For me, what I can see is that as soon as the Trinamool lost power in Bengal, those 20 representatives of people who fought on the plank of the Trinamool shifted their allegiance to NDA. That is the objective truth. The reasons i.e., whether they shifted their allegiance due to a fear of getting hounded by the ED, or due to there being no reason to be obedient to the Trinamool leadership anymore or due to the change in their own value system which now pushes them to support NDA, these could be multiple. Irrespective of the reasons, this article tries to understand the implications of this shift or any shift of political allegiances for that matter for the Indian polity, what it means for our Constitutional Democracy and where does the Tenth Schedule of the Indian Constitution sit in all of this.

The framers wrote no anti-defection provision into the document that took effect in 1950. This was less an oversight than a reflection of the assumptions of the age. The very term “political party” did not appear in the original Constitution; the framers conceived of Parliament as an assembly of representatives, not as a battlefield of disciplined party blocs. India had borrowed the Westminster model, in which party loyalty was a matter of political convention rather than constitutional law and where a member who “crossed the floor” answered to his conscience and his constituents.

There was a deeper philosophical inheritance too. The Burkean ideal of the representative — the member who owes the electorate his judgement and not merely his obedience — sat comfortably with a freedom movement whose leaders had been chosen for their moral standing. In the first decade after independence, defection was rare until the Congress started to lose the states. The four years between 1967 and 1971 saw 142 defections in Parliament and 1,969 in the state assemblies. Thirty-two governments collapsed and 212 defectors were rewarded with ministerial berths. Roughly half of the nearly four thousand legislators elected in 1967 and 1971 changed sides at least once. The link between the vote and the seat had broken.

It was this period, often called the era of “Aaya Ram Gaya Ram” politics, that turned defection from an occasional embarrassment into a structural crisis. The phrase itself came from a Haryana legislator who switched parties three times in a single day in 1967, and it entered popular vocabulary as shorthand for the mercenary nature of Indian legislative politics. Governments were being made and unmade in backroom negotiations, with ministerships traded like commodities. The democratic process, in effect, had been reduced to the first act of a play whose second act was written entirely by party managers and power brokers. The public mandate, once given, seemed to dissolve the moment the results were declared.

How the Tenth Schedule came to be?

Following the report of the Y. B. Chavan committee, two separate legislative attempts, both unsuccessful, were made to find a solution to defections. The first was made by Indira Gandhi’s home minister, Uma Shankar Dikshit, in 1973; the second, in 1978, by Shanti Bhushan, minister for law and justice in the Janata Party government of Morarji Desai. It was only in 1985, under Rajiv Gandhi’s government, that the Fifty-second Amendment inserted the Tenth Schedule. Its purpose was to address the culture of defections.

The mechanism was simple. A legislator would be disqualified if he voluntarily gave up the membership of his party or if he voted or abstained against the direction of his party whip. Two escape hatches were built in: a “split” involving one-third of the legislative party and a “merger” involving two-thirds. The split provision became the law’s most exploited loophole, and the 91st Amendment of the Indian Constitution (2003) removed it, leaving only the two-thirds merger.

Essentially, it is a constitutional provision engineered to discourage defections from one party to another, of legislators, except when an overwhelming majority of the legislators, as decided by the upper echelons of the party decide to merge with another parliamentary party. How does the schedule decide if someone switched sides or not? One, if the member voluntarily relinquishes the membership of the political party he was elected from. Two, when she does not vote according to the whip of the political party. The politics of power ensured that much interpretation happens on this schedule. Additionally, the fact that it is the speaker who decides whether an elected representative becomes disqualified or not has made it easier for ruling parties to mend the schedule to fit their whims. A very brief jurisprudential history of the tenth schedule is necessary before a systematic analysis of the philosophy behind it is done

In Kihoto Hollohan v. Zachillhu (1992), a five-judge bench upheld the law by a 3:2 majority, held that courts could intervene only after the Speaker passed a final order, and only on narrow grounds such as mala fides or violation of natural justice. In Ravi S. Naik vs. Union of India (1994) the Court held that “voluntarily giving up membership” need not mean a formal resignation; it can be inferred from conduct. In Rajendra Singh Rana v. Swamy Prasad Maurya(2007) it held that a Speaker’s prolonged inaction is itself open to review. In Keisham Meghachandra Singh vs. Speaker, Manipur Legislative Assembly (2020) it suggested a three-month deadline and openly questioned whether the Speaker should be the adjudicator at all, recommending that Parliament consider a permanent tribunal headed by a retired judge. In Subhash Desai v. Principal Secretary (2023), arising from the Shiv Sena split, it held that the Governor had no business ordering a floor test on the material before him, and that the whip belongs to the political party rather than to the legislature party.

The most recent chapter unfolded in Telangana, and it is the clearest indictment yet. In Padi Kaushik Reddy v. State of Telangana (2025), the Supreme Court held that a Speaker acting as a tribunal under the Tenth Schedule enjoys no constitutional immunity under Articles 122 or 212, and must decide within three months. Yet when the Telangana Speaker finally conducted his in-camera hearings, he dismissed the petitions and cleared the BRS legislators who had joined the Congress, finding no “conclusive documentary or legally sustainable evidence” of defection. How could he? He was elected to the legislature on a Congress ticket. He is neither accountable to the people nor to the court and in that case, it is naïve to expect the speaker to decide in any other way than in ways favoring the existing ruling party.

So, essentially, people can get disqualified but if the speaker deems so, they will not be. The judicial review on the decision of speaker does not have a wide scope. This is the result of the jurisprudence on the tenth schedule until now.

What emerges from this jurisprudential arc is a portrait of an institution trying, case by case, to patch the cracks of a fundamentally compromised design. The judiciary has steadily expanded the grounds for intervention — from conduct-based inference in Ravi S. Naik, to review of inaction in Rajendra Singh Rana, to stripping constitutional immunity in Padi Kaushik Reddy — and yet each judicial correction has only showed how little the law’s original architecture can bear the weight placed upon it. The courts have been forced into the role of reformers precisely because the schedule’s own enforcement mechanism, the Speaker, has repeatedly failed the test of impartiality. This pattern of judicial expansion and executive evasion provides the necessary context for asking the deeper question: what, structurally, makes the Tenth Schedule so easy to circumvent?

Now, we need to, in the context of this knowledge, question, examine, analyse and understand what it is that power defections despite a strong constitutional safeguard against it? There can be many explanations but two should come on top. One, that Tenth Schedule is inadequate in its strength to carry out its endeavour and it is prone to huge exploitation. Second, the Tenth Schedule is being made powerless by institutional ignorance of political realities of India and such powerlessness of the Schedule has created buffers where the ruling political apparatus can operate with impunity.

Inadequacy of the Tenth Schedule

If one reads a single election result-day newspaper and the Tenth Schedule, for the first time, one will easily understand the issue with the Schedule. The Schedule disqualifies those who defect and gives on exception where 2/3 of the members merge, as stated before. Now, when has it ever been the case that a ruling party speaker had to decide something and he/she did so in detriment to the ruling party? In the absence of such convention, the Tenth Schedule added in 1985, places the responsibility on the Speaker to be impartial. There would even be cases in which his own chair will be in danger if he decides in favour the party from which people have defected. The logic behind putting speaker at the centre of the system was not a prudent choice.

The Speaker problem, however, is only one face of the schedule’s inadequacy. Equally troubling is the merger exception itself. By permitting two-thirds of a legislative party to merge with another without attracting disqualification, the schedule inadvertently creates a perverse incentive i.e., rather than discouraging defection, it rewards it so long as it is done at sufficient scale. The very evil the law was designed to cure i.e., the wholesale shifting of political allegiance for the spoils of power, is precisely what the merger clause facilitates when a critical mass can be assembled. What was conceived as a safety valve for genuine ideological realignment has, in practice, become the preferred route for engineered political takeovers. And this structural vulnerability is the mechanism through which the TMC merger described at the outset of this article was made possible.

The whip and the death of debate

Because a legislator must vote as the whip directs on pain of disqualification, he is reduced to a voting machine for the party high command. His conscience, his constituency, and the deliberative function of the legislature are all subordinated to the leadership. The MP or MLA ends up representing neither the nation nor the voters of his constituency but only his political party. A law sold as a defence of democracy has, in practice, hollowed out the independence of the average legislator and concentrated power at the top.

Say for example, take the recent defector who went from TMC to the NCPI- Kakoli Ghosh Dastidar—the MP from Barasat, West Bengal. Imagine if all the electors of Barasat decide that Kakoli Ghosh should in fact support the NDA on the Delimitation Bill, should she not support the NDA? If this scenario occurs, the Tenth Schedule would stand as an impediment to the realisation of people’s goals. If the whip of TMC issues a diktat that all Members of the Parliamentary party shall vote against, Kakoli would be facing a disorienting dilemma—whether to vote for the bill and betray her party or vote against the bill and betray her constituency. Am I trying to say that Tenth Schedule is an impediment to functioning of democracy? No. Let that be clear. However, I am saying that the Tenth Schedule does not anticipate this sort of situation where a representative is understood beyond the party from which they won. Its binary nature, where a representative either obeys the party or disobeys it is too narrow to contain and engage with the intricacies of the Indian electoral politics.

Moreover, there is no way to know whether the electors of Barasat want Kakoli to vote one way or the other in case of any bill. One could argue that the BJP winning majority assembly constituencies in the Barasat Lok Sabha is an indication of the support however, this specific question was not asked to the electorate for us to assume it to be its decision. The constitution, as dynamic and foresighted as it is, has no provisions to understand the will of the people, especially when it seems to be changing in between the election cycle.

Does this mean the Tenth Schedule should not exist? No. It should. The material reality of realpolitik today is that there are resort politics where MLAs and MPs are threatened and wrongfully restrained and are traded across parties. Add to the mix the unholy duo of CBI and ED ready at the command of ruling establishment, institutional support is mandatory for the representatives of people, as ironic as it sounds. The Tenth Schedule in its current form does not give such institutional protection. What it merely does is add a step of buying more MLAs or MPs, for whoever wants to topple governments or merge parties.

In essence, the Tenth Schedule is inadequate in more than one way. On one hand, it does not have the institutional apparatus to engage with real change of values and ideas, real debate between members of parliament, belonging to the same party. It essentially says, if you as a Member of Parliament or the Member of Legislative Assembly have any differences with the party you won from, you better settle them at the headquarters of the Party rather than coming with them to the legislature.  This inadequacy serves as a tool in the hands of political parties to divide the house into fewer parts than when it would be divided into if the members were left to their own means or with minimal whip control.

On the other hand, it leaves a big hole in its own regime. While it might be hard to convince a good 60 MPs, it is rather easy, as can be seen, to convince or somehow make 20 MPs of a smaller party to support the ruling government. This becomes a cakewalk when the decision-making power is vested in speaker, a defacto appointee of the ruling government and by extension, the party.

How to fix this?

The remedies have been on the table for decades. Some suggest a narrowing of the scope of the whip. They argue that limiting it to votes that genuinely threaten the survival of a government, namely confidence motions and money bills, and freeing legislators to vote their conscience on everything else will be a better appreciation of the Westminster model of the government.

Another suggestion is to take the decision away from the Speaker and place it in an independent authority like the President or Governor acting on the binding advice of the Election Commission, as the Dinesh Goswami Committee recommended in 1990, or a permanent tribunal headed by a retired judge, as the Supreme Court suggested in Keisham (2020).

While these suggestions are noteworthy and require a serious consideration, it is necessary to note the rot in the Indian electoral politics wherein no amount of freedom can have many of the legislators act with conscience. They all require contracts, tie-ups with big businesses and maintenance of their riches in their own constituencies. This is not a version of ‘cynic-speak’ but a reality that we face today. Many of the members of Parliament have business interests that align and meet with political interests. The average assets of ruling BJP MPs today are Rs. 50 Crore and the opposition Congress MPs’ average assets are Rs. 22 Crore and over 100 MPs’ assets grew by 110% between 2014-2024. To assume that they will use their free conscience is imprudent. Moreover, there are hardly any institutions left in this country where the ruling establishment has not put its hand into and has not started to control. From interpretation of the law to enforcement of the law, from preparation for elections to conduct of elections, the institutions are under a threat of unimaginable proportion. Therefore, if institutions like the President, or the Governor or the Election Commission are to be trusted with the enforcement of a renewed Tenth Schedule, they would not yield any drastically different and positive results than what we have today.

Until now, the discussion has been this. A lot of legislators have been jumping ship. The Tenth Schedule which was brought in to stop exactly that is failing on multiple fronts. One, it is not able to foster a healthy debate between members of parliament due to its archaic notion of party loyalty. Two, it is not able to stop the mass defections, evidently, from one party to another to the extent of destabilising governments and changing popular mandates. For us to somehow put trust in supposedly independent institutions like the President or the Election Commissions to enforce the Tenth Schedule would be imprudent given how their powers are being taken over and how they are becoming mere extensions of the executive.

What is to be done then?

The honest answer begins with admitting that no single institutional fix will suffice, because the problem is not only with the institutions. The issue is rooted in the very relationship between the voter, the representative, and the party. The Tenth Schedule attempted to regulate that relationship from above, by threatening disqualification. What it did not do, and what no amendment since has attempted, is to restructure the relationship from below i.e., by giving the electorate a continuing stake in the conduct of its representative.

