In a judgment that may become an important reference point in India’s continuing debate over liberty and national security, a Division Bench of Justice Navin Chawla and Justice Ravinder Dudeja ruled that the constitutional guarantee of personal liberty under Article 21 cannot be indefinitely subordinated to statutory restrictions on bail.

“The appellant’s rights under Article 21 of the Constitution of India need to be balanced and may even trump the restriction imposed under Section 43D(5) of the UAPA,” the Court observed, as per LiveLaw, while setting aside a December 2024 order of the Special NIA Court that had refused bail.

The ruling, however, does not immediately secure Parvez’s freedom. He continues to remain in custody because he is also an accused in a separate NIA case registered in 2020 relating to alleged terror-funding networks in Jammu and Kashmir, where his bail plea remains pending.

The case against Khurram Parvez

Parvez, one of Kashmir’s most internationally recognised human rights defenders, was arrested by the National Investigation Agency (NIA) on November 22, 2021, during an investigation into what the agency described as a Lashkar-e-Taiba (LeT) over ground worker network allegedly operated by a Pakistan-based handler known as Hyder alias Ali alias Yusuf.

Significantly, Parvez was not named in the original FIR registered by the NIA on November 6, 2021. His name emerged during the course of the investigation.

The NIA’s case is that Parvez, while functioning as Programme Coordinator of the Jammu Kashmir Coalition of Civil Society (JKCCS) and Chairperson of the Asian Federation Against Involuntary Disappearances (AFAD), was allegedly involved in terrorist conspiracy “in the guise of human rights activism.”

According to the prosecution, Parvez recruited Muneer Ahmad Kataria as an overground worker for Lashkar-e-Taiba and facilitated his introduction to Pakistani handler Hyder. Kataria allegedly recruited another accused, Arshid Ahmad Tonch, creating a chain of operatives linked to the militant organisation.

The agency further alleged that Parvez was involved in gathering sensitive information regarding Indian security installations, army camps, troop movements, road conditions near the Line of Control, and details of military and paramilitary structures. Investigators claimed that information about officers involved in counter-insurgency operations was compiled into dossiers described as “High-Ranking Perpetrators.”

The NIA also relied upon emails allegedly showing contact between Parvez and Pakistani journalists who sought footage of Indian military deployment in Kashmir.

The prosecution further pointed to Parvez’s visits to Pakistan in 2007 and 2015, where he allegedly met Syed Salahuddin, chief of the Hizbul Mujahideen and a designated terrorist. Visiting cards of Hizbul functionaries recovered from JKCCS offices were also cited as incriminating material.

Additionally, the agency alleged that Parvez played an active role during the 2016 protests that followed the killing of militant commander Burhan Wani, accusing him of making speeches including slogans such as “Burhan tere janissar, beyshumaar beyshumaar“, “Go Back India“, and “India go away from Kashmir“. According to the prosecution, these activities promoted separatist sentiment and encouraged unrest.

A separate strand of the prosecution case concerns allegations that Parvez attempted to secure the release of electronic devices seized by investigators through illegal payments routed via Muneer Ahmad Kataria to former NIA Superintendent of Police Arvind Digvijay Negi, who was later arrested in a separate corruption scandal.

The approver at the centre of the case

A critical feature of the High Court’s analysis was the centrality of Muneer Ahmad Kataria, who has since turned approver. In a supplementary chargesheet filed in July 2025, Kataria claimed that he had worked as an NIA informer since 2019 and had known Parvez since 2015. He alleged that Parvez introduced him to Hyder, described him as the “Chief Operating Commander” of the Lashkar-e-Taiba’s Jammu and Kashmir module, and facilitated financial and operational links.

Kataria also alleged that Parvez paid him Rs 1.5 lakh to be passed on as a bribe to NIA officer Arvind Digvijay Negi. The High Court acknowledged that these allegations were serious. However, it emphasised that they rested substantially on the testimony of a co-accused who had become an approver and who himself claimed to have been working as an NIA informer.

“While the above statement raises serious allegations against the appellant, these allegations are based on the statement of a co-accused who has since turned approver and who himself claims to be an NIA informer. His evidence is yet to be tested in trial,” the Bench observed in Para 66 of the judgment. That observation became one of the most significant aspects of the judgment.

The Defence: Human rights work, not terrorism

Parvez’s legal team, led by Senior Advocate Tanveer Ahmed Mir, argued that the prosecution had systematically criminalised legitimate human rights documentation. The defence pointed out that many of the documents cited by investigators—including the “Structure of Violence” report and the “Alleged Perpetrators” report—were publicly available publications that had been released years earlier and remained accessible on the JKCCS website.

The “Structure of Violence” report, published in 2015, documented military and paramilitary structures in Kashmir as part of human rights research. The “Alleged Perpetrators” report, published in 2012, compiled information about officers allegedly implicated in human rights violations, much of it obtained through Right to Information requests.

The Court noted an important fact: the prosecution did not dispute that these documents had been publicly available for years. It further recorded that the “Alleged Perpetrators” report had even been shared with the Indian Army, which publicly responded to it in 2012.

The defence also argued that Parvez’s visits to Pakistan in 2007 and 2015 were undertaken openly, with valid visas, and were part of public advocacy efforts that had long been documented in the public domain.

On the allegations relating to slogans and participation in protests, the defence argued that expressions of political dissent or advocacy of self-determination cannot automatically attract anti-terror provisions unless they cross the threshold into incitement of violence or active involvement in terrorist activity.

The constitutional question

At the heart of the case lay a broader constitutional question that has increasingly confronted Indian courts: can a person accused under UAPA be kept in prison indefinitely while waiting for trial?

Section 43D (5) of the UAPA creates one of India’s toughest bail standards. Courts are ordinarily prohibited from granting bail if the accusations appear prima facie true on the basis of the chargesheet and case diary.

The High Court devoted substantial attention to recent Supreme Court jurisprudence on this issue. The Bench revisited and relied upon the landmark decision in Union of India v. K.A. Najeeb, where the Supreme Court held that constitutional courts retain the power to grant bail when prolonged incarceration threatens fundamental rights.

Quoting extensively from Najeeb, the High Court reiterated that statutory restrictions “will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.” (Para 52)

The Court also examined the Supreme Court’s more recent judgment in Gulfisha Fatimav, which cautioned that delay alone cannot automatically justify bail in every UAPA case and that courts must conduct a contextual assessment that takes into account the nature of allegations, stage of proceedings, causes of delay and risks associated with release.

Yet the Bench also referred to the Supreme Court’s subsequent observations in Syed Iftikhar Andrabi, where a three-judge bench strongly reaffirmed the constitutional foundations of bail.

The Supreme Court had observed in Andrabi: “‘Bail is the rule and jail is the exception’ is not merely an empty statutory slogan. It is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence.”

Detailed analysis of Andrabi judgment may be read here.

The High Court further noted that although the broader question regarding the relationship between Article 21 and Section 43D (5) has now been referred to a larger Bench of the Supreme Court, existing precedent continues to bind constitutional courts.

Four-and-a-half years without trial

The factor that ultimately proved decisive was the extraordinary delay in the proceedings. The Court recorded that Parvez had been incarcerated since November 22, 2021. Despite spending almost four-and-a-half years in prison, the case had not even crossed the stage of arguments on framing charges.

The prosecution proposed to examine 197 witnesses if charges were eventually framed. The Court observed that there was “no likelihood” of the trial concluding in the foreseeable future. The judges therefore considered the allegations, the stage of proceedings, the constitutional guarantee of liberty, and the reality of the judicial process together.

” We have taken note of the above allegations and the defence of the appellant, only to highlight that they must be tested against the long period of incarceration of the appellant and the fact that there is no likelihood of the trial ending soon as also against the yardstick of bail being the rule, while denial thereof being an exception. The appellant‟s rights under Article 21 of the Constitution of India need to be balanced and may even trump the restriction imposed under Section 43D(5) of the UAPA.” (Para 71)

The Court added that continued incarceration under these circumstances raised serious Article 21 concerns.

Disability as an additional ground

The Bench also gave weight to Parvez’s physical disability. Parvez lost his leg in a landmine explosion in Kupwara in 2004 while participating in election-monitoring work and has used a prosthetic limb ever since. Although the NIA argued that his disability had not prevented him from engaging in extensive travel and activism, the Court concluded that his condition nevertheless entitled him to special consideration.

“We are also to keep in mind that the appellant is infirm. Though the learned SPP has emphasised that his infirmity has not deterred the appellant from still indulging in activities, which he describes as being anti-national, the fact remains that the appellant is infirm and deserves that special consideration,” the Bench held in Para 73.

Bail granted, but under strict conditions

Having balanced the seriousness of the allegations against constitutional concerns arising from prolonged incarceration, the Court granted bail. The conditions imposed are extensive.

Parvez must furnish a personal bond of Rs 2 lakh with two sureties, surrender his passport, remain within the National Capital Territory of Delhi unless granted permission to travel, appear before the trial court whenever required, and report periodically to investigators.

He is prohibited from contacting witnesses, tampering with evidence, making public statements about the merits of the case, or engaging in activities that could prejudice the trial. Among the more notable conditions is a prohibition on uploading, sharing, disseminating or circulating any “anti-national material” through social media or other platforms. The Court also clarified that any violation of the conditions could result in cancellation of bail.

A significant UAPA bail ruling

The judgment arrives at a moment when courts across India are grappling with a growing tension between national-security legislation and constitutional guarantees of liberty. Rather than deciding whether the allegations against Parvez are true or false, the Delhi High Court repeatedly emphasised that such questions must ultimately be resolved at trial.

Its focus was narrower but constitutionally significant: whether an individual can remain imprisoned for years while a trial remains nowhere near completion.

The Court’s answer was clear.

Even in prosecutions involving terrorism allegations, constitutional courts cannot ignore prolonged incarceration. While the allegations against Parvez remain serious and continue to be contested, the Bench concluded that constitutional guarantees of liberty, speedy trial, and due process cannot become casualties of an endlessly delayed prosecution. As the Court put it, Article 21 may, in appropriate cases, “even trump” the restrictions imposed by the UAPA.

The complete judgement may be read below:

Previous reports on the cases against Khurram Parvez may be read here.

Related:

50 HR groups appeal for unconditional release of Khurram Parvez, Irfan Meraj

MEA lashes out against OHCHR comment on Khurram Parvez’s arrest

Kashmir based human rights activist Khurram Parvez arrested

Khurram Parvez is still in jail despite court’s release order due to ‘minor clerical error’

The post Article 21 May Trump UAPA Bail Bar: Delhi High Court grants bail to Kashmiri rights defender Khurram Parvez after 4½ years in jail appeared first on SabrangIndia.

The government presents the exercise as a necessary response to illegal immigration, demographic change and national security concerns. Yet mounting evidence from court proceedings, media investigations, government directives and testimonies from affected families raises a more troubling picture: one in which due process protections appear increasingly fragile, citizenship verification procedures are often opaque, and Bengali-speaking Muslims bear the overwhelming burden of suspicion.

Detailed report may be read here.

At the heart of the controversy, lies a fundamental constitutional question: can the Indian state pursue such detention and immigration enforcement while bypassing the procedural safeguards that protect individuals from arbitrary detention, wrongful deportation and statelessness? Two, without this due process of either established legal norms or procedures not enquiries/investigations into who these illegal immigrants are, is such action not arbitrary and without foundation?

The missing data and the transparency deficit

Perhaps the most troubling aspect of the current deportation drive is not merely the scale of the exercise but the extraordinary lack of transparency surrounding it. Across Assam, West Bengal, Gujarat and other states, governments have announced deportations, detention drives and large-scale verification exercises. Yet even today, there is no publicly available dataset identifying who has been classified as an undocumented migrant, from which districts they were picked up, what evidence was relied upon, whether nationality was independently verified, how many individuals challenged those determinations, how many continue to remain in detention centres, and how many have ultimately been deported.

This absence of information is particularly striking because the consequences of these decisions are so severe. Deportation is among the most coercive powers exercised by the state. It can separate families, extinguish livelihoods, result in prolonged detention and, in some cases, leave individuals stranded in a country they insist is not their own. Yet the public is being asked to accept the legitimacy of the process without access to even the most basic information about how it is being carried out.

The opacity is all the more difficult to justify because the Union governments own deportation policy appears to contemplate extensive record keeping and reporting requirements. The policy submitted by the Ministry of Home Affairs before the Supreme Court requires state governments to maintain records of individuals handed over for deportation, submit mandatory reports to the Union government, and provides that the Bureau of Immigration shall publish information relating to deported Bangladeshi nationals and Rohingyas on a public portal for verification purposes.

Yet little of this information is publicly accessible. Speaking to Al Jazeera, civil rights activist and CJP Secretary Teesta Setalvad argued that the present campaign appears to be driven more by political rhetoric than publicly available evidence. “Even today the authorities have not made available exactly who, which families, from which locations have been identified as illegal immigrants, on what basis and assessment and then sent back,” she said. “There is also an element of targeting specific sections, particular communities.”

Her criticism points to a fundamental problem: In the absence of publicly available data, independent scrutiny becomes nearly impossible. It is impossible to assess whether those being detained and deported are in fact undocumented migrants, whether particular communities are being disproportionately targeted, whether established procedures are being followed, or whether wrongful deportations are taking place.

The demand for transparency is therefore not a procedural technicality. It lies at the heart of democratic accountability. If governments are confident that deportations are being carried out lawfully, after proper verification and in accordance with due process, then there is a compelling public interest in releasing comprehensive data regarding those detained, those housed in holding centres, those whose nationality has been verified, and those who have ultimately been deported.

Until such information is made available, one of the most far-reaching citizenship and deportation exercises in recent Indian history will continue to operate largely beyond meaningful public scrutiny.

From political slogan to state policy

For decades, the BJP has built its political narrative in eastern India around the issue of “illegal infiltration” from Bangladesh. The party has repeatedly argued that large-scale migration has altered the demographic composition of border states, strained public resources and created security vulnerabilities.

The issue has occupied a central place in BJP campaigns in Assam, West Bengal and Tripura. Senior BJP leaders, including Union Home Minister Amit Shah, have frequently described undocumented migrants from Bangladesh as a threat to national security and demographic stability. During previous election campaigns, Shah famously referred to illegal migrants as “termites“, a phrase that drew widespread criticism from civil society groups and human rights organisations. Report in The Hindu.

Following the BJP’s victory in West Bengal, these political commitments quickly evolved into administrative action. Chief Minister Suvendu Adhikari announced the implementation of a “detect, delete and deport” framework under which individuals identified as illegal migrants would be detained by state authorities and transferred directly to the Border Security Force (BSF) for deportation, as per Hindustan Times. The announcement was accompanied by instructions to establish holding centres across districts and create a streamlined mechanism for identifying and removing alleged infiltrators. What was once campaign rhetoric had become state policy.

The creation of a national deportation architecture

The developments in West Bengal are not occurring in isolation. According to documents reported by The Hindu, the Union Ministry of Home Affairs has formulated a comprehensive deportation policy requiring states to establish district-level special task forces for the identification, detention and deportation of alleged illegal migrants from Bangladesh and Myanmar. However, before the Supreme Court of India, in the ongoing Rajubala Das v. Union of India case, the deportation policy submitted before the Courts hays down more tested procedures. The same has been explained below.

The policy directs states to:

• Create dedicated holding centres or camps for undocumented migrants awaiting deportation.
• Establish a time-bound mechanism for identification and nationality verification.
• Upload biometric information and demographic data onto the Foreigners Identification Portal.
• Cancel government-issued identity documents obtained by individuals determined to be illegal migrants.
• Maintain monthly reports regarding foreigners who are untraceable, detained or awaiting deportation.
• Coordinate with central agencies to facilitate removals.

The guidelines envision a nationwide infrastructure capable of processing large numbers of suspected migrants. Holding centres are to be enclosed by ten-foot boundary walls and barbed-wire fencing. Detainees are to remain confined pending verification of nationality and completion of deportation procedures.

Although the policy states that these facilities should provide humane living conditions, medical care, educational facilities for children, communication access and recreational space, rights groups argue that the rapid expansion of detention infrastructure signals a shift towards normalising large-scale administrative detention.

A policy contradiction at the heart of the deportation drive

One of the most striking aspects of the current deportation campaign is the apparent tension between the procedures explained above and the deportation framework that the Union Ministry of Home Affairs itself placed on record before the Supreme Court.

In the Rajubala Das v. Union of India proceedings before the Supreme Court, the MHA submitted an affidavit setting out a detailed deportation policy governing the treatment of alleged undocumented Bangladeshi nationals and Rohingyas. That policy envisages a structured process involving coordination between state governments, the Ministry of Home Affairs, the Ministry of External Affairs, foreign missions and designated border-guarding forces. Crucially, it recognises that nationality cannot be assumed unilaterally and that nationality verification is a necessary component of the deportation process.

The policy specifically provides that where an alleged undocumented Bangladeshi national or Rohingya is arrested, their details are to be furnished to the Ministry of External Affairs so that the matter can be taken up with the Bangladesh High Commission or the Myanmar Embassy for nationality verification. The stated purpose is to enable the foreign government concerned to process and verify the individual’s nationality before deportation is carried out.

The same policy also requires state governments to maintain records of all individuals handed over for deportation and submit mandatory monthly reports to the Ministry of Home Affairs. It further provides that the Bureau of Immigration shall publish a list of deported Bangladeshi nationals and Rohingyas on a public portal for verification purposes.

This raises a serious question: If the deportation policy submitted before the Supreme Court contemplates nationality verification through diplomatic channels, maintenance of detailed records, mandatory reporting and publication of deportation data, how do these safeguards square with reports of alleged pushbacks, summary removals and immediate send-backs at the border?

The question becomes even more pressing in light of report that Bangladeshi and Myanmar nationals intercepted at land or maritime borders may be “immediately sent back” after their biometrics are recorded. The apparent gap between the procedures described before the Supreme Court and practices now being reported on the ground deserves far greater public scrutiny.

Detailed report on the Rajubala case may be read here.

Holding centres become operational

The practical implementation of this framework is already underway. Malda became the first district in West Bengal to operationalise a holding centre under the new policy. The facility initially housed nine individuals identified as suspected Bangladeshi nationals, including women and children.

Officials, as per The Indian Express, described the centre as a temporary facility where detainees would remain while their nationality and immigration status were verified.

However, rights advocates point out that detention itself can become punitive when individuals are confined before citizenship disputes are conclusively resolved. This concern is especially significant in border regions where documentation is often incomplete, where migration has historically occurred across fluid borders, and where linguistic and cultural similarities between Indians and Bangladeshis complicate nationality determinations.

West Bengal

West Bengal is the epicentre of the current drive. According to Chief Minister Suvendu Adhikari, the state has already deported 4,800 alleged undocumented Bangladeshi migrants through newly established holding centres in border districts. Another 836 people were reportedly being held awaiting deportation as of early June 2026, as per The Times of India.

The government has also established an expanding network of detention facilities. Initial reports indicated that 11 holding centres had been created across the state and were housing at least 335 detainees, while later reports from Malda alone suggested more than 150 detainees had already been transferred there from North 24 Parganas district.

Government officials have presented these numbers as evidence of successful enforcement. However, the figures raise significant questions. If nearly 5,000 people have been removed within weeks of the BJP assuming office, it remains unclear how many cases involved completed nationality verification by Bangladesh, how many individuals received access to legal representation, and how many removals were subject to judicial scrutiny.

Gujarat

The largest publicly reported operation outside eastern India occurred in Gujarat. Under “Operation Delta Hunt”, authorities investigated approximately 6,200 individuals and identified 362 people as alleged illegal Bangladeshi immigrants, as per The Hindu. Of these, 166 were identified in Ahmedabad alone, including women and children. Authorities also stated that investigations into hundreds of additional cases were continuing.

The Gujarat government has further indicated that it intends to prosecute employers and landlords accused of sheltering undocumented migrants.

Assam

Unlike West Bengal and Gujarat, the Assam story is not primarily reflected through new numerical announcements but through litigation. Throughout 2025 and 2026, several habeas corpus petitions before the Gauhati High Court and the Supreme Court challenged alleged “pushback” operations involving Bengali-speaking Muslims who claimed Indian citizenship. The significance of Assam lies not merely in the number of people detained but in the emergence of documented allegations that Indian citizens were wrongly identified as foreigners and transported towards the Bangladesh border.

Citizens for Justice and Peace provides legal aid in some cases, details may be read here, here and here.

The Assam cases effectively became the warning sign for what now may happen on a larger scale in West Bengal.

The May 2025 Assam crisis report may be read here.

National figures

At the national level, according to The Hindu, the Ministry of External Affairs has confirmed that India has asked Bangladesh to verify the nationality of more than 2,860 individuals whom Indian authorities believe to be Bangladeshi nationals residing illegally in India.

Simultaneously, the Union Ministry of Home Affairs has directed states to establish district-level mechanisms for the identification, detention and deportation of alleged undocumented migrants from Bangladesh and Myanmar, suggesting that the campaign is being institutionalised nationwide rather than remaining confined to border states.

The human cost of wrongful deportation

Few cases illustrate the dangers of inadequate verification more clearly than that of Sunali Khatun. Reported extensively by BBC News, Khatun, a Bengali-speaking Muslim woman from West Bengal, was detained in Delhi alongside her husband and young son on suspicion of being an undocumented migrant. Authorities alleged that she lacked proof of lawful residence and initiated deportation proceedings. According to her account, officials failed to properly verify her claim that she was an Indian citizen from West Bengal. She, her husband and child were subsequently transported to Bangladesh. Once there, Bangladeshi authorities treated them as illegal entrants and imprisoned them. The family spent months in detention.

Detailed report on this case may be read here.

Only after intervention by the Supreme Court was Sunali permitted to return to India on humanitarian grounds while her citizenship claims continue to be examined. Her husband remains stranded in Bangladesh.  The case exposed the potentially catastrophic consequences of administrative errors in citizenship determination. A mistaken deportation is not simply an immigration decision. It can separate families, result in imprisonment in another country and effectively strip individuals of their nationality.

