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:

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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

The post Screens of Silence: What NCRB Data Misses about Cybercrime in India appeared first on SabrangIndia.

Delivering judgment in Muhammad Shareef C & Anr. v. State of Kerala & Anr., decided on October 30, 2025, Justice P.V. Kunhikrishnan declared that while Islamic personal law may permit a man to marry more than once, the law of the land and the Constitution must prevail when such a marriage is to be formally registered.

“A Muslim first wife cannot be a silent spectator to the registration of the second marriage of her husband, even though the Muslim Personal Law allow a second marriage to a man in certain situations. The 1st petitioner can marry again if his Personal Law permits him to do so. However, if the first petitioner wishes to register his second marriage with the second petitioner, the law of the land will prevail, and in such a situation, an opportunity of hearing for the first wife is necessary. In such situations, religion is secondary and constitutional rights are supreme. In other words, this is essentially the fundamental principle of natural justice. This Court cannot ignore the feelings, if any, of the first wife when her husband registers his second marriage in accordance with the law of the land. I am sure that 99.99% of Muslim women will be against their husband’s second marriage when their relationship with him is in existence. They may not disclose the same to society. However, their feelings cannot be ignored by a court, at least when their husbands attempt to register the second marriage in accordance with the Rules 2008.” the Court held. (Para 10)

Background of the case

The first petitioner, Muhammad Shareef, a 44-year-old man from Kannur, was already in a subsisting marriage with two children when he claimed to have solemnised a second marriage in 2017 with Abida T.C., the second petitioner, as per Muslim custom. The couple, who have two children together, approached the Registrar to register their marriage under the 2008 Rules, asserting that it was essential to secure property and inheritance rights for the second wife and their children.

When the Registrar declined to register the marriage, the petitioners approached the High Court contending that Muslim personal law allows up to four wives and that, therefore, the registration authority had no right to refuse.

The legal questions before the court

Justice Kunhikrishnan framed two fundamental questions:

1. Whether notice to the first wife is necessary for registering a Muslim man’s second marriage under the Kerala Registration of Marriages (Common) Rules, 2008; and
2. What remedy exists if the first wife objects to such registration on grounds of invalidity.

“Polygamy is an exception, not the rule” — The Qur’anic context

The judgment is remarkable not only for its constitutional vision but also for its interpretive depth in reading Islamic law through the lens of justice and equality. Referring to Jubairiya v. Saidalavi N. [2025 (6) KHC 224], Justice Kunhikrishnan extracted passages from the Qur’an to dispel the misconception that a Muslim man may marry multiple times at will.

Citing the verses, the Court underscored that justice, fairness, and transparency lie at the heart of Muslim marriage law — principles that align with constitutional values. Providing the same, the Court highlighted the facts of the case and held “

“In this case, admittedly, the 1st petitioner married another woman and in that relationship, he has two children. When the relationship with that woman was in existence, the first petitioner submitted to this Court that he fell in love with the second petitioner and married her. I don’t think that the Holy Qur’an or the Muslim Law permits an extramarital relationship with another lady when his first wife is alive and his first marriage with her is in existence, and that also, without the knowledge of his first wife. The principles derived from the Holy Qur’an and Hadith collectively enjoin principles of justice, fairness, and transparency in all marital dealings. However, the petitioner is relying on Muslim Personal Law to justify his marriage to the second petitioner.” (Para 6)

The Law of the Land: Rule 11 of the 2008 Rules

The Court examined Rule 11 of the Kerala Registration of Marriages (Common) Rules, 2008, which obligates the Local Registrar to verify the details furnished in the memorandum of marriage, including previous marital status (Columns 3(f) and (g) of Form I). Justice Kunhikrishnan observed that this requirement gives the registrar clear knowledge of whether a spouse is already married — and therefore, whether due notice must be given to the first wife before proceeding with registration.

