This article discusses the recent Supreme Court’s interim order in the petitions challenging the Waqf (Amendment) Act, 2025 and examines the quantum of interim relief granted against relief prayed for and comments on whether such interim relief was indeed adequate to protect the petitioners or not.

I. The Waqf Amendment Act, 2025 in brief

Before further discussion over the interim order passed by the Supreme Court in the petitions challenging the validity of the Waqf Amendment Act, 2025, it is important to understand what the amendment did. An in depth analysis of the provisions and the consequent impact of such provisions can be read here.

First, it attempted to redefine who could create a Waqf by requiring the dedicator (donor of the property) to demonstrate they had been practicing Islam for at least five years, while asserting lawful ownership over the property. Second, the Act prospectively abolished “Waqf by User” (property becoming Waqf merely through consistent religious use as it was the case of many Islamic religious institutions that have been existing since the 1800s or even before). Third, the post-amendment Section 3C introduced a mechanism allowing a designated government officer to unilaterally declare properties identified as Waqf to be “Government property,” thereby removing them from Waqf oversight. Crucially, the law also mandated compulsory registration and applied the Limitation Act, 1963, curtailing traditional protections against adverse possession claims over Waqf land.

The Disquieting Juxtaposition: Waqf vs. Others

The critical issue of discriminatory application looms large, implicating Articles 14 (Equality) and 15 (Non-Discrimination). Petitioners argued that the rigorous state control proposed by the amendments—particularly concerning land management and the mandatory inclusion of non-Muslims in governance—was unfairly imposed upon the Muslim community compared to other religious institutions.

In the landmark Shirur Mutt case (1954), which defined much of the state’s power over religious endowments, the Supreme Court indeed recognized that the right of a religious denomination to administer its property, while regulated by law (Article 26(d)), must fundamentally leave the right of administration to the denomination itself.[1] A law that entirely removes this right and vests it in an outside authority is deemed a violation. Furthermore, the imposition of a compulsory annual contribution under the Madras Act was struck down, not as a fee for services rendered, but as a “tax,” placing it beyond the legislative competence of the state. The rationale was clear: while the state could regulate the secular administration of religious trusts to ensure they are properly managed, it could not levy a tax for the promotion or maintenance of a particular religion.

There exists a stark disparity in the manner charitable institutions of different religions are treated under law, particularly when one examines the proposed Waqf Amendment provisions that impose disproportionately stringent control over the Islamic institution of Waqf. The issue is straightforward. For decades, major Hindu temples have been administered by boards composed entirely of Hindus, and at no point has the government proposed that, since temple administration is a secular activity, persons of other faiths may be appointed to those boards. Consider the endowment legislations in Karnataka[2], Andhra Pradesh[3], and Tamil Nadu[4] — each expressly requires that the commissioners and officers appointed under their respective Acts must profess the Hindu religion. This differential treatment in which Non-Muslim participation is being proposed stands in clear violation of Article 14 of the Constitution, which guarantees equality before the law.

II. Erosion of Legal Safeguards: Property, Custom, and the Collector’s Writ

The most urgent grievances raised before the Supreme Court related to the potential for bureaucratic expropriation of historic Waqf properties, facilitated by three key amendments: the demise of ‘Waqf by User’, the mandatory registration mandate, and the introduction of a new mechanism for determining ‘Government property’.

A. The Sudden Takedown of ‘Waqf by User’ and the Time Bar

For centuries, the concept of Waqf by User acknowledged that consistent religious use of a property could establish it as a Waqf, even without a formal written deed or dedication. The petitioners stressed that many old Waqfs, lacking formalized documents, rely solely on this doctrine for their title and survival. The 2025 Amendment, however, abolished the doctrine prospectively.

The court dealt with the state’s concern saying that this doctrine had been systemically misused to encroach upon vast tracts of government land, citing instances where thousands of acres were claimed as Waqf property merely through user.

However, the sting lay in Section 36 (10) of the Amended Act, which imposed a mandatory registration requirement for all Waqfs within six months of the Act’s commencement. Failure to register within this period effectively barred the Waqf from instituting or commencing any suit or legal proceeding for the enforcement of its rights. While a proviso allows the court to entertain an application if sufficient cause for delay is shown, forcing centuries-old institutions, often poor and disorganized, to scramble for registration within a tight six-month window—after decades of varying legislative requirements and historical neglect by official bodies—constitutes a threat to rights enshrined in Articles 25 and 26 of the Constitution

This provision creates precarious conditions for community rights, essentially rendering unregistered Waqfs remediless. The court’s justification was rather technical: that Mutawallis had decades to register since the 1923 Act. Yet, to adopt this technical justification would be to ignore the ground realities—the lack of formal deeds, illiteracy, and systemic administrative failures by Waqf Boards themselves—and imposing an iron-clad registration bar seems an exercise of power ill-suited to securing justice for historical endowments. The resultant inadequacy is that while the title by use remains theoretically protected for existing properties, the inability to legally defend or enforce rights over that property due to an administrative lapse effectively neuters the title. By now, the six months have passed.

B. The Usurpation of Judicial Authority by the Executive (Sec 3C)

Perhaps the most alarming feature of the amendment was the introduction of Section 3C, establishing a mechanism for determining whether property claimed as Waqf was, in fact, “Government property”. This power was granted to a “designated officer” above the rank of Collector, who, after an inquiry “as per law,” would submit a report to the State Government. If the officer determined the property was government property, they were empowered to order corrections in revenue records and direct the Waqf Board to update its records.

The petitioners vehemently challenged the provisos to Section 3C(2) and the entire mechanism of Sections 3C(3) and 3C(4). The core objection was that entrusting a revenue officer—a functionary of the executive—with the power to determine the title of property, and subsequently mandating changes in revenue records, flagrantly violates the separation of powers, an essential principle enshrined in the Constitution. The determination of property title is a function reserved for judicial or quasi-judicial bodies.

The Supreme Court, while prima facie upholding the initial clauses of Section 3C, intervened by staying the critical executive actions: the provision that the property would cease to be Waqf until the officer’s report (Proviso to Section 3C(2)), and the powers given to the designated officer to order corrections in revenue records (Sections 3C(3) and 3C(4)).[5]

The court correctly asserted that the final determination of title must rest with the specialised Waqf Tribunal, established under Section 83, which is a judicial or quasi-judicial body with appeal rights to the High Court. Furthermore, the court directed that until the Tribunal makes a final adjudication, neither the Waqfs can be dispossessed, nor can the revenue records be altered.[6]

While this stay is crucial—it halts the immediate damage of executive unilateralism—the court’s action necessarily remains an interim restraint on procedure. It does not yet nullify the underlying legislative intent, which remains an aggressive mechanism to “de-recognize” property. The final battle over whether the state can legally employ such an executive process for title investigation, even if followed by judicial remedy, awaits the final hearing.

C. The Re-imposition of Limitation

A historical protection for Waqf property, long deemed dedicated perpetually to God, was enshrined in the un-amended Waqf Act, 1995: Section 107 provided that the Limitation Act, 1963, would not apply to suits for recovery of immovable Waqf property. This immunity protected endowments from being lost through adverse possession, recognizing their unique religious and charitable status, where the owner (Allah) cannot lose title.

The 2025 Amendment, via Section 44, abolished this immunity, mandating that the Limitation Act shall apply to all proceedings related to claims or interests in Waqf property from the date of the Act’s commencement. This change was argued to be a necessary reform to align Waqf law with general property law.

For the rights under Article 25 and 26, this provision is deeply injurious, instantly exposing centuries of undocumented or poorly managed property to adverse possession claims and creating an immense burden on Waqf Boards to initiate lawsuits, many of which may now be time-barred. The petitioners did submit that the combined effect of this amendment and the deletion of the special provision for evacuee property (Section 108) means that potential recovery suits concerning historical properties, including those tied to post-Partition dislocation, could be barred by limitation.

The Supreme Court, in its interim analysis, found no prima facie case for staying this provision, arguing that applying the Limitation Act removes discrimination that existed in the un-amended Act, thereby treating Waqf property equally to other property claims.[7] This judicial stance, however, overlooks the foundational religious and jurisprudential difference: Waqf property is distinct from ordinary private property; it is permanently dedicated to a charitable or pious purpose, and management (by the Mutawalli) is merely custodial, not proprietary. To strip this perpetual immunity without offering a robust, workable transitional mechanism is an existential blow to the community’s ability to defend its patrimony.

III. The State as Arbiter

The amendments also sought to heavily influence the composition and criteria for Waqf creation, bringing the state’s regulatory gaze directly upon matters of religious identity and leadership.

A. Non-Muslim Inclusion and Secular Administration

The amendments to the composition of the Central Waqf Council (Section 9) and State Waqf Boards (Section 14) allowed for the inclusion of non-Muslim members, which petitioners argued was a direct interference in the management of religious affairs (Article 26(b)). The religious character of the Board, they argued, is inseparable from its administrative duties. Conversely, the state maintained that the functions of the Board and Council—dealing with finance, property, encroachment, and audit—are predominantly “secular activities,” which the state is empowered to regulate. The Mutawalli deals with administrative matters, while the Sajjadanashin handles the religious activities.

The court adopted a middle path, reflecting a structural compromise often seen in Indian jurisprudence. It placed limits on the executive’s expansive power, directing that the Central Waqf Council (out of 22 members) shall not consist of more than 4 non-Muslim members, and State Boards (out of 11 members) shall not exceed 3 non-Muslim members. Furthermore, though it declined to stay the provision regarding the appointment of the Chief Executive Officer (CEO), it directed that an effort should be made, “as far as possible,” to appoint a CEO from the Muslim community.[8]

This, while acknowledging the need to preserve majority Muslim representation, essentially validates the state’s claim that Waqf governance is a secular activity amenable to external, cross-community administrative supervision. This position maintains that the “scale of expenses” and “administration of property” are secular affairs that can be regulated by authorities. However, this judicial accommodation reinforces the state’s role as the final arbiter of what constitutes ‘religious’ versus ‘secular’ functions—a role that academics and petitioners alike have long found problematic, not only generally but also from the case perspective.

B. The Five-Year Practice of Islam Requirement

Section 3(r) of the Amended Act stipulated that a Waqf could only be created by a person “showing or demonstrating that he is practising Islam for at least five years” and who is the lawful owner of the property. This provision was challenged as arbitrary and violating Articles 14, 15, and 25.

The state defended the rule, recalling historical legislative concerns dating back to 1923, that Waqf endowments were often used as a “clever device” to defraud creditors or evade law. The new requirement, the state argued, aimed to ensure that only genuine practitioners, and not fraudulent converts seeking a legal shield for property, could dedicate a Waqf.

The Supreme Court recognised the legislative intent but stayed the operation of this condition, not on the grounds of constitutional invalidity, but due to procedural vagueness. The court noted that in the absence of a clearly defined statutory mechanism for determining whether a person has “practised Islam for at least five years,” the provision would necessarily lead to an arbitrary exercise of power. Thus, the condition remains stayed until Government frame rules to create a viable mechanism.[9] This offers temporary procedural relief but fails to address the more substantive critique: why the state feels compelled to legislate criteria for demonstrating genuine religious practice, a function traditionally far outside the boundaries of a secular state.

Moreover, the Supreme Court in its order, while dealing with the critique that defaulters are dedicating their property to the Almighty to defraud creditors, stated that a possibility of people changing their religion to Islam to defraud the creditors cannot be ruled out. This written observation is rather peculiar since it is used to close the doors on what could have been an analysis on whether an exceptional case of a provision allowing some misuse mandates that such provision be void or not. However, the Supreme Court neither goes into that direction nor does it leave a chance open for it to be discussed at a later stage. It simply puts the reason of absence of rules over how to show if someone has been practicing Islam or not as a justification for the stay over this provision.

IV. The Shadow of Exclusion: Tribal Lands

In two areas—properties dedicated by non-Muslims and properties in tribal areas—the Court refused to grant any interim stay, upholding the state’s legislative decisions that carved out exclusions, even though these raised questions of religious liberty and non-discrimination.

Prohibition on Land in Scheduled or Tribal Areas (Section 3E)

Section 3E explicitly states that no land belonging to Scheduled Tribes under the Fifth or Sixth Schedules shall be declared or deemed to be Waqf property, regardless of any other law. This restricts the religious freedom (Articles 25 and 26) of Scheduled Tribe members who practice Islam and wish to dedicate property.