Due process concerns

The central criticism of the current deportation campaign is not that states lack authority to remove foreign nationals. Every sovereign state possesses the power to regulate immigration and deport individuals who are unlawfully present. The issue instead concerns the process by which such determinations are being made.

Under established principles of administrative fairness and constitutional governance, individuals facing deportation should ordinarily have:

• Notice of the allegations against them.
• Access to documentary evidence.
• An opportunity to challenge adverse findings.
• Legal representation.
• Independent verification of nationality.
• Judicial oversight where fundamental rights are implicated.

The recent practices, however, often fall short of these standards. Reports from Assam and West Bengal suggest that detention frequently precedes verification rather than following it. In several cases, families have alleged that individuals were forced to prove citizenship after already being taken into custody. Such an approach effectively reverses the burden of proof and creates significant risks of wrongful exclusion.

Detailed report on deportation process may be read here.

Religious selectivity and the Citizenship Amendment Act

The controversy is further complicated by the interaction between deportation policy and the Citizenship (Amendment) Act. The CAA provides a pathway to citizenship for Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan who entered India before the prescribed cut-off date. Muslims are excluded.

Chief Minister Suvendu Adhikari has repeatedly emphasised that communities covered by the CAA will not face action under the deportation framework. Those outside its protection, however, remain vulnerable to detention and deportation. Two individuals entering India under similar circumstances may face radically different legal consequences depending upon their religious identity.

This concern is particularly acute because the overwhelming majority of those targeted by current deportation drives are Bengali-speaking Muslims.

Bangladesh pushes back

The crackdown has also generated significant diplomatic friction. Bangladesh has repeatedly objected to what it describes as attempts by Indian authorities to push individuals across the border without completing formal nationality verification procedures.

As per The Indian Express, Border Guard Bangladesh (BGB) officials have publicly stated that they blocked numerous attempts by Indian authorities to send individuals into Bangladesh without prior verification.

Bangladesh’s Foreign Affairs Adviser, Shama Obaid, has stated that Dhaka has repeatedly communicated its concerns to New Delhi and insisted that existing bilateral mechanisms must be followed. The position of Bangladesh is straightforward: no person should be accepted unless their nationality has first been verified. India officially maintains that deportations occur only through established procedures.

Ministry of External Affairs spokesperson Randhir Jaiswal has stated that India has submitted details of more than 2,860 suspected Bangladeshi nationals to Dhaka for verification. Yet the persistence of Bangladeshi objections suggests continuing disagreements regarding implementation.

The demography committee

The deportation drive is now being supplemented by a broader effort to study demographic change. The Union Government recently established a high-level committee chaired by retired Supreme Court judge Justice Prakash Prabhakar Naolekar to examine demographic shifts allegedly caused by illegal migration and other factors. The committee’s mandate extends beyond research.

It has been tasked with recommending systems for identifying, detaining and deporting undocumented migrants and proposing mechanisms for strengthening border management and population monitoring. Its creation fulfils a commitment made by Prime Minister Narendra Modi and reflects the growing centrality of demographic concerns within government policy.

However, the language surrounding the committee has generated concern. Government statements describe demographic change arising from migration as an “unnatural” phenomenon and a “monumental challenge”. Such framing risks treating entire communities as demographic threats rather than as individuals possessing rights and legal protections.

Detailed report may be read here.

A constitutional test

India unquestionably has the authority to regulate immigration and remove foreign nationals who have entered or remained unlawfully. But citizenship determination is among the most consequential exercises of state power.

A mistaken arrest can be corrected. A mistaken deportation can leave a person stateless, imprisoned in a foreign country or permanently separated from family members. The experiences documented in Assam, the wrongful deportation allegations, Bangladesh’s repeated protests over alleged pushbacks, the establishment of detention infrastructure across West Bengal and the government’s push towards a nationwide deportation architecture collectively point to a deeper concern. The issue is no longer merely immigration enforcement.

It is whether the Indian state can pursue that objective while respecting the constitutional guarantees of fairness, equality and due process. As detention centres multiply, deportations accelerate and citizenship verification becomes increasingly securitised, the challenge confronting India is not simply identifying who belongs. It is ensuring that, in the process of deciding who does not, the state does not abandon the rule of law itself.

Related:

India’s Silent Push-Out: Courts, states, and the deportation of Bengali-Speaking Muslims

Gauhati HC orders clarity after state cites deportation of ‘Wrong Doyjan’ in alleged ‘pushback’ case, demands specific reply on her whereabouts

SC stays deportation of woman declared foreigner, issues notice on challenge to Gauhati HC Order

Contradictory Calls: SC halts one Tamil refugee’s deportation, denies another citing ‘not a Dharamshala’

Gauhati HC directs State to confirm custody or deportation of two men detained in midnight police action in Assam

Assam govt to SC: 33/63 of those marked for ‘deportation’ are contesting ‘foreigner’ status in courts

The post Who decides who belongs? Detention, deportation and the crisis of due process appeared first on SabrangIndia.

The judgment, delivered by Justice Neena Bansal Krishna on May 29, 2026, represents a comprehensive rejection of the allegations that formed the basis of nearly six years of investigation into the news portal’s foreign investment transactions. The Court not only found that the allegations failed to disclose the commission of any cognisable offence but went considerably further, characterising the proceedings as mala fide, arbitrary and an abuse of investigative powers directed against independent journalism.

The Court observed:

“Not only are the present proceedings only mala fide, but also an arbitrary attack and abuse of powers on the free and impartial journalism of the Petitioners.” (Para 121)

The finding is remarkable both for its breadth and for the language employed by the Court. While courts frequently examine the legality of investigations, it is comparatively rare for a constitutional court to explicitly connect the exercise of investigative powers with concerns regarding press freedom and the functioning of independent media.

The Background: Foreign investment, criminal allegations and ED action

The case arose out of an investment received by PPK Newsclick Studio Pvt. Ltd., the company operating NewsClick, from US-based Worldwide Media Holdings LLC.

According to the allegations, NewsClick received approximately USD 1.5 million, amounting to around ₹9.59 crore, in April 2018 through a share subscription arrangement. The EOW alleged that the shares had been deliberately overvalued in order to circumvent restrictions governing foreign direct investment in news media entities. It was further alleged that the funds received through the investment were siphoned away through salaries, consultancy fees, rent and other operational expenditures.

Based on these allegations, an FIR was registered in August 2020 under Sections 406, 420 and 120B of the Indian Penal Code. Shortly thereafter, the Enforcement Directorate registered an Enforcement Case Information Report (ECIR) under the Prevention of Money Laundering Act (PMLA), treating the offences alleged in the FIR as scheduled offences capable of triggering a money laundering investigation.

The ED subsequently conducted extensive searches and seizures, raided NewsClick’s offices and the residences of journalists associated with the platform, and repeatedly summoned Purkayastha and other employees for questioning.

However, after examining the factual and legal basis of the allegations, the High Court concluded that the prosecution’s case suffered from fundamental defects at every stage.

No FDI restriction existed in 2018

The central allegation underlying the prosecution’s case was that NewsClick had received foreign investment in violation of restrictions applicable to news media organisations.

The Court found that this allegation was fundamentally misconceived. The judgment records that before receiving the investment, NewsClick had sought clarification from the Ministry of Information and Broadcasting regarding the applicability of foreign investment restrictions to online news platforms. In response, the Ministry clarified on January 5, 2018 that online publication through websites and web portals did not fall within the ambit of print media.

Relying on this clarification, the Court observed that there was no cap on foreign investment in digital news platforms at the time the investment was received.

The Court held:

” From the response received from the Ministry in respect of FDI Policy, it was clearly evident that there was no cap on the online publication of news and thus, the Agreement between the Petitioner and M/s Worldwide Media Holdings LLC and, therefore, the Investment Agreement dated 20.03.2018 cannot be said to be in violation of any law or disclosing any criminal offence. The receiving of 1.5Million USD that were remitted on 11.04.2018 in exchange of 7.69% shares of the Petitioner Company.” (Para 70)

Consequently, the Investment Agreement dated March 20, 2018 and the remittance received on April 11, 2018 could not be said to violate any law or disclose any criminal offence. This finding strikes at the heart of the prosecution’s case. The allegation that NewsClick structured the investment to evade foreign investment restrictions necessarily depended on the existence of such restrictions. Once the Court concluded that no cap existed at the relevant time, the principal basis of the investigation effectively collapsed.

The Court rejects the share overvaluation theory

The investigating agencies also alleged that NewsClick had deliberately overvalued its shares in order to facilitate the foreign investment transaction. The Court found no substance in this allegation.

The judgment records that the company had obtained a valuation certificate from BGJC Associates LLP, which assessed the fair value of the shares at ₹9,188 per share in accordance with FEMA requirements. The Court noted that there was no allegation of manipulation or illegality in the valuation exercise itself.

The final investment was made at a higher value after negotiations between the investor and the company. The Court observed that the share price was mutually agreed upon after considering the prospects and growth potential of the company. Significantly, the Court refused to criminalise what was essentially a commercial decision.

Justice Krishna observed:

“It is an economic decision which does not spell out any criminal offence.” (Para 73)

The Court further accepted the company’s explanation that the valuation had been undertaken through the Discounted Cash Flow method, an internationally recognised valuation methodology accepted under Indian regulatory frameworks.

The judgment therefore draws a clear distinction between commercial valuation disputes and criminal wrongdoing, holding that the former cannot automatically be transformed into the latter in the absence of evidence of fraud or deception.

The allegation of siphoning funds was found untenable

Another major plank of the prosecution’s case was the allegation that foreign investment received by NewsClick had been siphoned away through salaries, consultancy fees, rent and other operational expenditures. The Court rejected this allegation outright.

Justice Krishna observed that these expenditures were entirely consistent with the functioning of a digital media organisation and represented ordinary business expenses incurred in the course of running the company. The Court held that even if one were to assume that excessive expenditure had been incurred, that fact alone would not disclose the commission of a criminal offence.

The judgment states:

“Even if it is accepted that there were over payments and excessive expenditure incurred by the Petitioner, then too it does not disclose any criminal offence. The allegation of siphoning is, therefore, not tenable.” (Para 76)

This finding effectively dismantled the prosecution’s attempt to portray routine operational expenditure as evidence of criminal activity.

The RBI’s findings undermined the investigation

One of the more significant aspects of the judgment concerns the Court’s treatment of material received from the Reserve Bank of India. The Court noted that an earlier status report prepared during the investigation recorded that the RBI had informed investigators that the foreign remittance had been received through the automatic route and that there had been no delay in the issuance of shares or compliance with reporting requirements under FEMA.

According to the judgment, the RBI had stated that:

” Significantly, one Status Report dated 26.07.2021, copy of which was forwarded to the Petitioner as an advance copy, though not placed on record, clearly stated that during the course of investigation a Reply from RBI had been received wherein it was mentioned that as per the Form FCGPR, the foreign inward remittance was under automatic route and there was no delay in issue of shares as well as reporting, as per the extant FEMA regulations in case of the Petitioner.” (Para 77)

The Court noted that this material was subsequently withdrawn from later status reports. Nevertheless, it held that the correspondence was sufficient to indicate that no FEMA violations had been established against the company. The observation significantly weakened the prosecution’s attempt to portray the investment as unlawful.

The allegation that the investor was non-existent failed

The State had also alleged that Worldwide Media Holdings LLC did not legally exist and that the transaction was therefore fraudulent. The Court found that the allegation was unsupported by the material on record.

The company explained that although an earlier entity bearing the same name had been dissolved under Delaware law, a new company with the same name had subsequently been incorporated. The Court noted that nothing had emerged during the investigation to establish that the entity which invested in NewsClick was non-existent. Indeed, the status reports filed by the investigating agencies were largely silent on this aspect. The allegation therefore failed to withstand judicial scrutiny.

No offence of cheating was made out

Having examined the factual allegations, the Court proceeded to analyse whether the offences alleged in the FIR were legally sustainable. With respect to Section 420 IPC, the Court observed that the offence of cheating requires the existence of a person who has been deceived and dishonestly induced to part with property.

In the present case, the investor itself had never alleged that it had been cheated. Worldwide Media Holdings LLC had not lodged any complaint against NewsClick and no material emerged during the investigation suggesting that any person had been deceived.

The Court observed:

” For the offence of cheating, it is necessary that there must be an aggrieved person who has been cheated out of his valuable property. In this case, M/s Worldwide Media Holdings LLC is the entity which had forwarded 1.5 Million USD to the Petitioner. However, there is no Complaint whatsoever, by the Company about having been cheated by the Petitioner. Pertinently, the Complaint had been made by one Shoban Singh, who was merely an informant and was not the aggrieved person. There is nothing which has emerged even during the investigations as reflected in the Status Report, that there was any person who was aggrieved or who was cheated by the Petitioner. The offence of cheating even if all the allegations made are admitted, is not established.” (Para 83)

Accordingly, the essential ingredients of cheating were absent.

No criminal breach of trust either

The Court reached a similar conclusion regarding the allegation under Section 406 IPC. Justice Krishna observed that criminal breach of trust requires entrustment of property and its subsequent misappropriation. Neither requirement was satisfied in the present case.

The transaction between NewsClick and Worldwide Media Holdings LLC was an investment in exchange for shares. The Court held that such a transaction could not, “by no stretch of interpretation,” be characterised as entrustment or misappropriation. Consequently, the offence under Section 406 IPC was also found to be absent.

The Court concluded:

” Even if all the allegations are accepted, no offence under 406 or 420 IPC is disclosed in the FIR and in the subsequent investigations that have been undertaken.” (Para 85)

The Court rejects the ED’s conspiracy argument

Recognising the weakness of the allegations under Sections 406 and 420 IPC, the Enforcement Directorate sought to rely on Section 120B IPC, arguing that the investment transaction itself constituted a criminal conspiracy involving Purkayastha and the foreign investors.

The Court was unconvinced. It noted that criminal conspiracy requires an agreement to commit an illegal act or a legal act through illegal means. The material placed before the Court disclosed neither. The allegations of conspiracy were unsupported by evidence and amounted to little more than assertions.

Justice Krishna therefore held:

“ From the reply of ED, it is evident that the allegation that there is a clear-cut existence of a scheduled offence, is totally misconceived and baseless.” (Para 117)

This finding proved fatal to the ED’s case because the existence of a scheduled offence is a jurisdictional prerequisite for invoking the PMLA.

A “fishing and roving exercise” without any offence

Perhaps the most severe criticism in the judgment should be directed at the manner in which the investigation was conducted. The Court noted that years had passed since the registration of the ECIR. Numerous summons had been issued. Purkayastha and various employees had repeatedly joined the investigation. Searches had been conducted and extensive inquiries had been undertaken. Yet no material establishing the commission of a criminal offence had emerged.

The Court concluded:

“ Two years have passed since the registration of impugned ECIR in 2022. The Petitioner No. 2 and various employees of Petitioner number one have joined investigations on numerous occasions in 2021, after which they have not been summoned even once between September 2021 to June 2022. The manner in which the investigations have been conducted clearly show that the same is a fishing and roving exercise in the financial affairs of the Petitioners without the existence of any offence.” (Para 119)

The observation goes beyond a criticism of investigative shortcomings. It reflects the Court’s conclusion that the investigation itself lacked a legally sustainable foundation.

Quashing the FIR and the ECIR

Having found that the FIR disclosed no offence under Sections 406, 420 or 120B IPC, the Court held that its continuation amounted to a “gross abuse of the process of law.” The FIR was accordingly quashed.

Once the FIR fell, the ECIR could not survive. The Court reiterated the settled principle that where the predicate offence is quashed, the corresponding money laundering proceedings must also fall. The ECIR registered by the Enforcement Directorate was therefore quashed in its entirety.

Why the judgment matters

The significance of the judgment extends well beyond the immediate relief granted to NewsClick and Prabir Purkayastha. The Court did not merely find gaps in the evidence. It found that the allegations themselves failed to disclose criminal offences. It rejected the factual premises underlying the investigation, dismantled the legal basis for the offences invoked, and questioned the very foundation of the ED’s exercise of jurisdiction under the PMLA.

Most significantly, the Court linked the proceedings to broader concerns regarding press freedom, concluding that the case represented not only a legally unsustainable prosecution but also a misuse of investigative powers against independent journalism.

In doing so, the judgment stands as a significant reaffirmation of a basic constitutional principle: that criminal law cannot be invoked merely on suspicion, and that the extraordinary powers of investigation available to the State must remain anchored to an identifiable offence supported by law and evidence.

The complete judgment may be read here.

Detailed reports on cases against Prabir Purkayastha may be read here and here.

Related:

NSA slapped on journalist, DU scholar in Noida workers’ protest case amid allegations of crackdown on dissent

J & K: Attempt to muzzle FoE, Media? Police summons to media, journalists

“This system breaks the body when it cannot break the spirit” — Ipsa Shatakshi on her jailed husband, journalist Rupesh Kumar Singh

How the noose tightened: understanding modus operandi of killers who took the life of journalist-activist, Gauri Lankesh

Assam: Journalist Dilwar Hussain Mozumdar detained for 12 hours, arrested after covering protest against an alleged recruitment scam involving key BJP leaders

The post No Crime, No Predicate Offence, No ED Case: Delhi High Court quashes proceedings against NewsClick appeared first on SabrangIndia.

Khurram Parvez was arrested close to five years ago, in a case registered against him by the National Investigation Agency (NIA) under the Unlawful Activities Prevention Act (UAPA) for alleged terror funding, conspiracy and recruiting persons for the terrorist organisation Lashkar-e-Taiba (LeT). Parvez was arrested in the case on November 22, 2021 from Srinagar. He was remanded to judicial custody on February 25, 2022, following series of police custody remands.

On December 19, 2024, the date he filed the appeal, Parvez had been in custody for a total period of roughly 3 years and 1 month. Today –when the judgement is finally delivered–the period of incarceration totals 4 years and 7 months. It took a year and six months for disposal of a bail appeal in the Delhi HC!

The NIA alleged that a network linked to the banned terrorist organisation Lashkar-e-Taiba (LeT) recruited Over Ground Workers (OGWs), gathered intelligence on security installations and facilitated terror funding. Parvez was arrested during the investigation, although he was not named in the original FIR. According to the charge sheet, the allegations against him were that he recruited OGWs for LeT, collected information regarding the movement and structure of the Army, had links with Pakistan-based terrorist organisations, and instigated protests following the killing of Burhan Wani in 2016.

Khurram’s appeal however strongly argued that the prosecution’s case against Parvez was unsupported by evidence and that he is a “factual stranger” to the larger conspiracy alleged by the NIA. It was also Parvez’s case that there was no digital evidence showing his contact with members of any proscribed terrorist organisation and that no call detail records were collected regarding the alleged meeting between him and co-accused Muneer Ahmad Kataria.

Parvez also argued that he is a human rights activist and was the Programme Coordinator and Spokesperson of the Jammu Kashmir Coalition of Civil Society (JKCCS) and also the Chairperson of the Philippines-based Asian Federation against Involuntary Disappearances (AFAD), which campaigns on the issue of enforced disappearances. In his appeal, Parvez said that he was a factual stranger to the alleged conspiracy and that the investigators had failed to establish any contact between him and LeT operatives or members of any banned organisation. He stated that an examination of digital devices seized from him revealed no communication with alleged handlers or evidence of recruitment of overground workers.

He also rejected the allegations that his past visits to Pakistan demonstrate links with proscribed organisations, stating that the trips were undertaken publicly as part of humanitarian and advocacy initiatives, including campaigns against landmines and enforced disappearances.

In his bail application, Khurram Pervez argued that there was no evidence that Parvez passed sensitive military information to any terrorist operative and that there was no allegation linking him to any alleged terror-funding money trail.  Counsel for Pervez included senior advocate Tanveer Ahmed Mir, along with Ms. Swati Khanna, Ms. Raminder Kaur, Mr. Md. Imran Ahmad, Mr. Shahzad Khan and Mr. Kartik Venu. The bail plea was filed through advocate Kartik Venu.For the NIA, advocates Mr. Rahul Tyagi, SPP, Ms. Priya Rai, Mr. Shubham Goyal, Mr. Jatin Khatri, Mr. Amit Rohila appeared.

Related:

Supreme Court refers UAPA bail jurisprudence to larger bench; grants interim bail to Tasleem Ahmed and Khalid Saifi in Delhi riots conspiracy case

UAPA is a Very Unjust Law in Terms of Bail…Almost Like a Life Sentence: Anand Grover

J’khand HC grants bail to UAPA accused as no link to Al-Qaeda established

The post UAPA: Delhi HC grants Bail to Kashmiri activist Khurram Parvez after close to 5 years in alleged terror funding case appeared first on SabrangIndia.

In its final judgement, the Court held that hate speech is “fundamentally antithetical” to Constitutional values of fraternity. It also found hate speech at odds with the ethos of Indian civilisation that are best captured by the maxim “vasudhaiva kutumbakam”. While the Court pronounced these notions splendiferously in the obiter, the operative part of the judgement remained minimal when it came to reliefs sought by the petitioners. Speech delivered by persons in positions of high political influence was also high in vitriol and the discrimination and harm test. As a result of the judgement dated April 26, BJP politicians and ministers Anurag Thakur and Kapil Mishra remain judicially uncensored for their inciteful conduct as have other protagonists who have contributed to a fragile social climate where, religious minorities most especially live in constant fear of harm, attack and acts of overt discrimination.

This piece analyses how and where the Supreme Court limited itself in this case. Before doing so, we examine hate speech itself. We contextualize how the efforts towards making a breakthrough in jurisprudence in understanding and tackling speech that causes harm (hate speech) –including the 267^th Law Commission Report—have been qualitatively diffused by this final verdict of the Supreme Court.

What is Hate Speech?