While citing Hussain v. State of Kerala [2025 (4) KHC 314], the Court clarified that the Registrar has no power to adjudicate on the validity of the marriage, but cannot ignore procedural fairness:

“…the Registrar is not vested with the power to decide the validity of the marriage. The question is, when a muslim man marries again, when his first wife is alive and the marital relationship with her is in existence, the second marriage can be registered as per the Rules 2008 behind the back of the first wife. The Holy Qur’an is silent about the consent of the first wife for the second marriage to a muslim man when the earlier marriage is in existence. However, it does not prohibit the option of obtaining consent from the first wife, or at least informing her before he marries again. Equality in gender is a constitutional right of every citizen. Men are not superior to women. Gender equality is not a women’s issue, but it is a human issue. As I mentioned earlier, the principles derived from the Holy Qur’an and Hadith collectively enjoin principles of justice, fairness, and transparency in all marital dealings. Therefore, I am of the considered opinion that, if a Muslim man wants to register his second marriage in accordance with the Rules 2008, when his first marriage is in existence and the first wife is alive, an opportunity of hearing should be given to the first wife for the registration.” (Para 10)

Justice Kunhikrishnan: “A Muslim first wife cannot be a silent spectator”

In one of the most stirring portions of the judgment, Justice Kunhikrishnan emphasized that registration of a second marriage behind the back of the first wife would violate principles of natural justice and human dignity:

“A Muslim first wife cannot be a silent spectator to the registration of the second marriage of her husband, even though the Muslim Personal Law allow a second marriage to a man in certain situations.” (Para 10)

The Court observed that even though personal law permits polygamy, it is conditioned upon fairness and capacity — both moral and financial — to treat each wife equally. Ignoring the first wife’s perspective would amount to legalising injustice.

Gender equality as a constitutional mandate

Justice Kunhikrishnan firmly anchored his reasoning in Articles 14 and 15 of the Constitution, holding that the procedural fairness demanded by the 2008 Rules flows directly from the constitutional right to equality:

“Equality in gender is a constitutional right of every citizen. Men are not superior to women. Gender equality is not a women’s issue, but it is a human issue.” (Para 10)

The judgment went beyond mere procedural compliance and addressed the emotional dimension of injustice suffered by first wives:

“I am sure that 99.99% of Muslim women will be against their husband’s second marriage when their relationship with him is in existence. They may not disclose the same to society. However, their feelings cannot be ignored by a court, at least when their husbands attempt to register the second marriage in accordance with the Rules 2008. Article 14 of the Constitution says that the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.” (Para 10)

This humane acknowledgment of emotional agency — rare in judicial discourse — underlines the Court’s empathetic understanding of women’s lived realities within personal law frameworks.

What Happens if the First Wife Objects?

The Court provided clear procedural guidance for registrars and litigants. If the first wife objects to the registration of a second marriage, the Registrar must not proceed with registration and must refer the matter to a competent civil court:

“If the first wife objects to the registration of the second marriage of her husband, alleging that the second marriage is invalid, the registrar shall not register the second marriage, and the parties should be referred to the competent court to establish the validity of the second marriage as per their religious customary law. As I mentioned earlier, there is nothing in the holy Qur’an which mandates a man to get permission from his first wife for his second marriage. However, Customary Law is not applicable when the question of registering a second marriage arises. I am not saying that the second marriage cannot be registered, but an opportunity of hearing should be given to the first wife by the statutory authorities, while a second marriage of a Muslim man is to be registered.” (Para 10)

Balancing Faith and Law: The Constitutional Synthesis

Perhaps the most profound aspect of Justice Kunhikrishnan’s judgment is the synthesis it achieves between faith and fundamental rights. While reaffirming that Islam does not mandate consent from the first wife for a second marriage, the Court held that when registration under a secular statute is sought, constitutional guarantees must take precedence:

“Customary Law is not applicable when the question of registering a second marriage arises. I am not saying that the second marriage cannot be registered, but an opportunity of hearing should be given to the first wife by the statutory authorities, while a second marriage of a Muslim man is to be registered. Muslim Personal Law states that a man can have more than one wife, provided that he has the capacity to maintain more than one wife and can give justice to his first wife. If the husband is neglecting the first wife or not maintaining the first wife, or inflicting cruelty on the first wife and thereafter contracting a second marriage, making use of his Personal Law, an opportunity of hearing to the first wife will be beneficial to her at least when the second marriage is registered in accordance with the Rules 2008. marriage registration officer can hear the first wife, and if she objects to her husband’s second marriage, stating that it is invalid, the parties can be referred to a competent civil court to establish the validity of the second marriage.” (Para 10)

Outcome and broader implications

The writ petition was dismissed as the first wife had not been made a party. Nonetheless, the Court issued a transformative directive:

“Let the Muslim women also get an opportunity of hearing when their husbands remarry, at least at the stage of registering the second marriage.” (Para 10)

The ruling thus extends procedural protection to Muslim women within a statutory framework that transcends personal law — ensuring that no woman is blindsided by a state-sanctioned act of erasure.

