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 is remarkable for three interconnected reasons. First, it forcefully restores the constitutional framework laid down in KA Najeeb, which had recognised prolonged incarceration and delay in trial as an independent ground for bail despite the statutory rigours of Section 43D(5) of the UAPA. Second, it openly expresses “serious reservations” regarding the correctness of the January 2026 ruling in Gulfisha Fatima v. State — the judgment that denied bail to Umar Khalid and Sharjeel Imam in the Delhi riots larger conspiracy case. Third, it mounts a broader institutional critique against the gradual dilution of larger-bench constitutional precedents through restrictive interpretation by smaller benches.

The judgment must therefore be read not simply as a bail order, but as a constitutional correction to the increasingly punitive trajectory of UAPA jurisprudence.

The Constitutional Foundation: Bail as a principle of liberty, not mere procedure

One of the most significant contributions of the judgment lies in the Court’s attempt to relocate the principle of bail from the narrow confines of statutory criminal procedure into the broader domain of constitutional liberty.

Justice Justice Ujjal Bhuyan, authoring the judgment for both him and Justice Nagarathna, observed:

“The often invoked phrase ‘bail is the rule and jail is the exception’ is not merely an empty statutory slogan flowing from the CrPC as Gurwinder has stated. It is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence which is the cornerstone of any civilised society governed by the rule of law.” (Para 35)

This paragraph is foundational to understanding the judgment. The Court is consciously rejecting the tendency to treat bail merely as a discretionary procedural question. Instead, it roots the concept directly in constitutional structure — specifically Article 21’s guarantee of personal liberty and the presumption of innocence that underlies criminal justice systems governed by the rule of law.

The significance of this reasoning becomes even more pronounced in the context of UAPA prosecutions. Over the past several years, courts have increasingly approached bail under anti-terror statutes through the lens of statutory embargoes alone, often reducing constitutional scrutiny to a secondary consideration. The Andrabi judgment reverses that hierarchy.

The Court unequivocally held:

“The statutory embargo of Section 43-D(5) must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution. Therefore, we have no manner of doubt in stating that even under the UAP Act, ‘bail is the rule and jail is the exception’; of course, in an appropriate case, bail can be denied having regard to the facts of that particular case.” (Para 35)

This observation is doctrinally critical because it clarifies that Section 43D(5) does not override constitutional guarantees; rather, it operates within constitutional limitations. In other words, the Constitution remains supreme even in national security prosecutions. This is perhaps the strongest reaffirmation in recent years that anti-terror legislation cannot create a parallel constitutional order where liberty stands suspended indefinitely.

Reaffirmation of KA Najeeb and the constitutional right against endless pre-trial incarceration

The central doctrinal axis of the judgment is its reaffirmation of Union of India v. KA Najeeb.

The Court repeatedly emphasised that KA Najeeb had already settled the principle that constitutional courts retain the power to grant bail under the UAPA where prolonged incarceration and delay in trial render continued detention constitutionally unjustifiable.

The bench noted that KA Najeeb specifically recognised the structural dangers inherent in Section 43D(5). Because the provision creates an exceptionally stringent threshold for bail, trials that move slowly can result in undertrials remaining imprisoned for years before guilt is determined.

The Court observed:

“A plain reading of Najeeb will show that it was trying to prevent precisely this possibility from arising when it cautioned that Section 43-D(5) must not become ‘the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.” (Para 27.8)

This paragraph is perhaps the conceptual heart of the judgment.

The Court is acknowledging that when bail adjudication is governed exclusively by Section 43D(5), and trials continue indefinitely, the criminal process itself begins to inflict punishment irrespective of conviction. The danger identified is not merely procedural delay, but the transformation of pre-trial detention into substantive punishment.

The Andrabi judgment therefore restores the original constitutional logic of KA Najeeb: anti-terror statutes cannot be interpreted in a manner that destroys the right to speedy trial.

Importantly, the Court rejects the argument that KA Najeeb applies only in extraordinary or narrowly exceptional situations.

The Court stated:

“…we make it clear that Najeeb is binding law entitled to the protection of stare decisis. It cannot be diluted, circumvented, or disregarded by trial courts, High Courts or even by Benches of lower strength of this Court.” (Para 39)

This is a direct response to the narrowing interpretations that emerged in later judgments.

Direct Critique of Gulfisha Fatima and Gurwinder Singh

One of the most extraordinary aspects of the ruling is the Court’s explicit criticism of Gulfisha Fatima v. State and Gurwinder Singh v. Union of India.

The Court observed that both judgments appeared to take a “divergent view” from the law laid down in KA Najeeb.

The Bench stated:

“In our view, the decision in Gurwinder inasmuch as it refuses to be bound by Najeeb, is difficult to be followed by us as a matter of precedent. It is plain that a judgment rendered by a Bench of lesser strength is bound by the law declared by a Bench of greater strength. Judicial discipline mandates that such binding precedent must either be followed or, in case of doubt, be referred to a larger Bench. A smaller Bench cannot dilute, circumvent, or disregard the ratio of a larger Bench.” (Para 27.2)

This observation has enormous institutional significance. The Court is effectively warning against a judicial technique where binding precedents are not expressly overruled, but are instead gradually weakened through restrictive interpretation. Such an approach undermines certainty in constitutional adjudication and destabilises the doctrine of precedent.

The Court’s criticism becomes particularly important because both Gulfisha Fatima and Gurwinder Singh, authored by Justice Aravind Kumar, had significantly narrowed the scope of KA Najeeb.

In Gulfisha Fatima, the Court had held that KA Najeeb applied only in exceptional cases. The present bench expressly disagreed with that understanding.

The Court also expressed “serious reservations” regarding the direction in Gulfisha Fatima effectively preventing the accused from seeking bail for one year. This criticism is constitutionally significant because bail adjudication necessarily involves continuing judicial supervision over deprivation of liberty. A blanket embargo on future bail applications risks freezing constitutional scrutiny despite changing trial circumstances.

Rejection of the “two-prong test” and the recognition of punitive pre-trial detention

The judgment contains a particularly powerful critique of the “two-prong test” evolved in Gurwinder Singh.

Under that approach, bail could be considered only if:

1. there was prolonged incarceration; and
2. the accused could also demonstrate that the prosecution case lacked prima facie merit.

The Supreme Court rejected this formulation outright.

Justice Bhuyan observed:

“If this twin-prong test is accepted, the State need only satisfy a low prima facie threshold while the trial may continue for years with the result that pre-trial incarceration begins to acquire a post-trial punitive character and even then, no court could ever grant bail no matter the length of period of such incarceration because the case stood prima facie made out against the accused.” (Para 27.8)

This paragraph is one of the strongest judicial recognitions yet of the phenomenon commonly described as “process as punishment.” The Court identifies the structural reality of UAPA prosecutions: once the State crosses the low threshold of prima facie satisfaction under Section 43D(5), undertrials may remain imprisoned for years because trials move slowly and courts refuse to reconsider liberty claims.

The Court correctly recognised that in such circumstances, incarceration ceases to be preventive or regulatory and instead becomes punitive — despite the absence of conviction. The judgment therefore rejects the idea that constitutional courts must indefinitely defer to prosecutorial allegations where the criminal process itself becomes oppressive.

Limiting the reach of Watali

The Court’s treatment of NIA v. Zahoor Ahmad Shah Watali is another crucial aspect of the judgment. Watali has frequently been used to argue that courts should not meaningfully scrutinise prosecution evidence at the bail stage in UAPA cases.

The present bench clarified:

“The position of law emerging from Najeeb and Sk. Javed Iqbal is therefore clear: Watali cannot be invoked to justify indefinite incarceration of the accused under the UAP Act. For the aforesaid reasons, the attempt in Gurwinder to read Watali as laying down a general rule of denial of bail notwithstanding the period of incarceration is difficult to reconcile with this Court’s own subsequent clarification of what the ratio in Watali actually meant.” (Para 27.6)

This clarification is significant because Watali has often functioned in practice as a near-automatic barrier against bail. The Andrabi judgment restores doctrinal balance by clarifying that Watali cannot be interpreted in isolation from constitutional guarantees and from KA Najeeb.

Even where a prima facie case exists, constitutional courts remain obligated to assess whether prolonged incarceration and delayed trial have rendered continued detention unconstitutional.

The Court’s Reliance on NCRB Data: An empirical critique of UAPA incarceration

One of the most striking features of the judgment is its reliance on empirical conviction data.

Referring to NCRB statistics placed before Parliament by the Union Ministry of Home Affairs, the Court observed:

“…it is evident that the country-wide percentage of conviction under the UAP Act for the five years comprising the period 2019-23 hovers between 2% to 6%. In other words, there is 94% to 98% possibility of acquittal in such cases in the country. When it comes to the Union Territory of Jammu and Kashmir, the percentage of conviction is abysmal, to say the least. For the aforesaid period, the annual rate of conviction is always less than 1%. It means that at the end of the trial, there is 99% possibility of acquittal in such cases. With these kind of statistics staring at our face, the question is, should we continue the detention of the appellant or defer the consideration to a later stage, simply because the charges are serious?” (Para 42.3)

This reasoning is extraordinary because the Court explicitly connects low conviction rates with the constitutional legitimacy of prolonged detention. Ordinarily, anti-terror jurisprudence focuses almost exclusively on allegations and national security considerations. The Andrabi judgment shifts attention to outcomes: if acquittal rates are overwhelmingly high and trials take years, then prolonged incarceration cannot be justified solely on the basis of accusation.

This represents a subtle but important constitutional shift. The Court is effectively recognising that the practical operation of the UAPA must be assessed not only in theory but also through its systemic consequences.

Article 21, Speedy Trial, and the Constitutional Crisis of Delay

The Court repeatedly foregrounded Article 21 and the right to speedy trial by observing:

“We do not want to join issue any further with the two-Judge Bench either in Gurwinder Singh or in Gulfisha Fatima. As noted supra, Gurwinder Singh has already been explained in Sheikh Javed Iqbal and in Javed Gulam Nabi Shaikh, reiterated in Arvind Dham, this Court has categorically held that Article 21 applies irrespective of the nature of the offence. Ideally, more serious the accusations are, the speedier the trial should be.” (Para 40)

This statement directly challenges the prevailing judicial logic where grave allegations often justify more restrictive bail standards and slower constitutional scrutiny. The Court instead inverts the framework: the greater the seriousness of allegations, the greater the constitutional obligation upon the State to ensure expeditious adjudication.

The judgment therefore recognises that prolonged detention without trial is not merely an administrative problem; it is a constitutional injury.

The Court’s reasoning implicitly acknowledges a larger systemic reality: UAPA trials often involve enormous witness lists, voluminous documentary records, and prolonged delays that make timely completion virtually impossible. When combined with restrictive bail standards, this creates a carceral structure where accused persons may spend years imprisoned irrespective of eventual guilt or innocence.

Conclusion: A constitutional warning against “punishment through process”

The Andrabi judgment ultimately functions as a constitutional warning against the gradual normalisation of punitive pre-trial detention under anti-terror laws.

The Court restores several foundational propositions:

• that Article 21 survives even in UAPA prosecutions;
• that Section 43D(5) cannot eclipse constitutional liberty;
• that KA Najeeb remains binding law;
• that Watali cannot justify endless incarceration;
• that smaller benches cannot dilute larger-bench precedents;
• and that prolonged delay itself may render detention unconstitutional.

Most importantly, the judgment recognises a reality that has increasingly shaped anti-terror prosecutions in India: where trials take years, conviction rates remain exceptionally low, and bail thresholds are interpreted rigidly, incarceration itself becomes the punishment.

The Court’s intervention is significant precisely because it identifies this not merely as a policy concern, but as a constitutional crisis.

Related report may be read here.

