India, a nation aspiring to be a knowledge-driven economy, faces a stark paradox: its vast human capital and the individual brilliance of its scientists, often demonstrated abroad, do not translate into strong national research and development (R&D) performance. The country’s ambition to grow into a US$5 trillion economy is fundamentally tied to its capacity for innovation, yet its R&D ecosystem is not fit for purpose. This gap suggests the problem is not a deficiency of talent but the absence of a nurturing and enabling environment. India’s path to becoming an R&D superpower is blocked by a combination of chronic underinvestment, deep-seated inefficiencies in its educational and bureaucratic systems, a risk-averse private sector, and cultural norms that often undervalue original research. Overcoming these challenges requires profound, systemic reforms.

Global R&D landscape: India’s position

A comparative analysis shows the significant ground India must cover. As of 2018, the nation’s Gross Expenditure on R&D (GERD) had stagnated at a meagre 0.64% of its GDP for over two decades. By 2021, this had not changed, and the GERD continued to be at less than 0.7 percent. However, the absolute spending rose from 2010 to 2020 from Rs.60,000 Crore to Rs. 1,20,000 Crore. Essentially, money spent on R&D rose while the percent of it, of the GDP has not.

This pales in comparison to R&D powerhouses like South Korea (around 5%), Israel (over 5%), the USA (around 3.5%), and a rapidly advancing China (around 2.5%). The world average is approximately 1.8%. This chronic underinvestment severely limits resources for infrastructure, talent, and high-risk projects.

The following image shows India’s GERD in comparison with other countries, despite the varied years, the general trend is to be noted and interactive data can be found here.

Source: World Bank

Beyond funding, other metrics highlight the challenge. In the 2024 Global Innovation Index (GII), India ranked 39th. While an improvement, it trails key competitors. More telling is the density of research talent: India has only about 255 full-time equivalent (FTE) researchers per million people, a fraction of the figures in the US (over 4,800), Germany (5,400). Furthermore, while patent filings have increased, nearly 75% of patents filed in India are being done by foreign entities, suggesting that domestic ownership and commercialization are weak.

Interestingly, India’s GII rank for ‘Innovation Outputs’ is higher than its rank for ‘Innovation Inputs’. This suggests that the country is relatively efficient at converting its limited resources into outcomes. Therefore, a substantial and targeted investment in improving the inputs—funding, talent, and infrastructure—could yield disproportionately positive results.

Systemic fault lines: The domestic hurdles

India’s R&D underperformance stems from interconnected domestic problems.

1. The Educational bottleneck: The foundation of any R&D ecosystem is its education system, but India’s is plagued by challenges. A pervasive culture of rote memorization, driven by an exam-oriented system, stifles the creativity and critical thinking essential for research. Most universities, with few exceptions, lack a strong research culture, adequate infrastructure, and sufficient funding, remaining primarily teaching-centric. A significant disconnect also exists between academia and industry, with India ranking a low 86th in the GII for university-industry R&D collaboration. This gap means academic research rarely translates into market-ready innovations. Compounding these issues is a persistent “brain drain,” where highly skilled scientists and engineers migrate to countries offering superior opportunities, funding, and quality of life. This depletes the domestic talent pool and weakens the entire ecosystem.
2. Governance and institutional inertia: The governance framework for R&D is another major obstacle. The system is often crippled by bureaucratic hurdles, including rigid funding rules, long delays in grant disbursal, and complex approval processes that consume researchers’ valuable time. A hierarchical culture, particularly in public R&D organizations, can stifle new ideas from younger talent. Public research institutions often lack the academic, administrative, and financial autonomy needed for agility and innovation, operating under the tight control of regulatory bodies. This contrasts with successful international models like Germany’s Max Planck and Fraunhofer Institutes, which balance autonomy with clear mandates. Finally, even available talent is often used sub-optimally due to skill mismatches and inefficient in hiring and promotions.
3. The apathetic private sector: A critical weakness is the low R&D investment from the private sector, which contributes only about 36% of India’s GERD, compared to over 70% in leading economies. This reluctance stems from a general risk aversion among Indian businesses, a focus on short-term profitability, and a preference for importing technology or making incremental innovations rather than engaging in capital-intensive, deep-tech R&D. The fragile innovation ecosystem exacerbates this.

Cultural undercurrents: The societal value of research

Subtle but powerful cultural factors also shape India’s R&D landscape. A strong societal preference for “secure” careers like engineering, medicine, and civil services means research—seen as uncertain and less lucrative—is often deprioritized. The celebrated “Jugaad” mind-set, or frugal, makeshift innovation, while resourceful, can detract from the need for the systematic, rigorous R&D required for breakthrough discoveries. Finally, the portrayal of scientists in mainstream media is often limited and unglamorous, failing to inspire young people to pursue research careers. This cultural undervaluation translates into a lack of political will to enact the long-term, sweeping reforms needed to transform the R&D ecosystem. While this representation aspect is changing slowly, this cannot drive the major change.

Islands of excellence in a sea of mediocrity

Despite the systemic weaknesses, India has pockets of R&D success that demonstrate its potential. The Indian Space Research Organisation (ISRO) is a prime example, thriving due to its mission-oriented approach, operational autonomy, and strong leadership. However, its success is hard to replicate as it largely functions in a closed-loop system as its own developer and end-user. The pharmaceutical sector is another success story, known for its dominance in generic drug manufacturing. Yet, it lags significantly in new drug discovery, with most R&D focused on reverse engineering. Finally, the extraordinary success of the Indian diaspora—including Nobel laureates and tech CEOs who have flourished in the well-funded, ecosystems of the West—is the most powerful testament that the core issue is not a lack of talent but the absence of an enabling environment at home.

Charting a course correction: A multi-pronged reform agenda

To unlock its R&D potential, India must adopt a comprehensive reform agenda.

1. Revamp R&D funding: India must increase its GERD to at least 2-2.5% of GDP. This funding should be strategically allocated to national missions in critical areas like AI and renewable energy, while also supporting basic, curiosity-driven research. The government should ensure timely disbursal of funds, and attractive Public-Private Partnership (PPP) models must be developed to boost private investment.
2. Transform education: Curricula must be reformed to integrate research methodology, and pedagogy must shift from rote learning to inquiry-based learning. Universities need funding to build research infrastructure and forge stronger, mandatory links with industry.

3. Institutional and governance reforms: “Ease of Doing R&D” initiatives must be urgently implemented to cut through bureaucracy. Public research institutions need greater autonomy, coupled with robust accountability frameworks.

4. Cultivate a pro-innovation culture: A national effort is needed to improve science communication and make research careers more attractive. This includes encouraging a cultural shift from celebrating only “Jugaad” to valuing deep, original R&D and implementing strategies to attract and retain top talent, including from the diaspora. This also includes a shift in moving beyond the notions of trying to find answers to modern questions in the past.

Conclusion: Realising India’s R&D superpower aspiration

India is at the crossroads. The challenges it faces stem from chronic underinvestment, structural rigidities, private sector hesitancy, and cultural biases. Closing the gap between its potential and performance requires a national mission characterized by unwavering political will and a sustained, multi-decade commitment. A piecemeal approach is doomed to fail. The solution must be a holistic, reform across funding, education, governance, and culture. By transforming its isolated “islands of excellence” into a thriving, interconnected mainland of innovation, India can reach its true potential.

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

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The post The Science Problem: Why India lags behind in research & development appeared first on SabrangIndia.

The Immigrant Expulsion from Assam Act, 1950 (hereinafter IEAA) emerged from the unique and tumultuous socio-political landscape of post-Partition India. Enacted to address the significant influx of migrants into Assam, primarily from what was then East Bengal (later East Pakistan, and now Bangladesh), the IEAA was a legislative response to demographic shifts perceived as impacting the region’s economy and social fabric. At the time of its enactment, the general framework of the Foreigners Act, 1946, did not extend to individuals migrating from the newly formed Dominion of Pakistan, necessitating a specific statute for Assam which was experiencing a particularly acute situation.

Recently, the IEAA has been thrust into the spotlight due to interpretations suggesting it confers, or that the Supreme Court of India has affirmed its conferral of, extensive and summary expulsion powers upon district administrative authorities, such as District Collectors or Deputy Commissioners. This interpretation, notably articulated by Assam’s Chief Minister Himanta Biswa Sarma, posits that these authorities can expel individuals deemed to be foreigners under the IEAA without recourse to the established quasi-judicial process of the Foreigners Tribunals. Such an interpretation implies a significant departure from the procedural safeguards that have evolved in Indian administrative and constitutional law concerning the determination of nationality and the profound act of deportation.

This article contends that such an interpretation is a fundamental misreading of the IEAA itself, is not substantiated by a careful analysis of the Supreme Court’s recent judgment in In Re: Section 6A of the Citizenship Act 1955 and stands in opposition to established principles of administrative law and due process.[1] This piece builds on an earlier work discussing the processes and procedures of deportation, which can be accessed here.

Far from endorsing an unfettered executive power of expulsion at the district level, the Supreme Court’s pronouncements, when read holistically, suggest an integration of the IEAA within the existing, more elaborate procedural framework for identifying and dealing with foreigners. The erratic understanding appears to arise from a selective and decontextualized reading of both the 1950 Act and the Supreme Court’s observations, potentially fuelled by a desire for more expedited executive action in a complex and sensitive domain. The timing of this re-interpretation, particularly following the Supreme Court’s judgment, suggests an attempt to leverage judicial pronouncements to legitimise a pre-existing executive inclination towards summary powers, overlooking the nuanced directives for the harmonized application of various statutes governing foreigners in Assam.

II. The Immigrant Expulsion from Assam Act, 1950: Legislative intent and provisions

An examination of the IEAA’s text is essential to understand its original scope and intended operation. The pivotal provision concerning expulsion is Section 2, titled “Power to order expulsion of certain immigrants”. This section states as follows:

2. Power to order expulsion of certain immigrants.—If the Central Government is of opinion that any person or class of persons, having been ordinarily resident in any place outside India, has or have, whether before or after the commencement of this Act, come into Assam and that the stay of such person or class of persons in Assam is detrimental to the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam, the Central Government may by order—

(a) direct such person or class of persons to remove himself or themselves from India or Assam within such time and by such route as may be specified in the order; and

 (b) give such further directions in regard to his or their removal from India or Assam as it may consider necessary or expedient:

Provided that nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from or has left his place of residence in such area and who has been subsequently residing in Assam.

The basis for such an order is the Central Government’s “opinion” that the continued presence of the individual or group is “detrimental” to specified public interests. While the formation of an opinion involves subjective satisfaction, in the contemporary administrative law paradigm, such satisfaction cannot be arbitrary or devoid of objective material; it remains susceptible to judicial review on grounds of mala fides, non-application of mind, or reliance on irrelevant considerations, particularly when fundamental rights—Article 14 and 21 in this case— are implicated. More on this is discussed in Part VI of this article. For now, let us get back to IEAA.

The Act further provides for the delegation of these powers. Section 3 of the IEAA, “Delegation of power,” states:

“The Central Government may, by notification in the Official Gazette, direct that the powers and duties conferred or imposed on it by section 2 shall, subject to such conditions, if any, as may be specified in the notification, be exercised or discharged also by—

(a) any officer subordinate to the Central Government.

(b) the Government of Assam, Meghalaya or Nagaland or any officer subordinate to that Government.”

This provision underscores that any power exercised by a District Collector or Deputy Commissioner under the IEAA would stem from a specific, conditional delegation by the Central Government. It is not an autonomous power. The nature and scope of such delegated authority are circumscribed by the conditions laid down in the notification and the parent Act itself. The claim that District Collectors inherently possess sweeping expulsion powers under the IEAA overlooks this crucial two-step process: the primary power resting with the Central Government, followed by a conditional delegation.

Furthermore, the Proviso to Section 2 of the IEAA introduces a significant qualification:

“Provided that nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from or has left his place of residence in such area and who has been subsequently residing in Assam.”

This proviso indicates that even in 1950, the legislature intended to differentiate among categories of migrants, offering protection to those displaced due to civil disturbances. This nuanced approach undermines any interpretation of the IEAA as an indiscriminate tool for the summary expulsion of all individuals who might have entered Assam from territories that became Pakistan. It suggests a legislative intent sensitive to humanitarian concerns, even within an Act focused on expulsion.

The original legislative intent, as contextualized by the Supreme Court, was to address a specific gap: the Foreigners Act, 1946, did not initially apply to immigrants from Pakistan (as it was then) specifically, and Assam was facing a unique migratory pressure. The IEAA was thus a targeted measure for a particular historical moment, preceding the more comprehensive and procedurally detailed framework later established by the Foreigners (Tribunals) Order, 1964.

III. Decoding the Supreme Court’s Judgment in In Re: Section 6A of the Citizenship Act 1955

The Supreme Court’s judgment in In Re: Section 6A of the Citizenship Act 1955 is central to the current debate. A careful reading of the opinions of the learned judges is necessary to ascertain what the Court actually said about the IEAA and its interplay with other laws.

Chief Justice Dr. D.Y. Chandrachud’s Opinion

CJI Justice Chandrachud(as he was then), in his opinion, provided a historical overview of the IEAA, noting its enactment was prompted by the fact that the Foreigners Act, 1946, initially did not cover immigrants from Pakistan, and that the IEAA was specifically applied to Assam to deal with large-scale immigration from East Bengal. The Foreigners Act’s limitation was due to the fact that it was enacted during the British rule and the limitation was rectified via an amendment in 1957.

This historical context is vital, as it positions the IEAA as a measure designed to fill a legislative void that was subsequently addressed by more comprehensive legal frameworks.

Justice Chandrachud’s opinion, while not having any declarations over whether the IEAA survives or not, had two crucial points.

1. Parliament did not want the powers given by IEAA to be used against those who were refugees that have migrated into India in account of civil disturbances or the fear of it (Para 53).
2. The act only applied to the state of Assam meaning—not only that these powers can only be granted to the district authorities in Assam, but the exercise of these powers can also only be against the immigrants in Assam and not rest of India (Para 53). This means that forcibly transporting alleged immigrants to Assam and using IEAA to deport them is not lawful.

Justice Surya Kant’s opinion for the majority

Justice Surya Kant’s opinion, on behalf of himself and Justices M.M. Sundresh and Manoj Misra, contains several crucial points regarding the IEAA.

1. Critically, Justice Kant stated that the IEAA and the Foreigners Act, 1946, are not in conflict and, in fact, “supplement and complement each other within the framework of Section 6A” (Para 376). This statement directly counters any notion that the IEAA operates in isolation with overriding powers, suggesting instead a synergistic relationship.
2. Referencing Sarbananda Sonowal v. Union of India, Justice Surya Kant affirmed that the IEAA, the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, and the Passport Act, 1967, all apply to the State of Assam.[2] This reinforces the understanding of a composite legal framework governing foreigners in Assam, rather than the IEAA standing as a singular, overriding statute.
3. One of the key directives issued by the Bench for which Justice Surya Kant authored the opinion is: “The provisions of the Immigrants (Expulsion from Assam) Act, 1950 shall also be read into Section 6A and shall be effectively employed for the purpose of identification of illegal immigrants. (Para 391)“ The phrasing “read into Section 6A” and “employed for the purpose of identification” strongly suggests an integrative and procedural application. Section 6A (1)(b) of the Citizenship Act, 1955 itself defines “detected to be a foreigner” by reference to the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. If the IEAA were intended to provide an alternative, tribunal-exempt route for expulsion, the judgment would likely have clarified this. Instead, its use is linked to “identification,” which is a primary function leading to or forming part of the tribunal process.
4. Justice Surya Kant further opined as follows about the scope of both IEAA and the Foreigners Act, 1946:

As discussed above, IEAA is only one of the statutes that addressed a specific problem that existed in 1950. The issue of undesirable immigration in 1950 necessitated the promulgation of the IEAA and the granting of power to the Central government to expel such immigrants. On the contrary, the provisions of Section 6A have to be viewed from the focal point of 1971, when Bangladesh was formed as a new nation and an understanding was reached to grant citizenship to certain classes of immigrants who had migrated from erstwhile East Pakistan, as has been detailed in paragraphs 230 and 231 of this judgement. Hence, Section 6A, when examined from this perspective, is seen to have a different objective—one of granting citizenship to certain classes of immigrants, particularly deemed citizenship to those immigrants who came to India before 01.01.1966 and qualified citizenship, to those who came on or after 01.01.1966 and before 25.03.1971.