The state and the court’s prima facie view supported the amendment, rationalizing it as a measure to protect the existence of “cultural minorities” whose religious practices are distinct from Islamic religion. The legislative intent was to avoid conflicting provisions and protect the constitutional autonomy granted to tribal lands.

The inadequacy of the interim order here stems from the blanket nature of the prohibition. While protecting tribal culture is a constitutional priority, preventing an individual Muslim member of a Scheduled Tribe from exercising their right to dedicate their own property as Waqf appears to be an overly broad measure. By failing to stay this provision, the court permits a form of religious restriction justified by cultural protection, without fully weighing the individual rights of practicing Muslims within those tribal groups.

V. The Opportunity Cost: Alternatives to Sweeping Invalidation

The state’s underlying intentions, prima facie, for the 2025 amendments was the misuse, waste, and systematic misappropriation of Waqf properties by some incompetent or unscrupulous mutawallis, sometimes even in collusion with government agencies.

However, the question remains whether the state, faced with misuse, chose the most appropriate and constitutionally sensitive remedy.

As early as 1923, the legislature acknowledged the “menace of mismanagement” and responded by proposing compulsory registration, penalties, audits, and official superintendence.

The pre-amendment Waqf Act specifies duties and disqualifications of mutawallis (such as failure to maintain accounts, misuse of funds, or being convicted of encroachment). Removal provisions were extensive. Furthermore, penalizing unauthorized alienation of property was addressed by Section 52A, which prescribed imprisonment and recovery of the property.

The argument that a more appropriate, less constitutionally aggressive path existed rings true: instead of fundamentally challenging the integrity of historical titles through the abolition of Waqf by User and the imposition of executive title determination (Section 3C), the state could have rigorously enforced the existing accountability, anti-encroachment, and penalty provisions against corrupt mutawallis.

By enacting sweeping structural amendments—like applying the Limitation Act to title disputes and delegating title scrutiny to the Executive—the state opted for a sledgehammer approach to solve a problem of governance and corruption, thereby endangering the legitimate, centuries-old endowments that sustain the community. The Supreme Court’s interim relief, while protecting the procedural sanctity of title adjudication (by striking down the executionary steps of Sec 3C), ultimately permits these structural, title-threatening changes (like the prospective abolition of Waqf by User and the application of the Limitation Act) to stand pending final adjudication. This approach risks resulting in a protective regime whose effect is inadequate when weighed against the magnitude of the rights, religious history, and communal identity hanging in the balance.

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

[1] The Commissioner, Hindu Religious Endowments, Madras v Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt 1954 SCR 1005

[2] Section 7, The Hindu Religious Institutions and Charitable Endowments Act, 1997

[3] Section 3, Andhra Pradesh Charitable and Hindu Religious Institutions And Endowments Act, 1987

[4] Section 10, The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959

[5] Para 209, IN RE: The Waqf Amendment Act, 2025 (1) 2025 INSC 1116 (Waqf Interim Order)

[6] Para 209, Waqf Interim Order.

[7] Para 201, Waqf Interim Order

[8] Para 189, Waqf Interim Order.

[9] Para 140, Waqf Interim Order

Related:

Waqf Act Amendments Partly Stayed: SC blocks government control, backs registration and reforms

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 Understanding the Supreme Court’s Interim Intervention in the Waqf Amendments, 2025 appeared first on SabrangIndia.

Why is it a peculiar attempt? It is so because, the bill threatens the very allies it seeks the support from, i.e., TDP’s Chandrababu Naidu and JDU’s Nitish Kumar. One might ask how it threatens the two big allies of the BJP. The Centre can unleash its institutional might on either of the Chief Ministers like it has done on both Arvind Kejriwal and Hemant Soren previously. Both chief ministers share their political turf with strong BJP partners (Pawan Kalyan in Andhra Pradesh and Chirag Paswan in Bihar) while BJP in itself is a formidable force in Bihar. For a party and establishment that boasts about its ability to make surprise decisions without any consultation, the BJP surely has given enough time for the parties to deliberate it, thus making it a peculiar attempt.

If it is a peculiar attempt at a peculiar law, why is it worth any discussion, especially when it has been sent to a Joint Parliamentary Committee (JPC)? It is worth the discussion since such discussion will inform the views and enrich the discourse that will help in the interactions with the JPC when it invites comments over the bill.

This article presents two arguments, one that has already been well discussed and another that has been side-lined, arguably by the advent of the bill itself. The first argument is that the bill is a haphazard and harmful attempt to change the fundamental nature of criminal law and constitutionalise such harmful change while being menacingly selective, even within such harmful bounds.

The second is that the bill side-lines a crucial discussion that ought to have occupied popular discourse for a long time since governments began to topple after getting elected on a mandate: the trading of MLAs.

The Bill

The Bill proposes to amend Article 75 (by inserting clause 5A), Article 164 (by inserting clause 4A) and Article 239AA (by inserting clause 5A) of the Constitution. These articles deal with other provisions as to central ministers, other provisions as to state ministers, and special provisions with respect to Delhi, respectively.

The Bill has, essentially, four elements. One element is who comes under its scope. The Prime Minister, Central Ministers, Chief Ministers of the States and State Ministers.

Second Element is what it does. It provides that if any of the above four categories of people are arrested on charge for a serious crime for which the punishment is imprisonment for five years or more, and are detained in custody for 30 days, on the 31st day, either such person will be removed from the post or if such removal order is not given, he shall cease to hold such post from the 31st day of the custody.

The third element is how it does this. The Bill uses the high constitutional posts of the President in case of Prime Minister and Central Ministers and Governor in case of Chief Minister and State Ministers. Therefore, on the 31st day of custody, the President will have to act in the case of Prime Minister or Central Ministers, and the Governor will have to act in the case of a Chief Minister and State Level Ministers.

The fourth and final element is what happens when the person in custody gets released. The Bill essentially leaves a narrow gap for the status quo to come back. The Bill says that nothing shall prevent the person released from custody to be subsequently appointed as the Chief Minister or a Minister, by the Governor, on his release from custody.

So, simply put, if a person goes to jail for more than 30 days, they will lose their ministerial position and if they are released on the 32nd day, they will have to be appointed again.

While the bill negates all procedures for a person to be removed from office, such automated process is not there for reinstatement of those who are released from the detainment after the 31^st day!!!

Seeing through the facade of Bill’s apparent upholding of Constitutional Values

The Disproportionate Nature

This section presents, at multiple stages and as one delves deeper into the reasoning behind the bill, the disproportionate nature of arresting a Minister (State or Central) or a Chief Minister or a Prime Minister.

It sounds okay if it is seen in the context of the much popularised but a fundamentally mistaken notion that all people charged with something are wrongdoers. As much stigmatizing as getting charged on something and getting arrested is, it does not prove anything. There are two data points to support this.

Firstly, more than 75% of India’s prisoners are undertrials meaning that 75 out of every 100 people in India’s prisons do not have the mark of conviction on them and yet, they are languishing in jails.

There can be further apprehensions on this saying “if they are in jail or if the police have charged them, they must have done something wrong.” It is here that the second part of information becomes useful. If this were true, out of the 548 persons arrested between 2015 and 2020 for the offence of Sedition (Section 124A) under the now repealed Indian Penal Code, 1860, there can be an expectation that a considerable percent of people should have been convicted. However, only 12 people were convicted. Sedition was given the form of ‘Acts endangering sovereignty, unity and integrity of India’ under Section 152 of the Bharatiya Nyaya Sanhita, 2023(BNS) and it carries a punishment of imprisonment for life, or imprisonment for 7 years and fine. Therefore, if a chief minister is arrested under Section 152—the sedition equivalent—the provisions of the 130th Constitutional Amendment Bill apply if it passes through. In that case, going by how many people got arrested and thereafter convicted in similar cases, there is, at best, a chance of 2 percent for the police cases to result in conviction. And yet, going by the provisions of the bill, if they come into force, as they are now, the chief minister is ought to be removed.

Strict laws are already present

There is a chance for one more apprehension in this regard: “Isn’t that good even if 2 corrupt chief ministers do not get to be in their position?”

While the apprehension and the consequent conclusion may be a response to the eroding faith and legitimacy of the Indian political arena, the point is this: India’s laws already have provisions disallowing convicted people to contest in elections. The Representation of People Act, 1951, as a general rule provides that any person convicted of any offence, if sentenced to two years of imprisonment or more, such person shall be disqualified to stand in any election for 6 years after he/she is released from prison, after they serve their punishment. So, if a politician goes to jail as a punishment for a crime he is convicted for, not only is he restricted from standing for elections, during his period of punishment, but the restriction extends to 6 years post his release. Apart from the general rule, there are specific rules too wherein morally deplorable offences like adulteration of food, or offences under the Dowry Prohibition Act, 1961 attract the same restrictions even with a 6 month imprisonment conviction. Therefore, if a politician is put in jail as a convict, even for a period of 6 months under some laws, they will lose the right to stand in elections once they are released.

There are classes of offences like the offences under the laws related to Narcotics and Psychotropic substances, wherein even a fine upon conviction attracts the restriction. In that sense, the restrictions enshrined in the Representation of Peoples Act, 1951 are stricter. However, their strictness is triggered only by a conviction rather than a mere detainment.

One last apprehension is left to be dealt with before concluding argument on how selective, harmful and haphazard bills are. It is the apprehension or rather a question of “How come we have so many reports saying criminals are entering politics if the existing laws are stricter?”

This reality of people with criminal cases entering politics does not start at Chief Ministers but with MLAs and MPs. Moreover, the reports often quote the number of cases pending against the politicians rather than only convictions. While these reports would serve an argument which says that cases against political representatives need to be heard on a priority basis so that a conclusion can be attained over charges, it does not come of use to the proposition for the 130th Constitutional Amendment Bill. Additionally, this is also where the bill is being selective. MLAs and MPs are also part of Constitutional Scheme and moreover, their detainment does not affect stability of governments as much as a detainment of a chief Minister of State or a Central level Cabinet minister would. And despite this, the bill only includes in its ambit only the ministers and not all members of legislature.

Goes against entrenched Constitutional Principles

Finally, despite all this, what is the moral, constitutional and legal roadblock for the bill? It is the principle of innocent until proven guilty that not only runs at large not only throughout our criminal justice system but also our Constitution.

Where is this enshrined? Article 20 (3) of the Constitution states that no person accused of any offence shall be compelled to be a witness against himself. Article 22(5) states that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.. This means that the Constitution protects an individual against the excesses of the state and places the burden on the state to prove the guilty nature of a person.

Surely, there are some situations in which the system allows for violation of liberty of individuals like remand. However, these are not the same as an automatic removal of a Constitutional post because they are not as disruptive i.e., if a person is sent to judicial custody, they can come back and resume their daily life, which is not the case with a Chief Minister who would have been removed from office. The consistent affirmation of—bail is the rule and jail is the exception— also stresses how important the liberty of an individual is when they are not convicted. In this paradigm, it is not only perplexing but also dangerous that there is a bill which will have ministers vacate their posts once they are detained for over 30 days.

One might argue saying “what good is a chief minister if she cannot claim her post back after she is released from jail?” In the material reality of electoral bonds-electoral trusts, electoral betrayals and weaponisation of investigation agencies, we have seen the nephew double crossing the uncle, loyal ministers splitting the parties, and daughters and sisters choosing their own political journeys in opposition to their prior family-run parties. It is therefore unreasonable to expect a smooth transition of power back to the CM who would have been removed from the post while in detainment.

Under these conditions, the only purpose of the 130th Constitutional amendment bill, if effectuated, would be to increase the entropy in the Indian political arena giving an undue advantage to the already powerful forces thus weakening democratic values.

The 130th Constitutional Amendment Bill may appear to address the issue of morality in politics by disqualifying ministers and chief ministers in custody, but the real constitutional betrayal lies elsewhere—in the brazen practice of horse trading. The trading of MLAs, and the consequent toppling of elected governments, represents a far deeper threat to the democratic fabric than undertrial ministers continuing in office. The bill’s failure to address this crisis is its most glaring omission.