Hate speech is any speech that attacks a person or group on the basis of their race, ethnicity, religion, gender, sexuality, or any other characteristic. It can be subtle or overt, and can have a profound impact on the targets of the speech. Primarily hate speech reduces the social standing of a particular group in the society. Hate speech can lead to stigmatisation, societal discrimination, physical and other kinds of harassment, and violence, including gendered violence where women and children are vulnerable. Hate speech creates a climate of intimidation, fear and division in society.

As per Jeremy Waldron, hate speech damages two related qualities. Firstly, he argues that it affects inclusivity. In pluralist democracies, we observe a milieu of different identities living together forming a heterogeneous social fabric. In such social fabrics, inclusiveness entails an assurance to each person that they can lead a regular life in the polity without facing “hostility, violence, discrimination or exclusion by others.” Secondly, he contends that dignity is damaged by hate speech too. Dignity as defined by him is one’s “basic [and equal] social standing… as a proper object of society’s protection and concern”. Hate speech—as we defined earlier—pierces through the heart of these values. Hate speech, ontologically, is a type of speech that aggressively shows groups as “others” by belittling them. At this juncture, it is important to note that speech, at least on some level, is constitutive of social reality. The existence of certain forms of expression makes a noticeable difference to the environment in which we live our lives. In an environment that is marred with hate speech the message of ‘exclusion’ and ‘hostility’ becomes part of the very look of that environment (becomes an intrinsic feature of that society), and thus breaks down the assurance of inclusiveness and damages dignity of groups.

Issues that have dogged the Courts, given the high decibel hate speech that India has been witnessing are evident in several judgements, analysed by the 267^th Law Commission Report (Chairman was Justice B.S. Chauhan). This report is itself worth a reference read as it analyses evolving hate speech jurisprudence the world over. We recommend that you read this report that is available here. Submitted by the Law Commission to the Ministry of Law and Justice on March 23, 2017, this critical document was made available to the public only on August 16, 2022.

Infact it was the orders passed by the Supreme Court in Pravasi Bhalai Sangathan v. UOI, 2014 that led to the 267^th Law Commission Report on Hate Speech in the first place.

Pravasi Bhalai Sangathan v. UOI

This was the first case of recent times that made some breakthrough in outlining the harm and discriminatory components that qualify hate speech. In Pravasi Bhalai Sangathan v. Union of India (2014), the Supreme Court was called to adjudicate, on merits, a PIL requesting it to frame guidelines prohibiting political hate speech. The court owing to the doctrine of Separation of powers, delegated this task to the Law Commission of India. However, while deferring the case the Court made certain observations that laid down the legal framework for hate speech laws vis-à-vis free speech. The Court then went on to hold that

“Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.”

(Paragraph 7)

By putting “marginalisation and delegitmis [ation]” as the fulcrum of determining hate speech, the Court effectively, held dignity and equality to be the grundnorm that speech must respect. It further clarified that hate speech is not directed towards individuals, or rather, is not about personal offence. It is as a matter of fact, an offence against a people. The Court goes on to adopt a consequentialist approach and lays down that hate speech has “societal impact” that could lead to violence. Hence, it establishes a causal link between speech and its (violent) reactions. Lastly, the Court says that hate speech is anathema to democracy.

This judgment lays the stepping stone for the “Proactive approach” that Supreme Court adopts in dealing with hate speech for the next few years.

This report by CJP, that may be read here, calls for a re-look at the provisions on hate speech, calling for a definition that takes into account recent jurisprudence and moves away from the colonial construct in Indian penal laws

Amish Devgan v. UOI

Another judgement, both recent and relevant, is the 2020 Amish Devgan v Union of India. Here, the Supreme Court was called upon to quash FIR filed against TV journalist Amish Devgan who had allegedly made derogatory remarks against an Islamic saint. The Court denied the relief. However, while refusing to quash the FIR the Court gave further directions on how to classify hate speech;

“The ‘context’, as indicated above, has a certain key variable, namely, ‘who’ and ‘what’ is involved and ‘where’ and the ‘occasion, time and under what circumstances’ the case arises. The ‘who’ is always plural for it encompasses the speaker who utters the statement that constitutes ‘hate speech’ and also the audience to whom the statement is addressed which includes both the target and the others. Variable context review recognises that all speeches are not alike. This is not only because of group affiliations, but in the context of dominant group hate speech against a vulnerable and discriminated group, and also the impact of hate speech depends on the person who has uttered the words. The variable recognises that a speech by ‘a person of influence’ such as a top government or executive functionary, opposition leader, political or social leader of following, or a credible anchor on a T.V. show carries a far more credibility and impact than a statement made by a common person on the street.” …

(Para 51)

“Further, certain categories of speakers may be granted a degree of latitude in terms of the State response to their speech. Communities with a history of deprivation, oppression, and persecution may sometimes speak in relation to their lived experiences, resulting in the words and tone being harsher and more critical than usual. Their historical experience often comes to be accepted by the society as the rule, resulting in their words losing the gravity that they otherwise deserve. In such a situation, it is likely for persons from these communities to reject the tenet of civility, as polemical speech and symbols that capture the emotional loading can play a strong role in mobilising. Such speech should be viewed not from the position of a person of privilege or a community without such a historical experience, but rather, the courts should be more circumspect when penalising such speech.”

(Para 51)

While seemingly obvious, the Court in this case gives a crucial direction about contextualisation when deciding on hate speech. The Court recognises two realities. Freedom of expression as a facilitator in a diverse and plural society, critical to equality and free thought within a democracy. However, just like a regular marketplace, the marketplace of ideas is also rife with inequalities. These inequalities include limitations in access, opportunity and socio-cultural status: persons with executive/political influence, journalists, and public figures command a much wider reach and audience. Hence, when such public figure spew hate speech, the impact is significantly higher, ergo they should be more cautious. Second, the Court humanises the speaker and the audience. In most cases, the social standing of the speaker and the audience is different; certain communities have a historic disadvantage while others hold a dominant position in society even today. Subsequently, the Court gave a wider margin of speech to the marginalised communities owing to their lived realities and historic experiences; it further conceded that hate speech made by dominant group against vulnerable groups has a significantly more impact.

While recognising these realities, the Court did its job in tailoring a hate speech jurisprudence that is suitable with the Indian social structure blemished with caste, religious differences and patriarchy. These two previous judgements laid the foundation for a proactive approach against hate speech. They will continue to guide future legal interventions.

Coming back to the 267^th Law Commission that remains a crucial and seminal document for anyone who wishes to engage with hate speech. After a close and thorough examination of the Constituent Assembly debates, Indian constitutional courts jurisprudence and International law (a crucial reference), the Law Commission recommends that measures which limit or restrain freedom of speech and expression, may/can do so when the “three-part test” is justified [(UN HRC, “General Comment 34” One Hundred and Second Session July 11-29, 2011 (July 21, 2011)]:

i) Measure/s must be prescribed by law;

ii) Measure must satisfy legitimate aims;

iii) Measure must be necessary to achieve its stated aim and must be proportionate to the harm that it attempts to prevent or redress. The standard of proportionality in this context has also been understood to include a requirement for minimum impairment of the right being restricted, i.e., the restriction must not do any more damage to the right than is absolutely necessary to meet its aim. [Necessity and proportionality]

Finally, the 267^th Law Commission Report makes relevant and sharp recommendations. Concluding that the Supreme Court, in the case of Pravasi Bhalai Sangathan v. Union of India & Ors., AIR 2014 SC 1591, observed that the issue of hate speech deserved deeper consideration by the Law Commission of India. Quoting the Court, the Law Commission stated that “…we request the Law Commission to also examine the issues raised herein thoroughly and also to consider, if it deems proper, defining the expression “hate speech” and make recommendations to the Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of whenever made”.

The Law Commission quoting the Supreme Court referred to its consistent clarifications that directions are issued only when there appears to be a total vacuum in law, i.e. “complete absence of active law to provide for the effective enforcement of basic human rights”. In case there is inaction on the part of the executive for whatsoever reason, the court has always stepped in to discharge its constitutional obligation to enforce the law. The Court further observed “in case of vacuum of legal regime, to deal with a particular situation, the court may issue guidelines to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.”

Given the above observations and directives of the Supreme Court in the Pravasi Bhalai Case, “the Commission considered the laws on hate speech in various jurisdictions, judicial pronouncements of the Supreme Court and the High Courts and analysed the existing provisions relevant to the subject matter. “Consequently, the Commission made concrete suggestions.

“The Law Commission suggests amendments to the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 by adding new provisions on ‘Prohibiting incitement to hatred’ following section 153B IPC and ‘Causing fear, alarm, or provocation of violence in certain cases’ following section 505 IPC, and accordingly amending the First Schedule of the CrPC.”

These suggestions have been put together in the form of the Commission’s Report No. 267 title “Hate Speech”, which was submitted for consideration by the Government in March 2017.

What did the Union Government do, however?

The present government, in its first term in 2017, is currently in its third. While the Law Commission found, previous sections in the Indian Penal Code (IPC) –Section 153a, 153b, 153c and 505 of the Indian Penal Code (IPC) wholly inadequate in identifying and prosecuting the growing corrosive phenomenon of hate speech and recommended legislative additions through amendments. The newly implemented Criminal Laws, the Bharatiya Nyaya Sanhita (BNS) 2023 broke no new ground and completely bypassed or ignored both the Supreme Court and Law Commission.

In fact, the new criminal laws, that were hurriedly rushed through Parliament while 146 Members of Parliament were suspended, with no amendments being discussed not entertained –and no referrals to a Joint Select Committee as is the norm. Infact the new criminal laws had been evolved in a secretive fashion by a “Committee” consisting of former Vice Chancellor, National Law University, Delhi (NLUD), Professor Srikrishna Deva Rao, present VC, NLUD, GS Bajpeyi and advocate Mahesh Jethmalani, Rajsya Sabha member, Bharatiya Janata Party (BJP). That such a committee also ignored Supreme Court judgements with clear-cut directions on sections in our law for prosecuting hate speech, as also the Law Commission’s 267th Report is the moot point.

Read this CJP’s Report on Comparisons between the IPC/CRPC and BNSS here. The new criminal laws dealing with the subject matter are simply not sufficient to cope with the menace of ‘Hate Speeches’. Hate/derogatory/inflammatory speech has not been defined in the new Bharatiya Nyaya Sanhita 2023 and neither in any other penal law. An opportunity to amend our laws to the betterment of a diverse society has been lost.

It is in this context, and failure by the executive, again, that the journey of the present litigation, interim orders and then the final judgement dated April 26, 2026 needs to be understood and read.

In the Interim: Several Preventive Orders to Curb Hate Speech

The backdrop to multiple Interim Orders lies in petitions filed before the Supreme Court arising from the Haridwar Dharam Sansad of December 2021, at which Hindu religious leaders made genocidal calls against Muslims. These petitions, filed by journalist Qurban Ali, former Patna High Court Judge Anjana Prakash, activist Tushar Gandhi, and advocates Firoz Iqbal Khan and Harpreet Mansukhani Saigal, were clubbed together and heard by a bench of former Justice K.M. Joseph and Justice B.V. Nagarathna (Tushar Gandhi vs. Rakesh Asthana).

In September 2022, a bench comprising of J K.M Joseph and Hrishikesh Roy (in Ashwini Kumar Upadhyay vs. UOI) expressed serious concern at unregulated television news channels and directed the Union of India to state on affidavit whether it intended to legislate against hate speech in line with the Law Commission’s 267th Report.

Shaheen Abdullah and Suo Moto FIRs: In October 2022, the same bench (J K.M Joseph and Hrishikesh Roy) in Shaheen Abdullah vs. UOI passed a watershed order in these clubbed matters directing the Governments of Delhi, Uttarakhand, and Uttar Pradesh to take suo-moto action against any hate speech crime without waiting for a complaint, warning that failure to act would be contempt of court. The order may be found here.

In January 2023, in the Tushar Gandhi contempt petition, a bench of CJI Chandrachud and Justice Narasimha pulled up the Delhi Police for taking five months to register an FIR against Sudarshan News editor Suresh Chavhanke, who had administered a violent oath to make India a Hindu Rashtra, in violation of the earlier Tehseen Poonawalla directions. The Order can be found here.

On February 3, 2023, the bench of former Justice Joseph and Justice Pardiwala passed preventive orders in the Shaheen Abdullah matter. Hearing a plea against a proposed Sakal Hindu Samaj rally in Maharashtra, the Court recorded the state government’s undertaking that the meeting would only be permitted if no hate speech was made, directed the police to invoke Section 151 CrPC for preventive arrests if necessary, and ordered that the event be video-recorded. In a visible on-ground effect of this order, the Uttarakhand government refused permission to a Dharam Sansad in Roorkee. This order may be found here.

On April 28, 2023, in the matter of Ashwini Kumar Upadhyay vs Union of India, the Court extended this suo moto FIR obligation from Delhi, Uttarakhand, and Uttar Pradesh to all States and Union Territories. The order for such extension may be found here.

On August 2, 2023, a special hearing was convened in the Shaheen Abdullah matter following anti-Muslim violence in the Nuh district of Haryana triggered by a Bajrang Dal and VHP procession. A bench of Justices Sanjiv Khanna and SVN Bhatti directed the Delhi Police and the governments of Delhi, Uttar Pradesh, and Haryana to ensure no untoward incident took place at upcoming VHP rallies and to video-record events in sensitive areas. This order may be found here.

Moving towards “practical and effective” steps to curb hate speech

On August 25, 2023, the same bench (Sanjiv Khanna and SVN Bhatti) in the Ashwini Kumar Upadhyay Matter urged “practical and effective” steps to implement earlier directions and sought compliance reports from States on the Tehseen Poonawalla Judgement (2018) requirement to designate a Superintendent of Police-rank nodal officer in each district. This order can be found here.

Responding to this, in November 2023 the Ministry of Home Affairs filed an affidavit confirming that 28 States and Union Territories had appointed such nodal officers. An order of November 29 then directed nodal counsel to prepare a consolidated chart of all pending petitions and their prayers. This order may be found here.

In January 2024, a freshly constituted bench of Justices Sanjiv Khanna and Dipankar Datta directed the District Magistrate and Superintendent of Police in Yavatmal (Maharashtra) and Raipur (Chhattisgarh) to take appropriate steps to prevent hate speech at upcoming rallies of the Hindu Janajagruti Samiti and BJP MLA T. Raja Singh. This order may be found here.

Throughout all these orders, while the Court consistently refused to grant pre-emptive gag orders on rallies, it simultaneously imposed obligations on the State to take effective measures. This is the proactive approach in its fullest expression, not the silencing of the speaker, but the activation of the State as a guarantor of inclusive public space.

Detailed report on previous Supreme Court’s orders in this case may be found here and here.

The Gavel Falls: 2026 Judgement in Ashwini Kumar Upadhyay vs Union of India

Facts:

The 2026 judgement of Ashwini Kumar Upadhyay vs Union of India saw a sharp departure from this proactive approach. The judgement delivered clubbed all the above-mentioned petitions in its scope and adjudication.

To better understand this departure let us look at the facts of the case, and what the Court was called to adjudicate on. The petitioners, from various parts of the country, filed 13 writ petitions seeking a range of reliefs. These included directions to the Centre to implement the Law Commission’s 267th Report, directions to stop the dissemination of fake news and communally biased media content, directions to lodge criminal cases against persons committing violence against minorities, and issuance of a continuing mandamus to ensure registration of FIRs in hate speech cases. Some petitions pertained to specific incidents, such various alleged hate speeches made by public figures across different States including “desh…….” by Anurag Thakur.

In addition to the writ petitions, several contempt petitions were also filed. These alleged violation of the Court’s interim orders (as noted above) dated October 21, 2022 and April 28, 2023, both of which had directed authorities to take suo moto action against hate speech without waiting for a formal complaint.

This reveals that Indian citizens have always been on the forefront of combatting hate speech. From filing cases seeking specific reliefs that prevent hate speech to calling Court to formulate hate speech guidelines. Indian citizenry has consistently voiced its concern over legitimisation of escalating hate speech and strongly condemned it. However, in this case it was the Court that showed a marked reluctance in taking the requisite action against hate speech.

Decision:

The Court held that there exists no legislative vacuum and the pre-existing penal framework is sufficient to address hate speech. Further, it stated that no contempt proceedings could be initiated against the police for not taking suo moto actions, as it would be an overbroad interpretation of the Order that mandated such suo moto actions. Lastly, the Court dismissed filing of an FIR against the two accused citing that “no cognizable offence” can be made out.

Analysis of the Findings by the Court

On the question of legislative vacuum and need for hate speech laws

Herein, firstly, the Court had to decide whether there exists a legislative vacuum with respect to hate speech law that could prompt the Court to order guidelines or ask the government to bring in specific laws combatting hate speech. The Court declined the plea and held that Indian Criminal law has sufficient laws dealing with hate speech and therefore, no legislative vacuum exists that could prompt the Court to take any action. The Court makes no referral or mention of the developments in its own court (Pravasi Bhalai..) that led to the 267^th Report of the Law Commission and its detailed findings and recommendations. By passing this jurisprudence, the Court has done little justice to a corrosive phenomenon that is negatively impacting the equality and dignity of millions of marginalised Indians.

In Para 37, the Court held that “several provisions which penalise acts that promote enmity between different groups, outrage religious sentiments, or disturb public tranquillity [exist]”, later the Court goes on to list the provisions of the IPC that cover the previously mentioned. Now, with respect, this is where the Court’s understanding of hate speech is lacking. Hate speech is not necessarily the same as “outraging religious sentiments” or “disturbing public tranquillity”; these are separate offences that have separate requirements. The Court here has conflated these offences with hate speech, and owing to the confusion, held that there exists no legislative vacuum.

The Court mentions Section 124A, 153A, 153B, 295A, 298, and 505(2) of the Indian Penal Code to be covering hate speech.

Section 124A criminalises sedition. Sedition is a fundamentally different act as compared to hate speech, the former deals with inciting violence against the country while the latter is about lowering dignity of a people. Sedition laws clearly have nothing to do with hate speech (as also highlighted by the Law commission’s report on hate speech in paragraphs 6.19 & 6.20).

Further, Section 153 and 505 disallows promotion of feeling of enmity, hatred or ill will between different religious or racial or language or regional groups or castes and communities and doing acts prejudicial to maintenance of harmony. While prima facie it seems to prohibit hate speech, the judicial interpretation of these provisions show a different picture. Moreover, to repeat the aspect of impact and intent in causing harm and denial of equal rights and dignity –aspects dealt with at length in Pravasi Bhalai and subsequently the 267^th Law Commission Report, have been left un-mentioned in this verdict.

On the question of Contempt Proceedings against Authorities

Secondly, the Court was called to decide whether contempt proceedings should be initiated against the Police in pursuance to its own order dated April 28, 2023. As per the Order the police was expected to file a suo moto complaint against hate speech whenever an instance comes across them. Any failure or hesitation on the part of the authorities in complying with the previously mentioned directions would be viewed seriously and may attract proceedings for contempt of Court. In pursuance of this Order, several petitioners asked for the contempt proceedings to be started against the responsible authorities. However, the Court denied the plea and held,

“The element of “hesitation” or failure to act despite knowledge of a cognizable offence is a sine qua non for invoking the contempt jurisdiction of this Court. In cases where the petitioner has not even approached the authorities or placed the relevant material before them, it would be wholly inappropriate to infer disobedience or “hesitation” on the part of the authorities. In the absence of such foundational facts, the contempt jurisdiction cannot be invoked.”

(Paragraphs 159 & 160)

The Court therefore held that in the absence of material placed before the authorities, it can be assumed that the authorities had no knowledge, and therefore, it could not be said that they were hesitant in starting proceedings against the accused. This reluctance or failure to hold police authorities responsible for such egregious conduct (hate speech) can only add to the prevalent climate of impunity. Previous and several Orders by the Supreme Court, it is mandated for police to “monitor” and “videotape” speeches in sensitive areas where there is a likelihood of utterance of hate speech. Now, in the final judgement, the Court’s failure to initiate action on the police authorties’ failure or reluctance to act, the Court permits inaction on such crimes committed. In doing so, it failed to take into account its own Orders that mandated monitoring of rallies and speeches by the police. The authorities now can, refuse to monitor the rallies where hate speech is made and claim immunity from contempt proceedings that arise out of their inaction by simply pleading ignorance. In essence, it appears that the Court made non-compliance with its previous order (monitoring) as a defence to contempt proceedings in instances of no suo moto action being taken!

On the question of appeal of Delhi High Court’s Order [“no cognizable offence made out”]:

The Supreme Court was also required to check the correctness of the Delhi High Court order that dismissed the Writ petition pleading the High Court to file FIR against Anurag Thakur and Parvesh Varma. Before we analyse the Supreme Court’s response to the appeal, it is pertinent to first look at the High Court’s order.

Owing to the bar on prosecution of public servants under Section 197 of the CrPC (that is without sanction granted by the executive), the magistrate refused to file an FIR against Anurag Thakur and Parvesh Verma as there was no “prior sanction” to prosecute the public servant as required in Section 197. The writ in the High Court dealt exclusively dealt with this question of jurisdiction, i.e., “the only question for consideration before this Court is limited to the extent of adjudicating whether the [Magistrate] has rightly dismissed the complaint [owing to lack of sanction]” The High Court, congruent to the Trial Court, did not delve into the merits of the complaint. Hence, neither the Trial Court nor the High Court adjudged whether the contents of the speech itself made by the accused constituted the crime of hate speech. The High Court on the question of jurisdiction sided with the Trial Court’s finding and held that no FIR could be filed wanting sanction. It is in this backdrop, that the Supreme Court’s was required to examine the speeches themselves

The Supreme Court in this appeal, did, overrule the High Court’s finding on the question of jurisdiction. The High Court had incorrectly concluded that government sanction needed to be obtained before a Magistrate could direct the police to register an FIR under Section 156(3) CrPC.

