Jakira Bibi and Naseruddin Sheikh

For Naseruddin Sheikh and Jakira Bibi, an elderly couple from Shernagar village under Agomani Police Station in Dhubri district, that question arrived in the form of notices from the Foreigners Tribunal. The notices did not merely initiate legal proceedings; they brought an extraordinary degree of fear into the ordinary life of a family that had spent generations rooted in Assam.

The allegation against them was that they had entered India illegally from Bangladesh on or after March 25, 1971. The consequence of such an allegation is immense. For a person of limited means, an appearance before a Foreigners Tribunal can mean confronting a legal system that demands historical documents, family linkage, oral evidence and a coherent explanation of one’s identity and residence, often going back decades. The burden is particularly heavy for those who are elderly, poor, uneducated or physically unwell.

Naseruddin was an ageing handcart puller whose life had been spent in physical labour. Jakira was an elderly woman suffering from several health problems who had spent her life caring for her family. Neither possessed the resources to comfortably navigate a prolonged legal battle.

The couple therefore faced something far larger than two legal cases. They faced the possibility that the country in which they been born and lived, could question their allegiance and their lives could suddenly become a question mark.

Their story, however, is also a story of legal intervention, documentary evidence and persistence. With the assistance of the intrepid para-legal and legal team of the Citizens for Justice and Peace (CJP), the couple was able to place their evidence before the Foreigners Tribunal. After examining the materials and testimony presented in the respective proceedings, the Tribunals ultimately declared both Naseruddin Sheikh and Jakira Bibi “Not Foreigner.”

The two orders are significant not only because they brought relief to an elderly couple but also because they demonstrate how citizenship-related proceedings can turn on the careful reconstruction of family history, legacy linkage and documentary continuity—and how access to quality and sensitive legal assistance can be critical when ordinary citizens are required to defend themselves against allegations that challenge their very belonging. The final order in Naseruddin’s case is dated May 8, 2025, while the order in Jakira’s case was pronounced on November 1, 2025. It took the Assam team of Citizens for Justice and Peace, that provided this quality legal aid, eight months in accessing the order of the Foreigners Tribunal.

Foreigners Tribunal Court, Dhurbi

Naseruddin Sheikh: A man who spent his life pulling a handcart, now forced to defend his Indian identity

Naseruddin Sheikh is now close to 76 years old. His life has been shaped by hard work rather than privilege. Born on January 12, 1950, he belongs to Bidyadabri village in the Dhubri region and is the son of late Basaruddin Sheikh and grandson of Sukur Ali @ Khasar.

He never received an education and, from a young age, had to depend on physical labour for survival. For nearly three decades, he worked as a handcart puller in Agomani market, transporting vegetables, rice and other goods. At different times, he also worked as a daily wage labourer, taking whatever work was available to support his family.

His life was not one of comfort, but it was a life firmly rooted in the place he knew as home. Together with his wife, Jakira, he raised six children—three sons and three daughters. While he worked outside, she managed the household and cared for the family.

Today, Naseruddin’s body bears the consequences of decades of physical labour. Yet, even at an advanced age, he sometimes continues to pull his handcart because the economic circumstances of his family leave little room for retirement. It was against this background that the Foreigners Tribunal proceedings began.

The case against Naseruddin was registered as FT-9/113/GKJ/2019. The reference originated from the Superintendent of Police (Border), Dhubri, following a citizenship verification process and raised the question of whether Naseruddin was an illegal migrant or foreigner of the post-1971 stream or any other relevant stream. The Tribunal’s order records that Naseruddin appeared in response to notice, filed a written statement, produced documents and contested the allegation that he was a foreigner.

For Naseruddin, the proceedings were frightening not simply because of their legal implications but because of the practical reality of defending himself. A man whose daily existence depended upon manual labour was suddenly required to reconstruct his family history through documents and testimony. The cost of legal representation, travel to court and the loss of working days could have placed an unbearable burden upon him.

The legal system, however, required him to answer the allegation with evidence. That is where the intervention of CJP became crucial.

CJP Team Assam along with Jakira Bibi and Naseruddin Sheikh

When the CJP team came to his door: After receiving the notice, Naseruddin did not know where to turn. He was confronted with a legal proceeding whose consequences he could not fully understand and whose financial demands he could not easily meet. It was at this point that he came into contact with CJP Community Volunteer Ilias Sarkar, who connected him with the wider CJP team. State In-Charge Nanda Ghosh, Advocate Iskandar Azad and Community Volunteer Habibul Bepari became involved in assisting the couple.

The team visited Naseruddin’s home, examined the available records and began working to understand the documentary history of his family. This intervention was important because citizenship proceedings of this nature often require something that is not easy for ordinary people to provide on their own: the ability to transform scattered documents from different periods into a legally coherent narrative.

A voter list from decades ago may establish the presence of an ancestor. A later electoral roll may establish continuity. A land deed may support residence or possession of property. A witness may explain the relationship between generations. None of these pieces necessarily tells the whole story in isolation. Their significance emerges when they are connected into a credible chain of evidence.

For Naseruddin, the legal task was therefore not simply to produce an Aadhaar card or an EPIC card. The more fundamental challenge was to demonstrate the historical continuity of his identity and his connection to his family and to India.

CJP took responsibility for assisting him in the proceedings, and Advocate Iskandar Azad represented him before the Tribunal. The support gave Naseruddin something that he had been missing since the notice arrived: the confidence that he would not have to face the legal process alone.

As Naseruddin later recalled, “After getting the notice we did not understand where to go. Even with papers, people become foreigners here. So the fear remains, but after you came we got courage.”

His words capture the psychological reality behind the legal case. The presence of legal assistance did not merely provide representation; it restored a measure of confidence to a man who had suddenly been made to question his own security in the country where he had spent his entire life.

The legal strategy: The central challenge in Naseruddin’s case was to establish his connection with his family lineage and demonstrate the continuity of his presence in India. The evidence presented before the Tribunal therefore went back across generations.

One of the important pieces of evidence was a 1966 electoral roll of Bhamandanga Part-II, in which the name of Gerpu Sheikh, son of Sukur Ali, was recorded. Naseruddin identified Gerpu Sheikh as his paternal uncle and Sukur Ali as his grandfather. The Tribunal also considered a 1966 electoral roll from Jaldhoya, where the name of Naseruddin’s father, Basiruddin, was recorded.

The importance of these records lay in their historical character. They were not documents created for the purpose of the present litigation; rather, they were old electoral records that predated the proceedings by several decades. Their evidentiary value, therefore, arose from the fact that they could potentially connect Naseruddin’s present identity to members of his family who were recorded as voters in the relevant period.

The case was further supported by electoral rolls from 1994, 1997, 2005, 2015 and 2022, reflecting the names of Naseruddin and his wife in successive electoral records. The Tribunal’s order records these documents as part of the 13 exhibits produced by Naseruddin in support of his claim.

The defence also relied upon Registered Deed No. 473 dated 24 January 1976, together with Naseruddin’s EPIC, PAN and Aadhaar documents. A licence issued by the Agomani Gaon Panchayat for operating a push cart and certificates issued by the relevant Gram Panchayat were also placed on record.

The evidence was not confined to documents. Naseruddin himself appeared as DW-1 and gave evidence regarding his birth, his father and grandfather, the family’s movements between Assam and West Bengal, his father’s death, his subsequent residence and his own connection with the places in which he lived. His relative Yashomuddin Munshi was also examined as a defence witness.

The Tribunal therefore had before it a combination of historical electoral records, later electoral continuity, land documentation, identity records and oral testimony. Legally, the importance of this combination lies in the way the evidence was intended to work together. The case was not based upon the proposition that any single document, by itself, conclusively established citizenship. Rather, the defence sought to establish a consistent narrative of family lineage and residence through multiple sources of evidence spanning different periods. That approach was central to the Tribunal’s assessment.

Why the evidence was found sufficient in Naseruddin’s case: The Tribunal’s reasoning is particularly important from a legal perspective because it did not simply list the documents and declare the case proved. It examined the documentary record alongside the oral evidence.

The Tribunal scrutinised the 1966 electoral roll of Bhamandanga Part-II and the corresponding electoral evidence from West Bengal. It considered the oral evidence concerning Gerpu Sheikh and Basiruddin, whom Naseruddin identified as members of his paternal family. The Tribunal also noted that Naseruddin’s own testimony supported his existence in India from his birth in 1950.

The Tribunal also considered Naseruddin’s account of his father’s movements between Assam and West Bengal. His evidence was that his father had moved to Jaldhoya in Cooch Behar in the mid-1950s, remained there for a period and had cast his vote in the West Bengal electoral roll, before returning to Assam and subsequently residing in the Bhamandanga area. Naseruddin further described the circumstances following his father’s death and his own later residence in Shernagar.

This is legally significant because the Tribunal was required to assess not only whether individual documents existed but whether the overall evidence formed a credible and consistent account. The Tribunal ultimately found that the historical electoral evidence, together with the oral testimony, supported the existence of Naseruddin in India from birth and established the parental linkage relied upon by him. The evidence of his defence witness was also considered in support of his version.

The significance of the decision, therefore, lies in the Tribunal’s acceptance of a cumulative evidentiary approach. Historical voter records, family linkage, oral testimony and subsequent documentary continuity were considered together rather than in isolation.

The final conclusion was unequivocal: Naseruddin did not appear to be a foreigner of the post-1971 stream or of any other stream, and the reference against him was answered in the negative. In practical terms, Naseruddin Sheikh was declared “Not Foreigner.”

For a man who had spent his entire life working with his hands, the order represented the end of an extraordinary legal ordeal. It meant that the elderly handcart puller who had always said, “I was born here, my father was born here, my grandfather was also born here,” had succeeded in placing before the Tribunal the evidence necessary to support that claim.

The complete order may be read below:

Jakira Bibi: When an ailing elderly woman had to defend the home she had always known

While Naseruddin fought his legal battle, his wife, Jakira Bibi, was facing a Foreigners Tribunal proceeding of her own. Jakira is above 60 years old and suffers from several health problems. Her life, like her husband’s, has been one of family responsibilities and modest means. She was born on July 12, 1964 in Shernagar village, the same region where her family had long been rooted.

Her father was Bataullah Sheikh, also referred to in the proceedings as Batasulla Sheikh, and her mother was Jelmoti Bibi. Her family history, as presented before the Tribunal, extended through historical electoral records and NRC legacy data.

Jakira’s case was registered as FT-9/112/GKJ/2019. The reference alleged that she had entered India illegally from Bangladesh on or after March 25, 1971. The order records that the reference originated from the Superintendent of Police (Border), Dhubri, and that Jakira contested the allegation, asserting that she was an Indian citizen by birth and that her parents and family were rooted in Assam.

For Jakira, the proceedings came with a particularly heavy physical burden. She was an elderly woman living with health problems, while her husband was himself an ageing daily wage worker. The prospect of travelling, collecting documents and participating in litigation was therefore not merely inconvenient—it was a serious hardship. But the evidence in her case was substantial.

Her defence sought to establish her identity through her parents, her family lineage and her own long history of residence and participation in the electoral process.

The evidence in Jakira’s case: The legal case presented on behalf of Jakira was built around a combination of historical electoral records, family linkage, land documentation and oral evidence. The Tribunal considered a 1958 electoral roll of Shernagar in which the names of Jakira’s parents, Batasullah Sheikh and Jelmoti Bibi, were recorded. The defence also relied upon a 1966 electoral roll, which reflected the name of her mother along with her stepfather, Goher Ali. Later electoral records from 1985, 1994, 1997, 2005, 2015 and 2022 were produced to demonstrate continuity of the family’s presence and Jakira’s own electoral history.

The defence further relied upon 1951 NRC legacy data, which was cited in support of the family linkage, as well as Registered Sale Deed No. 456 dated 20 January 1983, relating to ancestral land. Jakira’s own EPIC, PAN and Aadhaar documents were also placed on record. Importantly, the case did not rest solely upon documentary evidence. Jakira herself appeared as DW-1, while her elder brother Jahir Ali appeared as DW-2 to support the family linkage and her account of the family’s presence in India.

The Tribunal’s order records that Jakira produced as many as 16 exhibits in support of her claim, including historical and subsequent electoral rolls, the 1983 registered deed, identity documents and the identity documents of her brother. The evidentiary structure of the case is important.

The older electoral records were relevant to establishing the presence of Jakira’s parents and family in the earlier period. The later electoral records helped demonstrate continuity. The land deed supported the family’s connection to property in the area. Her own testimony and that of her brother addressed the relationship between the generations. Thus, as in Naseruddin’s case, the legal significance lay in the cumulative effect of the evidence.

The legal significance of Jakira’s victory: The Tribunal’s order makes an explicit reference to Section 9 of the Foreigners Act, 1946, observing that the burden was upon the proceedee to prove her nationality and that, accordingly, the liability of the prosecution was dispensed with.

In a Foreigners Tribunal proceeding, the legal question is not merely whether a person possesses contemporary identity documents. The person proceeded against must establish the case put forward regarding their nationality and status in accordance with the applicable legal framework. That makes historical evidence especially important when the allegation concerns illegal entry after the March 25, 1971 cut-off.

Jakira’s case therefore required her to establish more than her present-day identity. Her evidence sought to demonstrate her familial and historical connection to Assam, beginning with the electoral presence of her parents and continuing through her own life and electoral records.

The Tribunal examined the historical voter lists and the oral evidence of Jakira and her brother. It noted that her father and mother had cast votes in Assam and that the relevant electoral records supported the defence version. The Tribunal also considered the subsequent electoral rolls in which Jakira and her husband were recorded as voters.

The Tribunal further noted that the Election Office, Dhubri, had confirmed the authenticity of the exhibited electoral rolls. This was an important corroborative element because it strengthened the evidentiary reliability of the historical electoral records relied upon by the defence.

The Tribunal also considered the oral evidence of Jakira’s brother, Jahir Ali, regarding her paternal linkage. His testimony was treated as corroborating Jakira’s own evidence, and the Tribunal found that the parental linkage with Batasullah Sheikh had been established adequately.

The legal significance of this reasoning lies in the Tribunal’s reliance on multiple mutually supporting forms of evidence. The historical electoral records established the presence of the family; the later rolls demonstrated continuity; the land record supported the family’s connection to the area; and the oral evidence provided the relational bridge linking Jakira to her parents.

The Tribunal ultimately found that Jakira was a descendant of genuine Indian parents and that she had successfully discharged the burden placed upon her. She was declared “Not Foreigner.”

The complete order may be read below:

What triggered the proceedings against them?

The question of how a person first comes to be referred to a Foreigners Tribunal is an important part of every citizenship case. The legal battle before the Tribunal is only one stage of the process. Before that, there must be a basis for the initial reference and the decision to question the person’s nationality.

In the case of Jakira Bibi, the reference was originally forwarded by the Superintendent of Police (B), Dhubri, through SP (Border) I(M)DT Case No. 2389/98. The order records that the reference was made on the basis of a doubt regarding her nationality, with the purpose of determining whether she was or was not an illegal migrant. The matter was subsequently re-numbered before Foreigners Tribunal No. 2, Dhubri as F.T. Case No. 3494/GKJ/2011, under the provisions of the Foreigners Act, 1946, read with the Foreigners (Tribunals) Order, 1964.

In Naseruddin Sheikh’s case, the order provides a somewhat more specific description of the origin of the reference. It states that the case was originally forwarded by the Superintendent of Police (B), Dhubri, Assam, vide IM(D)T Case No. 2388/1998, on the basis of a report made by the Local Verification Officer for determination of his citizenship. The case was initially registered before the Foreigners Tribunal No. 2, Dhubri and was later transferred to the present Tribunal following the constitution of additional Tribunals.

The order further records that, upon consideration, the Tribunal found “sufficient grounds to proceed” and accordingly issued notice to Naseruddin, providing him an opportunity to show cause in respect of the matter. These details are significant because they bring the question of the “first cause of action” into focus.

In Naseruddin’s case, the order specifically refers to a Local Verification Officer’s report as the basis for the original reference for determination of his citizenship. In Jakira’s case, the order states that the reference arose from a doubt regarding her nationality. The documents, however, as quoted above, do not themselves set out the substantive contents of the Local Verification Officer’s report in Naseruddin’s case or explain in detail what specific material gave rise to the doubt regarding Jakira’s nationality.

Two Cases, One Common Lesson: Citizenship proceedings are often about reconstructing a life through evidence

The cases of Naseruddin Sheikh and Jakira Bibi are legally distinct proceedings, but their evidentiary journeys reveal a common pattern. In both cases, the defence had to reconstruct a family history that stretched back decades. In both, historical electoral rolls played an important role, electoral records helped demonstrate continuity, and oral testimony was used to establish family relationships and explain the documentary record. And in both, the evidence was considered not as isolated pieces but as part of a larger narrative of identity, ancestry and residence.

In citizenship proceedings, the strength of a case may lie not in one document but in the consistency between several independent sources of evidence. A historical electoral roll may establish the presence of a parent or grandparent. A later electoral roll may demonstrate continuity. A land document may reinforce residence and family connection. A witness may explain the relationship between individuals appearing in different records.

The value of legal representation, therefore, is not limited to arguing before the Tribunal. It also lies in identifying which documents matter, tracing family linkage, locating historical records and presenting them in a manner that allows the Tribunal to assess the evidence as a coherent whole. For Naseruddin and Jakira, the CJP team’s intervention helped transform a collection of old documents and family memories into a structured legal defence. That is where access to justice becomes particularly important.

The human cost behind the case numbers

Behind FT-9/113/GKJ/2019 and FT-9/112/GKJ/2019 were not merely two case files. There was an elderly man who had spent his life pulling a handcart to feed his family. There was an elderly woman who was already battling illness. There were six children whose parents were suddenly living under the shadow of a citizenship proceeding.

There was a family that had to search through decades of records to prove a history that had always been part of their everyday lives. The legal proceedings also reveal the disproportionate impact that such litigation can have on people living in poverty.

For Naseruddin, appearing in court could mean losing the day’s earnings. For Jakira, the physical strain of participating in proceedings was compounded by her health problems. For both, the financial cost of engaging a lawyer could have been beyond their means. This is why legal aid in citizenship proceedings is not simply a matter of convenience. It can determine whether a vulnerable person is able to meaningfully participate in the legal process.

A person may possess relevant documents but not know which ones are legally significant. They may have a family connection but lack the ability to explain it in the form required by a legal proceeding. They may have old electoral records but not understand how those records can establish a historical linkage. Legal assistance can bridge that gap. In Naseruddin and Jakira’s cases, that bridge ultimately helped them present their evidence before the Tribunal.

The day the order came home

On July 18, the CJP team visited the couple’s home to deliver copies of the order. The team included Advocate Iskandar Azad, Office Driver Asikul Hussain, Community Volunteers Ilias Sarkar (Rabbi), Habibul Bepari, Deep Ghosh and Ilias Rahman, along with State In-Charge Nanda Ghosh. This time, they did not arrive with another notice; they came carrying the order.

For the couple, the moment represented the end of months of uncertainty and fear.  Naseruddin had feared that the proceedings might eventually lead to detention. Jakira had endured the physical and emotional burden of litigation despite her health problems. Together, they had lived through the uncertainty of not knowing whether the country they had always called home would continue to recognise them as belonging to it. When the order were placed in their hands, the relief was overwhelming.

Naseruddin recalled the terror he had experienced when the notice first arrived and how the support of CJP had given him the courage to continue. Jakira expressed her gratitude through tears, remembering how the team had come to their home, helped organise their documents and ensured that they had legal representation. Their words reveal something that legal orders alone cannot capture.

A favourable order may end a proceeding, but it cannot immediately erase the fear created by the proceeding itself. The couple had won, but the memory of having been forced to defend their belonging would remain.

Beyond Two Victories: The larger citizenship question

The legal victory of Naseruddin and Jakira is deeply significant to them and their family. But their cases also raise broader questions about how citizenship proceedings affect ordinary people, particularly those who live on the margins of society.

A person may have lived in a village for decades and still be required to reconstruct their family history through records that may be more than half a century old. Historical documents may contain variations in names or spellings. Families may have moved between districts or across state boundaries. Electoral records may exist in different places. Land may have been acquired, sold or requisitioned. All of these factors can make the process of establishing continuity complex.

The two cases demonstrate why citizenship proceedings cannot be viewed purely as administrative exercises. They involve questions of identity, family history, dignity and belonging. They also raise crucial questions of maintainability, accountability and mala fide by authorities, unused to being questioned on these foundational aspects.

The legal orders also demonstrate the importance of the evidentiary process. In both cases, the Tribunals considered the documentary record alongside oral evidence and assessed whether the evidence, taken as a whole, was sufficient to discharge the applicable burden.

In Naseruddin’s case, the Tribunal accepted the evidentiary chain connecting him to his paternal family and his presence in India. In Jakira’s case, the Tribunal accepted the evidence establishing her parental linkage and the family’s historical presence in Assam.

The outcomes therefore underline the importance of access to legal assistance, preservation of historical records and the careful presentation of evidence. At the same time, the emotional experiences of the couple remind us that the human consequences of citizenship proceedings extend far beyond the courtroom. For the poor and elderly, the process itself can become a source of profound anxiety. The question, therefore, is not only whether justice can ultimately be obtained. It is also whether vulnerable people have the support necessary to reach justice in the first place.

From Fear to Dignity: The meaning of “not foreigner”

For Naseruddin Sheikh and Jakira Bibi, being declared “Not Foreigner” means more than winning a legal case. It means that the fear and uncertainty they lived with after receiving the notices have finally come to an end.

The judgments have brought them relief and restored their sense of security. The evidence they collected, the family records they preserved and the testimony they gave were accepted by the Tribunals.

Naseruddin is still the elderly man who spent decades pulling a handcart in Agomani market. Jakira is still the woman who devoted her life to caring for her family. But now, they can return to their home without the fear that once followed them. Their story is about belonging, but it is also about the importance of having the chance to be heard and to present one’s evidence before the law. For both, the journey began with fear. It continued through old electoral rolls, land records, family documents and witness testimony, supported by legal assistance and the determination to prove their history. And it ended with two words that brought them immense relief: “Not Foreigner.”

or CJP, the victory of Naseruddin Sheikh and Jakira Bibi is not the end of the struggle, but a reminder of why access to justice and legal support remain so important for Assam’s poor and marginalised communities. The CJP team says it will continue to stand with those whose citizenship and dignity are challenged, with the hope that no Indian will ever have to face the fear of proving that they belong to their own country.

Today, Naseruddin and Jakira can finally smile without the shadow of the notices hanging over them. After a long journey of fear, uncertainty and legal struggle, they can return to their home with renewed confidence and say what they have always believed: “We are Indian.”

 Related:

Another CJP Victory: Barpeta Tribunal declares Alam Khan ‘not a foreigner’

When a narrow reading of documents decide citizenship: GHC in Aminul Hoque

‘Fairness & reason ‘: SC rules that due process is a must for citizenship determination

Gauhati High Court upholds foreigner declaration, rejects mental illness plea

When a Spelling Error Can Cost Citizenship: Supreme Court stays deportation of five Assam women

The post The country they called home, the identity they had to defend appeared first on SabrangIndia.

Alam Khan outside his home in Barpeta

In an order delivered on January 6, 2026, the Foreigners Tribunal No. 1, Barpeta, presided over by Member Ms. Anurupa Dey, declared that Alam Khan is not a foreigner, concluding that he had successfully established his Indian citizenship through reliable documentary evidence, credible oral testimony and a consistent chain of records demonstrating that his family had been residing in Assam prior to the statutory cut-off date of March 25, 1971.

The decision represents another important legal victory for Citizens for Justice and Peace (CJP), which provided legal assistance to Alam Khan throughout the proceedings. The matter was argued by Advocate Abhijeet Choudhury, whose legal strategy addressed complex questions of lineage, documentary continuity and evidentiary burden arising under the Foreigners Act, 1946.

Alam Khan along with CJP Team Assam, outside his home

However, the significance of this decision extends beyond one individual’s relief. The Tribunal’s order is noteworthy for its careful appreciation of evidence, its refusal to allow administrative lapses to prejudice the proceedee, and its recognition that family circumstances such as divorce and remarriage cannot, by themselves, undermine a genuine claim to Indian citizenship.

