The Division Bench of Justice Rajeev Ranjan Prasad and Justice Sourendra Pandey delivered the ruling in a criminal writ petition filed by Neeraj Kumar @ Neeraj Singh, who had remained in the Central Jail, Gaya, even after securing bail in a case under Sections 30(a) and 37 of the Bihar Prohibition and Excise Act, 2016.

Release order issued on September 29 — but prisoner not released

Neeraj Kumar’s ordeal began after the Special Excise Judge issued a release warrant on September 29, 2025, which was promptly sent to the Superintendent of the Central Jail, Gaya. Yet, instead of being released, he continued to languish in custody. The Court meticulously reconstructed the timeline:

• The petitioner was arrested in Sarbahda P.S. Case No. 91/2025 and lodged in Central Jail, Gaya.
• He was granted bail on September 23, 2025.
• A release warrant dated September 29, 2025 was issued by the Exclusive Special Excise Judge, Gaya, directing that he be released unless required in another case.
• The jail acknowledged receipt of this release order.

Yet, the petitioner remained confined.

Instead of complying with the bail order, the Jail Superintendent relied on an earlier production warrant issued by the Chief Judicial Magistrate, Buxar, in connection with an unrelated theft case under Section 303(2) of the Bhartiya Nyay Sanhita. Significantly, the production warrant had fixed the production date as September 4, 2025—well before the release warrant arrived, and long expired by the time the petitioner’s liberty was at stake.

The High Court noted that the jail authorities had been corresponding with police officials for “vehicle with adequate force” to take the accused to Buxar, but at no point had they secured a fresh production warrant after the earlier one lapsed, even though both Section 304 and Section 305 of the Bhartiya Nagrik Suraksha Sanhita, 2023 allowed such recourse.

The Bench held unequivocally:

“…once the date fixed in the production warrant expired and the order of release had already reached in the hand of the Superintendent of Central Jail, Gaya Jee, he had no option but to release the petitioner.” (Para 3)

Instead, the jail kept him confined “for 18 days even after release without there being any order of a competent court,” as initially observed by the Court. Later, after accounting for a virtual production on October 4, the Bench narrowed the illegal period to five days—still an admitted constitutional violation.

IG Prisons Called to Court; Durga Puja holiday excuse rejected

On November 12, 2025, disturbed by what it termed “disturbing features” of the case, the Court summoned the IG, Prisons. Appearing online, the IG attempted to justify the delay, arguing that the non-release “occasioned due to the intervening Durga Puja holidays.”

The Bench rejected this outright, pointing out that:

• In-charge courts function even during holidays,
• The petitioner’s virtual production on October 4 occurred during Puja holidays, disproving the justification,
• The delay reflected not an isolated lapse but a habitual administrative practice.

The Court recorded that upon being confronted, the IG “immediately realised” and conceded:

“Yes, there is an illegal detention for at least five days.” (Para 6)

Court observes systemic violations across Bihar

The Bench expressed grave concern that such illegal detentions were not unique to this jail.

Justice Prasad observed: “There being an admitted position that it is a case of unauthorized detention of the petitioner from 29.09.2025 until 04.10.2025 and this practice is going on without drawing much attention of the Department, this Court being a Constitutional Court cannot remain a silent spectator.” (Para 7)

The Court’s warning was not limited to the Gaya jail, but directed at the State’s entire prison administration.

On Compensation: Court rejects ‘tokenism’, Cites Rudul Sah and Delhi High Court precedent

When asked to suggest a reasonable compensation amount, the IG proposed ₹10,000—a suggestion the Bench considered wholly inadequate.

The petitioner’s counsel demanded serious compensation, arguing that monetary relief must reflect the gravity of an Article 21 violation and citing:

• K.K. Pathak v. Ravi Shankar Prasad (2019), where the Patna High Court held that compensation for constitutional wrongs must be recovered from erring officials;
• Pankaj Kumar Sharma v. GNCTD (2023), where the Delhi High Court awarded ₹50,000 for only half an hour of illegal detention;
• Arvind Kumar Gupta v. State of Bihar (2025), where ₹1 lakh each was awarded for unauthorized police custody.

The Bench quoted extensively from Rudul Sah v. State of Bihar (1983), reaffirming that denying compensation would amount to “lip service” to fundamental rights.

After weighing these precedents, the Court held:

“Having considered the entire materials and the submissions as recorded hereinabove, we are of the considered opinion that a consolidated amount of Rs.2,00,000/- (Rupees Two Lakhs) would be a reasonable amount which may be awarded to the petitioner by way of compensation for his unauthorized detention by the Jail Superintendent, Central Jail, Gaya Jee.” (Para 11)

Crucially, the Court reiterated the principle that public money cannot bear the burden of unconstitutional action:

“The Respondent State of Bihar shall pay the compensation amount of Rs.2,00,000/- (Rupees Two Lakhs) to the petitioner within one month from today. Following the settled principle as discussed in the case of K.K. Pathak (supra), we direct that the amount so paid to the petitioner shall be realized from the erring official in accordance with law.” (Para 12)

State-wide Reform Direction: Mandatory guidelines in two weeks

Recognising the systemic implications, the Court issued a sweeping administrative directive:

• The IG, Prisons must issue uniform guidelines to all Jail Superintendents in Bihar,
• These guidelines must ensure strict compliance with release orders and constitutional guarantees,
• They must be issued within two weeks.

“Since we have come to know that this practice is going on in other jurisdictions of the Jail Superintendents in the State, the I.G., Prisons and Correctional Services is directed to issue appropriate guidelines to all the Jail Superintendents in the State of Bihar requiring them to strictly abide by the Constitutional Mandate and order of the Court without any exception. Such guideline shall be issued within a period of two weeks from today.” (Para 12)

The writ petition was accordingly allowed.

The complete judgement may be read here.

Related:

A Decade after Bisada: Why Uttar Pradesh’s attempt to drop the Akhlaq lynching case defies law and constitution

Bihar Elections: Trains for votes? The unanswered mystery of the ‘phantom’ specials from Haryana to Bihar

‘They Have a Right to Be Heard’: Supreme Court suggests Union brings back alleged deportees from Bangladesh “at least as a temporary measure”

A Terror Case Without Evidence: Allahabad High Court’s ‘heavy heart’ acquittal After 28 Years

The post Six Days Behind Bars After Bail: Patna High Court orders ₹2 lakh relief, flags state-wide pattern of illegal detention appeared first on SabrangIndia.

With these words, Hamela Khatun, also known as Hamela Begum, recalls the moment her world collapsed. A resident of Bhakeli Kanda in Darrang district, she grew up in a family of small farmers who survived on a patch of land along the Brahmaputra. Like millions in Assam’s char regions, river erosion was a familiar enemy. Their land vanished gradually, leaving the family impoverished and forcing them to migrate to Kerala as labourers.

Yet the destruction of their home was only the first blow. In 2009, the Border Branch of Darrang issued a notice against her under the Foreigners Act, accusing her of being an “illegal Bangladeshi migrant.” Overnight, a woman who had been born, raised, and registered as a voter for nearly two decades was declared a suspect. For Hamela, who had lived her entire life in Assam, the allegation was not merely bureaucratic confusion — it was a wound to her sense of belonging. The notice left the family shaken, terrified, and mentally shattered.

How help arrived — entirely by chance

In early 2025, as the family travelled to Bako in Kamrup district for temporary work, fate intervened. At a relative’s house, they unexpectedly encountered Advocate Abdul Hai, a member of CJP’s Assam legal team. With hesitation, they shared their ordeal — the FT notice, the years of fear, the absence of guidance, their displacement to Kerala, and the looming threat of deportation. Moved by their distress, Hai immediately informed CJP State Secretary Nanda Ghosh, who assured them that CJP would provide full legal assistance, completely free of cost.

This chance meeting, almost accidental, changed the entire course of Hamela’s case. For the first time in years, the family felt a faint sense of hope.

Hamela Khatun stands with CJP’s Assam Team

The Case Before the Foreigners Tribunal: What the state alleged

The reference against her — Ref. Case No. 294/2009, formally registered as F.T. Case 5861/2011 — was forwarded by the Superintendent of Police (Border), Mangaldai. It claimed that Hamela was not an Indian citizen but an illegal migrant who had entered Assam unlawfully. Her entire identity was placed under suspicion, and the Tribunal was asked to determine whether she was an Indian or a foreigner.

Crucially, under Section 9 of the Foreigners Act, 1946, the burden of proof lies on the accused — meaning Hamela had to prove her own citizenship, rather than the state proving she was a foreigner. For a poor, illiterate woman displaced by floods, this burden is extraordinarily harsh. Yet she refused to give up.

How Hamela Proved Her Citizenship: A lifetime of records, preserved against all odds

Despite years of displacement, poverty, and illiteracy, Hamela managed to gather a remarkable collection of documents establishing her lineage, identity, and continuous presence in Assam.

She proved that her grandfather, Jasim Mandal, appeared in the 1951 Legacy Data and in the 1960 Voters’ List. Her paternal uncles appeared in 1966 and 1977 Voters’ Lists, showing that the family has lived in the same region for decades. Her father, Haidar Ali, appeared consistently in voter lists from 1985 all the way up to 2025, establishing uninterrupted citizenship across generations. Similarly, her mother, Rupbhan Nessa, and her siblings were all documented in electoral rolls in Sipajhar LAC across the years 1997–2025.

Hamela also produced all her own electoral records from 2006, 2010, 2021, and 2025, each showing her as a resident of Mangaldai LAC. Alongside this, she submitted a residential certificate, a linkage certificate from the Gaon Panchayat, land documents from the 1950s and 60s, Aadhaar card, PAN card, ration card, bank passbook, and several other personal IDs.

In addition to documentary evidence, her father testified before the Tribunal. His deposition — detailing the family tree, place of origin, the names of his brothers and sisters, and his movements over the years — matched perfectly with every document filed. This consistency became a decisive factor in establishing her citizenship.

Tribunal’s Detailed Findings: A clear, decisive, evidence-based victory

The Tribunal, after examining every record, deposition, and certified document, delivered a clear and categorical finding. It held that Hamela’s forefathers were genuine Indian nationals, and her family lineage from her grandfather to her father was fully supported by electoral records dating back more than six decades. Her own voting history since 2006 further reinforced her claim.

The Tribunal found the evidence “reliable, trustworthy, and sufficient,” noting that there was nothing in the record to cast doubt on her claims. Her grandfather’s name appeared in the 1960 electoral roll, her uncles in 1966 and 1977, her father and mother across multiple voter lists until 2025, and her own name in four different rolls over nineteen years. Every link in her family tree was documented, certified, and verified.

Based on this, the Tribunal concluded:

“Musstt. Hamela Khatun @ Hamela Begum… is not a Foreigner/Illegal Migrant of any stream. The reference is answered in the negative.”

It directed the Superintendent of Police (Border), Mangaldai, and the Deputy Commissioner, Darrang, to take necessary action recognising her as an Indian citizen.

It was a complete victory — built entirely on evidence, consistency, and truth.

When the Order Reached Her Home: Relief after years of fear

On November 24, 2025, a CJP team comprising State In-charge Nanda Ghosh, DVM Joinal Abedin, Advocate Abdul Hai, driver Asikul Hussain, and local community volunteers travelled nearly six hours across rough, broken roads to reach Hamela’s house.

The journey was long, but when they arrived, they saw a sight that made every hour worth it — Hamela standing with a wide, relieved smile, holding the order copy that restored her identity.

She told the team, her voice trembling with gratitude: “You saved us by fighting the case for free. You stood by us in times of trouble.”

In a gesture of humility and affection, she offered them boiled eggs from her chickens and small flower seedlings from her garden — a heartfelt expression of thanks from someone who had endured years of erasure and suffering. She added, “I was worried for so long, but today I’m happy.”

As the team left, the sun was setting over the Brahmaputra, casting a warm glow over the green fields that surround her house — a fitting end to a journey that symbolised justice, dignity, and belonging.