The Real Crisis: Horse Trading of MLAs

Since the late 1960s, India has been plagued by defections that de-stabilise governments. Legislators elected on one party’s mandate have frequently crossed over, often lured by ministerial berths or financial inducements. The 10th Schedule of the Constitution, introduced through the 52nd Amendment in 1985, was meant to curb this menace. It provided for disqualification of legislators who defected. Yet, over time, political ingenuity and judicial loopholes hollowed out this protection. Mass defections have been disguised as “mergers” or orchestrated through resignations, effectively bypassing disqualification. Recent instances in Karnataka (2019), Madhya Pradesh (2020), and Maharashtra (2022) show how easily voter mandates can be overturned without an election.

This practice amounts to a constitutional betrayal because it robs citizens of the government they elected. The principle of fixed terms under Article 172 and the collective responsibility of the cabinet under Article 164 become meaningless when MLAs can be purchased or coerced into changing sides.

Why Horse Trading is More Dangerous than Imprisonment of Ministers

The bill focuses on removing ministers in custody, but that is not the core threat to democratic stability. A minister’s detention is temporary, and in most cases, they can return to office upon acquittal or release. In contrast, once a government falls due to horse trading, the mandate is lost permanently. New governments formed in this way lack legitimacy, as they do not represent the electorate’s choice but the outcome of clandestine deals.

Furthermore, horse trading weaponises money power and state machinery. Political financiers and investigating agencies become decisive players in engineering defections, corroding not just the executive but the very legitimacy of the legislature. Compared to this, ministers in custody pose a minor problem, already addressed by the Representation of People Act, 1951, which disqualifies convicted politicians from contesting elections.

The Missing Reform: Strengthening Anti-Defection Laws

The true reform needed is strengthening the 10th Schedule. Measures could include transferring adjudication of defection cases from partisan Speakers to an independent tribunal, mandating swift decisions within fixed timelines, and eliminating the “merger” loophole. Yet, recent events show that without stronger provisions, defections will continue unchecked. Genuine constitutional morality requires insulating legislatures from the corrosive influence of money and coercion.

Constitutional Morality and Silence on Defections

By remaining silent on horse trading, the 130th Amendment Bill betrays the very morality it claims to defend. Constitutional morality requires that institutions preserve the sovereignty of the people’s mandate. When elected governments are brought down through defections, the Constitution’s promise of representative democracy is subverted. By focusing on ministers in custody while ignoring defections, the bill diverts attention from the true crisis, cloaking inaction with a veneer of reform.

Conclusion
The true constitutional challenge today is not ministers under detention but the erosion of electoral mandates through horse trading. The spectacle of governments being bought and sold has disillusioned voters, hollowed legislatures, and de-stabilised governance. The 130th Amendment Bill, by ignoring this issue, amounts to a constitutional sleight of hand—a cosmetic reform that strengthens the hand of ruling powers without addressing democratic instability. Strengthening anti-defection provisions and safeguarding legislatures from inducement and coercion is the urgent constitutional reform India needs. Anything less is betrayal of the democratic spirit and the people’s trust.

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

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The post Smoke & Mirrors, 130th Constitution Amendment Bill: Real issue is the trading of MLAs appeared first on SabrangIndia.

The appellants, Putai (Accused No. 1) and Dileep (Accused No. 2), were convicted by the Additional Sessions Judge, Lucknow, on March 14, 2014, for offences under Sections 376(2)(g) (gang rape), 302 (murder), and 201 (destruction of evidence) of the Indian Penal Code (IPC). Putai was sentenced to death for the offense under Section 302 IPC, alongside rigorous life imprisonment for gang rape and seven years of rigorous imprisonment for destruction of evidence. Dileep received rigorous life imprisonment for both murder and gang rape. The Allahabad High Court subsequently confirmed Putai’s death penalty and dismissed the appeals on October 11, 2018.

The Supreme Court’s verdict to acquit the appellants, who had spent over a decade in custody, stands as an indictment of a criminal justice process plagued by systemic frailties, procedural negligence, and some parts of evidence characterized by the apex court as being “a piece of trash paper” due to no procedure having been followed. This article conducts an analysis of the Putai case, using it as a lens to expose the collapse of the evidentiary framework and the critical need for institutional accountability, particularly in capital punishment cases resting solely on circumstantial evidence.

Section I: The Collapse of the Evidentiary Framework: Circumstantial Evidence and the Burden of Proof

The prosecution’s case against Putai and Dileep was based on circumstantial evidence. In such trials, Indian jurisprudence requires an exceptionally high standard of proof, famously articulated in the Sharad Birdhichand Sarda vs. State of Maharashtra precedent, which demands the establishment of five “golden principles.” These principles mandate that the circumstances forming the conclusion of guilt must be fully established, must be consistent only with the hypothesis of the accused’s guilt, must be of a conclusive nature, must exclude every hypothesis except the one to be proved, and must form a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.

The Supreme Court, applying this rigorous standard, found that the prosecution in Putai failed to meet this high threshold at every turn. The Court recognised the critical distinction between circumstances that “may be proved” and those that “must be proved,” emphasising that the legal distance between the two “is small but has to be travelled before the prosecution can seek conviction of the accused”.[1]

A. The Failure to Establish Incriminating Circumstances

The prosecution sought to link Putai to the crime based on three core circumstantial elements: the recovery of the victim’s articles, the suspicious conduct of the accused, and the DNA evidence.

1. Dubious Recovery of Articles: The personal articles of the child victim—chappals, a water canister, and an underwear—were found in a field, which accused No. 1, Putai, was cultivating. While the State argued that this shifted the burden onto Putai to explain the circumstances under Section 106 of the Indian Evidence Act, 1872, the Court found the recovery itself doubtful.[2]

The father, Munna, in his initial complaint, mentioned finding the chappals, water canister, and blood stains, but was totally silent regarding the recovery of the victim’s underwear. The Court found it “impossible to believe” that the search party, which included the victim’s father and others would have noticed the minor details like the chappals and water canister, yet missed the underwear in the same field. This omission was deemed “far too significant to be overlooked”.[3] The Supreme Court concluded that the recovery of the underwear seemed to be a “planted recovery and a creation by the Investigating Officer intended to give succour to the prosecution case”.[4]

2. The Sniffer Dog Theory against Dileep: The prosecution’s case against accused No. 2, Dileep largely rested on the claim that a small male comb was recovered from a field, and a sniffer dog, after smelling the comb, led the police to Dileep’s house. The Court stated that this theory is “shrouded in a cloud of doubt and unacceptable on the face of record”.[5]

• Contradictory Identification: Multiple prosecution witnesses offered starkly conflicting testimonies regarding the comb’s colour: one said bluish-green, another said dirty and light red, another said sky-blue, and Investigating Officer said green. These contrasting versions made the recovery itself doubtful.
• Implausible Linkage: The claim that witnesses could identify the comb, an ordinary plastic item, as belonging to Dileep simply because they had seen him using it was found to be “absolutely farfetched and unbelievable”. The Court viewed this insistence as a “strong indicator” that the prosecution was “hell bent upon implicating the accused No. 2-Dileep in this case by hook or by crook”.[6]
• Procedural Failure: The entire sniffer dog procedure lacked contemporary documentation. Furthermore, the Investigating Officer claimed he had immediately sealed the comb at the spot, which logically meant it could not have been available for the sniffer dog to smell, rendering the entire theory unworthy of credence.

3. Suspicious Conduct of Putai: The High Court and Trial Court treated the testimony the victim’s mother, as incriminating. She claimed to have seen Putai rushing into his house, washing his hands and face, changing his clothes, and then going away on his cycle without inquiring about the commotion regarding the missing child.

The Supreme Court firmly rejected the inference of guilt. The Court observed that washing hands and changing clothes after returning from work was “absolutely natural” behaviour for a labourer or farmer, and would not raise suspicion.[7] Furthermore, Putai’s explanation in his Section 313 CrPC statement—that his parents were ill and hospitalised—provided an innocent context for his haste and preoccupation, a fact admitted by the victim’s in cross-examination.[8]

Section II: The Forensic Catastrophe: DNA Evidence and the Broken Chain of Custody

The handling of forensic evidence in the Putai case was so flawed that the Supreme Court described the resulting reports as “a piece of trash paper” and concluded they “pale into insignificance”. This systematic failure reveals catastrophic lapses in collection, preservation, and analysis that fall far short of established international standards.[9]

A. Inadmissible and Contradictory DNA Reports

The first DNA examination report dated January 18, 2014 was inconclusive, merely stating that a “male specific allele” was found in the victim’s slide and swab, with no opinion regarding the blood samples of Putai and Dileep.

Years later, during the High Court appeal, the prosecution produced a supplementary DNA report (dated December 2, 2014) via an affidavit dated April 12, 2017. This new report, generated using Y-Filer Kit and HID Kit tests, contradictorily claimed that the material from the victim’s slide matched the allele profiles of both Putai and Dileep.

The Supreme Court found this supplementary report to be “inconsequential and inadmissible” due to a host of fatal procedural flaws:

1. Denial of Rebuttal: The supplementary DNA report was never put to the accused-appellants under Section 313 CrPC, denying them the statutory right to explain or rebut the new incriminating material.[10]
2. Unexamined Expert: The scientific expert, who issued the reports, was not recalled or re-examined on oath to prove the contradictory supplementary report.[11]
3. Improper Use of Affidavit: The supplementary report was tendered via the affidavit of an officer (Deputy Director, FSL, Lucknow) who was not connected with the issuance of the report. The Court clarified that the DNA report is a substantive piece of evidence, not merely formal, and thus could not be tendered in evidence through an affidavit under Section 293 of the CrPC (now Section 329 of the BNSS, 2023).[12]
4. Breach of Sanctity: Given that the scientific expert did not state that any forensic material was preserved for further examination after the first report, the Court presumed the samples must have been opened or consumed. Once the samples were opened, their sanctity was breached, rendering any subsequent supplementary analysis unreliable.[13]

B. The Catastrophic Breakdown of the Chain of Custody

The most critical failure was the complete absence of proof regarding the chain of custody, which is essential to guarantee that evidence has not been contaminated or tampered with.[14] The specific failures were comprehensive:

• Collection Procedure: The blood samples of the accused were collected on November 26, 2012, nearly two and a half months after their arrest on September 7, 2012. The prosecution failed to provide any oral evidence or exhibit any document to prove the procedure, date, or time of drawing these blood samples.
• Consent: Although consent of the accused-appellants was purportedly taken before drawing the samples, no document proving such consent was exhibited in evidence.
• Post-mortem Samples Discrepancy: The medical professionals provided contradictory evidence regarding the collection of samples from the victim’s body. One stated she took two vaginal swabs and two smear slides but did not mention sealing them or the date of transmission. Another stated he took eight slides of smear and swabs, and claimed they were seized, sealed, and handed over to Constables. However, he failed to prove any document pertaining to this procedure, such as a memorandum of sealing.
• Transmission and Storage: The prosecution failed to examine the official(s) who carried the samples to the FSL or the malkhana (evidence room) In-charge.

Critically, not a single document pertaining to the safe keeping or transmission of the samples—including the malkhana register, roznamcha entry, forwarding letter, or the receipt issued from the FSL—was exhibited during the trial.

The Court concluded that the failure to prove the relevant documentation for collection and the “total lack of evidence regarding the chain of custody” of the blood samples made the entire exercise “farce and frivolous.”