Since the two statutes operate in different spheres, we find no conflict existing between them. The Parliament was fully conversant with the dynamics and realities, while enacting both the Statutes. The field of operation of the two enactments being distinct and different and there being a presumption of the Legislature having informed knowledge about their consequences, we decline to hold that Section 6A is in conflict with a differently situated statute, namely the IEAA.

Instead, we are satisfied that IEAA and Section 6A can be read harmoniously along with other statutes. As held in Sarbananda Sonawal (supra), none of these Statutes exist as a standalone code but rather supplement each other. [Paras 379, 380 & 381]

Justice J.B. Pardiwala’s Opinion

Justice Pardiwala, in his dissent over the validity of Section 6A of the Citizenship Act, 1955, touches upon IEAA but not in any substantial terms.

Collectively, these opinions affirm the continued validity and operability of the IEAA but situate its application within the broader, evolved legal framework governing foreigners. There is no explicit statement in any of the opinions that the IEAA empowers District Collectors to expel individuals based on a prima facie “opinion” without reference to the Foreigners Tribunals, nor that such an “opinion” under IEAA can substitute a tribunal’s quasi-judicial finding. Such a significant departure from the established Tribunal system, if endorsed by the Supreme Court, would have necessitated clear and unambiguous language, which is conspicuously absent.

IV. Why the Supreme Court Judgment disallows an inference of unfettered expulsion powers under IEAA, 1950

The assertion that the Supreme Court’s judgment in In Re: Section 6A  grants, or affirms, sweeping summary expulsion powers to District Collectors under the IEAA, thereby bypassing the Foreigners Tribunals, is not borne out by a careful reading of the judicial pronouncements. Several arguments counter this interpretation:

First, the judgment, particularly Justice Surya Kant’s opinion, emphasizes integration and supplementation, not supersession. The directive to “read into Section 6A” and employ the IEAA “for the purpose of identification of illegal immigrants” (Para 391(e)) implies that the IEAA is to function as a component within the broader machinery. Section 6A (1)(b) of the Citizenship Act itself defines “detected to be a foreigner” as detection “in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted under the said Order”. If the IEAA were to provide a parallel mechanism that bypasses this definition for expulsion purposes, the Supreme Court would have had to explicitly state that the requirement of tribunal-based detection could be circumvented under the IEAA. No such statement is made. Instead, the IEAA’s role is linked to “identification,” which is the preliminary step that often leads to a reference to a Foreigners Tribunal for a conclusive determination of status.

Second, the power delineated in Section 2 of the IEAA is primarily vested in the Central Government. While Section 3 allows for the delegation of this power, such delegation is subject to conditions specified in the notification. Crucially, delegated power cannot be exercised in a manner that contravenes fundamental due process requirements or ignores established statutory mechanisms like the Foreigners Tribunals, especially when the Supreme Court itself links the IEAA’s contemporary use to “identification” within the Section 6A framework. The scope of delegated authority cannot be broader than the power of the delegating authority when read in conjunction with other prevailing laws and constitutional mandates ensuring procedural fairness.

Third, the Supreme Court’s affirmation of the IEAA’s validity and continued operability signifies that the Act remains on the statute books and can be invoked. However, this affirmation does not translate into a license to use the Act in a manner that disregards the specialised, quasi-judicial mechanism of Foreigners Tribunals. These tribunals are specifically established for the determination of a person’s status as a foreigner – a critical determination that must precede the severe consequence of expulsion. The interpretation that “valid and operative” means “valid for summary, independent action” is a misconstruction; the Act is valid as part of the legal toolkit, not as a master key that overrides other procedural safeguards.

Fourth, the profound implications for due process and individual liberty that would arise from granting summary expulsion powers to District Collectors, bypassing tribunals, are such that if the Supreme Court intended to endorse such a system, it would have done so explicitly and with clear reasoning. The Court’s silence on this specific point, coupled with its emphasis on the integrated and complementary application of the relevant statutes, is telling. The judgment upholds the IEAA’s existence but implicitly requires its application to be harmonized with the current, more evolved procedural framework for determining foreigner status. The focus on “identification” by Justice Surya Kant (J. Surya Kant, Para 391(e)) is pivotal. Identification is typically the precursor to adjudication by a Tribunal. If the IEAA allowed a District Collector to identify and expel based solely on a “prima facie” view, as suggested by Assam CM, the elaborate and long-standing Foreigners Tribunal system in Assam would be rendered largely redundant for a significant category of cases – an outcome the Supreme Court does not appear to endorse.

V. Harmonising the IEAA 1950 with the Foreigners Act, 1946, and the Foreigners (Tribunals) Order, 1964

The Foreigners Act, 1946, particularly Section 3, empowers the Central Government to make orders, inter alia, for prohibiting, regulating, or restricting the entry of foreigners into India or their presence therein. It is under this provision that the Foreigners (Tribunals) Order, 1964, was promulgated, establishing Foreigners Tribunals specifically for the quasi-judicial determination of whether a person is a foreigner. This mechanism is central to the definition of “detected to be a foreigner” in Section 6A (1)(b) of the Citizenship Act and is frequently referenced in the Supreme Court’s judgment as the established process.

A harmonious construction, consistent with the Supreme Court’s directive to “read into Section 6A” and use the IEAA “for identification” [J. Surya Kant, Para 391(e)], would mean that information gathered or preliminary assessments made by the district administration (as a delegate of the Central Government under IEAA Section 3) could form the basis of a reference to a Foreigners Tribunal. The “opinion” of the Central Government (or its delegate) under IEAA Section 2 that a person’s stay is “detrimental,” could serve as a ground for initiating a formal inquiry or making such a reference. However, the crucial determination of foreigner status itself, which is a prerequisite for expulsion under either Act, would remain within the purview of the Foreigners Tribunals, as per the dominant legislative scheme and procedural due process.

This interpretation aligns with Justice Surya Kant’s observation that the IEAA and the Foreigners Act “supplement and complement each other”, rather than the IEAA providing an overriding, summary power that displaces the tribunal system. The Foreigners (Tribunals) Order, 1964, provides a specific and more recent procedural mechanism for the determination of foreigner status.

The IEAA, on the other hand, is broader in identifying the class of persons who can be expelled and the ultimate executive authority responsible (the Central Government or its delegate). Harmonisation suggests that the IEAA identifies who might be subject to expulsion and by whom the ultimate executive order of expulsion might be issued, while the Foreigners Act and the Foreigners (Tribunals) Order provide the process for establishing the critical precedent fact – whether the individual is indeed a foreigner. The term “identification” used by Justice Surya Kant is distinct from “adjudication” or “declaration” of foreigner status. District administration can play a role in preliminary identification (i.e., forming a prima facie suspicion), but the quasi-judicial adjudication of that status, given its severe consequences, aligns with the specialized role of Foreigners Tribunals.

VI. Jurisprudential foundations: Due Process and limitations on executive power in expulsion

The exercise of any statutory power, particularly one as impactful as expulsion, must be viewed through the prism of India’s evolved constitutional jurisprudence. Administrative law principles, especially those concerning natural justice (audi alteram partem, rule against bias) and the requirement for reasoned decisions, have been significantly strengthened by the Supreme Court over decades. An archaic statute like the IEAA, 1950, cannot be interpreted in a vacuum, isolated from these constitutional developments. The principle of “updating construction” requires that older statutes be read, as far as possible, in conformity with later constitutional norms and human rights jurisprudence. The IEAA, therefore, must operate within the current legal environment where procedural fairness is paramount.

For example, in Hukam Chand Lal vs. Union of India, the government disconnected the person’s telephones, citing a “public emergency” due to their alleged use for illegal forward trading (satta). The Supreme Court found the disconnection unlawful.[3] It held that the authority, the Divisional Engineer, failed to apply his own mind and record his own satisfaction that an emergency existed. Instead, he acted solely on the government’s declaration. The Court ruled that such drastic powers require the designated authority to rationally form their own opinion, not just follow orders.

In S.N. Mukherjee vs. Union of India, the Supreme Court addressed whether administrative authorities must provide reasons for their decisions.[4] In this case, the Court laid down a landmark principle: the requirement to record reasons is a part of natural justice. It held that providing reasons ensures fairness, prevents arbitrariness, guarantees application of mind by the authority, and enables effective judicial review.

The determination of whether a person is a foreigner, a decision that can lead to expulsion, has profound consequences for individual liberty, family life, and personal security. Such a determination inherently demands a fair, transparent, and quasi-judicial process. To contend that the IEAA allows for summary expulsion based solely on an executive “opinion,” without a quasi-judicial hearing by a specialized body like a Foreigners Tribunal, would be to argue for a procedure that is likely to be deemed arbitrary and violative of Articles 14 and 21 of the Constitution. Article 21 guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law, and such procedure must be fair, just, and reasonable.

The very establishment and continued strengthening of the Foreigners Tribunal system over several decades signifies a legislative and judicial recognition that determining foreigner status is a complex matter requiring a specialized, quasi-judicial approach. While there are issues with the current system of foreigner tribunals, the way is not to go backward in terms of procedural fairness but to move forward to make processes fairer. This evolution points away from purely executive determinations of such critical facts, especially when a statutory framework for quasi-judicial assessment is in place.

VII. Conclusion: Upholding the rule of law and procedural propriety

The analysis of the Immigrant Expulsion from Assam Act, 1950, the relevant provisions of the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, and the Supreme Court’s judgment in In Re: Section 6A of the Citizenship Act 1955  leads to the firm conclusion that the IEAA does not confer unfettered, summary expulsion powers upon district administrative authorities that would allow them to bypass the established quasi-judicial framework of the Foreigners Tribunals.

The Supreme Court’s judgment, far from endorsing such an interpretation, supports an integrated and harmonized application of these statutes. Justice Surya Kant’s directive to “read into Section 6A” and employ the IEAA “for the purpose of identification of illegal immigrants” [ J. Surya Kant, Para 391(e)] indicates that the IEAA is to be used as a tool within the broader framework, likely to initiate inquiries or make references to the Foreigners Tribunals, which remain the designated bodies for the quasi-judicial determination of a person’s status as a foreigner. This interpretation is consistent with the principle that specific procedural statutes (like the Foreigners (Tribunals) Order) govern the determination process, while the IEAA may provide grounds or identify the authority for expulsion once such determination is made.

The constitutional imperatives of due process, enshrined in Articles 14 and 21 of the Constitution, mandate that any action as severe as determining nationality and ordering expulsion must be preceded by a fair and just procedure. In the context of Assam, this procedure is embodied in the Foreigners Tribunal system. Any interpretation that suggests the IEAA allows District Collectors to unilaterally form an “opinion” and expel individuals without recourse to these tribunals is not only a misreading of the Supreme Court’s recent judgment but also runs contrary to the evolution of administrative and constitutional law in India. Such an approach would be detrimental to the rule of law and could lead to arbitrary outcomes, eroding public trust in the legal system’s ability to handle complex immigration issues with fairness and consistency.

The constitutionally appropriate approach is for the district administration—acting under powers delegated by the Central Government, including those under the IEAA—to identify suspected illegal immigrants and refer their cases to the Foreigners Tribunals for a quasi-judicial determination of status. Deportation may then proceed in accordance with established legal procedures, which you can read about here. This ensures a balance between the state’s legitimate interest in managing immigration and its constitutional obligation to uphold the rule of law and procedural fairness.

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

[1] 2024 INSC 789

[2] (2005) 5 SCC 665

[3] AIR 1976 SUPREME COURT 789

[4] 1990 (4) SCC 564

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The post The contested interpretation of the Immigrant Expulsion from Assam Act, 1950 appeared first on SabrangIndia.

Court: Supreme Court of India

Bench: Chief Justice B.R. Gavai and Justice Augustine George Masih

Date of Order: May 22, 2025

A system on trial

In a powerful assertion of personal liberty over procedural inertia, the Supreme Court of India intervened to grant bail to Lakshya Tawar, a man whose plea for release had been adjourned an astonishing 27 times by the Allahabad High Court. Having already spent over four years in detention, Tawar’s case became a flashpoint for judicial delay. The apex court’s decision was not a commentary on the merits of the criminal allegations against Tawar but a sharp rebuke of a system that allowed a bail hearing—a matter of fundamental rights—to languish indefinitely. “In matters of personal liberty,” the bench led by Chief Justice Gavaideclared in its order, “the High Courts are not expected to keep the matter pending for such a long time and do nothing, except for adjourning from time to time.”^[1] The ruling serves as a critical case study on the judiciary’s role as the ultimate guardian of Article 21 and the dire consequences when procedural delays effectively negate the right to a timely hearing.

The factual background: A labyrinth of deferrals

Lakshya Tawar was arrested, facing serious charges of cheating, forgery, criminal conspiracy under the Indian Penal Code, and corruption under the Prevention of Corruption Act. His bail application was filed in the Allahabad High Court.

What followed was not a swift adjudication but a cycle of repeated deferrals. Over the course of his plea, the matter was adjourned 27 times. During the proceedings, the High Court took note of Tawar’s “long criminal history of thirty-three cases” and, in its order of March 20, 2025, adjourned the case for another two weeks. It directed the trial court to first record the evidence of the complainant before it would reconsider the bail plea. While this might appear as a measure of due diligence, for a man already incarcerated for four years, it represented yet another hurdle in a seemingly endless procedural maze. It was this pattern of delay that propelled the case to the Supreme Court.

The Supreme Court’s intervention: A decisive rebuke

On May 22, 2025, the Supreme Court expressed its unequivocal disapproval. “How can the high court adjourn a bail hearing 27 times in a matter related to personal liberty?” Chief Justice Gavai pointedly asked. The Court noted that it would “normally not have entertained the matter” challenging adjournments, but the “peculiar facts and circumstances” of this case, namely the extraordinary number of deferrals, demanded an exception.

The Supreme Court’s decision to grant bail was based on a confluence of factors:

1. The Egregious Delay: The 27 adjournments were the primary catalyst, which the Court viewed as a de facto denial of justice.
2. Prolonged Incarceration: Tawar had already been imprisoned for over four years.
3. Fulfilment of High Court’s Condition: The complainant’s evidence—the very reason for the High Court’s last adjournment—had since been recorded.

Finding the High Court’s inaction indefensible, the Supreme Court directly granted bail to Tawar, rendering the application pending before the Allahabad High Court “infructuous.” By doing so, it sent a powerful signal that procedural failings impinging on fundamental rights would not be tolerated.

Upholding the spirit of Article 21

This case is a potent illustration of Article 21 of the Constitution, which guarantees that no person shall be deprived of their life or personal liberty “except according to procedure established by law.” The Supreme Court’s jurisprudence, notably in Maneka Gandhi v. Union of India, has established that this procedure must be “just, fair, and reasonable.” The right to a speedy trial, articulated in Hussainara Khatoon v. Home Secretary, State of Bihar, is a cornerstone of this principle.

The Tawar judgment extends this logic forcefully to pre-trial proceedings. Indefinite detention caused by the repeated adjournment of a bail hearing is a clear violation of fair procedure. By intervening, the Supreme Court reaffirmed that judicial discretion in managing dockets is not absolute and cannot be exercised in a manner that erodes fundamental rights. The maxim “justice delayed is justice denied” is rarely more applicable than when an individual’s liberty is suspended in a state of indefinite judicial limbo. However, whether the Supreme Court and judiciary as a whole will apply this standard in dealing with the delayed bail for political prisoners, especially in the context of cases like Umar Khalid’s is a question that is yet to be answered.