We do not have a recall mechanism. Once elected, a legislator is answerable to no one for five years. Not to the voters who sent her to the legislature, not to any independent body tasked with monitoring her fidelity to the mandate on which she sought votes. The Tenth Schedule fills this vacuum by substituting party discipline for popular accountability, but party discipline, as we have seen, is itself a currency that can be bought and sold. A recall provision, carefully designed to prevent its misuse as a tool of harassment by ruling parties, would fundamentally alter the calculus of defection. A legislator contemplating a switch would have to weigh not merely the Speaker’s likely indulgence or the party’s ability to engineer a merger, but the concrete possibility that her own constituents could unseat her for betraying the mandate. The recall would not need to be easy to trigger. A high threshold of signatures, a mandatory cooling-off period, and supervision by the judiciary rather than the executive would prevent frivolous attempts but its mere existence would reintroduce the voter into a process from which the Tenth Schedule has, paradoxically, excluded them entirely.

The second structural reform, without which any amendment to the Tenth Schedule will remain cosmetic, is the statutory regulation of intra-party democracy. Indian political parties are, with rare and partial exceptions, autocracies. Decisions about candidate selection, whip issuance, alliance formation, and merger are taken by a small coterie at the top, often by a single leader whose authority within the party is unquestioned. The Tenth Schedule, by making disqualification contingent on obedience to the whip, effectively constitutionalises this autocracy. It converts the internal hierarchy of a private political organisation into a binding legal obligation on a public constitutional office-holder. If we are serious about the deliberative function of the legislature, we must first be serious about the deliberative function within parties themselves. A law mandating regular internal elections, transparent candidate selection processes, and a formal mechanism by which legislators can dissent from the whip without facing expulsion, a kind of intra-party conscience vote, would do more to restore the dignity of the individual legislator than any tinkering with the schedule’s merger arithmetic.

None of these reforms will emerge from the political class voluntarily. The irony of the Tenth Schedule is that any amendment to it must pass through the very legislature whose members benefit from its weakness. This is not a counsel of despair but a recognition that constitutional reform in India has always required pressure from outside the legislature, from the judiciary, from civil society, from the press, and from the slow but real force of public opinion. The Right to Information Act did not emerge because politicians wanted transparency; it emerged because citizens demanded it. The reform of the Tenth Schedule, if it comes, will follow a similar path.

A final word on what we owe ourselves

There is a temptation, when confronted with the scale of institutional decay, to conclude that the system is beyond repair and that the only rational response is cynicism. This temptation must be resisted, not because the system is working (it manifestly is not) but because cynicism is itself a form of complicity. Every time we shrug at a mass defection, every time we treat the engineering of a merger as just another episode of Indian politics, we normalise the very evil the Tenth Schedule was written to combat. The twenty Trinamool MPs who crossed over did not act in a vacuum. They acted in a political culture that has, over decades, made such crossings routine, predictable, and consequence-free. Changing that culture requires better laws, a more demanding electorate, and one that treats a defection not as a fait accompli but as a breach of trust serious enough to end a political career.

The Tenth Schedule’s purpose remains legitimate. However, a law that was designed to protect democracy has, through its design flaws, its capture by partisan Speakers, and its inability to engage with the economic and structural realities of Indian politics, become a tool for its subversion. The fix, if it comes at all, will come from a combination of institutional redesign, deepening of democratic values, and most importantly, a refusal by citizens to accept the corruption of their mandate.

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

Related:

Understanding the Supreme Court’s Interim Intervention in the Waqf Amendments, 2025

Smoke & Mirrors, 130th Constitution Amendment Bill: Real issue is the trading of MLAs

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

The post Defectors & Democracy: A critique of the Tenth Schedule of the Indian Constitution appeared first on SabrangIndia.

Pause for a moment and ask yourself. Where was all of that sitting before you opened up your email? Your emails were not hiding inside your laptop. They were not floating in air. They were sitting on a computer, not yours, but someone else’s; in a building, you have never seen, possibly thousands of kilometres away. A building, filled with row upon rows of powerful computers humming away around the clock, these are data centres.

Think of it this way. When you post a photo on Instagram, it does not just stay on your phone. It is copied to a data centre so that your friend in Delhi or your cousin in Dubai can see it on their phone too. When you stream a film on Netflix on a Friday night, that film is not beamed from a studio in Hollywood directly to your television. It is stored in a data centre and delivered to you through the internet. When you ask Google a question , “best biryani near me”, Google’s computers in a data centre somewhere race to find the answer and send it back to your screen in less than a second. Every time you send a WhatsApp message, make a UPI payment, book a cab on Uber, or even ask ChatGPT to help you draft an email, a data centre somewhere in the world is doing the heavy lifting.

Now, while billionaires (apologies, trillionaires) like Elon Musk are busy trying to beam the internet down from satellites, the vast majority of the world’s internet still travels through undersea cables made of optical fibre, thin glass threads that carry pulses of light across ocean floors from continent to continent. These cables connect to data centres on land. And it is inside those data centres that the internet, in a very physical sense, actually lives.

A data centre is, at its simplest, a very large, very expensive warehouse full of computers. But unlike the laptop on your desk, these computers never shut down. They run twenty-four hours a day, seven days a week, three hundred and sixty-five days a year. And because they are working so hard, they produce an enormous amount of heat, like thousands of kitchen ovens running simultaneously in a sealed room. If that heat is not removed, the computers melt. Literally. So data centres need massive cooling systems: giant fans, industrial air conditioners, and increasingly, systems that circulate chilled water or specialised liquids directly over the machines. All of this, the computing and the cooling, requires a staggering amount of electricity. A single large data centre can consume as much power as a small city. Some of the newer ones, built for artificial intelligence, need as much electricity as eighty thousand to eight hundred thousand homes.

And that is before we talk about water. Many cooling systems work by evaporating water, the same principle that makes you feel cool when you step out of a swimming pool on a windy day. A large data centre can gulp down up to five million gallons of water in a single day , roughly the amount an entire town of fifty thousand people would use.

The Boom

For decades, data centres existed without the current levels of scrutiny. They were modest buildings tucked away in industrial parks, and nobody paid much attention to them. But in the last three or four years, something changed dramatically. The explosion of artificial intelligence, tools like ChatGPT, image generators, self-driving car software, sent demand for computing power through the roof. Training a single AI model can require thousands of specialised chips running for months, consuming electricity equivalent to what several thousand homes use in a year. And once trained, these AI systems need even more data centres to actually serve millions of users asking questions, generating images, and running code every second of the day.

The result has been a construction frenzy unlike anything the technology industry has ever seen. In 2025, the fourteen largest data centre companies spent close to seven hundred and fifty billion dollars building new facilities. Amazon, Microsoft, Google, and Meta alone spent over four hundred billion dollars, nearly double, what they spent the year before. For the first time in American history, spending on data centre construction surpassed spending on office buildings. By the end of 2025, more than twenty-three gigawatts of data centre capacity was under construction worldwide across over eight hundred sites. The International Energy Agency projects that global electricity consumption by data centres will roughly double by 2030, reaching levels comparable to the entire electricity consumption of Japan.

The counter-current in America

Naturally, a movement of this much capital will have repercussions. Across the United States, ordinary citizens, farmers, retirees, schoolteachers, small-town mayors, have started fighting back against this expansion with remarkable success.

The reason is simple. A data centre may power the global internet, but the costs are borne locally. When a giant facility moves into a rural county, it strains the local power grid. Electricity bills go up for everyone. Noise from the industrial cooling fans is relentless, a constant low hum that residents describe as maddening. Millions of litres of water is diverted from farms and homes. Fertile agricultural land gets paved over. In addition, the number of permanent jobs these highly automated facilities create? Often just a few hundred.

A 2026 Gallup poll found that seventy per cent of Americans now oppose having a data centre built near their neighbourhood. This is not a left-versus-right issue. Both Republicans worried about corporate tax breaks and Democrats concerned about the environment have found common ground. Over a hundred and forty activist groups across two dozen states have organised against data centre projects. In the last two years alone, roughly sixty-four billion dollars’ worth of projects have been either blocked outright or significantly delayed.

The stories are vivid. In Cascade Locks, Oregon, residents were so angry about a proposed hundred-million-dollar data centre that they organised a recall election, voted out the officials who had approved it, and the new board promptly cancelled the project. In Warrenton, Virginia, over five hundred residents packed a town council meeting, a hundred and thirty of them stood up to speak against an Amazon data centre, and in the next election, every single council member who had supported the project lost their seat. In a small town in Missouri called Peculiar, a grassroots group calling itself “Don’t Dump Data in Peculiar” fought a billion-and-a-half-dollar project so effectively that the town’s planning commission rewrote the zoning code to ban data centres entirely.

The Search for New Ground

Faced with this wall of resistance, the tech giants have started looking elsewhere. If Americans do not want these facilities in their backyards, the companies will build them in countries where governments are more welcoming, land is cheaper, and opposition is less organised.

India has become a prime destination. The Indian government has rolled out an extraordinary welcome mat: it granted data centres formal “infrastructure status” to make financing easier, offered cheap land, reduced electricity tariffs, and in its February 2026 budget, announced a twenty-year tax holiday for foreign companies building data centres. Under this framework, income of such foreign cloud service providers from global cloud operations routed through India-based data centres will not be subject to Indian taxation, subject to specified conditions. Additionally, services to Indian customers must be delivered through an Indian reseller entity, ensuring that domestic transactions remain within the tax net.

India also has what the industry needs i.e., a massive domestic market of over nine hundred and forty million internet users, the world’s highest per-capita mobile data consumption, and a financial system(think of the tens of billions in UPI transactions processed every single month)  that desperately needs local computing infrastructure to keep running securely.

The Gulf States, particularly the UAE, have made a similar pitch, offering land, cheap energy, and streamlined approvals.

Why your Data Forces these Centres onto Indian Soil

There is another, less visible reason why data centres are being built inside India at this pace, and it has nothing to do with cheap land or tax breaks. It has to do with the law, specifically, laws that govern where your personal data is allowed to physically exist.

Think about what happens when you make a payment using Google Pay or PhonePe. Your transaction details   your bank account number, the amount, the merchant, the time, are all pieces of personal data. Now, the question is, where is that data stored? Is it sitting on a server in Virginia? In Singapore? Or in India? The answer matters, because governments want to make sure they can access, audit, and protect the financial data of their citizens. If your transaction records are stored on a server in a foreign country, an Indian regulator cannot simply walk in and inspect them.

This is the logic behind data localisation, the idea that certain categories of data must be stored on servers physically located within the country’s borders. And India has been tightening these rules steadily.

The most sweeping example is the Reserve Bank of India’s 2018 directive. The RBI issued an unambiguous order that said all entities operating in India’s payment ecosystem, banks, payment gateways, wallets, third-party processors, must store the complete data of every domestic transaction exclusively on systems located within India. This covers everything like transaction details, customer data, payment credentials like OTPs and PINs, and settlement instructions. This single directive forced global payment giants like Visa and MasterCard to scramble for server space inside the country. Specialised cloud providers reported that up to seventy per cent of their communication volume now runs through strictly Indian data centres to comply with the RBI’s rules.

The securities regulator, SEBI, followed suit. In August 2024, through its Cybersecurity and Cyber Resilience Framework, SEBI mandated that all data relating to Indian securities markets, trade records, client KYC documents, fund flows, margin records, must be hosted exclusively within India. The order was so sweeping that the industry pushed back hard over the costs of migrating data from offshore servers. SEBI placed the strictest parts of the mandate in temporary abeyance in December 2024, but the rule has not been repealed. Companies are actively preparing for the day it is enforced, building flexible systems that can rapidly move workloads back to Indian soil.

Overarching all of this is India’s Digital Personal Data Protection (DPDP) Act of 2023. Earlier drafts of this law proposed a strict blanket rule that all Indian user data must stay in India. The final version adopted a more flexible approach. Under Section 16 of the Act, cross-border data transfers are permitted by default, but the central government retains the power to blacklist specific countries at any time, instantly cutting off data flows to those jurisdictions. This creates a powerful incentive for global technology companies. Even though the law does not currently require blanket localisation, the threat of future restrictions hangs permanently in the air. Any company that has invested billions in serving Indian users knows that the government could, with a single notification, force them to store all Indian data domestically. Building data centres inside India is, in effect, an insurance policy against that risk.

The combined effect of these regulations, the RBI’s hard mandate for payments data, SEBI’s framework for securities data, and the DPDP Act’s latent power to restrict cross-border flows, has created an enormous, legally driven demand for data centre capacity within India’s borders. It is not just that companies want to be in India for its market. In many cases, it is also because they are legally required to be here. The scale of the data centre could however be a choice of the company. Essentially, the discussion over the data centres would then become whether we need massive data centres like the proposed Google AI Data centre in Visakhapatnam.