The Supreme Court clarified that this requirement of prior sanction only kicks in at the later stage of a court taking cognizance of an offence; it has no application at the earlier stage of simply setting the criminal justice process in motion through FIR registration.

Later, however, in Paragraphs 136-138 of the Supreme Court judgement when the Court starts to assess the merits of the complaint, we find several evasions. The Court held that “the High Court has, on an independent assessment, held that the speeches in question do not disclose the commission of any cognizable offence, observing that the statements were not directed against any specific community nor did they incite violence or public disorder” (Paragraph 136). This is, with respect, factually incorrect. The High Court had not taken any independent assessment of the speech, it merely dealt with the jurisdictional (procedural) aspect of the complaint and had not paid any heed to the content of the speech. In the following paragraph,

“Upon a careful consideration of the material placed on record, including the alleged speeches, the status report dated February 26, 2020 submitted before the Trial Court, and the reasons recorded by the courts below, we are in agreement with the conclusion that no cognizable offence is made out.”

(Para 137 of the Supreme Order).

The Court again, with respect, is mistaken in these considerations. At the cost of repetition, neither the Trial Court nor the High Court had held that “no cognizable offence is made out” while adjudicating on the content of the speech. Both Courts had merely limited themselves to the question of jurisdiction. In any case, merely agreeing with the Order of the lower Courts without giving any reasoning violates the principles of natural justice. Fundamental natural justice principles require that the Court provides some (not necessarily lengthy) reasoning for agreeing with the lower Court’s decisions. However, in this instance, the Supreme Court has overturned the legal basis of the High Court’ Order yet, without providing any reason, agreed with the outcome.

While arriving at its conclusions, the Court stated,

 “Accordingly, while we disapprove the reasoning adopted by the High Court on the issue of prior sanction, we find no ground to interfere with the ultimate conclusion” (Paragraph 138).

The reason previous Courts had held that no FIR could be filed against the accused is only on grounds of the lack of jurisdiction. The Supreme Court held that the jurisdiction was proper, and the police could file an FIR against the accused without the sanction. The natural course of action here would then have been delving into the merits of the complaints or ordering the Magistrate to delve into the merits of the complaints. The Supreme Court however does neither. It absolves itself of providing any reasons for its decision by simply holding that “[there] are no grounds to interfere”.

The Court here, in effect, gives a clean chit to the accused without any application of judicial mind to the actual content of the speech, which makes out an alleged offence. At no level of judiciary was there an application of judicial mind to the content of the impugned speech. Despite that, the accused have got “a clean chit.”

Keeping in mind that the Court did not delve into content of the impugned speech, it is important for us to independently examine the speech by the two main accused can, at all, be classified as hate speech.

I. Anurag Thakur

Location: Delhi

Date: January 27, 2020

Link: <https://www.groundxero.in/wp-content/uploads/2020/07/Delhi_riots_Fact_Finding_2020_compressed.pdf>

 “These [Protestors at Shaheen Bagh] are Traitors to our Country, Shoot them”

Anurag Thakur, a prominent member of the Bharatiya Janata Party (BJP) in his infamous speech had called for killing of the supposed “traitors” of the Country. Before we delve into the call for outright physical violence, it is pertinent to decode the euphuisms used, as context is very important in determining hate speech as held by the Amish Devgan judgment. The backdrop of the speech was the protestors at Shaheen bagh who were peacefully protesting against the Citizenship Amendment Act, 2019. It is very evident from the context of the speech that the traitors referred to in the speech are these protestors, none else.

Most of the people who were involved in these protests at Shaheen Bagh were Muslims. Anurag Thakur deliberately invokes the slur, calls Shaheen Bagh protestors as “traitors” of the Nation and several times ask the crowd to echo his call for violence, making a clearly inciteful speech. By calling for violence against these protestors in a charged environment (that are largely Muslims demographically), Thakur indirectly calls for violence against Muslims at large.

Moreover, Thakur was a Union Minister of State when he uttered these statements. Therefore, his statements had the potential to have far-reaching consequences owing to both the reach and influence that politicians yield. These are important considerations when classifying hate speech applying the Amish Devgan Judgement.

II. Parvesh Verma

Location: Delhi and ANI News (Cable network through TV)

Date: January 28, 2020 & January 27, 2020

Link: <https://www.groundxero.in/wp-content/uploads/2020/07/Delhi_riots_Fact_Finding_2020_compressed.pdf>

“They will enter into your homes. They will abduct your women and rape and kill them.”

[Via TV on ANI News]

Parvesh Verma uses verbal imagery the protestors at Shaheen Bagh (largely Muslims) to instil fear in the audience. He remarks that these protestors will barge into the Hindu homes, kill, and rape Hindu women. This communally charged sentence aims at fear mongering. This is also intended to create division and disharmony between the two communities.

“If my government is formed in Delhi, then give me only one month’s time. Will not leave any mosque built in my constituency on government land, I will remove them all.”

[Via TV on ANI News]

This statement is ipso facto inflammatory, communal and a threat to Muslims. By calling for destroying all the mosques in Delhi, Varma is intimidating and threatening Muslims of Violence at large. Parvesh Verma is a politician with great reach and influence, this reach is amplified by the fact that his first two impugned statements came via Television, meaning his speech could have been accessed immediately by millions of people. This becomes an important consideration in determining hate speech.

“If the BJP comes to power in Delhi, we will clear Shaheen Bagh of all protestors within 1 hour. Not a single person will be visible.”

This statement does not require much explanation. It is direct threat to violence against the protestors of Shaheen Bagh. These statements carry greater weight as they were uttered by an influential person. He is currently the Deputy Chief Minister of Delhi.

It is these three aspects of the final judgement (a. failing to give any directions on combatting hate speech, b. failing to initiate contempt proceedings c. and giving clean chit to the accused), that we can discern a clear shift in the Court’s approach during the adjudication of these cases, over five years. Interim Orders were proactive, the final judgement status quo-ist. Despite several and specific complaints, the Supreme Court chose not to take any action against hate speech.

The Court missed an important opportunity here to carve out specific directions to combat hate speech, neither did it attempt to fill up the legislative vacuum.

The Law Commission of India in its 267^th Report recognised this legal vacuum and had recommended adding specific sections to strengthen the law(s) dealing with hate speech. Worse, the Court watered down its own previous order that required suo moto actions against instances of hate speech.

By shifting the onus on complainants to file FIRs the Court restored the status quo and negated its own previous directions wherein it had placed the onus squarely on the shoulders of the authorities to prevent and take action against hate speech. Lastly, by giving a clean chit to the particular accused without even an examination into the content to merit of the speeches, the Court has set an undesirable precedent.

In the final judgement, the judges have over dozens of pages warned against dangers of hate speech in a democratic societies, in fact, the judgement had a specific section titled “Epilogue: An ode to ‘Fraternity’ in the Preamble vis- à-vis the idea of ‘vasudhaiva kutumbakam’”.

Yet, by failing to issue specific directions, it has not acted on its own wise words. Finally, this verdict will act not as a check but a possible enabler wherein influential protagonists can get away with their inflammatory speeches. Though the judgement recognises that politicians have a special duty to be mindful of their words owing to the wide reach and influence they have, the Court stops short of ensuring any accountability. The overall impact of this judgement on the hate speech jurisprudence in India is limiting. Instead of listing sharp directives to the executive to act, even directing he legislature to examine the legislative lacuna, the Court has missed an excellent opportunity.

Though India, experiences, on an average,  five instances of hate speech occurring every day, these may well continue without check. In choosing general observations over specific actionable directive, the Supreme Court, also known as the “Court of last resort” has caused an acute disappointment.

The complete judgment of the Supreme Court may be read here:

Interim Orders in these cases from September 2022 to January 2024 may be found here:

The High Court Judgement in the matter may be read here:

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

Related:

India Hate Lab Report 2025: How Hate Speech has been normalised in the public sphere

BNS 2023 does nothing to bring in a nuanced effective understanding of Hate Speech, making its prosecution even more difficult

Supreme Court in 2023: Several steps forward, miles to go in the fight against hate

Hate Speech and the Supreme Court: From constitutional alarm to institutional closure

Hate Speech by BJP’s Top Brass fuelled Build Up to Delhi Violence: Minorities Commission

The post The Supreme Court blinks when it comes to Hate Speech appeared first on SabrangIndia.

The verdict brings to a close one of the most significant constitutional controversies concerning electoral administration in recent years. While the judgment conclusively answers the question of whether the Election Commission possesses the authority to undertake a SIR, it leaves several substantive concerns unresolved. The challenge before the Court was never confined merely to the legality of electoral roll revision. Rather, it centred upon whether an exercise ostensibly intended to identify eligible electors had, in practice, transformed into a process requiring already registered voters to re-establish their entitlement to remain on the electoral roll, thereby blurring the distinction between verification of electoral eligibility and an unregulated (by law or authority) scrutiny of citizenship.

While upholding the ECI’s powers, the Division Bench simultaneously issued a series of directions intended to regulate the consequences of deletions arising from the SIR exercise. Yet it is within these directions themselves that some of the most difficult constitutional questions continue to persist

The sudden introduction and expansion of SIR and the deletion of crores of electors

One of the most consequential yet insufficiently examined aspects of the SIR exercise is its unprecedented scale and the magnitude of voter deletions that followed its implementation across multiple States. No previous exercise of its kind under Election Law or Practice has ever had such intent or result. It is there then that this verdict –by failing to engage in the crucial gaps and issues in implementation highlighted by the multifarious Petitioners—substantively falters.

The result is this: While the Supreme Court has, after rigorous hearings and several interim orders, ultimately upheld the constitutional validity of the SIR framework and accepted the Election Commission of India’s justification (that the exercise was intended to enhance the accuracy, completeness and integrity of electoral rolls). The moot question of what necessitated the adoption of an extraordinary and intensive verification mechanism when the Representation of the People Act, 1950, the Registration of Electors Rules, 1960, and the established system of continuous revision already provides for detailed procedures for the addition, correction and deletion of names from electoral rolls remains unanswered.

2023-2024, two years prior to the launch of the Bihar SIR in June 2025 were also marked by related issues that directly impact on the autonomy and functioning of the Election Commission of India (ECI) a hitherto constitutional authority that enjoyed broad respect and acceptance. The present Regime’s overturning of a Supreme Court of India (SCI) final judgement on the need for wider choice and representation (including that of the Chief Justice of India-CJI) in selection of the CEC etc. is one such. The other is the huge accountability crisis in counting methods and transparency by the ECI around the Lok Sabha Polls of 2024, reports around which may be read here and here. Given the outcry by citizens groups and Opposition parties around “Vote Chori” and manipulation during and post 2024 LS polls (including the Haryana, Maharashtra state elections), the ECI even arbitrarily decided to amend its own Rules in ensuring availability of the CCTV footage during electors voting after the scheduled time, storage and counting to citizens and candidates.

The SIR 2-25-2026 was therefore conducted under a shroud of allegations and scrutiny. Thereafter follows the May 27 judgement of the apex court that in a sense obliterates these background developments.

The judgment recognises the Commission’s constitutional authority under Article 324 and Section 21(3) of the Act, yet neither the Court nor the Commission appears to have fully explained why existing statutory mechanisms were considered inadequate or incapable of addressing concerns relating to migration, duplication, deaths or ineligible entries. The absence of such justification becomes particularly significant when the practical outcome of the exercise has been the near arbitrary removal/deletion of crores of electors which according to some reports reach around 5.18 crore (51.8 million!!) electors across thirteen states union territories. Though the Election Commission has uploaded on its web page, the receipt and the digitalisation of enumeration forms  of each state frequently yet it skipped the uploading of the draft rolls , final rolls and the deletions on the same site. Consequently, one has to rely on round about figures of state wise deletions for reference from various unconfirmed sources and the same are depicted in the table below:

Impact of SIR across the States

The Bihar exercise, initiated through the Election Commission’s notification dated June 24, 2025, became the foundation upon which the SIR model was subsequently replicated in twelve other States and Union Territories. According to the available figures, the cumulative impact of these exercises resulted in the deletion of approximately 5.18 crore names from electoral rolls covering an electorate of nearly 60 crore electors.

The scale of these deletions was unprecedented in the history of electoral roll revision in India. Uttar Pradesh alone witnessed deletions exceeding 2.05 crore electors, while West Bengal recorded deletions of approximately 83.86 lakhs: rather 85.12 lakh names from as much as total electors of Bengal by ECI are recorded at 6.81 crore names. Tamil Nadu saw nearly 74 lakh deletions form the original electorate at the start of the SIR. Deletions are high in Gujrat and UP also.  Even smaller jurisdictions such as Goa, Puducherry, the Andaman and Nicobar Islands and Lakshadweep recorded deletions running into significant proportions of their total electorate.

These figures raise an important constitutional question: When a bureaucratic exercise hurriedly undertaken in the name of electoral ‘purification’ results in the such mass exclusion of more than five crore (50 million) registered voters, should not the burden of transparency and accountability correspondingly become more exacting and higher?

Bihar as the testing ground of SIR

The Bihar experience illustrates the complexity of this concern. Before the commencement of the SIR exercise, Bihar’s electoral roll consisted of approximately 7.89 crore registered electors. Following the intensive revision process, the draft electoral roll published by the Election Commission contained only 7.24 crore electors. This meant that nearly 65 lakh individuals who had previously appeared on the electoral roll were absent from the draft roll. The Commission attributed a substantial portion of this reduction to the non-submission or non-collection of Enumeration Forms during the verification process. However, the omission of such a large number of previously enrolled electors at the draft stage immediately generated concerns regarding the practical consequences of a documentation-based verification exercise conducted within compressed timelines and under challenging administrative conditions.

The Commission subsequently issued its final press release on September 30, 2025 announcing the completion of the Bihar SIR. According to the data disclosed therein, 3.66 lakh names were permanently deleted after detailed statutory verification, while 21.53 lakh eligible electors were either restored or added through Form-6 applications and the claims-and-objections process. As a result, the final electoral roll stood at approximately 7.42 crore electors. At first glance, the Commission presented these figures as evidence of a successful correction mechanism that enabled genuine electors to re-enter the electoral database. However, a closer examination of the numbers available from various sources reveals a significant discrepancy.

The pre-SIR electoral roll contained approximately 7.89 crore electors, whereas the finalised roll contained 7.42 crore electors. This represents a net reduction of approximately 47 lakh electors.

This discrepancy is not merely statistical. It goes to the heart of the transparency and accountability concerns that surrounded the SIR exercise from the beginning. Electoral rolls are the foundational instruments through which the constitutional guarantee of universal adult suffrage under Article 326 is operationalised. Consequently, when millions of names disappear from electoral rolls during a revision exercise, a clear and comprehensive explanation becomes essential. The available public figures explain certain categories of additions and deletions, but they do not adequately account for the entire difference between the pre-revision and post-revision electorate. In the absence of a detailed category-wise reconciliation identifying how and why the remaining electors ceased to form part of the final database, the figures disclosed by the Commission appear incomplete and internally inconsistent.

The issue becomes even more significant because the revised Bihar electoral roll was not merely a provisional administrative exercise. It became the basis for the conduct of the Bihar Legislative Assembly elections held in November 2025, with the results declared on November 14, 2025. Specifically put, is a state election, where as many as 47 lakh (4.7 million) voters did not cast their franchise because they were not given a chance to prove their electoral status, legitimate in the eyes of the Law, Courts and Constitution?

Consequently, the constitutional questions raised before the Supreme Court were not being examined in an abstract or prospective setting; they concerned an electoral framework that had already been implemented and utilised for a completed democratic exercise. The Court’s eventual decision therefore validated not merely the legal authority to undertake a SIR but also the inefficient and partisan exercise, multiple breaches of the law of the land on the matter concerned, with practical consequences flowing from that exercise.

Yet the larger constitutional concern remains unresolved. The Election Commission consistently maintained that the purpose of the SIR was to ensure that every eligible citizen was included in the electoral roll while simultaneously removing ineligible, duplicate, shifted or deceased voters. However, the public discourse and the statistical outcomes reveal that the exercise was perceived primarily through the lens of deletion rather than inclusion. The overwhelming –and heavily partisan and unaccountable–administrative focus appeared to be directed towards verifying existing entries and identifying names for exclusion. There was comparatively less emphasis on institutional mechanisms designed to assist vulnerable citizens in retaining their electoral status or navigating documentation requirements. For many petitioners and civil society organisations, the concern was not merely the removal of ineligible names but the possibility that genuine electors could be excluded because of absence of access–procedural, technical or documentation-related difficulties. As such the exercise was the reversion of the implementation of both the letter and spirit of election law, the principle behind which is inclusion. SIR 2025-2026 has made this into an exercise of exclusion: disempowering the marginalised in the name of purifying the rolls.

It is this broader context that explains why the challenge to the Bihar SIR generated such intense public debate. The controversy was not only confined to the Election Commission’s authority to revise electoral rolls. Rather, it concerned the manner in which that authority was exercised, the scale of deletions that followed, the burden imposed upon existing electors to re-establish their eligibility, and the absence of complete public clarity regarding the final numerical outcomes.

Even after the Supreme Court’s judgment of May 27 upholding the legality of the SIR framework, these factual and statistical questions remain largely unanswered. The Court resolved the narrow, legal issue of constitutional powers; it did not fully address the concerns arising from the moral, constitutional and real-life consequences of an exercise that ultimately resulted in the deletion of more than 5.18 crore (51.8 million) electors across the country and left significant discrepancies in the publicly available electoral data. In a democracy founded upon universal adult franchise, those questions are not peripheral. They fundamentally point to the relationship between electoral integrity and electoral inclusion, the right to Universal Adult Franchise, integral to a living, participatory Democracy. On grounds of ‘prevention of illegible voters/voting’, the fundamental and key constitutional question of not ever disallowing any eligible voter from his Right to Vote has been consciously blurred if not obliterated.

Contradictory position on citizenship and deleted voters

One of the most significant aspects of the judgment lies in the Court’s treatment of citizenship-related scrutiny undertaken during the SIR exercise.

In paragraph 186(f) of the judgement, the Court held that the Election Commission is empowered to undertake only a limited enquiry into citizenship for the purpose of satisfying itself regarding eligibility for inclusion in the electoral roll. The Court expressly clarified that such an enquiry does not amount to a determination of citizenship in the strict legal sense and that any action taken pursuant to such an exercise is confined exclusively to electoral consequences. According to the Court, the consequence of such a determination is correspondingly limited. It affects an individual’s entitlement to remain on the electoral roll and consequently their participation in the electoral process, but it does not divest the individual of citizenship nor foreclose adjudication by the competent authority under the Citizenship Act, 1955. The Court has, in its own wisdom, through a misconceived verdict, now evolved two types of citizenship one for the qualification of being an elector and another for all purposes. The Court has also not answered the natural and logical question which is, how can a person, adjudged as not a citizen for being elector, be a citizen for all other purposes?!! Further, the Court has not answered the question as to which law allows any executive authority to divest of the rights of a citizen without any final adjudication of the issue. It has opened a Pandora’s Box.

However, the subsequent directions appear to create a degree of tension with this formulation.

In paragraph 186 (g), the Court directed that where the Commission is not satisfied that a person fulfils the statutory conditions for inclusion in the electoral roll, it would be incumbent upon the Commission to refer such an individual to the competent authority within the Central Government for adjudication in accordance with law. The Court further clarified that any deletion effected on this ground shall remain subject to the outcome of such adjudication. Strange without final adjudication as to whether one is a citizen or not the court has given a right to the executive to snatch the supreme democratic right—the right to vote– of a person.

If this is genuinely so, and the Commission possesses neither the authority nor the required expertise/wherewithal to determine citizenship, can or should elections be conducted before final and thorough adjudication of all those excluded, given the hastily conducted SIR that excludes staggering numbers of Voters/Electors?

Without linking the final adjudication process under a badly conducted SIR to actual future conduct of elections, the Court has lent its approval to a basically incomplete and flawed process. Besides, the practical consequence of this direction is significant. Although the Court repeatedly emphasises that the Commission itself does not determine citizenship, the Commission’s dissatisfaction regarding a person’s eligibility may nevertheless become the trigger for a formal citizenship adjudication before another authority. Consequently, while the Election Commission may not be exercising citizenship jurisdiction in the strict legal sense, its findings can initiate a process that ultimately culminates in a determination of citizenship status. Every Indian citizen has a right to be an elector/voter, but the court has not laid down any parameters and duties for the Commission to exercise (process to follow) to adjudge some is not a citizen: the court has made grant or seizure of Indian citizenship by the ECI into an arbitrary act and one that can be exercised for a particular purpose at the whims of the executive. The court has not even examined the stark arbitrariness of the documents enlisted by the commission without sanction of the legislature for the purpose of determination. As per existing law, the enumerated documents (for the SIR) are not and cannot be said to be the proof of citizenship by any means. At most, or best, only the Passport issued by Indian Government can be said to pass this test. The Court has failed to appreciate that the Commission is not equipped in any manner to carry out the inquiry required for determination of citizenship even for a limited purpose (determining a voter).

The issue becomes even more pronounced in paragraph 186(h), where the Court specifically directed that all cases involving persons whose names had been deleted from the 2003 electoral roll on the basis of the Commission’s opinion that they were not citizens must be referred within four weeks to the competent authority under the Citizenship Act, 1955. The competent authority was directed to decide such matters after providing notice and an opportunity of hearing and, preferably, before the next Parliamentary, Assembly or Local Body election, whichever occurs earlier.

The Court further directed that if the competent authority ultimately concludes that the deleted individuals are citizens, their names shall be restored to the electoral roll. When and if that happens, what of the Denied Right to Vote in all previous elections until the process is completed/conducted?

Significantly, however, the judgment remains silent on the converse situation.

The directions clearly prescribe the consequences where the competent authority determines that the individual is a citizen. Restoration to the electoral roll follows as a matter of course. However, the judgment does not elaborate upon the legal consequences that would follow if the competent authority were to hold that the individual is not a citizen. The judgment neither identifies the statutory mechanism governing such a situation nor discusses the broader legal implications arising from such a finding.

