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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Turning point for spyware accountability?

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

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

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

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

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

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

The Indian Connection: Pegasus shadows loom large over democracy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

Related:

Pegasus case: SC appointed Committee says GoI not cooperating

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

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

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

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

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

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

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

What is the 1950 Presidential Order?

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

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

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

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

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

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

The 1950 Order: A discriminatory relic?

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

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

Judgement not a deviation but a rule

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

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

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

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

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

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

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

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

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

The Issue with this judicial approach

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

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

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

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

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

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

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

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

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

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

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

[2] Para 17, AIR 1952 MADRAS 474

[3] Page 12, AIR 1969 SUPREME COURT 101

[4] Ibid page 14.

[5] Page 6, AIR 1976 SUPREME COURT 1904

[6] Page 14, AIR 1984 SUPREME COURT 600

[7] Ibid

[8] Para 12, 2024 INSC 920

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

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

[11] Ibid p.75

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

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

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

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

Brief facts

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

Charges and initial convictions

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

High Court’s decision on appeals

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

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

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

The Court on consent and sexual history

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

The judgment stated

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

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

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

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

Related:

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

How Justice C Harishankar, in upholding the exception to marital rape, delivered a reasoning fir for the dark ages

A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post Rape is aggression, domination, consent must be instant specific, not dictated by morality tests: Bombay High Court appeared first on SabrangIndia.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The post Treading Carefully: Illusion of Accountability in an age of social media content creation appeared first on SabrangIndia.

The BJP’s reaction, though seemingly focused on the Tamil Nadu vs. Governor judgement, seemed excessive in relation to the judgment itself. While the ruling does hold weight in political terms, it does not seem to warrant the level of aggression directed at the judiciary. There are numerous options to deal with the restrictions the judgement imposes on BJP’s agenda like a review or adjustments could be pursued without needing to escalate tensions with the Court in such a dramatic manner. This suggests that the real concern is not just about the Governor’s judgment but rather about broader fears over the judiciary’s increasing influence in matters closely tied to the BJP’s ideological agenda.

When viewed alongside the ongoing challenge to the 2025 Waqf Amendment, however, the intensity of the response becomes clearer. The Waqf issue is far more central to the BJP’s ideological vision, and any judicial involvement in the matter feels far more significant to the party. In this context, the backlash against the Supreme Court over the Governor case can be seen less as a reaction to that judgment alone and more as part of a broader effort to signal the BJP’s discomfort with judicial interventions in areas it views as essential to its agenda.

To fully understand this dynamic, it’s essential to also look at the history of the Waqf Act, 1995 particularly the 2013 amendment, shaped by the Sachar Committee Report and the 2008 Joint Parliamentary Committee Report. This article will explore the context of that amendment, its shortcomings and later discuss what prompts these kinds of changes in the legal regime by majoritarian governments. A detailed look examination of the 2024/25 Amendment can be read here.

The Sachar Committee Report: Unveiling disparities and untapped potential

Commissioned by Prime Minister Manmohan Singh’s government in March 2005, the seven-member High Level Committee, chaired by Justice Rajindar Sachar, was tasked with preparing a comprehensive report on the social, economic, and educational status of the Muslim community in India. Submitted in November 2006 and tabled in Parliament shortly after, the Sachar Committee Report became a landmark document, providing stark evidence of the developmental deficits faced by Indian Muslims relative to national averages.

The Committee recommended targeted programs for skill development, credit access, and market support, particularly in backward districts and clusters where Muslim artisans were concentrated.

Crucially, the Sachar Report shone a spotlight on Waqf properties as a vast, yet profoundly underutilised, resource for potential community development. It identified over 4.9 lakh registered Waqf properties across India, encompassing an estimated 6 lakh acres of land.^[1] While the book value was pegged at Rs. 6,000 crores, the Committee estimated the market value to be significantly higher, potentially around Rs. 1.2 lakh crores (in 2006). Despite this immense asset base, the annual income generated was a mere Rs. 163 crores, representing a paltry 2.7% return on the decades-old book value. The report contrasted this with the potential for generating at least Rs. 12,000 crores annually (a 10% return on estimated market value) if the properties were managed efficiently and put to marketable use.