Why Hamela’s story matters for Assam and India

Hamela’s struggle is emblematic of the larger issues in Assam’s citizenship verification system. Her case highlights how:

• River erosion uproots entire communities, leaving them without documents.
• Poor, illiterate women are disproportionately targeted and unable to navigate legal processes.
• The burden of proof under Section 9 places crushing pressure on the accused.
• Entire families with long-established presence in Assam can be declared “suspects” based on bureaucratic doubts.

Yet her case also demonstrates the power of community support, legal aid, and sustained documentation. It shows that even in a system stacked against the poor, justice is possible when facts are presented clearly and fearlessly.

Conclusion

Hamela’s story is ultimately one of resilience. She lost her land to the river. She lost her livelihood to displacement. The state tried to take her citizenship. But she fought back — through truth, documentation, and sheer courage. The Foreigners Tribunal vindicated her, reaffirming that she belongs to this land as firmly and deeply as her ancestors did.

Her journey — from erosion and poverty to legal recognition and dignity — stands as a reminder that citizenship is not merely a bureaucratic label. For India’s poorest and most vulnerable, it is the foundation of belonging, identity, and survival.

The complete order may be read here.

Related:

From Despair to Dignity: How CJP helped Elachan Bibi win back her identity, prove her citizenship

CJP scores big win! Citizenship restored to Mazirun Bewa, a widowed daily wage worker from Assam

CJP Exclusive: Homeland to No Man’s Land! Assam police’s unlawful crackdown on residents still battling for restoration of citizenship rights?

A Long Road to Justice: CJP helps Alijon Bibi reclaim her citizenship after 2-year legal battle

The post Washed Away by Floods, Targeted by the State: Hamela Khatun’s fight for citizenship appeared first on SabrangIndia.

A Bench of CJI Surya Kant and Justice Joymalya Bagchi made the observation while hearing the Union’s challenge to a Calcutta High Court order directing the repatriation of six persons who were pushed across the border in June 2025. Representing the petitioners, Senior Advocates Kapil Sibal and Sanjay Hegde argued that the Union had delayed compliance and initiated its challenge only when the families moved for contempt.

During the hearing, Hegde pointed out that the Union had allowed the High Court order to “lie in defect” for nearly a month. “These are Indian citizens who have been thrown across,” he submitted, according to a report of LiveLaw.

“What prevents you?” — CJI questions Union’s resistance

After examining the record, the CJI noted that substantial documentary material had emerged: birth certificates, land records, Aadhaar and PAN details of the deportees or their family members. These, he said, constituted “evidence of probability” that warranted a proper enquiry — something the authorities had “hardly” undertaken before deportation.

According to the LiveLaw report, the CJI observed: “If somebody has something to show you — that wait, I belong to India, I am born and brought up here — he has a right to plead before you. Earlier you hardly held any enquiry. The allegation is that the deportee was never heard.”

He then posed the central question to the Union: “So what prevents you? Why don’t you, at least as a temporary measure, bring them back, give them an opportunity of hearing, verify all these documents and take a holistic view?”

The Court directed the Union to obtain instructions by Monday, indicating that the government may consider facilitating their return while the enquiry is reopened.

Background of the case

The High Court order the Union has not complied with: This Supreme Court hearing stems from the Calcutta High Court’s September 26, 2025 judgment in Bhudu Sheikh v. Union of India, which quashed the deportation of six persons, including:

• Eight-month pregnant Sunali (Sonali) Khatun,
• Her husband Danish Sheikh,
• Their eight-year-old son Sabir,
• Sweety Bibi, and
• Her two minor sons.

The individuals had been picked up in Delhi during an “identity verification drive” and deported within 48 hours, allegedly without inquiry or notice to the West Bengal authorities. The petitioner — Sunali’s father, Bhudu Sheikh, a resident of Birbhum — maintained that all six were Indian citizens.

HC finds “hot haste,” disregard of MHA rules: The Division Bench of Justice Tapabrata Chakraborty and Justice Reetobroto Kumar Mitra held that:

• The deportation violated the MHA memo dated May 2, 2025, which requires a 30-day verification through the home State.
• Statements allegedly made by the detainees admitting they were Bangladeshis were inadmissible, since statements to police “without procedural safeguards” carry no presumption of voluntariness.
• Aadhaar and PAN records established that Sunali was born in 2000, making it impossible for her to have “entered India illegally in 1998,” as claimed.

Observing that “suspicion, however grave, cannot replace proof,” the Court declared the deportation unconstitutional and held that the executive’s conduct had “crippled the constitutional grant of fairness and reasonableness.”

HC ordered repatriation in 4 weeks: The High Court directed the Union, FRRO Delhi, and Delhi Police to repatriate the six individuals within four weeks, via the Indian High Commission in Dhaka. It refused to stay its own order, noting that:

“Liberty once lost must be swiftly restored.”

The four-week deadline expired on October 24, 2025, without compliance. Instead, the Centre filed a Special Leave Petition in the Supreme Court on October 22 — two days before the deadline.

Bangladesh Court also found them to be Indian citizens: In a development with diplomatic implications, the Senior Judicial Magistrate, Sadar Court, Chapainawabganj (Bangladesh) on September 30, 2025, also held that all six deportees were Indian citizens.

The Magistrate cited:

• Their Aadhaar details,
• Proof of residence in Birbhum,
• And the absence of evidence that they were Bangladeshi nationals.

The Court concluded that they had been “wrongfully pushed across the border,” directing that its order be transmitted to the Indian High Commission in Dhaka for appropriate action.

This created an extraordinary situation: both Indian and Bangladeshi courts had recognised the deportees’ Indian citizenship, while the Union government declined to bring them back.

Union’s defence of jurisdiction, suppression, and “confessional” statements: Before the Supreme Court, the Union contended that:

• The Calcutta High Court lacked jurisdiction as similar matters were pending before the Delhi High Court.
• The petitioner had allegedly suppressed this fact.
• The detainees had confessed to being Bangladeshi nationals during interrogation.

However, the High Court had already rejected these assertions, holding that:

• Jurisdiction for a habeas petition lies where the petitioner resides or where the effect of the detention is felt.
• Statements to police cannot form the basis of deportation under Articles 14, 20(3), and 21.

Detailed report on this may be read here.

Related:

Calcutta High Court strikes down arbitrary deportations of West Bengal residents, orders return from Bangladesh

Gauhati High Court seeks Centre’s May 2025 deportation notification as legality of re-detention of Abdul Shiekh and Majibur Rehman is scrutinised

Another Pushback Halted: SC stays deportation of woman declared foreigner, issues notice on challenge to Gauhati HC order

CJP Win! Gauhati HC stays deportation of Ajabha Khatun, will address bail demand on April 4

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

The post ‘They Have a Right to Be Heard’: Supreme Court suggests Union brings back alleged deportees from Bangladesh “at least as a temporary measure” appeared first on SabrangIndia.

According to the Hindu, the bench remarked “We are not legislating in the garb of this petition. Rest assured, we are not inclined to either legislate or monitor every small incident which takes place in X, Y, Z pocket of this country”. Stressing the constitutional architecture already in place, the judges noted, “There are high courts, there are police stations, there are legislative measures. They are already in place.”

The Supreme Court’s latest remarks—disclaiming responsibility for monitoring hate-speech incidents and directing petitioners to High Courts and police stations—represent an increasingly pronounced judicial retreat at a time when hate speech has become pervasive, organised, and often politically sanctioned. Coming from a Bench of Justices Vikram Nath and Sandeep Mehta, the Court’s insistence that it “cannot legislate or monitor every small incident” may appear administratively pragmatic, but constitutionally, it raises serious concerns.

‘Approach the High Court; We cannot monitor the entire country’

The Bench initially directed the applicant to raise the grievance before the concerned High Court. “How can this court continue to monitor all such instances all over the country?” it asked, according to The Print. “You approach the authorities. Let them take action, otherwise go to the high court.”

Counsel for the applicant, Advocate Nizam Pasha, submitted that he had filed an application in an already pending writ petition on hate speech, bringing forth “additional instances” of boycott calls. When the Bench observed that the calls appeared to be made by private individuals, counsel responded that “some public representatives are also issuing similar calls.”

Solicitor General Tushar Mehta interjected sharply: “Public interest cannot be selective to one particular religion… There are severe hate speeches going on amongst all religions. I will supply those details to my friend (applicant). Let him add that and espouse that public cause on a pan-religion basis.”

The applicant’s counsel insisted that he approached the Court only because the authorities “are not taking any action,” and invoked earlier directions of the Court where State inaction on hate speech was to trigger suo motu registration of FIRs and potential contempt for non-compliance.

Mehta maintained that while “no one can be indulging in hate speech,” a public-spirited litigant “cannot be selective.” The Bench reiterated that statutory mechanisms existed: “Whichever state you have a problem with, you approach the jurisdictional high court for appropriate relief.”

Advocate Nizam Pasha, appearing for journalist Qurban Ali and others, reminded the Court of its October 2022 order. In October 2022, disturbed by the “unabated ferocity” of hate crimes and warning that a “climate of hate prevails in the country,” the Court had directed police authorities to suo motu register cases against hate-speech offenders. However, these remarks suggest a recalibration: the Supreme Court asserting that enforcement must be handled at the proper institutional levels, not continuously escalated to the apex court.

In addition to this, Pasha also referred to an affidavit flagging a post shared by an Assam minister following the BJP’s victory in Bihar, claiming it referenced the 1989 Bhagalpur massacre by alluding to “Bihar approving gobi farming”—an alleged nod to victims whose bodies were buried in cauliflower fields.

The Bench listed the matter for further hearing on December 9, 2025.

To read about the surge of hate speech during elections, read here, here and here.

A Court that once called arresting hate crimes a “sacrosanct duty” now says: go elsewhere

These oral observations represent a notable moment nearly seven years after the Court’s landmark Tehseen Poonawala (2018) judgment, where it held that preventing hate crimes is the State’s “sacrosanct duty.” The Court had then laid down extensive guidelines to prevent mob violence and lynching.

In Tehseen Poonawala (2018), the Supreme Court emphatically held that preventing hate crimes is the State’s “sacrosanct duty” and placed considerable constitutional responsibility on the judiciary to ensure compliance.

When the Bench says: “We are not inclined to either legislate or monitor every small incident”, the question naturally arises: What counts as “small” in hate speech? Hate speech is not an isolated “X, Y, Z pocket” problem; it is a structural, national, and increasingly legitimised phenomenon that fuels violence, radicalises communities, and undermines constitutional fraternity. Treating each incident as merely local—best handled at the nearest police station—ignores the systemic, not episodic, nature of the problem.

Additionally, the petitioner’s counsel explicitly reminded the Court of its own earlier directions: If States fail to act on hate speech, police must register FIRs suo motu; if police fail, contempt proceedings follow. By refusing to even monitor compliance with its own framework, the Court creates a paradox:

• Duty to act remains,
• but enforcement evaporates.

This turns constitutionally mandated preventive oversight into judicial suggestion, not judicial command.

In regards to Solicitor General’s assertion that public interest cannot be selective and that all religions face hate speech is a familiar rhetorical manoeuvre that:

1. Equates majority-to-minority hate speech with minority-to-majority rhetoric, flattening unequal power structures;
2. Deflects from documented, systemic hate speech targeting Muslims, including political campaigns;
3. Reframes structural discrimination as generic social disharmony.

The Court’s willingness to echo the “pan-religion basis” line dilutes the urgency of addressing majoritarian hate speech, a constitutional and empirical reality widely acknowledged by previous benches.

For detailed report of significant orders of Supreme Court on hate speech issue, read here.

Chhattisgarh High Court: Reinforcing judicial distance from enforcement

The Chhattisgarh High Court’s decision on November 21 in a separate hate-speech matter further illustrates the judiciary’s growing reluctance to scrutinise investigative lapses in such cases. A Division Bench of Chief Justice Ramesh Sinha and Justice Bibhu Datta Guru dismissed a plea seeking coercive action against Johar Chhattisgarh Party leader Amit Baghel, accused of repeated inflammatory statements against Agrawal, Sindhi, and Jain communities

The Division Bench held firmly that the petitioner had failed to substantiate allegations of State inaction, emphasising that mere accusations of “State apathy” could not justify extraordinary judicial intervention.

