As per Bar & Bench, the order was passed by a Bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi, while hearing a batch of three writ petitions challenging the 2026 Regulations. Though interim in nature, the order is notable both for the breadth of constitutional concerns flagged by the Court and for the decision to suspend a regulatory framework expressly designed to address caste-based discrimination in higher education.

What follows is not merely a recounting of the proceedings, but a critical examination of why a stay was granted, whether settled principles governing interim interference were adhered to, and how the Court’s reasoning engages—sometimes uneasily—with the constitutional understanding of caste, equality, and structural disadvantage.

Background: From the 2019 PIL to the 2026 Regulations

The 2026 Regulations were framed pursuant to proceedings in a 2019 writ petition filed by Radhika Vemula and Abeda Salim Tadvi, the mothers of Rohit Vemula and Payal Tadvi, both of whom reportedly died by suicide after facing sustained caste-based discrimination within their educational institutions. According to LiveLaw, the PIL sought the creation of a robust institutional mechanism to address caste discrimination on campuses, contending that existing safeguards—particularly the 2012 UGC Regulations—had proved insufficient.

The petition may be read here.

Over the years, the Supreme Court repeatedly emphasised the need for a stronger, more effective framework, even inviting stakeholder suggestions while the draft regulations were under consideration. After this consultative process, the UGC notified the 2026 Regulations in January 2026, expressly superseding the 2012 framework.

A close reading of the orders passed in that matter reveals a judicial trajectory that sits in visible tension with the later decision to place the 2026 Regulations in abeyance.

1. January 3, 2025: Court acknowledges systemic failure and demands data, enforcement, and redesign

In its order dated January 3, 2025, the Court expressly recognised that adjudication could not proceed without assessing how universities had implemented the 2012 Equal Opportunity Cell Regulations, and whether those mechanisms had actually worked in practice.

The order may be read below:

Crucially, the Bench:

• directed the UGC to collate nationwide data on Equal Opportunity Cells,
• sought disclosure of complaints received and Action Taken Reports, and
• required the UGC to place its newly formulated draft regulations on record.

This was not a neutral procedural step. It reflected a judicial acknowledgment that formal regulatory existence had not translated into substantive protection for marginalised students. The Court was, at this stage, explicitly concerned with implementation failure, not over breadth or misuse.

2. April 24, 2025: The Court permits notification — and treats the Regulations as additive, not suspect

By April 24, 2025, the Court went further. While disposing of an application seeking to restrain the notification of the draft regulations, the Bench refused to halt the regulatory process. Instead, it clarified that the UGC was free to notify the regulations and that they would operate in addition to the recommendations of the National Task Force constituted in Amit Kumar v. Union of India.

The order may be read below.

Two aspects of this order matter for present purposes:

First, the Court expressly noted that the steps taken by the UGC pursuant to the Payal Tadvi–Rohith Vemula petition were “in the right direction,” signalling judicial approval of a stronger, institutionalised framework to address discrimination, harassment, and mental health crises in universities.

Second, the Court treated the regulations as iterative and corrigible—open to additions, deletions, and refinement based on stakeholder input and the Task Force’s findings. There was no suggestion that the very idea of a caste-conscious equity framework was constitutionally suspect.

3. September 15, 2025: Court endorses a robust, explicitly caste-conscious regulatory vision

The September 15, 2025 order is perhaps the clearest articulation of what the Court itself considered necessary to remedy caste-based discrimination in higher education.

The order may be read below.

After recording detailed submissions by senior counsel Indira Jaising, the Court flagged — without rejection — a set of far-reaching structural safeguards, including:

• a clear prohibition on all known forms of discrimination,
• an express ban on segregation based on rank or performance,
• grievance redressal bodies with mandatory representation from SC/ST/OBC communities,
• personal liability of institutional heads for negligence,
• caste-sensitive mental health counselling,
• NAAC-linked audits and social data collection, and
• withdrawal of grants for non-compliance.

What is striking is that many of these proposals go well beyond the minimal guarantees under the 2012 framework. The Court did not characterise them as excessive, divisive, or constitutionally dubious. Instead, it treated them as necessary correctives to entrenched structural discrimination.

The contradiction: Seen in this light, the later stay of the 2026 Regulations marks a sharp doctrinal and institutional turn.

In the Payal Tadvi–Rohith Vemula petitiom, the Court:

• acknowledged caste-based discrimination as systemic and institutional,
• accepted that neutrality and general anti-ragging norms were inadequate,
• encouraged regulatory expansion and refinement, and
• emphasised accountability, representation, and enforceability.

Yet, in staying the 2026 Regulations, the Court shifted focus to concerns of vagueness, misuse, and over breadth—without explaining why these concerns could not be addressed through interpretation, amendment, or guidelines, the very tools it had earlier endorsed.

This creates a deeper constitutional unease: how does one reconcile a jurisprudence that recognises caste as a structural axis of harm with an interim order that treats caste-specific regulation as inherently suspect? The stay order appears to privilege abstract equality concerns over the lived realities that animated the original petition — the deaths of students failed by institutional indifference.

The Payal Tadvi–Rohith Vemula proceedings were premised on the understanding that caste discrimination in universities is not episodic, but embedded in evaluation systems, hostel allocation, disciplinary processes, and grievance mechanisms. The Court’s own directions repeatedly moved towards differentiated, targeted protections.

Against that record, the suspension of the 2026 Regulations risks flattening constitutional analysis into a question of formal symmetry—treating all students as equally situated—precisely the approach that the Court itself had earlier found wanting.

It is against this backdrop—of Court-monitored reform aimed at addressing demonstrable institutional failures—that the interim stay assumes particular significance.

The Present Proceedings: What transpired before the Court

The challenge to the Regulations came by way of three writ petitions, filed by Mritunjay Tiwari, Advocate Vineet Jindal, and Rahul Dewan. The principal target of challenge was Regulation 3(1)(c), which defines “caste-based discrimination” as discrimination on the basis of caste against members of the Scheduled Castes, Scheduled Tribes, and Other Backward Classes.

According to LiveLaw, the petitioners contended that:

• The definition is restrictive and exclusionary, as it does not recognise caste-based discrimination against persons belonging to non-reserved or “general” categories;
• This exclusion renders such persons remediless, even if subjected to caste-linked harassment or institutional bias;
• The provision violates Article 14 by creating an unreasonable classification lacking a rational nexus with the stated objective of promoting equity.

From the outset, the Bench subjected the Regulations to close scrutiny. Three issues dominated the hearing:

1. The dual definitions of “discrimination” (Regulation 3(1)(e)) and “caste-based discrimination” (Regulation 3(1)(c));
2. The omission of ragging from the 2026 Regulations, despite its inclusion in the 2012 framework; and
3. The use of the term “segregation” in Regulation 7(d), particularly in relation to hostels, classrooms, and mentorship groups.

The Court repeatedly remarked that the Regulations appeared vague, capable of misuse, and potentially productive of social division rather than cohesion.

The Interim Order: What the Court did

By its interim order dated January 29, 2026, the Supreme Court:

• Issued notice to the Union of India and the UGC, returnable on March 19, 2026;
• Directed that the 2026 Regulations be kept in abeyance; and
• Exercising powers under Article 142, ordered that the UGC Regulations of 2012 would continue to operate in the meantime.

As per Bar&Bench, the Court framed four substantial questions of law, broadly concerning:

• The rationality and necessity of defining “caste-based discrimination” separately;
• The impact of the Regulations on sub-classifications within backward classes;
• Whether “segregation” envisaged under the Regulations violates constitutional equality and fraternity; and
• Whether the omission of ragging constitutes a regressive and unconstitutional legislative choice.

While these questions undoubtedly merit careful adjudication, the grant of an interim stay itself demands closer scrutiny.

Why was a stay granted — and was it justified?

Ordinarily, courts exercise considerable restraint while staying statutory or delegated legislation, especially when such legislation is aimed at addressing systemic discrimination. The established standard requires a strong prima facie case, demonstrable irreparable harm, and a balance of convenience favouring suspension.

In the present case, the Court relied primarily on:

• Ambiguity in drafting,
• Possibility of misuse, and
• The perceived exclusion of general category individuals from the definition of caste-based discrimination.

However, ambiguity and potential misuse have traditionally been treated as grounds for interpretation, not suspension, particularly in the context of welfare or protective legislation. The order does not demonstrate how the continued operation of the Regulations would cause irreversible harm sufficient to justify a blanket stay. Notably absent is any engagement with the harm caused by suspending a framework designed to respond to caste-based exclusion—an exclusion that is neither hypothetical nor speculative.

The Court’s reliance on the revival of the 2012 Regulations as a safeguard also assumes that the earlier framework was adequate, despite the fact that the 2019 PIL itself was premised on its failure to prevent institutional discrimination.

The Conceptual Problem: What is “caste-based discrimination”?

At the heart of the Court’s concern lies an unresolved conceptual question: is caste-based discrimination symmetrical?

The petitioners — and, to some extent, the Court — appear to approach caste as a neutral identity marker, capable of disadvantaging any individual depending on circumstances. This framing overlooks the constitutional understanding of caste as a structural system of hierarchy, not merely a personal attribute.

