhushan told me. “He is an Ahom from Assam, and that community has very strong feelings on the issue of foreigners coming to Assam and diluting the ethnicity of the original Assamese people, which they consider themselves to be.”
IN THE FOUR YEARS after the NGO Assam Public Works filed a petition for the identification and deportation of illegal immigrants, the case was listed six times without any comprehensive hearing—until Gogoi was assigned to the bench. Gogoi attended his first hearing of the NRC case, with HL Gokhale leading the two-judge bench, on 2 April 2013. The court heard the case and listed it for the very next day. The bench then ordered the advocates for the state and central governments to return a week later with specific instructions on how much time was necessary to update the NRC.
Gogoi heard the case as the junior judge for a year, until Gokhale retired in March 2014 and was replaced on the bench by RF Nariman. Throughout the period, the court held consistent hearings to seek updates on the modalities for the project. At every stage, the court stressed the need for expediency, often complaining that the state and central governments were seeking too much time. In his second hearing as the senior judge on the bench, on 20 August 2014, Gogoi directed Prateek Hajela, the state coordinator of the NRC in Assam, to file an undertaking on whether the update could be completed by December 2016.
Before the next hearing, Hajela filed an affidavit with a timeframe for the NRC project. On 23 September, Gogoi and Nariman ordered, “At this stage, the Court would only like to observe that there is scope for compressing the Time Schedule indicated in the affidavit of the State Coordinator. … In fact, the Court is of the view that the different stages of the process, as indicated, can be suitably combined and work thereunder can be carried out simultaneously.” The bench then directed Hajela to submit a revised schedule targeting the completion of the project within 18 months. “Having regard to the nature of the work that is involved in the process of upgrading the NRC, we direct the State Coordinator to submit a report to the Court in a sealed cover indicating the further steps and measures that are required to be taken,” the bench said. It added: “The above information will be laid before the Court by the State Coordinator without any consultation with any Authority whatsoever and without reverting to the State Government or any Authority in the Union Government.”
Throughout the hearings, the court exerted incredible pressure on government officials, monitoring every detail of the operation. It was an opaque process, kept secret from even the central and state governments. As Gautam Bhatia later wrote in The Hindu, “This suggested that the court was no longer content with mere oversight, but would direct both the modalities and the implementation.”
In December 2014, the court passed an order issuing detailed instructions to the central and state governments on various aspects of the immigration issue, including giving 11 months to update the NRC.
In micromanaging the project, Gogoi showed no regard for the separation of powers between the three branches of the democratic state: the legislative, which creates the law; the executive, which implements the law; and the judiciary, which reviews the law in light of the Constitution. Once he became the CJI, Gogoi gained control over the judicial roster and the listing of cases, giving him greater power to determine the course of all NRC cases before the Supreme Court.
In 2014, the BJP was voted to power at the centre and, in 2016, it came to power in Assam. Given the BJP’s ideological foundations and the divisive history of Assam’s immigration issue, the NRC was an opportunity for the Hindu-nationalist party to put its anti-Muslim rhetoric into action. Sarbananda Sonowal, the new chief minister, met the state’s superintendents of police, district collectors and deputy commissioners and asked them to expedite the process of detecting foreigners and preparing the NRC. Meanwhile, in speech after speech in other states, the home minister, Amit Shah, spoke of a pan-India NRC in which the government would remove all the “infiltrators” and “termites”—his description of immigrants—from India.
The BJP also provided the necessary resources for the project, which cost R1,600 crore and involved over fifty thousand officials. In its December 2014 judgment, the Supreme Court had directed the Assam government to ensure that additional foreigners tribunals become operational in 60 days. Following another Supreme Court directive, in May 2019, the state government began setting up 200 foreigners tribunals ahead of the publication of the final NRC, taking the total number in the state to 300, and sanctioned the construction of another 200 in the future. The country’s first dedicated detention centre for those declared illegal immigrants is currently under construction in Assam’s Goalpara district, and the state government has proposed constructing ten more.
Gogoi’s adjudication brought an undue opaqueness to the workings of the court. The NRC hearings, just as many cases of political significance heard by the former CJI, were marked by the use of the sealed cover. Time and again, Gogoi asked Hajela and other stakeholders to submit reports and documents in a sealed cover, to be considered only by the court, to the exclusion of all the parties in the cases—including the governments that have to implement the project. “Sealed covers are the absolute antithesis of open justice, one of the fundamental principles underlying the judicial system,” Bhatia wrote in his article on Gogoi’s legacy. “Courts have to give reasons for their judgments … If, however, the evidence on the basis of which judgments are delivered is kept hidden, then any kind of scrutiny is nothing more than whistling in the dark.”
“It is obviously wrong, and I am not going to support it,” Lokur said about Gogoi’s use of sealed covers. He noted that under the Indian Evidence Act, it is for the state to seek the court’s permission to file certain privileged documents under a sealed cover. “The court can’t use it on its own.”
In February 2017, Gogoi took another significant decision under a cloud of secrecy. Midway through the update of the NRC, Hajela made a closed-door PowerPoint presentation to Gogoi to introduce a new process called family-tree verification. As reported by The Caravan, in July 2018, only four people were allowed to witness the presentation, and Gogoi approved the use of family-tree verification without any consideration of judicial overreach. The revised process required applicants to submit the lineage of their ancestors along with corroborating documents, which would then be uploaded onto a computerised platform that created a digital family tree and crosschecked the details with the information submitted by other family members. The activist Abdul Batin Khandekar told me that family-tree verification was only used to bolster the exclusions, not to establish linkages.
Gogoi’s interactions with Hajela reveal many such instances of judicial impropriety. It is clear from the orders that Hajela was struggling to complete the project in the time stipulated by Gogoi. In its December 2014 order, the court had directed Hajela to publish a draft of the updated NRC by 1 October 2015, and the final version on 1 January 2016. As the deadline got extended, in July 2017, the court directed Hajela to publish the draft NRC by the end of December that year. But, on 30 November, Hajela submitted before the court that only twenty million applications were likely to be processed by the end of the year, and sought an extension for publishing the draft NRC. The bench rejected the request and directed Hajela to publish an incomplete list by 31 December.
