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 The protests were so intense that the policy was revoked in 1940.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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The post Tamil Nadu’s opposition to NEP 2020’s three-language formula: a federal pushback against central imposition appeared first on SabrangIndia.

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

Principles of the DPDP Act

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

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

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

Key Provisions in a nutshell

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

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

Notice and consent

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

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

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

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

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

Reasonable security safeguards

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

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

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

Data breach notification

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

Erasure of personal data when consent is withdrawn

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

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

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

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

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

Consent managers

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

Data processing by the state

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

Concerns

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

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

Conclusion

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

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

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

(The author is a legal researcher with the organisation)

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

Delimitation: why and how?

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

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

What does the Constitution say?

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

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

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

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

What lies at the core of the issue now?

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

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

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

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

Southern States and opposition to delimitation: key concerns and arguments

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

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

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

The WHYs on both sides

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

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

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

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

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

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

What are the proposed solutions?

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

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

Is there a structural issue?

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

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

What could be done to solve the structural issue?

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

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

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

Conclusion

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

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

(The author is a legal researcher with the organisation)

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

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

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

Government initiatives and implementation challenges

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

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

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

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

Why is there no political will?

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

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

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

Why is communication important?

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

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

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

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

What do Indians think of pollution?

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

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

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

Limitations of current narratives 

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

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

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

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

The imperative of immediate health impact narratives 

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

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

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

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

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

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

Flip the narrative, draw in attention

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

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

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

For instance,

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

Or

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

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

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

The challenge

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

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

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

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

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

How do we overcome?

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

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

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

What we need is an immediate coalition for change

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

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

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

Our narrative, the power of the narrative

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

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

(The author is a legal researcher with the organisation)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Noise Pollution Ban: Unequal standards for diverse practices?

Indian Coal Giants Pushed for Lax Pollution Rules While Ramping Up Operations

Pollution Control Norms for Coal-Fired Power Plants Relaxed Despite Modi’s Commitment to Environment

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

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

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

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

What are Electoral Trusts?

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

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

How are they structured?

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

Operational Structure

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

The issue with Electoral Trusts

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

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

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

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

Why Electoral Trusts undermine democracy

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

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

Conclusion

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

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

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

(The author is a legal researcher with the organisation)

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Electoral Bonds: SC directs all parties to reveal political funding details to EC

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

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

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

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

Historical Context

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

Global Catalysts

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

National Variations

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

Current Political Landscape

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

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

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

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

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

Understanding the reasons for the rise of Right

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

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

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

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

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

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

Eurocentrism and Cultural Nationalism

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

The Rise of Right-Wing Political Parties

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

What happened to the Left in Europe?

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

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

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

Implications of the Right’s Rise in the EU

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

Challenges and Future Outlook

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

Conclusion

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

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

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

(The author is a legal researcher with the organisation)

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

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

The post The Rise of the Far-Right in Europe: From margins to mainstream appeared first on SabrangIndia.

I. Brief history of rape law

Justice Rajiv Shakdher begins his judgment with a historical overview of rape law, emphasising the evolution of the concept of marital rape. He notes that the origins of the Marital Rape Exception (MRE) can be traced back to the doctrine of coverture, which held that a married woman’s legal rights were subsumed by her husband’s. This historical context is crucial for understanding the archaic nature of the MRE, which Justice Shakdher describes as being rooted in a time when women were treated as mere property of their husbands.

II. Separation of powers and judicial restraint

Justice Shakdher addresses the argument that the judiciary should not interfere with legislative decisions, particularly in matters of criminal law. The counsel for one of the intervenors—Men’s Welfare Trust— had argued that if the court were to exercise the powers under Article 226, and strike down MRE, it would have carried out a legislative act thus blurring the Doctrine of Separation of Powers.

Justice Shakdher first establishes via rich case law that in India, the separation of powers is not as rigid as it is in other jurisdictions. Having established it as such, he essentially states that the doctrine does not preclude the judiciary from examining the constitutionality of laws to legislate but to ensure that laws are in compliance with the Constitution (Para 123).

His reasoning behind the court’s power to address the constitutionality of the MRE—against the argument that the Court cannot legislate—is simple and to the point. He states that Article 13 empowers courts to declare void any laws that contravene Part III (Fundamental Rights). Therefore, according to Justice Shakdher, the court’s power includes, as in this case, the authority to deem a law or provision unconstitutional. He states as follows: “The submission that the issues involved concern a policy decision which, in turn, requires wide ranging consultations with members of the public and domain experts misses, if I may say so, the wood for the trees inasmuch as it fails to accept that what the court has before it is a legal issue i.e., whether or not the impugned provisions (which includes MRE) violate a married woman’s fundamental rights conferred under the Constitution.” (Para 125)

Justice Shakdher rejects the notion that judicial restraint should prevent the court from examining the constitutionality of the MRE. To let it be handled by legislature which actually has the means to conduct consultations with a diverse set of stakeholders, it is not an economic/policy issue. According to him, it is a legal issue with alleged violations of fundamental rights and “Side-stepping such issues would be akin to the court seeking “an alibi” for refusing to decide a legal controversy, which it is obliged in law to decide.” (Para 127)

III. Ambit of section 375 of the IPC-Article 14 Test

Justice Shakdher analyses Section 375 of the Indian Penal Code (IPC), which defines rape. He emphasises that rape’s unlawfulness hinges on whether sexual acts were consensual. Section 375’s Clauses (a)-(d) ignore marital status. They apply to all forced sexual acts, except when the offender is a husband. Similarly, married women cannot file criminal charges against their husbands under these clauses. (Para 135.2)

Justice Shakdher identifies consent as central to Section 375. He then examines the Marital Rape Exception (MRE), which treats married and unmarried individuals differently. He concludes MRE violates Article 14 of the Constitution. Why? He applies the Article 14 test: a law’s “intelligible differentia” (clear distinction) must rationally connect to its object. MRE’s marital distinction, he argues, has no rational nexus to Section 375’s goal of criminalizing non-consensual acts. (Para 137.1)

Instead of treating MRE and Section 375 as separate, the judgement treats MRE against Section 375’s core objective. He finds MRE fails this test, as it exempts husbands from liability without justification.

Justice Shakdher’s reasoning behind striking down the Marital Rape Exception (MRE) is compelling not just for its legal soundness but also for the sheer weight of real-life examples he brings forth. His judgement does not merely counter Justice Hari Shankar’s argument that marriage creates a sexual expectation—it systematically dismantles the sexual expectation argument by highlighting multiple instances where a married woman is denied agency over her body, even in situations where fundamental rights to dignity and health should prevail.

One of the most striking aspects of his judgment is his reference to instances where a married woman’s lack of consent is disregarded: when her husband has a communicable disease, when she is unwell, or when the husband is involved in gang rape with co-accused. These examples puncture holes in the argument that marriage inherently implies perpetual consent. As he illustrates:

• Forced sex outside marriage is recognised as “real rape,” yet the same act within marriage is deemed something else.
• A chaste woman or a young girl is more likely to be considered a victim, but a married woman is not.
• A prior sexual relationship is regarded as a reasonable defense on the assumption of consent, yet a married woman’s consent is not even put to test.
• A sex worker has the legal right to refuse sex, but a married woman does not.
• In cases of gang rape where the husband is involved, the co-accused faces the full force of the law, while the husband is exempt merely due to his marital status.
• A married woman has no legal protection even when her husband has a communicable disease or when she herself is unwell. (Para 137.1)

However, Justice Shakdher’s judgement does not stop with disproving the idea of absolute and perpetual sexual expectation in marriage. It goes a step further, challenging the very notion that the State has a legitimate interest in protecting a marriage that functions as a site of tyranny. His judgment is uncompromising in its stance that when husbands are raping their wives, the law cannot seek to preserve such a structure. In his words:

“When marriage is tyranny, the State cannot have a plausible legitimate interest in saving it.” (Para 137.1)

This statement alone renders MRE indefensible under Article 14. The classification between married and unmarried women is not just arbitrary but actively unjust. He applies the test of reasonableness from Slattery v. Naylor (1888) and Kruse v. Johnson (1898), concluding that MRE is manifestly unjust and oppressive. He states:

“If one were to apply the aforesaid test the only conclusion that can be drawn is that the classification between married and unmarried couples in the context of forced sex is not just unequal in its operation but is also manifestly unjust. MRE, in my opinion, is also oppressive as it can find no justification in the minds of reasonable men, for lawmakers could never have intended to make such a law.” (Para 138)

Justice Shakdher critiques the over-reliance on the test of classification, arguing that courts must go beyond rigid categorisation and examine how a law actually operates on the ground. The real effect and impact on those subjected to it must take precedence over remote or indirect consequences, his judgement states, relying on Anuj Garg & Ors. v. Hotel Association of India & Ors.^[2] The Doctrine of Classification must ultimately serve the core principle of equality, not override it. (Para 140)

Applying this to MRE, he highlights its immediate and glaring impact: an unmarried rape survivor can seek protection under various IPC and CrPC provisions, but a married woman is denied the same safeguards. She cannot benefit from identity protection (Section 228A IPC), medical examination provisions (Sections 53A, 164A CrPC), gender-sensitive trial procedures (Sections 26, 154, 161, 309 CrPC), in-camera trials (Section 327 CrPC), or mandatory medical aid (Section 357C CrPC).