The complete judgment is attached below:

Related:

Supreme Court reasserts KA Najeeb, warns against “hollowing out” constitutional protections in UAPA cases; questions Umar Khalid bail verdict

CJP files complaint against BJP MLA & Minister Nitesh Rane and right-wing leaders over alleged hate speeches in Maharashtra and West Bengal

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

Caged Voices, Silenced Truths: FSC’s expansive indictment of India’s press freedom crisis

From Cow Slaughter to “Public Order”: Allahabad High Court’s expanding use of preventive detention

The post Andrabi Judgment: Section 43D(5) UAPA cannot override right to speedy trial, restores primacy of Article 21 in UAPA cases appeared first on SabrangIndia.

CJP stated in the complaints that the alleged hate speeches violated constitutional guarantees under Articles 14, 15 and 21 and attracted offences under provisions relating to promotion of enmity between groups, criminal intimidation, statements conducing to public mischief, deliberate acts intended to outrage religious feelings, and incitement to violence.

The complaints concern speeches delivered in Chandivali and Malad Malvani in Mumbai, Kalyani in Nadia district of West Bengal, and Junnar in Pune district.

Complaint against Nitesh Narayan Rane over Chandivali speech: May 12, 2026

In a complaint dated May 12, 2026, addressed to Shri Nikhil Gupta, Additional Director General (Law & Order), Maharashtra, Addl. Commissioner of Police, West Region, Mumbai, and Senior Police Inspector, Sakinaka Police Station, Mumbai, CJP sought registration of an FIR against BJP MLA and Maharashtra Cabinet Minister Nitesh Narayan Rane for allegedly delivering a divisive communal speech during a Hindu convention held in Chandivali, Mumbai on May 3, 2026.

CJP stated in the complaint that Rane utilised dehumanising language against Muslims, spread conspiracy theories regarding “Love Jihad,” “Land Jihad,” “Corporate Jihad,” and “Ghazwa-e-Hind,” and openly encouraged social and economic boycott of Muslims. The complaint alleged that the speech attempted to create fear and hostility by portraying Muslims as an existential threat to Hindus and India.

According to CJP, Rane repeatedly referred to Muslims as “green snakes” and urged the audience to confront them. The complaint reproduces the speech transcript, including the following statements:

“[They] should come to Maharashtra. This writhing of green snakes (referring to Muslims) must stop. That is why the saffron flag has been unfurled in Maharashtra, remember this.”

“And therefore, while moving around as a Hindu, do so with self-confidence. Move with courage. If any green snake is writhing here, take guidance from Tai and then give me a call.”

The complaint further stated that Rane repeatedly described India as a “Hindu Rashtra” and suggested that Muslims were attempting to convert India into an Islamic nation through organised conspiracies.

CJP also stated in the complaint that Rane attempted to create fear among Hindus by claiming that Muslims would prevent Hindu religious practices if their population increased.

The complaint reproduces the following statements:

“You won’t be able to perform puja in your home. This saffron flag won’t be able to fly here. You won’t be able to apply the Tilak on your forehead.”

“Mothers and sisters won’t be able to apply vermilion (Sindoor) on their heads.”

According to CJP, the speech also included references to alleged communal incidents in Palghar and Virar to reinforce hostility against Muslims. The complaint additionally highlighted Rane’s remarks calling for economic boycott of Muslims:

“So, when we are dealing with them, buying from them, or giving them jobs—first, if someone is sitting at a shop, even if the shop’s signboard says ‘Jay Shri Ram,’ sometimes Abdul is sitting inside.”

“First tell him, ‘Recite the Hanuman Chalisa for me first.’ If you recite the Hanuman Chalisa only then will I buy from you, otherwise I won’t.”

“Therefore, if jobs are to be given or purchases are to be made, it should only be for Hindus—this should be the stance of all of us.”

CJP stated in the complaint that these remarks amounted to explicit encouragement of discrimination and exclusion of citizens based on religion and constituted a direct appeal for economic boycott of Muslims.

A copy of complaint dated May 12, 2026 can be accessed here

Complaint against Nitesh Rane over Malad Malvani speech during Ram Navami Yatra

In another complaint dated April 28, 2026, addressed to Maharashtra Police authorities, CJP sought registration of an FIR against Nitesh Narayan Rane over a speech delivered during the Ram Navami Yatra held in Malad Malvani, Mumbai, on March 26, 2026.

According to CJP, the speech promoted communal hostility, issued direct threats of violence, and attempted to alienate Muslims by declaring India a “Hindu Rashtra” and describing the locality as belonging exclusively to “saffron-clad” Hindus.

CJP stated in the complaint that Rane used references to “Pakistan” as a dog-whistle against Muslims and openly threatened those opposing Hindutva ideology.

The complaint reproduces the following portions of the speech:

“Perhaps some people here in Malvani have forgotten that this is our Hindu Rashtra, this is not someone’s Pakistan. If anyone tries to remove that saffron flag, we will not let their cylinder come up again. If anyone again looks at our saffron flag with dirty eyes, then their eyes will be taken out and played with like marbles.”

CJP alleged that these remarks amounted to open threats of violence and intimidation. The complaint further stated that Rane specifically directed slogans toward a mosque in the locality, thereby attempting to provoke confrontation and disturb communal harmony. The reproduced statement reads:

“That voice must reach the big mosque.”

According to CJP, such statements sought to intimidate the Muslim community and portray them as outsiders within the constitutional framework of India. The complaint also alleged that Rane invoked the authority of a “government with a Hindutva ideology” to suggest political backing for aggressive communal mobilisation.

A copy of complaint dated April 28, 2026 can be accessed here

Complaint against Hari Mishra in West Bengal over hate speech during election campaign in Nadia

In a complaint dated May 6, 2026 addressed to the District Magistrate and Superintendent of Police in Nadia district, West Bengal, CJP sought registration of an FIR under Sections 196, 197, 299, 302, 352 and 353 of the Bharatiya Nyaya Sanhita, 2023 against BJP leader Hari Mishra for a speech delivered during an election campaign in Kalyani, Nadia district, on April 23, 2026. CJP stated in the complaint that Mishra spread anti-Muslim conspiracy theories and falsely claimed that Hindu festivals could not be celebrated in Muslim-majority areas.

The complaint reproduces portions of the speech including:

“In any area where the Muslim population is above 30-35%, Saraswati Puja will not happen. In places like Malda and Murshidabad… you first have to take permission from the nearest mosque. A situation worse than Bangladesh is going to happen on the soil of West Bengal.”

CJP further alleged that Mishra falsely claimed that the Constitution of India did not function in parts of West Bengal. The reproduced transcript includes:

“The Constitution of India does not work in many parts of Malda and Murshidabad. In about 25-30% of the areas in Malda and Murshidabad, the Constitution, rules, laws, and regulations of India do not apply.”

The complaint also referred to statements linking demographic change with political exclusion: “The day Muslims reach above 40-45%, not a single Hindu MP, MLA, counselor, or chairman will remain in West Bengal.”

According to CJP, these remarks sought to portray Muslims as a threat to democratic institutions and communal coexistence and were intended to create fear and polarisation during the election period.

A copy of complaint dated May 6, 2026 can be accessed here

Complaint against Harshu Thakur in Junnar, Pune over speech delivered at Virat Hindu Sammelan

In a separate complaint dated May 6, 2026, addressed to the Additional Director General (Law & Order), Maharashtra, the Superintendent of Police, Pune Rural, and the Deputy Superintendent of Police, Junnar Division, CJP sought registration of an FIR against Harshu Thakur over a speech delivered at the Virat Hindu Sammelan held in Junnar, Pune district, on April 19, 2026. CJP stated in the complaint that Thakur spread anti-Muslim rhetoric through references to “Forest Jihad,” “Love Jihad,” and “Land Jihad,” while also making statements encouraging militarised responses and targeting Islamic institutions and burial practices.

The complaint reproduces the following statements:

“Wherever there is open land, there are graves. If you start funding madrasas, then only terrorists will be produced there. Mulla-Maulvis give them training on how to trap girls in ‘Love Jihad’ and how to carry out ‘Land Jihad’. They are taught how to make bombs.”

CJP further highlighted remarks targeting Muslim men and encouraging women to arm themselves:

“All these ‘Abduls’ are the same. Every Hindu woman just needs to be given a weapon.”

The complaint also alleged that Thakur attempted to frame Muslims as inherently violent while encouraging religious segregation and hostility.

A copy of complaint dated May 6, 2026 can be accessed here

Judicial precedents on which CJP relied upon

In the complaints submitted before police authorities in Maharashtra and West Bengal, CJP also relied upon multiple judicial precedents of the Supreme Court concerning hate speech, communal targeting, and the constitutional obligation of authorities to act against inflammatory rhetoric. Referring to the Supreme Court judgment in Firoz Iqbal Khan vs Union of India [W.P. (Civ.) No. 956 of 2020], CJP highlighted the Court’s observations that “the edifice of a democratic society committed to the rule of law under a regime of constitutional rights, values and duties is founded on the co-existence of communities. India is a melting pot of civilisations, cultures, religions and languages. Any attempt to vilify a religious community must be viewed with grave disfavour by this Court as the custodian of constitutional values.”

CJP stated that the speeches delivered by Nitesh Rane, Hari Mishra, and Harshu Thakur collectively portrayed Muslims as conspirators, outsiders, extremists, and demographic threats, thereby directly undermining constitutional values of equality, fraternity, and peaceful coexistence. The complaints further referred to Pravasi Bhalai Sangathan v. Union of India [AIR 2014 SC 1591], where the Supreme Court observed that “hate speech is an effort to marginalise individuals based on their membership to a group,” and warned that such speech can lay the groundwork for discrimination, ostracism, violence, and even genocide. CJP stated that the repeated references to “Love Jihad,” “Land Jihad,” “Forest Jihad,” “Corporate Jihad,” alleged demographic conspiracies, and calls for economic boycott sought to institutionalise fear and hostility against Muslims and therefore warranted immediate criminal action.

The complaints additionally cited the Supreme Court’s order dated April 28, 2023 in Ashwini Kumar Upadhyay v. Union of India [W.P. (C) No. 943 of 2021], wherein all States and Union Territories were directed to register suo moto FIRs against hate speech irrespective of religion whenever offences under Sections 153A, 153B, 295A, 505 IPC and related provisions are attracted.

Provisions related to hate speech under BNS, 2023

CJP further stated that the speeches attract multiple provisions of the Bharatiya Nyaya Sanhita, 2023, particularly Sections 196, 197, 299, 302, 352 and 353. According to the complaints, the repeated targeting of Muslim religious institutions, educational spaces, and social identity through references such as “green snakes,” “Forest Jihad,” “Land Jihad,” and allegations that madrasas produce “only terrorists” amounted to promoting enmity between religious groups and acts prejudicial to communal harmony under Section 196 BNS.

CJP stated that the speeches also made imputations against the constitutional allegiance of an entire community by portraying Muslims and Islamic institutions as threats to the State, thereby attracting Section 197 BNS. The complaints further alleged that mocking Dargahs, Mazars, burial practices, Islamic scholars, and Muslim religious practices constituted deliberate insults to religion and religious beliefs under Sections 299 and 302 BNS.

CJP additionally argued that the repeated calls for mobilisation, warnings regarding demographic change, threats of violence, references to arming civilians, and calls for economic boycott amounted to intentional provocation intended to breach public peace under Section 352 BNS and dissemination of false information likely to create fear and communal unrest under Section 353 BNS.

The complaints maintained that the speeches delivered across Mumbai, Pune, and Nadia reflected a continuing pattern of inflammatory communal rhetoric aimed at deepening religious polarisation and normalising hostility against Muslims, thereby necessitating immediate registration of FIRs and preventive intervention by the concerned police authorities in compliance with constitutional obligations and Supreme Court directives.

