The Magistrate issued a clear direction on October 7, 2016, ordering the police to register an FIR and conduct an investigation. However, the Station House Officer (SHO) of Police Station Tikait Nagar, District Barabanki, ignored the order for four months. Due to this inaction, the petitioner filed the present writ petition, seeking a mandamus directing the police to comply with the judicial order.

Issues

1. Can the police ignore a judicial order passed under Section 156 (3) CrPC for registering an FIR and conducting an investigation?
2. What are the consequences of non-compliance by police officers with a court’s directive regarding FIR registration?
3. Is the petitioner entitled to compensation for the delay and harassment faced due to police inaction?

Observations

The High Court took a stern view of the police’s refusal to comply with a clear judicial direction. It noted that:

• The registration of an FIR is mandatory when a cognizable offense is disclosed, as per Section 154(1) CrPC. The police have no discretion to ignore such information.

“…It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent…” (Para 23)

• The Magistrate had already applied judicial mind under Section 156(3) CrPC before ordering the registration of an FIR. The police had no authority to question or delay the implementation of this order.

“In the considered opinion of the court. the police has no discretion not to register F.I.R. in a case in which direction has been issued by a Magistrate under Section 156(3). Cr.P.C. in such cases, as held in the above noted judgment, the Magistrate has already applied his mind in regard to prima facie commission of a cognizable offence, before issuing a direction under Section 156(3). Cr.P.C. it therefore follows that once a direction is issued by the Magistrate under Section 156(31. Cr.P.C. to register a case and investigate, law mandates that substance of the information is entered in the prescribed form and start investigation. The police in such cases has no discretion to delay registration of the case so as to verify facts, or even to consider whether cognizable offence has been committed.” (Para 19)

• Ignoring a judicial order for several months undermines the administration of justice and erodes public confidence in the criminal justice system.

“The court would be failing in its duty by merely disposing of this petition as infructuous, the crime having been registered. A large number of cases of this nature are coming up before this court wherein even though a judicial order is passed directing registration of case and investigation, yet the orders are ignored by the Station House Officers of the concerned Police Station in total disregard to the administration of justice and their statutory duties.” Para 10

• The delay in registering the FIR weakened the case, as evidence is often lost or destroyed over time, especially in cases of sexual assault.

“Needless to say that on account of delay in registering the crime and consequent investigation, the evidence is not only lost or diluted, the victim of offence is also harassed and tormented. After offence of rape is committed, the victim in any case is physically and mentally shattered. To make the matter worse, the crime was not registered, whereas it is the statutory duty of the Station House Officer of the concerned Police Station to register a cognizable case. Even after passing of order by the Magistrate, the Station Officer ignored the order for no reason.”   (Para 18)

Outcome and Significance

• The court imposed exemplary costs of ₹50,000, to be recovered from the responsible police officers, as a deterrent against such misconduct.

“Vide order dated 7.2.2017, above extracted, we asked for a cause as to why exemplary costs in the sum of Rs. 50,000/- be not imposed for non-compliance of order dated 7.10.2016. No satisfactory or other explanation has come forth from the Station Officer. Rather Superintendent of Police, Barabanki has made it evident through his affidavit that Station Officer was at fault in ignoring the order passed by the Magistrate.” (Para 19)

• The High Court reiterated that compliance with judicial orders is not optional and that law enforcement officers must act with diligence. (Para 20)
• The Superintendent of Police was directed to ensure compliance with court orders in future cases. (Para 21)

This judgment is significant in upholding judicial authority over law enforcement and reinforcing the principle that police officers cannot arbitrarily refuse to register FIRs when directed by a court. It also underscores the right of victims to seek legal remedies when law enforcement agencies fail in their duty.

The judgment in the case Sangita Devi v. State of U.P & Ors. 2017 (5) ALJ 705, Allahabad High Court may be read here:

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

Related:

Law on Arrest and Detention: Know your rights!

Fundamental Rights Upheld: Court rules delay in communicating grounds of arrest violates due process

The post Judicial orders must be followed, rules Allahabad High court appeared first on SabrangIndia.

A victory against injustice

After months of relentless efforts by CJP’s legal team, the Foreigners Tribunal finally ruled in Micharan Bibi’s favour, officially declaring her an Indian citizen. The tribunal recorded evidence on March 14, 2024 and February 15, 2024, during which Micharan Bibi and her witnesses testified. The final arguments were heard on November 5, 2024, and the tribunal delivered its order on December 10, 2024.

The moment she received the judgment, she was overwhelmed with emotion. “I am an Indian, yet they harassed me! For a year, I couldn’t sleep or eat properly, but you always stood by me,” she said tearfully, expressing gratitude to the CJP team for their unwavering support.

To commemorate this hard-fought victory, representatives from CJP’s Team Assam, including Assam State Incharge Nanda Ghosh and legal team members Advocate Dewan Abdur Rahim and Sohidul Hussain, visited Micharan’s home to personally hand over the official order copy. Their presence underscored the significance of this triumph—not just for Micharan, but for all those who continue to face similar challenges.

Who is Micharan Bibi?

Micharan Bibi was born around 1950 to Kasem Ali (also known as Kasem or Kasam Ali) and Daliman Bibi (also known as Daliman) in Salmara Gaon, a village that was originally part of Bijni Police Station but now falls under Manikpur Police Station in Bongaigaon District, Assam (formerly part of undivided Goalpara). She spent her childhood and early years in the same village.

Her father passed away around 1980, followed by her mother’s death in 1981.

In 1971, Micharan Bibi married Abdul Khalek, son of Mahej Sheikh, from Salmara Gaon. After marriage, she moved in with her husband and his family in the same village, where she continued to reside under Manikpur Police Station, Bongaigaon District, Assam.

A nightmare unfolds

Micharan Bibi’s ordeal began when she received a shocking notice from the authorities in 2022, accusing her of being an illegal entrant, a foreigner. This notice came nearly 18 years after the case was registered in 2004, exposing a serious procedural lapse. The notice was also barred by limitation. The initial 2004 investigation was also found on examination to have inherent flaws as several such “preliminary investigations” and “inquiries” have been found to. Reports are often filed without any efforts from the Assam border police of thorough investigation or verification of facts, and the same applied in Micharan Bibi’s case too.

The notice instilled deep fear and anxiety in her, disrupting her daily life and leaving her sleepless and unable to eat properly.

The case against her was fraught with serious procedural lapses. It was Micharan’s claim that the investigating officer (I/O) responsible for verifying her citizenship submitted a fabricated inquiry report without conducting any proper investigation. The officer neither visited Micharan’s residence nor interviewed any witnesses. Instead, the report was based on false statements, making baseless allegations against her. Throughout the process, Micharan consistently denied the accusations, asserting her rightful Indian citizenship.

Team CJP Assam with Micharan Bibi outside her home

CJP’s legal intervention and the fight for justice

Recognising the injustice she faced, Citizens for Justice and Peace (CJP) stepped in to provide Micharan with much-needed legal aid and support. CJP’s legal team of Assam meticulously built her defence, challenging the flawed I/O report and presenting irrefutable evidence proving her Indian citizenship.

One of the key arguments presented by CJP’s legal team was that Micharan’s name appeared on the electoral rolls—an undeniable indicator of Indian citizenship. Additionally, they provided substantial documentary proof, including records establishing her family’s long-standing presence in India. Her parents’ and grandparents’ names were found in both voter lists and land records, reinforcing her legitimate status as a citizen by birth and also of being a permanent resident of Assam.

Moreover, CJP’s lawyers pointed out a significant legal lapse: the case against Micharan was time-barred and limited by delay. Although it had been registered in 2004, she was only served the notice in 2022—an unacceptable delay under the law.

Enduring hardship: A road accident amidst the legal struggle

As if the legal battle was not distressing enough, Micharan suffered a severe setback when she was involved in a road accident while traveling to attend proceedings at the Foreigners Tribunal. The accident resulted in serious injuries to her legs and hands, leaving her bedridden for nearly two months. Her already fragile emotional state worsened as she endured immense physical pain while simultaneously battling the system to reclaim both her identity and dignity.

Details of the order of the Foreigners Tribunal

The Foreigners Tribunal No.1, Bongaigaon, Assam, delivered its order on December 10, 2024, declaring Micharan Bibi, wife of the late Abdul Khalek and daughter of the late Kasem Ali, to be an Indian citizen. This case arose from a reference made under Rule 2(1) of the Foreigners’ (Tribunal) Order, 1964, wherein the tribunal was required to determine whether Micharan Bibi was a foreigner who entered Assam after March 25, 1971. The proceedings were based on the provisions of the Foreigners Act, 1946, under which the burden of proving citizenship rests on the person accused of being a foreigner.

During the proceedings, Micharan Bibi presented fourteen crucial documents in support of her claim of being an Indian citizen. These included an extract from the 1951 National Register of Citizens (NRC) listing her grandfather, father, mother, and aunt, as well as certified copies of voter lists from 1966, 1971, 1997, 2006, 2011, 2015, and 2022, documenting her family’s continuous residence in Assam and her own inclusion as a voter.

Additionally, she submitted her Electoral Photo Identity Card (EPIC), a Panchayat Certificate from the Secretary of No. 4 Nowapara Gaon Panchayat confirming her long-standing residency, and a School Certificate dated March 22, 1994, issued by the Head Teacher of Barbakhara L.P. School, which verified her studies and confirmed her father’s identity as Kasem Ali.

The tribunal examined whether Micharan Bibi had successfully proven two key points: that she was the daughter of Kasem Ali and Daliman Bibi and that her parents were Indian citizens residing in Assam before March 25, 1971. The tribunal relied heavily on her School Certificate, which listed her as the daughter of Kasem Ali of Salmara village, a fact corroborated by the school’s admission register from 1956. Furthermore, voter lists from 1966 and 1971 containing her parents’ names solidified her claim of lineage. The 1951 NRC entry, along with the voter lists, established that her father and mother had been residents of Assam well before the cut-off date, making them Indian citizens. Since Micharan Bibi was their daughter, she too was deemed an Indian citizen by birth. The tribunal also noted that she had consistently participated in elections from 1971 onwards, even after the case had been registered against her, further reinforcing her status as a legitimate Indian citizen.

After considering all the evidence, the tribunal ruled that Micharan Bibi had successfully discharged the burden of proof required under Section 9 of the Foreigners Act, 1946. It concluded that she was not a foreigner and had been wrongfully accused of being an illegal migrant.

This case underscores the systemic failures in Assam’s citizenship verification process, where individuals, particularly from marginalised communities, are often wrongly accused of being foreigners due to procedural errors and fabricated reports. The judgment not only restores Micharan Bibi’s legal identity and dignity but also highlights the critical role of legal intervention in preventing wrongful exclusions. Her case sets a significant precedent for others facing similar challenges under Assam’s Foreigners Tribunal system.

The order can be viewed here.

The broader impact of CJP’s work

CJP’s relentless efforts in Assam have provided a lifeline to hundreds of individuals and families trapped in the quagmire of Assam’s citizenship crisis. With a dedicated network of community volunteers, district-level motivators, and legal professionals, CJP offers paralegal assistance, legal counselling, and full-fledged legal representation to those unfairly accused of being foreigners.

In Micharan Bibi’s case, CJP’s legal team left no stone unturned in their fight to establish the truth. Their dedication ensured that an elderly woman, unjustly branded as a foreigner, was finally able to reclaim her rightful place as an Indian citizen.

Her story stands as a powerful reminder of the ongoing battle for justice in Assam. It exemplifies the impact of committed advocacy in defending the rights of the marginalised and resisting systemic injustices. As Micharan poignantly stated, “I may not be able to give you anything in return, but the Almighty will bless all of you.”