The judgment therefore resolves the question of institutional competence but leaves unresolved the apprehension reflected in the Special Intensive Revision (SIR) notification dated June 24, 2025. The notification provides that where the Election Registration Officer (ERO) or Assistant Election Registration Officer (AERO) entertains doubts regarding the eligibility of a proposed elector—whether due to non-submission of requisite documents or otherwise—a suo motu inquiry may be initiated, followed by the issuance of notice requiring the individual to show cause as to why his or her name should not be deleted from the electoral roll. Upon completion of field verification and examination of documentary material, the ERO/AERO is empowered to decide upon inclusion in the final electoral roll and is required to pass a reasoned speaking order in each case. Significantly, the notification further directs EROs to refer cases involving suspected foreign nationals to the competent authority under the Citizenship Act, 1955, while authorising AEROs to independently exercise the powers of the ERO under Section 13C(2) of the Representation of the People Act, 1950. Consequently, although the Court has affirmed that the Election Commission’s enquiry does not amount to a determination of citizenship, concerns persist regarding the practical operation of a framework in which electoral scrutiny may, in certain cases, culminate in processes closely connected with questions of citizenship status.

Lal Babu Hussein and the presumption of validity of existing electoral registration

A central plank of the challenge to the SIR exercise was the Supreme Court’s earlier decision in Lal Babu Hussein and Others v. Electoral Registration Officer, (1995) 3 SCC 100. In Lal Babu Hussein, the Court was dealing with disputes relating to electoral registration in which questions of citizenship directly arose. Recognising the serious consequences associated with exclusion from electoral rolls, the Court laid considerable emphasis on procedural fairness, adherence to natural justice and independent application of mind by electoral authorities.

The Court directed that the officer conducting the enquiry must entertain all forms of evidence, documentary or otherwise, that the affected person seeks to produce. The affected individual must be afforded a meaningful opportunity to rebut any material relied upon against them. The enquiry was characterised as quasi-judicial in nature, requiring fairness, objectivity and reasoned decision-making. The Court further directed that election authorities must consider the provisions of the Constitution, the Citizenship Act and all related legal provisions before arriving at a conclusion. It also quashed restrictions imposed by the Election Commission on the consideration of certain documents and emphasised that evidentiary value must be assessed on a case-by-case basis. Most importantly, the Court underscored that authorities must conduct themselves in a manner consistent with natural justice and free from preconceived notions.

The significance of Lal Babu Hussein lies not merely in its procedural safeguards but in its recognition that inclusion in an electoral roll carries a presumption of validity. The petitioners challenging the Bihar SIR relied heavily upon this principle. Their contention was that once a citizen has already been included in the electoral roll through a legally recognised process, the burden should not casually shift onto that individual to once again establish eligibility through a fresh and intensive verification exercise.

The Supreme Court, however, distinguished Lal Babu Hussein from the Bihar SIR.

According to the Court, Lal Babu Hussein was decided in the context of individual adjudicatory proceedings concerning specific disputes, whereas the Bihar SIR constituted a systemic and inquisitorial exercise undertaken across the electorate in furtherance of the Commission’s constitutional mandate. Consequently, the Court held that while inclusion in the electoral roll undoubtedly gives rise to a presumption of validity, such presumption remains rebuttable and cannot operate as a blanket embargo upon the Commission’s authority to undertake a Special Intensive Revision.

This distinction forms a critical component of the judgment. However, it simultaneously raises a broader constitutional question. If inclusion in an electoral roll generates a presumption of validity, what practical protection does that presumption provide when millions of electors are subjected to fresh verification through a statewide exercise? While the Court recognises the existence of the presumption, the judgment substantially limits its practical effect by permitting large-scale re-examination of already enrolled electors.

Citizenship by presumption, not by documents: the unresolved core of the SIR debate

One of the most significant yet insufficiently examined aspects of the Bihar SIR litigation concerns the nature of citizenship verification itself. Throughout the proceedings, the Election Commission justified the exercise on the ground that electoral rolls must contain only eligible citizens, while the Supreme Court ultimately held that the Commission is empowered to undertake a limited enquiry into citizenship for electoral purposes.

However, the larger difficulty lies in the fact that Indian citizenship law does not prescribe a single, universally accepted document that conclusively establishes citizenship in every circumstance. Unlike identity verification, which may be undertaken through documents such as Aadhaar, citizenship is ordinarily established through a combination of statutory presumptions, factual circumstances, birth records, lineage, residence histories and legal provisions contained in the Citizenship Act, 1955. Consequently, the entire SIR exercise appears to have proceeded on a presumption of citizenship rather than on the basis of any definitive citizenship document recognised uniformly by the competent authority that is the Home Ministry or any document prescribed by any law made under the Citizenship Act. Under these circumstances, the selection or enumeration of such documents becomes not only arbitrary but also whimsical and discriminatory, a procedure that can lead to anarchy.

This becomes evident from the categories of documents accepted during the SIR process. Aadhaar, for instance, is fundamentally a document of identity and residence; it is not a proof of citizenship. Similarly, documents such as ration cards, bank passbooks, school certificates, board examination certificates, property records or welfare-related documents may establish the existence, residence or identity of an individual during a particular period, but none of them independently constitute proof of Indian citizenship. Even birth certificates, which are often treated as foundational documents, do not by themselves establish citizenship in every case, particularly because citizenship by birth in India is governed by different statutory conditions depending upon the date of birth and the status of parents under the Citizenship Act. In that sense, the controversy surrounding SIR was never merely about the production of documents but it was about the legal assumption that citizenship could be inferred through a documentation framework despite the absence of any statutory provision prescribing a definitive citizenship document.

A departure from established electoral practice

The controversy is further accentuated by the fact that the SIR exercise marked a substantial departure from the traditional process of electoral roll maintenance. Historically, electoral registration in India has operated on the basis that inclusion in an existing electoral roll carries a presumption of validity unless specific grounds for deletion are established through the procedure prescribed under the Representation of the People Act, 1950 and the Registration of Electors Rules, 1960. The Supreme Court itself acknowledged this principle by recognising that inclusion in the electoral roll creates a presumption of validity, though one that is rebuttable. Yet the SIR framework effectively required millions of already enrolled electors to re-establish their eligibility through fresh documentation and verification procedures.

The contrast with earlier exercises becomes particularly relevant in light of the experience of Assam. The National Register of Citizens (NRC) process in Assam was conducted under a unique statutory and historical framework, involving specific legacy documents, electoral roll references dating back to 1951 and a legal architecture shaped by the Assam Accord. The documents accepted in the NRC process were tailored to that specific context. By contrast, the Bihar SIR exercise adopted a different framework altogether, while simultaneously rejecting reliance upon certain forms of prior electoral inclusion that had historically been treated as relevant indicators of eligibility.

Foreigners’ tribunals and the limits of analogy

Pertinently, comparisons were frequently drawn with the Foreigners Tribunals functioning in Assam. However, such analogies are not straightforward. The Foreigners Tribunal system emerged from a distinct historical and statutory context linked to immigration concerns in Assam and derives authority from specialised legal provisions applicable in that region. There is presently no equivalent nationwide mechanism automatically applicable to citizenship disputes arising from electoral revision exercises in other States.

Consequently, while the Court’s directions contemplate referral to a competent authority, they do not identify whether any existing institutional structure is capable of handling such disputes on a large scale. Nor do they explain how citizenship determinations are expected to be completed within the timeframe contemplated by paragraph 186(h), particularly when citizenship questions often involve complex inquiries into birth, descent, migration, residence and statutory status extending across decades.

The missing context behind the Bihar SIR

Any assessment of the Supreme Court’s verdict must necessarily be situated within the broader actual, on-ground, reality/factual context in which the Bihar SIR was conceived and implemented. According to the Commission, the exercise was intended to ensure that every eligible citizen was enrolled, no ineligible voter remained on the rolls and entries relating to deceased, shifted or duplicate electors were removed.

The notification stated that the Commission would scrupulously adhere to the constitutional and statutory framework governing electoral eligibility, particularly Article 326 of the Constitution and Section 16 of the Representation of the People Act, 1950. Article 326 guarantees elections based upon adult suffrage, while Section 16 identifies circumstances under which an individual may be disqualified from registration as an elector, including non-citizenship, unsoundness of mind and disqualification arising from electoral offences.

The Commission invoked Article 324 of the Constitution and Section 21 of the Representation of the People Act as the source of its authority. It further stated that the exercise represented the first intensive revision of Bihar’s electoral rolls since 2003 and was necessary to preserve the integrity of electoral rolls in light of rapid urbanisation, migration, demographic changes, underreporting of deaths and concerns regarding the presence of foreign nationals.

To implement the exercise, Booth Level Officers were directed to conduct extensive house-to-house verification. Existing electors were required to complete Enumeration Forms and provide supporting documents. Electoral Registration Officers and Assistant Electoral Registration Officers were entrusted with processing claims and objections before final publication of the revised rolls.

Although the stated objective was to ensure inclusion of all eligible voters, the implementation of the exercise generated widespread concerns from civil society organisations, political parties and election law scholars. Critics questioned the compressed timeline, the documentary requirements and the practical feasibility of requiring millions of electors to complete the process within a matter of weeks. These concerns ultimately formed the foundation of the constitutional challenge that reached the Supreme Court.

The significance of this background cannot be understated. The legal controversy surrounding the Bihar SIR did not arise merely because a revision of electoral rolls was undertaken. It arose because the revision was conducted through an extraordinary and unprecedented methodology that fundamentally altered the manner in which existing electors were required to establish their continued presence on the electoral roll.

Finally, to conclude, the factual position is this: the Commission by conducting such an ill-conceived SIR is acting in breach of the Representation of Peoples Act 1950, 1951, the Registration of Electors Rules 1960, the established practices of the past seven decades; actions that have converted the ongoing exercise into coercive and arbitrary act that is instrumental in killing the fundamentals of our democracy.

The full judgement dated May 27, 2026 can be read here.

Related

SC greenlights SIR, upholds ECI’s power to revise electoral rolls

“Inside the SIR”: Booklet flags ‘mechanical disenfranchisement’ in electoral roll revision

VFD’s rebuttal of the Fadnavis’ Claims on Electoral Manipulation Allegations

The post Judgement delivered, paradox prevails: every voter a citizen, but what is the fate of 51.8 million excluded? appeared first on SabrangIndia.

The judgment came in a writ petition filed by Dabir Rahman challenging a 2018 opinion of a Foreigners Tribunal which had declared him to be a foreigner who entered India after 25 March 1971 — the statutory cut-off date under the Assam Accord framework.

A Division Bench comprising Justice Sanjay Kumar Medhi and Justice Pranjal Das dismissed the challenge and upheld the Tribunal’s findings, holding that the petitioner had failed to discharge the mandatory evidentiary burden imposed by Section 9 of the Foreigners Act.

Yet, beyond the immediate outcome of the case, the ruling once again exposes the deeply contentious architecture of citizenship determination operating in Assam — a framework built upon a colonial-era reverse burden law, extraordinary evidentiary expectations, and a process in which impoverished and document-deficient individuals are often compelled to prove lineage, residence, and belonging across generations through fragile and inconsistent archival traces.

Court reiterates that burden of proof “never shifts”

At the heart of the ruling lies the Court’s reaffirmation of the exceptional evidentiary framework governing Foreigners Tribunal proceedings in Assam. The Bench observed that Section 9 of the Foreigners Act creates a complete departure from ordinary evidentiary principles and squarely places the burden upon the person proceeded against to prove that he or she is not a foreigner. Stressing the overriding nature of the provision, the Court held:

The Bench observed:

“With regard to the aspect of burden of proof as laid down in Section 9 of the Act of 1946, the law is well settled that the burden of proof that a proceedee is an Indian citizen is always on the said proceedee and never shifts. In the said Section, there is non-obstante clause that the provisions of the Indian Evidence Act would not be applicable.” (Para 18)

The Court rejected the petitioner’s contention that, in the absence of rebuttal evidence from the State, the Tribunal ought to have accepted his claim of citizenship. The Bench made it clear that citizenship cannot be presumed merely because the State fails to adduce contrary evidence. In proceedings under the Foreigners Act, the initial and continuing burden remains solely upon the proceedee throughout.

The ruling therefore reinforces a long-standing judicial position that citizenship claims before Foreigners Tribunals are not adjudicated through adversarial balancing of evidence in the conventional sense, but through a statutory reverse burden mechanism requiring the proceedee to affirmatively establish citizenship through reliable documentary linkage.

One cannot forget that the Foreigners Act, 1946 is not merely a pre-Constitution statute — it is a pre-Independence colonial enactment originally designed to regulate the entry, presence, and departure of foreigners during British rule. Significantly, the statute itself contains no detailed machinery for identification or detection of foreigners. That role eventually emerged through the Foreigners (Tribunals) Order, 1964, which vested wide discretionary powers in quasi-judicial tribunals tasked with determining citizenship status.

What makes Section 9 particularly extraordinary is that it creates a reverse burden framework unlike ordinary criminal or civil adjudication. In conventional jurisprudence, the State must first establish foundational facts before the burden shifts onto an accused person. Reverse burden clauses in statutes such as narcotics, customs, or dowry laws operate only after certain threshold facts are established by the prosecution.

Citizenship proceedings in Assam, however, frequently begin merely on the basis of suspicion, “D-voter” marking, vague border police references (notices issued without any prior investigations), or unverifiable allegations of illegal migration — after which the entire burden shifts onto the proceedee to prove citizenship.

The present judgment strongly reiterates this framework but does not substantially engage with the constitutional tensions underlying such an approach.

Detailed piece on this legal and existential dilemma may be read here.

A constitutional court’s treatment of documentary discrepancies

One of the most striking aspects of the ruling lies in the Court’s treatment of discrepancies in names, ages, electoral entries, and village descriptions.

Before the Tribunal, the petitioner had relied upon electoral rolls of 1966, 1971, 1997 and 2018, a voter identity card, NRC acknowledgement receipt, legacy data code, and a Gaonburah certificate to establish linkage with his projected father and claim Indian citizenship.

However, the High Court found “lots of inconsistencies” in the documents. The Court noted that the names of the projected parents differed across the 1966 and 1971 voter lists. It also pointed to changes in village names and inconsistencies relating to the petitioner’s projected brother, who appeared as a 27-year-old in the 1971 voter list despite his absence in the earlier 1966 roll.

The Bench noted:

“So far as the Voters Lists of 1966 and 1971 are concerned, apart from the fact that the same would not serve as link documents, it is found that there are lots of inconsistencies. In the Voter List of 1966, the names of the parents were Jasi Seikh (father) and Moujan Nessa (mother) and the village was Bhelenganari Part No.54. On the other hand, in the Voter List of 1971, the names are Jasimuddin (father) and Matujan (mother), there is also a change in the village to No.3 Nangli Char. Further, though the same contains the name of a projected brother, Tabibar Rahman, it is seen that the said projected brother was 27 years of age in 1971 and therefore, it was necessary for his name to be featured in the earlier Voters List especially, in the List of 1966 along with his parents. Though the Voters Lists of 1989 and 1993 have been referred, those have not been exhibited.” (Para 23)

One of the most damaging aspects of the petitioner’s case, according to the Court, was the unexplained absence of documentary continuity over several decades. The Bench noted that by 1997, the petitioner was already shown as being 45 years old. Yet, there were no exhibited voter lists or contemporaneous records from the earlier years reflecting his presence.

The Court remarked:

“What is intriguing is the fact that though in 1997, the Page No.# 13/14 petitioner was aged 45 years why Voters List of earlier years did not contain his name and have not been proved. As regards the Voters List of 2018, the same is not a certified copy. It is also noted that there is inordinate and unexplained delay in the Voters List produced and exhibited. As noted above, the first Voters List wherein the name of the petitioner finds place is of the year 1997 and the previous Voters List which has been relied upon is of the year 1971 and the huge gap of more than 25 years remains unexplained. Even thereafter, the Voters List produced, though uncertified is of the year, 2018 which is after a gap of about two decades.” (Para 24)

This aspect of the ruling is particularly important because it reflects the judiciary’s increasing insistence upon documentary continuity in citizenship adjudication. Merely producing isolated voter lists from scattered years, without establishing a consistent and traceable documentary chain, may not suffice to prove citizenship claims. The Court’s reasoning indicates that unexplained gaps in documentary history can themselves generate adverse inferences regarding the authenticity and reliability of the citizenship claim.

These inconsistencies were ultimately treated as fatal to the petitioner’s claim.

Yet, the judgment raises larger concerns regarding how constitutional courts evaluate documentary irregularities in Assam’s citizenship litigation. Spelling variations, phonetic inconsistencies, transliteration errors, age discrepancies, and changes in village nomenclature are endemic to rural documentation practices in Assam, especially among poor and marginalised communities whose records often span decades of floods, displacement, illiteracy, migration within districts, administrative restructuring, and inconsistent clerical practices across Assamese, Bengali, and English records.

Women, landless labourers, internally displaced families, and Bengali-speaking Muslims are particularly vulnerable to such documentary instability. The judgment, however, appears to approach these discrepancies through a framework of suspicion rather than social context.

Notably, the Supreme Court itself in Sirajul Hoque v. State of Assam had intervened against precisely such rigid treatment of documentary inconsistencies, setting aside a Foreigners Tribunal order where spelling discrepancies in ancestral names had been treated as determinative of foreignness. The present ruling, however, appears to adopt a far stricter evidentiary posture.

Citizenship through documents — or documentary survival?

The High Court also reiterated that oral testimony, in the absence of reliable documentary corroboration, carries limited evidentiary value in Foreigners Tribunal proceedings. Rejecting the petitioner’s attempt to rely upon oral assertions and unproved certificates, the Court held:

“In the case of Bijoy Das Vs. UOI reported in2018 (3) GLT 118, this Court Page No.# 14/14 has laid down that in proceedings of this nature, oral evidence alone would not be enough and such evidence is required to be supported and corroborated by documentary evidence and contemporaneous records. However, in this case, the same has not been able to be done by the petitioner. We are of the view that the petitioner as proceedee had failed to discharge his burden to prove his citizenship.” (Para 26)

The Gaonburah certificate relied upon by the petitioner was also rejected on the ground that it had not been proved in accordance with law.

At one level, the reasoning reflects settled evidentiary principles repeatedly applied in Foreigners Tribunal jurisprudence. At another, however, the judgment once again foregrounds a deeper structural paradox within Assam’s citizenship regime: citizenship has increasingly become dependent upon documentary preservation across generations in a country where millions historically lacked formal birth registration, land ownership, literacy, institutional access, or bureaucratic continuity.

The Citizenship Act, 1955 itself does not prescribe any singular document as conclusive proof of citizenship for natural-born citizens. Yet, in practice, Foreigners Tribunal proceedings have evolved into extraordinarily document-centric adjudications where the inability to produce perfectly consistent records from decades ago may itself generate suspicion of foreignness.

The burden imposed upon proceedees is often particularly severe because the documents demanded by the system are precisely those least likely to have survived among impoverished populations vulnerable to floods, erosion, displacement, or chronic administrative exclusion.

In Assam, where river erosion has destroyed entire villages and displaced lakhs over generations, the expectation of seamless documentary continuity across fifty or sixty years often sits uneasily with lived social realities.

Tribunal opinion upheld

After examining the entire evidentiary record, the Division Bench concluded that the petitioner had failed to discharge the statutory burden imposed under Section 9 of the Foreigners Act.

The Court ultimately held that the petitioner as proceedee had failed to discharge his burden to prove his citizenship. Accordingly, the writ petition was dismissed and the Foreigners Tribunal’s 2018 opinion declaring the petitioner to be a foreigner who entered India after 25 March 1971 was affirmed.

Suspicion, alienage, and the missing foundational question

The ruling also revives a larger jurisprudential question that has long haunted citizenship litigation in Assam: when does suspicion become sufficient to trigger adjudication under the Foreigners Act?

While Section 9 shifts the burden to the proceedee, critics of the citizenship determination framework have repeatedly argued that the State must nevertheless establish at least some foundational material pointing toward alienage before invoking such an extreme reverse burden mechanism.

This distinction becomes crucial because failure to conclusively prove citizenship does not automatically establish foreign nationality.

Yet, in many citizenship proceedings in Assam, the inability to produce satisfactory documents gradually transforms into a judicial declaration that the person is a Bangladeshi who entered India illegally after 1971 — often without independent evidence establishing foreign origin, foreign domicile, or cross-border migration.

The present judgment does not substantially engage with this conceptual distinction. Instead, the Court proceeds from the premise that failure to satisfactorily establish Indian citizenship is sufficient to sustain the Tribunal’s conclusion.

This approach reflects a broader tendency visible across many Foreigners Tribunal proceedings, where suspicion of foreignness frequently operates as the starting point rather than the conclusion of adjudication.

The shadow of Sarbananda Sonowal

The judgment also sits within the continuing shadow of the Supreme Court’s decisions in Sarbananda Sonowal v. Union of India and its subsequent sequel, both of which fundamentally reshaped Assam’s citizenship regime. Those decisions are frequently invoked by the State to justify stringent detection and deportation mechanisms. However, the jurisprudence emerging from Sarbananda Sonowal is considerably more layered than official narratives often suggest.

While the judgments strongly endorsed mechanisms for identifying “illegal migrants,” they also discussed the need for application of mind, prima facie satisfaction, and foundational material before initiating proceedings.

Similarly, the Gauhati High Court’s own decision in Moslem Mondal recognised that references cannot mechanically proceed without some degree of satisfaction regarding the allegation of foreignness.

These nuances are often overshadowed in contemporary citizenship adjudication, where Section 9 is invoked as though it entirely absolves the State from producing any foundational basis whatsoever.

The present judgment aligns firmly with the stricter strand of this jurisprudence.

Contrasting Realities: When courts accept documentary continuity

The present ruling also sharply contrasts with several other tribunal decisions where courts and Foreigners Tribunals have accepted broader patterns of documentary continuity despite minor inconsistencies.