He states as follows while declaring the MRE to be violative of Article 14 of the Constitution:

“The fact that the law does not operate even-handedly for women who are similarly circumstanced i.e. subjected to forced sex is writ large and no amount of legal callisthenics will sustain MRE. Therefore, in my view, MRE is bad in law as it violates Article 14 of the Constitution.” (Para 141.1)

IV. On other arguments

Justice Shakdher dismantles the argument that MRE is justified because other IPC provisions are also relationship-based. He clarifies that while some laws exempt spouses from prosecution (e.g., Sections 136, 212, 216, 216A IPC), these apply only to harboring offenders, not committing offenses against a spouse. MRE, however, shields the husband precisely because he is the perpetrator, making the comparison fundamentally flawed.

He also rejects the claim that married women have alternative legal remedies under IPC and other statutes. Section 498A (cruelty), Section 304B (dowry death), and Section 306 (abetment of suicide) do not address rape—they deal with specific forms of abuse. Even the Domestic Violence Act (D.V. Act), while recognizing sexual abuse, does not criminalize marital rape. Instead, it provides civil remedies like protection orders and financial relief but denies the survivor the ability to prosecute her rapist husband under Section 376(1) IPC.

The result? The judgement points out to a glaring legal loophole where a wife can report every other crime committed by her husband except rape. This exposes the hollowness of the claim that existing laws protect married women against sexual violence.

V. MRE violates Article 21 of the Constitution

Justice Shakdher asserts that the MRE violates Article 21 of the Constitution, which guarantees the right to life and personal liberty. He argues that the MRE undermines a woman’s right to bodily integrity and autonomy by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

Justice Shakdher states, “The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.”  (Para 163)

Therefore, denying a married woman the right to legally recognize rape by her husband strikes at the core of her right to life and liberty under Article 21.

VI. MRE Violates Articles 15 and 19(1)(a) of the Constitution

Justice Shakdher also examines the MRE’s impact on Articles 15 and 19(1)(a) of the Constitution, which guarantee protection from discrimination and the right to freedom of expression, respectively. He argues that the MRE perpetuates gender discrimination by treating married women differently from unmarried women.

Justice Shakdher states, “The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy. The fact that this right is also secured by Article 21 (which is available to non-citizens as well) lends strength to the right conferred on a married woman to express herself and not be subjected to non-consensual sexual intercourse by her husband.”  (Para 166.1)

VII. Presumption of constitutionality of pre-constitutional statutes

The judgment addresses the presumption of constitutionality concerning pre-constitutional laws like the IPC, asserting that such laws are not immune from constitutional scrutiny. While Article 372 saves pre-constitutional laws, it does not shield them from being tested against fundamental rights under Articles 14, 15, 19(1) (a) and 21.

The judgment acknowledges the argument from Navtej Singh Johar vs Union of India and Joseph Shine that pre-constitutional statutes do not enjoy an inherent presumption of constitutionality.[3]

Further, the judgement emphasizes the evolving nature of constitutional interpretation. Relying on Anuj Garg, it holds that laws, even if constitutional at inception, can become unconstitutional due to societal changes. Thus, outdated legal provisions must be reassessed to align with contemporary constitutional values. (Para 172.1)

VIII. Foreign decisions, international covenants, and Indian parliamentary reports

The judgment pushes back against objections to relying on foreign decisions and international covenants, pointing out that legal systems worldwide have already moved past the idea that marriage grants immunity from rape. Cases like CR v. UK (ECHR) and People v. Liberta (New York Court of Appeals) make it clear that the marital rape exemption has no place in modern law. Courts in Nepal and the Philippines have also ruled that forced sex in marriage is still rape, reinforcing that consent does not become irrelevant after marriage.

It recognises the importance of international conventions like CEDAW and the Beijing Declaration emphasize gender equality and protection against sexual violence, making it clear that MRE goes against India’s global commitments. Courts in India have previously used international law to interpret domestic statutes, and the judgment follows that precedent.

As for parliamentary reports, multiple committees—including the Justice Verma Committee—have called for scrapping MRE. The fact that the legislature hasn’t acted doesn’t mean courts can’t step in. Navtej Singh Johar made it clear that legislative inaction is a “neutral fact” and doesn’t block judicial review.  The judgement recognises this and follows the same principle.

IX. On miscellaneous issues

Conjugal expectations and marital rights

The judgment critiques the notion of “conjugal expectation,” clarifying that while legitimate during a harmonious marriage, it cannot equate to an unfettered right to non-consensual sex. It references Section 9 of the Hindu Marriage Act (HMA) and Order XXI Rule 32 of the Civil Procedure Code (CPC), noting that even restitution decrees for conjugal rights cannot mandate consummation. The law must respect marital consent, not impose obligations. (Para 146)

Marriage as an institution vs. individual rights

The judgment rejects the argument that excluding marital rape from Section 375 IPC protects the institution of marriage. It emphasizes that marriage is a union of individuals rooted in mutuality, respect, and autonomy. When these principles are violated, the institution collapses. The state’s role is limited to recognizing/dissolving marriages via laws like the HMA, Domestic Violence Act (D.V. Act), and IPC provisions (Sections 375–376B), not shielding perpetrators of sexual violence (Para 148.3).

Labeling marital rape as “rape”

The judgment argues that sexual assault by a husband falling under Section 375 must be labeled as rape to reflect societal disapproval. It critiques societal stigma against victims, not perpetrators, and dismisses the distinction between marital rape and other IPC offenses (e.g., hurt under Sections 319–323, cruelty under Section 498A). Labeling is critical for legal accountability. (Para 149)

False cases and empirical evidence

The judgment refutes fears of false cases, citing National Family Health Survey (NFHS-4) 2015–16 data showing 99% of sexual assaults go unreported. It dismisses the argument as exaggerated, noting courts handle false complaints under IPC provisions like Section 498A (Para 151). The state’s interest in protecting women from abuse outweighs unfounded concerns about misuse.

Here too, we can see the contrast in Justice Rajiv Shakdher’s judgement and Justice Hari Shankar’s judgement in terms of reliance on data. As mentioned in our analysis of Justice Harishankar’s judgement, his analysis lacks empirical data or backing of scholarly work when he asserts that rape by a stranger and non-consensual sexual activity by a husband are not equal in the terms of the psychological trauma they inflict on the woman.

Invasion of the private sphere

The judgment rejects claims that prosecuting marital rape invades private marital space. It distinguishes rape from other marital crimes (e.g., cruelty, hurt) by emphasizing constitutional rights. Citing Joseph Shine vs Union of India (2018), it holds that privacy cannot shield rights violations, and marital intimacy is not exempt from constitutional scrutiny (Para 152).[4] The judgment dismisses arguments about evidentiary difficulties, equating marital rape to other private-space crimes. 

Conclusion

Justice Rajiv Shakdher’s judgment in RIT Foundation is a masterclass in constitutional adjudication, dismantling the marital rape exception (MRE) not merely as a legal anomaly but as a moral affront to India’s republican ethos. By anchoring his analysis in the lived realities of women—where marriage becomes a license for tyranny—he transcends abstract doctrinal debates to expose the MRE’s core flaw: its reduction of women to chattel, stripped of autonomy, dignity, and bodily integrity.

Justice Shakdher’s reasoning is a rebuke to judicial timidity. He rejects the facile argument that courts must defer to legislative “policy choices,” reminding us that the judiciary’s duty is to safeguard fundamental rights, not shield regressive laws from scrutiny. His invocation of Article 13—declaring unconstitutional any law that violates Part III—is a clarion call for courts to actively engage with societal evolution, rather than entombing themselves in the formalism of “separation of powers.”

The judgment’s brilliance lies in its refusal to treat marriage as a sacred cow. It dissects the MRE’s “conjugal expectations” myth, revealing it as a fig leaf for systemic misogyny. By contrasting the legal protections afforded to unmarried rape survivors with the abject denial of justice for married women, it lays bare the MRE’s arbitrary cruelty.

Yet, Justice Shakdher’s verdict is more than a legal victory; it is a philosophical manifesto. His assertion that “when marriage is tyranny, the State cannot have a legitimate interest in saving it” challenges the very premise of a legal regime that prioritizes familial “stability” over individual rights. This is not merely about criminalizing marital rape—it is about redefining marriage itself as a partnership of equals, not a hierarchy of domination.

In contrast, Justice Hari Shankar’s deference to legislative inaction and his elevation of marriage as an institution above constitutional rights represent a jurisprudential throwback, clinging to a vision of the law as a tool for social control rather than liberation. The split verdict, therefore, is not merely a clash of legal opinions but a microcosm of India’s broader struggle between tradition and transformation.

Justice Shakdher’s judgment is a testament to the Constitution’s living spirit—a reminder that rights are not mere parchment promises but living guarantees that demand constant vigilance. By striking down the MRE, he does not merely correct a legal wrong; he reaffirms the judiciary’s role as the Constitution’s moral compass, ensuring a future where no woman’s body is subjected to patriarchal entitlement. In doing so, he invites us to reimagine justice not as a compromise between competing interests, but as an uncompromising commitment to human dignity.

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

[1] 2022 SCC OnLine Del 1404

^[2]  (2008) 3 SCC 1

[3] (2018) 10 SCC 1

[4] (2019) 3 SCC 39

Related:

D*ck or fist

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

The post When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative appeared first on SabrangIndia.

While Justice Rajiv Shakdher struck down the MRE, Justice C. Hari Shankar dismissed the petitions—upholding the constitutional validity of the MRE. This article will focus on Justice C. Hari Shankar’s opinion that upheld the constitutionality of the provisions, essentially denying any woman recourse under law prosecuting rape within the institution of marriage.

Facts

• The RIT Foundation, along with the All-India Democratic Women’s Association (AIDWA) and two other individuals, filed a petition challenging the marital rape exception (MRE) under Section 375, Exception 2 of the Indian Penal Code (IPC) 1860. The petition argued that the MRE should be struck down as it violated the constitutional rights of women and perpetuated gendered violence and discrimination.