The Committee implicitly and explicitly pointed towards significant mismanagement, widespread encroachment (including alleged unauthorised occupation by government agencies), and administrative inefficiencies as key reasons for this underperformance.^[2] It recommended strengthening Waqf administration, applying laws like the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to remove encroachments, recovering rent arrears at market rates, and potentially exempting Waqf properties from certain restrictive laws (like Rent Control Acts) to unlock their potential.^[3] The Sachar Report thus framed Waqf not just as a matter of religious endowment management but as a critical potential resource for addressing the very socio-economic backwardness it had documented, creating a strong impetus for reform.

The Waqf (Amendment) Act, 2013 v/s The Waqf Act, 1995: A comparative overview

A Joint Parliamentary Committee on Waqf was constituted on 2nd January 2006 by the Rajya Sabha Chairman in consultation with the Lok Sabha Speaker to assess the Waqf Act’s implementation, to suggest amendments for retrieving encroached properties, and improve the functioning of the Central Waqf Council and State Waqf Boards.

The report of the Joint Parliamentary Committee on Waqf on Amendments to the Waqf Act, 1995 presented on March 4, 2008 suggested changes to make the 1995 Act more effective, particularly in achieving the retrieval of encroached Waqf properties. This Joint Parliamentary Committee (JPC), formed in 2006, analysed numerous suggestions and proposed substantial amendments.

Key recommendations focused on tightening the Act’s framework:

• Adding clear definitions for ‘Encroacher’ and ‘Waqf Premises’;
• Mandating faster (within one year) and more frequent (every 10 years) state-funded surveys of Waqf properties, including those existing since 1947, and giving these surveys legal weight in revenue records.
• Strengthening Waqf Tribunals by expanding their composition (including a judicial chair, a civil servant, and a Muslim law expert), granting them exclusive jurisdiction over Waqf cases, and setting time limits for decisions.
• Enhancing the Central Waqf Council’s advisory role and potentially transforming it into a commission with supervisory powers.
• Restructuring State Waqf Boards with elected and nominated members and defining procedures for removing the Chairman.
• Specifying qualifications for the CEO (must be Muslim, appointed from a Board-suggested panel).
• Drastically curtailing the alienation of Waqf property by declaring sales void and allowing leases only under strict conditions.
• Significantly strengthening anti-encroachment measures by empowering the CEO with eviction powers (akin to a Collector), defining encroachment broadly, introducing hefty penalties (imprisonment and fines) for encroachers (as a cognisable offence), and penalising negligent public servants; and asserting the Waqf Act’s precedence over conflicting local revenue laws.

The JPC also suggested establishing national bodies for Waqf property development and promoting education among Muslims, leveraging surplus funds.

In pursuance of the report, an amendment was made.

Waqf (Amendment) Act, 2013

The Waqf (Amendment) Act, 2013(Amendment Act, 2013), introduced several significant changes to the Waqf Act, 1995, aiming to address issues highlighted by the Sachar Committee and other stakeholders. Here’s a comparison of key provisions altered by the 2013 amendment:

• Nomenclature and Definitions
  • 1995 Act: Used the spelling “Waqf”. Definitions did not exist for term “encroacher” and a limited definition existed for “Waqf”. ((Section 3(s)2))
  • 2013 Amendment: Standardised the spelling to “Waqf” throughout. It expanded the definition of “encroacher” to explicitly cover those occupying property after lease/license expiry or termination. The definition of “Waqf” was broadened to explicitly include certain communal land entries (Shamlat Patti, etc.). It also added the requirement for a mutawalli (manager) to be an Indian citizen and allowed states to set further qualifications. (Sections 2 and 5 of the Amendment Act, 2013)
• Survey of Waqf Properties
  • 1995 Act: Provided for the survey of Waqf properties by a Survey Commissioner appointed by the State Government (Section 4).
  • 2013 Amendment: Mandated the completion of surveys within one year if not already done, requiring the appointment of Survey Commissioners where necessary. This aimed to address the issue of incomplete or outdated property records. (Section 6 the Amendment Act, 2013)
• Protection Against Encroachment
  • 1995 Act: Section 54 outlined procedures for removing encroachers, but enforcement was often seen as weak. Tribunals had powers to handle disputes.
  • 2013 Amendment: Strengthened Tribunal powers to assess damages from unauthorized occupation and recover them as land revenue arrears. It also introduced penalties for public servants failing to prevent or remove encroachments. This was a direct response to the widespread encroachment problem (Sections 9 of the Amendment Act, 2013).
• Alienation of Waqf Property
  • 1995 Act: Contained restrictions on alienation, requiring Board sanction for leases, sales, exchanges, or mortgages.