Why this judgment matters

1. Reasserts constitutional supremacy: Personal law cannot override statutory procedure or fundamental rights when interfacing with state authorities.
2. Advances gender justice: By recognizing the first wife’s right to be heard, the Court has extended procedural dignity to Muslim women.
3. Bridges faith and constitution: It integrates Islamic principles of justice and fairness with the Constitution’s egalitarian ethos.
4. Sets a model for inclusive procedure: The decision creates a precedent for harmonizing personal law practices with secular regulatory frameworks.

Conclusion

Justice Kunhikrishnan’s ruling is a landmark in both family law and constitutional jurisprudence. It acknowledges the validity of personal law while firmly situating all state-recognised acts within the boundaries of constitutional morality, equality, and natural justice.

In essence, the judgment transforms a narrow question of registration into a broader affirmation of women’s rights and human dignity. It is a model of judicial craftsmanship that blends empathy with principle — reaffirming that in India’s constitutional democracy, faith may guide conduct, but fairness must govern the law.

The complete judgment may be read here.

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Shah Bano Begum (1916-1992): A Socio-Political Historical Timeline

Misogyny & Faith: Extreme narratives curtailing the autonomy of women

Shubha case: Reformative Justice meets Gendered Realities

Andhra Pradesh High Court rules Trans woman is a ‘woman’

A Question of Rights: Supreme Court backs teacher in maternity leave dispute

The post Kerala High Court: First wife must be heard before registering Muslim man’s second marriage appeared first on SabrangIndia.

In 2023, India reported 5,272 “Offences against the State”, a decrease from 6,062 in the previous year. During this period, independent monitors, journalists, and lawyers also reported an increase in arrests, summonses, and investigations under the Unlawful Activities (Prevention) Act (UAPA) and the National Security Act (NSA). This contradiction suggests a pattern, suggesting the state is becoming better at not reducing conflict, but reclassifying dissent. What is not present in the data is often present in imprisonment, in FIRs filed under vague provisions, and in the long silences in the periods between bail hearings.

Counting the Uncounted

The category “Offences Against the State” used by the NCRB is conceptually neutral. It combines old offences of sedition, UAPA, breaches of official secrets, and offences against public order categories into one statistical grouping — thereby obscuring the legal distinction between offences, which have divergent political meanings. By reporting a decline without disaggregation, the NCRB holds out a possibility of “national calm”.

Field reporting tells a different story. In UP, over 260 people were booked under UAPA between 2020-2023 for affiliations with alleged banned organizations or protests. In Assam, about 240 UAPA cases were filed, most against ordinary villagers for alleged “extremist sympathies.” In Jammu & Kashmir, local officials confirmed over 400 preventive detentions under the Public Safety Act (PSA) in 2023, but the NCRB reported zero sedition or communal violence cases (and the only cases of communal violence reported under “Offences Against the State” came from UP).

The absence of sedition or communal offences amongst J&K’s tables is not statistical levelling; it is political theatre. When it ceased to report on communal violence after 2017 and discontinued hate crime data due to “unreliability”, the NCRB removed its capacity to log dissent and identity-based repression. The state achieves its calm through bureaucratic design: what is not coded does not exist.

The Geography of Dissent

In India, oppression has been increasingly localised. The national claim of 13% (decrease) in “Offences against the State” obscures serious variations at the state level. Uttar Pradesh, Assam, Manipur, and Jammu & Kashmir — states under direct or close control of the centre — accounted for over half of UAPA registrations.

For example, in Manipur, where ethnic violence resulted in over 200 deaths and displaced 60,000 residents, the NCRB classifies the killings under “riots” and “arson,” not “communal or ethnic violence.” By using lost naming conventions, the NCRB ignores assessing the political roots of the conflict, by framing a breakdown of civil war-like norms as a disturbance of law and order. The ongoing case in Assam, where the government has expanded the use of the UAPA to include dissent and protect values of citizenship after protests against the Citizenship (Amendment) Act, includes student leaders and journalists arrested for lengthy periods that vanish into their generic form of “public disorder.”

