It is time Chief Justice of India Ranjan Gogoi reins in Bharatiya Janata Party president Amit Shah and his friends from vitiating the process of updating the National Register of Citizens for Assam, which aims to separate genuine Indian citizens from those the State defines as “illegal immigrants”. Through their venomous speeches they have turned the exercise into a tool for communal polarisation and terrorising Indians outside the northeastern state in a bid to gain votes.

Justice Gogoi has a reason to worry because he and Justice Rohinton F Nariman have been supervising the updating exercise. Even though there have been many claims of faulty exclusion from the National Register of Citizens, the process has acquired credibility precisely because the Supreme Court’s monitoring of it has been devoid of political motivations.

But this perception is likely to change, if it has not already, because of the manner in which Shah and the BJP have been invoking the National Register of Citizens to frame the undocumented immigrants issue in India. This comes at a time polls in five states – Rajasthan, Madhya Pradesh, Chhattisgarh, Telangana and Mizoram – are imminent. Ever since July 30, when the final draft of the National Register of Citizens was made public, Shah has been explicitly or implicitly crediting the decision to identify such immigrants to Prime Minister Narendra Modi.

This is downright fiction. The exercise to update the National Register of Citizens in Assam – for the first time since 1951 – was because of a Supreme Court ruling in 2013. Modi and the BJP had not yet come to power then. Judges are not inclined to demand credit. But what is worrying is the gradual politicisation of the National Register of Citizenship updating process.

For instance, on August 4, at a public rally in Rajsamand district of poll-bound Rajasthan, Shah said, “The BJP government has undertaken the screening of illegal Bangladeshis in the country but Congress is opposing so that their vote-bank remains intact.” He, however, also said at the rally, “There is a Supreme Court order and we will ensure it is implemented and they are identified.”

But it is not the BJP government but the bureaucracy, working under the supervision of the Supreme Court, which is engaged in the exercise of updating the National Register of Citizens. Nor is it correct to describe the 40 lakh people who did not make it to the final draft of the National Register of Citizens as “illegal Bangladeshis”.

For one, they all have yet another chance to prove their citizenship before the register is finalised. It is likely that the figure of 40 lakh could go down dramatically. Second, those who fail to make it to even to the final National Register for Citizens will still not become “illegal immigrants”. In each case, that status will have to be judicially determined.

But such legal subtleties are lost on Shah. In Gangapur town of Rajasthan on September 22, Shah was reported as saying, “The BJP government brought NRC [National Register of Citizens] and prima facie identified nearly 40 lakh illegal immigrants.”

Depending on what Shah speaks and where, it could very well appear to his listeners that the Supreme Court’s role in the updating of National Register for Citizens was either nominal or subservient to that of the government. Or, worse, both were working in tandem.

Us vs them

This should worry the chief justice because Shah has fashioned the National Register of Citizens into a veritable instrument for both terrorising and polarising people. In doing so, he has violated the very spirit of the observation that the bench of Justice Gogoi and Justice Nariman had made after the final draft of National Register for Citizens was released. They had said, “Court would like to observe that what has been submitted is a complete draft NRC [National Register of Citizens] which, naturally being a draft, cannot be the basis for any action by any authority.”

For sure, the Modi government has not taken any action on the basis of the draft. Nevertheless, in language both menacing and virulent, Shah has laid out a template for what that action would be in the future. For instance, in the rally at Gangapur, Shah said: “The infiltrators have eaten the country like termites.”

The only way to tackle termites is to eradicate them. The use of the word “termites” conjures a violent imagery, suggestive of the liquidation of human beings as a solution even though it is possible Shah did not literally mean it. Equating illegal immigrants with termites certainly dehumanises them. But it was not a one-off lapse. Shah repeated the word “termites” again at a rally in Madhya Pradesh, another poll-bound state. “While you [farmers] feed the people, they [soldiers] guard our borders,” Shah told the crowd at Ratlam on October 6. “But infiltrators are like termites, which eat away at the country’s security. They need to be removed.”

The National Register of Citizens is fast emerging as the most potent weapon of “othering” segments of Indians – that is, treating people of one group as outsiders and enemies. This is discernible from an analysis of Shah’s public speech in Delhi on September 23. “There are illegal infiltrators in Delhi,” he said. “Are they not a problem, tell me? Shouldn’t we remove these illegal infiltrators? Illegal infiltrators in crores have entered the country.” In Shah’s imagination, the 40 lakh people who could not make it to the final draft of the National Register of Citizens for Assam have multiplied to crores of infiltrators who slip through the borders to settle in different parts of the country. In Delhi at least, Shah described illegal infiltrators as those who “throw bombs and kill innocent citizens”.

Shah resorts to ambiguity of language because undocumented immigrants have never been perceived as a demographic or economic threat in Rajasthan, Madhya Pradesh or Delhi. His description of undocumented immigrants consequently becomes an innuendo against Indian Muslims, some of whom have been convicted in terror activities in the past. His references are in the nature of dog’s whistle that seeks to arouse the majority community’s suspicion of Muslims. Alarmingly, in Delhi, Shah again resorted to the termite imagery. “Like termites, they have eaten the future of the country,” he said. “Shouldn’t they be uprooted?”

The issue of undocumented immigrants has a long history. But what is new is the projection of the National Register of Citizens as a magical mechanism that was not available earlier to sift such immigrants from genuine citizens. Shah is implying that it is imperative to introduce the mechanism across India as there are, according to him, “crores of infiltrators” in the country.

It is this twisted logic that has had Haryana Chief Minister ML Khattar promise that the National Register of Citizens will be updated for his state too. This will certainly terrify Haryana’s Muslims, who comprise just about 7% of the state’s population. Economically and educationally backward, their citizenship will be imperilled in the absence of requisite documents to prove it. Unlike Assam, the people of Haryana do not have a tradition of maintaining documents dating decades ago. However, the Hindus of Haryana will not fear the National Register of Citizens because their names will become a foolproof guarantee of their citizenship status. Haryana is not a border state. After Partition, unlike Assam, it has not reported an influx of Hindus from Pakistan or Bangladesh. From this perspective, the National Register of Citizens has become a tool for profiling and tormenting Muslims.

People stand in line to check their names on the first draft of the National Register of Citizens at Gumi village in Assam’s Kamrup district on January 1, 2018. (Photo credit: AFP).

Supreme Court must act

The Supreme Court has been understandably sensitive on the National Register of Citizens issue. For instance, when the coordinator of the National Register of Citizens, Prateek Hajela, told the Indian Express in August that it was premature to describe as infiltrators the 40 lakh people who could not make it to the final draft, Justice Gogoi and Justice Nariman severely reprimanded him. “We should be holding both of you [the other person was registrar general Sailesh] guilty of contempt and sending both of you to jail. Whatever you say they all reflect on us,” the justices said.

Shah and leaders of the BJP are not officers of the court. Yet there can be little doubt that their pronouncements have brought the National Register of Citizens into disrepute, which, as it was in the case of Hajela, also reflects on the Supreme Court. Might not Chief Justice Gogoi take suo motu notice of Shah’s comments to rein him in from turning the National Register of Citizens into a darkled symbol of the future awaiting the nation?