Maharashtra DGP circulars cited by CJP

CJP also referred to circulars issued by the Director General of Police, Maharashtra, in February and April 2023 concerning preventive and penal action against hate speech.

According to the complaint, Circular No. DGP 20/Petition No.940/2022/54.2023 dated February 2, 2023 highlighted the Supreme Court’s order dated January 13, 2023 directing police authorities to take suo motu action whenever speeches attract offences under Sections 153A, 153B, 295A and 505 IPC.

The circular had directed all Unit Commanders to follow the Supreme Court order and entails “measures to be taken to maintain law and order due to agitations, morchas, speeches etc.”

It gives detailed instructions on what steps are to be taken when any morchas are to be held:

“2. All the Unit Commanders should hold a meeting with the concerned organisers before such a morcha and fix the route of the morcha with appropriate terms and condition. A combined meeting of all social groups should be taken to convey clearly to all that they should maintain peace and keep law and order during the morcha. Preventive action against Anti-social elements should be taken. Those elements who help in maintaining peace and harmony should be encouraged. Audio Video recording of the morcha should be done. Police Head Quarters should ensure adequate supply of equipment’s, like Lathi, Helmets, etc. to police men deployed for morcha bandobast. If any law-and-order situation arises, offences should be registered immediately and arrest should be made. Intelligence machinery should be activated to collect advance information about morcha, agitation and efforts should be made to pre-empt any communal incidents.”

Supreme Court directions on preventing/prosecuting hate speakers

CJP further referred to multiple Supreme Court orders concerning hate speech and preventive policing. According to the complaints, on February 3, 2023, the Supreme Court issued directions regarding a proposed event by Sakal Hindu Samaj in Mumbai and directed that if permission was granted for the event, it would be subject to the condition that no hate speech would be delivered.

The court also outlined directives with respect to taking preventive action in such cases:

“We also direct that the Officer(s), in case, permission is granted and, in case, the occasion arises for invoking the power under Section 151 of Cr.P.C. as aforesaid, it shall be the duty of the Officer(s) concerned to invoke the said power and to act as per the mandate of Section 151 of the Cr.P.C.” 

Even in 2024 itself, while on January 17, the Supreme Court bench of Justices Sanjiv Khanna and Dipankar Datta had expressed their anguish at the petitioners being forced to approach the Supreme Court multiple times against individuals and organisations even after there being guidelines for tacking and taking action against hate speeches. During the said hearing, the Supreme Court issued an order directing the District Magistrate and Superintendent of Police at Yavatmal, Maharashtra and Raipur, Chhattisgarh to take ‘appropriate steps’ to ensure that no incitement to hate speech occurs at the rallies scheduled in the said districts in the coming few days of January.

The said order was passed following the concerns raised by the petitioners over delivery of potential hate speeches at rallies planned by Hindu Janjagruti Samiti and Bharatiya Janata Party Legislator T Raja Singh in the month of January.

CJP stated that the court had outlined directives with respect to taking preventive action in such cases:

“We would require the authorities to be conscious that no incitement to violence and hate speech are permissible. The concerned District Magistrates and Superintendent of Police of Yavatmal, Maharashtra and Raipur, Chhattisgarh will take necessary steps, as may be required. If necessary and deemed appropriate, police/administration will install CCTV Cameras having recording facility, so as to ensure identification of the perpetrators in the event of any violence/hate speech.”

Background: Profile of Nitesh Rane and previous complaints filed by CJP

CJP stated in its complaints that the speeches delivered in Chandivali and Malad Malvani were not isolated incidents but formed part of a continuing pattern of inflammatory speeches allegedly delivered by Nitesh Rane across Maharashtra. According to CJP, the organisation had previously filed complaints dated March 7, March 18, and March 28, 2025 concerning speeches delivered by Rane in Sindhudurg, Pune, and Ratnagiri districts.

The complaints related to events including:

• “Hindu Rashtra Adhiveshan” in Kundal on February 8, 2025
• “Shivjanmostav” event in Sawantwadi on February 19, 2025
• Public felicitation programme at Nanijdham, Ratnagiri on February 20, 2025
• Religious gathering in Wagholi, Pune on February 5, 2025

CJP stated that across these events, Rane repeatedly invoked terms such as “Love Jihad” and “Land Jihad,” portrayed Muslims as a collective threat, and made statements capable of inciting hostility, fear, and social boycott against the Muslim community. The complaints further stated that such rhetoric, particularly when delivered by a sitting Cabinet Minister, was inflammatory, unsupported by evidence, and violative of constitutional protections.

FIRs and ongoing legal scrutiny against Nitesh Rane

Under the judicial oversight of the Bombay High Court in Aftab Siddique & Ors. v. The State of Maharashtra (2024), multiple FIRs have already been registered against Nitesh Rane in connection with alleged hate speech cases. CJP reproduced details of these FIRs in its complaints and stated that they reflected a continuing pattern of communal speeches delivered by Rane in different parts of Maharashtra.

Mankhurd Police Station (C.R. No. 152/2024)

Registered against Nitesh Rane under Sections 153A, 503, 504 and 505 IPC. According to the complaint, this case originated from speeches perceived as threatening to the Muslim community and capable of inciting public disorder.

Ghatkopar Police Station (C.R. No. 521/2024)

Registered against Nitesh Rane and Subhash Ahir under Sections 153A, 504, 506 and 188 IPC in connection with inflammatory speeches delivered in Mumbai suburbs.

Kashimira Police Station (C.R. No. 259/2024)

Registered against Nitesh Rane and Geeta Jain in relation to the Mira-Bhayander incidents under Sections 153A, 153B, 143, 504 and 506 IPC along with Section 37(1) read with Section 135 of the Maharashtra Police Act.

Malwani Police Station (C.R. No. 298/2024)

Originally registered against Bhagwan Thakur, with Nitesh Rane later added as an accused under Sections 153A, 504 and 506 IPC in relation to speeches targeting specific religious communities.

CJP further pointed out that Nitesh Rane’s October 2024 election affidavit reportedly disclosed 38 FIRs registered against him, including 20 cases relating specifically to allegations of hate speech.

Related

Free and Fair Elections: CJP’s 2025 fight against hate and voter intimidation

CJP’s 2025 intervention against ‘Digital Hate’: Holding television news channels accountable before the NBDSA

Law as Resistance: A year of CJP’s interventions against a rising tide of hate

The post CJP files complaint against BJP MLA & Minister Nitesh Rane and right-wing leaders over alleged hate speeches in Maharashtra and West Bengal appeared first on SabrangIndia.

Citizens for Justice and Peace is providing legal aid in this case.

Details of the proceedings

Court examines how the Tribunal opinion became ex-parte: At the outset, counsel appearing for the Foreigners Tribunal authorities prayed for time to file an affidavit in the matter. The Bench then asked what the case concerned. Appearing for the petitioner, Senior Advocate Mrinmoy Dutta submitted that the writ petition challenges an ex parte opinion passed by the Foreigners Tribunal in 2018.

Seeking clarification, the Bench asked what exactly was meant by the opinion being “ex-parte.”

Senior Advocate Mrinmoy Dutta explained that the petitioner had initially appeared before the Tribunal but was unable to continue contesting the proceedings because he could not afford the advocate’s fees. As a result, although appearance had been entered before the Tribunal, the matter eventually proceeded ex-parte.

The Bench then specifically asked whether legal aid had been provided at any stage. In response, Senior Advocate Mrinmoy Dutta also submitted that no legal aid had been extended to the petitioner despite his financial condition. He further informed the Court that the absence of legal aid constitutes one of the central grounds in the present writ petition. According to him, legal aid could have been made available, but there was no effort on the part of the authorities or the system to ensure representation after it became clear that the petitioner was unable to sustain private legal counsel.

The Court then asked till what stage the petitioner had participated in the Tribunal proceedings. Senior Advocate Mrinmoy Dutta clarified that although appearance had been entered before the Tribunal, no written statement had ultimately been filed.

State introduces allegation of “pushback” during hearing: The Bench then turned to counsel appearing for the Foreigners Tribunal authorities and asked whether the State’s case was that the petitioner had simply neglected to file the written statement.

In response, counsel for the Tribunal authorities stated before the Court that it was “not a case of neglect,” and further alleged that the petitioner had been “pushed back” and had thereafter “again entered India.”

The statement appeared to take the petitioner’s side by surprise. Senior Advocate Mrinmoy Dutta immediately responded that this was entirely new information to him and had never previously surfaced in the proceedings or records available to the petitioner. The Bench remarked to him that he was “a veteran in the field.”

Senior Advocate Mrinmoy Dutta clarified that no allegation regarding any pushback had ever been disclosed earlier and that this was the first time such a statement had been made in court. He submitted that nothing on record available to him suggested that the petitioner had been pushed back and had subsequently re-entered India.

Following this exchange, counsel for the Tribunal authorities reiterated the request for time to place the State’s stand on affidavit.

Court questions why notice had not been issued earlier: The Bench then asked whether notice had formally been issued in the writ petition. Senior Advocate Mrinmoy Dutta explained that notice had not yet been issued because, during the earlier hearing, the State had sought time to address the question of delay by filing an affidavit. In the meantime, however, interim protection against deportation had already been granted by the Court.

The Bench also enquired whether the petitioner continued to remain in detention. Senior Advocate Mrinmoy Dutta informed the Court that, to his knowledge, the petitioner remained lodged in the detention camp. When asked since when, he submitted that the petitioner had been in custody since May 25, 2025, on the basis of the 2018 Foreigners Tribunal opinion. He further reminded the Court that the present writ petition had been filed pursuant to liberty granted by the Supreme Court to challenge the Tribunal’s opinion.

Notice issued; Court observes fresh hearing may be considered

After hearing the parties, the Bench observed that notice ought now to be formally issued so that the State would be required to place its stand on affidavit.

The Court accordingly issued notice in the matter, making it returnable by June 15, 2026. The Bench also directed that the interim protection against deportation shall continue.

Significantly, while dictating the order, the Court observed that if the petitioner succeeds in making out a case for remanding the matter to the Foreigners Tribunal for a fresh hearing, such a course should be considered immediately.

The observation assumes significance in light of the petitioner’s argument that the Tribunal proceedings culminated in an ex parte opinion after he became unable to afford legal representation and despite no legal aid being provided.

Background of the Case

The writ petition challenges the ex-parte opinion dated June 13, 2018, passed by the Foreigners Tribunal, Chirang, declaring Abdul Sheikh @ Abdul Gafar to be a foreigner who had allegedly entered India after March 25, 1971.

According to the petition, the petitioner had initially contested the proceedings through counsel but could not continue because of severe financial constraints. The petition states that the ex-parte nature of the opinion was therefore not the result of deliberate non-participation, but the petitioner’s inability to continue private legal representation.

The petition further records that the petitioner was detained in 2019 and released in 2021 pursuant to prevailing directions governing prolonged detention of declared foreigners. It states that he was again taken into custody on May 25, 2025.

The present challenge before the High Court has been filed after the Supreme Court, while disposing of earlier proceedings in December 2025, clarified that the petitioner would remain at liberty to challenge the Foreigners Tribunal opinion.

The petition attributes the delay in filing the present challenge to prolonged detention, financial hardship, lack of legal aid, restricted access while in custody, and the practical difficulty of preparing legal proceedings without direct communication with the detenue.

The matter will next be heard on June 15, 2026.

Details of the previous proceedings may be read here.

Related:

“They were once sent back, awaiting deportation”: State’s new claim deepens uncertainty over fate of Abdul Sheikh and Majibur Rehman

Gauhati HC defers final hearing in Majibur Rehman and Abdul Sheikh petitions; Questions state on justification for continued detention

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

Victory in Dhubri FT: Jarina Bibi declared Indian after years of ordeal

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

The post Gauhati High Court issues notice in Abdul Sheikh Citizenship case, continues protection from deportation appeared first on SabrangIndia.

