Where is justice lost…what happened in these five years? Many innocents are still behind bars and many accused are still roaming free. One of them has even become an MLA and minister on a Bharatiya Janata Party (BJP) ticket.

Five years ago, between February 23 and February 26, 2020, a conspiracy was hatched to light a communal fire in Delhi. The north-eastern part of the capital city was made the target of this attack.

About 53 people lost their lives in this communal violence. Hundreds were injured. There was huge loss of life and property in the violence that lasted for four days. Many houses and shops were burnt to ashes.

In common parlance, we call this a ‘riot’, but if the right words are used, it was an attack. A revenge against the Shaheen Bagh movement against the Citizenship Amendment Act or CAA. Statistics testify this.

Delhi Police figures say that among those killed, 40 were Muslims and 13 were Hindus.

Unfortunately, the government and the mainstream media largely reported one-sided stories and blamed the Muslim community for this violence. This is what is being propagated even today.

As per the Special Cell and Crime Branch of Delhi Police, there was a “deep conspiracy” behind the Delhi riots, the “foundation of which was laid” during the anti-CAA and NRC protests in 2019.

This conspiracy has been mentioned in case number 59/2020. Delhi Police considers former JNU student leader, Umar Khalid, as the “mastermind” of the Delhi violence.

Special Public Prosecutor Amit Prasad has argued that the violence was part of a conspiracy to create trouble during the visit of then US President Donald Trump to India.

The violence started in Jaffrabad in North East Delhi, where women were staging a sit-in protest against the CAA on the Seelampur-Jaffrabad-Maujpur Road.

At that time, the freshly minted BJP leader, Kapil Mishra (who had switched over from the Aam Aadmi Party), called upon Delhi Police to clear the streets, and threatening to do so himself with the help of his supporters. It is after this that the violence broke out.

Recall that despite all their efforts, BJP had badly lost in the Assembly elections held in February 2020.  Many analysts say that the stunning defeat had flustered BJP. (This year that defeat has been avenged. After 27 years, BJP has once again come to power in Delhi with full majority.)

The backdrop of the communal violence had already been created, but ultimately it is innocent people who became its victims.

In 2022, four former judges and a former Home Secretary had released a fact-finding report on the reality of the Delhi violence. The report had raised serious questions on the investigation by Delhi Police. Also, strong comments were made on the role of Union Home Ministry, Delhi government and the media.

The fact-finding report also found that speeches made by BJP leaders like Kapil Mishra had also played a role in instigating people, which led to the violence.

Social activist Harsh Mander had even filed a petition in Delhi’s Patiala Court saying that an FIR should be registered against Kapil Mishra. This petition is still pending in the court.

Notably, in July 2020, Delhi Police had told the Delhi High Court that no evidence had been found against Kapil Mishra and other BJP leaders’ speeches having instigated the violence.

The same Kapil Mishra has now become an MLA and minister by contesting the recent Delhi Assembly elections from Karawal Nagar on a BJP ticket. But there is no discussion in the media about his role in the 2020 communal violence.

According to various media reports, the police have registered a total of 758 FIRs related to the violence.

Some reports published in 2024 said a total of 2,619 people had been arrested, out of which 2,094 people are out on bail.

The court has so far found only 47 people guilty and has acquitted 183 people. Cases against 75 people have been dismissed due to lack of sufficient evidence.

Delhi Police has so far arrested at least 24 people, of which 10 have been released on bail in the case of Head Constable Ratan Lal, who was killed in the line of duty during the Delhi violence.

Also, the 11 accused arrested in the murder case of Ankit Sharma, who worked in the Intelligence Bureau, are still in jail. Sharma’s body was found in a drain in Chand Bagh on February 26, 2020.

Notably, the fact-finding report has put its finger on  another accused in the Delhi violence —  Delhi Police. Questions have been raised on the role of Delhi Police in allowing these riots to happen and for inaction and delay in stopping the violence. Besides, Delhi Police have also been accused on brutalities.

Hearing in a case related to the Delhi riots in September 2024, a court had acquitted 10 accused persons, raising questions on the ‘theory’ of Delhi Police. All the accused belonged to the Muslim community. They were accused of attacking a house and a shop in Gokulpuri police station area of ​​North East Delhi.

Additional Sessions Judge Pulastya Pramchala of Delhi’s Karkardooma Court had said that “suspicions over the allegations against the accused are not beyond doubt.”

During these four-five years, there were many such occasions during the hearing in the court, when the court made harsh remarks on the Delhi Police and described the level of their investigation as poor.

In August, 2023, while hearing the arrest of three people in the case of rioting in FIR No. 71/20 case of Dayalpur Police Station, Karkaduma Court had commented that the incidents had not been properly and completely investigated. It noted that the charge sheet in the case had been filed with prejudice in a bid to hide the mistakes made in the beginning.

Because of this kind of investigation and attitude of the police, many youth are still languishing in jail.

In November 2024, the Supreme Court refused to grant bail to Delhi riots accused Gulfisha Fatima, but asked the Delhi High Court to hear her bail petition soon. Senior advocate Kapil Sibal, appearing for Gulfisha, had said that she had been in jail for four years, and her bail petition had been pending in the High Court for a long time.

Earlier, on October 25, 2024, the Supreme Court had given a similar order in the case of another riot accused, Sharjeel Imam.

However, in March 2022 itself, councillor Ishrat Jahan, an accused in the violence, got bail. She was arrested by the Special Cell of Delhi Police under UAPA (Unlawful Activities Prevention Act).

The bail petition was filed in the court on behalf of former Congress councilor Ishrat Jahan, which said that the police did not have a single evidence against her.

Earlier, in June 2021, Delhi High Court had granted bail to Pinjra Tod activists Devangana Kalita, Natasha Narwal and Jamia student Asif Iqbal Tanha, who were arrested under UAPA Sections on charges of rioting.

At that time the High Court had said that giving inciting speeches or blocking roads is not unusual when there is widespread opposition to the actions of the government and Parliament. Even if we assume that the alleged inflammatory speeches, ‘chakka jam’, inciting women to protest and other acts, even if these violate the limits of the right to peaceful protest given in the Constitution, the act cannot be termed as a terrorist act, its conspiracy or its preparation.

Alas, Umar Khalid did not get bail or such comments.

Delhi Police’s Special Cell and Crime Branch consider Khalid to be the ‘mastermind’ of the Delhi violence. He has been in jail since September 2020. He has been charged with terrorism, rioting and criminal conspiracy under UAPA. The trial in this case has not started yet.

Umar Khalid’s bail plea has been rejected twice by two different courts, and hearings on his case have been adjourned umpteen times.

Khalid’s bail plea remained pending in the Supreme Court from May 2023 to January 2024, but the debate on it could not be started even once. After this, he withdrew his bail application from the Supreme Court and went back to the trial court.

On February 20, 2025, Khalid’s bail plea was heard in the Delhi High Court. During the hearing, his lawyer told the HC that merely being a member of a WhatsApp group was not evidence of involvement in any crime.

His lawyer Trideep Pais told the court that Khalid had been in custody as an undertrial for a long time. He said that the delay in the trial was also a reason due to which Khalid should get bail. The senior advocate argued that on the basis of equality with the four accused in this case who have been granted bail, Khalid should also be granted bail.

The bench headed by Justice Naveen Chawla has now ordered the next hearing on Khalid’s bail plea on March 4.

So, if we look at how justice has progressed in these five years, it can be said that while one set of accused —  Umar Khalid or Gulfisha or Sharjeel Imam — has not got bail yet, And one of the accused (although Delhi Police does not consider him an accused) Kapil Mishra has become an MLA and the Law and Justice Minister in the Delhi government. Along with this, he has got charge of Development, Art and Culture Department, Language Department, Tourism Department, Labour Department and Employment Department.

The session of the new Delhi Assembly has started. It would be fitting if a report on the progress of investigation in Delhi riots is tabled so that the country knows what the police under Home Minister Amit Shah did for justice in these five years.

(Translated from the original article published on Newsclick’s Hindi website)

Courtesy: Newsclick

The post 5 Years of Delhi Riots: Some Punished, Some Rewarded! appeared first on SabrangIndia.

Rupesh Kumar Singh, an independent journalist from Jharkhand, has been in custody since July 2022 under the Unlawful Activities (Prevention) Act (UAPA) for allegedly having links with the Communist Party of India (Maoist) and arranging funds for them. His arrest followed his journalistic work on displacement, industrial pollution, and alleged state excesses, which many believe led to his prosecution as an act of state repression against dissenting voices.

Singh was initially not named in the FIR but was later implicated based on alleged digital evidence obtained from co-accused individuals. His previous encounters with the authorities include a 2019 arrest under similar charges, where he was eventually released on default bail due to the failure of the police to file a chargesheet in time. His arrest came days after he posted a Twitter thread on environmental degradation in Jharkhand, raising concerns over state surveillance and retaliation against critical journalism.

His case mirrors a broader crackdown on journalists, activists, and human rights defenders under UAPA. Notably, student leader Umar Khalid, Khalid Saifi and Gulfishan Fatima remain behind bars as under trials and Father Stan Swamy, an 84-year-old tribal rights activist, died in jail while facing questionable UAPA charges. These instances reflect a growing trend of using stringent anti-terror laws to silence dissent.

The United Nations Human Rights Office has also expressed concern over the misuse of UAPA in India, urging the government to review its application and ensure that it is not being used to target dissenting voices. The UN specifically called for the dropping of charges against Arundhati Roy and Sheikh Showkat Hussain, who were prosecuted under UAPA for their comments on Kashmir.

Supreme Court’s decision

On January 27, 2025, the Supreme Court, comprising Justices M.M. Sundresh and Rajesh Bindal, dismissed Singh’s Special Leave Petition (SLP) against the Jharkhand High Court’s order denying him bail. The Court stated that it was “not inclined to interfere” with the High Court’s decision, thereby upholding the denial of bail.

The apex court’s order did not provide detailed reasoning beyond affirming the High Court’s conclusions, which raises significant concerns about judicial oversight in politically sensitive cases. This decision effectively keeps Singh incarcerated without trial, reflecting the stringent nature of UAPA bail provisions and their impact on civil liberties.

Supreme Court’s decision

On January 27, 2025, the Supreme Court, comprising Justices M.M. Sundresh and Rajesh Bindal, dismissed Singh’s Special Leave Petition (SLP) against the Jharkhand High Court’s order denying him bail. The Court stated that it was “not inclined to interfere” with the High Court’s decision, thereby upholding the denial of bail.

The order may be read here:

The apex court’s order did not provide detailed reasoning beyond affirming the High Court’s conclusions, which raises significant concerns about judicial oversight in such sensitive cases. This decision effectively keeps Singh incarcerated without trial, reflecting the stringent nature of UAPA bail provisions and their impact on civil liberties.

Legal Issues Involved

1. Application of UAPA’s stringent bail provisions:

• The High Court and Supreme Court relied on Section 43 D(5) of the UAPA, which mandates that bail cannot be granted if the court believes the allegations are “prima facie true.” The threshold for bail under UAPA is significantly higher than in regular criminal cases
• The courts have interpreted “prima facie true” broadly, often placing the burden of proof on the accused, rather than requiring the prosecution to demonstrate substantial evidence at the bail stage.

2. Lack of independent evidence against Singh:

The primary evidence against Singh appears to be electronic data allegedly recovered from an SSD card seized from a co-accused. His defence argues that:

• No direct incriminating evidence was found from Singh’s residence or personal devices.
• The alleged videos and photographs are inconclusive in proving any criminal intent or Maoist affiliation.
• Digital evidence can be easily manipulated, and its authenticity should be scrutinized before being treated as conclusive proof.

Violation of fundamental rights:

• Singh’s arrest and prolonged detention raise concerns under Article 19(1)(a) (freedom of speech and expression) and Article 21 (right to life and personal liberty) of the Indian Constitution.
• The Committee to Protect Journalists (CPJ) and United Nations Special Rapporteur on Human Rights Defenders have highlighted Singh’s case as an example of state-led suppression of press freedom
• His prosecution under UAPA fits a pattern of using anti-terror laws to target activists, journalists, and dissidents.

A slew of judgements of the constitutional courts analysed by our team below illustrate how bail under this draconian counter-terror law has been addressed. Before this, in 2020, our team had analysed how various courts dealt with the issue of bail under the stringent UAPA. That legal resource may be read here.

