Part 1: The Legacy of Waqf – From pious endowments to modern law

The concept of Waqf is deeply rooted in Islamic jurisprudence, representing a unique form of religious and charitable endowment. In Islamic law, Waqf signifies the permanent dedication, by a person professing Islam (known as the Waqif), of any property, whether movable or immovable, for purposes recognized by Muslim law as pious, religious, or charitable. Crucially, once a property is declared Waqf, its ownership is considered to vest in God Almighty, rendering it inalienable – it cannot typically be sold, gifted, or inherited. The income generated from these properties is earmarked for specific objectives outlined by the Waqif, such as the upkeep of mosques, dargahs, graveyards, imambaras, the support of educational institutions (madrasas), or providing assistance to the poor and needy within the community. A caretaker, known as a Mutawalli, is usually appointed to manage the property’s day-to-day affairs.

There are 872,000 registered Waqf properties across the country, running into lakhs of acres. This immense scale explains the socio-economic and religious significance of Waqf assets within the Muslim community.

The administration of these properties has evolved through various legislative frameworks over the past century. An early attempt at regulation was the Mussalman Wakf Act, 1923. Post-independence, the Waqf Act, 1954, marked the first significant effort to establish a structured system for managing these endowments. This Act underwent several amendments (in 1959, 1964, 1969, and 1984) aimed at refining administrative processes.

A more comprehensive legal structure arrived with the Waqf Act, 1995. This Act repealed the 1954 law and its subsequent amendments, seeking to provide for the “better administration of Auqaf (Waqfs) and for matters connected therewith or incidental thereto”. The 1995 Act laid down the framework for establishing State Waqf Boards and a Central Waqf Council, defining their powers and functions. Further amendments were introduced in 2013 by the then UPA government, which, among other changes, formally established the statutory framework for State Waqf Boards and increased the permissible lease period for Waqf properties from three years to thirty years, aiming for better utilization of assets.

This historical progression of legislation reveals a trend towards increasing formalisation and state intervention in the management of Waqf properties. What began as a community-managed religious practice gradually came under greater regulatory scrutiny, reflecting the complex interplay between religious institutions, community autonomy, and the state’s administrative imperatives. The sheer scale and value of Waqf assets have inevitably drawn governmental interest, shifting the focus over time from purely religious oversight towards broader concerns of administration, management efficiency, and, as recent events suggest, potentially political control. The 1995 Act itself represented a significant step in this direction, setting the stage for the more pervasive changes introduced in 2025.

Part 2: Understanding the Waqf Act, 1995: Key Provisions Explained

The Waqf Act, 1995, served as the cornerstone of Waqf administration in India for nearly three decades before the recent amendments. Understanding its key provisions is essential to grasp the significance of the changes brought about by the 2025 Act.

Defining and recognizing Waqf (Section 3 (r) – Pre-amendment)

The 1995 Act recognised Waqf formation through three primary means:

1. Declaration: A formal dedication of property by its lawful owner for religious or charitable purposes under Muslim law.
2. Waqf by User: This crucial provision allowed a property to be recognised as Waqf if it had been used for a long period for any religious or charitable purpose recognized under Muslim law, even in the absence of a formal dedication deed. This acknowledged the reality of many historical endowments, particularly older mosques, graveyards, or community spaces, where formal documentation might be lost or non-existent but continuous religious use established its character.
3. Waqf-alal-aulad: An endowment where the benefits primarily accrue to the founder’s family or descendants for a specified period, with the ultimate benefit designated for a religious or charitable purpose upon the extinction of the family line.

Governance Structure

The Act established a hierarchical structure for Waqf administration:

• State Waqf Boards (Establishment under Section 13, Composition under Section 14 – Pre-amendment): The Act mandated the establishment of a Waqf Board in every state. States could also establish separate Boards for Shia and Sunni Waqfs if their population and Waqf numbers warranted it.
  • Composition: The Boards were designed to be predominantly composed of Muslim members, reflecting the religious nature of the institutions they governed. Section 14 provided for a mix of elected and nominated members. Elected members included up to two representatives each from electoral colleges comprising Muslim Members of Parliament (MPs), Muslim Members of State Legislative Assemblies (MLAs) and Legislative Councils (MLCs), and Muslim members of the State Bar Council. Nominated members included government officials and individuals recognized for their expertise in Islamic law, finance, or administration. The Act also mandated the inclusion of at least two women members.
  • Functions (Section 32): The Boards were vested with the general superintendence of all Waqfs within the state. Their key functions included ensuring that Waqfs were properly maintained, controlled, and administered according to the Act, Muslim law, and the specific objectives laid out in the Waqf deed; settling schemes for management; directing the utilization of surplus income for approved purposes; scrutinizing and approving budgets submitted by Mutawallis; and appointing or removing Mutawallis under specified conditions.
• Central Waqf Council (Establishment under Section 9 – Pre-amendment): At the national level, the Act provided for a Central Waqf Council.
  • Composition: It was chaired by the Union Minister in charge of Waqf. Critically, Section 9 stipulated that, barring the Minister, all other members of the Council had to be Muslims. These included MPs, scholars of Islamic theology, representatives of national-level Muslim organizations, and former judges of the Supreme Court or High Courts. At least two members were required to be women.
  • Role: The Council’s function was primarily advisory. It was tasked with advising the Central Government, State Governments, and the State Waqf Boards on matters concerning the effective administration of Waqfs and the functioning of the Boards.
• Mutawalli (Defined in Section 3 (i)): The Act defined a Mutawalli as any person appointed, either verbally or under any deed or instrument by which a Waqf has been created, or by a competent authority, to manage or administer such Waqf. They were the primary managers at the property level, responsible for implementing the Waqf’s objectives and managing its income and expenditure, subject to the oversight and direction of the State Waqf Board.
• Survey Commissioner (Section 4 – Pre-amendment): The state government was required to appoint a Survey Commissioner to conduct preliminary surveys of all Waqf properties existing in the state. The Commissioner was responsible for identifying Waqfs, investigating their nature and extent, and submitting a report to the state government and the Waqf Board.

Identifying and Managing Waqf Property

• The Power of Section 40 (Pre-amendment): This section granted the State Waqf Board the power to determine, after conducting an inquiry, whether a particular property was Waqf property. The Board could issue notices to interested parties and hold hearings.
• Registration of Waqfs (Section 36): The Act mandated the registration of all Waqfs, whether created before or after the commencement of the Act, at the office of the respective State Waqf Board.
• Protection of Waqf Property: The Act included provisions to safeguard Waqf assets:
  • Restrictions on Alienation (Section 51): It generally prohibited the sale, gift, exchange, mortgage, or transfer of Waqf property. Leases exceeding one year (or three years for agricultural land) required prior sanction from the Board (Section 56). The 2013 amendment significantly extended the permissible lease period up to 30 years with Board approval, aiming for better economic utilization.
  • Penalties for Encroachment (Section 52A – added by 2013 amendment): This section defined ‘encroacher’ and prescribed penalty of imprisonment for up to two years, for illegally occupying Waqf property.

Dispute Resolution

• Waqf Tribunals (Establishment under Section 83 – Pre-amendment): To handle disputes related to Waqf properties, the Act mandated that state governments constitute one or more Tribunals. These Tribunals had jurisdiction over questions such as whether a property is Waqf, disputes regarding Mutawallis, or issues concerning Waqf administration.
  • Composition: Section 83 specified the composition: a Chairman who was a member of the State Judicial Service (holding a rank not below that of a District, Sessions, or Civil Judge, Class I), one member from the State Civil Services (equivalent in rank to at least an Additional District Magistrate), and crucially, one member having knowledge of Muslim law and jurisprudence. This composition aimed to blend judicial, administrative, and religious legal expertise.
  • Jurisdiction (Section 85): The Tribunals were granted exclusive jurisdiction over Waqf matters, explicitly barring suits or legal proceedings in civil courts concerning any dispute required to be determined by the Tribunal under the Act.
• Finality of Tribunal Decisions (Section 85 – Pre-amendment): The Act did allow the High Court to exercise revisional jurisdiction – it could call for records and pass orders either on its own motion (suo motu) or on the application of the Board or an aggrieved person on any matter which has been determined by the tribunals, and even modify such order.

Exemption from Limitation Act (Section 107 – Pre-amendment)

• A significant protective measure was Section 107, which stipulated that the provisions of the Limitation Act, 1963 (which sets time limits for initiating legal action) would not apply to any suit for the possession of immovable property in any Waqf. The purpose of this exemption was to safeguard Waqf properties from being lost due to adverse possession – where an encroacher occupies land openly and continuously for a prescribed period (typically 12 years for private immovable property under the Limitation Act). Section 107 allowed Waqf Boards to initiate recovery proceedings for encroached land regardless of how long the encroachment had persisted.

Significance of the 1995 Act

The 1995 Act, therefore, represented a layered legal architecture attempting to balance the unique religious nature of Waqf with the requirements of modern administration and state oversight. Provisions ensuring Muslim majority representation on Boards and Councils, and the inclusion of Muslim law experts in Tribunals, sought to maintain the institution’s religious integrity. However, the very establishment of state-controlled Boards, the appointment of Survey Commissioners, the broad powers under Section 40, and the Tribunal system itself signified substantial state involvement.

Part 3: The Waqf (Amendment) Act, 2025: What has changed?

The Waqf (Amendment) Act, 2025, introduces sweeping changes to the 1995 framework, impacting nearly every aspect of Waqf definition, governance, property management, and dispute resolution. The government has renamed the legislation the “Unified Waqf Management, Empowerment, Efficiency, and Development Act” (UMEED Act), in line with the government’s enthusiasm to rename things.

Redefining Waqf creation and scope:

• New Criteria for Declaration (Amended Section 3(r), New Section 3A): The Act imposes new conditions for creating a Waqf by declaration. Firstly, only a person who has demonstrably practiced Islam for at least five years can now declare a Waqf. Secondly, the Act explicitly requires the person creating the Waqf (Waqif) to be the lawful owner of the property being dedicated.
• Abolition of ‘Waqf by User’ Prospectively (Amended Section 3(r)): The Act removes the concept of ‘Waqf by user’ for recognising future This means properties cannot be newly recognised as Waqf based solely on long-term religious or charitable use without a formal declaration by a qualified owner. While the amendment includes a proviso stating that existing properties registered as ‘Waqf by user’ before the Act’s commencement will remain Waqf, it adds a crucial exception: this protection does not apply if the property is “wholly or in part, in dispute or is a government property”. This exception clause creates uncertainty for many existing ‘Waqf by user’ properties, particularly those facing legal challenges or situated on land claimed by the government.
• Waqf-alal-aulad clarification (new Section 3A(2)): The amendment specifies that the creation of a Waqf-alal-aulad (family Waqf) must not result in the denial of inheritance rights to the Waqif’s heirs, explicitly including women heirs, or infringe upon the rights of others with lawful claims. This is presented by the government as a measure to ensure gender equality and protect inheritance rights.

Shift in Property identification and Survey:

• Deletion of Section 40: The Section 40, which empowered State Waqf Boards to declare properties as Waqf after an inquiry, has been entirely removed.
• Collector’s Role in Survey (Amended Section 4): The role of the Survey Commissioner is abolished. Instead, the District Collector (or an authorised officer not below the rank of Deputy Collector) is now responsible for conducting surveys of potential Waqf properties. These surveys are to be conducted according to the procedures laid out in the state’s revenue laws. This transfers significant authority from a potentially specialised body focused on Waqf to generalist revenue administration officials, raising concerns about potential bias and lack of specialized knowledge.
• Government property: The Act explicitly states that any government property identified as Waqf will cease to be considered Waqf property. In cases of uncertainty regarding ownership between Waqf claims and government claims, the Collector is empowered to determine ownership and report to the state government.

Changes in governance bodies (Amended Sections 9, 14):

• Inclusion of Non-Muslims: A major structural change is the mandatory inclusion of non-Muslim members in both the Central Waqf Council and the State Waqf Boards. The Act specifies at least two non-Muslim members for State Boards and mandates two non-Muslims on the Council, while also removing the previous requirement that certain categories of Council members (like MPs, former judges, eminent persons) must be Muslim.
• Nomination over Election: The previous system where some members of State Waqf Boards were elected by specific Muslim electoral colleges (MPs, MLAs/MLCs, Bar Council members) has been abolished. The Act now empowers the state government to nominate all members of the State Waqf Boards. This significantly increases state government control over the composition and functioning of the Boards.
• Mandated Representation: While increasing government control, the Act also mandates specific representation within the nominated Boards. They must include at least one member each from Shia, Sunni, and recognized Backward Classes among Muslims. Additionally, if there are Bohra or Agakhani Waqfs in the state, one member from each of these communities must be included. The requirement for female representation is retained, specifying that at least two Muslim members must be women.

Tribunal reforms (Amended Section 83, Omission of Section 85 finality clause):

• New Composition: The Tribunal will now consist of three members like before but with some changes in the composition: a Chairman who is a current or former District Court judge, and a member who is a current or former state government officer of the rank of Joint Secretary or equivalent and a person having the knowledge of Muslim law.
• Appeal to High Court: In essence, provides a 90 day time limit to appeal the tribunal’s decisions to the High Court. However, the appeal provision existed in the 1995 act too.
• Digital Mandate and Financial Changes:
• Central Portal and Database (New Section 3B, Amended Section 3(ka)): The Act mandates the establishment of a central online portal and database managed by the Central Government. All existing Waqfs registered under the Act prior to the amendment are required to file detailed information about the Waqf and its properties on this portal within six months of the Act’s commencement.
• Contribution Reduction: The mandatory annual contribution payable by Waqfs from their net annual income to the State Waqf Board for administrative expenses is reduced from 7% to 5%.

Applicability of Limitation Act, 1963 (Omission of Section 107):

• Perhaps one of the most impactful changes is the omission of Section 107 of the 1995 Act. This means the Limitation Act, 1963, which sets time limits for filing lawsuits, will now apply to Waqf properties like any other property from now on. Consequently, the special protection Waqf properties previously enjoyed against claims of adverse possession is removed. Individuals or entities who have illegally occupied Waqf land for the period specified under the Limitation Act (often 12 years for immovable property) could potentially claim legal ownership, severely hindering the ability of Waqf Boards to reclaim long-encroached properties and effectively legitimizing past illegal encroachments.

These amendments, viewed collectively, represent a significant shift in the governance philosophy surrounding Waqf. While the 1995 Act balanced community involvement with state oversight, the 2025 changes appear to tilt this balance decisively towards state control. The removal of the Board’s power under Section 40, the replacement of the Survey Commissioner with the Collector, the introduction of nominated Boards with mandatory non-Muslim presence, and the altered Tribunal composition all point to a reduced role for community institutions and increased authority for government functionaries.