The city creates a paradoxical calm by reframing the law. Its NCRB numbers are a model of stability because the repression is distributed across other sections of law. Delhi is an example of national law enforcement priorities: bureaucratic calm, obscuring political repression.

Delhi: The Capital of Control

According to the NCRB’s 2023 data in Delhi, there were just six cases under UAPA, and a few others under sedition- numbers which starkly contrast with all that we know about cases in relation to the 2020 anti-CAA protests, the farmers’ protests, and the arrests of students in Delhi University and their teachers. The Delhi police, which is a part of the Ministry of Home Affairs, has become a model of a censorship state for centralization of dissent: students arrested for conspiracy, comedians questioned for satire, protest organizers charged for “rioting” rather than “offences against the state”.

Journalists like Meer Faisal and Qazi Shibli have been called for questioning on multiple occasions; students such as Devangana Kalita and Asif Iqbal Tanha, who were held in remand in the Delhi riots conspiracy case, remain on trial under UAPA even though the evidence against them is tenuous, and judgments have pushed back against what appears to be prosecutorial overreach.

This way of representing counts permits the data from Delhi to paint a picture of a city governed well, which permits dissent, free expression, and fun within the law. The lived experience tells a different story, of a city policed not through clampdown but through the ever-present threat of surveillance, summons, and social media judicial action.

Hence, Delhi’s repression is expressed through bureaucratic restraint rather than overt cruelty. It is the capital of restraint—a city where peace is created through paper.

The Architecture of Silence

This illusion created by the NCRB falls into a fourfold architecture of reclassification, omission, preventive detention, and digital suppression, all meant to turn repression into bureaucratic routine.

Maharashtra exemplifies reclassification. The NCRB mentions one UAPA and one sedition case in its comparable figures for 2023, while the Bhima Koregaon prosecution is ongoing in the court system. The difference isn’t that there were fewer arrests, but rather changed categorization—political matters labelled as public disorder. At the same time, the Bureau has refrained from noting lynchings or hate crimes since 2017, removing entire categories of violence from the national bookkeeping. What cannot be counted cannot be questioned.

Preventive detention exacerbates this silence. In Jammu & Kashmir, over 400 individuals were placed in preventive detention under the PSA in 2023, without any of them being charged under UAPA nor sedition. This too can be said for temporary curfews or travel restrictions that never lead to even a formal FIR. Digital control fulfils the architecture of silence. India had more than 80 internet shutdowns in 2023, with the highest in the world (https://www.accessnow.org/wp-content/uploads/2024/05/2023-KIO-Report.pdf). Each of these shutdowns limits the state’s violence from being documented and, therefore, the NCRB can write its next report everyone is in peace. Thus, the Bureau’s data, is, then, not a neutral mirror of crime and thus, a curated reflection of governance—a record that transforms coercion into an order.

Freedom on Paper

The judiciary occasionally intervenes to disrupt this silence, rarely dismantling it. In Patricia Mukhim v. State of Meghalaya, the Supreme Court quashed a criminal process pursued against journalist Patricia Mukhim, alleging that she incited enmity against the government by posting on Facebook about government inaction after communal violence erupted in Shillong. The police charged her under Sections 153A and 505 of the IPC for reportedly promoting enmity, but the Court concluded that the post was calling out for equality and accountability, and importantly, this call for accountability was an act protected by Article 19(1) (a) of the Constitution. The Court held, in line with its previous jurisprudence, that the rights to critique failures of government action is part of democratic discourse, and criminal law should not be employed to silence legitimate expressions of concern.

The disjunction is enhanced by the NCRB’s silence. The NCRB does not treat any of these prosecutions as “Offences Against the State, even though they indicate how dissent is managed in reality. By treating repression as unquantifiable, the Bureau sustains the illusion of order. In the national ledger, India appears peaceful because the noise has been intentionally erased. The fewer number of offences reported, the more successful it is reported to be in maintaining peace—not by freedom, but by silence.