Then, on 20 February 2018, the court ordered: “It has also come to our notice from the materials on record that there is a proposal to appoint an Additional State Coordinator. We direct the Registrar General of India to desist from any such move and we make it clear that the State Coordinator Shri Prateek Hajela presently engaged in the work of preparation/upgradation of final draft NRC will continue to carry out the exercise till it reaches its logical end.” Gogoi provided no explanation for why he prevented the appointment of an additional state coordinator.
On 30 July, Hajela published the draft NRC, from which over four million individuals resident in Assam were excluded. In the days that followed, the state coordinator and the registrar general made statements to the press about the NRC process, and about how remaining claims and any objections would be heard. This did not sit well with the court. On 7 August, Gogoi and Nariman listed the case for a hearing and reprimanded the two in open court. “We should hold both of you guilty of contempt and send you to jail,” Gogoi told them. “Who are you to say all this?” The bench made both officials come to the front of the courtroom and apologise. It also directed them to seek the court’s permission before making any statement or undertaking with respect to the final NRC.
Multiple lawyers and activists told me that Hajela had a reputation for being an honest and upright bureaucrat. “At some point Hajela seems to have become the court’s agent, carrying out the court’s instructions,” Gautam Bhatia said. “The transformation of his role is a very strange one. He seemed to be acting with no independent mind or freedom of his own.” According to Khandekar, in the early days of the project, Hajela met him regularly and assured him that the update would be conducted in a bona fide manner without excluding a single citizen. But this changed after the August hearing.
“After that hearing,” Khandekar told me, “Hajela stopped meeting anyone.”
GOGOI’S OBSESSION WITH THE NRC led to him taking over the state machinery, affecting almost every area of Assam’s state government.
On 1 December 2015, Gogoi directed that all state personnel deployed in work related to the NRC not be assigned to any other work until the update was completed. The next month, he modified the order to state that officials deputed to work on the NRC could engage in other duties as long as it did not affect the “primacy and priority” of the project. In January 2019, the Supreme Court ruled that the upcoming general elections and the NRC should be given equal importance and noted that both should proceed “simultaneously without one affecting the other.” Once again, the state government approached the court repeatedly, and, the next month, Gogoi allowed the deputation of officials to prepare for elections, but ordered that 3,457 individuals should be left for NRC work. He also directed the Election Commission not to transfer any district magistrates or additional district magistrates for the elections.
Gogoi’s control over the bureaucracy had an adverse collateral effect on every other government scheme and programme that had to be put on hold for the NRC update. “Fifty-five thousand employees were engaged in executing the NRC for the last three-and-a-half years—day and night—so obviously it has affected the development,” Hrishikesh Goswami, the media advisor to the chief minister, told me. In the Assam secretariat, several bureaucrats elaborated on how the NRC project had affected development programmes and other government initiatives, though most requested not to be identified.
A secretary in the Assam government told me that there were nearly four hundred thousand government employees in the state. He estimated that in departments with seven field officers, around four had to be deputed for NRC work. “There has been a reduction of available officers—seventy percent of the officers at the field level, more or less, have been shunted out for this work,” he said. “Look at the schools. In some villages, there has been only one maths teacher and one science teacher for three years, because the others have been assigned to NRC.”
Another government secretary noted that the NRC had “slowed down the administration.” For instance, he explained, in order to grant land to the landless residents of Assam, a land survey needs to be conducted. “People have to go to the village, find out what is the government land, prepare the list of people who are landless, give them land allotments,” he said. He approximated that only one-eighth of what he expected from the land survey had been completed. “It is a long process; it takes about five or six months. But because officials were busy in NRC, the process got delayed.” He quantified the nature of the delay. “In this financial year, we wanted to give one lakh landless people land allotments.” As of October, he noted, “we have given about thirty-five thousand. In these six months, we should have given at least fifty thousand.”
CP Phookan, a deputy secretary in the home and political department, described other work that had been similarly affected. “In northern Assam, the land-acquisition work for construction of national highways is going on,” he said. “Now, once you acquire land, you have to pay compensation to the landowners. That has been delayed. The CM had to intervene. I will not say how much it was delayed, but it is a fact that payment of compensation was delayed.” He added that several such examples existed. “The entire development machinery was hijacked for the last three years. If we ask, ‘where is that officer?’, they will say that he is engaged for NRC.”
HOW PERSONAL THE NRC was for Gogoi, and the prejudice he brought to it, became clear from how he dealt with a petition filed by Harsh Mander. In January 2018, while serving as the National Human Rights Commission’s special monitor for minorities, Mander was deputed to Assam to look into the state’s six detention centres—cordoned-off portions of jails that hold residents who have been declared foreigners. Mander visited two detention centres, in the Goalpara and Kokrajhar districts. His team observed that the detainees were kept in terrible conditions for an indefinite period, that family members—including young children—were separated from each other and that the centres were not governed by any law. He was prevented from going to any other detention centres, and the NHRC refused to act on, or forward, his subsequent report. In June, Mander resigned from his position and released the report on his own. Subsequently, in August, he filed a public-interest litigation before the Supreme Court, seeking humane and lawful treatment of the detainees, asking that they be given free legal aid, and requesting directions that detentions be used as a measure of last resort.
In March 2019, Mander filed an affidavit in his petition, identifying grave procedural irregularities and flawed adjudication in the processes of identifying D-voters and illegal immigrants. He noted that the Election Commission and the Assam Police Border Organisation often refer the cases of genuine citizens to the Foreigners Tribunals “without any investigation whatsoever.” According to his submissions, cases were referred to the tribunals with the verification forms—which indicate the process undertaken by an official to verify the citizenship of an individual—left empty. The affidavit also highlighted the lacunae in the working of these tribunals. For instance, these quasi-judicial bodies have been widely reported to be declaring genuine citizens as foreigners based on minor discrepancies—these include varied spellings in names, small differences of age and addresses across documents—despite them possessing the papers to prove their Indian citizenship.
On 13 March, the Supreme Court directed Alok Kumar, the chief secretary of the Assam government, to submit an affidavit with details of the number of persons declared foreigners, the number of persons detained and the numbers of persons deported to their country of origin.