Long before the current anxieties around Special Intensive Revision (SIR) exercises emerged, CJP had already been deeply involved in questions surrounding identity documentation, citizenship verification and exclusionary administrative processes. Our first intensive and continuing interventions are in the north-eastern state of Assam, where a peculiar blend of exclusivist xenophobic politics shaped policy and actions that have together targeted legitimate Indians in the quagmire of having ‘to establish documented citizenship.’ Read about CJP’d continuing journey through 2025 here.

Subsequently, two years down the line, 2019-2020, during the months and years of fear generated by the CAA-NRC debates, CJP organised extensive documentation and awareness campaigns across several states, helping communities understand legal processes, preserve records, obtain missing documents and resist panic-driven misinformation. The organisation’s interventions consistently focused on ensuring that vulnerable populations—especially minorities, migrants, women, Adivasis, Denotified Tribes (DNTs), informal workers and economically marginalised groups—were not pushed outside the constitutional framework through procedural barriers.

Detailed reports may be read here, here, here and here.

It is from this history of engagement that CJP, together with Vote for Democracy (VFD), began conducting a series of detailed SIR awareness and training sessions in Maharashtra. In 2025, with the elections to the Bihar State Assembly, the State’s most recent efforts to push large sections of Indians to potential disenfranchisement by exacting an unrealistic ‘citizenship test’ began. The Special Intensive Revision (SIR) exercise that subsequently travelled to Bengal, Tamil Nadu, Gujarat and Uttar Pradesh has defied statutory law (Representation of People’s Act, 1951), Constitutional precedents (Article 14, 15 and 21) and the basic principles of due process and natural justice.

Tragically, this SIR exercise has been preceded by the most significant erosion of autonomy and integrity of a constitutional body like the Election Commission of India (ECI), casting a cloud on the very integrity of the election process under Articles 324-326 of the Indian Constitution. Vote for Democracy (VFD), a citizens’ platform guided by experts has analysed and exposed this deterioration of fair and free elections from the parliamentary elections of April-June 2024. VFD’s reports may be read here, here, here and here.

These trainings were never intended to legitimise or endorse a hurried and deeply problematic SIR exercise. In fact, the position adopted by CJP and VFD has remained unequivocal: the current SIR model, as implemented across multiple states, raises profound constitutional concerns because of the manner in which it transfers the burden of proof onto ordinary citizens while creating conditions ripe for exclusion and disenfranchisement. The purpose of the trainings, therefore, was not compliance for its own sake. It was protection.

As the CJP-VFD booklet on SIR itself clearly states, the trainings are meant “strictly to arm you with the tools to defend your rights and navigate this unconstitutional hurdle, not to legitimise it.”

The booklet may be read here and here.

At a time when fear, misinformation and confusion were spreading rapidly among communities, the trainings sought to communicate one essential message: panic helps exclusionary systems thrive. Knowledge, preparation and collective solidarity followed by determined interventions and action, are what protect democratic rights.

The Maharashtra trainings

Over the course of several months, CJP conducted three major SIR-focused training and awareness programmes in Maharashtra:

• March 21: Training session with Bombay Catholic Sabha
• April 16: Joint awareness and training session with a Community-Based Organisation (CBO), Agripada, South Mumbai
• April 30: Community training programme with Jan Haqq Sangharsh Samiti

These were not routine seminars or technical workshops. They became spaces where fear, uncertainty and lived experiences surfaced openly.

Participants included community organisers, women’s groups, migrant workers, social activists, minority organisations, students, religious leaders, local volunteers, housing rights advocates, DNT representatives, trade union workers, and ordinary residents increasingly worried about how SIR-style exercises could impact their ability to remain on electoral rolls.

Across all three programmes, a striking reality emerged repeatedly: for many people, the fear was not abstract. It was deeply personal. The idea that decades-old documents could suddenly determine one’s legitimacy as a voter –and thereafter a citizen– triggered anxieties rooted in poverty, displacement, migration, illiteracy, gender discrimination and bureaucratic neglect accumulated over generations.

In fact, for a joint delegation meeting with the CEO of Maharashtra, Chokkalingam in early March 2026, of which CJP was a crucial part, was revelatory. The officer unambiguously stated that the 2003 Guidelines would not be followed but also admitted that ‘no fresh guidelines had yet been issued’ by the ECI, Delhi. Emphasising that the current exercise would be one in determining that ‘only Indians’ figure on the electoral roll, Chokkalingam explained the amendments made to Section 3 of the Indian Citizenship Act, 1955 that distinguished between a) those born before 1987, b) those between 1987 (July 1) and 2004 and those c) those born after that date in terms of what sorts of documentary proof were required to ‘establish’ Indian citizenship. For a) simply being born in India was proof enough, for b) in addition to his/her own birth in India, it was required to establish that at least one of the parents was Indian; and for c) it was important to establish that neither mother nor father was an ‘illegal immigrant.’

The Bihar and West Bengal Experience: Why these trainings became necessary

The Maharashtra sessions were built directly upon the extensive field experiences documented by CJP and VFD teams in states where SIR-related exercises had already generated serious problems. These include Uttar Pradesh, Gujarat and Tamil Nadu. Assam has, meanwhile only so far had a Special Revision (SR) of its rolls, not an SIR.

Ground reports from Bihar and West Bengal revealed patterns of confusion, mass anxiety, arbitrary notices, technological mismatches, documentation hurdles and administrative opacity. These findings eventually culminated in the publication of the detailed handbook Inside the Special Intensive Revision (SIR): Deadly Deadlines, Mechanical Disenfranchisement, and the Ground Reality of Claims and Objections Period & SIR Notices/Hearings.

The booklet combined investigative analysis, field documentation, legal guidance and practical training material. It explained the structure of the SIR process, the roles of electoral officers, the significance of legacy electoral rolls, the functioning of notices and hearings, appeal mechanisms, acceptable documents, and the methods through which exclusion was being operationalised on the ground.

Most importantly, it documented how the current SIR framework represented a dramatic departure from earlier electoral revision exercises.

The 2003 SIR process, for example, had been conducted over nearly six months, relied on existing electoral rolls and EPIC cards as foundational documents, and emphasised facilitative house-to-house verification. Enumerators were not expected to function as citizenship adjudicators. This time round, 2025-2026, with the ECI acting like the weaponised (read unconstitutional) arm of an exclusivist regime, hurried and arbitrary adjudications on citizenship have become the order of the day.

The present model, therefore, has increasingly transformed electoral verification into an exercise marked by compressed timelines, mechanical scrutiny, opaque software systems, and retrospective documentary burdens. CJP and VFD’s field reports documented how software-driven mismatches involving spelling variations, transliteration differences, age-gap calculations and data-entry inconsistencies generated large numbers of “unmatched” or “suspicious” entries.

The Maharashtra trainings therefore emerged not from speculation, but from documented experiences already unfolding elsewhere.

What happens when the poor are asked to prove their existence?

A significant portion of the Maharashtra trainings conducted by CJP focused on helping participants understand the broad range of documents that may potentially be relied upon during SIR-related verification processes. Methods of accessing documents that may exist and be available with local authorities, understanding and tracking legacy and linkages to those voters/citizens who are available and verifiable in the baseline document –the electoral role between 2002-2004—were also granularly shared. CJP’s experiences pan-India across states and regions, intervening on multiple fronts has created a rich knowledge base of accessing documents from levels of the bureaucracy and this is being widely shared. The trainings repeatedly stressed an important point: people often panic because they assume that the absence of one “perfect” document automatically disqualifies them. However, the indicative list itself demonstrates that identity and eligibility can be established through multiple forms of documentary evidence.

Participants were carefully guided through the list of acceptable or supporting documents referenced in the handbook and subsequent judicial interventions. These include: identity cards or pension payment orders issued to government employees or pensioners; identity cards or certificates issued by government authorities, banks, post offices, LIC or PSUs prior to July 1, 1987; birth certificates; passports; matriculation or educational certificates; permanent residence certificates; forest rights certificates; OBC, SC or ST caste certificates; NRC records where available; family registers prepared by state or local authorities; land or house allotment certificates; Aadhaar cards; and Class 10 admit cards or pass certificates.

Throughout the trainings, facilitators repeatedly emphasised that even one among these documents, when supported with supplementary records and consistent identity details, could help establish a person’s identity and continued existence within the social and administrative framework of the country. The sessions therefore focused heavily on practical strategies: how to organise documents chronologically, how to retrieve old records, how to preserve photocopies and acknowledgements, and how to identify alternative supporting papers where primary documents were unavailable.

Yet, as the discussions during the trainings revealed, the ground reality surrounding documentation is far more complicated than official lists often assume. For large sections of the population, documents are not simply lying safely preserved in family cupboards waiting to be produced before authorities. Instead, documentation histories are fragmented by poverty, migration, environmental disasters, displacement, gender discrimination and bureaucratic neglect accumulated over decades. Many participants explained that births in their communities took place at home and were never formally registered. Others spoke of losing papers during drought-induced migration, floods, demolitions, fires or repeated changes in residence. Several older participants described how schools they attended no longer exist, making retrieval of school leaving certificates or mark sheets almost impossible today.

Women repeatedly raised concerns about documentary inconsistencies arising from early (pre 18 or 21 years) marriage-related surname changes, spelling variations and shifts in residence. Some women who were married young explained that they had voted for the first time from their husband’s homes, bypassing any formal electoral linkage with their natal families. This now makes tracing documentary continuity with parental records extremely difficult though not impossible.

Similarly, members of Denotified and Nomadic Tribes (DNTs), migrant workers and daily wage earners pointed out that even obtaining caste certificates, residence proofs or duplicate records often requires multiple visits to government offices—something many cannot afford without losing crucial daily income. For homeless persons, tenants, informal workers and highly mobile populations, stable address-based documentation itself becomes a challenge.

The trainings therefore highlighted a critical contradiction at the heart of documentation-heavy verification exercises: while the State increasingly demands layered documentary proof, millions of people have historically lived at the margins of formal documentation systems themselves. In this context, the sessions sought not only to explain which documents may help, but also to collectively confront the deeper structural inequalities that determine who is able to preserve paperwork, who is visible within administrative systems, and who remains vulnerable to exclusion.

Documents Decide Everything: The fear communities brought into the trainings

One of the most powerful aspects of the Maharashtra sessions was the extent to which people spoke openly about the fragility of their documentary histories. Again and again, participants raised concerns that exposed the enormous disconnect between bureaucratic expectations and lived realities.

The missing birth certificate problem: Perhaps the most recurring concern involved birth certificates.

Large sections of older generations, particularly from rural, working-class and poor communities, were born at home and never formally registered with civil authorities. Institutional births were inaccessible, expensive or culturally uncommon for decades. Women participants repeatedly spoke about how neither they nor their siblings had any birth records because births took place with the assistance of local midwives rather than within hospitals.

The statistics themselves reveal why this remains such a massive issue. Birth registration in India became widespread only relatively recently. Even official data shows significant historical gaps in registration coverage.

For many participants, the sudden expectation that decades-old birth records must now exist produced profound anxiety.

Maharashtra’s histories of drought, migration and loss: Participants also described how environmental and economic crises had repeatedly destroyed family records.

Several communities had lived through devastating droughts across parts of Maharashtra, forcing migration, distress movement and repeated displacement. Others recalled losing documents during floods, cyclones, fires or long-term housing instability. Some participants referred to records lost during the tsunami years or during forced relocations connected to urban redevelopment and informal settlement demolitions. For poor families surviving through cycles of migration and precarious labour, preserving fragile paper records over decades was often impossible.