Part 4: A question of rights: How the 2025 amendments impact minorities

The passage of the Waqf (Amendment) Act, 2025, has been met with strong opposition and rightly so. A widespread concern regarding its impact on the fundamental rights of India’s Muslim minority is prevalent. Why?

Erosion of religious autonomy (Violation of Article 26)

Article 26 of the Indian Constitution grants every religious denomination the right to establish and maintain institutions for religious and charitable purposes and to manage its own affairs in matters of religion. The 2025 Act infringes upon this right by significantly increasing government control over Waqf administration. The transfer of survey powers to the District Collector, the replacement of elected Board members with government nominees, and, most notably, the mandatory inclusion of non-Muslims in the governing bodies (State Boards and Central Council) are direct state interference in the management of inherently religious and charitable endowments established under Muslim law.

Concerns over Non-Muslim representation

While the government presents the inclusion of non-Muslim members on Waqf Boards and the Council as a move towards inclusivity and secular administration, this provision fails to hide the intentions of the ruling establishments to somehow gain control over the spaces that have been reserved for Muslims. When contrasted with the strict norms for say the Tirumala Tirupati Devasthanam where the service rules mandate that any appointment to any category of post in the TTD should be made from among the persons professing Hindu Religion. Some employees were pulled up in February 2025 for engaging in non-Hindu activities and were sent memos.

The question of whether our society can hire individuals from different religions for non-religious roles—and what it reveals about us if we cannot—is a separate and deeply important conversation in itself. However, what needs to be noted here is that if traditional Hindu dominions like the TTD have such strict and well accepted rules over all categories of employees, it is not fair to have non-Muslims’ representation in dominions that have been held by Muslims for generations now. This is not a question of essential religious practices but a question of how spaces occupied by two religions are being treated differently.

The argument is that Waqf properties are specifically dedicated under Islamic law for purposes defined by that law, and their management should primarily rest with members of the Muslim community who understand the religious context and obligations.

Weakening property protection and potential for dispossession

Several amendments are directly weakening the legal protections afforded to Waqf properties, raising fears of systematic dispossession:

Impact of Removing Section 107

The repeal of the exemption from the Limitation Act, 1963, is arguably one of the most damaging changes. By making Waqf properties subject to claims of adverse possession (typically after 12 years of uninterrupted illegal occupation), the Act potentially legitimizes decades of encroachment and makes it significantly harder, if not impossible, for Waqf Boards to recover vast tracts of land illegally occupied in the past. This fundamentally undermines the principle of Waqf property being inalienable and perpetually dedicated.

For example, in Telangana, more than 70% of Waqf land has been encroached by various elements. Now, the biggest protection to Waqf was that even if the encroachers squatted on the land for more than 12 years, they would not have had the right to claim it and this changed with the amendment thus putting the encroached properties in danger.

Impact of abolishing ‘Waqf by User’

Removing the possibility of recognizing new Waqfs based on long-term usage closes off a vital avenue for protecting historical community assets where formal documentation is lacking. Furthermore, the caveat that even existing registered ‘Waqf by user’ properties lose protection if they are disputed or on government land creates significant vulnerability.

Collector’s Enhanced Role: Empowering the District Collector, a revenue official accountable to the state government, to conduct surveys and determine ownership in case of disputes involving government land fuels concerns about political interference and decisions potentially biased against Waqf claims. 

Arbitrary restrictions and discrimination

Certain provisions that have been brought via the amendment are plain arbitrary and discriminatory

• The ‘5-year practice’ rule

The requirement that a person must have practiced Islam for at least five years to create a Waqf is an arbitrary and intrusive limitation on religious freedom. It imposes an unnecessary burden of proof on individuals born into the faith and lacks a clear legislative rationale.

• Exclusion of ‘Waqf by User’

The prospective abolition of ‘Waqf by user’ is discriminatory against a historically significant method of recognizing community endowments based on established practice.

Conclusion

The Waqf (Amendment) Act, 2025, enacted under the banner of the “Unified Waqf Management, Empowerment, Efficiency, and Development (UMEED) Act,” seeks to reform the administration of Waqf properties in India. However, a critical examination reveals that its provisions represent a significant regression, fundamentally undermining the religious autonomy and property rights of the Muslim minority, thereby challenging constitutional safeguards.

A central pillar of this critique rests upon the Act’s assault on the autonomy guaranteed under Article 26 of the Constitution, which allows religious denominations to manage their own affairs. The systematic replacement of elected members on State Waqf Boards with government nominees, coupled with the mandated inclusion of non-Muslim members in both State Boards and the Central Waqf Council, constitutes an unprecedented level of state interference in the governance of institutions intrinsically linked to Islamic faith and practice. This contrasts starkly with the governance norms often applied to the endowments of other faiths, raising legitimate concerns about discriminatory application of legislative principles.

Furthermore, the Act delivers a severe blow to the protection of Waqf properties. The repeal of Section 107 of the 1995 Act, which shielded Waqf properties from the Limitation Act, 1963, is particularly damaging. This single amendment potentially legitimizes decades of illegal encroachment by allowing claims of adverse possession, threatening the recovery of vast tracts of land  that were intended for perpetual religious and charitable use. This action directly contradicts the core Islamic principle of Waqf property being inalienable.

While framed as a move towards transparency and efficiency, the Waqf (Amendment) Act, 2025, functions as a mechanism for increased state control over minority religious institutions and assets. It markedly weakens property protections, erodes constitutionally guaranteed autonomy, and introduces potentially discriminatory clauses. Far from progressive reform, the Act represents a shift that jeopardizes the integrity and security of Waqf institutions and properties across India, rightly prompting serious constitutional challenges.

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

Related:

Amid Waqf Debate, Should Hindu Endowment Boards be Held Responsible for the Sorry Plight of Dalits?

Waqf Amendment Act 2025: SC grants some time to Centre on condition no non-Muslims appointed to Board, Council & no change in any Waqf status

SC to UoI on Waqf Amendment: ‘Are you willing to allow Muslims on Hindu endowment boards?’

The post Waqf Amendment Act 2025: An erosion of rights under the garb of reform appeared first on SabrangIndia.

This case, which challenged the expulsion of a sitting Member of the Legislative Council (MLC) for alleged misconduct, brought to the forefront the inherent tension between the need to maintain order and decorum within legislatures and the imperative to safeguard democratic representation and the individual rights of elected representatives. In a way, it is also a check on majority parties trying to have their way in legislative houses on account of their brute majority.

Facts and context

The controversy leading to the legal challenge began with the expulsion of Dr. Sunil Kumar Singh, an MLC from the Rashtriya Janata Dal (RJD), by the Bihar Legislative Council (BLC) in July 2024. The expulsion was a consequence of alleged derogatory remarks made by Dr. Singh against the Chief Minister of Bihar, Nitish Kumar, during the budget session in February 2024. These remarks reportedly included sloganeering, using the term “Palturam” to suggest the Chief Minister’s propensity for political alliances, mimicking his body language.

Dr. Singh, a senior RJD leader known for his critical stance against the ruling Janata Dal (United) (JDU)-Bharatiya Janata Party (BJP) coalition, found himself facing disciplinary action in a politically charged environment. Following a complaint, the matter was referred to the Ethics Committee, where Dr. Singh initially sought exemptions from appearance. While another MLC involved in the same incident expressed regret, Dr. Singh reportedly questioned the committee’s authority. Ultimately, the Ethics Committee recommended Dr. Singh’s expulsion, a recommendation that was subsequently ratified by a majority vote in the BLC.

Dr. Singh challenged his expulsion by filing a writ petition in the Supreme Court, arguing that the punishment was disproportionate to the alleged misconduct.

Arguments

Dr. Singh contended that his remarks were merely a reflection of public opinion and that a much lighter punishment was given to another MLC involved in the same incident [Para 4(d)].

The Bihar Legislative Council, on the other hand, justified the expulsion as necessary to maintain the discipline and decorum of the House, citing Dr. Singh’s history of alleged misconduct and defiance [Para 6(e)]. It was also argued that the court does not have jurisdiction to decide on this issue due to the restrictions imposed by Article 212 on Courts to not inquire into proceedings of the legislature.

Judgement

On Jurisdiction to decide on a matter under Article 212

Article 212 of the Constitution states as follows:

212. Courts not to inquire into proceedings of the Legislature

(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

This, by literal reading, means that courts do not have jurisdiction over the proceedings of the legislature. In this case, the decision of the Ethics Committee was on the basis of the proceedings of the legislature meaning that there was an element of confusion as to whether the Supreme Court had jurisdiction or not.

The Court clarified this by holding that while Article 212(1) of the Constitution imposes limitations on judicial interference in legislative proceedings based on procedural irregularities, however as in the present case, that this immunity does not extend to substantive decisions, especially those affecting fundamental rights [Para 12].

The Court considered the Ethics Committee’s recommendation for expulsion as an administrative function, thus subject to judicial review based on the principle of proportionality.

On expulsions effect on representative democracy

The democratic process in the legislatures, according to the court, relies on the active participation of all members and a brief absence can impede a member’s ability to contribute to critical legislative discussions and decisions. Therefore, it clarified that, while representation of the constituency is not the sole factor in determining the punishment to be imposed on a member, it nonetheless remains an important aspect that merits due consideration [Para 59].

The court stated that when the punishment inflicted on a member, is prima facie harsh and disproportionate, Constitutional Courts owe a duty to undo such gross injustice and review the proportionality of such disqualifications or expulsions.

The two-judge bench, comprising Justices Surya Kant and N.K. Singh, held that the expulsion was “highly excessive” and “disproportionate” to the nature of the offense [Para 88].

The Court traced the evolution of the doctrine of proportionality in Indian constitutional law, referencing seminal cases such as Maneka Gandhi v. Union of India (1978), Bacchan Singh v. State of Punjab (1980), and Modern Dental College and Research Centre v State of M.P. (2016). The Court emphasized the importance of the electorate’s right to representation and deemed the seven months Dr. Singh had already spent out of the council as sufficient punishment, ordering his immediate reinstatement [Para 88(d)].

Doctrines of proportionality and double proportionality

The principle of proportionality, which formed the bedrock of the Supreme Court’s judgment, is a cornerstone of Indian constitutional law, extending across various legal domains. Rooted in the ideals of fairness and the safeguarding of fundamental rights under Articles 14 and 21 of the Constitution, this doctrine dictates that the severity of a punishment should be commensurate with the gravity of the offense.

For example, if someone commits a wrong like smoking a cigarette in a public space, it is a disproportionate action to have her house demolished. Instead, there should be a proportional punishment for such wrong. According to the court, the test of proportionality is satisfied by considering a myriad of non-exhaustive factors such as fairness, justice, absence of vindictiveness, predominance of objectivity, adherence to natural justice, fair play, and the recognition of mitigating circumstances etc.

While this doctrine is used in service matters and administrative law matters, it is also widely used in constitutional matters. In this context, according to the Supreme Court, the test of proportionality largely seeks to identify whether the restriction sought to be placed on the right is proportionate to the objective sought to be achieved by the restriction.

According to the court, the disproportionate punishment of elected representatives by legislative bodies carries significant democratic consequences. Such actions can undermine democratic values by depriving the electorate of their chosen representative, thus silencing their voice in the legislature [Para 58]. Moreover, the fear of excessive disciplinary measures can create a chilling effect on democratic frameworks, according to the court [Para 22].

Since the authority (legislative council) dealing with the question of expulsion of Dr. Singh, by virtue of dealing with him—it is also dealing with the electorate that put him there in that house, their voices, aspirations and democratic rights. The Supreme Court stated as follows in this context:

“While dealing with individuals, such as the Petitioner, it is imperative that disciplinary measures are undertaken with due regard to the principles of proportionality and fairness. The House, in the exercise of its authority to regulate its own proceedings and maintain order, must not lose sight of the necessity for a calibrated and judicious approach.”

The court essentially carved out the jurisdiction for itself by differentiating the proceedings of the legislature and ‘legislative decision’ with the latter not being immune from judicial scrutiny under Article 212. Thereafter, it examined whether expulsion passes the well-established test of proportionality or not. In this context, it stated as follows:

“In fact, this aspect is already prescribed in the Rules governing the procedure of the BLC. In this regard, our attention was drawn to Rule 10, Chapter 36 of the Bihar Vidhan Parishad – Rules of Procedure and Conduct of Business, which provides for the penalties that the Ethics Committee may recommend. A perusal of the provision depicts that if the Committee finds a member violating the code/rules, it may recommend: (a) Censure, (b) Reprimand, (c) Suspension from the House for a specified period; and (d) any other punishment as deemed fit.” [Para 74]

Given the applicable provisions and the underlying objective of imposing penalties on members of the House, we are of the view that the primary purpose of imposing penalties is to discipline the members and ensure the smooth and orderly functioning of the House. A more measured and balanced approach would have sufficed to address the misconduct while upholding the dignity and decorum of the House. [Para 76]

By saying that the (above) punishment Dr. Singh served was sufficient, the Supreme Court directed to reinstate him to legislative council. It also quashed a press note of the Election Commission which spoke about by-elections for Dr. Singh’s constituency.

On guidelines to consider while taking action against members of legislatures

The Court, critically, also laid down an indicative list of parameters to consider while scrutinising the proportionality of actions taken by the House against its member(s). They are as follows:

1. Degree of obstruction caused by the member in the proceedings of the House.
2. Whether the behaviour of the member has brought disrepute to the dignity of the entire House.
3. The previous conduct of the erring member.
4. The subsequent conduct of the erring member, such as expressing remorse, cooperation with the institutional scrutiny mechanism.
5. Availability of lesser restrictive measures to discipline the delinquent member.
6. Whether crude expressions uttered are deliberate and motivated or a mere outcome of language largely influenced by the local dialect.
7. Whether the measure adopted is suitable for furthering the desired purpose; and
8. Balancing the interest of society, particularly the electorates, with those of the erring members.

Conclusion

The Supreme Court’s decision demonstrates judicial innovation in the interpretation of Article 212 of the Indian Constitution. This case is significant as it clarifies the scope of judicial review over legislative actions concerning the discipline of its members. The Court creatively interpreted Article 212, distinguishing between “proceedings in the legislature” and “legislative decisions”, and held that the latter can be subject to judicial scrutiny, especially when they affect fundamental rights. Whether this proactive nature will seep into other cases like those involving defection is yet to be seen.

The judgement may be read here.

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

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India at the Crossroads: The delimitation exercise and its implications for democracy

The post Bihar: SC frowns on disproportionate punishment of opposition legislators & its democratic consequences appeared first on SabrangIndia.

This case, arising from an FIR registered against Imran Pratapgarhi, a Member of the Rajya Sabha, for offenses related to a poem he shared on social media, specifically addressed the application of Section 173 of the BNS, which governs the procedure for handling information in cognisable cases and the subsequent registration of FIR.