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

^[1] Para 5, Lakshya Tawar v. CBI[SLP(Crl.) No. 5480/2025

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The post SC intervenes for personal liberty after HC adjourns a bail application 27 times! appeared first on SabrangIndia.

However, an examination of the Court’s free speech jurisprudence in recent months reveals a disquieting pattern of contradiction and inconsistency. Alongside landmark judgments that have robustly defended expressive freedoms, there has emerged a parallel and conflicting stream of pronouncements, delivered through interim orders and expansive bail conditions. These orders have imposed sweeping prior restraints on speech, frequently without substantive reasoning and based on subjective assessments of morality or public sentiment. This trend represents a significant deviation from the Court’s larger constitutional role. It departs from established doctrines that demand a high threshold for restricting speech and, in doing so, fosters a climate of legal uncertainty. This analysis contends that this jurisprudential dissonance not only undermines the predictability of law but also creates a tangible “chilling effect” on public discourse, thereby weakening the very democratic fabric the Court is duty-bound to protect.

The doctrinal anchor: Article 19(1)(a) and the high bar for restriction

The Supreme Court’s traditional role as a bulwark for free expression is rooted in a series of foundational precedents. In Romesh Thappar v. State of Madras (1950), the Court established that the freedom of speech lies at the core of all democratic organizations. It held that any restriction must be evaluated from the perspective of its directness and proximity to the specified grounds in Article 19(2), such as public order or the security of the State. This principle evolved over decades, culminating in the landmark verdict in Shreya Singhal v. Union of India (2015).

In Shreya Singhal, the Court struck down Section 66A of the Information Technology Act, 2000, for being unconstitutionally vague and overbroad.[1] Crucially, it fortified the “incitement” standard, clarifying that speech can only be restricted when it rises to the level of “incitement to an offence.” This test requires a clear nexus between the expression and the likelihood of imminent lawless action. Mere advocacy, discussion, or even offensive and unpopular speech is constitutionally protected.[2] This judgment, along with the effective suspension of the colonial-era sedition law (Section 124A of the Indian Penal Code) in May 2022 due to its rampant misuse, represents the doctrinal high-water mark of free speech protection in India. Whether the Court should have suspended the provision or not, in the context of the discourse around judicial activism and overreach is a different debate.

These rulings firmly embody the Court’s constitutional role: to set clear, objective, and high standards for any State action that seeks to curtail expression. It is against this established doctrinal backdrop that the recent developments must be assessed.

The changing trajectory: Judicial paternalism and unreasoned restraints

The recent cases of Ranveer Allahabadia and Professor Ali Khan Mahmudabad serve as stark illustrations of a judicial approach that appears untethered from the principles laid down in Shreya Singhal.

In the matter involving podcaster Ranveer Allahabadia, the Court was approached for the consolidation of multiple First Information Reports (FIRs) filed against him for allegedly obscene content in an online show. While granting interim protection from arrest, the bench imposed a blanket, unreasoned gag order, prohibiting him from airing any shows on any platform. This order was a classic act of prior restraint, imposed without any adjudicatory finding that the content was, in fact, legally obscene. The Court’s oral remarks, condemning the language as “dirty” and “perverted” suggested a departure from objective legal analysis towards a subjective, moralistic critique. While this sweeping ban was later modified, it was conditioned on an undertaking that future content would “maintain the desired standards of decency and morality so that viewers of any age group can watch.” Such a condition is inherently vague and places the judiciary in the role of a super-censor, dictating amorphous “societal norms” for creative expression. This judicial paternalism (as Anmol Jain mentions it) stands in direct conflict with the principle that the Court’s role is to be a legal arbiter, not a moral guardian. Furthermore, the bench’s stated inclination to expand the scope of this proceeding to devise regulatory measures for online content signals a potential overstepping of the judicial function into the legislative domain.

Even more troubling is the case of Professor Ali Khan Mahmudabad, who faced multiple FIRs, including for sedition, over a Facebook post commenting on India’s recent military operation—Operation Sindhoor. The Supreme Court, while granting interim bail, imposed an exceptionally broad gag order, restraining him from expressing any opinion on the underlying conflict. It also directed the confiscation of his passport. Critically, the Court refrained from undertaking a prima facie analysis of whether the speech in question met the stringent incitement-to-violence threshold. It delegated the task of interpreting the “complexity of the phraseology” to a Special Investigation Team (SIT) of police officers. For this very broad set of restrictions to have been put, one would expect a deep reasoning as to why a person’s free speech is being restricted on this level for a simple Facebook post that has not incited any violence anywhere. However, the Court finds a way to not meet this reasonable expectation by giving a 2-page order. Not even a prima facie mentioning of the remarks or saying how they engaged with them is done by the Court. While it is a simple interim bail order, the restrictions placed on the petitioner warrant the reasoning, something that would not have been expected of the Court if not for the restrictions.

This raises a pertinent question. Does the Supreme Court not have the responsibility to be well reasoned it its order, especially in an order that curtails the freedom of speech of a person? In a democracy like India, the Court does have such responsibility.

These cases demonstrate a worrying departure from constitutional first principles. They prioritize executive concerns over individual liberty, impose prior restraints without robust reasoning, and apply vague, subjective standards of decency or propriety that are alien to the rigorous tests established in prior judgments.

The counter-Narrative: enduring fidelity to constitutional principles

The restrictive turn is, however, not a complete narrative. The Supreme Court has also delivered powerful judgments that reaffirm its commitment to free expression, creating a landscape of profound jurisprudential dissonance.

In Mohammed Zubair v. State of NCT of Delhi (2022), the Court was faced with a similar situation of multiple FIRs filed against a journalist for his tweets. The State explicitly requested a bail condition barring him from tweeting. The bench, which notably included one of the same justices as in the Allahabadia case, unequivocally rejected this plea. It reasoned that such a gag order would be a “disproportionate.” The Court declared that a blanket ban on expression could not be imposed as a condition of liberty.

Similarly, in Imran Pratapgarhi v. State of Gujarat (2025), the Court quashed an FIR against a Member of Parliament over a poem alleged to have promoted disharmony. Justice Abhay S. Oka, writing for the bench, asserted that speech must be judged by the standards of a “strong-minded, firm and courageous” individual, not those of a “weak and oscillating” mind prone to taking offense.

These judgments stand as a testament to the enduring strength of the constitutional framework. They apply the high-threshold tests for restricting speech, reject the notion of pre-emptive gags as a routine measure, and refuse to entertain the “heckler’s veto” by protecting speech from the easily offended. Yet, their co-existence with the orders in Allahabadia and Mahmudabad creates an environment of acute legal uncertainty.

The chilling cascade: consequences of jurisprudential inconsistency

The primary casualty of this judicial inconsistency is the rule of law itself. When the country’s apex court applies contradictory principles to similar fact patterns, it becomes impossible for citizens, journalists, artists, and academics to predict the legal boundaries of permissible speech. This unpredictability is the very engine of the “chilling effect.” Expression is not only chilled by direct censorship but also by the fear that a legitimate, constitutionally protected opinion could be ensnared in a web of litigation, culminating in a restrictive gag order issued at the interim stage by the highest court itself.

This phenomenon has a cascading impact. When the Supreme Court imposes gag orders as bail conditions, it normalises such practices, signalling to lower courts and law enforcement agencies that these are acceptable tools for managing speech-related offenses. The result is a systemic shift where bail, a mechanism intended to secure liberty, is weaponised to curtail it. The core constitutional role of the Supreme Court is not merely to adjudicate disputes but to provide clear, consistent, and principled legal guidance for the entire nation by functioning as the supreme interpreter of the Constitution. By issuing contradictory pronouncements, the Court detours from this vital function, leaving a vacuum filled by uncertainty and fear. This leads to a public sphere characterized by self-censorship, where critical inquiry and challenging discourse are stifled, not by authoritarian laws, but by an unpredictable judiciary.

Conclusion: A call for constitutional reaffirmation

The Supreme Court of India stands at a critical juncture. The recent inconsistent rulings on free speech threatens to erode its legacy as the unwavering protector of fundamental rights. While landmark decisions continue to uphold the sanctity of Article 19(1)(a), the parallel trend of imposing ad-hoc, unreasoned, and paternalistic restrictions represents a significant deviation from its constitutional charter. This inconsistency is more than a mere academic curiosity; it has profound real-world consequences for the health of India’s democracy.

To restore constitutional equilibrium, the Court must return to a position of principled consistency. This requires a steadfast refusal to impose prior restraints without satisfying the highest standards of justification. It demands that all restrictions on speech be grounded in clear, reasoned orders that adhere to the established tests of necessity and proportionality. The judiciary must consciously resist the temptation to act as a moral arbiter, grounding its decisions in objective legal standards, not subjective notions of public taste.

The freedom of speech is too vital to be left to the vagaries of shifting judicial moods. The responsibility rests squarely with the Supreme Court to reaffirm its constitutional role, ensuring that the marketplace of ideas remains open and that its gavel serves to protect, not inadvertently gag, the diverse voices that animate the world’s largest democracy.

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

[1] Para 98, (2013) 12 S.C.C. 73

[2] Ibid, Para 44

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The post Mixed Messaging: Free speech jurisprudence from the Supreme Court appeared first on SabrangIndia.

The relentless surge of global displacement, driven by conflict, persecution, and instability, presents a profound challenge to nations worldwide. India, situated in a volatile geopolitical landscape, inevitably finds itself at the crossroads of these human flows. Historically, the nation has welcomed various communities fleeing distress, from Sri Lankan Tamils and Tibetans to, more recently, Rohingyas from Myanmar and Afghans. As India’s economic and political stature ascends on the global stage, its stance on humanitarian issues, particularly its treatment of those seeking refuge, comes under sharper focus. This growing influence carries an implicit expectation of heightened responsibility, yet recent judicial pronouncements and policy directions suggest a potential divergence from its traditionally magnanimous approach, creating a palpable tension between its global aspirations and its actions on the ground.

Previously, in Part 1 of this explainer which may be read here, the legal framework surrounding the deportation policy was discussed. In this part, it is argued that India’s response to foreign nationals seeking refuge or settlement must evolve beyond mere dismissal or chiding, especially when profound humanitarian and civilisational values are at stake. A more nuanced, principled, and empathetic approach is not only a moral imperative but also a strategic necessity for a nation aspiring to global leadership.

Two recent Supreme Court cases serve as critical prisms through which to examine this evolving landscape: the first, involving a Sri Lankan national whose plea to settle in India was rejected with the stark admonition that the country, with its vast population, cannot be a “dharamshala“ (a charitable shelter) for all; and the second, Mohd. Ismail v. Union of India, where the Court declined to grant interim relief to halt the potential deportation of Rohingya refugees despite grave concerns about their safety back in Myanmaar. These judicial decisions are not isolated events; rather, they may act as barometers, reflecting and perhaps legitimizing a broader national mood and policy direction that increasingly prioritizes security and resource arguments, sometimes at the significant cost of humanitarian principles and India’s long-cherished civilisational ethos.

The echo of “Dharamshala“: When Doors Seem to Close – the Sri Lankan national’s plea

The case of a Sri Lankan Tamil national, Subaskaran, starkly illustrates the tightening approach towards individuals seeking to remain in India on humanitarian grounds, particularly those with a security-related past. Arrested in 2015 for links with the Liberation Tigers of Tamil Eelam (LTTE) and subsequently convicted under the Unlawful Activities (Prevention) Act (UAPA), his initial ten-year sentence was reduced by the Madras High Court in 2022 to seven years. Upon completion of his prison term, he was ordered to stay in a Tamil refugee camp pending deportation. Subaskaran’s plea to the Supreme Court to settle in India was rooted in compelling personal circumstances: his wife and children were already settled in the country, his wife was seriously ill, and his son suffered from a congenital heart defect. Crucially, he also expressed profound fears of arrest, torture, or worse if deported to Sri Lanka due to his past LTTE affiliation. This case thus pitted an individual’s dire humanitarian needs and fears of persecution against the state’s national security concerns, even after the individual had served his judicially mandated sentence.

The Supreme Court’s response was unequivocal. A bench comprising Justices Dipankar Datta and K Vinod Chandran dismissed the plea, with bench famously questioning, “Is India a dharamshala to host refugees from all over the world? We are struggling with a 140 crore population. India is not a dharamshala to entertain foreign nationals from all over”. When counsel reiterated fears of persecution in Sri Lanka, the bench’s stark suggestion was that he could “move to some other country“. The “dharamshala” comment, emanating from the nation’s apex court, carries significant weight. It frames those seeking refuge primarily as a burden on national resources and population, a narrative that can easily overshadow if not trivialise individual humanitarian claims and the complexities of forced displacement. Such judicial rhetoric risks normalising a more restrictive and less empathetic public and administrative posture towards all foreigners seeking sanctuary, irrespective of their individual circumstances or the historical context of their displacement.

The ruling underscores an increasingly hard-line stance, prioritising “national security” and resource constraints over compelling individual humanitarian concerns, even when familial ties to India are established and credible threats in the country of origin are alleged. This is particularly striking given that the petitioner had already served a significant sentence under a stringent anti-terror law. Denying him the possibility of settlement with his family, despite fears of persecution, can be perceived as a form of continued jeopardy, extending beyond the judicial sentence. The “dharamshala” analogy, while perhaps intended to highlight population pressures, risks oversimplifying the multifaceted nature of refugee situations. It also appears to disregard the nuanced historical context of Eelam Tamil refugees in India, many of whom share deep cultural, linguistic, and ethnic bonds, particularly with Tamil Nadu, a state that has historically provided considerable support and shelter to this community.

The Rohingya Plight: A test of constitutional empathy – Mohd. Ismail v. Union of India

The plight of the Rohingya Muslims, fleeing persecution in Myanmar, presents another critical juncture for India’s humanitarian commitments. In Mohammad Ismail v. Union of India (2025), the Supreme Court refused to grant interim relief to halt the future deportation of Rohingyas from India. The petitioners had made grave allegations, including the forcible deportation of 43 Rohingyas – among them women, children, the elderly, and individuals with severe health conditions – claiming they were abandoned in international waters near Myanmar after being detained under the pretext of biometric data collection. They pointed out that the United Nations High Commissioner for Refugees (UNHCR) and the International Court of Justice have recognised Rohingyas as refugees facing persecution. This case directly tests India’s adherence to the principle of non-refoulement – the customary international law principle prohibiting the return of refugees to territories where their lives or freedom would be threatened.

The Supreme Court’s response to these serious allegations was marked by pronounced scepticism. The bench, including Justice Surya Kant, characterised the petitioners’ claims as “fanciful ideas” and “vague, evasive, and sweeping statements” that lacked “prima facie material”. The Court questioned the authenticity of the claims, including how a Delhi-based petitioner could verify events allegedly occurring in remote maritime regions. When references were made to UN reports on the matter, the Court retorted, “People sitting outside cannot challenge our sovereignty”. This assertion of national sovereignty, while a fundamental tenet of international law, becomes problematic when used to deflect credible concerns raised by international human rights bodies regarding potential violations. It risks fostering an insular approach to international human rights obligations, potentially diminishing India’s stature as a responsible global actor. The Court reiterated its earlier stance that the right to residence is exclusive to Indian citizens and that foreigners found to be in the country illegally would have to be deported. The demand for “prima facie material” from petitioners alleging clandestine state actions against a highly vulnerable and marginalized group like the Rohingyas places an almost insurmountable evidentiary burden upon them. It is exceedingly difficult for individuals fearing for their lives, often in hiding or lacking resources, to procure court-admissible evidence of state-led covert operations, potentially weakening judicial review as a safeguard for fundamental rights in such contexts.