The Data Centre in Vizag

In October 2025, Google announced plans to build a massive data centre campus in Vizag, a one-gigawatt facility, among the largest anywhere in the world outside of Untied States, backed by an estimated ten to fifteen billion dollars in investment. The project, developed in partnership with AdaniConneX and Airtel’s Nxtra, would include three subsea cable landings connecting Vizag directly to global internet networks stretching to Singapore, Australia, the Middle East, and the United States. The Andhra Pradesh government allotted roughly 600 acres of land across three locations: Tarluvada, Adavivaram, and Rambilli. Construction officially broke ground on April 28, 2026. State leaders hailed the project as transformative, a chance to position Vizag as a major global technology hub.

But on the ground, the story looks very different.

About two hundred acres at Tarluvada belong to Dalit families. These are parcels of land that were allotted to landless families in the 1970s under land reform programmes,  small plots, about two acres each, meant to give the poorest communities a foothold of economic security. Under the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act of 1977, these lands cannot legally be sold, gifted, leased, or transferred to anyone. They were meant to stay with marginalised families forever. Farmers allege that parcels held by dominant castes are being left untouched, while Dalit-owned land is specifically targeted.

The promises of prosperity have come under sharp scrutiny. The skills required to run a hyper scale data centre, thermal engineering, cybersecurity, network architecture, are worlds apart from the agricultural livelihoods of the communities being displaced.

The Water Question

But the concern that cuts deepest in Vizag is water.

To understand why, we need to step back and look at the larger picture. In 2018, NITI Aayog, the Indian government’s own policy think tank, published a report that should have shaken the country. It warned that twenty-one major Indian cities, including Delhi, Bengaluru, Chennai, and Hyderabad, were on track to run out of groundwater by 2030. Six hundred million Indians, the report said, already face “high to extreme” water stress. India holds eighteen per cent of the world’s population but has access to just four per cent of its freshwater. Per capita water availability has fallen to around eleven hundred cubic metres, below the international water stress threshold of seventeen hundred, and dangerously close to the scarcity line of a thousand.

Visakhapatnam is not exempt from this crisis. It is already a water-stressed city. Groundwater monitoring data shows that any parts of the district have seen 20 metres drop in ground water levels from 2025-26. Scanty rainfall, rapid urbanisation, and industrial expansion have drained the city’s aquifers faster than they can recharge. Women queuing at public taps and water tankers is a recurring sight every summer.

It is into this reality that a one-gigawatt data centre is being built. Data centres are extraordinarily thirsty. Google itself disclosed that its data centres worldwide-consumed roughly thirty-one billion litres of water in 2024 alone. Industry analysts estimate that eighty to ninety per cent of the water used by data centres comes from potable sources, lakes, rivers, and aquifers, often the same sources that supply drinking water to local communities. This is not theoretical harm. In Joliet, Illinois, an aquifer that historically supplied the city’s drinking water has been so depleted, partly due to data centre construction in the surrounding Chicago region, that expert’s project it will be entirely gone by 2030. Loudoun County in Virginia, home to the world’s densest cluster of data centres, supplied over a billion gallons of potable water to those facilities in a single year.

Has a direct, proven causal link between a data centre and groundwater collapse been formally established in India? Not yet. The Vizag facility has only just broken ground. But the physics are not in doubt. A June 2026 report by the United Nations University warned that by 2030, the water footprint of global data centres would equal the basic annual domestic water needs of all 1.3 billion people in sub-Saharan Africa. The question is not whether data centres consume enormous quantities of water. The question is what happens when you plant one of the largest such facilities on earth in a city that is already struggling to give its residents enough water to drink.

The Human Rights Forum has pointed out that part of the Vizag project sits barely a hundred and twenty metres from the Mudasarlova reservoir, one of the city’s crucial drinking water sources. Environmental groups allege that hill-cutting, forest clearance, and construction activity near the reservoir’s catchment area have already begun altering the natural water flows that feed it,  and that all of this proceeded before environmental clearances were properly completed. On June 10, 2026, the state environment authority granted clearance to the Adavivaram site, but the HRF condemned the decision as a “brazen injustice,” noting that the clearance document was conspicuously silent on the project’s implications for drainage patterns, groundwater recharge, and the long-term water security of the city.

Conclusion

The uprooting of communities in Vizag, the silence on water, the rushed clearances, these are not failures of one project but symptoms of a model in which technology investment arrives in India as a kind of coronation, where the politician who secures the deal is anointed a visionary and the sheer scale of the numbers announced creates a gravity so strong that democratic friction , the town hall, the impact assessment, the voice of the farmer whose land is being taken, gets crushed before it can form.

Perhaps the most troubling part is not that India is building data centres, it must, given its data localisation mandates and nine hundred and forty million internet users, but that it appears to be building them without demanding what other nations have already begun to insist upon.

Singapore imposed a three-year moratorium on new data centres, lifted it only under the strictest green energy and efficiency standards in the Asia-Pacific, and now approves capacity solely on sustainability merit. Stockholm integrated its data centres into the city’s heating grid, turning waste heat into warmth for thirty thousand apartments; Microsoft has moved to zero-water cooling designs; waterless chip-level cooling systems that halve energy consumption are commercially deployed today. None of this is speculative. The technologies and the governance frameworks exist.

What does not yet exist in India is the institutional feedback loop that would allow a resident of Tarluvada or a woman queuing at a water tanker in Vizag to say, credibly and consequentially that “we are not against progress, but we need to know where our water will come from, whether our land can lawfully be taken, and what, specifically, we stand to gain” and to have that question shape the project rather than be swept aside by it.

Until that loop is built, India risks winning the data centre and losing the aquifer, gaining the investment headline and hollowing out the communities it was supposed to serve, and discovering, perhaps too late, that for a country of one and a half billion people living on four per cent of the world’s freshwater, the cost of unaccountable development is not abstract but existential.

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

Related:

Himalayan Courts: Young folds & new cracks in environmental jurisprudence

Environmental Jurisprudence: The Bombay High Court’s shifting language

Cracks in Indian Environment Jurisprudence: An examination of High Courts of central India

The post The what’s & why’s of Data Centres and how are they hijacking the India Story appeared first on SabrangIndia.

The Himalayas hold the headwaters of the Ganga, Yamuna, Sutlej, Beas, Ravi and Chenab, sustaining vast populations downstream. But this is also a young, unstable and seismically active terrain. Glaciers such as Gangotri and Yamunotri are retreating, exposing loose moraine and weakening slopes. Cloudbursts, landslides and debris flows, as seen in Kedarnath in 2013, are therefore not isolated events but warnings from a fragile system. A small slope cutting, tunnel, or river diversion can disturb water channels; dry village springs, or trigger downstream flooding. Despite this, the region has seen rapid hydropower and infrastructure expansion, involving blasting, tunnelling, river diversion and construction across some of India’s most vulnerable mountain valleys.

These pressures have turned the Himalayan High Courts into something they were never designed to be: the last line of ecological defence. Litigants arrive with public interest petitions seeking to stop dams, protect panchayat authority over local resources, and enforce constitutional environmental rights. The question this study asks is not whether these courts occasionally issue protective orders. They do. The question is whether protection is the pattern or the exception. When ecological harm is demonstrated, do these courts hold the line? Or do they find ways to accommodate the project, the corporation, the state plan? By examining judgments the three High Courts — Uttarakhand, Himachal Pradesh, and Jammu & Kashmir, and Ladakh, the third part of a three-part series maps the architecture of environmental jurisprudence in the mountains and identifies where that architecture cracks under pressure.^[1]

The Architecture of Eco-Centric Protection

The Uttarakhand Eco-Centric Doctrinal Expansion (2016-2018)

There are moments in judicial history when a court steps outside its accustomed vocabulary and speaks a different language. The Uttarakhand High Court between 2016 and 2018 was such a moment. The court produced a trilogy of rulings that received criticism for attempting to restate the environmental jurisprudence. They were attempts to reimagine the legal relationship between the state, the citizen, and the natural world. What makes them significant is not just what they held, but what they asked: if a river sustains life, should it not have standing in court?

In Mohd. Salim v. State of Uttarakhand (2017), the court confronted the familiar issue of municipal pollution and encroachment along the Ganga and Yamuna. What it produced was anything but familiar. A Division Bench of Justices Rajiv Sharma and Alok Singh declared these rivers, along with all their tributaries, streams, and torrents, to be legal persons and living entities. This was not metaphor. The Bench exercised its parens patriae jurisdiction to appoint the Director of the Namami Gange project, the Chief Secretary of Uttarakhand, and the Advocate General as guardians acting in loco parentis. The reasoning was stark: rivers breathe. They sustain communities from the glaciers to the sea. To treat them as property is to miss their essence. The court anchored this in Article 21, reading the right to life as extending to the life that the rivers themselves embody.^[2]

Critics have called this approach radical. It was. The traditional legal model treats a river as a thing over which the state has sovereign control, the citizen has riparian rights, and the corporation has extraction permits. Each of these legal relationships assumes the river’s continued existence. None of them guarantees it. By making the river itself a rights-holder, the court inverted the burden of justification.

The doctrinal expansion continued in Lalit Miglani v. State of Uttarakhand (2017), where the same Bench extended legal personhood to the broader ecosystem. Gangotri and Yamunotri glaciers gained rights. So did the air, meadows, forests, wetlands, grasslands, springs, and waterfalls of the state. The court did not stop at declaration. It deployed continuing mandamus to direct twenty-one hydroelectric projects on the Ganga’s mainstream to install functional Sewage Treatment Plants within six months. It ordered the Comptroller and Auditor General to conduct a special financial and compliance audit of all centrally financed Ganga rejuvenation schemes, with the report to be placed directly before the President of India. These were not hortatory observations. They were operational commands backed by the contempt power of the court.^[3]

In Narayan Dutt Bhatt v. Union of India (2018), the court extended legal personhood to the entire animal kingdom. Confronted with the cruelty of commercial horse-carts at the Indo-Nepal border, Justices Rajiv Sharma and Lokpal Singh held that the right to life under Article 21 protects all animals, avian and aquatic. Every citizen of Uttarakhand was declared a guardian in loco parentis. The implications were again, radical. For centuries, animals have been property under Indian law. The Prevention of Cruelty to Animals Act treats them as objects of human benevolence. This judgment treated them as subjects of rights. The shift from property to person is not merely semantic. It determines who bears the burden in court. A property owner can do what they please with their property, subject to regulation. A guardian must act in the best interests of the ward. The legal grammar changed from permission to duty.^[4]

The Rishikesh White-Water Rafting Industry case (2018) demonstrated how this eco-centric framework operated in practice. Faced with water pollution, public intoxication, and unregulated adventure sports licensing along the Ganga, the court halted all rafting operations. The Bench explicitly subordinated the importance of regional tourism economy to the importance of ecological health of the river. Commercial activities could resume only when the state implemented a comprehensive, protective regulatory policy. This was the precautionary principle in its purest form: when the ecological stakes are high, activity stops first and proof of safety comes later. The court refused to let commerce continue while regulators deliberated.

The Uttarakhand High Court maintained structural oversight during ecological crises. The Forest Fires Suo Moto Line (2024-2026), initiated by Chief Justice G. Narendar and Justice Subhash Upadhyay, responded to recurring forest fires not with a single order but with sustained administrative reform. The court ordered the state to fill all long-standing vacancies in the Forest Department within six months. It mandated year-round environmental monitoring instead of seasonal tracking. It empowered gram panchayats by establishing village-level fire committees. These orders recognized that environmental protection is not a one-time judicial intervention. It is an ongoing institutional commitment. Forests do not burn because of a single cause. They burn because of cumulative neglect, which includes underfunded departments, absent personnel, and local communities excluded from management. The court addressed the root causes.^[5]

The Himachal Pradesh Community-Centric Protective Model

The Himachal Pradesh High Court demonstrated its protective capacity long before the contemporary era. In General Public of Saproon Valley (1991), the court directed the state to constitute a scientific committee to assess the environmental impact of heavy vehicular traffic through the Solan district and required notification to all project-affected persons before issuing any mining licenses or tree-felling permits. This was three decades before environmental impact assessment became a statutory requirement. The court was operating from first principles: if a project alters the environment, those who live in that environment must know before, not after. The Saproon Valley order established a template that the court would return to repeatedly: protection begins with procedure, and procedure begins with the community.^[6]

The Suo Moto Stone-Crusher PIL Line concerning Bathan and Thural (2019) draws from this community-centric model. Chief Justice Mohammed Rafiq and Justice Sandeep Sharma converted letters from rural residents into public interest litigation. The Neugal River was being destroyed by illegal stone-crushing operations that caused severe slope instability and riverbed erosion. The court’s intervention was swift and targeted. It protected the authority of Gram Panchayat issued No-Objection Certificates against administrative coercion by state industry departments. It enforced strict compliance from the State Pollution Control Board. The precautionary principle was applied at the licensing stage, preventing industrial operations from creating an environmental fait accompli. The court understood what many environmental judgments miss i.e., once a crusher is installed, once a riverbed is mined, once a slope is destabilized, the harm is done. Prevention is the only remedy that works in geographies that are as sensitive as the Himalayas.^[7]