A citizenship dispute dating back more than two decades

Alam Khan’s case originated as IM(D)T Reference Case No. 1371 of 2000, when the Superintendent of Police (Border), Barpeta, referred him as a suspected foreigner. Following the Supreme Court’s order striking down the Illegal Migrants (Determination by Tribunals) Act in Sarbananda Sonowal v. Union of India, pending references under the IM(D)T regime stood transferred to Foreigners Tribunals for adjudication under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. Alam Khan’s case was one such transferred proceeding.

Although the reference itself was over two decades old, Alam Khan received a fresh notice from the Tribunal only in October 2024, compelling him once again to defend his citizenship. For a daily wage labourer with limited financial means, this meant returning to prolonged litigation, collecting decades-old documents, tracing family records and proving facts that ordinarily no citizen is ever expected to establish.

The proceedings eventually culminated in January 2026, though the certified copy of the order reached Alam Khan only several months later. On July 16, 2026, CJP’s legal team, represented by Advocate Abhijeet Choudhury and Assam State In-charge Nanda Ghosh, formally handed over the order copy to him, marking the end of a legal battle spanning almost twenty-six years.

A case made difficult by family history rather than law

Unlike many Foreigners Tribunal proceedings where documentary continuity alone becomes the principal issue, Alam Khan’s case presented an additional layer of complexity arising from his family’s personal history. Alam Khan was born to Late Abdul Hakim Khan and Joytan Nessa. During his childhood, however, his parents divorced. Following the separation, his mother returned to her parental home, while Alam Khan continued residing with his father. Subsequently, his father remarried, and his stepmother, Jahura Khatun, became part of the family. These personal circumstances later translated into significant documentary complications.

By the time Alam Khan’s own name began appearing in electoral rolls, his father had already passed away. Consequently, subsequent voter lists reflected his residence alongside his stepmother rather than his biological mother. Since he did not possess a birth certificate, establishing the identity of his biological mother, and distinguishing her from his stepmother, became one of the most difficult factual questions before the Tribunal.

Ordinarily, such inconsistencies are capable of creating serious doubts in citizenship proceedings, particularly because the burden of proof under Section 9 of the Foreigners Act rests upon the proceedee. Had these inconsistencies remained unexplained, they could easily have undermined Alam Khan’s defence despite his genuine claim to citizenship. It was this challenge that shaped CJP’s legal strategy before the Tribunal.

CJP’s Legal Strategy: Addressing documentary gaps through credible evidence

Recognising that the case hinged not merely on producing documents but on explaining the circumstances behind apparent inconsistencies, CJP adopted a legal strategy that combined documentary evidence with carefully structured oral testimony. Representing Alam Khan, Advocate Abhijeet Choudhury sought to establish an unbroken narrative of lineage, residence and citizenship, while simultaneously demonstrating that the deficiencies in the documentary record arose from circumstances entirely beyond the proceedee’s control. The defence first addressed the most fundamental issue in the case—Alam Khan’s parentage.

To resolve the confusion arising from the divorce of his parents and his subsequent residence with his father and stepmother, CJP produced Joytan Nessa, Alam Khan’s biological mother, as Defence Witness No. 2 (DW-2). Through her sworn affidavit and oral testimony, she confirmed that Alam Khan was indeed her son and explained the family’s history, including her separation from Abdul Hakim and her return to her parental home. The Tribunal found that her evidence fully corroborated Alam Khan’s own testimony and expressly recorded that it found no reason to disbelieve her evidence.

This was a crucial intervention. In Foreigners Tribunal proceedings, discrepancies concerning parentage or family relationships often become decisive, particularly where birth certificates or other foundational documents are unavailable. By placing the biological mother in the witness box and allowing her testimony to withstand cross-examination, the defence transformed what appeared to be a documentary weakness into a coherent and credible explanation supported by oral evidence.

Equally significant was CJP’s response to another obstacle that had nothing to do with Alam Khan himself—the absence of certified electoral rolls for 1985 and 1989. The relevant Election Commission office was unable to produce certified copies of these electoral rolls because they had not been preserved. This was an institutional failure entirely attributable to the authorities. During the proceedings, Advocate Abhijeet Choudhury argued that a citizen cannot be expected to suffer adverse consequences because the State failed to preserve public records that were legally required to be maintained. The inability to produce those electoral rolls, therefore, could not be treated as evidence against the proceedee.

Instead of insisting upon documents that no longer existed, the defence invited the Tribunal to examine the continuity of evidence through earlier and subsequent electoral records, legacy documents and witness testimony. The Tribunal accepted this broader evidentiary approach, demonstrating that the absence of a particular document does not necessarily break the chain of proof where surrounding evidence establishes continuity.

Documentary evidence establishing citizenship

To discharge the burden imposed under Section 9 of the Foreigners Act, 1946, the defence produced an extensive body of documentary evidence tracing Alam Khan’s family across multiple decades. The foundation of the case lay in the 1951 National Register of Citizens (NRC). The Tribunal noted that Alam Khan’s grandfather’s name appeared in the 1951 NRC Legacy Data under Legacy Data Code No. 120-0041-8547, establishing that the family was residing in village Katla, Mouza Bhawanipur, long before the citizenship cut-off date prescribed under the Assam Accord. The documentary chain was then strengthened through certified electoral rolls spanning more than five decades.

The 1965 and 1970 voter lists contained the names of Alam Khan’s father, Abdul Hakim Khan, and his mother, Joytan Nessa. The 1970 electoral roll also reflected the presence of his stepmother following his father’s remarriage, a circumstance that aligned with the factual explanation advanced before the Tribunal. Alam Khan’s own name subsequently appeared in the electoral records from 1997 onwards, demonstrating continuity of residence in the same village. Certified copies of the voter list for 1997, 2005, 2010, 2019 and 2021 were produced before the Tribunal.

The defence also produced Alam Khan’s Voter Identity Card, land records (Khatian) and a certificate issued by the Gaonburah of Katla village. Significantly, the Gaonburah himself appeared before the Tribunal and proved the certificate, explaining that it had been issued after verification of the 1965 electoral records relating to Alam Khan’s father. This substantially enhanced the evidentiary value of the certificate, which was no longer merely a supporting document but one whose authenticity stood established through oral testimony.

An equally important aspect of the proceedings was the State’s own conduct. While Alam Khan examined three witnesses, including himself, and produced extensive documentary evidence, the State did not lead any evidence whatsoever to substantiate the allegation that he was a foreigner. The Tribunal specifically recorded that no witness appeared on behalf of the State to adduce evidence.

Tribunal rejects a mechanical approach to citizenship determination

The order is particularly significant because it rejects a narrow or mechanical assessment of documentary evidence in favour of a holistic evaluation of the entire factual record. Foreigners Tribunal proceedings are frequently characterised by intense scrutiny of documentary inconsistencies. Minor discrepancies in names, ages, family relationships or electoral records have often proved fatal to citizenship claims. In Alam Khan’s case, however, the Tribunal recognised that documentary records must be assessed in light of the social realities that produce them.

Rather than treating the absence of a birth certificate or the appearance of a stepmother’s name in later electoral rolls as circumstances adverse to the proceedee, the Tribunal examined whether those circumstances had been satisfactorily explained through credible evidence. Finding that they had, it accepted the explanation offered by the defence.

This approach reflects an important principle in citizenship adjudication: documentary evidence does not exist in isolation. Electoral rolls, family records and legacy documents must be read together with oral testimony and surrounding circumstances. Where the evidence collectively establishes a coherent and credible narrative, isolated inconsistencies cannot automatically justify declaring an individual a foreigner. That reasoning is one of the most significant aspects of the order and reinforces the principle that citizenship determinations must rest on a comprehensive appreciation of evidence rather than on rigid technicalities.

Tribunal finds Alam Khan successfully discharged the burden under Section 9 of the Foreigners Act

One of the most important aspects of the decision lies in the Tribunal’s application of Section 9 of the Foreigners Act, 1946, which places the burden of proving Indian citizenship upon the proceedee once a reference is made against them. While the statutory burden remained upon Alam Khan, the Tribunal emphasised that this burden had to be assessed on the basis of the quality, credibility and cumulative effect of the evidence rather than through a piecemeal examination of individual documents.

After considering the oral testimony and documentary record together, the Tribunal held that Alam Khan had successfully discharged this burden. It observed that the evidence placed on record was trustworthy, internally consistent and sufficiently established that he was born to Indian parents who had been residing in Assam prior to March 25, 1971.

This finding is significant because it reiterates an important evidentiary principle governing Foreigners Tribunal proceeding. Although Section 9 reverses the ordinary burden of proof, it does not authorise a mechanical rejection of citizenship claims merely because every conceivable document is unavailable. Instead, what is required is a credible evidentiary chain capable of establishing ancestry and residence. The Tribunal found that Alam Khan had done precisely that.

Oral evidence receives equal evidentiary weight

The order is equally noteworthy for the importance it accords to oral testimony. Citizenship cases before Foreigners Tribunals often become document-centric, with oral evidence receiving comparatively little attention. In Alam Khan’s case, however, the Tribunal carefully evaluated the testimony of both the proceedee and his witnesses instead of confining itself to documentary records alone.

The evidence of Joytan Nessa (DW-2) proved particularly decisive. Her testimony not only established that she was Alam Khan’s biological mother but also explained the family’s circumstances following her divorce from Abdul Hakim. The Tribunal categorically recorded that her affidavit corroborated Alam Khan’s own evidence and that there was no reason to disbelieve her testimony.

Similarly, the Gaonburah of Katla village, who had issued the hereditary certificate relied upon by the defence, appeared before the Tribunal and proved its contents. The Tribunal specifically noted that the certificate had been issued after verification of the 1965 electoral records relating to Alam Khan’s father, thereby enhancing both its authenticity and evidentiary value.

Together, these witnesses bridged the documentary gaps that arose because of divorce, remarriage and the absence of a birth certificate. Rather than treating oral evidence as secondary, the Tribunal relied upon it to contextualise and reinforce the documentary record.

Administrative negligence cannot defeat citizenship

The proceedings also exposed a troubling administrative lapse. During the course of the case, certified copies of the 1985 and 1989 electoral rolls could not be produced because the Election Commission had failed to preserve those records. This was not a case where Alam Khan had failed to produce documents in his possession; rather, the relevant public authority itself was unable to furnish records that ought to have been maintained.

Recognising the implications of this failure, CJP argued that a citizen cannot be deprived of his legal rights because of omissions committed by the State. The absence of public records attributable to administrative negligence cannot be converted into evidence against the very citizen who seeks to rely upon them.

Although the Tribunal’s written opinion ultimately rested on the strength of the remaining documentary and oral evidence, its acceptance of the defence case effectively recognised that missing public records, when unavailable due to official lapses, cannot by themselves negate an otherwise credible claim of citizenship. The decision therefore reflects a fair and pragmatic approach to evidentiary evaluation in citizenship proceedings.

This aspect of the case is likely to assume wider significance. Across Assam, numerous citizenship proceedings have been complicated by missing electoral rolls, damaged records and administrative deficiencies that are entirely beyond the control of the persons facing proceedings. The reasoning adopted in Alam Khan’s case reinforces the principle that such institutional failures should not become instruments for denying citizenship.

A holistic appreciation of evidence

In this order, rather than isolating each document and asking whether it independently established citizenship, the Tribunal examined the evidence as a connected chain extending across several decades. It considered the 1951 NRC legacy data, the certified electoral rolls from 1965, 1970, 1997, 2005, 2010, 2019 and 2021, the voter identity cards, the land records, the Gaonburah’s certificate and the oral testimony of the proceedee and his witnesses. None of these documents, viewed in isolation, answered every question raised in the proceedings. Taken together, however, they established a consistent narrative regarding Alam Khan’s ancestry, family history and continuous residence in Assam.

The Tribunal expressly recorded that the evidence relied upon by Alam Khan appeared trustworthy, that there was nothing on record to disbelieve his version, and that the documents produced were admissible and duly proved. On that basis, it concluded that he had been born and brought up through genuine Indian parents and, being their descendant, could not be termed a foreigner.

“The evidence of Proceedee, coupled with the above-mentioned documents relied upon by him appears to be trustworthy and there is nothing on record to disbelieve him. I find sufficient proof on record to come to a definite conclusion that the Proceedee was born and brought up through genuine Indian Parents and as such, he being the descendent of his Indian Parents cannot be termed as a foreigner as alleged in the above-mentioned case.” (Para 8)

In doing so, the Tribunal reaffirmed an important legal principle: citizenship adjudication is ultimately an exercise in evaluating the totality of evidence. The law does not require perfection in documentation; it requires credible proof. Where multiple independent pieces of evidence corroborate one another and collectively establish the proceedee’s claim, isolated inconsistencies or documentary gaps cannot outweigh the cumulative force of the record. That is precisely the approach adopted in Alam Khan’s case, making the decision an important example of reasoned and evidence-based adjudication under the Foreigners Act.

The Final Verdict: Tribunal declares Alam Khan ‘not a foreigner’

Having examined the oral testimony, documentary evidence and the submissions advanced by both sides, the Foreigners Tribunal unequivocally held that the allegations made against Alam Khan could not be sustained. The Tribunal observed that the proceedee’s testimony, read together with the evidence of his biological mother and the documentary record produced before it, constituted a credible and reliable chain of evidence. It found no material on record that cast doubt upon the authenticity of the documents or the veracity of the witnesses. On the contrary, the Tribunal held that the evidence consistently established that Alam Khan belonged to a family that had been residing in Assam long before the statutory cut-off date and that he was the descendant of genuine Indian citizens.

Accordingly, by its order dated January 6, 2026, the Tribunal answered the reference in the negative, holding that Md. Alam Khan, son of Late Abdul Hakim Khan of village Katla, Barpeta, is not a foreigner within the meaning of the Foreigners Act, 1946.

The decision finally brought an end to a proceeding that had remained unresolved for over two decades, restoring to Alam Khan what should never have been placed in doubt—his recognition as an Indian citizen.

Alam Khan holds up the Foreigners’ Tribunal Order

Why this order matters

While the order grants relief to one individual, its importance lies in the principles it reinforces for citizenship adjudication before Foreigners Tribunals. First, the order demonstrates that family complexities cannot be viewed in isolation from social realities. Divorce, remarriage and blended family structures are lived realities across society. The absence of a birth certificate or the appearance of a step-parent’s name in electoral records cannot automatically negate a person’s citizenship. By accepting oral evidence that satisfactorily explained these circumstances, the Tribunal adopted an approach rooted in evidentiary fairness rather than technical formalism.

Secondly, the case highlights the consequences of administrative negligence. The inability to produce certain electoral records did not arise because Alam Khan had failed to preserve them; rather, the relevant public authority itself had failed to maintain those records. Had the Tribunal adopted an inflexible documentary standard, Alam Khan could have been penalised for omissions committed entirely by the State. Instead, the Tribunal assessed the available evidence in its entirety and declined to allow institutional lapses to determine the outcome of the proceedings.

Thirdly, the decision reiterates that the burden under Section 9 of the Foreigners Act is discharged through credible and cumulative evidence, not through the production of any one document in isolation. Legacy data, electoral rolls spanning several decades, land records, voter identity documents, certificates issued by local authorities and reliable witness testimony together formed an unbroken chain that satisfied the Tribunal. The order therefore reinforces the settled principle that citizenship claims must be evaluated on the basis of the totality of evidence rather than isolated discrepancies.

Finally, the order underscores the importance of effective legal representation in Foreigners Tribunal proceedings. Citizenship litigation often turns upon nuanced questions of evidence, lineage and documentary continuity. Alam Khan’s case demonstrates how careful legal strategy, supported by thorough documentation and credible witness testimony, can overcome seemingly insurmountable evidentiary hurdles.

A victory beyond the courtroom

For Alam Khan, the order marks far more than the conclusion of litigation. For years, the proceedings imposed severe emotional, social and financial burdens on a man whose livelihood depended on daily labour, farming and fishing. Living on the banks of the Dhumarkur River, Alam Khan has long battled forces beyond his control. Every monsoon, floodwaters enter his home, eroding both land and livelihood. Yet, for over two decades, nature was not his only adversary. As he poignantly puts it, “On one side, the floods threaten to wash away my home. On the other, the government sought to take away my citizenship.” His victory before the Foreigners Tribunal has ended one of those battles, even as the other returns with every monsoon.

Like countless individuals facing citizenship proceedings in Assam, he lived with the uncertainty that accompanies every notice, every hearing and every adjournment. The prolonged litigation affected not only his legal status but also his ability to live with dignity and security.

Upon learning of the Tribunal’s decision, Alam Khan broke down in tears. Describing the years of mental distress and financial hardship that accompanied the proceedings, he acknowledged that without the legal support extended by Citizens for Justice and Peace, it would have been extremely difficult for him to establish his citizenship and secure justice.

On July 26 2026, Advocate Abhijeet Choudhury and CJP Assam State In-charge Nanda Ghosh formally handed over the certified copy of the order to Alam Khan, symbolising the end of a legal struggle that had lasted almost twenty-six years.

CJP’s continuing commitment

Alam Khan’s case is another reminder of the indispensable role that sustained legal aid plays in protecting the rights of vulnerable communities facing citizenship proceedings in Assam. Over the years, Citizens for Justice and Peace (CJP) has represented hundreds of economically and socially marginalised individuals before Foreigners Tribunals, assisting them in tracing legacy documents, reconstructing family histories, producing witnesses and navigating a complex legal process that is often inaccessible to those with limited means.

The organisation’s intervention in Alam Khan’s case illustrates that citizenship litigation is not merely about producing documents; it is about reconstructing lives, explaining family histories, addressing administrative failures and ensuring that constitutional guarantees are not defeated by poverty, illiteracy or bureaucratic lapses.

With this order, another individual has been spared the devastating consequences of an erroneous declaration of foreigner status. Yet the case also serves as a broader reminder that citizenship adjudication must remain anchored in fairness, careful appreciation of evidence and the rule of law.

The complete order may be read below:

Related:

When a narrow reading of documents decide citizenship: GHC in Aminul Hoque

‘Fairness & reason ‘: SC rules that due process is a must for citizenship determination

Gauhati High Court upholds foreigner declaration, rejects mental illness plea

When a Spelling Error Can Cost Citizenship: Supreme Court stays deportation of five Assam women

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Recent decisions of three different High Courts, the Bombay High Court, the Madhya Pradesh High Court and the Allahabad High Court, although arising from entirely different factual situations, reveal a remarkably consistent judicial approach towards police accountability. Each case concerns a distinct stage of the criminal process. The Bombay High Court examined the legality of custodial violence committed during investigation and the extent to which statutory protection under Section 197 of the Code of Criminal Procedure could shield police officers accused of assaulting a suspect. The Madhya Pradesh High Court dealt with compliance with the newly enacted Bharatiya Nagarik Suraksha Sanhita and the constitutional requirement that every arrested person be informed, in writing, of the grounds of arrest. The Allahabad High Court, on the other hand, addressed what appeared at first glance to be a routine bail application but eventually transformed it into an inquiry into police negligence that had delayed adjudication of the applicants’ liberty.

Viewed independently, each judgment addresses a different procedural or substantive question. One concerns custodial violence, another concerns arrest procedure, and the third concerns administrative negligence in criminal proceedings. Yet, when read together, these decisions reveal an emerging constitutional narrative that extends well beyond their immediate facts. Collectively, they reject the notion that police accountability is confined to instances of spectacular misconduct such as torture or illegal detention. Instead, they emphasise that accountability permeates every stage of criminal administration—from the manner in which investigations are conducted, to the procedural safeguards accompanying arrest, to the institutional obligation of police authorities to cooperate with courts in the timely administration of justice.

Significantly, none of these judgments merely reiterates settled legal principles. Each court fashions remedies that seek to strengthen institutional compliance. The Bombay High Court refuses to allow police officers to invoke statutory immunity where allegations concern custodial assault to extract a confession, thereby reaffirming that violence cannot be characterised as an act performed in discharge of official duty. The Madhya Pradesh High Court, while declining to invalidate the arrest on the peculiar facts before it, nevertheless directs the Director General of Police to issue fresh circulars, warns that future violations of constitutional safeguards may invite departmental action, and treats repeated non-compliance with binding precedent as a matter of grave institutional concern. The Allahabad High Court goes a step further by imposing monetary costs on the State for police negligence that delayed adjudication of a bail application and permitting recovery of those costs from the erring officials after departmental enquiry.

What unites these judgments is not merely judicial criticism of the police. Courts have, on numerous occasions, criticised investigative lapses, custodial violence and administrative inefficiency. The significance of these three decisions lies in the manner in which the High Courts conceptualise police accountability. Rather than treating constitutional guarantees as abstract ideals, they recognise that the rule of law depends upon everyday institutional compliance. A police officer who assaults a suspect during investigation, an investigating officer who disregards mandatory constitutional safeguards while effecting an arrest, and officials whose negligence prolongs a person’s incarceration each undermine the administration of criminal justice, albeit in different ways. The constitutional injury is not confined to physical violence or illegal detention; it also extends to procedural disregard and bureaucratic indifference that compromise personal liberty and erode public confidence in the justice system.

Equally noteworthy is the evolving understanding of judicial supervision reflected in these decisions. Traditionally, courts have confined themselves to determining the legality of individual executive actions. These judgments demonstrate a willingness to move beyond adjudication of individual disputes towards ensuring institutional compliance. Directions to police headquarters, recommendations for departmental action, warnings of disciplinary proceedings, recovery of costs from erring officers, and rejection of statutory immunities collectively indicate that High Courts are increasingly employing their constitutional jurisdiction not merely to remedy individual violations but also to improve systemic functioning of law enforcement agencies. In doing so, they reaffirm the constitutional proposition that executive discretion remains subordinate to judicially enforceable standards of legality.

Another common feature is the courts’ refusal to permit procedural or statutory provisions to become instruments of impunity. In the Bombay case, Section 197 of the Code of Criminal Procedure, intended to protect honest public servants from vexatious litigation, is interpreted in a manner that prevents its misuse as a shield against allegations of custodial torture. In the Madhya Pradesh case, Section 47 of the Bharatiya Nagarik Suraksha Sanhita is read in harmony with Article 22(1) and Supreme Court precedent, emphasising that communication of grounds of arrest is not a technical formality but a substantive constitutional guarantee. In the Allahabad case, the Court treats delays caused by police negligence not as mere administrative lapses but as failures that directly affect the timely adjudication of liberty.

These developments assume particular importance in the context of India’s ongoing transition from the Code of Criminal Procedure to the Bharatiya Nagarik Suraksha Sanhita. While legislative reform has altered statutory language and introduced procedural modifications, these judgments underscore that the constitutional foundations governing criminal procedure remain unchanged. Police powers continue to derive their legitimacy from constitutional limitations rather than statutory discretion alone. Neither investigative convenience, administrative inefficiency nor claims of official duty can dilute the guarantees embedded in Articles 14, 21 and 22.

Against this backdrop, the three decisions merit close examination—not merely as isolated judicial pronouncements, but as markers of an emerging jurisprudence that insists upon constitutional discipline at every stage of policing. Each judgment contributes a distinct dimension to that jurisprudence. Read together, they illuminate how High Courts are increasingly deploying constitutional principles to strengthen police accountability, reinforce procedural safeguards, and preserve the rule of law in everyday criminal administration.

Custodial Violence Is Never ‘Official Duty’: Bombay High Court

The first judgment in this piece comes from the Bombay High Court, which reaffirmed a fundamental constitutional principle: the authority to investigate crime does not include the authority to use violence. In Sanjay Bapuso Dalvi & Ors. v. State of Maharashtra, the Court held that assaulting a suspect to extract a confession can never constitute an act performed in the discharge of official duty, thereby denying police officers the protection of Section 197 of the Code of Criminal Procedure.

Facts and the question before the court: The case arose from allegations that a man summoned to the Shivaji Nagar Police Station in Ichalkaranji during a murder investigation in November 2008 was detained overnight, assaulted and forced to confess. Following medical evidence and the complainant’s allegations, the Magistrate issued process against the police officers for offences including voluntarily causing hurt, wrongful confinement and criminal intimidation. The Sessions Court refused to discharge them.

Before the High Court, the officers argued that the alleged acts occurred during investigation of a cognisable offence and therefore attracted the protection of Section 197 CrPC, which bars prosecution of public servants for acts committed while acting or purporting to act in the discharge of official duty without prior governmental sanction.

The central issue was whether custodial assault allegedly committed to extract a confession could be regarded as an act connected with official duty.