Brief Facts and Background

Parliament Member Imran Pratapgarhi posted a video in which a poem was shared, which according to a complainant, promoted enmity between religious communities, and that it constituted imputations that are prejudicial to the national integrity.

The FIR was filed with offences under Section 302 (Uttering words, etc., with deliberate intent to wound religious feelings of any person), Section 299 (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), Section 57 (Abetting commission of offence by public or by more than ten persons).

Mr. Pratapgarhi approached the High Court under Section 528 of the BNSS read with Article 226 of the Constitution to quash the FIR. Section 528 of the BNSS states that nothing in the BNSS limits or affects the inherent powers of the High Court to pass such orders as may be necessary to give effect to any order under BNSS or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Article 226 of the Constitution of India provides High Courts with the power to issue certain writs to any person or authority, including Government in appropriate cases for enforcing fundamental rights provided under Part III of the Constitution, or for any other purpose.

The High Court refused to intervene. Aggrieved, Mr. Pratapgarhi approached the Supreme Court.

The Supreme Court examined the poem in question and opined, first, that there is nothing in the poem which attracted the offences mentioned before. Later, it went on to deal with the question of whether, in this case, it was obligatory under Section 173(1) of the BNSS to register FIR or not.

Provisions and case law

Section 173(1) of the BNSS states that every information relating to the commission of a cognisable offence, irrespective of the area where the offence is committed, may be given (orally or via electronic communication) to an office in-charge of a police station and if given orally, such officer shall reduce it to writing by him or under his direction, read it over to the informant, and have it signed by the informant.

Essentially, when one gives a complaint over a cognisable offence, the police will have to record it in writing and take signature of the complainant. This record is commonly known as a First Information Report (FIR). Section 173(2) states that a copy of the FIR be given to the complainant free of cost.

Section 173(3) states that when an information relating to commission of a cognisable offence which is punishable with three years or more but less than seven years of imprisonment, the officer in charge of the police station may with the prior permission from an officer, not below the rank of the Deputy Superintendent of Police, considering the nature and gravity of the offence,

1. proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or
2. proceed with investigation when there exists a prima facie case.

There exists a conflict between Section 173 (1)—which states FIR should be registered when cognizable offence related information comes and Section 173 (3)—which states that a preliminary investigation ought to be done for cognizable offences which are punishable for more than three but less than seven years.

In Lalita Kumari vs Government of Uttar Pradesh, the Supreme Court stated that the condition sine qua non (essential condition) for registering FIR is that there must be information, and the information discloses commission of cognisable offence, the reasonableness or credibility of information is not a condition precedent for the registration of FIR.

Supreme Court resolved this contradiction in Imran Pratapgarhi vs. State of Gujarat (2025 INSC 410).

Judgement and its reasoning

On Section 173

While Section 173 (1) is the general rule, according to the court, Section 173 (3) is an exception to the rule. This means that when information is given to the police, if prima facie, a cognizable offence is made out, an FIR is to be registered unless the offence is covered under Section 173 (3) in which case a preliminary investigation could follow (Para 25).

According to the court, Section 173 (3) of the BNS thus introduces a notable exception, granting the police the discretion to conduct a preliminary assessment even when the information received might disclose a cognisable offense, if it is falling within the specified punishment range.

This pronouncement highlights a significant deviation from the general principle of immediate FIR registration for cognisable offenses, as previously emphasized by the Supreme Court in Lalita Kumari v. Govt. of U.P. under Section 154 of the Code of Criminal Procedure, 1973(CrPC).

On free speech and usage of Section 173(3)

In its judgment, the Supreme Court laid significant emphasis on the fundamental right to freedom of speech and expression enshrined in Article 19 (1) (a) of the Constitution of India. The Supreme Court went further to characterize the registration of the FIR against Mr. Pratapgarhi as a “mechanical exercise” and a clear “abuse of the process of law” (Para 36).

This strong condemnation implies that the police acted without a proper appreciation of the nuances of free speech and potentially misconstrued the intent and message of the poem. The Court also highlighted the societal value of various forms of artistic expression, including poetry, literature, drama, films, and satire, emphasizing their role in enriching human life and the necessity of their protection under the umbrella of free speech (Para 38).

In this case, the Supreme Court specifically ruled that when an allegation concerns an offence that falls under the ambit of the restrictions on free speech outlined in Article 19 (2) of the Constitution, it is invariably appropriate to conduct a preliminary inquiry under Section 173 (3) of the BNS before proceeding to register an FIR (Para 29).

The Court reasoned that when allegations are predicated on spoken or written words, it is incumbent upon the police officer to carefully examine the content to ascertain whether it indeed constitutes a cognizable offense

According to the Court, this initial assessment of the material does not equate to a preliminary inquiry that would be impermissible under Section 173 (1) when the information already discloses a cognizable offense. The Court underscored that the failure to utilize the option of conducting a preliminary inquiry under Section 173 (3) in cases where potential free speech violations are at issue could result in the registration of an FIR against an individual merely for exercising their fundamental right under Article 19 (1) (a), even if the restrictions stipulated under Article 19 (2) are not applicable.

Furthermore, the Court opined that neglecting to invoke Section 173 (3) in such circumstances would undermine the very purpose for which this sub-section was incorporated into the BNSS (Para 29). It would also contravene the constitutional obligation of the police under Article 51-A (a) to uphold the Constitution and respect its ideals, according to the Court.

To this end, the Supreme Court suggested that the higher police officer, whose permission is required under Section 173(3), should ordinarily grant such permission to conduct a preliminary inquiry in cases involving the exercise of free speech where the potential punishment falls within the range of three to seven years (Para 29).

This directive indicates a clear expectation from the apex court that superior officers should facilitate the process of preliminary inquiry in such scenarios to ensure that the fundamental right to freedom of speech is adequately protected from unwarranted criminal prosecution at the very outset.

Conclusion: a paradigm shift in policing free speech

The Supreme Court’s judgment in Imran Pratapgarhi v. State of Gujarat marks a transformative moment in the jurisprudence of free speech and police powers, recalibrating the balance between constitutional rights and procedural obligations. By mandating preliminary inquiries under Section 173 (3) of the BNS for allegations implicating Article 19 (2) restrictions, the Court has introduced a safeguard against precipitate criminalization of speech. This intervention is not merely procedural but foundational, ensuring that the exercise of free expression—particularly in artistic or public discourse—is shielded from arbitrary state action.

The ruling underscores that police discretion under Section 173 (3) is not a license for inaction but a constitutional duty to scrutinise allegations rigorously. By requiring higher police authorities to authorise preliminary inquiries, the judgment institutionalizes accountability, preventing FIRs from becoming tools of harassment. This is especially critical in speech-related cases, where the line between lawful dissent and cognizable offenses is often blurred by subjective interpretations. The Court’s emphasis on the societal value of poetry, satire, and other forms of expression serves as a reminder that democratic robustness thrives on diversity of thought, even when contentious.

Critically, the judgment does not dilute the obligation to act on cognisable offenses but contextualises it. By distinguishing between immediate FIR registration under Section 173 (1) and the need for preliminary assessment under Section 173 (3), the Court harmonises competing imperatives: the necessity of prompt action in grave crimes versus the imperative to protect speech from overzealous policing. This nuanced approach ensures that the police remain guardians of both law and liberty, rather than arbiters of societal consensus.

While the judgment does not absolve individuals of accountability for speech that incites violence or undermines public order, it raises the threshold for criminal prosecution. This is a welcome check on the expanding criminalisation of political and artistic expression, which has historically been weaponised to stifle dissent.

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

Related:

‘Courts, Police Have Duty to Protect Freedom of Speech’: SC on FIR against Congress MP Over Poem

The post SC: Recent judgment in the Imran Pratapgarhi case, what are police powers under section 173 (3) BNS? appeared first on SabrangIndia.

Before The Times of India (TOI) broke the story, a series of crucial developments had already unfolded. By March 15, Chief Justice of Delhi High Court (CJ, Delhi HC) Justice D.K. Upadhyaya already had instructions from (CJI) Justice Sanjiv Khanna on what other details they needed. The following is established on the basis of Justice Upadhyaya’s report:

On March 16, Justice Upadhyaya met the CJI and reported the happenings reported to him. On March 17, Justice Upadhyaya met Justice Yashwant Varma and showed him the photos and videos of the purported cash, at which point Justice Varma expressed concerns that he was being targeted in a conspiracy.

On the morning of March 20, Justice Upadhyaya sent the images and videos to Justice Khanna. That same evening, Justice Upadhyaya was notified about the proposal to repatriate Justice Varma back to the Allahabad High Court, his parent High Court. Justice Upadhyaya endorsed the proposal, stating that it was in the interests of justice. It was only after these internal developments that the TOI publicly reported the story.

The Supreme Court on March 22 announced a three-member Committee comprising of judges from various High Courts that would conduct an inquiry into this incident. On March 24, the Collegium’s resolution to repatriate Justice Varma to Allahabad High Court was published.

This article is not to address judicial corruption, a well-documented issue with established theories on solutions(see here, here and here)—awaiting only implementation. Instead, it highlights how the outrage over the Justice Yashwant Varma fiasco is part of an ongoing erosion of judicial credibility, a concern rooted in legitimate issues. From appointing openly communal individuals as judges to failing to act against sitting judges who make communal remarks, the judiciary’s credibility and public trust have been in steady decline. Yet, the higher judiciary appears to be missing opportunities to restore it.

This article argues that the collegium’s resolutions must be more transparent and informative and striving for this transparency would be a crucial first step in rebuilding trust in the higher judiciary.

The issue: Context

The Collegium is one of the most powerful bodies in India today. Despite having no constitutional mention or statutory status, its power is such that it decides who gets to be a judge in India’s High Courts and the Supreme Court. The Collegium is not answerable to the executive or the legislature— a feature that it draws from one of the core principles of the Indian Constitution—independence of the judiciary. It consists of the Chief Justice of the country and four of the senior-most judges of the Supreme Court—a system in place since 1998.

The NJAC challenge and calls for transparency

In 2014, the NDA government enacted the National Judicial Appointments Commission Act, 2014 to replace the collegium system. A 5-judge bench of the Supreme Court in Supreme Court Advocates-On-Record Association & Anr. vs. Union of India ([2015] 13 SCR 1) declared the NJAC as unconstitutional with one judge—Justice Chelameswar dissenting.  Both the majority and dissenting opinions expressed the need for greater transparency in the process of judicial appointments.

After the judgement, and once he became a senior judge qualified to be in the collegium, it was reported that Justice Chelameswar refused to attend the collegium meetings since it was an opaque process. In 2017, to resolve the deadlock, the Collegium started to make public its resolutions during the tenure of CJI (as he was then) Dipak Misra.

While that process enabled the resolutions to be published, in December 2022, in the case of Anjali Bhardwaj v. CPIO, Supreme Court of India, (RTI Cell), (2022 SCC OnLine SC 1698), the Supreme Court held that held that unless any Collegium discussion culminates into a final decision, the discussion shall not be disclosed to public.

A study in 2022 stated that the collegium systematically failed to disclose critical information essential to an enhanced understanding of its functioning. The study stated that an overwhelming majority of its decisions are not reasoned and that the resolutions fail to provide a meaningful understanding of the considerations, based on which candidates are selected or rejected.

Except for a brief, considerable change during CJI (as he was then) DY Chandrachud’s tenure, the study’s findings hold true.

Collegium communications: A formality within a formality

Currently, the Supreme Court of India publishes Collegium resolutions on its website, offering a glimpse into its decision-making process, including, transfers and appointments of judges to higher judiciary. However, these resolutions often feel like a mere formality—followed more out of precedent than a genuine commitment to transparency. Why?

On March 24, the Supreme Court collegium’s statement was released on the repatriation of Justice Yashwant Varma to Allahabad High Court. It reads as follows:

“The Supreme Court Collegium in its meetings held on March 20 and 24, 2025 has recommended repatriation of Mr. Justice Yashwant Varma, Judge, High Court of Delhi, to the High Court of Judicature at Allahabad.”

If we did not have the Times of India story and had this resolution come out without the nation ever having the knowledge of the alleged cash, the public would have not known what had happened.

More broadly, when judges are transferred, the reasons are often unclear. Whether it is due to seniority, the interests of justice, or a particular skill being required elsewhere, there is little transparency in the decision-making process.

For instance, let us take the example of Justice Arindam Sinha on whose transfer the resolution was notified on the same day Justice Yashwant Varma’s transfer was notified, with similar resolution.

In May 2021, while serving as a judge at the Calcutta High Court, Justice Arindam Sinha strongly objected to the division bench led by Acting Chief Justice Rajesh Bindal treating a transfer petition filed by the Central Bureau of Investigation in the Narada scam case as a writ petition. He had also opposed the bench’s decision to stay the bail granted to four Trinamool Congress (TMC) leaders and its move to constitute a larger bench due to divergent opinions between the two judges. Later in September 2021 he was transferred to the Orissa High Court, and now he has been transferred again. We do not know why, in both cases.

Judicial transfers are a natural process, but what prompted this judge’s transfer to that particular court remains unknown. Justice Arindam Sinha’s transfers could well be routine, day-to-day adjustments, but the point to note here is that in the absence of official reasoning, the public is left to speculate.

If someone wants to rule out a few possibilities, they will likely have to track Justice Sinha’s seniority and see whether his transfer aligns with the seniority list. However, the Supreme Court is not bound to follow strict seniority in judicial transfers, and decisions can be made based on other considerations such as administrative requirements, institutional interests, or other factors.

A choice exercised at will

This nonchalant formality is not the case with all collegium resolutions. Some are more detailed; some are just a press note.

For example, in the resolution dated March 6, 2025 to appoint Justice Joymalya Bagchi as the judge of the Supreme Court, the SC has put out a two-page resolution. The resolution talks about the factors that have been taken into consideration, while appointing Justice Bagchi who stands at No.11 in the All-India Seniority list of judges, like the fact that Calcutta is represented by only one judge in the SC.

Has it always been like this?

Yes, but also no. During Chief Justice of India (as he was then) Justice DY Chandrachud’s tenure as CJI [9 November 2022 to 10 November 2024], the collegium resolutions were way more detailed.

For example, take the last collegium resolution during the tenure of Justice Chandrachud as CJI—a resolution regarding appointment of advocates as judges of the Bombay High Court. The resolution had details on consultation with judges over the candidacy, government inputs, professional experience and credentials, experience of those who were appointed. This was not some ideal-comprehensive format but was surely a different way than it had been done before.

However, as soon as Justice Chandrachud retired, the collegium resolutions more or less went back to being as they were, simple communiques of a very powerful body that, to this day answers effectively to no one. We do not know why. No one asked and no one cared to clarify.

Why is it necessary that collegium process is more transparently communicated?