One such case recently supported by Citizens for Justice and Peace involved Anowara Khatun of Goalpara district, who had similarly been marked a “D-Voter” and subjected to prolonged citizenship proceedings. Detailed report on her case may be read here.

In that matter, the Tribunal accepted decades-old land deeds from 1947, 1952, and 1959, electoral rolls from 1966 and 1970, inheritance records, and oral testimony establishing linkage with her father, Alom Shah, who had long resided in Assam.

Despite poverty, illiteracy, mental health struggles, and years of bureaucratic suspicion, the Tribunal ultimately concluded that Anowara Khatun was an Indian citizen and rejected the State’s allegations.

The contrast between such cases reveals the deeply uneven nature of citizenship adjudication in Assam, where the fate of individuals often turns on how particular tribunals and courts interpret documentary inconsistencies, oral evidence, and historical gaps.

For thousands of marginalised residents, citizenship has become less a stable constitutional status and more an ongoing exercise in documentary survival.

Beyond Law: The human consequences of citizenship adjudication

The present judgment ultimately reinforces the severe evidentiary standards governing Foreigners Tribunal proceedings in Assam. The Court concluded that the petitioner had failed to discharge the burden imposed under Section 9 and accordingly upheld the declaration of foreignness.But beyond the legal reasoning lies a larger and deeply troubling constitutional question.

In Assam, citizenship adjudication no longer concerns merely nationality in the abstract. It determines access to liberty, political participation, livelihood, detention, and belonging itself. Over the years, the architecture surrounding citizenship determination — D-voter tagging, Foreigners Tribunals, NRC exclusions, detention centres, alleged “push-backs,” and prolonged litigation — has created a system in which poor and marginalised communities are repeatedly compelled to prove their existence before the State.

Detailed piece may be read here.

The present ruling therefore does more than decide one individual’s citizenship claim. It reflects the continuing evolution of a legal regime where documentary imperfections increasingly become grounds for exclusion, and where the burden of proving belonging falls most heavily upon those least equipped to navigate the evidentiary demands of the system.

The complete judgment may be read below:

Related:

The Immigrant Expulsion from Assam Act, 1950: Re-evaluating executive powers in light of judicial pronouncements and due process

CJP Assam: A journey without parallel, evolving & expanding rights jurisprudence

Assam’s “Doubtful Citizens”: CJP secures justice for Anowara Khatun, declared Indian citizen after decades of state persecution

Dead Voters, Forged Forms, and Political Interference: CJP flags systemic manipulation in Assam’s electoral roll revision, seeks ECI probe

“Premier agency?” SC slams Assam Police for “appalling” two-year UAPA detention without chargesheet

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

The post Gauhati High Court treats documentary inconsistencies as fatal, upholds Foreigner Tribunal opinion appeared first on SabrangIndia.

The judgment clarifies that the commission possesses the explicit authority to carry out a Special Intensive Revision under Article 324 of the Constitution, read in conjunction with the relevant provisions of the Representation of the People Act, 1950, and the associated regulatory rules.

The legal dispute originated from a series of writ petitions led by Association for Democratic Reforms and Others versus Election Commission of India, filed under Writ Petition (Civil) No. 640 of 2025. The petitioners challenged an administrative notification issued by the commission in June of the preceding year, which authorised a state-wide Special Intensive Revision across the State of Bihar. The petitioners argued that the revision framework resulted in arbitrary mass exclusions and operated as an unconstitutional verification process. However, the Supreme Court rejected these contentions, ruling that the documentation rules and the deletion protocols implemented during the revision were compliant with statutory safeguards and did not violate constitutional principles.

The historical and philosophical framework of the electoral roll

In the text of the judgment, Chief Justice Surya Kant examined the historical development of public membership and democratic franchise within the Indian sub-continent to contextualise the current statutory framework. The court observed that the establishment of an accurate and verifiable record of eligible electors is a structural prerequisite for any representative government before votes can be cast or counted. The electoral roll functions as the legal definition of the political community, meaning its composition directly influences the integrity, accuracy, and credibility of the entire democratic architecture.

The judgment traced the evolution of collective governance mechanisms back to ancient historical records, referencing the administrative and social structures of Bihar during the era of the Mahajanapadas in the sixth and fifth centuries BCE. The court noted that while certain neighbouring territories such as Magadha and Anga operated under monarchical systems, the Vajji confederacy, centred at Vaishali, maintained a system of republican and quasi-republican institutions. Relying on primary historical records, including the Mahaparinibbāna Sutta, the court highlighted that the Vajjis regularised governance through frequent public assemblies, conducted their administrative affairs in institutional concord, and adhered to established customary rules. While these ancient systems did not employ modern methods of adult franchise or formalised voter registries, they established early historical precedents for defining public membership and maintaining structured processes for community deliberation.

The formal statutory formalisation of the electoral registry in modern Indian history emerged under the British colonial administration through the enactment of the Government of India Act, 1935. The Sixth Schedule of the 1935 Act introduced a structured legal system for preparing and revising electoral rolls across defined territorial constituencies based on a specific qualifying date. Although the colonial model enforced an exclusionary franchise restricted by property ownership, educational qualifications, and separate communal electorates, it standardised the administrative transition of voter registration into a formalised statutory regime.

The adoption of the Constitution of India established a complete break from the colonial administrative model. The Constituent Assembly debates held on June 15 and June 16, 1949, regarding Draft Article 289—which was subsequently enacted as Articles 324, 325, and 326—demonstrate that the framers intended to insulate the election machinery entirely from executive interference. The assembly implemented a single, general electoral roll for every territorial constituency, abolished communal electorates, and established universal adult franchise. Under Part XV of the Constitution, the electoral roll was transformed into an instrument of universal political participation, placed under the superintendence, direction, and control of an independent constitutional authority.

Background

The immediate factual basis for the litigation arose on June 24, 2025, when the Election Commission of India issued an order mandating a state-wide Special Intensive Revision of electoral rolls across all Assembly constituencies in Bihar. In its recorded statement of reasons, the commission noted that the last intensive house-to-house revision in Bihar had been executed twenty-two years prior, in 2003. In the intervening period, the state’s electoral lists had been updated exclusively through annual summary revisions. The commission determined that this prolonged interval, combined with rapid urbanisation, intra-state and inter-state migration, and unreported voter deaths, had introduced significant duplications, omissions, and inaccuracies into the existing registries.

The administrative framework established by the commission for the execution of the Special Intensive Revision included several specific components that became the primary subjects of the legal challenge. The commission designated the electoral roll compiled during the 2003 intensive revision as the baseline probative evidence for verifying residency and eligibility. Individuals currently residing in Bihar whose names were absent from the 2003 baseline roll were required to provide prescribed government documentation to confirm their status as eligible electors. The commission deployed Booth Level Officers to conduct house-to-house physical visits to distribute a standardised Enumeration Form, which electors were required to complete and submit within a specified timeframe. The administrative directive noted that failure to submit the form would result in exclusion from the initial draft electoral roll.

Upon the publication of the draft electoral roll-on August 1, 2025, the registry showed a significant mathematical decrease. Prior to the initiation of the drive, the total number of registered electors in Bihar stood at approximately 7.89 crore. The published draft roll recorded 7.24 crore electors, clearly pointing to the fact that nearly 65 lakh individuals had been omitted at the draft stage due to the non-submission or non-collection of the Enumeration Forms. This large-scale omission led to immediate legal challenges under Article 32 of the Constitution by the Association for Democratic Reforms, political activist Yogendra Yadav, and members of Parliament including Mahua Moitra, Manoj Jha, KC Venugopal, and Supriya Sule, who asserted that the procedure was structurally flawed and lacked clear statutory authorisation.

Chronology of interim judicial orders and safeguards

The Supreme Court did not stay the ongoing administrative process but instead issued a series of interim directions during July, August, and September 2025 to introduce procedural safeguards and maintain maximum inclusivity during the revision drive. In its initial order dated July 10, 2025, the court framed three core inquiries regarding the statutory basis of the drive, the specific methods used to verify eligibility, and the administrative appropriateness of the timing given the upcoming late 2025 Bihar Legislative Assembly elections. To prevent unintended exclusions, the court ordered the commission to expand its list of acceptable documents to include Aadhaar Cards, Electors Photo Identity Cards, and Ration Cards as valid proof of identity and residence.

Following the disclosure that 65 lakh individuals were absent from the draft roll, the apex court issued an order on August 14, 2025, directing the commission to compile and publicly publish the complete list of omitted names along with the specific technical or clerical reasons for each omission. The court mandated that this list be given wide publicity through print newspapers, television channels, and radio broadcasts to ensure that affected individuals could file rectification claims. To ensure field-level assistance, the court’s order dated August 22, 2025, impleaded twelve recognised national and state political parties as respondents, directing them to utilise their Booth Level Agents to canvas local areas and assist omitted individuals in navigating the claims process.

On September 1, 2025, the court recorded a formal clarification from the commission that the claims, objections, and corrections window would remain functional continuously until the final date for filing election nominations. The court also directed the Chairman of the Bihar State Legal Services Authority to deploy para-legal volunteers across all District Legal Services Authorities to provide free technological and legal assistance to individuals filing claims. In a subsequent order on September 8, 2025, the court defined the evidentiary status of the Aadhaar Card within the revision framework. The court observed that while an Aadhaar Card does not constitute proof of citizenship under the Aadhaar Act, 2016, Section 23(4) of the Representation of the People Act expressly authorises its use for establishing a voter’s identity. The court formally designated the Aadhaar Card as an additional acceptable document for electoral roll verification, while reserving the right of registration officials to seek secondary verification if the genuineness of a claim was in doubt.

The commission issued an official press release on September 30, 2025, marking the final conclusion of the Special Intensive Revision drive in Bihar. The final data revealed that from the 7.24 crore draft roll base, 3.66 lakh names were permanently removed following detailed statutory verification, while 21.53 lakh eligible electors (Form 6) were successfully added through the claims and objections mechanism. (Note: Form 6 is a procedural form available to first-time voters and those who have shifted from their original locations where they were registered as electors to a new address)

The addition of 21.53 lakh electors through the Form 6 procedure only partially explains the reduction from the pre-revision figure of 7.89 crore electors to the finalised roll of 7.42 crore. Even after accounting for 3.66 lakh deletions and 21.53 lakh additions (total movement: 25.19 lakh voters/electors), an unexplained variance of approximately 21.81 lakh electors still remains. Therefore, the figures disclosed do not mathematically reconcile with the final electoral database. It is necessary to specifically question and seek clarification regarding this substantial unexplained gap, as the published data presently appears internally inconsistent and incomplete.

This revised roll with 7.42 Crore electors was subsequently utilised to conduct the Bihar Legislative Assembly elections in November 2025, with the final results declared on November 14, 2025, after which the Supreme Court proceeded to resolve the outstanding constitutional questions.

(Editor’s Note: While this piece, reports on the May 27 judgement of the SC, we shall soon be carrying subsequent pieces, bringing back to our readers, the procedural flaws, inconsistencies and other lapses in the Bihar 2025 SIR process, so that the judicial adjudication does not wipe out the widespread inconsistencies in procedure and law that the Election Commission of India indulged in)

Meanwhile readers may refer and read to the articles related to the Vote for Democracy’s report on the Bihar SIR here, and here.

The actual VFD Bihar Elections 2025 report may be accessed here.

Constitutional and statutory arguments of the petitioners

The petitioners, represented by a panel of senior counsel including Kapil Sibal, Dr. Abhishek Manu Singhvi, Gopal Sankaranarayanan, Prashant Bhushan, and Vrinda Grover, mounted a broad constitutional challenge against the validity of the Special Intensive Revision. Their primary argument was that the exercise altered the statutory framework of electoral roll maintenance by turning the commission into a de facto citizenship adjudicator. They contended that existing electoral registration laws do not empower the commission to compel individuals who are already registered on the rolls to newly re-establish their citizenship through fresh documentary proof. Questions regarding nationality, they argued, must be addressed exclusively through the mechanisms provided under the Citizenship Act, 1955, rather than an electoral enumeration drive.

The petitioners characterised the Special Intensive Revision as an NRC-like exercise, asserting that it inverted established legal principles by creating a presumption of ineligibility and shifting the entire evidentiary burden onto individual voters. Counsel argued that the process created a state of suspended citizenship, wherein individuals excluded from the draft roll were effectively deprived of core democratic participation rights prior to any formal adjudication of their legal status by a competent statutory authority. They also challenged the statutory basis of the verification forms, arguing that the specific enumeration forms distributed by the commission lacked explicit backing under the Representation of the People Act, 1950, or the Registration of Electors Rules, 1960.

Regarding the geographic scope of the commission’s powers, the petitioners argued that Section 21(3) of the Representation of the People Act, 1950, does not authorise a simultaneous, state-wide or multi-state intensive revision drive. They highlighted that the text of the provision explicitly allows for a special revision for “any constituency or part of a constituency,” which they interpreted as a requirement for targeted, localised, and exceptional interventions rather than broad, state-wide programs. They further argued that the commission had failed to disclose specific, localised data justifying the revision for each individual constituency, rendering the exercise arbitrary. Finally, the petitioners relied on Lal Babu Hussein v. Electoral Registration Officer, (1995) 3 SCC 100, arguing that prior inclusion in an electoral registry creates a legal presumption of eligibility that cannot be set aside without an individualised objection and a specific burden of proof placed on the objector.

Distinguishing factors and rationale for departure

The judgment distinguishes the application of the seminal Lal Babu Hussain Judgement precedent based on the following factual and structural differences:

• Adjudicatory vs. inquisitorial framework: The rules in Lal Babu Hussain were formulated to govern localised, individual deletion proceedings where specific names were singled out based on “selective objections.” In contrast, according to the SC in the present judgement, a Special Intensive Revision (SIR) under Section 21(3) of the Representation of the People Act, 1950, is a systemic, inquisitorial house-to-house enumeration applied uniformly to the entire electorate.
• Temporal decay of the presumption: The presumption of regularity under Section 114(e) relies on the notion of periodic accuracy of data. Where an entire state’s rolls have been carried forward exclusively through summary revisions for over two decades (since 2003 in Bihar) without a physical house-to-house audit, the empirical accuracy of the entries in the 2025 SIR under present adjudication, diminishes due to migration, demographic shifts, and unreported deaths.
• The nature of the requirement: Demanding that existing electors provide basic identity tokens or complete enumeration forms during a universal statewide audit does not alter the ultimate burden of proof or negate the presumption of validity; it operates as an administrative verification mechanism under Article 324 rather than an individual citizenship trial.

The contention that the evidentiary presumption identified in Lal Babu Hussain creates a permanent bar against a comprehensive administrative revision conflates a rebuttable procedural rule with a rule of substantive law. An entry in a published electoral roll provides an administrative checkpoint against arbitrary, selective deletions; it does not divest the Election Commission of its constitutional authority to verify database accuracy under Article 324.

Because the rules in Lal Babu Hussain were developed within the context of localised adjudicatory proceedings where individual entries were targeted without prior disclosure of the material basis, they cannot be expanded to invalidate a state-wide, inquisitorial policy exercise executed under Section 21(3) of the Representation of the People Act, 1950. In the SC’s present understanding and analysis, applying an individualised dispute framework to a systemic overhaul fails to recognise the legal distinction between a localised objection and a uniform administrative response to macro-demographic inaccuracies.

Furthermore, the legal weight of an administrative presumption under Section 114(e) of the Indian Evidence Act is operationally dependent on temporal proximity to physical verification. The factual matrix of Lal Babu Hussain involved a statutory regime where intensive house-to-house revisions were conducted at regular intervals, ensuring that entries carried forward reflected contemporary data. Where the electoral data has been modified solely via summary revisions for more than twenty years without a physical audit, the factual foundation sustaining the presumption undergoes structural decay. Requiring the Commission to establish individualised doubts prior to conducting a universal verification would reduce the statutory mechanism of intensive revisions to a dead letter. Systemic verification does not reverse the burden of proof regarding citizenship, but rather satisfies the contemporary administrative criteria required for electoral representation.

The invocation of the dictum in Lal Babu Hussain to erect an unyielding procedural embargo against a comprehensive administrative revision proceeds on an erroneous conflation of a rebuttable evidentiary presumption with an immutable rule of substantive law. While an existing entry in a published roll generates a presumption of regularity under Section 114 of the Evidence Act, such an administrative tool cannot paralyse the Election Commission’s plenary constitutional obligations under Article 324 to safeguard the integrity of the political community. The protective principles established in Lal Babu Hussain were designed within a narrow matrix of individual adjudicatory proceedings where specific voters were selectively targeted without due process. They cannot be stretched to obstruct a state-wide inquisitorial policy exercise directed at restoring the comprehensive structural accuracy of an electorate whose data has languished without house-to-house verification for over two decades.

While these are the lofty presumptions used by the SC to justify the 2025 SIR, there is no reference nor detailing in the present judgement of the huge laps and gaps of operational conduct by the ECI in making available forms to electors/voters, in giving an adequate time-frame for data collection, in making these processes transport etc. In fact, during the hearings initially, the SC had “promised” to step in if there were “mass deletions.” In the end the Bihar elections 2025 were conducted with no course correction.

Read our reports here, here and here.

Statutory defence and arguments of the commission

The ECI, represented by Senior Advocates Rakesh Dwivedi, Maninder Singh, and Dama Seshadri Naidu, defended the statutory validity of the drive by arguing that the petitioners had mischaracterised the nature and scope of the Special Intensive Revision. The commission’s primary defence was that the exercise did not constitute a formal nationality adjudication under deportation or citizenship laws. Instead, it was an electoral verification process aimed solely at ensuring that only eligible individuals remained on the voter registries. The commission emphasised that because the Constitution establishes a citizen-based franchise under Article 326, it is under a continuous constitutional obligation to maintain the purity of the rolls by removing ineligible entries.

The commission rejected the comparison to an NRC-style process, describing the Special Intensive Revision as a flexible, administrative verification model managed by civil election officials rather than an investigation conducted by police authorities. Addressing the petitioners’ reliance on Lal Babu Hussein, the commission argued that the precedent was factually distinguishable. It noted that the earlier case involved police involvement in the verification drive and lacked clear administrative safeguards, whereas the present drive was conducted entirely by election personnel and incorporated multiple layers of procedural review. The commission also maintained that prior inclusion on the rolls was not ignored and continued to serve as a piece of baseline evidence during the verification process.

The commission further argued that its authority under the statutory scheme is fully supported by the text of Section 21(3) of the Representation of the People Act, 1950. It contended that the statutory power to conduct a special revision necessarily includes the authority to perform intensive verification when required to preserve the integrity of the electoral process. The commission rejected assertions of external motivation, stating that its actions were strictly guided by its institutional mandate to correct long-standing demographic inaccuracies in registries that had not undergone an intensive review for over two decades.

Judicial interpretation of Articles 324 and 327

The Supreme Court analysed the structural relationship between the plenary constitutional authority of the commission under Article 324 and the legislative powers of Parliament under Article 327. The court rejected the petitioners’ submission that the enactment of detailed statutory laws by Parliament entirely removes the independent regulatory authority of the commission. The bench held that Articles 324 and 327 are complementary provisions that must be interpreted in harmony with one another. While Parliament is empowered to enact laws governing the conduct and administration of elections, such statutes cannot be applied in a manner that strips the commission of its core constitutional obligation to ensure the integrity of the electoral process.

The court re-examined the legal principles established in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, noting that while the commission must conform to valid legislative enactments and cannot act in direct contradiction to an express statutory prohibition, Article 324 functions as a continuous reservoir of power. This power enables the commission to issue regulatory directives to address administrative gaps where the statutory law is silent or insufficient to meet operational contingencies. The bench emphasised that the terms “superintendence, direction, and control” must be interpreted broadly to fulfil their constitutional purpose. The judgment delivered by Chief Justice Surya Kant held:

“When the statute itself authorises a special revision at any time, for reasons to be recorded and in such manner as the Election Commission may deem fit, the impugned exercise cannot be invalidated merely because it does not conform in every respect to the ordinary modalities contemplated for routine revision. In our considered opinion, the impugned SIR does not supplant the Representation of the People Act and the Rules. Rather, it breathes life into the constitutional mandate under Article 324 within the precise statutory contours provided by Section 21(3). Therefore, it cannot be said that the Commission has acted in excess of its statutory powers.”

Factual harmonisation with Section 21(3) and Rule 21A

The court proceeded to analyse the specific text of Section 21 of the Representation of the People Act, 1950, to determine if the Special Intensive Revision conflicted with statutory mandates. The bench observed that while Section 21(2) outlines the standard, rule-bound annual summary revisions of voter lists, Section 21(3) operates as an independent, enabling provision designed for extraordinary demographic or administrative adjustments. The court emphasised two primary elements of Section 21(3):

• The operation of the non-obstante clause: The inclusion of the phrase “Notwithstanding anything contained in sub-section (2)” serves to decouple the special revision process from the strict procedural limits and timelines that govern routine summary revisions under Section 21(2) and Rule 25 of the 1960 Rules.

• Procedural discretion: The statutory phrase “in such manner as it may think fit” grants the commission broad administrative latitude to design the operational methods of a special revision based on ground-level exigencies, subject to the condition that it records its reasons in writing.

The bench rejected the petitioners’ strict geographic interpretation of the term “any constituency”. Applying Section 13(2) of the General Clauses Act, 1897—which provides that words in the singular include the plural—and drawing upon the interpretation in Prabhakaran v. P. Jayarajan (2005) 1 SCC 754, the court ruled that the word “any” can mean “all” or “many” depending on the statutory context and purpose. If the administrative reasons justifying an intensive revision apply uniformly across an entire state due to a multi-decade gap in house-to-house verification, the commission is legally authorised to issue a single consolidated order covering all constituencies within that state. The court noted that requiring individual, separate notifications for each constituency would create a fragmented administrative process that hinders the commission’s capability to fulfil its duties.