Precedents

Observations of the Supreme Court in Thwaha Fasal v. Union of India (2021)

The Supreme Court in Thwaha Fasal v. Union of India (2021) clarified the necessity of an independent judicial assessment in bail matters under the UAPA. The Court observed that:

1. Mere membership in a banned organisation does not amount to criminal activity: The Court ruled that the prosecution must establish a direct and substantial connection between the accused and the alleged unlawful activities. A person cannot be denied bail solely on the basis of association.

On plain reading of Section 38, the offence punishable therein will be attracted if the accused associates himself or professes to associate himself with a terrorist organisation included in First Schedule with intention to further its activities. In such a case, he commits an offence relating to membership of a terrorist organisation covered by Section 38. The person committing an offence under Section 38 may be a member of a terrorist organization or he may not be a member. If the accused is a member of terrorist organisation which indulges in terrorist act covered by Section 15, stringent offence under Section 20 may be attracted. If the accused is associated with a terrorist organisation, the offence punishable under Section 38 relating to membership of a terrorist organisation is attracted only if he associates with terrorist organisation or professes to be associated with a terrorist organisation with intention to further its activities. The association must be with intention to further the activities of a terrorist organisation. The activity has to be in connection with terrorist act as defined in Section 15. Clause (b) of proviso to sub-section (1) of Section 38 provides that if a person charged with the offence under sub-section (1) of Section 38 proves that he has not taken part in the activities of the organisation during the period in which the name of the organisation is included in the First Schedule, the offence relating to the membership of a terrorist organisation under sub-section (1) of Section 38 will not be attracted. The aforesaid clause (b) can be a defence of the accused. However, while considering the prayer for grant of bail, we are not concerned with the defence of the accused. (Para 13)

2. Independent judicial scrutiny is essential: Courts cannot mechanically accept the prosecution’s claims under Section 43D (5) of the UAPA. The judiciary must conduct a thorough review of the material evidence before concluding that the allegations are “prima facie true.”

“..By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise..” (Para 21)

3. The Court emphasised that the offences under Sections 38 and 39 require mens rea (guilty intent). Mere association or possession of Maoist literature does not satisfy the requirement of intention unless there is active participation or acts showing furtherance of terrorist activities.

“Thus, the offence under sub-section (1) of Section 38 of associating or  professing to be associated with the terrorist organisation and the offence relating to supporting a terrorist organisation under Section 39 will not be attracted unless the acts specified in both the Sections are done with intention to further the activities of a terrorist organisation. To that extent, the requirement of mens rea is involved. Thus, mere association with a terrorist organisation as a member or otherwise will not be sufficient to attract the offence under Section 38 unless the association is with intention to further its activities.” (Para 15)

4. The Court reiterated that constitutional courts retain the power to grant bail despite the strict conditions in UAPA, especially when prolonged incarceration violates fundamental rights. The accused had already been in custody for over 570 days, and the trial was unlikely to conclude soon. The Court restored the Special Court’s order granting bail to the accused.

“As held in the case of K.A. Najeeb (supra), the stringent restrictions imposed by sub-section(5) of Section 43D, do not negate the power of Constitutional Court to grant bail keeping in mind violation of Part III of the Constitution. It is not disputed that the accused no. 1 is taking treatment for a psychological disorder. The accused no. 1 is a student of law. Moreover, 92 witnesses have been cited by the prosecution. Even assuming that some of the witnesses may be dropped at the time of trial, there is no possibility of the trial being concluded in a reasonable time as even charges have not been framed. There is no minimum punishment prescribed for the offences under Sections 38 and 39 of the 1967 Act and the punishment can extend to 10 years or only fine or with both. Hence, depending upon the evidence on record and after consideration of relevant factors, the accused can be let off even on fine. As regards the offence under Section 13 alleged against accused no. 2, the maximum punishment is of imprisonment of 5 years or with fine or with both. The accused no. 2 has been in custody for more than 570 days.” (Para 42)

The judgement in Thwaha Fasal v. Union of India (2021) may be read here:

Observations in Javed Ghulam Nabi Shaikh v. State of Maharashtra (2024)

1. The appellant has been in custody as an undertrial prisoner for four years. The trial court has not yet framed charges. The prosecution intends to examine at least 80 witnesses, making the conclusion of the trial uncertain.

“Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects: 

(i)  The appellant is in jail as an under-trial prisoner past four years; 

(ii)  Till this date, the trial court has not been able to even proceed to frame charge; and 

(iii)  As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses.” (Para 7)

2. The court emphasized that howsoever serious a crime may be, an accused has a fundamental right to a speedy trial under Article 21 of the Constitution.

“Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.”  (Para 8)

3. The appellant remains an accused, not a convict.  The fundamental principle of criminal jurisprudence—that an accused is presumed innocent until proven guilty must not be ignored.

“We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.” (Para 20)

4. The court noted that jails are overcrowded, and undertrial prisoners suffer due to delayed trials. It referred to Mohd Muslim @ Hussain v. State (NCT of Delhi) (2023 INSC 311), highlighting that prolonged incarceration has severe social and psychological consequences. (Para 14)

5. The court referred to Section 19 of the National Investigation Agency Act, which mandates that trials must be conducted on a day-to-day basis.

“The requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008 (hereinafter being referred to as “the 2008 Act”) mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008.” (Para 15)

6. In Union of India v. K.A. Najeeb (2021) 3 SCC 713, the court held that statutory restrictions on bail (like UAPA’s Section 43-D (5)) cannot override constitutional rights. The court reiterated that when trials are excessively delayed, bail should not be denied solely based on the severity of the offence. (Para 16)

7. The judgment noted that criminals are made, not born, and the criminal justice system should consider social and economic factors that may influence crime. The court emphasized that justice should be tempered with humanity, quoting the principle that “Every saint has a past, and every sinner a future.”

“Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.” (Para 18)

The judgement in Javed Ghulam Nabi Shaikh v. State of Maharashtra (2024) may be read here:

Observations in Jahir Haq v. State of Rajasthan (2022)

1. The appellant had been in custody as an undertrial for almost 8 years (since 08.05.2014). Only 6 out of 109 witnesses had been examined so far, indicating an unreasonably delayed trial. The trial court estimated that the case might take 2-3 more years for completion.
2. The Supreme Court had directed priority examination of three prosecution witnesses who had raised concerns about threats to their lives.

Among these witnesses: One (Devendra Patel) was declared hostile. The other two (Hemant and Pappuram) did not provide any deposition implicating the appellant. The State’s case was largely based on the appellant’s alleged communication (31 conversations) with a co-villager, who was accused of being a sleeper cell module head of the Indian Mujahideen.
“We are of the view that in the facts of this case, when the petitioner has already spent nearly 8 years in custody, the appropriate order to pass would be to first direct the examination of the three witnesses who have raised concerns about threat to their lives from the accused and the matter should receive attention of this Court after their evidence is adduced. However, these witnesses must be examined on a priority basis.” (Para 8)

3. The court relied on Union of India v. K.A. Najeeb (2021) 3 SCC 713, where bail was granted in cases of long incarceration. It noted that UAPA’s bail restrictions (Section 43D (5)) are comparatively less stringent than NDPS Act provisions, which demand a prima facie case of innocence before granting bail. (Para 12)

4. One co-accused, Adil Ansari, had already been granted bail by the Supreme Court in 2020. The State argued that the role of the appellant was different, but the court acknowledged this factor in deciding bail.

“No doubt, in the said case, as pointed out by the learned counsel appearing on behalf of the State, the Court was dealing with an order passed by the High Court granting bail, whereas, in this case, the converse is true, that is, the impugned order is one rejecting the application for bail. The fact remains that the appellant has been in custody as an undertrial prisoner for a period of nearly 8 years already. The appellant, it may be noted, is charged with offences, some of which are punishable with a minimum punishment of 10 years and the sentence may extend to imprisonment for life. Learned counsel for the appellant also points out that one of the co-accused namely Shri Aadil Ansari has been released on bail on 30.09.2020 by this Court. No doubt, in this regard, we keep in mind the submission of the State that the role attributed to the said accused is different.” (Para 13)

5. The impugned High Court order rejecting bail was set aside. The appellant was granted bail, subject to conditions imposed by the trial court. The judgment made it clear that these observations were only for the purpose of deciding bail and would not affect the merits of the case during trial.

The judgement in Jahir Haq v. State of Rajasthan (2022) may be read here:

Observations in Mukesh Salam v. State of Chhattisgarh (2024)

1. The Court noted that 12 out of 14 accused persons in the case had already been granted bail, either by the High Court or the Supreme Court. The number of prosecution witnesses had been reduced from 114 to 100, and only 40 witnesses had been examined so far.

Bearing in mind the above circumstances and the nature of the alleged case, we are of the considered view that the continued detention of the petitioner would not subserve the ends of justice. There is no likelihood of the early conclusion of the trial. The petitioner is in custody since 6 May 2020. We accordingly order and direct that the petitioner be released on bail, subject to such terms and conditions as may be imposed by the Special Judge (NIA Act), Kanker, in connection with FIR No 9 of 2020. (Para 5)

This ruling highlights the importance of parity in bail matters, considering that a majority of the co-accused had already been granted bail, and the prolonged trial delay was a factor in the decision.

The judgement in Mukesh Salam v. State of Chhattisgarh (2024) may be read here:

Observations in Jalaluddin Khan v. Union of India (2024)

1. The charge sheet did not contain specific material proving that the appellant participated in, abetted, or incited unlawful activities or terrorist acts. There was no evidence to suggest that the appellant was a member of a terrorist gang or organization under the meaning of Section 2(m) of the UAPA.

“We may note here that, assuming that the appellant knew that co- accused Athar Parvez was associated with PFI, it is not listed as a terrorist organisation within the meaning of Section 2(m) of UAPA. Moreover, the charge sheet does not contain any material to show any connection of the appellant with PFI before letting out first floor premises to accused no.1.” (Para 6)

2. The Court found that the statement of a protected witness (Z) had been misrepresented in the charge sheet, raising concerns about the fairness of the investigation.

“Thus, paragraph 17.16 purports to reproduce the statement of protected witness Z. In terms of our earlier order, the translated version of the statement of protected witness Z, recorded before the Additional Chief Judicial Magistrate, Patna, has been produced in a sealed envelope. We find that the statement substantially differs from what is narrated in paragraph 17.16 of the charge sheet.” (Para 10)

3. The Court reiterated that “bail is the rule and jail is an exception”, emphasizing that even under stringent statutes like UAPA, bail should not be denied when statutory conditions are met.

“…when a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. “Bail is the rule and jail is an exception” is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail..”  (Para 21)

4. The Court held that unjustly denying bail in deserving cases would violate the fundamental right to personal liberty under Article 21 of the Constitution.

“…If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.” (Para 21)

The judgement in Jalaluddin Khan v. Union of India (2024) may be read here:

Observations in Yedala v. State (2024)

The case was related to the murder of two politicians by members of the CPI (Maoist), a terrorist organization notified under UAPA. The National Investigation Agency (NIA) took over the investigation and filed a chargesheet against 79 accused. The appellants had been in custody for over four years and seven months without the framing of charges.

The court examined whether there were reasonable grounds to believe that the accusations were prima facie true. After analysing the entire prosecution case, the court concluded that there was no strong material linking the accused to the crime. Since the prima facie case was weak, the statutory bar on bail under UAPA did not apply.

“…Taking the material against the appellants as it is and without considering the defence of the appellants, we are unable to form an opinion that there are reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true. Hence, the embargo on the grant of bail under proviso to subsection (5) of Section 43D will not apply in this case. We, however, make it clear that the findings recorded in this Judgment are only prima facie observations recorded for the limited purposes of examining the case in the light of the proviso to sub section (5) of Section 43D of the UAPA. The trial shall be conducted uninfluenced by these observations.” (Para 21)  

The judgement in Yedala v. State (2024) may be read here:

Observations in Sushesh Kedia v. Union of India, 2021

1. The Court emphasized that under Section 43-D(5) of the Unlawful Activities (Prevention) Act (UAPA), an accused is not entitled to bail if there are reasonable grounds for believing that the accusations are prima facie true. However, upon scrutiny of the material placed before the Court, it was found that the primary accusation against the appellant was that he paid levy/extortion money to the terrorist organization Tritiya Prastuti Committee (TPC). The Court held that payment of extortion money does not amount to terror funding.

A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy / extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization ((Para 11 (A))

2. The Court noted that the charge sheet alleged that other accused persons, who were members of the terrorist organization, had been systematically collecting extortion amounts from businessmen in the Amrapali and Magadh areas. The appellant was in the business of coal transportation in that region and had made payments under duress. It could not be said prima facie that the appellant conspired with the other members of TPC or raised funds to promote the organization.

