Pre-publication draft September 2023 citizenship with the rule of law. Through the logic of exceptionalism, the Supreme Court bracketed citizenship processes out of the ordinary legal norms. Subsequent judicial developments have further engrained these features through various tactics. One such tactic that the previous section highlighted has been that of non-application of norms: the courts, following racialized and exceptional logic, have left the exercise of bureaucratic discretion ungoverned by the rule of law. This section highlights the second tactic, namely, that of judicial evasion. The tactic of evasion is most visible in how the Supreme Court initiated and supervised the update of Assam’s NRC. The NRC was a subterranean demand in Assam for decades. In 1951, the government of Assam prepared the original NRC drawn from the census data. The 1951 NRC was widely seen to be incomplete and inaccurate. The proposal to update the NRC — as a strategy of resolving Assam’s immigration controversy — started to gain ground particularly during the 1990s. Governor Sinha’s report recommended updating the NRC, and the 2003 Citizenship Rules endorsed the proposal not just for the state but also for the whole country. Despite its legal incorporation, the central government remained reluctant to implement the policy. The NRC update was expected to be administratively burdensome. When the policy was eventually implemented from 2013 to 2019, it cost more than 150 million US dollars.70 Another reason for the reluctance may have been how demanding the update was bound to be for ordinary citizens. It would have required the 33 million residents of Assam to provide evidence of citizenship, mostly in documentary form. When it was finally updated, Assam’s NRC ended up excluding 1.9 million residents of the state. Between 2009 and 2013, after a series of violent anti-immigrant incidents in Assam, several petitioners approached the Supreme Court challenging section 6A of the Citizenship Act. The petitioners argued that the provision was unfair and discriminatory towards Assam’s citizens by providing a wider route to naturalization for alien immigrants in the state. They also demanded that the Court order the government to take more proactive steps to address the immigration question in the state. One of the petitioners asked the Court to direct the government to update the NRC in the state. In an unprecedented order in December 2014,71 a two-judge bench of the Court headed by Chief Justice Gogoi and Justice Nariman, initiated the update. While the Indian Supreme Court has been known to take activist decisions,72 its NRC order was unusual even on these terms. Rather than merely directing the government, the Court assumed the supervision of the NRC update, including directly instructing the NRC administration, approving the methodology and technologies, and mandating the update schedule. The Supreme Court’s supervision led to procedurally pathological consequences. On several occasions, Justice Gogoi asked the NRC administrator to share crucial details of the project 70 71 72 Amit Shrivastava, ‘An All-India National Register of Citizens will be an Economic Disaster’ The Wire (New Delhi, 9 December 2019) <https://thewire.in/economy/all-india-nrc-costs> accessed 11 September 2023. Assam Sanmilita Mahasangha v Union of India [2015] 3 SCC 1 (NRC Order). See generally Satyaranjan P Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (OUP 2002). See also Manoj Mate, The Rise of Judicial Governance in the Supreme Court of India (2015) 33(1) BU Int’l LJ 169. Mate gives an account of how the Indian Supreme Court became arguably the most powerful court among democratic polities. 14 Electronic copy available at: https://ssrn.com/abstract=4111014