Section III: A System on Trial: Investigative Incompetence and the Crisis of Accountability

The final acquittal was not merely due to weak evidence, but was a direct consequence of what the Supreme Court deemed a “lacklustre and shabby investigation and so also laconic trial procedure”. This institutional failure crippled the search for truth from the very outset.[15]

A. A Catalogue of Critical Investigative Omissions

The Court identified several fundamental errors that demonstrated either gross incompetence or deliberate fabrication:

• Failure to Send Crucial Evidence to FSL: The Investigating Officer seized the victim’s clothes, including the frock and the underwear, but inexplicably did not forward these crucial articles to the FSL for scientific analysis. The Court found it surprising that in a case of sexual assault and murder, the IO did not send these articles, giving rise to a “strong suspicion that the recovery of these articles was a planted recovery”.
• Failure to Search Accused’s House: Despite the prosecution’s own theory that Putai rushed home and changed his clothes, no extensive search of the accused-appellants’ house was made to look for incriminating evidence. This omission reinforced the Court’s view that the ‘suspicious conduct’ theory was an “exaggeration”.[16]
• Failure to Examine Neighbours: The incident occurred in open fields, accessible to “all and sundry”. Although the incident happened between 7:00 PM and 8:00 PM when darkness was beginning to fall, the police did not care to examine anyone from the neighbouring fields or locality. This failure created doubt regarding the bona fides of the police actions.[17]
• Failure to Identify Material Objects: The material objects (clothes, etc.) were exhibited in the evidence of the Investigating Officer, but were never shown to the victim’s parents, Munna and Chandravati, for identification when they testified.[18]

B. Capital Punishment and the Constitutional Imperative

The fact that Putai was awarded and confirmed a death sentence on the basis of such flimsy evidence demonstrates the profound risk within India’s capital punishment regime. The irreversible nature of the death penalty demands that it only be imposed in the “rarest of rare” cases, based on unimpeachable, cogent evidence. The Putai case serves as a terrifying example of how investigative incompetence and flawed judicial scrutiny at the lower court levels can lead to the gravest miscarriage of justice by extinguishing a human life irretrievably.

C. The Double Tragedy: Denial of Justice for the Victim

While the acquittal corrected the injustice against the accused, it simultaneously constitutes a a tragic failure of justice for the minor child victim and her family. The gruesome act of rape and murder remains unsolved. The investigation not only failed to secure a conviction but also likely destroyed the possibility of ever identifying and prosecuting the actual perpetrator.

This situation results in a “secondary victimisation” of the family, who are left without closure or justice, their faith in the system shattered due to institutional incompetence. The acquittal, in this context, is not an endpoint of justice but a marker of its complete absence, proving that a flawed investigation is the antithesis of both the accused’s right to a fair trial and the victim’s right to meaningful justice.

Conclusion

The Supreme Court demonstrated that the conviction, upheld by two lower courts, rested on a foundation of conjectures and procedural violations, where the fundamental principles governing circumstantial evidence were ignored and scientific evidence, vital in such cases, was rendered “worthless” due to an absolute lack of procedural rigor.

However, the tragedy of Putai lies in its double failure: it subjected the accused to a decade-long ordeal under the shadow of the death penalty, while simultaneously failing the minor victim and her family by making the accountability of the actual assailant impossible. The judgment is an urgent call for systemic overhaul. True justice for both the innocent accused and the grieving victim can only be achieved through a system built on a bedrock of scientific integrity, rigorous adherence to procedure, and unwavering accountability for all institutional actors.

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

[1] Para 69

[2] Para 37

[3] Para 43

[4] Para 56

[5] Para 36

[6] Para 38

[7] Para 32

[8] Para 35

[9] Para 75

[10] Para 66

[11] Para 66

[12] Para 75

[13] Para 64

[14] Para 65

[15] Para 73

[16] Para 71

[17] Para 74

[18] Para 68

Related:

Liberty, Evidence and Cooperation: A legal analysis of Jugraj v. State of Punjab

A Proposal on Collegium Resolutions: Towards a single comprehensive format

Free speech, even in bad taste, is protected if no incitement to violence: HP HC

The post SC acquits two men accused of rape of a minor; terms the case an example of shabby and lacklustre investigation appeared first on SabrangIndia.

The consistent tension between the state’s power to investigate crime and the individual’s fundamental right to liberty forms a fundamental pillar of criminal jurisprudence in any constitutional democracy. Within this dynamic, the judiciary serves as the final arbiter, tasked with balancing the imperatives of law enforcement with the sacrosanct principles of personal freedom. The Supreme Court of India’s decision in Jugraj Singh v. State of Punjab stands as an illustration of this tradition.[1] A bench comprising of Justices Manoj Misra and Ujjal Bhuyan, in its judgement stated that merely because nothing incriminating could be discovered would not mean that there is non-co-operation on the part of accused. While the case itself presents a common factual scenario—an individual implicated solely on the disclosure statement of a co-accused and the subsequent opposition to bail on grounds of non-cooperation—the Court’s treatment of these issues offers an important reaffirmation of established constitutional safeguards.

This article argues that the judgment in Jugraj is a crucial restatement of liberal bail jurisprudence, reiterating the foundational principles through a three-pronged analytical approach. First, it shows the inherent weakness of a co-accused’s confession as a basis for criminal implication, thereby demanding a higher threshold of prima facie evidence from the prosecution at the bail stage. Second, it narrowly and correctly defines the scope of “cooperation with the investigation,” aligning it with the constitutional right against self-incrimination under Article 20 (3) of the Constitution of India. Third, by scrutinising the investigative agency’s own diligence, the judgment implicitly critiques prosecutorial overreach and investigative inertia, reinforcing the judiciary’s role as a check on the executive’s power to curtail liberty.

The significance of Jugraj lies not in the creation of new legal doctrine. It is in its function as a necessary course correction. In an era where even politicians in power are being targeted on the pretext of not cooperating with the investigation by agencies like the ED, the Supreme Court’s decision serves as an important reminder to lower courts and law enforcement agencies. It shows that the foundational principles of liberty, articulated decades ago in landmark cases such as Gurbaksh Singh Sibbia v. State of Punjab, remain undiluted and must be rigorously applied against any procedural practice that seeks to undermine them. This article will deconstruct the Jugraj judgment by analysing its factual and legal underpinnings, situating it within the broader jurisprudential context of evidence law and anticipatory bail, and exploring its implications for the rights of the accused and the obligations of the state.

The Judgment in Focus: Factual Matrix and Ruling in Jugraj v. State of Punjab

The case of Jugraj Singh presented a set of circumstances that are frequently encountered in trial courts across the country, making the apex court’s intervention particularly instructive.

Facts

The appellant, Jugraj Singh, sought anticipatory bail in connection with a case registered at Police Station Sadar Patti, District Tarn Taran. His implication in the case was not based on any direct evidence or recovery of incriminating material from his person or premises. Instead, the entire basis for his arraignment was a disclosure statement made by a co-accused, Rashpal Singh, from whom a recovery had been affected. This singular fact formed the crux of the appellant’s plea for pre-arrest bail.

Compounding the matter was a crucial detail that the Supreme Court found particularly relevant: the appellant had been “similarly implicated” in a prior case, also on the basis of a co-accused’s disclosure statement, and had been granted the protection of anticipatory bail in that instance. Despite this history and the nature of the evidence, the High Court of Punjab and Haryana at Chandigarh rejected his anticipatory bail application on April 3, 2025, prompting the appeal to the Supreme Court. Recognising the tenuous nature of the implication, the Supreme Court, on June 23, 2025, granted the appellant interim protection from arrest. This protection was made conditional upon a standard and vital requirement which states that he joins the investigation as and when called upon to do so by the Investigating Officer.

Arguments advanced by the Parties

The arguments before the Supreme Court centred on whether this interim protection granted on June 23, 2025, should be made absolute. The appellant’s case was straightforward, resting on fundamental principles of criminal law. He argued that his implication was false and malicious, stemming solely from the inadmissible statement of a co-accused. He emphasised that nothing incriminating had been recovered from him and pointed to the past instance of similar implication as evidence of a pattern of harassment. Implicitly, he contended that he had complied with the interim order by joining the investigation.

The State of Punjab, in its counter-affidavit, did not dispute the foundational premise. It conceded that Jugraj Singh’s implication was indeed based on the confessional statement of the co-accused. However, to oppose bail, the State levelled the allegation of non-cooperation. The sole basis for this serious charge was the appellant’s statement during questioning that he had thrown his mobile phone into a river.

The Supreme Court’s reasoning deconstructed

The Court first addressed and defined the concept of cooperation, holding that “Merely because nothing incriminating could be discovered would not mean that there is non-co-operation on the part of accused”. This observation delinks the outcome of an interrogation from the process of cooperation itself. The absence of a discovery cannot be retrospectively used to label the accused as non-cooperative.

Second, the court noted a glaring omission in the State’s counter-affidavit i.e., there was no mention of any independent effort made by the police to verify the appellant’s claim or to pursue alternative leads. The Court pointedly observed that the State had not stated “that any effort was made to trace out the mobile number of the appellant and collect the call detail records or that any raid was carried to find out whether he is in possession of any incriminating material”.

This is instructively significant. It establishes a direct relationship between the quality of the foundational evidence and the credibility of the prosecution’s subsequent procedural objections. The prosecution’s case rested exclusively on a co-accused’s statement, a form of evidence legally recognized as weak. Faced with this fragile foundation, the State’s only recourse to deny bail was the allegation of non-cooperation. The Court perceived this as an attempt to secure custody to compensate for the lack of substantive evidence. It was insufficient for the State to merely allege it; the State had to first demonstrate that it had exhausted its own investigative avenues. This implies a judicial principle: the weaker the prima facie case against an accused, the less weight a court will give to generic and unsubstantiated allegations of non-cooperation used to deny bail.

Ultimately, considering the nature of the evidence, the precedent of the appellant receiving similar protection, and the lack of substance in the non-cooperation claim, the Supreme Court made the interim bail order absolute, subject to standard conditions.

Foundation of implication: Deconstructing evidentiary value of a co-accused’s statement

The Supreme Court’s decision in Jugraj was heavily influenced by the evidentiary quality of the material used to implicate the appellant. A look into the Indian Evidence Act, 1872, reveals why a case built solely on the statement of a co-accused is considered fundamentally weak.

Legislative framework

The Indian Evidence Act treats confessions made to police with extreme caution, born from the recognition of the power imbalance between the accused and the state.

• Sections 25 and 26: Section 25 states that no confession made to a police-officer, shall be proved as against a person accused of any offence. Section 26 states that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person. These sections create an absolute bar on proving confessions made to a police officer or by a person in police custody, unless made in the immediate presence of a Magistrate. This is a safeguard against coercion.
• Section 27: This Section creates a narrow exception wherein when a fact is discovered as a consequence of information from an accused in custody, “so much of such information.as relates distinctly to the fact thereby discovered, may be proved.” The discovery lends credibility to the information. In Jugraj, the State made no claim that any fact was discovered based on information from the appellant.
• Section 30: This is the most pertinent provision. It states that when multiple persons are tried jointly, a confession by one affecting himself and others can be “taken into consideration” against the others. However, jurisprudence is clear: such a statement is not substantive evidence. It is not given under oath, nor is it subject to cross-examination. As established in the landmark case of Kashmira Singh v. State of Madhya Pradesh, the confession of a co-accused is a matter of the highest caution and can only be used to lend assurance to other evidence.[2] It cannot be the sole basis for conviction. The rationale is that an accused person has a powerful incentive to implicate others to exculpate themselves or to receive a lighter sentence.

Connecting legislative framework to Jugraj

The implication of Jugraj Singh rested exclusively on Rashpal Singh’s disclosure statement. There was no independent corroboration, no recovery, and no other material linking him to the offence. This reliance on the weakest form of evidence, legally insufficient to sustain a conviction, made the State’s opposition to anticipatory bail untenable. The decision provides u and affirms a vital principle for bail jurisprudence: the court must examine the prima facie quality and admissibility of the evidence.

Shield of Liberty: anticipatory bail, the enduring legacy of Gurbaksh Singh Sibbia

The legal instrument through which Jugraj Singh sought freedom was anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC). His case is rooted in the jurisprudential history of this provision, benchmarked by Gurbaksh Singh Sibbia v. State of Punjab.[3]

Jurisprudential evolution of section 438 CrPC

Introduced in 1973 based on the 41st Law Commission Report, anticipatory bail was designed to protect individuals from harassment and wrongful incarceration through malicious accusations. It is a pre-arrest legal remedy, giving substance to the right to personal liberty under Article 21 of the Constitution.

The Sibbia doctrine: Magna Carta of Anticipatory Bail

The scope of Section 438 was settled by a five-judge Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab (1980). The Supreme Court emphatically rejected the restrictive approach taken by the Punjab and Haryana High Court, which had sought to impose rigid conditions, such as limiting it to “exceptional cases” and importing the restrictions of regular bail under Section 437.

The key principles laid down in Sibbia are:

• Liberal Interpretation: The provision must be interpreted liberally in favour of personal freedom.
• No Inflexible Rules: The Court refused to lay down a “straitjacket formula.” The decision must be based on the specific facts of each case.
• Wide Discretion: The discretion vested in the higher courts is wide and should not be fettered by self-imposed, restrictive conditions.
• Reasonable Apprehension: The “reason to believe” an arrest is imminent must be based on reasonable grounds, not vague fears.