The Court observed:

• “The Petitioner has not brought forth any cogent material to demonstrate that the investigating agency has either shut the investigation or refused to act on the FIRs.”
• “Mere dissatisfaction with the pace or nature of investigation cannot, in law, furnish a ground for invoking the extraordinary jurisdiction of this Court under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 or Article 226 of the Constitution.”

The Bench cautioned that the reliefs sought—direction for arrest, supervision by a specific-rank officer, periodic status reports, consolidated chargesheet—would amount to “judicial micromanagement” of investigation and intrude into the statutory domain of the police.

The Court reiterated established law: a writ of mandamus cannot compel arrest, dictate the course of investigation, or require a consolidated chargesheet when the statute does not mandate one. “The Petitioner has not shown any exceptional circumstance to indicate non-compliance with these guidelines, nor is there any imminent threat to public order warranting extraordinary measures,” the Court added in its order.

Finding no exceptional urgency or imminent threat to public order, the petition was dismissed.

The Chhattisgarh High Court’s dismissal of the plea against Amit Baghel fits seamlessly into this larger pattern of institutional distancing. By insisting that:

• dissatisfaction with investigation pace is not enough,
• courts cannot “micromanage,”
• no “exceptional circumstances” exist,

the High Court reinforces a trend where judicial review of State inaction on hate speech is increasingly restricted, even as hate speech intensifies.

Order of the Court may be read here.

The constitutional misdiagnosis at the heart of India’s hate-speech crisis

The core difficulty lies in the Court’s very conceptualisation of hate speech: by repeatedly characterising it as a routine “law-and-order” matter to be handled by local police or challenged before jurisdictional High Courts, the Supreme Court collapses a profound constitutional crisis into an administrative problem. This framing disregards the Court’s own jurisprudence recognising hate speech as a threat to equality, an assault on dignity, a catalyst for mob violence, a barrier to democratic participation, and a weapon disproportionately used against minorities and dissenters—phenomena that cannot be meaningfully addressed through ordinary policing. Far from being “pocket-level incidents,” contemporary hate speech is intimately connected to electoral mobilisation, vigilante networks, and entrenched patterns of institutional discrimination, placing it well beyond the capacity or neutrality of local law-and-order mechanisms. The Court’s withdrawal from scrutiny therefore carries structural consequences: it signals to State authorities that inaction will not attract judicial oversight; it chills public-spirited litigation by suggesting that constitutionally significant harms are too “small” or “local” for the Supreme Court’s attention; and it sits uneasily with the Court’s own earlier precedents mandating suo motu FIRs and warning States of contempt, thereby diminishing both doctrinal coherence and the credibility of constitutional adjudication. In effect, reducing hate speech to a routine policing matter does not merely minimise its gravity—it risks normalising it.

Conclusion: A constitutional moment demanding vigilance, not withdrawal

India is living through a documented and politically charged escalation in hate speech, and at such a moment the Supreme Court’s assertion that it cannot monitor “every small incident” risks being interpreted not as judicial restraint but as a signal that State authorities may do less, not more. No constitutional court is expected to police every episode—but it is expected to ensure that State machinery functions, that fundamental rights are meaningfully protected, and that its own earlier mandates are not rendered hollow through non-enforcement. By appearing to withdraw just when constitutional vigilance is most necessary, the Court creates a troubling gap between constitutional promises and institutional practice. At a time when hate speech carries structural, electoral, and communal consequences, this is not a moment for judicial distance but for principled constitutional engagement; stepping back now risks weakening precisely the safeguards the Constitution relies on courts to uphold.

Related:

Unveiling the diverse impact of Hate Speech: From elections to escalating violence

Hate speeches, stone pelting, brandishing of weapons – what VHP’s Shaurya Yatras have achieved till date

India’s Struggle for Social Harmony: Challenges Amidst Surge in Hate Speech

Three separate benches of the Indian Supreme Court interrogate hate speech

CJP writes to Minorities Commission over repeated attacks on Muslims

The post A New Silence: The Supreme Court’s turn toward non-interference in hate-speech cases appeared first on SabrangIndia.

The Blast: A scene of carnage and social shock

The factual background of the case is harrowing. On April 27, 1996, a UP Roadways bus from the Roorkee depot departed from Delhi ISBT at 3:55 PM with more than fifty passengers. It halted at Mohan Nagar Check Post, where fourteen more boarded. As the bus crossed the Modinagar Police Station in Ghaziabad around 5 PM, a violent explosion tore through its front portion. The driver died on the spot, along with nine passengers. Nearly everyone on board suffered injuries ranging from severe to critical. Post-mortem reports described multiple metal fragments embedded in the victims’ bodies; doctors confirmed that death was caused by “shock and haemorrhage due to excessive bleeding.” Forensic examination established that RDX mixed with carbon had been placed beneath the driver’s seat and detonated using a remote trigger. The blast was quickly categorised as an act of terrorism, and investigative agencies rushed to construct a narrative of conspiracy. Public anger and panic were immediate. The community demanded answers, accountability, and closure. Yet, as the High Court judgment reveals, those demands were never truly met—not for the families, not for the injured, and not for the accused.

The Prosecution’s Theory: Conspiracy, foreign links and a confession

In its case before the trial court, the prosecution framed the blast as part of a larger conspiracy orchestrated by Harkat-ul-Ansar. The State alleged that Abdul Mateen @ Iqbal, a Pakistani national, served as a “District Commander” of the organisation and had collaborated with Ilyas, who, according to prosecution claims, was indoctrinated during his travels to Jammu & Kashmir. It was further alleged that the appellant facilitated travel for operatives, participated in planning meetings, and assisted in procuring or planting the explosive. However, this theory rested heavily on a single fragile pillar: a confession allegedly made by Ilyas before a Senior Police Officer of the CB-CID, recorded on an audio cassette in the presence of his father and brother. This confession became the backbone of the prosecution’s case. Without it, the surrounding circumstantial links—two railway tickets, a diary, and speculative associations—were plainly inadequate. Yet the prosecution attempted to stretch these tenuous threads into a conspiracy narrative, despite the fact that one co-accused, Tasleem, had been acquitted by the trial court itself for complete lack of evidence. The State did not appeal Tasleem’s acquittal, nor was there any record suggesting that Mateen ever filed a challenge. As such, by the time the matter reached the High Court, only Ilyas was left defending himself against the weight of the allegations—while confined in prison.

The High Court’s Evaluation of Evidence: A prosecution in disarray

The Allahabad High Court’s decision in Criminal Appeal No. 2063 of 2013 is one of the starkest examples of the justice system confronting the collapse of a terror-investigation while simultaneously acknowledging the moral burden of acquitting an accused in a case involving mass casualties. The Bench’s analysis is structured around three pillars: (1) the complete absence of legally admissible evidence against Ilyas; (2) the statutory bar on using police-recorded confessions; and (3) the total failure of the prosecution to produce any independent incriminating material.

The Court’s reasoning is unusually candid. It acknowledges the horrific nature of the 1996 Modinagar bus blast—describing it as “diabolic”, “dastardly”, and a “terrorist act”—yet still concludes that there is no legal basis to uphold the conviction. The Bench ultimately declares: “We are recording acquittal in this case with heavy heart as the case is of such propensity that it shock the conscience of the society as 18 innocent persons lost their life in the terrorist plot”.

Below is a structured analysis of what the Court actually held, how it evaluated each category of evidence, and how it applied statutory and doctrinal principles.

I. The court’s construction of the factual matrix

The judgment begins by firmly establishing the factual horror of the blast. Relying on eyewitnesses, inquest officers, and medical professionals, the Bench holds that the explosion was undoubtedly caused by a planted high-intensity device. Post-mortem reports and FSL findings were decisive. Ten people died on the spot; more died during treatment; and 48 were injured.

The Court notes in the judgment that:

“In the postmortem report of the deceased persons, pieces of metal were found, and the cause of death was shock and haemorrhage due to excessive bleeding.” (Para 18)

“In report of FSL dated 30.04.1996, it is concluded that in the bus registration No. UP15A6693, mixture of RDX and carbon was kept, which resulted in explosion. It was kept in the front portion of the bus, above bonut or its left side.” (Para 7)

The device was placed before the bus left Delhi; therefore, no onboard passenger could have seen the planting. By laying this foundation, the Court underscores that the factum of the terrorist act is unquestionably proved—thus shifting the entire analytical burden to whether the prosecution proved who executed it.

II. Collapse of Witness Testimony: No Direct Evidence Linking Ilyas

Hostile witnesses and the rejection of the alleged extra-judicial confessions: The prosecution relied heavily on two witnesses—PW-6 Subrati and PW-9 Ahsan—as recipients of an alleged extra-judicial confession by Ilyas and co-accused Mateen and Tasleem.

But both turned hostile, they merely admitted they knew Ilyas socially. The Court notes:

“None of the witnesses of fact produced by the prosecution to establish complicity of the appellant in the offence have supported the prosecution version. The witnesses PW 6-Subrati, PW 9-Ahsan are key witnesses of prosecution who were produced to prove alleged extra-judicial confession made by the appellant and co-accused regarding their complicity in the offence but they have outrightly disowned their statements recorded by Investigating Officer under Section 161 CrPC and have given exculpatory evidence against the appellant with regard to the present offence.” (Para 77)

Regarding rejection of PW-6 statement:

“Subrati, a witness of extra-judicial confession made by the accused, has also not supported prosecution version. His evidence is also not of significance for the purpose of present case. Even if his examination-in-chief during separate trial of acquitted accused Tasleem is taken on its face value, the same cannot be read against present appellant as the appellant was not present at the time of recording of this evidence. In the Session Trial No. 1663 of 2000 the same witness i.e., Subrati has not given any statement against the appellant or any co-accused. Thus, the witness has given two statements in respect of the same offence regarding the role played by the accused persons and legally no credence can be given on his testimony in respect of present appellant.” (Para 74)

The Court stresses that even in Tasleem’s earlier trial, the same witnesses had not supported the prosecution. The Bench treats this as a fatal flaw: there is simply no living testimony pointing to Ilyas.

No eyewitness saw any accused place the bomb: The blast occurred under the driver’s seat. Passengers boarded a bus that was already primed. The Court affirms that no witness was capable of identifying the planter, making the State’s evidentiary burden even heavier.

III. The Confessional Statement: Completely Inadmissible Under Sections 24–26 Evidence Act

The prosecution’s case ultimately hinged on a single piece of evidence: a police-recorded confession of Ilyas, supposedly captured on an audio-cassette by PW-11, a Sector Officer, CB-CID.

The Court annihilates this evidence.

Absolute bar under Section 25 Evidence Act: The heart of the High Court’s judgment lies in its extensive treatment of the confession recorded by the police. Section 25 of the Evidence Act is absolute: “no confession made to a police officer shall be proved against an accused.” This statutory prohibition is a foundational safeguard against coercion, torture, or manipulation—protections that cannot be diluted even in cases of terrorism. The prosecution attempted an extraordinary argument: that the confession should be admissible under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act (TADA), which permits confessions to be recorded by senior police officers. But the Bench dismissed this submission outright, noting that TADA had lapsed in 1995 and the blast occurred in April 1996. As the Court put it, “the special exception provided under Section 15 of TADA, which allowed police confessions to be used as evidence, was not applicable to this case.” More damningly, the prosecution did not even produce the tape recorder as a material exhibit. The judges emphasised this flaw repeatedly, stating that “the device by which the alleged confessional statement was recorded… was not produced before the court,” making the recording unreliable and legally worthless. Once the confession was excluded—a mandatory consequence of Section 25—the entire structure of the prosecution’s case collapsed instantly, leaving behind no evidence capable of sustaining guilt.