This judicial stance has drawn criticism, with some legal analysts describing the order in Mohammad Ismail as “peculiar” and reflecting a “dubious understanding” of domestic and international refugee protection, particularly when contrasted with the Supreme Court’s own history of progressive interpretations of Article 21 (right to life and personal liberty). The refusal to grant interim relief leaves the Rohingya community in India in a precarious position, continually vulnerable to deportation despite the widely acknowledged risks they face in Myanmar. The treatment of the Rohingyas becomes a litmus test for India’s humanitarian commitments, especially when viewed alongside policies like the Citizenship Amendment Act (CAA), which offers a path to citizenship for specific non-Muslim religious minorities from neighbouring countries, explicitly excluding Muslim refugees like the Rohingya.

Whispers of a civilisational ethos: India’s legacy of refuge

India possesses a long and often celebrated history of providing sanctuary to those fleeing persecution and violence. This tradition of offering refuge to diverse communities – including Jews, Parsis, Tibetans, nearly 10 million Bangladeshis during the 1971 liberation war, and numerous Sri Lankan Tamils – is deeply embedded in the nation’s cultural fabric. This historical generosity, rooted in ancient traditions of compassion and hospitality, was often extended despite India not having a formal domestic refugee law or being a signatory to the 1951 Refugee Convention. This historical record stands as a powerful testament to India’s civilisational values and provides a benchmark against which current policies can be measured.

The recent trend of remarks and the non-transparent push-back policy adopted in Assam (this guise has also been largely directed at marginalised Indians), appear to strike a dissonant chord with this inclusive historical ethos. They suggest a potential shift away from a “shared burden” narrative, evident in past responses like the 1971 Bangladesh crisis, towards an “internal burden” perspective, where India’s own population and resource constraints are foregrounded as primary reasons for restricting entry or stay. While national security imperatives and the challenges posed by a population of 1.4 billion are undeniably valid concerns, the question arises whether these should entirely eclipse a deep-rooted humanitarian tradition. The selective invocation of this “civilisational ethos” also warrants scrutiny. For instance, the Citizenship Amendment Act (CAA) invokes religious persecution as a basis for offering refuge to specific non-Muslim communities from particular neighbouring countries, while other groups facing well-documented persecution, such as the Rohingya Muslims, and are met with a markedly different, more restrictive standard. This inconsistency suggests that the “civilisational ethos” might sometimes be instrumentalised or narrowly defined to align with specific political or ideological agendas, rather than being applied as a universal principle of humanitarianism, potentially leading to perceptions of discrimination.

The ‘Vishwa Guru’ paradox: Moral costs of a narrow vision

India’s contemporary aspiration to be recognised as a ‘Vishwa Guru’ – a world teacher or global leader – projects the nation as a source of guiding norms and principles for international relations. This ambition is often accompanied by invocations of ‘Vasudhaiva Kutumbakam’ (the world is one family), an ancient Sanskrit phrase symbolizing universal brotherhood and global unity. However, these lofty ideals stand in stark contrast to restrictive or dismissive refugee policies. Reports of “push-in” operations, involving the forcible expulsion of alleged illegal migrants into neighbouring countries without due process, are particularly jarring. Such actions are inhumane, unlawful, and clear violations of international norms, create a significant credibility gap for a nation seeking moral leadership. The ‘Vishwa Guru’ aspiration, while intended to project India’s normative power, inherently subjects the nation to a higher degree of scrutiny. If a country claims moral leadership, its actions, especially concerning human rights and humanitarian issues, will be judged more stringently against its proclaimed ideals. Inconsistencies between proclaimed values and actual policies can easily lead to accusations of hypocrisy, thereby diminishing the very soft power the ‘Vishwa Guru’ concept seeks to enhance.

The social and moral costs of such a narrow vision are substantial. Beyond the immediate human cost for refugees denied protection – who are often condemned to live in precarity, face statelessness, or risk deportation to harm – there are broader repercussions. Such policies can erode India’s long-standing reputation as a compassionate nation and alienate international partners and neighbouring countries. Internally, if policies are perceived as selective or discriminatory, particularly on religious or ethnic lines, they risk fostering societal divisions and undermining India’s secular fabric. Furthermore, refugee policy can become entangled with geopolitical manoeuvring, where humanitarian considerations are subordinated to, or instrumentalised for, strategic foreign policy objectives, as hinted in discussions about “push-in” tactics being linked to regional power dynamics. This fundamentally taints the moral basis of any ‘Vishwa Guru’ claim, as true leadership should be rooted in consistent principles, not mere expediency. The moral cost is therefore not just external, in terms of reputation, but also internal, impacting societal values and the ethical foundation of governance.

Constitutional ideals vs. ground realities: Soft power at stake

The Indian Constitution provides a robust framework of rights that, in principle, extends significant protections to non-citizens. Article 21, guaranteeing the Right to Life and Personal Liberty, applies to all persons within India, not just citizens, and has been expansively interpreted by the judiciary to include the right to live with human dignity. Similarly, Article 14 ensures equality before the law and equal protection of the laws to any person within India’s territory. Furthermore, the principle of non-refoulement, though India is not a signatory to the 1951 Refugee Convention, is considered by many legal scholars and has been acknowledged in some court judgments as part of customary international law, potentially flowing from the obligations under Article 21. These constitutional and international legal principles offer a strong foundation for a more humane and rights-respecting refugee policy.

However, a discernible gap exists between these ideals and the ground realities faced by many asylum seekers and refugees in India. The clear distinction drawn between Article 21 (right to life, applicable to all) and Article 19 (right to reside and settle, applicable only to citizens) is strictly employed to deny foreign nationals the possibility of long-term settlement, even on compelling humanitarian grounds. Without a rigorous judicial definition of what constitutes adequate procedure in the context of refugees facing potential refoulement, Article 21’s protection can be significantly weakened. The absence of a dedicated national refugee law further exacerbates this situation, leading to ad-hoc, inconsistent, and often discriminatory treatment of different refugee groups. This disconnect between constitutional promises and practical application directly impacts India’s soft power, which relies heavily on its image as a democratic nation governed by the rule of law and committed to human rights. Inconsistent application of these core values inevitably tarnishes this image.

Charting a more principled path: Balancing interests with obligations

Navigating the complexities of refugee policy requires a delicate balance. Legitimate state concerns regarding national security, resource allocation, and population density are undeniable and must be addressed. However, in an increasingly interconnected world where refugee crises are often transboundary phenomena demanding collective responsibility, these concerns cannot be the sole determinants of a nation’s approach. Ignoring humanitarian obligations carries its own strategic costs, including tarnished international relations, a loss of moral authority, and the potential for regional instability if displacement is not managed humanely and effectively. A principled refugee policy, therefore, can be viewed not just as a moral duty but as a strategic asset, enhancing soft power and building goodwill.

To forge a more empathetic, principled, and globally respected approach, several key elements are essential. Firstly, the enactment of a comprehensive National Refugee Law is paramount. Such legislation would provide a clear, rights-based domestic legal framework, distinguishing refugees from other categories of migrants and ending the current ad-hoc system that breeds inconsistency and allows for wide executive discretion. This law should align with international standards, establish fair and transparent refugee status determination (RSD) processes, and clearly define the rights and access to basic services for recognized refugees. A clear domestic law would also serve as a catalyst for more consistent judicial interpretation of constitutional rights for refugees, strengthening the rule of law.

Secondly, there must be a consistent and robust application of constitutional protections, particularly Articles 14 and 21, to all refugees, ensuring their right to life, liberty, dignity, and non-discrimination. Judicial review in cases involving the fundamental rights of vulnerable individuals must be probing and sensitive to the power imbalances inherent in such situations. Finally, India must move towards nuanced individual assessments rather than relying on broad-stroke dismissals like group-based profiling. Fair, individualised RSD processes that consider the intersectionality of vulnerabilities are crucial. Ethical RSD, as highlighted in academic discourse, requires a steadfast focus on human dignity, fairness, and transparency.

Fostering a compassionate public and official discourse is vital. This involves reframing refugees not merely as burdens but as individuals deserving of empathy and protection, and potentially, as contributors to society. Engaging civil society organisations and NGOs, which often possess valuable expertise and on-the-ground presence, in policy-making and implementation processes can also lead to more effective and humane outcomes. Many of India’s refugee influxes originate from neighbouring countries; thus, a robust domestic policy must be complemented by proactive regional diplomacy aimed at addressing the root causes of displacement and fostering regional cooperation on refugee management.

India’s choice in an emerging world order

India stands at a critical juncture where its actions towards those seeking refuge will significantly shape its international identity. The current path risks diverging sharply from India’s rich civilisational ethos of providing sanctuary, undermining its constitutional ideals of justice, equality, and fraternity, and creating a jarring paradox with its aspirations of global leadership as a ‘Vishwa Guru.’

A more nuanced, empathetic, and principled refugee policy is not an indicator of weakness but a hallmark of mature and confident leadership. It necessitates a careful balancing of genuine national security and resource concerns with fundamental humanitarian obligations and international legal principles. Such an approach, grounded in a clear domestic legal framework and a consistent application of constitutional values, would not only uphold the dignity of those fleeing persecution but also significantly strengthen India’s moral authority and soft power on the world stage. The way India treats the most vulnerable at its gates is not merely a domestic concern; it is a profound statement about its national character and its vision for its role in the 21st century. The choice is stark: to be a nation that risks being defined by dismissive rhetoric and closed doors, or one that courageously upholds its legacy of compassion and justice, thereby truly leading by example in an emerging world order that desperately needs principled humanitarian engagement.

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

Related:

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From Detention to Deportation: The mass deportations and detention crisis at Assam’s Matia centre

Restoring Citizenship, Rebuilding Lives: CJP continues its journey in Assam

Declared Foreigner, buried Indian: The tragic death of Abdul Matleb in Assam’s detention camp

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The post Why India needs a National Refugee Law aligned to international law standards appeared first on SabrangIndia.

These events, including the rather brazen assertion by Assam Chief Minister Himanta Biswa Sarma of a “push-back” policy for undocumented immigrants from Bangladesh and Myanmar (including Rohingyas), have brought the issue of deportation and refugee rights into sharp focus. A report by the Indian Express stated that approximately 2,000 individuals have been forcibly returned under “Operation Sindhoor.” People from states like Gujarat, Rajasthan and Maharashtra have been reportedly detained and taken to Bangladesh border.

A top officer of the Bangladesh Army has termed the forcible expulsion or so called “push-back” policy unacceptable. A woman—Shona Bhanu— was pushed into Bangladesh at gun point. She has lived in Assam all her life.

As in all matters related to citizenship, Assam and its people, especially the marginalised, have faced the brunt. Citizens for Justice and Peace (cjp.org,in)  with its vibrant on ground team in the state, has been closely involved in not just monitoring and documenting this humanitarian tragedy but also intervened with para legal aid, counselling and actual legal interventions. See here and here. Comprehensive memorandums to the National Human Rights Commission (NHRC) may be read here and here.

Much of the recent action (s) of the authorities, in states ruled, interestingly by the far right Bharatiya Janata Party (BJP), have been experienced as executive overreach, with no public disclosures on procedures and documents to legally and constitutionally justify the process. Sudden demolitions of entire bastis, the forcible detention of families, backed by over-hyped and exaggerated statements on purging the country of illegal immigrants have even put the judiciary on the defensive. That these actions have been launched in a coordinated manner after the Pahalgam terror attack (April 22) and the military face-off between India-Pakistan (May 7-10, 2025), squarely plays into public sentiment that remains silent or “allows” such unlawful actions.

Given that India remains a constitutional republic, bound to a process of law, procedure and even international obligations, it is crucial to ask, what is the law and procedure, on ‘deportation’ and how important it is that this be rendered in the public consciousness and meticulously followed?

In this extensive legal resource (in two parts) CJP’s legal team examines this sticklish question.

A common, yet simplistic, view is that individuals who are not Indian citizens and have entered India illegally should be sent back. This perspective often overlooks the complex legal and humanitarian dimensions involved. This document aims to provide a comprehensive analysis of the legal framework governing deportation in India. It will explore:

1. The rights of refugees and illegal migrants under the Indian Constitution.
2. How various court judgments have upheld these fundamental rights, including the right to due process, thereby shaping the law of the land?

This analysis will primarily focus on the legal aspects, with a subsequent part that deals with the broader societal and humanitarian considerations for treating refugees with not just greater compassion but adherence to constitutional jurisprudence and international obligations.

1. Legal Regime—Immigration and deportation in India

The management of immigration and the deportation of foreign nationals is a complex and often contentious domain within Indian law and policy. The “push-back” strategy, characterised by the forcible return of individuals without adherence to established legal procedures, starkly contrasts with the human rights guarantees enshrined in the Indian Constitution and affirmed by its judiciary. The recent enactment of The Immigration and Foreigners Act, 2025 (hereinafter “the 2025 Act”), which consolidates and replaces previous legislation, further shapes this landscape, necessitating a thorough examination of its provisions and implications.

2.1.          The legislative framework (Foreigners Act, 1946—Pre-2025 Act)

Prior to the 2025 Act, the deportation process in India was primarily governed by the Foreigners Act, 1946, and the Foreigners (Tribunals) Order, 1964.

• Definition of a “Foreigner”: Section 2(a) of the Foreigners Act, 1946, defined a “foreigner” as a person who is not a citizen of India.
• Foreigners Tribunals: Established under the 1964 Order, these tribunals were empowered to determine if an individual was a foreigner.
• Expulsion: Once declared a foreigner, an individual was liable for expulsion from Indian territory under Section 3(2)(c) of the Foreigners Act, 1946.
• Saving Provision: The Foreigners Act, 1946 was repealed by the 2025 Act, but a saving provision ensured that rules made under the 1946 Act continue to be valid.

2.2.          Role of the Citizenship Act, 1955, and Special Provisions (Assam-Specific)

The Citizenship Act, 1955, contains crucial provisions, particularly relevant in the context of Assam:

• Section 6A (Assam Accord): This section provides special provisions for persons of Indian origin who entered Assam between January 1, 1966, and March 25, 1971. If declared foreigners, they may still be permitted to register for citizenship after a 10-year waiting period from the date of detection. During this period, they cannot vote but enjoy other citizenship rights. Entrants post-March 25, 1971, if found to be foreigners, are liable for expulsion.
• Section 9 (Burden of Proof): This section places the burden of proving Indian citizenship on the individual when questioned by authorities, rather than the state having to prove they are not a citizen.
• Referral to Tribunals (Assam): For individuals in Assam or those covered under special notifications, cases with inadequate documentation or unclear citizenship are referred to Foreigners Tribunals. This is mandated by the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, and Paragraph 2 of the Foreigners (Tribunals) Order, 1964.

2.3.       The Passports Act, 1967

The Passports Act, 1967, while not directly providing for deportation, plays a significant role in the identification and apprehension of individuals liable for deportation:

• Powers of Passport Authorities (Sections 6 & 10): Authorities can refuse, impound, or revoke passports if the applicant is not an Indian citizen, or if issuance is contrary to public interest, national security, or foreign relations.
• Penalties (Section 12): Prescribes penalties for obtaining or using passports through false information or by foreigners masquerading as Indian citizens.
• Arrest Powers (Sections 13 & 14): Law enforcement can arrest individuals with fraudulent passports or without valid documentation, often a preliminary step towards deportation.
• Complementary Legislation: The Passports Act, 1967, operates alongside the Foreigners Act, 1946 (now repealed), and the Registration of Foreigners Act, 1939(also repealed by the 2025 Act).

Foreigners staying illegally in India risk violating provisions of both the (now-repealed) Foreigners Act, 1946, and the Passports Act, 1967, potentially leading to imprisonment of up to 5 years. The question of what happens after such a foreigner is released from jail often involves arbitrary administrative discretion.