Modern Application and Jugraj

The pro-liberty ethos of Sibbia has been consistently reaffirmed, notably in Siddharam Satlingappa Mhetre v. State of Maharashtra (2010)[4] and the Constitution Bench decision in Sushila Aggarwal v. State (NCT of Delhi) (2020), which held that anticipatory bail is not by default time-bound.[5]

The judgment in Jugraj is a textbook application of the Sibbia doctrine. The Court faced a classic scenario Section 438 was designed to address: an individual facing arrest based on weak, potentially inadmissible evidence. By looking past the State’s procedural objections to the substantive merits, the Court exercised its wide discretion to protect the appellant’s liberty. The decision fulfils the very purpose for which Section 438 was enacted, acting as a vital shield for individual freedom.

Defining the Line: “Cooperation with Investigation” versus the Right against Self-Incrimination

The State’s primary argument against Jugraj Singh was his alleged “non-cooperation.” The Supreme Court’s handling of this issue firmly situates the concept of cooperation within the framework of the fundamental right against self-incrimination.

The Constitutional Bedrock: Article 20(3)

Article 20(3) of the Constitution of India provides that “No person accused of any offence shall be compelled to be a witness against himself.” This right ensures that the burden of proving guilt lies squarely on the prosecution, which must gather evidence through its own independent efforts, not by coercing the accused. It represents a fundamental departure from an inquisitorial system of justice, where the accused can be questioned to extract truth, to an accusatorial system, where the state must prove its case beyond a reasonable doubt.

Judicial Interpretation of “Cooperation”

Cooperation involves an accused person adhering to the legal process: joining the investigation when summoned and making oneself available for questioning. Crucially, it does not mean admitting guilt or making a confession. The right to remain silent is a vital facet of the right against self-incrimination, and its exercise cannot be construed as non-cooperation.

Applying the Standard to Jugraj

The appellant had complied with the core requirement of the interim bail order: he joined the investigation. The State’s entire allegation of non-cooperation hinged on his statement about his mobile phone. Demanding that the appellant produce his phone, which could contain evidence against him, would be a textbook violation of Article 20(3).

Instead of focusing on the veracity of the appellant’s statement, the Court shifted the focus to the investigative agency’s own responsibilities. Its pointed observation about the State’s failure to trace the phone number or collect Call Detail Records (CDRs) is critical. This judicial manoeuvre implicitly redefines “non-cooperation.” It is not merely the accused’s silence but the prosecution’s failure to investigate. By highlighting what the police did not do, the Court reframed the issue. The State’s argument was, “The accused is not cooperating because he won’t give us the evidence.” The Court did not consider this because the State is supposed to find the evidence and not imply on the basis of someone’s acts or omissions.

It is important to distinguish this from genuine non-cooperation, such as absconding, tampering with evidence, or intimidating witnesses, which would warrant denial of bail. The appellant had done none of these; his refusal to self-incriminate was the exercise of a fundamental right.

Synthesis and Concluding Analysis

The judgment in Jugraj v. State of Punjab is a synthesis of three fundamental pillars of Indian criminal law: the rules of evidence, the principles of anticipatory bail, and the constitutional right against self-incrimination. The case began with a weak evidentiary foundation, necessitating the protective remedy of anticipatory bail. The State’s attempt to defeat this claim rested on an allegation of non-cooperation that was constitutionally impermissible. The Supreme Court, by seeing through this procedural gambit, wove these three threads together, affirming that liberty cannot be curtailed on weak evidence, and the shield of pre-arrest bail cannot be pierced by a flawed interpretation of cooperation.

Its value lies in its clear-headed application and forceful restatement of foundational principles. In a legal system where the process can often become the punishment, the judgment provides a much-needed reinforcement of the delicate balance between effective crime detection and the protection of constitutional rights.

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

[1] 2025 LiveLaw (SC) 837

[2] MANU/SC/0031/1952

[3] MANU/SC/0215/1980

[4] MANU/SC/1021/2010

[5][5] MANU/SC/0100/2020

Related:

A Proposal on Collegium Resolutions: Towards a single comprehensive format

Free speech, even in bad taste, is protected if no incitement to violence: HP HC

Reaffirming Open Justice: The Supreme Court on speech and contempt

The post Liberty, Evidence and Cooperation: A legal analysis of Jugraj v. State of Punjab appeared first on SabrangIndia.

An earlier piece has already set out why collegium resolutions need to be more reasoned and how they can serve as a starting point for greater transparency in the higher judiciary. That was written in the backdrop of an unusual incident — an alleged half-burnt cash pile found at a judge’s residential bungalow complex after a fire broke out on March 14, 2025, and the developments that followed. This piece, unfortunately, argues that collegium resolutions need to be uploaded in full; if there is a dissent that needs to be uploaded too. It is unfortunate because a dissent not being recorded is an issue that sets back whatever progress the collegium purportedly made until now.

Collegium Dissents and the Need for Transparency

When two judges of the collegium oppose a proposal for elevation or re‑elevation, it is customary — and it has also been laid down by the Supreme Court in the Judges’ Cases — that the Chief Justice should not press for that appointment. In the present matter, going by reports, since it was only Justice B.V. Nagarathna who dissented, the recommendation was proceeded with.

There is no inherent problem in a rule being followed. The debate about whether such a rule is unfair or unjustified is a separate question. But if a rule is being followed, there must be transparency in its making, its mechanisms, and its application. If the practice is that a 4:1 majority carries the day, then the workings of that practice must be clear: who formed the majority, who dissented, and what reasons were recorded for the dissent. There could be ten things which tell an observer of Indian polity as to why appointment of certain judge is driven by executive zeal rather than judicial independence. It is expected of the executive to push for its agenda, but it is the imperative of the judiciary to withstand these attempts and stand tall upholding fairness and integrity, consistently.

Without a minimum level of disclosure, the most important thing a collegium requires — support of the public — steadily erodes. Public confidence is built not by secrecy, but by showing that rules are real, consistently applied, and open to scrutiny. And moreover, unlike the executive which, despite being popular, maintains its dominance by use of force, propaganda—the judiciary’s strength comes from the trust of a billion people. Omissions or actions that could result in the erosion of this trust from the people is concerning for all those who look at judiciary with hope.

This is not to throw mud at Justice Pancholi or any other Supreme Court judge. Imagine if the dissent was on the basis that there is no women representation in the Supreme Court and Justice B.V. Nagarathna batted for it and therefore dissented an elevation of someone 57^th on the seniority list. That would not make such dissent any less important. The resolutions of the collegium and the necessity for it to function transparently and fairly is not about the individual judges that constitute it or the judges it appoints. The question of whether it would be fair to judges if such dissent notes are made public or not, or whether collegium should appear to be broken or not are immaterial in the face of immense public interest that runs with the principle of transparency to which collegium should not be an exception.

What is to be done then?

The larger question raised by this report is not simply about one appointment, but about the collegium itself. If dissents exist, why do we not have a consistent way of recording and publishing them? Why should the style and detail of collegium resolutions change with every Chief Justice?

There is a straightforward solution. The next seven Chief Justices of the Supreme Court are already part of the Court today, if the convention of seniority is followed. The Supreme Court can come out with a comprehensive format of the resolution, frame rules for the format and mechanism of Collegium resolutions and follow them. This regime can be supported by the existing judges of the Supreme Court along with the future Chief Justices. Once that format is agreed upon, it should be binding not only on the present collegium but also on the successive Chief Justices and collegiums who will assume office in the coming years. In effect, the institution would set rules for itself — rules that endure beyond the preferences of a single Chief Justice.

Such a mechanism would bring predictability and credibility. It would ensure that future resolutions, whether on appointments or transfers, follow a consistent template, and that dissents are neither invisible nor dependent on the inclination of the Chief Justice of the day. This is not outside the scope of the Supreme Court. It is entirely possible — and necessary — for them to agree on a self-binding practice that strengthens the collegium’s transparency and stability.

The call for a uniform, enduring format for collegium resolutions is not merely a procedural plea but a constitutional necessity. As Montesquieu warned in The Spirit of Laws, “power ought to be a check to power”; opacity in judicial appointments allows concentrated discretion to escape that check. Immanuel Kant’s categorical imperative would similarly demand that if transparency is a duty for one Chief Justice, it must be a duty for all — for justice is not episodic, it is systemic. The worth of an institution is measured by whether it pursues legitimacy or merely convenience. To neglect to record dissents is to betray the very spirit of law. The time has come, therefore, for the Supreme Court to rise above personalities and preferences and to bind itself in a framework of reasoned, transparent, and consistent resolutions. Anything less is an abdication of the Court’s moral authority to demand accountability from every other institution of the Republic.

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

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Collegium System is Law of the Land, Must Be Followed: Supreme Court to Centre

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The post A Proposal on Collegium Resolutions: Towards a single comprehensive format appeared first on SabrangIndia.

The nation’s legal system appears to have developed a dangerously bifurcated approach to speech offenses. On one hand, courts have forged a robust shield for expression prosecuted under the general penal law, demanding direct and imminent incitement to violence before speech can be criminalized. On the other hand, a parallel and far more restrictive regime has emerged through the executive’s increasing reliance on special security laws, particularly the Unlawful Activities (Prevention) Act, 1967 (UAPA). The application of UAPA in cases rooted in speech and protest effectively neutralizes these hard-won constitutional safeguards. This analysis will explore this dichotomy, tracing the evolution of free speech doctrine and its contemporary application and circumvention.

The Doctrine in action –Farooq Ahmad v. State of Himachal Pradesh

The bail order in the Farooq Ahmad case is a textbook example of the judiciary applying established free speech principles to check executive overreach under the general penal code.

Facts and judicial reasoning

The case against Farooq Ahmad began after a complaint that he had shared videos on his Facebook account that were deemed “anti-Nation, anti-Army, anti-Hindu and anti-Prime Minister” and had hurt the feelings of common people. He was subsequently arrested and charged under Sections 152, 196, and 197 of the Bharatiya Nyaya Sanhita (BNS), which correspond to the former Indian Penal Code (IPC) sections for sedition and promoting enmity between groups.

In deciding the bail petition, Justice Rakesh Kainthla of the Himachal Pradesh High Court undertook a careful application of established legal doctrines. The judgment extensively cites and relies on the very precedents that form the judicial shield for free speech. The court invoked Vinod Dua v. Union of India [2021 SCC Online SC 414] to reiterate the principle that sedition (now Act endangering sovereignty, unity and integrity of India-Section 152 BNS) applies only to activities intended to create disorder through violence.

The court also applied the tests for promoting enmity between groups (Section 196 BNS) as laid down in cases like Balwant Singh v. State of Punjab [1995 (3) SCC 709] and Manzar Sayeed Khan v. State of Maharashtra [2007 (2) SCC (CRI) 417]. It reaffirmed that mens rea, or the criminal intent to cause disorder and incite violence, is an essential condition of the offense. The court searched for a direct link between the shared content and any resulting violence. After the videos were played in court, the judge made a critical distinction that lies at the heart of modern free speech jurisprudence. The order states, “They may be in bad taste, but they do not tend to incite any person to violence or create disturbance in public peace. Hence, prima facie, the applicability of Sections 152 and 196 of BNS is highly doubtful.” This finding demonstrates a clear refusal to conflate offensive speech with criminal incitement. Finding no “spark in a powder keg,” the court granted bail, thereby upholding the constitutional mandate.

The Judicial shield – Forging the line between speech and incitement

The principles applied in the Farooq Ahmad case were not created in a vacuum. They are the product of a decades-long judicial effort to interpret and fortify the constitutional guarantee of free speech against legislative and executive encroachment.

Constitutional foundation and doctrinal evolution

The foundation of this right is Article 19(1)(a) of the Constitution, which guarantees all citizens the “freedom of speech and expression”. This right, however, is not absolute. Article 19(2) allows the state to impose “reasonable restrictions” on specified grounds, including “public order,” “decency or morality,” and “incitement to an offence”. The term “public order” was added via the First Amendment in 1951 after early Supreme Court judgments interpreted the original, narrower grounds strictly, thereby limiting the state’s power to curb speech.