Indian constitutional jurisprudence has consistently recognised that caste-based discrimination is not simply discrimination involving caste, but discrimination arising from historical, social, and economic subordination of specific communities. To ask why upper-caste individuals are not explicitly protected under a provision addressing caste-based discrimination is to ignore this asymmetry.

Importantly, the Regulations already define “discrimination” broadly and in caste-neutral terms. Any harassment, humiliation, or unfair treatment faced by individuals from non-reserved categories is squarely covered under this definition. The absence of a separate label of “caste-based discrimination” for such individuals does not render them remediless.

The Court’s concern, therefore, risks collapsing the distinction between structural oppression and interpersonal conflict, treating unequal social realities as constitutionally equivalent.

The Slippery Comparison: “Upper castes” and de-notified or extremely backward communities

As noted by legal scholar Gautam Bhatia, one of the petitioners has argued that the impugned regulation suffers from a constitutional flaw comparable to the presumption underlying the colonial Criminal Tribes Act, 1871, which stigmatised entire communities as inherently criminal and was later repealed for violating principles of equality and constitutional morality. This submission, however, appears to rest on an analogy that implicitly places socially dominant or ‘upper’ caste groups on the same constitutional footing as communities that were historically criminalised and later de-notified.

De-notified tribes, in particular, have faced:

• Colonial-era criminalisation;
• Persistent social stigma;
• Economic exclusion; and
• Institutional invisibility even within reservation frameworks.

To suggest that excluding general category individuals from the definition of caste-based discrimination creates an equal protection problem risk flattening historical injustice into abstract formalism. Constitutional equality does not require identical treatment of groups situated in radically unequal positions. Indeed, such an approach may itself violate the principle of equality by treating unequal’s alike.

The Court’s rhetorical invocation of a “casteless society,” while normatively appealing, sits uneasily with judicial precedent cautioning that claims of castelessness often precede, rather than follow, the dismantling of caste hierarchies.

Vagueness, misuse, and the burden on protective legislation

The Court’s repeated emphasis on the “possibility of misuse” raises a familiar but contested trope in Indian constitutional adjudication. It is well settled that: The possibility of abuse of a law is no ground to strike it down.

This principle assumes even greater importance in the context of protective regulations, which have historically been diluted through misuse arguments advanced by socially dominant groups. The order does not explain why ordinary safeguards—such as inquiry mechanisms, appellate review, and judicial oversight—would be insufficient to address misuse on a case-by-case basis.

By foregrounding speculative misuse over structural exclusion, the order risks imposing a higher justificatory burden on equity-oriented regulations than on other forms of delegated legislation.

Ragging, non-regression, and judicial overcorrection

The Court’s concern regarding the omission of ragging from the 2026 Regulations is doctrinally significant, particularly in light of Justice Bagchi’s invocation of the principle of non-regression, as reported by LiveLaw. However, even assuming the omission is a serious flaw, it is not self-evident that the appropriate response was to stay the entire regulatory framework, rather than:

• Read the Regulations harmoniously with existing anti-ragging norms;
• Issue interpretative directions; or
• Direct limited corrective amendments.

The chosen course reflects a form of judicial overcorrection, where legitimate concerns about incompleteness lead to wholesale suspension.

Article 142 and the revival of the 2012 Regulations

The use of Article 142 to revive the 2012 Regulations raises further questions. While intended to prevent a regulatory vacuum, the move effectively substitutes judicial preference for executive policy, without a finding that the earlier framework better advances constitutional values.

This is particularly striking given that the 2026 Regulations were framed pursuant to Court-monitored proceedings and stakeholder consultations following the 2019 PIL. The revival thus appears less as a neutral stopgap and more as a normative rollback, albeit temporarily.

What the Supreme Court Directed in the Payal Tadvi–Rohith Vemula PIL — and why the stay order sits uneasily with it

The Supreme Court’s interim stay of the UGC (Promotion of Equity in Higher Education Institutions) Regulations, 2026 must be read against the backdrop of the Court’s own continuing supervision in Abeda Salim Tadvi v. Union of India—the petition arising from the institutional failures that culminated in the deaths of Payal Tadvi and Rohith Vemula.

Conclusion: interim caution or substantive retreat?

The Supreme Court’s interim order undoubtedly reflects a desire to prevent social fragmentation and regulatory excess. Yet, in its emphasis on neutrality, symmetry, and speculative misuse, the Court risks diluting the constitutional logic of substantive equality that has long justified differentiated protections for caste-oppressed communities.

The deeper danger lies not merely in staying one set of regulations, but in the judicial reframing of caste-based discrimination as a universally symmetrical phenomenon, detached from history and structure. Whether this framing endures at the final stage will determine whether the Court’s intervention is remembered as a moment of careful constitutional recalibration—or as a cautious but consequential retreat from the promise of transformative equality.

The complete order may be read below:

Related:

A Cultural Burden: The ascending hierarchy of caste warfare and the crisis of the Indian republic

Freedom Deferred: Caste, class and faith in India’s prisons

Everyday Atrocity: How Caste Violence Became India’s New Normal

Two Dalit and Tribal girls brutalised in Andhra Pradesh: Pattern of caste violence exposes deep-rooted injustice

Caste Cloud Over Ambedkar Jayanti: From campus censorship to temple exclusion

CJP Maharashtra: Surge in communal and caste-based violence with six incidents in January 2025

2024: Love Jihad as a socio-political tool: caste, endogamy, and Hindutva’s dominance over gender and social boundaries in India

The post The stay of UGC Equity Regulations, 2026: The interim order, the proceedings, and the constitutional questions raised appeared first on SabrangIndia.

When the Court sought the stand of the petitioner, the request was strongly opposed by Advocate Dr. Ujjwalkumar Chavhan, appearing for the petitioner, Dr. Sangram Patil, a UK-based doctor and YouTuber. Counsel submitted that the petitioner continues to be illegally restrained within India due to a Look Out Circular (LOC) that remains in force, despite no final adjudication on its legality. He further pointed out that during the previous hearing, the February 4 date had been fixed after confirming the availability and convenience of the Advocate General, Mr. Sathe, yet the State had failed to file its reply till date.

Emphasising the grave consequences of delay, Dr. Chavhan informed the Court that the petitioner is an MD in Anaesthetics and is employed in the United Kingdom, and that prolonged pendency of the matter is jeopardising his professional career and livelihood. He argued that continuing to restrain the petitioner’s travel without timely hearing effectively amounts to turning the legal process itself into punishment, a practice that runs contrary to established principles of criminal jurisprudence. In view of these submissions, he urged the Court not to entertain any further adjournment.

Accepting the objections raised by the petitioner, the Bombay High Court rejected the State’s request for adjournment, directing that the matter proceed as scheduled.

The case arises from an FIR registered against Patil at the NM Joshi Marg Police Station, Mumbai, based on a complaint filed by Nikhil Bhamre, head of the BJP’s Media Cell. The FIR, lodged on December 18, 2025, alleges that Patil shared or amplified “objectionable” content on social media that amounted to “disinformation” against the Bharatiya Janata Party (BJP) and its senior leaders. The content was allegedly hosted on a Facebook page titled “Shehar Vikas Aghadi.”

Based on the complaint, police invoked Section 353(2) of the Bharatiya Nyay Sanhita (BNS), which penalises acts intended to spread false information so as to incite enmity between groups. The offence is classified as non-bailable.

Patil, a British national of Indian origin, had travelled to Mumbai from London on January 10, where he was detained by Mumbai Police upon arrival at the international airport. Subsequently, on January 19, immigration authorities prevented him from boarding a return flight to the UK, citing the existence of a Look Out Circular. He was eventually permitted to record his statement before the police on January 21, but continues to remain in India due to the travel restrictions.

On January 22, the Bombay High Court, presided over by Justice Ashwin Bhobe, issued notice to the State of Maharashtra on Patil’s plea challenging both the FIR and the LOC. The Court directed the State to file its reply by the next date of hearing.

Patil has approached the High Court through Senior Advocate Sudeep Pasbola, seeking quashing of the FIR and the Look Out Circular. He has also prayed for interim relief, urging the Court to stay the investigation and restrain the prosecution from taking any coercive steps, including filing a chargesheet, until further orders. Additionally, Patil has sought permission to travel back to the United Kingdom, where he is employed.

The matter is scheduled to be taken up next on February 4, with the High Court having made it clear that no further delay will be entertained.

Related:

Bombay HC: Notice to Maharashtra state, police on UK doctor, Sangram Patil’s petition seeking quashing of LOC & FIR

Dr Sangram Patil detained by Mumbai Crime Branch, move sharply condemned

When Genocide is provoked from the Stage: Raebareli hate speeches, Bhagalpur dog whistles, and a delayed FIR

From Purola to Nainital: APCR report details pattern of communal violence in Uttarakhand

The post Bombay High Court rejects State’s adjournment plea in Sangram Patil case; hearing to proceed on February 4 appeared first on SabrangIndia.

After this order, both will be released from custody in the case being probed by the National Investigation Agency (NIA) under the Unlawful Activities (Prevention) Act (UAPA). Gorkhe and Gaichor are required under the conditions laid down by the High Court, have to pay bail bond of ₹1 lakh with surety each and attend the NIA Mumbai office on the first Monday of every month.

A detailed order is yet to be published by the Court. Both Gorkhe and Gaichor were represented by senior lawyer Mihir Desai. This case, also known as the Elgar Parishad case, was earlier handled by the local Pune police and later taken over by the NIA.