“…It is alleged in the second supplementary charge- sheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.” ((Para 11 (A))

3. The prosecution argued that the appellant had been in constant touch with members of the terrorist group. The Court noted that the appellant had stated in his Section 164 Cr.P.C. statement that he was summoned to meet A-14 and other members in connection with the payments. The Court held that merely meeting the members of TPC, without further evidence of conspiracy, does not establish a prima facie case of involvement in a terrorist conspiracy.

“Another factor taken into account by the Special Court and the High Court relates to the allegation of the Appellant meeting the members of the terror organization. It has been held by the High Court that the Appellant has been in constant touch with the other accused. The Appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A-14 and the other members of the organization in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the Appellant met the members of the organization.”((Para 11 (B)))

4. The Court referred to National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, which set the parameters for granting bail under Section 43-D (5) of the UAPA. The Court held that while prima facie satisfaction of allegations is sufficient to deny bail under UAPA, in this case, the material did not meet the threshold to establish a clear case against the appellant.

“After a detailed examination of the contentions of the parties and scrutiny of the material on record, we are not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court shall not be influenced by these observations during trial.” ((Para 12))

The judgement in Sushesh Kedia v. Union of India, 2021may be read here:

Singh’s case underscores the precarious state of press freedom and the judiciary’s cautious approach in UAPA matters. While national security concerns must be addressed, an overbroad application of UAPA risks eroding fundamental rights. The denial of bail in Singh’s case, despite the legal precedents favouring a more balanced approach, raises significant questions about the selective and inconsistent application of UAPA laws. The courts must ensure that stringent bail conditions do not serve as a mechanism for prolonged incarceration without trial, which contradicts the very principles of justice enshrined in the Indian Constitution.

(The legal research team of CJP consists of lawyers and interns; this legal resource has been worked on by Shailendar Karthikeyan)

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The post SC’s denial of bail to journalist Rupesh Singh once again showcases how the Court looks at bail under UAPA, with varying consistency appeared first on SabrangIndia.

The recent backlash against Ranveer Allahbadia over his appearance on Samay Raina’s show India’s Got Latent is a textbook example of aggressive and selective outrage. During the show, he was asked a controversial hypothetical question: Would you rather watch your parents have sex every day for the rest of your life or join in once and stop it forever?  While the question was undoubtedly crude, it is not unprecedented in the realm of comedy. In fact, years earlier, comedian Kanan Gill had posed the exact same question in a lighter setting, yet it had largely gone unnoticed

Despite the overblown reaction, it is essential to ask: is this really the issue that warrants such national attention? In a country where public figures routinely make far more offensive remarks without consequence, why has a digital content creator become a scapegoat?

Cultural sensitivities vs. evolving crudity, humour

Humour is subjective. What is offensive in India may be considered routine in other cultures. In the U.S., controversial animated shows such as South Park have consistently pushed the boundaries of satire and dark humour, yet they continue to thrive without state intervention. Similarly, It’s Always Sunny in Philadelphia has built its brand around being politically incorrect but has never faced legal consequences.

In contrast, India’s deep-rooted conservatism often prevents it from embracing even the mildest forms of irreverent humour. The backlash against Allahbadia is proof that Indian digital creators still walk a tightrope when it comes to free expression.

Selective outrage and hypocrisy

The outrage surrounding Ranveer Allahbadia raises the larger question of hypocrisy in India’s censorship culture. Several BJP politicians have a well-documented history of making inflammatory and crude remarks, yet they rarely face legal scrutiny. Meanwhile, comedians and digital creators are regularly policed for their content.

Furthermore, Bollywood films have long normalised sexual double entendres and explicit jokes, yet these instances do not attract the same vitriol. The disproportionate outrage against Allahbadia is reflective of a systemic bias—where those in power enjoy unchecked privileges, while independent voices are muzzled.

Supreme Court’s relief and its implications

The Supreme Court granted interim relief to Ranveer Allahbadia, staying his arrest in multiple FIRs filed against him. The order specifically protects him from immediate detention in cases registered under Sections 79, 196, 296, 299 of the Bharatiya Nyaya Sanhita, 2023, read with Section 67 of the Information Technology Act, 2000 in Maharashtra and Sections 79/95/294/296 of the BNS, along with the Cinematograph Act, 1952, and the Indecent Representation of Women (Prohibition) Act, 1986 in Assam

The Court, however, imposed strict conditions: he must join the investigation whenever summoned, deposit his passport with authorities, and refrain from airing any content on YouTube or other media platforms until further orders. While the interim protection ensures his immediate liberty, the restrictions imposed indicate judicial discomfort with his remarks and set a concerning precedent on digital expression.

Supreme Court order dated 18-02-2025 on Ranveer Gautam Allahbadia v. Union of India; IA no. 41866/2025 issued by Surya Kant, Nongmeikapam Kotiswar Singh JJ may be read here:

Legality of incest and the misrepresentation of Allahbadia’s remarks

One of the fundamental flaws in the backlash against Allahbadia is the assumption that his remarks amounted to advocating an illegal or universally condemned act. However, incest laws vary widely across countries. Nations such as Belgium, France, Japan, Portugal, and Spain do not criminalize incest between consenting adults, while other countries impose stringent legal prohibitions. This variation highlights the subjectivity of moral outrage, where cultural and legal perspectives differ significantly. While his comment may have been in poor taste, framing it as an endorsement of criminal activity is a misleading exaggeration.

The dangerous precedent of digital censorship

What makes this controversy even more concerning is how it is being weaponized to justify greater control over digital platforms? The government is now citing this incident as a reason to push forward the Digital India Bill, which aims to regulate online content more stringently

If enacted, such laws could stifle not only comedic expression but also political criticism, independent journalism, and artistic creativity. The internet, which has long been a space for free expression, is now at risk of becoming another extension of the state’s moral policing.

A moment of reflection

The backlash against Ranveer Allahbadia is not just about one crude joke—it is emblematic of a larger struggle between free expression and selective censorship in India. If a young content creator can be vilified for an offhand remark while politicians and public figures enjoy impunity for far worse, it is clear that India’s approach to free speech is deeply flawed.

Instead of vilifying Allahbadia, it is time for a broader conversation about the inconsistency in how India polices speech. Selective outrage only weakens the foundation of free expression, making digital spaces less diverse, less honest, and ultimately, less free.

Related:

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The post Censorship vs. free speech: The Allahbadia controversy appeared first on SabrangIndia.

Section 35A – Criminalising lawyers’ strikes: the death knell of dissent

The bill seeks to criminalise strikes, boycotts, and abstentions from judicial work by labelling them professional misconduct. This provision is a clear violation of Article 19 (1)(a) and (b) of the Constitution, which guarantee freedom of speech and peaceful assembly.

Legal precedents that mitigate against this proposed law

1. Basheshar Nath CIT (1959 AIR 149): The Supreme Court held that fundamental rights are sacrosanct and cannot be taken away by legislative action. This provision seeks to suppress collective bargaining power and dissent, violating the core principles of free expression.

2. K. Rangarajan v. Government of Tamil Nadu (2003): While the SC ruled that government employees do not have an absolute right to strike, it never extended this ruling to the legal fraternity, which does not operate as a government body. Lawyers serve the cause of justice, and their right to protest unjust policies is non-negotiable.

3. Mazdoor Sangh State of Bihar (2004): The Court recognised that strikes and collective protests are essential tools in fighting government overreach. By criminalising lawyer strikes, the government intends to silence the loudest voices against its excesses.

This provision does not seek discipline, it seeks obedience a demand that lawyers become docile tools in the hands of an authoritarian regime.

Section 16 government infiltration of Bar Councils: a hostile takeover of justice

The bill proposes government-nominated members be appointed to Bar Council of India (BCI) and State Bar Councils. This is an unconstitutional violation of the autonomy of the legal profession and a direct threat to judicial independence.

Legal Precedents that mitigate against this incursion

Supreme Court Advocates on Record Association v. Union of India (2015) (NJAC Judgment): The Supreme Court struck down the NJAC Act, which sought to give the executive a say in judicial appointments. If the judiciary must remain independent, why should its gatekeeping body be controlled by the executive?

1. Chandra Kumar v. Union of India (1997): The SC reaffirmed that the executive cannot interfere with institutions that regulate the judiciary. Bar Councils are self-regulatory bodies and must remain free from political interference.
2. Indira Jaising Supreme Court of India (2017): The SC upheld the autonomy of legal professionals and emphasised that **independent bar councils are integral to judicial independence.

The Bar Councils were never meant to be puppets of the state. Allowing the government to infiltrate them will mean that every lawyer who dares to challenge the government will face disciplinary action from government-appointed stooges. This is nothing less than an institutional coup against the legal profession.

Section 26 – restricting entry into legal practice: a gateway to elite control 

The bill proposes new, arbitrary restrictions on who can enter the legal profession, making it harder for young law graduates to enrol. This is an elite, unconstitutional barrier that seeks to curtail the influx of young, bold, independent legal minds who might stand against government overreach.

Legal Precedents that counter this discriminatory move:

1. State of Maharashtra v. Manubhai Pragaji Vashi (1995): The SC held that access to the legal profession is a fundamental right tied to access to This bill erects unnecessary barriers and violates the principle of equality (Article 14).
2. All India Judges’ Association Union of India (2002): The SC ruled that judicial independence starts from the bar. If the bar is infiltrated, the bench will soon follow.
3. P. Gupta v. Union of India (1981): The SC emphasized that judicial independence is not just about judges it extends to legal education and the legal profession. The bill seeks to corrupt that very foundation.

A declaration of war against the legal profession?

This controversial bill is not about reforms it is about absolute control. It is a smokescreen to dismantle the autonomy of lawyers, install government loyalists in regulatory bodies, and silence every dissenting voice. The legal profession has always been the greatest obstacle to tyranny, and this government appears hell bent on bulldozing that resistance.

What makes this Bill a disgrace

1. It violates the fundamental rights of lawyers and law
2. It hands over legal regulatory bodies to government
3. It seeks to silence dissent by criminalizing
4. It curtails the judiciary’s ability to remain

The Supreme Court must strike down this abomination before it destroys the very fabric of justice in India. Lawyers across the country must rise, resist, and reject this sham of a bill.

The fight is not just for the legal community it is for every citizen who believes in democracy, accountability, and the rule of law.

The government fears independent lawyers because they expose its corruption and illegalities. This bill is its desperate attempt to enslave the legal fraternity. But let this be a warning: Lawyers do not bow to tyrants. They fight them, and they win.

Disclaimer: The views expressed here are the author’s personal views, and do not necessarily represent the views of Sabrangindia.

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Lawyers must break the silence of complicity, question flaws of executive overreach: Kapil Sibal

The post The Advocates Amendment Bill, 2025: A blatant attack on lawyers’ autonomy and democracy appeared first on SabrangIndia.

I. Brief history of rape law

Justice Rajiv Shakdher begins his judgment with a historical overview of rape law, emphasising the evolution of the concept of marital rape. He notes that the origins of the Marital Rape Exception (MRE) can be traced back to the doctrine of coverture, which held that a married woman’s legal rights were subsumed by her husband’s. This historical context is crucial for understanding the archaic nature of the MRE, which Justice Shakdher describes as being rooted in a time when women were treated as mere property of their husbands.

II. Separation of powers and judicial restraint

Justice Shakdher addresses the argument that the judiciary should not interfere with legislative decisions, particularly in matters of criminal law. The counsel for one of the intervenors—Men’s Welfare Trust— had argued that if the court were to exercise the powers under Article 226, and strike down MRE, it would have carried out a legislative act thus blurring the Doctrine of Separation of Powers.

Justice Shakdher first establishes via rich case law that in India, the separation of powers is not as rigid as it is in other jurisdictions. Having established it as such, he essentially states that the doctrine does not preclude the judiciary from examining the constitutionality of laws to legislate but to ensure that laws are in compliance with the Constitution (Para 123).