Provisions involved

The following provisions were challenged:

• Section 375, Exception 2 of the IPC: This exception stated that sexual intercourse by a man with his own wife, who is not under 18 years of age, was not considered rape.
• Section 376B of the IPC: This section dealt with the punishment (2 years) for rape committed by a husband who was separated from his wife.
• Section 198B of the Code of Criminal Procedure (CrPC):  This sections states that no court shall take cognisance of an offence punishable under section 376B of the Indian Penal Code (IPC) where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.

These abovementioned provisions remain in the same form in the Bharatiya Nyaya Sanhita, 2023 with different section numbers via Sections 63 and 67 of the BNS and Section 221 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Arguments advanced against MRE:

• • The MRE violated the constitutional goals of autonomy, dignity, and gender equality enshrined in Articles 15, 19(1) (a), and 21 of the Constitution.
  • The MRE treats women as the property of their husbands after marriage, denying them sexual autonomy, bodily integrity, and human dignity as guaranteed by Article 21.
  • The MRE violated the reasonable classification test of Article 14 as it created a distinction between married and unmarried women, denying equal rights to both.
  • The MRE should be struck down, and the punishment under Section 376B should also be invalidated as it discriminated between offences committed by separated husbands, actual husbands, and strangers.

Arguments for MRE’s constitutionality:

• • The crux of these arguments was twofold—court’s lack of power to read down the MRE thus creating a new offence and the fact that legislature had made a conscious decision to not label non-consensual sexual act between husband and wife as rape to protect the institution of marriage, by extension, families and progeny thus there is a legitimate object that the state is seeking to achieve via the MRE.

Justice C. Hari Shankar began his judgment by outlining the context and the specific challenge before the court. The petitioners argued that Exception 2 to Section 375, which states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape, is unconstitutional. They contended that this exception violates Articles 14, 19(1)(a), and 21 of the Constitution, which guarantee equality before the law, freedom of speech and expression, and protection of life and personal liberty, respectively. The petitioners emphasized the importance of sexual autonomy and consent, arguing that the exception undermines these principles by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

On original objective and the continuing legislative intent

Justice C. Hari Shankar addressed the original objective and the continuing legislative intent behind the Marital Rape Exception (MRE) in his judgment. He emphasised that the original objective of the MRE, as conceived in the 1860 IPC, was not based on the outdated “Hale dictum,” which suggested that marriage implied a wife’s consent to sexual intercourse with her husband. Instead, the MRE was rooted in the unique nature of the marital relationship and the need to balance individual rights with the preservation of the institution of marriage.

He stated:

“There is nothing to indicate that the ‘marital exception to rape,’ contained in the Exception to Section 375 of the IPC, or even in the proposed Exception in Clause 359 of the draft Penal Code, was predicated on the ‘Hale dictum,’ which refers to the following 1736 articulation, by Sir Matthew Hale: ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband, which she cannot retract.’ Repeated allusion was made, by learned Counsel for the petitioners, to the Hale dictum. There can be no manner of doubt that this dictum is anachronistic in the extreme, and cannot sustain constitutional, or even legal, scrutiny, given the evolution of thought with the passage of time since the day it was rendered. To my mind, however, this aspect is completely irrelevant, as the Hale dictum does not appear to have been the raison d’être either of Section 359 of the draft Penal Code or Section 375 of the IPC.” [Para 13]

Justice C. Hari Shankar further explained that the continuing legislative intent behind retaining the MRE is to preserve the institution of marriage. He highlighted that the legislature, in its wisdom, has chosen to treat non-consensual sexual acts within marriage differently from those outside of marriage. He argued that this distinction is based on an intelligible differentia that has a rational nexus to the object of preserving the marital institution.

In essence, Justice C. Hari Shankar maintained that the continuing legislative intent behind the MRE is to protect the institution of marriage by distinguishing between non-consensual sexual acts within marriage and those outside of it. He emphasized that this distinction is not arbitrary but is based on a rational assessment of the unique dynamics of the marital relationship and the broader societal interests at stake.

On rational nexus and intelligible differentia

Justice C. Hari Shankar further analyses the concept of “intelligible differentia” and “rational nexus” in the context of Article 14 of the Constitution.

His interpretation rests on the foundational premise that the marital relationship is intrinsically distinct from all other forms of relationships, particularly in that it carries an inexorable incident of a legitimate expectation of sexual relations.

He articulates this position as follows:

“The primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.”

This formulation forms the central pillar of his justification for treating non-consensual sexual acts within marriage differently from those outside of it. The judgment thus constructs an argument wherein marriage, as a legal institution, grants a presumption of consensual intimacy, differentiating it from other relationships where consent must be independently established.

He states:

“The legislature is free, therefore, even while defining offences, to recognise ‘degrees of evil.’ A classification based on the degree of evil, which may otherwise be expressed as the extent of culpability, would also, therefore, be valid. It is only a classification which is made without any reasonable basis which should be regarded as invalid. While the Court may examine whether the basis of classification is reasonable, once it is found to be so, the right of the legislature to classify has to be respected. Where there is no discernible basis for classification, however, or where the basis, though discernible, is unreasonable or otherwise unconstitutional, the provision would perish.” [Para 144]

Internal inconsistencies within the IPC framework

However, this reasoning, while maintaining internal consistency within the judge’s interpretative framework, encounters contradictions within the broader legal architecture of the IPC—particularly when juxtaposed with Section 376B, which criminalizes non-consensual intercourse between a husband and wife during separation.

Section 376B, which prescribes a lesser punishment (up to two years of imprisonment), nonetheless acknowledges that marital status alone does not create an absolute or irrevocable expectation of sexual relations. This provision, therefore, implicitly recognizes a wife’s autonomy and the necessity of consent, at least in specific contexts. The logical inconsistency emerges in two key aspects:

1. Recognition of autonomy in judicial and non-judicial separations

1. • Section 376B (punishment for rape by a husband during separation) does not require a court-ordered decree of separation for its application, meaning that a wife living separately from her husband—without a state-recognized order—still retains legal protection against non-consensual intercourse involving her own husband.
   • This directly contradicts the fundamental assumption of the MRE, which presumes that marriage inherently entails continuous consent to sexual relations. If the institution of marriage is so distinct and special, then why does the law acknowledge that consent is required during separation, even without formal judicial recognition? It is to ensure that all institutions are within the bounds of the Constitution and the value system it espouses. To this extent, the Criminal Law Amendment Act, 1983 added the current 376B (it was added as 376A but was later renumbered to 376B in 2013 after the Criminal Law Amendment, 2013).

2. The status of underage marital rape under IPC

1. • The inconsistency is further compounded by the fact that the IPC (via the Independent Thought vs Union of India judgement) criminalizes non-consensual intercourse with a wife below the age of 18, thereby recognizing the primacy of consent in certain marital contexts.
   • If the marital bond inherently carries an expectation of sexual relations, as the judgment asserts, then the legal system’s refusal to extend this principle to child marriages undermines the assumption of an absolute and uninterrupted sexual expectation within marriage. However, it has been extended to bring it in consonance with the constitutional principles in Independent Thought vs. Union of India.[2]

The judgment by Justice C. Hari Shankar relies on the intelligible differentia test to uphold the MRE, but the incoherence in its application becomes evident when viewed through the lens of Section 376B and related provisions. If marriage is a uniquely protected institution, then its sanctity should logically override even non-judicial separations—yet it does not. This suggests that when the law is compelled to acknowledge a wife’s individual autonomy, it does so in ways that directly conflict with the underlying justification for the MRE.

One could argue that a clear distinction exists in the punishments, as spousal rape during separation carries a lighter sentence (two years) compared to the harsher penalties under Section 375. However, this distinction collapses under scrutiny because:

• The recognition of consent during separation (including non-judicial separation) means that the “legitimate expectation of sex” argument is not absolute.
• The law, therefore, implicitly concedes that the marital institution does not override a wife’s right to autonomy in every instance.
• If the expectation of sexual relations within marriage were as absolute as the judgment suggests, then non-consensual intercourse during a non-court-ordered separation should not have been an offense at all.

The IPC’s contradictions — recognizing marital consent in separations (Section 376B) and criminalising underage marital rape — dismantle the “intelligible differentia” justifying the marital rape exception (MRE). By acknowledging that consent matters even within marriage, the law inadvertently concedes that marital status alone cannot negate autonomy. This fractures the MRE’s foundational logic: if a separated or underage wife retains constitutional rights to bodily integrity (Articles 14, 21), why does cohabitation erase them? The disparity in punishments (2 years vs. 10 for non-marital rape) further portrays a patriarchal hierarchy, implying a husband’s “claim” outweighs a wife’s dignity — a stance antithetical to Article 15’s prohibition of gender discrimination and to Constitutional Morality as espoused in Navtej Singh Johar vs Union of India.[3]

On Article 19 and 21

Justice C. Hari Shankar also addresses the argument that the exception violates Article 19(1)(a) by restricting a married woman’s right to sexual self-expression. He rejects this contention, stating that the exception does not compromise a woman’s right to consent or refuse consent to sexual relations. Instead, it merely recognises the complex interplay of rights and obligations within a marital relationship. Similarly, he dismisses the claim that the exception infringes upon Article 21, asserting that there is no fundamental right under the Constitution for a woman to prosecute her husband for rape in the context of marriage. It is here that Justice C. Hari Shankar makes deeply problematic observations that highlight and symbolise the underrepresentation of women and their voices, both in the society and in the judiciary that has contributed to emergence views such as follows.