Section 197 protects official functions, not abuse of power: Justice Sandesh Patil answered the question in the negative. The Court reiterated the settled principle that Section 197 is intended to protect honest public servants from vexatious litigation arising out of acts reasonably connected with their official responsibilities. It is not a substantive immunity from prosecution but a procedural safeguard available only where the impugned act bears a reasonable nexus with official duty.

Drawing upon the Constitution Bench decision in Matajog Dobey v. H.C. Bhari and subsequent rulings including Ganesh Chandra Jew v. State of Orissa, Om Prakash v. State of Jharkhand and Devinder Singh v. State of Punjab, the Court reaffirmed that even acts committed in excess of authority may require sanction if they remain connected to lawful official functions. However, criminal conduct wholly divorced from those functions cannot claim statutory protection merely because it occurred during official employment.

The distinction was decisive in the present case. Investigation of offences is undoubtedly an official function. Assaulting a suspect to secure a confession is not. The Court therefore rejected the argument that every act committed during an investigation automatically becomes an official act. The setting of the misconduct cannot determine its legal character.

Drawing a constitutional boundary: The Court emphasised that the police possess statutory authority to interrogate suspects, collect evidence and investigate offences, but no law authorises “third-degree” methods or custodial violence. Such conduct is not an excess committed while performing official duty; it is conduct wholly outside the scope of lawful police functions.

Justice Patil accordingly held that assaulting a suspect for a confessional statement “would never be said to be an act in discharge of official duty.” Accepting the prosecution case at face value—as required at the stage of issuance of process—the requirement of prior sanction under Section 197 had no application.

Importantly, the Court confined itself to the legal issue before it. It did not determine the guilt of the accused officers but only whether the prosecution could proceed without governmental sanction. Questions relating to the truth of the allegations were left to trial.

Constitutional significance: Although framed as a dispute over Section 197 CrPC, the judgment is rooted in the broader constitutional prohibition against custodial violence. It aligns with the Supreme Court’s jurisprudence in D.K. Basu v. State of West Bengal, Nilabati Behera v. State of Orissa and Nandini Satpathy v. P.L. Dani, all of which recognise that coercive interrogation is incompatible with Articles 20(3) and 21 of the Constitution.

The decision also reinforces the evidentiary policy underlying the law governing confessions. Indian criminal law has long treated police-obtained confessions with suspicion, recognising the dangers of coercive investigation. By refusing to extend statutory protection to allegations of custodial assault, the Bombay High Court ensures that Section 197 cannot become a procedural shield against accountability for torture.

More broadly, the judgment restores Section 197 to its intended purpose. The provision exists to protect bona fide exercise of public functions, not to immunise criminal misconduct. Had the Court accepted the petitioners’ argument, virtually every allegation of custodial violence could have been insulated behind the requirement of prior sanction simply because it occurred during an investigation.

Instead, the Court reaffirmed a fundamental constitutional proposition: official authority ends where illegality begins. Police powers derive legitimacy from law, and once those powers are exercised through violence or coercion, they cease to be protected as official acts. In doing so, the Bombay High Court laid down the first principle that runs through all three judgments—constitutional policing begins with recognising that the State’s coercive powers are always subject to constitutional limits.

The complete judgment may be read below:

Procedural Safeguards Are Constitutional Guarantees: Madhya Pradesh High Court

If the Bombay High Court’s decision placed substantive limits on police power, the Madhya Pradesh High Court focused on how that power must be exercised. In Dharmendra Lodhi v. State of Madhya Pradesh, the Court examined the constitutional requirement that an arrested person be informed of the grounds of arrest in writing under Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), while issuing far-reaching directions to ensure institutional compliance by the police.

Facts and the legal issue: The petitioner challenged his brother’s arrest under the NDPS Act through a habeas corpus petition, contending that the arrest was illegal because the investigating agency had failed to communicate the grounds of arrest in writing, as mandated by Section 47 BNSS and the Supreme Court’s decisions in Pankaj Bansal v. Union of India, Mihir Rajesh Shah v. State of Maharashtra and Vihaan Kumar v. State of Haryana.

The State argued that although no separate written memorandum of grounds of arrest had been served, the accused had received a written notice under Section 50 of the NDPS Act, the seizure memo recording recovery of 86.85 kilograms of ganja, and information regarding the arrest had been conveyed to his family. The question before the Court, therefore, was whether these documents constituted sufficient compliance with the constitutional requirement.

Section 47 BNSS gives statutory effect to Article 22: The Division Bench of Justices G.S. Ahluwalia and Anuradha Shukla treated Section 47 BNSS not as a mere procedural provision but as a statutory expression of Article 22(1) of the Constitution, which guarantees every arrested person the right to be informed of the grounds of arrest.

Relying on Pankaj Bansal, Mihir Rajesh Shah and Vihaan Kumar, the Court observed that the requirement of written communication is intended to eliminate disputes over whether the grounds of arrest were actually conveyed. Written communication enables an arrested person to effectively challenge detention, seek legal representation, oppose remand and apply for bail, thereby making Article 22 a meaningful safeguard rather than an empty formality.

Substantial compliance, but a strong institutional warning: On the facts, however, the Court declined to invalidate the arrest. It held that the Section 50 NDPS notice, the seizure memo signed by the accused and the communication made to his brother sufficiently informed him of the reasons for his arrest. Although no independent document titled “grounds of arrest” had been furnished, the constitutional objective underlying Section 47 BNSS stood substantially fulfilled.

The significance of the judgment, however, lies less in this conclusion than in what followed. The Bench expressed serious concern that investigating officers continued to violate binding constitutional requirements despite repeated Supreme Court decisions, earlier High Court rulings and even a circular issued by the Madhya Pradesh Police Headquarters directing strict compliance. Such repeated lapses, the Court observed, pointed either to negligence or deliberate disregard of constitutional safeguards—both of which it described as “alarming”.

In one of its strongest observations, the Court remarked that if investigating officers routinely ignored mandatory procedures, the police department had to introspect whether it was inadvertently helping offenders secure release through illegal arrests rather than effectively prosecuting them. Procedural safeguards, the Bench emphasised, strengthen criminal investigations; they do not weaken them.

From individual relief to institutional accountability: Recognising that constitutional rights cannot depend solely upon post facto judicial intervention, the Court issued prospective directions to the Director General of Police to circulate fresh instructions requiring strict compliance with Section 47 BNSS and the Supreme Court’s decisions. It further directed that where investigating officers violated these requirements, the department should ordinarily presume deliberate non-compliance, initiate departmental proceedings and consider suspension and major penalties.

These directions mark an important shift from correcting individual violations to addressing institutional deficiencies. Rather than treating procedural lapses as isolated mistakes, the Court sought to embed constitutional compliance within police administration itself.

Significance of the decision: The judgment expands the understanding of police accountability beyond cases of excessive force or illegal detention. It recognises that constitutional policing also demands faithful adherence to procedural safeguards governing arrest. By reading Section 47 BNSS as a statutory embodiment of Article 22, the Court reaffirmed that procedural requirements are not technicalities but constitutional guarantees protecting personal liberty.

Although the Court upheld the arrest on the peculiar facts of the case, it left no ambiguity about the law going forward. Police powers remain legitimate only when exercised in accordance with constitutional procedure. Compliance with written grounds of arrest is therefore not a matter of administrative convenience but an indispensable component of due process.

In doing so, the Madhya Pradesh High Court adds a second dimension to the emerging jurisprudence on police accountability. While the Bombay High Court held that custodial violence can never be protected as official duty, the Madhya Pradesh High Court emphasised that even lawful police powers lose constitutional legitimacy when exercised without scrupulous adherence to mandatory procedural safeguards.

The complete judgment may be read below:

Administrative Negligence as a Constitutional Wrong: Allahabad High Court

If the Bombay High Court’s decision drew a constitutional boundary around the misuse of police power, and the Madhya Pradesh High Court underscored that lawful policing is inseparable from procedural fairness, the Allahabad High Court’s decision introduces a third, and equally significant, dimension to constitutional policing. It recognises that the rule of law may be undermined not only through abuse of authority or violation of procedural safeguards, but also through institutional indifference, bureaucratic inertia and administrative negligence.

Unlike the previous two cases, the controversy before the Court did not concern custodial violence, illegal arrest or investigative excesses. It arose from what appeared to be an ordinary bail application. Yet, in deciding that application, Justice Arun Kumar Singh Deshwal transformed a routine criminal proceeding into a broader examination of how police inaction can obstruct judicial administration and unnecessarily prolong deprivation of personal liberty.

The judgment is important because it expands the constitutional understanding of police accountability beyond the exercise of coercive powers. It reminds that the constitutional obligations of investigating agencies do not end with lawful arrest or fair investigation. They equally encompass timely cooperation with judicial proceedings. Where police negligence delays adjudication of liberty, the constitutional injury is no less significant merely because it results from omission rather than affirmative abuse of power.

Facts and background: The proceedings arose from a bail application filed by the parents-in-law of a deceased woman, who were accused of offences under Sections 80(2) and 85 of the Bharatiya Nyaya Sanhita read with Sections 3 and 4 of the Dowry Prohibition Act.

Upon examining the material on record, the Court found no sufficient evidence indicating that the applicants had subjected the deceased to cruelty or harassment for dowry soon before her death. The statements of independent witnesses pointed instead to ordinary matrimonial discord between the husband and wife. Finding no material to sustain the allegations against the parents-in-law, the Court concluded that they were entitled to bail.

Ordinarily, the matter would have ended there. Instead, before disposing of the application, the Court turned to an entirely different question—why a bail application that could have been decided much earlier had remained pending for more than ten additional days.

The answer, according to the Court, lay not in judicial delay or legal complexity, but in the repeated failure of the investigating agency to furnish the necessary instructions and case diary despite repeated communications from the High Court. It was this administrative lapse, rather than the merits of the bail application itself, that became the central focus of the judgment.

The institutional failure that prompted judicial intervention: The chronology recorded by the Court revealed a sustained pattern of administrative indifference rather than an isolated procedural lapse.

The Office of the Joint Director (Prosecution), attached to the Allahabad High Court, supplied a copy of the bail application to the police pairokar on June 17, 2026. This was followed by an alert to the Superintendent of Police on June 19 and a reminder on June 29. Despite these repeated communications, the investigating agency failed to furnish the necessary instructions to enable the Government Advocate to assist the Court.

Even when the matter was taken up on 3 July 2026, the Court attempted to facilitate compliance by directing the prosecution to obtain the case diary electronically through the Crime and Criminal Tracking Network and Systems (CCTNS), thereby eliminating any practical difficulty in transmitting records.

Yet even this direction went unheeded. Instead of producing the case diary, the police supplied only the criminal antecedents of the accused, leaving the Court without the material necessary to decide the bail application. The sequence demonstrated that the delay was not the consequence of unavoidable administrative constraints. The High Court had repeatedly reminded the investigating agency, suggested alternative methods of compliance and afforded ample opportunity to furnish the requisite records. Nevertheless, the necessary instructions remained unavailable, preventing timely adjudication of a matter directly affecting personal liberty.

Translating judicial censure into institutional accountability: Having concluded that the delay in deciding the bail application was attributable solely to police negligence, the Court declined to treat the lapse as a matter warranting only administrative criticism. Instead, it imposed costs of ₹50,000 upon the State Government, directing that the amount be paid to the applicants. Simultaneously, it granted the State liberty to recover the amount from the erring officials after conducting an appropriate departmental enquiry.

This direction is perhaps the most significant aspect of the judgment. Indian courts have frequently expressed dissatisfaction with administrative inefficiency or investigative lapses, but far fewer decisions translate such criticism into enforceable consequences. By imposing monetary costs, the Court recognised that bureaucratic negligence is not a victimless administrative failure. Where executive inaction delays adjudication of liberty, the prejudice is suffered by litigants whose incarceration continues solely because the State failed to discharge its institutional obligations.

Equally significant is the Court’s refusal to allow the burden of that negligence to remain permanently upon the public exchequer. By permitting recovery from the responsible officials after due enquiry, the judgment carefully distinguishes between institutional liability and individual accountability. The State remains constitutionally answerable for the functioning of its agencies, but the financial consequences of proven negligence need not ultimately be borne by taxpayers. In doing so, the Court fashioned a remedy that simultaneously compensates those affected, reinforces governmental responsibility and preserves personal accountability within the police hierarchy.

More importantly, the order signals that constitutional accountability is not exhausted by declarations of illegality. Administrative indifference that obstructs judicial proceedings may itself attract tangible consequences. The judgment therefore moves beyond symbolic judicial disapproval and adopts a remedial approach aimed at improving institutional discipline within the criminal justice system.

The complete judgment may be read below:

Police Accountability: From individual misconduct to institutional constitutionalism

At first glance, the three High Court decisions appear to address entirely different questions. The Bombay High Court considered whether police officers accused of custodial assault could invoke the protection of Section 197 CrPC. The Madhya Pradesh High Court examined whether the constitutional requirement of communicating the grounds of arrest in writing under Article 22 and Section 47 BNSS had been complied with. The Allahabad High Court dealt with police negligence that delayed adjudication of a bail application.

Read individually, each judgment resolves a distinct procedural issue. Read together, however, they articulate a broader constitutional doctrine on police accountability. The common thread running through all three decisions is that the legitimacy of policing does not flow merely from statutory powers but from faithful adherence to constitutional limitations. Police accountability is no longer confined to punishing overt abuse such as custodial violence or illegal detention. It now extends to every stage of the criminal justice process—from investigation and arrest to procedural fairness, administrative diligence and cooperation with judicial institutions.

The Bombay High Court establishes the first principle: official duty cannot be used as a shield for unconstitutional conduct. Custodial assault and coercive violence are fundamentally incompatible with lawful policing and therefore fall outside the protection of Section 197 CrPC. The decision reinforces that statutory immunity exists to protect bona fide public functions, not acts that violate Article 21.

The Madhya Pradesh High Court adds a second dimension by treating procedural safeguards as constitutional guarantees rather than technical formalities. Reading Section 47 BNSS through Article 22 and the Supreme Court’s decisions in Pankaj Bansal, Mihir Rajesh Shah and Vihaan Kumar, the Court holds that informing an arrested person of the grounds of arrest in writing is integral to constitutional fairness. More importantly, it moves beyond the individual case to address systemic police non-compliance, directing institutional reforms and departmental accountability so that constitutional safeguards become part of everyday policing rather than case-specific judicial corrections.

The Allahabad High Court completes the trilogy by recognising that constitutional injury may arise not only from misuse of power but also from administrative indifference. Police accountability includes the obligation to assist the administration of justice with diligence and efficiency. By imposing costs of ₹50,000 on the State for avoidable delay in deciding a bail application, directing payment to the applicants, permitting recovery from erring officers after departmental enquiry, and ordering an inquiry into the lapses, the Court converts bureaucratic negligence into a matter of constitutional accountability. Administrative omissions that unnecessarily prolong deprivation of liberty are treated as inconsistent with Article 21 no less than affirmative executive misconduct.

Collectively, these judgments also demonstrate the evolving role of constitutional courts. Rather than merely correcting completed legal wrongs, the High Courts increasingly function as institutional supervisors, issuing directions aimed at improving governance, strengthening internal accountability mechanisms and embedding constitutional discipline within police administration. Whether by denying statutory protection to officers accused of custodial violence, directing police authorities to institutionalise compliance with arrest safeguards, or imposing financial consequences for administrative negligence, the courts are moving beyond dispute resolution towards structural constitutional oversight.

Equally significant is the continuity they establish despite the transition to India’s new criminal laws. Although the BNSS has replaced the Code of Criminal Procedure, these decisions affirm that legislative reform cannot dilute constitutional guarantees. The Constitution—and particularly Articles 21 and 22—continues to provide the normative framework within which every police power must be exercised.

Taken together, the three judgments articulate an emerging constitutional ethic of policing founded upon three interconnected propositions:

• Police powers cannot be exercised through violence or coercion that falls outside lawful investigation.
• Every exercise of coercive authority must comply with constitutional and statutory procedural safeguards protecting personal liberty.
• Police institutions bear a continuing obligation to function diligently, transparently and responsibly in aid of the administration of justice.

The cumulative message is both simple and profound. Constitutional policing is measured not merely by the absence of abuse, but by affirmative fidelity to the rule of law at every stage of the criminal justice process. In reaffirming that principle, the Bombay, Madhya Pradesh and Allahabad High Courts have collectively advanced an important and evolving doctrine of institutional constitutionalism—one in which police legitimacy derives not from the breadth of statutory power, but from disciplined adherence to constitutional values.

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When uniformed personnel stand accused India’s highest courts have spoken boldly yet acted narrowly

The post Three High Courts, One Message: Police power has constitutional limits appeared first on SabrangIndia.

In support of this claim, Shrivastava has relied on a purported account attributed to former British Prime Minister Clement Attlee, who was not in office during the Quit India Movement, to argue that it was the Indian National Army, and not the Quit India Movement, that ultimately compelled Britain to leave India.

“The leaders, be it Maulana Azad, Jawaharlal Nehru, J Prakash Narayan, or Aruna Asaf Ali, all of them accepted that the movement was a flop,” said Shrivastava. These statements were met with loud applause from members of the audience in the video.

It certainly would be an oversimplification to attribute India’s independence solely to the Quit India Movement of 1942, and would overlook several other significant developments that shaped the British decision to leave India. The role of the Indian National Army, the Royal Indian Navy mutiny, growing labour unrest, and Britain’s severe economic exhaustion after the Second World War were all undeniably important factors in hastening the end of colonial rule.

Yet acknowledging these factors does not diminish the importance of the Quit India Movement which profoundly altered the political landscape, a fact reflected in reports and British correspondence, including those sent to the then Prime Minister Winston Churchill. This will be examined in greater detail below but to dismiss the significance of the 1942 Movement altogether is not a serious and independent reading of history as claimed by Shrivastava.

For decades, a recurring theme in Hindutva discourse has been to downplay the significance of the 1942 Movement and recast India’s freedom struggle as a contest between competing movements. It serves a broader political purpose. This framing, first, diminishes the mass, cross-community, non-violent, anti-imperialist, and secular civil disobedience popularly associated with Gandhi and Nehru, and second, undermines the idea of a secular, democratic republic that emerged from it- a constitutional vision that is at odds with the ideological project of the RSS, and affiliated Hindutva organisations.

The push to diminish 1942 today comes from the political tradition that did not participate in and in some documented instances actively counselled against that very Movement.

What was the Quit India Movement?

In protest against the British decision to involve India in World War- II, without consulting Indian political leaders, the Congress ministries in the provinces resigned from office. By contrast, V.D. Savarkar, then president of the Hindu Mahasabha, had met Viceroy Linlithgow in October 1939 and called for Hindu-British cooperation. The Hindu Mahasabha, Savarkar even went on to say, “favoured an unambiguous undertaking of dominion status at the end of the war.” He also offered that the Hindu Mahasabha would replace the Congress in provincial governments if the Congress ministries resigned. Reported in the National Herald.

The failure of the Cripps Mission in 1942 had intensified public discontent with British rule. Until then, Gandhi had largely followed a policy of avoiding actions that would hinder the British war effort. Following the collapse of the Cripps negotiations, however, he called for an open non-violent revolution. On July 14, 1942, the Congress Working Committee adopted a resolution declaring that the immediate end of British rule was essential not only for India’s freedom but also for the success of the Allied cause. The Quit India Resolution generated widespread enthusiasm across the country.

Meanwhile, RSS speakers had urged members to stay away from the Congress-led agitation, and these instructions, according to the British Home Department, were duly followed. Syama Prasad Mookerjee, a Hindu Mahasabha leader and minister in the undivided Bengal government, went a step further when in July 1942, he wrote to the British Governor of Bengal advising on measures to suppress the Quit India Movement in the province while arguing that Indians should continue to place their trust in the British for the region’s defence.

Gandhi was entrusted with leading the movement. Addressing a gathering, he said “There is a mantra, a short one, that I give you. You imprint it on your heart and let every breath of yours give an expression to it. The mantra is ‘do or die’. We shall either be free or die in the attempt …. Every one of you from this moment consider himself a free man or woman and even act as if you are free and no longer under the heel of this imperialism.”

The Congress urged people to undertake ten forms of non-violent resistance which included refraining from any commercial transactions with the British or the colonial government, displaying the tricolour on every home and window, boycotting cinema halls on the ground that the proceeds benefited the colonial administration, avoiding the courts, refusing to purchase foreign goods, withdrawing money from government banks, socially boycotting those who served the British government, avoiding any transactions that required recourse to colonial courts, leaving cities for villages, and ensuring that grain and other produce remained with the peasantry.

Subhas Chandra Bose, broadcasting from Azad Hind Radio on August 17, 1942, himself did not dismiss it and called it “non-violent guerrilla warfare,” and told listeners the “administrative machinery can be brought to a standstill” if the campaign continued. Bose, whom Shrivastva implicitly elevates over Gandhi, was on record treating 1942 as a serious and continuing front in the freedom struggle, not a failure to be measured against Congress.

What was the impact of the Quit India Movement?

Over 60,000 people were arrested by the end of 1943 alone, mass fines were levied, and demonstrators were subjected to public flogging. Official casualty figures stood at 1,028 dead while Nehru’s own estimate put the toll closer to 10,000. Many national leaders went underground and continued their struggle by broadcasting messages over the clandestine radio stations, distributing pamphlets and establishing parallel governments. The underground Congress Radio run by Usha Mehta during Quit India recorded messages from Gandhi and other leaders, moving location to location to dodge authorities. It reported on events from every nook and corner of the country and was the first to inform the nation about the Chittagong raid, the atrocities in Ashti and Chimur, and the strike in Jamshedpur. It operated for nearly three months before their arrest in November 1942. When the police arrived, the programme was coming to an end with Vande Mataram playing. Upon being asked to stop the record, Mehta reportedly commanded the police to stand at attention for the national song. The film Ae Watan Mere Watan directed by Kannan Iyer was a fictionalised tribute to Mehta and the historic Congress Radio that kept the Quit India flame alive against overwhelming odds.

Fifty-seven battalions of the British Army, alongside the entire police force, were deployed to suppress the movement. The sabotage of communications was so extensive that ground forces often could not reach certain areas, leading the Viceroy Linlithgow to suggest machine-gunning mobs from the air to regain control.

While the revolt was underway, Viceroy wrote a telegram to Churchill, the then Prime Minister:

“I am engaged here in meeting by far the most serious rebellion since that of 1857, the gravity and extent of which we have so far concealed from the world for reasons of military security. Mob violence remains rampant over large tracts of the countryside and I am by no means confident that we may not see in September a formidable attempt to renew this widespread sabotage of our war effort. The lives of Europeans in outlying places are in jeopardy.”

Contrary to his public pronouncements, Churchill gloomily disclosed to King George VI at one of their Tuesday luncheons in July 1942 that “the idea of the transfer of power in India had become an admitted inevitability in the minds of the British Party leaders.”

The movement’s structure, once its leadership was arrested within 24 hours, became spontaneous and largely leaderless. Parallel governments were established and functioned for extended periods.  In Ballia, UP, protestors overthrew the district administration and freed prisoners; it took the British weeks to reassert control. Railway lines, telegraph wires, and government buildings across the country were targeted to paralyse the war effort. The British kept a battleship on standby, reportedly to remove Gandhi and Congress leaders from India entirely, a step they ultimately judged too risky to take.

Exposing the Distortion: Why Attlee?

Like Shrivastava, many have relied on a purported statement by former British Prime Minister Clement Attlee to downplay the significance of the Quit India Movement. The claim originates from a second-hand account written in 1976 by P.V. Chakraborty, former Chief Justice of the Calcutta High Court, who recounted a conversation he claimed to have had with Attlee during the latter’s visit to India in 1956. According to Chakraborty, Attlee identified the activities of the Indian National Army and the Royal Indian Navy Mutiny as the principal reasons for Britain’s withdrawal. “When asked about the extent to which the British decision to quit India was influenced by Mahatma Gandhi’s 1942 movement, Attlee’s lips widened in a smile of disdain and he uttered, slowly, ‘Minimal’.”

But why Attlee? This is the question that is never asked, and it deserves scrutiny.

Attlee was the British Labour Prime Minister from 1945 to 1951 the man who, as head of the postwar British government, oversaw and ultimately signed off on India’s independence in 1947. He was not the incumbent prime minister when Quit India Movement took place and therefore, his assessment of the movement’s impact is questionable. The argument asks one to accept a private, unverifiable, retrospective opinion as the authoritative verdict on which Indian freedom movement “really” mattered while dismissing Linlithgow’s real-time telegram, Churchill’s statement to the King, Bose’s real-time broadcasts, and the testimony of Indians who lived through the movement, as insufficient.