2.4.         Procedure for deportation

Deportation in India, though grounded in statutory powers, was largely operationalised through internal administrative mechanisms and Standard Operating Procedures (SOPs) by state authorities (See here, here and here) following directions from the Centre.

Typical deportation process:

• Identification/Completion of Sentence: A foreign national is declared a foreigner or completes a prison term for violating applicable laws.
• Notification: Jail authorities notify relevant police officials (e.g., Superintendent of Police) about the impending release.
• Custody and Order:
  • If the government decides on deportation, a formal order is issued.
  • Upon release, the individual is taken into police custody and served with the deportation order.
• Physical Removal: Arrangements are made for their removal from the country, often under police escort. The serving officer reports the execution of the order back to the government.
• Consular notification (Vienna Convention):
  • As per Article 36 of the Vienna Convention on Consular Relations, Indian authorities must inform the consular representatives of the foreign national’s country about their arrest or detention.
  • Indian practice (MEA Office Memorandum No. T.4415/1/91 (CPO/CIR/9)) requires:
    • Asking the arrested foreign national if they wish their consulate to be informed.
    • Immediately notifying the Ministry of External Affairs (MEA) and the Ministry of Home Affairs (MHA).
    • Providing detailed particulars (name, nationality, passport details, offence, arrest details, location) to Joint Secretaries at MEA and MHA, and state authorities.
    • Deportation for minor violations: In cases of brief overstays or delayed registration, prosecution might be withdrawn with court approval, and the individual directly deported under delegated powers of Section 3(2)(c) of the (now-repealed) Foreigners Act. A record is submitted to the MEA.

2.5.          The Immigration and Foreigners Act, 2025: A New Consolidated Regime

The Immigration and Foreigners Act, 2025, received Presidential assent. It aims to consolidate and modernise India’s immigration laws by repealing four key statutes:

1. The Passport (Entry into India) Act, 1920
2. The Registration of Foreigners Act, 1939
3. The Foreigners Act, 1946
4. The Immigration (Carriers’ Liability) Act, 2000

2.5.1.     Key Provisions of the 2025 Act

• Definition of “Foreigner” (Section 2(f)): A person who is not a citizen of India (consistent with the 1946 Act).
• Entry, Exit, and Registration:
  • Section 3: Mandates valid passports/travel documents for all entering/exiting India. Foreigners additionally require a valid visa, unless exempted.
  • Section 6: Requires foreigners to register with a designated Registration Officer upon arrival, subject to prescribed conditions.
  • Section 5: Provides for notification of designated immigration posts and establishes a Bureau of Immigration.
• Powers of Immigration Authorities:
  • Section 3: Immigration Officers can examine travel documents/visas and deny entry on grounds specified by the Central Government (national security, sovereignty, public order, public health, foreign relations).
  • Section 26: Police officers (not below Head Constable rank) can arrest without a warrant individuals suspected of contravening entry requirements or other Act provisions.

• Powers of the Central Government:
  • Section 7: Empowers the Central Government to issue orders/instructions to prohibit, regulate, or restrict entry, departure, or continued presence of any foreigner or class of foreigners. This can include directives on residence, movement restrictions, proof of identity, and reporting presence.

• Tracking and Monitoring:
  • Sections 10, 12, and 17: Impose reporting obligations on carriers, accommodation providers (hotels, etc.), educational institutions, and medical institutions treating foreign patients to furnish prescribed information to registration authorities.

• Penalties:
  • Section 18: Carriers liable for fines up to ₹50,000 for contravening Section 17. If a carrier brings an illegal foreigner, the fine can be ₹2-5 lakhs.
  • Section 21: Entering India without a valid passport/visa can attract imprisonment up to five years and a fine up to ₹500,000.
  • Section 22: Using forged documents can lead to imprisonment for two to seven years and fines from ₹100,000 to ₹1,000,000.
  • Section 23: Overstaying, violating visa conditions, or trespassing in restricted areas can result in imprisonment up to three years and a fine up to ₹300,000.

• Mechanisms for Identification, Detention, and Deportation:
  • Section 29: Authorizes the Central Government to order the removal of any foreigner from India if they have contravened the Act/orders or if there is an “adverse security report” against them. “Adverse security report” is not defined in the Act.
  • Government officers are granted reasonable powers to enforce removal.
  • Foreigners may be required to bear the cost of their removal and maintenance pending removal.
  • The Act does not detail pre-deportation detention facilities or conditions, suggesting these could be in rules framed under the Act meaning that they are left to executive discretion.
  • The term “illegal immigrant” is not explicitly defined, though actions constituting illegal entry/stay are penalised.

(Note: “illegal migrant” is defined in Section 2(1)(b) of The Citizenship Act, 1955 as a person entering the Country without valid documents or overstaying permitted time in country despite having entered with valid documents).

2.5.2.     Concerns Regarding the 2025 Act

While presented as a modernising step, the 2025 Act appears to consolidate and potentially amplify executive dominance:

• Vague grounds for removal (Section 29): The term “adverse security report” is undefined, allowing for potentially unfettered discretion without a clear, independent review mechanism within the Act.
• Absence of adequate appellate mechanism: No statutory appellate mechanism within the Act to challenge deportation orders, forcing individuals to approach constitutional courts.
• Silence on refugees/asylum seekers: The Act lacks explicit classifications or special provisions for refugees and asylum seekers.
• Expansive power of removal and use of force:
  • Section 29: Grants broad power for removal.
  • Section 27 (Use of Force):

• Subsection (1): Allows any authority to take steps and use force “as may, in its opinion, be reasonably necessary” for compliance or effective exercise of power.
• Subsection (2): Extends similar powers to police (Head Constable and above) to use force “as may, in his opinion, be reasonably necessary.” The subjective nature of “reasonably necessary” provides wide latitude.
• Subsection (3): Grants a “right of access to any land or other property whatsoever,” potentially facilitating removals.
• These provisions could legitimize forcible “push-back” operations with limited procedural review.

• Delegation and immunity:
  • Section 28 (Delegation of Powers): Allows the Central Government to delegate its powers widely (to subordinate officers/authorities, State Governments, or their subordinates). This could lead to decentralized and less scrutinized implementation of removal directives, including “push-backs.”
  • Section 32 (Protection of action taken in good faith): Protects individuals from legal proceedings for actions “done, or intended to be done in good faith” under the Act. In the context of vague terms and broad force powers, this may shield authorities in “push-back” operations.

• Rule-making power and continuity of previous regime:
  • Section 30 (Power to make rules): Grants extensive rule-making power to the Central Government. Significant aspects of the deportation process (detention, removal specifics, and safeguards) will be determined by executive rule-making rather than direct legislative scrutiny.

Overall Concern: The 2025 Act solidifies executive dominance. Vague removal grounds, sanctioned use of force based on officer opinion, wide delegation, and protective clauses create a framework where policies like “push-back” can be implemented with a veneer of legality. The Act’s silence on specific protections for refugees means these broad powers can apply to vulnerable individuals without distinction, potentially lacking robust procedural safeguards and independent oversight.

2.6.          The “Push-Back” Policy: Assam’s approach to undocumented citizens/immigration

Against this new legal backdrop, the Assam Chief Minister has publicly announced the state’s adoption of a “push-back” policy for undocumented immigrants, primarily targeting individuals from Bangladesh and Myanmar (including Rohingyas). This policy is framed as an expedient alternative to established legal deportation procedures, citing national security.

• Reported Incidents: Forcible return of Bengali-speaking Muslims and Rohingyas, sometimes from detention centres, with individuals allegedly stranded at the “zero line” if refused entry by neighbouring countries.

• Alignment with MHA Directives: This state-level policy appears to resonate with Union Ministry of Home Affairs (MHA) directives aimed at expediting deportation. The MHA has instructed states to:

• Verify credentials of suspected illegal immigrants within a 30-day deadline, failing which deportation is to proceed.
• Establish special district-level task forces for detection, identification, and deportation.
• Risks of MHA’s 30-Day Deadline: High risk of wrongful deportations, as nationality verification is often complex and cannot realistically be completed in such a short timeframe, especially for vulnerable individuals. This could lead to violations of the principle of non-refoulement if asylum seekers are erroneously deported.

• Legal Ambiguity: The “push-back” policy operates in a legally ambiguous, if not outright unlawful, space. It flouts the procedural protections required by the Constitution and affirmed by the Courts. What are these protections?

3.       The Judicial Bulwark – Constitutional Rights and Deportation Jurisprudence

While legislation grants the state powers to regulate foreigners, the Indian judiciary has consistently intervened to ensure these powers are exercised in conformity with constitutional principles.

3.1.          Constitutional Protections for Non-Citizens

The Constitution of India extends certain fundamental rights to all persons within its territory, not just citizens.

• Article 21 (Protection of Life and Personal Liberty): “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
  • The Supreme Court in Maneka Gandhi v. Union of India established that “life” means the right to live with human dignity, and “personal liberty” has been broadly interpreted.
  • Critically, the “procedure established by law” must be just, fair, and reasonable. This is fundamental to any deportation process.

• Article 14 (Equality before the Law): “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
  • This acts as a bulwark against arbitrary state action. Any differential treatment for deportation must be based on an intelligible differentia with a rational nexus to the objective.

Policies like “push-backs,” which bypass due process, are prima facie incompatible with Article 21. If such policies disproportionately target specific ethnic or national groups without a non-discriminatory legal basis, they could also be challenged under Article 14.

3.2.          Judgements on Deportation and Rights of Foreigners

A nuanced judicial landscape has emerged regarding the treatment of foreign nationals.

3.2.1.     Right to Life and Liberty (Article 21)

The Supreme Court in Louis De Raedt & Ors vs Union Of India And Ors, 1991 (3) SCC 554 firmly stated that a foreigner’s fundamental right is confined to Article 21 for life and liberty. It “does not include the right to reside and settle in this country, as mentioned in Article 19(1) (e), which is applicable only to the citizens of this country.”

3.2.2.     State’s Power to Expel

The Supreme Court, in Louis De Raedt, referencing an earlier Constitution Bench decision, held that “the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion.” This power is typically exercised under the Foreigners Act, 1946 (now the 2025 Act).

3.2.3.     Principle of Non-Refoulement

This international law principle prohibits a state from returning a refugee to a country where their life or freedom would be threatened.

Although India is not a signatory to the 1951 Refugee Convention, courts have drawn inspiration from international instruments like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) (to which India is a party) to interpret domestic fundamental rights.

In Ktaer Abbas Habib Al Qutaifi And Anr. vs Union Of India  (Gujarat High Court),  (1998) SCC OnLine Guj 304, concerning Iraqi refugees, the Court declared that the principle of non-refoulement “is encompassed in Article 21 of the Constitution, so long as the presence of refugee is not prejudicial to the law and order and security of India.” It noted India’s UN membership and Article 51(c) of the Constitution (fostering respect for international law). The Court directed authorities to release the detained foreigners and decide on their handover to the UNHCR rather than deporting them to Iraq.

In Nandita Haksar v State of Manipur (Manipur High Court), (2021) SCC OnLine Mani 176,
dealing with Myanmarese asylum seekers, the Court held that Article 21 “would indubitably encompass the right of non-refoulement, albeit subject to the condition that the presence of such asylum seeker or refugee is not prejudicial or adverse to the security of this country.” It distinguished ‘migrants’ from ‘asylum seekers’ who fled imminent threats and directed facilitation of their travel to the UNHCR in New Delhi.

In a recent case being heard by the Bombay High Court, a vacation bench of justices Neela Gokhale and Firdosh P Pooniwalla ordered the Mumbai police to release immediate an 18-year old daughter of a Bangladeshi national from detention. Her father, reportedly a Bangladeshi national was initially detained by the Mankhurd police in Mumbai ‘for an inquiry regarding his citizenship and was later deported to the neighbouring country.The court was hearing a petition filed by the 18-year-old girl and her two younger siblings aged 16 and 8 years, who contended that they were born in India and had all requisite documents to prove their Indian citizenship. According to their petition, their father, Dadamiya Khan, had been residing in India for over 37 years. He had married an Indian woman named Mariyam Khan and was working as a cab driver. While all three children were detained by Mankhurd police following a special drive to identify foreign nationals staying illegally in India, the two younger siblings were handed over to their mother after they filed the Habeas Corpus petition.

3.2.4.     Supreme Court on Rohingya Deportation

In Mohammad Salimullah vs Union Of India, (2021) 19 SCC 191, the Supreme Court, while acknowledging Articles 14 and 21 are available to non-citizens, denied interim relief against deportation for Rohingya refugees. It cited “threat to internal security of the country” and “agents and touts providing a safe passage into India for illegal immigrants.” However, even in this context, the Court stipulated that deportation must follow the “procedure prescribed for such deportation.”

3.2.5.     Natural Justice and Right to be Heard

Louis De Raedt: The Supreme Court noted that while there’s no hard and fast rule, an opportunity to present one’s case is relevant.

In State Of Arunachal Pradesh vs Khudiram Chakma, 1994 (1) SCC (SUPP) 615, involving the proposed shifting of Chakmas, multiple notices and representations over time were deemed sufficient opportunity for a hearing. Interestingly, despite upholding state power, the Court allowed the Chief Minister to afford a post-decisional hearing on humanitarian grounds.

3.2.6.     State’s Duty to Protect

In National Human Rights Commission vs State Of Arunachal Pradesh & Anr, (1996) 1 SCC 742, the Supreme Court directed the state government to protect the life and liberty of Chakma refugees facing threats and ‘quit notices’ from organised groups. This affirmed the state’s constitutional and statutory obligation to safeguard all human beings, citizens or otherwise.

3.2.7.     Judicial Essence

While the Indian judiciary acknowledges the executive’s broad power to regulate foreigners and deport illegal entrants, it has consistently emphasized that any such deportation must follow the prescribed procedure, aligning with the principles of natural justice and constitutional safeguards under Article 21.

4.       Conclusion

In the case of Maja Daruwala v. State of West Bengal, the Supreme Court passed an order on January 30, 2025, and posed some questions to respondents (Centre and West Bengal) regarding what their stance was on deportation of illegal migrants. The Court expressed a confusion and said as follows:

“The pivotal issue that falls for our consideration is that if an illegal immigrant from Bangladesh after being apprehended and proceeded under Section 14A(b) of the Foreigners Act, 1946 is convicted and sentenced to undergo a particular term of imprisonment then after he completes his term of sentence should be immediately repatriated/deported to his own country or should he be kept for an indefinite period in the Correctional Homes in India.

The only confusion in our mind is that once an illegal immigrant is put to trial and is held guilty then what is the requirement for further verification of his nationality at the end of the Ministry of External Affairs.”

On May 16, 2025, the two-judge bench of the Supreme Court comprising of Justices J.B. Pardiwala and R. Mahadevan transferred the issues in this case to be heard along with another case— Jaffar Ullah & Ors. v. Union of India & Ors—dealt by a larger bench.

The latest order—in Jaffar Ullah— was the Supreme Court refusing to interfere in deportation until it finally hears the case which it is set to hear on July 31, 2025. This was done after the Union drew the Court’s attention to the Mohammad Salimullah order which mandated that government follow the procedure before deportation.

One clear conclusion from the above happening is that a specific well thought out law on deportation does not exist. All we have are some memorandums and executive decided processes. The Supreme Court’s expression of confusion is a testament to that.

This means that the current policy being followed, involving pushback, does not take into account things like lack of documentation etc. especially in poor Bengali speaking communities. And in the absence of a set law, the pushbacks reported are happening in a legally dubious manner putting vulnerable people including those that fled persecution at risk.

In essence, while the legislative framework, particularly the new 2025 Act, appears to strengthen the executive’s hand in managing immigration and effecting deportations, this power is not unfettered. It is limited by constitutional safeguards and a body of judicial precedent that insists on procedural fairness, non-arbitrariness, and respect for human dignity. The ongoing challenge lies in ensuring that administrative practices and the implementation of laws like The Immigration and Foreigners Act, 2025, rigorously adhere to these judicially reinforced standards.