His reasoning behind the court’s power to address the constitutionality of the MRE—against the argument that the Court cannot legislate—is simple and to the point. He states that Article 13 empowers courts to declare void any laws that contravene Part III (Fundamental Rights). Therefore, according to Justice Shakdher, the court’s power includes, as in this case, the authority to deem a law or provision unconstitutional. He states as follows: “The submission that the issues involved concern a policy decision which, in turn, requires wide ranging consultations with members of the public and domain experts misses, if I may say so, the wood for the trees inasmuch as it fails to accept that what the court has before it is a legal issue i.e., whether or not the impugned provisions (which includes MRE) violate a married woman’s fundamental rights conferred under the Constitution.” (Para 125)

Justice Shakdher rejects the notion that judicial restraint should prevent the court from examining the constitutionality of the MRE. To let it be handled by legislature which actually has the means to conduct consultations with a diverse set of stakeholders, it is not an economic/policy issue. According to him, it is a legal issue with alleged violations of fundamental rights and “Side-stepping such issues would be akin to the court seeking “an alibi” for refusing to decide a legal controversy, which it is obliged in law to decide.” (Para 127)

III. Ambit of section 375 of the IPC-Article 14 Test

Justice Shakdher analyses Section 375 of the Indian Penal Code (IPC), which defines rape. He emphasises that rape’s unlawfulness hinges on whether sexual acts were consensual. Section 375’s Clauses (a)-(d) ignore marital status. They apply to all forced sexual acts, except when the offender is a husband. Similarly, married women cannot file criminal charges against their husbands under these clauses. (Para 135.2)

Justice Shakdher identifies consent as central to Section 375. He then examines the Marital Rape Exception (MRE), which treats married and unmarried individuals differently. He concludes MRE violates Article 14 of the Constitution. Why? He applies the Article 14 test: a law’s “intelligible differentia” (clear distinction) must rationally connect to its object. MRE’s marital distinction, he argues, has no rational nexus to Section 375’s goal of criminalizing non-consensual acts. (Para 137.1)

Instead of treating MRE and Section 375 as separate, the judgement treats MRE against Section 375’s core objective. He finds MRE fails this test, as it exempts husbands from liability without justification.

Justice Shakdher’s reasoning behind striking down the Marital Rape Exception (MRE) is compelling not just for its legal soundness but also for the sheer weight of real-life examples he brings forth. His judgement does not merely counter Justice Hari Shankar’s argument that marriage creates a sexual expectation—it systematically dismantles the sexual expectation argument by highlighting multiple instances where a married woman is denied agency over her body, even in situations where fundamental rights to dignity and health should prevail.

One of the most striking aspects of his judgment is his reference to instances where a married woman’s lack of consent is disregarded: when her husband has a communicable disease, when she is unwell, or when the husband is involved in gang rape with co-accused. These examples puncture holes in the argument that marriage inherently implies perpetual consent. As he illustrates:

• Forced sex outside marriage is recognised as “real rape,” yet the same act within marriage is deemed something else.
• A chaste woman or a young girl is more likely to be considered a victim, but a married woman is not.
• A prior sexual relationship is regarded as a reasonable defense on the assumption of consent, yet a married woman’s consent is not even put to test.
• A sex worker has the legal right to refuse sex, but a married woman does not.
• In cases of gang rape where the husband is involved, the co-accused faces the full force of the law, while the husband is exempt merely due to his marital status.
• A married woman has no legal protection even when her husband has a communicable disease or when she herself is unwell. (Para 137.1)

However, Justice Shakdher’s judgement does not stop with disproving the idea of absolute and perpetual sexual expectation in marriage. It goes a step further, challenging the very notion that the State has a legitimate interest in protecting a marriage that functions as a site of tyranny. His judgment is uncompromising in its stance that when husbands are raping their wives, the law cannot seek to preserve such a structure. In his words:

“When marriage is tyranny, the State cannot have a plausible legitimate interest in saving it.” (Para 137.1)

This statement alone renders MRE indefensible under Article 14. The classification between married and unmarried women is not just arbitrary but actively unjust. He applies the test of reasonableness from Slattery v. Naylor (1888) and Kruse v. Johnson (1898), concluding that MRE is manifestly unjust and oppressive. He states:

“If one were to apply the aforesaid test the only conclusion that can be drawn is that the classification between married and unmarried couples in the context of forced sex is not just unequal in its operation but is also manifestly unjust. MRE, in my opinion, is also oppressive as it can find no justification in the minds of reasonable men, for lawmakers could never have intended to make such a law.” (Para 138)

Justice Shakdher critiques the over-reliance on the test of classification, arguing that courts must go beyond rigid categorisation and examine how a law actually operates on the ground. The real effect and impact on those subjected to it must take precedence over remote or indirect consequences, his judgement states, relying on Anuj Garg & Ors. v. Hotel Association of India & Ors.^[2] The Doctrine of Classification must ultimately serve the core principle of equality, not override it. (Para 140)

Applying this to MRE, he highlights its immediate and glaring impact: an unmarried rape survivor can seek protection under various IPC and CrPC provisions, but a married woman is denied the same safeguards. She cannot benefit from identity protection (Section 228A IPC), medical examination provisions (Sections 53A, 164A CrPC), gender-sensitive trial procedures (Sections 26, 154, 161, 309 CrPC), in-camera trials (Section 327 CrPC), or mandatory medical aid (Section 357C CrPC).

He states as follows while declaring the MRE to be violative of Article 14 of the Constitution:

“The fact that the law does not operate even-handedly for women who are similarly circumstanced i.e. subjected to forced sex is writ large and no amount of legal callisthenics will sustain MRE. Therefore, in my view, MRE is bad in law as it violates Article 14 of the Constitution.” (Para 141.1)

IV. On other arguments

Justice Shakdher dismantles the argument that MRE is justified because other IPC provisions are also relationship-based. He clarifies that while some laws exempt spouses from prosecution (e.g., Sections 136, 212, 216, 216A IPC), these apply only to harboring offenders, not committing offenses against a spouse. MRE, however, shields the husband precisely because he is the perpetrator, making the comparison fundamentally flawed.

He also rejects the claim that married women have alternative legal remedies under IPC and other statutes. Section 498A (cruelty), Section 304B (dowry death), and Section 306 (abetment of suicide) do not address rape—they deal with specific forms of abuse. Even the Domestic Violence Act (D.V. Act), while recognizing sexual abuse, does not criminalize marital rape. Instead, it provides civil remedies like protection orders and financial relief but denies the survivor the ability to prosecute her rapist husband under Section 376(1) IPC.

The result? The judgement points out to a glaring legal loophole where a wife can report every other crime committed by her husband except rape. This exposes the hollowness of the claim that existing laws protect married women against sexual violence.

V. MRE violates Article 21 of the Constitution

Justice Shakdher asserts that the MRE violates Article 21 of the Constitution, which guarantees the right to life and personal liberty. He argues that the MRE undermines a woman’s right to bodily integrity and autonomy by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

Justice Shakdher states, “The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.”  (Para 163)

Therefore, denying a married woman the right to legally recognize rape by her husband strikes at the core of her right to life and liberty under Article 21.

VI. MRE Violates Articles 15 and 19(1)(a) of the Constitution

Justice Shakdher also examines the MRE’s impact on Articles 15 and 19(1)(a) of the Constitution, which guarantee protection from discrimination and the right to freedom of expression, respectively. He argues that the MRE perpetuates gender discrimination by treating married women differently from unmarried women.

Justice Shakdher states, “The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy. The fact that this right is also secured by Article 21 (which is available to non-citizens as well) lends strength to the right conferred on a married woman to express herself and not be subjected to non-consensual sexual intercourse by her husband.”  (Para 166.1)

VII. Presumption of constitutionality of pre-constitutional statutes

The judgment addresses the presumption of constitutionality concerning pre-constitutional laws like the IPC, asserting that such laws are not immune from constitutional scrutiny. While Article 372 saves pre-constitutional laws, it does not shield them from being tested against fundamental rights under Articles 14, 15, 19(1) (a) and 21.

The judgment acknowledges the argument from Navtej Singh Johar vs Union of India and Joseph Shine that pre-constitutional statutes do not enjoy an inherent presumption of constitutionality.[3]

Further, the judgement emphasizes the evolving nature of constitutional interpretation. Relying on Anuj Garg, it holds that laws, even if constitutional at inception, can become unconstitutional due to societal changes. Thus, outdated legal provisions must be reassessed to align with contemporary constitutional values. (Para 172.1)

VIII. Foreign decisions, international covenants, and Indian parliamentary reports

The judgment pushes back against objections to relying on foreign decisions and international covenants, pointing out that legal systems worldwide have already moved past the idea that marriage grants immunity from rape. Cases like CR v. UK (ECHR) and People v. Liberta (New York Court of Appeals) make it clear that the marital rape exemption has no place in modern law. Courts in Nepal and the Philippines have also ruled that forced sex in marriage is still rape, reinforcing that consent does not become irrelevant after marriage.

It recognises the importance of international conventions like CEDAW and the Beijing Declaration emphasize gender equality and protection against sexual violence, making it clear that MRE goes against India’s global commitments. Courts in India have previously used international law to interpret domestic statutes, and the judgment follows that precedent.

As for parliamentary reports, multiple committees—including the Justice Verma Committee—have called for scrapping MRE. The fact that the legislature hasn’t acted doesn’t mean courts can’t step in. Navtej Singh Johar made it clear that legislative inaction is a “neutral fact” and doesn’t block judicial review.  The judgement recognises this and follows the same principle.

IX. On miscellaneous issues

Conjugal expectations and marital rights

The judgment critiques the notion of “conjugal expectation,” clarifying that while legitimate during a harmonious marriage, it cannot equate to an unfettered right to non-consensual sex. It references Section 9 of the Hindu Marriage Act (HMA) and Order XXI Rule 32 of the Civil Procedure Code (CPC), noting that even restitution decrees for conjugal rights cannot mandate consummation. The law must respect marital consent, not impose obligations. (Para 146)

Marriage as an institution vs. individual rights

The judgment rejects the argument that excluding marital rape from Section 375 IPC protects the institution of marriage. It emphasizes that marriage is a union of individuals rooted in mutuality, respect, and autonomy. When these principles are violated, the institution collapses. The state’s role is limited to recognizing/dissolving marriages via laws like the HMA, Domestic Violence Act (D.V. Act), and IPC provisions (Sections 375–376B), not shielding perpetrators of sexual violence (Para 148.3).

Labeling marital rape as “rape”

The judgment argues that sexual assault by a husband falling under Section 375 must be labeled as rape to reflect societal disapproval. It critiques societal stigma against victims, not perpetrators, and dismisses the distinction between marital rape and other IPC offenses (e.g., hurt under Sections 319–323, cruelty under Section 498A). Labeling is critical for legal accountability. (Para 149)

False cases and empirical evidence

The judgment refutes fears of false cases, citing National Family Health Survey (NFHS-4) 2015–16 data showing 99% of sexual assaults go unreported. It dismisses the argument as exaggerated, noting courts handle false complaints under IPC provisions like Section 498A (Para 151). The state’s interest in protecting women from abuse outweighs unfounded concerns about misuse.

Here too, we can see the contrast in Justice Rajiv Shakdher’s judgement and Justice Hari Shankar’s judgement in terms of reliance on data. As mentioned in our analysis of Justice Harishankar’s judgement, his analysis lacks empirical data or backing of scholarly work when he asserts that rape by a stranger and non-consensual sexual activity by a husband are not equal in the terms of the psychological trauma they inflict on the woman.

Invasion of the private sphere

The judgment rejects claims that prosecuting marital rape invades private marital space. It distinguishes rape from other marital crimes (e.g., cruelty, hurt) by emphasizing constitutional rights. Citing Joseph Shine vs Union of India (2018), it holds that privacy cannot shield rights violations, and marital intimacy is not exempt from constitutional scrutiny (Para 152).[4] The judgment dismisses arguments about evidentiary difficulties, equating marital rape to other private-space crimes. 

Conclusion

Justice Rajiv Shakdher’s judgment in RIT Foundation is a masterclass in constitutional adjudication, dismantling the marital rape exception (MRE) not merely as a legal anomaly but as a moral affront to India’s republican ethos. By anchoring his analysis in the lived realities of women—where marriage becomes a license for tyranny—he transcends abstract doctrinal debates to expose the MRE’s core flaw: its reduction of women to chattel, stripped of autonomy, dignity, and bodily integrity.

Justice Shakdher’s reasoning is a rebuke to judicial timidity. He rejects the facile argument that courts must defer to legislative “policy choices,” reminding us that the judiciary’s duty is to safeguard fundamental rights, not shield regressive laws from scrutiny. His invocation of Article 13—declaring unconstitutional any law that violates Part III—is a clarion call for courts to actively engage with societal evolution, rather than entombing themselves in the formalism of “separation of powers.”