In fact, according to Churchill, the Attlee government was from the outset keen to leave India as soon as possible, regardless of the political situation. On December 12, 1946 he deplored “the ruthless logic to quit India regardless of what may happen there.”

But a moot question here should or ought to be, should we as Indians living in an India free of colonial yoke rely on colonial documentation and sources? Or seek independent assessments and verifications of how India and Indians achieved freedom from centuries of exploitative British rule?

No serious historian claims 1942 alone delivered independence in isolation. The Indian National Army trials, the Royal Indian Navy Mutiny, and Britain’s post-war financial exhaustion were all real and significant pressures, arguably the more immediate triggers of the 1947 transfer of power. That is a defensible historical position. But there is a wide gap between ‘1942 was not the sole cause’ and ‘1942 was a flop with no contribution’ According to Bipan Chandra, the INA’s public sympathy and the 1946 mutiny did not emerge in a vacuum and were given ‘fillip’ by the anti-imperialist sentiment and mass mobilisation that 1942 had already built. The movements were links in a chain, not rivals competing for sole credit. “After Quit India there cou1d be no retreat. Any future negotiations with the British Government could only be on the manner of the transfer of power. Independence was no longer a matter of bargain. And this became amply clear after the War,” Chandra wrote.

As for Aruna Asaf Ali, a figure Shrivastava names as having accepted the movement was a flop, is remembered specifically as the movement’s defining figure for hoisting the flag at Gowalia Tank.

Why This Matters

Reducing India’s freedom struggle to delegitimise the mass, cross-community, non-violent civil disobedience associated with Gandhi and the Congress follows a broader pattern in which organisations that have documented, historically-recorded records of aloofness from or active opposition to the 1942 movement now seek to rewrite it as inconsequential, while elevating alternative narratives more compatible with their own political lineage.

Acharya Kriplani (who was INC President in 1946-47) said, ‘It is my opinion that India could not have achieved its independence, but for the accession of strength which the nation received by the successive struggles started by Gandhiji. A nation which could throw a challenge to the Empire at a time when the armies of all the Allies were on Indian soil could no more be held in thraldom.’  Reported in Janata Weekly.

RS Sharma, Romila Thapar, Irfan Habib, Ramchandra Guha, and such historians Shrivastava has moved to discredit and insult without engaging their actual, published arguments, have also been separately accused in the current political establishment of distorting history through the education system.

But as Shrivastava claims, “All the letters of the leaders, all the books of the leaders, all the newspapers, reporters, the diaries of the British officers, the letters of the British officers, everything is in the National Archives. Take a look at it, the truth will be revealed.”

Sources that are interesting to examine also are:

Several American journalists famously covered Mahatma Gandhi, most notably United Press correspondent Webb Miller, who provided worldwide eyewitness accounts of the 1930 Salt Satyagraha. Other prominent figures include Louis Fischer, who spent a week at Gandhi’s ashram in 1942, and Chicago Tribune reporter William L. Shirer

The definitive account of the Congress Underground Radio was documented by historian and academic Dr. Usha Thakkar in her book, Congress Radio: Usha Mehta and the Underground Radio Station of 1942, published by Penguin Random House India. [1, 2]

National Archives of India (NAI): Located in New Delhi, the NAI holds the Home Political Department files that contain intercepted correspondence, censorship reports, and data on the suppression of the “Secret Congress Radio” spearheaded by Usha Mehta. [1, 2, 3]

The film based on the historic Congress Radio is Ae Watan Mere Watan. Directed by Kannan Iyer, the 2024 Hindi-language historical thriller stars Sara Ali Khan as Usha Mehta, a 22-year-old college student in Mumbai who operated an underground, anti-British radio station during the Quit India movement of 1942  For many in Assam, citizenship isn’t a birthright taken for granted—it’s a legal battle fought after decades of living in the only home they’ve ever known.

Remembering the courageous Aruna Asaf Ali today. Her historic act of hoisting the Indian flag at Gowalia Tank during the Quit India Movement remains a powerful symbol of defiance.

Readers encountering this argument should ask questions: What is the primary source? Is it contemporaneous or retrospective? And who benefits from the comparison being drawn?

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

Related:

How Hindutva forces colluded with both the British & Jinnah against the historic ‘Quit India’ movement: Archives

Past and Prejudice

The post Debunking the ‘Quit India Was Useless’ Myth appeared first on SabrangIndia.

Viewed narrowly, the judgment settles a local and specific legal controversy. Viewed more broadly, however, it speaks to an increasingly recurring constitutional question: what happens when the State’s power of eminent domain intersects with historic places of worship located within politically and religiously contested urban spaces especially when these culturally and religiously are those of the religious minorities? That question cannot be answered by reading the judgment in isolation.

The litigation arose from the continuing expansion of the Shri Kashi Vishwanath Dham Corridor, a project that has dramatically transformed the Varanasi urban landscape surrounding one of Hinduism’s oldest temples. The political patronage by a  specific expansionist, militarist interpretation of the faith (RSS-BJP-VHP combine) is not irrelevant. Hindusim in its purest practiced form has been over the centuries not linear or semitic, by vesting authenticity of faith on three north-Indian shrines –Ayodhya, Mathura and Kashi Viswanath—lies a structured and political effort to semitise the faith that was once localised and eclectic and control power, finance and practice.[1]

Unsurprisingly therefore, with the contours of the Indian state altering since the early 1990s and more sharply and substantively since 2014, the building of shrines at these three sites has drawn political, financial and state support. The Bharatiya Janata Party (BJP) came to power with the steely organisational support of the Rashtriya Swayam Sevak Sangh (RSS) and its more vocal/rabid wings (Bajrang Dal-BD and Vishwa Hindu Parishad-VHP) in the state of Uttar Pradesh in 2017.[2] Even three years prior to this, after the regime change at the Centre (2014), pressure was brought on the Varanasi district administration regarding the Kashi Viswanath shrine.[3]

Since its announcement, the Corridor has been presented by the Uttar Pradesh Government as an exercise in heritage conservation, pilgrimage facilitation and urban renewal. At the same time, it has generated sustained criticism from residents, traders, historians, architects, conservationists and civil society organisations, who have questioned the scale of demolition, displacement and the irreversible alteration of one of India’s oldest living cities.

Consequently, the Allahabad High Court’s interpretation of the Places of Worship Act (POW), 1991 is not simply a technical pronouncement on statutory construction. It is a judicial intervention in a redevelopment project that has, for several years, borne a clear majoritarian stamp: an intersection of constitutional law, heritage conservation, minority rights, urban planning and contemporary politics.

The Kashi Corridor is more than an infrastructure project

Few redevelopment projects in independent India have altered the physical and symbolic landscape of a historic city as dramatically as the Kashi Vishwanath Corridor. Conceived as an ambitious project connecting the Kashi Vishwanath Temple directly to the ghats of the Ganga, the redevelopment sought to replace the centuries-old maze of narrow lanes surrounding the temple with wide pedestrian corridors, plazas and public spaces capable of accommodating millions of pilgrims. The State justified the project as necessary to improve accessibility, crowd management, disaster preparedness and civic infrastructure around one of India’s most visited pilgrimage centres. Yet the area selected for redevelopment was not an empty tract awaiting urban renewal.

The neighbourhood surrounding the Kashi Vishwanath Temple represents one of the oldest continuously inhabited urban settlements in South Asia. For centuries, the sacred geography of Kashi evolved organically through a dense network of ancient and historic local temples of prime religious and cultural significance, shrines, mosques, markets, residences, dharamshalas, akharas, courtyards and interconnected gullies. Its heritage lay not merely in monumental religious structures but equally in the lived urban fabric that connected them. Historians have long described the city as a layered civilisational landscape in which Hindu, Muslim and other communities inhabited overlapping social and religious spaces, creating an urban ecology unlike that of most planned cities.

This evocative report on the issue reflects the majoritarian make-over of the Kashi-Viswanath Dham Corridor, not just in terms of a brute and uni-directional take-over of culture, art, faith and individual rights, but also as a clear-cut political design to re-shape the understanding and practice of the Hindu faith. “The ruling (BJP) government and Modi, who represents Varanasi in the Lok Sabha, Dharma Vyaparis (religion traders) instead of Dharma Adhikaris (religion upholders).” The report may be read here. The Indian Express had then quoted Rajendra Tiwari, the former Mahant of the same Kashi Viswanath temple here:  “Every part of the country is represented across these Ganga ghats. Where we are sitting is Lahori Tola, where people from Lahore came and settled. Then there are areas where the Bengalis settled, the South Indians, the Marathis.” They are changing the “vaastu” of the place, he says. “Yeh dharam adhikari nahin, dharam vypari hein (They don’t serve religion, they trade in religion).”

It is in this question that the recent judgement of the Allahabad High Court that clinically ignores. Adopting an approach that is jurisprudentially analysed by scholars as legal formalism (or mechanically applied jurisprudence), such an approach only narrowly protects the rule of law while turning a judicial ostrich like approach away from sociological jurisprudence and legal realism.

By completely ignoring the context of this aggressive and politically intentioned Corridor development and land acquisition, the Allahabad High Court a constitutional court has tragically obliterated the socio-political-administrative background to these demolitions and acquisitions. In leveraging the POW Act of 1991 to do so, the Court has also subtly but surely diluted the content and “Aims and Objectives” of the law.

It is in this overall context that the Dham Corridor “re=development” needs to be understood. Through the period that it took place, the redevelopment therefore triggered concerns extending beyond ordinary questions of land acquisition. Reports documenting the implementation of the project described the acquisition and demolition of hundreds of residential and commercial properties around the temple precinct. Local residents spoke of the disappearance of neighbourhoods that had existed for generations. Conservationists questioned whether the pursuit of monumental redevelopment had come at the cost of preserving Varanasi’s historic urban morphology. Architects debated whether the widening of lanes and creation of expansive public plazas fundamentally altered the cultural identity of a city historically defined by its intimate and densely layered built environment.

The project also generated controversy over the treatment of numerous smaller shrines, temples and archaeological remains reportedly discovered during demolition. While the temple administration maintained that significant structures had been carefully preserved wherever possible, it has been argued that redevelopment had prioritised visual grandeur over conservation of the city’s accumulated architectural heritage. The debate reflected competing visions of heritage itself: whether it should be understood principally through monumental architecture or through the preservation of living neighbourhoods that had evolved over centuries.

Redevelopment within a politically contested landscape

The constitutional significance of the Corridor cannot be understood without recognising another reality. The redevelopment has unfolded alongside continuing legal and political contestation surrounding the Gyanvapi Mosque, situated immediately adjacent to the Kashi Vishwanath Temple. In recent years, the mosque has become the subject of multiple civil suits, archaeological surveys and “competing” historical claims concerning the existence of a pre-existing temple beneath the present structure. Those proceedings, in turn, form part of a broader national debate concerning historical religious sites and the continued relevance of the Places of Worship (Special Provisions) Act, 1991, whose constitutional validity is presently under challenge before the Supreme Court.

Detailed reports on Gyanvapi Mosque, its history and the case may be read here, here, here, here and here.

Detailed reports on the Places of Worship (Special Provisions) Act, 1991 may be read here, here, here and here.

Detailed report on “contested” Mosques and Places of Worship Act may be read here, here and here.

The present litigation did not concern ownership of the Gyanvapi Mosque, nor did it involve competing historical claims regarding religious identity. Nevertheless, it emerged within this broader environment of heightened contestation, where disputes concerning places of worship are rarely perceived as isolated property disputes. Instead, they frequently engage larger constitutional questions concerning secularism, equality, historical memory and the relationship between religion and State power.

It is precisely because of this context that the Allahabad High Court’s interpretation of the Places of Worship Act assumes significance beyond the immediate facts before it. A judgment concerning six mosques in Dalmandi inevitably contributes to the evolving jurisprudence governing one of the Constitution’s most sensitive areas. As said before, it slants and limits the scope of application of a law enacted in 1991 for precisely this purpose: containment of aggressive politico-majoriatrian claims arounds places of worship.

Why the Places of Worship Act matters

To appreciate the importance of the Court’s ruling, it is necessary to revisit the constitutional purpose behind the Places of Worship (Special Provisions) Act, 1991. The legislation was enacted at a moment of extraordinary communal tension. Throughout the 1980s and early 1990s, disputes concerning historical places of worship increasingly became instruments of political mobilisation, culminating in the movement surrounding the Babri Masjid at Ayodhya. Parliament responded by enacting the Places of Worship Act to ensure that, with the sole exception of the Ayodhya dispute, the religious character of every place of worship as it existed on August 15, 1947 would remain unchanged.

The statute represented more than an ordinary property law. It was a legislative affirmation that independent India would not permit historical grievances to become the basis for contemporary contests over religious identity. By freezing the religious status of places of worship at the moment of Independence, Parliament sought to preserve communal harmony and reinforce the constitutional commitment to secularism embodied in the Preamble and the guarantees of equality and religious freedom.

Nearly three decades later, in the Babri Masjid demolition-Ayodhya judgment (2019), the Supreme Court described the Act as a legislative intervention that safeguards the secular character of the Republic by preventing historical wrongs, whether real or perceived, from being reopened through present-day litigation. The Court characterised the legislation as imposing a constitutional obligation of non-retrogression, ensuring that independent India’s future would not be continually reshaped by unresolved disputes from its past. It is against that constitutional backdrop that the Dalmandi dispute reached the Allahabad High Court.

Detailed reports on Babri Masjid demolition-Ayodhya judgment may be read here, here, here and here.

The question before the Court was not whether a mosque could be converted into a temple. The statute answers that unequivocally. Rather, it was whether Parliament intended the protection afforded by the Act to extend further, shielding places of worship from compulsory acquisition itself, or whether acquisition for a genuine public purpose remained outside the Act’s reach.

That seemingly narrow distinction lies at the heart of one of the most consequential interpretations of the Places of Worship Act delivered by any constitutional court since the legislation came into force.

The Dalmandi redevelopment project

The controversy before the Allahabad High Court arose from the Uttar Pradesh Government’s proposal to widen and beautify Dalmandi, one of Varanasi’s oldest commercial neighbourhoods situated approximately 800 metres from the Kashi Vishwanath Temple. As part of the continuing expansion of the Kashi Vishwanath Corridor, the State proposed to acquire numerous residential and commercial properties along the route to facilitate smoother movement of pilgrims and improve connectivity between the temple precinct and adjoining areas.

Unlike the earlier phases of the Corridor project, which had already witnessed extensive demolition of residential and commercial structures surrounding the temple, the proposed redevelopment of Dalmandi raised an additional legal question. The proposed alignment included six centuries-old mosques: Anjuman Intezamia Masjid, Masjid Rangile Shah, Masjid Ali Raza Khan, Masjid Karimullah Baig, Masjid Nisaran and Masjid Sangamarmar. According to the petitioners, these mosques were likely to be acquired and demolished as part of the road-widening exercise.

While urban redevelopment frequently involves difficult choices between public infrastructure and private property, the inclusion of functioning places of worship transformed what might otherwise have been an ordinary land acquisition dispute into a constitutional controversy. It raised a question that courts had not previously addressed in any substantial detail: does the Places of Worship (Special Provisions) Act, 1991 merely prohibit changes in the religious identity of places of worship, or does it also prevent the State from acquiring them altogether?

That question assumed particular significance because the litigation unfolded against the backdrop of continuing constitutional debates over the meaning and future of the Places of Worship Act itself. Several petitions challenging the validity of the legislation, or seeking a narrower interpretation of its provisions, are presently pending before the Supreme Court. Although the Allahabad High Court was not called upon to determine the constitutional validity of the statute, its interpretation of the Act inevitably contributes to the developing jurisprudence on one of India’s most consequential secularism laws.

The petition: More than a challenge to acquisition

The writ petition was filed by six tenants and shopkeepers carrying on business in Dalmandi. Their immediate concern was practical and personal: the proposed acquisition threatened the closure of their establishments and the loss of their livelihoods. Yet the petition deliberately framed the dispute as extending beyond commercial interests. It argued that the redevelopment would simultaneously extinguish historic places of worship that had existed long before Independence and therefore enjoyed statutory protection under the Places of Worship Act.

The petitioners contended that the six mosques proposed to be acquired had retained their religious character continuously since before August 15, 1947, bringing them squarely within the protective ambit of the 1991 legislation. Parliament, they argued, had enacted the Act to preserve precisely such sites from future interference. If pre-Independence places of worship could nevertheless be acquired and demolished in the name of redevelopment, the central objective of the legislation would stand substantially diluted.

Their challenge therefore rested on a purposive understanding of the statute. According to the petitioners, the Act could not be reduced to a prohibition against physically converting a mosque into a temple or vice versa. Such a narrow reading, they argued, ignored the broader legislative purpose of preserving religious sites from becoming casualties of contemporary political or administrative decisions. A mosque that had been acquired and demolished might not have been converted into another religious structure, but its existence as a functioning place of worship would nevertheless come to an end. From that perspective, acquisition could undermine the statutory protection just as effectively as formal conversion.

The petition also invoked broader constitutional guarantees. The petitioners argued that the proposed acquisition violated Articles 14, 21 and 25 of the Constitution by threatening both their right to livelihood and the community’s right to continue worship at long-standing mosques. They further questioned whether the project genuinely satisfied the requirement of public purpose, asserting that alternative alignments were available which could improve access to the temple without requiring demolition of existing neighbourhoods and religious structures.

Another important strand of the petition concerned the social consequences of redevelopment. Dalmandi is not merely a cluster of buildings; it is a living commercial locality whose economy has evolved over generations. The petitioners argued that the project would displace traders, workers and families whose livelihoods depended upon businesses established in the locality over several decades. While acknowledging the importance of improving civic infrastructure, they contended that the State had failed to adequately balance developmental objectives with constitutional guarantees protecting livelihood, religious practice and equality before the law.

The petition further alleged that the proposed alignment disproportionately affected one community and was therefore arbitrary. The High Court later described these assertions as “odd pleadings”, indicating that it found the allegations insufficiently substantiated by specific material placed on record. Nevertheless, the broader concern articulated by the petition—that redevelopment in religiously sensitive spaces demands heightened constitutional scrutiny—continued to inform the legal arguments advanced before the Court.

The State’s response: Eminent domain cannot be displaced by implication

The Uttar Pradesh Government fundamentally disagreed with the petitioners’ interpretation of the 1991 Act. According to the State, the legislation was enacted for a specific and limited purpose: to prohibit the conversion of places of worship from one religion or denomination to another. It was never intended to extinguish the State’s sovereign authority to compulsorily acquire land for public purposes. Reading such an exemption into the statute, the State argued, would effectively place every temple, mosque, church, gurudwara and shrine permanently beyond the reach of land acquisition laws, regardless of compelling public necessity. Parliament, it submitted, had expressed no such intention.

The State therefore relied upon the doctrine of eminent domain, the well-established constitutional principle recognising the State’s authority to acquire private property for a public purpose subject to payment of compensation and compliance with statutory safeguards. That power today is principally regulated by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act), which replaced the colonial Land Acquisition Act of 1894 with a framework emphasising social impact assessment, rehabilitation, transparency and fair compensation.

Crucially, the State argued that the RFCTLARR Act does not create a blanket exemption for religious properties. Instead, it prescribes the conditions under which acquisition may occur while balancing developmental needs with the rights of affected persons. If Parliament had intended places of worship to enjoy absolute immunity from acquisition, it could have expressly provided so. The absence of such an exemption, according to the State, was itself significant.

The Government also relied upon provisions of the Waqf Act, 1995, which contemplate acquisition of Waqf properties under certain circumstances while requiring adherence to statutory safeguards and compensation mechanisms. These provisions, the State argued, demonstrated that Parliament recognised acquisition of religious endowments as legally permissible, subject to due process, rather than absolutely prohibited. At a deeper level, the dispute reflected two competing constitutional visions.

For the petitioners, the Places of Worship Act represented a broad constitutional guarantee preserving the continued existence of historic places of worship against contemporary State action. For the State, the Act performed a narrower but equally important function: preventing religious conversion of sites while leaving intact the ordinary operation of land acquisition law. Resolving that conflict required the High Court to answer not merely what the statute says, but what Parliament intended the Act to protect. That inquiry would lead the Bench to adopt one of the narrowest judicial readings of the Places of Worship Act since its enactment in 1991.

The Court’s reasoning: Locus standi, statutory interpretation and the doctrine of eminent domain

The Allahabad High Court’s judgment proceeds in two distinct stages. The first concerns maintainability—whether the petitioners possessed the legal standing to challenge the acquisition. The second addresses the larger constitutional issue of whether the Places of Worship (Special Provisions) Act, 1991 limits the State’s power to compulsorily acquire places of worship. While the Court ultimately dismissed the petition on grounds of locus standi, it nevertheless chose to examine the substantive legal issue. In doing so, it delivered one of the most detailed judicial interpretations of the Places of Worship Act since its enactment.

A threshold question: Who can challenge the acquisition?

The Bench first noted that the petitioners were tenants and shopkeepers, not the owners of the properties proposed to be acquired. Although they undoubtedly stood to lose their businesses and livelihoods, the Court held that the legal challenge to acquisition primarily belongs to those whose proprietary rights are directly affected.

Under the RFCTLARR Act, 2013, it is ordinarily the title holder who possesses the right to object to acquisition, negotiate compensation or challenge the legality of the State’s exercise of eminent domain. Since none of the property owners had approached the Court, the Bench found it difficult to sustain a challenge instituted solely by tenants.

“We would think that the petitioners are more or less here, in order to protect their business and source of livelihood, rather than proprietary rights,” the Court remarked, reported LiveLaw. This observation should not be misunderstood as dismissing the hardships that acquisition may cause tenants. Rather, it reflects a long-established principle of land acquisition law: economic injury does not necessarily confer the same legal standing as proprietary ownership. Yet, the conclusion also reveals one of the limitations of the judgment.

The Court did not meaningfully engage with the evolving constitutional jurisprudence surrounding Article 21, where livelihood has increasingly been recognised as an integral component of the right to life. Decisions such as Olga Tellis v. Bombay Municipal Corporation have acknowledged that displacement and deprivation of livelihood engage constitutional protections beyond conventional property rights. While Olga Tellis arose in a different factual context, the judgment nevertheless illustrates that constitutional standing cannot always be viewed exclusively through the lens of ownership.

The Bench’s approach therefore reflects a relatively traditional understanding of locus standi in acquisition proceedings, even as constitutional jurisprudence has gradually expanded recognition of those indirectly affected by State action.

Can ordinary worshippers defend a mosque?

The Court adopted a similar approach regarding the six mosques proposed to be acquired. The petitioners argued that, as members of the Muslim community, they were entitled to seek judicial protection for places of worship that had existed for centuries. The Court disagreed.

Each of the six mosques, it observed, was a registered Waqf administered by its own Mutawalli. Under the statutory framework governing Waqf properties, it is primarily the Mutawalli and the State Waqf Board that are entrusted with protecting Waqf assets and representing them before courts.

The Bench therefore held:

“The mosques are admittedly registered Waqf, with their own Mutawalli in each case. No doubt, members of the Muslim community may come forward in certain cases, but essentially it is the Mutawalli and the Waqf Board, who have to protect such properties. We have, nevertheless, heard the petitioners on this issue as well. If we hear the petitioners on this issue and pass judgment, it might prejudice the rights of the Mutawalli and the Waqf Board, who might have something to say in the matter, and their locus is pre-eminent, and not of the petitioners”. (Para 36)

Importantly, the Court did not hold that the mosques themselves lacked legal protection. Instead, it concluded that these particular petitioners were not the appropriate parties to assert those rights. This distinction assumes significance because the judgment expressly leaves open the possibility of future litigation by the Waqf Board or the respective Mutawallis. In other words, the Court’s dismissal of the petition cannot be read as foreclosing all future challenges to the acquisition of the mosques.

Interpreting the Places of Worship Act: Conversion is not acquisition

The central legal question before the Bench was whether the Places of Worship (Special Provisions) Act, 1991 prevents the State from acquiring a place of worship that existed before August 15, 1947.

The petitioners relied primarily upon Sections 3 and 4 of the Act. Section 3 prohibits the conversion of any place of worship belonging to one religious denomination into a place of worship of another denomination or another section of the same religion. Section 4 declares that the religious character of every place of worship existing on 15 August 1947 shall continue to remain the same. According to the petitioners, these provisions effectively insulated pre-Independence places of worship from acquisition or demolition because any such action would inevitably alter their religious character.