Whether the Supreme Court will herald a new era in human rights law by mandating better procedures for deportation or not is a question that will be answered after July 31. The second part of this explainer will explore the broader humanitarian and societal arguments for why refugees should be treated with greater compassion and why upholding such principles is vital for India as a civilization.

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

Related:

From Detention to Deportation: The mass deportations and detention crisis at Assam’s Matia centre

Restoring Citizenship, Rebuilding Lives: CJP continues its journey in Assam

Declared Foreigner, buried Indian: The tragic death of Abdul Matleb in Assam’s detention camp

A jumla or a concrete step? Assam CM’s announcement on Koch Rajbongshi cases raises more questions than answers

SC: Only 10 deported, 33 of 63 contest foreigner status from the Matia Transit Camp, Assam

The post Does India have a lawfully established procedure on ‘deportation’, or are actions governed by Executive secrecy and overreach? appeared first on SabrangIndia.

At the heart of this legal battle is NSO Group, the developer of Pegasus, a spyware tool of notorious capability. Pegasus has been repeatedly linked to state-sponsored surveillance campaigns targeting journalists, human rights activists, political dissidents, and even heads of state across the globe, transforming smartphones into pocket-sized spies. The U.S. court’s decision to hold NSO Group liable for its actions and impose substantial damages signifies a potential turning point. The sheer size of the penalty, combined with its status as the first U.S. jury verdict against a commercial spyware company, signals a shift in the landscape of accountability. NSO Group’s defence has often leaned on the argument that it sells only to sovereign governments, thereby attempting to deflect responsibility for how its tools are used. However, this verdict pierces that veil, holding the technology provider directly accountable for facilitating illegal acts. This suggests that the creators of such potent surveillance tools may no longer be able to easily evade responsibility for the abuse their products enable.

This article will dissect the Meta vs. NSO Group judgment, explore its implications for the shadowy spyware industry, and critically examine what this U.S. legal precedent means for India. The U.S. ruling, therefore, is not just a foreign legal development but a significant event with potential repercussions for India’s ongoing struggle for digital rights and accountability.

The verdict rings out: Meta’s gruelling six-year battle and NSO’s defeat

The culmination of a nearly six-year legal confrontation saw a U.S. federal jury in the Northern District of California order NSO Group to pay Meta Platforms approximately $167.7 million. This sum comprised $444,719 in compensatory damages, covering Meta’s costs in responding to the attack, and a colossal $167,254,000 in punitive damages, designed to punish NSO Group for its conduct and deter future wrongdoing.

This damages trial followed a crucial summary judgment by U.S. District Judge Phyllis J. Hamilton on December 20, 2024. In that earlier ruling, Judge Hamilton found NSO Group liable for violating the U.S. Computer Fraud and Abuse Act (CFAA), the California Comprehensive Computer Data Access and Fraud Act (CDAFA), and for breaching WhatsApp’s terms of service. The case centred on NSO Group’s 2019 cyberattack, which exploited a vulnerability in WhatsApp’s audio calling feature. This flaw allowed NSO to covertly install its Pegasus spyware on the mobile devices of more than 1,400 WhatsApp users across the globe, including journalists, human rights activists, political dissidents, and diplomats.

Throughout the litigation, NSO Group employed a multi-pronged defence strategy, which was systematically dismantled by the U.S. courts. A cornerstone of NSO’s defence was the claim of foreign sovereign immunity, arguing that because it sells its spyware exclusively to government agencies, it should be shielded from lawsuits as an agent of those foreign states. This argument was consistently rejected by U.S. courts, culminating in the U.S. Supreme Court declining to hear NSO’s appeal on the matter. This series of rejections was pivotal, establishing that NSO Group, despite its governmental clientele, could indeed be sued in U.S. courts, particularly as evidence emerged that NSO utilized U.S.-based servers for its operations. NSO had long contended that U.S. courts lacked jurisdiction over its foreign operations targeting foreign victims, a claim significantly undermined by these rulings.

Furthermore, the NSO Group attempted to distance itself from the actual deployment of Pegasus, asserting that its government clients operate the spyware independently. However, court documents and trial testimony painted a different picture. Evidence, including sworn depositions from NSO employees, revealed the company’s direct involvement in the spyware’s installation and data extraction processes. Some employees even admitted to using WhatsApp to install spyware and continuing these activities even after Meta had filed the lawsuit. This direct operational role contradicted NSO’s narrative of being a passive technology provider.

The company also faced criticism and sanctions for its conduct during the discovery phase of the lawsuit, including its failure to produce the Pegasus source code as ordered by the court. In arguing against damages, NSO contended that Meta had suffered no actual financial loss, suggesting that employee salaries for remediation efforts would have been paid regardless of the attack and that WhatsApp’s servers were not physically damaged. The jury, however, sided with Meta, awarding the full amount of compensatory damages requested.

The crumbling of the “sovereign agent” facade is perhaps one of the most significant outcomes of this litigation. Spyware companies have historically hidden behind the argument that they merely sell tools to governments, thereby deflecting responsibility for any misuse. This verdict, by establishing NSO’s direct actions in deploying spyware and by piercing the sovereign immunity claim, creates a powerful precedent. It suggests that the creators of these potent surveillance tools can be held accountable in jurisdictions like the United States, especially if their actions involve U.S. infrastructure or violate U.S. laws. This development considerably increases the legal exposure for such companies on a global scale.

The composition of the damages award is also telling. The overwhelming proportion of punitive damages ($167.25 million) compared to compensatory damages ($444,719) indicates that the jury found NSO Group acted with “malice, oppression or fraud,” as noted in the court’s findings. Compensatory damages are intended to cover actual losses incurred by the plaintiff. Punitive damages, on the other hand, are designed to punish the defendant for egregious conduct and to deter similar behaviour in the future. The jury’s decision to award such substantial punitive damages sends an unequivocal message that NSO’s conduct was not merely illegal but profoundly reprehensible. This financial blow is aimed squarely at NSO Group and, by extension, the broader spyware industry, signalling that such activities will incur severe financial penalties that go far beyond merely covering the victim’s direct costs. This could make the business model of such companies, some of which, like NSO, are already reported to be under financial strain, far riskier and less tenable.

Pegasus unveiled: The “ghost” in the machine and its modus operandi

Pegasus is not just any spyware; it is a highly sophisticated tool engineered to infiltrate both iOS and Android devices, the dominant mobile operating systems globally. Its notoriety stems significantly from its “zero-click” exploit capabilities. This means Pegasus can be surreptitiously installed on a target’s device without requiring any action from the user – no need to click a malicious link, open an infected attachment, or even answer a call. The spyware can be delivered silently, for instance, through a missed WhatsApp call or a specially crafted message that doesn’t even need to be opened by the recipient.

Once installed, Pegasus effectively hands over complete control of the compromised device to the attacker. It can access a vast trove of personal and sensitive information, including encrypted messages (either by intercepting them before encryption on the sending device or by reading them after decryption on the receiving device), emails, photos, videos, call logs, contact lists, GPS location data, and stored passwords. Furthermore, Pegasus can remotely and covertly activate the device’s microphone and camera, turning the phone into a live surveillance device, all without the owner’s knowledge or consent. During the U.S. trial, NSO Group executives themselves conceded that Pegasus is capable of vacuuming up “every kind of user data on the phone”.

NSO Group has consistently maintained a specific narrative about its business model. The company claims that its flagship product, Pegasus, is sold exclusively to vetted government security and law enforcement agencies. The stated purpose, according to NSO, is to aid these agencies in legitimate activities such as conducting rescue operations and combating serious criminals, including terrorists, money launderers, and drug traffickers.

However, this official line stands in stark contrast to the findings of numerous independent investigations conducted by organizations like the University of Toronto’s Citizen Lab, Amnesty International, and various international media consortia, including the Pegasus Project. These investigations have meticulously documented the widespread use of Pegasus against unintended targets: journalists attempting to hold power accountable, human rights activists defending fundamental freedoms, lawyers representing sensitive clients, political opponents challenging incumbent regimes, and even heads of state. The trial also revealed that NSO Group invests heavily in its offensive capabilities, with executives admitting to spending tens of millions of dollars annually to develop sophisticated malware installation methods. The price tag for such capabilities is correspondingly high; for instance, NSO reportedly charged European government customers up to $7 million for the ability to hack just 15 devices, with additional costs for targeting devices internationally.

The glaring disparity between NSO Group’s stated purpose for Pegasus and the documented reality of its deployment against civil society effectively exposes the fallacy of the “dual-use” argument often employed for such powerful technologies. NSO’s defence consistently hinges on the supposed legitimacy of its clients and the intended use of Pegasus against “serious crime and terrorism.” However, the evidence presented during the trial, coupled with a vast body of independent research, points to a persistent pattern of abuse. This discrepancy suggests one or a combination of possibilities: NSO’s vetting processes for its government clients are woefully inadequate, its contractual controls designed to prevent misuse are ineffective or unenforced, or the company is wilfully blind to, if not complicit in, the misuse of its spyware by these clients. The argument that such tools have both legitimate and illegitimate uses – the “dual-use” defence – often crumbles when the technology in question is as inherently invasive as Pegasus and the oversight mechanisms are minimal or absent.

Moreover, the very existence, development, and marketing of a tool like Pegasus, capable of achieving total and covert compromise of a personal device, indicates a dangerous global trend towards the normalization of extreme surveillance capabilities. The fact that NSO Group could successfully develop and sell such a product to numerous governments worldwide suggests a significant global appetite for these intrusive powers. The technical sophistication of Pegasus, particularly its zero-click infection vectors, means that traditional cybersecurity defences employed by average users are often rendered useless. This creates an environment where the reasonable expectation of digital privacy is severely eroded, potentially casting a chilling effect on free speech, association, and dissent, even for individuals who are not directly targeted but fear they could be.

Turning point for spyware accountability?

The verdict against NSO Group is a landmark precedent in the fight against the unregulated proliferation of commercial spyware. It is the first U.S. jury verdict against a commercial spyware company and, significantly, the first U.S. verdict against NSO Group itself. The financial award also represents the largest reported verdict in a civil case brought under either the Computer Fraud and Abuse Act (CFAA) or the California Comprehensive Computer Data Access and Fraud Act (CDAFA).

The judgment is anticipated to have a significant impact on the broader spyware industry. Meta, in its statement following the verdict, emphasised that the ruling acts as a “critical deterrent to this malicious industry”. The success of Meta’s lawsuit may embolden other victims of spyware, whether individuals or corporations, to seek legal recourse against spyware vendors. Furthermore, the ruling could make it considerably harder for spyware companies to hide behind “plausible deniability” regarding the use of their products. This, coupled with the substantial financial penalty, is likely to lead to increased legal and financial risks for the industry, potentially affecting investment, operational strategies, and the overall viability of businesses built on selling such intrusive technologies.

This legal victory also serves to empower technology platforms in their efforts to protect their users and systems. It validates the legal strategy employed by tech companies like Meta, which utilized anti-hacking statutes such as the CFAA to hold spyware developers accountable for exploiting their platforms. Demonstrating a commitment beyond mere financial compensation, Meta has announced its intention to donate the damages recovered from NSO Group to digital rights organizations that are actively working to combat surveillance abuses and protect vulnerable users. This action is part of a growing trend where major technology companies, including Apple, which has also filed its own lawsuit against NSO Group, are taking a more proactive and aggressive stance in combating the commercial surveillance industry through both legal challenges and technical countermeasures.

The outcome of the Meta vs. NSO case signals a potential shift in the power dynamics that have characterized the surveillance technology landscape. For years, spyware firms like NSO Group operated largely in the shadows, their actions difficult to definitively prove and their legal standing often ambiguous due to claims of sovereign immunity and client confidentiality. Technology platforms, whose services were exploited as vectors for spyware delivery, were often in a reactive posture. This verdict, however, building upon the crucial judicial rejection of NSO’s sovereign immunity claims, empowers these platforms. They can now more confidently leverage their considerable legal and technical resources to proactively protect their ecosystems, thereby making it more costly and legally perilous for spyware vendors to target mainstream communication platforms.

The case also inadvertently highlights the role of the U.S. legal system as a, perhaps reluctant, enforcer of global digital rights. This is also a consequence of the geographical concentration of major technology company headquarters and critical internet infrastructure, including servers, within the United States. When global communication platforms, many of which are U.S.-based, find their terms of service violated or their U.S.-located servers accessed without authorization for the purpose of deploying spyware, it provides a jurisdictional hook for legal action within the American judicial system. While the outcome in the Meta vs. NSO case is viewed positively by digital rights advocates, it does raise broader questions about the sustainability and global desirability of relying predominantly on one nation’s courts to address what inherently international issues of spyware abuse are. This underscores the pressing need for enhanced international cooperation and the development of stronger, harmonized national laws elsewhere to combat this menace effectively.

Finally, the substantial financial penalty imposed on NSO Group, particularly the massive punitive damages award, underscores the potential of economic deterrence as a key weapon against the spyware industry. NSO Group has been reported to be facing significant financial difficulties, including being placed on a U.S. government blacklist that restricts its access to American technology and markets. A judgment of nearly $168 million could indeed be a fatal blow to an already struggling entity. This suggests that economic pressure, exerted through sanctions, large civil penalties, and divestment campaigns, might be one of the most effective tools to curb the proliferation of commercial spyware, especially since ethical appeals or reliance on the discretion of client governments have, to date, proven largely insufficient.

The Indian Connection: Pegasus shadows loom large over democracy

The NSO Group’s activities, as detailed in the U.S. court proceedings and prior investigations, have a significant and alarming Indian connection. Court documents related to the Meta lawsuit revealed that India was the second-most targeted country in the 2019 WhatsApp hacking campaign, with over 100 Indian users identified as victims. The list of those targeted in India reportedly included journalists, human rights activists, lawyers, and politicians, mirroring the global pattern of Pegasus deployment against civil society figures rather than solely against criminals and terrorists as NSO Group claims.

These findings were amplified by the Pegasus Project revelations in 2021. This collaborative investigative effort by international media organizations, based on a leaked list of potential surveillance targets, indicated that around 300 phone numbers in India were of interest to NSO’s clients. The Indian list controversially  included serving ministers, prominent opposition leaders such as Rahul Gandhi, political strategists like Prashant Kishor, numerous journalists including Siddharth Varadarajan of The Wire, activists such as Umar Khalid, a former Election Commissioner, Ashok Lavasa, who had flagged poll code violations by the Prime Minister, and even sitting Supreme Court judges.

Amnesty International’s Security Lab has conducted forensic investigations that further substantiate these concerns. Their findings confirmed repeated targeting of Indian journalists. Siddharth Varadarajan, for instance, was found to have been targeted with Pegasus in 2018 and then again in October 2023. Another journalist, Anand Mangnale, South Asia Editor at The Organised Crime and Corruption Reporting Project (OCCRP), was targeted in August 2023 with a sophisticated zero-click exploit delivered via iMessage while he was reportedly working on a story about alleged stock manipulation by a large Indian conglomerate.

In response to the widespread outcry following the Pegasus Project revelations, the Supreme Court of India intervened in October 2021. Recognising the gravity of the allegations, the Court constituted an independent technical committee, headed by retired Supreme Court Justice R.V. Raveendran, to investigate the claims of Pegasus surveillance.  This committee submitted its report in a sealed cover to the Supreme Court in August 2022. Out of the 29 phones analysed by the Technical Committee, just five showed signs of malware — and even in those cases, there was no clear evidence linking it to Pegasus, as per the three-part report presented to the Court by the Justice R.V. Raveendran committee. Crucially, the CJI NV Ramana (as he was then) also made a significant observation: the Indian government “did not cooperate” with the technical committee’s investigation.

The full contents of the technical committee’s report remain sealed and have not been made public.