CJP’s work continues, one case at a time, bringing hope to those left vulnerable by a deeply flawed system and reaffirming the fundamental right to citizenship and dignity for all.

Related:

Relentless Pursuit of Justice: CJP’s Advocacy for Citizenship Rights in Assam

CJP triumphs in securing bail for Assam’s Sahid Ali: A step towards restoring citizenship

Tragic victory: Citizenship restored for Assam’s Sabaruddin after his passing

Assam citizenship crisis: Aadhaar unlocked, lives shackled

The post Citizen, Not Foreigner: Micharan Bibi’s citizenship restored after year-long battle appeared first on SabrangIndia.

Rupesh Kumar Singh, an independent journalist from Jharkhand, has been in custody since July 2022 under the Unlawful Activities (Prevention) Act (UAPA) for allegedly having links with the Communist Party of India (Maoist) and arranging funds for them. His arrest followed his journalistic work on displacement, industrial pollution, and alleged state excesses, which many believe led to his prosecution as an act of state repression against dissenting voices.

Singh was initially not named in the FIR but was later implicated based on alleged digital evidence obtained from co-accused individuals. His previous encounters with the authorities include a 2019 arrest under similar charges, where he was eventually released on default bail due to the failure of the police to file a chargesheet in time. His arrest came days after he posted a Twitter thread on environmental degradation in Jharkhand, raising concerns over state surveillance and retaliation against critical journalism.

His case mirrors a broader crackdown on journalists, activists, and human rights defenders under UAPA. Notably, student leader Umar Khalid, Khalid Saifi and Gulfishan Fatima remain behind bars as under trials and Father Stan Swamy, an 84-year-old tribal rights activist, died in jail while facing questionable UAPA charges. These instances reflect a growing trend of using stringent anti-terror laws to silence dissent.

The United Nations Human Rights Office has also expressed concern over the misuse of UAPA in India, urging the government to review its application and ensure that it is not being used to target dissenting voices. The UN specifically called for the dropping of charges against Arundhati Roy and Sheikh Showkat Hussain, who were prosecuted under UAPA for their comments on Kashmir.

Supreme Court’s decision

On January 27, 2025, the Supreme Court, comprising Justices M.M. Sundresh and Rajesh Bindal, dismissed Singh’s Special Leave Petition (SLP) against the Jharkhand High Court’s order denying him bail. The Court stated that it was “not inclined to interfere” with the High Court’s decision, thereby upholding the denial of bail.

The apex court’s order did not provide detailed reasoning beyond affirming the High Court’s conclusions, which raises significant concerns about judicial oversight in politically sensitive cases. This decision effectively keeps Singh incarcerated without trial, reflecting the stringent nature of UAPA bail provisions and their impact on civil liberties.

Supreme Court’s decision

On January 27, 2025, the Supreme Court, comprising Justices M.M. Sundresh and Rajesh Bindal, dismissed Singh’s Special Leave Petition (SLP) against the Jharkhand High Court’s order denying him bail. The Court stated that it was “not inclined to interfere” with the High Court’s decision, thereby upholding the denial of bail.

The order may be read here:

The apex court’s order did not provide detailed reasoning beyond affirming the High Court’s conclusions, which raises significant concerns about judicial oversight in such sensitive cases. This decision effectively keeps Singh incarcerated without trial, reflecting the stringent nature of UAPA bail provisions and their impact on civil liberties.

Legal Issues Involved

1. Application of UAPA’s stringent bail provisions:

• The High Court and Supreme Court relied on Section 43 D(5) of the UAPA, which mandates that bail cannot be granted if the court believes the allegations are “prima facie true.” The threshold for bail under UAPA is significantly higher than in regular criminal cases
• The courts have interpreted “prima facie true” broadly, often placing the burden of proof on the accused, rather than requiring the prosecution to demonstrate substantial evidence at the bail stage.

2. Lack of independent evidence against Singh:

The primary evidence against Singh appears to be electronic data allegedly recovered from an SSD card seized from a co-accused. His defence argues that:

• No direct incriminating evidence was found from Singh’s residence or personal devices.
• The alleged videos and photographs are inconclusive in proving any criminal intent or Maoist affiliation.
• Digital evidence can be easily manipulated, and its authenticity should be scrutinized before being treated as conclusive proof.

Violation of fundamental rights:

• Singh’s arrest and prolonged detention raise concerns under Article 19(1)(a) (freedom of speech and expression) and Article 21 (right to life and personal liberty) of the Indian Constitution.
• The Committee to Protect Journalists (CPJ) and United Nations Special Rapporteur on Human Rights Defenders have highlighted Singh’s case as an example of state-led suppression of press freedom
• His prosecution under UAPA fits a pattern of using anti-terror laws to target activists, journalists, and dissidents.

A slew of judgements of the constitutional courts analysed by our team below illustrate how bail under this draconian counter-terror law has been addressed. Before this, in 2020, our team had analysed how various courts dealt with the issue of bail under the stringent UAPA. That legal resource may be read here.

Precedents

Observations of the Supreme Court in Thwaha Fasal v. Union of India (2021)

The Supreme Court in Thwaha Fasal v. Union of India (2021) clarified the necessity of an independent judicial assessment in bail matters under the UAPA. The Court observed that:

1. Mere membership in a banned organisation does not amount to criminal activity: The Court ruled that the prosecution must establish a direct and substantial connection between the accused and the alleged unlawful activities. A person cannot be denied bail solely on the basis of association.

On plain reading of Section 38, the offence punishable therein will be attracted if the accused associates himself or professes to associate himself with a terrorist organisation included in First Schedule with intention to further its activities. In such a case, he commits an offence relating to membership of a terrorist organisation covered by Section 38. The person committing an offence under Section 38 may be a member of a terrorist organization or he may not be a member. If the accused is a member of terrorist organisation which indulges in terrorist act covered by Section 15, stringent offence under Section 20 may be attracted. If the accused is associated with a terrorist organisation, the offence punishable under Section 38 relating to membership of a terrorist organisation is attracted only if he associates with terrorist organisation or professes to be associated with a terrorist organisation with intention to further its activities. The association must be with intention to further the activities of a terrorist organisation. The activity has to be in connection with terrorist act as defined in Section 15. Clause (b) of proviso to sub-section (1) of Section 38 provides that if a person charged with the offence under sub-section (1) of Section 38 proves that he has not taken part in the activities of the organisation during the period in which the name of the organisation is included in the First Schedule, the offence relating to the membership of a terrorist organisation under sub-section (1) of Section 38 will not be attracted. The aforesaid clause (b) can be a defence of the accused. However, while considering the prayer for grant of bail, we are not concerned with the defence of the accused. (Para 13)

2. Independent judicial scrutiny is essential: Courts cannot mechanically accept the prosecution’s claims under Section 43D (5) of the UAPA. The judiciary must conduct a thorough review of the material evidence before concluding that the allegations are “prima facie true.”

“..By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise..” (Para 21)

3. The Court emphasised that the offences under Sections 38 and 39 require mens rea (guilty intent). Mere association or possession of Maoist literature does not satisfy the requirement of intention unless there is active participation or acts showing furtherance of terrorist activities.

“Thus, the offence under sub-section (1) of Section 38 of associating or  professing to be associated with the terrorist organisation and the offence relating to supporting a terrorist organisation under Section 39 will not be attracted unless the acts specified in both the Sections are done with intention to further the activities of a terrorist organisation. To that extent, the requirement of mens rea is involved. Thus, mere association with a terrorist organisation as a member or otherwise will not be sufficient to attract the offence under Section 38 unless the association is with intention to further its activities.” (Para 15)

4. The Court reiterated that constitutional courts retain the power to grant bail despite the strict conditions in UAPA, especially when prolonged incarceration violates fundamental rights. The accused had already been in custody for over 570 days, and the trial was unlikely to conclude soon. The Court restored the Special Court’s order granting bail to the accused.

“As held in the case of K.A. Najeeb (supra), the stringent restrictions imposed by sub-section(5) of Section 43D, do not negate the power of Constitutional Court to grant bail keeping in mind violation of Part III of the Constitution. It is not disputed that the accused no. 1 is taking treatment for a psychological disorder. The accused no. 1 is a student of law. Moreover, 92 witnesses have been cited by the prosecution. Even assuming that some of the witnesses may be dropped at the time of trial, there is no possibility of the trial being concluded in a reasonable time as even charges have not been framed. There is no minimum punishment prescribed for the offences under Sections 38 and 39 of the 1967 Act and the punishment can extend to 10 years or only fine or with both. Hence, depending upon the evidence on record and after consideration of relevant factors, the accused can be let off even on fine. As regards the offence under Section 13 alleged against accused no. 2, the maximum punishment is of imprisonment of 5 years or with fine or with both. The accused no. 2 has been in custody for more than 570 days.” (Para 42)

The judgement in Thwaha Fasal v. Union of India (2021) may be read here:

Observations in Javed Ghulam Nabi Shaikh v. State of Maharashtra (2024)

1. The appellant has been in custody as an undertrial prisoner for four years. The trial court has not yet framed charges. The prosecution intends to examine at least 80 witnesses, making the conclusion of the trial uncertain.

“Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects: 

(i)  The appellant is in jail as an under-trial prisoner past four years; 

(ii)  Till this date, the trial court has not been able to even proceed to frame charge; and 

(iii)  As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses.” (Para 7)

2. The court emphasized that howsoever serious a crime may be, an accused has a fundamental right to a speedy trial under Article 21 of the Constitution.

“Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.”  (Para 8)

3. The appellant remains an accused, not a convict.  The fundamental principle of criminal jurisprudence—that an accused is presumed innocent until proven guilty must not be ignored.

“We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.” (Para 20)

4. The court noted that jails are overcrowded, and undertrial prisoners suffer due to delayed trials. It referred to Mohd Muslim @ Hussain v. State (NCT of Delhi) (2023 INSC 311), highlighting that prolonged incarceration has severe social and psychological consequences. (Para 14)

5. The court referred to Section 19 of the National Investigation Agency Act, which mandates that trials must be conducted on a day-to-day basis.

“The requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008 (hereinafter being referred to as “the 2008 Act”) mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008.” (Para 15)

6. In Union of India v. K.A. Najeeb (2021) 3 SCC 713, the court held that statutory restrictions on bail (like UAPA’s Section 43-D (5)) cannot override constitutional rights. The court reiterated that when trials are excessively delayed, bail should not be denied solely based on the severity of the offence. (Para 16)

7. The judgment noted that criminals are made, not born, and the criminal justice system should consider social and economic factors that may influence crime. The court emphasized that justice should be tempered with humanity, quoting the principle that “Every saint has a past, and every sinner a future.”

“Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.” (Para 18)

The judgement in Javed Ghulam Nabi Shaikh v. State of Maharashtra (2024) may be read here:

Observations in Jahir Haq v. State of Rajasthan (2022)

1. The appellant had been in custody as an undertrial for almost 8 years (since 08.05.2014). Only 6 out of 109 witnesses had been examined so far, indicating an unreasonably delayed trial. The trial court estimated that the case might take 2-3 more years for completion.
2. The Supreme Court had directed priority examination of three prosecution witnesses who had raised concerns about threats to their lives.