The special NIA court in Mumbai had in February 2022 refused bail to Delhi University associate professor Hany Babu and Kabir Kala Manch members Gorkhe, Gaichor and Jyoti Jagtap, all arrested by NIA in 2020. It has taken four years since that refusal of bail for the Bombay High Court to grant this relief.

The special court had accepted prosecution’s case about the alleged role of the accused at the Elgar Parishad event and links to banned organisations attracted stringent UAPA provisions, and found no ground to depart from the statutory bar on bail in UAPA cases. Based on this reasoning, the court had rejected permanent bail to them though it granted interim bail to Sagar Gorkhe to enable him to prepare for and appear in his law examinations, noting his past compliance with bail conditions.

The Court allowed Gorkhe temporary release from November 20 to December 16, 2025 for the same. The accused then approached the High Court which allowed Gorkhe’s and Gaichor’s appeals today.

Hany Babu had secured bail in December last year.

Over a period of two years after the FIR was filed in 2018, sixteen persons were arrested in the Elgaar Parishad–Bhima Koregaon case, nine initially by Pune Police in 2018 and seven later by the NIA after it took over the probe. Of the 16, Jesuit priest and activist Father Stan Swamy died in custody in 2021. Swamy was 84 at the time of his death.

Most of the remaining 15 accused have secured bail or temporary bails from the Supreme Court and Bombay High Court. With today’s order by Bombay High Court, only lawyer Surendra Gadling would continue to remain in jail. Two others, tribal rights activist Mahesh Raut and cultural activist, Jyoti Jagtap are out on interim bails.

Charges in the case are yet to be framed and trial is yet to begin as discharge applications of the accused are being heard. The NIA is also yet to hand over electronic evidence, which it has claimed is key, to the accused persons. 

Trajectory of the arrests

Although named as an accused in the original FIR, Gorkhe and Gaichor were arrested two years after the others. Both Gorkhe and Gaichir have been associated with the Kabir Kala Manch, a cultural group involved in anti-caste campaigns in Maharashtra. In 2011, however, the then Congress- led government accused the organisation of being a front for the banned Naxal movement in the state. Ever since, any association with Kabir Kala Manch has been looked at as illegal by the law enforcement. Both Gorkhe and Gaichor have faced incarceration in the past and an earlier case is pending against them.

Related:

Bombay HC bail for Hany Babu signals a critical reassessment of the Bhima Koregaon Case

Bombay High Court grants bail to Rona Wilson and Sudhir Dhawale in Bhima Koregaon case

Bhima Koregaon case: 5 years on, charges not framed despite repeat extensions

Gautam Navlakha granted bail by Supreme Court in Bhima Koregaon case; orders him to pay 20 lakhs for the expenses incurred during his house arrest

The post BK16 Case: Bail for Sagar Gorkhe and Ramesh Gaichor, five years and five months after arrest appeared first on SabrangIndia.

For a country that saw the Bhopal Gas Tragedy and many such incidents where lack of regulation resulted in massive loss of human life and toll on victims that exists to date, this turnaround is rather surprising. That too, for it to have triggered by a judgement of the Supreme Court, an institution that has been a guardian of environment from the T.N. Godavarman Thirumulpad v. Union of India case, where tree-felling and non-forestry activity in forests across the country was stopped by an order of the Supreme Court to the Niyamgiri hills case where indigenous Dongria Kondh tribe successfully fought against Vedanta Aluminium’s bauxite mining project, using the Forest Rights Act (FRA) 2006 to assert their cultural and religious rights over the sacred hills.[1]

Background: Tracing the Origins of “Prior” Clearance

To appreciate the magnitude of the conflict between the May 2025 and November 2025 Vanashakti judgments, it is essential to situate the dispute within the broader evolution of environmental constitutionalism in India.

In the wake of the 1972 Stockholm Conference and the catastrophic Bhopal Gas Tragedy of 1984, India developed a legal regime grounded in the “Precautionary Principle.” Interpreted by the Supreme Court as part of Article 21 (the Right to Life), this principle requires that environmental protection measures must anticipate, prevent, and address sources of environmental degradation before any damage occurs.

The principal mechanism for implementing this principle is the Environment Impact Assessment (EIA) Notification. Introduced in 1994 and updated in 2006, the EIA framework mandates that certain industrial and infrastructure projects must secure “prior” Environmental Clearance (EC) before any construction begins. The underlying rationale is that any environmental harm, such as deforestation or wetland destruction, is often irreversible. If assessments are conducted post-construction, they serve merely as a bureaucratic formality, failing to achieve the goal of sustainable development.

However, a significant gap has emerged between this normative ideal and the realities of India’s rapid industrialization, ready crony land grab. Successive governments, prioritising the “Ease of Doing Business,” began to grant “ex post facto” (retrospective) clearances to projects that had already commenced operations unlawfully. This practice created a moral hazard—companies found it cheaper to violate the law and pay penalties later than to undergo the rigorous and time-consuming process of prior assessment. The Vanashakti litigation originated when the Ministry of Environment, Forest and Climate Change (MoEFCC) attempted to formalize this practice through a 2017 Notification and a 2021 Office Memorandum (OM), thereby turning what was intended as amnesty into a standard procedure.

The May 2025 Judgment: The Normative Firewall

On May 16, 2025, a two-judge bench consisting of Justice Abhay S. Oka and Justice Ujjal Bhuyan delivered a judgment that aimed to uphold the “Rule of Law” over economic expediency.

Textualist Rigidity and the “Anathema” of Retrospection

The May judgment adopted a strict and literal interpretation of the EIA Notification 2006, holding that the requirement for “prior” EC is mandatory. Relying on precedents such as Common Cause v. Union of India (2017) and Alembic Pharmaceuticals v. Rohit Prajapati (2020), the bench emphasised that ex post facto clearances are “completely alien to environmental jurisprudence” and constitute an “anathema” to the EIA framework. Permitting operations without prior assessment, the Court reasoned, effectively condones violations. If EC is eventually denied after construction, the environmental harm is already irreversible; if granted, the “precautionary principle” is rendered meaningless.

The Sanctity of Executive Undertakings

The Court also scrutinised the legal history of the 2017 Notification, which had offered a six-month “amnesty” window for violators. When challenged before the Madras High Court, the Union Government had assured the court that this was a “one-time measure.” The May bench found that the subsequent 2021 OM—which perpetuated the amnesty indefinitely—breached this judicial undertaking. The Court held that the executive cannot renege on its assurance to the court, striking down the 2021 OM as arbitrary and violative of Article 14.[2]

Rejection of Monetary Regularisation

The May judgment explicitly rejected the notion that penalties under the “Polluter Pays Principle” could substitute for prior compliance. It noted that while Section 15 of the Environment (Protection) Act, 1986 provides for penalties, it does not authorize the regularization of illegal structures. As a result, the Court held that even if penalties are paid, illegal constructions lacking prior clearance must be halted and demolished. The bench stressed that the “Polluter Pays Principle” cannot be twisted into a license to pollute.[3]

The November 2025 Review: The Pragmatic Recalibration

In a dramatic turnaround just six months later, a three-judge Review Bench led by Chief Justice B.R. Gavai (with Justice Bhuyan dissenting) set aside the May judgment.

 The “Per Incuriam” Doctrine and the Battle of Precedents

The Review Bench invoked the doctrine of per incuriam—rendered in ignorance of binding law—to overturn the May judgment. The majority held that the May Bench had failed to consider coordinate bench decisions in Electrosteel Steels Ltd. (2021)[4], Pahwa Plastics (2022)[5], and D. Swamy (2023)[6].

The May Bench had relied on Common Cause and Alembic to assert that ex-post facto EC is illegal. The Review Bench argued that while Alembic described such clearances as “anathema,” it ultimately allowed industries to continue operating after paying fines.

The Review Bench interpreted the relief granted in Alembic (allowing the industry to operate) as the binding principle of law, whereas the May Bench considered the relief as an exceptional measure under Article 142, treating the prohibition on retrospective EC as binding law.

Ultimately, by prioritising Electrosteel—which stated that the Environment Protection Act “does not prohibit” ex post facto clearance—over the strict reading of Common Cause, the Review Bench found the May judgment erroneous for ignoring the more recent “balanced approach” adopted by the Court.[7]

2. The Doctrine of “National Assets” and Sunk Costs

Economic consequences were a decisive factor in the Review Judgment. The Court accepted the Union’s argument that the May judgment would require the demolition of “national assets” valued at over ₹20,000 crore.[8]

The Court cited specific examples such as the AIIMS hospital in Odisha (962 beds) and the greenfield airport in Vijayanagar as projects facing potential demolition.[9]

The Review Bench further argued that demolishing these large-scale projects would cause more environmental damage (from dust and debris) than allowing them to remain operational. The Court rhetorically questioned whether demolishing effluent treatment plants would truly benefit environmental protection.[10] This reasoning, in effect, used environmental concerns to justify non-enforcement of environmental law.

Statutory Flexibility

Contrary to the May judgment, the Review Bench held that Section 15 of the Environment Protection Act does not mandate demolition. The Act, according to the Review Bench, allows for flexibility, and the executive can “amend or modify” notifications as needed.[11] Thus, the 2021 OM was not seen as violating the “one-time” judicial undertaking but as a valid exercise of executive power, especially as it was issued following directions from the National Green Tribunal (NGT).