The Indian government’s official stance on the Pegasus allegations has been one of consistent denial of any unauthorised interception by its agencies. Statements from the Ministry of Electronics and Information Technology (MeitY), including those made by Union Minister Ashwini Vaishnaw, have dismissed the reports as attempts to “malign Indian democracy and its well-established institutions”. The government has asserted that existing legal frameworks, such as the Indian Telegraph Act and the Information Technology Act, provide sufficient checks and balances against illegal surveillance. However, MeitY, through CERT-In (Indian Computer Emergency Response Team), was reportedly informed by WhatsApp about the Pegasus breach affecting Indian users as early as September 2019, raising questions about the timeliness and transparency of the government’s subsequent public responses.

More often than not, the government has invoked “national security” as a reason to avoid confirming or denying the procurement or use of Pegasus spyware. During Supreme Court hearings, the Solicitor General of India argued that “terrorists cannot claim privacy rights.” This sentiment was, to some extent, echoed by one of the judges who remarked, “What is wrong if the country is using spyware?… Using against whom is the question?”. These statements have fuelled concerns among civil liberties advocates that the national security argument is being used to shield potentially unlawful surveillance activities from scrutiny.

The Indian government’s persistent invocation of “national security” to sidestep transparency regarding Pegasus use, particularly its documented non-cooperation with the Supreme Court-appointed technical committee, presents a stark contrast to the detailed evidence and rigorous judicial scrutiny observed in the U.S. legal proceedings against NSO Group. While national security is undeniably a legitimate concern for any state, its deployment as a blanket justification to prevent any meaningful disclosure about the use of highly invasive spyware against a wide range of citizens—including journalists, opposition figures, and potentially even members of the judiciary—raises profound questions about democratic accountability and the potential for abuse of power. The U.S. verdict, which meticulously details the illegal hacking mechanisms employed by NSO, makes the Indian government’s opaque and defensive stance increasingly difficult to sustain, as the spyware tool itself has now been judicially recognized in a foreign court as problematic and its vendor held liable for its misuse.

The repeated and continued targeting of journalists in India, as confirmed by forensic analysis even after the initial Pegasus revelations and the Supreme Court’s intervention, suggests a brazen and deeply concerning attempt to suppress dissent and investigative journalism. When journalists investigating sensitive matters, such as allegations of financial misconduct by powerful entities, find themselves under state-sponsored surveillance, it sends a potent chilling message to the entire media community. This transcends individual privacy violations; it constitutes an assault on the freedom of the press, a cornerstone of any functioning democracy. The persistence of such targeting implies that the perpetrators feel a disturbing sense of impunity within the domestic Indian context.

The situation also presents a tale of two judiciaries and, by extension, two executive approaches. The proactive stance of the U.S. judiciary in holding NSO Group accountable, significantly aided by a well-resourced corporate plaintiff like Meta, contrasts sharply with the Indian Supreme Court’s current position. The Indian Court appears to be treading a cautious path, attempting to balance national security claims against individual queries about surveillance, a task made more challenging by the executive branch’s non-cooperation. While the U.S. case benefited from Meta’s considerable resources and clear legal standing as an aggrieved party whose platform was abused, in India, the petitioners are often individuals, under-resourced rights groups, or journalists. The Indian Supreme Court’s cautious handling of the sealed technical committee report and the government’s steadfast refusal to cooperate highlight systemic challenges in achieving accountability domestically. The fact that MeitY was reportedly informed of the WhatsApp breach affecting Indian users as far back as September 2019, yet the government’s public narrative and actions did not appear to reflect this urgency or information, further underscores this accountability deficit. The U.S. verdict might provide Indian petitioners with stronger international legal and moral backing, but overcoming domestic institutional hurdles remains a formidable challenge.

VI. Echoes in Delhi: How the US verdict resonates in India’s Pegasus saga

The U.S. District Court’s comprehensive findings against NSO Group and the subsequent multi-million dollar damages award are poised to have significant reverberations in India, where the Pegasus spyware controversy continues to simmer. The U.S. court’s meticulous detailing of NSO’s illegal activities and the intrusive nature of Pegasus spyware provide substantial evidentiary and moral support for petitioners currently before the Indian Supreme Court. Indeed, during hearings in April 2025, Senior Advocate Kapil Sibal, representing one of the petitioners, explicitly cited the U.S. judgment, highlighting the court’s observation that India was among the countries where WhatsApp users were targeted by Pegasus. The detailed revelations from the U.S. trial concerning NSO Group’s operational methods and its direct involvement in deploying the spyware can be leveraged to counter claims that the spyware’s use is solely determined by client governments without NSO’s active participation or knowledge.

This international legal precedent is likely to fuel fresh and more vociferous demands for transparency and accountability from the Indian government. Opposition parties, such as the Congress party which has already called for Supreme Court-monitored probes based on U.S. court revelations , along with civil society organizations; and various digital rights advocates, are expected to intensify their calls for the Indian government to: first, unequivocally state whether it procured and deployed Pegasus spyware; second, consent to a truly independent and transparent investigation into the allegations; and third, make the Supreme Court-appointed technical committee’s full report public, allowing for informed public debate and scrutiny.

The U.S. judgment also presents a formidable challenge to the broad “national security” argument frequently invoked by the Indian government to justify opacity surrounding the use of Pegasus. By laying bare the illicit hacking mechanisms of Pegasus and its deployment against ordinary citizens such as journalists and activists, the U.S. court’s findings weaken the credibility of using an all-encompassing national security pretext to shield such surveillance from any form of oversight in India. If the tool’s mode of operation is deemed illegal by a U.S. court when used against similar profiles of individuals, its alleged use in India under a vague and unsubstantiated national security rationale becomes increasingly questionable and harder to defend both domestically and internationally.

Ultimately, the U.S. verdict indirectly places India’s own democratic institutions—particularly its judiciary and parliamentary oversight mechanisms—under a critical test. If a foreign court, driven by a corporate plaintiff, can achieve a significant degree of accountability against the NSO Group, the question inevitably arises: why are Indian institutions apparently struggling to achieve similar accountability regarding the use of Pegasus within India’s borders? This focuses uncomfortable attention on the independence, efficacy, and resilience of these institutions when confronted with executive power and sweeping claims of national security. The Indian Supreme Court’s next steps in the Pegasus matter, with hearings scheduled for July 30, 2025, will be very closely watched in this context.

Conclusion

The broader struggle against illicit surveillance and the misuse of powerful espionage technologies is far from over. It requires sustained, multifaceted efforts from technology companies committed to protecting their users, from a vigilant and courageous civil society, from international bodies striving to establish global norms, and, most crucially, from national governments willing to uphold the rule of law and safeguard fundamental human rights in the increasingly complex digital age. The path to effectively reining in the global spyware menace is undoubtedly long and arduous, but the Meta-NSO verdict offers a crucial milestone, a tangible victory for a future where digital technologies empower rather than oppress.

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

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Pegasus case: SC appointed Committee says GoI not cooperating

Pegasus scandal: Did GoI engage in an elaborate cover-up?

State can’t get free pass every time spectre of “national security” is raised: SC in Pegasus case

The post US court slams spyware giant NSO with $168M Fine: a reckoning for Pegasus and implications for India appeared first on SabrangIndia.

Read: 60 Years Of Constitutional Rights Denied To 20 Millions Indian Dalit Christians | SabrangIndia

Can a Dalit not be a Christian or Muslim? Conversely, even after conversion out of caste-ridden Hinduism, is the discrimination suffered by caste be suffered by one who opts otherwise for Christianity or Islam?

Despite several attempts by the executive through Orders and Commissions to overturn once and for all, the discriminatory Presidential Order of 1950, Courts continue to affirm its limited understanding.

The recent, Akkala Rami Reddy judgement delivered by the AP high court spotlights this enduring debate on SC status for religious converts. The Andhra Pradesh High Court’s decision in Akkala Rami Reddy v. State of Andhra Pradesh has reignited a critical legal and social debate: Should Scheduled Caste (SC) status, with its attendant protections and affirmative action benefits, be denied to individuals solely based on their conversion to religions like Christianity or Islam, even if they continue to face caste-based discrimination? Overwhelming social scientific evidence and testimony led to the official admission in the Ranganath Mishra Commission Report (2007) that Christian and Muslim Dalits suffer the same forms of discrimination as their Hindu counterparts.

The judgment, which quashed SC/ST Act proceedings against the petitioners based on the complainant Pastor’s conversion to Christianity, underscores the judiciary’s current adherence to the 1950 Presidential Order.[1]

What is the 1950 Presidential Order?

The Presidential Orders regarding the Scheduled Castes and Scheduled Tribes are the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950. These orders were issued by the President of India under Articles 341 and 342 of the Constitution of India, which define who would be Scheduled Castes and Scheduled Tribes with respect to any State or Union Territory. More about the detailed process can be read here.

So, for a caste to be claiming the SC status, it has to be included the Constitution Order, 1950. The order states as follows in Paragraph 3:

“Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste.”

This means, only people from the religions of Hindus, Buddhists and Sikhs can be members of scheduled castes.

The Akkala Rami Reddy ruling: Conversion and ineligibility under SC/ST Act

In Akkala Rami Reddy, the AP High Court, on April 30, 2025, declared that the complainant, who had been working as a Pastor for approximately ten years, could not invoke the provisions of the SC/ST (Prevention of Atrocities) Act. The Court reasoned that the Constitution (Scheduled Castes) Order, 1950, explicitly states that no person professing a religion different from Hinduism (later amended to include Sikhism and Buddhism) shall be deemed a member of a Scheduled Caste. The Court held that an individual converted to Christianity ceases to be a member of a Scheduled Caste and thus cannot claim the protections of the SC/ST Act. “The 2nd respondent has ceased to be a Member of the Scheduled Caste Community, the day he had converted into Christianity,” the judgment firmly stated.

The 1950 Order: A discriminatory relic?

At the heart of this recurring issue is Paragraph 3 of the Constitution (Scheduled Castes) Order, 1950. Initially restricting SC status to Hindus, it was later amended to include Sikhs (1956) and Buddhists (1990).

The judgement presumes that caste discrimination vanishes upon conversion to egalitarian religions like Christianity or Islam. This exclusion establishes religion as the primary determinant for SC status, overlooking the socio-economic realities of continued caste-based oppression.

Judgement not a deviation but a rule

While the social realities of India would make one see the caste discrimination faced by people belonging to religions other than Hindu, Sikh and Buddhist—the courts have consistently taken a position that adheres to the literal law i.e., the Constitutional Order, 1950.

In one of the earlier cases, the Madras High Court in G. Michael v. S. Venkateswaran (1951), noted that while Christianity and Islam do not recognize caste systems, there were exceptions, particularly in South India, where members of lower castes converted to Christianity but were still considered members of their original caste by other caste members. However, the general rule established was that conversion operates as an expulsion from the caste, meaning a convert ceases to have any caste.[2]

Building on this, in S. Rajagopal v. C. M. Armugam (1968), the Supreme Court held that a person belonging to a Scheduled Caste (Adi Dravida Hindu in this case) who converted to Christianity lost their caste membership.[3] The Court found that the Christian religion does not recognize caste classifications, treating all Christians as equals. While the appellant claimed to have later reconverted to Hinduism and was professing Hindu religion by the time of the election, the Court stated that mere reconversion is not sufficient to automatically resume membership of the previous caste. It emphasized that acceptance by the caste in general as a member after reconversion is required, based on the principle that the caste itself is the supreme judge in matters affecting its composition.[4] Since the appellant had not provided evidence of such acceptance, his claim to SC status was rejected.

The principles from S. Rajagopal were considered in Principal, Guntur Medical College, v. Y. Mohan Rao (1976). This case involved a person born to parents who had converted from Hindu SC to Christianity, who later reconverted to Hinduism. The Supreme Court clarified that the Constitution (Scheduled Castes) Order, 1950, required a person to profess Hindu or Sikh religion at the relevant time to be deemed a member of a Scheduled Caste, not necessarily to be born into it. Regarding reconversion, the Court reasoned that a person born of Christian converts could become a member of the caste their parents belonged to before conversion if the members of that caste accept him as a member and admit him within the fold.[5] The caste’s acceptance is the key requirement.

Further developing the legal position, Kailash Sonkar v. Smt. Maya Devi (1983) extensively examined the effect of conversion and reconversion on caste status. The Supreme Court stated that conversion to Christianity or Islam involves loss of caste unless the new religion is liberal enough to permit the convertee to retain their caste or family laws. However, where the new religion does not accept the caste system, the loss of caste is complete. Introducing the doctrine of eclipse, the Court opined that when a person converts, the original caste remains under eclipse and automatically revives upon reconversion to the original religion during their lifetime. While acknowledging that acceptance by the community of the old order was previously considered a norm, the Court noted the difficulty and potential for exploitation in strictly insisting on this second condition in modern society.[6] It suggested that revival might occur by applying the doctrine of eclipse, though added a rider that this might be difficult if the conversion occurred several generations ago.[7]

Despite these verdicts, this one held to the contrary.
In 1984, The Supreme Court of India in the case of S. Anbalagan Vs. Devarajan AIR 1984 SC 411, said that “the practice of caste however irrational it may appear to our reason and however are repugnant it may appear to our moral and social sense, it so deep rooted in the India people that its mark does not seem to disappear on conversion to a different religion.”

However, more recently, in C. Selvarani v The Special Secretary Cum District (2024), the appellant, born Christian, claimed SC status based on her father’s background and her profession of Hinduism. The court noted evidence of her baptism shortly after birth, concluding she was a born Christian. It held that a person born Christian cannot be associated with any caste.[8] Further, upon conversion to Christianity, one loses her caste. While the appellant claimed to profess Hinduism, the court found the claim of reconversion disputed and noted the lack of positive acts or public declaration to evince such conversion, concluding she did not profess Hinduism. Therefore, in terms of the S.C. Order, 1964(The order for the Union Territory of Puducherry), she was not entitled to the Scheduled Caste community certificate as she did not profess Hinduism, Sikhism, or Buddhism.

In summary, the courts have consistently held that professing Hinduism, Sikhism, or Buddhism is a mandatory condition for being deemed a member of a Scheduled Caste under the relevant Presidential Orders. Conversion to other religions like Christianity or Islam generally results in the loss of the original caste status. While reconversion to Hinduism may allow for the regaining of caste membership, this often depends on acceptance by the caste community, although the doctrine of eclipse discussed in Kailash Sonkar suggests a potential revival upon genuine reconversion, noting the practical difficulties of insisting on community acceptance. Being born to Christian parents and subsequently claiming SC status after converting to Hinduism also hinges upon acceptance by the original caste group. Furthermore, proof of genuinely professing the specified religion and undertaking positive acts of conversion/reconversion can be crucial.

What runs contrary to this however is several Orders by the GOI’s Social Welfare Ministry and also Commissions appointed by successive governments at the Centre. Details of these may be read here.

The Issue with this judicial approach

This judicial stance, rooted in the interpretation and application of the 1950 Presidential Order, operates under the premise that caste, as a phenomenon warranting the specific provisions of Scheduled Caste status, is intrinsically linked to Hinduism (and later, Sikhism and Buddhism) and is shed upon conversion to faiths perceived as egalitarian, such as Christianity and Islam. However, a comprehensive understanding necessitates looking beyond this legally constructed silo to the complex sociological realities of caste and discrimination as they manifest across religious communities in India.

Contrary to the assumption embedded within the 1950 Order and upheld by the courts, historical and sociological research demonstrates that caste, or caste-like social stratification and discrimination, persists among Indian Christians and Muslims. While the nature and religious sanction of caste may differ significantly from its scripturally embedded form in Hinduism, its practical social manifestations – particularly the division between Dalits (formerly known as untouchables) and non-Dalits, and practices like endogamy – are not confined by religious boundaries.