The High Court rejected this interpretation. The Bench cautioned against reading Section 4 in isolation. If viewed independently, Section 4 might appear to suggest that every place of worship existing on 15 August 1947 must physically remain untouched forever. However, the Court held that such a reading would misconstrue the statute and disregard the legislative context in which it was enacted.

Instead, the Court adopted what it described as a harmonious construction of Sections 3 and 4. Read together, these provisions reveal Parliament’s true objective—to prevent one religious community or denomination from converting a place of worship belonging to another community after Independence. Thus, a temple existing on 15 August 1947 cannot subsequently become a mosque or church; equally, a mosque cannot be converted into a temple or any other place of worship. That, according to the Court, is the extent of the statutory prohibition.

The judgment stressed that Parliament enacted the Places of Worship Act in the aftermath of escalating communal disputes over religious sites to preserve communal harmony and maintain the religious status quo existing at the time of Independence. Nothing in the language of the Act, however, indicates an intention to withdraw the State’s traditional power to acquire land for public purposes.

“Now, Sections 3 and 4 of the Act of 1991 have to be harmoniously construed, in particular, sub-Section (1) of Section 4. Read in isolation, sub-Section (1) of Section 4 might seem to declare that the religious character of a place of worship existing on the 15th day of August, 1947 is immutable, to wit, if it was a temple, it will remain a temple, if a church, it would remain that, and if a mosque, it would continue to be so. But reading it this way, would be a misconstruction of the scope of the Statute. When Section 4(1) of the Act of 1991 is read together with Section 3, it is evident that there is a prohibition imposed by Section 3 upon any person converting any place of worship of any religious denomination or a sect thereof into a place of worship of a different sect of the same denomination or to that of a different religious denomination. Sections 3 and 4 of the Act of 1991, when harmoniously construed, prevent the religious character of a place of worship belonging to a religious denomination from being changed into a place of worship of another religious denomination, from whatever it was on the 15th day of August, 1947. In short, a temple on 15th August, 1947 cannot be converted to a church or a mosque, and likewise, a mosque or a church to a temple.” (Para 42)

According to the Court, interpreting the 1991 Act as creating absolute immunity from acquisition would place every religious property beyond the reach of public infrastructure projects, regardless of necessity or public interest. Such an interpretation, the Bench held, finds no support either in the statutory language or in the legislative purpose underlying the Act.

The Court therefore concluded that the Places of Worship Act protects religious identity, not ownership. It prevents the alteration of the religious character of places of worship but does not prohibit their acquisition for roads, public infrastructure or other secular public purposes carried out in accordance with law and accompanied by payment of compensation.

The Bench also found support for this interpretation in the amended provisions of the Waqf Act, 1995. Section 51 expressly recognises that Waqf properties may be acquired for public purposes under the RFCTLARR Act or other land acquisition laws, provided the acquisition is undertaken in consultation with the Waqf Board and subject to statutory safeguards, including that it should not contravene the Places of Worship Act, be for an undisputed public purpose, and provide appropriate compensation or suitable alternative land where required. Far from prohibiting acquisition, the Waqf Act, the Court held, prescribes the conditions under which such acquisition may lawfully take place.

“Section 51 of the Waqf Act, 1995 (as amended by Act No. 14 of 2025) provides, by virtue of the second proviso to sub-Section (1A) of Section 51 that nothing contained in this sub-Section, that is to say, the prohibition on sale, gift, exchange, mortgage or transfer of Waqf property being void, shall affect any acquisition of Waqf properties for a public purpose, under the Act of 2013, or any other law relating to acquisition of land, if such acquisition is made in consultation with the Board. The Board, of course, means the Waqf Board. The third proviso says that the acquisition shall not be in contravention of the Act of 1991, the provision upon which learned Counsel for the petitioner has much harped.” (Para 44)

The Court’s understanding of eminent domain

The judgment is equally significant for its reaffirmation of the constitutional doctrine of eminent domain. The Bench held that nothing in the Places of Worship Act suggests Parliament intended to curtail the State’s sovereign authority to acquire land for public purposes. Such a conclusion, it reasoned, would create an extraordinary category of property permanently insulated from acquisition—something Parliament neither expressly stated nor necessarily intended.

The Court explained:

“The purport of the Act of 1991 is not to place beyond the pale of authority of the State’s right as the owner paramount of all lands in the territory of India and to acquire and use it for any public purpose, subject, of course, to the owner’s right to receive just and fair compensation. That is what the doctrine of eminent domain, after all, means. The Act of 1991 is not meant to derogate from that right of the State.” (Para 42)

The reasoning reflects a limited ,classical understanding of eminent domain: private rights yield to public necessity, subject to legality, due process and compensation. However, the judgment also illustrates a recurring feature of Indian constitutional adjudication. The Court devotes considerable attention to affirming the State’s acquisition powers but relatively little to examining the quality of judicial review that should accompany their exercise—particularly where acquisition affects centuries-old religious institutions. The distinction is important.

Recognising that the State possesses the power to acquire land does not automatically answer whether a particular acquisition satisfies constitutional standards of fairness, proportionality or necessity.

Reliance on Ismail Faruqui

To reinforce its interpretation, the Bench relied upon the Constitution Bench decision in Dr. M. Ismail Faruqui v. Union of India (1994). That decision, delivered in the aftermath of the acquisition of land around the disputed Ayodhya site, held that acquisition of a mosque is not constitutionally prohibited merely because it is a place of worship. The Constitution Bench observed that offering namaz is not necessarily confined to a mosque, and consequently a mosque does not enjoy absolute immunity from acquisition.

The Allahabad High Court relied upon these observations to conclude that acquisition of religious property remains constitutionally permissible where undertaken for a legitimate public purpose. The reliance is doctrinally understandable because Ismail Faruqui continues to remain binding precedent on land acquisition. Yet it also revives one of the most debated aspects of Indian constitutional law.

The observations concerning the essentiality of mosques to Islamic practice have been criticised by constitutional lawyers for venturing into theological questions that were arguably unnecessary for deciding the acquisition dispute before the Court. Indeed, in M. Siddiq v. Mahant Suresh Das (Ayodhya, 2019), the Supreme Court clarified that Ismail Faruqui should be understood in the limited context of acquisition and should not be read as a broader pronouncement on Islamic doctrine.

The Allahabad High Court follows precisely that limited approach. It relies on Ismail Faruqui not to determine the importance of mosques within Islam, but to reaffirm the narrower proposition that religious properties are not constitutionally immune from compulsory acquisition. Yet that conclusion, while legally defensible, does not exhaust the constitutional questions raised by the case. The more difficult issue is not whether acquisition is legally permissible.

It is how courts should scrutinise the exercise of that power when acquisition affects historic places of worship situated within politically contested landscapes. That question, significantly, remains largely unanswered by the judgment.

A narrow reading of a law enacted to preserve constitutional secularism

The Allahabad High Court’s judgment is likely to become an important precedent in future disputes involving religious properties and public infrastructure. Its central holding—that the Places of Worship (Special Provisions) Act, 1991 does not prohibit the State from acquiring places of worship for secular public purposes—is likely to be cited in litigation involving roads, railways, metro projects, heritage redevelopment and urban renewal schemes across the country. Yet, while the judgment provides a coherent textual interpretation of the statute, it also leaves several constitutional questions unanswered. These unanswered questions are important because they go to the heart of the constitutional balance between State power, religious freedom and secularism.

The High Court proceeds on the premise that Parliament intended the Places of Worship Act to prevent only one mischief—the conversion of a place of worship from one religion to another. There is textual support for this conclusion. Sections 3 and 4 repeatedly refer to “conversion” and “religious character.” Read literally, they do not expressly prohibit acquisition. However, constitutional interpretation rarely ends with the literal text. Every statute must also be understood in light of the constitutional purpose it seeks to achieve.

The Places of Worship Act was enacted in September 1991 during one of independent India’s most volatile communal moments. The Ram Janmabhoomi movement had transformed disputes over historical religious sites into instruments of mass political mobilisation. Parliament responded by freezing the religious character of every place of worship as it existed on August 15, 1947, making a conscious constitutional choice that independent India would not continually reopen disputes rooted in medieval history. In Ayodhya jugdment, the Supreme Court recognised precisely this objective.

The Court described the Places of Worship Act as a legislative instrument that protects the secular foundations of the Constitution by preventing history from becoming a source of recurring communal conflict. It called the Act a statutory reflection of India’s constitutional commitment to equality, fraternity and secularism, observing that the law imposes a principle of constitutional non-retrogression—the Republic would move forward from the moment of Independence rather than repeatedly litigate the past. Against that backdrop, an important question arises.

If Parliament intended to preserve communal harmony by protecting historic places of worship, does that protection concern only their religious identity, or also their continued existence? The Allahabad High Court answers only the first question. It does not meaningfully engage with the second. That omission does not necessarily render the judgment incorrect. But it does illustrate the limits of a purely textual approach when interpreting legislation enacted to serve a larger constitutional purpose.

Conversion and acquisition: A distinction that invites further debate

The judgment rests upon a clear distinction between conversion and acquisition. According to the Court, acquisition changes ownership; conversion changes religious identity. Legally, the distinction is logical. Constitutionally, however, it is more complicated. A mosque acquired for a road project has not become a temple; a church acquired for a metro line has not become a gurudwara; yet neither continues to function as a place of worship. This raises an important constitutional question that the judgment leaves unanswered.

Can the religious character of a place meaningfully survive once the place itself has ceased to exist? The answer is not obvious. One could argue, as the Court does, that Parliament deliberately chose only to prohibit conversion and not acquisition. Equally, one could argue that the continued existence of historic places of worship forms part of the very constitutional settlement the Act sought to preserve after Independence. Neither interpretation is implausible. The issue is likely to acquire greater significance if future redevelopment projects affect historic temples, mosques, churches or gurudwaras elsewhere in the country.

The meaning of “public purpose”

Perhaps the most important constitutional issue left largely unexplored by the judgment concerns the idea of public purpose. Throughout the decision, the Court accepts road widening, urban infrastructure and improved pilgrimage access as legitimate public purposes. Ordinarily, that proposition is uncontroversial. Courts have long recognised roads, railways, public transport and civic infrastructure as classic examples of public purpose. However, constitutional adjudication ordinarily does not stop there.

Where fundamental rights are affected, courts frequently ask additional questions.

• Is the objective legitimate?
• Was due fair and reasonable process followed in the actions of acquisition of ancient temples and mosques: dialogues, engagements, adjudication?
• Is the chosen measure necessary?
• Could the same objective have been achieved through less restrictive means?
• Has the State adequately balanced competing constitutional interests?

Those questions receive relatively limited attention in the present judgment. This is partly explained by the Court’s finding that the petition itself suffered from lack of locus standi. Once the Court concluded that the petitioners were not the appropriate parties to challenge the acquisition, it understandably refrained from undertaking a detailed proportionality analysis. Nevertheless, the broader constitutional issue remains. Redevelopment projects affecting centuries-old places of worship occupy a category distinct from ordinary land acquisition disputes. Such projects implicate not merely property rights but also religious freedom, cultural heritage, community identity and constitutional secularism. Future litigation instituted by title holders, Mutawallis or Waqf Boards may therefore require courts to scrutinise more closely whether the asserted public purpose justifies the particular acquisition in question.

The heritage dimension

Another notable feature of the judgment is what it does not discuss. The decision treats the dispute primarily as one concerning statutory interpretation and land acquisition. It says relatively little about heritage. Yet heritage formed an important part of the wider public debate surrounding the Kashi Vishwanath Corridor.

For several years, historians, architects, urban planners and conservationists have debated whether redevelopment of the temple precinct should be understood merely as infrastructure expansion or also as a profound transformation of one of India’s oldest living cities. The issue extends beyond individual buildings. Varanasi’s historic significance lies not only in monumental structures such as the Kashi Vishwanath Temple or the Gyanvapi Mosque but equally in the intricate network of neighbourhoods, shrines, markets and narrow lanes that evolved over centuries.

Urban heritage increasingly recognises that cities possess value not merely because of isolated monuments but because of the relationships between monuments, communities and everyday life. Indian constitutional law itself reflects this concern. Article 49 places an obligation upon the State to protect monuments of national importance, and Article 51A(f) recognises a fundamental duty to value and preserve the country’s composite culture. Neither provision directly governed the dispute before the Allahabad High Court. Yet both remind us that redevelopment of historically significant urban spaces inevitably raises constitutional questions extending beyond land acquisition alone.

What the judgment leaves open

It is equally important to understand what the Court did not decide. The judgment does not hold that every acquisition of a religious property is automatically valid. Nor does it approve every aspect of the Dalmandi redevelopment project. The Court does not examine whether the acquisition satisfies every procedural safeguard under the RFCTLARR Act; it does not determine whether consultation requirements under the Waqf Act were fully complied with; and it does not decide whether compensation is adequate. Nor does it adjudicate upon the independent rights of the Waqf Board or the Mutawallis, expressly leaving those questions open for future proceedings. Accordingly, the judgment should not be read more broadly than its ratio permits.

Its central proposition is narrower: the Places of Worship Act, by itself, does not prohibit acquisition of places of worship for a lawful public purpose. Whether a particular acquisition satisfies constitutional and statutory safeguards remains a separate inquiry.

Conclusion: Development, secularism and the future of the Places of Worship Act

The Allahabad High Court’s decision arrives at a moment when the constitutional future of the Places of Worship (Special Provisions) Act, 1991 itself remains under scrutiny before the Supreme Court. In that sense, the judgment is likely to influence debates extending far beyond the immediate dispute in Dalmandi. Its importance lies not because it diminishes the constitutional value of secularism, the Court expressly accepts the continuing force of the 1991 Act, but because it narrows the statute’s operational field. By distinguishing conversion from acquisition, the Court shifts future disputes involving redevelopment away from the Places of Worship Act and towards the law of eminent domain, land acquisition, proportionality and procedural fairness. Whether that shift ultimately strengthens constitutional governance or weakens one of Parliament’s most significant secular safeguards remains an open question.

If accepted more broadly, the judgment means that the principal legal battleground in future cases may no longer be whether the Places of Worship Act bars State action, but whether the exercise of eminent domain itself satisfies constitutional standards of fairness, necessity, proportionality and non-discrimination. That is a significant doctrinal shift. It also reflects a larger constitutional reality.

As Indian cities continue to redevelop historic religious precincts, whether in Varanasi, Mathura, Ujjain, Ayodhya or elsewhere, courts will increasingly be called upon to reconcile competing constitutional values: development and conservation, public infrastructure and religious freedom, State power and minority rights, heritage and modernisation. The Dalmandi judgment does not resolve those tensions. It marks the beginning of a new chapter in that conversation.

The complete judgment may be read below:

[1] Announced with much fanfare in March 2019, when prime minister Modi laid the foundation stone, it was formally inaugurated in 2021; https://www.pib.gov.in/PressReleasePage.aspx?PRID=2122058&reg=48&lang=2

[2] https://www.thehinducentre.com/the-arena/current-issues/advani-to-modi-to-yogi-a-hindutva-story-foretold/article64931577.ece; https://frontline.thehindu.com/cover-story/article25545271.ece

[3] Babri Masjid Demolition: Point of Departure, and of Arrival, Teesta Setalvad, Social Scientist; https://www.jstor.org/stable/27249507

Related:

When the Supreme Court directed protection for the Gyan Vapi Mosque, upheld the Places of Worship Act, 1991 (1994, 1995, 1997)

UP: After Gyanvapi, Mathura Court Orders Shahi Idgah Survey; ‘Violation’ of Places of Worship Act, Say Activists

The Challenge to Places of Worship Special Provisions Act, 1991 is Misconceived

Article 32 cannot be invoked to enforce all disputes relating to the Places of Worship Act: SC

When and How Ram Vilas Paswan made a strong pitch for the Places of Worship Act, 1991

Understanding the Supreme Court’s Interim Intervention in the Waqf Amendments, 2025

‘Reforms’: Sachar Committee, the 2013 Amendments and the motive behind the proposed changes in the Waqf Regime

Amendments to the Waqf Law were needed, but the grab-and-control Waqf Amendment Act, 2025 is not the answer

The post Public Purpose and Places of Worship: Allahabad HC’s Dalmandi verdict appeared first on SabrangIndia.

Against this backdrop, the Gauhati High Court’s decision in Aminul Hoque v. Union of India & Ors, delivered on June 30, 2026, dismissing the petitioner’s challenge to the opinion of Foreigners Tribunal No. 4, Kamrup (Metro), once again reiterates the settled principles governing proceedings under the Foreigners Act, 1946. In this June 30 judgement, the Court reaffirmed that the burden under Section 9 of the Act rests squarely upon the proceedee; that documentary evidence, rather than oral assertions, must establish citizenship; that writ courts exercising jurisdiction under Article 226 cannot function as appellate authorities over findings of Foreigners Tribunals; and that discrepancies in documentary evidence may legitimately defeat a citizenship claim where linkage with pre-1971 ancestors remains unproved.

“Thus, though the petitioner had exhibited 15 (fifteen) documents as exhibits, the same does not appear to help the petitioner to establish that he has been able to discharge his burden as required under Section 9 of the Foreigners Act, 1964 to prove that he is not a foreigner but an Indian Citizen.” (Para 27)

The judgment may sound as if it is entirely consistent with recent jurisprudence developed by the Gauhati High Court. However as the 2013 judgement of the same Court in Moslem Mandal shows, this is not how this particular court has ruled, always. Conflicting verdicts make access for substantive justice an even greater challenge for individual, impoverished victims of citizenship. The Aminul Hoque verdict relies upon familiar propositions regarding the burden of proof, admissibility of electronic records, evidentiary value of electoral rolls, proof of linkage documents and the narrow contours of certiorari jurisdiction. While the Court appears to meticulously examine each document produced by the petitioner, its treatment and evaluation especially given everyday realities behind “spelling differences” and “date differentials” in official documents discards their value. The entire verdict runs in to 21 pages.

Hence, the judgment raises larger constitutional questions about the evolving nature of citizenship adjudication in India. The decision reflects what may be described as a burden-centric approach, where the primary inquiry revolves around whether the proceedee has satisfactorily established lineage through admissible documentary evidence. Questions relating to procedural fairness, the practical realities of maintaining documentary continuity over several decades, and the heightened constitutional consequences flowing from a declaration of foreigner status receive comparatively limited engagement.

These concerns assume particular significance in light of the Supreme Court’s recent decision in Sabitri Dey @ Swasthi Dey v. Union of India, where a Bench of Justices Vikram Nath and Sandeep Mehta substantially reiterated formerly established jurisprudence governing Foreigners Tribunal proceedings. While affirming that Section 9 continues to place the burden upon the individual to establish Indian citizenship, the Supreme Court simultaneously clarified that this burden “operates within a legal process” and cannot replace the Tribunal’s obligation to conduct a fair, lawful and reasoned adjudication. The Court further held that citizenship proceedings remain subject to Articles 14 and 21 of the Constitution, emphasising that procedural fairness extends to “any person”, irrespective of whether they ultimately succeed in proving citizenship.

Detailed report on the judgement may be read here.

Although Aminul Hoque predates that decision, it provides an important lens through which the Supreme Court’s subsequent intervention may be understood. Substantially varying interpretations –even by constitutional courts –on the rigour of evidentiary procedures before Foreigners Tribunals have only obfuscated a life-and-death issue further. The present judgment reflects the evidentiary challenges routinely encountered in Assam’s Foreigners Tribunal regime: fragmented documentary records, changing spellings of names, migration across villages due to erosion and displacement, inconsistencies in electoral rolls, reliance upon legacy data, and the perennial difficulty of establishing genealogical continuity spanning several decades.

Rather than merely determining the fate of one individual, the judgment illustrates the structural tensions embedded within citizenship adjudication itself—between subjective evaluations of the statutory burden and constitutional fairness, documentary precision and lived realities, judicial restraint and meaningful scrutiny, and ultimately between sovereign power and individual liberty.

Facts giving rise to the dispute

The proceedings arose from an opinion dated February 28, 2019 passed by the Member, Foreigners Tribunal No. 4, Kamrup (Metro), Guwahati in FT Case No. FT(KM)-4/1077/2017. Acting upon a reference made by the competent authorities, the Tribunal declared the petitioner, Aminul Hoque, to be a foreigner who had entered India after March 25, 1971, thereby attracting the consequences contemplated under the Foreigners Act, 1946. Challenging this opinion, the petitioner invoked the writ jurisdiction of the Gauhati High Court under Article 226 of the Constitution.

Before the Tribunal, the petitioner asserted that he was an Indian citizen by birth and traced his lineage through his father Mohiruddin Sheikh (also described in different documents as Mahruddin Sheikh, Mohiruddin and Mohir Uddin) and his grandfather Pasan Ali (also appearing as Pashan Sheikh/Pachan Ali in different records). According to the defence, the family originally resided at village Dhobakura, later shifted to Ghugudoba owing to erosion caused by the Brahmaputra, and subsequently settled at Hashdoba following family partition and migration over the years. The petitioner contended that these successive movements explained the appearance of his family in electoral rolls relating to different villages across different years.

To establish this lineage, the petitioner produced an extensive documentary record comprising fifteen exhibits. These included extracts from the 1951 NRC, certified electoral rolls of 1966, 1970, 1979, 1985, 1989, 1997, 2005, 2013, 2015 and 2017, a registered sale deed executed in favour of his projected grandfather in 1973, his PAN Card, EPIC, and a school certificate issued by the Headmaster of Hashdoba Anchalik High School. He also examined himself as DW-1 and produced his projected father as DW-2 in an attempt to establish the necessary family linkage between the pre-1971 ancestors and himself.

Clearly, the documentary record appeared substantial. Unlike several Foreigners Tribunal cases where the proceedee herein relies upon only a handful of documents, and the petitioner sought to construct a continuous genealogical chain spanning over five decades. The central question before both the Tribunal and the High Court, therefore, was not the absence of documentary material but whether the documents, read together, successfully established an uninterrupted legal link connecting the petitioner with ancestors whose presence in India prior to March 25, 1971 stood established.

It is in answering that question that the judgment assumes wider significance, for the High Court’s analysis demonstrates the exceptionally narrow –and even bureaucratically rigid–evidentiary scrutiny presently employed in citizenship adjudication. Rather than treating the documents cumulatively, the Court subjected each exhibit to independent examination before testing whether the entire chain remained internally consistent. Any unexplained discrepancy—whether relating to age, spelling, relationship, village, family composition or documentary proof—was treated as capable of weakening the overall linkage claim.

The resulting analysis reveals a judicial methodology that prioritises documentary perfection above all else, raising broader questions about the practical ability of rural citizens (or any citizens from the marginalised sections) to satisfy evidentiary standards in proceedings carrying the gravest of civil consequences.

Another detailed report on an earlier judicial treatment of documentary discrepancies may be read here.

The Court’s evidentiary analysis: Why every document failed to establish citizenship

The Gauhati High Court’s judgment is disturbing not only because it rejects the petitioner’s claim outright, but because of the meticulous manner in which it appears to scrutinise every document relied upon to establish citizenship. Rather than approaching the petitioner’s evidence cumulatively –and with an application of reasoning and logic– the Court examined each document individually, testing its admissibility, authenticity, evidentiary value and ability to establish the crucial element of linkage. Ultimately, the Court concluded that while some documents may have demonstrated the existence of particular individuals at different points in time, none successfully established the “connections” of the petitioner to an ancestor whose presence in India prior to March 25, 1971 stood legally established.

The judgment therefore illustrates a recurring feature of Foreigners Tribunal litigation in Assam: possession of numerous documents does not necessarily translate into proof of citizenship. What the law requires is an unbroken documentary chain demonstrating lineage, identity and continuity across generations.

• The 1951 NRC extract: A foundational document rejected

Among the most significant documents relied upon by the petitioner was a computer-generated extract of the 1951 National Register of Citizens (NRC), purportedly showing the name of his projected grandfather, Pasan Ali. Since the 1951 NRC predates the statutory cut-off date of March 25, 1971, such a document, if accepted, could have provided a crucial starting point for establishing ancestral presence in India.