Reading the Decline

A 13% decrease in “Offences against the State,” reported by the NCRB, is not evidence of tranquillity; it is evidence of repression managed through a suppression of data. The numbers convey a political culture in which repression is managed through administrative, legal, and digital means. The selective reporting of cases in Delhi, the statistical black hole of J&K, and the removal of entries under ‘hate-crime’ all combine to form a national tableau of calm, entirely upon paper.

India’s democratic crisis is now one of a repressive silence. The state can operate without overt censorship; it can operate with hollowed out categories. Once dissent disappears from official stats, accountability collapses into nothingness. The NCRB’s spreadsheets do not report a reality; they curate one.

To truly understand Crime in India 2023 is to recognize that the state has mastered the art of anticivilization reflecting in the official statistics. Every absent number is an absent story; every decline is evidence of a faltering democracy. The fewer the number of offences reported, the less physical space for dissent there is. Being silenced, in India’s democracy today, is not evidence of peace—it is policy.

Related

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

The Myth of Neutral Data: The Disappearance of Communal Violence in NCRB Data

Inexplicable delay in release of NCRB figures

Hate Surges in India, Reveal Disturbing Shifts in Patterns

The post Silence in the Statistics: What NCRB data won’t tell you about dissent appeared first on SabrangIndia.

A Division Bench comprising Chief Justice G. Narendar and Justice Subhash Upadhyay, while hearing Noor Jahan v. State of Uttarakhand, on October 29, 2025, instructed the Investigating Officer (IO) to file an action taken report by November 6, and to remove any inflammatory social media posts related to the incident.

The court’s direction came in response to a protection petition filed by Noor Jahan, the wife of Nasir, a local driver who was brutally assaulted on October 23 after rumours spread that he was transporting beef in his vehicle. The petition alleges that Madan Joshi, a local BJP leader and former president of the party’s Ramnagar City Unit, went live on Facebook, falsely claiming that cow meat was being transported — an act that allegedly incited a mob to attack Nasir.

“Lawlessness in Full Display”: Petitioner seeks CBI probe and police protection

According to the petition, reported by LiveLaw, Nasir’s vehicle was stopped by a crowd incited through Joshi’s Facebook Live. The mob allegedly dragged Nasir out, beat him with stones and kicks, and livestreamed the assault. Instead of rushing him to a hospital, the police are accused of taking the severely injured man to the police station first.

Noor Jahan described the episode as “a glaring example of complete lawlessness,” adding that it represented “cow vigilantism in utter disregard of the Supreme Court’s directions in Tehseen S. Poonawalla v. Union of India (2018).” She also claimed that since the incident, her family had been receiving threats of dire consequences from unidentified persons.

The plea sought a CBI investigation, police protection, and strict enforcement of the Supreme Court’s mob-lynching guidelines, along with compensation for her husband, who continues to receive treatment for severe injuries.

High Court’s order

The High Court’s order, though brief, is a sharp indictment of selective law enforcement and impunity in cases involving political actors. While the Deputy Advocate General informed the Bench that two of the assailants had been arrested, the Court pressed for a full update on the investigation and warned that compliance on removal of inflammatory posts must be shown at the next hearing.

The case will now be taken up on November 6, 2025, when the police are required to submit their action taken report. The Bench’s insistence on immediate removal of hate content marks an important judicial intervention in the digital dimension of communal violence — where misinformation and Facebook Live broadcasts often act as catalysts for mob action.

Selective accountability

The Ramnagar attack adds to a growing pattern of cow-vigilante violence in Uttarakhand’s Kumaon region, where rumours and Facebook Live videos frequently precede communal flare-ups. As Citizens for Justice and Peace has documented, local vigilante groups often operate under tacit political patronage, with little deterrence from police.

The petition cites the Supreme Court’s landmark judgment in Tehseen S. Poonawalla v. Union of India (2018), which mandated states to curb mob lynching, appoint nodal officers, and ensure prompt FIRs and victim protection. Yet, as Noor Jahan’s case reveals, implementation remains largely on paper.

The High Court’s intervention also reignites a broader question — why politicians accused of hate or incitement rarely face swift prosecution, even when evidence is public. While citizens, journalists, and activists are often booked for online speech, leaders accused of fanning communal hatred enjoy impunity. As legal commentators note, this “selective policing of speech” corrodes faith in the rule of law.