As B.R. Ambedkar incisively argued, while caste among Mohammedans and Sikhs might lack the conscious, religiously consecrated ties that bind Hindu castes, and breach of caste rules might not lead to formal excommunication in the same way, caste nonetheless exists as a social practice or “survival” within these communities. Its significance might not be as profound as in Hinduism where it is a sacred institution compelling segregation, yet its presence cannot be dismissed. The crucial distinction Ambedkar makes is the absence of religious dogma compelling isolation in non-Hindu faiths, unlike in Hinduism.^[9] However, the implication that caste is non-existent or irrelevant among converts is not what Ambedkar suggests; rather, its role and basis are different.

Expanding on this, scholar Rupa Viswanath highlights that conversion has historically not guaranteed freedom from caste identity or discrimination for Dalits. The fundamental distinction between Dalits and non-Dalits, rooted in historical hierarchies and social power dynamics, transcends religious identity in India.^[10] While acknowledging Hinduism’s unique theological rationale for caste, Viswanath argues that focusing solely on this theological difference is misplaced when analysing the persistence of caste structures. The practice of endogamy, a cornerstone of caste, is observed across religious lines. Furthermore, the social division and discrimination faced by Dalits often continue regardless of their conversion, perpetuated by both co-religionists (who may retain caste consciousness or practices) and members of other communities.

Historically, within Indian Christianity, debates among missionaries and Indian converts themselves reveal the complex relationship with caste. While some Protestant missionaries, according to Vishwanath, advocated for the immediate abandonment of caste upon conversion due to its perceived link to Hinduism, others, including many high-caste Indian Christians, viewed caste as a purely civil or social distinction separable from religion, thus justifying its continuation within the Christian fold. This perspective often framed caste as a historical division of labour or social rank, seen as natural or even moral to observe, stripped of its overt “heathenish” religious justification from Hinduism.[11] Catholic missions, in some instances, were even more accommodating of existing caste structures, as seen in the approach of figures like Robert de Nobili, according to Ashok Mocherla.[12] These historical dynamics illustrate that conversion to Christianity, in practice, did not necessarily translate into the erasure of caste identity or cessation of caste-based social stratification and discrimination.

Similarly, while Islam conceptually emphasizes equality among believers, the social history of Muslims in the Indian subcontinent includes the development of hierarchical structures akin to caste, often reflected in divisions like Ashraf (those claiming foreign ancestry), Ajlaf (indigenous converts from privileged Hindu castes), and Arzal (converts from marginalised Hindu castes, including Dalits), with social interaction and marriage patterns often following these lines.[13]

Therefore, the legal position, as reinforced by judgments like Akkala Rami Reddy, rests on an incomplete and perhaps Orientalist understanding that segregates caste primarily as a “Hindu problem” that is resolved through conversion to religions deemed inherently egalitarian. This perspective fails to acknowledge the socio-economic realities and persistent discrimination faced by Dalit converts, whose historical location within the caste hierarchy continues to shape their experiences regardless of their faith. A more comprehensive understanding would recognize caste not merely as a theological construct limited to Hinduism, but as a deeply entrenched social structure of hierarchy, discrimination, and exclusion that has adapted and manifested within various religious communities in India. Consequently, linking Scheduled Caste status eligibility solely to the profession of specific religions, while ignoring the lived reality of continued caste-based disadvantage among converts to others, appears fundamentally inconsistent with the affirmative action principles intended to address historical injustices rooted in caste. It creates a paradox where individuals continue to suffer caste discrimination but are legally denied the means to address it based on their religious identity, highlighting the critical need for a religion-neutral approach to defining and addressing the Scheduled Castes.

One of the major unresolved issues lies in the Ghazi Saaduddin v. State of Maharashtra case, stalled since 2004. It challenges the constitutional legitimacy of the 1950 Presidential Order. In April 2024, the Supreme Court postponed hearing the matter, pointing to an ongoing inquiry by a commission headed by former Chief Justice K.G. Balakrishnan. The commission’s findings are now due in October 2025.

The core question remains whether the Indian legal system will evolve to recognize the lived reality of caste discrimination beyond specified religious confines, thereby ensuring that the constitutional promise of equality and social justice truly extends to all its Dalit citizens.

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

[1] [1] CRIMINAL PETITION No.7114 OF 2022

[2] Para 17, AIR 1952 MADRAS 474

[3] Page 12, AIR 1969 SUPREME COURT 101

[4] Ibid page 14.

[5] Page 6, AIR 1976 SUPREME COURT 1904

[6] Page 14, AIR 1984 SUPREME COURT 600

[7] Ibid

[8] Para 12, 2024 INSC 920

^[9] Dr.Bhimrao Ambedkar, Annihilation of Caste (1936), ch.19, Para 7.

^[10] Rupa Vishwanath, The Pariah Problem: Caste, Religion, and the Social in Modern India (2014), p.313, Columbia University Press.

[11] Ibid p.75

[12] Ashok Kumar Mocherla, Dalit Christians in South India (2021), pp. 107-108

[13] Sobin George & Shrinidhi Adiga, ‘Caste’ Among Muslims: Ethnographic Account from a Karnataka Village(2017), p.1

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No SC quota for Dalits converting to Islam & Christianity to contest elections: Centre to RS

Beyond “Rice Bag” Christians: Examining the case of Indigenous Christianity in India

The post No to Dalits who are Christian, Muslim, how the AP HC limits its understanding of caste and faith appeared first on SabrangIndia.

Brief facts

The case involved a series of incidents occurring on November 5 and 6, 2014. These included an initial altercation, followed by a criminal trespass, where a woman (the prosecutrix/primary victim) and her male companion (second victim) were assaulted, and a friend (third victim) who came to help was also attacked. During the trespass, the primary victim and the third victim were forced to strip and were videographed in compromising positions. Subsequently, the primary victim and the second victim were abducted. The second victim was taken to railway tracks, assaulted, and left for dead but managed to escape. The primary victim was then taken to multiple locations where she was subjected to gang rape by three individuals (two appellants and a juvenile tried separately).

Charges and initial convictions

Multiple accused faced charges including criminal trespass (Sections 450, 452 IPC), grievous hurt (Sections 324, 326 IPC), sexual harassment (Sections 354A, 354B IPC), voyeurism (Section 354C IPC), violation of privacy under the IT Act (Section 66E), abduction (Section 366 IPC), attempt to murder (Section 307 IPC), robbery (Section 394 IPC), gang rape (Section 376D IPC), and harbouring offenders (Section 212 IPC). The trial court convicted several accused on various counts, handing down severe sentences including life imprisonment. The accused appealed to the High Court.

High Court’s decision on appeals

The High Court upheld convictions for several appellants for offences including criminal trespass, assault (altered from grievous hurt to simple hurt by dangerous weapon in some instances), sexual harassment, voyeurism, IT Act violations, abduction, attempt to murder, robbery, and significantly, gang rape against two appellants.

One appellant was acquitted of all charges due to insufficient evidence placing him at the scene of the crime inside the room.

Sentences were modified for several convicts: life imprisonment for attempt to murder was reduced to 10 years rigorous imprisonment for two appellants; life imprisonment for the remainder of natural life for gang rape was reduced to 20 years rigorous imprisonment for the same two appellants. The sentence for harbouring an offender was reduced to the period already undergone for one appellant.

The Court on consent and sexual history

The High Court addressed the issue of consent, particularly in response to defence arguments that attempted to question the primary victim’s character and suggest that her alleged past relationships or sexual history, including a prior acquaintance with one of the accused, might imply consent or make her testimony unreliable. The Court emphatically rejected these notions, reinforcing the principle of “No means No.”

The judgment stated

• “NO means NO”: A woman who says ‘NO’ means ‘NO’. There exists no further ambiguity and there could be no presumption of consent based on a woman’s so called ‘immoral activities’. (Para 85)
• Irrelevance of past relationships or character: The Court made it clear that even though there may have been a relationship between the prosecutrix and [one of the accused] in the past but if the prosecutrix was not willing to have sexual intercourse with [the accused], his colleague… and the juvenile in conflict with law, any act without her consent would be an offence within the meaning of Section 375 of the IPC. (Para 85)
• Consent is instance-specific: The court stated that a woman who consents to sexual activities with a man at a particular instance does not ipso facto give consent to sexual activity with the same man at all other instances. (Para 85)
• Character and number of sexual partners are not determinative of consent: The court stated that a woman’s character or morals are not related to the number of sexual partners she has had in wake of Section 53A of the Indian Evidence Act. This section of the Evidence Act restricts evidence of the victim’s character or previous sexual experience in prosecutions for sexual offences. (Para 85)
• Primacy of consent over perceived morality: The Court addressed attempts to question the primary victim’s morals due to her being estranged from her husband and living with another man, or suggestions of a prior intimate relationship with one of the accused. It emphasized that even if such circumstances were true, “a person cannot force a woman to have intercourse with him without her consent.” (Para 84)
• Rape as aggression, domination: The Court described rape not merely as a sexual crime but as “a crime involving aggression which leads to the domination of the prosecutrix. It is a violation of her right of privacy. Rape is the most morally and physically reprehensible crime in society, as it is an assault on the body, mind and privacy of the victim, the court added. (Para 85)

In essence, the High Court’s judgment strongly affirmed that consent must be explicit and contemporaneous for each sexual act. A victim’s past sexual history, choices in relationships, or perceived character are not relevant to determining whether consent was given for a specific instance of sexual intercourse. The Court underscored that the absence of consent makes any sexual intercourse an offence, irrespective of the victim’s background or previous associations with the accused.

The judgement reinforced the evolving jurisprudence that centres the victim’s agency, making it unequivocally clear that consent must be specific, informed, and ongoing—regardless of any prior associations or societal judgments about the victim’s morality. In doing so, the Court not only delivered justice in a deeply disturbing case but also contributed meaningfully to the broader fight against rape culture and victim-blaming narratives in India’s criminal justice system.

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

Related:

When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative

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Many have heralded this shift as a democratisation of media—a breaking down of the gatekeeping walls that allowed only a select few to shape the public narrative. Politicians now tweet their policy updates, address voters directly on YouTube, and make carefully curated appearances on influencer podcasts rather than press conferences. There’s even a growing belief that this new media, raw and seemingly more “authentic,” will shoulder the journalistic responsibility left vacant by legacy media.

But this belief deserves a pause, or at least a much cautious thought.

The truth is a large section of India’s new media creators are not journalists—nor do they claim to be. They are “content creators,” and that distinction matters. Of course, there are journalists on social media who are not solely content creators. Journalists like Ravish Kumar have been pushed out of the traditional media system and have found a way to do their journalistic content on social media. Channels like The Wire etc. produce news content with journalistic intent. This article is not about them. However, this article is about those creators on social media who engage with advertisers/sponsors and generate content including news content but do not call themselves journalists.

Take Samdish Bhatia, a widely popular YouTube figure known for intriguing and witty political interviews and videos of his travels across the country. He is articulate, progressive, and clearly influential. But even he does not identify as a journalist. He calls himself as a content creator. That is not a knock against him or his work. It is a recognition of the difference in mandate. Journalism, at its core, is about accountability—of those in power, of systems, of narratives. Content creation, however, is about engagement, reach, and often—neutrality that does not ruffle feathers. Truth be told, if people who call themselves journalists are not being held accountable as they should be, it is a rather hard task to hold social media content creators accountable.

And it is not just neutrality. Many of the most visible faces in the new Indian social media ecosystem are unabashedly capitalist and pro-market. Their discussions are less about the structural problems that plague India—such as homelessness, unemployment, agrarian distress—and more about how to “capitalize” on these contexts. So, while homelessness continues to plague millions, the conversations in popular podcasts revolve around real estate  as an investment opportunity. Instead of interrogating inequality, there are video essays on personal finance, sponsored by a company or two.

This tone fits comfortably within the vision of a country aspiring to produce unicorn start-ups and billion-dollar tech moguls. Indeed, some of these billionaires have now become social media personalities themselves. Nikhil Kamath, co-founder of Zerodha, is a case in point. With little precedent, he was granted a rare, exclusive interview-podcast with the Prime Minister of India ahead of the Delhi Assembly Elections—a privilege rarely extended to even the editors of major TV news channels. Given Mr. Kamath’s power as a billionaire himself, he also did interviews with personalities such as Microsoft founder Bill Gates, New Zealand Prime Minster Christopher Luxon and Industrialist Kumar Birla.

One must ask: when billionaires with government proximity become the popular voices of public discourse on social media, are we truly breaking away from “Godi Media,” or are we just replacing it with a new, glossier version that’s algorithmically friendlier and better branded? More importantly, will this new media ask the questions that the traditional media was supposed to ask or even attempt at creating ‘content’ around the issues?

Take Mr. Modi’s interview with Mr. Kamath for example. While discussing ideologies and idealism, Mr. Modi mentions Mahatma Gandhi and Savarkar in the same breath to remark that both had the same ideal of freedom with different paths. In an ideal world, this would have been met with another question about Savarkar’s credentials as a freedom fighter par Gandhi, or at least with a remark. What we get is Mr. Kamath continuing with next question as to what to do when someone trolls and how to develop a thick skin?

Or take another question about politics and money. The data on electoral bonds came out in 2024 but Mr. Kamath could not ask the question, at least on what Mr. Modi thinks of electoral bonds. Instead, he asks about how to facilitate youth entering politics given the huge amounts of money it takes to be in politics!

There’s also another curious and worrying trend: prominent intellectuals and creators within these spaces who align with the ruling ideology often criticize the opposition or even level attacks against dissenters with unchecked impunity. An advocate, who is one of the most popular voices on social media, aligned with the views of ruling establishment  was asked on ‘The Ranveer Show’— “3 Indians that should leave India and never return are?” and the advocate said the names of news presenter Barkha Dutt, Professors Irfan Habib and Romila Thapar. The show’s host was the news cycle’s recent villain Ranveer Allahbadia. To keep up with the illusion of a critical and engaging podcast, the host asks “Why?” only to have the advocate say that these three have harmed Indian interests in their own ways and that they have done grave injustice to facts, truths and integrity. In the interest of critical engagement, one would expect the host to ask “How?” but he comfortably moves on to the next question.

This tells us two things. One, it was a bizarre question tailored to get a certain provocative answer. Two, it was not asked to critically engage with it. It was merely done to be performative

The bar for evidence is low. The responsibility to inform is often secondary to the need to perform.

Ranveer Allahbadia and another content creator Raj Shamani were some of the selected content creators who were given the opportunities to do interviews with union ministers like S. Jai Shankar and Nitin Gadkari. They were also attendees—Raj Shamani being the creator to introduce Mr. Modi, Ranveer Allahbadia being the recipient of the Disruptor of the Year Award—at the National Creators Awards organised in March 2024, just before the 2024 General Elections. Raj Shamani also hosted Arvind Kejriwal for an interview before the Delhi Elections.

This is not an allegation of social media creators selling space on their platforms to the government. There is no indication as of now. However, it is an observation of how close they are willing to be with power and how that hampers their capacity to be neutral, and courageous enough to ask questions, engagingly sharp ones if not tough ones.

This is also not a personal attack on these individuals. Many of them are intelligent, talented, and operate in good faith. But collectively, they form a media ecosystem that is, for the most part, timid when it comes to holding power accountable. And that makes them complicit—not by intent, but by design.

There is an imminent need to resist the temptation to confuse visibility with credibility. Just because a YouTube video racks up a million views or is made by a Billionaire does not mean it is accountable. Just because an influencer is articulate does not mean they are committed to the truth. Just because the production is slick does not mean the content is rigorous.

Social media is not journalism. It can include journalism, but it is not structurally bound to its principles. And in a country like India, where power is both opaque and muscular, the distinction between the two is not just academic—it’s existential for democracy.
So yes, we should celebrate the diversity of voices that social media enables. But we should also be wary—especially of the ones that get a little too close to power. Especially the ones that never ask hard questions. Especially the ones that call themselves everything—except journalists.

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

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