The High Court, however, refused to attach evidentiary value to the document. The Court observed that the extract produced before the Tribunal was not the original NRC register but a computer-generated copy downloaded from the NRC database. As such, it constituted an electronic record within the meaning of the Indian Evidence Act. Since no certificate satisfying the mandatory requirements of Section 65B accompanied the document, the Court held that it was inadmissible in evidence. Consequently, the Tribunal was justified in excluding it from consideration. Arguably this is a hyper-technical rejection of an otherwise accepted document. Put differently, the state could have been called upon by the Court to produce its own digital record of the same roll for re-verification.

The Court relied upon settled jurisprudence governing electronic evidence to conclude that compliance with Section 65B is not merely procedural but mandatory when electronic records are sought to be proved.

This aspect of the judgment is particularly significant because many citizenship claims in Assam increasingly rely upon digitised legacy data generated during the NRC exercise. By insisting upon strict compliance with Section 65B, the Court effectively raises the evidentiary threshold for proving legacy records that are now maintained and accessed electronically.

From a doctrinal standpoint, the reasoning is consistent with the law governing electronic evidence. Yet it also raises practical concerns. Legacy data made available by government authorities for NRC verification is frequently accessed through official digital repositories rather than physical registers. Requiring every proceedee before a Foreigners Tribunal to procure a formal Section 65B certificate may impose an additional procedural hurdle upon individuals who have little control over the manner in which such historical records are digitised or maintained. The judgment does not engage with this practical difficulty, instead applying the evidentiary rule in a strictly formal manner.

• Electoral rolls: Presence is not enough; linkage must also be proved

The petitioner also relied extensively upon electoral rolls spanning several decades. He produced voter lists of 1966 and 1970 showing the names of Pasan Ali and Mohiruddin Sheikh, voter lists of subsequent years reflecting changes in residence, and later electoral rolls containing his own name.

Ordinarily, electoral rolls prepared before the cut-off date constitute important evidence in citizenship proceedings because they establish that a particular individual was recognised as an elector in India before March 25, 1971.

However, the High Court reiterated another “settled” principle: pre-1971 electoral records establish only the existence of the recorded individual—not the citizenship of every person claiming descent from that individual. The crucial question always remains whether the proceedee has successfully proved the family linkage connecting himself to the projected ancestor.

Examining the electoral records closely, the Court noticed several inconsistencies. The names of the projected ancestors appeared across different villages—Dhobakura, Ghugudoba and Hashdoba. The petitioner explained these changes by referring to river erosion, displacement and subsequent settlement elsewhere, a phenomenon not uncommon in Assam’s flood-prone districts.

The Court did not reject this explanation outright. Instead, it held that the explanation itself required independent documentary corroboration. Merely asserting that a family migrated because of erosion could not bridge the evidentiary gap unless supported by continuous documentary material establishing that the individuals appearing in different electoral rolls were indeed the same persons. The question that begs attention here is what document if at all –across India and applicable to any or all displaced by natural disasters individuals or groups—could ever establish such “continuous documentary material.” Again, by adhering to a narrow manifestation of “established procedure” the Gauhati HC, a constitutional court, ignored the vast (and bitter reality) that hundreds of thousands of displaced Assamese face—the absence of these “legally convincing documents.”

The Court also examined the ages recorded in different voter lists and observed discrepancies which, in its view, weakened the reliability of the projected genealogy. These inconsistencies, though individually minor, assumed greater significance because the petitioner’s entire citizenship claim depended upon establishing an uninterrupted documentary chain extending across several decades.

Accordingly, the Court concluded that while the electoral rolls undoubtedly demonstrated the presence of persons bearing similar names, they did not satisfactorily establish that the petitioner was their lawful descendant.

• The registered sale deed: Ownership cannot establish lineage

Another important document relied upon by the petitioner was a registered sale deed executed in 1973 in favour of the projected grandfather. The petitioner argued that ownership of immovable property further corroborated the family’s long-standing residence in Assam.

The High Court accepted that the sale deed was a genuine registered document but observed that its evidentiary value remained limited.

A sale deed may establish ownership of land by the recorded purchaser. It does not, however, establish the identity of descendants claiming through that purchaser unless independent evidence proves the genealogical relationship between them.

Since the Court had already found the linkage evidence deficient, the sale deed could not independently prove the petitioner’s citizenship.

The judgment simply reiterates another practice followed by Foreigners Tribunal that do not often follow the rules of logic and reasoning of the Indian Evidence Act: documents proving property ownership cannot substitute proof of lineage. They merely establish that a particular person owned land; they do not establish that every claimant tracing ancestry to that person has successfully proved the relationship.

• PAN Card and EPIC: Identity documents are not proof of citizenship

The petitioner also relied upon his Permanent Account Number (PAN) Card and Electoral Photo Identity Card (EPIC). The High Court attached virtually no evidentiary weight to either document. Referring to earlier precedents, the Court reiterated that neither a PAN Card nor an EPIC constitutes proof of Indian citizenship. These documents primarily establish identity for administrative purposes and cannot override the statutory inquiry contemplated under the Foreigners Act.

The Court observed that issuance of such documents proceeds upon administrative verification and does not amount to a judicial determination of citizenship. Consequently, possession of these documents cannot discharge the burden imposed under Section 9 of the Foreigners Act.

The judgment once again reflects the narrow philosophy that often –though not always –governs citizenship litigation.

School certificate and oral evidence: Insufficient to bridge the evidentiary gap

Perhaps the most revealing aspect of the judgment concerns the treatment of the petitioner’s school certificate and oral testimony. The petitioner relied upon a certificate issued by the Headmaster of Hashdoba Anchalik High School to establish his parentage and educational history.

The Court declined to rely upon the certificate because the Headmaster who issued it was not examined before the Tribunal and the original admission register from which the certificate was prepared was never produced. In the absence of foundational evidence proving how the entries were made, the Court held that the certificate possessed little evidentiary value. A more pro-active approach could have resulted in a constitutional court questioning the Foreigner Tribunal proceedings for this “lapse” rather than rejecting the proceedee’s claim altogether.

Similarly, although the petitioner’s projected father entered the witness box and attempted to establish the family relationship through oral testimony, the Court held that such evidence could not compensate for deficiencies in documentary proof.

The High Court also observed that oral assertions regarding lineage, however sincere, cannot by themselves discharge the burden imposed under Section 9 where documentary evidence capable of establishing family linkage is either absent or inconsistent.

In effect, questionably, the Court treated documentary evidence as the primary mode of proving citizenship, while oral testimony assumed only a corroborative role. Where the documentary chain itself remained incomplete, oral evidence was considered insufficient to cure the defect.

This approach reflects some –not all—of the the prevailing judicial emphasis on documentary certainty in citizenship adjudication. However, it simultaneously raises an important question: whether proceedings determining a person’s legal status should demand documentary continuity of a standard that vast numbers of Indians, rural citizens, particularly those displaced by erosion, migration or historical administrative deficiencies, may find exceptionally difficult to satisfy.

Judicial restraint and the limits of Article 226: Deference to the Foreigners Tribunal

Having concluded that the petitioner failed to “establish a satisfactory documentary chain linking him to his projected ancestors,” the Gauhati High Court turned to what ultimately became the decisive legal question: whether the High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution, could re-appreciate the evidence and arrive at a different factual conclusion from that reached by the Foreigners Tribunal. The Court answered this question firmly in the negative.

Relying upon a long line of precedents, the Bench reiterated that a writ court exercising certiorari jurisdiction does not function as an appellate forum over the findings of a Foreigners Tribunal. Its role is confined to examining whether the Tribunal acted within its jurisdiction, followed the prescribed procedure, observed principles of natural justice and arrived at findings that are not perverse or unsupported by any evidence. Mere disagreement with the appreciation of evidence does not justify interference under Article 226.

To reinforce this proposition, the Court referred to the Constitution Bench decision in Hari Vishnu Kamath v. Ahmad Ishaque, which continues to govern the scope of certiorari jurisdiction. The Court also relied upon the Supreme Court’s decision in Central Council for Research in Ayurvedic Sciences v. Bikartan Das, reiterating that writ courts cannot substitute their own factual conclusions merely because another view of the evidence may be possible.

Applying these principles, the High Court concluded that the Tribunal had examined every document placed before it, evaluated the oral testimony of both witnesses and assigned reasons for rejecting the petitioner’s claim. Unfortunately even though some oral testimonies –notably that of the Headmaster of the school were not recorded—the HC still came to this conclusion.

Whether those conclusions were ultimately correct on facts was, according to the Court, not a question that could ordinarily be reopened in writ proceedings. The judgment therefore reflects a pronounced judicial deference to the specialised role assigned to Foreigners Tribunals under the Foreigners Act and the Foreigners (Tribunals) Order.

“In this case in hand, the petitioner has not been able to establish that the learned Tribunal had committed any patent error in appreciating the pleadings and evidence on record, or that it considered extraneous materials or that the decision was based on ignorance of law or in disregard to the provisions of law.” (Para 30)

“In the light of the discussions made hereinbefore, the Court finds no material to hold that the opinion assailed in this writ petition is bad on facts or in law. The learned counsel for the petitioner could not show that the said opinion was perverse on any count whatsoever. Therefore, this challenge fails and consequently, this writ petition is dismissed.” (Para 31)

A burden-centric model of citizenship adjudication

Read holistically, the judgment reveals a judicial philosophy that has shaped Assam’s citizenship jurisprudence intermittently over the past two decades. The Court repeatedly returns to one statutory principle: Section 9 of the Foreigners Act places the burden of proving citizenship upon the proceedee. Everything else in the judgment flows from that premise.

The Court examines every document not to determine whether it raises a reasonable probability of Indian citizenship but to ascertain whether it conclusively discharges the burden imposed by Section 9. Where inconsistencies emerge, the benefit does not accrue to the proceedee. Instead, the deficiencies are treated as failures to satisfy the statutory burden. This approach may be described as burden-centric adjudication.

Under this model:

• the reference made by the State initiates the proceedings;
• the proceedee must affirmatively establish Indian citizenship;
• documentary evidence assumes primacy over oral testimony;
• every link in the genealogical chain must be independently proved;
• unexplained discrepancies weaken the entire claim; and
• failure to establish linkage results in the statutory burden remaining undischarged.

Doctrinally, this reasoning finds some support in earlier Supreme Court decisions, particularly Sarbananda Sonowal v. Union of India, which upheld the reverse burden contained in Section 9 on the ground that questions relating to nationality, birth and ancestry lie especially within the knowledge of the individual concerned. Interestingly while Sonowal has been cited on this aspect –upholding burden of proof—the same judgement of the SC has been ignored when it comes to the crucial and material issue of material grounds for issuance of notice by the Assam Border Police in the first place.

The Gauhati High Court’s judgment faithfully applies that doctrine. However, the decision also exposes the practical implications of a jurisprudence that places overwhelming emphasis upon documentary precision in a region where historical documentation has often been fragmented by displacement, erosion, illiteracy and administrative inconsistency.

Does the judgment impose an unrealistic evidentiary standard?

Perhaps the most significant question emerging from the judgment is not whether the Court correctly applied existing law, but whether the evidentiary standard demanded by that law adequately reflects the realities of citizenship documentation in Assam. The petitioner produced fifteen documents spanning nearly seven decades. These included pre-1971 electoral rolls, a 1951 NRC extract, land records, a registered sale deed, multiple voter lists, school records, PAN and EPIC, along with oral evidence from his projected father. Yet none proved sufficient.

Individually, many documents were rejected because they did not establish linkage. Others were discounted because of technical deficiencies in admissibility. Some suffered from discrepancies in names, ages or villages. Oral testimony was treated as incapable of curing documentary gaps. From a purely evidentiary standpoint, each conclusion may appear legally sustainable. Viewed collectively, however, the judgment raises a broader concern.

Citizenship proceedings frequently involve families whose records extend back fifty or seventy years. Variations in spelling, transliteration between Assamese, Bengali and English, inconsistent recording of ages, migration due to annual flooding, subdivision of villages and changing administrative boundaries are hardly exceptional features of rural documentation in Assam—they are endemic realities. The judgment gives relatively little consideration to these structural realities. Instead, it proceeds upon an implicit assumption that documentary continuity should ordinarily be capable of precise reconstruction. Whether such an expectation is realistic is a question that remains largely unexplored.

The treatment of linkage evidence

Another notable aspect of the judgment is its treatment of linkage. The Court correctly observes that proving the existence of an ancestor in India before March 25, 1971 is only the first step. The decisive issue is whether the proceedee has successfully demonstrated that he is indeed the descendant of that ancestor. This requirement has become the cornerstone of Assam’s Foreigners Tribunal jurisprudence. Yet the present judgment illustrates how linkage has gradually evolved from a factual inquiry into an exceptionally demanding documentary exercise. Each missing document, each discrepancy in age, each variation in spelling and each unexplained shift in residence becomes capable of weakening the entire genealogical chain.

The consequence is that citizenship litigation often turns less upon the existence of ancestral residence than upon the ability to reconstruct documentary history with remarkable precision across multiple decades. Whether this reflects the legislative intention underlying Section 9 or has developed incrementally through judicial practice is itself worthy of closer examination.

The Supreme Court’s intervention: A shift from burden to process

It is against this background that the Supreme Court’s recent judgment in Sabitri Dey @ Swasthi Dey v. Union of India assumes profound significance. Although the Supreme Court did not dilute the statutory burden under Section 9, it fundamentally altered the constitutional framework within which that burden must operate. The Court categorically held that the burden on the proceedee does not replace the legal process itself.

Section 9, according to the Bench, authorises neither automatic declarations nor mechanical acceptance of police references. Instead, the burden functions within a fair adjudicatory process that requires meaningful notice, disclosure of the “main grounds”, objective consideration of the State’s evidence and a reasoned determination by the Tribunal.

Most crucially, this recent 21 page judgement in Aminol Haque delivered by the GHC is silent on the whether or not the Foreigners Tribunal had examined the basis of the “notice” issued by the Assam Border Police to the proceedee, whether the notice itself disclosed material grounds for justifying the proceedings around adjudication of a person’s citizenship etc. Did the Court in Aminol Haque examine whether the initiation of proceedings were wholly without jurisdiction, non est, and void ab initio? The verdict is silent on this.[1]

Most importantly, the Supreme Court held that proceedings before Foreigners Tribunals remain subject to Articles 14 and 21 of the Constitution because both provisions protect “any person”, irrespective of citizenship. This marks a subtle but significant constitutional shift.

The focus moves beyond the question “Has the proceedee discharged the burden?”

It also asks:

• Was the adjudication fair?
• Was the notice meaningful?
• Were the grounds adequately disclosed?
• Did the Tribunal independently evaluate the evidence?
• Were reasons properly recorded?
• Was the conclusion reached through a lawful and reasoned process?

These questions receive comparatively limited attention in Aminul Hoque, where the primary emphasis remains upon whether the petitioner successfully proved his case.

The Supreme Court’s judgment does not invalidate this evidentiary inquiry. Rather, it insists that evidentiary assessment itself must occur within a procedurally robust constitutional framework. Consequently, Sabitri Dey represents not a rejection of Section 9 but a recalibration of its operation. The burden continues to rest upon the proceedee. But the legitimacy of the outcome now depends equally upon the fairness of the process through which that burden is evaluated. It is precisely this constitutional dimension that may shape the future trajectory of citizenship jurisprudence in Assam.

Beyond one case: What Aminul Hoque tells us about the future of citizenship adjudication

The Gauhati High Court’s decision ultimately dismissed the writ petition, affirmed the opinion of the Foreigners Tribunal and upheld the declaration of the petitioner as a post March 25, 1971 foreigner. In doing so, the Court concluded that there was no jurisdictional error, perversity or violation of natural justice warranting interference under Article 226. The Tribunal had, in the Court’s view, appreciated the documentary and oral evidence in accordance with law, and the petitioner’s failure to establish linkage meant that the statutory burden under Section 9 remained undischarged.

From a strictly doctrinal perspective, the judgment is difficult to fault. It faithfully follows established precedents of both the Gauhati High Court and the Supreme Court regarding the burden of proof, the evidentiary value of public documents, the admissibility of electronic records, and the limited scope of judicial review under Article 226. It neither creates new legal principles nor departs from settled jurisprudence. Rather, it is emblematic of the legal framework that has governed Foreigners Tribunal litigation in Assam for nearly two decades. Yet, legal correctness is not the only lens through which judgments involving citizenship should be examined.

Citizenship occupies a unique constitutional position. Unlike most adjudicatory disputes, proceedings before a Foreigners Tribunal determine whether an individual belongs to the constitutional community itself. A declaration of foreigner status is not merely an adverse civil finding—it fundamentally alters the individual’s relationship with the State. It may lead to detention in transit camps, deportation, disenfranchisement, separation from family members who remain Indian citizens, and, in some cases, prolonged uncertainty regarding nationality. These are consequences of exceptional gravity, making citizenship litigation qualitatively different from ordinary civil or administrative proceedings.

It is precisely because of these consequences that the Supreme Court, in Sabitri Dey @ Swasthi Dey, described citizenship and foreigner determination as matters of “high constitutional and legal significance.” The Court recognised that while Parliament may legitimately prescribe a reverse burden under Section 9 of the Foreigners Act, that burden cannot eclipse the constitutional guarantees of fairness, reasonableness and non-arbitrariness embodied in Articles 14 and 21.

A jurisprudence in transition

Viewed together, Aminul Hoque and Sabitri Dey reveal that citizenship jurisprudence in India is undergoing a turbulent transition. The Gauhati High Court’s judgment represents what may be a clinical and narrow view on Foreigners Tribunal jurisprudence. The principal questions are:

• Has the proceedee produced admissible documents?
• Has family linkage been proved?
• Are the electoral rolls internally consistent?
• Have documentary discrepancies been satisfactorily explained?
• Has the burden under Section 9 been discharged?

However by leaping to look at evidence from a narrow, even bureaucratically top-heavy perspective, this judgement and others of its ilk fail to scrutinise the merit or applicability of the “notice” issued. As a wide range of international and national studies including those conducted by Citizens for Justice and Peace  have shown, the act and process of issuing such notices has been proven to be ad hoc, manifestly arbitrary and even selective. No rigour in enquiry by the authorities prior to such issuance neither takes place nor is examined by the Foreigner Tribunal.

The recent Supreme Court judgment by underlining a basic flaw in this approach reiterates a constitutional process model.

Under this approach, the inquiry expands beyond abstract and even subjective assessments of “documentary sufficiency” to include procedural legitimacy. The Court asks not only whether the proceedee proved citizenship, but also whether the adjudication itself satisfied constitutional standards. Accordingly, the focus shifts towards questions such as:

• Were the “main grounds” of the allegation properly disclosed?
• Was notice effectively served?
• Did the Tribunal independently evaluate the State’s evidence?
• Were the findings supported by reasons?
• Was the opportunity to defend meaningful rather than merely formal?
• Did the adjudication satisfy the requirements of Articles 14 and 21?

These questions do not replace Section 9; they contextualise it within constitutional guarantees.

The challenge of documentary perfection

One of the most striking features of Aminul Hoque is the extraordinarily high premium placed on documentary continuity. The judgment expects a seamless genealogical chain extending across multiple decades, villages and administrative records. Every link in that chain must withstand judicial scrutiny. Variations in names, inconsistencies in ages, changes in residence, absence of foundational records and deficiencies in proving public documents all become capable of defeating the claim.

Citizenship cannot be determined on speculation or conjecture. While some aspects of documentary proof may be needed as a reliable means of establishing lineage, ground circumstances, the sensitive issue of citizenship adjudication in Assam presents a unique factual context. Large sections of the population have experienced repeated displacement due to river erosion. Entire villages have disappeared and re-emerged elsewhere. Administrative boundaries have changed. Large sections of the local population migrate intra-state. Names have been transliterated between Assamese, Bengali and English with varying spellings. Ages have often been recorded approximately rather than precisely. Legacy records from the 1950s and 1960s were not created with future citizenship litigation in mind. These realities do not excuse deficiencies in evidence. But they do underscore the importance of evaluating documentary inconsistencies in context rather than in isolation.

The High Court’s judgment gives comparatively limited consideration to these structural realities, preferring instead to apply conventional evidentiary principles with considerable rigour. Whether that approach adequately accommodates the lived realities of documentation in Assam remains an open constitutional question.

Fairness as a constitutional imperative

Perhaps the most enduring contribution of the Supreme Court’s judgment is that it reframes citizenship adjudication as a constitutional exercise rather than merely a statutory one. By holding that Articles 14 and 21 protect “any person”, the Court has made clear that procedural fairness does not depend upon citizenship. The very purpose of the adjudication is to determine citizenship; fairness cannot therefore be withheld until citizenship is first established. This principle has implications extending well beyond ex-parte proceedings.

It informs the manner in which notices are drafted, evidence is appreciated, reasons are recorded, and proceedings are conducted. It reinforces the quasi-judicial character of Foreigners Tribunals and emphasises that their role is not merely to verify police references but to independently determine one of the most consequential legal questions an individual can face.

Conclusion

The Gauhati High Court’s decision in Aminul Hoque reinforces the reverse burden under Section 9 of the Foreigners Act, demands strict proof of genealogical linkage, accords limited evidentiary value to identity documents such as PAN and EPIC, insists upon compliance with Section 65B for electronic records, and reiterates the narrow scope of judicial review under Article 226. The judgement is marked by a huge lacunae in not examining the grounds or methods employed in issuance of the “notice” in the first place. Hence, the judgment also illustrates the limitations of a jurisprudence centred almost exclusively upon documentary proof and evidentiary precision. Citizenship is unlike any other legal status. The consequences of an erroneous declaration extend beyond the courtroom, affecting liberty, family life, identity and belonging. Such consequences demand not only accurate fact-finding but also procedures that command constitutional legitimacy.

The Supreme Court’s decision in Sabitri Dey on the other hand provides an essential constitutional complement to them. By reaffirming that the burden under Section 9 operates within a framework of fairness, reasoned adjudication and meaningful procedural safeguards, the Supreme Court has signalled that the legitimacy of citizenship determination depends as much upon the integrity of the process as upon the correctness of the final outcome. The Gauhati High Court’s adjudication remains limiting and burden-centric. The Supreme Court, crucially, introduces a more process-oriented constitutional framework.

The complete judgement may be read below:

[1] It is well settled inter alia by the judgments of the Honourable Supreme Court in Sarbananda Sonowal (II) v. Union of India, (2007) 1 SCC 174 (paras 42, 55 and 60),  and Md. Rahim Ali, @ Abdur Rahim v. State of Assam (paras 35-41), as also by a Full Bench of the Hon’ble Gauhati High Court in State of Assam v. Moslem Mondal, (2013) 1 GLT 809, that the Foreigners Tribunal is required to independently apply its mind to the grounds and materials produced before it by the State and come to a conclusion that there are sufficient grounds to initiate proceedings against any person who is alleged to be a foreigner.  It is further well settled that in the absence of grounds supported by objective materials which justify proceeding against a person, the Tribunal has no jurisdiction to issue a notice calling upon him to appear and show cause why he should not be declared a foreigner.  It is further well settled that if the notice issued by the Tribunal does not contain the main grounds on the basis of which the Tribunal is satisfied that it is a fit case to proceed, then the entire proceedings are void ab initio and the reverse burden of proof under Section 9 of the Act does not get cast upon the proceedee, and any opinion rendered by the Tribunal is void and non est and has to be struck down on this ground alone.

Related:

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Abdul Sheikh Citizenship Case: Gauhati High Court issues notice, continues protection against deportation

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Defending Citizenship, On the Ground | CJP Assam 2025

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

The post Documentary Burden beyond proof: Gauhati HC upholds foreigner declaration appeared first on SabrangIndia.

The Odisha State Sentence Review Board has recommended his release from jail on ground of “good behaviour.” On July 14, 2026, a bench comprising of Justices Manoj Misra and Vijay Bishnoi of the Supreme Court through its order had asked the Odisha Government to take a decision on the premature release of Singh by August 19. Reportedly, the bench also made an oral observation that, “You take a decision by August 15. Let him also celebrate Independence Day by then.” Reported the Hindustan Times.

Singh, who is said to be associated with the Bharatiya Janata Party and the Bajrang Dal, is serving life imprisonment not only for the murder of Australian missionary Graham Staines and his two sons, but also for the 1999 murder of Catholic priest Arul Das, who was shot with an arrow while fleeing a building that had been set on fire. Reported the new Indian Express. He was also convicted for the murder of Shaikh Rahman, a Muslim garment merchant, who was brutally assaulted, had his hands severed, and whose body and garment stall were set ablaze.