Among these witnesses: One (Devendra Patel) was declared hostile. The other two (Hemant and Pappuram) did not provide any deposition implicating the appellant. The State’s case was largely based on the appellant’s alleged communication (31 conversations) with a co-villager, who was accused of being a sleeper cell module head of the Indian Mujahideen.
“We are of the view that in the facts of this case, when the petitioner has already spent nearly 8 years in custody, the appropriate order to pass would be to first direct the examination of the three witnesses who have raised concerns about threat to their lives from the accused and the matter should receive attention of this Court after their evidence is adduced. However, these witnesses must be examined on a priority basis.” (Para 8)

3. The court relied on Union of India v. K.A. Najeeb (2021) 3 SCC 713, where bail was granted in cases of long incarceration. It noted that UAPA’s bail restrictions (Section 43D (5)) are comparatively less stringent than NDPS Act provisions, which demand a prima facie case of innocence before granting bail. (Para 12)

4. One co-accused, Adil Ansari, had already been granted bail by the Supreme Court in 2020. The State argued that the role of the appellant was different, but the court acknowledged this factor in deciding bail.

“No doubt, in the said case, as pointed out by the learned counsel appearing on behalf of the State, the Court was dealing with an order passed by the High Court granting bail, whereas, in this case, the converse is true, that is, the impugned order is one rejecting the application for bail. The fact remains that the appellant has been in custody as an undertrial prisoner for a period of nearly 8 years already. The appellant, it may be noted, is charged with offences, some of which are punishable with a minimum punishment of 10 years and the sentence may extend to imprisonment for life. Learned counsel for the appellant also points out that one of the co-accused namely Shri Aadil Ansari has been released on bail on 30.09.2020 by this Court. No doubt, in this regard, we keep in mind the submission of the State that the role attributed to the said accused is different.” (Para 13)

5. The impugned High Court order rejecting bail was set aside. The appellant was granted bail, subject to conditions imposed by the trial court. The judgment made it clear that these observations were only for the purpose of deciding bail and would not affect the merits of the case during trial.

The judgement in Jahir Haq v. State of Rajasthan (2022) may be read here:

Observations in Mukesh Salam v. State of Chhattisgarh (2024)

1. The Court noted that 12 out of 14 accused persons in the case had already been granted bail, either by the High Court or the Supreme Court. The number of prosecution witnesses had been reduced from 114 to 100, and only 40 witnesses had been examined so far.

Bearing in mind the above circumstances and the nature of the alleged case, we are of the considered view that the continued detention of the petitioner would not subserve the ends of justice. There is no likelihood of the early conclusion of the trial. The petitioner is in custody since 6 May 2020. We accordingly order and direct that the petitioner be released on bail, subject to such terms and conditions as may be imposed by the Special Judge (NIA Act), Kanker, in connection with FIR No 9 of 2020. (Para 5)

This ruling highlights the importance of parity in bail matters, considering that a majority of the co-accused had already been granted bail, and the prolonged trial delay was a factor in the decision.

The judgement in Mukesh Salam v. State of Chhattisgarh (2024) may be read here:

Observations in Jalaluddin Khan v. Union of India (2024)

1. The charge sheet did not contain specific material proving that the appellant participated in, abetted, or incited unlawful activities or terrorist acts. There was no evidence to suggest that the appellant was a member of a terrorist gang or organization under the meaning of Section 2(m) of the UAPA.

“We may note here that, assuming that the appellant knew that co- accused Athar Parvez was associated with PFI, it is not listed as a terrorist organisation within the meaning of Section 2(m) of UAPA. Moreover, the charge sheet does not contain any material to show any connection of the appellant with PFI before letting out first floor premises to accused no.1.” (Para 6)

2. The Court found that the statement of a protected witness (Z) had been misrepresented in the charge sheet, raising concerns about the fairness of the investigation.

“Thus, paragraph 17.16 purports to reproduce the statement of protected witness Z. In terms of our earlier order, the translated version of the statement of protected witness Z, recorded before the Additional Chief Judicial Magistrate, Patna, has been produced in a sealed envelope. We find that the statement substantially differs from what is narrated in paragraph 17.16 of the charge sheet.” (Para 10)

3. The Court reiterated that “bail is the rule and jail is an exception”, emphasizing that even under stringent statutes like UAPA, bail should not be denied when statutory conditions are met.

“…when a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. “Bail is the rule and jail is an exception” is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail..”  (Para 21)

4. The Court held that unjustly denying bail in deserving cases would violate the fundamental right to personal liberty under Article 21 of the Constitution.

“…If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.” (Para 21)

The judgement in Jalaluddin Khan v. Union of India (2024) may be read here:

Observations in Yedala v. State (2024)

The case was related to the murder of two politicians by members of the CPI (Maoist), a terrorist organization notified under UAPA. The National Investigation Agency (NIA) took over the investigation and filed a chargesheet against 79 accused. The appellants had been in custody for over four years and seven months without the framing of charges.

The court examined whether there were reasonable grounds to believe that the accusations were prima facie true. After analysing the entire prosecution case, the court concluded that there was no strong material linking the accused to the crime. Since the prima facie case was weak, the statutory bar on bail under UAPA did not apply.

“…Taking the material against the appellants as it is and without considering the defence of the appellants, we are unable to form an opinion that there are reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true. Hence, the embargo on the grant of bail under proviso to subsection (5) of Section 43D will not apply in this case. We, however, make it clear that the findings recorded in this Judgment are only prima facie observations recorded for the limited purposes of examining the case in the light of the proviso to sub section (5) of Section 43D of the UAPA. The trial shall be conducted uninfluenced by these observations.” (Para 21)  

The judgement in Yedala v. State (2024) may be read here:

Observations in Sushesh Kedia v. Union of India, 2021

1. The Court emphasized that under Section 43-D(5) of the Unlawful Activities (Prevention) Act (UAPA), an accused is not entitled to bail if there are reasonable grounds for believing that the accusations are prima facie true. However, upon scrutiny of the material placed before the Court, it was found that the primary accusation against the appellant was that he paid levy/extortion money to the terrorist organization Tritiya Prastuti Committee (TPC). The Court held that payment of extortion money does not amount to terror funding.

A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy / extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization ((Para 11 (A))

2. The Court noted that the charge sheet alleged that other accused persons, who were members of the terrorist organization, had been systematically collecting extortion amounts from businessmen in the Amrapali and Magadh areas. The appellant was in the business of coal transportation in that region and had made payments under duress. It could not be said prima facie that the appellant conspired with the other members of TPC or raised funds to promote the organization.

“…It is alleged in the second supplementary charge- sheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.” ((Para 11 (A))

3. The prosecution argued that the appellant had been in constant touch with members of the terrorist group. The Court noted that the appellant had stated in his Section 164 Cr.P.C. statement that he was summoned to meet A-14 and other members in connection with the payments. The Court held that merely meeting the members of TPC, without further evidence of conspiracy, does not establish a prima facie case of involvement in a terrorist conspiracy.

“Another factor taken into account by the Special Court and the High Court relates to the allegation of the Appellant meeting the members of the terror organization. It has been held by the High Court that the Appellant has been in constant touch with the other accused. The Appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A-14 and the other members of the organization in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the Appellant met the members of the organization.”((Para 11 (B)))

4. The Court referred to National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, which set the parameters for granting bail under Section 43-D (5) of the UAPA. The Court held that while prima facie satisfaction of allegations is sufficient to deny bail under UAPA, in this case, the material did not meet the threshold to establish a clear case against the appellant.

“After a detailed examination of the contentions of the parties and scrutiny of the material on record, we are not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court shall not be influenced by these observations during trial.” ((Para 12))

The judgement in Sushesh Kedia v. Union of India, 2021may be read here:

Singh’s case underscores the precarious state of press freedom and the judiciary’s cautious approach in UAPA matters. While national security concerns must be addressed, an overbroad application of UAPA risks eroding fundamental rights. The denial of bail in Singh’s case, despite the legal precedents favouring a more balanced approach, raises significant questions about the selective and inconsistent application of UAPA laws. The courts must ensure that stringent bail conditions do not serve as a mechanism for prolonged incarceration without trial, which contradicts the very principles of justice enshrined in the Indian Constitution.

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

Related: 

How difficult is it to obtain Bail under the UAPA?

Petitions challenging stringent provisions of UAPA to be heard by the SC

The post SC’s denial of bail to journalist Rupesh Singh once again showcases how the Court looks at bail under UAPA, with varying consistency appeared first on SabrangIndia.

What is victimology?

Globally, victimology—the study of victims and their place in the legal system—has become more and more prominent in legal discourse. Criminal justice regimes have historically been offender-centric, emphasising punishment over victims’ interests and rights. However, the 154th Law Commission Report (1996) marked the beginning of a major movement in India towards a victim-centric approach. This report, which emphasized that justice must go beyond the prosecution of perpetrators, was essential in acknowledging the suffering, rights, and rehabilitation needs of victims of a crime. The report established the groundwork for significant legal reforms in India by suggesting measures for witness protection, legal aid, and victim recompense.

Recent developments

A significant advancement in victimology is the recent Supreme Court ruling in Mahabir & Ors. v. State of Haryana, which upholds fair trial norms while defending victims’ rights. Due to procedural errors, including violations of natural justice, the Supreme Court later rejected the Punjab and Haryana High Court’s decision to reverse an acquittal in this case. By highlighting victim involvement, judicial accountability, and due process, this ruling makes a substantial contribution to victimology.

Reaffirming victim participation in legal proceedings is one of the judgment’s main contributions. The lawsuit started when the deceased’s father filed a revision petition contesting the accused’s acquittal. The High Court’s decision brought attention to the necessity of explicit victim rights within legal frameworks, even if it was legally untenable under Section 401(3) of the Code of Criminal Procedure (CrPC), which prohibits turning acquittals into convictions.

The CrPC’s Section 372 proviso, which gives victims the right to appeal acquittals, was examined by the Supreme Court. The Court decided that this provision could not be applied retroactively to a 2006 revision petition because it was established in 2009. This emphasises how victim rights must be in line with statutory provisions, strengthening the bounds of victim participation under the law.

The ruling emphasises the value of witness protection, which is a fundamental component of victimology. The Supreme Court ruled that the High Court had violated procedural fairness by depending on a Section 161 CrPC statement rather than sworn trial testimony. It strengthened the conversation on victim protection in trials by emphasizing the need to protect witness testimony against coercion.

Furthermore, the balance between victim rights and the protection of a fair trial is highlighted by the Supreme Court’s order for the accused to be released immediately and for compensation for unjust incarceration to be considered. The ruling guarantees the preservation of due process while enhancing victim engagement.

Recognizing unjust detention and the necessity of compensation is another crucial element. The Court acknowledges the impact of judicial errors on the accused in its discussion, citing D.K. Basu v. State of West Bengal and Nilabati Behera v. State of Orissa. By supporting restorative justice and guaranteeing justice for both victims and those who were unfairly convicted, this ruling broadens the scope of victimology.

The judgement of Mahabir & Ors. v. State of Haryana of the Supreme Court makes a substantial contribution to victimology in India. It guarantees procedural protections against erroneous convictions while reaffirming victim rights. The ruling strengthens the integrity and accountability of the legal system by establishing a precedent for striking a balance between victim participation and fair trial requirements.

Role of public prosecutor

In the case of Mahabir & Ors. v. State of Haryana, the Supreme Court examines the duties and responsibilities of the Public Prosecutor’s (PP) in great detail, highlighting the PP’s essential role in the criminal justice system. According to the CrPC, the Public Prosecutor is granted certain statutory responsibilities and privileges, and the Court recognises that they wield a “public office.” The Court emphasises that the office is an independent statutory entity that must operate with impartiality, fairness, and integrity rather than just being an extension of the investigative agency as reported by LiveLaw.

The Court emphasises how important it is for a public prosecutor to strike a balance between finding the guilty, protecting people’ rights, and making sure justice is served fairly. The PP’s function goes beyond simply obtaining convictions; rather, it is to help the court arrive at the right decision. The ruling emphasizes that in order to provide justice for both the prosecution and the accused, a prosecutor should not withhold evidence but rather provide a whole and objective picture.