The Bench quotes Section 25’s mandatory language and concludes:

“Section 24 of the Indian Evidence Act, 1872 bars any confession obtained by any inducement, threat or promise. Section 25 of the Indian Evidence Act, 1872 creates an absolute bar on confessions made to a police officer.” (Para 81)

Regarding the tape recorder not being produced, the Court notes:

“It is noteworthy that the device by which alleged confessional statement of appellant Muhammad Ilyas was recorded in an audio cassette i.e. tape recorder was not produced before the court as a material exhibit. Therefore, even otherwise, it may be held that the confessional statement of Muhammad Ilyas recorded by and before the police is not duly proved and could not be proved in view of legal bar created by Section 25 of Evidence Act.” (Para 78)

Even the cassette itself, though produced, is useless in the absence of the device, certification, or proof of integrity.

The Statement Was Not Reproduced in Testimony: PW-11, the very officer who allegedly recorded the confession, did not reproduce the confession in his sworn deposition.

The Court remarks:

“Inasmuch as confessional statement of the accused-appellant Muhammad Ilyas are not reproduced during sworn testimony of PW11 who is main Investigating Officer, who recorded the statement of accused-appellant.” (Para 79)

Thus, even if Section 25 did not exist, the confession is legally unproved.

IV. No recovery, no discovery, no circumstantial evidence

Items recovered from Ilyas (diary + railway tickets) are dismissed as legally irrelevant:

• Travel from Muzaffarnagar to Jammu Tawi or Ludhiana “cannot form the basis that he was involved in the present offence.”
• The diary entry naming Salim Kari is “hardly sufficient to connect the appellant.”

The Court then underscores that there is no discovery under Section 27 Evidence Act:

“No discovery has been made in terms of Section 27 of the Indian Evidence Act, 1872 on pointing information divulged by the appellant-Mohammad Ilyas. Thus, Section 27 of the Indian Evidence Act, 1872 which creates an exception to Section 25 of the Indian Evidence Act, 1872, is not applicable.” (Para 81)

Importantly, the Court stresses that nothing incriminating was recovered even when Ilyas was in police custody under remand:

“Consequently, after excluding the confessional statement of the appellant recorded by PW11-Sector Officer, CBCID who is the main investigating officer of the case due to the embargo created by Section 25 of the Indian Evidence Act, 1872, no incriminating material appears against the appellant which could prove his complicity in the offence. Therefore, the trial court’s findings against the appellant for the charges under Sections 302/34, 307/34, 427/34, 120-B 121-A, 124-A IPC and Sections 4/5 of Explosive Substances Act are not found to be sustainable and prosecution has failed to prove the guilt of the appellant beyond resonable doubt due to want of legally admissible evidence against him. Thus, no chain of circumstances survives.” (Para 83)

V. The court’s assessment of conspiracy doctrine

The Bench reproduces extensive Supreme Court jurisprudence on conspiracies—including Kehar Singh, Som Nath Thapa, Paramhans Yadav—acknowledging that conspiracies are usually proved through circumstantial evidence. After excluding the barred confession, the judgment observes that no incriminating material appears, therefore prosecution has failed to prove the guilt beyond reasonable doubt. Thus, this case is distinguishable from TADA-era judgments because there is nothing left to constitute even a circumstantial chain.

“…after excluding the confessional statement of the appellant recorded by PW11-Sector Officer, CBCID who is the main investigating officer of the case due to the embargo created by Section 25 of the Indian Evidence Act, 1872, no incriminating material appears against the appellant which could prove his complicity in the offence. Therefore, the trial court’s findings against the appellant for the charges under Sections 302/34, 307/34, 427/34, 120-B 121-A, 124-A IPC and Sections 4/5 of Explosive Substances Act are not found to be sustainable and prosecution has failed to prove the guilt of the appellant beyond reasonable doubt due to want of legally admissible evidence against him” (Para 83)

VI. The application of the “benefit of doubt” doctrine

The Court cites Gurbachan Singh, Ashok Kumar Srivastava, Inder Singh, and even Viscount Simon’s classic admonition—but only to underscore that this is not a case of fanciful doubt.

The Court is explicit: it is not indulging technicalities; rather, there exists no admissible evidence at all.

The Court states unequivocally:

“The prosecution has miserably failed to prove the charges that the appellant conspired to plant a bomb along with co-accused to create a bomb explosion in the bus which resulted in large number of loss of lives and injuries to the passengers and damage to public property i.e., this bus. The findings of conviction recorded by the trial court and the sentence awarded to the appellant are accordingly liable to be set aside”. (Para 85)

VII. The Final Outcome: Acquittal WITH HEAVY HEART

The Bench ends with one of the most emotionally direct conclusions in recent criminal jurisprudence:

“We are recording acquittal in this case with heavy heart as the case is of such propensity that it shocks the conscience of the society as 18 innocent persons lost their life in the terrorist plot”. (Para 84)

It orders:

• Immediate release of Ilyas after nearly three decades in custody.
• Cancellation of the trial court’s conviction under Sections 302/34, 307/34, 427/34, 120-B, 121-A, 124-A IPC and Sections 4/5 Explosive Substances Act.
• Compliance reports from the trial court.

The Court is painfully aware that acquittal is the only legally permissible outcome.

28 Years in Prison: A human tragedy the court could not ignore

One of the most striking aspects of the judgment is its recognition of the human cost of prolonged incarceration. Mohammad Ilyas had been in prison continuously throughout the pendency of his appeal. Nearly thirty years passed between the blast and the High Court’s verdict—years in which the world changed technologically, socially, and politically, while Ilyas remained confined within the walls of a prison on the basis of evidence now held legally inadmissible. The judgment does not dwell sentimentally on this suffering, but it does not hide from it either. The Bench notes, almost with quiet sorrow, that “the appellant has remained in custody throughout,” an observation that resonates with the fundamental principle that justice delayed is justice denied. The tragedy is twofold: an accused lost the prime decades of his life to a prosecution that could not prove its case; and the families of the victims, who lost loved ones in the blast, were denied justice because the investigation and prosecution failed to meet the minimal standards required for a terrorism trial. Both sides—accused and victims—stand abandoned by a system that neither punished the guilty nor protected the innocent.

“The appellant is acquitted of aforesaid charges. He has been in jail custody during pendency of the appeal, therefore, a release order will be issued by the trial Court in pursuance of the present judgment immediately, to secure his release from jail custody, if he is not wanted in any other case.” (Para 87)

The Court’s Final Word: A heavy-hearted acquittal

The judgment culminates in a conclusion that is both legally inevitable and emotionally fraught. The Court states plainly that “no incriminating evidence remains on the record,” and therefore the conviction “is accordingly liable to be set aside.” At the same time, the judges acknowledge the moral weight of letting an accused walk free in a case involving eighteen deaths. With these words, the Bench affirmed the constitutional duty of courts to uphold due process, even when the consequences emotionally burden the institution itself. The Court ordered Ilyas’s immediate release, subject only to his execution of a personal bond and sureties under Section 437-A CrPC.

Conclusion: A case that demands national reflection

The acquittal of Mohammad Ilyas forces India to confront a painful truth: that in the pursuit of justice for terror victims, the criminal justice system must not commit injustices of its own. When investigations are shoddy, when evidence is not collected properly, when confessions are relied upon instead of hard proof, the guilty escape and the innocent are condemned. In this case, the victims’ families have been left without closure, and an accused man has spent nearly thirty years in prison without legally admissible evidence against him. The Modinagar–Ghaziabad blast remains one of the region’s darkest moments—but the judicial aftermath has become a second tragedy, one marked by investigative failure, prosecutorial negligence, and systemic decay. The High Court’s decision restores legality, but cannot restore time. It upholds the law, but cannot undo the suffering. It acquits with heavy heart—and it leaves behind questions India must answer.

The complete judgment may be read here.

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The post A Terror Case Without Evidence: Allahabad High Court’s ‘heavy heart’ acquittal After 28 Years appeared first on SabrangIndia.

At the heart of the Reference were 14 questions touching upon the options available to Governors when presented with Bills, the limits of executive discretion, the permissibility of judicial timelines, the concept of “deemed assent,” and the extent of judicial review over the President and Governor when acting under Articles 200 and 201.

The Court insisted that the issues raised by the President “strike at the root of the continuation of our republican and democratic way, and the Constitution’s federal character.” This reference, the Court said, concerns a “functional” constitutional problem, namely: persistent deadlock between elected State governments and Governors over legislative assent.

I.  Re-Reading Article 200: No power of indefinite withholding

The Court unequivocally held that Article 200 does not permit a Governor to withhold assent simpliciter. Withholding, the Court emphasised, is inextricably linked with the obligation to return the Bill to the Legislature with comments. Treating “withhold assent” as a standalone power would allow the Governor to effectively veto legislation by inaction — a result the Court described as antithetical to federalism.

The bench foregrounded the text of the first proviso to Article 200, observing that it explicitly curtails only one of the three options available to the Governor — the option to withhold assent — once a Bill is repassed by the House:

“The text of the first proviso to Article 200 through its phrasing “shall not withhold assent therefrom” clearly indicates that what was sought to be curtailed among the three options, was only the option to ‘withhold’. We have already held that the first proviso conditions the verb ‘withhold’, to mean withhold and return to the Legislature. The first proviso cannot be read in a manner so as to condition the option of the Governor to reserve the Bill for President’s consideration as well.” (Para 99)

This reading is transformative. It anchors the proviso as a constitutional safeguard ensuring meaningful legislative–executive dialogue, not an additional, fourth option. The Court rejected the Union Government’s contention that returning the Bill is an independent option, insisting instead that withholding and returning are a composite act.

Money bills and constitutional logic

A particularly incisive part of the reasoning is the Court’s rejection of the Union’s argument on the Governor’s independent power to withhold. The Court explained that if a “simpliciter” power to withhold existed, it would extend even to Money Bills, which the Governor is constitutionally prohibited from returning. This, the bench held, would “defy constitutional logic.”

The opinion stressed that the choice must favour a “dialogic process,” which encourages institutional comity and deliberation, rather than an interpretation that enables “obstructionism” by the Governor.

II. The Governor’s Discretion: Limited but real

While affirming that the Governor normally acts on the aid and advice of the Council of Ministers, the Court held that Article 200 constitutes an exception. The presence of the phrase “in his opinion” in the second proviso creates a narrow zone of discretion for returning or reserving Bills.

Yet, the Court sharply differentiated this discretion from unreviewable political authority. The discretion must operate within constitutional boundaries, guided by the structure of cooperative federalism.

III.  Reservation After Re-Passage: Governor retains the option

Rejecting the contrary position taken in the Tamil Nadu Governor case, the 5-judge bench held that a Governor may reserve a Bill even after it has been re-passed by the Legislature following its initial return. This becomes critical where the Legislature modifies the Bill in ways that implicate federal or inter-State concerns.

The Court articulated this function as one of constitutional vigilance:

“Since it is the Governor who considers the Bill in its amended form, and is able to compare it to the earlier version passed by the Legislature, it is his constitutional function to decide whether the Bill ought to be assented to, or if its amended form affects such inter-state, or federal aspect of the country, requiring the attention of the President.” (Para 100)

This reasoning defends cooperative federalism against strategic legislative manoeuvres while preventing governor obstruction of ordinary legislative processes.

IV.  Judicial review, inaction, and the limits of Article 361

The Court provided a nuanced delineation of the scope of judicial review over the Governor’s actions.

The bar on merit review vs. exception for inaction

The general rule is that the discharge of the Governor’s functions under Article 200 is not justiciable; the Court cannot enter into a “merit-review” of the decision itself (e.g., why the Bill was returned).

However, the Court carved out a limited exception for cases of “glaring circumstance of inaction that is prolonged, unexplained and indefinite.” In such instances, the Court can exercise judicial review to issue a limited mandamus directing the Governor to discharge his functions within a reasonable time, without commenting on the outcome (assent or reservation).

Article 361 and the office of the governor

Addressing the scope of Article 361 (Protection of President and Governors), the Court clarified that while the Article provides an absolute bar against judicial proceedings concerning the Governor’s personal acts; it cannot entirely immunize the office of the Governor from constitutional oversight.