Yet the current SIR-style expectations assume stable homes, continuous paperwork, formal institutional access and uninterrupted documentation histories.

When the school itself no longer exists: Another major issue that surfaced repeatedly was the problem of accessing school records. Many older government schools, village schools and informal educational institutions no longer exist in their original form. Buildings were demolished, records disappeared, administrations changed, or archives were never digitised.

Several participants explained that even when they knew they had once studied in a particular school, obtaining school leaving certificates or mark sheets today had become practically impossible because the institution itself had shut down or records were destroyed years ago.

For individuals from poor families who studied intermittently or dropped out early to begin work, educational documentation is often fragmentary or inaccessible. Yet these very records are increasingly treated as crucial identity markers.

The invisible burden on Denotified tribes and marginalised communities: The trainings also foregrounded concerns specific to Denotified and Nomadic Tribes (DNTs), whose histories of exclusion from stable settlement patterns, education systems and formal state recognition continue to shape their present vulnerabilities.

Participants pointed out that many DNT communities remain structurally under-documented because generations lived outside formal administrative frameworks. Accessing caste certificates, residence records or historical proofs often requires repeated interactions with distant bureaucratic offices.

For daily wage earners, every visit to a government office means losing a day’s income. The trainings repeatedly emphasised that documentation burdens are never socially neutral. They fall most heavily on those already living precariously.

Women and documentary disruption: Women’s experiences emerged as one of the most significant dimensions of the discussions. Across communities and religions, women described how marriage routinely disrupted documentary continuity. Changes in surname after marriage frequently resulted in inconsistencies across different identity documents.

Many older women explained that they had married before turning 18 and had voted for the first time from their husband’s residence rather than from their natal home. This makes establishing documentary linkage with parental records extraordinarily difficult decades later.

Minor spelling variations across ration cards, Aadhaar cards, voter IDs, educational certificates and marriage-related records further complicate verification. The Maharashtra trainings paid particular attention to these gendered documentary realities because women are often expected to “prove” continuity across names, addresses and households shaped by patriarchal social structures.

Electoral revision cannot become citizenship surveillance

Throughout the sessions, CJP and VFD repeatedly stressed a crucial constitutional principle: electoral revision cannot be converted into a mechanism of suspicion against already-enfranchised citizens.

The handbook itself notes that the present SIR framework reverses long-standing democratic presumptions by effectively treating registered voters as suspect unless they can repeatedly prove their eligibility through documentary evidence.

This is particularly alarming because millions of people currently on electoral rolls have already voted in multiple elections over decades.

The trainings therefore focused heavily on rights awareness:

• understanding notices,
• organising documents,
• preserving acknowledgements,
• seeking written orders,
• attending hearings with support persons,
• filing appeals,
• resisting arbitrary deletions,
• and documenting procedural violations.

Participants were also trained on how to search older electoral rolls, including the 2002–2004 rolls increasingly treated as “legacy data” within SIR processes. The sessions explained the functioning of Booth Level Officers (BLOs), Electoral Registration Officers (EROs), Assistant Electoral Registration Officers (AEROs), appeal processes, and the importance of procedural safeguards.

Rights groups and CBO’s were trained on and encouraged to, by the CJP team, to organise collectively and voice concerns with the offices of the state election commission so that specific concerns and anxieties of the varieties of stake holders—genuine voters, be they migrants from other states, women, minorities, DNTs, displaced persons—could be readily addressed by an otherwise opaque SEC.

CJP’s memorandum to the Maharashtra CEO

Parallel to these trainings, CJP and VFD formally approached the Maharashtra State Election Commission and the Chief Electoral Officer of Maharashtra with a detailed memorandum raising concerns about possible disenfranchisement and procedural opacity.

The memorandum urged authorities to ensure:

• accessible and searchable electoral rolls,
• properly trained personnel,
• multilingual assistance systems,
• protection against algorithmic exclusion,
• public transparency,
• a publicised social audit of the draft revised polls and the final ones (this has been mentioned as a mandatory and healthy requirement in the ECI’s own 2023 Handbook of Guidelines on Electoral Rolls;
• and safeguards against arbitrary deletions.

Importantly, the memorandum emphasised that electoral revision must reduce fear rather than produce it. It warned that when documentation burdens are imposed without adequate support structures, the people who suffer first are always those already pushed to the margins: minorities, migrants, tenants, women, informal workers, DNTs and economically vulnerable populations.

Beyond Documentation: Building collective confidence

What distinguished these Maharashtra trainings was that they did not treat documentation as merely technical paperwork. They recognised documentation as deeply tied to dignity, memory, class, caste, migration, gender and survival.

For many participants, the sessions became spaces where people realised they were not individually “failing” because documents were missing or inconsistent. Rather, their experiences reflected structural realities shared by millions across India.

The trainings therefore consistently emphasised solidarity and collective defence:

• helping elderly persons retrieve records,
• assisting women facing name mismatches,
• supporting migrant workers unable to attend hearings,
• guiding daily wage earners through documentation processes,
• and ensuring that vulnerable communities do not face bureaucratic intimidation alone.

At a time when administrative processes increasingly risk producing fear and invisibility, these sessions attempted to restore confidence in constitutional rights and democratic participation.

A democratic intervention against fear

Ultimately, the SIR trainings conducted by CJP across Maharashtra were not merely legal awareness programmes. They were democratic interventions against fear.

They sought to remind people that the right to vote is not a favour granted conditionally by shifting bureaucratic systems. It is a constitutional guarantee rooted in the promise of universal adult franchise. They also sought to expose a harsh reality: when democratic participation becomes dependent upon perfect documentation histories stretching across decades, exclusion ceases to be accidental. It becomes structural.

For precisely this reason, the trainings insisted that preparation—not panic—must guide public response. Because behind every “missing document,” “mismatched name,” or “unavailable legacy record” is not simply a paperwork problem, but a human history shaped by poverty, migration, patriarchy, displacement, disaster and institutional neglect.

And it is these histories that CJP’s Maharashtra trainings sought to bring into the centre of the conversation—so that democracy is not reduced to an exercise in mechanical verification, but remains anchored in constitutional inclusion, human dignity and collective rights.

Related:

Inside the SIR: A voter roll exercise turning into a test of survival

Demystifying the SIR Notice: A systemic hurdle, not a final verdict

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

The post Documents Cannot Decide Democracy: How CJP is training communities to navigate the SIR process appeared first on SabrangIndia.

A Division Bench of Justice Sanjay Kumar Medhi and Justice Shamima Jahan, while partly upholding a Foreigners Tribunal order against a woman from Cachar district, set aside the declaration made against her sons and daughters, reiterating that the law does not permit “derivative declarations” of foreigner status merely on the basis of kinship.

The judgment, delivered on April 30, 2026 in Maya Das v. Union of India & Ors., draws an important procedural boundary in Foreigners Tribunal proceedings in Assam, where entire families are often swept into the consequences of a declaration against one individual.

Tribunal had declared entire family as foreigners

The case arose from an order dated May 24, 2019 passed by the Foreigners Tribunal No. 4, Silchar, in FT Case No. 105/2015. The reference had been initiated by the Superintendent of Police (Border), Cachar, against petitioner Maya Das alone. However, while answering the reference, the Tribunal not only declared Maya Das to be a foreigner who had allegedly entered India after March 25, 1971, but also declared her sons, Diju Das and Pintu Das, and daughters, Mukta Das, Sukta Das and Bijoya Das, to be foreigners as well.

Before the High Court, the petitioner challenged the Tribunal’s findings, contending that she had produced sufficient documentary and oral evidence to establish her citizenship and linkage to her projected father, Nibaran Chandra Das.

The documents relied upon included voters’ lists, NRC data, birth certificates, voter identity records, a marriage certificate and a certificate issued by the Gaon Panchayat Secretary.

Court reiterates burden of proof under Section 9

The High Court, however, declined to interfere with the declaration against Maya Das herself. Reaffirming the settled position under Section 9 of the Foreigners Act, 1946, the Bench observed that the burden of proving citizenship lies entirely upon the proceedee and “never shifts.”

“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.” (Para 18)

The Court extensively discussed the statutory framework governing Foreigners Tribunal proceedings and reiterated that proceedings under the Foreigners Act operate differently from ordinary civil or criminal adjudication. Since the facts concerning nationality and ancestry lie “especially within the knowledge” of the proceedee, the legal burden rests squarely on the individual facing the reference.

In doing so, the Bench relied upon earlier Supreme Court precedents including Fateh Mohd. v. Delhi Administration and Ghaus Mohammad v. Union of India, both of which had affirmed the constitutionality and operation of Section 9 of the Foreigners Act.

Documentary linkage found inadequate

The Court scrutinised the evidentiary basis relied upon by the petitioner and concluded that while legacy documents relating to her projected father existed, there was no legally proved and credible linkage connecting the petitioner to those documents.

The Bench noted that the voters’ lists and NRC documents contained the name of the projected father, but the documents containing the petitioner’s own name failed to establish a verifiable familial connection with him.

“In the instant case, it does not appear that there is any relevant document which have been proved in accordance with law to show a connection of the petitioner with Nibaran Ch. Das, her projected father, whose name appears in the Voters List of 1965. As noted above, the petitioner had also produced the NRC and land document pertaining to her projected father. However, the documents containing the name of the petitioner do no show a link with her projected father.” (Para 22)

Particular emphasis was placed on the limited evidentiary value of Gaon Panchayat certificates. Referring to the Supreme Court’s decision in Rupajan Begum v. Union of India, the Court reiterated that such certificates are not proof of citizenship by themselves and can, at best, serve as supporting linkage documents after proper verification.

The Bench further observed that the school certificate produced by the petitioner had not been proved in accordance with law and that oral testimony unsupported by contemporaneous documentary records could not discharge the statutory burden under Section 9.

The Court ultimately held:

“In the opinion of this Court, the evidence adduced by the petitioner through herself and the Secretary of the Syedbond Gaon Panchayat would not be sufficient to discharge her burden under Section 9 of the Foreigners Act, 1946.” (Para 23)

High court draws a clear line against automatic family-wide declarations

Yet, while refusing relief to the petitioner herself, the High Court decisively intervened on the question of the children’s declaration.

The Bench held that the Foreigners Tribunal had exceeded its jurisdiction by declaring the petitioner’s sons and daughters’ foreigners despite there being no independent reference against them.

“There is however another issue involved in this case. Vide the impugned order, while the Reference is answered against the petitioner, it has been held that the sons and daughters of the petitioner, namely, Diju Das, Pintu Das, Mukta Das, Sukta Das and Bijoya Das are also foreigners.” (Para 25)

Calling the legal position “settled,” the Court relied upon its earlier judgment in Sudhir Kr. Roy v. Union of India to reiterate that a Foreigners Tribunal can only adjudicate upon the individual against whom a formal reference has been made.

The Court categorically observed:

“It is a settled position of law that until a specific reference is initiated against an individual, no orders of declaration as foreigner of such persons can be made by any Foreigners Tribunal and in this connection, reference may be made to the judgment dated 04.01.2019 passed in the case of Sudhir Kr. Roy vs. Union of India in WP(C)/6790/2018 wherein it has been held that the authorities would be at liberty to initiate a fresh reference against the family members of a person who is declared foreigner but the fact that a family member has been declared a foreigner would not be sufficient by itself to declare the other family members as foreigners without any specific reference.” (Para 25)

Importantly, the Bench added that while authorities remain free to initiate separate proceedings against family members of a declared foreigner, such declarations cannot automatically flow from the status of a parent. This aspect of the ruling is likely to carry wider implications in Assam’s foreigners’ determination regime, where references and declarations have frequently affected multiple members of a family in cascading fashion.