Accordingly, on 25 March, the state government filed an affidavit providing these details. I accessed the documents—and the numbers are staggering. From 1985 to 2018, the affidavit noted, a total of 112,395 people were declared foreigners. Of these, 46,898—over 41 percent—were declared foreigners between 2015 and 2018. The affidavit cited the border wing of the Assam police as its source and stated that 4,072 people were declared foreigners in 2015, 5,096 in 2016, 15,541 in 2017 and 22,189 in 2018. The numbers before and after the BJP government came to power in the state are telling of the fervour with which the state machinery had been functioning.
Kumar’s March affidavit further stated that a total of 2,703 declared foreigners were detained at different points of time since the detention centres were first set up, and that, as of 17 March 2019, there were 915 detainees in the six detention centres across the state. (According to a home-ministry submission in the Lok Sabha, this number had increased to 1,133 by 25 June.) Of the 915 detainees, 799 were declared foreigners and 116 were convicted under different laws such as the Foreigners Act, 1946, and the Passport (Entry into India) Act, 1920.
According to the affidavit, the Assam police referred a total of 467,094 cases to the foreigners tribunals from 1985 to 2018, and 202,024 cases were pending. It further noted that of the 262,070 cases that had been disposed of during this period, 105,102 cases—again, over two-fifths—were disposed of after 2015. Kumar’s affidavit also stated that since March 2013, a total of 166 people were deported, only four of whom were declared foreigners, while the rest were convicted foreigners.
During a subsequent hearing, on 9 April, Gogoi challenged the chief secretary on these figures. His concern, however, was not what the jump in the numbers since 2015 might indicate about the tribunals’ functioning. Instead, according to a report on the website Live Law, Gogoi asked Kumar, “You are taking pride in this big leap? This is your self-praise—significant improvement in the disposal of cases?” The CJI continued, “You have detected 46,000 foreigners since 2015 but there are only 2,000 persons in the detention centres? Where are the other 44,000?”
“When the solicitor general read out a government proposal to release detainees who had spent five years in detention centres, subject to certain conditions, Gogoi shot back, “You want a man who is deemed to be a foreigner to stay after he executes a bond? You are asking the Supreme Court to be a party to an illegal order?” The Live Law report noted that Gogoi pressed the chief secretary on the point of deportations as well. “It is your solemn duty by the Constitution to deport all those who are so declared by a court or a quasi-judicial body,” he said. “Is your government being run in accordance with the Constitution?”
After further questioning, Kumar conceded that the state government had been unable to trace the remaining “foreigners.” Gogoi told him, “We will do what is required once you admit this on affidavit.”
As the chief secretary struggled to give Gogoi a satisfactory answer, Prashant Bhushan, who was representing Mander in the case at the time, informed the court that the majority of the people declared foreigners identified themselves as Indians, which made it difficult to deport anyone. Further, the Foreigners Act is unambiguous in stating that the entry, presence and deportation of foreigners in India is the domain and sole responsibility of the central government. Moreover, no country has offered to accept the declared foreigners—Bangladesh has consistently denied that its citizens migrate to India in large numbers. As a result, the purported foreigners are effectively stateless. Gogoi appointed the senior advocate Gourab Banerji as an amicus curiae in the case, “to assist the Court in the matter so far as detection and deportation of foreigners are concerned.”
In compliance with Gogoi’s order, Kumar filed an affidavit with a proposal to release detainees who had spent over five years in detention centres, subject to certain conditions. These included submitting two surety bonds of R1 lakh each, having a verifiable address to stay at after release, submitting their complete biometric information, reporting to the local police station once a week and notifying the police of any change in address. But this invited Gogoi’s wrath. At the next hearing, on 25 April, after the solicitor general Tushar Mehta, who appeared on Kumar’s behalf, read out the proposal, Gogoi shot back, “You want to allow a man who is deemed to be a foreigner to stay after he executes a bond? You want the Supreme Court to be a party to an illegal order?”
In an article examining Gogoi’s statements in court, Gautam Bhatia argued that indefinite detention is a violation of Article 21 of the Constitution. The provision states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Pertinently, unlike some fundamental rights, Article 21 is applicable to all individuals, and not just citizens. “By refusing release, it is the Court that is sanctioning a flagrant and continuing violation of Article 21,” Bhatia wrote. “And one can hardly ignore (once again) the almost brutal irony at the heart of this: it is the government that wants to release detainees from detention centres, and the court that wants to stop it. Which is the political executive and which is the sentinel on the qui vive? Who is the protector of rights, and who the encroacher? It is impossible to tell any more.”
Gogoi did not explain why the order to release detainees would have been illegal, but proceeded to threaten the chief secretary with a departmental inquiry. “You have no right to continue in office,” he told Kumar. “Chief secretary, you are in serious trouble. We are going to issue a notice to you for making slanderous statements against the law.” He further admonished Kumar for the position of the state government. “The stand of the government of India and the state of Assam should be that foreigners detenues should be deported as soon as possible. But we do not see that stand, Mr Chief Secretary.” Even though Banerji informed the bench that deportation requires the cooperation of the country of origin, Gogoi insisted that the government had failed in its job. “You are representing the state of Assam,” he told Mehta. “Do you think that he is capable of holding this position?”
The hearing came to an end with Kumar apologising to the bench and assuring them that he would come up with “other measures.” Effectively, in a case concerning the plight of detainees in Assam’s detention centres, Gogoi shouted down the state’s chief secretary for proposing to release them and instead hauled up the government for not detaining and deporting more people. The written order for the hearing merely recorded the court’s observation that the state of Assam “may file additional affidavit.”
On 1 May, Kumar filed a new affidavit, revealing an absolute volte face from his previous stance on releasing detainees. On the question of releasing detainees, the affidavit said, “the stand of the State Government had been and continues to be the same viz. if a detenue is released there is every possibility of he being traceless defeating the very purpose of the exercise undertaken for declaring him to be a foreign National.” The affidavit absolved the state government of the burden of conducting deportations and stated that the state has provided all the requisite information to the central government. In this respect, Kumar now stated that four deportations had taken place, “against 253 proposals submitted” to the central government.