“Article 361 of the Constitution is an absolute bar on judicial review in relation to personally subjecting the Governor to judicial proceedings. However, it cannot be relied upon to negate the limited scope of judicial review that this Court is empowered to exercise in situations of prolonged inaction by the Governor under Article 200. It is clarified that while the Governor continues to enjoy personal immunity, the constitutional office of the Governor is subject to the jurisdiction of this court.” (Para 165.4)

Non-justiciability of bills

The Court reiterated the established principle that the decisions of the Governor and the President under Articles 200 and 201 are not justiciable at a stage anterior (before) the law comes into force. The contents of a Bill cannot be adjudicated by the courts until the legislative process is complete and the Bill becomes an Act.

V.  No judicial timelines, no “deemed assent”

The Opinion delivered a firm constitutional check on the Judiciary’s power to intrude into the executive and legislative domains by rejecting the idea of prescribing time limits.

Upholding constitutional elasticity

The bench held that the absence of a time limit in Articles 200 and 201 is a feature of the Constitution, not a bug. It provides a necessary “sense of elasticity” for constitutional authorities to navigate complex legislative matters in a diverse federal country.

“The imposition of timelines would be strictly contrary to this elasticity that the Constitution so carefully preserves.” (Para 115)

For this reason, the Court held that it is inappropriate to judicially prescribe a timeline for the Governor or the President, thereby protecting the operational space of the executive branch.

The unconstitutionality of ‘deemed assent’

The most potent argument against judicial overreach was the definitive rejection of the doctrine of ‘deemed assent,’ which was a major point of confusion post-the Tamil Nadu Governor case. The Court explicitly stated that declaring a Bill law simply because a timeline was breached is a violation of the Separation of Powers and an abuse of Article 142.

“We have no hesitation in concluding that deemed consent of the Governor, or President, under Article 200 or 201 at the expiry of a judicially set timeline, is virtually a takeover, and substitution, of the executive functions by the Judiciary, through judicial pronouncement, which is impermissible within the contours of our written Constitution.” (Para 128)

The Court confirmed that a State law cannot be in force without the Governor’s assent, and the Governor’s legislative role “cannot be supplanted by another Constitutional authority.”

VI.  Article 201: Presidential discretion mirrors governor discretion

Applying similar reasoning to Article 201, the Court held:

• Presidential discretion under Article 201 is non-justiciable.
• No timelines may be imposed on the President.
• The President is not required to seek judicial opinion each time a Bill is reserved.
• The President may, in cases of uncertainty, invoke Article 143 — but this is not mandatory.

The Court thus restored symmetry in the constitutional design of executive assent.

VII.  Maintainability of the reference and the Tamil Nadu judgment

The States argued that the Reference was an “appeal in disguise” against the Tamil Nadu Governor case. The Court rejected this argument. It underscored:

1. Article 143 is a constitutional safety valve, allowing the President to seek clarity where judicial decisions create systemic uncertainty.
2. Some conclusions in the Tamil Nadu judgment were in “variance with earlier decisions,” creating a state of doubt about foundational constitutional processes.
3. The reference concerns day-to-day functioning of constitutional authorities, unlike previous references.

Invoking In re Special Courts Bill and the 2G Reference, the Court reiterated that responding to a reference may include clarifying, explaining, or even overruling precedent if necessary for constitutional coherence.

VIII.  Dialogic constitutionalism as a structural principle

Perhaps the most significant part of the opinion is the Court’s articulation of dialogic constitutionalism as the governing principle under Articles 200 and 201. The Court rejected a mechanical “checks-and-balances” model in favour of an iterative, conversational relationship between the Legislature, Governor, and Union.

In its opinion, the Court observed:

“A dialogic process, which has the potential to understand and reflect on conflicting or opposing perspectives, to reconcile and to move forward in a constructive manner, is an equally potent check-and-balance system that the Constitution has prescribed. Once this perspective is grasped, the persons who occupy various constitutional offices or institutions will also do well to ingrain in themselves that dialogue, reconciliation and balance, and not obstructionism is the essence of constitutionalism that we practice in this Republic.” (Para 64)

This articulation transforms how we conceptualise federal dynamics. The emphasis is not on vetoes but on structured interaction, mutual accountability, and constitutional good faith.

Summary of answers to presidential queries

The 14 queries posed by the President under Article 143 were addressed as follows:

Where the opinion falls short

While the Supreme Court’s opinion undeniably brings clarity to the constitutional scheme of assent, it is not immune from critique. In fact, several aspects of the opinion raise serious concerns about practical enforceability, institutional realism, and the Court’s own conception of constitutional federalism.

1.  The court’s rejection of timelines leaves a real vacuum

The Court’s insistence that timelines cannot be judicially prescribed because Articles 200 and 201 contemplate “elasticity” may be doctrinally defensible, but it leaves a pressing institutional problem unresolved.

In recent years, several Governors have delayed Bills for 12–18 months, creating deliberate legislative paralysis. The Court recognises this reality — it even describes such conduct as capable of “frustrating the legislative process” — but then offers only a limited mandamus, a remedy whose effectiveness depends on judicial willingness to intervene case by case.

This raises the question: Is elastic constitutional design being used to justify an increasingly inflexible political obstruction?

The Court’s refusal to articulate even outer constitutional boundaries (e.g., “reasonable time” standards, structured guidelines, presumptive limits) risks normalising governor delay as a political weapon.

2. The decision overestimates the governor’s neutrality

The opinion rests heavily on the idea that the Governor engages in a “constitutional conversation” with the Legislature. This idealised model presumes constitutional good faith — an assumption that does not align with contemporary political realities.

Governors today often act:

• as agents of the Union Government,
• as political veto points,
• with partisan motivations rather than deliberative ones.

By retaining wide discretion after re-passage (including the power to reserve), the Court may have inadvertently reinforced avenues of political interference rather than constrained them.

3.  The court rejects deemed assent but offers no functional alternative

The Court is doctrinally correct that deemed assent couldn’t be judicially manufactured.
But rejecting deemed assent without creating:

• temporal guardrails,
• presumptive timelines,
• structured standards for delay, or
• constitutional consequences for non-action means the status quo of indefinite executive stalling may remain substantially unchanged.

The Court’s solution — a “limited mandamus” in cases of “prolonged and unexplained inaction” — is conceptually elegant but practically weak. Governors can simply supply some explanation for delay to forestall judicial review.

4.  The Opinion Avoids Confronting the Hard Question: What happens if the governor still does not act?

Even after a mandamus directing the Governor to “decide within a reasonable period,” the Court does not address:

• What if the Governor still does not act?
• Can the Court enforce compliance?
• Can non-compliance itself trigger constitutional consequences?

By stopping short of answering these questions, the Court leaves open the possibility that constitutional commands may remain judicially unenforceable.

5.  The court’s “dialogic federalism” is normatively attractive, but descriptively unrealistic

The opinion’s philosophical turn toward “dialogue, reconciliation and balance” is attractive and intellectually sophisticated. However, Indian federalism today is marked by:

• partisan conflict,
• aggressive centralisation,
• Governors acting as political brakes on opposition-ruled States,
• selective obstruction of specific policy agendas.

In such an environment, dialogic federalism risks becoming constitutional romanticism, a theoretical model with limited grounding in empirical governance.

6.  The decision leaves the legislature ultimately dependent on executive grace

Even after clarifying the options, the Court affirms that:

• the Governor has discretion to reserve Bills (even after repassage),
• the President’s discretion under Article 201 is non-justiciable,
• and no timelines apply at either level.

This means a State law may still be caught in executive limbo between Raj Bhavan and Rashtrapati Bhavan for months or years, with no remedy except discretionary judicial nudges.

The structure therefore remains executive-heavy and legislature-vulnerable.

Conclusion

The Court’s opinion is doctrinally coherent, textually grounded, and institutionally respectful of separation of powers. It restores structural clarity and corrects errors in the Tamil Nadu Governor decision. Its articulation of dialogic federalism is aspirational and constitutionally rich.

However, the opinion also reflects a profound judicial reluctance to discipline constitutional actors who act in bad faith. By declining to set timelines, refusing to articulate enforceable standards, and preserving a broad zone of discretion for Governors and the President, the Court leaves significant room for political misuse of constitutional offices.

In effect, the opinion clarifies the law but does not fully address the practical crisis of governor obstruction that sparked the reference itself. It upholds constitutional ideals but leaves unresolved the very dysfunction that compelled the President to invoke Article 143.

The opinion thus represents a structural clarification without structural correction — a doctrinal victory, but an incomplete solution to a deepening constitutional tension between democratic mandates and executive gatekeeping.

The complete opinion may be read below.

Related:

Tamil Nadu Governor delivers another googly, refers the ten re-adopted bills to the President, state calls it a “Hit on the Constitution”

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Governor, a bridge between centre & state, overstep is overreach: review of judicial decisions

The post Clarity Without Cure: The Supreme Court’s reinterpretation of Articles 200 and 201 and the future of federal governance appeared first on SabrangIndia.

The decision did more than meet Kaushik’s claims for compensation. It issued far-reaching institutional directions: the creation of a committee headed by retired Justice Asha Menon to propose a model Equal Opportunity Policy (EOP) for transgender persons, and then, further ordered that the policy, following the guidelines, would be binding on all establishments, public and private, until the Union Government delivered its own. Through this action, the Court bridged the historic gap between recognition and implementation of equality, making it move from being an aspiration into an enforceable mechanism.

A Case that Became a Constitutional Reckoning

Unfortunately, Jane’s experience is not unique. After revealing her gender identity, she was forced to turn in her resignation after only eight days on the job at a school in Uttar Pradesh; a school in Gujarat later rescinded her job offer on similar grounds. She subsequently filed with the Supreme Court, under Article 32, arguing that these actions were violations of her constitutional rights and of the 2019 Act that prohibits discrimination “in any matter relating to employment.”

The court agreed. The Bench noted that discrimination on the part of private employers that is gender identity-based “strikes at the heart of the constitutional guarantee of dignity and equality” and explained that by not doing something about such exclusions by private entities state was making an “omissive discrimination.” The judges reminded the government, in the end, that the TG Act and its 2020 Rules were not too long ago, “brutally reduced to dead letters” by the government’s bureaucratic apathy.

While acknowledging the Transgender Persons (Protection of Rights) Act, 2019, and the 2020 Rules, the Court regretted that they “have been brutally rendered dead letters” (para 35, p. 29). It further criticized the “grossly indifferent approach to the transgender community,” noting that this inaction “cannot in any way be fairly regarded as inadvertent or accidental; it is deliberate and is undoubtedly rooted in societal stigma, compounded by a lack of bureaucratic will” (para 35, p. 29). This scathing indictment of bureaucratic failure was coupled with a clear finding that the petitioner’s termination constituted a violation of her dignity, livelihood, and equality.

In asserting both direct and indirect discrimination, the Court put the question of gender identity discrimination into a framework of systemic injustice, and not simply a personal grievance. The damages awarded to Kaushik were symbolic, but profound: declaring through the judiciary that dignity is not contingent on conformity.

The Constitutional Arc: From NALSA to Kaushik

The judgment in Jane Kaushik v. Union of India is not disconnected from a trajectory of equality jurisprudence over the last decade or so. Its reasoning is founded upon three separate but constitutional landmark decisions — National Legal Services Authority v. Union of India [(2014) 5 SCC 438], Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. [(2017) 10 SCC 1], and Navtej Singh Johar and Ors. v. Union of India (Ministry of Law and Justice) [(2018) 10 SCC 1] — each of which represented a point in India’s constitutional journey from recognition to dignity.

In National Legal Services Authority v. Union of India (NALSA), the Supreme Court expressly recognized transgender individuals as “the third gender,” indicating that Articles 14, 15, 16, 19, and 21 recognize the right to equality and dignity for all individuals, regardless of their gender identity. The judgment stated, “Gender identity is inherent to the concept of personhood…one of the most fundamental elements of dignity, self-determination, and freedom.” The Court also mandated that the state governments recognize self-identification and take proactive measures relating to education and employment. The Kaushik Bench cited NALSA to reaffirm that, “Articles 15 and 16 must be read in a manner that prohibits discrimination based on gender identity” (para 30, p. 26), but importantly extended this reasoning into the employment context, stating that neither public nor private employers may deny employment based on gender identity.