The Court also condemns some prosecutors’ propensity to suppress exculpatory evidence in order to focus too much on getting convictions. The ruling makes it very evident that a PP must behave in a way that preserves the integrity of the legal system rather than pursuing conviction “somehow or the other.” Even if the defense or the court ignores it, the public prosecutor must alert the court whether the accused is entitled to any benefits under the law.​

The Court’s apprehension regarding political meddling in the selection of public prosecutors is another important aspect of the ruling. It challenges the custom of choosing prosecutors based more on political factors than qualifications, contending that only those with strong moral character, legal acumen, and independence ought to be chosen. The State Government is held responsible by the Court for making sure Public Prosecutors adhere to these strict guidelines.

Lastly, the Court admits that judicial workload and oversight might lead to mistakes in the legal process. Nonetheless, it highlights the responsibility of public prosecutors and defense attorneys to rectify judicial errors when they occur. The Court’s landmark decision, which orders the State Government to compensate appellants harmed by prosecutorial errors, reaffirms the notion that justice must be done and seen to be done.

The ruling firmly upholds the Public Prosecutor’s position as an impartial court official tasked with upholding justice rather than just obtaining convictions. It demands adherence to the rule of law, fair prosecution, and nominations based on merit.

The 154th Law Commission Report: an overview

To guarantee a just and equitable legal system, the Law Commission of India, a statutory agency, is tasked with suggesting legal reforms. With a particular focus on victimology, the 154th Law Commission Report, which was submitted in 1996, aimed to revise the Code of Criminal Procedure (CrPC), 1973. It recognized that although victims of crimes frequently face social marginalization, emotional distress, and financial difficulty, their issues are often overlooked during the legal process. According to the research, victims’ needs should be addressed methodically, and the justice system should prioritize their rights and welfare.

The establishment of a state-funded victim compensation program was one of the report’s most important suggestions. The report emphasized that victims of crimes frequently experience financial hardship, particularly those from marginalized families. The proposal suggested adding Section 357A to the CrPC, which would require state governments to give victims financial support. The Criminal Law (Amendment) Act of 2009[1] ultimately put this recommendation into practice, making compensation a crucial component of victim justice.

The role of victims in court procedures was another important area of victimology that was covered in the 154th Law Commission Report. Victims have historically not been considered active participants in trials, but rather witnesses. According to the report, victims—especially those impacted by heinous crimes—should be given access to legal counsel and be given the opportunity to actively engage in the legal system. In subsequent legal advancements, this concept gained traction as courts acknowledged victims’ rights to participate in prosecution decisions and appeal acquittals.

The report also underlined the significance of protecting witnesses and victims, acknowledging that victims frequently encounter threats, coercion, and social pressure, particularly in situations involving organized crime, communal violence, and sexual offences. The Witness Protection Scheme of 2018 was influenced by its recommendation to provide a legal framework for witness protection. To ensure that at-risk victims and witnesses can testify without fear, this program now offers security measures like identity concealing, police protection, and relocation.

The foundation for numerous legislative and policy reforms in India was established by the 154th Law Commission Report. The addition of Section 357A to the CrPC, which mandated state-funded compensation plans throughout India, was one of its most important contributions. Its suggestions about victim involvement in trials also had an impact on subsequent rulings that acknowledged victims’ rights to appeal and pursue justice apart from the prosecution.

In order to give survivors of crimes including rape, domestic abuse, acid assaults, and community violence financial support, multiple states have over time established victim compensation schemes. Furthermore, the idea of witness protection—which was initially emphasized in the report—became a reality in 2018 with the Witness Protection Scheme, providing vulnerable witnesses and victims with much-needed security. These changes guarantee that victims are no longer viewed as passive viewers but rather as important participants in the legal system, reflecting a gradual but necessary transition towards victim-centric justice.

The introduction of victimology into India’s legal discourse was made possible largely by the 154th Law Commission Report (1996). Advocates for witness protection, legal counsel, and victim compensation changed the way victims are handled in the court system. The legal foundation for victims has been reinforced by the ensuing reforms, which include legislation protecting witnesses and state-funded compensation.

History

Before this, the fifth law commission of India in the 42^nd report dealt with the concept of compensation to the victims of crime in India. The law commission referred to the “three patterns” concept of compensating the victim which is seen the code of criminal procedure of France, Germany, and (Former) Russia. The pattern includes:

• Compensation by the state.
• Compensation by the offender by means of fines or paying certain specific amount.
• Offender’s duty to repair for its damages.

Further the 142^nd, 144^th, 146^th, 152^nd, 154^th, and 156^th report emphasised the concept of compensation for the victims and made certain contribution towards it. As result, the Government of India after considering various reports and recommendations amended the Code of Criminal Procedure code in the year of 2009.

Best Bakery case: A turning point

One of the most notable cases of witness intimidation and a failure to provide justice in India was the case of Zahira Habibullah H. Sheikh and Anr. vs. State of Gujarat and Ors. [(2004) 4 SCC 158], prominently known as the Best Bakery case, which brought to light the systematic disregard for victims in criminal prosecutions. This case, which was based on the Gujarat riots of 2002, revealed the weaknesses of victims in cases of communal violence and showed how a lack of legal protections could result in witness hostility, unfair acquittals, and the denial of justice. By highlighting the importance of witness protection, fair trials, and victim participation in the judicial system, the events that followed this case significantly contributed to the establishment of victimology in India as reported by the National Human Rights Commission.

Fourteen people, all Muslims, were killed by a mob during the post-Godhra riots in Vadodara, Gujarat, when the Best Bakery was set on fire. Primarily due to the intimidation of important witnesses, such as Zaheera Sheikh, a crucial eyewitness who became hostile in court, the first trial ended with the acquittal of all 21 accused. The Supreme Court of India stepped in after a national outcry over the judicial system’s failure in this case. A significant step towards guaranteeing an unbiased and equitable trial was taken when the trial was moved from Gujarat to Maharashtra in a landmark ruling.

The Best Bakery case made a significant contribution to victimology by highlighting the necessity of legislation protecting witnesses Citizens for Justice and Peace was co-petitioner in the case. The Supreme Court recognised that, especially in situations involving organized crime, prominent accused, or communal violence, victims and witnesses frequently experience threats, social pressure, and coercion.

The Witness Protection Scheme, 2018 was ultimately the result of this case, which bolstered the call for a formal witness protection structure. This plan ensures that victims and witnesses can testify without fear by providing measures including relocation, police protection, and identity concealing.

The increase in victim participation in court processes was another noteworthy development that was impacted by this case. The case demonstrated how victims were frequently viewed as merely witnesses with little influence over the court system. Later legislative revisions that gave victims the ability to appeal against acquittals and actively engage in trials were made possible by the judiciary’s response to the Best Bakery case, which reaffirmed the notion that victims must have a voice in the legal process.

The case also highlighted how crucial victims’ rights to a fair trial are. A precedent for trial transfers in situations when political or sectarian factors prevent an unbiased hearing was established by the Supreme Court’s decision to move the case to Maharashtra. This reaffirmed the judiciary’s dedication to guaranteeing that victims of crimes, especially those from marginalized and disadvantaged populations, have an equal opportunity to obtain justice as reported in a research published by SSRN.

An important turning point in the development of victimology in India was the Best Bakery case. Crucial legislative and policy changes, such as the implementation of legislation protecting witnesses, enhanced victim rights, and procedures for fair trials, were brought about by the revelation of the criminal justice system’s shortcomings. This case shaped the current understanding of victimology in the Indian legal system by demonstrating that true justice necessitates protecting and empowering the victim in addition to punishing the criminal.

Conclusion

The development of victimology in India, which has been characterized by important legal changes and seminal rulings, highlights the increasing acceptance of victims’ rights in the judicial system. Important legislative changes like Section 357A CrPC resulted from the 154th Law Commission Report, which established the groundwork for victim compensation, witness protection, and active victim engagement. The necessity of justice, due process, and prosecutorial responsibility was further emphasized by cases such as Mahabir & Ors. v. State of Haryana and the Best Bakery trial. By balancing victim rights with fair trial principles, these advancements ensure justice is not just about punishing offenders but also about protecting and empowering victims, ultimately strengthening India’s legal system.

(The legal research team of CJP consists of lawyers and interns; this factsheet has been worked on by Yukta Adha)

[1] Amendment number 21 of 2009

Related:

Witness Protection in India: an idea gathering dust

The Best Bakery Case

The 2004 Best Bakery Judgement and Its Significance

The post Strengthening the rights of victims: Legal milestones and the path ahead appeared first on SabrangIndia.

Context

The Uttarakhand High Court has issued a 6–week notice to the State government and the Centre to file their responses to the petitions challenging the provisions of the Uttarakhand Uniform Civil Code (UCC). Further, in a move to provide temporary relief, the Uttarakhand High Court has asked the affected individuals to approach the court in cases of penal actions, as reported by LiveLaw.

On January 27, 2025, Uttarakhand became the first Indian state to implement a Uniform Civil Code (UCC). However, the law has come under the scrutiny of the Uttarakhand High Court as a result of various writ petitions filed challenging multiple provisions of the UCC. The law makes it mandatory for individuals in live–in relationships to register their relationship with the registrar within whose jurisdiction they reside. Further, the law deliberately targets the minority communities, such as Muslims, and prescribes procedures to be followed in religious matters which is completely contrary to the holy Quran.

For a more comprehensive understanding of the provisions challenged in the impugned UCC, the article published by CJP may be referred to.

Challenges to provisions governing live–in relationships

The mandatory registration of live–in relationships and the penal provisions for non–compliance of the same have been challenged before the High Court. The petitioners have contended that these provisions are against the Fundamental Right to privacy protected under Article 21 of the Constitution of India. While addressing these contentions, Solicitor General (SG) Tushar Mehta appearing for the Government mentioned that “Experience has shown that having lived in live–in relationships without any commitment – which results from marriage only – generally, the man deserts the woman, leaving her destitute and leaving the children born out of such relationships illegitimate.” He further argued that the law aims to regulate live–in relationships, not prohibit the same while stating that “On such a registration, the child born out of such a live–in relationship is considered under the UCC to be a legitimate child, and the deserted woman is given a right to approach the competent court seeking maintenance for herself and her child,” as reported by the Times of India.

While hearing the batch of petitions, Chief Justice of the Uttarakhand High Court G Narendar questioned as to what the problem is with regulating live–in relationships while orally remarking that “There is also a fallout of this. What happens if this relationship breaks up? What if there is a child out of this relationship? In respect of marriage, there is a presumption regarding paternity but in a live-in relationship, where is that presumption? In the garb of invasion of your privacy, can the self-respect of another person be sacrificed, that too when he is your child and there is no proof of marriage… or paternity,” as reported by the Indian Express.

This debate underscores the necessity of striking a balance between the fundamental right to privacy and protecting the rights of children born out of live–in relationships and providing recognition to them.

Targeting minorities

The law has come under heavy criticism for particularly targeting religious minority communities, such as Muslims. The petitioners have contended that the UCC significantly impacts the Muslim community as it prescribes procedures to be followed which are completely against the principles laid down in the Quran. The petitioners argued that “We have pleaded before the court that the law prescribed in the Quran and its verses is an essential religious practice for every Muslim. UCC prescribes the procedure for religious matters which is absolutely contrary to the verses of the Quran. We have pleaded that to remain a Muslim, a person has to follow the Quran and its Verses.” The petitioners have further stated that “following the verses of the Quran is a mandatory practice for a Muslim and by making a civil law, the state government cannot direct a Muslim person to do anything which is contrary to the verses of Quran,” as reported by the Hindustan Times.