Realising that the issue he had raised was not being addressed, Mander tried to file an application with the Supreme Court registry seeking Gogoi’s recusal from the case. The registry refused to admit his application and directed him to file it in person before the chief justice. On 2 May, a three-judge bench reassembled in the CJI’s court after lunch to hear Mander’s application. Mander argued it in person.
Gogoi opened on a magnanimous note. “Normally, we do not accept applications in court, but you are a layman so we will accept it,” he said. “Please say fearlessly, freely, whatever you want to say.”
Mander began reading a written statement. “I have the deepest faith in the judiciary,” he said, before Gogoi interrupted him.
“Do not read from a prepared text, Mr Harsh Mander,” Gogoi said. “It is not expected from someone of your stature. Speak from your heart.”
Mander resumed, “Your Lordship, I have great respect”—but Gogoi interrupted him again. “Respect is shown from your actions, not from your words,” he said. Gogoi continued to lambast Mander for much of the remainder of the hearing.
While he initially addressed his comments to Mander, as he went on, Gogoi began addressing the court at large, waving his arms aggressively as he spoke. “When a court debate takes place, a judge says a lot of things to test the waters,” he said. “What was said in a healthy debate was understood by you to be an expression of opinion. The opinion is in the order.” Gogoi then asked Mander to read the order of the 25 April hearing, which stated that the chief secretary may file an additional affidavit. Mander argued that his concerns arose from the oral observations, adding, “I stand by my anxiety.”
Gogoi then appeared to imply that he, too, could raise imputations about Mander’s motivations. “What if we say you have been set up by the state of Assam to file this?” he asked. “That the chief secretary, to avoid disciplinary proceedings, has prevailed on you? How will you defend that?” The chief justice asked the questions rhetorically, with an odd sense of finality and confidence in his tone, even as Mander replied, “By simply saying that it is untrue.” Gogoi responded, “See what damage you have done to the institution?”
“The handicap to take up a matter must be perceived by the judge, not by the litigant,” Gogoi continued. “Don’t overstep.” At one point, he asked Mander, “How can you form an opinion that the chief justice of the court has prejudged the matter? Is that fair to the country?” Gogoi did not explain why concerns over the CJI being biased were unfair to the country.
The solicitor general soon joined in. Mehta expressed his shock at the recusal application, insisting that it was “scandalous and contemptuous,” and that it “ought not to have been said.” After reading out portions of Mander’s application, he said, “Who is he to come and deliver a lecture on what judges should be doing and not doing? You can get up as a public-spirited citizen and spit venom on anyone?”
Gogoi leaned back in his chair comfortably as Mehta continued to express his outrage. At one point, as Mehta mentioned he was opposing the application, Gogoi interrupted him. “What are you opposing?” he said. “What makes you think we will recuse? Do not even remotely think we will recuse. Recusal is destruction of the institution.” Mehta nodded his head vigorously and said, “Absolutely.”
“We are only discussing what else we will do,” Gogoi continued. “We will not allow anybody to browbeat this institution.”
“I am requesting your lordships to do a lot more than that,” Mehta replied.
After briefly conferring with the other judges, Gogoi dismissed the recusal application, repeating that the difficulty, inability or handicap to hear a case must be perceived by the judge and not by the litigant. Gogoi then struck off Mander as the petitioner of the case and replaced him with the Supreme Court Legal Services Committee, and added Bhushan as the amicus curiae in the matter. When Bhushan pointed out that Banerji was already serving as an amicus, Gogoi responded, “That is for the larger issue—of deportation. You are for the limited issue of detention centres.”
After the hearing, I met Mander outside Gogoi’s courtroom. He appeared calm and unfazed. I asked him if he had anticipated this order. “I did not know how the court would respond,” he said. “It could have been more negative. The worst that could have happened to me is a fraction of what happens to the people I am representing.”
Ironically, on 10 May, in Mander’s erstwhile case—now titled Supreme Court Legal Services Committee vs Union of India—Gogoi passed an order accepting most of the suggestions earlier proposed by the chief secretary regarding the release of detainees. His aggressive and seemingly uncompromising position that Kumar was asking the Supreme Court to pass an “illegal order” no longer appeared to be a concern. When I tried to speak to Kumar about the NRC case, he refused.
The 10 May order also directed the state government to consult with the Gauhati High Court to place on record “a detailed scheme … with regard to the constitution of Foreigners Tribunals including appointment of Members, staff etc.” Thus, in addition to placing extensive conditions on the release of detainees, Gogoi sought to create the institutional framework for further detentions in the same order.
Mehta accordingly submitted a resolution to the Supreme Court proposing to select members for 200 additional Foreigners Tribunals, and on 30 May, a vacation bench helmed by Gogoi ordered that 200 more tribunals should be made functional by 1 September. The same day, the union home ministry, headed by Amit Shah, amended the Foreigners (Tribunals) Order, 1964. Until then, Foreigners Tribunals were limited to Assam, but the new amendment allowed state governments, union territories and district magistrates to authorise these tribunals anywhere in the country. The new rules prompted another salvo from Mander, who warned, in an editorial in the Indian Express, that expanding the reach and powers of Foreigners Tribunals “will result in an upheaval that will stir memories of Partition.”
Gogoi’s approach to the NRC cases has made him popular with different communities of Assam, barring the Assamese chauvinists who believed that there are millions more illegal residents in Assam than the process identified, and Hindu nationalists who expected a higher number of Muslim exclusions. According to Hussain, the AAMSU’s legal advisor, Gogoi took up the case with incredible fervour because he was keen to see greater development in Assam and knew that that the only way the NRC would finally be updated is if it were monitored by the Supreme Court. “People have been harassed, subjected to multiple hearings—we were willing to bear it all only to see the final figure,” Hussain added.
Several people expressed similar views. “To me, the NRC was a very good exercise,” Abdul Mannan, the author of Infiltration, told me. “A large number of minority people suffered beyond imagination. They suffered physical, mental and economic torture. But ultimately, the state got the document. Now if someone says that my name is included wrongly in the voter list, they will have to prove it.”