Analytical Critique: The Erosion of Certainty

The rapid shift between the Vanshakti verdicts reveals a deep schism within India’s environmental constitutionalism. While the Review Judgment saved billions in investment, it set a precarious precedent that undermines the rule of law in three key areas.

The Inversion of Stare Decisis (Precedent)

The main issue with the Review Judgment is its handling of precedent. Justice Bhuyan’s dissent pointed out that Electrosteel and Pahwa—relied on by the Review Bench—were two-judge bench decisions, as was Common Cause, which formed the foundation of the May judgment and offered a comprehensive interpretation of the EIA Notification.

The Review Bench declared the May judgment per incuriam for not following Electrosteel, but the dissent argued that Electrosteel itself was per incuriam for disregarding the binding principle established in Common Cause.[12]

The Review Bench’s position—that the relief granted in Alembic (allowing industries to continue) constitutes binding laws jurisprudentially problematic. The Supreme Court often uses its extraordinary powers under Article 142 to grant case-specific relief while maintaining a contrary legal principle. By elevating discretionary relief to binding precedent, the Review Judgment effectively legalises violations, signaling to lower courts that statutory prohibitions on retrospective clearance can be ignored when economic stakes are high.

The Institutionalisation of Fait Accompli

The Review Judgment entrenches the doctrine of Fait Accompli in Indian law, suggesting that violations on a sufficiently large scale become practically irreversible.

By explicitly referencing the ₹20,000 crore investment as a justification for recall, the Court signaled that the “Right to Environment” is subordinate to the “Right to Investment.” This creates a dangerous incentive for developers to proceed with construction and heavy investments before obtaining clearance, believing that courts will hesitate to order the destruction of “national assets.”

Moreover, the reasoning that demolition itself would cause pollution effectively shields all large-scale illegal infrastructure from enforcement. The further along illegal construction is, the more “environmentally damaging” it becomes to remove, thus guaranteeing its persistence. This undermines the “Precautionary Principle,” which is based on prevention rather than after-the-fact remediation.

Simply put, if the municipality of a city refrains from demolishing the encroachment buildings on banks of lakes, the city will be prone to flood and is exposed to more vulnerabilities than before. Vanshakti II judgement fully fails to engage with this very obvious and basic logic.

Conclusion: From Gatekeeper to Toll Collector

The shift from the May judgment to the November Review marks a transformation in the Supreme Court’s role in environmental governance. The May judgment sought to act as a Gatekeeper, upholding the “Prior Clearance” requirement to prevent environmental degradation before it occurs. In contrast, the Review Judgment recasts the Court as a Toll Collector, allowing violations to continue in exchange for fines and remedial actions.

While the Review Judgment provides a practical solution to the immediate issue of “stranded assets” such as the Odisha AIIMS and the Vijayanagar Airport, it causes enduring harm to the credibility of India’s environmental regulatory regime. It endorses the executive’s strategy of “dilution by notification,” where statutory mandates are weakened to accommodate industrial needs. Most significantly, it undermines the finality of Supreme Court judgments, implying that even environmentally protective verdicts can be recalled if the economic arguments are persuasive enough.

For developers, the message is unambiguous: compliance is optional, so long as one can afford the cost of post-facto forgiveness.

Amen.

(The author is part of the legal research team of the organization)

[1] Orissa Mining Corporation Ltd vs Ministry Of Environment & Forest &Ors, Writ Petition (Civil) No. 180 of 2011

[2] Para 30, Vanshakti v. Union of India 2025 INSC 718 (Vanshakti I)

[3] Para 27, Vanshakti I

[4] Electrosteel Steels Limited v. Union of India and Others  (2023) 6 SCC 615

[5] Pahwa Plastics Private Limited and Another v. Dastak NGO and Others (2023) 12 SCC 774

[6] D. Swamy v. Karnataka State Pollution Control Board and Others (2023) 20 SCC 469

[7] Para 55.1, CREDAI vs. Vankshakti 2025 INSC 1326 (Vanshakti II)

[8] Para 108, Vanshakti II (CJI Gavai)

[9] Paras 109, 110, Vanshakti II (CJI Gavai)

[10] Para 7 (VIII), Vanshakti II (Justice K. Vinod Chandran)

[11] Para 75, Vanshakti II (CJI Gavai)

[12] Para 20, Vanshakti II (Justice Bhuyan)

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Strengthening indigenous communities means protection of the environment 

The post The Judicial Ouroboros: The Vanashakti Reversal & Crisis of Environmental Finality in India appeared first on SabrangIndia.

In UP’s Sambhal, lawyers protest against the transfer of chief judicial magistrate Vibhanshu Sudheer. His transfer is purportedly linked two seperate orders of registration of FIRs against policemen including ASP Anuj Chaudhary. pic.twitter.com/XNVrUYCTGB

— Piyush Rai (@Benarasiyaa) January 21, 2026

The Allahabad High Court on Tuesday, January 20, transferred 14 judicial officers, including the Chief Judicial Magistrate (CJM) of Sambhal Vibhanshu Sudheer.Aditya Singh, the Civil Judge, Senior Division, Sambhal at Chandausi, has replaced Sudheer.

Sudheer, who has now been made Civil Judge, Senior Division, Sultanpur, had on January 19 ordered Sambhal police to lodge an FIR against then Circle Officer (CO) Anuj Chaudhary and SHO in connection with the shooting of a youth during the November 2024 Sambhal violence. The Sambhal police had stated that they would move the Allahabad High Court against the CJM court’s order.

Sudheer an upright judicial officer transferred several times

A social media user posted how Vidhanshu Sudheer, the chief judicial magistrate in UP’s Sambhal who had ordered an FIR against ASP Anuj Chaudhary and other police officers was transferred for the third time in less than a year!

Vibhanshu Sudheer, the chief judicial magistrate in UP’s Sambhal who ordered registration of FIR against ASP Anuj Chaudhary and other policemen, was transferred for the third time in less than a year. pic.twitter.com/ltASN2jADU

— Piyush Rai (@Benarasiyaa) January 21, 2026

Attack on judicial independence

Severely criticising this serious slur on judicial independence, social media users likened this action by the higher judiciary to the transfer of Justice Muralidhar (Delhi HC, now retired) in 2020 after his midnight hearing and castigation of hate speech by BJP leaders who had uttered inciteful words like “Goli Maro Saalo ko.”

Muralidhar transferred after Delhi riots order. Justice Sreedharan transferred after order in BJP leader Vijay Shah’s hate speech case. Vibhanshu Sudheer transferred after directing FIR against police officers in Sambhal violence. What does this tell us about judicial…

— Ashish Goel (@ashish_nujs) January 21, 2026

This user even reminder the conscientious public how –in a publicised change of heart –even the Supreme Court Collegium notified the transfer of Justice Atul Sreedharan to the Allahabad HC and not to Chhattisgarh where he would have been senior most Judge! The Collegium made it public that the action was under the Union Government’s ‘advise’. This became public in October 2025. Earlier last year, Justice Sreedharan had ordered an FIR against BJP minister Vijay Shah for his “scurrilous language” against an Indian Army Officer, Colonel Sofia Quraishi, who was one of the representatives of the Indian army who had briefed the media during Operation Sindoor last May.

Trajectory of Transfer: On August 25, 2025, the Supreme Court Collegium, comprising Chief Justice of India (CJI) B.R. Gavai and Justices Surya Kant, Vikram Nath, J.K. Maheshwari, and B.V. Nagarathna, had first recommended the transfer of 14 judges, including Justice Sreedharan, from the Madhya Pradesh High Court to the Chhattisgarh High Court. However, two months later, on October 14, the Supreme Court Collegium withdrew its recommendation to transfer Justice Sreedharan to Chhattisgarh at the request of the Union Government. Instead, the SC decided to transfer him to the Allahabad High Court instead. Followed by this was a much-publicised statement published on the Supreme Court’s website, which stated that the decision to modify the recommendation was made following a “reconsideration sought by the Government.” No reasons were provided for the government-sought reconsideration of the Collegium’s recommendation publicly. This was the first time, the Collegium has publicly acknowledged that it revisited—and changed—its decision at the Government’s request

Fourteen transfers by Allahabad HC

In the transfer order released by Registrar General of Allahabad High Court, January 2026, Harendra Nath, Additional District & Sessions Judge (Fast Track Court), Kannauj, has been made Additional District & Sessions Judge/Special Judge, Kannauj in the exclusive POCSO case Court, replacing Alaka Yadav, who will be joining as Additional District & Sessions Judge/Special Judge, Gonda.

Special Judge/Additional District & Sessions Judge, Gonda, Vikas has been made Additional District & Sessions Judge (Fast Track Court), Gonda, for trying cases of crime against women.

Urooj Fatima, Additional Civil Judge, Senior Division, Sitapur will be joining as Additional Chief Judicial Magistrate, Sitapur, replacing Anshu Shukla.

Meanwhile, Anshu Shukla has been made Civil Judge, Senior Division, Sitapur, replacing Gaurav Prakash, who will be taking charge of Chief Judicial Magistrate, Sitapur. Prakash has replaced Rajendra Kumar Singh, who will be the Chief Judicial Magistrate, Kannauj.