2013 Amendment: Imposed a stricter regime by explicitly prohibiting the sale, gift, mortgage, or exchange of Waqf property altogether. (Section 31 of the Amendment Act, 2013)

Leases were permitted but generally capped at 30 years, requiring prior Board sanction and adherence to regulations ensuring market-based rent. This aimed to prevent the permanent loss of Waqf assets. (Section 35 of the Amendment Act, 2013)

• Waqf Tribunals
  • 1995 Act: Established State-level Waqf Tribunals for dispute resolution. Their decisions were indeed subject to High Court review. The composition included judicial and administrative officers, and often an expert in Muslim law.
  • 2013 Amendment: Formalised the three-member structure for Tribunals: (i) a judicial officer (Chairperson), (ii) a senior state civil servant, and (iii) explicitly, a person with knowledge of Muslim law and jurisprudence. The amendment maintained the status of Tribunal decisions. (Section 43 of the Amendment Act, 2013)
• State Waqf Boards and Central Waqf Council:
  • 1995 Act: Established State Waqf Boards for management and a Central Waqf Council primarily for advisory functions. Board composition varied but was predominantly Muslim.
  • 2013 Amendment: Mandated the inclusion of at least two women members in each State Waqf Board. It significantly strengthened the powers of the Central Waqf Council, enabling it to issue binding directives to State Boards on performance, record maintenance, surveys, encroachment handling, and financial reporting, aiming for greater central oversight and accountability. (Sections 11 and 13 of the Amendment Act, 2013)
• Financial Accountability:
  • 1995 Act: Under Section 72, the mutawalli of every waqf was supposed to pay an amount not exceeding 7% of waqf’s annual income to the Board.
  • 2013 Amendment: Ensured that mutawallis can claim up to 20% for farming costs as deduction from the net annual income of which 7% was to be paid to the Board —but only if they farm the land themselves, not if it’s leased out. It also reinforced the need for regular auditing of Waqf accounts. (Section 41 of the Amendment Act, 2013)

In essence, the 2013 amendments sought to tighten controls, enhance protections, clarify definitions, and increase oversight compared to the 1995 framework, largely influenced by the issues raised in the Sachar Report.

The 2013 Amendments- An examination

The Waqf (Amendment) Act, 2013, emerged from a context demanding urgent reform. The Sachar Committee Report had laid bare not only the socio-economic challenges facing Indian Muslims but also remarked on the inefficiency in leveraging Waqf properties for community benefit. Coupled with long-standing criticisms of the 1995 Act’s implementation, including issues highlighted by Joint Parliamentary Committees (JPCs), the pressure to act was significant. K. Rahman Khan, the then Union Minister for Minority Affairs, spearheaded the legislative effort, presenting it as a product of wide consultations.

While the amendments introduced seemingly positive changes like stricter alienation rules and enhanced central oversight, they failed to address the root causes of mismanagement and underutilisation in a comprehensive manner. The focus seemed skewed towards strengthening controls and administrative structures on paper, rather than ensuring practical implementation, capacity building, and, crucially, facilitating the development potential highlighted by Sachar.

A major shortcoming was the failure to translate the Sachar Committee’s vision of Waqf as a development resource into reality. The 2013 Act lacked robust mechanisms or incentives to encourage the productive and marketable use of Waqf assets. While preventing alienation is important, simply locking up properties without facilitating their development does little to generate the income needed for education, healthcare, or skill development initiatives. The establishment of the National Waqf Development Corporation (NAWADCO) under Minister Khan’s tenure seemed promising, but its subsequent failure to gain traction shows the lack of a sustained, well-thought-out strategy for development within the 2013 framework. This suggests a superficial engagement with the Sachar report’s core economic argument, possibly rushed through without adequate planning for execution.