The judgment’s brilliance lies in its refusal to treat marriage as a sacred cow. It dissects the MRE’s “conjugal expectations” myth, revealing it as a fig leaf for systemic misogyny. By contrasting the legal protections afforded to unmarried rape survivors with the abject denial of justice for married women, it lays bare the MRE’s arbitrary cruelty.

Yet, Justice Shakdher’s verdict is more than a legal victory; it is a philosophical manifesto. His assertion that “when marriage is tyranny, the State cannot have a legitimate interest in saving it” challenges the very premise of a legal regime that prioritizes familial “stability” over individual rights. This is not merely about criminalizing marital rape—it is about redefining marriage itself as a partnership of equals, not a hierarchy of domination.

In contrast, Justice Hari Shankar’s deference to legislative inaction and his elevation of marriage as an institution above constitutional rights represent a jurisprudential throwback, clinging to a vision of the law as a tool for social control rather than liberation. The split verdict, therefore, is not merely a clash of legal opinions but a microcosm of India’s broader struggle between tradition and transformation.

Justice Shakdher’s judgment is a testament to the Constitution’s living spirit—a reminder that rights are not mere parchment promises but living guarantees that demand constant vigilance. By striking down the MRE, he does not merely correct a legal wrong; he reaffirms the judiciary’s role as the Constitution’s moral compass, ensuring a future where no woman’s body is subjected to patriarchal entitlement. In doing so, he invites us to reimagine justice not as a compromise between competing interests, but as an uncompromising commitment to human dignity.

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

[1] 2022 SCC OnLine Del 1404

^[2]  (2008) 3 SCC 1

[3] (2018) 10 SCC 1

[4] (2019) 3 SCC 39

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The post When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative appeared first on SabrangIndia.

While Justice Rajiv Shakdher struck down the MRE, Justice C. Hari Shankar dismissed the petitions—upholding the constitutional validity of the MRE. This article will focus on Justice C. Hari Shankar’s opinion that upheld the constitutionality of the provisions, essentially denying any woman recourse under law prosecuting rape within the institution of marriage.

Facts

• The RIT Foundation, along with the All-India Democratic Women’s Association (AIDWA) and two other individuals, filed a petition challenging the marital rape exception (MRE) under Section 375, Exception 2 of the Indian Penal Code (IPC) 1860. The petition argued that the MRE should be struck down as it violated the constitutional rights of women and perpetuated gendered violence and discrimination.

Provisions involved

The following provisions were challenged:

• Section 375, Exception 2 of the IPC: This exception stated that sexual intercourse by a man with his own wife, who is not under 18 years of age, was not considered rape.
• Section 376B of the IPC: This section dealt with the punishment (2 years) for rape committed by a husband who was separated from his wife.
• Section 198B of the Code of Criminal Procedure (CrPC):  This sections states that no court shall take cognisance of an offence punishable under section 376B of the Indian Penal Code (IPC) where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.

These abovementioned provisions remain in the same form in the Bharatiya Nyaya Sanhita, 2023 with different section numbers via Sections 63 and 67 of the BNS and Section 221 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Arguments advanced against MRE:

• • The MRE violated the constitutional goals of autonomy, dignity, and gender equality enshrined in Articles 15, 19(1) (a), and 21 of the Constitution.
  • The MRE treats women as the property of their husbands after marriage, denying them sexual autonomy, bodily integrity, and human dignity as guaranteed by Article 21.
  • The MRE violated the reasonable classification test of Article 14 as it created a distinction between married and unmarried women, denying equal rights to both.
  • The MRE should be struck down, and the punishment under Section 376B should also be invalidated as it discriminated between offences committed by separated husbands, actual husbands, and strangers.

Arguments for MRE’s constitutionality:

• • The crux of these arguments was twofold—court’s lack of power to read down the MRE thus creating a new offence and the fact that legislature had made a conscious decision to not label non-consensual sexual act between husband and wife as rape to protect the institution of marriage, by extension, families and progeny thus there is a legitimate object that the state is seeking to achieve via the MRE.

Justice C. Hari Shankar began his judgment by outlining the context and the specific challenge before the court. The petitioners argued that Exception 2 to Section 375, which states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape, is unconstitutional. They contended that this exception violates Articles 14, 19(1)(a), and 21 of the Constitution, which guarantee equality before the law, freedom of speech and expression, and protection of life and personal liberty, respectively. The petitioners emphasized the importance of sexual autonomy and consent, arguing that the exception undermines these principles by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

On original objective and the continuing legislative intent

Justice C. Hari Shankar addressed the original objective and the continuing legislative intent behind the Marital Rape Exception (MRE) in his judgment. He emphasised that the original objective of the MRE, as conceived in the 1860 IPC, was not based on the outdated “Hale dictum,” which suggested that marriage implied a wife’s consent to sexual intercourse with her husband. Instead, the MRE was rooted in the unique nature of the marital relationship and the need to balance individual rights with the preservation of the institution of marriage.

He stated:

“There is nothing to indicate that the ‘marital exception to rape,’ contained in the Exception to Section 375 of the IPC, or even in the proposed Exception in Clause 359 of the draft Penal Code, was predicated on the ‘Hale dictum,’ which refers to the following 1736 articulation, by Sir Matthew Hale: ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband, which she cannot retract.’ Repeated allusion was made, by learned Counsel for the petitioners, to the Hale dictum. There can be no manner of doubt that this dictum is anachronistic in the extreme, and cannot sustain constitutional, or even legal, scrutiny, given the evolution of thought with the passage of time since the day it was rendered. To my mind, however, this aspect is completely irrelevant, as the Hale dictum does not appear to have been the raison d’être either of Section 359 of the draft Penal Code or Section 375 of the IPC.” [Para 13]

Justice C. Hari Shankar further explained that the continuing legislative intent behind retaining the MRE is to preserve the institution of marriage. He highlighted that the legislature, in its wisdom, has chosen to treat non-consensual sexual acts within marriage differently from those outside of marriage. He argued that this distinction is based on an intelligible differentia that has a rational nexus to the object of preserving the marital institution.

In essence, Justice C. Hari Shankar maintained that the continuing legislative intent behind the MRE is to protect the institution of marriage by distinguishing between non-consensual sexual acts within marriage and those outside of it. He emphasized that this distinction is not arbitrary but is based on a rational assessment of the unique dynamics of the marital relationship and the broader societal interests at stake.

On rational nexus and intelligible differentia

Justice C. Hari Shankar further analyses the concept of “intelligible differentia” and “rational nexus” in the context of Article 14 of the Constitution.

His interpretation rests on the foundational premise that the marital relationship is intrinsically distinct from all other forms of relationships, particularly in that it carries an inexorable incident of a legitimate expectation of sexual relations.

He articulates this position as follows:

“The primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.”

This formulation forms the central pillar of his justification for treating non-consensual sexual acts within marriage differently from those outside of it. The judgment thus constructs an argument wherein marriage, as a legal institution, grants a presumption of consensual intimacy, differentiating it from other relationships where consent must be independently established.

He states:

“The legislature is free, therefore, even while defining offences, to recognise ‘degrees of evil.’ A classification based on the degree of evil, which may otherwise be expressed as the extent of culpability, would also, therefore, be valid. It is only a classification which is made without any reasonable basis which should be regarded as invalid. While the Court may examine whether the basis of classification is reasonable, once it is found to be so, the right of the legislature to classify has to be respected. Where there is no discernible basis for classification, however, or where the basis, though discernible, is unreasonable or otherwise unconstitutional, the provision would perish.” [Para 144]

Internal inconsistencies within the IPC framework

However, this reasoning, while maintaining internal consistency within the judge’s interpretative framework, encounters contradictions within the broader legal architecture of the IPC—particularly when juxtaposed with Section 376B, which criminalizes non-consensual intercourse between a husband and wife during separation.

Section 376B, which prescribes a lesser punishment (up to two years of imprisonment), nonetheless acknowledges that marital status alone does not create an absolute or irrevocable expectation of sexual relations. This provision, therefore, implicitly recognizes a wife’s autonomy and the necessity of consent, at least in specific contexts. The logical inconsistency emerges in two key aspects:

1. Recognition of autonomy in judicial and non-judicial separations

1. • Section 376B (punishment for rape by a husband during separation) does not require a court-ordered decree of separation for its application, meaning that a wife living separately from her husband—without a state-recognized order—still retains legal protection against non-consensual intercourse involving her own husband.
   • This directly contradicts the fundamental assumption of the MRE, which presumes that marriage inherently entails continuous consent to sexual relations. If the institution of marriage is so distinct and special, then why does the law acknowledge that consent is required during separation, even without formal judicial recognition? It is to ensure that all institutions are within the bounds of the Constitution and the value system it espouses. To this extent, the Criminal Law Amendment Act, 1983 added the current 376B (it was added as 376A but was later renumbered to 376B in 2013 after the Criminal Law Amendment, 2013).

2. The status of underage marital rape under IPC

1. • The inconsistency is further compounded by the fact that the IPC (via the Independent Thought vs Union of India judgement) criminalizes non-consensual intercourse with a wife below the age of 18, thereby recognizing the primacy of consent in certain marital contexts.
   • If the marital bond inherently carries an expectation of sexual relations, as the judgment asserts, then the legal system’s refusal to extend this principle to child marriages undermines the assumption of an absolute and uninterrupted sexual expectation within marriage. However, it has been extended to bring it in consonance with the constitutional principles in Independent Thought vs. Union of India.[2]

The judgment by Justice C. Hari Shankar relies on the intelligible differentia test to uphold the MRE, but the incoherence in its application becomes evident when viewed through the lens of Section 376B and related provisions. If marriage is a uniquely protected institution, then its sanctity should logically override even non-judicial separations—yet it does not. This suggests that when the law is compelled to acknowledge a wife’s individual autonomy, it does so in ways that directly conflict with the underlying justification for the MRE.

One could argue that a clear distinction exists in the punishments, as spousal rape during separation carries a lighter sentence (two years) compared to the harsher penalties under Section 375. However, this distinction collapses under scrutiny because:

• The recognition of consent during separation (including non-judicial separation) means that the “legitimate expectation of sex” argument is not absolute.
• The law, therefore, implicitly concedes that the marital institution does not override a wife’s right to autonomy in every instance.
• If the expectation of sexual relations within marriage were as absolute as the judgment suggests, then non-consensual intercourse during a non-court-ordered separation should not have been an offense at all.

The IPC’s contradictions — recognizing marital consent in separations (Section 376B) and criminalising underage marital rape — dismantle the “intelligible differentia” justifying the marital rape exception (MRE). By acknowledging that consent matters even within marriage, the law inadvertently concedes that marital status alone cannot negate autonomy. This fractures the MRE’s foundational logic: if a separated or underage wife retains constitutional rights to bodily integrity (Articles 14, 21), why does cohabitation erase them? The disparity in punishments (2 years vs. 10 for non-marital rape) further portrays a patriarchal hierarchy, implying a husband’s “claim” outweighs a wife’s dignity — a stance antithetical to Article 15’s prohibition of gender discrimination and to Constitutional Morality as espoused in Navtej Singh Johar vs Union of India.[3]

On Article 19 and 21

Justice C. Hari Shankar also addresses the argument that the exception violates Article 19(1)(a) by restricting a married woman’s right to sexual self-expression. He rejects this contention, stating that the exception does not compromise a woman’s right to consent or refuse consent to sexual relations. Instead, it merely recognises the complex interplay of rights and obligations within a marital relationship. Similarly, he dismisses the claim that the exception infringes upon Article 21, asserting that there is no fundamental right under the Constitution for a woman to prosecute her husband for rape in the context of marriage. It is here that Justice C. Hari Shankar makes deeply problematic observations that highlight and symbolise the underrepresentation of women and their voices, both in the society and in the judiciary that has contributed to emergence views such as follows.

He states as follows:

“If one were to apply, practically, what has been said by Mr. Rao of the crime of “rape”, the entire raison d’etre of the impugned Exception becomes apparent. As Mr. Rao correctly states, rape inflicts, on the woman, a “deep sense of some deathless shame”, and results in deep psychological, physical and emotional trauma, degrading the very soul of the victim. When one examines these aspects, in the backdrop of sexual assault by a stranger, vis-à-vis nonconsensual sex between husband and wife, the distinction in the two situations becomes starkly apparent. A woman who is waylaid by a stranger, and suffers sexual assault – even if it were to fall short of actual rape – sustains much more physical, emotional and psychological trauma than a wife who has, on one, or even more than one, occasion, to have sex with her husband despite her unwillingness. It would be grossly unrealistic, in my considered opinion, to treat these two situations as even remotely proximate. Acts which, when committed by strangers, result in far greater damage and trauma, cannot reasonably be regarded as having the same effect, when committed by one’s spouse, especially in the case of a subsisting and surviving marriage. The gross effects, on the physical and emotional psyche of a woman who is forced into non-consensual sex, against her will, by a stranger, cannot be said to visit a wife placed in the same situation vis-à-vis her husband. In any event, the distinction between the two situations is apparent. If, therefore, the legislature does not choose to attach, to the latter situation, the appellation of ‘rape’, which would apply in the former, the distinction is founded on an intelligible differentia, and does not call for judicial censure.” [Para 184]

Essentially, Justice C. Hari Shankar says that rape by a stranger is more psychologically damaging than rape by a husband of his wife.

