Pre-publication draft September 2023 culture’.80 Evidently the judges drew a line between what they saw were the deserving citizens of India — the Assamese populations — and those who were the ‘migrants’ and hence suspect foreigners. Without much by way of reasoning as to the basis of its powers or the nature of the bureaucratic effort, the Supreme Court ordered the updating of the NRC and issued the schedule. Over the next many months, a special bench of the Court continued to supervise the update. The final list of the NRC was released on 31 August 2019. The list left out more than 1.9 million residents, who now were marked as suspected foreigners, technically with the right to appeal to the tribunals against their exclusion. It is not merely the uncertainty of legal outcome of this process that makes the condition of persons subject to it precarious. What makes the NRC a citizenship irregularization exercise is the way in which the Indian state has politically instrumentalized citizenship, and the tactics of courts in legitimizing the suspension of citizenship. The most significant tactic was that of judicial evasion and delay. Evasion is visible in the way the Supreme Court dealt with two legal questions. Since the Court referred the constitutional validity of section 6A of the Indian Citizenship Act to a larger bench, it had not determined the validity of the substantive norms of citizenship that were bound to be the basis of the NRC update. Similarly, another consequential legal question regarding whether birthright citizenship would be applicable in Assam was referred to a larger bench. This question was crucial for the status of persons who were born to non-citizen parents in Assam before 1987. Despite this question not having been authoritatively decided, the Court directed the NRC authorities to limit inclusion only to persons with at least one parent who is an Indian citizen. It is safe to assume that these confounding decisions may have led to the exclusion of numerous individuals from the NRC, even if under the law they qualify as Indian citizens. The Supreme Court has adopted a similar tactic even after the finalization of the enumeration. Despite millions having been excluded from the NRC, politically dominant groups including the ruling political party have consistently expressed dissatisfaction with the numbers of potential foreigners. Since the final draft of the NRC in August 2019, these political elements have insisted that numerous foreigners have managed to enrol in the NRC by taking advantage of what they believe to be lax procedures and administration’s corruption.81 These assertions — vociferously made in a volatile racialized and securitized rhetoric — have now gained substantial political support despite a complete absence of evidence.82 After having piloted the NRC, the Supreme Court under the leadership of the new chief justice stepped back from the exercise. Rather than directing the government to proceed with the appeals against exclusion, the Court has consistently not intervened, even as this continues to undermine its authority. 80 81 82 ibid [31]. ‘Assam: 80 Lakh Names of Illegal “Immigrants” Entered in Final NRC’ United News of India (New Delhi, 30 March 2022) <www.uniindia.com/story/Assam-80-lakh-names-of-illegal-immigrants-entered-in-finalNRC> accessed 31 March 2022. Suraj Gogoi, ‘Assam & Citizenship: Sarma’s Comment Shows There Will Never Be a “Final” NRC’ The Quint (New Delhi, 31 March 2022) <www.thequint.com/voices/opinion/assam-citizenship-sarmascomment-shows-why-therell-never-be-a-final-nrc#read-more> accessed 31 March 2022. 16 Electronic copy available at: https://ssrn.com/abstract=4111014