Three years later, in Justice K.S. Puttaswamy (Retd.) v. Union of India, a nine-judge Bench recognized that the right to privacy under Article 21 includes bodily integrity, decisional autonomy, and the right to express one’s identity. Justice D.Y. Chandrachud wrote that “privacy protects individual autonomy and recognizes the right to make vital personal choices.” Kaushik recognizes this principle and extends autonomy to the workplace, contending that the right to live with dignity includes the right to livelihood without stigma.

Finally, in Navtej Singh Johar v. Union of India, Section 377 of the IPC was invalidated, decriminalizing relations between persons of the same sex, and holding that equality is grounded in constitutional morality rather than public morality. With NALSA, Puttaswamy, and Navtej all providing a philosophical basis for the holding in Kaushik, they enforce those rights in the workplace. From recognition of identity, to protection of autonomy, to the enforcement of economic dignity, Jane Kaushik marks an evolution in India’s constitutional journey to not only a right to exist but to a right to thrive.

Equality Beyond Formalism: The Court’s Expansive Interpretation

One particularly notable aspect of the Kaushik case is its recognition of substantive equality, an embodied notion of equality that requires not just that all people be treated the same, but that normative structural barriers are eliminated so that certain groups can realize their rights.

Citing Articles 14 through 16 of the Indian Constitution, the Court validated that discrimination based on gender identity is a form of discrimination based on sex. The Court also connected this idea to the right to a dignified life and to live under Article 21 of the Constitution by stating that refusing employment based on gender identity results in “economic and social death” to an individual. The judgment invoked something called constitutional morality and reminded employers, both public and private, that the obligation of equality is not discretionary; it is a part of being a democratic citizen.

This point is significant because, as observed by CJP in its report about transgender rights in 2023, a lot of the discrimination experienced by the transgender community is not a result of outright bad intentions but rather due to inertia and ignorance by the institutional structure. The Court’s reasoning captured that in its justification by holding that to omit, or not act, can itself be a form of discrimination.

By recognizing “omissive discrimination,” the Bench also expanded and layered the idea of state obligations. As the Bench explained, equality means positive obligations. The State must ensure that the rights of transgender persons are not merely enshrined in law, but that they are realized and effective.

Strengthening Employment Protection

The first sphere of impact of the judgment for the transgender community is with respect to employment security.  The Court found expressly that the protections available under the TG Act apply equally to public and private employment, which makes it unlawful for any establishment to deny employment, promotion, or continuance for reasons relating to gender identity.

This means that where previously, major alterations to workplaces across India were difficult to put in place properly (at a general level, but increasingly across specific employment compartments governed by individual laws, such as recognition also in respect of ‘male and female’), this is now a seismic shift in practice and the obligation on employers. Employers must now make reasonable accommodation, whether borrowing the term from disability rights jurisprudence or applying the principle from the Court in respect of substantive equality, on any decision or treatment, covering everything that applies to transgender persons: recruitment forms, uniforms, leave policy, goodwill policy, and grievance procedures, also all included.

Having also ordered a compensation award to Kaushik, the Court now presents a precedent in respect of damages in fear to workplace discrimination, making it clear that discrimination is not only a negative ethic but an illicit treatment too. As earlier argued in CJP’s “The Discordant Symphony”, the work for transgender rights in India is not only about legal recognition, but within the real act, one of accessing responsible means of livelihood. This judgment helps stitch the gap between legal and lived rights responsibly, moving now toward enforceable law work.

Mandating an Equal Opportunity Policy

Arguably, one of the most progressive components of the ruling is the instruction to draft a template Equal Opportunity Policy (EOP) for transgender persons. The Court observed that Rule 12 of the 2020 Rules already imposes an obligation on every establishment to implement an EOP, designate a complaint officer, and create an environment free of discrimination, but noted that few, if any, establishments had done so.

The newly constituted Justice Asha Menon Committee is to produce a uniform EOP to be used by all establishments. Until it is formally adopted by the Union Government, the Court ruled that the guidelines of the committee will have a binding effect.

This shifts the responsibility of inclusion from a moral goal to a legal duty. The Court effectively constitutionalizes workplace inclusivity as an obligation of employers. Employers, schools, corporations, etc., now have an ongoing obligation to have trans-inclusive policies, grievance policies, and sensitization regimes.

As CJP’s earlier analysis in “From Judgments to Handbook: India’s Transformative Journey towards LGBTQIA Equality” pointed out, systemic inclusion cannot be left to goodwill; it has to be planned design. The Supreme Court has now offered precisely that design.

Ripple Effects: Recruitment Norms and Affirmative Action

Jane Kaushik’s implications transcend a single case. For the public sector, the judgment reopens discussion around reservation and affirmative action for transgender persons. Only a handful of states, including Karnataka, which offered a 1 % horizontal reservation, and Odisha, which instructed departments last month to incorporate “transgender” as a category of gender separately on forms, have taken action on inclusive hiring policies.

By calling out inaction by the state, the Supreme Court has signalled that governments cannot sit idly. Departments will have to insist on representation, reasonable relaxations, and non-discriminatory criteria in recruiting and promoting.

The implications for the private sector are equally significant. Employment discrimination based on gender identity now not only carries reputational risk, but legal risk as well. The binding EOP means private institutions will now need to modify their recruiting advertisements, the recruiting application forms, and internal HR policies to ensure inclusion. Selection committees and the Board of Directors will require mandatory sensitivity training, and failure to comply could result in judicial assessment.

In that regard, the judgement extends the ethos of equality into India’s economic systems, making sure that the transformative promise of the Constitution governs behaviour not only by the State, but the marketplace as well.

Constitutional Morality Meets the Workplace

Through Jane Kaushik v. Union of India, the Supreme Court has issued one of its most important equality decisions since Navtej Johar. It extends the Constitution into dimensions of society where discrimination can often continue without intervention. It does this by asserting the need to implement a national Equal Opportunity Policy and assigning significant responsibility to the State to respond to “omissive discrimination”, therefore transforming equality from a right to a collective responsibility of every institution.

For India’s transgender citizens, this decision substantively transforms symbolic recognition into meaningful participation – from simply existing to being able to be employed, from invisibility to the possibility of inclusion. True progress is not identified merely in laws or decisions but in the security of dignity in everyday life.

The next test is whether this landmark ruling is remembered, not as a judicial victory but as when workplaces, all over India, began to embody the values of the Constitution itself.

The judgment in Jane Kaushik v. Union of India can be read here:

The judgment in National Legal Services Authority v. Union of India can be read here:

The judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India can be read here:

The judgment in Navtej Singh Johar v. Union of India can be read here:

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

Related

Reflecting on Transgender Rights in 2023: Have Legal Recognition and Advocacy Efforts Broken the Cycle of Discrimination and Ostracism?

The discordant symphony: where does the transgender community go from here?

From Judgments to Handbook: India’s Transformative Journey towards LGBTQIA+ Equality

Can pride be apolitical? Perspectives from queer and trans* community

Mapping Gender-Based Violence in India: Trends, determinants, and institutional frameworks

MAT highlights state’s duty under Transgender Act 2019 for Trans inclusion

The post Beyond mere Recognition: The Jane Kaushik judgment and the next frontier of transgender equality appeared first on SabrangIndia.

The matter might have ended at this stage requiring the respondents to file a counter affidavit. However, the matter cannot be treated to be so simple inasmuch as this Court is deluged with such matters on the basis of First Information Reports being filed left and right by the authorities and complainants under the provisions of the Act, 1955. (Para 15)

In this case, officers intercepted the transportation of nine living and healthy progeny of cows within Uttar Pradesh. Even though a slaughter or transport across state lines was not in issue, the owner of the vehicle was charged under Section 3, Section 5A, and Section 8 of the 1955 Act and Section 11 of the Prevention of Cruelty to Animals Act, 1960.

In determining that no offense had occurred, the Court ordered protection for the petitioner and went even further, directing the Principal Secretary (Home) and Director General of Police to personally file affidavits explaining this misuse pattern. The bench also asked for an explanation as to why the State has not issued a formal Government Order (GR) to carry out the Supreme Court’s binding directions from the judgment in Tehseen S. Poonawalla v. Union of India (July 2018) to prevent mob violence and cow vigilantism.

The Preventive Measures mandated by the apex court in the Tehseen S. Poonawalla  case have been encapsulated in this action-oriented pamphlet widely disseminated by Citizens for Justice and Peace that may be read here.

For over a decade, CJP has systematically documented and intervened against the abuse of the “cow protection” laws. Since 2017, CJP’s legal and advocacy teams have tracked the rise of mob vigilantism, along with its legal facilitators, all over India — fact-finding, litigation, and public education being the methods of doing this work. Investigations like India: The New Lynchdom (2018, CJP) and Cow Vigilantism: A Tool for Terrorising Minorities (2020, CJP) have mapped hundreds of instances where such laws have reportedly been used to sanction mob, extrajudicial violence, and have documented how the criminal justice system has been captured, even driven, by majoritarian agendas. Against this background, this becomes an important moment of judicial awareness of what CJP and other human rights defenders have been implementing for years.

It is important to note that this order is not limited to a single petitioner. It represents a judicial and legal recognition that the ongoing misuse of the 1955 Act occurs as part of a broader culture of impunity that encourages vigilantes, criminalizes livelihoods, and undermines the rule of law.

Statutory Background of the UP Prevention of Cow Slaughter Act, 1955

The 1955 Act was made to ban the killing of cows and their offspring and to control the transport of cows, all for the purpose of implementing Article 48 of the Constitution. The Act defines three regular aspects, where slaughter is banned under Section 3, transport within U.P. out-of-state is restricted under Section 5A, and punishment of three to ten years’ rigorous imprisonment and fine of ₹3–5 lakh is introduced under Section 8 for violations. Section 2(d) defines “slaughter” as “killing by any method whatsoever, and includes maiming and inflicting physical injury which in the ordinary course will cause death.” This definition shows that there must be some form of harm that would ultimately lead to death.

The Court emphasised that this requirement is routinely overlooked. It quoted Kaliya v. State of U.P. (2024 126 ACC 61), in which the Allahabad High Court cautioned that the conveyance of cows or calves in Uttar Pradesh does not invoke Section 5A since it only prohibits transport outside of that state. It also relied on the case of Parasram Ji v. Imtiaz (AIR 1962 All 22), a 1962 decision from the Allahabad High Court, which held that there is a difference between mere preparation and an attempt to slaughter. Preparation does not constitute an offence under the Act if the cow is tied up, for example. By citing Parasram Ji, the Bench emphasized that there was more than sixty years of settled law that the police were ignoring.

In this case, where slaughter, maiming, or interstate transportation was not charged, none of the violations applied. The judgment reminded us again of the Court’s own earlier warnings. In Rahmuddin v. State of U.P.(Criminal MISC. Bail Application No. – 34008 of 2020), the Court noted that the Act was being “misused against innocent persons” when it mentioned the meat was recovered, but often claimed all the meat to be cow meat without a laboratory test. In Jugadi Alias Nizamuddin v. State of U.P. (Criminal MISC Anticipatory Bail Application U/S 438 CR.P.C. No. – 182 of 2023), bail was granted before an arrest, as only cow-dung and a rope were recovered, but it was branded a “glaring example of misuse of penal law.” These rulings serve the greater purpose of demonstrating the number of mechanical FIRs that are being registered, even before investigation, and the abuse and incarceration that innocent people continue to experience.

Ambiguous legal provisions and ineffective procedural safeguards enable police overreach and selective police power against certain communities, mostly Muslims and Dalits. Consequently, the findings of the Allahabad High Court lend judicial authority to what human-rights defenders have been calling, for a long time, a systematic abuse of “cow-protection” laws.

This detailed legal explainer prepared by CJP in 2018 de-constructs how such laws have become a source of victimization.