Judicial independence stands as a fundamental pillar of any robust democracy, safeguarding the rule of law and ensuring that justice is administered impartially. Given the collegium system’s origin, the procedures and accountability mechanisms of the Collegium are not as firmly established as those of bodies with a clear constitutional or legislative basis, making it inherently susceptible to questions regarding legitimacy and openness.

The lack of transparency was one of the primary reasons for which Justice Chelameswar authored his powerful dissent in the NJAC case. Due to the Justice Varma incident, there is a renewed push by the ruling establishment for judicial reforms and a relook at the NJAC (See here and here).

The release of more detailed Collegium resolutions holds significant potential to address the criticisms levelled against the system’s opacity. Including the specific reasons for recommending a particular candidate, such as their demonstrated expertise in a specific area of law, notable judgments they have delivered, or their contributions to legal scholarship, would provide a much clearer understanding of the basis upon which the Collegium makes its selections. Explicitly stating the criteria that the Collegium considered for each appointment, going beyond generic terms like “merit and integrity,” would also enhance transparency and allow for public evaluation of whether these criteria are applied consistently across different appointments. While a verbatim transcript of the Collegium’s deliberations might indeed compromise the confidentiality necessary for frank discussions, providing a summary of the key perspectives considered and the rationale behind the final decision could offer valuable insights into the decision-making process. Furthermore, explaining the reasons for not recommending certain candidates (without necessarily disclosing their names if privacy is a concern) could help address concerns about fairness and potential biases within the selection process. In the context of judicial transfers, providing specific reasons beyond the vague “better administration of justice” would help dispel speculation and potential accusations of transfers being punitive in nature.

By moving beyond simply announcing decisions to providing clear explanations for the rationale behind them, more detailed resolutions would foster greater public understanding and potentially increase trust in the judicial appointment process. The fact that collegium resolutions were often detailed during Justice Chandrachud’s tenure suggests that the Collegium possesses the capacity to provide more comprehensive information and might be amenable to revisiting this approach. However, it should not come from a CJI’s prerogative since it can be discontinued by the next one. It must come from a set of rules which the Court as a whole writes for itself and follows.

For example, some have commended the CJI’s decision to put in public some material (albeit redacted to an extent) related to Justice Yashwant Varma’s case. However, the important point here would be to remember that instances of corruption have continued to persist and will do so, in the future. In that case, while commending the act of being transparent, the Supreme Court should also be called upon to arrive at a set procedure in these kinds of cases and make it transparent, if and when they arise in future.

Transparency inherently acts as a form of accountability, incentivising the Collegium to be more meticulous and reasoned in its decision-making process, knowing that their rationale will be made public and subject to scrutiny. Given that the judiciary often emphasises the importance of transparency for other institutions, a perceived lack of it within their own appointment process can be viewed as inconsistent, potentially undermining their moral authority in advocating for openness elsewhere. Public perception of fairness and integrity is paramount for the judiciary’s effectiveness.

Writing better collegium resolutions will not solve the issues with Collegium. They can only be solved by establishing an independent and transparent appointing body which is answerable to the people. While that might take time, this is within the powers of the Collegium and it should not let go off an opportunity to show that it too, can reform itself.

Why should they change now?

Simply put, the changes have to be made to make an effort at rebuilding the eroding public trust in the judiciary. Yes, people are scared of courts. No one wants a contempt order targeting them. However, is fear the tool with which the higher judiciary can sustain its stature in the Indian political scheme? Is it sustainable? It is not.

Sooner or later (now that it is already too late, therefore soon), someone—like George Carlin once did—will stand up and say, “They’ve got the judges in their back pockets,” referring to how the closed door appointment systems and judicial corruption serve the rich and powerful. And when that happens, it would be too late to initiate a contempt proceeding against whoever says it.

Conclusion

While more detailed Collegium resolutions represent a significant step forward, relying solely on them might not be sufficient to achieve full transparency within the system. Even with increased detail, resolutions may not fully capture the nuances of the discussions and considerations within the Collegium or any informal consultations that might occur. The interpretation of broad criteria such as “merit” and “integrity” can still remain somewhat subjective, even if elaborated upon in the resolutions. The possibility of the Collegium tailoring the reasons provided in the resolutions to rationalize decisions already made cannot be entirely discounted. Furthermore, resolutions primarily focus on the final recommendations and might not provide insights into the initial stages of identifying potential candidates or the role played by High Court Collegiums in the overall process.

To further enhance accountability and openness, several other measures could be considered. Establishing clearer and more objective criteria for evaluating candidates, and making these criteria publicly available, would be a crucial step.

The judiciary has long defended itself from the executive wanting to control it. People of India supported the judiciary after they saw how it supported them from its decisions on Right to Education to its exceptional integrity in handling high profile matters involving influential politicians. It is this support that has given the higher judiciary its glorious decades. If the institution ignores the clear warning signs and resists reform, it risks losing its independence to an encroaching executive.

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

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A Judiciary Made to Measure

Move towards Judicial transparency, Orissa HC evaluates own performance, lists challenges

The post Potential of reasoned Collegium resolutions as a starting point for transparency in the Indian higher judiciary appeared first on SabrangIndia.

NEP 2020 and the three-language mandate

The NEP 2020 recommends that students learn three languages. According to the policy, at least two of these languages be indigenous to India, with the third language available for the student’s choice—often English or another language. This structure is meant to promote multilingualism while ensuring that regional languages are given due importance. Importantly, the policy emphasises that states and regions have the authority to decide on the specific languages taught, aiming to mitigate concerns about the compulsory imposition of Hindi.

Despite this intended flexibility, Tamil Nadu remains deeply sceptical. The state interprets the policy as a thinly veiled effort to introduce Hindi into its schools. Further complicating matters is the linkage between the three-language formula and eligibility for central funding schemes Samagra Shiksha Abhiyan (SSA). In effect, states are pressured to adopt the formula to secure critical financial support for their education systems. For Tamil Nadu, this conditionality is unacceptable; it feels that the central government is compromising state autonomy by tying funding to policy implementation.

Historical roots of Tamil Nadu’s language policy

Tamil Nadu’s resistance to the three-language formula is not a new phenomenon. The state’s history is marked by a long-standing commitment to preserving Tamil as a central pillar of its cultural and educational identity. The roots of this resistance can be traced back to the early 20th century and have evolved through several pivotal moments: 

Early resistance (1930s–1960s)

In 1937, the Madras government, under C. Rajagopalachari, attempted to introduce Hindi as a compulsory subject. This move triggered widespread protests led by the Justice Party and influential Dravidian leaders, including Periyar. The protests were so intense that the policy was revoked in 1940. This early confrontation with Hindi imposition laid the groundwork for Tamil Nadu’s future educational policies.

The Kothari Commission and the 1968 National Policy on Education (NPE)

The Kothari Commission (1964–66) played a pivotal role in shaping India’s education reforms, recommending the adoption of a three-language formula. The 1968 NPE incorporated this formula by prescribing Hindi, English, and a modern Indian language (preferably a southern language in Hindi-speaking states; a regional language in non-Hindi speaking states). However, Tamil Nadu opted out, preferring to maintain a two-language system centred on Tamil and English.

Political consolidation and the two-language policy

Under the leadership of Chief Minister C. N. Annadurai, Tamil Nadu formalised its two-language policy. The state rejected the addition of Hindi, emphasising that Tamil and English sufficiently met the needs of its students. This stance was reinforced during subsequent anti-Hindi agitations, notably in 1965 when a move to replace English with Hindi as the sole official language sparked massive protests. Such historical events have deeply ingrained the belief that language policy should reflect regional identity rather than central imposition.

Understanding the legal context and rationale behind Tamil Nadu’s opposition

While education is now a concurrent subject, it was a state subject before the Emergency. Therefore, there is a degree of autonomy that states once enjoyed. When the Indira Gandhi government, during the Emergency, moved Education from the state list to the concurrent list, the reasoning was to have a uniform education policy for all of India with Union taking the responsibility of framing such uniform policy.

However, prior to this change in the Constitution, the opposition to three language policy was an equal fight—with Centre armed with Article 351 which directs the Union to work for the spread of Hindi while the States being armed with education being in the State List. This balance was tipped in favour of centre when education was moved to Concurrent List via 42nd Constitutional Amendment Act of 1976.

The later governments did not put Education back in the State list—continuing the central control over the coveted education. This meant that the Union gave itself the way to implement its Article 351 directive at the cost of States’ power.  This enabled the Union to give directives from a position of legitimate authority. However, NEP is not a binding document, and it never has been. The Concurrent List’s character of giving the Centre made law primacy over a state made law does not arise here since NEP is not an act by the Parliament.

Despite NEP being non-binding, Centre using the 3-language formula to stall the funds naturally does not support the claims of it being bonafide.

TN’s reasoning in opposing the 3-language formula 

Tamil Nadu asserts that its education system is already successful, as recognised by the Central Government itself. Given this, the state questions the necessity of the three-language policy when its current two-language model has consistently produced strong educational outcomes.

Moreover, Tamil Nadu highlights the practical difficulties of implementing the NEP’s language requirements. The policy mandates two native languages and one foreign language in addition to English. Since Tamil Nadu already teaches Tamil and English, this leaves space for one more native language. The state argues that this requirement forces it to allocate resources for teaching an additional Indian language, which it sees as unnecessary.

The key concern is infrastructure. If a third language must be introduced, what resources exist to support various native languages? Tamil Nadu lacks the necessary infrastructure for most Indian languages, whereas the Centre has both the directive and the financial resources to promote Hindi. This makes Hindi the most easily implementable option, creating an indirect imposition.

Furthermore, Tamil Nadu sees the linking of Samagra Shiksha Abhiyan (SSA) funds to compliance with the three-language policy as coercion. If funding is conditioned on language policy today, the state fears that future schemes will also come with similar mandates—potentially requiring Hindi as the second native language, further eroding state autonomy in education.

Tamil Nadu’s Education Minister has publicly accused the Union government of using funding as a bargaining chip—effectively forcing the state into conforming to the three-language policy. This funding dispute is not merely a financial issue; it reflects a broader struggle over the balance of power between the Union and the states in India’s federal system.

Broader implications for federalism and education policy

At its core, the controversy surrounding the three-language formula speaks to larger questions about state autonomy and cooperative federalism in India. Education is a concurrent subject—meaning that both the central and state governments have the authority to shape policy. However, Tamil Nadu’s experience demonstrates that financial dependency on central funds can force states to adopt policies that conflict with their own priorities and cultural values.

Proponents of the three-language formula argue that multilingual education has cognitive benefits, such as improved memory, enhanced attention, and better problem-solving abilities. They also stress that a multilingual approach is essential for preserving India’s vast linguistic heritage. Nonetheless, a one-size-fits-all approach is not appropriate in a country as diverse as India. Instead, there should be a more flexible framework that allows states to design language policies that best suit their local contexts. 

Conclusion

The debate over the three-language formula in NEP 2020, and Tamil Nadu’s enduring opposition to it, is emblematic of a broader struggle over cultural identity, state autonomy, and federalism in India. Tamil Nadu’s historical resistance to Hindi imposition is rooted in a deep commitment to preserving its linguistic heritage and tailoring education to its unique social and cultural needs. The state’s successful two-language policy—centring on Tamil and English—has delivered strong educational outcomes without the added burden of a compulsory third language.

The fiscal dispute that has arisen from the central government’s decision to withhold crucial education funds only deepens the divide. By linking funding to compliance with NEP guidelines, the Centre appears to be leveraging its financial resources to enforce a uniform policy across a diverse nation. This tactic not only undermines state autonomy but also raises serious questions about the equitable distribution of resources in India’s federal system.

The ongoing standoff serves as a reminder that the success of India’s education system depends not only on policies like the NEP 2020 but also on a balanced approach that honours the linguistic and cultural plurality of the nation. Moving forward, a collaborative framework that genuinely incorporates state perspectives will be key to ensuring that educational reforms benefit all regions and strengthen the very fabric of India’s diverse society.

(The author is a legal researcher with the organisation)

Related:

Rejecting NEP embodies Tamil Nadu’s fight for federal autonomy

Indian federalism is a dialogue: SC

The post Tamil Nadu’s opposition to NEP 2020’s three-language formula: a federal pushback against central imposition appeared first on SabrangIndia.

• Data Principal: The individual whose personal data is collected and used. A user on a marketplace like Amazon.
• Data Fiduciary: The entity that collects, processes, and manages personal data responsibly. A marketplace like Amazon.

Principles of the DPDP Act

The DPDP Act is built upon six core principles that guide its approach to data protection:

1. Lawful, Fair, and Transparent Usage: Organizations must use personal data in a manner that is lawful, fair, and transparent to the individuals concerned.
2. Purpose Limitation: The use of personal data should be limited to the purpose for which it was collected.
3. Data Minimisation: Only the necessary personal data required for the specified purpose should be collected.
4. Accuracy: Reasonable efforts should be made to ensure the accuracy and up-to-date nature of personal data.
5. Storage Limitation: Data should be stored only for the duration necessary for the stated purpose.
6. Security: Reasonable safeguards must be implemented to prevent unauthorized access, processing, and data breaches.

The draft rules have been published to realize these principles and the provisions of the Act. The period for submitting comments and feedback on the rules ended on March 5, 2025.

Key Provisions in a nutshell

The Draft DPDP Rules provide detailed guidance on various aspects of data protection, including notice and consent, security safeguards, data breach notification, and data retention. Some of the key provisions are:

• Clear and concise notices
• Reasonable security safeguards
• Data breach notification
• Time restrictions on data storage

Notice and consent

The Digital Personal Data Protection Act, 2023 and the Draft Rules, 2025, place emphasis on informing Data Principals before processing their personal data, especially when consent is the legal basis.

Section 5(1) of the Act mandates that any request for consent under Section 6 must be accompanied or preceded by a notice from the Data Fiduciary.

To ensure understanding, Section 6(3) requires that the consent request be in clear and plain language, offering the option to access it in English or any language in the Eighth Schedule of the Constitution. It must also include contact details for a Data Protection Officer or another authorised person.

Rule 3 of the Draft Rules further details the notice requirements, stipulating that it must be:

• Understandable independently of other information (Rule 3(a)).
• Provide a clear and plain account of the necessary details for informed consent, including an itemised description of the personal data and the specified purpose with an itemised description of the goods, services, or uses (Rule 3(b)).
• Include the communication link to the Data Fiduciary’s website or app and other means for the Data Principal to withdraw consent (with comparable ease), exercise their rights, and make a complaint to the Board (Rule 3(c)).

Reasonable security safeguards

The Digital Personal Data Protection Act, 2023 mandates that Data Fiduciaries must protect personal data by taking reasonable security safeguards to prevent breaches [Section 8(5)]. The Act also outlines exemptions under certain conditions in Section 17. Specifically, Section 17(2) (b) states that the Act’s provisions do not apply to processing necessary for research, archiving, or statistical purposes if such processing adheres to prescribed standards.