He continued, “It was gigantic and there were loopholes, but it was done judicially and it was only possible because it was conducted under the guidance of the Supreme Court.” Mannan believed that the pressure applied by Gogoi was necessary. “If there was no pressure from the Supreme Court, it would not have been completed,” he said. “There would have been tremendous political pressure and, without the court, the NRC authorities would not have been able to function independently.” Mannan argued that Gogoi was necessary for the update to take place. “Fortunately he was in court and rightly thought that if the NRC is prepared, the question will be solved for all time to come.”
Abdul Batin Khandekar was among the few who were critical. Khandekar said that Gogoi was motivated by, and his orders reflected, an Assamese chauvinism that a majority of Hindus in Assam display. For instance, in December 2017, the Supreme Court ruled that certificates issued by gaon panchayats could be used as supporting documents to establish an individual’s linkage to ancestors who were present in Assam before the March 1971 cut-off date. These certificates were meant to help establish the residential status of married women, who generally shifted houses after marriage. But Gogoi’s order slipped in an additional requirement for the certificate’s issuing authorities to appear in person to verify its authenticity.
As a result, Khandekar said, over three hundred thousand married women had to travel long distances to the tribunals along with the person who issued their certificate, or provide alternative evidence to establish their ancestry. “If the person has to come depose, what meaning does the certificate have anymore?” Khandekar asked. “If the individuals had some other document, why would they rely on the panchayat certificate?”
According to the NRC-application process prescribed in the 2003 rules, individuals who are “originally inhabitants of the State of Assam and their children and descendants” do not need to go through the entire procedure for inclusion “if the citizenship of such persons is ascertained beyond reasonable doubt and to the satisfaction of the registering authority.” Thus, original inhabitants need not provide documentary proof to establish their linkage to pre-1971 descendants and can be included at the discretion of a local official. The rules did not define an original inhabitant, or how an NRC official is expected to identify them.
“Do not read from a prepared text, Mr Harsh Mander” Gogoi said. “It is not expected from someone of your stature. Speak from your heart.” Mander resumed, “Your Lordship, I have great respect”—but Gogoi interrupted him again. “Respect is shown from your actions, not from your words,” he said. Gogoi continued to lambast Mander for much of the remainder of the hearing.” Deciding on a bunch of petitions seeking guidelines for the identification of original inhabitants, Gogoi’s verdict was as vague as the provision itself. After quoting the provision, he first noted, “Clause 3(3) contemplates a less strict and vigorous process for deciding claims for inclusion in the NRC insofar as persons who are originally inhabitants of the State of Assam are concerned.” He added, “Identification of persons who are originally inhabitants of the State of Assam as against those who are not does not determine any entitlement for inclusion in the NRC which is on the basis of proof of citizenship alone and nothing else.” Of course, the same could be said about the entire NRC process, that inclusion is based on proof of citizenship, but what Gogoi conveniently omitted to discuss is the procedure for identifying the original inhabitants who would be put through a “less strict and vigorous process.”
“Citizens who are originally inhabitants/residents of the State of Assam and those who are not are at par for inclusion in the NRC,” Gogoi wrote. “In view of the above, we do not find any reason to issue any direction or clarification as to the meaning of the term ‘originally inhabitants of the State of Assam.’” According to Khandekar, through the NRC process, around thirteen million people were included in the NRC as original inhabitants. “The Ahom community’s history in Assam can be traced back to the year 1228, whereas the Muslim community’s history in Assam goes back to 1206,” he said. “But no Muslim has been given the benefit of being considered an original inhabitant.”
In another order, Khandekar told me, Gogoi violated provisions of the Citizenship Act, which stipulates that any individual born in India before 1 July 1987 is an Indian citizen. The question before the Supreme Court was whether individuals born in Assam before 1987, but through a disqualified ancestor, would be considered citizens. The procedure approved by the court mandated that anyone who applied for NRC inclusion through an ancestor who is a doubtful voter or declared foreigner, or whose case is pending before a tribunal, would be considered an illegal migrant.
On 23 July, the court took note of several objections regarding the conflict between the standard operating procedure and Section 3 of the Citizenship Act. The Gogoi-led bench directed Hajela to “issue a public notice” to all stakeholders to appear before the court and address the issue. But at the next hearing, on 8 August, when the senior advocate Chander Uday Singh, representing the NGO Citizens for Justice and Peace, rose to address the court, Gogoi was quick to dismiss him.
“You have filed an impleadment application,” Gogoi said. “You are not seeking any directions, your prayer is for impleadment only. Why should we hear you?”
“Your lordship in the previous order had invited stakeholders,” Singh responded.
But Gogoi was not having any of it. His manner bore a resemblance to that with which he had challenged Mander during the recusal hearing. “Can we invite you and give us the benefit of an order when you have not prayed for it?” he asked. “Your humanitarian problems will be solved if you make a prayer. Clean your own hands. How can we intervene?”
As if on cue, Tushar Mehta chimed in once again, as he had during Mander’s hearing. “How can they be here in the Assam case?” Mehta asked. “This is some Mumbai-based NGO. They have nothing to do with this matter.” Singh was not permitted to make his arguments.
According to Singh, the court had accepted the argument that the SOP could not contravene Section 3 of the act, during the hearing on 8 August. “Justice Nariman categorically told Hajela that you cannot have any cut-off date earlier than 1987 because that is what the section provides,” he said. “Gogoi also said yes, the court would provide for that. But he went back and wrote the order the categorically ruled it out.” The order sought to justify the departure from the Citizenship Act: “The entire NRC exercise having been performed on the aforesaid basis, the same cannot be now ordered to be reopened by initiation of a fresh exercise on certain other parameters.”
Around the end of July, support for the NRC began to diminish among dominant Assamese communities, as word spread through unofficial channels that the number of Muslims excluded was far lower than the number of excluded Hindus. On 1 August, the BJP government in Assam revealed confidential district-wise data on exclusion in the state assembly. Its figures indicated that the proportion of exclusions in Hindu-majority areas was higher than those in the state’s Muslim-dominated border areas. On this basis, the government called for further reverification of the final NRC, accusing state officials of compromising the process. Suddenly, Hajela, who had been venerated a year before as the hero who did not bow down to pressure when the draft NRC produced four million possible exclusions, now faced accusations of manipulating the process. On 31 August, the final NRC was published and revealed over 1.9 million exclusions. By most accounts, the number of Muslims excluded stood at around four hundred thousand.