The judiciary’s most significant contribution has been to define the line where speech crosses from being merely critical or offensive to criminally punishable. This evolution occurred over two landmark cases:

1. Kedar Nath Singh v. State of Bihar [1962 SCR Supl. (2) 769]: Tasked with deciding the constitutional validity of the colonial-era sedition law (Section 124A IPC), the Supreme Court chose to uphold the law but severely narrowed its scope. The Court ruled that for speech to be seditious, it must have a “pernicious tendency or intention of creating public disorder or disturbance of law and order” by resorting to or inciting violence. This was a crucial step, shifting the focus from the disloyalty of the words to their tangible effect on public order.

2. Rangarajan v. P. Jagjivan Ram [1989 SCC (2) 574]: This case, concerning the censorship of a film critical of caste-based reservations, further refined the test. The Supreme Court rejected the heckler’s veto—the idea that speech can be suppressed because some people might react violently. More importantly, it tightened the standard from a vague tendency to a requirement of immediacy. The Court famously held that the connection between speech and the anticipated disorder must not be “remote, conjectural or far-fetched”. The expression must be “inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg'”.

This “spark in a powder keg” doctrine became the high wall protecting free speech under the IPC/BNS framework. It demands that the state prove a direct and imminent link to violence, making it difficult to lawfully prosecute dissent, criticism, or offensive speech.

3. The UAPA veil – When process becomes punishment

While the Rangarajan doctrine provides strong protection under general law, its principles are often rendered irrelevant when the state invokes special legislation like the UAPA. This creates a system where an individual’s liberty depends not on the nature of their speech, but on the statute used to prosecute them.

The 2021 bail order in the case of climate activist Disha Ravi illustrates the doctrine working as intended. Arrested for editing and sharing a “toolkit” in support of the farmers’ protests, she was charged with sedition under the IPC. The sessions judge, granting her bail, found that the toolkit contained no call for violence and famously observed that “citizens are conscience keepers of the government” and cannot be jailed simply for disagreeing with state policies. The court looked for the “spark” and, finding none, upheld her liberty.

In stark contrast is the case of activist Umar Khalid, arrested in connection with the 2020 Delhi Riots. Instead of just IPC charges, he was booked under the UAPA for being part of an alleged conspiracy. This strategic choice of statute fundamentally altered the legal landscape for him. His speeches were not tested against the Rangarajan standard of imminent incitement; instead, they were framed as part of a “terrorist act” conspiracy. The most critical consequence of invoking UAPA is its stringent bail provision, Section 43D(5). This clause states that bail shall not be granted if the court believes the accusation is “prima facie true” based on the police charge sheet. The Supreme Court’s 2019 judgment in NIA v. Watali [2019 (2) SCC (CRI) 383] interpreted this to mean that courts cannot conduct a detailed analysis of the evidence or its merits at the bail stage. If the police version of events appears true on its face, bail must be denied. Although later judgments of the Supreme Court in cases such as Union of India v. KA Najeeb [2021 (2) SCC 202] held that ‘gross delay’ in trial violates the right to life and personal liberty under Article 21 by deviating from the Watali judgement, Umar Khalid continues to languish in jail without a trial.

However, Umar Khalid’s case showed that bail is not the whole rule anymore when special security laws are invoked and it has meant over four years of pre-trial detention for him. His bail pleas have been rejected, with courts feeling constrained by the Watali precedent and the “prima facie true” test. The process itself—prolonged incarceration without trial—becomes the punishment, creating a chilling effect on free expression that the carefully constructed doctrines of Kedar Nath and Rangarajan were meant to prevent.

Conclusion

The Indian legal system currently operates with two different sets of rules for speech. A rights-protective regime, exemplified by the Farooq Ahmad and Disha Ravi bail orders, governs offenses under the general penal code. It demands a high, specific standard of imminent incitement to violence. Alongside it exists a liberty-denying regime under the UAPA, which allows the state to bypass these constitutional safeguards through procedural means, leading to punitive pre-trial detention, as seen in the case of Umar Khalid.

This schism poses a serious threat to democratic freedoms. The fear of being ensnared in the UAPA’s procedural web is a powerful deterrent to dissent. The judgment in Farooq Ahmad is a welcome reminder of the judiciary’s role as a guardian of constitutional liberties. It underscores the importance of applying the “spark in a powder keg” test rigorously, ensuring that the state cannot criminalize speech that is merely unpopular, critical, or in “bad taste.” Upholding this distinction is essential to preserving the space for open debate and dissent that defines a healthy democracy.

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

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The post Free speech, even in bad taste, is protected if no incitement to violence: HP HC appeared first on SabrangIndia.

This analysis examines both facets of this pivotal judgment.

A case of investigative failure

The case was brought up by Sukdeb Saha after his 17-year-old daughter, Ms. X, died after a fall from her hostel building in Vishakhapatnam, where she was enrolled in a coaching institute. The appellant’s plea to the Supreme Court was precipitated by a series of glaring deficiencies and contradictions in the local police investigation, which led him to lose faith in the state machinery and seek a transfer of the case to the Central Bureau of Investigation (CBI).

The Court documented the investigative lapses, which collectively painted a picture of an inquiry that was, at best, ineffective and, at worst, designed to obscure the truth. Key failures identified by the Court included:

1. The unsubstantiated suicide theory: The police hastily concluded the death was a suicide without a suicide note, psychological history, or corroborating witness statements, a conclusion the Court deemed a “post-facto justification.”
2. Contradictory CCTV evidence: Footage showed a discrepancy in the clothing of the girl seen going to the terrace and the victim found on the ground, a contradiction the police made no effort to reconcile.
3. Misrepresentation of medical state: The police and hospital claimed the victim was unconscious upon admission, but an AIIMS medical board report and eyewitness accounts confirmed she was conscious and responsive, indicating a missed opportunity to record her statement.
4. Conflict of interest: A single medical officer served as the autopsy surgeon, the chemical analyst, and a member of the internal inquiry committee, an “egregious conflict of interest” that compromised the investigation’s integrity.
5. Destruction of forensic evidence: The victim’s viscera were prematurely destroyed by the forensic lab before a court-mandated DNA comparison could be completed, an act that “irrevocably compromised the proceedings.”
6. Withholding key reports: The authorities failed to produce the Chemical Analysis Report and the final opinion on the cause of death, documents of “foundational evidentiary value.”

Based on this litany of failures, the Court concluded that the case met the “compelling necessity” standard required for transferring an investigation. It held that a CBI probe was essential to ensure impartiality, restore public confidence, and deliver justice to the bereaved family.

1.      The Sukdeb Saha Guidelines for Student Well-being

The judgment’s second, and more far-reaching, part transitions from the specific case to the systemic issue of student mental health. The Court framed the rising number of student suicides—over 13,000 in 2022 according to NCRB data—as a “deepening crisis” and a “systemic failure” of an education system that prioritizes relentless competition over holistic well-being.

Drawing a parallel to its intervention in Vishaka v. State of Rajasthan[(1997) 6 SCC 241], where it filled a legislative vacuum on workplace sexual harassment, the Court invoked its powers under Article 141 of the Constitution to issue binding interim guidelines. It grounded these guidelines in the constitutional “Right to Mental Health” as an integral part of the Right to Life under Article 21, as well as India’s international law obligations.

The following 15 guidelines were issued, establishing a preventive and supportive framework applicable to all educational institutions across India until a formal legislative framework is enacted.

The Guidelines

The following are the exhaustive guidelines as laid down by the Supreme Court in the judgment:

1. All educational institutions shall adopt and implement a uniform mental health policy, drawing cues from the UMMEED [Understand, Motivate, Manage, Empathise, Empower, Develop] Draft Guidelines, the MANODARPAN initiative, and the National Suicide Prevention Strategy. This policy shall be reviewed and updated annually and made publicly accessible on institutional websites and notice boards of the institutes.
2. All educational institutions with 100 or more enrolled students shall appoint/engage at least one qualified counsellor, psychologist, or social worker with demonstrable training in child and adolescent mental health. Institutions with fewer students shall establish formal referral linkages with external mental health professionals.

III. All educational institutions shall ensure optimal student-to-counsellor ratios. Dedicated mentors or counsellors shall be assigned to smaller batches of students, especially during examination periods and academic transitions, to provide consistent, informal, and confidential support.

1. All educational institutions, more particularly the coaching institutes/centres, shall, as far as possible, refrain from engaging in batch segregation based on academic performance, public shaming, or assignment of academic targets disproportionate to students’ capacities.
2. All educational institutions shall establish written protocols for immediate referral to mental health services, local hospitals, and suicide prevention helplines. Suicide helpline numbers, including Tele-MANAS and other national services, shall be prominently displayed in hostels, classrooms, common areas, and on websites in large and legible print.
3. All teaching and non-teaching staff shall undergo mandatory training at least twice a year, conducted by certified mental health professionals, on psychological first-aid, identification of warning signs, response to self-harm, and referral mechanisms.

VII. All educational institutions shall ensure that all teaching, non-teaching, and administrative staff are adequately trained to engage with students from vulnerable and marginalised backgrounds in a sensitive, inclusive, and non-discriminatory manner. This shall include, but not be limited to, students belonging to Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), Economically Weaker Sections (EWS), LGBTQ+ communities, students with disabilities, those in out-of-home care, and students affected by bereavement, trauma, or prior suicide attempts, or intersecting form of marginalisation.

VIII. All educational institutions shall establish robust, confidential, and accessible mechanisms for the reporting, redressal, and prevention of incidents involving sexual assault, harassment, ragging, and bullying on the basis of caste, class, gender, sexual orientation, disability, religion, or ethnicity. Every such institution shall constitute an internal committee or designated authority empowered to take immediate action on complaints and provide psycho-social support to victims. Institutions shall also maintain zero tolerance for retaliatory actions against complainants or whistle-blowers. In all such cases, immediate referral to trained mental health professionals must be ensured, and the student’s safety, physical and psychological, shall be prioritised. Failure to take timely or adequate action in such cases, especially where such neglect contributes to a student’s self-harm or suicide, shall be treated as institutional culpability, making the administration liable to regulatory and legal consequences.

1. All educational Institutions shall regularly organise sensitisation programmes (physical and/or online) for parents and guardians on student mental health. It shall be the duty of the institution to sensitise the parents and guardians to avoid placing undue academic pressure, to recognise signs of psychological distress, and to respond empathetically and supportively. Further, mental health literacy, emotional regulation, life skills education, and awareness of institutional support services shall be integrated into student orientation programmes and co-curricular activities.
2. All educational institutions shall maintain anonymised records and prepare an annual report indicating the number of wellness interventions, student referrals, training sessions, and mental health-related activities. This report shall be submitted to the relevant regulatory authority, which may be the State Education Department, University Grants Commission (UGC), All India Council for Technical Education (AICTE), Central Board of Secondary Education (CBSE), or as otherwise indicated.
3. All educational institutions shall prioritise extracurricular activities, including sports, arts, and personality development initiatives. Examination patterns shall be periodically reviewed to reduce academic burden and to cultivate a broader sense of identity among students beyond test scores and ranks.

XII. All educational institutions, including coaching centres and training institutes, shall provide regular, structured career counselling services for students and their parents or guardians. These sessions shall be conducted by qualified counsellors and shall aim to reduce unrealistic academic pressure, promote awareness of diverse academic and professional pathways, and assist students in making informed and interest-based career decisions. Institutions shall ensure that such counselling is inclusive, sensitive to socio-economic and psychological contexts, and does not reinforce narrow definitions of merit or success.

XIII. All residential-based educational institutions, including hostel owners, wardens and caretakers, shall take proactive steps to ensure that campuses remain free from harassment, bullying, drugs, and other harmful substances, thereby ensuring a safe and healthy living and learning environment for all students.

XIV. All residential-based institutions shall install tamper-proof ceiling fans or equivalent safety devices, and shall restrict access to rooftops, balconies, and other high-risk areas, in order to deter impulsive acts of self-harm.

1. All coaching hubs, including but not limited to Jaipur, Kota, Sikar, Chennai, Hyderabad, Delhi, Mumbai, and other cities where students migrate in large numbers for competitive examination preparation, shall implement heightened mental health protections and preventive measures. These regions, having witnessed disproportionately high incidents of student suicides, require special attention. The concerned authorities, namely, the Department of Education, District Administration, and management of educational institutions, shall ensure the provision of regular career counselling for students and parents, regulation of academic pressure through structured academic planning, availability of continuous psychological support, and the establishment of institutional mechanisms for monitoring and accountability to safeguard student mental well-being.