He has replaced Shraddha Bhartiya, who has been made Civil Judge, Senior Division, Kannauj, replacing Jyotsna Yadav, who will now be Additional Chief Judicial Magistrate, Kannauj.

She has replaced Sneha, who has been made Secretary (Full Time), District Legal Services Authority in Kannauj. Outgoing Sambhal CJM Vibhanshu Sudheer has replaced Alunkrita Shakti Tripathi, who will be Additional Chief Judicial Magistrate in Sultanpur, replacing Shubham Verma. Verma will be joining as Additional Civil Judge, Senior Division/Additional Chief Judicial Magistrate, Sultanpur.

Related:

“Sambhal: Anatomy of an Engineered Crisis”- How a peaceful Muslim-majority town was turned into a site of manufactured communal conflict

Sambhal Custodial Death: A systemic failure exposed

Supreme Court blocks execution of Nagar Palika’s order regarding well near Sambhal Mosque, prioritises peace and harmony

The post CJM who ordered FIR against police for 2024 Sambhal violence case transferred by Allahabad HC, new trend? appeared first on SabrangIndia.

A Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi, and Justice Vipul Pancholi was hearing an application filed by Hindu Front for Justice, which sought permission for day-long Basant Panchami rituals at the site on January 23, coinciding with Friday Juma Namaz. The proceedings and directions were reported by LiveLaw.

Background: A contested sacred space

The Bhoj Shala, an 11th-century monument protected by the Archaeological Survey of India (ASI), occupies a deeply contested place in India’s religious and legal landscape. Hindus regard the structure as a temple dedicated to Goddess Vagdevi (Saraswati), while Muslims consider it the Kamal Maula Masjid.

Since 2003, a court-monitored arrangement has been in place permitting Hindu puja on Tuesdays and Muslim namaz on Fridays, a fragile equilibrium that has periodically come under strain, as per The Hindu.

Arguments before the Court

Appearing for the Hindu applicants, Advocate Vishnu Shankar Jain submitted that Basant Panchami holds exceptional religious significance, with the auspicious muhurat extending from sunrise to sunset, during which uninterrupted pujas and havans are traditionally performed.

Jain urged the Court to consider whether Juma Namaz could be shifted to after 5 PM, allowing Hindu rituals to continue throughout the day without interruption.

Representing the Muslim side, Senior Advocate Salman Khurshid, appearing for the Kamal Maula Mosque Committee, firmly opposed the suggestion, pointing out that Juma Namaz is time-specific and must be performed between 1 PM and 3 PM, in accordance with Islamic religious practice. He clarified that once the namaz concluded, worshippers would vacate the premises, as has been the practice.

Justice Bagchi intervened during the exchange, remarking that the Court was conscious of the religious significance of both practices and cautioning against arguments that ignored doctrinal constraints—an observation noted by LiveLaw.

Administration’s role and court-endorsed arrangement

Seeking to de-escalate tensions and ensure public order, Additional Solicitor General K.M. Nataraj, appearing for the Union of India and the ASI, proposed a pragmatic administrative solution. He suggested that if the mosque committee provided an estimate of the number of persons expected to attend the namaz, the district administration could cordon off a separate enclosure within the compound, complete with distinct ingress and egress, and issue passes to prevent overcrowding or provocation.

Khurshid agreed to furnish the numbers on the same day, a position welcomed by the Court. The Advocate General of Madhya Pradesh also assured the Bench that law and order would be strictly maintained, a commitment the Court formally recorded, as reported by Bar & Bench.

Supreme Court’s recorded directions

In its order, the Bench recorded the consensus arrangement as follows:

“A fair suggestion was given that for the duration of Juma Namaz between 1 PM and 3 PM, an exclusive and separate area within the same compound, including separate ingress and egress, shall be made available so that namaz can be performed peacefully. Similarly, a separate space shall be made available to the Hindu community to conduct traditional ceremonies on the occasion of Basant Panchami.”

The Court further noted that the district administration may issue passes or adopt any other fair mechanism to ensure that no untoward incident occurs.

In a rare and deliberate appeal, the Bench urged both communities to exercise mutual respect and restraint, stressing that cooperation with civil authorities was essential to maintaining communal harmony.

Clarification on pujas and non-interference with merits

When Jain pressed the Bench to explicitly record that Basant Panchami pujas could continue uninterrupted from sunrise to sunset, the Court clarified that this was already permitted under an existing ASI order, and nothing in its directions curtailed that right.

Importantly, the Bench emphasised that its directions were purely interim and facilitative, and did not reflect any opinion on the merits of the larger dispute, which remains sub judice.

Larger Case: ASI survey and High Court proceedings

The application was heard in the backdrop of a Special Leave Petition filed in 2024 by the Maulana Kamaluddin Welfare Society, Dhar, challenging a Madhya Pradesh High Court order directing the ASI to conduct a scientific survey of the disputed complex.

In April 2024, the Supreme Court had allowed the survey to continue but imposed strict safeguards:

• No physical excavation that could alter the structure’s character
• No action on the survey findings without the Supreme Court’s prior approval
• Maintenance of status quo at the site

During Thursday’s hearing, LiveLaw reported, the Court was informed that the ASI has completed the survey and submitted its report in a sealed cover to the High Court.

Accepting a suggestion by Salman Khurshid, the Supreme Court directed that:

• The High Court may unseal the ASI report in open court
• Copies be supplied to both parties
• Where copying is not feasible, inspection may be allowed in the presence of counsel
• Parties be permitted to file objections
• The matter thereafter be taken up for final hearing

The Court further directed that the writ petition pending before the Indore Bench of the Madhya Pradesh High Court be heard by a Division Bench headed by the Chief Justice or one of the senior-most judges, and disposed of the SLP accordingly.

Continuing status quo

Until final adjudication, the Supreme Court ordered that:

• Status quo at the site shall be maintained
• Parties must continue to abide by the ASI’s April 2023 operational order
• No step shall be taken that alters the religious character of the structure

A judicial tightrope

The Court’s orders reflect a careful judicial balancing act—protecting religious freedoms under Articles 25 and 26, while preventing escalation at a site emblematic of India’s broader debates on faith, history, and constitutional secularism.

By foregrounding administrative coordination, mutual respect, and non-interference with pending adjudication, the Supreme Court has, for now, sought to ensure peace at Bhoj Shala—while leaving the ultimate question of its religious character to be resolved through due process of law.

Related:

In UP’s Mosque Coverings, a New Chapter From The Hindutva Playbook Unfolds

Supreme Court blocks execution of Nagar Palika’s order regarding well near Sambhal Mosque, prioritises peace and harmony

Sambhal’s darkest hour: 5 dead, scores injured in Mosque survey violence as UP police face allegations of excessive force

Sufidar Trust, Walajah Big Mosque: The 4 decades long tradition of Hindus serving Iftar meals to Muslims during Ramzan

Conspiracy or Coincidence? Mosques defaced in March after spate of hate speeches provoking the crime weeks before

CJP escalates complaint against Times Now Navbharat show on Gyanvapi Mosque to NBDSA

The post Supreme Court brokers interim peace at bhoj shala, allows basant panchami pujas and Friday namaz under strict safeguards appeared first on SabrangIndia.

It was a single-judge bench of Justice Ashwin D Bhobe issued notice to the respondents and posted the next hearing to February 4. Senior advocate Sudeep Pasbola, represented Dr Patil and submitted that there was urgency in the matter. His client had come to India from the UK on his own and was unaware of the FIR registered against him, he added.

Advocate General Milind Sathe, for the state government, said that Patil “seems to be connected with the other (social media) post and he seems to be not cooperating” with the agency. Sathe stated that a reply to the plea, if any, will be filed within a week, which the court accepted.

The Crime Branch of the Mumbai police detained Patil on January 10 on his arrival at the Mumbai international airport. After 15 hours of questioning, he was later prevented, 10 days later, on January 19, from leaving for the UK. On January 21, he recorded his second statement before the police.

Patil has been charged with offences under Section 353 (2) of the Bharatiya Nyaya Sanhita (BNS), which provides a maximum three-year punishment for publishing, circulation of statement, false information, rumour leading to feeling of enmity and hatred between communities through electronic means. The social media post that has attracted such frenetic ire from the authorities reportedly related to high BJP functionaries.

The NM Joshi Marg police station in Mumbai registered an FIR based on a complaint by BJP media cell functionary Nikhil Bhamre, who claimed that he came across objectionable content posted on a Facebook page named ‘Shehar Vikas Aghadi’ on December 14 last year, with disinformation on the BJP and its leaders. Dr Patil has maintained that he simply forwarded a post of other leaders like Subramaniam Swamy with a mere content, asking why there has been no action against them.

Petition

The Writ Petition filed under Article 226 of the Constitution of India, read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking quashing of FIR No. 0672/2025 dated 18/12/2025 registered with N.M. Joshi Marg Police Station, Mumbai, under Section 353(2) BNSS. The petition argues that the impugned FIR is based on alleged posts on Facebook, which constitute statements of fact and expressions of free speech. The FIR does not disclose the essential ingredients of any cognisable offence, lacks mens rea, alleges no violence or public disorder, and is manifestly malicious, filed by a political functionary to suppress dissent. Besides, the petition states that the continuation of the investigation amounts to abuse of the process of law and squarely falls within the parameters laid down in State of Haryana v. Bhajan Lal.