The complete order may be read here.

Related:

Madhya Pradesh Muslim man lynched in Rajasthan’s Bhilwara: Family alleges religious targeting masked as cow vigilantism

Rising Cow Vigilante Violence: Muslim truck drivers targeted across states amid police inaction

2024: July and August see surge in cow vigilantism with brutal assaults, raids based on rumours and targeting of Muslims while legal consequences for perpetrators missing

November 2024 Surge in Cow Vigilantism: Rising Violence and Legal Apathy in North India

The post Uttarakhand HC pulls up police over mob attack in Ramnagar, seeks action against BJP leader for inciting communal violence appeared first on SabrangIndia.

Delivered by a Division Bench of Chief Justice Ramesh Sinha and Justice Bibhu Datta Guru on October 28, the ruling attempts to establish a fierce boundary between religious propagation (protected under Article 25) and “conversion by inducement” (termed a “social menace”), but critically fails to protect the constitutional rights of a targeted minority group. The judgment’s most scathing indictment lies not in its rhetoric against exploitation, but in its procedural abdication that validated the exclusion of citizens based on their faith, thereby establishing a worrying precedent for the fragmentation of India’s secular citizenship.

“When it becomes a calculated act of exploitation disguised as charity, it undermines both faith and freedom. The so-called “conversion by inducement” by certain missionary groups is not merely a religious concern, it is a social menace that threatens the unity and cultural continuity of India’s indigenous communities. The remedy lies not in intolerance, but in ensuring that faith remains a matter of conviction, not compulsion.” (Para 26)

Context and background

The petitions arose from a series of Gram Sabha resolutions and hoardings erected at the entry points of several villages in Kanker district, proclaiming a ban on the entry of Christian pastors and those who had converted. These villages, falling under the Fifth Schedule of the Constitution and governed by the Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA), justified the move as a safeguard against “forced” or “induced” religious conversions allegedly targeting impoverished tribal populations.

Practising Christians challenged the resolutions, arguing that they infringed upon their fundamental rights under Article 25 (freedom of religion) and Article 19(1)(d) (freedom of movement) of the Constitution. They contended that while Gram Sabhas are empowered to preserve cultural heritage, their authority remains subject to the overarching supremacy of constitutional rights. The petitioners also cited a 2025 government circular encouraging protection of “Jal, Jangal, Jameen” (water, forest, and land), alleging that this had been misused to legitimise discriminatory hoardings.

The State, however, defended the Gram Sabhas, invoking the PESA Act and the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968, whose validity had been upheld by the Supreme Court in Rev. Stanislaus v. State of Madhya Pradesh (1977). It argued that the Gram Sabhas were merely exercising their statutory duty to protect tribal traditions and prevent conversion through “allurement, coercion, or fraudulent means.”

Court’s Findings: Faith as conviction, not compulsion

In its detailed judgment, the Bench observed that “conversion by inducement, manipulation, or exploitation of vulnerability” among illiterate and impoverished tribal populations had emerged as a “social menace.” The Court noted that while missionary activity in India had historically contributed to social welfare through education and healthcare, certain groups had, over time, allegedly used these as “platforms for proselytization.”

“Religious conversion has long been a sensitive issue in India’s socio-political landscape. Among the various forms of conversion, those allegedly carried out by Christian missionaries among poor and illiterate tribal and rural populations have generated particular controversy. While the Constitution guarantees every citizen the freedom to profess, practice, and propagate religion, the misuse of this liberty through coercion, inducement, or deception has become a matter of grave concern. The phenomenon of mass or motivated conversions not only disturbs social harmony but also challenges the cultural identity of indigenous communities. Missionary activity in India dates back to the colonial period, when Christian organizations established schools, hospitals, and welfare institutions. Initially, these eLorts were directed at social upliftment, literacy, and health care. However, over time, some missionary groups began using these platforms as avenues for proselytization. Among economically and socially deprived sections, especially Scheduled Tribes and Scheduled Castes, this led to gradual religious conversion under the promise of better livelihoods, education, or equality. What was once seen as service became, in many cases, a subtle instrument of religious expansion. The menace arises when conversion ceases to be a matter of personal faith and becomes a result of inducement, manipulation, or exploitation of vulnerability. In remote tribal belts, missionaries are often accused of targeting illiterate and impoverished families, oLering them monetary aid, free education, medical care, or employment in exchange for conversion. Such practices distort the spirit of voluntary faith and amount to cultural coercion. This process has also led to deep social divisions within tribal communities. Tribals converted to Christianity often adopt new cultural practices, distancing themselves from traditional rituals and communal festivals. As a result, villages become polarized, leading to tension, social boycotts, and sometimes even violent clashes.” (Para 24)