In July 2024, the Supreme Court had sought the Odisha government’s response on a plea filed through advocate Vishnu Shankar Jain seeking Singh’s remission of sentence and release, asserting that he met the state government’s criteria for granting remission (i.e. 25 years). The reformative theory of Justice V. R. Krishna Iyer was invoked and reliance was placed on the Court’s 2022 judgment permitting the premature release of the convict in the Rajiv Gandhi assassination case.

The current remission, therefore reflects a broader pattern in India of state governments ruled by the incumbent-BJP granting remission to those convicted in cases of gross communal violence. One such earlier instance was the release of the convicts in the 2002 Bilkis Bano gang rape and family murder case, a decision that remained in force until it was struck down by the Supreme Court.

It is worth noting that prior to this; Singh’s plea for remission has been evaluated on five separate occasions, and has been turned down each time, with the most recent rejection occurring in February 2024.

How the Remission Was Filed and Processed

Singh’s possible release has drawn political attention in the past. During a campaign for his release in 2022, when the BJD government was in power, Sudarshan TV editor-in-chief Suresh Chavhanke attempted to meet him in prison but was denied permission. Mohan Charan Majhi, (now the Chief Minister of Odisha), had also joined a protest outside the jail demanding Singh’s release. However, the Board’s consideration of Singh’s case was based on the prescribed remission process and the reports submitted by the relevant authorities. This clearly establishes that organised political demand for Singh’s release predates, by a considerable margin, the administrative process that has now produced it.

At its September 2025 meeting, the Board considered 107 cases. It recommended the release of 18 life convicts, rejected 75 applications, and deferred 14, including Singh’s. Singh’s case remained pending because the Board required a fresh report from his home district.

According to The Hindu, the State Sentence Review Board met in the first week of July 2026 to consider the premature release of eligible life convicts. Among the cases reviewed was that of Dara Singh. In his petition before the Supreme Court, he stated that he deeply regretted the offences committed over two decades earlier and sought an opportunity to “give back to society” through service-oriented work.  He also claimed that he bore no personal animosity towards the victims and described his actions as the result of “youthful rage.” Singh was 37 years old at the time of his arrest!

Under Odisha’s 2022 premature-release guidelines, a convict whose sentence has been commuted from death to life becomes eligible for remission consideration after 25 years in custody, subject to a recommendation from the State Sentence Review Board (SSRB) and government approval. Five out of six members of the SSRB belong to the executive branch of government. The presence of ruling-party legislators, when the CM has supported Singh’s release, on the deciding panel raises questions whether the government will independently apply its mind.

Comparison with the Bilkis Bano Case

Setting the two cases side by side is useful because they involve a similar factual pattern. In both instances, persons convicted of life imprisonment in communal hate-crime cases were considered for or granted premature release.

The release in Bano’s case followed a plea filed by one convict, Radheshyam Bhagwandas Shah, who argued he had already served over 15 years and sought early release. Shah had first tried this route in Gujarat, where the Gujarat High Court itself had indicated that Maharashtra, the state where his trial was actually conducted after the Supreme Court moved it there on Bano’s plea, was the appropriate government to decide his remission, not Gujarat. On May 13, 2022, Supreme Court order directed Gujarat (rather than Maharashtra) to decide the remission question. Acting on the Court’s direction, the Gujarat government formed a committee, which went on to recommend that the sentences of all 11 convicts in the case be remitted. The panel that granted remission included BJP legislators, the same party that governed Gujarat at the time of the riots. One of those legislators publicly defended the convicts by remarking that some of them were “Brahmins” with good values. Reported NDTV.

Several activists, along with Bilkis Bano herself petitioned the Court in November 2022. On January 8, 2024, Justices B.V. Nagarathna and Ujjal Bhuyan quashed the remission, holding that Gujarat was never the appropriate government and that the May 2022 order directing Gujarat to decide had itself been obtained by concealing material facts. The convicts were ordered back to prison within two weeks.

In Bano’s case, when the Gujarat government had released eleven convicts on August 15, 2022, they were welcomed with sweets and had their feet touched by supporters. Singh has for years been celebrated by sections of the Hindu right. Organisations such as the Dharmarakhyak Sri Dara Singh Bachao Samiti and Dara Sena have publicly campaigned for his release and portrayed him as a defender of Hinduism.

Given this, especially when the incumbent Odisha Chief Minister has also, before assuming office, expressed support for Singh’s release, there is a significant possibility that Singh’s release too will receive a public welcome similar to that accorded to the Bano’s convicts. The repeated public glorification of individuals convicted in cases of communal violence by organisations affiliated with or aligned to the BJP-RSS ecosystem raises serious concerns about the social and political messaging such releases convey.

While concealment of material facts was the decisive ground in Bano’s case, the Court also separately described Gujarat’s orders as stereotyped and passed without application of mind. Odisha’s Sentence Review Board considered Singh’s file within a batch of dozens of prisoners in a single sitting arguably meets the same structural vulnerability.

Five factors were decided in Laxman Naskar v. Union of India (2000), to decide on pre-mature release of convicts, namely:

i) Whether the offence is an individual act of crime without affecting the society at large?

ii) Whether there is any chance of future recurrence of committing crime?

iii) Whether the convict has lost his potentiality in committing crime?

iv) Whether there is any fruitful purpose of confining this convict any more?

v) Socio-economic condition of the convict’s family.

The first factor alone arguably requires reckoning with the fact that his is not a single offence but three separate convictions, spanning roughly a year, each targeting a different religious minority.

(The legal research team of CJP consists of lawyers and interns; this judgement primer has been worked on by Tanishka Shah)

Related:

Remembering the Graham Staines Murder

Bilkis Bano gets Justice: Supreme Court strikes down remission

De-coding the historic Bilkis Bano verdict

The post Dara Singh, convicted in string of 1999 communal killings, likely set for release by August 15 appeared first on SabrangIndia.

Background of the case and procedural history

 The appellants, Mayadhar Nayak and Baina Nayak, were daily wagers belonging to the Scheduled Castes, who served the Government Treasury Branch of SBI in Bhubaneswar as cleaners and sweepers for approximately three decades, starting in 1994 and 1995, respectively.

The appellants had previously approached the Court in 1999 regarding non-regularisation of service and denial of pay on par with temporary employees. This produced an interim protective order on October 28, 1999 where the Court said, “If there is work for the Petitioners, they may not be retrenched.” The Court had directed the Bank to pay them remuneration under the Minimum Wages Act and be allowed to continue working as long as work was available, without being substituted by new hands. The Court also asked the bank to consider their cases for regularisation if any vacancies arose.

In 2007, the appellants again approached the Court claiming that the Bank was seeking to fill up the posts of Sweepers and other menial staff without considering their claim for appointment. This time too, the Court asked the bank to consider their cases for regularisation if any vacancies arose, keeping in view the length of their engagement and the services.

In terms of the above order, Appellants were paid on September 17, 2021 the arrears of minimum wages quantified at Rs.1, 61,619/- , each, for the period between April, 2017 & June, 2021.

Around five years later, in 2012, the appellants filed another petition for their recognition as temporary employees, pay parity under the principle of ‘equal pay for equal work’, release of bonus for the financial year 2011–12, and extension of all temporary service benefits as granted to similarly situated employees of the Bank.

In 2020, the appellants another petition seeking regularisation of their services, contending that the Bank had regularised the services of a similarly situated employee engaged as a ‘Liftman’ at the time, the appellants were receiving a consolidated monthly remuneration of Rs.16,406/- while other temporary employees of the Bank were receiving Rs.27,443/-.

On June 20 2025, a single judge bench Justice S.K. Panigrahi which was hearing both the petitions together dismissed the appellants’ writ petitions finding all their claims unsustainable. The judgment read:

“While this Court does not disregard the long and uninterrupted service rendered by the petitioners, it is well-settled that mere length of service does not by itself confer a right to regularisation. The consistent position in law is that engagement on a daily wage or casual basis, however prolonged, cannot mature into a claim for regular appointment in the absence of sanctioned posts and adherence to a lawful selection process.” (Para 18).

In 2022, the Bank had sought permission to retrench the Appellants as being surplus workers.

On July 19, 2025, the appellants were retrenched by the bank as surplus workers under Section 25F of Industrial Disputes Act, 1947 and were paid roughly Rs. 3.31 lakh each as statutory compensation and payment due to a policy shift toward outsourcing driven by IT developments in banking.

The division bench presently hearing the case, had to decide whether

• the appellants, after nearly 30 years of service were entitled to regularisation and consequential monetary benefits,
• the previous court orders, which only directed the payment of minimum wages and conditional consideration for vacancies, barred the appellants’ current claims for regularisation, and
• what constitutes fair ‘remediable and reparative justice’ for manual labourers in an era of outsourcing and AI, when regularisation might impose an excessive financial burden on the employer.

High Court’s intervention

 The Division Bench partially allowed the appeals and set aside the order of the Single Judge through an order on May 18, 2026. In that it said:

“There appears to be a prima facie case for granting relief to the Appellants herein, who admittedly have put in service as Sweepers, first Appellant from 1994, and the second from 1995. The law, as it now stands in the June of its life, tilts in favour of the Appellant’s herein, inasmuch as, arguably, the impugned order of the learned Single Judge has missed the march”

• Declined Regularisation

The Court declined to order regularisation. Reliance was placed on Supreme Court’s rulings in Jaggo v. Union of India (2024), and Shripal v. Nagar Nigam (2025) but the Court noted it would cause the Bank to bear the brunt of losing huge money and that the appellants’ prior cases only resulted in a direction for minimum wages. At the same time, the Court observed that the appellants’ earlier rounds of litigation had not secured them much real benefit, since those orders only directed payment of minimum wages, which SBI had already paid. Because of this, the Bench held that the regularisation claim in the present appeals was, to an extent, barred by the principle of res judicata.

The Court then referred to a coordinate Bench’s order in Secretary, Berhampur Cooperative Central Bank Ltd. v. Bhaba Sundar Dalai (2026), where Rs 10 lakh had been awarded as compensation in lieu of regularisation. However, the Bench distinguished that case as there was no res judicata bar in it, and the employees’ service was comparatively shorter.

The Court took note of two mitigating factors specific to the present appellants, that they had roughly ten years left before superannuation, and that both belonged to Scheduled Castes, as relevant considerations in shaping the final relief.

• Justification for the Compensation Amount

In the May order, the Court had suggested both the sides to negotiate a settlement with fairness and justice. The SBI proposed to pay a lump sum compensation of Rs. 5 lakh to each of the appellants to settle the dispute. However, the appellants rejected the bank’s offer and during a personal interaction with the Court, they stated they would settle for Rs. 25 lakh each

The Court evaluated both proposals and described the Bank’s Rs. 5 lakh offer inadequate. It said:

“Rupees 5 lakh offer made by the Bank as compensation is too frugal to be mentioned, when bread is costlier than blood, Rupee value now-a-days dwindling down. The Appellants, who have given their sweat & blood, cannot seek gainful employment elsewhere at their present declining age. They were working only as sweepers with not much education nor with due social status.” (Para 7.3.2)

Instead, the Court awarded a lump sum compensation of Rs. 20, 00,000 (Twenty Lakh) to each appellant in lieu of regularisation and continued service.

While deciding the compensation amount, it remarked:

“In the AI era, we are not sure that they would be able to eke out their livelihood, having spent prime of their life blood in the menial job all these years. Even Rs.10 lakh compensation awarded by the Coordinate Bench to the workmen of a Cooperative Bank would not constitute a solid yardstick for determining what should be paid to these poor persons. Should Appellants be regularized in service, it would incur more expenditure than otherwise.” (Para 7.3.2)

The Bank was ordered to pay the total Rs. 40 lakh within eight weeks. Any delay would trigger an interest penalty (1% for the first month and 2% thereafter), which the Court directed should be recovered personally from the erring bank officials.

The full judgment may be read here:

Why Regularisation Never Came

 The Fifth Schedule to the Industrial Disputes Act, 1947, that designates certain practices as unfair labour practices includes:

 “10. To employ workmen as “badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.”

 For thirty years, and over 240 days annually, the appellants discharged their duty in continuity. For context, the Government Treasury Branch of the Bank occupies more than 11,000 square feet, spread over three levels comprising the upper basement, ground floor, and first floor. The premises include eight toilets and six urinals. The Appellants had been performing cleaning duties in the said premises along with outsourced employees.

The denial of regularisation and long-term benefits to contractual or temporary workers is a heavily litigated issue in India, and not unique to the present case. In Secretary, State of Karnataka v. Umadevi (2006) the Court clarified that temporary, daily wage, or contractual employees do not possess a legal or fundamental right to be made permanent. It held that a court cannot issue a writ of mandamus to make a worker permanent because the worker has no enforceable legal right to such a status, and the State has no legal duty to provide it outside of established rules. However, the Court also provided a narrow exception as a one-time measure for workers who have completed at least 10 years of service. Regularisation, it held, may be permitted where the appointment was irregular (meaning it suffered from a procedural flaw) but not illegal.

In Jaggo v. Union of India (2024), the Supreme Court said that the appellants’ long and uninterrupted service, for periods extending well beyond ten years, cannot be brushed aside merely by labelling their initial appointments as part-time or contractual. The essence of their employment must be considered in the light of their sustained contribution, the integral nature of their work, and the fact that no evidence suggests their entry was through any illegal or surreptitious route. The judgment read:

“The claim by the respondents that these were not regular posts lacks merit, as the nature of the work performed by the appellants was perennial and fundamental to the functioning of the offices. The recurring nature of these duties necessitates their classification as regular posts, irrespective of how their initial engagements were labelled. It is also noteworthy that subsequent outsourcing of these same tasks to private agencies after the appellants’ termination demonstrates the inherent need for these services. This act of outsourcing, which effectively replaced one set of workers with another, further underscores that the work in question was neither temporary nor occasional.” (Para 13)

In Mahanadi Coalfields Ltd. vs Brajrajnagar Coal Mines Workers Union (2024), the Court held that workers engaged to perform work of regular and perennial nature cannot be treated as contract labour.

Similarly, last year, in Shripal vs Nagar Nigam (2025), the Supreme Court while acknowledging the precedence in Umadevi, emphasised that workers performing duties that are integral, ongoing, and perennial to an institution’s functions should not be relegated to perpetual daily-wage status. The judgment authored by Justice Vikram Nath said:

“While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between “illegal” and “irregular” appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities.” (Para 26).

“Indian labour law strongly disfavours perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement.” (Para 15).

To continue extracting regular labour for decades while pleading a lack of sanctioned strength is a position the Court found legally and morally unsustainable in Dharam Singh vs State of UP (2025).

In January this year, in Bhola Nath vs The State Of Jharkhand (2026), the Court while finding the State’s refusal to regularise the workers who had served for over a decade to be a clear derogation of equality principles, directed the State to forthwith regularise the appellants against the sanctioned posts they were initially appointed to, granting them all consequential service benefits

Hence, while long service alone does not guarantee automatic regularisation, the Supreme Court has ruled that continuing workers in identical, perpetual roles on temporary wages while denying them benefits can be considered arbitrary and discriminatory.

During the litigation, the appellants in present case- Mayadhar Nayak supported his wife, two children, and a father aged about 80 years. On the other hand, Baina Nayak was the sole caretaker of a mentally and physically disabled child and another son, all of whom dependent on his meagre income of about Rs 16,000.

On paper, the Nayaks had reason to expect a better outcome. They approached the High Court as early as 1999 where a coordinate bench even secured them protection against retrenchment in 1999, and in 2007 the Court directed SBI to consider them if sweeper vacancies were filled. Yet each of these interventions never fruitioned into regularisation.

When two vacancies did arise after the 2007/2008 orders, SBI chose to outsource the cleaning function rather than fill the posts departmentally citing a policy shift attributed to changes in banking operations. Because this outsourcing decision was never independently challenged, it stood, and it extinguished the very condition on which the appellants’ continued engagement depended. Rather than terminating long-serving casual workers outright, the restructuring of the underlying work itself dissolved the employee’s along with the post. By the time the Division Bench heard the 2025 appeals, it held that the earlier 2007/2008 orders had already adjudicated.

Compensation and Delayed Justice

 Regularisation would have given the appellants a pension, medical benefits, promotional prospects, and crucially continued income until superannuation. A one-time payment, however large, is a terminal substitute.

 None of this is to say compensation is worthless. Rs20 lakh each is a materially significant, life-altering sum, and the Court’s insistence on interest for delay and personal liability of erring officials for that interest is a genuinely useful enforcement mechanism. But as a systemic remedy for decades of institutionalised casualisation, compensation calculated case-by-case, in peculiar facts and circumstances, explicitly disclaiming precedential value, plausibly should not substitute for either a binding regularisation scheme or statutory reform that removes employers’ incentive to keep essential, perennial work permanently temporary! While salary or lump-sum compensation prevents destitution, it does not cure systemic exploitation. Compensation is at best a consolation, and workers deserve justice, not just money. Compensation does little to restore lost career opportunities, dignity and security.

 “The Appellants have been fighting the legal battles since about three decades, complete justice eluding for one or the other reason,” acknowledged the Orissa High Court in the present case.

This is not unusual. Delay is a common feature of our judicial system. Labour disputes in India typically take somewhere between seven to ten years to reach a final judgment. Pendency of labour disputes in general for long period of time leads to frustration among workers.

The Delhi High Court recently flagged this delay directly, describing the backlog of pending labour matters before constitutional courts as a “sorry state of affairs” in the constitutional courts where the “poor labourers are forced to fight tooth and nail to get justice for themselves”. Reported the Indian Express.

Labour Law in the AI-era

 Tucked into the judgment’s compensation calculus, the Bench doubted the appellants could “eke out their livelihood… in the AI era,” having spent their working lives in menial labour with little education. This, on one level, was an acknowledgment that older, low-skilled workers pushed out of long-term employment have genuinely diminished prospects of re-entering the labour market. But it is worth reading as part of a broader, nascent judicial awareness that automation and technological change will compound the harm of insecure employment for low-skill, manual roles.

A public employer that outsources or automates a function bears a one-time restructuring cost but the displaced worker bears a lifetime cost, often without the education or capital to pivot into new work. The Court’s remark implicitly recognises this asymmetry, even if it does not translate it into a legal standard.

“Perennial nature of work” as a legal test may itself be eroding. Much of the jurisprudence on regularisation and contract labour assumes that if work is genuinely permanent, it should attract permanent labour protections. But work that was perennial for thirty years can be redefined as time-limited or eliminable through outsourcing plus technology, without ever being tested against the perennial nature standard in a contested proceeding.

Indian courts have long tied the right to livelihood, and by extension dignity, to Article 21. It would perhaps be an overreach to describe this as an emerging AI-era jurisprudence. But future litigants representing displaced casual workers in automating sectors like banking, toll collection, municipal sanitation may well cite this observation as an early judicial acknowledgment that technological displacement deserves distinct legal weight. The judges however have made it clear that this order is based on the facts of this case and they do not intend to make it a binding precedent or a Rule of Parity.

(The legal research team of CJP consists of lawyers and interns; this judgement primer has been worked on by Tanishka Shah)

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The post The Orissa High Court awards them Rs 20 lakh each to two SBI Sweepers appeared first on SabrangIndia.

The four, Danish Sheikh, Sweety Bibi and her two sons, re-entered India through the Mahadipur border in West Bengal’s Malda district after spending months stranded in Bangladesh following their deportation in June 2025. This was the period (May-June 2025) when huge such undocumented “push out” efforts were carried out by the authorities under some instructions issued by the union government at the centre. Their return comes months after Sunali Khatun, who was pregnant at the time of her deportation, and her young son Sabir were allowed to return to India on humanitarian grounds. Together, the cases have become emblematic of the risks posed by administrative errors in citizenship determination and the constitutional imperative of ensuring that no individual is deprived of liberty without due process.

Detailed piece on Khatun’s deportation may be read here.

According to Scroll, residents of Paikar village in West Bengal’s Birbhum district confirmed that Danish Sheikh, Sweety Bibi and her two sons returned to the state after the Union Government complied with judicial directions requiring their repatriation. The families have consistently maintained that they are Indian citizens from Birbhum and had been living and working in Delhi when they were detained during an identity-verification exercise.

The deportations formed part of a wider crackdown that followed the April 2025 terror attack in Pahalgam, Jammu and Kashmir. In the weeks that followed, police in several Bharatiya Janata Party-ruled states reportedly detained large numbers of Bengali-speaking persons, predominantly Muslims, and demanded documentary proof of Indian citizenship. Several individuals who allegedly failed to immediately establish their nationality were deported to Bangladesh. Subsequent investigations and court proceedings revealed that, in multiple cases, Indian citizens had been caught in the sweep.

Detailed report may be read here.

Few cases illustrate the devastating consequences of such errors more starkly than that of Sunali Khatun and her family. As reported by BBC News, Khatun, her husband Danish Sheikh and their young son were detained in Delhi after officials suspected that they were undocumented migrants. The family maintained throughout that they were Indian citizens from West Bengal. According to Khatun’s account, authorities failed to adequately verify the family’s claims or examine available evidence before initiating deportation proceedings.

The family was transported across the border into Bangladesh, where Bangladeshi authorities treated them as undocumented entrants and detained them. Instead of returning to the country of which they claimed to be citizens, they found themselves imprisoned in a foreign nation, separated from relatives and stripped of the protections ordinarily available under Indian law. What began as an administrative decision soon evolved into a humanitarian crisis.

The case exposed the extraordinary consequences of mistaken deportation. Unlike routine immigration enforcement, an erroneous determination of citizenship can sever families, deprive individuals of their nationality in practice, expose them to detention in another country and leave them without any effective legal protection. For those wrongfully deported, the consequences extend far beyond the loss of physical liberty—they amount to the denial of identity, dignity and constitutional safeguards.

The legality of these deportations soon came under judicial scrutiny. In September 2025, the Calcutta High Court, while deciding Bhodu Sekh v. Union of India & Ors. and the connected matter Amir Khan v. Union of India & Ors., delivered a strongly worded judgment directing the Union Government to bring back the deported families within four weeks.

The Division Bench of Justices Tapabrata Chakraborty and Reetobroto Kumar Mitra held that the authorities had acted in “hot haste” and failed to comply with basic procedural safeguards before deporting individuals who had asserted Indian citizenship. The Court found that the actions of the Delhi Police and the Foreigners Regional Registration Office (FRRO) raised serious concerns under Articles 14 and 21 of the Constitution and underscored that executive action, even in matters concerning illegal migration, must remain subject to constitutional limitations.

The Court directed the Union Government, through the Ministry of Home Affairs and the Indian High Commission in Dhaka, to facilitate the return of Sunali Khatun, Danish Sheikh and their son Sabir, along with Sweety Bibi and her two sons. In doing so, it reaffirmed that constitutional guarantees cannot be displaced by administrative expediency.

Detailed report may be read here.

The facts before the High Court painted a disturbing picture. According to the petitions, Sunali Khatun’s family was picked up by Delhi Police on June 24, 2025, during an identity-verification drive. Within forty-eight hours—and without any meaningful inquiry into their citizenship claims—they were deported to Bangladesh under orders issued by the FRRO under the Foreigners Act, 1946.

The petitioner’s case was that the family had longstanding roots in West Bengal. They possessed family members, land records and other documentary evidence linking them to Birbhum district. Significantly, Sunali’s Aadhaar and Permanent Account Number (PAN) records reflected her year of birth as 2000, directly contradicting the authorities’ assertion that she had entered India illegally in 1998—a claim that was factually impossible if the official records were accurate.

The petitioners further argued that the authorities had ignored the Ministry of Home Affairs’ own guidelines dated May 2, 2025, which required verification from the individual’s home State before deportation. They contended that no meaningful opportunity of hearing had been provided and that the deportations violated both statutory procedure and the constitutional guarantee of fairness.

The Union Government defended its actions by relying on Section 9 of the Foreigners Act, 1946, arguing that the burden of proving Indian citizenship rested upon the individuals concerned. It claimed that the detainees had failed to produce sufficient documents establishing their nationality and asserted that statements recorded during interrogation indicated that they were Bangladeshi nationals who had entered India illegally. The High Court, however, found that such disputed claims required proper verification and could not justify immediate deportation without following the prescribed legal process.

Supreme Court intervention and the government’s assurance

The Union Government challenged the Calcutta High Court’s directions before the Supreme Court, questioning both the High Court’s jurisdiction and its order directing the return of the deported individuals. However, the proceedings before the apex court marked a significant shift in the Centre’s position.