The petitioners cited that by banning the mandatory practice of Iddat that is followed by a divorced Muslim woman, the UCC violates the religious practice of Muslims. The petitioners have further contended that these provisions of the impugned law violate Article 25 of the Constitution of India which protects the freedom of practice and profession of religion. It has also been argued by the petitioners that the UCC is violative of the Preamble of the Indian Constitution as the liberty of expression, belief, faith and worship have been guaranteed under the Preamble.

It should be noted here that while the basis for the Uttarakhand UCC is Article 44 (Uniform civil code for the citizens), which is only a directive principle and not binding and non–justiciable in nature, Articles 25 (Freedom of conscience and free profession, practice and propagation of religion), 26 (Freedom to manage religious affairs) and 29 (Protection of interests of minorities) which guarantee freedom of religion have been blatantly ignored. The petitioners have contended that the impugned law strikes at the fundamental principle of Secularism that has been provided in the Constitution of India

The petition also stresses that the impugned law is not Uniform as it excludes the Scheduled Tribes from its purview. The petitioners have argued that the UCC creates “an arbitrary and artificial discrimination, impermissible in law, amongst citizens by not applying it to the Scheduled Tribes” and that such UCC “is not a Uniform Civil Code as directed under Article 44 of the Constitution of India, hence, deserves to be declared void.”

Restrictions on marriage

The list of “prohibited relationships” provided in the UCC has also been challenged by the Petitioners on the grounds that not only do the impugned provisions hinder the Muslims’ right to marry but also declares such marriage void and criminalizes the same. The petitioners have argued that the impugned legislation is “discriminatory in nature since it takes away the customs and usage of the Muslim community by providing for restrictions to marry in ‘degrees of prohibited relationship’ as defined in the UCC.” The petitioners further contended that such restrictions do not exist in the Muslim community and that marriage among relatives is permitted as per the Muslim law.

Conclusion

In conclusion, significant constitutional debates have been sparked by the Uttarakhand High Court’s assessment of the state’s proposed Uniform Civil Code (UCC). Privacy, religious freedom, and equal protection under the law are among the issues raised by the forced registration of live-in relationships, the purported targeting of religious minorities, and limitations on marital customs. The problem is further complicated by the Scheduled Tribes’ exclusion and the possibility of the UCC’s extraterritorial application. The High Court’s decision will be a turning point in determining how to strike a balance between individual laws, cultural autonomy, and the movement for a uniform civil framework, since Uttarakhand’s transition to a UCC is unprecedented in India.

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

Related:

The Uniform Civil Code (UCC) of Uttarakhand: Advancement in gender justice or violating individual liberties?

Destroying the basic standards of legislation- the Uttarakhand Model of UCC

Uttarakhand’s UCC seen through a Muslim women’s political perspective

The post Petitions against Uttarakhand UCC draw attention to Constitutional issues regarding personal autonomy and minority rights appeared first on SabrangIndia.

Thirteen petitioners, twelve of whom were former civil personnel, petitioned the Supreme Court to address their concerns regarding changes to the Forest Conservation Act of 1980 after the Amendment Act was passed. The amendment permits the diversion of forest land for linear projects related to “national security” and “defence” within a 100-kilometer radius along border territories, which was one of their primary concerns. In other words, it makes way for highway construction in biodiverse and ecologically sensitive regions of India’s frontier states.

Challenges to Forest Conservation Amendment Act, 2023

The petition emphasised how the amendment threatens India’s long-standing forest governance system, which was established by the implementation of the Forest Conservation Act, 1980, and the Supreme Court’s expansive definition of “forest,” which was established in its landmark ruling in T.N. Godavarman v. Union of India (1996).

The petition also argued that the modification exempted certain types of projects and activities from the Act’s provisions while arbitrarily permitting others on forest land. Safaris, zoos, and ecotourism establishments were haphazardly added to a list of activities for approved “non-forest purposes.”

The court asked in its interim decision that the states and Union Territories conduct in accordance with the definition of “forest” established by the Apex Court in its 1996 ruling in the case of TN Godavarman Thirumulpad v. Union of India. The petitioners claimed that Section 1A, which was added to the modified law, limited the broad meaning of a “forest” in the Apex Court’s ruling. According to the modified law, a piece of property cannot be considered a “forest” unless it is officially listed as such in a government record or is notified as such.

The amendment limited the Act’s application to two categories of lands as reported by Downtoearth:

• Areas that have been formally designated or notified as forests under the Indian Forest Act, 1927 (IFA) or any other applicable law, and
• Lands that do not come under the first category but are listed as forests in government records since October 25, 1980.

The Apex Court in February, 2024 noted that approximately 1.99 lakh square kilometres of forest area were excluded from the term of “forests” under the 2023 amended law on forest conservation, and instead were made accessible for other uses. The bench stated that any new plans to construct a zoo or start a “safari” on forest territory would now require permission from the Supreme Court as reported by Supreme Court Observer.

A bench of Justice B R Gavai and Justice K Vinod Chandran while hearing the petitions against the 2023 amendment to the forest conservation law noted that, “We will not permit anything which leads to reduction of forest area. We further order that until further orders, no steps will be taken by the Union of India and any state which will lead to reduction of forest land unless compensatory land is provided by the Centre and the states.” 

Reverting to a colonial-era mentality that prioritises control over nature and legal recognition without recognising its inherent worth and value, regardless of its utility to humans, the Amendment Act is a regressive step. It is not in accordance with the developments in environmental law, which are generally moving towards acknowledging the “Rights of Nature.”

The Order may be read here:

Adivasi Land Rights

Significant concerns have been raised by the Forest (Conservation) Amendment Act, 2023, especially in light of its potential effects on Adivasi (Indigenous communities) land rights. The reforms include significant changes that could jeopardise the livelihoods and cultural links of communities living in forests by weakening the legal protections that are now in place.

The amended law’s reduction of the concept of “forest” presents one of the biggest obstacles. Previously, the Forest (Conservation) Act, 1980 protected all statutorily recognised forests, whether or not they were registered, according to the expansive interpretation set by the T.N. Godavarman v. Union of India (1996) ruling. The 2023 Amendment, however, limits this description to land that is notified under the Indian Forest Act, 1927 or officially listed as forest in government records. Large areas of community forests, traditionally used land, and sacred groves—all of which Adivasis have depended on for centuries—are not included in this. This raises the possibility of relocation and the loss of ancestral areas because these lands can now be diverted for non-forest uses without needing the stringent clearances that were previously necessary.

These risks are increased by the amendment’s exemptions for particular projects. For activities pertaining to border security, defence infrastructure, ecotourism, and public utilities in specific regions, the Act permits the government to circumvent the customary forest clearance regulations. These exclusions facilitate the establishment of major infrastructure projects, including roads, railroads, and industrial zones, in tribal areas without requiring approval from Gram Sabhas, or village councils. Adivasis are entitled to this privilege under the Forest Rights Act (FRA), 2006, and the Panchayats (Extension to the Scheduled Areas) Act PESA, 1996. Their independence in deciding how to use the land is directly compromised, and the legal protections against forcible evictions are weakened.

The possibility of greater land alienation and privatisation is another significant problem. The amendment makes it easier for businesses like zoos, safaris, and tourism projects to access forest land, which may lead to the transfer of vast tracts of forest to private organisations. Adivasi tribes may experience financial hardship as a result of the commercialisation of their ancestral lands since they rely on these forests for farming, grazing, and gathering minor forest products. Conflicts, loss of livelihood, and forced migration could result from corporate interests superseding community rights in the absence of robust legal protections.

Furthermore, Adivasis residing in Fifth Schedule Areas, where constitutional protections were created expressly to stop the alienation of tribal territory, are disproportionately affected by the relaxing of forest diversion standards. Without taking into account the historical injustices and displacement that tribal communities have experienced, the amendment facilitates the government’s allocation of land for development projects. This gives rise to concerns that the amendment might be utilised to expedite projects without providing impacted Adivasi families with adequate consultation, rehabilitation, or compensation.

In essence, by limiting the definition of forests, avoiding consultation procedures, permitting extensive land diversion, and facilitating corporate access to forest resources, the Forest (Conservation) Amendment Act, 2023 erodes vital safeguards for Adivasi land rights. Legal protections are being diluted, endangering Indigenous groups’ identity, culture, and means of subsistence in addition to the environment. Stricter enforcement of tribal land rights, increased community involvement, and making sure that development doesn’t result in marginalisation and displacement are all necessary to address these issues.

Other Challenges to Adivasi Rights

The Madhya Pradesh government has taken a major step by deciding to withdraw nearly 8,000 forest criminal cases against Adivasi communities. Long-standing complaints about the criminalisation of Indigenous customs in forest regions are intended to be addressed by this ruling. But according to new data gathered under the Right to Information Act, the state only intends to withdraw roughly half of these cases, meaning that many Adivasis are still facing legal issues.

The persistent challenges Adivasi communities face with regard to their land rights and customary forest activities are highlighted by this partial withdrawal. Even with legislative frameworks that acknowledge the rights of forest dwellers, such as the Forest Rights Act of 2006, many Adivasis still face potential displacement and legal challenges. The narrow range of case withdrawals emphasises the necessity of more extensive steps to guarantee the recognition and preservation of Adivasi land rights, particularly in view of recent legislative developments that could have an even greater effect on these people.

Conclusion

There are serious concerns about how the Forest (Conservation) Amendment Act, 2023, may affect Adivasi land rights, environmental preservation, and legal protections since it marks a dramatic change in India’s forest governance structure. The amendment erodes the rights of Indigenous communities who have lived sustainably in these forests for generations by limiting the definition of forests and exempting certain initiatives from clearing requirements. Legal protections are being weakened, and corporate and infrastructure projects are being facilitated at the expense of environmental degradation, livelihood loss, and displacement.

The government contends that these modifications advance economic growth and national security, but they also jeopardise ecological balance, democratic involvement, and constitutional protections. Adivasi views must be heard, Gramme Sabha clearances must be respected, and compensating measures must be rigorously implemented going ahead. The destruction of forest ecosystems and the marginalisation of Indigenous communities cannot be the price of sustainable development.

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

Related:

Inside India’s forest lands a battle for land and resources: Adivasis & Forest dwellers

Forest resource rights vs. Land rights under Forest Rights Act

Forest Conservation Rules, 2022- An overview of changes that snatch rights of Gram Sabhas

The post Adivasi Land Rights Erosion: The effects of the 2023 Forest Conservation Amendment Act appeared first on SabrangIndia.

During the drafting of the Indian Constitution, prominent leaders like Jawaharlal Nehru and Dr. B.R. Ambedkar supported the introduction of a Uniform Civil Code (UCC). However, due to opposition from religious conservatives and limited public awareness at the time, the UCC was included in the Directive Principles of State Policy (DPSP) under Article 44 of the Indian Constitution instead of being enacted as a binding law as reported by Manupatra. In 2018, the 21st Law Commission, chaired by Justice Balbir Singh Chauhan, advised that implementing a Uniform Civil Code at that time was neither necessary nor advisable. The Commission went ahead to highlight the importance of maintaining secularism with the nation’s diverse cultural and religious traditions. Further, the commission suggested amending the discriminatory provisions within existing personal laws rather than enforcing a uniform legal framework.

A closer look at the Act reveals various issues that could have severe implications.

Mandatory registration of live–in relationships

Although the UCC has promised to protect women’s rights, critics have argued that provisions such as mandatory registration of live–in relationships does not safeguard women, and instead hampers their freedom and puts them under scrutiny by State and society. The provision results in significant intrusion in an individual’s privacy and autonomy. Part 3 of the Act governs Live–in relationships.