The Gram Panchayats Bhatanwali, Patalia and Behral v. Union of India (2026) extended this procedural protection to federal land-use planning. Local panchayats challenged an Eco-Sensitive Zone notification around the Col. Sherjung National Park in Simbalbara, Sirmaur district. The Ministry of Environment, Forest and Climate Change had omitted required field surveys, land-use inventories, and joint committee formation as mandated by its own 2011 guidelines. Justices Vivek Singh Thakur and Ranjan Sharma quashed the notification. The ruling was technically procedural, but its ecological impact was substantive. A poorly drawn notification that ignores ground realities is worse than no notification at all. It creates legal confusion, invites non-compliance, and discredits the entire regulatory regime. By enforcing proper procedure, the court protected not just the local panchayats but the integrity of the Eco-Sensitive Zone concept itself.^[8]

Another PIL concerning illegal mining in Bageshwar district demonstrated that the Uttarakhand High Court could still act decisively when the harm was visible and immediate. The court took suo moto cognizance and directed the District Magistrate to personally verify illegal mining operations. It constituted a joint committee for ground-level inspection. These were not complex legal questions requiring nuanced balancing. They were straightforward violations of existing law that administrative agencies had failed to prevent. And the court acted swiftly.^[9]

Jammu and Kashmir: Continuity in Wetland and Alpine Protection

The Jammu and Kashmir and Ladakh High Court has demonstrated continuity in its protective stance over environment. Its protective oversight of Dal Lake has spanned more than two decades, surviving the major constitutional reorganization of August 2019 and the transition from state to Union Territory. Successive Division Benches led by Chief Justices Pankaj Mithal, Arun Palli, and N. Kotiswar Singh have maintained seamless oversight of one of the most threatened urban water bodies in the world. When the Master Plan 2035 proposed reducing the 200-meter environmental exclusion zone around Dal Lake to a variable 20-to-100-meter limit, the court intervened directly. In September 2024, it ordered that no new permanent construction would be allowed within the original buffer zones. The warning was explicit: unregulated development could undo twenty years of conservation effort in a single construction season.^[10]

This continuity extends to Wular Lake, where a dedicated litigation line ran from 2021 to 2024. The Wular Lake Conservation and Management Authority had proven ineffective. Illegal encroachments continued. Municipal garbage dumping persisted. Dredging operations moved at glacial speed. In August 2024, Justice Rajnesh Oswal rebuked the authority for failing to meet its objectives and wasting public funds. The court’s frustration was palpable. Public money had been provided by the central government specifically for lake restoration. The authority had absorbed it without producing results. The court’s intervention here was not about legal innovation. It was about institutional accountability. Environmental protection requires institutions that function. When they do not, the court must either reform them or replace their functions with its own oversight.^[11]

The Ramsar Wetlands Suo Motu Line aggregated seven internationally recognized sites across Jammu and Kashmir and Ladakh, including Hokersar, Shalbugh, Haigam, Surinsar-Mansar, Tso Moriri, and Tso Kar. The court enforced the Wetland Conservation and Management Rules 2017, requiring both Union Territories to coordinate with the Ministry of Environment, Forest and Climate Change and technical bodies like IIT Roorkee for Integrated Management Plans. This was strategic environmental governance at scale. Rather than addressing each wetland individually, the court created a unified oversight framework. The Ramsar designation carries international legal obligations. The court ensured that these obligations would not remain paper commitments.^[12]

The Sonamarg Construction Ban case (2017) represents the one of the most pro-active stances of the Court in environment protection. To shield the Thajiwas Glacier watershed and the Sindh River from tourism-induced degradation, the court banned all unapproved constructions within the Sonamarg Development Authority’s jurisdiction. It made the Chief Executive Officer personally liable under contempt law for any fresh unauthorized structures. It ordered a scientific status report directly from the Earth Sciences Department at the University of Kashmir, bypassing standard bureaucratic reporting. This treatment of scientific data as a firm ceiling for development is the antithesis of the balancing approach. Science was not one factor among many. It was the limiting factor. In early 2025, the court reinforced this stance by taking suo moto cognisance of environmental violations in the Gulmarg-Sonamarg road-widening project, converting a newspaper report into PIL and demanding a personal response from the Development Authority’s CEO.^[13]

Structural Cracks and Infrastructure Deference

The Himachal Pradesh Cascade: Hydropower, Mining, and Urban Deregulation

The judgments discussed earlier did protect forests, rivers, lakes, and local communities. However, they are not the usual pattern. In many Himalayan cases, courts speak about balance, development, procedure, and jurisdiction. The language sounds neutral. However, the result often weakens environmental protection.

A clear example is State of Himachal Pradesh v. Yogendra Mohan Sengupta (2024). The NGT had imposed strict limits on height and construction in the Shimla Planning Area. These limits were based on real risks. Shimla sits on fragile slopes. It faces landslides, cloudbursts, and earthquakes. The 2023 monsoon had already shown how dangerous this could be, with major loss of life and damage across Himachal Pradesh.

The Supreme Court lifted those restrictions. It said development and environment had to be balanced. It also held that the NGT could not force the State to frame planning rules in a particular way. On paper, this looked like a technical administrative law issue. In reality, it shifted control back to the State’s planning authorities. These authorities are often more influenced by development pressure than ecological limits.

The Court also distinguished Godavarman, a major forest protection case. This mattered. Instead of treating environmental protection as a strong constitutional duty, the Court treated it as one factor to be balanced against construction. That is the problem. Slopes do not become safer because a plan allows more buildings. Every extra floor adds weight. Every new building adds pressure on water, sewage, drainage, and roads. When the land gives way, the damage is not theoretical. It is physical and often deadly.

A similar problem appears in N.H.P.C. Ltd. v. State of Himachal Pradesh (2024). There, the Himachal Pradesh High Court struck down the State’s water cess on hydropower electricity generation. The Court held that the State did not have the constitutional power to impose such a tax, because electricity generation falls within the Centre’s field. It also ordered refund of the amounts collected.

The reasoning was legal and technical. However, the environmental background was left mostly unaddressed. Himachal’s rivers, including the Sutlej, Beas, Ravi, and Chenab systems, are heavily used for hydropower. These projects divert rivers, tunnel through mountains, change natural flows, and affect downstream communities. The cess was an attempt to make hydropower developers pay at least something for the ecological cost of their projects. By treating the issue mainly as a tax dispute, the Court missed the deeper environmental question. The ecological impact of thirty-plus hydropower projects on a single river basin was never examined. The court’s analysis focused on which level of government has the constitutional power to tax, not on whether the activity being taxed is destroying the resource base that both governments are constitutionally obligated to protect under Article 48A. The ruling thus achieved a double displacement: it removed the state’s financial tool for environmental regulation while legitimizing the fiction that hydropower development is merely an electricity-generation activity rather than a mountain-transforming, river-altering, ecology-disrupting industrial enterprise.

The Alaknanda Hydro Power litigation in Uttarakhand follows an identical pattern. The case centred on environmental clearance for hydroelectric projects on the Alaknanda river system, a major Ganga tributary. The court’s engagement was confined to procedural compliance with environmental impact assessment norms rather than substantive evaluation of cumulative basin-wide impacts. This is the central flaw of environmental litigation in the hydropower sector. Each project is assessed individually. The combined effect of multiple tunnels, multiple diversions, multiple blasting operations on a single geological system is never judicially examined. Environmental scientists have documented the cumulative impact extensively: altered sediment transport, dewatered river reaches, increased seismic stress from reservoir loading, slope destabilization from tunnelling. However, courts continue to treat each project as an isolated legal entity, as if rivers were divisible into segments that can be dammed one at a time without systemic consequence.^[14]

In Jammu and Kashmir and Ladakh, the modification of the Sonamarg Construction Ban in June 2024 reveals how even the strongest protective orders can be eroded through incremental exception. The original 2017 ban, issued to protect the Thajiwas Glacier watershed and the Sindh River, was clear: no new construction within the Sonamarg Development Authority’s jurisdiction. The 2024 order, issued by Chief Justice N. Kotiswar Singh and Justice Moksha Khajuria Kazmi, created an exception for the Amarnath Yatra. Temporary structures would be permitted within the protected eco-sensitive zones to accommodate pilgrims. The court attached conditions: the structures must be dismantled after the pilgrimage, the land restored. However, the creation of an annual exception to an ecological carrying capacity is not a minor adjustment. It is a precedent. Next year the structures may be larger. The following year, they may be semi-permanent. The glacier does not distinguish between temporary and permanent human pressure. Ice melts the same way regardless of the legal category of the structure above it.^[15]

The Amarnath Yatra brings hundreds of thousands of pilgrims to a fragile high-altitude ecosystem. The waste generated, the water extracted, the vegetation trampled, the slopes compacted, all exceed the area’s natural absorption capacity. The court’s accommodation of this pressure is often framed in terms of religious freedom and public convenience. However, rights are not absolute when they destroy the resource base that makes them possible. The right to pilgrimage assumes the continued existence of the pilgrimage site. If the glacier melts, if the meadows erode, if the river silts up, there is nothing left to pilgrimage. The 2024 Sonmarg modification, like the Char Dham highway expansion, treats environmental protection as an obstacle to be managed rather than a foundation to be preserved.

The Uttarakhand Retreat: From Personhood to Procedural Barrier

The Uttarakhand High Court’s trajectory from 2017 to 2026 traces the arc of environmental promise and judicial retreat more starkly. In 2017, it declared rivers to be legal persons. By 2023, it was dismissing local communities for lack of standing. The speed of this reversal is remarkable

The Mohd. Salim and Lalit Miglani judgments were stayed by the Supreme Court in 2017. The stays were procedural. The apex court did not reject the legal personhood doctrine on merits. It simply prevented implementation while the state government’s appeals were heard. However, procedural paralysis is often the most effective form of doctrinal killing. Seven years later, the Special Leave Petition in Lalit Miglani remains pending. The legal personhood of the Ganga, the Yamuna, the glaciers, the forests, exists on paper but not in practice. No guardian has ever filed a case on behalf of the river. No polluter has ever been held liable for violating a river’s rights. The anthropocentric legal system simply could not operationalize a non-anthropocentric legal concept. State authorities argued, predictably, that granting rights to nature created unmanageable liabilities. What they meant was that it would make their development projects more difficult to approve. The Supreme Court’s stay gave them exactly what they needed: time, during which the projects proceeded and the legal innovation fossilized.^[16]

The procedural retreat became explicit in the Tapovan-Vishnugad PIL line following the Chamoli disaster of February 2021, which should have been a turning point. A glacier collapsed above the Rishi Ganga, triggering a debris flow that devastated the area and provided catastrophic physical evidence of hydropower vulnerability. Local residents from the villages of Raini and Joshimath filed public interest litigation seeking the cancellation of the Rishi Ganga and Tapovan-Vishnugad Hydro Projects and the ecological restoration of the affected watershed. However, in July 2021, rather than stopping construction until safety was proven, the Division Bench shifted the focus entirely from ecological risk to petitioner credibility. The court questioned the standing of the local villagers, scrutinized their identities as “social activists,” and characterized the PIL as a “highly motivated” petition filed by “puppets at the hand of an unknown puppeteer”. It dismissed their challenges and imposed financial costs of Rs. 10,000 on each petitioner.

The reasoning in this July 2021 order was purely procedural. The petitioners were found wanting in locus standi, and the court did not examine whether the Tapovan-Vishnugad project violated environmental norms or assess the scientific evidence regarding the future safety and stability of the disaster-prone terrain. It simply ruled that the wrong people had asked the right questions. This is proceduralism as environmental obstruction. When local communities, who are the first to feel the effects of ecological collapse, are denied standing to challenge the projects that cause it, the court removes the most direct form of democratic environmental accountability. It was not until January 2023—a year and a half later, when severe land subsidence had already made parts of Joshimath uninhabitable—that a different Division Bench finally intervened to grant an interim stay, providing the correct but delayed response that construction must halt when a town is sinking.

The Char Dham Pariyojana tells a similar story of procedural enablement of ecological destruction. The Uttarakhand High Court did not issue pre-construction stays. It allowed the project to proceed while litigation continued. By the time the case reached the Supreme Court as Citizens for Green Doon v. Union of India, the physical reality on the ground had changed. Tunnels had been bored. Blasting had occurred. Hundreds of kilometres of road had been cut into mountain faces. The Supreme Court’s December 2021 order, permitting a 10-meter wide double-lane paved shoulder design, was framed around strategic defence needs and national security. The court treated a 2018 Ministry of Road Transport and Highways circular, advising 5.5-meter limits for hilly terrain, as non-binding for strategic corridors. The environmental rule of law was noted, then balanced away. By June 2025, when citizens petitioned the Chief Justice of India for review following fresh disasters in the Bhagirathi eco-sensitive zone, the project’s financial outlays and physical progress had created an institutional fait accompli. The money was spent. The road was built. The review was rendered practically irrelevant by the sunk costs of ecological destruction.^[17]

The Uttarakhand cases show a clear shift. Earlier, the Court took a more protective approach towards rivers, hydropower projects, and animal welfare. In the later cases, however, it was more willing to defer to development decisions, question the maintainability of local petitions, and treat environmental concerns within narrower legal limits. The change is therefore not only in outcomes, but also in the way the Court frames environmental disputes. It is a change in judicial imagination. The 2016-2018 court imagined a world where ecology governed law. The post-2020 court imagines a world where law governs ecology, and that governance takes the form of balancing, procedural filtering, and incremental accommodation of development.