The Court’s reasoning: From Casual FIRs to Vigilantism

After concluding that there was no offence made out, the Bench stated it was “deluged with such matters” resulting from indiscriminate First Information Reports (FIRs) under the 1955 Act (para 15). It directed the Principal Secretary (Home) and the DGP to show cause why the officers continue to lodge these FIRs in spite of the clear judicial precedent, in particular, the cases of Kaliya and Parasram Ji refer to cases in para 15. The Court required that the affidavits submitted by the officers included relevant affidavit material as to the taking of proposed disciplinary action by the State against the complainants and police personnel for making unwarranted FIRs, and if not, the Court required explanation for why the State did not issue a formal “Government Order” to legally preclude any such future FIRs, which served, in proportion, to undue disadvantage of cost in furthering the FIR towards frivolous case of prosecution.

In a serious observation, the Bench did not merely engage in procedural fault-finding; it also uncovered a more pervasive social consequence:

Yet another connected aspect of the matter under the garb of the Act, 1955 is vigilantism which is being practiced by various persons. Why we say this is because a few days back, a Bench of this Court was seized of a matter in which the car of the person was stopped by vigilantes and thereafter, it was not traceable. (See- Criminal Misc. Writ Petition No. 9152 of 2025 Inre; Bablu Vs. State of U.P and Ors). In the said writ, instructions have been called for by the Court. Violence, lynching and vigilantism is the order of the day. (Para 30).

The Court relied on Bablu v. State of U.P. (W.P. No. 9152 of 2025), where vigilantes encircled a vehicle, which later went missing, to illustrate how misuse of the statute invites disorder. Moreover, it established the illustration of occurrence within the wider phenomenon of “mob violence” by linking directly with the reasoning of the Supreme Court in Tehseen S. Poonawalla v. Union of India that “vigilantism cannot, by any consideration, be allowed to take shape… it ushers in anarchy, chaos and disorder.”

National Legal Framework: The Tehseen S. Poonawalla Mandate

In the case of Tehseen S. Poonawalla v. Union of India, the Supreme Court remarked on the very real and concerning increase in lynchings and violence related to cows. The Court, speaking through Chief Justice Dipak Misra, A.M. Khanwilkar, and D.Y. Chandrachud, found that lynching was “a failing of the rule of law and of the lofty ideals of the Constitution itself.” The Court noted that State agencies have the “primary responsibility” to protect against cow-vigilantism or any type of mob violence.

In paragraph 40 of the judgement, the Supreme Court gave a thorough set of preventative, remedial, and punitive directions: every district must appoint a nodal police officer (not below the rank of Superintendent) for oversight for prevention of mob violence; identify sensitive areas; establish fast-track courts for lynching cases; develop compensatory schemes for victims under Section 357A of the CrPC; and identify negligent officials and hold them accountable.

Despite these unequivocal mandates, however, the Allahabad High Court found that Uttar Pradesh had taken no action to meaningfully operationalise the Supreme Court directions. It found that a circular issued by the DGP on 26 July 2018 could not substitute for a Government Order issued under Article 162 of the Constitution, as such an order would reflect Government policy. The Bench thus required an explanation for the non-compliance and required affidavits showing compliance, on the basis that the lack of the Government Order undermined the prevention and punishment framework contemplated by the Supreme Court.

Notwithstanding these clear directions, the Allahabad High Court noticed that Uttar Pradesh had taken no decisive steps toward operationalizing the guidelines. Its finding was that a circular issued by the DGP on 26 July 2018 was not an adequate alternative to a Government Order issued pursuant to Article 162 of the Constitution. Only a Government Order could adequately reflect the policy of the Government. The Bench mandated a rationale of non-compliance and required affidavits evidencing compliance, noting that, absent an order from the Government, the preventive and punitive framework envisaged by the Supreme Court simply could not be accomplished.

Constitutional Implications: Articles 14, 19, and 21

The aggressive and arbitrary usage of the 1955 Act violates the equality, liberty, and due-process guarantees of the Constitution. Article 14 guarantees equality before the law, and this equality is violated when FIRs are lodged with no basis in fact or when officers exercise their discretion to target only particular communities. The equal protection principle is breached when FIRs are lodged “left and right” (para 15) when there are no fundamental elements of an offence. Therefore, non-arbitrariness, which is at the heart of Article 14, is violated.

Article 19 protects against arbitrary seizure of vehicles or criminalizing intra-State cattle transport, colloquially known as the “anti-cow slaughter provisions,” which interfere with unreasonable restrictions on the lawful trade, profession, and movement of citizens. Kaliya v. State of U.P. explicitly clarified that intra-State transport is not an offence. It is clear how restrictions on engaging in an occupation, profession, or trade when they are established directly restrict citizens’ economic liberty.

Under Article 21, the arbitrary actions are a further deprivation of liberty and dignity without due process of law. In Rahmuddin, the Court noted that accused persons languish in prison because meat samples are rarely sent for analysis and dispose of the need for due process. The combination of legal negligence and social malice undermines the conception of equal citizenship and uses the protection of cows as an excuse to persecute people. The High Court, accepting that using the 1955 Act has “wasted precious judicial time” (para 41) and that citizens should not have to “spend valuable money and time” to seek relief, demonstrates that this violation is both an individualized violation and a burden on the judiciary.

As CJP’s analyses have frequently stated, police impunity and informally inflicted violence contribute to the sense that “there are two sets of citizens: one protected by the law and the other punished by law.”

The judgment’s call for the most senior officials to be held individually accountable brings back an important idea behind constitutional governance: that executive negligence in the enforcement of the fundamental rights of every citizen cannot be excused by the silence of an institution. When the authorities of the State ignore orders made by the Supreme Court and allow vigilantes to act, the authorities of the State cease to execute their constitutional duty to uphold the rule of law.

Misuse, Vigilantism, and the Rule of Law

The Allahabad High Court’s ruling in Rahul Yadav exposes that the U.P. Prevention of Cow Slaughter Act has transitioned from a regulatory instrument to a tool for arbitrary prosecution. The Court explicitly points out that “under the garb of the Act is vigilantism,” giving judicial voice to what human-rights reporting has documented for some time—that the selective enforcement of cow-protection laws legitimizes mob violence to the detriment of threatened communities.

In reports like Divide and Rule in the Name of the Cow, CJP documents how false charges of cow slaughter/transport have been aimed at Muslims and Dalits. Sabrang’s investigations show that even after Tehseen Poonawalla, most States have not yet implemented mandatory measures as required, such as putting in place effective nodal officers or monitoring hate crimes regularly. This collection of ground reports gives both the socio-legal context to what the High Court has now acknowledged formally: the misuse of the 1955 Act has become institutionalized.

The Bench’s instruction that the Principal Secretary (Home) and DGP provide personal affidavits marks a moment when the judiciary will demand institutional accountability, not just individual relief. Whether this results in real change will depend on what the State does, if it finally issues the long-overdue Government Order required by Tehseen S. Poonawalla and takes corrective action with respect to the errant officials.

The abuse of the 1955 Act, therefore, remains a legal and moral paradox—a law intended to protect life but used under circumstances that inhibit liberty, equality, and the viability of constitutional democracy.

The judgment in Rahul Yadav v. State of Uttar Pradesh can be read here

The judgment in Tehseen S. Poonawalla v. Union of India can be read here

The judgment in Kaliya v. State of U.P. can be read here

The judgment in Parasram Ji v. Imtiaz, can be read here

The judgment in Rahmuddin v. State of U.P. can be read here

The judgment in Jugadi Alias Nizamuddin v. State of U.P can be read here

The judgment in Bablu v. State of U.P. can be read here

Related:

Cow Vigilantism: The primary cause of persecution of Muslim minority in India

India: The new Lynchdom

Right wing groups indoctrinate Hindu youth to wield Trishuls to protect religion, cows

Cow vigilantism, a tool for terrorising minorities?

SC urged to formulate guidelines to curb Cow Vigilantism

Cow Slaughter Prevention Laws in India

Divide and Rule in the Name of the Cow

28 States and UTs have appointed nodal officers to curb hate speech in compliance with 2018 Tehseen Poonawalla verdict :Union Home Ministry to Supreme Court

“Vigilantism is not permissible, needs to be checked”: SC, following up Tehseen Poonawalla case

Several steps forward but miles to go in the battle for a hate-free India: Supreme Court in 2023

The post Judicial Pushback against Cow Vigilantism: Allahabad HC flags arbitrary FIRs, demands accountability from top officials appeared first on SabrangIndia.

The Court, speaking through Justice Augustine George Masih (for a Bench also comprising Chief Justice B.R. Gavai), extended the constitutional and procedural safeguard under Article 22(1) of the Constitution of India—previously emphasized in the context of special statutes such as the UAPA and PMLA—to all offences under the Bharatiya Nyaya Sanhita (BNS) / Indian Penal Code (IPC).

Constitutional mandate reinforced

Reaffirming that Article 22(1) is not a mere procedural formality but a binding constitutional safeguard, the Court held that the arrested person must be informed of the grounds of arrest as soon as may be, in a language and form he can understand, and such communication must be in writing.

“…mere communication of the grounds in a language not understood by the person arrested does not fulfil the constitutional mandate under Article 22 of the Constitution of India. The failure to supply such grounds in a language understood by the arrestee renders the constitutional safeguards illusory and infringes the personal liberty of the person as guaranteed under Article 21 and 22 of the Constitution of India.” (Para 44)

The Court explained that the purpose of Article 22(1) is to place the arrestee “in a position to comprehend the basis of the allegations levelled against him,” and to enable him to “seek legal counsel, challenge custody, and apply for bail.” This purpose, it said, “would not be fulfilled by merely reading out the grounds.”

Written grounds in language understood by the arrestee

Drawing from Harikisan v. State of Maharashtra and Lallubhai Jogibhai Patel v. Union of India, the Court held that written grounds must be furnished in the language understood by the person, not merely read out or translated orally.

“The mode of communicating the grounds of arrest must be such that it effectively serves the intended purpose as envisioned under the Constitution of India which is to enable the arrested person to get legal counsel, oppose the remand and effectively defend himself by exercising his rights and safeguards as provided in law. The grounds of arrest must be provided to the arrestee in such a manner that sufficient knowledge of facts constituting grounds is imparted and communicated to the arrested person effectively in a language which he/she understands. The mode of communication ought to be such that it must achieve the intended purpose of the constitutional safeguard.” (Para 45)

Reiterating this, the Bench added:

“There is no harm in providing the grounds of arrest in writing in the language the arrestee understands, this approach would not only fulfil the true intent of the constitutional mandate but will also be beneficial for the investigating agency to prove that the grounds of arrest were informed to the arrestee when a challenge is made to the arrest on the plea of non-furnishing of the grounds of arrest.” (Para 45)

Extension beyond special statutes

Rejecting the argument that earlier rulings in Pankaj Bansal v. Union of India (2024) and Prabir Purkayastha v. State (NCT of Delhi) (2024) were confined to PMLA or UAPA offences, the Court held that Article 22(1) applies equally to all arrests—without exception.

“Article 22(1)… casts a mandatory unexceptional duty on the State to provide the arrested person with the grounds of such arrest with the objective to enable that person to be able to defend himself by consulting a legal practitioner of his choice. This mandate of Article 22 (1) is notwithstanding any exception. This Court has made it explicit that the constitutional obligation under Article 22 is not statute-specific and it is grounded in fundamental right of life and personal liberty under Article 21 of the Constitution of India, therefore making it applicable to all offences including those under the IPC 1860 (now BNS 2023).” (Para 39)

The Bench further clarified that the right to be informed of the grounds of arrest is fundamental, non-derogable, and absolute, and non-compliance vitiates the arrest itself:

“The requirement of informing the arrested person the grounds of arrest, in the light of and under Article 22(1) of the Constitution of India, is not a mere formality but a mandatory binding constitutional safeguard which has been included in part III of the Constitution under the head of Fundamental Rights. Thus, if a person is not informed of the grounds of his arrest as soon as maybe, it would amount to the violation of his fundamental rights thereby curtailing his right to life and personal liberty under Article 21 of the Constitution of India, rendering the arrest illegal.” (Para 40)

Limited exception for exigent circumstances

While declaring the arrest in the present case illegal, the Court carved out a narrow operational exception: where arresting officers are confronted with offences occurring in their presence (for instance, a murder or assault in progress), oral communication of the grounds may be permitted at the time of arrest, provided that written grounds are supplied within a reasonable time and, in any event, at least two hours before the arrestee’s production before the magistrate for remand.