On May 22, 2026, the Union Government informed the Supreme Court that it would facilitate the return of the deported individuals to India and conduct a proper inquiry into their citizenship claims before taking any further action. Appearing before a Bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and Vipul Pancholi, Solicitor General Tushar Mehta submitted that, “keeping in view the peculiar facts and circumstances of the case,” the Government had decided to bring the individuals back and verify their citizenship status in accordance with law.

Detailed report may be read here.

Senior Advocate Sanjay Hegde, appearing for the affected families, requested that the Government’s assurance be formally recorded. Accepting the submission, the Supreme Court directed that the deported individuals be brought back to India and clarified that their continued stay would depend upon the outcome of a lawful inquiry into their citizenship claims. At the same time, the Court recorded the Government’s submission that the undertaking was being made in the peculiar facts of the case and should not be treated as a precedent for future deportation disputes.

The Centre informed the Court that the process of bringing the individuals back from Bangladesh would take approximately eight to ten days. The undertaking marked a notable departure from its earlier stand, under which it had defended the deportations as lawful exercises of executive power under the Foreigners Act.

The Supreme Court had, in fact, intervened even earlier in December 2025 in respect of Sunali Khatun. At the time, she was in an advanced stage of pregnancy and remained stranded in Bangladesh along with her young son. Considering the humanitarian dimensions of the case, the Court permitted their return to India while the dispute regarding citizenship remained pending. During those proceedings, the Bench observed that certain situations required “law to bend to humanity”—a remark that underscored the Court’s attempt to reconcile immigration enforcement with constitutional compassion.

Detailed report may be read here.

Constitutional questions beyond individual cases

The litigation has raised issues that extend far beyond the fate of a handful of families. At its core lies a fundamental constitutional question: can the State deport a person claiming Indian citizenship without first conducting a fair, thorough and lawful determination of that claim?

The Calcutta High Court answered this question emphatically in the negative. The Court observed that documentary material placed before it, including electoral records relating to members of the deportees’ families, prima facie indicated Indian lineage and warranted a detailed inquiry before any coercive action could be taken. Instead, the authorities acted with what the Court described as “hot haste”, deporting individuals within days of detention and without adhering to procedural safeguards contained in the Ministry of Home Affairs’ own guidelines.

The proceedings also highlighted the constitutional significance of Articles 14 and 21. Even where the State suspects an individual to be a foreign national, executive action must satisfy the requirements of fairness, reasonableness and due process. Citizenship disputes cannot be resolved through hurried administrative action that disregards evidence or deprives individuals of an effective opportunity to establish their identity.

The Government relied heavily on Section 9 of the Foreigners Act, 1946, which places the burden of proving citizenship upon the person concerned. However, the High Court made it clear that the statutory burden cannot justify dispensing with procedural fairness. Where credible evidence exists supporting an individual’s claim to Indian citizenship, authorities are required to conduct a meaningful verification before resorting to the irreversible step of deportation.

The cases have also revived discussion around the principle of non-refoulement—the international law norm prohibiting the forcible return of individuals to territories where they may face persecution, arbitrary detention or other serious harm. Although India is not a signatory to the 1951 Refugee Convention, Indian courts have repeatedly read elements of this principle into Article 21’s guarantee of life and personal liberty. The petitioners argued that deporting individuals without adequately determining their nationality violated these constitutional protections.

It is crucial to note that in the month of October 2025, a Bangladesh court had ruled that these six individuals were forcibly deported from Delhi as “illegal Bangladeshis”, and are in fact Indian citizens citing their Aadhaar and home addresses. Even pursuant to this, the Union government challenged the Calcutta HC order in the Supreme Court

Detailed report may be read here and here.

A reminder of the cost of administrative error

The legal battle reached an important milestone when Danish Sheikh, Sweety Bibi and her two sons finally returned to West Bengal through the Mahadipur border crossing in Malda district. Their return followed months of litigation and judicial scrutiny that ultimately compelled the Union Government to revisit its position.

Political and legal advocacy around the issue was not confined to the courtroom. Even before the present litigation reached the Supreme Court, the Trinamool Congress (TMC) had repeatedly raised concerns over the treatment of Bengali-speaking migrant workers and alleged instances of wrongful detention and deportation. In May 2025, Rajya Sabha MP Samirul Islam wrote to Union Home Minister Amit Shah seeking immediate intervention against the reported harassment, detention and violence faced by Bengali-speaking workers in BJP-ruled states. Around the same time, Berhampore MP Yusuf Pathan also expressed concern over reports that migrant labourers from his constituency were being systematically targeted in Odisha, calling for measures to ensure their safety and protection.

The issue soon reached the Supreme Court in a broader constitutional challenge. In August 2025, the Court sought responses from the Union Government and nine States on a petition filed by the West Bengal Migrant Welfare Board alleging that migrant labourers from West Bengal were being detained on unverified allegations of being illegal Bangladeshi immigrants. As reported by The Hindu, a Bench of Justices Surya Kant and Joymalya Bagchi acknowledged the State’s legitimate concern over illegal infiltration but observed that there must be a mechanism to identify and protect “bona fide workers.” The petition challenged the implementation of the Ministry of Home Affairs’ May 2, 2025 circular, contending that inter-state verification drives had resulted in arbitrary detention of genuine Indian citizens.

The party also remained actively involved after the deportations of the Birbhum families. In September 2025, TMC Rajya Sabha MP Samirul Islam visited the families of Sunali Khatun and Sweety Bibi in Murarai, Birbhum, after the two women and their children were allegedly pushed into Bangladesh despite claiming Indian citizenship. In a post on X, Islam described them as “bona fide Indian citizens” whose families had lived in Birbhum for generations and said the party, under Chief Minister Mamata Banerjee, was pursuing the matter before both the Calcutta High Court and the Supreme Court. He assured the families that every possible legal and institutional assistance would be extended, including enrolment in the State government’s Shramshree welfare scheme once the women returned to India.

Speaking to Scroll, Trinamool Congress MP Samirul Islam remarked that it was “only because of the judiciary’s intervention” that the Government ultimately brought back what he described as “poor Indian citizens.” While affirming that genuine foreign nationals could lawfully be deported, he questioned why Indian citizens should be subjected to harassment, detention and expulsion before their citizenship was properly verified.

For the affected families, the return to India represents only partial relief. Their citizenship claims are yet to be conclusively determined, and the litigation continues. Nevertheless, their repatriation serves as an acknowledgement that irreversible executive action cannot precede a lawful determination of nationality.

The episode also carries wider implications for citizenship verification exercises across the country. Since the Pahalgam terror attack, numerous reports by SabrangIndia and Citizens for Justice and Peace have documented allegations of Bengali-speaking Muslims being detained, questioned and, in some cases, deported without adequate verification. The present litigation demonstrates the serious constitutional consequences of such practices and reinforces the judiciary’s role as a safeguard against arbitrary executive action.

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

CJP has also been providing legal aid in cases of forced and illegal deportations. Details may be read here.

Ultimately, the case is not merely about immigration enforcement or citizenship documentation. It is about the constitutional obligation of the State to exercise its powers fairly, cautiously and in accordance with due process. A mistaken deportation is not a routine administrative error—it can separate families, expose individuals to imprisonment in a foreign country and effectively deprive them of their nationality. The return of these families, secured through persistent judicial intervention, stands as a reminder that constitutional guarantees acquire their greatest significance precisely when the State exercises its most coercive powers.

Related:

The Battle of Belonging: Why India’s Passport Controversy Matters

IR 2025-2026: A backdoor exercise to bring in the NRC?

SIR 2025-26: Dismantling the very Idea of India?

“They were once sent back”: Court refrains from probing State’s claim as Assam seeks to justify continued detention

The Uneasy Calm in Assam: The Limits of Control of a Nervous Government

The post The cost of a wrongful deportation appeared first on SabrangIndia.

Read the judgment primer by CJP here.

“Power tends to corrupt, and absolute power corrupts absolutely,” wrote the historian Lord Acton. Critics argue that legal protections governing the prosecution of offences by uniformed personnel have fostered a culture of impunity by making accountability more difficult. Over the years, members of India’s armed, paramilitary and police forces have been implicated in a range of serious offences against civilians, including rape, extrajudicial killings, staged encounters, culpable homicide, enforced disappearances, illegal detention, and custodial torture.

The 1991 in the villages of Kunan and Poshpora in Kashmir, the army personnel allegedly raped over 23 women in Kashmir (Human Rights Watch assessed the number of survivors at up to 100). It is gut wrenching but it is by no means the only one. In 2004, a 32-year old activist Thangjam Manorama was allegedly raped and murdered by the Indian paramilitary unit 17th Assam Rifles in Manipur. Following this, around twelve elderly women staged a naked protest outside the Assam Rifles headquarters. Their banner read: ‘Indian Army Rape Us.’

CREDIT: BBC News

In 2009, two women from Shopian in Kashmir were allegedly abducted, repeatedly gang-raped by soldiers, and murdered. Their bodies were recovered from a river.

In 2010, a 16-year-old Zahid Farooq Sheikh was shot and killed by BSF personnel as he was walking home from playing cricket with friends in Srinagar.

In 2015 and 2016, a National Commission for Scheduled Tribes (NCST) fact-finding report documented three instances of mass sexual violence including gang-rapes, physical assault, and looting by police and paramilitary personnel deployed on anti-Maoist operations in Chhattisgarh. The victims were Adivasi women, subsistence farmers. The report concluded that there had been a breakdown of discipline among the forces concerned.

In 2021, soldiers from the 21 Para Special Forces army unit shot and killed six coal miners in Nagaland’s Mon district, for mistaking the miners for militants.

These are only a few cases that reached the media. The structure of the law and the barriers to FIR registration in conflict areas means that for every case that surfaces, an unknown number do not.

In 2018, over 350 army personnel filed a petition in the Supreme Court to protect the AFSPA from being diluted. Its defenders argue that soldiers operating in counter-insurgency environments face split-second, life-or-death decisions. They are trained not to open fire unless they are fired upon, attacked, or have reasonable grounds to believe an attack is imminent. AFSPA was enacted in 1958 to enable the deployment of the armed forces in areas where the civil administration had failed to maintain law and order.  The legal protection under AFSPA is therefore justified, they contend, because actions taken during combat cannot be judged with the benefit of hindsight.

The criticism, however, is not that soldiers acting in good faith during genuine combat operations should be prosecuted. It is that the shield of prior sanction has repeatedly been invoked to protect those accused of abusing that power.

For instance, in Manorama’s case mentioned before, the post-mortem revealed injuries consistent with torture, including bullet wounds on her vagina. Most significantly, the Central Forensic Science Laboratory detected human semen on her clothing, suggesting that she had been sexually assaulted before her death. Yet the Assam Rifles invoked Section 6 of AFSPA to argue that no legal proceedings could continue without prior sanction from the Central Government. Manorama’s family questioned how acts such as rape, torture and the killing of an unarmed woman could ever be considered actions taken ‘in aid of civil power’ or in the exercise of official duty.

The full Human Rights Watch report can be accessed here.

Put very simply, there is no operational rationale for extending immunity to those who have abused the power, and specifically in the offence of rape. Unlike the use of force during an armed encounter, rape can never be characterised as a split-second military judgment or an act committed in good faith in the discharge of official duties. It is an intentional criminal act. The law offers no convincing explanation for why allegations of rape should be subject to the same procedural immunity as decisions taken during armed engagement.

According to Margot Walstrom, Special Representative of the UN Secretary-General on Sexual Violence in Conflict, “[Sexual violence] is a way of demonstrating power and control. It inflicts fear on the whole community. And it is unfortunately a very effective, cheap and silent weapon with a long lasting effect on every society.”

A 2019 paper titled ‘Violence against women by the army personnel’ reads, “Many in Mizoram do not even talk about those days when such trauma was so prominent as to bring gushes of trauma to them. Those instances have been simply called “troubles” and no discussion takes place, such is the trauma that has been inflicted on people.”

In India’s conflict zones, sexual violence has long been dismissed as ‘collateral damage.’ As an unfortunate but inevitable cost of maintaining order in disturbed areas. However, it arguably is a documented, recurring pattern of abuse that is shielded by law and enabled by institutional silence.

The severity and persistence of the reports surrounding rapes by uniformed personnel compelled the Justice Verma Committee constituted in the wake of the 2012 Nirbhaya gang-rape to specifically examine the position of women in conflict areas and recommend a review of the AFSPA. The committee explicitly said that women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country.

That was over fifteen years ago.

In the intervening period, India has overhauled its criminal law framework wholesale, replacing the Indian Penal Code, the Code of Criminal Procedure, and the Evidence Act with new statutes  expressly on the ground that the old laws were colonial relics. But the provisions of AFSPA, the Border Security Forces (‘BSF’) Act, the Army Act 1950, and the Disturbed Areas Act 1992 that shield uniformed personnel from prosecution for crimes committed against civilians remain untouched.

The Legal Architecture

Several statutory provisions form the backbone of security force immunity in India.

Section 197 of the Code of Criminal Procedure, 1973 (now Section 218 of the Bhartiya Nyaya Suraksha Sanhita ) requires government sanction before a court can prosecute judges and public servants, including armed forces and police officials, for offenses committed while discharging official duties unless the Central Government first grants sanction for prosecution. The Ministry of Home Affairs is vested with the authority to grant sanction for prosecution of public servants.

Section 47 of the BSF Act provides that BSF personnel accused of serious civil offences including  murder, culpable homicide not amounting to murder, or rape against civilians cannot ordinarily be tried by an internal Security Force Court, unless the offence was committed on active duty, outside India, or at a location specifically notified by the Central Government. Read alongside the sanction requirement, this provision can operate as a gap between two forums where civilian courts are barred without sanction and military courts barred by the section itself.

Similarly, Section 70 of the Army Act, 1950 specifies when military personnel cannot be tried by a court-martial for certain serious crimes against civilians.

According to section 6 of the AFSPA no prosecution, suit, or legal proceeding may be brought against any person acting under AFSPA without the prior sanction of the Central Government. This provision has operated in parts of the Northeast since 1958 and in Jammu and Kashmir since 1990.

How have the Courts acted?

In Sebastian Hongray v. Union of India (1984), the petitioner, a student from the Naga community contended that two men were unlawfully detained by the 21st Sikh Regiment during a combing operation in Huining village of Manipur. The Army could not produce or account for two men taken into custody and asserted that the men had left the army camp alive and that an extensive search, including a CBI enquiry, had failed to locate them in Manipur. The Court applied habeas corpus directly against the Union of India and later imposed exemplary costs. The Court said:

“As we are inclined to direct registration of an offence and an investigation, we express no opinion as to what fate has befallen to Shri C. Daniel and Shri C. Paul, the missing two persons in respect of whom the writ of habeas corpus was issued save and except saying that they have not met their tragic end in an encounter as is usually claimed and the only possible inference that can be drawn from circumstance already discussed is that both of them must have met an unnatural death. Prima facie, it would be an offence of murder. 

….

 It is not necessary to start casting a doubt on anyone or any particular person. But prima facie there is material on record to reach an affirmative conclusion that both Shri C. Daniel and Shri C. Paul are not alive and have met an unnatural death. And the Union of India cannot disown the responsibility in this behalf.”

A decade later, in Nilabati Behera v. State of Orissa (1993), the Supreme Court confronted the death of a man after arrest by the police. With characteristic directness, the Court held that the doctrine of sovereign immunity used to shield the State from civil liability has no place in proceedings for the enforcement of fundamental rights and that:

“There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions.”

“A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing,” was the Court’s observation in D.K. Basu v. State of West Bengal (1996) in which it issued a comprehensive set of binding guidelines governing arrest, documentation, medical examination, and notification of family members, and held that violation of these guidelines would render police officers personally liable for contempt of court. The Court reiterated that defence of sovereign immunity is not available to the State for the tortious act of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India.

In Naga People’s Movement of Human Rights v. Union of India (1997), the Supreme Court constitutionally upheld the validity of AFSPA. It also curated a list of ‘Do’s and Don’ts,’ in which the use of excessive force or retaliatory force by the Manipur Police or the armed forces of the Union was not permissible.

However, the provision that ASPA’s protection was not absolute and that it did not grant a ‘licence to kill indiscriminately’ remained a judicial aspiration rather than an enforceable limit.

Significantly in 2012, a division bench of Justices BS Chauhan and Swatenter Kumar while hearing the Pathribal case at the Supreme Court orally remarked that AFSPA gave very limited protection confined to action in discharge of duty and that rape and murder committed by its personnel should be considered a normal crime. The Court said that there is no question of sanction from the government before prosecution of offenders in such cases. Reported The Indian Express.

“You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” the bench said.  However, ultimately the Court held that where AFSPA’s protection applies, prior sanction from the Central Government is required before the criminal court can take cognizance of the offence but if the competent Army authority opts for trial by court-martial, no such sanction is needed.

In 2013, the Supreme Court affirmed that the power of the armed forces to seek trial before a General Security Force Court is not unlimited. In the case concerning the killing of a teenager by BSF personnel, a Bench of Justices Chandramauli Prasad and Ibrahim Kalifulla set aside a Jammu and Kashmir High Court order that had transferred the trial to a General Security Force Court under the BSF Act, 1968. The Court described the allegations against the accused as “very distressing” and held that merely because the personnel were on active duty in a disturbed area did not automatically entitle the BSF to claim jurisdiction. The Court also held that the commanding officer’s discretion to seek trial before a security force court was not absolute and had been exercised without considering the statutory restrictions requiring such a course to be necessary in the interest of discipline.

In Extra-Judicial Execution Victim Families Association (EEVFAM) v. Union of India (2016), the Court examined 1,528 alleged encounter killings by police and armed forces in Manipur between 1979 and 2012. A court-appointed Justice Hegde Commission investigated six cases and concluded that none were genuine encounters and that the security forces had exceeded their powers.

While hearing the case, a bench of Justices Madan B Lokur and U U Lalit rapped the Army for silence over the allegations and questioned the state government for not proceeding with these cases against them. “Don’t you want to inquire even if somebody makes such allegations against your people (Army personnel)? Are you saying whatever was done was legitimate,” the bench asked. “The reports clearly suggest that the girl was subjected to rape. You are creating a stonewall and you do not want to break that stonewall. You have not tried anything. You have not asked the Army to handover the custody of the alleged culprits,” the Court added.

In its 2017 judgment, the Supreme Court held that even in a disturbed area under AFSPA excessive or retaliatory force is prohibited and ordered every death caused by the armed forces or police to be thoroughly enquired into.

“It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the State. The law is the same for both and is equally applicable to both,” the order read.

The EEVFAM litigation remains alive as a continuing mandamus.

Still, it is relatively uncommon for allegations of rape against armed forces personnel to culminate in prosecution before ordinary civilian criminal courts. Instead, cases have often been dealt with through the military courts, if dealt at all. When convictions have resulted from court-martial proceedings, civilian High Courts have generally examined them in the exercise of judicial review rather than hearing the criminal case at first instance.

In Captain Vinod Kumar vs State of J&K (2012), the Jammu and Kashmir High Court heard the case of two members of the 8th Battalion JAKLI who allegedly broke into a residential house in Poonch and repeatedly raped two women, aged 18 and 24, in front of the victims’ young children. The Army’s Commanding Officer initially opted in 1999 for the accused to be tried by a civil criminal court rather than a Court-martial. However, the petitioners challenged this. The Court ruled that the trial should not be abandoned and rejected the idea that army personnel should go ‘Scott free’ due to procedural errors. It famously noted that “Crime does not die in this manner” and emphasized that the seriousness of a rape charge outweighs technical procedural wrangles.

In 2014, a division bench of the Jammu and Kashmir High Court upheld the sentence by the Summary General Court Martial which found four army personnel guilty of rape and sentenced them to ten years of rigorous imprisonment and dismissal from service. The Court ruled that Court Martial proceedings can only be invalidated if there is a breach of fundamental procedural rules that renders the trial illegal. The Court emphasized that there cannot be “any compromise with the standards and maintenance of discipline in the army. They are not only the sentinels of the frontiers of the country but are also sacred guards of the rights of the people. Any invasion of the rights of the people by this kind of force cannot be tolerated.”

Where the Courts have deferred.

Despite this increasingly robust jurisprudential framework limiting blanket immunity under AFSPA, accountability has remained elusive. More than three decades after the alleged mass rapes in Kunan and Poshpora, judicial and investigative orders have been repeatedly challenged, stayed, or left unresolved. In 2015, the Jammu and Kashmir High Court stayed the Magistrate’s order directing further investigation after objections by the Army. Separately, the State challenged the recommendation of the Jammu and Kashmir State Human Rights Commission awarding compensation to the survivors before the Supreme Court. In its report, the Commission observed that the Director General of Police had attempted to “push the collective crime committed by the army personnel under the carpet” and that the medical evidence pointed towards gang rape. Following the abrogation of Article 370, the State Human Rights Commission itself ceased to exist, while the compensation proceedings remain pending before the Supreme Court and the criminal proceedings continue to languish without final adjudication. Reporter The Outlook.

The litigation in Extra Judicial Execution Victim Families Association (EEVFAM) continues as a court-monitored process nearly a decade after the Supreme Court’s landmark rulings. Thangjam Manorama Devi’s case, despite forensic evidence suggestive of sexual assault and repeated judicial scrutiny, has similarly failed to result in criminal prosecution. In these cases justice has been deferred through prolonged litigation, jurisdictional objections, repeated appeals, and institutional inaction. The consequence is much the same that is the promise of accountability remains suspended indefinitely.

According to Rishika Arora and Iyina Grover, there is a requirement for a new protocol for protecting the women in an armed conflict. Women’s participation in the drafting of future laws and their appointment as judicial officers in army tribunals are essential steps. The concept of the court martial must be women-oriented.

The Justice Verma Committee recommendations are as follows:

1.  Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law;
2. Special care must also be taken to ensure the safety of women who are complainants and witnesses in cases of sexual assault by armed personnel;
3. There should be special commissioners – who are either judicially or legislatively appointed – for women’s safety and security in all areas of conflict in the country. These commissioners must be chosen from those who have experience with women’s issues, preferably in conflict areas. In addition, such commissioners must be vested with adequate powers to monitor and initiate action for redress and criminal prosecution in all cases of sexual violence against women by armed personnel;
4. Care must be taken to ensure the safety and security of women detainees in police stations, and women at army or paramilitary check points, and this should be a subject under the regular monitoring of the special commissioners mentioned earlier;
5. The general law relating to detention of women during specified hours of the day must be strictly followed;
6. Training and monitoring of armed personnel must be reoriented to include and emphasize strict observance by the armed personnel of all orders issued in this behalf;
7. There is an imminent need to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible. This is necessary for determining the propriety of resorting to this legislation in the area(s) concerned; and
8. Jurisdictional issues must be resolved immediately and simple procedural protocols put in place to avoid situations where police refuse or refrain from registering cases against paramilitary personnel.

Those recommendations remain unimplemented.

The Supreme Court has already suggested that AFSPA’s protection is limited to acts conducted in the line of duty, and that offences such as rape and murder are ordinary crimes that do not require special courts. The incorporation of these suggestions remains awaited because the nation will not fully deliver on its constitutional promise until its laws place all citizens, including those in its border areas and conflict zones, on an equal footing before justice.

“The primary task of the armed forces of the Union is to defend the country in the event of war or when it is face with external aggression. Their training and orientation defeat the hostile forces. A situation of internal disturbance involving the local population requires a different approach. Involvement of armed forces is handling such a situation brings them in confrontation with their countrymen. Prolonged or too frequent deployment of armed forces for handling such situations is likely to generate a feeling of alienation among the people against the armed forces who by their sacrifices in the defence of their country have earned a place in the hearts of the people,” said the Court in  Naga People’s Movement of Human Rights in 1997.

Nearly three decades later, that warning remains as relevant as ever.  The Mizoram conviction in the 2017 case is still, in this landscape, a welcome anomaly even though it took the Court nine years to reach a decision because it shows what the system is capable of.  The guarantee that every woman in a conflict area who files a complaint will have her case heard by a court that is independent of the institution she is accusing is perhaps the minimum that the Constitution already promises and what the Mizoram court, in its judgment of June 2026, briefly delivered.

(The legal research team of CJP consists of lawyers and interns; this judgement primer has been worked on by Tanishka Shah)

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The post Promising Principles Poor Outcomes: What the judicial record on security force accountability actually shows appeared first on SabrangIndia.