The Commodification of Ecosystems: Compensatory Afforestation as a Readymade Panacea

The jurisprudence of accommodation does not solely rely on procedural dismissals or jurisdictional sidesteps; it fundamentally alters the conceptual premise of environmental conservation by embracing the commodification of nature. When high-value infrastructure projects—particularly national highways and linear corridors—collide with the protective mandates of forest conservation, the Himalayan High Courts frequently adopt the compensatory paradigm, treating complex, ancient ecosystems as fungible assets that can be mathematically replaced.

In Reenu Paul v. Union of India,^[18] the Uttarakhand High Court assessed the ecological impact of infrastructure projects on forest land. Rather than demanding a rigorous, site-specific ecological appraisal or applying the precautionary principle to limit forest diversion, the Division Bench actively encouraged the State Government to identify “land banks” to serve as a repository for compensatory afforestation. The court commended this as a “proactive stance,” observing that a developer coming up with infrastructural development would have a “readymade solution in the form of the afforestation carried out in advance”. The court reasoned that providing developers with pre-packaged land banks ensures that the project’s cost can simply be borne at pre-fixed rates, enabling a “continuous cycle” of development where the state concurrently creates green cover.

This represents the ultimate crack in environmental jurisprudence. By celebrating a “readymade solution” for infrastructure developers, the court legally validated the myth of ecological interchangeability. A mature Himalayan forest—complete with its specific hydrological functions, soil stabilization capacities, and endemic biodiversity—is treated as functionally equivalent to a monoculture sapling plantation on a designated land bank. The language of environmental protection is retained (the court noted this ensures the “green cover is not impacted seriously”), but its application is entirely facilitative.

Sovereign Exceptionalism: National Security and the Eclipse of Community Commons

When the state invokes national security or acute public need, the ecological evidence test is routinely bypassed. The state’s assertion of necessity functions as a jurisdictional shield, neutralizing Supreme Court precedents designed to protect community ecology.

In Inhabitants of Village Dambra v. UT of J&K,^[19] the Jammu and Kashmir High Court confronted the transfer of 148 Kanals and 1 Marla of Shamlat Deh (Mehfooz Kacharai) land—traditional village grazing commons containing forests and ponds—to the Prisons Department for the construction of a High-Security Prison. The villagers argued that destroying the grazing grounds and water bodies violated the Supreme Court’s stringent directives against alienating community commons, arguing the land required preservation.

The Division Bench dismissed the petition, insulating the project using the language of sovereign security. The court observed that the decision to establish such a prison was taken in view of the prevailing situation in Jammu and Kashmir, which is afflicted by terrorist activities abetted by inimical foreign forces. The court explicitly concluded that the construction of a high-security prison serves a public purpose and is “necessary for the security of the nation.” Crucially, the Supreme Court precedents demanding the strict protection of community ecology and grazing lands were not considered. The court ruled that these precedents “could not be invoked to come in the way of an important project required in public interest and for the security of the Nation”. Ecology was not balanced against security and it was rather entirely eclipsed by it.

A similar dilution occurs when the state voluntarily lowers its own environmental regulations to accelerate extraction. In Inhabitants of Sheva Shirshu Doda v. UT of J&K,^[20] local villagers challenged the installation of a stone crusher and hot mix plant in an environmentally sensitive area. The government had promulgated S.O. 60 of 2021, a highly permissive framework that liberalized the mining regime and removed the need for a Mining Department license for stone crushers by redefining them not as mining units, but merely as “processors of minerals”. Faced with this executive rollback of environmental safeguards, the High Court did not invoke the doctrine of non-regression or the precautionary principle. Instead, the court deferred entirely to the state, citing the limited “scope of judicial review of government policy” and declaring that courts cannot act as appellate authorities over executive formulations. By framing the dispute as a matter of administrative policy rather than an ecological one, the court accommodated the industrial degradation of the mountain landscape.

Procedural Myopia: Weaponising Timelines and Standing to Shield Environmental Harm

The most effective judicial mechanism for accommodating ecological harm without directly contradicting environmental law is procedural dismissal. By focusing intensely on the petitioner’s locus standi, timelines, and procedural technicalities, courts successfully, avoid the burden of assessing complex environmental evidence.

The Jammu and Kashmir High Court’s handling of the Rinkoo Sharma v. Union of India^[21] PILs exemplifies this procedural obstruction. Petitioners challenged the de-notification of the protected Trikuta Wildlife Sanctuary to allow for the extraction of high-grade magnesite and a mining project by the National Mineral Development Corporation (NMDC) near the Vaishno Devi Shrine. Rather than demanding a rigorous ecological assessment of mining in a highly fragile wildlife zone, the Division Bench interrogated the procedural posture of the petitions. The court noted that the environmental clearance was subject to the final orders of the Supreme Court, rendering the PILs “pre-mature.”

More significantly, the court weaponized procedural rules against the petitioners. It observed that the petitioners, who were advocates, had failed to comply with Rule 24 of the Writ Proceedings Rules, which mandated sending a prior representation to the concerned authorities before filing a PIL. Because this technical pre-requisite was not met, and because the petitioners failed to disclose the pendency of a related PIL, both petitions were dismissed at the threshold. The substantive reality—the irreversible ecological impact of mining in a protected Himalayan wildlife sanctuary—was entirely bypassed via procedural formalism.

The doctrine of delay and laches serves an identical shielding function. In Sumit Nayyar v. Shri Mata Vaishno Devi Shrine Board ^[22], an advocate filed a PIL challenging the construction of pilgrim infrastructure and mule-track developments by the Shrine Board. The court not only dismissed the petition on the grounds of an eight-year delay and laches, but it also aggressively questioned the bona fides of the petitioner. Citing Supreme Court jurisprudence on frivolous litigation, the court warned that public interest litigation filed by members of the legal profession without serious “home work and enquiry” should be dismissed with exemplary costs to prevent the abuse of the judicial process. By shifting the judicial gaze from the carrying capacity of the Trikuta hills to the conduct and timing of the petitioner, the court effectively insulated the continuous expansion of religious tourism infrastructure from environmental scrutiny.

Conclusion

The environmental jurisprudence of the Himalayan High Courts over the last decade reveals an unsettling paradox: the vocabulary of ecological protection has never been richer, yet the physical landscape has never been more legally vulnerable. The courts of Himachal Pradesh, Uttarakhand, and Jammu & Kashmir and Ladakh have masterfully preserved the text of environmental law while pronouncing judgements that blunt its teeth.

When confronted with the relentless march of state-backed mega-projects, cascade hydropower, and strategic corridors, the judiciary rarely mounts its attack on the basis of precautionary principle or the public trust doctrine. Instead, it engages in a sophisticated jurisprudence of accommodation. As this analysis demonstrates, systemic ecological crises are administratively sanitized, neutralized by the invocation of sovereign “national security” overrides, or deflected through hyper-technical applications of locus standi and laches. The courts do not need to explicitly reject environmental safeguards to permit ecological destruction; they simply change the legal subject.

Even when the courts do intervene, the nature of the intervention has decisively shifted from absolute prohibition to facilitative mitigation. Existential threats to glacial watersheds and fragile seismic zones are reduced to logistical challenges—solved by minor mitigation measures, or the transactional fiction of “readymade” compensatory afforestation banks. The strict legal boundary lines once drawn to protect nature are repeatedly erased and redrawn as mere pricing mechanisms or technical compliance hurdles. The state is permitted to lower the statutory bar, and the polluter is legally validated for successfully stepping over it.

In this accommodative framework, the Himalayas are no longer treated as a sacred public trust or an integrated living ecosystem holding intergenerational equity. They are legally framed as a challenging terrain to be engineered, compensated for, and ultimately conquered. The foundational tenets of Indian environmental law were designed as a hard ceiling against irreversible harm, but they have been retooled into a machinery of concession. Until the Himalayan courts stop subordinating substantive ecological survival to procedural formalism and administrative deference, the majestic peaks, rivers, and forests of the region will continue to be hollowed out, with legal sanction and with the judiciary watching on.

Note: The 3-part series is based on strong empirical standing. Part I dealt with substantive high court pronouncements coming from resource rich Central and Eastern India- Jharkhand, Chhattisgarh, Madhya Pradesh and Odisha. Part II (Western India) closely examined judgements emerging from the high courts of Bombay, Karnataka and Goa.

Part IV (Northern India) reflects on judgments from Delhi, Punjab & Haryana, Uttarakhand and Allahabad.

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

^[1] This article forms Part III of a three-part series examining environmental jurisprudence in the Trans-Himalayan High Courts. Parts I and II Central India and Western India respectively.

^[2] Mohd. Salim v. State of Uttarakhand, 2017 SCC OnLine Utt 367, Writ Petition (PIL) No. 126 of 2014, Uttarakhand High Court, judgment dated March 20, 2017.

^[3] Lalit Miglani v. State of Uttarakhand, W.P. (PIL) No. 140 of 2015, Uttarakhand High Court, judgment dated March 30, 2017.

^[4] Narayan Dutt Bhatt v. Union of India, 2018 SCC OnLine Utt 645, Writ Petition (PIL) No. 43 of 2014, Uttarakhand High Court, judgment dated July 4, 2018.

^[5] In the Matter of Forest Area, Forest Health, and Wildlife Conservation (Forest Fires Suo Motu Line), W.P. (PIL) No. 174 of 2024, Uttarakhand High Court, orders dated December 31, 2025 and March 18, 2026.

^[6] General Public of Saproon Valley and Ors. v. State of Himachal Pradesh, Civil Writ Petition No. 595 of 1991, Himachal Pradesh High Court, judgment dated April 24, 1991.

^[7] Court on Its Own Motion v. State of Himachal Pradesh (Bathan, Thural Stone-Crusher Line), CWPIL No. 12 of 2019, Himachal Pradesh High Court.

^[8] Gram Panchayats Bhatanwali, Patalia and Behral v. Union of India, Civil Writ Petition, Himachal Pradesh High Court, judgment dated April 16, 2026.

^[9] In the Matter of Unauthorized Mining and Illegal Construction near Dwarahat (Bageshwar), W.P. (PIL) No. 35 of 2024, Uttarakhand High Court, order dated December 31, 2025.

^[10] Syed Iqbal Tahir Geelani v. State of Jammu & Kashmir, PIL No. 27/2017 (formerly PIL No. 159/2002), Jammu and Kashmir and Ladakh High Court, order dated September 12, 2024.

^[11] Kashmir Environmental Protection v. State of Jammu & Kashmir (Wular Lake Line), PIL No. 14 of 2021, Jammu and Kashmir and Ladakh High Court, order dated August 22, 2024.

^[12] In Re Protection of Seven Ramsar Wetlands in Jammu, Kashmir and Ladakh, Suo Motu PIL No. 35 of 2018, Jammu and Kashmir and Ladakh High Court, order dated August 14, 2024.

^[13] Court on Its Own Motion v. Sonamarg Development Authority, PIL No. 27/2017, Jammu and Kashmir High Court, construction ban baseline order dated October 23, 2017. See also Court on Its Own Motion v. UT of J&K & Ors., Suo Motu PIL No. 27/2017, Jammu and Kashmir and Ladakh High Court, order dated January 3, 2025.

^[14] Alaknanda Hydro Power Co. Ltd. v. State of Uttarakhand & Others, Civil Writ Petition, Uttarakhand High Court.

^[15] Court on Its Own Motion v. UT of J&K, PIL No. 27/2017, Jammu and Kashmir and Ladakh High Court, order dated June 24, 2024.

^[16] The Supreme Court stay in Mohd. Salim was passed in Civil Appeal Diary No. 7699 of 2017. The Lalit Miglani SLP (Civil Appeal Diary No. 7906 of 2017) remains pending as of 2026.

^[17] Citizens for Green Doon v. Union of India, W.P. (Civil) No. 1102 of 2018, Supreme Court of India, judgment dated December 14, 2021.

^[18] Reenu Paul v. Union of India and Others, Writ Petition (PIL) No. 37 of 2025, (2025), High Court of Uttarakhand at Nainital

^[19] Inhabitants of Village Dambra v. UT of J&K Th GAD and Ors., LPA No. 185/2023, (2023), High Court of Jammu & Kashmir and Ladakh at Jammu

^[20] Inhabitants of Sheva Shirshu Doda v. UT of J&K and Others, WP (C) No. 639/2022, (2023), High Court of Jammu & Kashmir and Ladakh at Jammu

^[21] Rinkoo Sharma v. Union of India, WP PIL No. 02/2012 and WP PIL No. 03/2012

^[22] Sumit Nayyar v. Shri Mata Vaishno Devi Shrine Board and ors., WPPIL No. 14/2016, (2017), High Court of Jammu and Kashmir at Jammu.

Related:

Unending Adjudication: The Vanashakti reversal and environmental finality in India

Cracks in Environmental Jurisprudence: A study of central India’s High Courts

Cracks in Environmental Jurisprudence: The Bombay High Court’s shifting language

The post Himalayan Courts: Young folds & new cracks in environmental jurisprudence appeared first on SabrangIndia.

The Supreme Court judgements in Vanshakti I (May) and Vanshakti II (November) have brought an impending sense to the study of environmental law regime in India. Whether the Courts are seeing shift and what that shift means, for the environmental law regime in the country is an important question to ask and engage with.