For starters, this line of reasoning differentiates the intensity of suffering on the basis of the identity of the victim’s vis-a-vis her relation to the accused depending on whether the accused is the victim’s husband or a stranger. This exercise was unnecessary, if not deeply flawed and regressive.

Moreover, the same Section 376 which punishes rape has a stricter punishment for aggravated rape—which punishes rape by people in authority or relatives. Therefore, the law deems rape by people who are in positions of authority/trust more serious than other cases. This distinction should have prompted Justice C. Hari Shankar to delve into the issue with much more sensitivity to the suffering of a victim which it failed to do.

This is not to say that the relation between people in authority and the victims is same as marital relationship. The reason for quoting this example is to show that trauma cannot be said to be less or limited when a husband commits rape when compared to a when a stranger commits the offence.

Secondly, a simple search would have given Justice Hari Shanker studies and scholarly research that discussed how traumatic it is for women to be raped by their own husbands. From Diana Russell’s pioneering work on Rape in Marriage in the 1980s to recent studies on marital rape that reveal its devastating physical, reproductive, sexual, and psychological impact on women well into old age, there is well-established scholarship on the effects of marital rape. Given this, Justice C. Hari Shankar’s casual categorization of these traumas into different tiers is deeply concerning if not problematic (Bhat and Ullman, 2014;  Band-Winterstein T. and Avieli, 2022)[4][5]

On creation of a new offence

Justice C. Hari Shankar further considers the potential consequences of striking down the exception. He notes that doing so would create a new offence of “marital rape” and would necessitate a re-evaluation of the punishments prescribed under Section 376 of the IPC. He also highlights the practical difficulties that would arise in proving consent in cases of marital rape, given the private nature of the marital bedroom. The judge argues that these considerations weigh in favour of retaining the exception, as the legislature has the authority to make policy decisions regarding criminal law.

He maintained that the MRE is an integral part of Section 375 of the Indian Penal Code (IPC) and that removing it would fundamentally alter the scope of the offense of rape. He argued that the MRE is not merely an exception but a critical component of the legal framework that defines the offense of rape.

He stated:

“Offences may legitimately be made perpetrator-specific or victim-specific. In the present case, Section 375, read as a whole, makes the act of ‘rape’ perpetrator-specific, by excepting, from its scope, sexual acts by a husband with his wife… The specification of the identity of the man, and his relationship vis-à-vis the woman, which presently finds place in the impugned Exception might, therefore, just as well have been part of the main provision.” [Para 203]

However, MRE itself is what makes the offense of rape perpetrator-specific, and removing it would merely restore the general applicability of the offence to all individuals, regardless of their marital status. This view is supported by the Supreme Court’s decision in Independent Thought vs Union of India. In this case, the same provision was dealt with. The Marital Rape Exception, before the Independent Thought judgement, applied to non-consensual sexual acts with wife who is 15 years and above. Since it contrasted the Protection of Children from Sexual Offences Act, 2012 and the overall Constitution, the provision was read down to have it applied to only acts with a wife who is 18 and above thus protecting those women who are less than 18 years of age.

This is what the court said in Independent Thought addressing the concerns over it creating a new offence:

 One of the doubts raised was if this Court strikes down, partially or fully, Exception 2 to Section 375 Indian Penal Code, is the Court creating a new offence. There can be no cavil of doubt that the Courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 Indian Penal Code, no new offence is being created. The offence already exists in the main part of Section 375 Indian Penal Code as well as in Section 3 and 5 of POCSO. What has been done is only to read down Exception 2 to Section 375 Indian Penal Code to bring it in consonance with the Constitution and POCSO. 

The judgement by Justice C. Hari Shankar does not deal with this prima facie similarity between the reasoning of Independent Thought and the reasoning of petitioners as to why reading down MRE does not create a new offence. He states as follows:

But, assert learned Counsel for the petitioners, by striking down the impugned Exception, this Court would not be creating an offence. They rely, for this purpose, on Independent Thought , in which it was held that the Supreme Court was not creating an offence by reading down the impugned Exception to apply to women below the age of 18. The analogy is between chalk and cheese. The situation that presents itself before us is not even remotely comparable to that which was before the Supreme Court in Independent Thought. We are not called upon to harmonise the impugned Exception with any other provision. The petitioners contend that the impugned Exception is outright unconstitutional and deserves to be guillotined. Would we not, by doing so, be creating a new offence?

We do not see any engagement with the proposition advanced by the petitioners or with the reasoning in Independent Thought. Striking down the marital exception would not create a new offence but would merely extend the application of Section 375 to all individuals, irrespective of marital status. Justice C. Hari Shankar’s concern—that such a move would turn previously non-offenders into offenders and that criminalization is the legislature’s prerogative—remains unreasoned when examined in light of the approach taken in Independent Thought.

Conclusion

Justice C. Hari Shankar’s judgement is a mix of genuine judicial restraint and a deeply flawed reasoning that puts women and their autonomy on the back burner, for the purpose of patriarchal notions of desire in the garb of sanctity of marriage. His reasoning after a point goes from flawed to problematic when he states the following: “Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic.” [Para 130]

While he is entitled to present his judicial opinion, he does not provide any reasoning for differentiating the trauma of marital rape from that of rape by a stranger. We do not know if he relied on any survey, or on what basis he came to his conclusion. The assertion lacks empirical evidence or scholarly backing and instead relies solely on personal assumptions, which are disconnected from established research on marital rape trauma.

Justice C. Hari Shankar’s wisdom in exercising judicial restraint is robust, tenable and sound when it relates to the argument that such change must come from the legislature. While it might not be entirely agreeable, there is a level of doctrinal firmness to it.

However, his views on marriage, expectations of sex and autonomy of women struggle to find their ground in the concepts of constitutional morality, ethical logic but flow with the flaws of regressive outlook on what a marriage is. These flaws stem not only from an inadequate understanding of how the law attributes sanctity to marriage but also from a superficial and reductive view of the emotional and psychological trauma endured by married women when their trust is violated by their own husbands through marital rape. In this sense, the flaws not only are legal, but also moral.

The novel contribution of this judgement is not the exercise of judicial restraint but an expression of outdated perception of marriage—one that subordinates constitutional morality to patriarchal tradition.

In the next part, the judgement of Justice Rajiv Shakdher declaring the MRE to be unconstitutional and his reasoning in answering some pertinent questions raised by Justice C. Hari Shankar will be discussed.

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

[1] 2022 SCC OnLine Del 1404

[2] [2017] 10 SCC 800

[3] (2018) 10 SCC 1

[4] Bhat, M. and Ullman, S.E., 2014. Examining marital violence in India: Review and recommendations for future research and practice. Trauma, Violence, & Abuse, 15(1), pp.57-74.

[5] Band-Winterstein, T. and Avieli, H., 2022. The lived experience of older women who are sexually abused in the context of lifelong IPV. Violence against women, 28(2), pp.443-464.

Also Read:

When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative

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D*ck or fist

A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post How Justice C Harishankar, in upholding the exception to marital rape, delivered a reasoning fir for the dark ages appeared first on SabrangIndia.

What is victimology?

Globally, victimology—the study of victims and their place in the legal system—has become more and more prominent in legal discourse. Criminal justice regimes have historically been offender-centric, emphasising punishment over victims’ interests and rights. However, the 154th Law Commission Report (1996) marked the beginning of a major movement in India towards a victim-centric approach. This report, which emphasized that justice must go beyond the prosecution of perpetrators, was essential in acknowledging the suffering, rights, and rehabilitation needs of victims of a crime. The report established the groundwork for significant legal reforms in India by suggesting measures for witness protection, legal aid, and victim recompense.

Recent developments

A significant advancement in victimology is the recent Supreme Court ruling in Mahabir & Ors. v. State of Haryana, which upholds fair trial norms while defending victims’ rights. Due to procedural errors, including violations of natural justice, the Supreme Court later rejected the Punjab and Haryana High Court’s decision to reverse an acquittal in this case. By highlighting victim involvement, judicial accountability, and due process, this ruling makes a substantial contribution to victimology.

Reaffirming victim participation in legal proceedings is one of the judgment’s main contributions. The lawsuit started when the deceased’s father filed a revision petition contesting the accused’s acquittal. The High Court’s decision brought attention to the necessity of explicit victim rights within legal frameworks, even if it was legally untenable under Section 401(3) of the Code of Criminal Procedure (CrPC), which prohibits turning acquittals into convictions.

The CrPC’s Section 372 proviso, which gives victims the right to appeal acquittals, was examined by the Supreme Court. The Court decided that this provision could not be applied retroactively to a 2006 revision petition because it was established in 2009. This emphasises how victim rights must be in line with statutory provisions, strengthening the bounds of victim participation under the law.

The ruling emphasises the value of witness protection, which is a fundamental component of victimology. The Supreme Court ruled that the High Court had violated procedural fairness by depending on a Section 161 CrPC statement rather than sworn trial testimony. It strengthened the conversation on victim protection in trials by emphasizing the need to protect witness testimony against coercion.

Furthermore, the balance between victim rights and the protection of a fair trial is highlighted by the Supreme Court’s order for the accused to be released immediately and for compensation for unjust incarceration to be considered. The ruling guarantees the preservation of due process while enhancing victim engagement.

Recognizing unjust detention and the necessity of compensation is another crucial element. The Court acknowledges the impact of judicial errors on the accused in its discussion, citing D.K. Basu v. State of West Bengal and Nilabati Behera v. State of Orissa. By supporting restorative justice and guaranteeing justice for both victims and those who were unfairly convicted, this ruling broadens the scope of victimology.

The judgement of Mahabir & Ors. v. State of Haryana of the Supreme Court makes a substantial contribution to victimology in India. It guarantees procedural protections against erroneous convictions while reaffirming victim rights. The ruling strengthens the integrity and accountability of the legal system by establishing a precedent for striking a balance between victim participation and fair trial requirements.

Role of public prosecutor

In the case of Mahabir & Ors. v. State of Haryana, the Supreme Court examines the duties and responsibilities of the Public Prosecutor’s (PP) in great detail, highlighting the PP’s essential role in the criminal justice system. According to the CrPC, the Public Prosecutor is granted certain statutory responsibilities and privileges, and the Court recognises that they wield a “public office.” The Court emphasises that the office is an independent statutory entity that must operate with impartiality, fairness, and integrity rather than just being an extension of the investigative agency as reported by LiveLaw.

The Court emphasises how important it is for a public prosecutor to strike a balance between finding the guilty, protecting people’ rights, and making sure justice is served fairly. The PP’s function goes beyond simply obtaining convictions; rather, it is to help the court arrive at the right decision. The ruling emphasizes that in order to provide justice for both the prosecution and the accused, a prosecutor should not withhold evidence but rather provide a whole and objective picture.

The Court also condemns some prosecutors’ propensity to suppress exculpatory evidence in order to focus too much on getting convictions. The ruling makes it very evident that a PP must behave in a way that preserves the integrity of the legal system rather than pursuing conviction “somehow or the other.” Even if the defense or the court ignores it, the public prosecutor must alert the court whether the accused is entitled to any benefits under the law.​

The Court’s apprehension regarding political meddling in the selection of public prosecutors is another important aspect of the ruling. It challenges the custom of choosing prosecutors based more on political factors than qualifications, contending that only those with strong moral character, legal acumen, and independence ought to be chosen. The State Government is held responsible by the Court for making sure Public Prosecutors adhere to these strict guidelines.

Lastly, the Court admits that judicial workload and oversight might lead to mistakes in the legal process. Nonetheless, it highlights the responsibility of public prosecutors and defense attorneys to rectify judicial errors when they occur. The Court’s landmark decision, which orders the State Government to compensate appellants harmed by prosecutorial errors, reaffirms the notion that justice must be done and seen to be done.