2.      Enforcement and accountability

To ensure these guidelines are not merely advisory, the Court established a robust, time-bound enforcement and accountability mechanism:

1. State-level action: All States and Union Territories were directed to notify rules for the registration and regulation of private coaching centers within two months, incorporating the mental health safeguards.
2. District-level oversight: A District-Level Monitoring Committee, chaired by the District Magistrate/Collector, should be constituted in every district to oversee implementation, conduct inspections, and handle complaints.
3. Central accountability & judicial supervision: The Union of India was directed to file a compliance affidavit within 90 days. The Supreme Court has retained supervisory jurisdiction, listing the matter for a follow-up hearing on October 27, 2025, to review compliance.

In conclusion, the Sukdeb Saha judgment is a powerful judicial intervention that addresses both an individual plea for justice and a national social crisis. It sets a new precedent for holding institutions accountable for the mental well-being of students and provides a comprehensive, actionable framework to foster safer and more supportive educational environments across India. However, whether this will materialise into effective implementation, that too in the face of powerful coaching and education business lobby across India is yet to be seen.

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

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The post How the Supreme Court built a binding legal framework to protect student mental heath appeared first on SabrangIndia.

1. Facts

The matter before the Supreme Court arose from an interim order passed by a Division Bench of the Delhi High Court in an appeal connected to a civil defamation suit. The original suit, CS (OS) No. 524/2024, was filed by ANI Media Private Limited (plaintiff/respondent) against Wikimedia Foundation Inc. (appellant) and others. The plaintiff sought injunctive relief to restrain the publication of allegedly false and defamatory content on Wikipedia, a platform maintained by the appellant Wikipedia, and also sought the removal of existing content.

The chain of events leading to the Supreme Court’s intervention began on August 20, 2024, when a single judge of the High Court, hearing the defamation suit, passed an interim order. This order directed Wikimedia to disclose the subscriber details and IP addresses of certain platform administrators (editors) identified as defendants in the suit. This directive, which aimed to unmask pseudonymous online contributors, became a point of public discussion.

Following this order, on September 17, 2024, an opinion piece was published in the Indian Express newspaper and subsequently hosted on a Wikimedia platform. The article, titled “why the case against Wikipedia in India is a challenge to freedom of speech and information,” was critical of the court’s directive to disclose editor details. It argued that such an order could chill free expression and set a dangerous precedent. On October 10, 2024, the news agency Medianama published a video that further analysed the case, discussing its potential implications for safe harbour protections for intermediaries in India.

Wikimedia appealed the single Judge’s disclosure order. During the appellate hearing before a Division Bench on October 14, 2024, counsel for ANI brought these publications to the court’s attention, arguing they were intended to “pressurise the learned Single Judge.” The situation was further compounded on the same day by the creation of a “talk page” on Wikimedia’s platform, a standard feature for discussing edits, which in this instance was used for public discussion of the ongoing court proceedings.

Two days later, on October 16, 2024, the Division Bench passed the impugned order. The Bench formed a prima facie view that the commentary constituted “interference in Court proceedings” and that the principle of sub-judice had been “violated with impunity.” The Bench noted that its own observations from the previous hearing had been “‘opened up for discussion’ on Wikimedia Foundation Inc. website which, according to us, complicates and compounds the issue at hand.” Concluding that the content “borders on contempt,” the Division Bench issued a direct and non-appealable directive ordering Wikimedia to “take down/delete the said pages and discussion” within 36 hours. It was this takedown order that the appellant challenged before the Supreme Court.

2. Issues

The primary legal and constitutional issues before the Supreme Court were:

1. Whether the High Court’s interim order directing the takedown of online content constituted a legally valid prior restraint on speech, consistent with the requirements of Article 19(2) of the Constitution.
2. Whether the High Court correctly applied the legal principles governing matters that are sub-judice and the law of contempt of court when issuing a mandatory takedown directive.
3. Whether the High Court’s order was a proportionate response to the perceived interference with the administration of justice.

3. Decision

The Supreme Court allowed the appeal and set aside the impugned order of the Delhi High Court dated October 16, 2024. The Court held that the Division Bench had “reacted disproportionately” in issuing the takedown directive. It found the order to be an impermissible prior restraint on speech because it was not supported by adequate reasoning and failed to meet the established constitutional tests for such a restriction. The immediate effect of the judgment was the restoration of the online pages and discussions that had been ordered to be removed.

4. Reasoning of the Court

The Supreme Court’s reasoning was grounded in a detailed analysis of several established legal principles, which it systematically applied to the facts of the case.

• The Test for Prior Restraint: The Court’s analysis began with the appellant’s primary contention that the takedown order was an unconstitutional prior restraint. The Court referred to the definitive test laid down by the Constitution Bench in Sahara India Real Estate Corporation Limited v. SEBI.[1] In that case, the Court held that a court-ordered postponement of publication is a “neutralizing device” to be used only in rare cases. The party seeking such an order must satisfy a stringent two-part test: first, demonstrate a “real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice,” and second, show that “reasonable alternative methods will not prevent the risk.” The Supreme Court found the High Court’s order to be entirely devoid of this essential analysis. It contained no reasoning as to how the online commentary, which was based on publicly available information, posed a real and substantial risk to proceedings being conducted by a professional judge, who is trained and presumed to be immune to media pressure. The High Court had not articulated what specific prejudice would be caused or why less intrusive measures would be insufficient.
• The Principle of Open Justice: The Court emphasized that open justice is a foundational constitutional value, not merely a procedural formality. It drew upon the nine-Judge Bench decision in Naresh Shridhar Mirajkar v. State of Maharashtra, which had observed that a “public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice.”[2] The Court powerfully reiterated this by stating that a “trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public.” This principle was further reinforced by citing Swapnil Tripathi v. Supreme Court of India, which laid down clear guidelines to regulate the live streaming and enabled people’s right to access justice under Article 21.[3] The Court framed public scrutiny not as a threat, but as an essential safeguard for the institution itself, quoting Jeremy Bentham’s observation that publicity “keeps the Judge himself, while trying, under trial.”
• The Law on Contempt of Court: The Court examined the narrow contours of criminal contempt and prescribed the appropriate judicial temperament when faced with criticism. This was a direct response to the High Court’s prima facie finding that the content “borders on contempt.” The Court drew heavily upon the jurisprudential wisdom of Justice V.R. Krishna Iyer’s celebrated opinion in In Re S. Mulgaokar, which advised a “wise economy of use” of the contempt power and cautioned judges against being “hypersensitive.”[4] Justice Iyer’s opinion stressed that judges should “deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude.” The Supreme Court also referred to Lord Denning’s approach, quoting him as saying, “We will never use this jurisdiction as a means to uphold our own dignity… We do not fear… criticism, nor do we resent it.” By invoking these authorities, the Supreme Court indicated that the High Court’s reaction was not in line with the recommended standard of judicial fortitude and restraint.

In summary, the Supreme Court concluded that the High Court’s order was disproportionate because it failed to apply the correct legal test for prior restraint and was inconsistent with the principles of open justice and judicial restraint in contempt matters. The Court also made the general observation that “it is not the duty of the court to tell the media: delete this, take that down,” signalling a clear disapproval of judicial censorship.

5. Conclusion

The Supreme Court’s judgment in Wikimedia v. ANI clarifies and reinforces the high constitutional threshold required for issuing takedown orders or other forms of prior restraint against publications concerning sub-judice matters. The decision serves as a significant precedent, reaffirming that any such restriction on speech must be rigorously justified by demonstrating a “real and substantial risk” of prejudice to the administration of justice, a test that will be difficult to meet in cases involving professional judges.

The ruling underscores the constitutional importance of open justice, framing public discussion of court proceedings not as an obstacle but as a vital component of judicial accountability. It also provides important normative guidance for the judiciary, encouraging an institutional culture of resilience and restraint in the face of public criticism. For media organizations, journalists, legal commentators, and digital platforms, the decision provides a strong precedent to resist takedown orders that are not supported by a detailed, reasoned, and constitutionally compliant analysis.

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

[1] CURATIVE PETITION (C) NO.85 OF 2013 in REVIEW PETITION (C) NO.2332 OF 2012 in CIVIL APPEAL NO.9813 OF 2011

[2] AIR 1967 SUPREME COURT 1

[3] AIR 2019 SC (CIV) 194

[4] 1978 AIR 727

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The post Reaffirming Open Justice: The Supreme Court on speech and contempt appeared first on SabrangIndia.

Telangana’s Economic Engine and the New Rules of Work

At the heart of this policy change lies Hyderabad, the engine of Telangana’s economy. The city’s burgeoning Information Technology (IT), IT-enabled Services (ITeS), and broad commercial sectors are the state’s economic powerhouse, contributing over 65% of its Gross State Value Added (GSVA). With an IT workforce exceeding 900,000 professionals and generating exports second only to Bengaluru, Hyderabad is a globally significant economic hub. It is home to the largest international campuses of tech giants like Microsoft, Amazon, and Google, making the state’s regulatory climate a critical factor in their operational calculus.

It is precisely this workforce that is targeted by the new law, G.O. Rt. No. 282. The order exempts “commercial establishments” from the standard 8-hour workday rule for overtime calculation. Previously, any hour worked beyond eight in a day was compensated at twice the normal rate. The new framework eliminates this daily threshold. Now, an employee can be asked to work 10 hours a day for five days a week at their regular wage, as overtime is only calculated after the 48-hour weekly limit is breached. This represents a fundamental reclassification of what was once premium-paid overtime into standard work, constituting a direct and significant transfer of value from employees to employers. The government’s framing of this as “flexibility” is misleading; it is not flexibility for the worker, but for the corporation, which can now schedule longer days at a lower cost, effectively normalizing a 10-hour workday and facilitating a “crunch culture” where long hours can be demanded to meet project deadlines without the financial disincentive of overtime pay.

The following infographic effectively shows what the change in the law does.

The Myth of Deregulation: Deconstructing “Ease of Doing Business” and FDI

The core justification for this policy—improving Ease of Doing Business to attract FDI—is rooted in a development narrative that has been empirically challenged and officially discredited. This narrative was largely shaped by the World Bank’s annual Doing Business report, a tool that for years pressured developing nations to weaken labour laws. However, in September 2021, the World Bank permanently discontinued the report after investigations revealed data irregularities and ethical breaches, fatally undermining its credibility. Any policy based on climbing the rankings of this defunct report is, therefore, built on a phantom metric.

Even before its cancellation, the report’s “Employing Workers” sub-index was heavily criticised for its inherent anti-worker bias. Its methodology explicitly penalized countries for having robust worker protections, such as setting maximum weekly work hours, establishing a meaningful minimum wage, or requiring notice for dismissal. The index failed to distinguish between the absence of regulation and the presence of efficient, well-designed regulations that foster stability and equity. It promoted a simplistic and ultimately harmful view that labour rights are an impediment to economic growth.

The notion that diluting labour laws is a primary lever for attracting FDI is not supported by the balance of economic evidence. A broad consensus in academic and institutional research points to a different set of factors as the true determinants of investment decisions, especially for the high-value, knowledge-based FDI that a city like Hyderabad aims to attract.

Investors are primarily drawn to large and growing consumer markets where they can sell their goods and services. Availability of Credit has been an important factor impacting ease of doing business, according to recent research. Ease of getting permits has been identified as an important factor in enabling ease of doing business. Reliable transport, consistent energy supply, and high-speed digital communications are non-negotiable prerequisites for modern business operations. Investors require a predictable environment with low political risk and stable economic policies to protect their long-term assets. A transparent, efficient, and predictable legal system for enforcing contracts and protecting property rights is paramount for investor confidence.

When viewed against these factors, labour law flexibility is, at best, a secondary and often statistically insignificant consideration. For labour-intensive, low-skill manufacturing, low wages can be a draw. But for the service and technology sectors that define Hyderabad’s economy, competing on the basis of longer work hours is a strategic mismatch. It is a “race to the bottom” that devalues the city’s core competitive advantage: its vast pool of highly skilled human capital. Weakening worker protections risks alienating this talent, fostering a culture of burnout, and paradoxically making the state less attractive to the very high-value companies it wishes to court.