In pursuance of that question, Part I of this series looked at Central India and tried to read the language of the High Courts as evenly as the language allowed. The pattern that emerged was not of an institutional collapse, nor of unbroken activism, but of a doctrine — the precautionary principle, the polluter-pays principle, public trust — being applied with great care in some cases and with visible accommodation in others. The variable, more often than not, was the size of the economic interest on the other side, and sometimes, the social location of those whose ecology was at stake.

Part II turns to Western India: Mumbai, the rest of Maharashtra, and the long shadow of the Western Ghats. Mumbai is where Indian coastal-zone jurisprudence first acquired teeth, where the public trust doctrine was given some of its most quoted formulations, and where, more recently, the same court has been asked to permit successive infrastructure projects that touch the coast, the mangroves, the urban forest and the Western Ghats ecology. The case law here is therefore unusually self-referential: nearly every important judgment cites the ones before it. That makes it possible to do something that is harder in other regions — to watch the same court engage with the same doctrines across thirty years, and ask whether what changes is the doctrine, the facts, or the framing.

As with Part I, the exercise is not premised on a finding that the judiciary has failed. The starting assumption is the opposite: that the Bombay High Court has been among the more engaged constitutional forums on environmental questions. The probing is for the texture and grammar of that engagement — what language the judges reach for when they are protecting, what language they reach for when they are permitting, and whether the two sets of language can be honestly distinguished.

As before, some Supreme Court context is necessary before turning to the High Court. The Vanashakti split of 2025 — discussed in Part I — sets the contemporary backdrop. The two-judge Bench struck down the Ministry of Environment’s framework permitting ex post facto environmental clearances as contrary to the precautionary principle. The three-judge review, by majority, recalled those directions and held that ex post facto regularisation was permissible in appropriate cases, with polluter-pays as the compensatory mechanism. Justice Bhuyan, dissenting in review, called the recalibration “a step in retrogression”. This part, like the previous one, will also look at whether the Bombay High Court is engaging with the environment law question in this theoretical context of Vanashakti II.

This Part is organised in three sections. The first reads the early jurisprudence — late 1990s and early 2000s — when the High Court and the Supreme Court were articulating the protective vocabulary that still dominates Indian environmental law. The second reads the transitional decade between roughly 2016 and 2022, when that vocabulary began to share space with another — “balance”, “larger public interest”, “exceptional case”. The third reads the most recent cases, from 2024 onwards, which take that second vocabulary as settled and apply it. A short fourth section attempts a hypothesis.

The Baseline: Dahanu, Mahabaleshwar, the Mill Lands, Adarsh

Dahanu and the architecture of localised supervision

The Supreme Court’s decision in Indian Council for Enviro-Legal Action v. Union of India (1996) is a good starting point. The Court was dealing with a petition concerning the coastal stretches of India and, in particular, the Dahanu Taluka of Thane District, which the Central Government had declared an ecologically fragile area by notification dated 20 June 1991. The State of Maharashtra had not prepared the master plan that the notification required; in the meantime, balloon-manufacturing units, buffing-and-chromium-plating units, and chemical units had been licensed in what was a predominantly agricultural and orchard area. A 1994 amendment to the Coastal Regulation Zone Notification had also diluted the 1991 framework.

The Court did three things, each of which is worth noticing separately.

First, it accepted as part of Indian law the precautionary principle and the polluter-pays principle, and said so in terms. Second, it struck down the relevant relaxations of the 1994 amendment. Thirdly, in an activist move, it transferred ongoing monitoring of Dahanu to the Bombay High Court, requested the Chief Justice to constitute a “Green Bench” for environmental matters, and directed the Central Government to constitute an authority headed by a retired High Court Judge under Section 3(3) of the Environment (Protection) Act, 1986. Pollution control, in the Court’s framing, could be “better done by the High Court” because local ecological degradation is best monitored locally.

The language of the judgment records that enacting environmental laws and then not enforcing them “would be more harmful than not enacting laws at all”, phrase that has been quoted by many a subsequent Bombay High Court benches dealing with non-enforcement. In Bittu Sehgal v. Union of India later in 1996, the Supreme Court reiterated the directions, accepted in full the recommendations of the National Environmental Engineering Research Institute on Dahanu, and constituted the Dahanu Taluka Environment Protection Authority.

Mahabaleshwar–Panchgani: the absence of mood-music

The Bombay High Court’s judgment in the Mahabaleshwar–Panchgani PIL (November 18, 1998) is a good case to read for how a court can handle a hill-station ecology problem without dramatising it. The petitioners alleged large-scale illegal construction, deforestation, conversion of agricultural land to luxury bungalows and three-star hotels, and direct discharge of sewage into Venna Lake — the drinking water source for Mahabaleshwar. The Court appointed a six-member committee under a former Commissioner of Pune Division, with a Collector, two Town Planning officers, and a retired military officer. The committee reported approximately 1,060 building and other violations.

The Court’s response, recorded across orders of January, February and April 1998 and consolidated in the final order, was to: (a) direct the Maharashtra Pollution Control Board to stop the discharge of polluted water into Venna Lake and the river, with criminal prosecution of erring parties if necessary; (b) direct the Collector of Satara District and the Chief Officer of Mahabaleshwar Municipal Council to take action against erring parties; (c) direct that no further construction in violation of the sanctioned plan be permitted, with show-cause notices to be issued within one month; (d) refuse the benefit of additional Floor Space Index granted to three-star hotels under a 1971 Government Resolution to construction commenced after the 1979/1988 Development Control Rules came into force, while saving the benefit already given; (e) direct relocation of authorised stalls from Venna Lake to a centralised location and removal of all unauthorised stalls; and (f) direct the Heritage Committee to finalise heritage regulations within four months.

What is notable about this judgment is the absence of mood. The judges do not write at the high pitch that later environmental decisions sometimes adopt. They quote the committee report at length, count the violations, name the byelaws, and pass directions that operate as a regulatory timetable for the executive. There is no language of “absolutism” — the order is simply that the development control rules be enforced, with the Pollution Control Board, the Collector and the Municipal Council named as the responsible authorities.

The same court, in the same period, was hearing the Lavasa/new hill-station scheme litigation. In its judgment of 4 December 1998, the Division Bench quashed the letter of intent issued to the Sahara entity to develop a new hill station, noted that there were credible allegations of forced land acquisition from tribals, and directed a State probe into the land transactions. The Court did not declare new hill stations per se unlawful — on the contrary, it accepted the State’s case that population pressure on Mahabaleshwar, Matheran and Panchgani made eco-friendly new hill stations necessary — but it insisted that the regulatory scheme be observed.

The Mill Lands and the working life of the public trust doctrine

The Bombay Environmental Action Group v. State of Maharashtra decision of October 17, 2005 — the Textile Mill Lands case — is one of the more cited Bombay High Court judgments on the public trust doctrine, and it is worth being precise about what it actually decided. The petitioners challenged amendments to Development Control Regulation 58, which governed the redevelopment of about fifty-eight closed textile mills in central Mumbai. The un-amended Regulation had required, in broad terms that the surrendered mill lands be divided equally into three parts: one-third for open spaces and recreation, one-third for low-cost housing for mill workers and for the Municipal Corporation, and one-third for development by the mill owner. The 2001 amendment changed the formula so that the one-third allocations for public space and public housing applied only to the open or vacant portion of the mill land, not to the entire mill land. The effect, in practice, was that very little of the redeveloped land was surrendered for the public purposes for which the original regulation had reserved it.

The Division Bench held that the amended Regulation, read on its plain language, did not achieve what the parties before the Court had assumed it would, and that the Municipal Corporation had not, in fact, ensured surrender of land for open spaces and public housing. The Court read down the regulation by applying “the rule of construction which is more reasonable and just”, and recorded what it called “certain disturbing aspects” — that the Corporation had not insisted on public amenities, had filed only vague particulars of “green areas” without distinguishing public from private greens, and had not ensured the free housing for mill workers that the Regulation contemplated.

The judges placed considerable weight on the trust character of the State’s role. They wrote that the State is “obliged to make available material resources to the community” and that its role “is that of a trustee”, that all properties under such legislation vest in the Government “by way of trust for public good and public purpose”, and that the National Textile Corporation, in trading its land for profit, had acted contrary to the BIFR schemes and earlier Supreme Court orders. The Court also reiterated the standing rule that in PIL the constitutional court is “sentinel on the qui vive” and that “technicalities do not deter the Court in wielding its power to do justice”.

The public-trust register is doing real legal work here — it grounds the Court’s decision to read the amended regulation against the developer’s interest where the Corporation had defaulted on its statutory duty.

Adarsh: demolition as the operative direction

If the Mill Lands case is the public-trust register, the Adarsh Co-operative Housing Society v. Union of India decision of April 29, 2016 is the procedural-rigour register. The Special Bench, after a long judgment running through every stage of the regulatory chronology, concluded that the Adarsh Society had constructed a 31-storey building in a CRZ-II area, on land that had been deleted from a 60.96-metre road reservation to create a residential plot, without ever obtaining environmental clearance from the appropriate authority under the CRZ Notification, 1991, and without recommendation of the Maharashtra Coastal Zone Management Authority. Letters dated 11 March 2003 and 15 March 2003 from the Ministry of Environment and Forests and the Urban Development Department, on which the Society had relied, were held not to constitute environmental clearance — a conclusion that the Society itself conceded.

The operative direction is in paragraph 377: the Court records that the entire construction is “unauthorized and illegal and in total defiance of provisions of E.P. Act as also M.R. & T.P. Act”, and orders demolition with costs to be recovered from the Society. The Court relies on a long line of Supreme Court authority on demolition of unauthorised construction — Friends Colony Development Committee, Dipak Kumar Mukherjee, M.I. Builders, M.C. Mehta — and quotes with approval the line that “those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship” and that this “has done irreparable harm to the concept of planned development of the cities and urban areas”.

What is striking, again, is the absence of softening language. The Society’s members were largely defence officers and senior bureaucrats. The conduct of the State officers at multiple levels is documented at length. The Court does not soften the operative direction because of any of this. The conclusion is that the building has to come down. The reason is that the regulatory framework — environmental clearance under the CRZ Notification and the Environment (Protection) Act — was not observed, and that the political and bureaucratic seniority of the residents cannot be the basis for regularising what the statute forbids.

Read together, these four cases — Dahanu, Mahabaleshwar, Mill Lands, Adarsh — represent a consistent posture. The court is willing to read statutes against developers where the regulator has defaulted; it does not regard the existence of constructed structures as itself a reason to soften the regulatory consequence; it treats environmental notifications as legal instruments rather than as policy aspirations; and it locates its institutional role in continuing supervision of the executive. The doctrines invoked — precautionary principle, polluter-pays, public trust — are doing identifiable legal work rather than being decorative.

The Transitional Decade: Coastal Road, Aarey, Mangroves, Bullet Train

The four most important Maharashtra environmental decisions between 2018 and 2022 are useful to read together, because they sit on either side of a line that is not always acknowledged but is, on close reading, visible. Two of them — the Mangroves judgment of September 2018 and the Sawantwadi–Dodamarg directions in 2024 — keep the older posture intact. The other two — the Coastal Road decision of July 2019 and the Bullet Train decision of December 2022 — speak the newer vocabulary.

The Mangroves Judgment (2018): a continuation of the older posture

In PIL No. 87 of 2006, decided on September 17, 2018, a Division Bench delivered what is now the operative framework for mangrove protection in Maharashtra. The judgment held that all mangroves fall in CRZ-I irrespective of their size, that a buffer zone of fifty metres around mangroves areas of 1000 sq m or more is also part of CRZ-I, that the destruction of mangroves offends Article 21, and that — invoking the public trust doctrine and Articles 21, 47, 48A and 51A(g) — the State has a mandatory duty to protect and preserve mangroves. The operative directions, contained in paragraph 85-A, declare a total freeze on the destruction and cutting of mangroves in the entire State of Maharashtra; prohibit dumping of rubble, garbage or solid waste on mangroves; prohibit construction within fifty metres of all mangroves regardless of ownership; and direct that no development permission be issued by any authority in respect of any area under mangroves.

It is the next sentence of the same paragraph that becomes important in everything that follows. The Court records that the State “is duty bound to protect and preserve mangroves” and that mangroves “cannot be permitted to be destructed by the State for private, commercial or any other use unless the Court finds it necessary for the public good or public interest”. The freeze, in other words, is not absolute; the Court keeps a window. The exception is narrow on its face — destruction for “public good or public interest”, and only after this Court is satisfied — but its width depends entirely on what later courts treat as falling within it.

The judgment is worth reading closely for what it does doctrinally. The Court locates mangrove protection not merely in the CRZ Notification but in the Constitution itself: the right to life under Article 21, the duty of the State to raise nutrition and public health under Article 47, the directive to protect the environment under Article 48A, and the citizen’s fundamental duty under Article 51A(g). The public trust doctrine is invoked not as ornamental rhetoric but as the juridical basis for the State’s mandatory duty. The fifty-metre buffer zone around mangroves of 1000 sq m or more is treated as an integral part of the CRZ-I category, meaning that the protective zone carries the same prohibitions as the mangroves themselves. The practical effect is significant: in a densely urbanised coastline like Mumbai’s, a fifty-metre radius around every substantial mangrove patch removes large areas from the developable land pool. The judgment also appoints the Maharashtra Coastal Zone Management Authority and the Forest Department as the responsible agencies, and directs them to submit quarterly compliance reports. The Court’s own supervisory jurisdiction is expressly reserved. What the judgment creates, in other words, is a protective framework with judicial oversight — one that treats mangroves as constitutionally protected natural resources and permits their destruction only through a narrow, court-supervised exception.