He states as follows:

“If one were to apply, practically, what has been said by Mr. Rao of the crime of “rape”, the entire raison d’etre of the impugned Exception becomes apparent. As Mr. Rao correctly states, rape inflicts, on the woman, a “deep sense of some deathless shame”, and results in deep psychological, physical and emotional trauma, degrading the very soul of the victim. When one examines these aspects, in the backdrop of sexual assault by a stranger, vis-à-vis nonconsensual sex between husband and wife, the distinction in the two situations becomes starkly apparent. A woman who is waylaid by a stranger, and suffers sexual assault – even if it were to fall short of actual rape – sustains much more physical, emotional and psychological trauma than a wife who has, on one, or even more than one, occasion, to have sex with her husband despite her unwillingness. It would be grossly unrealistic, in my considered opinion, to treat these two situations as even remotely proximate. Acts which, when committed by strangers, result in far greater damage and trauma, cannot reasonably be regarded as having the same effect, when committed by one’s spouse, especially in the case of a subsisting and surviving marriage. The gross effects, on the physical and emotional psyche of a woman who is forced into non-consensual sex, against her will, by a stranger, cannot be said to visit a wife placed in the same situation vis-à-vis her husband. In any event, the distinction between the two situations is apparent. If, therefore, the legislature does not choose to attach, to the latter situation, the appellation of ‘rape’, which would apply in the former, the distinction is founded on an intelligible differentia, and does not call for judicial censure.” [Para 184]

Essentially, Justice C. Hari Shankar says that rape by a stranger is more psychologically damaging than rape by a husband of his wife.

For starters, this line of reasoning differentiates the intensity of suffering on the basis of the identity of the victim’s vis-a-vis her relation to the accused depending on whether the accused is the victim’s husband or a stranger. This exercise was unnecessary, if not deeply flawed and regressive.

Moreover, the same Section 376 which punishes rape has a stricter punishment for aggravated rape—which punishes rape by people in authority or relatives. Therefore, the law deems rape by people who are in positions of authority/trust more serious than other cases. This distinction should have prompted Justice C. Hari Shankar to delve into the issue with much more sensitivity to the suffering of a victim which it failed to do.

This is not to say that the relation between people in authority and the victims is same as marital relationship. The reason for quoting this example is to show that trauma cannot be said to be less or limited when a husband commits rape when compared to a when a stranger commits the offence.

Secondly, a simple search would have given Justice Hari Shanker studies and scholarly research that discussed how traumatic it is for women to be raped by their own husbands. From Diana Russell’s pioneering work on Rape in Marriage in the 1980s to recent studies on marital rape that reveal its devastating physical, reproductive, sexual, and psychological impact on women well into old age, there is well-established scholarship on the effects of marital rape. Given this, Justice C. Hari Shankar’s casual categorization of these traumas into different tiers is deeply concerning if not problematic (Bhat and Ullman, 2014;  Band-Winterstein T. and Avieli, 2022)[4][5]

On creation of a new offence

Justice C. Hari Shankar further considers the potential consequences of striking down the exception. He notes that doing so would create a new offence of “marital rape” and would necessitate a re-evaluation of the punishments prescribed under Section 376 of the IPC. He also highlights the practical difficulties that would arise in proving consent in cases of marital rape, given the private nature of the marital bedroom. The judge argues that these considerations weigh in favour of retaining the exception, as the legislature has the authority to make policy decisions regarding criminal law.

He maintained that the MRE is an integral part of Section 375 of the Indian Penal Code (IPC) and that removing it would fundamentally alter the scope of the offense of rape. He argued that the MRE is not merely an exception but a critical component of the legal framework that defines the offense of rape.

He stated:

“Offences may legitimately be made perpetrator-specific or victim-specific. In the present case, Section 375, read as a whole, makes the act of ‘rape’ perpetrator-specific, by excepting, from its scope, sexual acts by a husband with his wife… The specification of the identity of the man, and his relationship vis-à-vis the woman, which presently finds place in the impugned Exception might, therefore, just as well have been part of the main provision.” [Para 203]

However, MRE itself is what makes the offense of rape perpetrator-specific, and removing it would merely restore the general applicability of the offence to all individuals, regardless of their marital status. This view is supported by the Supreme Court’s decision in Independent Thought vs Union of India. In this case, the same provision was dealt with. The Marital Rape Exception, before the Independent Thought judgement, applied to non-consensual sexual acts with wife who is 15 years and above. Since it contrasted the Protection of Children from Sexual Offences Act, 2012 and the overall Constitution, the provision was read down to have it applied to only acts with a wife who is 18 and above thus protecting those women who are less than 18 years of age.

This is what the court said in Independent Thought addressing the concerns over it creating a new offence:

 One of the doubts raised was if this Court strikes down, partially or fully, Exception 2 to Section 375 Indian Penal Code, is the Court creating a new offence. There can be no cavil of doubt that the Courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 Indian Penal Code, no new offence is being created. The offence already exists in the main part of Section 375 Indian Penal Code as well as in Section 3 and 5 of POCSO. What has been done is only to read down Exception 2 to Section 375 Indian Penal Code to bring it in consonance with the Constitution and POCSO. 

The judgement by Justice C. Hari Shankar does not deal with this prima facie similarity between the reasoning of Independent Thought and the reasoning of petitioners as to why reading down MRE does not create a new offence. He states as follows:

But, assert learned Counsel for the petitioners, by striking down the impugned Exception, this Court would not be creating an offence. They rely, for this purpose, on Independent Thought , in which it was held that the Supreme Court was not creating an offence by reading down the impugned Exception to apply to women below the age of 18. The analogy is between chalk and cheese. The situation that presents itself before us is not even remotely comparable to that which was before the Supreme Court in Independent Thought. We are not called upon to harmonise the impugned Exception with any other provision. The petitioners contend that the impugned Exception is outright unconstitutional and deserves to be guillotined. Would we not, by doing so, be creating a new offence?

We do not see any engagement with the proposition advanced by the petitioners or with the reasoning in Independent Thought. Striking down the marital exception would not create a new offence but would merely extend the application of Section 375 to all individuals, irrespective of marital status. Justice C. Hari Shankar’s concern—that such a move would turn previously non-offenders into offenders and that criminalization is the legislature’s prerogative—remains unreasoned when examined in light of the approach taken in Independent Thought.

Conclusion

Justice C. Hari Shankar’s judgement is a mix of genuine judicial restraint and a deeply flawed reasoning that puts women and their autonomy on the back burner, for the purpose of patriarchal notions of desire in the garb of sanctity of marriage. His reasoning after a point goes from flawed to problematic when he states the following: “Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic.” [Para 130]

While he is entitled to present his judicial opinion, he does not provide any reasoning for differentiating the trauma of marital rape from that of rape by a stranger. We do not know if he relied on any survey, or on what basis he came to his conclusion. The assertion lacks empirical evidence or scholarly backing and instead relies solely on personal assumptions, which are disconnected from established research on marital rape trauma.

Justice C. Hari Shankar’s wisdom in exercising judicial restraint is robust, tenable and sound when it relates to the argument that such change must come from the legislature. While it might not be entirely agreeable, there is a level of doctrinal firmness to it.

However, his views on marriage, expectations of sex and autonomy of women struggle to find their ground in the concepts of constitutional morality, ethical logic but flow with the flaws of regressive outlook on what a marriage is. These flaws stem not only from an inadequate understanding of how the law attributes sanctity to marriage but also from a superficial and reductive view of the emotional and psychological trauma endured by married women when their trust is violated by their own husbands through marital rape. In this sense, the flaws not only are legal, but also moral.

The novel contribution of this judgement is not the exercise of judicial restraint but an expression of outdated perception of marriage—one that subordinates constitutional morality to patriarchal tradition.

In the next part, the judgement of Justice Rajiv Shakdher declaring the MRE to be unconstitutional and his reasoning in answering some pertinent questions raised by Justice C. Hari Shankar will be discussed.

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

[1] 2022 SCC OnLine Del 1404

[2] [2017] 10 SCC 800

[3] (2018) 10 SCC 1

[4] Bhat, M. and Ullman, S.E., 2014. Examining marital violence in India: Review and recommendations for future research and practice. Trauma, Violence, & Abuse, 15(1), pp.57-74.

[5] Band-Winterstein, T. and Avieli, H., 2022. The lived experience of older women who are sexually abused in the context of lifelong IPV. Violence against women, 28(2), pp.443-464.

Also Read:

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

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

The post How Justice C Harishankar, in upholding the exception to marital rape, delivered a reasoning fir for the dark ages appeared first on SabrangIndia.

More importantly, this policy could be seen as violating Article 15 (2)(a) of the Indian Constitution. Article 15(2(a) prohibits discrimination on grounds of sex, among others, to shops, public restaurants, hotels and places of public entertainment

Oyo’s policy disproportionately affects opposite-gender pairs, as they are more likely to be perceived as couples and be required to provide proof of marriage. In contrast, same-gender pairs, whether romantic or not, are less likely to face such scrutiny. For example, a man and a woman may be denied accommodation without proof of marriage, while two men or two women in the same situation may not encounter this barrier.

This differential treatment imposes unequal access conditions based on the sex of the individuals involved, effectively discriminating against opposite-gender pairs. Despite the policy’s neutral appearance, its implementation creates a disparity that contravenes Article 15(2) (a) by restricting access to hotel accommodations in a manner that is inherently sex-based.

Now, what could be done against discrimination is a natural question to arise. One would be to file a case under a statute but this is a specific right under Constitution but might not be enshrined in any statute. Can the Court be approached?