Limits of writ jurisdiction reaffirmed

The judgment also contains an elaborate discussion on the limited scope of judicial review under Article 226 in challenges to Foreigners Tribunal opinions. The Court reiterated that in exercise of certiorari jurisdiction, the High Court does not function as an appellate authority re-appreciating evidence. Rather, interference is warranted only in cases involving procedural illegality, perversity, jurisdictional error or violation of natural justice.

Relying upon the Supreme Court’s ruling in Central Council for Research in Ayurvedic Sciences v. Bikartan Das, the Bench emphasised that a writ court “does not review or reweigh the evidence” upon which findings of fact have been reached by the Tribunal.

The Court therefore declined to upset the Tribunal’s findings against Maya Das, holding that no infirmity in the decision-making process had been demonstrated.

Liberty reserved under Citizenship Amendment Act

In the concluding portion of the judgment, the Court clarified that the dismissal of the writ petition against the petitioner herself would not prejudice her right to seek relief under the Citizenship Amendment Act, if otherwise available in law.

While the judgment ultimately leaves intact the declaration against the petitioner, its intervention on behalf of her children marks an important reaffirmation of procedural safeguards in Foreigners Tribunal jurisprudence. By insisting upon individualized references and individualized adjudication, the Court has underscored that citizenship determinations cannot be expanded merely through familial association or inheritance of status.

The complete judgment may be read below:

Earlier concerns raised by CJP over family separation in Assam’s citizenship regime

The Gauhati High Court’s insistence that children cannot automatically be declared foreigners merely because a parent has been so declared also echoes long-standing concerns raised before the Supreme Court regarding family separation and the arbitrary exclusion of children from citizenship processes in Assam.

In 2019, Citizens for Justice and Peace had moved an Intervention Application before the Supreme Court in the ongoing NRC proceedings in Assam Public Works v. Union of India, specifically highlighting the plight of children excluded from the National Register of Citizens despite their parents being included.

Filed through Senior Advocate Aparna Bhat, the application warned the apex court that the NRC process had produced deeply disturbing situations where children were rendered vulnerable to statelessness, detention and family separation even while their parents or close relatives had been recognised as Indian citizens.

CJP’s intervention had argued that such exclusions violated not only constitutional guarantees under Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution, but also India’s obligations under the United Nations Convention on the Rights of the Child. The application stressed that arbitrary exclusion of children struck at the heart of the principle of family unity and exposed minors to immense psychological, social and economic trauma.

To demonstrate the scale of the crisis, CJP had placed before the Supreme Court a list of 61 children who had been excluded from the NRC despite their parents being included. Detailed case studies were also furnished. Among them was the case of Hasmat Ali, whose three minor children were excluded from the NRC even though both parents had made it to the final list. The application described how the family was forced into an exhausting cycle of hearings, document collection, travel to distant tribunals and mounting debt — all driven by the fear that the children could ultimately face detention or separation from their parents.

The intervention also drew attention to the broader humanitarian consequences of the NRC process, submitting that numerous deaths had occurred in connection with citizenship-related anxieties and detention, including recorded deaths inside Assam’s detention centres.

Importantly, while the Supreme Court did not immediately decide the intervention application finally, it took cognisance of the concerns raised and, during hearings on January 6, 2020, directed the Assam government to ensure that children whose parents were included in the NRC would neither be sent to detention centres nor separated from their families until the issue was fully considered.

That intervention assumed significance because it foregrounded a principle that now finds reaffirmation in the present Gauhati High Court ruling: citizenship determinations cannot casually fracture family structures or operate mechanically against children merely because of the status of a parent.

The present judgment, while arising in the context of Foreigners Tribunal proceedings rather than NRC exclusions, similarly underscores that the law requires individualized scrutiny and individualized proceedings. By holding that no person can be declared a foreigner without a specific reference against them, the High Court has effectively reinforced procedural safeguards against sweeping, family-wide declarations that risk undermining the rights and security of children and other dependants.

A detailed report may be read here.

Related:

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

A voter list exercise under scrutiny: Assam’s Special Revision of electoral rolls, allegations of targeted harassment and misuse of Form-7

The post Gauhati HC draws a line against automatic family-wide ‘foreigner’ declarations appeared first on SabrangIndia.

The following report synthesises five harrowing accounts of caste-based hate, meticulously documenting how the intersection of social dominance, administrative apathy, and ritual purity continues to deny the Dalit community their fundamental right to life and liberty.

Dalit youth found dead in Tamil Nadu after going missing; family alleges killing linked to inter-caste relationship

Tamil Nadu (Pudukkottai)

On April 21, in Nadupatti village of Kulathur taluk in Pudukkottai district, 20-year-old R. Hariharan, a Dalit youth, went missing after receiving a phone call. Two days later, on April 23, villagers grazing cattle near a forest area found a body floating in a water-filled quarry. The body was identified as Hariharan.

Hariharan had been in a relationship with a 19-year-old girl belonging to a dominant caste. Around five months earlier, the couple had attempted to elope. Following this, both families were called to Keeranur police station, where a compromise was reached and the couple was separated.

After the recovery of the body, Vellanur police registered a case under Section 194 of the BNSS on April 24, treating it as a suspicious death, based on a complaint filed by Hariharan’s father, P. Rajkumar (50). The family refused to accept the body and demanded that a murder case be registered. A post-mortem examination was conducted, and the body was handed over to the family on April 27.

Hariharan’s father, P. Rajkumar, stated that “The murder was committed by the family members of the girl belonging to another caste, because Hariharan had a love affair with her” as The Mooknayak reported

On April 25, the FIR was altered to include Section 108 (abetment of suicide) of the BNS and Section 3(2)(va) of the SC/ST Act. The accused named in the FIR include the girl’s father Rajendran, her brother Shanmugasundaram, and another person, Krishnan.

The case is currently being investigated by the Pudukkottai town Deputy Superintendent of Police (DSP).

Members of Dalit community asked to bring their own plates & water for temple

Gujarat (Junagadh)

On April 29, during the Pran Pratishta ceremony of a Ram temple in Bhutadi village of Visavadar taluk in Junagadh district, members of the Dalit community were invited to participate in the event.

Approximately ten Dalit individuals were invited by the organising committee. However, the invitation included conditions requiring them to eat separately after others had finished and to bring their own plates and glasses.

They were also told that “Bring your own plates and glasses from home… stay outside the temple premises during the core rituals” as reported by The Mooknayak

Ajay Chatur Boricha, aged 25, filed an FIR at Visavadar police station regarding the conditions imposed. Following this, members of the Dalit community refused to attend the event. The planned mass feast in the village was cancelled, while the temple consecration ceremony proceeded as scheduled. Police registered a case against five individuals: Babu Uka Hapani, Narendra Bhanji Siroya, Ramnik Samji Sorathia, Atul Bhikha Siroya, and Phula Popat Siroya. The case was registered under relevant sections of the SC/ST (Prevention of Atrocities) Act and the BNS, 2023.

Newly married Dalit couple were allegedly denied entry in temple

Madhya Pradesh (Khargone)

On April 26, in Khargone district, a Dalit couple, Nirmal Kanade and his wife, attempted to enter a Hanuman temple to offer prayers. The temple was initially found locked. After police intervention, the couple was allowed entry. Following this, a panchayat consisting of members from the Banjara and Patel communities held a meeting.

The panchayat declared a social boycott against the couple and two other Dalit families associated with them.

According to the New Indian Express, The decision included a financial penalty.

“The panchayat announced that anyone engaging with the three families or selling anything to them would have to pay a penalty of Rs 11,000” as reported

Following the announcement, local shopkeepers stopped selling goods to the affected families. Nirmal Kanade shared a video describing the situation and seeking assistance. Police later intervened and stated that the matter had been resolved through discussions, and restrictions were lifted.

“Now, Dalits will also take out wedding processions riding a buggy” remark against Dalit wedding procession

Uttar Pradesh (Shahjahanpur)

On April 20, in Lai Kheda village under Tilhar police station area in Shahjahanpur district, a wedding procession arrived from Bareilly at a Dalit household. During the procession, a local individual, Rajpal Yadav, made a remark that now Dalits will also take out wedding processions riding a buggy.

Following this remark, an argument took place which escalated into a physical clash between groups.

Police stated that two processions had reached the same location at the same time, contributing to the situation. An FIR was registered against Rajpal Yadav and four others under provisions of the BNS and the SC/ST Act.

Two individuals were detained in connection with the incident, as reported.

Dalit youth dies after assault at Amreli hospital canteen following dispute over leftover food and caste inquiry

Gujarat (Amreli)

On April 20, at Shantaba General Hospital in Amreli district, 24-year-old Mahesh Premji Rathore from Gopalgram village died after being assaulted. Mahesh had been at the hospital to care for his 70-year-old uncle. While eating at a free canteen, he felt unwell and threw away a portion of leftover food. The canteen operator, Bharat Acharya, demanded a fine of Rs 50 for wasting food. When Mahesh gave a Rs 500 note, Acharya refused to return the change and questioned him about his caste and village.

After learning that Mahesh belonged to a Dalit community, Acharya and others allegedly assaulted him using plastic pipes. Mahesh lost consciousness and died three days later.

According to The Mooknayak His father, Premji Rathore, stated:

“My son was killed for a mere 50 rupees. He was beaten with plastic pipes until he stopped breathing… we will not take the body until murder charges are filed against all accused.”

The family refused to accept the body until appropriate charges were filed. The Special Atrocity Court sought a Forensic Science Laboratory (FSL) report to determine whether Section 302 (murder) should be applied or not.

Notably, across incidents reported from Tamil Nadu, Gujarat, Madhya Pradesh, and Uttar Pradesh, a pattern of caste-based discrimination, violence, and exclusion continues to be recorded in different forms. These cases involve restrictions on access to public spaces, conditions imposed during community events, social boycott, and physical violence following everyday actions such as relationships, temple entry, or participation in social functions. The recurrence of such incidents across regions indicates ongoing concerns regarding the implementation of legal protections and safeguards available under existing laws, including provisions addressing caste-based offences.

While FIRs, arrests, and investigations have been reported in these cases, the sequence of events indicates that such incidents continue to occur within society despite the availability of stringent laws against offenders.

Related

The Double Stage on Campus: Caste, crisis & UGC equity regulations (2026) controversy

An Adivasi woman once in bonded labour now serves her village as a Sarpanch

Telangana: Stop forcible ‘re-location of Chenchu Adivasis from Amrabad Tiger Reserve

The post Systematic Exclusion: Caste-based atrocities across Gujarat, Tamil Nadu, MP, and UP appeared first on SabrangIndia.

Both cases involve allegations of cow slaughter. Both result in the upholding of detention orders. But more importantly, both judgments articulate—and reinforce—a particular understanding of “public order”: one that is driven less by the intrinsic nature of the offence and more by its social meaning, communal context, and anticipated consequences. What makes these rulings especially significant is not merely their outcome, but the density of their reasoning. The Court draws extensively from on-ground facts, behavioural responses, intelligence inputs, and administrative measures, while also invoking broader assumptions about communal sensitivity, to construct a layered and multi-dimensional justification for preventive detention.

At first glance, both cases appear fact-specific: allegations of cow slaughter, local unrest, and administrative response. But a closer reading reveals something far more significant. Across both rulings, the Court systematically reorients the constitutional inquiry:

• From the nature of the offence → to its social meaning
• From proven disruption → to anticipated reaction
• From individual culpability → to collective sensitivity

Read together, these decisions reflect a clear doctrinal movement in which public order is no longer anchored solely in demonstrable disruption, but is increasingly shaped by perception, anticipation, and context.