The Draft Digital Personal Data Protection Rules, 2025, further detail these obligations in Rule 6 (“Reasonable security safeguards”), requiring Data Fiduciaries to implement, at a minimum:

• Rule 6(1)(a) Encrypting, obfuscating, or masking data to prevent unauthorized access.
• Rule 6(1)(b) Controlling access to computer systems handling the data.
• Rule 6(1)(c) Monitoring and logging data access to detect, investigate, and prevent breaches.
• Rule 6(1)(d) Ensuring backup and recovery in case of data loss or compromise.
• Rule 6(1)(e) Retaining logs and data for at least one year to detect and prevent unauthorized access.
• Rule 6(1)(f) Including security requirements in contracts with Data Processors.
• Rule 6(1)(g) Implementing technical and organizational measures to enforce security safeguards.

Data breach notification

In the event of a personal data breach, the draft rules mandate a swift and transparent notification process. As per Rule 7 of the Draft Rules, the Data Fiduciary must, without delay, inform each affected Data Principal in a clear and plain manner about the nature and extent of the breach, the likely consequences, the measures implemented to mitigate risk, and the safety measures the Data Principal can take. Crucially, Rule 7(1) (e) also requires the provision of business contact information for a person able to respond on behalf of the Data Fiduciary. Furthermore, Rule 7(2) of the Draft Rules stipulates that the Data Fiduciary must intimate the Data Protection Board of India upon becoming aware of a breach. This initial intimation should include a description of the breach, and a more detailed report must follow within 72 hours, or a longer period if permitted by the Board. This subsequent report must contain broad facts, circumstances and reasons leading to the breach, mitigation measures, findings regarding the responsible person, remedial actions, and a report on the intimations given to Data Principals.

Erasure of personal data when consent is withdrawn

When a Data Principal decides to withdraw their consent for the processing of personal data, the draft rules necessitate its erasure, unless legal obligations dictate otherwise. Specifically, Rule 8(1) of the Draft Rules states that a Data Fiduciary processing personal data for relevant purposes specified in the Third Schedule must erase such data if the Data Principal does not contact the Data Fiduciary for the specified purpose or exercise their rights for the relevant time period stipulated in that Schedule, provided its retention is not required by law. For significant digital platforms like e-commerce entities and social media intermediaries with not less than two crore registered users in India, this time period is three years from the date the Data Principal last contacted the Data Fiduciary for the specified purpose or exercised their rights, or the commencement of the Digital Personal Data Protection Rules, 2025, whichever is later.

Necessity to inform principals of the erasure so that they can take action to retain

To ensure Data Principals are aware of impending data erasure and can take necessary steps if they wish to retain their data, Rule 8(2) of the Draft Rules imposes an obligation on Data Fiduciaries. They must inform the Data Principal at least forty-eight hours before the expiry of the period for erasure. This notification will alert the Data Principal that their personal data will be erased upon the completion of this period unless they log into their user account or otherwise contact the Data Fiduciary for the performance of the purpose or exercise their rights.

Provisions for vulnerable groups like personal data of children, persons with disabilities, etc.

The draft rules include specific safeguards for the personal data of vulnerable groups. Rule 10 of the Draft Rules mandates that a Data Fiduciary must adopt appropriate technical and organisational measures to ensure that verifiable consent of the parent is obtained before processing any personal data of a child. This rule also requires due diligence to check that the individual identifying themselves as the parent is indeed an adult. For processing the personal data of a person with a disability who has a lawful guardian, Rule 10(2) similarly requires due diligence to verify that such guardian has been appointed by a competent authority under applicable law. Furthermore, the Fourth Schedule (Part B) of the Draft Rules provides specific exemptions from the requirements of subsections (1) and (3) of section 9 of the Act(Section 9 (3) of the Act prohibits processing of personal data that could have detrimental effect on the well-being of the child) for processing the personal data of a child for certain purposes, such as the exercise of any power or function in the interests of a child under any law, or for providing subsidies or benefits to a child. These exemptions are subject to the condition that the processing is restricted to the extent necessary for such purposes.

Consent managers

The draft rules establish a framework for the registration and obligations of Consent Managers. Rule 4 of the Draft Rules outlines the process for a person to apply to the Board for registration as a Consent Manager, requiring them to fulfil the conditions set out in Part A of the First Schedule. These conditions include being a company incorporated in India with sufficient technical, operational, and financial capacity, including a minimum net worth. Upon registration, Consent Managers are subject to obligations specified in Part B of the First Schedule. These obligations include ensuring that the personal data is made available or shared in a manner that its contents are not readable by the Consent Manager, maintaining records of consents and notices, providing Data Principals access to these records, acting in a fiduciary capacity, and avoiding conflicts of interest with Data Fiduciaries.

Data processing by the state

The draft rules permit the State and its instrumentalities to process personal data for specific purposes in the public interest. Rule 5(1) of the Draft Rules allows for the processing of a Data Principal’s personal data to provide any subsidy, benefit, service, certificate, licence or permit that is provided or issued under law or policy or using public funds. However, Rule 5(2) specifies that such processing must be done following the standards outlined in the Second Schedule. These standards include ensuring that processing is carried out in a lawful manner and for the specified uses, is limited to necessary personal data, is done while making reasonable efforts to ensure accuracy, and that personal data is retained only as long as required. The Second Schedule also mandates reasonable security safeguards, providing business contact information of a person able to answer questions about processing, specifying the means for Data Principals to exercise their rights, and ensuring accountability of the person determining the purpose and means of processing. Similar standards apply to the processing of personal data necessary for research, archiving or statistical purposes.

Concerns

The rules have drawn criticism for potentially breaching fundamental data protection principles such as purpose limitation and proportionality, particularly due to the broad exemptions granted to government agencies for processing data related to subsidies and public services without adequate safeguards. Concerns have also been raised about increasing executive influence over the Data Protection Board of India through the appointment process, which could compromise its independence and objectivity. This is critically important since State has already been given a special treatment under the act and yet, there is no effort to make the preliminary adjudicating body like the Data Protection Board more independent.

Additionally, the mandatory data retention requirements for certain entities have sparked concerns about excessive data collection and heightened surveillance risks. Lastly, Rule 22, which grants the Central Government extensive access to data, is seen as bypassing key surveillance safeguards and the criminal justice system, posing significant privacy risks. Its broad and ambiguous language, including terms like “sovereignty and integrity of India,” grants the government the power to demand data from Data Fiduciaries without clear notification protocols. The absence of restrictions on data retention heightens fears of indefinite storage and potential misuse. Transparency is further compromised as Fiduciaries are prohibited from disclosing government requests, weakening accountability. Moreover, the government’s ability to exempt itself from key data protection regulations threatens privacy, allowing unrestricted data collection without user consent or adequate legal justification.

Conclusion

The establishment of consent managers represents an innovative approach to managing individual autonomy in an era where data collection has become omnipresent. Special protections for children and vulnerable groups demonstrate a recognition of differential risks in our digital ecosystem.

However, the shadow of a dystopian future looms large. The broad exemptions granted to government agencies for processing data related to public services and subsidies create concerning possibilities for expanded state surveillance under the guise of public interest. The mandatory data retention requirements for significant digital platforms raise questions about the long-term storage of sensitive information and the potential for mission creep in data usage.

India stands at a crossroads where the path forward is neither predetermined nor inevitable. The Draft DPDP Rules contain within them the seeds of both surveillance and freedom. The ultimate direction will be determined by how these rules are interpreted, enforced, and amended in response to real-world consequences. The coming years will test whether India can navigate this complex landscape to create a digital society that respects both innovation and individual rights. 

(The author is a legal researcher with the organisation)

Related:

India at the Crossroads: The delimitation exercise and its implications for democracy

Catch people’s attention on pollution narrative: “Switching to public transport can lower your heart attack risk by 10%.”

Electoral Trusts Scheme: Utter non-transparency in political funding & an unholy nexus between big corporate giants and major political parties

The post Draft DPDP Rules, 2025, seeds of both surveillance and freedom appeared first on SabrangIndia.

This article discusses how delimitation has become important to maintain political equity in the nation, why it is being opposed by some states now, and what can be done to overcome this deadlock.

Delimitation: why and how?

The very foundation of a robust democracy rests on the principle of fair and equitable representation. In India, this principle is periodically reinforced through a process known as delimitation – the act of fixing the limits or boundaries of territorial constituencies for legislative bodies. This crucial exercise ensures that the voice of every citizen carries roughly the same weight in the electoral process. As the nation approaches 2026, the prospect of a new delimitation exercise, mandated by the Constitution (Eighty-Fourth Amendment) Act of 2002, has ignited discussions and debates across the political spectrum. Concerns have been particularly vocal from the southern states, highlighting the significant political ramifications this redrawing of electoral maps –merely or solely on the basis of population parameters–could entail. Punjab too has voiced its concerns over delimitation and the potential loss of its political power.

The genesis of delimitation in India lies in the fundamental need to uphold democratic ideals. The architects of the Indian Constitution envisioned this process to guarantee equal representation for all citizens. This means ensuring that the number of constituents represented by each Member of Parliament (MP) or Member of the Legislative Assembly (MLA) remains largely consistent across the country, in proportion to the population of the state. That means, the larger the state in terms of its population, the higher the number of people it can send to Lok Sabha. Over time, populations grow and migrate, leading to uneven demographic shifts across regions. Without periodic adjustments to constituency boundaries, some areas would become significantly overrepresented or underrepresented, thereby undermining the principle of “one person, one vote, and one value”. To address these dynamic demographic realities, Articles 82 and 170 of the Constitution explicitly require the revision of parliamentary and state assembly seats following each census.

What does the Constitution say?

Article 82 mandates that, after each census, the allocation of seats in the House of the People (Lok Sabha) to the states and the division of each state into territorial constituencies shall be readjusted by an authority determined by Parliament through law. This readjustment does not affect the current Lok Sabha until it is dissolved. The changes take effect from a date specified by the President, and until then, elections can be held based on the existing constituencies. Until the census after 2026, the allocation based on the 1971 census and the constituencies based on the 2001 census remain unchanged.

Article 81 of the Constitution talks about the composition of House of People (Lok Sabha). Article 81(2) states that, the seats allotted to each state shall be commensurate to the ratio between the number of seats and population of the state and will be the same for all states, as far as practicable. To understand this, with a simplified example: if State A has 50 million people and gets 50 seats, then State B with 30 million should get 30 seats to maintain the same ratio. This has however been changed with the freeze on delimitation under Article 82.

Article 170 outlines the composition of the Legislative Assemblies of states. Each Legislative Assembly must have between 60 and 500 members, chosen by direct election from territorial constituencies. The constituencies are divided in such a way that the ratio between the population of each constituency and the number of seats allotted to it is, as far as practicable, the same throughout the state. After each census, the total number of seats and the division into constituencies are readjusted by an authority and in a manner determined by Parliament through law. This readjustment does not affect the existing Assembly until its dissolution.

India has witnessed four delimitation exercises since its independence. The first was conducted in 1952 based on the 1951 census, followed by exercises in 1963 (based on the 1961 census), 1973 (based on the 1971 census), and most recently in 2002 (based on the 2001 census). These commissions were tasked with redrawing constituency boundaries to ensure a more equitable distribution of population across electoral units. Notably, the delimitation exercise of 2002, while adjusting constituency boundaries, maintained the total number of Lok Sabha seats at 543, a figure that has remained constant since the 1973 delimitation. The table below illustrates the history of delimitation commissions in India:

What lies at the core of the issue now?

The journey towards the upcoming delimitation in 2026 has been marked by significant political decisions, particularly the freezing of the process for several decades. In 1976, during the Emergency, the government enacted the 42nd Amendment Act, which froze the delimitation of Lok Sabha and state assembly constituencies until after the first census following the year 2000. A primary motivation behind this freeze was to encourage states to actively pursue population control measures without fearing a reduction in their political representation in the Lok Sabha. The logic was that states making progress in family planning should not be penalised by losing parliamentary seats to states with higher population growth rates. Subsequently, the 84th Constitutional Amendment Act of 2002 extended this freeze until the first census taken after 2026. This extension reflected the continued concerns about disparities in population growth across different regions of the country. Southern states, having achieved greater success in implementing population control measures, were particularly apprehensive about a delimitation exercise based on more recent census data, fearing a potential decrease in their representation compared to states with higher population growth.

Implications of delimitation on the Indian Polity: lessons from past projections

The impending delimitation exercise after 2026 carries profound implications for India’s democratic polity, potentially reshaping the political landscape of the nation. One of the most significant anticipated impacts is the shift in the allocation of Lok Sabha seats among states. Given the demographic trends, with northern states generally experiencing higher population growth compared to their southern counterparts, projections indicate a potential increase in the number of parliamentary seats for states like Uttar Pradesh, Bihar, Madhya Pradesh, and Rajasthan, while southern states such as Tamil Nadu, Kerala, Karnataka, Andhra Pradesh, and Telangana might witness marginal gains or even a decrease in their representation. This demographic redistribution could lead to a significant shift in political power within the Lok Sabha, granting more influence to the more populous northern states. Adding to this possibility is the speculation about an overall increase in the total number of Lok Sabha seats, potentially linked to the enhanced capacity of the new parliament building. While an increase in the total number of seats might cushion the impact on southern states, the relative balance of power is still likely to tilt towards the north.

Beyond the allocation of general seats, the delimitation exercise will also impact the reservation of seats for Scheduled Castes (SC) and Scheduled Tribes (ST). The number of constituencies reserved for these communities is determined based on their proportion of the total population in each state. Consequently, the delimitation process will likely lead to adjustments in the geographical distribution of these reserved seats to align with the latest census data on the SC and ST populations.

Southern States and opposition to delimitation: key concerns and arguments

These anticipated shifts have understandably generated concerns among certain states, particularly in South India. The apprehension stems from the possibility of reduced parliamentary representation, which could impact their ability to effectively voice regional concerns and influence national policymaking. A key argument put forth by these states is that they have successfully implemented population control measures and have also made significant contributions to the national economy. They argue against a scenario where their progress in these areas could lead to a diminishment of their political clout, potentially disrupting the federal balance.

There is also a concern regarding the potential impact of delimitation on the representation of Muslim communities in certain constituencies. The redrawing of boundaries or the designation of constituencies as reserved could inadvertently affect the existing representation patterns of religious minorities in specific regions. In the recently concluded delimitation process of Assam—a state with 35% of Muslim population— the number of assembly constituencies in Muslim-majority districts has decreased while those in areas inhabited by communities considered indigenous to Assam has increased. The state also saw its hard-line Hindutva Chief Minister Himanta Biswa Sarma of the BJP call for a delimitation “that should be done in such a manner that the rights of indigenous people are protected.” If Assam’s recent delimitation—where Muslim-majority constituencies shrank while those in indigenous-dominated areas expanded—serves as a precedent for the rest of India, the process raises serious concerns. When paired with the ruling establishment’s open hostility toward minorities, exemplified by hate speeches from leaders including the Prime Minister during the 2024 General Elections, it becomes difficult to trust the government’s intentions or the impartiality of the institutions overseeing delimitation, especially vis-à-vis representation of minorities.