In the petition Dr Patil seeks the quashing of both the LOC and the FIR No 0672/2025 registered against him at the NM Joshi Police Station on December 18, 2025.

The Petition also states that the FIR does not allege any incitement to violence, threat to public order, or disturbance of public tranquillity. The complaint or FIR does not specify the group of religious, racial, language or regional groups or Caste or communities in which hatred or ill will is promoted by the post. The FIR does not specify whether the silence of the followers is false information or rumour or alarming news. The FIR does not specify how the feeling of enmity or hatred, or ill will, can be generated or actually generated by stating that blind followers remain silent. Also, the impugned FIR does not reproduce the alleged posts verbatim, nor does it disclose the exact words, context, or content which allegedly constitute an offence under Section 353(2) BNS. The allegations are purely subjective and stem from political disagreement.

The Petition argues that the most subjective part of the FIR is which political leader who is defamed by the post is not mentioned. A vague apprehension is expressed about the senior leaders of the party by the complainant. Thereafter the Petition quotes from the invoked Section 353(2) BNS which states that, “    _

(2) Whoever makes, publishes or circulates any statement or report containing false iriformation, rumour or alarming news, including through electronic means, with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities shall be punished with imprisonment which may extend to three years, or with fine, or with both.”

The Petition states that ‘there are three important ingredients in the impugned section:I) The statement should be false or rumour, or alarming news. 2) the statement should create a feeling of enmity, hatred or ill will, and 3) There should be specific religious, racial, language or regional groups or castes or communities involved. None of these three components is fulfilled in the said post.

Besides, states the Petition, the FIR has been registered after an unexplained delay of several days from the alleged date of posting, despite the content being publicly accessible. Respondent Number 5 is admittedly the social media coordinator of a political party, and the complaint is motivated by political fear “with the sole intention to intimidate and harass and silence the voice of the people. The petitioner is harassed not for any offence but to teach a lesson to other people to set a precedent of deterrence.

Further, the Petition goes on to state that “the Police Inspector of N .M Joshi Marg Police Station, Mr. Vilas Rane, i.e. the Respondent No. 1, has mechanically registered the FIR without any preliminary enquiry or investigation and non-application of mind, thereby acting with malicious intent and in misuse of police powers, at the behest of Respondent No.5.

Seeking the quashing of both the LOC issued by the authorities pursuant to the FIR registered, Dr Patl has alleged that he faced “faced inconvenience, mental agony, harassment and defamation because of the illegal and unnecessary issuance of the LOC.” Besides he states that he has incurred financial loss as he missed his flight and the opportunity cost of working at his destination workplace. The continuation of LOC is a continuation of harassment by way of using the procedure as punishment. In any case, the FIR that has sought to be quashed is, the Petition states, “an instance of misuse of criminal law to achieve a political vendetta and suppress any kind of different political view or opinion.”

The state is expected to file its response within a week and the next hearing is on Tuesday, February 4.

Related:

Dr Sangram Patil detained by Mumbai Crime Branch, move sharply condemned

The post Bombay HC: Notice to Maharashtra state, police on UK doctor, Sangram Patil’s petition seeking quashing of LOC & FIR appeared first on SabrangIndia.

The petitioners did not dispute that Doyjan Bibi had once been declared a foreigner by a Foreigners Tribunal. What they questioned was the legality of the State’s subsequent conduct. When a person who had been living on bail pursuant to judicial orders suddenly disappears from custody, and the State claims that she has been “sent back” to another country, the most basic requirement of constitutional governance is that the State demonstrate, through documents and procedure, that this removal was lawful. The petition asked the Court to insist on that minimum. Besides, the petition pointed out that it was only economic marginalisation that had precluded Doyjan from appealing the verdict of the Foreigner Tribunal. She had been granted bail post Covid-19 and as per conditions appeared regularly before the police station to record her presence for years.

Every week, CJP’s dedicated team in Assam, comprising community volunteers, district volunteer motivators, and lawyers, provides vital paralegal support, counseling, and legal aid to many affected by the citizenship crisis in over 24 districts in Assam.  Through our hands-on approach, 12,00,000 people successfully submitted completed NRC forms (2017-2019). We fight Foreigner Tribunal cases monthly at the district level.  Through these concerted efforts, we have achieved an impressive success rate of 20 cases annually, with individuals successfully obtaining their Indian citizenship. This ground level data ensures informed interventions by CJP in our Constitutional Courts. Your support fuels this crucial work. Stand with us for Equal Rights for All #HelpCJPHelpAssam. Donate NOW!

From Tribunal declaration to sudden disappearance

Doyjan Bibi’s legal trajectory was typical of thousands of cases in Assam. She was declared a foreigner through an ex-parte opinion of the Foreigners Tribunal, Dhubri, in August 2017. That opinion was later interfered with by the Gauhati High Court, which granted her a final opportunity to contest the proceedings. When she failed to appear within the stipulated time, the ex-parte declaration revived. Yet, this declaration did not result in immediate deportation. Like many others, she was released on bail pursuant to directions issued by the Supreme Court and the Gauhati High Court during the COVID-19 period, when constitutional courts ordered the release of long-term detainees to decongest detention centres.

For years thereafter, she remained at liberty. There was no allegation on record that she violated bail conditions or absconded. Her sudden re-arrest on May 24, 2025 therefore marked a decisive rupture. When her husband approached the Court, the State initially stated that she had been lodged in a holding centre in Kokrajhar. Acting on that representation, the Court even permitted the petitioner to meet her and obtain her signature for the purposes of legal proceedings. However, when the petitioner went to the holding centre on June 25, 2025, he was informed that she was no longer there.

The explanation offered by the State was that she had been handed over to the Border Security Force and “sent back to Bangladesh” on May 27, 2025 from an area under the control of an ad hoc BSF battalion. No contemporaneous record of this process was placed before the Court.

What the Petition sought—and what the state did not produce

The petition did not proceed on conjecture. It identified a glaring evidentiary vacuum and asked the Court to address it. If Doyjan Bibi had indeed been deported, the petitioners argued, there ought to exist some documentary trail—proof of nationality verification, a deportation order, a record of handover, or at the very least, an acknowledgment of acceptance by Bangladeshi authorities. In the absence of such records, the only plausible inference was that she may have been illegally pushed across the border.

The State’s response did not deny the absence of documentation. Instead, it relied on affidavits asserting that she had been deported. The judgment records these assertions and accepts them as sufficient. At no stage does the Court direct the State to produce any material to substantiate its claim. The legal question—whether a court can be satisfied about the legality of deportation without seeing a single document—remains unanswered.

The Judgment’s Core Move: Executive assertion as conclusive proof

The fulcrum of the judgment is its treatment of executive power as effectively unreviewable once a person has been declared a foreigner. Drawing extensively on Hans Muller of Nurenburg v. Superintendent, Presidency Jail (1955), the Court reiterates that the power of the State to expel foreigners is “absolute and unfettered.” From this premise, it proceeds to hold that the Court need not inquire into the manner in which that power is exercised.

What the judgment does not confront is that Hans Muller itself imposed limits. The Supreme Court made it clear that an expelled person must leave the country as a free person and cannot be handed over in custody to another State. Nor did Hans Muller suggest that deportation could take place without procedure, documentation, or accountability. By extracting the language of plenary power while discarding the safeguards that accompany it, the judgment converts executive authority into something approaching discretion without record.

Deportation without documents, “pushback” without consequence

One of the most troubling aspects of the judgment is its refusal to meaningfully distinguish between formal deportation and informal pushback. Deportation, in law, is a structured process involving identification, verification, communication with the receiving State, and a documented handover. Pushback, by contrast, is an informal and often violent practice in which individuals are forced across borders without acknowledgment or acceptance.

The petition explicitly raised the spectre of pushback. The judgment, however, treats the State’s use of the word “deportation” as dispositive. Once that label is accepted, the absence of documents is treated as immaterial. This approach effectively collapses the distinction between deportation and pushback, granting judicial cover to practices that would otherwise be legally indefensible.

Bail, judicial protection, and executive override

Another unresolved tension in the judgment concerns the status of judicial bail. Doyjan Bibi had been released pursuant to directions of constitutional courts. Her liberty, fragile though it was, was judicially sanctioned. Yet she was re-arrested and removed without any application for cancellation of bail or judicial oversight.

The Court acknowledges that COVID-era bail orders were temporary in nature, but this observation sidesteps the real issue. The question was not whether deportation was permissible in principle, but whether the executive could override subsisting judicial protection without returning to court. On this, the judgment is silent.

Neither does the Guwahati High Court, a constitutional court, question what it means for an individual not to be able to access all four tiers of justice, available for all. True that the Foreigner Tribunal order of 2017 had not been adequately agitated by Doyjanbi in the High Court, but can this lapse –given the Indian judiciary’s overall approach on delays and condonation thereof—be enough to seize from a woman her very right to agitate citizenship?

From legal adjudication to ideological framing

The judgment goes far beyond what was required to decide the petition. It contains extended references to demographic change, migration narratives, national security concerns, and alleged misinformation about persecution. These observations, while politically charged, do little legal work. Their presence, however, is not neutral. They shift the frame of the case from one about individual liberty and State accountability to one about perceived civilisational threat.