The BJP and the AASU have since cried themselves hoarse about the NRC having been compromised, and the former has even gone so far as to demand a fresh update. Meanwhile, the AAMSU leaders I spoke to said there were simple explanations for the low exclusion rate from the Muslim community: a historic exaggeration of the number of illegal Muslim immigrants in the state, ready documentation due to Muslims’ previous experience of persecution, and ground-level mobilisation by civil-society groups.
Both Rahman and Hussain, the chief advisor and legal advisor, respectively, said that the AAMSU and other groups had begun the process of spreading awareness about the necessary documents back in 2010, after the pilot projects were attempted. Similarly, Mannan discussed how the Muslim community was prepared by virtue of their history in the state. “People are claiming that Muslims managed to get false documents,” he told me. “This is not at all true. The Muslims of Assam have been targeted since Independence.” Mannan talked about the history of discrimination and expulsions in the state. After this, he said, Muslims stopped migrating to Assam. “How will people dare to come with these draconian laws? The NRC proves it.”
Following the publication of the NRC, the project has seen very little progress. According to the legal regime, individuals have 120 days to appeal against wrongful exclusions or inclusions before the Foreigners Tribunals. This 120-day period would begin when the NRC is officially published by the Registrar General of India. However, despite publishing the final list, the office of the state coordinator is yet to issue the rejection notices to the excluded individuals, on the basis of which they could file their appeals. Meanwhile, in the only hearing in the NRC-monitoring case that Gogoi presided over after the final list was published, he ordered Hajela’s transfer back to his home cadre of Madhya Pradesh.
On 9 November, Hitesh Dev Sarma, a 1986-batch officer in the Assam civil service, was appointed the new state coordinator. There is not yet any clarity on when the rejection notices will be issued, allowing the appeals process to begin. The AASU has challenged Dev Sarma’s appointment, highlighting his previous social-media posts that it says indicate a prejudice against Assam’s minority communities. Rahman told me that the court is likely to list the AASU’s petition for the first week of February. Over six years after the Supreme Court began monitoring the NRC process, the project appears stuck in limbo.
Gogoi is no longer involved in the proceedings, but he did not miss an opportunity to have his last word on the project. On 3 November, at a book launch in Delhi, Gogoi defended the NRC exercise. He repeated the same statements I had heard time and again in Assam. “The Assamese people have displayed great magnanimity and large-heartedness in accepting various cut-off dates for the purposes of preparation of the NRC that are at a considerable distance from the time when the first onslaught of forced migration hit them or their ancestors,” he said.
More than anything, though, Gogoi lambasted those who had been critical of him. “We need to keep in mind that our national discourse has witnessed the emergence of armchair commentators who are not only far removed from ground realities, but also seek to present a highly distorted picture,” he said. “They launch baseless and motivated tirades against democratic functionalities and institutions, seeking to hurt them and bring down their due processes. These commentators, and their vile intentions, do survive well in situations where facts are far removed from the citizenry, and rumour mills flourish.” The former CJI was now making noise about independent journalists.
“AAP CHRONOLOGY SAMAJH LIJIYE”—Understand the chronology. Amit Shah said this now famous phrase during a press conference in West Bengal, of a video which was published on the BJP’s YouTube page in April 2019. “First the Citizenship (Amendment) Bill will come, all the refugees will be given citizenship, and after that the NRC will be prepared,” Shah said. “The refugees have nothing to worry about, and the infiltrators certainly need to worry. Aap chronology samajh lijiye.” The NRC, he added, “will not be for just Bengal, it will be for the entire nation. Infiltrators are an issue for the entire nation.”
In December 2019, both houses of parliament passed the Citizenship (Amendment) Bill into law. The Citizenship (Amendment) Act effectively introduced a religion-based criteria for attaining Indian citizenship. It states that individuals from Afghanistan, Bangladesh or Pakistan who are members of any of six religions—Hinduism, Buddhism, Jainism, Sikhism, Christianity and Zoroastrianism—and entered India before 31 December 2014 will not be treated as illegal immigrants. It further relaxed the length of residency required for these individuals to become naturalised citizens, from 11 years to five years. By elimination, only Muslims from these countries would continue to be treated as illegal immigrants and denied the relaxations under the amendment.
“On 4 October 2018, his second working day as the CJI, Gogoi allowed the deportation of seven Rohingya refugees to Myanmar, despite their advocate submitting to the court that the deportation was taking place without their consent.”
The act triggered protests, and when the Indian state cracked down on the protestors with brutal force, a movement against the CAA garnered momentum across the country. The protestors challenged the constitutionality of the act, for dividing the subjects of the law on religious grounds, and raised an alarm about the combined effect of the CAA and a pan-India NRC. Looking at the magnitude of the protests, the BJP has tried to dissociate the CAA from the NRC, claiming the former is just to help persecuted refugees get citizenship. It has been hesitant to discuss the nationwide NRC, arguing that it has not been officially announced yet. However, the legal framework for a pan-India NRC has already been put in place, through the Citizenship (Amendment) Act, 2003, passed by the Atal Bihari Vajpayee government.
Following the Kargil conflict of 1999, Vajpayee’s BJP-led government appointed a committee, commonly known as the Kargil review committee, to examine the events and circumstances that led to the conflict. The KRC report was submitted in December 1999, following which the government appointed a group of ministers to evaluate the report and formulate proposals for its implementation. In February 2001, the GoM submitted its report titled, “Reforming the National Security System.” Among other things, the report stated, “Illegal migration has assumed serious proportions. There should be compulsory registration of citizens and non-citizens living in India. This will facilitate preparation of a national register of citizens. All citizens should be given a Multi-purpose National Identity Card (MNIC) and non-citizens should be issued identity cards of a different colour and design.”
In 2003, the NDA government amended the Citizenship Act to introduce in it the concept of “illegal migrant,” which it defined as individuals who entered the country without valid travel documents, or who remained in the country beyond the period of time permitted to them. In doing so, the government gave illegal migrants a central position in the law governing Indian citizenship. For instance, the original act noted that an individual born after 1986 would be considered an Indian citizen if either of her parents was a citizen at the time of her birth. Following the 2003 amendment, individuals born in India after 2004 would only be citizens if one of their parents was an Indian citizen and the other was not an illegal migrant. The amendment also denied illegal migrants the opportunity of attaining Indian citizenship through naturalisation.