The Bench went on to say that induced conversions among Scheduled Tribes and Scheduled Castes under the promise of material betterment amounted to “cultural coercion” and disrupted traditional systems of belief, leading to polarization, social boycotts, and even violent clashes. The Court adopted a highly charged, prescriptive stance on conversion:

• The “social menace” finding: The Bench forcefully argued that conversion ceases to be a spiritual matter when it becomes a result of “inducement, manipulation, or exploitation of vulnerability,” particularly targeting “illiterate and impoverished families” of Scheduled Tribes (STs) and Scheduled Castes (SCs). This practice, according to the Court, is a subtle instrument of religious expansion that amounts to “cultural coercion” and directly causes social polarization, tension, and violence within tribal communities.
• Reaffirmation of Rev. Stanislaus: The Court heavily relied on the Supreme Court’s landmark 1977 decision in Rev. Stanislaus v. State of Madhya Pradesh, which established that the right to “propagate” religion does not include the right to convert another person by force, fraud, or allurement. This precedent was used to justify the State’s power to prohibit conversion activities.

Quoting Article 25’s guarantee of religious freedom, the Court nonetheless emphasized that this right is “not absolute” and must be balanced against the State’s duty to preserve social order and cultural integrity. The judgment reaffirmed that the right to “propagate” religion does not include the right to convert another person, as laid down by the Supreme Court in Rev. Stanislaus.

“The Gram Sabha is a constitutionally recognized body under the PESA Act and has been conferred specific powers to manage community resources and safeguard tribal traditions. These powers, however, must operate within the limits of the Constitution of India. The expression “right to propagate religion” under Article 25 of the Constitution, as interpreted in Rev. Stainislaus (supra), does not extend to converting another person through inducement, force, or fraudulent means. The Act of 1968 prohibits such activities. Therefore, a general cautionary hoarding intended to prevent illegal conversion activities cannot, per se, be termed unconstitutional.” (Para 25)

Consequently, the Court upheld the hoardings as “general cautionary measures” intended to prevent illegal conversions. It found no violation of constitutional rights in such preventive action, terming them “precautionary” and “not discriminatory.” The Court concluded that the Gram Sabhas’ action was constitutionally permissible:

• PESA empowerment: Since the Gram Sabha is empowered under PESA to safeguard tribal tradition, a “general cautionary hoarding” intended to prevent illegal conversion activities (which are already prohibited by law) “cannot, per se, be termed unconstitutional.” The Court thus accepted the ban as a necessary precautionary measure.
• Procedural non-interference: Crucially, the Court declined to exercise its Article 226 writ jurisdiction to investigate the facts, compelling the petitioners to first avail the alternative statutory remedy under Rule 14 of the Chhattisgarh PESA Rules, 2022. This process requires them to approach the very Gram Sabha that imposed the ban, followed by an appeal to the Sub-Divisional Officer (Revenue).

However, it allowed petitioners the liberty to approach the Gram Sabha or higher administrative authorities under PESA if they felt aggrieved or threatened, and directed the police to provide protection if any threat to life or liberty arose.

Critical Analysis: The peril of judicial expediency

The judgment, while purporting to protect cultural integrity, is fundamentally flawed in its application of constitutional principles, making it a dangerous legal precedent.

1. The Unproven Premise: Judicial assumption over fact

The most severe legal weakness is the Court’s tacit acceptance of the presumption of guilt without conducting a rigorous judicial fact-finding inquiry.