Once that shift occurs, procedural safeguards appear expendable. The petitioner’s wife is no longer a person whose liberty demands justification, but an abstract figure within a larger narrative of migration and security. In such a frame, asking the State for documents begins to look unnecessary, even indulgent.

The Consequence: Petition emptied of content

By dismissing the petition without demanding proof of deportation, the Gauhati High Court sets a troubling precedent. It signals that in cases involving declared foreigners, executive assertion will suffice; records are optional; judicial scrutiny is limited; and families may never know how or where a person was removed.

Habeas corpus petitions have historically existed to prevent precisely this situation—to ensure that the State cannot answer the question “where is this person?” with little more than an affidavit. When courts stop asking for proof, the writ loses its meaning.

Perhaps the most consequential aspect of the judgment is the degree of deference it accords to the executive.

The Court accepts:

• Executive affidavits as conclusive proof
• Absence of documentation as immaterial
• Non-production of records as inconsequential

This transforms habeas corpus from a searching judicial inquiry into a ritualistic exercise. Once the State says “we have deported her,” the Court treats the matter as closed.

Is there an established procedure for deportation?

Deportation in India, though grounded in statutory powers, was largely operationalised through internal administrative mechanisms and Standard Operating Procedures (SOPs) by state authorities. (See here, here and here) following directions from the Centre.

Typical deportation process is as follows:

1.  Identification/Completion of Sentence: A foreign national is declared a foreigner or completes a prison term for violating applicable laws.
2.  Notification: Jail authorities notify relevant police officials (e.g., Superintendent of Police) about the impending release.
3.  Custody and order:

• If the government decides on deportation, a formal order is issued.
• Upon release, the individual is taken into police custody and served with the deportation order.

4.  Physical Removal: Arrangements are made for their removal from the country, often under police escort. The serving officer reports the execution of the order back to the government.
5.  Consular notification (Vienna Convention):

• As per Article 36 of the Vienna Convention on Consular Relations, Indian authorities must inform the consular representatives of the foreign national’s country about their arrest or detention.
• Indian practice (MEA Office Memorandum No. T.4415/1/91 (CPO/CIR/9)) requires:
  • Asking the arrested foreign national if they wish their consulate to be informed.
  • Immediately notifying the Ministry of External Affairs (MEA) and the Ministry of Home Affairs (MHA).
  • Providing detailed particulars (name, nationality, passport details, offence, arrest details, location) to Joint Secretaries at MEA and MHA, and state authorities.

6.  Deportation for minor violations: In cases of brief overstays or delayed registration, prosecution might be withdrawn with court approval, and the individual directly deported under delegated powers of Section 3(2)(c) of the (now-repealed) Foreigners Act. A record is submitted to the MEA.

Detailed report may be read here.

Conclusion: A quiet but profound Constitutional retreat

This judgment will reverberate far beyond one case. It lowers the threshold of accountability in deportation proceedings and normalises undocumented removals. In border regimes, where power is most concentrated and individuals most vulnerable, such a retreat from scrutiny is especially dangerous.

If this reasoning is followed, it means:

• Deportations can occur without paperwork
• Families need never be informed
• Courts need not verify State claims
• Pushbacks acquire judicial cover
• Habeas corpus becomes ineffective precisely where it is most needed

This is not a minor doctrinal shift. It is a structural weakening of constitutional oversight. The Constitution does not cease to operate at the border, nor does it become optional when the person involved is labelled a foreigner. By refusing to insist on legality through proof, the Court has allowed executive power to move beyond effective constitutional control.

That is the enduring, and deeply unsettling, legacy of this decision.

Details of the proceedings of the said case in Gauhati High Court may be read here, here, here and here.

The order of the High Court may be read here:

Related:

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Assam’s New SOP Hands Citizenship Decisions to Bureaucrats: Executive overreach or legal necessity?

Assam government to withdraw ‘Foreigner’ cases against Non-Muslims under Citizenship Amendment Act

Assam’s Citizenship Crisis: How Foreigners Tribunals construct an architecture of exclusion and rights violations

No Warrants, No Answers: The Disappeared of Assam

The post Removed Without Process: The Doyjan Bibi case and the Gauhati High Court’s Retreat from demanding deportation records appeared first on SabrangIndia.

The survivor, who was abducted and gang-raped in May 2023 during the early days of the Meitei–Kuki ethnic clashes, passed away on January 10, 2026, while undergoing treatment in Guwahati. According to her family and Kuki organisations, the injuries and trauma she suffered never healed, leaving her physically fragile and psychologically withdrawn until her death.

Abduction and assault amid breakdown of law and order

As reported by The Indian Express, the woman—then 18 years old—was kidnapped on May 15, 2023, from Imphal while attempting to withdraw money from an ATM. She was taken away in a white Bolero by four armed men dressed in black shirts, allegedly associated with Meitei militant group Arambai Tenggol, which was active during the peak of the violence.

In her First Information Report (FIR), the survivor alleged that she was handed over to the men by members of the Meira Paibi, a Meitei women’s vigilante group—an allegation repeatedly raised by Kuki organisations.

She was taken to multiple locations, including Langol and Bishnupur, where three of the men allegedly raped her repeatedly while the fourth drove the vehicle. She later told NDTV in a July 2023 interview that she was blindfolded, denied food and water, tortured through the night, and left for dead on a hilltop.

“I was taken to a hill where they tortured and assaulted me. Whatever miserable things they could do to me, they did,” she had said.

In the early hours of the next morning, she managed to escape under the pretext of going to relieve herself. Injured and bleeding, she ran downhill, eventually hiding under a pile of vegetables in an autorickshaw that took her to safety. She was first treated in Kangpokpi and later referred to hospitals in Kohima, Guwahati, and Manipur.

Delayed fir, CBI probe, and no arrests

Due to the near-total collapse of law and order in Manipur at the time, the survivor could file a police complaint only on July 21, 2023—over two months after the assault. A zero FIR was registered at Kangpokpi police station and later transferred to the Central Bureau of Investigation (CBI).

According to The Hindu, the case is currently being heard in a special CBI court in Guwahati. However, nearly two and a half years later, no arrests have been made, charges have not been framed, and the survivor’s family says they received no meaningful updates from either the Manipur Police or the CBI.

Prolonged trauma and declining health

The woman’s family told Newslaundry and other media outlets that she never recovered from the physical injuries or psychological shock of the assault. She suffered from breathing difficulties, uterine complications, depression, and recurring illness.

“My daughter was always smiling and full of life before this happened,” her mother said. “After the incident, she lost her smile. She would stay at home, not talk much, sometimes read the Bible, sometimes watch TV.”

The Indigenous Tribal Leaders Forum (ITLF) stated that she developed serious uterine and internal injuries and required repeated hospitalisation across three states. While the family received some compensation, its source and adequacy remain unclear.

Death sparks outrage, renewed demands

Following her death, Kuki organisations in Manipur and Delhi organised candlelight vigils and issued strong statements demanding justice. The ITLF described her death as “another painful testimony to the ruthless targeting of the Kuki-Zo people” and reiterated that the community now has “no option but to demand a separate administration for our safety, dignity, and survival” (PTI).

The Kuki Students’ Organisation (KSO), Delhi & NCR demanded that her death be officially recognised as a consequence of the 2023 violence.

“Any attempt to treat her death as unrelated would amount to a denial of justice and an erasure of responsibility,” the KSO said, calling on the Centre to expedite the creation of a separate administrative arrangement for tribal communities.

The Kuki-Zo Women’s Forum, Delhi & NCR remembered the survivor for her resilience. “For nearly three years, she carried pain that no human being should ever have to bear,” the group said.

‘A National Shame’: Brinda Karat

Senior CPI(M) leader and former Rajya Sabha MP Brinda Karat described the survivor’s death as a “national shame,” underscoring the failure of the state and justice system nearly two years after the crime, as per PTI.

“She was victimised twice—first by politics that fuelled hatred and violence, and then by a system that failed to act with urgency,” Karat said. A member of the CPI(M) politburo and former general secretary of the All India Democratic Women’s Association (AIDWA), Karat has been documenting cases of sexual violence in Manipur and had met the survivor’s family during a visit to the state.

Karat blamed the political climate fostered by the RSS–BJP for creating an atmosphere of impunity that allowed armed groups to operate unchecked during the violence. “Her death without justice is a damning reflection on our administrative and judicial institutions,” she said, adding that the delay cost the survivor not only dignity, but ultimately her life.

A broader crisis of accountability

The survivor’s death has once again drawn attention to unresolved cases of sexual violence during the Manipur conflict, which erupted in May 2023 over land rights, political representation, and ethnic tensions between the valley-dominant Meitei community and hill-based Kuki-Zo tribes.

According to official figures, more than 260 people have been killed and over 60,000 displaced. Manipur has been under President’s Rule since February 2025, yet survivors and families continue to report inertia, silence, and denial of justice.

“She was not only a daughter of Manipur,” Brinda Karat said, “but a daughter of India.”

Her death—without arrests, without accountability, and without closure—now stands as a stark indictment of the state’s response to sexual violence in conflict zones, and a reminder of the human cost of prolonged inaction.