To address such discrimination and to answer the question, it is essential to explore the horizontal application of fundamental rights, which extends these rights to interactions between private individuals and entities, not just between individuals and the state.

Traditionally, fundamental rights have been viewed as protections against state action. However, with private entities exerting significant influence over essential services, there has been a discourse to consider the horizontal application of fundamental rights in a much more expansive scale than before. This article will examine the concept of horizontal application of fundamental rights and where we stand as of today, as far as jurisprudence is concerned.

The traditional vertical approach to fundamental rights

Fundamental rights in India have historically been seen as constraints on state power. This is known as the vertical application of fundamental rights, where rights are enforced only against the State (Malik, 2007). The reasoning behind this approach is that fundamental rights are guaranteed to citizens as protection from the State, with private actions being addressed through ordinary laws (Bhatia, 2021).

Under this traditional model, a private hospital denying treatment might not be directly liable for violating fundamental rights. Remedies would typically be sought through consumer protection laws or tort claims, rather than constitutional challenges. However, globalization and neoliberalism have transferred welfare responsibilities to the private sector without corresponding constitutional obligations (Bhatia, 2021). This has created power imbalances that the traditional vertical model fails to address.

The need for a horizontal application of fundamental rights

The horizontal application of fundamental rights extends constitutional protections to private actors, ensuring they also respect basic rights. In many cases, private entities hold economic and social power comparable to the State, necessitating constitutional oversight. This concept has been recognized in global legal frameworks, as seen in the constitutionalisation of private law, which integrates fundamental rights into private contracts, torts, and property law (Smits, 2010).

The horizontal effect can manifest in different forms:

• Direct horizontal effect: Fundamental rights are directly enforceable against private actors, much like they are against the state (Walkila, 2011). This means that an individual can directly bring a legal claim against another private party for violating their fundamental rights (Bhatia, 2021).

• Indirect horizontal effect: Fundamental rights influence the interpretation of private law provisions (Walkila, 2011). In this case, courts interpret existing private law in a way that gives effect to fundamental rights. This is not a direct enforcement but rather an interpretation or application of fundamental rights through other legal provisions.

• State-mediated effect: Rights are applied through the actions of public authorities (Walkila, 2011). This involves the state intervening to ensure private actors respect the rights of individuals. It is neither direct nor purely indirect but involves the state acting as a mediator to ensure fundamental rights are observed in private interactions (Frantziou, 2019).
• Functional equivalence: This approach seeks to equate private parties with the state, in character, functions, or impact, and hence subject them to constitutional obligations (Bhatia, 2021)

Critics argue that horizontal application may infringe on private autonomy (Friedmann & Barak, 2001). However, proponents emphasize its necessity in addressing social inequalities and mitigating power imbalances (Frantziou, 2019). Before the Horizontal Rights approach is discussed in Indian context, it is necessary to see how different legal system across the world have approached this matter so that at the end, we can not only compare our jurisprudence with the standards set by our own necessities but also with the standards set internationally.

Horizontal approach and jurisdictions across the world

Different countries have adopted varying approaches to the horizontal application of constitutional rights, which refers to the application of these rights to disputes between private parties, rather than solely between individuals and the state (Bhatia, 2021) This is because new power centres and mechanisms of oppression have emerged, necessitating departures from the default vertical approach where rights only apply between the state and individuals.

Germany has a strong tradition of applying constitutional rights in private law (Frantziou, 2019). The German approach is characterized by the concept of “indirect horizontality” (mittelbare Drittwirkung) (Frantziou, 2019; Walkila, 2016). In this model, constitutional rights do not directly bind private parties (Frantziou, 2019; Walkila, 2016). However, these rights influence the interpretation and development of private law rules (Frantziou, 2019; Walkila, 2016). The German Federal Constitutional Court has played a significant role in developing this concept (Frantziou, 2019; Walkila, 2016). In the landmark Lüth case, the court established that while fundamental rights do not override conflicting rules of private law, they must be considered when formulating private law (Henne & Riedlinger, 2005). This means that general clauses of the (private) civil codes are interpreted in light of the fundamental rights (Henne & Riedlinger, 2005). The German approach, therefore, does not impose direct obligations on private parties but ensures that the private law is consistent with constitutional values (Henne & Riedlinger, 2005, Katharina Stein, 2022)

The United States employs the “state action doctrine,” which limits the application of constitutional rights to actions by the government or those acting under its authority (Balkin, 2014). This doctrine means that, generally, constitutional rights do not apply to private actors (Balkin, 2014). In Shelley v. Kraemer (1948), the U.S. Supreme Court ruled that courts cannot enforce agreements that stop people from buying homes because of their race. These racial covenants, were private contracts where homeowners promised not to sell to certain racial groups. While individuals could still make these agreements, the Court decided that if a judge enforced them, it would count as government action and violate the Constitution (Henkin 1962). This reasoning was subjected to criticism, rightly so, by the scholars of that time, saying that such reasoning is antithetical to personal liberties (Nerken, 1977). It wasn’t until the Fair Housing Act of 1968 that the inclusion of racially restrictive covenants in property agreements was explicitly prohibited by law.

Typically, the U.S. follows a strict approach: a right either applies in a given situation or it doesn’t, without much consideration of the specific circumstances (Balkin, 2014). This is different from other countries that use “proportionality analysis,” which means they look at the context and details of each case to decide how rights should be applied (Balkin, 2014)

South Africa’s constitutional approach has evolved from indirect to more direct horizontal application of rights (Frantziou, 2019; Van der Walt, 2012). Under its Interim Constitution, there was a subtle shift from indirect horizontal effect to direct horizontal effect under the Final Constitution (Frantziou, 2019; Van der Walt, 2012). The South African Constitution grants some provisions of the Bill of Rights direct horizontal effect, making all ordinary legislation subject to compliance with the Bill of Rights (Frantziou, 2019; Van der Walt, 2012). This means that national courts are obligated to protect the realization of fundamental rights and provide effective remedies (Frantziou, 2019; Van der Walt, 2012). South African jurisprudence reveals that the horizontal effect operates through general provisions in the Bill of Rights, which apply to all law and bind private parties (Frantziou, 2019; Van der Walt, 2012).

In Canada, the approach to horizontal rights is often described as the “governmental functions” approach which follows the logic of state action but is narrower in its operation (Weinrib and Weinrib, 2001). The Canadian Charter of Rights and Freedoms does not directly bind private persons or apply to the common law governing their relations (Weinrib, 2001). The Supreme Court of Canada case R.W.D.S.U. v. Dolphin Delivery Ltd. held that the rights and freedoms in the Charter do not apply to private persons (Saunders, 2005; Weinrib, 2001). However, the common law can be adapted to the Constitution, with courts developing the common law in a way that is consistent with constitutional values (Saunders, 2005; Weinrib, 2001). This is called a parallel development of the common law, where courts exercise their inherent jurisdiction to interpret the common law to align with constitutional rights (Saunders, 2005; Weinrib, 2001). Some scholars note that the Canadian approach ignores the extensive German debate about direct and indirect application (Weinrib, 2001).

The United Kingdom does not have a single written constitution but has a quasi-constitutional statutory bill of rights – the Human Rights Act 1998 which raises similar issues to other jurisdictions (Hunt, 1998). The debate in the UK after the entry into force of the Human Rights Act, has focused on which form of horizontality is appropriate to the UK’s political constitution (Hunt, 1998). There are various opinions ranging from supporting a conception of horizontality through interpretation and incremental development of the common law compatibly with Convention rights (Hunt, 1998). Some legal scholars argue for an absolute duty to develop all existing common law compatibly with Convention rights, or simply to apply human rights directly (Hunt, 1998). The interaction of EU and UK law in the field of fundamental rights has influenced this debate in recent years, so that it would be fair to say that both direct and indirect forms of horizontal effect are available in the UK in respect of certain rights (Hunt, 1998).

Ireland: The Irish legal system has accepted the doctrine of full direct horizontal effect of constitutional rights. This means that the Irish Supreme Court interprets some constitutional rights to be directly binding and producing effects on the legal relationships between private parties. Every citizen in Ireland is entitled to invoke constitutional rights directly against another citizen, and not only against the State. The Irish Constitution itself, however, does not specifically provide for horizontal application. This approach contrasts with many Continental European approaches to the effect of fundamental rights. The Irish model allows for a direct application of constitutional rights in private disputes, meaning that an individual can bring a claim directly against another individual for violating their constitutional rights. The Irish model is considered a “constitutional tort,” where a violation of constitutional rights by one private actor against another can give rise to a legal claim (O’Cinneide, 2007).

Spain recognizes the direct horizontal application of human rights. The Spanish Constitutional Court has aligned its approach to the degree of protection guaranteed in EU law (Walkila, 2014, p. 133). In the Netherlands, both direct and indirect horizontal effects are recognized (Walkila, 2014, p. 164). Direct horizontal effect means fundamental rights are directly enforceable in the same way as in vertical relations, while indirect effect serves as an aid for interpretation, ensuring private law provisions conform to the contents of fundamental rights (Walkila, 2014, p. 147). A similar distinction exists in the Czech Republic (Walkila, 2014, p. 164), where the horizontal effect of constitutional rights has been addressed relatively recently. The Czech Republic is noted as having followed a strategy of constitution-conform interpretation and is among the jurisdictions that recognize both direct and indirect horizontal effects.

Slovakia, like the Czech Republic, has undergone recent constitutional reforms, leading to a more recent focus on the horizontal effect of fundamental rights. Before 2002, Slovakia’s Constitutional Tribunal could not review decisions of ordinary courts. However, the country has been recognized as having adopted a strategy similar to that of Poland, where high courts of the ordinary judiciary implement the horizontal effect of basic rights. In Poland, indirect horizontal effect is realized through general clauses and the interpretation of statutes in conformity with constitutional values, along with the review of constitutionality. Direct horizontal application of clear and precise constitutional provisions is also possible in exceptional cases (Walkila, 2014, p. 147).