The Productivity Paradox: Why More Hours Mean Less Output

The most fundamental flaw in the logic of extending work hours is the assumption that more time spent at work equates to more output. A vast body of scientific research from economics, public health, and management studies refutes this, revealing a non-linear and often inverse relationship between long hours and productivity.

Foundational research from Stanford University demonstrated that productivity per hour declines sharply after an employee works more than 50 hours a week. Beyond 55 hours, the drop is so precipitous that the additional time yields almost no discernible benefit. This “productivity cliff” means that a 70-hour workweek accomplishes virtually nothing more than a 55-hour one. The International Labour Organization (ILO) corroborates this, noting that while gross output may rise in the short term, output per hour steadily decreases with excessive working time due to fatigue, which leads to a higher rate of errors, poorer quality work, and an increased risk of accidents.

This is not merely a theoretical concept. Real-world experiments have consistently validated it. When Microsoft Japan trialed a four-day workweek, it saw a 40% surge in productivity. An extensive trial in Iceland involving shorter workweeks resulted in improved employee well-being alongside equal or even higher levels of output. Historically, Henry Ford’s pioneering decision to reduce the workday to eight hours famously led to a spike in productivity, as rested, motivated workers proved far more efficient.

Beyond the economic inefficiency, policies that encourage overwork are a significant public health concern. A landmark study by the World Health Organization (WHO) and the ILO established that working 55 or more hours per week is a serious health hazard, leading to a 35% higher risk of stroke and a 17% higher risk of dying from heart disease. The report attributed over 745,000 deaths in a single year to the effects of long working hours, framing it as a major occupational risk factor. The health consequences—including hypertension, diabetes, chronic fatigue, anxiety, and depression—translate directly into tangible business costs through higher rates of absenteeism, employee burnout, and increased turnover of skilled professionals.

A Normative Framework for Progress: Working Smarter, Not Longer

The Telangana government’s decision represents a choice between two competing visions of development. The first, embodied by the new amendment, views labour as a cost to be minimized. The second, grounded in evidence, views human capital as the primary engine of sustainable growth. The latter path is not only more equitable but also more effective for achieving long-term prosperity.

The alternative to a low-road strategy of extending hours is a high-road strategy of enhancing the value and productivity of each hour worked. This “Productivity-Welfare Flywheel” creates a virtuous cycle of growth. It begins with investments in technology, automation, and modern management practices that allow employees to work smarter, not longer. This includes streamlining processes, automating routine tasks, and fostering a results-oriented culture that measures value created, not hours logged.

When productivity per hour increases, it allows for better wages and improved work-life balance. This, in turn, enhances worker well-being. Well-rested, motivated, and healthy employees are more creative, make fewer errors, and are more loyal to their employers. This high-productivity, high-welfare environment becomes a powerful magnet for the highest-value FDI and the most sought-after global talent, spinning the flywheel faster and moving the economy up the value chain.

The role of government in this model is not to engage in a deregulatory race to the bottom but to act as a steward of a high-productivity ecosystem. This means investing in infrastructure, education, and R&D, and maintaining fair and stable regulatory frameworks. Corporate responsibility, in turn, extends beyond mere compliance to actively investing in the tools, training, and culture that enhance both productivity and well-being.

In conclusion, Telangana’s decision to extend working hours is a regressive step based on a flawed and outdated economic ideology. It misinterprets the true drivers of foreign investment, ignores the scientific consensus on productivity, and jeopardizes the health and well-being of its workforce. By treating the 8-hour day not as a fundamental right but as a bureaucratic hurdle, the policy threatens to erode the very human capital that has made Hyderabad a global success story. A truly competitive and prosperous future for states lie not in working longer, but in working smarter. It lies in rejecting the false trade-off between worker rights and economic growth and embracing a synergistic model where investing in people is understood as the surest path to lasting productivity and shared prosperity.

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

Related:

Beyond the Clock: Deconstructing Telangana’s Labour Law Reform and the Flawed Pursuit of Investment

ILO raises deep concern over recent trend of labour law reforms, asks PM to engage with states

New Trade Union Initiative (NTUI) demands that governments retract changes in labour laws

Battle against dilution of labour laws to culminate in Supreme Court?

The post Beyond the Clock: Deconstructing Telangana’s Labour Law Reform and the Flawed Pursuit of Investment appeared first on SabrangIndia.

Telangana’s Economic Engine and the New Rules of Work

At the heart of this policy change lies Hyderabad, the engine of Telangana’s economy. The city’s burgeoning Information Technology (IT), IT-enabled Services (ITeS), and broad commercial sectors are the state’s economic powerhouse, contributing over 65% of its Gross State Value Added (GSVA). With an IT workforce exceeding 900,000 professionals and generating exports second only to Bengaluru, Hyderabad is a globally significant economic hub. It is home to the largest international campuses of tech giants like Microsoft, Amazon, and Google, making the state’s regulatory climate a critical factor in their operational calculus.

It is precisely this workforce that is targeted by the new law, G.O. Rt. No. 282. The order exempts “commercial establishments” from the standard 8-hour workday rule for overtime calculation. Previously, any hour worked beyond eight in a day was compensated at twice the normal rate. The new framework eliminates this daily threshold. Now, an employee can be asked to work 10 hours a day for five days a week at their regular wage, as overtime is only calculated after the 48-hour weekly limit is breached. This represents a fundamental reclassification of what was once premium-paid overtime into standard work, constituting a direct and significant transfer of value from employees to employers. The government’s framing of this as “flexibility” is misleading; it is not flexibility for the worker, but for the corporation, which can now schedule longer days at a lower cost, effectively normalizing a 10-hour workday and facilitating a “crunch culture” where long hours can be demanded to meet project deadlines without the financial disincentive of overtime pay.

The following infographic effectively shows what the change in the law does.

The Myth of Deregulation: Deconstructing “Ease of Doing Business” and FDI

The core justification for this policy—improving Ease of Doing Business to attract FDI—is rooted in a development narrative that has been empirically challenged and officially discredited. This narrative was largely shaped by the World Bank’s annual Doing Business report, a tool that for years pressured developing nations to weaken labour laws. However, in September 2021, the World Bank permanently discontinued the report after investigations revealed data irregularities and ethical breaches, fatally undermining its credibility. Any policy based on climbing the rankings of this defunct report is, therefore, built on a phantom metric.

Even before its cancellation, the report’s “Employing Workers” sub-index was heavily criticised for its inherent anti-worker bias. Its methodology explicitly penalized countries for having robust worker protections, such as setting maximum weekly work hours, establishing a meaningful minimum wage, or requiring notice for dismissal. The index failed to distinguish between the absence of regulation and the presence of efficient, well-designed regulations that foster stability and equity. It promoted a simplistic and ultimately harmful view that labour rights are an impediment to economic growth.

The notion that diluting labour laws is a primary lever for attracting FDI is not supported by the balance of economic evidence. A broad consensus in academic and institutional research points to a different set of factors as the true determinants of investment decisions, especially for the high-value, knowledge-based FDI that a city like Hyderabad aims to attract.

Investors are primarily drawn to large and growing consumer markets where they can sell their goods and services. Availability of Credit has been an important factor impacting ease of doing business, according to recent research. Ease of getting permits has been identified as an important factor in enabling ease of doing business. Reliable transport, consistent energy supply, and high-speed digital communications are non-negotiable prerequisites for modern business operations. Investors require a predictable environment with low political risk and stable economic policies to protect their long-term assets. A transparent, efficient, and predictable legal system for enforcing contracts and protecting property rights is paramount for investor confidence.

When viewed against these factors, labour law flexibility is, at best, a secondary and often statistically insignificant consideration. For labour-intensive, low-skill manufacturing, low wages can be a draw. But for the service and technology sectors that define Hyderabad’s economy, competing on the basis of longer work hours is a strategic mismatch. It is a “race to the bottom” that devalues the city’s core competitive advantage: its vast pool of highly skilled human capital. Weakening worker protections risks alienating this talent, fostering a culture of burnout, and paradoxically making the state less attractive to the very high-value companies it wishes to court.

The Productivity Paradox: Why More Hours Mean Less Output

The most fundamental flaw in the logic of extending work hours is the assumption that more time spent at work equates to more output. A vast body of scientific research from economics, public health, and management studies refutes this, revealing a non-linear and often inverse relationship between long hours and productivity.

Foundational research from Stanford University demonstrated that productivity per hour declines sharply after an employee works more than 50 hours a week. Beyond 55 hours, the drop is so precipitous that the additional time yields almost no discernible benefit. This “productivity cliff” means that a 70-hour workweek accomplishes virtually nothing more than a 55-hour one. The International Labour Organization (ILO) corroborates this, noting that while gross output may rise in the short term, output per hour steadily decreases with excessive working time due to fatigue, which leads to a higher rate of errors, poorer quality work, and an increased risk of accidents.

This is not merely a theoretical concept. Real-world experiments have consistently validated it. When Microsoft Japan trialed a four-day workweek, it saw a 40% surge in productivity. An extensive trial in Iceland involving shorter workweeks resulted in improved employee well-being alongside equal or even higher levels of output. Historically, Henry Ford’s pioneering decision to reduce the workday to eight hours famously led to a spike in productivity, as rested, motivated workers proved far more efficient.

Beyond the economic inefficiency, policies that encourage overwork are a significant public health concern. A landmark study by the World Health Organization (WHO) and the ILO established that working 55 or more hours per week is a serious health hazard, leading to a 35% higher risk of stroke and a 17% higher risk of dying from heart disease. The report attributed over 745,000 deaths in a single year to the effects of long working hours, framing it as a major occupational risk factor. The health consequences—including hypertension, diabetes, chronic fatigue, anxiety, and depression—translate directly into tangible business costs through higher rates of absenteeism, employee burnout, and increased turnover of skilled professionals.

A Normative Framework for Progress: Working Smarter, Not Longer

The Telangana government’s decision represents a choice between two competing visions of development. The first, embodied by the new amendment, views labour as a cost to be minimized. The second, grounded in evidence, views human capital as the primary engine of sustainable growth. The latter path is not only more equitable but also more effective for achieving long-term prosperity.

The alternative to a low-road strategy of extending hours is a high-road strategy of enhancing the value and productivity of each hour worked. This “Productivity-Welfare Flywheel” creates a virtuous cycle of growth. It begins with investments in technology, automation, and modern management practices that allow employees to work smarter, not longer. This includes streamlining processes, automating routine tasks, and fostering a results-oriented culture that measures value created, not hours logged.

When productivity per hour increases, it allows for better wages and improved work-life balance. This, in turn, enhances worker well-being. Well-rested, motivated, and healthy employees are more creative, make fewer errors, and are more loyal to their employers. This high-productivity, high-welfare environment becomes a powerful magnet for the highest-value FDI and the most sought-after global talent, spinning the flywheel faster and moving the economy up the value chain.

The role of government in this model is not to engage in a deregulatory race to the bottom but to act as a steward of a high-productivity ecosystem. This means investing in infrastructure, education, and R&D, and maintaining fair and stable regulatory frameworks. Corporate responsibility, in turn, extends beyond mere compliance to actively investing in the tools, training, and culture that enhance both productivity and well-being.

In conclusion, Telangana’s decision to extend working hours is a regressive step based on a flawed and outdated economic ideology. It misinterprets the true drivers of foreign investment, ignores the scientific consensus on productivity, and jeopardizes the health and well-being of its workforce. By treating the 8-hour day not as a fundamental right but as a bureaucratic hurdle, the policy threatens to erode the very human capital that has made Hyderabad a global success story. A truly competitive and prosperous future for states lie not in working longer, but in working smarter. It lies in rejecting the false trade-off between worker rights and economic growth and embracing a synergistic model where investing in people is understood as the surest path to lasting productivity and shared prosperity.

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

Related:

ILO raises deep concern over recent trend of labour law reforms, asks PM to engage with states

New Trade Union Initiative (NTUI) demands that governments retract changes in labour laws

Battle against dilution of labour laws to culminate in Supreme Court?

The post Beyond the Clock: Deconstructing Telangana’s Labour Law Reform and the Flawed Pursuit of Investment appeared first on SabrangIndia.