In accordance with the recommendations of the report, the government also inserted Section 14A into the Citizenship Act, which directed the central government to “compulsorily register every citizen of India and issue national identity card to him.” Simultaneously, the government notified the Citizenship Rules of 2003, which created the legal framework for a National Population Register and the pan-India NRC, known as the National Register of Indian Citizens. The rules define the NRIC as a “register containing details of Indian citizens living in India and outside India,” and the NPR as a “register containing details of persons usually residing” in India. The rules also create a bureaucratic machinery to prepare the register, including local and district registrars.
According to the framework envisioned under the rules, local government officials will prepare the NPR on the basis of a house-to-house enumeration. The NPR was first prepared in 2010, and the BJP government has proposed updating it in 2020 with additional information, including Aadhaar details, mobile numbers, passport numbers, driver’s licence numbers and parents’ places of birth. These additional details, and particularly the citing of parents’ places of birth, signal that this data could be used to determine inclusions for the NRIC. The 2003 rules prescribe that the local registrar of citizen verification would then scrutinise the NPR to verify individuals for the purpose of inclusion in the NRIC. During this verification process, the local registrar is empowered to mark certain individuals as having “doubtful citizenship.”
The government manual for the 2020 NPR states that an individual’s nationality is self-declared and that enumerators cannot challenge an individual’s claim to citizenship. However, the 2003 rules do not prescribe any guidelines by which a local registrar can deem an individual’s citizenship to be doubtful. Any individual or family deemed doubtful is to be given an opportunity to be heard, before “a final decision is taken to include or to exclude their particulars in the National Register of Indian Citizens.” Effectively, the NPR serves as the base document for the NRIC.
There are two significant changes in the 2020 NPR, compared to its 2010 edition. The requirement of the parents’ place of birth in the 2020 NPR is key, as it pertains to the citizenship criteria defined in the 2003 CAA. The second change is that enumerators are no longer required to provide acknowledgment slips to the respondents. The 2010 NPR manual specifically directed enumerators to provide acknowledgment slips to the households after the enumeration. It also noted that individuals would have to bring their acknowledgment slips to a local government office for the purpose of capturing their photographs and fingerprints. But in 2015, soon after the Modi government first came to power, Aadhaar details were seeded into the NPR. It is possible that the acknowledgment slips were excluded from the 2020 NPR process because the biometric information had already been captured during the 2015 update.
However, the acknowledgment slips also served the very important purpose of providing the residents with a receipt of their enumeration in the register, so that they could challenge their exclusion if it were to take place. It is unclear what measures, if any, are available to an individual who is excluded from the NPR, since the 2003 rules only prescribe methods to challenge exclusion from the NRIC.
With the 2003 rules and amendment, the Vajpayee government laid the groundwork for the BJP under Modi to take the party’s Hindu-nationalist agenda forward with the CAA. The BJP stated in its 2014 manifesto that “India shall remain a natural home for persecuted Hindus and they shall be welcome to seek refuge here.” After coming to power, the party has taken several steps to that end, of which the CAA is only the latest.
In 2014, the Modi government introduced an online application for residents of India from the six religious groups from Pakistan, Afghanistan and Bangladesh to acquire long-term visas. The online form requires an applicant to submit an affidavit that they are a member of one of the six communities from the three countries, including the details of when they entered India and whether they entered with valid travel documents. In June 2015, the Press Trust of India reported that since the Modi government came to power, it had given LTVs to nearly nineteen thousand refugees in Madhya Pradesh, around eleven thousand in Rajasthan and four thousand in Gujarat. The report also noted that within one year, the Modi government had granted citizenship to over four thousand refugees from Pakistan and Afghanistan. As of 31 December 2018, there were 41,331 Pakistani nationals and 4,193 Afghan nationals living in India on LTVs.
In September 2015, the government amended the Passport (Entry into India) Rules, 1950 and the Foreigners Order, 1948, along the lines of the amendment to the Citizenship Act. The amended rules exempted “persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014” without valid travel documents, from the penal provisions of the respective acts.
A crucial distinction between these amendments and the 2019 CAA is that the latter does not specify that the concerned member of the six communities should be acting out of persecution or fear of persecution. As many have pointed out, there are Muslim communities in Pakistan who face persecution as well—such as the Ahmadis, whom the Pakistani government declared non-Muslims through a 1974 constitutional amendment. Similarly, if the criterion for facilitated citizenship is religious persecution, the government has also been questioned on the rationale behind denying Rohingya Muslims the benefits of the CAA, despite their shocking persecution in Myanmar.
The question of the Indian state’s approach to Rohingya refugees had come before Gogoi within days of him being sworn in as the chief justice. In August 2017, the home ministry stated that the government would deport approximately forty thousand Rohingya refugees living in India. The next month, two Rohingya immigrants from Myanmar filed a petition in the Supreme Court challenging the government’s move, noting that it was a violation of constitutional safeguards available to all individuals. The petitioners also argued that the decision contravened the international law principle against non-refoulement, which prevents a country from sending asylum seekers back to a country where they are facing persecution. In March 2018, the home ministry filed an affidavit in court stating that, since India was not a signatory to the UN convention on refugees, it was not bound by the principle of non-refoulement. The affidavit further claimed that revoking the decision to deport was “not in the interest of the national security.”
On 4 October 2018, his second working day as the CJI, Gogoi allowed the deportation of seven Rohingya refugees to Myanmar, despite their advocate submitting to the court that the deportation was taking place without their consent. The main petition in the case is still pending in court. Over the 13 months that he served as chief justice, Gogoi listed the case only twice after that day, and heard it just once.