“However, in exceptional circumstances such as offences against body or property committed in flagrante delicto, where informing the grounds of arrest in writing on arrest is rendered impractical, it shall be sufficient for the police officer or other person making the arrest to orally convey the same to the person at the time of arrest. Later, a written copy of grounds of arrest must be supplied to the arrested person within a reasonable time and in no event later than two hours prior to production of the arrestee before the magistrate for remand proceedings. The remand papers shall contain the grounds of arrest and in case there is delay in supply thereof, a note indicating a cause for it be included for the information of the magistrate.” (Para 52)

This two-hour threshold, the Court noted, ensures a functional balance between safeguarding personal liberty and allowing police to perform their duties without procedural paralysis.

“The two-hour threshold before production for remand thus strikes a judicious balance between safeguarding the arrestee’s constitutional rights under Article 22(1) and preserving the operational continuity of criminal investigations.” (Para 53)

Consequences of non-compliance

In unequivocal terms, the Bench held that failure to provide written grounds of arrest in a language understood by the arrestee renders both the arrest and the subsequent remand illegal, entitling the person to immediate release.

Summarising its conclusions, the Court laid down the following binding directions:

1. The constitutional mandate of informing the arrestee of the grounds of arrest applies to all offences under all statutes, including IPC/BNS.
2. The grounds must be communicated in writing and in the language understood by the arrestee.
3. If it is not possible to supply written grounds immediately, they may be communicated orally, but must be furnished in writing within a reasonable time and at least two hours before production for remand.
4. Non-compliance renders the arrest and subsequent remand illegal, and the person “shall be entitled to be set at liberty.”

Significance and Broader Impact

This ruling is one of the most significant expansions of procedural due process under Article 21 and 22 in recent years. It builds on Pankaj Bansal (2023), Prabir Purkayastha (2024), and Vihaan Kumar v. State of Haryana (2025), which strengthened the constitutional guarantee of being informed of arrest grounds under special statutes.

By explicitly extending these safeguards to all offences under the Bharatiya Nyaya Sanhita and allied laws, the Court has now constitutionalized written notice of arrest grounds as a non-derogable fundamental right, comparable to the right to be produced before a magistrate within 24 hours.

“The Court further held that a copy of such written grounds must be furnished to the arrested person at the earliest without any exception observing that the communication provided under Article 22 and Section 50 of CrPC 1973 (now Section 47 of BNSS 2023) is not a mere procedural formality but a vital safeguard with the ultimate objective to enable the arrested person to effectively consult legal aid and be prepared to raise objections in remand hearing and apply for his/her bail. The right to life and personal liberty, safeguarded under Articles 20, 21 and 22 of the Constitution, stands as the paramount fundamental right.” (Para 45)

The Court also directed that copies of this judgment be circulated to all High Courts and State Governments for immediate implementation and compliance.

Conclusion

The Mihir Rajesh Shah ruling marks a transformative moment in India’s criminal procedure jurisprudence, ensuring that constitutional guarantees of personal liberty are not reduced to hollow ritual. It affirms that an arrest made without written grounds—especially when not communicated in a language understood by the arrestee—is no arrest in the eyes of the Constitution.

“The genesis of informing the grounds of arrest to a person flows from the Constitutional safeguard provided in Article 21 of the Constitution of India, which reads “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The expression ‘personal liberty’ has been given a wide meaning through various judicial pronouncements. One of which is that personal liberty includes procedural safeguards from the abuse of power by the State agencies and scrutiny of the actions of the State.” (Para 17)

The complete judgment may be read here.

Related:

Allahabad HC grants bail in UAPA case over WhatsApp video; raises questions on overuse of stringent national security laws

SC intervenes for personal liberty after HC adjourns a bail application 27 times!

SC’s denial of bail to journalist Rupesh Singh once again showcases how the Court looks at bail under UAPA, with varying consistency

Examining Jurisprudential Shifts: The Evolution of Bail Provisions Under PMLA – Part II”

The post Due Process Strengthened: Supreme Court mandates written, language-specific grounds for arrest under special laws and general laws appeared first on SabrangIndia.

The Numbers behind the Screen

The data illustrates both advances and stagnation. On the one hand, the total number of reported cyber offences has increased, but they still account for only a tiny portion of overall (other) crimes. A 2023 Internet Freedom Foundation study found that nearly 68% of respondents who faced digital fraud or harassment did not report or seek help from the police because they did not believe the police would take action, or did not seek help due to fear of being shamed online. Even individuals who reported complaints were often turned away, told that the incident was “not serious enough” or “outside the jurisdiction” of their local police department.

The NCRB’s data on cyber offences is heavily biased towards documenting financial offences: 65% of total reported offences in 2023 were either banking or investment fraud, while non-financial classes of cyber offences – such as stalking, cyberbullying, morphing, etc. – are represented in total under 5%. Nevertheless, first-person reports from TN/NGO’s such as CyberPeace Foundation and Internet Democracy Project find that these personal and gendered violations may be even more pervasive, particularly for women, queer folks, and students. Statistically, these violations are invisible because the state cannot understand these forms of abuse as violence.

The NCRB’s Crime in India model is based on a First Information Report (FIR) registration. If a complaint is never registered as an FIR, it never appears in the Bureau’s reports. Consequently, what we have nationally is not a decrease in crime but an increase in barriers, this time bureaucratic, to counting crimes.

The Mirage of Decline: Delhi, Mumbai and the Art of Statistical Censorship

In Delhi, Mumbai, and many other large metro cities, the figures showed an abrupt decline despite the alarming figures. In Mumbai, the report shows a decline of 11.7% from the previous year in total cybercrime cases, whilst RTI data suggested that only two percent of all complaints made to the National Cyber Crime Portal were ever converted into FIRs. In Delhi, likewise, all categories show declines in clear contradiction to multiple news articles from the media presentations of data that clearly suggested increases in cyber fraud, phishing scams, and gender-based online harassment. The disconnection between the data provided through the official reports and lived human experience represents, in and of itself, a new type of censorship – a digital censorship.

The observable decrease in cybercrimes in regions such as Delhi and Mumbai illustrates how underreporting has functioned as a method of digital governance. Police officers in Mumbai, for example, privately confirmed to the Times of India (2023) that increased reports of cyber fraud were negatively affecting the public’s perception of law and order in the city, and many police stations even ceased to record phishing and fake-profile incidents as cybercrime, instead logging them as petty property offences. The entirety of the TOI report can be read here.

The situation in Delhi is paradoxically similar. The NCRB reports a slight decrease in the number of cybercrime incidents reported in 2023, yet, according to the Ministry of Electronics and Information Technology, the city’s cybercrime reporting helpline received over 80,000 calls. This disparity is an articulation of what one officer termed “reclassifying for efficiency,” meaning the police advised the victims to call the bank, private website, or intermediary instead of filing a FIR or police report.

This form reduces the number of FIRs filed but improves the statistical reporting; using the data as a measure no longer reveals security; it is a measure of bureaucratic discipline. The illusion of a positive or outward improvement conceals a structural refusal to document crime. Therefore, the censorship of cyberspace does not come from assertion, but comes from data.

Gender, Class, and the Digital Divide

The statistics given by the bureau also erase the social hierarchies within digital victimisation. The usual victims within a phishing scam and job fraud scheme is not the urban middle class, but rather it is low-income workers, migrant families, or elderly populations – all of whom are least literate in navigating digital bureaucracy. In 2023, the National Payments Corporation of India found that UPI-linked fraud was up by 71%, yet many victims did not feel assured or capable of making a formal complaint. The NCRB marks this crime as “banking offences” and erases the human story of systemic victimization or exploitation.

For women, queers, and minors, the stakes are different but equally severe. While image-based abuse, stalking, and cyber blackmail are on the rise, the report lists only 10,730 cases of “cyberstalking” or “cyberbullying” in 2023. That is highly impossible statistically, in a population of 1.4 billion. Experts agree that it is “ludicrously low” given the modern reach of social media and similar avenues. Ground-level studies conducted by Sabrang India and The Hindu have shown police would often, depending on the situation, suggest to women that deleting accounts was better than pursuing legal action for cyberstalking.

This gendered digital divide reproduces offline hierarchies: women and marginalized communities endure disproportionate online violence, and the state responds in a procedural and disengaged manner. In converting these experiences into codes for action, as the bureau does, the violence itself is rendered invisible — a point stripped of dignity and pain.

Invisible Harms, Invisible Justice

Cybercrime, unlike conventional crime, leaves behind traces, such as screenshots, IP logs, and chat histories, yet the Indian legal system has not adapted to utilize these for legal accountability. Data from the bureau for 2023 denotes that 22% of cybercrimes were charged, and less than 3% were convicted at trial. This poor record is compounded by the fact that there is no system for protecting victims or offering mental health services for victims of online harassment.

The NCRB’s framework also does not distinguish between cyber offences that are conducted based on economic fraud and cybercrime that is motivated by gendered violence or political ideology. Hate campaigns against journalists and activists, such as doxing or coordinated trolling, rarely go as far as registration. The India Freedom of Expression Index (IFEI) reports that 226 journalists suffered online abuse in 2023, and it seldom seems to be reflected in the observation category in the report. The very Digital Personal Data Protection Act of 2023 did focus on privacy, yet failed to discuss the accountability of platforms or intermediaries.

So, the issue is not that we lack data; rather, the data is abstract. Cybercrime is documented, but not interpreted or contextualized. Victims become statistics and records, devoid of narrative and recourse.

From Privacy to Accountability: Rethinking Digital Governance

A rights-based framework for cyber governance must move beyond the NCRB’s numerical formalism. Start with a recognition: that digital violence is not a niche technical problem, but a civic crisis that brings forward social hierarchies of power. Reforms should strengthen reporting mechanisms with a requirement of FIR registration if there is an investigation, and provide police with training to sensitively handle gendered and caste-based cyber offences.

Transparency is equally important. The bureau should report how many complaints on their portal turn into FIRs, and they should report on the data of those complaints in a disaggregated manner by gender, caste, and age. This would surface both the social pattern of online harms and expose the administrative bottlenecks to access to justice.

India’s approach towards cybercrime has primarily adopted an approach to surveillance more than safety, with broad internet shutdowns – recorded over 80 in 2023 by Access Now and SFLC.in – used as instruments for the appearance of prevention, even in the contexts of protests and communal tensions. Broad shutdowns, although often explained as security measures, mute voices and obfuscate evidence. Interventions instead of maintaining accountability for perpetrators, punish entire populations, thereby further complicating digital justice.

As the digital-acquainted world expands, so must the social governance moral imagination. Repairing safety for citizens online requires more than cybersecurity infrastructure, but accountability, empathy, and counting all the invisible victims.

Counting the Uncounted

The NCRB’s 2023 data on cybercrime showcases a contradiction within India’s digital transformation. A rise of 31.2% in reported offences demonstrates both acknowledgement of the growing threat of online crime and limitations in reporting incidents of crime. It is not that citizens are less threatened in cities such as Delhi and Mumbai; fewer offences are permitted to be documented in the first instance. The state’s digital apparatus is noting its accomplishments through denials and silence.

Gendered violence, class-based fraud, and ideological harassment thrive in the silence of non-reporting. When the NCRB records fewer incidences of crimes, it is not recognised as justice but rather accepted as erasure. In a democracy that prides itself on statistical knowledge, the absence of numbers becomes the strongest measurement of control.

Cybercrime is not, therefore, simply a technological challenge; it is a challenge to citizenship. Until every form of harm experienced in digital spaces can be translated into redress in the physical world, India’s digital democracy remains one of invisible victims, and a crisis of numbers devoid of presence.

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

Related:

Counting Crimes, Discounting Justice: The NCRB’s statistical blind spots

Mapping Gender-Based Violence in India: Trends, determinants, and institutional frameworks

State-sponsored attempts at surveillance erode right to privacy, target specific persons and expose lacunae in legislation

The Ghost of Shreya Singhal: Re-litigating digital free speech

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