Those who are currently in a live–in relationship or considering the same must provide a statement to the registrar, who will investigate and may request the couple to present further documentation or appear for certification. The registrar has 30 days from the time of the inquiry to either register the relationship and provide a certificate or deny registration and notify the partners in writing. According to the bill, the registrar must also notify the parents or guardians of any partner under the age of 21 and provide the live-in relationship statement to the head of the local police station for record-keeping purposes. The measure imposes fines on individuals who continue living together for longer than a month without providing the necessary declaration.

The UCC Act which was passed by the State Assembly in February 2024, requires couples mandatorily, to register with the government, both while initiating and terminating a live-in relationship. Any failure to register carries a jail term up to six months! This applies to residents of Uttarakhand as well as state residents living elsewhere in India.

The UCC Rules which came into effect on January 2, 2025, provide further measures regarding the application process for live–in relationships. According to the Rules, a 16-page form that needs to be filled, Aadhaar-linked OTP, registration fee, a certificate from a religious leader that the couple is eligible to marry if they so wish, and details of previous relationships — these are among the rules prescribed by the Uttarakhand government for registration of live-in relationships under its Uniform Civil Code.

The Rules mandate that a religious leader or a community head or the official of a religious/community body concerned, must issue a certificate stating that the customs that govern the registrants of the application, permit a marriage between the two individuals willing to live together. Rule 3 (u), which defines a religious leader, states that “in relation to a community means a priest of the place of worship of that community or an office bearer of the religious body pertaining to that community.”
The Rules raise various concerns as the same make it practically impossible for interfaith or inter–caste individuals to be in a live–in relationship. The requirement of religious sanction for two consenting adults to enter a live–in relationship defeats the principle of secularism provided in the Preamble of the Constitution of India.

In what could clearly amount to intrusion on adult persons’ privacy and choice, the Rules require in prescribed format “proof of permissibility of marriage between the registrants if they are within the degrees of prohibited relationship”. Besides, for “proof of previous history of relationship,” the Rules require details of “marital or live-in relationship prior to the onset of the current live-in relationship”. These documents could include final decree of divorce; final decree annulling a marriage; death certificate of a spouse; certificate of terminated live-in relationship. For marriages dissolved under customary religious practices, then proof of such dissolution would be required.

If a judicial magistrate finds an individual guilty, they could be sentenced to up to three months of imprisonment, fined up to Rs 10,000, or both. Additionally, anyone caught submitting incorrect or omitting information during registration faces a three-month imprisonment and a heftier punishment of Rs 25,000. A six-month imprisonment and a fine of Rs 25,000 could be imposed for not submitting the live–in relationship statement after being notified. Furthermore, it is pertinent to note that not registering a marriage carries no legal repercussions, while not registering a live-in partnership may result in imprisonment as reported by BBC.

Live–in agreements are usually used as a means to get to know one another before contemplating marriage, if at all. When the seriousness of live–in relationships is equated with marriage, the question of what makes the two different emerges. Is it necessary for a man and a woman to prove they have no romantic relationship if they live together as roommates? Furthermore, are same-sex couples excluded from the definition of a “legal” live-in relationship, or does the provision solely apply to heterosexual couples?

Further, it is concerning that the age restrictions for marriage and live–in relationships differ. An individual can get married at the age of 18 without their parents’ consent, however they would have to wait until 21 for a live–in relationship.

Section 386 of the Act which allows third parties to raise complaints if they believe that a live–in relationship is violative of the provisions of the UCC, has raised various concerns as the same can be misuse, moral policing, and social scrutiny. The provision could result in harassment and unwarranted interference of third parties which could violate the fundamental right to privacy and autonomy of individuals.

Bhuwan Chandra Kapri, Congress MLA from Khatima constituency in Uttarakhand has criticized the Act stating that “When the Supreme Court has validated live-in relationships, how can the State overwrite it by making it mandatory to register?” He further added that, “Imagine the nightmare for women—records creating marital havoc, complaints flying from disgruntled relatives or snooping neighbours. An emboldened Bajrang Dal prying into your private life. Daughters facing marriage hurdles based on these very records. Blackmail, too, can become a weapon.” as reported by Frontline.

The apex court has upheld the legitimacy of live–in relationships in various cases. In the case of Indra Sarma vs V.K.V. Sarma (2013), the Supreme Court upheld the validity of relationships and laid down that such relationships should be given protection from social and legal prejudices. Further, right to privacy which has been recognized as a fundamental right in the landmark case of K.S. Puttaswamy v. Union of India (2017), includes the freedom to make personal choices without unwarranted state interference. The right also covers the privacy of personal relationships, including live-in relationships, where individuals should have the liberty to form relationships without the fear of government or societal surveillance. The provisions regarding live–in relationships in the Act, are in violation of the Supreme Court judgements and violate the fundamental right to privacy of individuals cohabiting in live–in relationships.

Targeting Minorities

The UCC has also faced criticism for its targeting of Muslims and exclusion of the Scheduled Tribes (STs). According to All India Majlis-E-Ittehadul Muslimeen President Asaduddin Owaisi, the UCC is really a “Hindu Code.”

While speaking to Frontline, Owaisi mentioned that “The UCC is not uniform. Firstly, the tribals are kept out of it. If the UCC is so beneficial for society, why should the STs be left out? Secondly, the UCC has not even mentioned the Hindu Undivided Family [HUF], which gives tax benefits to the Hindu community. Hindus and STs have been given exemptions, and the UCC cannot be uniform as long as it does not apply to the majority community.”

The Uttarakhand administration has also come under scrutiny for allegedly utilising the new law to target Muslims who adhere to Sharia law’s customary divorce and polygamy laws, which are now illegal. “We cannot accept any law that is against the Sharia because a Muslim can compromise with anything but Sharia and religion,” stated prominent Muslim organisation Jamiat Ulema-e-Hind.

Proponents claim that by outlawing polygamy, granting sons and daughters equal rights to inherit property, and mandating that divorce proceedings be handled in a civil court, the UCC grants Muslim women the same rights as others.

But according to experts, the law does not question patriarchal norms in Hindu civil law, such as the need that the guardianship of a minor boy or unmarried girl go to the father before going to the mother as reported by Al jazeera.

By eliminating Nikah Halala, Section 30(2) permits remarriage without restrictions. Anyone who compels or coerces someone to adhere to such requirements prior to getting married again is criminally charged under Section 32(iii). Although these provisions seek to advance gender equality, they may make personal law systems more complex.

The dilemma of Inheritance

By introducing its own intestate succession process, the UCC ignores the Class I and II legal heirs that are listed in the Hindu and Muslim personal laws as well as the laws that apply to Christians. A person who passes away without leaving a will will be subject to the UCC (intestate succession) as reported by Economic Times. The code disassociates itself from the customs of major religions like Christianity, Islam, and Hinduism and treats women on an equal basis with males.

1. Impact of UCC on inheritance laws of Hindus

The distinction between self-acquired and inherited property under Hindu law is eliminated by the UCC. Accordingly, each legitimate heir will be entitled to ancestral property in the same way that they are to self-acquired property.

In the event of intestate succession, the UCC elevates both parents—the mother and the father—as Class-I heirs. This differs from the Hindu Succession Act, which states that if the deceased was a Hindu male, the father is listed among the Class-II heirs. In addition, under the Hindu Succession Act, class I heirs are not the same for males and females, but under the UCC, they are. The Hindu Succession Act states that a married Hindu woman’s class I heirs do not include her own parents, while a Hindu man’s class I heirs include his mother but not his father.

2. Impact of UCC on inheritance laws of Muslims

The principle of fixed shares governs inheritance rights in Muslim law on intestate succession, which frequently leads to an unfair distribution that disproportionately benefits male heirs. UCC, on the other hand, permits the division of property freely without having to follow any set proportions imposed by Islamic law because there are no fixed shares. In the event of an intestate succession, the UCC grants Muslim women the same property rights as Muslim men.

Regarding the estate of a Muslim who passes away intestate, the UCC specifies general norms of succession. Relatives (of the deceased) listed in Classes I and II of Schedule 2 of the code would be subject to these regulations. Because of this deviation from Islamic law, the fixed-shares norms will not be rigorously followed in inheritance.

3. Impact of UCC on inheritance laws of Christians

Widows are entitled to one-third of the deceased’s property under the Indian Succession Act, 1925, which covers Christians. Other lineal descendants are given the remaining two-thirds. The widow would receive half of the property if there were no lineal descendants. If there are no relatives, the widow would get the whole estate. On the other hand, the UCC states that all class I heirs will get equal shares in property and other assets and classifies a widow as a Class-1 heir.

Unless there are no lineal descendants, the deceased’s parents are not entitled to any portion of the property under the Indian Succession Act. However, parents are granted Class-1 legal heir status under the UCC. They each receive a share, with the other parent receiving the entire share in the event of one parent’s death.

While drastic changes have been made with regards to intestate succession for Muslims and Christians, it can be observed that the only changes made for intestate succession for Hindus is the amendment of the list of Class I and Class II heirs. The law makes a complete overhaul of the procedure for intestate succession while making little to no change for Hindus which has become an issue of criticism.

The Hindu Undivided Family

Regarding Hindu Undivided Families (HUFs), which have potentially significant financial ramifications, the UCC remains silent. HUFs, which are considered as separate entities for the purposes of income tax computation, may be established by joint Hindu families. People routinely lower their personal taxable income by directing their individual salaries to HUFs established in conjunction with other family members. In addition to the enormous hypothetical income loss to the exchequer, it has long been known that HUFs are essentially a tax evasion scheme.

Additionally, only members of the Hindu, Buddhist, Sikh, and Jains communities, to whom Hindu family law applies, are able to use this device, and not the members of other religious communities. It is clearly prejudiced in this regard. At the expense of the nation’s revenue, the Law Commission stated bluntly in 2018 that “it is high time that it is understood that justifying this institution [coparcenaries/HUFs] on the basis of deep-rooted sentiments may not be judicious,” as reported by The Print.

Conclusion

Economically speaking, migratory trends may be impacted by state-led UCC models. Similar to how Colorado’s legalisation of marijuana raised housing costs, people would move to places with laxer regulations. Private life rules, such as those pertaining to relationships, may have a substantial effect on labour mobility, corporate concentration, and state demographics.

There are several concerns regarding the impact of UCC on religious freedom, personal autonomy, and privacy. While the UCC claims to promote gender justice and equality, critics argue that it infringes on individual rights, especially with provisions like mandatory live-in relationship registrations and targeting of minorities. Additionally, the exclusion of certain groups and complexities in inheritance laws highlight the challenges of harmonizing diverse legal systems.

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

Related:

Uttarakhand’s UCC seen through a Muslim women’s political perspective

Destroying the basic standards of legislation- the Uttarakhand Model of UCC

Uttarakhand: Women’s groups reject UCC say provisions are unconstitutional, criminalises constitutional behavior, Muslims

The post Uttarakhand implements Uniform Civil Code (UCC) attracting criticism and concerns appeared first on SabrangIndia.

Key takeaways from the 23/1 Bombay HC judgment

The case, Jaago Nehru Nagar Residents Welfare Association & Anr. v. Commissioner of Police & Ors., was filed by residents of Nehru Nagar, Kurla (East), Mumbai, who alleged that local authorities failed to take action against religious institutions using loudspeakers beyond prohibited hours. The petitioners contended that the persistent use of loudspeakers at odd hours disrupted their right to a peaceful environment and violated established noise pollution laws.

Issues involved in the case

• Whether the use of loudspeakers in religious practices constitutes an essential religious practice protected under Article 25 of the Constitution.
• Whether the failure of authorities to act against noise violations amounts to dereliction of duty.