The judgment also addressed the petitioners’ arguments regarding Rule 21A of the Registration of Electors Rules, 1960, which details the procedure for deleting names due to death, migration, or disqualification. The court determined that deletions executed during a Special Intensive Revision do not stand in contradiction to Rule 21A. The bench held that because the essential procedural safeguards of notice, public display of draft lists, and the opportunity to file claims and objections remain preserved in substance, the revision framework complies with the core requirements of procedural fairness established by the rules.

Application of the proportionality test and rights balancing

The Supreme Court evaluated the SIR framework under the four prongs of the constitutional test of proportionality to determine whether the administrative measures unjustifiably infringed upon the right to vote under Article 326.

I. Legitimacy of purpose

The court ruled that the commission’s objective—ensuring that electoral registries are accurate, complete, and credible—is rooted in the constitutional mandates of Articles 325 and 326. The grounds for updating the rolls align with the statutory criteria for removal recognised by Parliament, such as voter death, changes in ordinary residence, or supervening disqualifications. Because inaccurate voter lists directly undermine the integrity of the democratic process, the initiation of the purification drive satisfies the requirement of a legitimate public purpose.

II. Rational nexus

The bench found a direct logical connection between the administrative method used and the objective pursued. A physical, house-to-house verification drive combined with standardised enumeration forms is a direct method to identify unrecorded deaths, duplicate entries, and outdated residency data that annual summary updates cannot fully resolve.

III. Necessity and least restrictive means

The petitioners argued that the commission should have utilised narrower, localised audits rather than a state-wide program. In reviewing this choice, the Supreme Court cited the constitutional bench ruling in Vivek Narayan Sharma v. Union of India (2023) 3 SCC 1, which established that evaluating the scale of a systemic administrative issue and choosing an appropriate regulatory response are tasks requiring specialised expertise. The court noted that maintaining accurate registries belongs to the exclusive constitutional mandate of the commission, involving complex logistical and demographic assessments. The judiciary will not substitute its own policy preferences for the methodology chosen by a specialised constitutional body unless that choice is demonstrated to be arbitrary or unguided. Given the pervasive nature of the inaccuracies accumulated over twenty-two years, the selection of a state-wide intensive revision was determined to be a necessary administrative step.

IV. Fair balancing

The court evaluated the balance between the administrative goals of the drive and the protection of individual franchise rights. The bench observed that while the right to vote is a key constitutional right, its operationalisation requires compliance with regulatory verification frameworks to confirm identity and residence. Procedural compliance requirements do not automatically violate the right, provided they are workable and accompanied by adequate remedies. The court noted that while the initial drop of 65 lakh names from the draft roll raised valid questions regarding potential exclusion, the subsequent integration of procedural safeguards—including the expansion of accepted identity documents, the public disclosure of the reasons for omission, and the mobilisation of legal service volunteers—ensured that the drive satisfied the test of proportionality and did not result in systemic disenfranchisement.

Scope of citizenship scrutiny and referral mandate

The Supreme Court addressed the exact boundaries of the commission’s authority regarding questions of citizenship during the compilation of electoral registries. The court rejected the submission that the commission is entirely barred from reviewing queries related to nationality. The bench pointed out that under Section 16 of the Representation of the People Act, 1950, non-citizenship functions as an express statutory disqualification from registration. Because the commission is legally required to ensure that only eligible individuals are entered onto the rolls, it possesses the ancillary authority to scrutinise documentation concerning citizenship status at the stage of voter registration. The court held that calling upon electors to furnish supporting materials during a revision drive does not negate the presumption of citizenship recognised in Lal Babu Hussein; rather, it represents the procedural mechanism through which existing qualifications are verified.

However, the judgment drew a clear legal distinction between the administrative findings of the commission and the formal adjudication of nationality under the Citizenship Act, 1955. The bench ruled that an adverse determination by an election officer during a Special Intensive Revision exercise is limited strictly to electoral eligibility. Chief Justice Surya Kant observed:

“Upon detailed consideration, we have come to the conclusion that, in view of the statutory requirement under Section 16 of the Representation of the People Act, the Commission, in the course of preparing or revising electoral rolls, is undoubtedly empowered to examine questions bearing upon citizenship. The consequence of such a citizenship determination is correspondingly limited. It affects the individual’s entitlement to be included in the electoral rolls and thereby the right to participate in the electoral process. It does not, however, operate to divest the individual of claims to citizenship, nor does it foreclose adjudication of that question by the competent authority under the Citizenship Act.”

The court further held that in instances where the commission determines that an individual has not produced sufficient material to satisfy the statutory criteria for inclusion on the rolls, it cannot issue a final or binding conclusion on their nationality. Instead, it is incumbent upon the commission to refer such individuals to the competent authority of the Union Government for formal adjudication in accordance with the law. Because the commission’s findings are confined to electoral purposes, any deletion executed on the grounds of doubtful citizenship remains subject to the final outcome of the adjudication conducted by the competent statutory authority under the Citizenship Act, 1955.

As a specific operational consequence of this referral mandate, the Supreme Court directed the Election Commission of India to forward to the Central Government the names of all persons deleted from the 2003 Bihar electoral rolls over doubtful citizenship. The court mandated that this list be compiled and transmitted to the Union Government within a strict timeframe of four weeks from the date of the judgment. This directive ensures that individuals whose names were removed during the purification drive due to nationality concerns are automatically placed into the appropriate legal channel for a final determination of their citizenship status by the competent central authority.

Current operational status of revisions

The judgment of the Supreme Court provides a sense of finality on the issues raised that is the statutory scope and procedural boundaries of Special Intensive Revisions conducted under Section 21(3) of the Representation of the People Act, 1950. However, given the procedural flaws (and there were many) couples with the statutory gaps, there is no final clarity on the mass disenfranchisement that has been affected in the process.

By simply validating the commission’s authority to initiate state-wide intensive drives and implement standardised documentation frameworks, the court has rendered legitimacy to a faulty and non-transparent administrative mechanism used to update what is being justified as long-standing inaccuracies in voter registries. Concurrently, by limiting the legal consequence of the commission’s findings strictly to electoral eligibility, the judgment prevents the administrative process from functioning as a final determination of nationality, preserving the jurisdiction of specialised authorities under the Citizenship Act, 1955. However, given that this adjudication process under the Citizenship act, 1955 lies with the Home Ministry of a Union Government that has made political exclusion and disenfranchisement part of its stated goals, this offers little succour. What the country is likely to see is the mass distress by documented exclusions caused to vast number of Indians.

Because the Supreme Court did not stay the administrative execution of the revision drive during the pendency of the litigation, the SIR process has already transitioned through its active phases and has been completed in several states, including Bihar, Kerala, Rajasthan, Tamil Nadu, Puducherry, and West Bengal etc. Following the reservation of the judgment on January 29, 2026, and its formal pronouncement on May 27, 2026, the legal principles established by the bench now govern the ongoing SIR drives currently being carried out by the commission in multiple other states.

The full judgement dated May 27, 2026 may be read here:

Related

“Inside the SIR”: Booklet flags ‘mechanical disenfranchisement’ in electoral roll revision

VFD’s rebuttal of the Fadnavis’ Claims on Electoral Manipulation Allegations

The Bihar Verdict 2025: How an election was engineered before votes were cast

The post SC greenlights SIR, upholds ECI’s power to revise electoral rolls appeared first on SabrangIndia.

The Himalayas hold the headwaters of the Ganga, Yamuna, Sutlej, Beas, Ravi and Chenab, sustaining vast populations downstream. But this is also a young, unstable and seismically active terrain. Glaciers such as Gangotri and Yamunotri are retreating, exposing loose moraine and weakening slopes. Cloudbursts, landslides and debris flows, as seen in Kedarnath in 2013, are therefore not isolated events but warnings from a fragile system. A small slope cutting, tunnel, or river diversion can disturb water channels; dry village springs, or trigger downstream flooding. Despite this, the region has seen rapid hydropower and infrastructure expansion, involving blasting, tunnelling, river diversion and construction across some of India’s most vulnerable mountain valleys.

These pressures have turned the Himalayan High Courts into something they were never designed to be: the last line of ecological defence. Litigants arrive with public interest petitions seeking to stop dams, protect panchayat authority over local resources, and enforce constitutional environmental rights. The question this study asks is not whether these courts occasionally issue protective orders. They do. The question is whether protection is the pattern or the exception. When ecological harm is demonstrated, do these courts hold the line? Or do they find ways to accommodate the project, the corporation, the state plan? By examining judgments the three High Courts — Uttarakhand, Himachal Pradesh, and Jammu & Kashmir, and Ladakh, the third part of a three-part series maps the architecture of environmental jurisprudence in the mountains and identifies where that architecture cracks under pressure.^[1]

The Architecture of Eco-Centric Protection

The Uttarakhand Eco-Centric Doctrinal Expansion (2016-2018)

There are moments in judicial history when a court steps outside its accustomed vocabulary and speaks a different language. The Uttarakhand High Court between 2016 and 2018 was such a moment. The court produced a trilogy of rulings that received criticism for attempting to restate the environmental jurisprudence. They were attempts to reimagine the legal relationship between the state, the citizen, and the natural world. What makes them significant is not just what they held, but what they asked: if a river sustains life, should it not have standing in court?

In Mohd. Salim v. State of Uttarakhand (2017), the court confronted the familiar issue of municipal pollution and encroachment along the Ganga and Yamuna. What it produced was anything but familiar. A Division Bench of Justices Rajiv Sharma and Alok Singh declared these rivers, along with all their tributaries, streams, and torrents, to be legal persons and living entities. This was not metaphor. The Bench exercised its parens patriae jurisdiction to appoint the Director of the Namami Gange project, the Chief Secretary of Uttarakhand, and the Advocate General as guardians acting in loco parentis. The reasoning was stark: rivers breathe. They sustain communities from the glaciers to the sea. To treat them as property is to miss their essence. The court anchored this in Article 21, reading the right to life as extending to the life that the rivers themselves embody.^[2]

Critics have called this approach radical. It was. The traditional legal model treats a river as a thing over which the state has sovereign control, the citizen has riparian rights, and the corporation has extraction permits. Each of these legal relationships assumes the river’s continued existence. None of them guarantees it. By making the river itself a rights-holder, the court inverted the burden of justification.

The doctrinal expansion continued in Lalit Miglani v. State of Uttarakhand (2017), where the same Bench extended legal personhood to the broader ecosystem. Gangotri and Yamunotri glaciers gained rights. So did the air, meadows, forests, wetlands, grasslands, springs, and waterfalls of the state. The court did not stop at declaration. It deployed continuing mandamus to direct twenty-one hydroelectric projects on the Ganga’s mainstream to install functional Sewage Treatment Plants within six months. It ordered the Comptroller and Auditor General to conduct a special financial and compliance audit of all centrally financed Ganga rejuvenation schemes, with the report to be placed directly before the President of India. These were not hortatory observations. They were operational commands backed by the contempt power of the court.^[3]

In Narayan Dutt Bhatt v. Union of India (2018), the court extended legal personhood to the entire animal kingdom. Confronted with the cruelty of commercial horse-carts at the Indo-Nepal border, Justices Rajiv Sharma and Lokpal Singh held that the right to life under Article 21 protects all animals, avian and aquatic. Every citizen of Uttarakhand was declared a guardian in loco parentis. The implications were again, radical. For centuries, animals have been property under Indian law. The Prevention of Cruelty to Animals Act treats them as objects of human benevolence. This judgment treated them as subjects of rights. The shift from property to person is not merely semantic. It determines who bears the burden in court. A property owner can do what they please with their property, subject to regulation. A guardian must act in the best interests of the ward. The legal grammar changed from permission to duty.^[4]

The Rishikesh White-Water Rafting Industry case (2018) demonstrated how this eco-centric framework operated in practice. Faced with water pollution, public intoxication, and unregulated adventure sports licensing along the Ganga, the court halted all rafting operations. The Bench explicitly subordinated the importance of regional tourism economy to the importance of ecological health of the river. Commercial activities could resume only when the state implemented a comprehensive, protective regulatory policy. This was the precautionary principle in its purest form: when the ecological stakes are high, activity stops first and proof of safety comes later. The court refused to let commerce continue while regulators deliberated.

The Uttarakhand High Court maintained structural oversight during ecological crises. The Forest Fires Suo Moto Line (2024-2026), initiated by Chief Justice G. Narendar and Justice Subhash Upadhyay, responded to recurring forest fires not with a single order but with sustained administrative reform. The court ordered the state to fill all long-standing vacancies in the Forest Department within six months. It mandated year-round environmental monitoring instead of seasonal tracking. It empowered gram panchayats by establishing village-level fire committees. These orders recognized that environmental protection is not a one-time judicial intervention. It is an ongoing institutional commitment. Forests do not burn because of a single cause. They burn because of cumulative neglect, which includes underfunded departments, absent personnel, and local communities excluded from management. The court addressed the root causes.^[5]

The Himachal Pradesh Community-Centric Protective Model

The Himachal Pradesh High Court demonstrated its protective capacity long before the contemporary era. In General Public of Saproon Valley (1991), the court directed the state to constitute a scientific committee to assess the environmental impact of heavy vehicular traffic through the Solan district and required notification to all project-affected persons before issuing any mining licenses or tree-felling permits. This was three decades before environmental impact assessment became a statutory requirement. The court was operating from first principles: if a project alters the environment, those who live in that environment must know before, not after. The Saproon Valley order established a template that the court would return to repeatedly: protection begins with procedure, and procedure begins with the community.^[6]

The Suo Moto Stone-Crusher PIL Line concerning Bathan and Thural (2019) draws from this community-centric model. Chief Justice Mohammed Rafiq and Justice Sandeep Sharma converted letters from rural residents into public interest litigation. The Neugal River was being destroyed by illegal stone-crushing operations that caused severe slope instability and riverbed erosion. The court’s intervention was swift and targeted. It protected the authority of Gram Panchayat issued No-Objection Certificates against administrative coercion by state industry departments. It enforced strict compliance from the State Pollution Control Board. The precautionary principle was applied at the licensing stage, preventing industrial operations from creating an environmental fait accompli. The court understood what many environmental judgments miss i.e., once a crusher is installed, once a riverbed is mined, once a slope is destabilized, the harm is done. Prevention is the only remedy that works in geographies that are as sensitive as the Himalayas.^[7]

The Gram Panchayats Bhatanwali, Patalia and Behral v. Union of India (2026) extended this procedural protection to federal land-use planning. Local panchayats challenged an Eco-Sensitive Zone notification around the Col. Sherjung National Park in Simbalbara, Sirmaur district. The Ministry of Environment, Forest and Climate Change had omitted required field surveys, land-use inventories, and joint committee formation as mandated by its own 2011 guidelines. Justices Vivek Singh Thakur and Ranjan Sharma quashed the notification. The ruling was technically procedural, but its ecological impact was substantive. A poorly drawn notification that ignores ground realities is worse than no notification at all. It creates legal confusion, invites non-compliance, and discredits the entire regulatory regime. By enforcing proper procedure, the court protected not just the local panchayats but the integrity of the Eco-Sensitive Zone concept itself.^[8]

Another PIL concerning illegal mining in Bageshwar district demonstrated that the Uttarakhand High Court could still act decisively when the harm was visible and immediate. The court took suo moto cognizance and directed the District Magistrate to personally verify illegal mining operations. It constituted a joint committee for ground-level inspection. These were not complex legal questions requiring nuanced balancing. They were straightforward violations of existing law that administrative agencies had failed to prevent. And the court acted swiftly.^[9]

Jammu and Kashmir: Continuity in Wetland and Alpine Protection

The Jammu and Kashmir and Ladakh High Court has demonstrated continuity in its protective stance over environment. Its protective oversight of Dal Lake has spanned more than two decades, surviving the major constitutional reorganization of August 2019 and the transition from state to Union Territory. Successive Division Benches led by Chief Justices Pankaj Mithal, Arun Palli, and N. Kotiswar Singh have maintained seamless oversight of one of the most threatened urban water bodies in the world. When the Master Plan 2035 proposed reducing the 200-meter environmental exclusion zone around Dal Lake to a variable 20-to-100-meter limit, the court intervened directly. In September 2024, it ordered that no new permanent construction would be allowed within the original buffer zones. The warning was explicit: unregulated development could undo twenty years of conservation effort in a single construction season.^[10]

This continuity extends to Wular Lake, where a dedicated litigation line ran from 2021 to 2024. The Wular Lake Conservation and Management Authority had proven ineffective. Illegal encroachments continued. Municipal garbage dumping persisted. Dredging operations moved at glacial speed. In August 2024, Justice Rajnesh Oswal rebuked the authority for failing to meet its objectives and wasting public funds. The court’s frustration was palpable. Public money had been provided by the central government specifically for lake restoration. The authority had absorbed it without producing results. The court’s intervention here was not about legal innovation. It was about institutional accountability. Environmental protection requires institutions that function. When they do not, the court must either reform them or replace their functions with its own oversight.^[11]

The Ramsar Wetlands Suo Motu Line aggregated seven internationally recognized sites across Jammu and Kashmir and Ladakh, including Hokersar, Shalbugh, Haigam, Surinsar-Mansar, Tso Moriri, and Tso Kar. The court enforced the Wetland Conservation and Management Rules 2017, requiring both Union Territories to coordinate with the Ministry of Environment, Forest and Climate Change and technical bodies like IIT Roorkee for Integrated Management Plans. This was strategic environmental governance at scale. Rather than addressing each wetland individually, the court created a unified oversight framework. The Ramsar designation carries international legal obligations. The court ensured that these obligations would not remain paper commitments.^[12]

The Sonamarg Construction Ban case (2017) represents the one of the most pro-active stances of the Court in environment protection. To shield the Thajiwas Glacier watershed and the Sindh River from tourism-induced degradation, the court banned all unapproved constructions within the Sonamarg Development Authority’s jurisdiction. It made the Chief Executive Officer personally liable under contempt law for any fresh unauthorized structures. It ordered a scientific status report directly from the Earth Sciences Department at the University of Kashmir, bypassing standard bureaucratic reporting. This treatment of scientific data as a firm ceiling for development is the antithesis of the balancing approach. Science was not one factor among many. It was the limiting factor. In early 2025, the court reinforced this stance by taking suo moto cognisance of environmental violations in the Gulmarg-Sonamarg road-widening project, converting a newspaper report into PIL and demanding a personal response from the Development Authority’s CEO.^[13]

Structural Cracks and Infrastructure Deference

The Himachal Pradesh Cascade: Hydropower, Mining, and Urban Deregulation

The judgments discussed earlier did protect forests, rivers, lakes, and local communities. However, they are not the usual pattern. In many Himalayan cases, courts speak about balance, development, procedure, and jurisdiction. The language sounds neutral. However, the result often weakens environmental protection.

A clear example is State of Himachal Pradesh v. Yogendra Mohan Sengupta (2024). The NGT had imposed strict limits on height and construction in the Shimla Planning Area. These limits were based on real risks. Shimla sits on fragile slopes. It faces landslides, cloudbursts, and earthquakes. The 2023 monsoon had already shown how dangerous this could be, with major loss of life and damage across Himachal Pradesh.

The Supreme Court lifted those restrictions. It said development and environment had to be balanced. It also held that the NGT could not force the State to frame planning rules in a particular way. On paper, this looked like a technical administrative law issue. In reality, it shifted control back to the State’s planning authorities. These authorities are often more influenced by development pressure than ecological limits.

The Court also distinguished Godavarman, a major forest protection case. This mattered. Instead of treating environmental protection as a strong constitutional duty, the Court treated it as one factor to be balanced against construction. That is the problem. Slopes do not become safer because a plan allows more buildings. Every extra floor adds weight. Every new building adds pressure on water, sewage, drainage, and roads. When the land gives way, the damage is not theoretical. It is physical and often deadly.

A similar problem appears in N.H.P.C. Ltd. v. State of Himachal Pradesh (2024). There, the Himachal Pradesh High Court struck down the State’s water cess on hydropower electricity generation. The Court held that the State did not have the constitutional power to impose such a tax, because electricity generation falls within the Centre’s field. It also ordered refund of the amounts collected.

The reasoning was legal and technical. However, the environmental background was left mostly unaddressed. Himachal’s rivers, including the Sutlej, Beas, Ravi, and Chenab systems, are heavily used for hydropower. These projects divert rivers, tunnel through mountains, change natural flows, and affect downstream communities. The cess was an attempt to make hydropower developers pay at least something for the ecological cost of their projects. By treating the issue mainly as a tax dispute, the Court missed the deeper environmental question. The ecological impact of thirty-plus hydropower projects on a single river basin was never examined. The court’s analysis focused on which level of government has the constitutional power to tax, not on whether the activity being taxed is destroying the resource base that both governments are constitutionally obligated to protect under Article 48A. The ruling thus achieved a double displacement: it removed the state’s financial tool for environmental regulation while legitimizing the fiction that hydropower development is merely an electricity-generation activity rather than a mountain-transforming, river-altering, ecology-disrupting industrial enterprise.