Furthermore, the upcoming delimitation is intrinsically linked to the implementation of the Women’s Reservation Act, which mandates 33% reservation for women in the Lok Sabha. This landmark legislation is expected to be implemented after the delimitation process is completed in 2026, as the finalisation of constituency boundaries is a prerequisite for reserving seats for women.

The WHYs on both sides

Those who call for delimitation wants it for simple purpose that it was the original design to preserve and further democratic functioning and legitimacy of the state. Delimitation would allow more people to be represented by their own representative as the population grows in each constituency.

For example, under 2011 census—Uttar Pradesh has 80 Members of Parliament (Lok Sabha) for 19.98 Crore people. Means, a Lok Sabha MP for almost 25 lakh people. Similarly, the combined Andhra Pradesh state had 42 Lok Sabha MPs for 8.46 Crore people, one Lok Sabha MP per 20 Lakh people. Similarly for Kerala, there is one Lok Sabha MP per 16 lakh people, according to the 2011 Census. This means that the political will of 16 lakh people in Kerala is equal to 25 lakh people in Uttar Pradesh despite the latter being significantly higher. Delimitation, if carried out, would ensure that those extra 10 lakh people are also represented better.

However, the postponement of delimitation was agreed to by all the parties since then and last time it was done so, was in 2001 via the 84^th Constitutional Amendment Act. Therefore, the question of its democratic legitimacy does not arise. A major concern surrounding delimitation is its potential to reshape political influence at the national level. Southern states, where population growth has slowed, fear that losing Lok Sabha seats would weaken their voice in Parliament.

In a country with strong fiscal centralisation—where the Union government controls revenue collection and redistribution—political power at the Centre translates directly into financial security. This concern is reflected in the recent budgetary allocations to Bihar and Andhra Pradesh, where the NDA’s survival in the Lok Sabha rests on the mercy of regional allies TDP and JDU—an arrangement that has conveniently translated into generous financial support from the Centre.

Therefore, fewer seats could mean less leverage in securing resources, leaving these states at a disadvantage. The possibility of political manipulation through the strategic redrawing of constituency boundaries, also known as gerrymandering, is another concern highlighted by experts.

This issue is compounded by the original intent behind the freeze on delimitation. It was designed to prevent states that successfully implemented family planning measures from being penalized with reduced representation. While the extended freeze has been widely accepted, the core principle remains sensitive—why should states that stabilised their populations now be at risk of losing political power? To them, this feels less like a neutral realignment and more like a penalty for progress.

What are the proposed solutions?

Various alternative solutions have been proposed to mitigate the potential negative consequences of a purely population-based delimitation. These include suggestions to increase the total number of Lok Sabha seats to accommodate the growing population without reducing representation for any state, reforming the Rajya Sabha to provide greater weightage to states and ensure a more balanced federal representation, decentralising more powers to the states to reduce their dependence on parliamentary representation, and even considering a permanent freeze on interstate redistribution of seats. In the midst of these debates, the ruling establishment has offered assurances that no southern state will experience a loss of seats in the upcoming delimitation exercise.

In particular, the increase of seats overall has been widely suggested since that would not decrease the existing seats for southern states and for states with higher populations, higher seats would secure equitable representation. Even in this case too, a study has revealed that there would be a stark divide between Northern and Southern states. In this paradigm, the five southern states would have 164 seats i.e., 35 more than their current total seats. In the same projection, only Uttar Pradesh would have 143 seats.

Is there a structural issue?

Beyond numbers, delimitation also shapes India’s federal structure. Lok Sabha seats are allocated by population to uphold political equality, but the Constitution does not guarantee fixed representation for states. With each delimitation exercise, the balance of power shifts. A rigid population-based approach, without reforms in fiscal and political decentralisation, risks further centralising authority in the Union government—potentially undermining the very spirit of federalism.

This problem is essentially a contest between the rights of states as federal units and rights of individuals as equal citizens in the political process. One cannot come at the cost of another. However, there is no balancing provision, as of now, which can uphold the rights of states as federal units, where their voices could be given political heft irrespective of their population. This lack of political weight for states solely based on their existence, rather than population, reflects a spill over of the Constitution’s unitary tendencies. If the issue of delimitation is to be solved, once and for all, there needs to be a structural solution which deems states as entities with considerable political power, unlike the current state of things where the Centre can constitutionally redraw state boundaries at will, with or without consultation with the state legislatures. Without addressing such structural problems for states in fiscal, administrative and political arenas, even if delimitation issue is somehow solved, many more stress points will present themselves in the near future from these arenas.

What could be done to solve the structural issue?

If political power in Lok Sabha is what states fear of losing because their interests will not be protected, then more avenues will have to be created to ensure that states secure political power. Lok Sabha cannot be the sole place where states feel secure with their power.

To enhance regional representation, the Rajya Sabha should have greater legislative authority, including higher oversight on national resource allocation. Membership per state should reflect human development, and linguistic diversity, not just population. Rajya Sabha should truly become a house of the states where their concerns are given the utmost importance.

Decentralisation must go beyond constitutional provisions by mandating states to transfer at least 50% of centrally sponsored funds to local governments with decision-making autonomy. A National Local Governance Commission—having effective representation from states, should oversee resource distribution and capacity building, ensuring inclusive and effective governance.

Conclusion

As the nation approaches 2026, the redrawing of electoral boundaries is not merely a technical adjustment but a transformative moment that could recalibrate political power, reshape fiscal priorities, and redefine the social contract between the Union and states. The debate transcends partisan politics, exposing deeper fissures in India’s federal architecture and challenging the delicate balance between individual rights and collective regional aspirations.

At this juncture, the delimitation exercise presents not just a challenge but an opportunity—to reimagine federalism as a dynamic, equitable partnership rather than a hierarchical contract. The path forward requires dialogue that transcends regionalism or majoritarianism, grounded in constitutional morality and a shared vision of inclusive nationhood. Only by harmonizing the democratic principle of equal vote-weight with the federal promise of diverse voices can India ensure that its electoral map reflects both its people and their pluralistic aspirations. In this balance lies the future of the world’s largest democracy.

(The author is a legal researcher with the organisation)

Related:

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Assam: Delimitation of Assembly, Parliamentary Seats, Merging of Districts Raise Apprehensions

The post India at the Crossroads: The delimitation exercise and its implications for democracy appeared first on SabrangIndia.

According to a report in the Lancet, more than 1.6 million deaths occurred in 2021 due to air pollution, with fossil fuels like coal and natural gas responsible for 38% of them.[1] While the exact figures may vary depending on which study one relies on, one undeniable fact remains—air pollution is a critical environmental crisis.

Despite its severity, air pollution and pollution in general have not been given the prominence they deserve in public discourse. The urgency of the issue is not adequately reflected in government messaging or public awareness campaigns.

Government initiatives and implementation challenges

In January 2019, the Central Government launched the National Clean Air Programme (NCAP) to improve air quality across Indian cities. The initiative aims to engage all stakeholders and reduce particulate matter concentrations. However, the effectiveness of such programs depends not just on their design but also on their implementation.

The NCAP aims to reduce air pollution across Indian cities by targeting a 40% reduction in PM10 levels by 2025-26. While some cities have shown improvements, the effectiveness of NCAP varies significantly. In Uttar Pradesh, cities like Bareilly, Rae Bareli, and Ghaziabad are projected to meet their targets, with Bareilly expected to see a 70% reduction in PM10 levels.[2] However, Gorakhpur and Prayagraj may see PM10 levels rise by 50% and 32%, respectively. A national study found no significant reduction in PM2.5 levels due to NCAP, suggesting that whatever observed improvements were likely influenced by COVID-19 lockdowns rather than policy effectiveness.[3]

Several factors impact air quality, including meteorological conditions, industrial emissions, vehicle pollution, and open biomass burning. While city-specific action plans exist, challenges such as data limitations, inconsistent implementation, and environmental complexities hinder progress. Machine learning models predict continued variations in air quality, highlighting the need for stricter regulations, enhanced emission controls, increased public awareness, and improved monitoring systems. Additionally, research suggests air quality improvements have been greater in wealthier areas, underscoring the need for policies that ensure equitable environmental benefits for all communities.[4]

More recently, many news houses reported on the Comptroller and Auditor General (CAG) Report on pollution control measures in Delhi. The report highlighted several shortcomings revealing issues with air quality monitoring stations, including improper placement—many were located near trees on multiple sides, affecting data accuracy. Additionally, concerns were raised over flawed pollution control certificate issuance.

Why is there no political will?

The core issue regarding pollution is not merely the weak implementation of pollution control measures but the lack of political will to do anything tangible about pollution. However, deeper inquiry would lead to another problem — the electorate does not make pollution the central issue.

Air pollution remains absent from the list of priority concerns for many citizens, despite its devastating health impacts. If people do not perceive it as a pressing issue, they will not demand stronger policies or hold policymakers accountable.

Why does air pollution fail to gain the public’s attention despite its deadly consequences? The answer lies in inadequate communication. The seriousness of air pollution is not being effectively conveyed to the masses, preventing it from becoming a major electoral issue.

Why is communication important?

When breast cancer survivor Fanny Rosenow attempted to place an advertisement in The New York Times for a support group, she was informed that the newspaper could not publish the words “breast” or “cancer”. Instead, the editor suggested using the phrase “diseases of the chest wall” prompting Rosenow to drop the idea. This was the early 1950s. From this to the call for the War on Cancer in the 1970s by the Nixon Administration in the US, there was a radical change in how cancer was perceived and understood by both the political class and the masses. A significant amount of this change was driven by the messaging campaigns spearheaded by philanthropist-activist Mary Lasker.[5]

Pulitzer-winning author Siddhartha Mukherjee writes in his book
The Emperor of All Maladies:

“The empire of cancer was still indubitably vast—more than half a million American men and women died of cancer in 2005—but it was losing power, fraying at its borders. What precipitated this steady decline? There was no single answer but rather a multitude. For lung cancer, the driver of decline was primarily prevention—a slow attrition in smoking sparked off by the Doll-Hill and Wynder-Graham studies, fuelled by the surgeon general’s report, and brought to its full boil by a combination of political activism (the FTC action on warning labels), inventive litigation (the Banzhaf and Cipollone cases), medical advocacy, and counter marketing (the ant tobacco advertisements).”

The takeaway from this is that messaging and creating a narrative over a problem that needs to be solved is an important if not the most necessary element in fighting the problem. India’s fight against pollution lacks this very element thus making it a difficult fight.

What do Indians think of pollution?

The discourse surrounding pollution in India has long been dominated by macro-level concerns—climate change, biodiversity loss, and long-term ecological degradation. While these issues are undeniably critical, their abstract nature often fails to resonate with the average citizen, who perceives them as distant or intangible.

For example, a 2022 study found that Indian farmers, while being aware of meteorological changes, were not informed enough to tie those changes to climate change and thus take action accordingly. [6]

The immediate health impacts of pollution—such as acute respiratory distress, cardiovascular crises, and developmental delays in children—are far more proximate and personally relevant. Reframing pollution narratives to foreground these immediate health risks can bridge the gap between scientific urgency and public mobilisation, transforming passive awareness into actionable engagement.

Limitations of current narratives 

The prevailing discourse on pollution in India often employs broad, depersonalised terminology— “respiratory diseases,” “air quality indices,” or “greenhouse gas emissions”—that obscures the lived experiences of affected individuals. For instance, while the term “respiratory diseases” is technically accurate, it lacks the specificity needed to convey the urgency of conditions such as asthma exacerbations, chronic obstructive pulmonary disease (COPD), or paediatric pneumonia.

Similarly, discussions of climate change tend to focus on global temperature projections or sea-level rise, which appear remote to urban residents grappling with daily air quality advisories. This abstraction creates a psychological disconnect, as individuals prioritize immediate threats over distant risks—a phenomenon well-documented in behavioural psychology.[7]

Moreover, the current narrative often frames pollution as an intractable, systemic problem, fostering a sense of fatalism rather than agency. Terms like “air pollution crisis” or “environmental degradation” evoke collective responsibility—with actionable messaging neither for the individual nor for any organized group. This passivity is exacerbated by the lack of localized, granular data on health impacts, which prevents communities from understanding their specific risks. For example, while Delhi’s annual PM2.5 levels are widely reported, few citizens are aware that exposure to these particulates increases the risk of heart attacks or that children in polluted regions face a higher risk of neurodevelopmental delays.[8] [9]

Additionally, both the narrative and the solutions to air pollution are city-centric. This approach has relegated Delhi’s Air Pollution issue, for example, to be an issue of the people of Delhi, and its government whereas in reality, it is the issue of the whole of northern India. Experts have recommended mitigation of pollution at an air shed level instead of political boundaries, but that recommendation has not been paid attention to by the governments.[10]

The imperative of immediate health impact narratives 

To overcome these limitations, pollution narratives must pivot to emphasize immediate, localized health risks. Such a shift aligns with the principles of risk communication, which prioritizes clarity, specificity, and personal relevance. By highlighting the direct consequences of pollution—e.g., “exposure to PM2.5 increases your risk of a heart attack this month” or “children in this neighbourhood face a higher risk of asthma attacks”—communicators can evoke responses that will call for accountability from the administration.

For example, in a study that examined the Health Information National Trends Survey (HINTS) of the USA, it was found that people who believed that their chance of getting cancer is high due to pollution were more likely to worry about the harms of Indoor and Outdoor pollution.[11]

Cases in Delhi and Mumbai demonstrate that spikes in PM2.5 levels correlate with an increase in hospital admissions for respiratory distress.[12] Framing pollution as a trigger for acute health crises—rather than a chronic risk—can shift the perception of people.

Fine particulate matter (PM2.5) has been linked to endothelial dysfunction and thrombosis, increasing the likelihood of myocardial infarction.[13] Communicating this risk in terms of “increased heart attack risk” can resonate with middle-aged populations, who may perceive cardiovascular health as a personal priority.

Prenatal exposure to PM2.5 is associated with low birth weight and cognitive delays, with affected children scoring lower on developmental milestones by age two and three.[14] Framing pollution as a threat to children’s futures can mobilize parental action.

Older adults with diabetes or hypertension face amplified risks from pollution, including accelerated cognitive decline and cardiovascular complications.[15] Targeted messaging to caregivers and healthcare providers can amplify awareness of these vulnerabilities.