The Shamli Case (Sameer v. State of U.P.): Public order rooted in predictable reaction

The incident and immediate aftermath: The case originates in March 2025, when police discovered dismembered remains of cows and calves in a field in Shamli district around the time of Holi. The person accused of the slaughter was detained under the National Security Act (NSA), 1980. What might ordinarily have been treated as a criminal offence under the Uttar Pradesh Prevention of Cow Slaughter Act quickly escalated into a larger law-and-order situation.

The Court records a chain of events:

• Large crowds, including members of Hindu organisations, gathered at the site
• Sloganeering and protests followed
• A major road blockade led to prolonged traffic disruption
• Police forces from multiple stations were deployed
• Authorities had to camp in several villages to restore normalcy

These consequences—particularly the collective mobilisation and disruption of everyday life—became central to the Court’s reasoning. The incident, in the Court’s view, was not contained; it radiated outward, affecting the “even tempo of life” across a wider locality.

Law and Order vs Public Order: Before the Court, the petitioner argued that the alleged offence was, at best, a violation of law and order, given that it was triable by a magistrate under ordinary criminal law. The Court, however, firmly rejected this characterisation. It held that the distinction between law and order and public order does not depend on the statutory classification of the offence, but on the extent and nature of its impact on society.

Relying on established precedents such as Ram Manohar Lohia v. State of Bihar and Arun Ghosh v. State of West Bengal, the Court reiterated that the relevant test is whether the act disturbs the “even tempo of life” of the community. The Court reiterates that not every crime disturbs public order; only those that disrupt the life of the community at large qualify. However, in applying this test, the bench adopts a context-heavy and consequence-driven approach.

It holds that even if an act is, in itself, a standard criminal offence, its “potentiality” and “impact”—particularly in a communally sensitive context—can elevate it into a public order issue. Thus, the focus shifts from the intrinsic nature of the act to its social reverberations.

Applying this test, it concluded that the widespread disruption, mobilisation, and administrative intervention in this case clearly elevated the incident beyond a mere law-and-order issue into the realm of public order.

Cow slaughter as an inherently volatile act: The most striking aspect of the judgment lies in its categorical treatment of cow slaughter. The Court asserts that:

• Cow slaughter “spontaneously evokes strong emotions”
• It has “immediate and widespread ramifications”
• It “almost always” leads to violence

This is not framed as a case-specific finding but as a generalised social truth. By doing so, the Court effectively pre-classifies certain acts as inherently capable of disturbing public order, irrespective of the specific factual matrix.

This reasoning has two major implications:

1. It reduces the burden on the State to demonstrate actual or imminent disorder
2. It allows anticipated communal outrage to become a legally valid ground for detention

In effect, the judgment shifts the inquiry from what the accused did to how society is expected to react—a move that sits uneasily with constitutional protections of liberty.

Reaction as justification: A central tension emerges here: should unlawful or violent public reaction determine the limits of individual freedom?

The Court’s reasoning suggests that it can. By treating predictable outrage as a given, the judgment risks normalising what is often described as the “heckler’s veto”—where the threat of public disorder becomes a basis to restrict rights.

This creates a troubling inversion:

• Instead of the State being obligated to control unlawful reactions
• The individual becomes the site of pre-emptive restraint

Such an approach may inadvertently incentivise coercive or violent mobilisation, as the mere possibility of disruption strengthens the case for preventive detention.

Preventive detention of a person already in custody: The Court also addresses whether a person already in jail can be preventively detained, relying on Kamarunnissa v. Union of India. The established test requires:

• Awareness that the person is in custody
• A real possibility of release on bail
• Likelihood of engaging in prejudicial activities upon release

In this case, the Court accepts:

• Police “beat information” alleging the accused intended to reoffend
• Intelligence inputs suggesting he was seeking bail and would repeat cow slaughter

Crucially, the Court treats these inputs as “reliable material”, without demanding rigorous evidentiary scrutiny. This reflects a broader judicial pattern in preventive detention cases—deference to executive satisfaction, even when based on informal or untested intelligence.

The blurring of preventive and punitive logics: Another significant concern is the gradual erosion of the distinction between preventive detention and criminal prosecution.

The petitioner argued that:

• The offence was triable by a magistrate
• It fell within ordinary criminal law
• NSA invocation was disproportionate

The Court rejected this, holding that the public order dimension justified bypassing the ordinary criminal process.

This reasoning risks transforming preventive detention into a parallel, anticipatory criminal system—one that operates not on proof of guilt, but on projected consequences and perceived risks.

Procedural Safeguards and Judicial Deference: On procedural grounds, the petitioner challenged delays in the disposal of his representation. The Court dismissed this argument, accepting the State’s timeline as adequately explained.

Notably, there is minimal substantive scrutiny of:

• The quality of evidence underlying the detention
• The proportionality of invoking NSA
• The necessity of detention vis-à-vis ordinary law

This underscores a recurring feature of preventive detention jurisprudence: courts often prioritise procedural compliance over substantive rights review. Based on these reasonings, the bench dismissed the habeas corpus petition filed by the petitioner-Sameer challenging his detention, which was ordered by the District Magistrate of Shamli under Section 3(3) of the NSA and subsequently confirmed by the State Government.

The judgement may be read here:

The Jalaun Case (Hasnen vs Union of India and ors): Fear, timing, and administrative evidence

The incident and evidentiary detail: The second case arises from an incident on March 31, 2025, in Kalpi town, where an FIR was registered under the Uttar Pradesh Prevention of Cow Slaughter Act, the Prevention of Cruelty to Animals Act, and the Arms Act. The prosecution alleged:

• Recovery of approximately 3 quintals of beef
• Discovery of cattle, bones, skin, and weapons
• Involvement of multiple accused, including the three petitioners

This led to the detention of the three persons under the National Security Act (NSA), 1980, who were accused of illegally slaughtering cattle. The petitioners were already in custody, and in two cases, had even secured bail. Yet, the District Magistrate invoked Section 3(2) of the NSA, citing apprehensions of future harm and communal disturbance.

The petitioners challenged their detention through habeas corpus petitions, arguing:

• absence of independent material,
• reliance solely on police witnesses,
• lack of criminal antecedents,
• and the fundamentally criminal—not preventive—nature of the allegations.

The State, however, framed the incident as one with far-reaching communal consequences, asserting that the act had disrupted social harmony and posed a real risk of violence.

From “law and order” to “public order”: At the heart of the judgment lies the classical distinction between “law and order” and “public order,” a doctrinal line developed in cases like Ram Manohar Lohia and Arun Ghosh. The Court held that the Kalpi incident clearly crossed this threshold.

Drawing from the detention record, the bench emphasized:

• “Community-wide fear and terror” (भय व आतंक),
• behavioural changes such as residents no longer leaving cattle unattended,
• perceived conspiracy narratives among the public,
• inter-community tension between Hindus and Muslims,
• and a visible administrative escalation—including riot drills, deployment of additional forces, and high-level patrolling.

The Court concluded that these factors collectively disrupted the “even tempo of life,” thereby bringing the case squarely within “public order.”

Crucially, the Court gave significant weight to the timing of the act, describing it as deliberate and “precise,” capable of fracturing communal bonds during a period of heightened religious sensitivity.

Preventive detention as “reasonable anticipation”: The judgment strongly reiterates the preventive (not punitive) nature of detention under the NSA. Relying on established jurisprudence, the Court held:

• Preventive detention is based on anticipation, not proof.
• The subjective satisfaction of the detaining authority is paramount.
• Courts do not sit in appeal over such satisfaction unless it is vitiated by illegality.

Even the fact that the petitioners were already in custody or had secured bail did not deter the Court. It upheld the State’s power to detain on the ground of a “real possibility” of release and recurrence, reaffirming that preventive detention can operate parallel to criminal proceedings.

Procedural compliance: A major plank of the Court’s reasoning is strict procedural compliance:

• Detention orders were passed under Section 3(2),
• Grounds were communicated within statutory timelines,
• Representations were considered and rejected,
• The matter was referred to the Advisory Board,
• The Board affirmed “sufficient cause,”
• The State confirmed detention for one year under Sections 12–13.

The Court concluded that Article 22(5) safeguards were fully satisfied.

Yet, this formal compliance arguably obscures a deeper issue: whether procedural correctness can compensate for thin or contestable substantive grounds.

Elasticity of “public order”: The judgment’s most contentious aspect lies in its expansive reading of “public order.” Traditionally, courts have cautioned that not every criminal act—even if serious—amounts to a disturbance of public order. The distinction requires:

• a direct and proximate impact on the community,
• not merely a potential or speculative disturbance.

However, in this case, the Court relies heavily on:

• anticipated communal reactions,
• perceptions and fears, and
• administrative responses (like police deployment),

to elevate the incident into a public order issue.

This raises a troubling inversion:

• Does the intensity of public reaction—or the State’s response to it—become the basis for preventive detention?
• If so, the doctrine risks becoming self-fulfilling: State apprehension → heightened policing → evidence of “disturbance” → justification for detention.

The problem of timing and religious sensitivity: The Court repeatedly underscores that the act occurred during Navratri and Eid, treating this as a decisive aggravating factor.

While sensitivity to communal context is not misplaced, the reasoning edges toward a more problematic terrain:

• It attributes intentionality (“precise timing”) without clear evidentiary backing.
• It risks constitutionalising religious sentiment as a determinant of liberty.
• It implicitly prioritises majoritarian hurt as a ground for preventive detention.

This approach blurs the line between actual threat and perceived offence, raising concerns about the neutrality of constitutional protections.

Preventive detention and bail: Another striking feature is the Court’s endorsement of detention despite bail:

• Two petitioners had already been granted bail,
• yet were preventively detained to preclude future conduct.

This reflects a broader trend where preventive detention operates as a shadow system, effectively overriding judicial determinations in criminal law.

While doctrinally permissible, it raises structural concerns:

• Does preventive detention undermine the logic of bail jurisprudence?
• Does it allow the executive to circumvent evidentiary thresholds required in criminal trials?

The judgement may be read here:

Liberty at the edge of anticipation

When these two judgments are read together, a coherent doctrinal pattern becomes evident. Both decisions treat cow slaughter as an act with inherent potential to disturb public order, thereby lowering the threshold for invoking preventive detention. In each case, the Court places central emphasis on societal reaction, whether manifested through crowd mobilisation or behavioural fear.

At the same time, contextual factors such as festival timing and communal sensitivity are used to amplify the perceived seriousness of the act. Preventive detention is consistently justified through anticipatory reasoning, with courts accepting intelligence inputs and apprehensions of future conduct as sufficient. Additionally, the scale of administrative response is treated as indicative of the gravity of the situation, further reinforcing the conclusion that public order was at stake.

This emerging doctrine raises significant constitutional concerns. The reliance on intelligence inputs, behavioural indicators, and administrative response points toward a dilution of traditional evidentiary standards. By centring public reaction, the Court risks validating anticipated outrage as a basis for curtailing liberty, thereby shifting the burden away from the State’s responsibility to maintain order.

Furthermore, the increasing use of preventive detention in such cases suggests a blurring of the line between preventive and punitive measures, with the NSA functioning as a parallel mechanism to ordinary criminal law. The emphasis on context and symbolism, while relevant, also introduces a level of subjectivity that can make the concept of public order highly elastic.

A shift from exception to norm

These two rulings, taken together, signal a decisive transformation. Preventive detention—constitutionally conceived as an exceptional measure—is increasingly being normalised in communally sensitive majoritarian criminal contexts.

The shift is subtle but profound:

• From exceptional threat → to contextual sensitivity
• From proven disruption → to anticipated reaction
• From State responsibility → to individual restraint

At stake is not merely the interpretation of “public order,” but the future of personal liberty under the Constitution.

The critical question that emerges is this:

Can constitutional freedoms be made contingent on how society might react—or must the State bear the burden of ensuring order without pre-emptively sacrificing liberty?