The ruling firmly upholds the Public Prosecutor’s position as an impartial court official tasked with upholding justice rather than just obtaining convictions. It demands adherence to the rule of law, fair prosecution, and nominations based on merit.

The 154th Law Commission Report: an overview

To guarantee a just and equitable legal system, the Law Commission of India, a statutory agency, is tasked with suggesting legal reforms. With a particular focus on victimology, the 154th Law Commission Report, which was submitted in 1996, aimed to revise the Code of Criminal Procedure (CrPC), 1973. It recognized that although victims of crimes frequently face social marginalization, emotional distress, and financial difficulty, their issues are often overlooked during the legal process. According to the research, victims’ needs should be addressed methodically, and the justice system should prioritize their rights and welfare.

The establishment of a state-funded victim compensation program was one of the report’s most important suggestions. The report emphasized that victims of crimes frequently experience financial hardship, particularly those from marginalized families. The proposal suggested adding Section 357A to the CrPC, which would require state governments to give victims financial support. The Criminal Law (Amendment) Act of 2009[1] ultimately put this recommendation into practice, making compensation a crucial component of victim justice.

The role of victims in court procedures was another important area of victimology that was covered in the 154th Law Commission Report. Victims have historically not been considered active participants in trials, but rather witnesses. According to the report, victims—especially those impacted by heinous crimes—should be given access to legal counsel and be given the opportunity to actively engage in the legal system. In subsequent legal advancements, this concept gained traction as courts acknowledged victims’ rights to participate in prosecution decisions and appeal acquittals.

The report also underlined the significance of protecting witnesses and victims, acknowledging that victims frequently encounter threats, coercion, and social pressure, particularly in situations involving organized crime, communal violence, and sexual offences. The Witness Protection Scheme of 2018 was influenced by its recommendation to provide a legal framework for witness protection. To ensure that at-risk victims and witnesses can testify without fear, this program now offers security measures like identity concealing, police protection, and relocation.

The foundation for numerous legislative and policy reforms in India was established by the 154th Law Commission Report. The addition of Section 357A to the CrPC, which mandated state-funded compensation plans throughout India, was one of its most important contributions. Its suggestions about victim involvement in trials also had an impact on subsequent rulings that acknowledged victims’ rights to appeal and pursue justice apart from the prosecution.

In order to give survivors of crimes including rape, domestic abuse, acid assaults, and community violence financial support, multiple states have over time established victim compensation schemes. Furthermore, the idea of witness protection—which was initially emphasized in the report—became a reality in 2018 with the Witness Protection Scheme, providing vulnerable witnesses and victims with much-needed security. These changes guarantee that victims are no longer viewed as passive viewers but rather as important participants in the legal system, reflecting a gradual but necessary transition towards victim-centric justice.

The introduction of victimology into India’s legal discourse was made possible largely by the 154th Law Commission Report (1996). Advocates for witness protection, legal counsel, and victim compensation changed the way victims are handled in the court system. The legal foundation for victims has been reinforced by the ensuing reforms, which include legislation protecting witnesses and state-funded compensation.

History

Before this, the fifth law commission of India in the 42^nd report dealt with the concept of compensation to the victims of crime in India. The law commission referred to the “three patterns” concept of compensating the victim which is seen the code of criminal procedure of France, Germany, and (Former) Russia. The pattern includes:

• Compensation by the state.
• Compensation by the offender by means of fines or paying certain specific amount.
• Offender’s duty to repair for its damages.

Further the 142^nd, 144^th, 146^th, 152^nd, 154^th, and 156^th report emphasised the concept of compensation for the victims and made certain contribution towards it. As result, the Government of India after considering various reports and recommendations amended the Code of Criminal Procedure code in the year of 2009.

Best Bakery case: A turning point

One of the most notable cases of witness intimidation and a failure to provide justice in India was the case of Zahira Habibullah H. Sheikh and Anr. vs. State of Gujarat and Ors. [(2004) 4 SCC 158], prominently known as the Best Bakery case, which brought to light the systematic disregard for victims in criminal prosecutions. This case, which was based on the Gujarat riots of 2002, revealed the weaknesses of victims in cases of communal violence and showed how a lack of legal protections could result in witness hostility, unfair acquittals, and the denial of justice. By highlighting the importance of witness protection, fair trials, and victim participation in the judicial system, the events that followed this case significantly contributed to the establishment of victimology in India as reported by the National Human Rights Commission.

Fourteen people, all Muslims, were killed by a mob during the post-Godhra riots in Vadodara, Gujarat, when the Best Bakery was set on fire. Primarily due to the intimidation of important witnesses, such as Zaheera Sheikh, a crucial eyewitness who became hostile in court, the first trial ended with the acquittal of all 21 accused. The Supreme Court of India stepped in after a national outcry over the judicial system’s failure in this case. A significant step towards guaranteeing an unbiased and equitable trial was taken when the trial was moved from Gujarat to Maharashtra in a landmark ruling.

The Best Bakery case made a significant contribution to victimology by highlighting the necessity of legislation protecting witnesses Citizens for Justice and Peace was co-petitioner in the case. The Supreme Court recognised that, especially in situations involving organized crime, prominent accused, or communal violence, victims and witnesses frequently experience threats, social pressure, and coercion.

The Witness Protection Scheme, 2018 was ultimately the result of this case, which bolstered the call for a formal witness protection structure. This plan ensures that victims and witnesses can testify without fear by providing measures including relocation, police protection, and identity concealing.

The increase in victim participation in court processes was another noteworthy development that was impacted by this case. The case demonstrated how victims were frequently viewed as merely witnesses with little influence over the court system. Later legislative revisions that gave victims the ability to appeal against acquittals and actively engage in trials were made possible by the judiciary’s response to the Best Bakery case, which reaffirmed the notion that victims must have a voice in the legal process.

The case also highlighted how crucial victims’ rights to a fair trial are. A precedent for trial transfers in situations when political or sectarian factors prevent an unbiased hearing was established by the Supreme Court’s decision to move the case to Maharashtra. This reaffirmed the judiciary’s dedication to guaranteeing that victims of crimes, especially those from marginalized and disadvantaged populations, have an equal opportunity to obtain justice as reported in a research published by SSRN.

An important turning point in the development of victimology in India was the Best Bakery case. Crucial legislative and policy changes, such as the implementation of legislation protecting witnesses, enhanced victim rights, and procedures for fair trials, were brought about by the revelation of the criminal justice system’s shortcomings. This case shaped the current understanding of victimology in the Indian legal system by demonstrating that true justice necessitates protecting and empowering the victim in addition to punishing the criminal.

Conclusion

The development of victimology in India, which has been characterized by important legal changes and seminal rulings, highlights the increasing acceptance of victims’ rights in the judicial system. Important legislative changes like Section 357A CrPC resulted from the 154th Law Commission Report, which established the groundwork for victim compensation, witness protection, and active victim engagement. The necessity of justice, due process, and prosecutorial responsibility was further emphasized by cases such as Mahabir & Ors. v. State of Haryana and the Best Bakery trial. By balancing victim rights with fair trial principles, these advancements ensure justice is not just about punishing offenders but also about protecting and empowering victims, ultimately strengthening India’s legal system.

(The legal research team of CJP consists of lawyers and interns; this factsheet has been worked on by Yukta Adha)

[1] Amendment number 21 of 2009

Related:

Witness Protection in India: an idea gathering dust

The Best Bakery Case

The 2004 Best Bakery Judgement and Its Significance

The post Strengthening the rights of victims: Legal milestones and the path ahead appeared first on SabrangIndia.

General considerations for granting bail

Under the Code of Criminal Procedure (CrPC), bail provisions are outlined in Sections 436 to 450, with clear distinctions between bailable and non-bailable offenses. The Bharatiya Nagarik Suraksha Sannhita, 2023(BNSS) has repealed the CrPC, however crimes reported and being tried prior to July 1, 2024 will continue to be governed by IPC and CrPC.

The following factors could be broadly understood as the checklist before the court grants a Bail, or at least they should be, according to the Supreme Court as stated in the case of State of UP vs. Poosu [(1976) 3 SCC 1] and later reiterated in Inder Mohan Goswami vs. State of Uttarakhand [2007 (12) SCC 1] and recently in Ajwar vs. Waseem [2024 INSC 438].

• Securing appearance at trial: The primary objective of arrest and detention is to ensure the accused’s presence during the trial and to guarantee their availability to receive the sentence if found guilty. If the accused’s presence can be reasonably ensured without arrest and detention, it is unjust to deprive them of their freedom.
• Nature and seriousness of the offence: Courts consider the nature and seriousness of the alleged offense, the character of the evidence, and circumstances unique to the accused when deciding on bail.
• Interests of society: The larger interests of the public and the state are also crucial. Factors such as previous convictions, criminal records, and the likelihood of repeating the offense if released on bail are taken into account. Recently, the Supreme Court had denied bail to a person in a case after it observed that the same person has been an accused in multiple heinous crimes (Sushant Kumar Dhalsamanta vs. State of Odisha).[1]
• Judicial discretion: Granting bail involves judicial discretion, which must be exercised judiciously; mechanical rejection should be avoided.

Specific considerations for certain accused

• Minors and Women: Courts may direct the release on bail of any person under 16 years of age, any woman, or any sick or infirm person accused of an offense (Section 437, CrPC).

Conditions for bail:

• Conditions to ensure justice: Courts granting bail have the power to set any condition they consider necessary in the interest of justice.
• Deposit of money: Courts can permit an accused person to deposit a sum of money in lieu of executing a personal bond and providing surety.
• Reporting to authorities: Directing the applicant to report to the investigating officer is a common condition to ensure cooperation with the investigation.

Background:

The bail application was filed by Tejas Shamsunder Shinde, a 20-year-old student pursuing a Bachelor of Management Studies, who had a good academic record. Shinde was seeking bail in connection with an offence punishable under Section 302 of the Indian Penal Code (IPC) — murder. The victim in this case was Shinde’s 69-year-old father, who was unwell and bedridden at the time of the incident, which occurred on February 22, 2023, at approximately 5:00 p.m.

Facts:

• The victim was unwell and bedridden, requiring assistance for his basic needs, which Shinde, having returned from college at 1:30 p.m., provided.
• The father and son had a history of verbal altercations, with the father often abusing Shinde and his mother.
• An altercation occurred at 5:00 p.m. when Shinde opposed his father taking certain un-prescribed medications.
• The altercation escalated, and Shinde inflicted blows on his father with a millstone and then used a kitchen knife to inflict a fatal wound on his neck.
• Shinde then went to the police station and confessed to the crime.

Arguments:

• Applicant: Applicant’s counsel argued that Shinde was a young student with a bright future and that the incident was not premeditated. She emphasised Shinde’s academic achievements and the circumstances leading to the incident. Granting bail would allow him to continue his education and prevent him from becoming a hardened criminal.
• Respondent (State of Maharashtra): Respondent’s counsel argued against the application, pointing to the medical report and the nature of the injuries, contending that it was a cold-blooded murder. She highlighted the cruelty of the act, where Shinde initially inflicted blows with a millstone and then used a kitchen knife to ensure his father’s death.

Court’s observations and reasoning:

The court acknowledged the gruesome nature of the murder, the victim’s medical condition, and the fact that Shinde had been assisting him. The trigger for the incident was identified as the father’s constant abuse towards Shinde and his mother. The court observed that Shinde’s mind “crossed the threshold” due to the repeated abuse, leading to the fatal act (Para 16). The court considered Shinde’s age (20 years) and his status as a student. The court referenced a Delhi High Court judgment in Siddharth Jain v. Shaheed Sukhdev College of Business Studies [2015 SCC Online Del 1342], emphasizing the wide powers of the court to deal with young offenders and the importance of preventing recidivism. The court also cited Ishar Das v. State of Punjab [1973 (2) SCC 65], highlighting the purpose of the Probation of Offenders Act to reform offenders. The court noted that Shinde voluntarily confessed to the crime, indicating contrition. The court recognised that exclusion from education would be an added punishment for a student. The court expressed hope that Shinde would reform and rehabilitate himself. The court viewed the situation as a result of grave provocation due to the victim’s repeated abuse.

Decision

The court granted bail to Shinde, emphasising the opportunity for him to complete his management degree studies. Shinde was directed to be released on furnishing a P.R. Bond of Rs.25,000/- with one or two sureties. Conditions were imposed, including reporting to the investigating officer, cooperating with the trial, and not influencing witnesses. The court hoped Shinde would continue his studies and become a good citizen. The observations, as per the court, were prima facie and for the purpose of granting bail only and should not influence the trial. The bail application, thus, was allowed and disposed of.