Flip the narrative, draw in attention

Narrative and design, both are crucial to effectively reframe pollution narratives. Here’s how:

1. Localisation and personalisation: Make it about the person, local communities. Tailor messages to specific demographics and geographies. For example, in agricultural regions, emphasise the link between crop burning and paediatric asthma; in urban centres, highlight the cardiovascular risks of vehicular emissions. Use localised data—e.g., “In your district, pollution causes 500 hospitalisations annually”—to enhance relevance.

2. Behavioural Triggers: Pair health risks with actionable solutions.

For instance,

“Wearing an N95 mask reduces your PM2.5 exposure by 95%”

Or

“Switching to public transport can lower your heart attack risk by 10%.”

Such messages empower individuals with tangible steps, reducing perceived helplessness.  This would also enable the public to call for better transport systems.

3. Emotional Engagement: Leverage storytelling to humanize the issue. Profiles of affected families can evoke empathy and urgency. Media partnerships and social campaigns can amplify these narratives, fostering collective identity around pollution mitigation.

The challenge

India’s pollution crisis demands urgent public engagement, yet the entities best positioned to initiate messaging face significant barriers. The government, ostensibly responsible for leading communication, has failed to translate initiatives like the National Clean Air Programme (NCAP) into actionable, localized health advisories. NCAP’s focus on technical targets (e.g., PM10 reductions) lacks clarity on immediate health risks like heart attacks or asthma exacerbations, while political fragmentation and opaque data (e.g., poorly placed air quality monitors) erode public trust.

Organisations of citizens and civil society (CSOs), which could bridge this gap, are increasingly stifled. Government crackdowns—such as revoking Foreign Contribution (Regulation) Act (FCRA) licenses and labelling activists as “anti-national”—have crippled their ability to operate with better efficiency.

Mainstream media, another potential messenger, is compromised by ownership ties to polluting industries. Corporations that profit from fossil fuels, construction etc. often control news outlets, leading to biased or minimal coverage of pollution’s health impacts. Sensationalist reporting during Delhi’s smog crises, for instance, prioritizes political blame over data-driven narratives on cardiovascular risks.

Corporate Social Responsibility (CSR) initiatives, meanwhile, are undermined by conflicts of interest. The largest CSR spenders in environmental campaigns—such as energy conglomerates or construction firms—are often the biggest polluters. Their messaging, even when well-intentioned, risks green-washing, as seen in superficial “sustainability” ads that avoid addressing root causes like coal dependency or vehicular emissions.

In this landscape, very few credible, independent entities can consistently convey pollution’s health risks to the public. This usually leads to a communication void, leaving most citizens unaware of actionable steps to protect their health or demand policy accountability.

How do we overcome?

To address the lack of effective public messaging on pollution, it is crucial to empower grassroots leaders and enable community-driven initiatives that can advocate for change with political influence. Rather than relying solely on government agencies, civil society organizations, or corporate-backed campaigns—many of which face restrictions or conflicts of interest—mobilising of affected communities can create bottom-up pressure for policy action.

One approach is to engage farmers’ organisations by highlighting how climate change contributes to lower crop yields and how sustainable practices can help mitigate pollution. Similarly, student-led movements in schools and colleges can foster long-term engagement by equipping young citizens to push for policy reforms. Self-help groups led by women can serve as powerful advocacy networks, spreading awareness at the grassroots level. Auto-rickshaw drivers and urban workers, who are disproportionately exposed to poor air quality, can be mobilized to demand cleaner transportation policies. Low-income city dwellers, who lack access to air purifiers or private healthcare, can be organized to push for better pollution control measures. By harnessing these diverse networks, a broad and powerful coalition can be built to demand transparent air quality data, stricter enforcement of pollution controls, and citizen-focused policies that put public health first.

The driving force behind this movement should be community leaders, supported by civil society organisations and even political stakeholders. This is an opportunity for genuine grassroots leadership to emerge—one that rises to confront a pressing and tangible crisis.

What we need is an immediate coalition for change

To amplify grassroots efforts, technology and data must be democratised. Mobile apps and community-led air quality monitoring initiatives can provide hyper-localised data, enabling citizens to track pollution levels in real-time and understand immediate health risks. For instance, low-cost sensors deployed in schools and hospitals can generate actionable insights, such as linking spikes in PM2.5 to asthma exacerbations in children, empowering parents and educators to demand accountability.

Education is another critical lever. Integrating pollution’s health impacts into school curricula can cultivate a generation of informed advocates. Student-led projects, such as mapping pollution sources in their neighbourhoods or organizing drives to call for action, can foster agency and long-term engagement. Similarly, vocational training programs for urban workers—auto-rickshaw drivers, street vendors—can include modules on air quality awareness, equipping them to advocate for cleaner transportation policies.

Policy reforms must align with grassroots momentum. Governments could incentivize community-based initiatives through grants or tax breaks. Moreover, cross-sector collaboration is vital. Universities can partner with NGOs to conduct localized health studies.

Our narrative, the power of the narrative

Reframing India’s pollution crisis as a public health emergency, rather than an abstract environmental issue, is the linchpin to meaningful action. By prioritizing immediate, localized health risks—such as heart attacks, asthma attacks, and developmental delays—communicators can bridge the gap between scientific data and public mobilization. Grassroots movements, armed with technology, education, and policy support, can transform passive awareness into collective action, compelling policymakers to prioritize health over political or economic interests.

The fight against pollution is not merely about cleaner air; it is about reclaiming agency. When citizens perceive pollution as a direct threat to their families and communities, they become powerful advocates for change. India’s battle against this silent killer will be won not through top-down mandates alone, but through a bottom-up revolution—one narrative, one neighbourhood, and one life at a time.

(The author is a legal researcher with the organisation)

[1] Team, E. (2024). Human-caused air pollution led to 1.6 million deaths in 2021 in India:  Lancet report. [online] Carbon Copy. Available at: https://carboncopy.info/human-caused-air-pollution-led-to-1-6-million-deaths-in-2021-in-india-lancet-report/#:~:text=Policy%20and%20Finance-,Human%2Dcaused%20air%20pollution%20led%20to%201.6%20million%20deaths,2021%20in%20India%3A%20Lancet%20report&text=According%20to%20the%202024%20Report,%E2%82%85)%20in%202021. [Accessed 27 Feb. 2025].‌

[2] Bera, O.P., Venkatesh, U., Pal, G.K., Shastri, S., Chakraborty, S., Grover, A. and Joshi, H.S. (2024). Assessing the impact of the National Clean Air Programme in Uttar Pradesh’s non-attainment cities: a prophet model time series analysis. The Lancet Regional Health – Southeast Asia, [online] 30, pp.100486–100486. doi:https://doi.org/10.1016/j.lansea.2024.100486.

[3] Kawano, A., Kelp, M., Qiu, M., Singh, K., Chaturvedi, E., Dahiya, S., Azevedo, I. and Burke, M. (2025). Improved daily PM _2.5 estimates in India reveal inequalities in recent enhancement of air quality. Science Advances, [online] 11(4). doi:https://doi.org/10.1126/sciadv.adq1071.

[4] Anjum Hajat, Hsia, C. and O’Neill, M.S. (2015). Socioeconomic Disparities and Air Pollution Exposure: a Global Review. Current Environmental Health Reports, [online] 2(4), pp.440–450. doi:https://doi.org/10.1007/s40572-015-0069-5.

[5] Mukherjee, S., 2010. The emperor of all maladies: a biography of cancer. Simon and Schuster.

[6] Datta, P., Bhagirath Behera and Dil Bahadur Rahut (2022). Climate change and Indian agriculture: A systematic review of farmers’ perception, adaptation, and transformation. Environmental Challenges, [online] 8, pp.100543–100543. doi:https://doi.org/10.1016/j.envc.2022.100543.

[7] Mariconti, C. (2011). Understanding the Disconnect on Global Warming. APS Observer, [online] 22. Available at: https://www.psychologicalscience.org/observer/understanding-the-disconnect-on-global-warming [Accessed 27 Feb. 2025].‌

[8] Krittanawong, C., Qadeer, Y.K., Hayes, R.B., Wang, Z., Thurston, G.D., Virani, S. and Lavie, C.J. (2023). PM2.5 and cardiovascular diseases: State-of-the-Art review. International Journal of Cardiology Cardiovascular Risk and Prevention, [online] 19, p.200217. doi:https://doi.org/10.1016/j.ijcrp.2023.200217.

[9] UNICEF(2017), Danger in the Air: How air pollution can affect brain development in young children, Division of Data, Research and Policy, Available at: https://www.unicef.org/sites/default/files/press-releases/glo-media-Danger_in_the_Air.pdf

[10] Sirur, S. (2023). Exploring airshed management as a solution to India’s pollution woes. [online] Mongabay-India. Available at: https://india.mongabay.com/2023/09/exploring-airshed-management-as-a-solution-to-indias-pollution-woes/ [Accessed 27 Feb. 2025].

[11] Ammons, S., Aja, H., Ghazarian, A.A., Lai, G.Y. and Ellison, G.L. (2022). Perception of worry of harm from air pollution: results from the Health Information National Trends Survey (HINTS). BMC Public Health, [online] 22(1). doi:https://doi.org/10.1186/s12889-022-13450-z.

[12] Chakraborty, R. (2024). Mumbai’s poor AQI and erratic temperatures fuel respiratory ailments. [online] The Indian Express. Available at: https://indianexpress.com/article/cities/mumbai/poor-aqi-temperatures-respiratory-ailments-9747736/ [Accessed 27 Feb. 2025].

[13] Basith, S., Manavalan, B., Shin, T.H., Park, C.B., Lee, W.-S., Kim, J. and Lee, G. (2022). The Impact of Fine Particulate Matter 2.5 on the Cardiovascular System: A Review of the Invisible Killer. Nanomaterials, [online] 12(15), p.2656. doi:https://doi.org/10.3390/nano12152656.‌

[14] Hurtado-Díaz, M., Riojas-Rodríguez, H., Rothenberg, S.J., Schnaas-Arrieta, L., Itai Kloog, Just, A., Hernández-Bonilla, D., Wright, R.O. and Téllez-Rojo, M.M. (2021). Prenatal PM2.5 exposure and neurodevelopment at 2 years of age in a birth cohort from Mexico city. International Journal of Hygiene and Environmental Health, [online] 233, pp.113695–113695. doi:https://doi.org/10.1016/j.ijheh.2021.113695.

[15] Li, N., Chen, G., Liu, F., Mao, S., Liu, Y., Liu, S., Mao, Z., Lu, Y., Wang, C., Guo, Y., Xiang, H. and Li, S. (2020). Associations between long-term exposure to air pollution and blood pressure and effect modifications by behavioral factors. Environmental Research, [online] 182, p.109109. doi:https://doi.org/10.1016/j.envres.2019.109109.

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The post Catch people’s attention on pollution narrative: “Switching to public transport can lower your heart attack risk by 10%.” appeared first on SabrangIndia.

The Prudent Electoral Trust donated Rs. 723 Crore to the BJP; Rs. 85 Crore to the Bharat Rashtra Samiti (BRS)–the then ruling party in the state of Telangana; Rs. 72.50 Crore to the YSR Congress-the then ruling party in Andhra Pradesh. During the fiscal year 2023-24, electoral trusts received 51.23% of their total donations, amounting to Rs 624.195 cr, from the top 10 corporate donors. DLF Ltd, ArcelorMittal Nippon Steel India Ltd, Maatha Projects LLP, CESC Ltd, and Maruti Suzuki India Ltd were amongst the top donors to electoral trusts. Both DLF Ltd and ArcelorMittal Nippon Steel India Ltd contributed the highest amount of Rs 100 cr each. Following closely, Maatha Projects LLP donated Rs 75 cr, while CESC Ltd and Maruti Suzuki India Ltd each contributed Rs 60 cr.

After the Supreme Court declared the electoral bonds scheme to be unconstitutional in February 2024, electoral trusts have made a comeback, to fill the big gaping void left by the electoral bonds scheme. The Prudent Electoral Trust received the largest share of donations. Nearly three-quarters of those donations, amounting to Rs 797.1 crore out of a total of Rs 1,075.7 crore, were made after the Supreme Court’s decision on February 15.

How massive is ₹1,179 crore—the total sum funnelled by these Electoral Trusts into political parties? To grasp its scale, this is nearly the entire 2025 budget allocation for judiciary infrastructure or the estimated funding for cutting-edge R&D at Bhabha Atomic Research Centre (BARC). These are pillars of national progress, yet the same amount has been mobilised not for science, justice, or public welfare, but to tighten the grip of corporate power over our politics—all under the guise of “transparent” donations.

This article seeks to examine the democratic legitimacy of the Electoral Trusts, without invoking their presumptive constitutional status against their now unconstitutional successors-electoral bonds.

What are Electoral Trusts?

A legal trust is a financial or legal arrangement in which one party (the trustor or settlor) transfers assets to another party (the trustee) to hold and manage for the benefit of a third party (the beneficiary). Trusts are commonly used for estate planning, asset protection, and charitable giving.

In case of Electoral Trusts in India, the donors are the corporates, the trustee is whoever manages the trust, and the beneficiary is the political party. Sometimes, the trustor is also a corporation which would establish a trust and later transfer it to other auditors. For example, the Prudent Electoral Trust was established by Bharti Enterprises (the parent of Bharti Airtel) but was later transferred to independent auditors to be managed.

How are they structured?

Electoral Trusts (Trusts) are registered under Section 8 of the Companies Act, 2013 (Section 25 of the now repealed Companies Act, 1956), requiring approval from the Central Board of Direct Taxes (CBDT) and adhere to the CBDT rules. They must adhere to the provisions of the Income Tax Act, 1961. Trusts cannot accept foreign donations or contributions from government companies, ensuring domestic funding sources.

Operational Structure

1. Donations: Trusts receive voluntary contributions from Indian citizens, domestic companies, firms, or Hindu Undivided Families (HUFs) via cheques, bank drafts, or electronic transfers. Donors must disclose their Permanent Account Number (PAN).
2. Fund Distribution: At least 95% of collected funds must be disbursed to registered political parties, with the remaining 5% administrative expenses. Trusts cannot use donations for members’ benefit.
3. Transparency: Trusts must maintain audited accounts, disclosing donors, recipients, and disbursements to the CBDT and the Election Commission of India (ECI).

The issue with Electoral Trusts

The design of electoral trusts reflects a compromise between corporate interests and state regulation, embedding structural inequities into India’s political economy.

First, Trusts like Prudent Electoral Trust dominate the landscape, distributing funds disproportionately to major parties (e.g., the BJP and Congress—more to the BJP), entrenching incumbency and marginalising smaller voices. This concentration mirrors the broader political economy’s bias toward established power blocs, where corporate donors prioritise access to ruling parties over democratic pluralism. While Trusts disclose donor identities to regulators, they withhold critical details like trust deeds or allocation criteria, enabling deniability for corporations and opacity in fund distribution.