Related:

Broken State, Divided People: PUCL releases report of Independent People’s Tribunal on Manipur

Manipur Violence: Two years down, health rights activists demand restoration and spread of essential services all over state

Arambai Tenggol: champions of Manipur’s ‘integrity’ or a Meitei communal militia?

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2024: Peace, a distant dream for Manipur

Fresh violence grips Manipur: Clashes in Jiribam and widespread protests after rape and brutal killings

Manipur on Edge: Violent Clashes Erupt on the day following Kuki-Zo Protests Demanding Separate Administration, action against state CM based on leaked tapes

The post Manipur gang-rape survivor dies without justice, three years after 2023 ethnic violence appeared first on SabrangIndia.

A quick search of the 142-page judgement, delivered by a bench comprising Justices Aravind Kumar and NV Anjaria, finds these key words missing. Instead, the judgement expanded the contours of terrorism. Further, it created two categories of accused – leaders and followers. Researchers Umar Khalid and Sharjeel Imam were designated as “architects” of the conspiracy and denied bail, whereas student activist Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan and Shadab Ahmed were granted bail under stringent censorial conditions. All of them have been in jail since 2020.

While freedom of speech and the right to political dissent are significant contextual elements in the judgment, the Supreme Court explicitly clarified that they are not the core legal issues determining the outcome of the bail applications.

Critics, however, argue that the top court’s judgment sets a dangerous precedent by classifying political dissent and protest speeches as acts of terrorism.

Conditional freedom that robs the right to speak

Supreme Court imposed strict conditions while granting bail to the Fatima, Rehman, Khan, Haider and Ahmed. Apart from the ₹2 lakh personal bond each with two local sureties of the like amount, the top court also gagged the five activists from speaking about any issue from any platform after their release.

Conditions also include that they are:

• Required to stay within the territorial limit of Delhi NCT for the pendency of the trial. Not allowed to leave the city without court’s permission. Any request for travel shall disclose reasons, which would then be considered by the trial court “strictly” on its “merits”
• Surrender passports if any. If there is no passport, then an affidavit to be filed to that effect. Furthermore, immigration authorities have been direction to prevent any exit from the country without the court’s permission
• Twice weekly check-ins at the Delhi Police Crime Branch police station. The police are then required to submit monthly attendance reports to court; Furnish full current address and all contact details with the investigating officer of the case. there must be a seven-day notice before any change to the same.
• Co-operate during the trial, appear at every date unless exempted by court and ensure they don’t act in any way to delay the same
• No witness tampering, or any contact with them at all – direct or indirect. Not allowed to participate in the activities of any group or organization linked to the subject matter of the present FIR/ final report
• Complete media gag
• Gag on attending any rallies – political or otherwise, physically or virtually till the conclusion of the trial
• Not allowed to distribute any posts, handbills, posters, fliers, banners
• “Maintain peace and good behavior.” Violation of this condition gives the police “liberty” to seek revocation of bail

UAPA comes a full circle

The Supreme Court’s judgment in Gulfisha Fatima vs State (2026 INSC 2) represents a ‘coming to a full circle’ moment for the Unlawful Activity (Prevention) Act (UAPA), 1967. The UAPA, which was originally meant to address “secessionist” activities, was later amended and rebranded as India’s anti-terror law.

Around 1962-63, the then Prime Minister Jawaharlal Nehru envisioned UAPA to act as a deterrence against secessionist ideologies and preserve national integration. In the backdrop of the 1965 India-Pakistan war, UAPA was primarily intended to tackle the strong secessionist movement in Tamil Nadu which wanted to be a sovereign state. It was followed by a series of preventive detention laws and, when India signed and ratified all major United Nation counter-terrorism conventions after 9/11, the UAPA was specifically amended in 2004 to align with the country’s international obligations.

The law, in its current avatar, is so vast and vague, that even expressing disaffection towards the state or affection for another state, as in the case of the three Kashmiri youth who were jailed under sedition charges for allegedly cheering for Pakistan’s cricket team when it won the 2021 T20 World Cup, is liable for prosecution.

When protest becomes an act of terrorism

Can protest speeches, public meetings and WhatsApp group membership constitute conspiracy under Sections 16–18 of the UAPA at the bail stage?

According to the Supreme Court: Yes, they can. Even if the protests were peaceful assemblies.

The Supreme Court’s January 5 judgement essentially redefined terrorism. Even though the judgment recognized freedom of speech as a protected right, it stopped where an allegedly pre-planned conspiracy for systemic violence began. Ironically, cases against BJP politicians like Kapil Sharma, who made incendiary speeches on the eve of the breakout of violence in Delhi in 2020, continue at a snail’s pace,

Yet, the January 5 judgement read: “The factual record placed by the prosecution repeatedly returns to a distinction that is central to the case: the differentiation between a conventional dharna and a chakka jam. This is not treated as semantics. It is treated as strategy.”

“A dharna may be expressive; a chakka jam, as alleged, is disruptive by design. The prosecution case is that the sustained choking of arterial roads, replication of blockade sites, and the movement of crowds from minority clusters into mixed population areas were not accidental expressions of dissent, but calibrated acts meant to generate confrontation, overwhelm law enforcement, and create conditions for violence,” it added.

The top court said Delhi Police did not rely on a “single speech, a single meeting, or a single blockade” to oppose bail, rather it relied on “a course of conduct, spread over weeks, involving repeated meetings, formation of coordinating bodies, issuance of directions, and alleged preparations for escalation.”

“The Court cannot, at the bail stage, segregate this course of conduct into isolated benign fragments and assess each in abstraction,” the judgment read.

The Supreme Court reiterated that “dissent and protest occupy a protected space in a constitutional democracy,” however, that protection does not extend to a design that involves “systemic disruption, engineered confrontation, and preparatory steps towards violence”.

“At this stage, the Court must resist from committing two errors. The first is to criminalise speech merely because it is politically charged. The second is to immunize a continuing course of conduct merely because it contains language of non-violence,” the judgment read.

“In the application of such law, the Court does not proceed on identity, ideology, belief, or association. It proceeds on role, material, and the statutory threshold governing the exercise of jurisdiction,” the judgment read. “…[the judgment] neither endorses the prosecution case nor prejudges the guilt of any accused,” the court said adding that it applied the law as it stands, “recognising that individual liberty must be protected, but that it must also withstand the legitimate demands of national security and collective safety.”

“This balance is not a matter of preference rather it is a matter of constitutional duty,” the court added.

Selective application of law

While the Supreme Court’s judgment could be seen as a mixed bag of relief for some accused, in the denial of bail to Imam and Khalid, the top court selectively applied its own judgement and those of the high court on free speech or even bail under section 43d of the UAPA.

In cases like Vernon Gonzalves, Shoma Sen, Arvind Kejriwal, Manish Sisodia, Javed Gulam Nabi Shaikh, Sheikh Javed Iqbal, the top court granted bail due to prolonged incarceration despite the bar under section 43D of the UAPA act.

On free speech, the Supreme Court in its 2015 Shreya Singhal judgment said that dissenting discourse is not a crime. In its Balwant Singh judgment, the court emphasized that shouting stray slogans like “Khalistan Zindabad” were not a crime.

In fact, the Delhi High Court granted bail to student activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha—co-accused in the 2020 Delhi Riots conspiracy case—and pulled up the Delhi Police for its “wanton use” of the UAPA.

In this case, the High Court clearly stated: “… in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril.”

“… the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less,” it added.

Process is the punishment

In the past decade, the State (or corporations) has often been accused of (mis)using the law to stifle dissent. In effect, making the process of law the punishment. Sedition (the old and new avatar), UAPA, defamation, Copyright Act are all being used against free speech.

The NewsClick founder editor Prabir Purkayastha was charged under the draconian UAPA for publishing “propaganda” reports on China that allegedly served to endanger the “sovereignty, unity and security of India.” He secured bail after seven months in custody after the Supreme Court held that his arrest was “invalid in the eyes of the law.”

Sedition, in its new avatar, has been used against climate activist Sonam Wangchuk, Ashoka University professor Ali Khan Mahmudabad, stand-up comic Kunal Kamra, satirists Madri Kakoti and Shamita Yadav better as Dr Medusa and Ranting Gola respectively, Bhojpuri singer Neha Singh Rathore, TV star and Big Boss winner Akhil Marar, a 20-year-old autorickshaw driver Sahil Khan and even Pushpa Sathidar, wife of the late actor Vira Sathidar, who was booked for merely reciting the acclaimed Faiz Ahmed Faiz poem ‘Hum Dekhenge’ at a meeting.in Nagpur in May 2025.

Even after sedition cases are dropped, the punishing process does not end, as the ordeal of Manipuri journalist Kishore Wangkhemcha, booked for speaking out about the struggles of leaders of Manipur or film maker Aisha Sultana, charged for criticising the Lakshadweep administrator, bears out..

Clearly, the price of dissent and critical thought is extremely high. And now, a Supreme Court order penalises peaceful protest and expression as acts of terror, effectively putting an undemocratic premium on the freedom to speak freely.

*About the Author: After an almost decade-long career as a photojournalist in Mumbai, Ritika now covers the Indian judiciary and hopes to simplify the law and decode the judiciary. Now based in Delhi, Ritika is a writer, part-time dreamer & full-time K-drama addict who escapes the city when she’s not bingeing on K-dramas.

Courtesy: Free Speech Collective

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