Pre-publication draft September 2023 under seal.73 The Court presumably sought to insulate the update from political influence, but in the process introduced opacity and unaccountability. The bureaucratic process of the NRC update also suffered from many well-documented design and implementation flaws.74 The update’s unreasonably compressed schedule placed a heavy burden on the state’s residents, especially the most marginalized among them. Many requirements were altered mid-way, resulting in confusion and potentially several unjustified exclusions. One of the most discriminatory norms was the incorporation of the category of ‘original inhabitants’ or OIs who were meant to be automatically included in the NRC. The authorities never formally defined who qualified as OIs, and increasing evidence has shown that Bengali-origin citizens, especially Miyas were excluded in practice from this category en masse.75 The NRC authorities also decided to exclude ‘D-voters’ and persons declared foreigners by tribunals. The most profound flaw was treating documentary proof as necessary for citizenship status. Several applicants, especially those who were socially marginalized, found it next to impossible to procure documents.76 Women were less likely than men to be literate or with access to property rights, and hence more likely to be without property deeds or school certificates. Sexual minorities argued that they were often estranged from their families, and hence had lost access to their documents. Transgender persons were especially vulnerable because of having changed their gender or sex recorded at birth. The Supreme Court in its NRC order reproduced and endorsed the racialized and exceptionalist logic, reminiscent of the Sonowal judgment, as the basis of its extraordinary executive action. The two-judge bench accepted that the petitioners had a prima facie case against the naturalization of immigrants under section 6A of the Indian Citizenship Act. The bench noted that naturalization under the provision could amount to a violation of the ‘sovereignty and integrity of India’ and the right to life and culture of ‘the Assamese people as a whole’.77 Consequently, the judges held that their petition deserved a hearing on merits by a larger bench of five judges. Such larger benches are usually reserved for deciding important constitutional cases. Yet even before the larger bench could be constituted (and it is yet to be constituted), the judges proceeded to initiate several executive actions. ‘Not only is there an assault on the life of the citizenry of the State of Assam’, the bench noted, ‘but there is an assault on their way of life as well’.78 It further noted that, ‘[t]he culture of an entire people is being eroded in such a way that they will ultimately be swamped by persons who have no right to continue to live in this country’.79 By not intervening immediately, the judges asserted that the Court ‘would be guilty of shirking [its] Constitutional duty to protect the lives of our own citizens and their 73 74 75 76 77 78 79 Gautam Bhatia, ‘Justice Must Be Open, Not Opaque’ Hindustan Times (New Delhi, 19 October 2018) <www.hindustantimes.com/analysis/justice-must-be-open-not-opaque/storyuOIfNMAKfX0sijzmkAETnM.html> accessed 1 March 2022. See Azad, Bhat and Mander (n 4); Deepankar Basu, ‘Assam and the NRC’ (2020) 55(39) Economic and Political Weekly 55; Abhishek Saha, No Land’s People: The Untold Story of Assam’s NRC Crisis (HarperCollins 2021). See D Bhattacharjee, ‘NRC for Assam: A Flawed Design’ (Citizens for Justice and Peace, 7 January 2021) <https://cjp.org.in/nrc-for-assam-a-flawed-design> accessed 1 March 2022. Azad, Bhat and Mander (n 6). NRC Order [30]. ibid. ibid. 15 Electronic copy available at: https://ssrn.com/abstract=4111014