In these judgments, the answer appears to lean decisively—perhaps dangerously—toward the former.

Related:

Publicly Tortured, Forced to Eat Cow Dung: No arrests in Odisha Pastor assault case

Judicial Pushback against Cow Vigilantism: Allahabad HC flags arbitrary FIRs, demands accountability from top officials

Supreme Court disposes of PIL on cow vigilantism, declines micro-monitoring of state compliance

Rampant cow vigilantism unleashes violence on Muslim truck drivers across the country

Rise in Cow Vigilantism: A leading driver of discrimination against India’s Muslim minority

The post From Cow Slaughter to “Public Order”: Allahabad High Court’s expanding use of preventive detention appeared first on SabrangIndia.

A bench of Justice Shekhar B Saraf and Justice Abdhesh Kumar Chaudhary thus quashed a 2021 order passed by the District Level Committee, Lakhimpur, refusing to finalise the claims of 107 ‘Tharu’ community members for forest rights, specifically the right to collect and use minor forest produce for their livelihood. The Order of the High Court was passed on April 9, 2026.

In sum, in its order, the Committee, constituted under the Schedule Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007, had relied on an interim order passed by the Supreme Court in the year 2000 under the Forest (Conservation) Act, 1980, to reject the claim of the petitioners. The petition was filed by the NGO Udasa and 101 members of the Tharu community. The petitioners, residents of the Palia Kalan area in Lakhimpur Kheri and members of a Scheduled Tribe, had challenged a March 15, 2021, order that dismissed their claims to community forest rights.

The petitioners moved the High Court seeking the quashing of the district-level committee’s rejection of their claims. They argued that as forest-dwelling Scheduled Tribes, they are entitled to specific rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

It was the case of the petitioners that the Forest Rights Act 2006 was enacted specifically for the benefit of the Scheduled Tribes and traditional forest dwellers. They contended that under Section 3 of the Act, their rights include the ownership, access, and use of minor forest produce traditionally collected within or outside village boundaries.

Furthering this argument, the petitioners also relied on a 2013 Ministry of Tribal Affairs circular clarifying that the 2006 Act, being a subsequent statute, supersedes all preceding court judgments or orders of prior date. The Lucknow bench of the Allahabad High Court found justification in their stance and noted that the 2006 Act aims to recognize and vest the forest and occupation in forest land to these forest dwelling Scheduled Tribes and to ensure their livelihood and food security.

On a close reading of the case, the High Court observed that the district-level committee had fundamentally erred in its approach. The court noted that the committee failed to properly consider the intent and specific provisions of the Forest Rights Act, 2006. Instead, the authority had relied solely on an interim order passed by the Supreme Court in the year 2000 to justify the rejection of the claims. The bench emphasized that the primary objective of the 2006 Act is to recognise the traditional rights of forest-dwelling communities and to secure their livelihood and food security. Explaining this further, the Court clarified that with the enactment of this Act, the legislature had not created any new rights for these forest dwellers, rather it had recognized the existing rights and occupation of these people, who had been traditionally restricted to this place of dwelling in forest owing to various historical reasons.

The court noted in its Order that:

“The objective of the Act is to recognise the traditional rights of forest-dwelling communities and ensure their livelihood and food security, which cannot be overlooked.”

The judges also pointed out that the 2006 legislation was enacted specifically to address historical injustices and to provide a legal framework for the rights of these communities, making it imperative for committees to apply the Act’s provisions rather than relying on outdated interim orders It was against this backdrop that the Court found fault with the impugned order, which the bench said had not taken into account the relevant provisions of the 2006 Act and had only dealt with the Supreme Court interim order passed in 2000, prior to the enactment of the Act.

Following this, the court quashed the March 15, 2021, order and directed the concerned district authority to rehear the matter. The bench mandated that the petitioners be provided a full opportunity for a hearing and that a “reasoned order” be passed within a reasonable timeframe after a thorough examination of all relevant facts and records.

Furthermore, the court provided interim protection to the Tharu community members, clarifying that until the fresh decision is reached, the petitioners will continue to enjoy their existing forest rights without disruption.

In its Order, the Court highlighted that Section 4 of the Act begins with a non-obstante clause, meaning that the central government recognizes and vests these rights notwithstanding anything contained in any other law for the time being in force.

Advocates Nandini Verma, Desh Deepak Singh and Rajat Srivastava apeared for the petitioners. The judgement in Udasa and 106 others vs Union of India, Thru.the Secy. Ministry of Tribal Affairs New Delhi and 5 others may be read here:

Related:

MoEFCC subverting the Forest Rights Act, 2006: 150 Citizens groups

Independent experts, not government servants must be part of the CEC while deciding the challenge to Forest Conservation Act: Former bureaucrats to SC

Destruction of forest in Kancha Gachibowli, Telangana violation of Congress party manifesto: CCG Statement

AIUFWP submits letter LoP Rahul Gandhi, calls for action as forest rights remain in limbo

Adivasi Land Rights Erosion: The effects of the 2023 Forest Conservation Amendment Act

The post Victory for Forest Rights: Allahabad HC recognises land claims of Tharu Tribes, strikes down decision of DLC appeared first on SabrangIndia.

The bench of Justices Kalyan Rai Surana and Justice Susmita Phukan Khaund has now listed the matter for April 24, 2026. While the hearing itself was limited to procedural aspects, the petition raises substantive challenges to the Foreigners Tribunal process, the delay in approaching the Court, and the legal consequences of an ex-parte declaration of foreigner status. The legal aid in this case is being provided by Citizens for Justice and Peace.

Details of the previous case proceedings in GHC, challenging their detention, may be accessed here, here and here.

Proceedings before the High Court

At the outset, counsel for the petitioner, Advocate Mrinmoy Dutta, submitted that the writ petition is maintainable and deserves consideration on merits for two primary reasons.

First, it was argued that the delay in filing the petition has been sufficiently explained, and is not attributable to any deliberate inaction on the part of the petitioner.

Second, it was emphasised that the present petition has been filed pursuant to liberty granted by the Supreme Court, which had expressly permitted the petitioner to challenge the Foreigners Tribunal opinion.

Advocate Dutta also sought that the Court may call for the records of the Foreigners Tribunal, particularly in light of the contention that the proceedings were initiated without disclosure of the grounds of suspicion.

The State, at this stage, did not address the merits of the challenge. Instead, it sought time to file an affidavit raising preliminary objections, specifically on the issue of maintainability of the writ petition.

The Bench allowed the request and passed the following directions:

• The State is permitted to file an affidavit on preliminary objection,
• The interim protection against deportation is extended, and
• The matter is listed on April 24, 2026, with a direction that a copy of the order be furnished to the petitioner.

At this stage, the Court has not adjudicated on maintainability or merits, but has kept the petition alive and ensured that no coercive action is taken in the meantime.

Background: Tribunal opinion and subsequent proceedings

The petition challenges the ex parte opinion dated June 13, 2018 passed by the Foreigners Tribunal, Chirang, in FT Case No. BNGN FT/CHR/220/07, declaring the petitioner to be a foreigner who had allegedly entered India after March 25, 1971.

According to the petition:

• The petitioner had appeared before the Tribunal through an advocate,
• However, due to financial constraints, he was unable to continue legal representation or file a written statement,
• As a result, the proceedings culminated in an ex parte opinion.

Following the declaration:

1. The petitioner was detained on April 30, 2019,
2. Subsequently released on April 30, 2021 due to Covid based relaxations,
3. Thereafter, he was required to report regularly to the police station, which he is stated to have complied with.

The petition further states that:

• On May 25, 2025, he was taken into custody again, allegedly without issuance of an arrest memo or any formal order cancelling his release conditions.

This sequence of events forms the immediate background to the present writ petition.

Supreme Court proceedings and grant of liberty

An important stage in the litigation is the petitioner’s approach to the Supreme Court. After earlier proceedings before the High Court, the petitioner filed an SLP, which came to be disposed of on December 12, 2025.

While dismissing the SLP, the Supreme Court clarified that the dismissal would not preclude the petitioner from challenging the Foreigners Tribunal opinion. This clarification is central to the present proceedings.

The petition asserts that:

• The current writ petition is being filed in exercise of the liberty granted by the Supreme Court, and
• Therefore, objections based on delay or prior proceedings must be considered in that context.

Explanation for delay in filing the petition

The petition sets out a detailed explanation for the delay in challenging the 2018 Tribunal opinion.

1. Financial constraints- It is stated that the petitioner:

• Was unable to pay legal fees before the Tribunal,
• Could not pursue remedies thereafter due to continued financial hardship,
• Faced severe economic difficulty, particularly during the COVID period.2. Periods of detention- The petitioner’s ability to pursue legal remedies was affected by:

• His detention from 2019 to 2021, and
• His subsequent detention beginning May 25, 2025.3. Lack of access to the petitioner- The petition records that:

• Family members were not permitted to meet him freely,
• Efforts to obtain a fresh vakalatnama were unsuccessful,
• At certain points, even information regarding his whereabouts was not clearly disclosed.4. Absence of legal aid- It is specifically pleaded that:

• The petitioner was not provided legal aid, despite being eligible,
• The present petition has been filed only after assistance was arranged through an external organisation.5. Practical difficulties in preparing the petition- The petition had to be prepared:

• Without direct access to the petitioner,
• By reconstructing documents and facts from available records.

Legal submission on delay- On the basis of the above, it is argued that:

• The delay is neither intentional nor negligent,
• The matter involves citizenship and personal liberty, and
• The High Court, in exercise of writ jurisdiction, ought to consider the petition on merits despite delay.

Challenge to the tribunal proceedings

The petition raises multiple grounds challenging the validity of the Tribunal proceedings.

1. Absence of “Main Grounds” in Notice- It is contended that:

• The notice issued to the petitioner was a standard printed format,
• It did not disclose any specific grounds or material forming the basis of suspicion.

The petition argues that such a notice is insufficient in law and affects the jurisdiction of the Tribunal.

2. Validity of the reference- The reference made by the police is challenged on the ground that:

• It was not based on disclosed material,
• There is no indication that there was application of mind before initiating proceedings.

3. Ex Parte opinion- The ex parte opinion is explained as a consequence of:

• The petitioner’s inability to sustain legal representation,
• Rather than any deliberate failure to participate.

4. Opportunity to contest- It is argued that:

• The petitioner was not provided access to materials relied upon,
• Nor given an effective opportunity to present his case.

Documentary basis of citizenship claim

The petitioner relies on several documents to establish his claim to Indian citizenship, including:

• Entries in the NRC 1951 relating to his family,
• Inclusion of his and his family’s names in voter lists of 1965 and 1970,
• Land records showing inheritance from his father.

These documents are relied upon to demonstrate longstanding presence and linkage within India.

Legal argument on burden of proof

The petition addresses the operation of Section 9 of the Foreigners Act by submitting that:

• While the law places an onus on the proceedee,
• This arises only after the State establishes basic facts justifying the reference.

In the present case:

• It is contended that no such foundational material was disclosed,
• Therefore, the burden could not have been validly shifted to the petitioner.

Reliefs sought

The petition seeks:

• Quashing of the Tribunal opinion dated June 13, 2018,
• Setting aside of the reference and notice,
• Directions restraining the authorities from acting on the declaration, including deportation.

Related:

“They were once sent back, awaiting deportation”: State’s new claim deepens uncertainty over fate of Abdul Sheikh and Majibur Rehman

Gauhati HC defers final hearing in Majibur Rehman and Abdul Sheikh petitions; Questions state on justification for continued detention

The post Abdul Sheikh Citizenship Case: Deportation stayed as Gauhati High Court Hears challenge to ex parte foreigner declaration, state to raise maintainability issue appeared first on SabrangIndia.