• Restriction based on suspicion: The Court validated the restriction of fundamental rights against an entire religious community based on generalized historical allegations and the potential for future wrongdoing, rather than proven evidence of coercion in the villages concerned. A constitutional court’s duty is to scrutinize restrictions, not sanction them on mere political or social apprehension.
• The shift from act to person: The judgment critically fails to distinguish between the prohibition of an illegal act (coercive conversion) and the prohibition of a person (the Christian visitor/pastor). The Stanislauws ruling limits the act of propagation; the Digbal Tandi ruling limits the entry of the propounder. This constitutes a substantial, disproportionate restriction on Freedom of Movement, treating an entire class of Indian citizens as prima facie offenders.

1. The abdication of writ jurisdiction

The refusal to interfere under the doctrine of alternative remedy represents a judicial evasion of responsibility in a matter involving the core rights of a vulnerable minority:

• Inadequate remedy: Directing petitioners to seek redressal from the Gram Sabha (the body that passed the exclusionary resolution) is a travesty of natural justice. The remedy is not just administrative but inherently political and majoritarian, guaranteeing a biased and ineffective outcome for the minority.
• The obligation of constitutional scrutiny: When an infringement of fundamental rights is alleged, particularly one arising from the action of a state or quasi-state body (the PESA Gram Sabha), the High Court’s writ jurisdiction is intended to be immediate and effective, not relegated to a lower, potentially partisan, forum. The Court’s decision elevates procedural expediency over constitutional protection.

1. Fragmentation of citizenship and secularism

The ruling delivers a severe blow to the principles of secularism and unified citizenship:

• Sanctioning exclusion: By validating the ban on entry based on religious identity, the judgment grants quasi-judicial sanction to social boycott and exclusion, risking the normalization of internal “no-go zones” where the rights of minorities are subject to local majoritarian veto.
• Impact on cultural choice: The judgment restricts the right to receive information and the democratic space for individuals to make informed choices about faith. While opposing coercion, the Court’s action paradoxically limits the free exercise of conscience by denying access to legitimate religious discourse and pastoral care for local Christians.

Democracy, pluralism, and the burden of proof

The Court’s invocation of cultural identity resonates deeply with the sensitivities of tribal communities, but it also raises the spectre of State-sanctioned gatekeeping of belief. India’s secular fabric, as envisioned by the framers of the Constitution, hinges on the idea that faith is a matter of individual conscience, not collective control.

By upholding village-level restrictions on the movement and presence of a particular religious group, the judgment potentially sets a precedent for decentralized discrimination — where Gram Sabhas, endowed with limited judicial oversight, can unilaterally police religious identity.

The ruling’s repeated emphasis on “conversion by inducement” as a “menace” stands on rhetorical rather than constitutional footing. It conflates missionary service work with coercion and imputes motive without inquiry. This approach, while couched in the language of cultural preservation, risks normalizing suspicion-based governance in regions already vulnerable to communal polarization.

The constitutional paradox

At its core, the judgment highlights the enduring paradox of India’s constitutional secularism: the simultaneous protection of freedom of religion and the power of the State to regulate conversion. While the Supreme Court’s precedent in Rev. Stanislaus does allow such regulation, it did not endorse blanket prohibitions or collective exclusionary acts against any community.

The Chhattisgarh High Court, by treating village hoardings as benign “precautionary measures,” overlooks the symbolic violence inherent in signage that bars a specific faith group from entering. The very idea of a “Christian-free” village space contradicts the constitutional guarantee of equality and fraternity.

A truly democratic reading of Article 25 would demand proof of coercion before restriction, not the other way around. In the absence of such proof, preventive exclusion transforms into punitive discrimination, cloaked in cultural rhetoric.

Conclusion: A troubling precedent

While the Court has refused to invalidate the Gram Sabha’s resolutions, its judgment carries implications far beyond Chhattisgarh. It redefines the limits of religious freedom by allowing collective fear to override individual liberty, and elevates cultural protection over constitutional protection.

The ruling’s caution against “conversion by inducement” echoes legitimate anxieties about exploitation, but its failure to distinguish between faith and fear, prevention and prohibition, leaves India’s constitutional secularism on uncertain ground.

In a democracy that aspires to pluralism, the line between protection and persecution must be drawn with evidence — not presumption. The Chhattisgarh High Court’s decision, though couched in legal restraint, risks reinforcing precisely the kind of intolerance it cautions against.

The complete judgment may be read below.

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