Furthermore, the amendments enhanced the powers of Waqf Boards and the Central Council but seemingly without sufficient attention to improving their operational capacity, transparency, or accountability on the ground. The persistence of issues like incomplete surveys years after the mandated deadline , continued widespread encroachment despite new penalties, mismanagement and corruption point to a significant gap between legislative intent and administrative reality. Empowering bodies without ensuring they have the resources, skills, and robust oversight needed for effective functioning can be counterproductive. This suggests the reforms may have been pushed through without fully considering the practical challenges of implementation across diverse state contexts.

The declaration by Minister Khan, upon the Act’s passage, that it was “perfect” seems indicative of an overestimation of the legislative changes and perhaps an underestimation of the deep-seated systemic problems. Consequently, the 2013 amendments, despite being presented as a definitive solution, ultimately proved inadequate. Their failure to effectively tackle mismanagement, unlock development potential, or ensure consistent enforcement created a vacuum. This environment of unresolved issues and perceived shortcomings – stemming perhaps from a rushed legislative process that prioritized symbolic changes over deep institutional reform – arguably paved the way for the more drastic and ill-motivated amendments proposed in 2025. The legacy of the 2013 Act is thus one of missed opportunities and incomplete reform, highlighting the pitfalls of addressing complex governance challenges with hurried legislative fixes.

Why is BJP badgering for a Waqf Reform?

Despite the hawkish stance BJP has taken consistently against institutions that could hold it accountable-from media to the Election Commission and even judiciary to an extent, it never was public with its rupture with the judiciary. It found no difficulty in arranging post-retirement plum posts for some influential judges like Chief Justice (as he was then) Ranjan Gogoi, Justice Arun Misra, Justice Abdul Nazeer etc. However, this time, it has found Waqf hearings serious enough to rake up an issue that it otherwise would not have- the scope of judicial review of the Supreme Court. This is a mighty issue and a 240 seat BJP is not cut out for it. And yet, we see how the party is willing to take its chance, especially during the Waqf Hearings. Why?

Waqf has featured in BJP’s Election manifestos for a while now. In the 1998 election manifesto, the party promised that it will protect Waqf properties from being usurped by unscrupulous individuals and help Waqf boards to develop these properties for the welfare of poor Muslim families. In the 2009 BJP’s manifesto  stated that will examine the recommendations of the Joint Parliamentary Committee regarding Waqf properties, and would, in consultation with Muslim religious leaders, take steps to remove encroachments from and unauthorised occupation of waqf properties. In its 2014 manifesto, the last one which mentions Waqf, the party stated that it will empower Waqf Boards in consultation with religious leaders; taking steps to remove encroachments from and unauthorized occupation of Waqf properties. The 2019 and 2024 manifestos restricted themselves to mentioning Triple Talaq and did not have any mention of Waqf. While not giving space in the manifesto, the BJP led NDA government has given space for Waqf in its legislative agenda. This points to a deeper, ideology driven agenda.

From Locke’s labour theory of property in Two Treatises of Government to Hegel’s concept of property as the externalisation of free will in the Philosophy of Right, the Western philosophical canon has long enshrined property ownership as intrinsic to personal liberty and political agency. Liberal theorists such as John Stuart Mill and modern defenders of Rawlsian distributive justice have further situated property within the architecture of equal citizenship, whereby the capacity to hold and transfer property undergirds the social contract and democratic legitimacy. In this tradition, property is not merely a material possession but a socially sanctioned claim to recognition, status, and autonomy. Thus, the disruption of minority property rights often signals a deeper project of political unmaking and ontological negation. As Hannah Arendt articulates in The Origins of Totalitarianism, the erasure of the “right to have rights” is a revocation of a right leading to statelessness, Historically, this logic has been basis of violent projects of ethnonational purification: the Nazi regime’s Verreichlichung (Aryanization) of Jewish assets, the legal dispossession of Armenians under Ottoman decrees such as the 1915 Abandoned Properties Law show how property becomes both a terrain and instrument of racialized statecraft. Property regimes, far from being neutral or apolitical, thus emerge as critical sites where inclusion is conferred or denied.