Core observations by the Court:

1. Loudspeakers are not an essential part of any religion:

• The court emphasized that the use of loudspeakers does not enjoy protection under Article 25 (freedom of religion) since it is not an integral part of religious practice

“Noise is a major health hazard on various aspects. No one can claim that his rights are affected in any manner if he is denied a permission to  use loudspeaker. It is in public interest that such permissions should not be granted. By denying such permissions, rights under Article 19 or 25 of the Constitution of India are not at all infringed. Use of loudspeakers is not an essential part of any religion” Paragraph 18 of the judgment

• The court noted that while religious freedom is protected under the Constitution, it does not extend to acts that disturb public peace or infringe upon others’ rights to a noise-free environment.

“It is well settled by the Hon’ble Supreme Court in the case of Church of God (Full Gospel) In India (supra) that, undisputedly no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice-amplifiers or beating of drums.” Paragraph 22 of the judgment

2. Failure of authorities to enforce noise pollution laws:

• • The court criticized thepolice and municipal authorities for failing to take strict action against noise pollution violations, despite existing laws prohibiting the use of loudspeakers beyond permissible hours.
  • It directed law enforcement agencies toproactively monitor and act against violators instead of waiting for public complaints.

“According to us, it is the bounden duty of the Respondent Nos.1 to 6 that, they must and should enforce the law by adopting all the necessary measures, as may be prescribed by the provisions of law. In a democratic State, there cannot be a situation that, a person / group of persons/ association of persons would say that, it will not follow or adhere to the law of the land and the law enforcers would be meek or silent spectators to it” Paragraph 21 of the judgment

3. Strict application of the Noise Pollution (Regulation and Control) Rules, 2000:

• • The court reaffirmed thatdecibel limits and restricted hours (10 PM – 6 AM) must be enforced uniformly across all religious institutions and public spaces.
  • It also instructed authorities to installnoise monitoring equipment and initiate automatic regulatory measures.

“The Respondent No.1 also to direct all the concerned Police Officers to use the decibel level measuring mobile application for checking the decibel levels. These applications are easily available on internet and would assist in monitoring the noise levels. Thus, loudspeakers and amplifiers or other equipment or gazettes which produce offending noise, one detected as violating the law or in defiance of the directions issued by the concerned Police Authorities can seize the said equipment/s under Section 70 of the Maharashtra Police Act” Paragraph 26.1 of the judgment

4. Public order and health concerns:

• • The judgment highlighted theadverse health effects of prolonged exposure to high-decibel noise, particularly on children, elderly individuals, and those with medical conditions.
  • It cited theright to life under Article 21 as including the right to live in an environment free from excessive noise pollution.

“in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during day-time or other persons carrying on other activities cannot be permitted” Paragraph 22 of the judgment

5. Precedents and consistent enforcement:

• The judgment aligned with previous rulings, including the 2016 Bombay High Court decision and the 2005 Supreme Court case
• The court reaffirmed that prior Supreme Court and High Court directives on noise pollution must be enforced rigorously and not left to selective interpretation by local authorities.

Contradictions & broader context

• The Bombay HC’s decision predominantly addressed complaints regarding Azaan (Islamic call to prayer), while similar noise levels from Hindu bhajans, kirtans, and temple bells have not received equal scrutiny. This raises concerns about selective enforcement and religious bias in the application of noise regulations.
• Religious processions and festivals (Ganeshotsav, Navratri, etc.) often receive extended time limits until 11 p.m., whereas calls for prayer and other religious activities of certain communities face stringent restrictions. The inconsistency in granting permissions highlights potential discrimination in law enforcement
• The Allahabad High Court, in its 2014 ruling, reaffirmed the Supreme Court’s stance that noise pollution regulations must apply uniformly across all places of worship and religious institutions, irrespective of faith.

The judgement may be read here:

• The 2005 Communalism Combat report noted that after the Supreme Court ruling, compliance with noise restrictions varied significantly across religious communities. While many mosques voluntarily stopped using loudspeakers beyond prescribed hours, Hindu religious processions and festivals such as Ganeshotsav and Navratri received special concessions allowing extended use of amplified sound
• In Maharashtra, reports indicate that Muslim clerics led voluntary compliance efforts, asking mosques to regulate their loudspeaker usage. Meanwhile, some Hindu religious organizations continued to push for exemptions, arguing that their practices required amplified sound beyond the prescribed limits

The report may be read here: SILENT PRAYER

The Bombay High Court’s 23/1 ruling reinforces constitutional principles that religious freedoms under Article 25 do not extend to public nuisance. However, it also exposes inconsistencies in how noise regulations are enforced across different religious practices.

The judgment on Cr WP no. 4729 of 2021 delivered by A.S. Gadkari and Shyam Chandak, JJ may be read here:

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

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Following Sridhar’s death, his father, Kannaiyan, filed a claim under the Workmen’s Compensation Act, seeking justice and financial relief. However, the case was fraught with procedural hurdles, including repeated dismissals for default due to Kannaiyan’s inability to attend hearings—a situation exacerbated by his impoverished and fragile circumstances. The protracted litigation highlighted the judiciary’s struggle to balance procedural formalities with substantive justice in cases involving vulnerable communities.

After Kannaiyan’s death, his legal representatives persisted with the claim, filing the present writ petition to challenge the rigid application of procedural norms by the Deputy Commissioner of Labour. The case not only called for compensation for Sridhar’s family but also raised critical questions about the role of state authorities and contractors in perpetuating exploitative labour practices. By situating this case within the broader context of labour rights and human dignity, the Court’s timely and decisive intervention acted as a crucial measure to address systemic failings and restore accountability within institutional frameworks.

Issues involved

1. Whether the repeated dismissals for default by the Deputy Commissioner of Labour were justified under labour welfare legislation?
2. Whether the family of the deceased is entitled to compensation despite procedural lapses?

Observations made by the court

1. The Court unequivocally held that the continued practice of manual scavenging violates fundamental human rights and directly contravenes existing statutory provisions, such as the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993.

“This case does not need any elaborate reasoning. Suffice it to state that one of our fellow human beings died of manual scavenging. This violates all tenants of human rights. Even at the relevant time, the action of the manual scavenging of the sewer stood prohibited by The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act”

(Paragraph 8 of the judgment)

2. The court observed that the death of Sridhar exemplified systemic neglect by both the state authorities and contractors, who failed to ensure basic safety measures. The Court highlighted the absolute liability of the respondents to compensate the victim’s family without procedural hurdles.

“there can be no doubt whatsoever that the said Sridhar died while he was employed as a manual scavenger when he was sent inside the underground sewer without any protective gear”

(Paragraph 2 of the judgment)

3. The Court criticised the respondents for their lack of proactive measures and emphasized that labour welfare laws demand a liberal interpretation to prevent procedural technicalities from defeating substantive justice.

“Even when a petition is filed at least at that stage, immediately the authorities should have agreed to pay the compensation. The Labour Commissioner before whom the petition was pending ought to be alive to the facts situation. Even if the petitioner does not appear, proactive steps should have been taken to summon the petitioner and compensation ought to have been paid. It was extremely unfair on the part of all the respondents” (Paragraph 9 of the judgment)

4. Citing Safai Karamchari Andolan v. Union of India (2014 11 SCC 224), the Court reiterated that compensation of ₹10,00,000 is mandatory in cases of sewer deaths. It further relied on Dr. Balram Singh v. Union of India (2023 INSC 950) to acknowledge the revised compensation of ₹30,00,000 for incidents occurring post-1993.

“The matter is no longer res integra. The Hon’ble Supreme Court of India in Safai Karamchari Andolon and Others -Vs- Union of India (2014 11 SCC 224)2 has mandated grant of a sum of Rs. 10 Lakhs to the family of the person who dies in sewer cleaning”

(Paragraph 8 of the judgment)

Guidelines issued

1. The impugned order dismissing the condonation of delay application was quashed.
2. Compensation of ₹10,00,000 was awarded as follows:
   • ₹3,30,000 to Jaya.
   • ₹3,40,000 to Venda.
   • ₹3,30,000 to minor dependents Mohan and Vijaykumar, via their guardian Venda.
3. The respondents were directed to disburse the compensation within six weeks and issue an apology letter acknowledging societal failures.
4. The Court observed that negligence by the authorities amounted to a systemic failure to prevent manual scavenging deaths.

Significance of the judgment

This judgment is a critical intervention in the ongoing battle against manual scavenging, a practice deeply entrenched in caste-based discrimination and systemic neglect. As Dr. B.R. Ambedkar poignantly remarked, “In India, a man is not a scavenger because of his work. He is a scavenger because of his birth irrespective of the question whether he does scavenging or not.” The decision of the Court not only addresses the immediate injustice faced by the family of Sridhar but also emphasizes the urgent need to dismantle structural inequalities that perpetuate this practice. The United Nations High Commissioner for Human Rights, Navi Pillay, in her statement on January 31, 2013, recognized manual scavenging as a “self-perpetuating cycle of stigma and untouchability,” calling it a “deeply unhealthy, unsavoury, and undignified job forced upon people because of their caste.” This judgment reinforces that such dehumanizing labour has no place in a modern democracy and highlights the failure to implement existing laws like the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.

Drawing on the Human Rights Watch report and the UN’s acknowledgment of India’s efforts, the judgment reflects the judiciary’s proactive role in holding state and local authorities accountable. The Court’s mandate for compensation, coupled with an apology, signals a broader responsibility to restore dignity and justice for marginalized communities. By citing landmark cases such as Safai Karamchari Andolan v. Union of India (2014) and Dr. Balram Singh v. Union of India (2023), the judgment aligns itself with the global movement to eradicate manual scavenging and rehabilitate those subjected to it. This judgment stands as a clarion call for society and the state to ensure strict enforcement of laws, provide sustainable alternatives, and break the chains of caste oppression that continue to define and degrade the lives of millions in India.

The Judgment in this case, W.P.No.2339 of 2010, delivered D. Bharatha Chakravarthy J of Madras High Court on December 17, 2024 may be read here

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

Related:

Manual scavenging: Hate crime with caste discrimination at its root, Indian Railways an offender

How courts have expanded jurisprudence for Manual Scavengers

The Manual Scavengers Act: Jurisprudence so far

Manual scavenger deaths: How effective is the law in preventing them?

Death down the drain

The post Eradicating Stigma: A Landmark Judgment on Manual Scavenging and Justice for Dalits appeared first on SabrangIndia.

On January 19, the Supreme Court Collegium, headed by Chief Justice of India D Y Chandrachudand comprising of Justices S K Kaul and K M Joseph, reiterated its decision to appoint five advocates as High Court judges. Amongst the five candidates, the collegium recommended the name of senior advocate Saurabh Kirpal for appointment as judge of the Delhi High Court.The three-member Collegium said the proposal for appointment of Kirpal as a judge of the high court has been pending for over five years and needs to be processed expeditiously.

Saurabh Kripal, the son of BN Kripal, former CJI of the country, Kirpal openly identifies as a gay man – and lives with his partner in New Delhi. The recommendation was unanimously made by the Collegium of the Delhi High Court on October 13, 2017 and approved by the Supreme Court Collegium on November 11, 2021. Setting a new standard for transparency in the otherwise veiled and centred collegium, CJI Chandrachud publicly released the objections that were posed by the Centre and the reasons given by the collegium while reiterating its recommendations.

The Collegium, referring to communication from the Research & Analysis Wing and former Union Law Minister Ravi Shankar Prasad, said that “it appears that there are two objections to the recommendation which was made by the Collegium of this Court on 11 November 2021 approving the name of Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss National, and (ii) he is in an intimate relationship and is open about his sexual orientation.”

