The Transnational Human Rights Review, Vol. 8, Iss. 1 [2021], Art. 1 Moreover, the Assam High Court, the highest constitutional court in the state, belatedly decided that certain documents (such as Gram Panchayat certificates) would no longer be used for identification purposes, even while acknowledging this could lead to the exclusion of entire masses. Apparently, “public interest” would be better served considering the seriousness of the immigration issue.125 The Supreme Court provided partial relief, holding that they could be used for establishing linkage (and not to show that they were Indian citizens), but only after “strict verification”.126 The judgement hit women and transgender applicants who lacked alternative documents the hardest: since the former on marriage, usually relocated to other districts; while the latter had to indulge in a lengthy explanation over why their present and former names, in addition to their residential addresses were different. The arbitrariness in the procedure is telling where individuals have been excluded even when their relatives have made it to the list, and the Supreme Court has only considered the relatives’ inclusion to be a ‘material’ – not conclusive evidence for proof of nationality. 127 (c) What State Protection? How the Judiciary Failed Its Citizens A prerequisite to the claim of persecution, is not merely the showing of harm howsoever severe, but also the fact that there is no redressal available from the state. However international law recognizes that it is not merely an act of the state, but also refusal to act (or passivity) that contributes to persecution, even if it itself does not base such passivity on the protected identity of the individuals.128 Doubts as to the fact of persecution arise where one state organ acts in a persecutory manner, and other state organs that are meant to intervene in such instances do not intervene.129 Thus, the legislature, executive and judiciary, whether individually or in concert, could be carrying out persecutory policies, or enforcing neutral policies in a persecutory manner. When that occurs, a reasonable perception created that the individual cannot turn to the state any longer for protection.130 This sub-section discusses why the judiciary, especially the Supreme 125 Rupajan Begum v Union of India, Civil Appeal No 20858/2017 (5 December 2017) (upholding the decision of the state HC in Manowara Bewa v Union Of India and with special emphasis on paras 8 and 10),online: <https://indiankanoon.org/doc/72539677/>. 126 Ibid. 127 Abdul Kuddus v. UOI, Civil Appeal No. 5012 of 2019 (17 May 2019) (arising out of SLP 23127 of 2018). 128 James C. Hathaway & Michelle Foster, “Failure of State Protection” in, The Law of Refugee Status, 2nd ed (Cambridge: Cambridge University Press, 2014) 288 at 294-295. 129 Ibid. In brief, case laws over persecution have focused on tests such as efforts of the state towards protection and whether such efforts are truly effective. 130 Ibid at 298. https://digitalcommons.osgoode.yorku.ca/thr/vol8/iss1/1 DOI: 10.60082/2563-4631.1096 22