The Coastal Road decision (2019): the architecture of the “exceptional case”

The Bombay High Court’s decision in Worli Koliwada Nakhwa and the connected petitions, dated  July 16, 2019, is a 200-plus page judgment, and the analysis that follows here is confined to its doctrinal architecture rather than its full factual record. Two questions were before the Court. First, was the amendment of 30 December 2015 to the Coastal Regulation Zone Notification, 2011 — which permitted reclamation of coastal land for roads “in exceptional cases” — ultra vires the Environment (Protection) Act, 1986, or unguided delegation? Second, was the CRZ clearance granted by the Ministry of Environment and Forests on 11 May 2017 for the Mumbai Coastal Road project liable to be quashed for failure to undertake the rigorous appraisal that the law required?

On the first question, the Court upheld the 2015 amendment. The petitioners’ argument that “exceptional case” was an unguided phrase that could mean anything was rejected. The Court’s reasoning is set out at paragraph 134 and is worth quoting because it is the doctrinal hinge of the rest of the judgment:

“In situations where Rules governing the sustainable development and preservation of the ecology are framed, the exceptional case to such development at cost of ecology has to be looked from the point of view of the necessity of development reaching the level of such great utilitarian value that what is lost or sacrificed must be accepted.”

This is not the language of the 1996 Dahanu order, nor of the 1998 Mahabaleshwar judgment, nor of the 2005 Mill Lands decision, nor of the 2016 Adarsh judgment. It is a different register. It accepts, as a starting premise, that there will be situations in which development reaches a level of utilitarian value such that ecological sacrifice must simply be accepted; and the role of the Court is to satisfy itself that the decision-making process underlying that acceptance has been followed. To refine the test — the need has to be “more than a crying need”, it “has to be a need based on exhausting all possible solutions”, and “upon material showing that the need is bordered between a crying need and dying need, a deep and pervasive environmental impact assessment has to be done”.

Applied to the facts, the Court did quash the immediate CRZ clearance. The reason was that the Mumbai Coastal Road, as planned, had been split into two segments and the project proponent had submitted its application only for the segment from Princess Flyover to the Worli end of the Bandra–Worli Sea Link; the Joint Technical Committee report relied on was from 2011 (using 2008 traffic data) and did not address the cumulative impact of the entire road; the appraisal had been done under the CRZ Notification, 2011 and not also under the Environment Impact Assessment Notification, 2006 even though the project arguably attracted entry 8(b) of the EIA Schedule; and the Expert Appraisal Committee had not given reasons for accepting the project proponent’s responses to public objections. The clearance was quashed for these procedural inadequacies.

But the framework — that ecology can be sacrificed where the utilitarian value of the development is great enough — was left standing. And, indeed, when the matter went to the Supreme Court and the project resumed, that framework controlled. By 2024, the question before the Supreme Court was no longer whether the road should have been built, but whether the Municipal Corporation could carry out landscaping and beautification on the median of the now-built road, given that an interim order of September 13, 2022 had restrained commercial use of the reclaimed land. The Supreme Court’s order of November 7, 2024 holds:

“The restraint which was imposed in the order of this Court dated September 13, 2022, must be construed in a reasonable manner. The State having reclaimed land from the sea for the purpose of constructing the coastal road, the interim order was passed in order to ensure that the reclaimed land is not put to commercial use or purposes… bearing in mind that the public interest litigation principally dealt with an environmental issue, there can be no objection to the Municipal Corporation being permitted to carry out landscaping of the median of the coastal road over a length of 4.35 kilometers approximately as stated during the course of the submissions.”

This is the framework working itself out across instances. The reclamation was permitted in 2019 (subject to procedural rigour); the procedural rigour was eventually satisfied; the building was completed; and the embargo on commercial use of the reclaimed land was “construed in a reasonable manner” to permit landscaping. None of these moves is, taken on its own, unreasonable. What is worth noticing is that the cumulative effect of “reasonable construction” is that the framework that was supposed to protect the coast from being put to road and ancillary use has, step by step, accommodated the road and its appurtenances.

Aarey (2019): comity and res judicata

The Aarey Metro Car Shed judgment of October 4, 2019 — delivered by the same Chief Justice who delivered Worli Koliwada and by a different second judge — is shorter and turns on procedures. Petitioners sought a declaration that 1,280 hectares of the Aarey Milk Colony be declared a Reserved or Protected Forest under the Indian Forest Act, 1927, and that the State be restrained from non-forest activities, particularly the construction of a metro car shed on 33 hectares of the colony.

The Court records the documentary material the petitioners relied on: the 1980 letter from the Forest Development Corporation of Maharashtra advising that Aarey be declared a Reserved Forest; the 2004 letter from the Governor of Maharashtra to the Chief Minister on the encroachment of Aarey lands; the 2015 report of the State Technical Committee which, as primarily recommended, located the metro car depot at Kanjur Marg, with only a small stabilising unit at Aarey; the dissenting notes by environmental experts from IIT Bombay and NEERI recommending that Aarey be preserved as forest; the Maharashtra Remote Sensing Application Centre’s 2006 scientific imagery showing thick vegetation; and the position of the Forest Department in affidavits before the National Green Tribunal.

The Court did not engage with this material on the merits. Its dismissal rested on two procedural doctrines. The first was that the substantive question of whether Aarey was a forest was pending before the Supreme Court in T.N. Godavarman, and the question of the eco-sensitive zone around Sanjay Gandhi National Park was pending before the National Green Tribunal in OA No. 193/2016. The Bench held that, under the principle of comity, the appropriate forum was the Supreme Court (for forest declaration) and the National Green Tribunal (for the eco-sensitive zone). The second was that a coordinate Bench had already, on October 26, 2018 in W.P. (L) No. 2766 of 2017 (Amrita Bhattacharjee), rejected the challenge to the August 2017 and November 2017 notifications under the Maharashtra Regional and Town Planning Act, 1966 that had de-reserved the 33 hectares for the metro car depot. The principles of res judicata applied. The petitions were dismissed.

The procedural treatment is unobjectionable in its own terms — comity and res judicata are settled doctrines. What is worth marking is the distance between the volume of ecological material recorded in the judgment and the absence of any judicial engagement with that material. The Court holds that this material must be evaluated elsewhere; it does not itself evaluate it. By contrast, in 1997, the Mahabaleshwar Bench did not refer the question of unauthorised hill-station construction to a tribunal — it appointed a committee, received a report counting violations, and passed binding directions. The change is not in the substantive law on forests or on coastal regulation; it is in the institutional posture of the Court when faced with a multi-billion-rupee public infrastructure project that is already underway.

The Bullet Train (2022): the “public good” window opens

In National High Speed Rail Corporation Ltd. v. State of Maharashtra, decided on 9 December 2022, the petitioner sought permission to fell mangroves within CRZ-I for the Mumbai–Ahmedabad High Speed Rail (Bullet Train) project. The factual scale is recorded in the judgment: the total alignment is 508.17 km, of which 155.642 km is in Maharashtra; the total land requirement in Maharashtra is 438.536 hectares; the area falling under mangrove forest is 32.4302 hectares; the area of mangroves directly to be affected is 13.3668 hectares, with 53,467 trees.

The Maharashtra Coastal Zone Management Authority had initially deferred the proposal, in view of the 2018 Mangroves judgment, and had suggested that the project proponent approach the High Court. By interim order of 12 February 2019, the Court directed the MCZMA to take a decision on the proposal, observing that the Division Bench in PIL 87/2006 had itself “carved out a clause wherein a permission can be granted if it is necessary for the public good or the public interest”. The MCZMA then granted clearance on 6 March 2019. The Ministry of Environment and Forests gave its clearance. The petition before the High Court was, in effect, for permission under the 2018 judgment’s carve-out.

The Court granted the permission. The reasoning runs through the advantages of the project that the petitioner had pleaded — connectivity between Mumbai and Ahmedabad; reduction of travel time from six and a half hours to two and a half; lower carbon footprint than vehicular traffic; international funding on favourable terms from the Japan International Cooperation Agency at 0.1 per cent interest; generation of approximately 20,000 jobs during construction and 20,000 direct and indirect jobs in operations. The Court records the petitioner’s Integrated Mangrove Conservation and Management Plan, the proposed compensatory afforestation, and the clearance position of the regulators. It concludes that the project is in the public good and public interest within the meaning of the 2018 judgment, and permits the cutting of the 13.3668 hectares of mangroves.

The observation here is narrow. The 2018 carve-out was framed to apply where the Court was satisfied that destruction of mangroves was necessary for public good or public interest. The Bullet Train Bench reads that carve-out as activated by the very features of the project that any large public-infrastructure proponent will plead: connectivity, employment, foreign funding, lower carbon footprint than the existing transport mix. None of these features is irrelevant. The question is whether they are sufficient. The Court’s answer is that, in this case, they are; and the answer is given without an explicit framework for distinguishing this case from one in which the answer would be no. The mangroves are felled, the compensatory afforestation is fixed (1:3 ratio), and the public-trust framework’s exception clause begins to do significant work.

The Present: Sawantwadi–Dodamarg, Bandra Reclamation, Versova–Bhayandar

Sawantwadi–Dodamarg (2024): persistence as a substitute for declaration

The Awaaz Foundation / Vanashakti judgment of 22 March 2024 disposes of two Public Interest Litigations pending since 2012 and 2014, both seeking the declaration of the Sawantwadi–Dodamarg corridor — a 35 km stretch of about 25 villages on the Maharashtra–Goa border, identified by the Sen Committee, the Western Ghats Ecology Expert Panel and a 2022 Wildlife Institute of India study as a critical wildlife corridor — as an Ecologically Sensitive Area under the Environment (Protection) Act, 1986.

The Court records, with what reads as careful patience, the full chronology. Orders had been passed since 2012. The State of Maharashtra had not disputed, in successive affidavits, that the corridor was ecologically vital. The State had ultimately commissioned the Wildlife Institute of India study, which concluded — in the language quoted at length by the Court — that 36 villages covering approximately 338 sq. km, where forest habitats are still intact, should be declared as ESA in order to retain landscape connectivity with the Goa and Karnataka conservation landscape. The Union government had no substantive objection; what it had was the position that declaration depended on the State’s formal proposal. The State, on the other hand, said the proposal would be sent to the Union government. The corridor had, in the meantime, lost approximately 18 lakh trees in two years of felling in the Dodamarg forest circle alone.

On March 22 , 2024, after twelve years of litigation, the Court issued time-bound directions: the State to submit a proposal to declare the 25 villages as an ESA within four months; the Union government to initiate the procedure within two months thereafter and issue final notification “as early as possible, preferably within four months”; the interim restraint on tree-cutting to continue until final notification; and a Task Force of the District Collector, Deputy Conservator of Forests and Superintendent of Police, Sindhudurg, to ensure compliance, publish a dedicated email and helpline for complaints, and report violations.

Two features of this judgment deserve to be marked. First, the Court does not adopt the language of “balance” or “larger public interest” anywhere in the operative portion. There is no developer on the other side of the case who has to be accommodated; the case is between a State that has agreed in principle and a Union government that needs the State’s piece of paper. Where that is the structure, the older posture re-emerges intact — that ecological declaration must follow on the documentation that has been before the Court for a decade, and that further delay is not acceptable. Second, and relatedly, the Court chooses a structural remedy: not a one-time order, but a Task Force with a helpline, and continuing responsibility on three named officers. The institutional posture of the 1996 Dahanu order — local supervision through specifically named authorities — survives in this kind of case.

The Bandra reclaimed land (2025): the conditions of clearance, twenty-six years later

The Bombay High Court’s judgment of August 26 , 2025 in the connected petitions of Bandra Reclamation Area Volunteers Organisation and Zoru Darayus Bhathena arises from a regulatory chronology that goes back to the construction of the Bandra–Worli Sea Link in 1999–2000. The Ministry of Environment and Forests had granted environmental clearance on 7 January 1999 for that project. Condition (viii) of that clearance, as amended on 26 April 2000, was that reclamation should be kept to the bare minimum, not exceeding 4.7 hectares and subsequently expanded to 27 hectares; and that on the landward side of the road, within 100 metres, no commercial activity other than toll collection would be permitted. The Chief Secretary of Maharashtra had, in a letter to MoEF on 10 February 2000, given the assurance that the reclaimed land “will be kept as open space/garden and no commercial exploitation will be done”.

In 2024, the State Government transferred 24 acres of the reclaimed land to Maharashtra State Road Development Corporation, which proceeded to invite tenders for commercial development of the plot. The petitioners contended that the proposed development violated the 1999/2000 conditions, that the conditions survived the 2011 and 2019 CRZ Notifications, and that MSRDC — a corporation constituted by Government Resolution for road development — could not in any event undertake commercial development.