Second, the regulatory framework—governed by the Electoral Trusts Scheme (2013)—mandates minimal transparency. Trusts must distribute 95% of funds to registered parties but face no scrutiny over their internal governance. This loophole allows Trusts to operate as autonomous entities, ostensibly independent of donor influence, yet their opaque rules shield them from accountability. For instance, Prudent’s donations, though publicly reported, lack explanations for party-specific allocations, raising questions about quid pro quo arrangements. Essentially, we have multiple companies donating to the trust, and the trust funnelling the money to the party. We do not know whether the trust is funnelling the money to the party on the advice and suggestion of the donor or, if there is a cartel of sorts or anything as such. The public is kept in the dark as to what guides the division of money between parties, by trust when it executes the contributions.

Third, the rise of Electoral Trusts, post-electoral bonds, underscores the persistence of corporate dominance in political financing. Corporations leverage these trusts to maintain influence while avoiding direct exposure, perpetuating a cycle of crony capitalism. What was direct in Electoral Bonds’ case where there was complete anonymity for the donors, is indirect in Electoral Trusts which give the chance to companies to deny their role in disbursement of funds to the parties.  The ECI’s limited oversight—relying on limited disclosures—further weakens accountability, leaving voters uninformed about the true sources of party funding.  The disclosures mandated by the ECI and are publicly accessible do not have details of the trust deed, or the details of the criteria of division of funds between the parties.

Why Electoral Trusts undermine democracy

The shadows cast by Electoral Trusts reveal a deeper truth: the veneer of transparency masks a system designed to entrench power. These trusts, dominated by a few corporate giants, funnel funds to major parties while obscuring the strings attached. The illusion of autonomy—trusts claim independence from donors, yet their allocations disproportionately favour ruling parties—becomes a self-fulfilling prophecy. Smaller parties, starved of resources, fade into irrelevance, while voters internalize the inevitability of elite rule. This is not democracy; it is the cloaked control by capital, where power is consolidated without overt coercion.

The problem lies not just in the Electoral Trusts themselves but in the regulatory framework that enables them. The Electoral Trusts Scheme mandates minimal transparency, allowing trusts to operate as autonomous entities while shielding their internal governance from scrutiny. This loophole enables corporations to maintain influence while avoiding direct exposure, perpetuating a cycle of crony capitalism. The Election Commission’s reliance on self-reported disclosures further weakens accountability, leaving voters uninformed about the true sources of party funding.

Conclusion

To dismantle this system, we must embrace a vision of democracy that prioritises equity and accountability. First, Trusts must be required to disclose their internal rules and allocation criteria. Transparency is not merely a procedural requirement; it is the bedrock of democratic legitimacy. Second, corporate donations to trusts must be capped to prevent the concentration of political power. A model like Germany’s limit on corporate contributions could serve as a template. Third, public funding of political parties should be expanded to reduce reliance on corporate largesse.

Regulatory oversight cannot be passive; it must actively challenge the hegemonic practices that entrench corporate dominance. In the end, the choice is clear: will India’s democracy be a plaything of capital, or a vehicle for the people? The Electoral Trusts’ opacity is not a bug—it is a feature.

To dismantle this Electoral Trusts Scheme is to reclaim the promise of a nation where power belongs not to the few, but to the many.

(The author is a legal researcher with the organisation)

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The post Electoral Trusts Scheme: Utter non-transparency in political funding & an unholy nexus between big corporate giants and major political parties appeared first on SabrangIndia.

The signs of the rise of the Right are evident across Europe. In France, the National Rally, despite not winning a majority in the end, became a key party in France winning 142 seats out of the National Assembly’s 577 seats. In January 2025, Jean-Marie Le Pen, one of Europe’s most prominent right-wing figures and founder of the National Rally, died aged 96. His daughter, Marine Le Pen, had long led the party he founded in 1972—the National Front (renamed National Rally in 2018). Jean-Marie was expelled from his party in August 2015 amidst a feud with his daughter.

In the National Front’s early days, Jean-Marie Le Pen was a pariah, his radical views on immigration and nationalism relegating him to France’s political fringes. His first presidential bid in 1974 garnered less than 1% of the vote, highlighting his marginal status at the time. In stark contrast, the 2002 election marked a significant leap for Le Pen, as he secured over 15% of the votes in the first round, propelling him into the second round against Jacques Chirac. This dramatic increase in support underscored the growing influence of his far-right ideology and the National Front’s rise from the political fringes to a major force in French politics.

Marine Le Pen transformed the party into a major force, renaming it National Rally to shed its racist and anti-Semitic associations. She softened its rhetoric, distanced it from her father’s extremist views, and rebranded it as a mainstream alternative. This “de-demonization” strategy enabled electoral breakthroughs. The journey from Jean-Marie’s early irrelevance to Marine’s mainstreaming of far-right ideology encapsulates this article’s theme: the rise of far-right movements in Europe, their evolution from marginal to influential players, and the disruptions they pose to the existing world order.

Historical Context

The rise of far-right movements was shaped by socio-economic anxieties, cultural shifts, and political opportunities. Post-war Western Europe experienced economic growth, wealth distribution, and social stability, but as this stability eroded, right-wing extremism and populism found new openings. Immigration, national identity, and sovereignty became central issues for far-right mobilization. The 1973 oil crisis marked the end of post-WWII prosperity, fuelling discontent. Rising opposition to the welfare state, and tax systems, and increased xenophobia amid non-European immigration further accelerated this trend.

Global Catalysts

Several world events reinforced far-right expansion. The collapse of the Soviet Union in 1991 heightened anxieties over national identity and border security. Globalization caused economic disruptions, leaving many feelings marginalized. The rise of multiculturalism and the perceived decline of traditional values triggered a cultural backlash, which far-right movements exploited. These factors deepened insecurity and alienation, making certain segments of the population receptive to far-right rhetoric. It is within these conditions we find homophobia, racism, etc. today in Europe.

National Variations

The far right rose differently across Europe. In Germany, reunification in 1990 created economic and social strains, which the extreme right leveraged. In Austria, Jörg Haider’s Freedom Party (FPÖ) gained influence, entering government in 2000. In France, Jean-Marie Le Pen’s National Front capitalized on economic discontent and anti-immigrant sentiment. These cases illustrate how far-right movements adapted to specific national contexts, exploiting existing grievances to reshape political landscapes.

Current Political Landscape

The contemporary rise of far-right parties across Europe is marked by significant electoral gains and increased visibility. In Italy, Prime Minister Giorgia Meloni’s Brothers of Italy has emerged as a dominant nationalist force. Recently, speaking at the United States’ Conservative Political Action Conference, she criticized what she saw as a double standard, noting that when Bill Clinton and Tony Blair built a global left-liberal network in the 1990s, they were hailed as statesmen, whereas figures like Trump, Meloni, Milei (Argentina’s President), and possibly Modi are now labelled as threats to democracy. Giorgia Meloni is arguably the most prominent face of the right-wing conservative parties in Europe although she has been described by some as pragmatic and shrewd in her politics.

In Germany, the AfD has become the second-largest party, capitalizing on economic grievances and anti-immigrant sentiments. Hungary’s Viktor Orbán has embraced far-right policies, consolidating power through nationalist and anti-immigrant rhetoric. And in France, Marine Le Pen’s National Rally continues to challenge mainstream parties.

Frustration with the welfare state and tax policies, perceived as excessive, has further driven national populism. The failure of centrist parties to address these concerns has created a political vacuum that far-right movements exploit.

Cultural and social factors also play a key role. The 2015 migration crisis intensified fears of cultural displacement and strengthened anti-immigrant sentiments. Many national populist voters seek to reassert national identity, viewing globalization and international institutions as threats to their communities and traditions.

Political factors further enable the rise of the far right. The erosion of liberal and social democratic traditions has weakened centrist alternatives, while anti-establishment sentiment and political distrust push voters toward radical right-wing populism. Crises—whether economic, social, or security-related—provide fertile ground for far-right movements, which thrive on instability, inequality, and mistrust of mainstream politicians.

Understanding the reasons for the rise of Right

Gramscian hegemony provides a lens through which we can view the rise of the far-right as a challenge to the established cultural and political dominance of centrist ideologies. Antonio Gramsci, an Italian Marxist theorist, argued that hegemony is the process by which a dominant group maintains its power not just through coercion, but also through consent. This consent is achieved through cultural and ideological means, making the dominant group’s worldview seem natural and inevitable.

In the context of contemporary Europe, the far-right can be seen as a counter-hegemonic force. They challenge the hegemonic narratives of centrist ideologies, which have long dominated European politics. By questioning the established order and offering alternative visions, far-right movements tap into the frustrations and grievances of segments of the population who feel marginalized or ignored by mainstream politics.

The neoliberal backlash theory suggests that the economic policies of the past few decades have created conditions ripe for far-right populism. Neoliberalism, characterized by free-market policies, deregulation, and reduced government intervention, has led to increased economic inequality and job insecurity. These economic conditions have driven voters to seek alternative solutions, making them more susceptible to the messages of far-right parties.

Far-right movements often capitalize on these economic anxieties by promising to restore economic stability and national pride. They appeal to voters who feel left behind by globalization and economic liberalization, offering a narrative that blames external forces and marginalized groups for their economic hardships.

Empirical research supports these theoretical perspectives. For instance, studies have shown that economic inequality and job insecurity are significant predictors of support for far-right parties.[1] Additionally, qualitative and quantitative analyses of right-wing populist groups across various European countries reveal common themes of anti-immigration sentiment, nationalism, and a rejection of the political establishment.[2]

The formation of the European Union (EU) has had a profound impact on cultural nationalism in Europe. The EU was designed to foster economic and political integration, creating a unified European identity. However, this process has also led to a sense of cultural homogenization, where local traditions and identities are sometimes overshadowed by a broader European culture. This has created a tension between the desire for a unified Europe and the need to preserve national and regional cultural identities.

Eurocentrism and Cultural Nationalism

The dominance of homogenized Western culture, particularly American influence, has further complicated the cultural landscape in Europe. The spread of Western media and multinational corporations has led to concerns about cultural erosion and the dilution of local traditions. This has fuelled a backlash against globalization and has provided fertile ground for cultural nationalist movements. These movements often position themselves as defenders of national identity against external influences, appealing to those who feel their cultural heritage is under threat.

The Rise of Right-Wing Political Parties

The rise of right-wing political parties in Europe can be seen as a response to these cultural and economic anxieties. These parties often capitalize on fears of cultural erosion and economic insecurity, promising to restore national pride and protect traditional values. For example, the refugee crisis in Europe, which brought over a million asylum seekers to Germany between 2015 and 2016, amplified fears of cultural and economic instability, leading to the rise of nationalist parties like Alternative for Germany (AfD). Similar anxieties have driven support for right-wing movements in Scandinavia, where concerns over immigration and cultural identity have surged.

What happened to the Left in Europe?

The European left has declined due to economic shifts, internal divisions, and cultural nationalism. Once dominant, left-wing parties have lost their traditional working-class base, leading to fragmentation between social democrats and progressives. Economic changes, such as the decline of industrial jobs and the rise of precarious labour, have weakened solidarity, while concerns over immigration and national identity have further eroded leftist appeal. Many voters see left-wing parties as ineffective in addressing these issues, fuelling distrust in their leadership.

Right-wing nationalism has surged by capitalizing on cultural anxieties, emphasizing sovereignty, and positioning itself as a defender of national identity. Left-wing parties struggle to counter this narrative, as their focus on economic justice and globalization often overlooks cultural concerns. While some resistance exists—seen in Portugal’s socialist government, Sweden’s centrist-left coalition against the far right, and Italian opposition to Giorgia Meloni—these efforts remain limited.

More recently—in the German elections—while AfD fared well, the Left Party also improved its performance by securing more than 8% of the vote. Although it is lesser than the AfD or the Conservatives, 25% of the young population between the ages of 18-24 voted for the Left Party in Germany. This shows a polarised electorate and indicates that the younger population’s support is up for grabs if the left can put efforts to secure it.

Implications of the Right’s Rise in the EU

The global rise of far-right movements challenges the post-WWII liberal order, undermining cooperation, human rights, and democratic norms. Nationalist policies promote protectionism and isolationism, weakening international institutions and efforts to address global issues like climate change. In Germany, the AfD’s opposition to climate action threatens international agreements. These risks create a fragmented world order where unity and global cooperation become increasingly difficult.

Challenges and Future Outlook

Despite their gains, far-right movements face several challenges. Electoral volatility is a significant factor, as their support can be fickle, often tied to specific issues or crises. Policy implementation is another hurdle, as the far-right’s radical proposals often face resistance from established institutions and the broader electorate. Additionally, shifting demographics, particularly the increasing diversity of European societies, may limit their long-term appeal.

Conclusion

The rise of the far-right in Europe is a complex phenomenon, rooted in historical grievances, economic anxieties, and cultural concerns. The rise of far-right movements in Europe is not an isolated phenomenon but part of a global tide of right-wing nationalism. From India to Argentina and the United States, right-wing parties are forming transnational networks to amplify their influence. Examples include Elon Musk’s support for Germany’s far-right AfD, and Italian Prime Minister Giorgia Meloni’s appearance at the U.S. Conservative Political Action Conference (CPAC), where she framed herself as part of a global conservative coalition alongside figures like Donald Trump and Narendra Modi. These alliances reflect a strategic effort to legitimize far-right ideologies on the global stage.

Yet, the challenges facing these right-wing coalitions are significant. Their agendas—marked by climate denialism, opposition to immigration, and scepticism toward international cooperation—often clash with urgent global priorities like poverty alleviation and climate action. As scholars like Thomas Piketty have argued, there is a general movement in the world toward more equality and social change. Indeed, the internal contradictions within right-wing movements—such as tensions between economic liberalism and cultural nationalism—may limit their long-term viability.

Moreover, the far right’s reliance on fear and division risks alienating broader electorates, particularly as demographic shifts and civil society resistance intensify. While these parties may temporarily capitalize on instability, their inability to address systemic issues like climate change or inequality without undermining their core ideologies suggests their dominance could be short-lived. As history shows, movements built on exclusion rarely sustain themselves in an interconnected world. The future may yet belong to coalitions that prioritize inclusivity, equity, and global cooperation.

(The author is a legal researcher with the organisation)

[1] Gagatek, W. (n.d.). Explaining the Rise of the Radical Right in Europe 2. [online] Available at: https://www.martenscentre.eu/wp-content/uploads/2024/06/Martens-Centre-Policy-Brief.pdf.

[2] Wodak, R., KhosraviNik, M. and Mral, B., 2013. Right-wing populism in Europe: Politics and discourse (p. 179). Bloomsbury Academic.

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