Consideration of loss of educational opportunity

In Tejas Shamsunder Shinde, the judge’s consideration of the loss of educational opportunity as factor in granting bail is an innovative tool to ease the restrictions on bail, especially in offences like murder and particularly in patricide cases.

• Rehabilitation and reintegration: The judge recognized that allowing the accused to continue their education supports their rehabilitation and reintegration into society. This aligns with the principle that punishment should aim to reform, not just penalize.
• Preventing hardened criminality: By facilitating the continuation of education, the court aimed to prevent the accused from becoming hardened criminals. This proactive approach addresses the root causes of crime and focuses on positive development.
• Balancing justice and humanity: The decision reflects a balanced approach, considering the seriousness of the offense (Section 302 of IPC) while also acknowledging the accused’s potential for reform and the long-term benefits of education.
• Avoiding double punishment: Depriving an undertrial of educational opportunities effectively imposes a double punishment: first, the deprivation of liberty, and second, the loss of a crucial developmental phase of life.

The court stated as follows in relation to the loss of education and how it affects the individual:

“It should also be noted that in a case where an offender is undergoing studies, his exclusion from education for a period of time is an added layer of punishment over and above what a non-student accused may be subjected to. This is because a student undergoing incarceration suffers loss of precious academic time which cannot be bartered for any wealth in the world. He also constantly witnesses his peers moving ahead in life than compared to him and when the frustration becomes insurmountable such frustration can create an emotion of rebellion, which, coupled with the exposure to criminality in prison, can easily gain traction and push him to become a hardened criminal.”

The court essentially gave a sort of primacy to the fundamental right to education under Article 21A of the Constitution without explicitly mentioning it. This could open doors to approaches where, even in purportedly serious offences, bail could be sought—in addition to the established grounds— on the ground of violation of fundamental rights in a disproportionate manner.

This judgment serves as a reminder that the law is not static and that courts have the discretion to adapt their rulings to the evolving needs of society. It highlights the importance of preventing recidivism by addressing the root causes of criminal behavior and fostering positive development in young offenders.

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

[1] Special Leave to Appeal (Crl.) No(s). 17256/2024

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Context

The Uttarakhand High Court has issued a 6–week notice to the State government and the Centre to file their responses to the petitions challenging the provisions of the Uttarakhand Uniform Civil Code (UCC). Further, in a move to provide temporary relief, the Uttarakhand High Court has asked the affected individuals to approach the court in cases of penal actions, as reported by LiveLaw.

On January 27, 2025, Uttarakhand became the first Indian state to implement a Uniform Civil Code (UCC). However, the law has come under the scrutiny of the Uttarakhand High Court as a result of various writ petitions filed challenging multiple provisions of the UCC. The law makes it mandatory for individuals in live–in relationships to register their relationship with the registrar within whose jurisdiction they reside. Further, the law deliberately targets the minority communities, such as Muslims, and prescribes procedures to be followed in religious matters which is completely contrary to the holy Quran.

For a more comprehensive understanding of the provisions challenged in the impugned UCC, the article published by CJP may be referred to.

Challenges to provisions governing live–in relationships

The mandatory registration of live–in relationships and the penal provisions for non–compliance of the same have been challenged before the High Court. The petitioners have contended that these provisions are against the Fundamental Right to privacy protected under Article 21 of the Constitution of India. While addressing these contentions, Solicitor General (SG) Tushar Mehta appearing for the Government mentioned that “Experience has shown that having lived in live–in relationships without any commitment – which results from marriage only – generally, the man deserts the woman, leaving her destitute and leaving the children born out of such relationships illegitimate.” He further argued that the law aims to regulate live–in relationships, not prohibit the same while stating that “On such a registration, the child born out of such a live–in relationship is considered under the UCC to be a legitimate child, and the deserted woman is given a right to approach the competent court seeking maintenance for herself and her child,” as reported by the Times of India.

While hearing the batch of petitions, Chief Justice of the Uttarakhand High Court G Narendar questioned as to what the problem is with regulating live–in relationships while orally remarking that “There is also a fallout of this. What happens if this relationship breaks up? What if there is a child out of this relationship? In respect of marriage, there is a presumption regarding paternity but in a live-in relationship, where is that presumption? In the garb of invasion of your privacy, can the self-respect of another person be sacrificed, that too when he is your child and there is no proof of marriage… or paternity,” as reported by the Indian Express.

This debate underscores the necessity of striking a balance between the fundamental right to privacy and protecting the rights of children born out of live–in relationships and providing recognition to them.

Targeting minorities

The law has come under heavy criticism for particularly targeting religious minority communities, such as Muslims. The petitioners have contended that the UCC significantly impacts the Muslim community as it prescribes procedures to be followed which are completely against the principles laid down in the Quran. The petitioners argued that “We have pleaded before the court that the law prescribed in the Quran and its verses is an essential religious practice for every Muslim. UCC prescribes the procedure for religious matters which is absolutely contrary to the verses of the Quran. We have pleaded that to remain a Muslim, a person has to follow the Quran and its Verses.” The petitioners have further stated that “following the verses of the Quran is a mandatory practice for a Muslim and by making a civil law, the state government cannot direct a Muslim person to do anything which is contrary to the verses of Quran,” as reported by the Hindustan Times.

The petitioners cited that by banning the mandatory practice of Iddat that is followed by a divorced Muslim woman, the UCC violates the religious practice of Muslims. The petitioners have further contended that these provisions of the impugned law violate Article 25 of the Constitution of India which protects the freedom of practice and profession of religion. It has also been argued by the petitioners that the UCC is violative of the Preamble of the Indian Constitution as the liberty of expression, belief, faith and worship have been guaranteed under the Preamble.

It should be noted here that while the basis for the Uttarakhand UCC is Article 44 (Uniform civil code for the citizens), which is only a directive principle and not binding and non–justiciable in nature, Articles 25 (Freedom of conscience and free profession, practice and propagation of religion), 26 (Freedom to manage religious affairs) and 29 (Protection of interests of minorities) which guarantee freedom of religion have been blatantly ignored. The petitioners have contended that the impugned law strikes at the fundamental principle of Secularism that has been provided in the Constitution of India

The petition also stresses that the impugned law is not Uniform as it excludes the Scheduled Tribes from its purview. The petitioners have argued that the UCC creates “an arbitrary and artificial discrimination, impermissible in law, amongst citizens by not applying it to the Scheduled Tribes” and that such UCC “is not a Uniform Civil Code as directed under Article 44 of the Constitution of India, hence, deserves to be declared void.”

Restrictions on marriage

The list of “prohibited relationships” provided in the UCC has also been challenged by the Petitioners on the grounds that not only do the impugned provisions hinder the Muslims’ right to marry but also declares such marriage void and criminalizes the same. The petitioners have argued that the impugned legislation is “discriminatory in nature since it takes away the customs and usage of the Muslim community by providing for restrictions to marry in ‘degrees of prohibited relationship’ as defined in the UCC.” The petitioners further contended that such restrictions do not exist in the Muslim community and that marriage among relatives is permitted as per the Muslim law.

Conclusion

In conclusion, significant constitutional debates have been sparked by the Uttarakhand High Court’s assessment of the state’s proposed Uniform Civil Code (UCC). Privacy, religious freedom, and equal protection under the law are among the issues raised by the forced registration of live-in relationships, the purported targeting of religious minorities, and limitations on marital customs. The problem is further complicated by the Scheduled Tribes’ exclusion and the possibility of the UCC’s extraterritorial application. The High Court’s decision will be a turning point in determining how to strike a balance between individual laws, cultural autonomy, and the movement for a uniform civil framework, since Uttarakhand’s transition to a UCC is unprecedented in India.

(The legal research team of CJP consists of lawyers and interns; this legal resource has been worked on by Yukta Adha)

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The Uniform Civil Code (UCC) of Uttarakhand: Advancement in gender justice or violating individual liberties?

Destroying the basic standards of legislation- the Uttarakhand Model of UCC

Uttarakhand’s UCC seen through a Muslim women’s political perspective

The post Petitions against Uttarakhand UCC draw attention to Constitutional issues regarding personal autonomy and minority rights appeared first on SabrangIndia.

As they tell you about the life of a woman, the pain, the burden, the labour, you will smile and laugh because they will package your horrifying future in fairytales, song and dance, couture, grand palaces, fitting tributes to motherhood being the greatest experience in the world, so much so that you will hope and pray and eagerly await this time of your life. You will dream of a love that sweeps you off your feet, you will dream of a man who sees you for who you are, you will put aside your ambitions and dreams and “hobbies” and your individuality to fit into his life and be part of his family. You will water yourself down to the barest bits, till you are palatable, till you fade into a corner, till you are unrecognizable from who you once were. This will be the biggest tragedy of your life.

But it will be grand and you will look so pretty and everyone will be so happy so you will silence the tiny voice at the back of your head, wear your Sabyasachi and go meet the love of your life and leave your life and individuality behind with great pomp and show. At first, it will seem beautiful, this new life. You will love the feeling of love; you will enjoy the affection this man will shower on you. You will take his last name, and his dishes off the table, and his dirty underwear and his parent’s expectations and you will run with them. You will submerge yourself in these and allow the validation and placation you feel all around you, not to mention the warm glow of love to slowly fill the void in your soul that came from who you once used to be. You will serve him and his family in the kitchen during the day and you will serve him in his bed at night. You will enjoy it, and you will call it your choice and you will vociferously declare that you are the master of your fate and that love is everything and family is everything and you will be a willing slave to the expectations put upon you by this “family”. Nothing you ever do in this house will be enough. No amount of labour, no amount of effort, no matter how out of your way you go, you will be considered an outsider that is just doing your duty, and not well enough. You will bear his children and if you don’t want to, he will rape them into you. You will push yourself and push yourself and push yourself and that niggling voice will now come back screaming and swinging. You will hold your child that tore you open coming out, you will love it, and you will swallow the pain.

But the child will bear his name, the child will be his legacy, the child will be part of his family, and you will be only the cavity through which it came into the world, and the labourer that will raise it. The voice will by now consume you. You will fight it, fight to close your eyes to the reality fight to tell yourself that this is still your choice and the love that has faded in the background and been replaced with responsibility and expectation and servitude still exists and you are staying because of it, not because you are bound, not because there is no choice anymore and there never was but because you love him.

You love him? And this is your family. Is it? You will start rebelling and fighting and crying. You will fight and rage and cry, but you will still serve him in the kitchen in the morning and in the bedroom at night. You will think you can say no and so you will try to say no one day, and that will be the day you will learn. You will learn that he can do with you as he pleases. You will learn that whether he wants to shove his dick in you or his fist, it is all the same and it is all permissible because he is your husband, because you wore the Sabyasachi in a beautiful palace, and the flowers rained down and you walked down the aisle and sold yourself to his mercy. You will know that your blood, your bones, your voice, the tendons and muscles and your hands and legs, your back and front all belong to him and he can use any of them as he sees fit. The men that were supposed to protect you, the woman that brought you into this world, you will soon recognize them as the butchers that prepared you for slaughter.

Like a lamb you went beautiful and trusting and now on the chopping block with your spine broken. You will cry and bleat but the judges and the juries and the executioners will watch as he brutalizes you for his pleasure or for his power or for a fantasy and they will let him. And when he has gotten off and left you bloody and for dead, when he’s ripped you open this time not to bring life into the world but to take yours out, when that voice has been silenced forever and your vessel has served his purpose to him, you will be discarded. They will see his hands stained red with your blood, and they will look at your broken body and your gaping cunt and they will declare him not guilty.

Those men that protected you did it so one man and one man only could stake his claim on you, so he will be your first, your last, your only and your first breath was drawn to serve him and your last breath also served him, so is it a crime for a man to do as he sees fit with his property?

No. Is it a crime for a man to feel overwhelming passion for his wife? No. You, my love, were made for this. You didn’t know and the handcuffs were red and looked a lot like love and they were made of blood but you didn’t know. You didn’t know that the only good wives are the ones that die in silence on the inside before their death ever comes for them.

You didn’t know that often the wolves that own our bodies and drink our blood say ‘I love you’ and ‘Happy Anniversary’ and those who say they will save and protect and love us sell us to the wolves for a bent spine followed by a pat on the back.

(The author is a student of law in Mumbai and can be contacted at parulekarpriyanka02@gmail.com)

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The post D*ck or fist appeared first on SabrangIndia.