The Alaknanda Hydro Power litigation in Uttarakhand follows an identical pattern. The case centred on environmental clearance for hydroelectric projects on the Alaknanda river system, a major Ganga tributary. The court’s engagement was confined to procedural compliance with environmental impact assessment norms rather than substantive evaluation of cumulative basin-wide impacts. This is the central flaw of environmental litigation in the hydropower sector. Each project is assessed individually. The combined effect of multiple tunnels, multiple diversions, multiple blasting operations on a single geological system is never judicially examined. Environmental scientists have documented the cumulative impact extensively: altered sediment transport, dewatered river reaches, increased seismic stress from reservoir loading, slope destabilization from tunnelling. However, courts continue to treat each project as an isolated legal entity, as if rivers were divisible into segments that can be dammed one at a time without systemic consequence.^[14]

In Jammu and Kashmir and Ladakh, the modification of the Sonamarg Construction Ban in June 2024 reveals how even the strongest protective orders can be eroded through incremental exception. The original 2017 ban, issued to protect the Thajiwas Glacier watershed and the Sindh River, was clear: no new construction within the Sonamarg Development Authority’s jurisdiction. The 2024 order, issued by Chief Justice N. Kotiswar Singh and Justice Moksha Khajuria Kazmi, created an exception for the Amarnath Yatra. Temporary structures would be permitted within the protected eco-sensitive zones to accommodate pilgrims. The court attached conditions: the structures must be dismantled after the pilgrimage, the land restored. However, the creation of an annual exception to an ecological carrying capacity is not a minor adjustment. It is a precedent. Next year the structures may be larger. The following year, they may be semi-permanent. The glacier does not distinguish between temporary and permanent human pressure. Ice melts the same way regardless of the legal category of the structure above it.^[15]

The Amarnath Yatra brings hundreds of thousands of pilgrims to a fragile high-altitude ecosystem. The waste generated, the water extracted, the vegetation trampled, the slopes compacted, all exceed the area’s natural absorption capacity. The court’s accommodation of this pressure is often framed in terms of religious freedom and public convenience. However, rights are not absolute when they destroy the resource base that makes them possible. The right to pilgrimage assumes the continued existence of the pilgrimage site. If the glacier melts, if the meadows erode, if the river silts up, there is nothing left to pilgrimage. The 2024 Sonmarg modification, like the Char Dham highway expansion, treats environmental protection as an obstacle to be managed rather than a foundation to be preserved.

The Uttarakhand Retreat: From Personhood to Procedural Barrier

The Uttarakhand High Court’s trajectory from 2017 to 2026 traces the arc of environmental promise and judicial retreat more starkly. In 2017, it declared rivers to be legal persons. By 2023, it was dismissing local communities for lack of standing. The speed of this reversal is remarkable

The Mohd. Salim and Lalit Miglani judgments were stayed by the Supreme Court in 2017. The stays were procedural. The apex court did not reject the legal personhood doctrine on merits. It simply prevented implementation while the state government’s appeals were heard. However, procedural paralysis is often the most effective form of doctrinal killing. Seven years later, the Special Leave Petition in Lalit Miglani remains pending. The legal personhood of the Ganga, the Yamuna, the glaciers, the forests, exists on paper but not in practice. No guardian has ever filed a case on behalf of the river. No polluter has ever been held liable for violating a river’s rights. The anthropocentric legal system simply could not operationalize a non-anthropocentric legal concept. State authorities argued, predictably, that granting rights to nature created unmanageable liabilities. What they meant was that it would make their development projects more difficult to approve. The Supreme Court’s stay gave them exactly what they needed: time, during which the projects proceeded and the legal innovation fossilized.^[16]

The procedural retreat became explicit in the Tapovan-Vishnugad PIL line following the Chamoli disaster of February 2021, which should have been a turning point. A glacier collapsed above the Rishi Ganga, triggering a debris flow that devastated the area and provided catastrophic physical evidence of hydropower vulnerability. Local residents from the villages of Raini and Joshimath filed public interest litigation seeking the cancellation of the Rishi Ganga and Tapovan-Vishnugad Hydro Projects and the ecological restoration of the affected watershed. However, in July 2021, rather than stopping construction until safety was proven, the Division Bench shifted the focus entirely from ecological risk to petitioner credibility. The court questioned the standing of the local villagers, scrutinized their identities as “social activists,” and characterized the PIL as a “highly motivated” petition filed by “puppets at the hand of an unknown puppeteer”. It dismissed their challenges and imposed financial costs of Rs. 10,000 on each petitioner.

The reasoning in this July 2021 order was purely procedural. The petitioners were found wanting in locus standi, and the court did not examine whether the Tapovan-Vishnugad project violated environmental norms or assess the scientific evidence regarding the future safety and stability of the disaster-prone terrain. It simply ruled that the wrong people had asked the right questions. This is proceduralism as environmental obstruction. When local communities, who are the first to feel the effects of ecological collapse, are denied standing to challenge the projects that cause it, the court removes the most direct form of democratic environmental accountability. It was not until January 2023—a year and a half later, when severe land subsidence had already made parts of Joshimath uninhabitable—that a different Division Bench finally intervened to grant an interim stay, providing the correct but delayed response that construction must halt when a town is sinking.

The Char Dham Pariyojana tells a similar story of procedural enablement of ecological destruction. The Uttarakhand High Court did not issue pre-construction stays. It allowed the project to proceed while litigation continued. By the time the case reached the Supreme Court as Citizens for Green Doon v. Union of India, the physical reality on the ground had changed. Tunnels had been bored. Blasting had occurred. Hundreds of kilometres of road had been cut into mountain faces. The Supreme Court’s December 2021 order, permitting a 10-meter wide double-lane paved shoulder design, was framed around strategic defence needs and national security. The court treated a 2018 Ministry of Road Transport and Highways circular, advising 5.5-meter limits for hilly terrain, as non-binding for strategic corridors. The environmental rule of law was noted, then balanced away. By June 2025, when citizens petitioned the Chief Justice of India for review following fresh disasters in the Bhagirathi eco-sensitive zone, the project’s financial outlays and physical progress had created an institutional fait accompli. The money was spent. The road was built. The review was rendered practically irrelevant by the sunk costs of ecological destruction.^[17]

The Uttarakhand cases show a clear shift. Earlier, the Court took a more protective approach towards rivers, hydropower projects, and animal welfare. In the later cases, however, it was more willing to defer to development decisions, question the maintainability of local petitions, and treat environmental concerns within narrower legal limits. The change is therefore not only in outcomes, but also in the way the Court frames environmental disputes. It is a change in judicial imagination. The 2016-2018 court imagined a world where ecology governed law. The post-2020 court imagines a world where law governs ecology, and that governance takes the form of balancing, procedural filtering, and incremental accommodation of development.

The Commodification of Ecosystems: Compensatory Afforestation as a Readymade Panacea

The jurisprudence of accommodation does not solely rely on procedural dismissals or jurisdictional sidesteps; it fundamentally alters the conceptual premise of environmental conservation by embracing the commodification of nature. When high-value infrastructure projects—particularly national highways and linear corridors—collide with the protective mandates of forest conservation, the Himalayan High Courts frequently adopt the compensatory paradigm, treating complex, ancient ecosystems as fungible assets that can be mathematically replaced.

In Reenu Paul v. Union of India,^[18] the Uttarakhand High Court assessed the ecological impact of infrastructure projects on forest land. Rather than demanding a rigorous, site-specific ecological appraisal or applying the precautionary principle to limit forest diversion, the Division Bench actively encouraged the State Government to identify “land banks” to serve as a repository for compensatory afforestation. The court commended this as a “proactive stance,” observing that a developer coming up with infrastructural development would have a “readymade solution in the form of the afforestation carried out in advance”. The court reasoned that providing developers with pre-packaged land banks ensures that the project’s cost can simply be borne at pre-fixed rates, enabling a “continuous cycle” of development where the state concurrently creates green cover.

This represents the ultimate crack in environmental jurisprudence. By celebrating a “readymade solution” for infrastructure developers, the court legally validated the myth of ecological interchangeability. A mature Himalayan forest—complete with its specific hydrological functions, soil stabilization capacities, and endemic biodiversity—is treated as functionally equivalent to a monoculture sapling plantation on a designated land bank. The language of environmental protection is retained (the court noted this ensures the “green cover is not impacted seriously”), but its application is entirely facilitative.

Sovereign Exceptionalism: National Security and the Eclipse of Community Commons

When the state invokes national security or acute public need, the ecological evidence test is routinely bypassed. The state’s assertion of necessity functions as a jurisdictional shield, neutralizing Supreme Court precedents designed to protect community ecology.

In Inhabitants of Village Dambra v. UT of J&K,^[19] the Jammu and Kashmir High Court confronted the transfer of 148 Kanals and 1 Marla of Shamlat Deh (Mehfooz Kacharai) land—traditional village grazing commons containing forests and ponds—to the Prisons Department for the construction of a High-Security Prison. The villagers argued that destroying the grazing grounds and water bodies violated the Supreme Court’s stringent directives against alienating community commons, arguing the land required preservation.

The Division Bench dismissed the petition, insulating the project using the language of sovereign security. The court observed that the decision to establish such a prison was taken in view of the prevailing situation in Jammu and Kashmir, which is afflicted by terrorist activities abetted by inimical foreign forces. The court explicitly concluded that the construction of a high-security prison serves a public purpose and is “necessary for the security of the nation.” Crucially, the Supreme Court precedents demanding the strict protection of community ecology and grazing lands were not considered. The court ruled that these precedents “could not be invoked to come in the way of an important project required in public interest and for the security of the Nation”. Ecology was not balanced against security and it was rather entirely eclipsed by it.

A similar dilution occurs when the state voluntarily lowers its own environmental regulations to accelerate extraction. In Inhabitants of Sheva Shirshu Doda v. UT of J&K,^[20] local villagers challenged the installation of a stone crusher and hot mix plant in an environmentally sensitive area. The government had promulgated S.O. 60 of 2021, a highly permissive framework that liberalized the mining regime and removed the need for a Mining Department license for stone crushers by redefining them not as mining units, but merely as “processors of minerals”. Faced with this executive rollback of environmental safeguards, the High Court did not invoke the doctrine of non-regression or the precautionary principle. Instead, the court deferred entirely to the state, citing the limited “scope of judicial review of government policy” and declaring that courts cannot act as appellate authorities over executive formulations. By framing the dispute as a matter of administrative policy rather than an ecological one, the court accommodated the industrial degradation of the mountain landscape.

Procedural Myopia: Weaponising Timelines and Standing to Shield Environmental Harm

The most effective judicial mechanism for accommodating ecological harm without directly contradicting environmental law is procedural dismissal. By focusing intensely on the petitioner’s locus standi, timelines, and procedural technicalities, courts successfully, avoid the burden of assessing complex environmental evidence.

The Jammu and Kashmir High Court’s handling of the Rinkoo Sharma v. Union of India^[21] PILs exemplifies this procedural obstruction. Petitioners challenged the de-notification of the protected Trikuta Wildlife Sanctuary to allow for the extraction of high-grade magnesite and a mining project by the National Mineral Development Corporation (NMDC) near the Vaishno Devi Shrine. Rather than demanding a rigorous ecological assessment of mining in a highly fragile wildlife zone, the Division Bench interrogated the procedural posture of the petitions. The court noted that the environmental clearance was subject to the final orders of the Supreme Court, rendering the PILs “pre-mature.”

More significantly, the court weaponized procedural rules against the petitioners. It observed that the petitioners, who were advocates, had failed to comply with Rule 24 of the Writ Proceedings Rules, which mandated sending a prior representation to the concerned authorities before filing a PIL. Because this technical pre-requisite was not met, and because the petitioners failed to disclose the pendency of a related PIL, both petitions were dismissed at the threshold. The substantive reality—the irreversible ecological impact of mining in a protected Himalayan wildlife sanctuary—was entirely bypassed via procedural formalism.

The doctrine of delay and laches serves an identical shielding function. In Sumit Nayyar v. Shri Mata Vaishno Devi Shrine Board ^[22], an advocate filed a PIL challenging the construction of pilgrim infrastructure and mule-track developments by the Shrine Board. The court not only dismissed the petition on the grounds of an eight-year delay and laches, but it also aggressively questioned the bona fides of the petitioner. Citing Supreme Court jurisprudence on frivolous litigation, the court warned that public interest litigation filed by members of the legal profession without serious “home work and enquiry” should be dismissed with exemplary costs to prevent the abuse of the judicial process. By shifting the judicial gaze from the carrying capacity of the Trikuta hills to the conduct and timing of the petitioner, the court effectively insulated the continuous expansion of religious tourism infrastructure from environmental scrutiny.

Conclusion

The environmental jurisprudence of the Himalayan High Courts over the last decade reveals an unsettling paradox: the vocabulary of ecological protection has never been richer, yet the physical landscape has never been more legally vulnerable. The courts of Himachal Pradesh, Uttarakhand, and Jammu & Kashmir and Ladakh have masterfully preserved the text of environmental law while pronouncing judgements that blunt its teeth.

When confronted with the relentless march of state-backed mega-projects, cascade hydropower, and strategic corridors, the judiciary rarely mounts its attack on the basis of precautionary principle or the public trust doctrine. Instead, it engages in a sophisticated jurisprudence of accommodation. As this analysis demonstrates, systemic ecological crises are administratively sanitized, neutralized by the invocation of sovereign “national security” overrides, or deflected through hyper-technical applications of locus standi and laches. The courts do not need to explicitly reject environmental safeguards to permit ecological destruction; they simply change the legal subject.

Even when the courts do intervene, the nature of the intervention has decisively shifted from absolute prohibition to facilitative mitigation. Existential threats to glacial watersheds and fragile seismic zones are reduced to logistical challenges—solved by minor mitigation measures, or the transactional fiction of “readymade” compensatory afforestation banks. The strict legal boundary lines once drawn to protect nature are repeatedly erased and redrawn as mere pricing mechanisms or technical compliance hurdles. The state is permitted to lower the statutory bar, and the polluter is legally validated for successfully stepping over it.

In this accommodative framework, the Himalayas are no longer treated as a sacred public trust or an integrated living ecosystem holding intergenerational equity. They are legally framed as a challenging terrain to be engineered, compensated for, and ultimately conquered. The foundational tenets of Indian environmental law were designed as a hard ceiling against irreversible harm, but they have been retooled into a machinery of concession. Until the Himalayan courts stop subordinating substantive ecological survival to procedural formalism and administrative deference, the majestic peaks, rivers, and forests of the region will continue to be hollowed out, with legal sanction and with the judiciary watching on.

Note: The 3-part series is based on strong empirical standing. Part I dealt with substantive high court pronouncements coming from resource rich Central and Eastern India- Jharkhand, Chhattisgarh, Madhya Pradesh and Odisha. Part II (Western India) closely examined judgements emerging from the high courts of Bombay, Karnataka and Goa.

Part IV (Northern India) reflects on judgments from Delhi, Punjab & Haryana, Uttarakhand and Allahabad.

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

^[1] This article forms Part III of a three-part series examining environmental jurisprudence in the Trans-Himalayan High Courts. Parts I and II Central India and Western India respectively.

^[2] Mohd. Salim v. State of Uttarakhand, 2017 SCC OnLine Utt 367, Writ Petition (PIL) No. 126 of 2014, Uttarakhand High Court, judgment dated March 20, 2017.

^[3] Lalit Miglani v. State of Uttarakhand, W.P. (PIL) No. 140 of 2015, Uttarakhand High Court, judgment dated March 30, 2017.

^[4] Narayan Dutt Bhatt v. Union of India, 2018 SCC OnLine Utt 645, Writ Petition (PIL) No. 43 of 2014, Uttarakhand High Court, judgment dated July 4, 2018.

^[5] In the Matter of Forest Area, Forest Health, and Wildlife Conservation (Forest Fires Suo Motu Line), W.P. (PIL) No. 174 of 2024, Uttarakhand High Court, orders dated December 31, 2025 and March 18, 2026.

^[6] General Public of Saproon Valley and Ors. v. State of Himachal Pradesh, Civil Writ Petition No. 595 of 1991, Himachal Pradesh High Court, judgment dated April 24, 1991.

^[7] Court on Its Own Motion v. State of Himachal Pradesh (Bathan, Thural Stone-Crusher Line), CWPIL No. 12 of 2019, Himachal Pradesh High Court.

^[8] Gram Panchayats Bhatanwali, Patalia and Behral v. Union of India, Civil Writ Petition, Himachal Pradesh High Court, judgment dated April 16, 2026.

^[9] In the Matter of Unauthorized Mining and Illegal Construction near Dwarahat (Bageshwar), W.P. (PIL) No. 35 of 2024, Uttarakhand High Court, order dated December 31, 2025.

^[10] Syed Iqbal Tahir Geelani v. State of Jammu & Kashmir, PIL No. 27/2017 (formerly PIL No. 159/2002), Jammu and Kashmir and Ladakh High Court, order dated September 12, 2024.

^[11] Kashmir Environmental Protection v. State of Jammu & Kashmir (Wular Lake Line), PIL No. 14 of 2021, Jammu and Kashmir and Ladakh High Court, order dated August 22, 2024.

^[12] In Re Protection of Seven Ramsar Wetlands in Jammu, Kashmir and Ladakh, Suo Motu PIL No. 35 of 2018, Jammu and Kashmir and Ladakh High Court, order dated August 14, 2024.

^[13] Court on Its Own Motion v. Sonamarg Development Authority, PIL No. 27/2017, Jammu and Kashmir High Court, construction ban baseline order dated October 23, 2017. See also Court on Its Own Motion v. UT of J&K & Ors., Suo Motu PIL No. 27/2017, Jammu and Kashmir and Ladakh High Court, order dated January 3, 2025.

^[14] Alaknanda Hydro Power Co. Ltd. v. State of Uttarakhand & Others, Civil Writ Petition, Uttarakhand High Court.

^[15] Court on Its Own Motion v. UT of J&K, PIL No. 27/2017, Jammu and Kashmir and Ladakh High Court, order dated June 24, 2024.

^[16] The Supreme Court stay in Mohd. Salim was passed in Civil Appeal Diary No. 7699 of 2017. The Lalit Miglani SLP (Civil Appeal Diary No. 7906 of 2017) remains pending as of 2026.

^[17] Citizens for Green Doon v. Union of India, W.P. (Civil) No. 1102 of 2018, Supreme Court of India, judgment dated December 14, 2021.

^[18] Reenu Paul v. Union of India and Others, Writ Petition (PIL) No. 37 of 2025, (2025), High Court of Uttarakhand at Nainital

^[19] Inhabitants of Village Dambra v. UT of J&K Th GAD and Ors., LPA No. 185/2023, (2023), High Court of Jammu & Kashmir and Ladakh at Jammu

^[20] Inhabitants of Sheva Shirshu Doda v. UT of J&K and Others, WP (C) No. 639/2022, (2023), High Court of Jammu & Kashmir and Ladakh at Jammu

^[21] Rinkoo Sharma v. Union of India, WP PIL No. 02/2012 and WP PIL No. 03/2012

^[22] Sumit Nayyar v. Shri Mata Vaishno Devi Shrine Board and ors., WPPIL No. 14/2016, (2017), High Court of Jammu and Kashmir at Jammu.

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Unending Adjudication: The Vanashakti reversal and environmental finality in India

Cracks in Environmental Jurisprudence: A study of central India’s High Courts

Cracks in Environmental Jurisprudence: The Bombay High Court’s shifting language

The post Himalayan Courts: Young folds & new cracks in environmental jurisprudence appeared first on SabrangIndia.

Appearing before a Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi, Solicitor General Tushar Mehta stated that the Union had decided, “keeping in view the peculiar facts and circumstances of the case,” to facilitate the return of the deported individuals and examine their claims to Indian citizenship in accordance with law.

“My instructions are, the Government will bring them back, and thereafter will examine their status, and depending on the outcome, will take steps accordingly,” the Solicitor General submitted before the Court, reported LiveLaw.

Senior Advocate Sanjay Hegde, appearing for the affected individuals, urged the Court to formally record the Union’s assurance. The Solicitor General agreed, while clarifying that the statement was being made in the exceptional circumstances of the present case and should not be treated as a precedent for future matters involving deportation or citizenship disputes.

As per LiveLaw, recording the submission, the Supreme Court passed an order stating: “The Solicitor General of India submits that keeping in view the peculiar facts and circumstances of the case, and by not treating it as a precedent to be followed in other instances, the Government of India has decided to bring the respondents back to India and to verify the claim of Indian citizenship. Their continuation in India will depend on the outcome of such enquiry.”

The Solicitor General informed the Bench that the process of bringing the individuals back from Bangladesh could take approximately eight to ten days.

The proceedings arise out of a series of habeas corpus petitions concerning Bengali-speaking families who were deported to Bangladesh in June 2025 during identity-verification operations allegedly conducted under a Ministry of Home Affairs directive. In September 2025, the Calcutta High Court had directed the repatriation of several deported persons, including Sunali Khatun, her husband Danish Sekh and their minor son Sabir Sekh, as well as Sweety Bibi and her two sons, Kurban and Imam. The High Court had sharply criticised the “hot haste” with which the deportations were carried out, observing that the affected individuals were removed without adequate inquiry, without a meaningful opportunity of hearing, and in apparent violation of procedural safeguards contained in the Union Government’s own guidelines.

The present development marks a substantial shift in the Union’s position. Earlier, in December 2025, the Centre had agreed to facilitate the return of Sunali Khatun—who was then in an advanced stage of pregnancy—and her young son on what it described as “purely humanitarian grounds.” At the time, the Supreme Court had underscored the need to balance legal enforcement with humanitarian considerations, remarking that some situations required “law to bend to humanity.”

That earlier intervention had followed disturbing findings by the Calcutta High Court regarding the manner in which the deportations were executed. According to the pleadings before the High Court, the affected families, originally from West Bengal but residing in Delhi for livelihood, were detained during an identity-verification exercise and deported to Bangladesh within five days. The High Court had noted that documentary material, including electoral records relating to the deportees’ family members, prima facie indicated Indian lineage and warranted a fuller inquiry before any coercive action could be taken.

While the Union Government has consistently maintained that the deportations were lawful and that the citizenship claims remain disputed, Friday’s undertaking before the Supreme Court indicates that the affected individuals will now be given an opportunity to establish their nationality status within India before any further steps are contemplated.

Related:

SC secures return of pregnant woman and child deported to Bangladesh, says ‘law must bend to humanity’

“All I Wanted Was Peace”: How 55-year-old widow Aklima Sarkar won back her citizenship

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

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

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

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

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

The post Bhodu Sekh Case: Union agrees before Supreme Court to repatriate deported Bengali-speaking individuals pending citizenship inquiry appeared first on SabrangIndia.