The bill to amend the Citizenship Act was first introduced in the Lok Sabha in July 2016. The next month, it was referred to a joint parliamentary committee, which submitted its report in January 2019. The JPC noted that a “constitutional expert” had submitted to the committee that that the term “minority” has not been defined in the Constitution, and that its usage in the CAA should have broader application than just referring to religious minorities. The expert proposed changing the phrasing of the amendment to have its relaxed provisions apply to all “persecuted minorities from the neighbouring countries.” According to the JPC report, when the proposal was forwarded to the law ministry, its legislative department responded: “Using persecuted minorities from the neighbouring countries instead of its current form may negate the objectives of the Bill. As there is a possibility for wider scope of interpretation, it may be construed to include other communities (religious or otherwise).” In July, the home ministry issued a notification stating that work for preparing and updating the NPR, including house-to-house enumeration, would be undertaken between 1 April and 30 September 2020. In December, parliament passed the CAA.
The passage of the act did not cause widespread protests immediately. But as the centre and BJP-ruled states began deploying their police forces in large numbers and authorised brutal force against anti-CAA protesters, the protests gained momentum and spread across the country. The state has responded with violent crackdowns, internet shutdowns and curfews, at a scale that had been seen only in insurgency-prone areas. Over twenty-five people were killed, and scores of others injured.
Yet, the protests and the protestors did not relent. Chants of “Azadi” and a demand to repeal the CAA echoed across the country, and many states have announced a boycott of the NPR and NRC. As many as twelve states have announced that they would oppose the NPR exercise in their territories, and four have passed resolutions opposing CAA. The Congress president Sonia Gandhi called upon the central government to stop the NPR process. “In form and content, NPR 2020 is a disguised NRC,” she said.
While Modi and Shah have both claimed that there is no connection between the NRC, NPR and CAA, the government’s statements from the past have contradicted them. Multiple news reports have pointed to the number of times that the government has publicly linked the NPR and NRC in the past, including an Indian Express article that highlighted ten times that the home ministry had done so. These did not include Shah’s exhortation to understand the chronology of introducing the CAB first and following it up with the NRC.
Shah has been trying to recreate the blood-and-soil sentiments that prevailed in Assam during the Assam Agitation across the entire country. The term “infiltrator,” which the home minister has used repeatedly, is telling of Shah’s strategy to win over the masses: cultivating and manipulating a fear against a nondescript, unidentified and threatening enemy. Meanwhile, Shah’s dehumanisation of migrants by repeatedly referring to them as “termites” is eerily similar to the identification of Rwanda’s Tutsis as “cockroaches” ahead of a genocide that killed an estimated eight hundred thousand people.
“Shah has been trying to recreate the blood-and- soil sentiments that prevailed in Assam during the Assam Agitation across the entire country. The term “infiltrator,” which the home minister has used repeatedly, is telling of Shah’s strategy to win over the masses: cultivating and manipulating a fear against a nondescript, unidentified and threatening enemy.” Yet, the union home minister has not actually submitted any data on the number of illegal migrants in the country. In response to several questions about this data posed in parliament to the home ministry last year, the answer has simply been that immigrants enter the country without valid documents in a “clandestine and surreptitious manner,” and therefore no precise number is available. Instead, the ministry has time and again assured parliament that the “detection, detention and deportation” of illegal immigrants is an “ongoing process.”
The only statistical data submitted to Parliament appeared to be that of Karnataka. Going by that, the “infiltration” does not seem to be as widespread as Shah projects. According to a July 2019 statement in the Lok Sabha, 143 cases had been registered against illegal Bangladeshi nationals living in the state, and 114 people had been deported. Data submitted to the Rajya Sabha reveal that a total of 1,731 foreigners were deported to various countries from across India in 2018.
Despite the mass protests and civil-society uprising against the policies, the BJP government has refused to budge on the NPR, NRC or CAA. On 24 December, the union cabinet approved a budget of R3,941 crore for the NPR. A little over two weeks later, it issued a notification to announce that the CAA would come into effect from 10 January.
Soon after the act was passed, it was challenged in the Supreme Court. But, as Gogoi did with the Kashmir hearings, the new CJI, SA Bobde, has been taking his time. The centre, meanwhile, filed a petition asking the Supreme Court to transfer all challenges to the CAA, pending at various high courts, to itself. On 22 January, 144 such petitions from across the country were listed before the Supreme Court. A three-judge bench headed by Bobde issued notices to the centre on all cases, and gave the centre four weeks to respond.
Gogoi’s work on Assam’s NRC project, conducted with scant regard for civil liberties, would serve as an important judicial precedent when this government begins preparing the NRIC. With the deterioration of the Supreme Court as an institution, under chief justices such as Gogoi, the judiciary seems unlikely to be a guardian of the Constitution.
AT THE THIRD Ramnath Goenka Memorial Lecture, Gogoi recalled a quote by Alexander Hamilton, the first treasury secretary of the United States and an architect of the US constitutional order. Hamilton had suggested that the judiciary was the “least dangerous” of the three branches of government. “But were he to be here today,” Gogoi said, “I wonder if he would have felt the same way.” Gogoi’s comments came on the heels of Dipak Misra facing the first ever impeachment proceedings against a CJI. But Gogoi did not have much to offer on how exactly the system had been compromised, and what had gone wrong. Instead, he provided his own vision for what he considered to be the role of the Supreme Court.
He noted that in the 1970s the court expounded on the basic structure of the Constitution, and in the 1980s it expanded the scope of Article 21, which guarantees the right to life and liberty. “By the 1990s, it became somewhat of a good-governance court, by innovatively interpreting constitutional provisions to address the inadequacies consequent upon executive and legislative inactivity,” he said. “For the effectiveness of the judgments to show, the justice-dispensation system has to be made more result-oriented, namely to say, more focussed on enforcement.”
Gogoi said that the judiciary must be more proactive and more on the front foot. “Of course,” he added, the judiciary’s conduct must be “subject to constitutional morality—here, the separation of powers.” This mention of the separation of powers between the legislature, the executive and the judiciary means little when considered alongside Gogoi’s tenure as a CJI who redefined the role of the judiciary to address the “inadequacies consequent” upon the executive and the legislature.
Towards the end of his speech, it was as if Gogoi issued a warning about what was to come. Invoking Hamilton again, he said, “While the civil liberties will have nothing to fear from the judiciary alone, they will have everything to fear from the union of the judiciary with either of the other two branches.”
ARSHU JOHN is an assistant web editor at The Caravan. He was previously an advocate practicing criminal law in Delhi.
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