In India, it is not often that a Supreme Court Judge gets hauled over the coals over a verdict or directive. Yet the unthinkable has just happened: barely days after his retirement, former Chief Justice of Supreme Court (SC) Ranjan Gogoi has come under a stinging attack from his judicial peers for his handling of the NRC (National Register of Citizens) operations in Assam.

When Indian policymakers in their collective wisdom decided to update the Assam NRC, they were convinced that it would enable them to estimate accurately the number of illegal immigrants. Bangladesh had declared that none of its citizens had crossed over illegally into India. Therefore, it would not accept as its citizens anyone arbitrarily pushed back by India in the absence of evidence.

Well, the NRC’s work, conducted after three years of drum-beating and hoo ha, has ended but the number of illegal settlers in Assam remains unknown! But the end result of such an operation in Assam alone has caused a blackening of India’s image abroad that may take years to wash away.

Internationally, nothing has embarrassed India more as a country or the ruling Bharatiya Janata Party (BJP), than the Assam NRC business. At home too, it has enabled India’s demoralised and divided opposition to regroup and counter the BJP strongly in 15 out of 28 states. The crowning irony is that the BJP really had nothing to do with the NRC in the first place!

The NRC had been rammed through in Assam on the SC’s initiative, as a follow-up measure to the 1985 Assam accord. As the SC’s Chief Justice, judge Gogoi personally monitored and guided the process of disenfranchising suspected illegal settlers in Assam. He cracked the whip on concerned state and central authorities to complete a highly complex and extremely delicate exercise within the stipulated time. The apex ignored official requests to extend the deadline, as unforeseen complications and controversies constantly plagued the work. Under the former CJ, the SC, according to HR organisations, could not deliver even marginal relief to millions of poor, harassed people struggling to protect their minimum rights.

As explained in these columns earlier, the results have been anti climatic. The much anticipated crackdown on allegedly illegal Muslim immigrants did not happen! Out of the 1.9 million people going unlisted on Aug 31, 2019, Muslims number only around 300,000 or so, according to indications. Many have legally challenged their exclusion, which they allege to be deliberate, so that the final numbers would be even lower.

Out of a population of 320 million in Assam, a final figure of 100,000 or 200,000 of ‘dubious people’ would be a very small percentage indeed. It could not justify the high financial cost of the NRC fiasco, or the subsequent massive decline in India’s prestige. The catalogue of the NRC’s ‘achievements ‘ does not impress : Rs 13 billion spent officially, plus Rs 6 billion spent by poor people allegedly targeted by the authorities, the labour put in by 50,000 officials over three year, at least 50 people killing themselves …. And still they could not locate the ‘millions of illegal settlers in Assam ‘!

Such a colossal meltdown was bound to generate a general censure of the NRC ops and the concerned officials . As later developments spiralled out of control for Delhi-based rulers, the SC’s pivotal role came under fresh judicial scrutiny. Former Delhi High court Judge, Justice AP Shah who has a reputation for plain speaking, has now spoken out strongly against Justice Gogoi.

Addressing at least two recent meetings of jurists and Delhi-based intellectuals, Justice Shah rued that in recent times, the SC seemed to be functioning more as an executive body rather than as India’s supreme authority to settle all questions involving individual freedom, constitutional proprieties and the rights of citizens.

Referring specifically to Assam NRC operations and naming Justice Gogoi, Justice Shah noted that when the latter learnt that 900 people were interned in detention centres in Assam for failing to prove their citizenship, he had asked angrily, ’Only 900?’ Given this position, what could be the prospects for people, mostly poor, who were trying hard to protect their minimum rights, asked Justice Shah.

He also referred to Judge Gogoi’s order to officials to submit details about the NRC ops to the SC in ‘sealed covers’, obviously to avoid a public debate. Justice Shah asked, considering the importance and gravity of the matter, why the proceedings had to be kept secret, why were the people not being informed as to how their human rights were being handled by the highest court in the land?

It needs stressing that long before the final list of citizens was published on Aug 31 last year, veteran journalist/analyst Mr Sanjay Hazarika, along with leading HR activist Mr Harsh Mander, had revealed in the media details of the high-handed arbitrariness of some official directives. These were seemingly intended to make the burden of proof as difficult as possible for those targeted for exclusion!

Their revelations found ready resonance with international HR organisations like the Amnesty International and others. Pretty soon, Indian officials posted abroad found themselves having to answer awkward questions about the Assam NRC at major gatherings. This was followed by memoranda and demonstrations by protestors in many countries. Statements from top US and EU leaders, questioning India’s supposedly ‘secular and inclusive’ policies, were issued.

As the NRC mess hit the proverbial ceiling, the ruling BJP sought to distance itself hastily from what had happened in Assam. Its leaders pointed out repeatedly----and truthfully----that the NRC was the brainchild of the Congress and the SC was the sole authority conducting it. The BJP had nothing to do with it. But it was bound by the Constitution to carry out the SC directives.

But this was not the whole truth. BJP leaders, to put it mildly, were being selective with facts. But for the universal condemnation of the NRC and related matters with even the US and the EU not backing India, it is doubtful if the BJP would have taken note of the obvious efforts to deprive Muslims in Assam of their minimum civil rights. ‘It is hard to forget the repeated announcements made by Prime Minister Narendra Modi and former BJP president Amit Shah declaring Delhi’s intent to identify and deport/jail illegal immigrants. They might not have actually sponsored the NRC. But they made full political and administrative use of the NRC instrument, during the election campaigns in Assam and elsewhere, as part of their hardline policy to marginalize the Muslims, ‘says Charubrata Ray, political analyst.

Now that the NRC’s toxic political fallout has catalysed an unforeseen Muslim consolidation all over India, with its massive political impact in a 15 major states ---- yesterday’s Delhi election results showing another massive defeat for the BJP rightwingers!---- the ruling party feels concerned that things are running out of control at home. It is time to take several steps back. The Union Home Ministry’s assertion that as of now, there is no proposal to implement the NRC is part of the party’s retreat.

Assam’s BJP Chief Minister S Sonolwal, an enthusiastic NRC advocate, had outlined plans to build 10 more detention centres for the disenfranchised, before recent events put paid to such schemes. Now there is a government order to release non-Muslim prisoners, who form the majority of those detained, immediately from the detention centres!

A Kolkata-based analyst complimented the judiciary for reacting to the excesses against Muslims and others in Assam by different agencies and authorities over citizenship issues. He hoped the BJP would play a major role in redressing the thousands of complaints and grievances addressed to the authorities.

However, there is still no clear answer to a rather sensitive question: would the BJP- ruled government, and the judiciary have acted if (a) there was no international condemnation of the Assam NRC and (b) its massively negative political fallout in India?