Objections forwarded by the Centre

1. Saurabh Kripal’s partner being a Swiss National

Rejecting this objection, the Collegium had said: “As a matter of principle, there can be no objection to the candidature of advocate Saurabh Kirpal on the ground that his partner is a foreign National.” “There is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country, since the country of his origin is a friendly nation. Many persons in high positions including present and past holders of Constitutional offices have and have had spouses who are foreign Nationals,” the Collegium had said.

2. The sexual orientation of Saurabh Kripal

“The letter of the Law Minister dated April 1, 2021states that though ‘homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India. Moreover, it has been stated that the candidate’s ‘ardent involvement and passionate attachment to the cause of gay-rights’ would not rule out the possibility of bias and prejudice,” the Collegium statement said.

On the Centre’s concerns about Kirpal’s sexual orientation, the Collegium’s statement lauded Kirpal for being open about his sexual orientation, saying it “goes to his credit” that he has not been surreptitious about it.

The Collegium said that “it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground.”

“Furthermore, in regards to this objection, it needs to be noted that the decisions of the Constitution Bench of this Court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation. The fact that Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation.

“His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity. His conduct and behaviour have been above board. It may have been advisable for the candidate not to speak to the Press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration. However, this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years,” the Collegium said.

A small victory despite a delay of five years

The Supreme Court has now openly backed senior advocate Saurabh Kripal in his fight against homophobia and discrimination. But, as the objections put forth by the Centre are released,other issues have come to the forefront. Even though homosexuality has been de-criminalised in India in the year 2018, an upper caste gay man had to wait five years, until now, before he could be considered for a promotion that he deserved.

Diversity in judiciary

It is pertinent to note, that one of the objections that were forwarded by the Centre revolved around the bias that an openly gay man might hold. In other words, the Centre has subtly said that Saurabh Kripal may give out such pronouncements that might keep up with changing times and would be progressive for the LGBTQIA+ community, which in turn might cause a ripple in this male upper caste dominated system. Every day, many petitions concerning religious minorities, caste minorities, gender minorities and the LGBTQIA+ communities are filed in courts. The orders in most such cases are pronounced by benches where no member is from the marginalised community directly affected. Even during the judgement pronouncing decriminalisation of homosexuality, the constitutional bench comprised of people who were not from the community.

The questions that arise now is that if the existing judges of the Courts are equipped to handle such cases. How diverse is the current judicial system? And, how fair are the judgements that are given by benches where there is no representation of the community that has filed the petitions.

Even in cases of judgements concerning the communities of Dalits, Adivasis, Women, Transgender people, Muslims or Christians, how much of the opinion of the affected communities are taken into consideration before the judgements are pronounced, if no member from the marginalised community exist on the bench?

To date, 247 judges have been appointed to the Supreme Court. The maximum strength of judges initially was eight, which has now been stretched to 34. As on the date of penning this piece, from the current list of the 28 sitting judges at the Supreme Court, only three women judges are present, namely Justices Hima Kohli, Bela Trivedi and B.V. Nagarathna, one Muslim judge, Abdul Nazeer, one Parsi judge, namely Justice Jamshed Burjor Pardiwala, one Christian judge, namely K.M. Joseph, and two Dalit judges, C.T. Ravikumar and Bhushan Ramkrishna Gavai. None of the current judges are from the queer community or the ST community. Through this, it can be deduced that even the current list of judges sitting at the Supreme Court, a majority of them are from the privileged castes.

Women and other marginalised communities, such as Scheduled Castes and Scheduled Tribes, are chronically under-represented. Despite the fact that there are over a hundred million indigenous tribal members, no judge from a Scheduled Tribe has ever been appointed to the Supreme Court in its 70-year history. Only three of the 25 Supreme Court justices chosen since 2014 have been women, with two more appointed in 2018.[1] Despite accounting for around 25% of the Indian population, neither Scheduled Castes nor Scheduled Tribes are adequately represented on the Bench. Frequently, the Supreme Court rules on issues affecting marginalised people.

Recent judgements on problems impacting these communities, such as the eviction from forests or compensation awards, have shattered these groups’ faith in the Court. The Supreme Court is not representational of India’s diversity, despite the fact that it, like other state institutions, should work towards inculcating people from all communities, especially women belonging to the marginalized community. It has been debated by many that higher judiciary operates like ‘Old Boys Club’ given the high levels of representation of just a few families on High Court and Supreme Court benches.

Gender Representation in the judiciary

Women Representation:

On September 1, 2021, when Justices Hima Kohli, Bela Trivedi and B.V. Nagarathna were sworn in as judges of the Supreme Court, the Law Minister Kiren Rijiju had called it a “historic moment for gender representation”; India’s ambassador to the US said it was “a proud moment”; and many others tweeted congratulatory messages to the new justices on their “momentous day”. While the nominations were undoubtedly applauded because they decreased the gender imbalance in India’s top court, a majority of people believed the celebrations were premature because the uneven gender balance in India’s judiciary had yet to be addressed. The most women members present the Supreme Court had been 4, the current three and the now retired Justice Indira Banerjee.

Retired Chief Justice NV Ramana had been a vocal advocate of getting more women judges appointed in the judiciary. He had once said, “After 75 years of independence, one would expect at least 50% representation for women in the judiciary at all levels. But with great difficulty, we have now achieved a mere 11% representation of women in the Supreme Court.”^[2]

While our current CJI is a man with a hitherto unmatched vocal awareness on gender issues who promotes gender empowerment, it is crucial that matters which affect the whole community of women, such as marital rape or grant of period leave, are heard and decided by benches with women representation. The presence of adequate women on the bench, not just in the Supreme Court but in High Courts and trial courts is critical to the judiciary’s legitimacy.

Achieving equality for women judges in regards to their representation at all tiers of the judiciary and on policy-making judicial councils should be our objective, not only for women, but also for the accomplishment of a more just rule of law.  Women judges apply their lived experiences to their judicial acts, experiences that trend toward a more comprehensive and empathic perspective—one that includes not only the legal foundation for judicial action, but also understanding of the implications on those affected.

LGBTQIA+ representation:

Joyita Mondal became the first openly transgender person to be appointed as a judge of a Lok Adalat, or People’s Court, in the year 2017. This accomplishment, at 29 years old, was the pinnacle of her path from homeless school dropout to founder of an organisation (‘Dinajpur Notun Alo’) dedicated to assisting transgender Indians in her region.

This was a significant victory for the transgender community, as there are few options for transgender people in India, many of whom are forced to beg or work as sex workers to survive. Joyita’s appointment was approved since she is a social worker with “proven credibility as a judge.”

If the recommendation of Saurabh Kripal is finally –albeit with reluctance –accepted by the Centre, he will become the first openly gay man to be appointed as a judge in the judiciary. As can be deduced from this, there is a dire need for more LGBTQIA+ representation in the judiciary. On the other hand, it is probable that some members of the bench do belong to the community but have kept their identity hidden owing to the stigma attached to the same. The appointment of Kirpal as judge will open doors of opportunity for the LGBTQIA+ community to identify themselves so, despite being at the Bar or even the Bench.

On Constitution Day 2022, the Supreme Court of India issued a Sensitization Module for the Judiciary on the LGBTQIA+ Community, with the goal of educating judges, magistrates, and judicial personnel in India about the LGBTQIA+ community. One of its primary points is the admission that there are no legal or constitutional safeguards in India to protect members of the queer community from discrimination.

The guidebook was developed as a collection of recommendations that may be adopted by some courts and judges. The authors to the handbook are diverse as well, including lawyers, activists, and scholars; nevertheless, it is unclear whether there is adequate representation from queer and trans* people practicing law.

The module lays down guidelines for police and magistrates to follow when adjudicating criminal complaints or dealing with issues filed by or against LGBTIQA+ individuals, which is critical because police awareness of how they should treat people from the LGBTQIA+ community has been mostly lacking.

Caste and Religion based representation in the judiciary

Religion based representation:

Muslims are not simply one of India’s many minority groups; they constitute one of the largest Muslim populations in the world and hence a significant minority. In India, Muslims account for about 15% of the population, but their presence in the higher judiciary is almost non-existent. Currently, the Supreme Court has only one Muslim justice. Many legal luminaries and scholars believe that Muslims should have enough representation in the higher judiciary so that minorities can have faith in the highest judicial institution that decides the legal fate of the nation.

In the recent past, a number of issues concerning the Muslim population have been decided upon by the Supreme Court. From the issue of hijab ban on Muslim women, on which a split judgement was delivered, and the Gyan Vapi case (where the matter of applicability of the sensitive Places of Worship Act, 1991 has been called to account, to cases of hate speech, targeted violence and forced evictions against Muslims have been pronounced by various high courts and the Supreme Court. In most of these cases, the bench comprised of judges who did not hail from the affected community at all. It is crucial that while major judgements affecting the Muslim minority are given, a member from the community is present. Doing this might increase the trust of the public in the judiciary as well as bring a much needed ground perspective.

Caste based representation

Inequitable representation of backward and minority communities in higher judiciary is evident from the fact that 79% of all high court judges appointed in the past five years (2018 to 2022) are from privileged castes, according to a presentation made recently by the Union law ministry before a parliamentary panel.[3] Absence of judges from agrarian communities (farmers) or those from the working class backgrounds render sensitivity of the Bench to issues of farmers and worker’s rights a serious question.

Scheduled caste representation in the legislature, executive and public services, was included in the Constitution. However, this did not extend to the judiciary.

The first Scheduled Caste judge to be appointed was Justice K. Varadarajan in December 1980. After his appointment, there was always one Scheduled Caste judge at the Court until 2010.It is also worth noting that except for a short period of a year in 1990, two Dalit judges had not served on the Court at the same time, till this was changed in August 2021, with the appointment of Justice C.T. Ravikumar. Justice Ravikumar belongs to the Scheduled Caste community. His appointment, in addition to Justice Bhushan Ramkrishna Gavai is significant: this now means that 6% of sitting judges in the Supreme Court now belong from a Scheduled Caste.

But, even after more than seven decades of achieving independence, there is almost no representation of the Scheduled Tribes. The SC/ST communities in India has been, and still are, one of the most oppressed and otherised communities. The violence against the SC and ST communities have been increasing. When an upper caste individual pronounces a judgement on issues concerning the caste minorities, their knowledge on the level of discrimination and ostracisation faced by them is limited. Legislation requires judges to use their independent discretion and reasoning to decide various matters depending on their facts. It is hard for judges not to draw from their own lived experience when doing so. This is why, among other aspects of diversity of identity, a close look at the diversity and plurality within India’s higher and other judiciary is essential; to ensure equitable representation and comprehension of the interests and issues of all classes of people.

Conclusion

In the current judicial system of India, there exists a hegemony of privileged caste Hindu men. While on the one hand it can be argued that diversity of any kind enhances the court’s legitimacy and builds public confidence, there is considerably more merit in substantive diversity. Often, diversity then becomes a token symbol to evoke a feeling of representation and inclusivity in the highest courts. 

The reiteration of Saurabh Kripal’s recommendation with the aim of promoting diversity is a progressive and much needed step towards passing the mic and making space for individuals who can push for equal rights and prevent regressive legislation from being passed. It is however a beginning and not enough.

A robust and healthy democracy ought to allow individuals from the oppressed and marginalised classes to raise their voices, and help bring equity and equality by shaping the law and policy that governs our country. The dearth of diverse voices and lived experiences in Legislature and Judiciary must be remedied.

It is time that all countries, especially India- which is a proud diverse democratic country, take steps to ensure full participation of all the minority communities- gender, class, religion, caste or sexual orientation, rural urban divide- in all walks of life and their representation at various levels including leadership positions.

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