Kenya’s Constitution of 2010 contains provisions that allow for the direct horizontal application of constitutional rights. This means that these rights can be applied in relationships between private parties, not just between individuals and the state. Specifically, Article 20 of the Kenyan Constitution does not formally limit the reach of horizontality. The Kenyan courts have also shown a willingness to apply the institutional approach to horizontal rights, particularly in cases of discrimination. However, while the courts have made some strides in this direction, they have been hesitant to articulate a fully consistent normative account of horizontality. This has resulted in an application of horizontality that is inconsistent and partial.

Jamaica’s 2011 Charter of Fundamental Rights and Freedoms also introduced the concept of bounded interpretive horizontality. Section 13(5) of the Charter allows for the application of constitutional rights to private relationships. However, this application is not unlimited. The Jamaican Constitution does not subject every private relationship to the Constitution, nor every fundamental right. Like South Africa, the Jamaican Constitution was intended to tackle disparities in power between private parties. The Jamaican courts have grappled with the challenge of balancing competing rights and determining the limits of horizontal application. The courts have tended towards a “balancing” doctrine and focusing on whether “adequate alternative remedies” exist in other laws to limit the application of horizontality. The Jamaican courts have engaged in depth with judgments from other jurisdictions, using comparative examples in their judgments.

Both Kenya and Jamaica’s horizontal rights doctrines are works in progress. While both jurisdictions have embraced the idea of applying constitutional rights to private relationships, they continue to grapple with questions around the limits of this application, and the need for a clear normative framework to guide decision-making in horizontal rights cases. An institutional approach, taking into account the institutionally-mediated power differences, may be a useful way to address the gaps in the current doctrine (Bhatia, 2024).

EU Law

The EU legal order incorporates all three dimensions of horizontality (direct, indirect, and state-mediated effect) (Frantziou, 2019; Walkila, 2016). However, in practice, the EU focuses almost exclusively on direct horizontal effect or its absence (Frantziou, 2019; Walkila, 2016). The EU law is influenced by different legal traditions but has its own method of systematisation of law (Frantziou, 2019; Walkila, 2016). The Court of Justice of the EU tends to pronounce itself on a case-by-case basis, which has led to complex concepts (Frantziou, 2019; Walkila, 2016).

Key Considerations:

• Public Interest: The application of horizontal effect is often justified by a ‘public interest’ reason that constitutionally justifies applying constitutional rights in private relationships (Frantziou, 2019; Walkila, 2016).
• Interchangeability of Approaches: Different forms of horizontality are seen as complementary and interchangeable (Frantziou, 2019). What is key is the effective constitutional justification as a means of recognizing private relations in which fundamental rights are relevant (Frantziou, 2019).
• Context: The application of rights can be influenced by the context of the specific situation, with proportionality analysis allowing for a more nuanced application of rights (Frantziou, 2019).

The horizontal application of constitutional rights is a complex and evolving area of law (Frantziou, 2019). Different jurisdictions have adopted various approaches, influenced by their unique constitutional and legal traditions (Frantziou, 2019). While some, like Germany, favor indirect application, others, like South Africa, have embraced a more direct approach (Frantziou, 2019; Van der Walt, 2012). The United States, with its state action doctrine, stands out as more restrictive on the direct application of constitutional rights to the private sphere (Balkin, 2014). The EU legal order incorporates various dimensions of horizontality, focusing more on direct effect (Frantziou, 2019).

With this awareness, let us discuss Horizontal Approach in Indian context.

The Indian Constitutional Framework for Horizontal Rights

Unlike many constitutions that focus solely on state action, the Indian Constitution explicitly recognizes horizontal rights in specific provisions:

• Article 15(2): Prohibits discrimination in access to public spaces and services.
• Article 17: Abolishes untouchability.
• Article 23: Prohibits human trafficking and forced labour.
• Article 24: Prohibits child labour in hazardous industries

These provisions directly regulate interactions between private parties, reflecting India’s commitment to addressing deep-rooted social inequalities and how private entities have taken an active part in perpetrating such inequalities.

Case law and institutional interpretation

Indian courts have interpreted fundamental rights in a manner that extends their applicability beyond state actors, particularly through an institutional approach (Bhatia, 2021).

The horizontal application of fundamental rights in India, where these rights are enforceable against private individuals and entities, has been a significant aspect of the country’s constitutional jurisprudence. This approach ensures that fundamental rights are not only protected against state actions but also in interactions between private parties.

In 1982, the Supreme Court addressed this concept in the case of People’s Union for Democratic Rights (PUDR) v. Union of India (1982 AIR 1473). The Court examined the exploitation of labourers involved in the construction projects for the 1982 Asian Games in New Delhi. The petitioners argued that the workers were subjected to inhumane conditions, denied minimum wages, and coerced into labour, violating their fundamental rights. Invoking Article 23, which prohibits trafficking in human beings and forced labour, the Court recognized that forcing individuals to work for less than the minimum wage constitutes a form of forced labour. This judgment expanded the interpretation of forced labour to include economic coercion and underscored the state’s obligation to protect vulnerable workers from exploitation.

Later, in the landmark judgment of Indian Young Lawyers’ Association v. State of Kerala ((2017) 10 SCC 689), commonly known as the Sabarimala case, the Supreme Court further explored the horizontal application of fundamental rights. The case centred on the exclusion of women aged 10 to 50 from entering the Sabarimala Temple, a practice based on notions of purity related to menstruation. Justice D.Y. Chandrachud, in his concurring opinion, invoked Article 17, which abolishes “untouchability” in all its forms. He argued that the exclusion of women based on physiological factors perpetuated a form of social exclusion akin to untouchability, thereby violating constitutional values by a religious trust rather than by a state. He emphasized that such practices stigmatize individuals and have no place in a constitutional order.

More recently, in the case of Kaushal Kishor v. State of Uttar Pradesh (2023) 4 SCC 1), the Supreme Court delved deeper into the horizontal application of fundamental rights. The Court examined whether fundamental rights under Articles 19 and 21 could be enforced against private individuals and entities. In a 4:1 majority decision, the Court held that these rights are indeed enforceable against non-state actors. This, being the latest and a specific judgement on the horizontal approach—with a question being formulated and answered in the judgement—is worthy of consideration for a better understanding.

On Kaushal Kishor judgment on horizontality:

In 2016, a writ petition was filed in the Supreme Court of India seeking action against a U.P. government minister who called a gang rape case a “political controversy”. The petitioner in the case, Kaushal Kishor v. Union of India, also sought a fair investigation and transfer of the trial outside of Uttar Pradesh. The minister then apologized to the Supreme Court, and the matter should have rested, but in October 2017, the case was referred to a five-judge Constitution Bench.

During this time, the Court also took up a Special Leave Petition (Diary) that raised similar questions about statements made by a Kerala government minister and tagged it with the original writ petition. The Constitution Bench then framed five questions for resolution:

• Whether restrictions on free speech could be imposed on grounds not found in Article 19(2) of the Constitution
• Whether fundamental rights could be claimed against non-state actors
• Whether the State has a duty to protect citizens’ rights against threats from private parties
• Whether a minister’s statement could be attributed to the government
• Whether a minister’s statement violating a citizen’s rights constitutes a “constitutional tort”

The majority opinion, delivered by Justice V. Ramasubramanian, held that a fundamental right under Article 19 or 21 can be enforced against persons other than the State or its instrumentalities.

Evolution of “State”: The court traced how the concept of “State” has broadened over time. Initially, fundamental rights were enforced only against the State. However, this understanding expanded to include “Authorities,” “instrumentalities of State,” “agency of the Government,” entities with “governmental character,” those with “monopoly status conferred by State,” those under “deep and pervasive control,” and ultimately to include entities based on the “nature of the duties/functions performed”. This evolution was crucial in recognizing that fundamental rights could be infringed upon by private actors.

Technological Advancements: The court acknowledged the increasing role of private players in infringing upon fundamental rights due to technological advancements. The court pointed out that infringement of the right to privacy was now mostly by private players. If fundamental rights cannot be enforced against non-State actors, these rights would be severely undermined.

Interpretation of Article 21: The court emphasized the broad interpretation of the right to life under Article 21. This right now includes a variety of rights, making it possible to hold non-state actors accountable for violations. The court noted that the focus has shifted from “who the respondent was” to “the nature of the duties/functions performed” by the respondent in determining amenability to jurisdiction under Article 226.

Paramountcy of Personal Liberty: The court highlighted that the right to personal liberty is paramount, and the state has a duty to protect it even from non-state actors. This emphasized the state’s positive obligation to protect citizen’s rights.

Horizontal Effect: The majority acknowledged that some fundamental rights are specifically granted against non-State actors, such as Article 15(2) (a) (access to public places), Article 17 (untouchability), Article 23 (forced labour), and Article 24 (child labour). Additionally, aspects of Article 21, like the right to a clean environment, have been enforced against private parties.

Dissenting Opinion on Horizontality:

Justice Nagarathna’s dissenting opinion offers a different perspective on the issue of horizontality. While agreeing that Article 19(2) is exhaustive regarding restrictions on free speech, she argued that fundamental rights under Articles 19 and 21 cannot generally be enforced against non-state actors. She distinguished between common law rights and fundamental rights, stating that common law remedies are available in cases of infringement by private individuals. She also pointed out that a writ petition to enforce fundamental rights would not be entertained against non-state entities, especially because such matters involve disputed questions of fact.