While the Waqf Amendment, 2025 does not have the same level of intensity as the extreme laws stated above, the concerning fact is that these amendments constitute an othering of the property relations relating to charity for the Muslims. When combined with the vehemence with which the BJP has been trying to enact laws that specifically exclude or target Muslim minorities (Criminalisation of Triple Talaq, Citizenship Amendment), Waqf Amendment, 2025 is not only an opportunity missed to reform Waqf system for the better, but also a not-so-sly attempt to promote majoritarianism.

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

^[1] Pg.240, Sachar Committee Report. Available at:https://minorityaffairs.gov.in/WriteReadData/RTF1984/7830578798.pdf

^[2] Pg. 243, Sachar Committee Report

^[3] Pg. 255, Sachar Committee Report

Related:

Waqf Amendment Act 2025: An erosion of rights under the garb of reform

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

The AMU Teachers’ Association (AMUTA) and Waqf Worries: Ordinary members of the Qaum are caught between a self-serving elite and a majoritarian Regime

The Waqf Bill 2024: An Open Letter to the Joint Committee of Parliament, the Opposition, and India’s Muslim Communities

The post ‘Reforms’: Sachar Committee, the 2013 Amendments and the motive behind the proposed changes in the Waqf Regime appeared first on SabrangIndia.

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

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

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

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

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

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

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

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

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

The 1995 Act recognised Waqf formation through three primary means:

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

Governance Structure

The Act established a hierarchical structure for Waqf administration:

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

Identifying and Managing Waqf Property

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

Dispute Resolution

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

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

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

Significance of the 1995 Act

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

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

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

Redefining Waqf creation and scope:

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

Shift in Property identification and Survey:

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

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

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

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

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

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

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

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

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

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

Erosion of religious autonomy (Violation of Article 26)

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

Concerns over Non-Muslim representation

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

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

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

Weakening property protection and potential for dispossession

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

Impact of Removing Section 107

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

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

Impact of abolishing ‘Waqf by User’

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

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

Arbitrary restrictions and discrimination

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

• The ‘5-year practice’ rule

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

• Exclusion of ‘Waqf by User’

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

Conclusion

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

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

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

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

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

Related:

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

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

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

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

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

Facts and context

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

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

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

Arguments

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

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

Judgement

On Jurisdiction to decide on a matter under Article 212

Article 212 of the Constitution states as follows:

212. Courts not to inquire into proceedings of the Legislature

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

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

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

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

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

On expulsions effect on representative democracy

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

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

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

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

Doctrines of proportionality and double proportionality

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

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

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

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

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

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

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

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

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

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

On guidelines to consider while taking action against members of legislatures

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

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

Conclusion

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

The judgement may be read here.

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

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SC: Recent judgment in the Imran Pratapgarhi case, what are police powers under section 173 (3) BNS?

Tamil Nadu’s opposition to NEP 2020’s three-language formula: a federal pushback against central imposition

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

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

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

Brief Facts and Background

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

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

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

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

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

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

Provisions and case law

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

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

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

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

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

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

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

Judgement and its reasoning

On Section 173

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

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

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

On free speech and usage of Section 173(3)

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

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

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

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

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

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

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

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

Conclusion: a paradigm shift in policing free speech

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

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

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

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

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

Related:

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

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

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

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

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

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

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

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

The issue: Context

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

The NJAC challenge and calls for transparency

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

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

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

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

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

Collegium communications: A formality within a formality

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

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

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

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

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

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

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

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

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

A choice exercised at will

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

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

Has it always been like this?

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

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

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

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

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

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

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

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

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

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

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

Why should they change now?

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

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

Conclusion

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

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

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

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

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

NEP 2020 and the three-language mandate

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

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

Historical roots of Tamil Nadu’s language policy

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

Early resistance (1930s–1960s)

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

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

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

Political consolidation and the two-language policy

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

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

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

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

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

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

TN’s reasoning in opposing the 3-language formula 

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

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

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

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

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

Broader implications for federalism and education policy

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

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

Conclusion

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

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

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

(The author is a legal researcher with the organisation)

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Indian federalism is a dialogue: SC

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