Exception for Habeas Corpus: Nagarathna J. noted an exception in cases where a writ of habeas corpus is sought against a private person based on Article 21, in which case a constitutional court could hear the matter.

Rejection of Broad Horizontality: The dissenting opinion explicitly rejected the notion of allowing fundamental rights to operate broadly between private citizens. It suggested that doing so would render the tests and doctrines developed by the Court to define “State” under Article 12 redundant.

Despite a seemingly progressive stance, the judgement was criticised for taking upon a question of law on itself without having the explicit need to.

Conceptual Confusion and Conflation: A major point of criticism is that the judgment demonstrated a fundamental misunderstanding of horizontality. The court, according to some, conflated different concepts related to the application of constitutional principles to non-state actors. These concepts include state action, where the state is directly involved; indirect horizontality, where the law affects private parties through interpretation; and situations where the judiciary itself is considered part of the state. This lack of conceptual clarity was seen as a significant flaw, muddling the understanding of how constitutional rights should apply in different contexts. The judgment was criticized for conflating distinct legal approaches, misrepresenting countries’ positions on horizontality, and providing an outdated, inaccurate comparative analysis.

Lack of Engagement with Doctrinal Nuances: The judgment was criticized for not engaging with the nuances of how horizontality is understood and applied in different jurisdictions. Critics argue that the judgment ignores the structure of the Indian Constitution, which explicitly provides for horizontal application of certain fundamental rights (Articles 15(2), 17, 23, and 24), while being silent on others. This is interpreted to mean that the constitution intends for horizontal application only in specific carve-outs. The judgment was criticized for failing to explain why it departs from the obvious result of this textual structure, thereby opening the Pandora’s box of litigation wherein people approach constitutional courts for recourses that exist in common law. The critique went to the extent of arguing that the judgement is ‘unconstitutional informal constitutional changes’—meaning that the judgement has an effect of changing the constitutional goals so radically that it falls under the category of ‘constitutional dismemberments’

Is it so radical?

It is radical to the extent of saying in unequivocal terms that Article 19 and 21, the 2/3 of the commonly known Golden Triangle is enforceable against private parties. However, to say that the judgement falls under the category of ‘constitutional dismemberments’ would be an exaggeration.

While a result of uncalled judicial enthusiasm to philosophize constitutional issues, the judgement merely posits that if there is a fundamental right (Articles 19 and 21) violation by a private party, the right can be enforced.

The Kaushal Kishor judgment should not be interpreted as an open invitation for individuals to approach the Supreme Court for grievances that can be addressed through common law remedies. Instead, it must be understood within the context of Indian realities, where marginalized individuals often lack the means to navigate complex bureaucratic and legal systems to seek redress for violations of their fundamental rights. The Supreme Court has historically served as a beacon of hope for such individuals. In this context, empowering the Court to enforce fundamental rights, particularly the expansive rights under Articles 19 and 21, against private parties is both practical and necessary.

Conclusion

The judgement appreciably, defines, the concepts of vertical and horizontal effects of constitutional rights. It clarifies that constitutional rights have a “vertical effect” when they regulate the conduct of the government and governmental actors in their dealings with private individuals, while they have a “horizontal effect” when they impact the relationships between private individuals. [Para 74]

Moreover, the expansion of this doctrine will not rest on this single case but will develop through multiple rulings, allowing for corrections over time. Viewing it as a radical upheaval is unwarranted.  India’s stance has evolved, with Kaushal Kishor v. State of Uttar Pradesh recognizing the enforceability of Articles 19 and 21 against private entities. While this brings India closer to South Africa and Ireland, one could rightly argue that it lacks doctrinal clarity and risks overextension. Unlike Germany or Canada, India has not developed a robust framework for indirect horizontality, leaving room for judicial refinement.

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

REFERENCES

1. Balkin, J.M., 2014. Old school/new school speech regulation. Harvard Law Review, 127(8), pp.2296-2345.
2. Bhatia, G., 2021. Horizontal rights: An institutional approach (Doctoral dissertation, Balliol College).
3. Bhatia, G., 2021. Horizontal rights: an institutional approach. [online] Ox.ac.uk. Available at: https://ora.ox.ac.uk/objects/uuid:c40d9e07-102c-49da-89ca-f0f0ffaed36c [Accessed 3 Feb. 2025].
4. Bhatia, G., 2024. ISLANDS OF POWER: HORIZONTAL RIGHTS APPLICATION UNDER THE JAMAICAN CHARTER. Available at SSRN.
5. Brewer-Carias, A.R., 1989. Judicial review in comparative law. Cambridge University Press.
6. Frantziou, E., 2019. The horizontal effect of fundamental rights in the European Union. Oxford University Press.
7. Friedmann, D. and Barak-Erez, D. eds., 2001. Human rights in private law. Hart Publishing.
8. Hartkamp, A., 2012. European law and national private law. Effect of EU law and European human rights law on legal relationships between individuals. Wolters Kluwer Law & Business.
9. Henkin, L., 1962. Shelley v. Kraemer: Notes for a Revised Opinion. University of Pennsylvania Law Review, 110(4), pp.473–505.
10. Henne, T. and Riedlinger, A. (Eds.), 2005. Das Lüth Urteil aus (rechts-) historischer Sicht, Die Konflikte um Veit Harlan und die Grundrechtsjudikatur des Bundesverfassungsgerichts. Berliner Wissenschaftsverlag.
11. Hunt, M., 1998. The “Horizontal Effect” of the Human Rights Act. Public Law, pp.423–443.
12. Katharina Stein, S., 2022. IACL-IADC Blog. [online] IACL-IADC Blog. Available at: https://blog-iacl-aidc.org/new-blog-3/2022/6/14/lth-and-elfes-a-german-approach-to-a-horizontal-effect-of-fundamental-rights [Accessed 3 Feb. 2025].
13. Malik, A.N., 2007. Horizontal Application of Fundamental Rights in India. University of Toronto.
14. Nerken, I., 1977. A New Deal for the Protection of Fourteenth Amendment Rights: Challenging the Doctrinal Bases of the Civil Rights Cases and State Action Theory. Harvard Civil Rights-Civil Liberties Law Review, 12(2), pp.297-329.
15. O’Cinneide, C., 2007. Ireland: Irish constitutional law and direct horizontal effect—a successful experiment? In D. Oliver & J. Fedtke (Eds.), Human rights and the private sphere: A comparative study (pp.173-192). Routledge.
16. Rodriguez Liboreiro, A., 2007. Spain: A jurisdiction recognising the direct horizontal application of human rights. In D. Oliver & J. Fedtke (Eds.), Human rights and the private sphere: A comparative study (pp.213-232). Routledge.
17. Sadurski, W., 1997. Legitimacy and Reasons of Constitutional Review after Communism. In W. Sadurski (Ed.), Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts (pp.173-190). Kluwer Law International.
18. Saunders, C., 2005. Constitutional Rights and the Common Law. In A. Sajo & R. Uitz (Eds.), The Constitution in Private Relations (pp.87-110). Eleven International Publishing.
19. Smits, J., 2010. Democracy and (European) private law: A functional approach. In Globalization and Private Law. Edward Elgar Publishing.
20. Thomas, J., 2016. Our rights, but whose duties? Re-conceptualizing rights in the era of globalization. In T. Kahana & A. Scolnicov (Eds.), Boundaries of State, Boundaries of Rights: Human Rights, Private Actors, and Positive Obligations (pp.1-26). Cambridge University Press.
21. Van der Walt, J., 2012. Rethinking the Fundamental Structures of the State with Reference to the Horizontal Application of Fundamental Rights. In M. Sachs, H. Siekmann, H-J. Blanke, J. Dietlein, M. Nierhaus, & G. Puttner (Eds.), Der grundrechtsgeprägte Verfassungsstaat. Festschrift für Klaus Stern zum 80. Geburtstag (pp.1-20). Duncker & Humblot.
22. Walkila, S.H.I., 2016. Horizontal effect of fundamental rights in EU law. Europa Law Publishing.
23. Weinrib, L.E. and Weinrib, E.J., 2001. Constitutional values and private law in Canada. In D. Friedmann & D. Barak-Erez (Eds.), Human rights in private law (pp.41-72). Hart Publishing.

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How this manifests with respect to remand and police custody has already been discussed here. This time, we move a little away from personal freedoms and come to property of the accused. What does BNSS allow to be done to the property of an accused person or property that is a ‘proceeds of crime?’ And how does such facilitation by the BNSS fare against the realities of Indian Criminal Justice system. This is the point of discussion forthwith.

Property and criminal justice system

From the Mauryans to the Romans—every kingdom gave itself the power to confiscate the property of criminals. In the ancient and medieval times—we see on paper that if someone is a criminal—i.e., if someone has committed a criminal act and got some value out of it, and if it is proved as such, the property arising out of such criminal act would be forfeited with or without a fine.[1][2] For example, if someone stole cattle, they’d have to give back the cattle and may be some fine apart from the punishment.[3] This got carried onto today. In the CrPC, 1898- the predecessor of CrPC 1973—there were provisions to attach the property until a fine is paid or if there is a dispute over the possession of property that is causing disturbance to peace.[4]

However, with the introduction of the BNSS, a new regime has unfolded. A regime in which property could be attached if the police reasonably believe something (property) to be derived from a crime and could even be liquidated before the crime is proven. Many use the word ‘medieval’ to describe any archaic notions and paradigms and in this case of BNSS and property attachment, using medieval sounds like a medal.

The transition from the Code of Criminal Procedure (CrPC), 1973, to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a critical shift, particularly in relation to police and judicial powers over property attachment. While CrPC provided limited powers regarding the seizure and attachment of property, especially immovable assets, BNSS introduces an expansive approach, broadening the scope of attachment beyond absconding accused persons to encompass all criminal activities. The Prevention of Money Laundering Act, 2002 (PMLA), as a special law, had already established attachment provisions targeting financial crimes. However, BNSS now extends similar provisions across all criminal cases, raising concerns about the extent of police and judicial discretion.

Attachment of property under CrPC: limited and case-specific

What is an ‘attachment’ is a question we need to have answer for, before any further discussion can happen. Attachment of the property means that the properties in question are held in custodia legis (in the custody of the law).

Under the CrPC, property attachment was primarily governed by Sections 82, 83, and 102. These provisions delineated different contexts in which property could be seized or attached. Section 82 provided for the proclamation of an absconding accused, requiring them to appear before the court within a stipulated period. If the accused failed to comply, Section 83 allowed courts to attach both movable and immovable property of the absconding individual. This attachment served as a coercive measure to ensure the accused’s presence in court. The fundamental premise of this provision was to deal with fugitives rather than to target assets suspected to be linked to criminal activities.

Section 102, on the other hand, was a police power confined strictly to the seizure of movable property. It enabled law enforcement to seize property suspected of being stolen or involved in an offense. However, this provision did not extend to immovable property, a limitation clarified by the Supreme Court in Nevada Properties Private Limited v. State of Maharashtra (2019).[5] The court explicitly ruled that Section 102 only permitted the seizure of movable property, thereby excluding any interpretation that allowed for the attachment of immovable assets. Consequently, under the CrPC, the ability of law enforcement to interfere with immovable property was primarily restricted (in general terms) to cases of absconding accused under Section 83A.[6]

Why did the Supreme Court say that Section 102 of the CrPC only applied to movable property?

Section 102(1) states as follows: Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the Commission of any offence.

A literal interpretation of the word ‘any property’ would enable a court to arrive at both movable and immovable property. The court however frowned at giving the power to the police officers to seize immovable property. It stated as follows:

“In case and if we allow the police officer to ‘seize’ immovable property on a mere ‘suspicion of the commission of any offence’, it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised. We have hardly come across any case where immovable property was seized vide an attachment order that was treated as a seizure order by police officer under Section 102 of the Code. The reason is obvious. Disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side.”

Here, the court recognised the power of police, the inherent power imbalance and therefore did not go with the reading which would have resulted in Section 102 applying to immovable property.

BNSS’s expansion: section 106 & section 107

The BNSS largely retains Sections 82 and 83 from the CrPC but significantly alters the landscape of property attachment by bifurcating Section 102 into two separate provisions—Sections 106 and 107. Section 106 of BNSS serves as a direct successor to Section 102 of the CrPC, retaining its essence by allowing police to seize movable property linked to a criminal offense. However, a major development appears in Section 107, which significantly expands the police and judicial powers regarding property attachment. We could understand Section 107 of BNSS (Police power to apply for attachment and court’s power to liquidate the property) as a combination of Section 102 of CrPC (Police power to seize) plus Section 83 of the CrPC (Attaching the property of the absconder).

Section 107 of BNSS allows the police to apply to a magistrate for the attachment of property reasonably believed to be proceeds of a crime. Unlike Section 83 of the CrPC, which was confined to absconding accused, Section 107 applies to any criminal activity, making it far more expansive. The magistrate, upon satisfaction that the property is linked to a crime, may issue a Show Cause Notice (SCN) to the owner. If the owner fails to respond within 14 days, the magistrate can order an ex-parte attachment, meaning that property can be attached without the owner’s presence or contestation. This represents a dramatic shift in power, allowing attachment of property at an early stage of criminal proceedings without a final conviction.

Immovable property too can be attached under section 107

Under Section 107, the terms “property” and “proceeds of crime” are defined in Section 111. “Proceeds of crime” refers to any property that has been gained directly or indirectly from criminal activities, including those involving money transfers. “Property,” on the other hand, is broadly defined to include all types of assets—whether physical or intangible, movable or immovable. It also covers documents proving ownership or interest in such assets, as well as any property obtained through proceeds of crime. This broad definition means that even assets not directly involved in a crime but somehow linked to it can be attached or liquidated, widening the scope of police action under BNSS.

Liquidation of assets under section 107

A controversial aspect of Section 107 is its provision for liquidation of the attached property before the trial concludes. If the court determines that the property is indeed the proceeds of crime, it may order its liquidation and distribution to victims or, in the absence of claimants, its forfeiture to the government. This raises serious concerns about property rights, particularly in cases where the accused is later acquitted but their property has already been liquidated.

This is what the relevant provision related to liquidation says:

Section 107(6): (6) If the Court or the Magistrate finds the attached or seized properties to be the proceeds of crime, the Court or the Magistrate shall by order direct the District Magistrate to rateably distribute such proceeds of crime to the persons who are affected by such crime.

What we do not get to see in this sub-section is a requirement for the court to first satisfy itself that the crime has occurred, and the property is a proceed of such crime.  All it needs to satisfy itself is that the property is a proceed of crime. Which crime? We will not know.

Expansive powers impacting civilians

One of the most concerning aspects of Section 107 is its potential for misuse against ordinary civilians. Consider a case where a small business owner is falsely implicated in a financial fraud case. Under BNSS, their property could be attached and liquidated before they even get a chance to prove their innocence. Unlike under PMLA, which limits attachment to scheduled offenses, BNSS allows attachment for any criminal activity, meaning even minor accusations could lead to serious consequences. If the business owner is later acquitted, there is no clear mechanism for restoring their property, as the law does not provide for post-liquidation restitution.

Similarly, consider a tenant whose landlord is accused of a crime. Under Section 107, if the authorities suspect that rent payments were linked to criminal proceeds, the property could be attached. The tenant could be evicted without any means of legal recourse, illustrating how BNSS’s sweeping powers could inadvertently impact uninvolved third parties.

Shifting power to the police and the role of judicial oversight

A crucial issue with BNSS’s Section 107 is the unprecedented shift in power to the police, who serve as the initiators of the attachment process. Under this provision, law enforcement officers have the discretion to determine whether a property is linked to a crime and seek a magistrate’s order for its attachment. This centralization of authority with the police raises significant concerns, as it places immense power in their hands over civilians’ property rights.

Given India’s historical challenges with police accountability and instances of abuse of power, the ability of law enforcement to attach and cause liquidation of property before a trial is concluded is particularly alarming. Without strict judicial vigilance, there is a high risk that Section 107 could be misused for political vendettas, personal grudges, or as a coercive tool to extract compliance from individuals accused of minor offenses. Judicial officers must exercise stringent oversight to ensure that ex-parte attachments are granted only in the most compelling cases, and that property liquidation does not occur without exhaustive scrutiny of the alleged criminal link. If the judiciary fails to curb potential excesses, Section 107 could become a powerful mechanism for state overreach at the cost of due process and individual rights.

Lack of restoration despite mention in section’s marginal note

A striking irony in Section 107 is the mention of “restoration” in its marginal note, despite no actual provision for returning property once liquidated. This is what the marginal note says: Attachment, forfeiture or restoration of property.

This contradiction is concerning because, once an asset is liquidated, it ceases to exist in its original form, making restoration impossible even if the accused is acquitted. This deviates from principles of justice, where wrongful deprivation should ideally be rectified. Unlike PMLA, which offers procedural checks before permanent forfeiture, BNSS provides no such recourse, exacerbating concerns about potential injustices.

Conclusion

Bharatiya Nagarik Suraksha Sanhita (BNSS), despite being positioned as a general statute intended to replace and modernize the Code of Criminal Procedure, has introduced attachment and liquidation provisions that reach beyond the stringent framework once reserved for specialized laws like PMLA. By normalizing expansive police powers—even in cases that fall outside the realm of serious financial crimes—BNSS tips the balance starkly in favour of law enforcement, often at the expense of individual property rights and due process. The risk here is not only theoretical: without clear judicial safeguards and robust accountability mechanisms, individuals and even third parties can find themselves embroiled in sweeping asset seizures with little chance of recuperation if later proven innocent. Rather than reinforcing the principle that one is presumed innocent until proven guilty, these new provisions hasten punitive actions that can effectively punish the accused long before any judicial determination. This gap—between the power of the state and the shrinking protections afforded to its citizens—poses a grave concern for the integrity of India’s criminal justice system. If left unchecked, these types of provisions could erode core democratic principles, overshadow existing specialized legislation, and embolden overreach by authorities, thereby undermining the very notion of Suraksha the BNSS promises to uphold.

(The legal researcher is part of the organisations legal research team)

[1] Ubale, S.V. and Salgar, P.B., 2021. Evaluating the Concept of Corruption through Kautilya’s Arthashastra: A Comparative Study in View of Modern Application. Issue 3 Int’l JL Mgmt. & Human., 4, p.4025.

[2] Loewenstein, K., 1973. The Administration of Justice. In The Governance of ROME (pp. 179-191). Dordrecht: Springer Netherlands.

[3] García, A.B.Z., 2022. Confiscation of assets as an accessory penalty. Revista Diálogos Mediterrânicos, (22), pp.95-111.

[4] Section 139, CrPC, 1898. Available at: https://cvc.gov.in/files/vigilance-manual-pdf/vm21ch5/vm17ch5/Code%20of%20Criminal%20Procedure%201898%20(repealed).pdf

[5] [2019] 15 S.C.R. 223

[6] A separate Chapter VII A exists for dealing with attachments of “proceeds of crimes” which involve other countries.

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