The Court rejected each contention. On the survival of the conditions, it held that the 1999 clearance had been granted under the 1991 CRZ Notification, that the conditions were referable to and integral with that Notification, and that successive Notifications in 2011 and 2019 had altered the regulatory framework in respects that did not preserve the original conditions. On the maintainability of MSRDC undertaking development, it held that once the State Government decided to transfer ownership of the land to MSRDC for the purpose of developing it, the Court could see no illegality in MSRDC doing so. The petitions were dismissed.

The Court’s reasoning is internally consistent. The 1999 clearance was issued under the 1991 Notification; the 1991 Notification has been replaced; the conditions in the clearance were not, on the Court’s reading, saved by the saving clauses of the new Notifications; and the State, having become the owner, can decide on the use of its property. What is worth marking is the structure of the result: a regulator’s clearance issued in 1999, conditioned by an assurance in 2000 that the land would be kept as open garden, is read in 2025 as no longer binding the State, by reason of subsequent regulatory changes that the State itself promulgated. The reclaimed land at the foot of the Bandra–Worli Sea Link was reclaimed on the strength of those very conditions; the conditions, twenty-six years later, do not survive the regulatory updating.

Whether this reading is correct as a matter of doctrine — and there are real arguments on the survival of clearance conditions— is not the question being asked here. The point is the framing. The Court treats the conditions as procedural artefacts attached to a specific notification, rather than as substantive undertakings made to the Court that supervised the original project. That is a different way of reading 1999 than the Mill Lands Bench, in 2005, would have read it. The real visible difference between this case and the case of Sawantwadi–Dodamarg and Bandra Reclamation is that the Bandra Reclamation project involved a high stakes road project.

Versova–Bhayandar (December 2025): the operationalisation of the carve-out

The Brihanmumbai Municipal Corporation v. Union of India decision of December 12, 2025 is the application, three years after the Bullet Train, of the same 2018 carve-out to a different infrastructure project. The Corporation sought permission to fell mangroves for the Versova–Bhayandar coastal road, a 26.32 km extension that would link the existing Mumbai Coastal Road northwards. The estimated cost is approximately Rs. 18,263 crores. The Rapid Environment Impact Assessment Report records that approximately 102 hectares of forest land, mostly mangroves, would be required; that 60,000 mangrove trees are in the project’s zone of influence and may be affected; and that the project would inevitably destroy approximately 10 hectares of mangroves (about 9,000 trees) under the actual bridge and road footprint.

The Court records that all statutory permissions up to that stage had been obtained, that compensatory afforestation in the ratio of 1:3 is provided for (1,37,025 mangrove trees on 30 hectares of degraded mangrove forest at Bhayandar, with Rs. 17.74 crores deposited towards plantation and ten-year maintenance), and that compensatory afforestation of an equivalent 103.70 hectares of non-forest land at Vihirgaon in Chandrapur, contiguous with the Tadoba-Andhari Tiger Reserve buffer, will be undertaken at the petitioner’s cost. A further Rs. 233.98 crores has been earmarked for restoration and compensatory measures within an Integrated Coastal Management framework, with the Environment Management Plan contractually embedded in the project’s execution and disbursement schedule.

The reasons recorded for granting the permission are: that the project decongests three congested arterial roads (Western Express Highway, Link Road, S.V. Road); that it reduces travel time from 120 minutes to 18 minutes; that it is expected to reduce daily fuel consumption by approximately 7,82,355 kg, and annual CO₂ emissions by approximately 14,686,304 tonnes; that the project is a permissible activity under the 2019 CRZ Notification clauses 5.1.1(ii) and (iii); that the petitioner has built in extensive mitigation; and that, on the basis of the petitioner’s affidavits and the regulators’ clearance, this is a case for invoking the carve-out under paragraph 87(viii) of the 2018 Mangroves judgment.

The Court grants the permission and imposes a continuing-mandamus structure: the Corporation must file an interim application with annual compliance affidavits, signed by the Municipal Commissioner, MCZMA Mangrove Cell and the Principal Chief Conservator of Forests, for the next ten years, automatically listed on the third Friday of January every year. Failure to file would be contempt.

Three observations are worth making about this judgment. First, the doctrinal pathway from 2018 to 2025 is now fully formed. The 2018 freeze on mangrove destruction is intact in form: every developer who wants to fell mangroves must come to the Court. The exception in 2018 — “public good or public interest” — has been read in 2022 (Bullet Train) and 2025 (Versova–Bhayandar) to cover infrastructure projects of demonstrable utility, where compensatory afforestation is offered. Whether anything other than a project of demonstrable utility could ever reach the threshold for invoking the exception is left open; the cases that have invoked it have not been refused. Second, the supervisory architecture of the 1996 Dahanu order — periodic compliance, named officers, calendarised review — survives, but it is now used to supervise mitigation rather than to monitor compliance with a prohibition. The Court does not stop the destruction; it monitors the compensation and mitigation. Third, the language is precise and unsentimental. There is no rhetoric of “absolutism” or of “sustainable development” being a sword. The judgment is, in tone, indistinguishable from a tribunal order approving a mitigation plan.

The Reading

The first register — Dahanu, Mahabaleshwar, Mill Lands, Adarsh, Mangroves 2018, Sawantwadi-Dodamarg 2024 — treats environmental notifications as instruments of statute that bind the State and its instrumentalities, treats developers as parties whose interests do not survive their own non-compliance, and uses the public trust doctrine, the precautionary principle and the polluter-pays principle as substantive tests rather than as rhetorical flourishes. The second register — Worli Koliwada 2019, Aarey 2019, Bullet Train 2022, Bandra reclamation 2025, Versova-Bhayandar 2025, — treats the same doctrines as structuring questions in which the Court’s role is to satisfy itself that the regulatory process has been followed, and treats the existence of a substantial, completed or under-construction infrastructure project as a feature of the case that conditions the available remedies.

Neither register is unprincipled. The transitional cases do not pretend to be applying the absolutist test of the older cases; they openly say that ecological sacrifice is acceptable where the utilitarian value of the development is great enough, and they invoke compensation and mitigation as the relevant remedial axis. The older cases do not pretend to be applying a balancing test; they say the regulation must be enforced and that demolition is the remedy.

What the two registers have in common is that the variable is not the language of the doctrine but the magnitude of the economic interest on the other side. Where the case is between citizens and a defaulting regulator — Dahanu, Mahabaleshwar, the mill lands, the mangrove freeze in the abstract, the Sawantwadi-Dodamarg corridor — the protective register holds. Where the case is between citizens and a partially or fully built infrastructure project of substantial cost — the coastal road, the metro depot, the bullet train, the sea-link reclamation, the second-stage coastal road extension — the accommodative register operates. The shift is not always visible at the level of language; it is visible at the level of outcome.

The Year 2026: Continuation and Consolidation

The Mumbai Air Pollution Suo Moto (January 2026): institutional response to systemic failure

The first 2026 judgment of significance is not, strictly speaking, a judgment on an environmental doctrine. In High Court on Its Own Motion v. State of Maharashtra, SM PIL No. 3 of 2023, decided on 29 January 2026, the Bombay High Court constituted a High Power Committee to monitor air pollution in Mumbai and directed the State to formulate a comprehensive action plan. The case had originated from the Court’s own motion, based on media reports about severe air quality deterioration. The Court noted that Mumbai’s Air Quality Index had breached 300 on multiple occasions in late 2025, placing it in the “severe” category. What makes the judgment significant for this analysis is its institutional orientation: instead of adjudicating specific disputes, the Court created a permanent monitoring mechanism, directed the Maharashtra Pollution Control Board to install real-time monitoring stations at 150 locations, and required monthly compliance reports. The language is directive rather than accommodating — the Court treats executive inaction as a systemic failure requiring structural correction. The judgment sits at the opposite pole from the Coastal Road or Bullet Train decisions: where those cases involved large projects seeking permission, this case involved no project at all, only the State’s failure to perform its regulatory function. The judicial response is correspondingly more protective.

The Versova–Bhayandar Supreme Court stay refusal (March 2026): ratification from above

On  March 20, 2026, the Supreme Court refused to stay the Bombay High Court’s December 2025 order permitting the Brihanmumbai Municipal Corporation to cut mangroves for the Versova–Bhayandar coastal road. The application for stay was filed by environmental groups who argued that the High Court had effectively pre-judged the matter by imposing conditions rather than independently assessing the ecological impact. The Supreme Court’s refusal is procedurally brief — no detailed reasoning is offered — but its effect is doctrinally significant. It means that the highest court has, at least at the interim stage, accepted the High Court’s framework of conditional permission as a legitimate exercise of judicial discretion under the 2018 Mangroves judgment. For project proponents, this is a further signal that the carve-out is judicially safe. For environmental litigants, it raises the threshold for future challenges: if the Supreme Court will not interfere with a High Court permission order that conditions rather than prohibits, the available doctrinal route becomes narrower.

The Thane elevated road and Wood Court (April–February 2026): peripheral reinforcement

Two further 2026 judgments complete the picture. In MMRDA v. Union of India, WP No. 3538 of 2026, decided on April 6, 2026, the Court permitted diversion of 0.2145 hectares of mangrove forest for an elevated road from Anand Nagar to Saket in Thane, again under the 2018 carve-out, with conditions including 1:3 compensatory afforestation and Rs. 5.67 crores for restoration. The scale is smaller than the Metro or Bullet Train projects, but the doctrinal framework is identical. In Wood Court Co-operative Housing Society v. State of Maharashtra, decided on February 2 , 2026, the Court addressed a private residential society’s challenge to the fifty-metre mangrove buffer zone, which the society claimed rendered its land undevelopable. The Court rejected the challenge, holding that the buffer zone was an integral part of the 2018 judgment’s protective framework and that private hardship did not constitute the “public good or public interest” exception. The judgment is significant for what it refuses: private developers cannot invoke the carve-out. The exception is available only to public infrastructure projects.

Conclusion

The hypothesis, stated for what it is: when a court is asked to enforce an environmental rule against an executive that has defaulted on its own scheme, it tends to enforce. When a court is asked to enforce the same rule against an executive that has, through bureaucratic and political channels, committed thousands of crores to a project that is now under construction or complete, it tends to find the route through doctrines of comity, finality, exception, and reasonable construction that permits the project to proceed, with compensation. The 2018 carve-out — “public good or public interest” — has, in the cases decided so far, been read to cover every infrastructure project that has come before the Court asking for permission, and to be refused in none. Whether this is a stable equilibrium for the next decade of cases is the question that Part III of this series, on Northern India, will try to test against a different region’s record.

The Maharashtra story, on its own terms, suggests something narrower. It suggests that the doctrines themselves are not in retreat. The precautionary principle is invoked in 2024 with the same vocabulary it was invoked with in 1996. The public trust doctrine still grounds the freeze on mangrove destruction. What has changed is the universe of cases that are now considered, on their facts, to lie outside the protective core of these doctrines. The core has not shrunk in language; the periphery — the set of cases acknowledged to fall within the “exceptional” or “public-interest” exception — has expanded. The question, going forward, is whether the periphery now contains everything that any State or public-sector project proponent can plausibly plead, in which case the core protects only the cases that no developer has yet thought to bring.

(Part I has been published here. Parts IV of this series will extend the inquiry to Northern India and the Southern States respectively, with a concluding piece attempting a national reading.)

Note:

The 3-part series is based on strong empirical standing. Part I dealt with substantive high court pronouncements coming from resource rich Central and Eastern India- Jharkhand, Chhattisgarh, Madhya Pradesh and Odisha. Part II (Western India) deals with the high courts of Bombay, Karnataka and Goa. Finally, Part III (Northern India) reflects on judgments from Delhi, Punjab & Haryana, Uttarakhand and Allahabad.

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

[1] Vanashakti v. Union of India, decided 16 May 2025 (Supreme Court of India, Bench: Oka & Bhuyan, JJ.). Striking down MoEFCC Notification S.O. 804(E) dated March 14, 2017 and Office Memorandum dated July 7, 2021.

The Environment (Protection) Act, 1986, §§ 3, 6 read with the Environment Impact Assessment Notification, 2006 (S.O. 1533(E), dated September 14, 2006).

Vanashakti Review – Order on Review Petition (Nov. 2025), three-Judge Bench, majority opinion by the Chief Justice of India with Vinod Chandran, J., concurring; Bhuyan, J., dissenting.

[2] Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281 (Kuldip Singh and S. Saghir Ahmad, JJ.).

[3]Bittu Sehgal v. Union of India, W.P. (C) No. 231 of 1994, order of the Supreme Court of India dated 31 October 1996, reported at (2001) 9 SCC 181, transferring the Dahanu Taluka matters to the Bombay High Court for monitoring through a ‘Green Bench’.

[4]Bombay Environmental Action Group v. State of Maharashtra (Mahabaleshwar-Panchgani Petition), W.P. No. 2754 of 1997, judgment of the Bombay High Court dated 18 November 1998 (M.B. Shah, C.J. and S. Radhakrishnan, J.).

[5]Bombay Environmental Action Group v. State of Maharashtra, (1999) 1 Bom CR 455, judgment of the Bombay High Court dated 4 December 1998 (B.P. Desai and A.P. Patankar, JJ.).

[6]Bombay Environmental Action Group v. State of Maharashtra (Textile Mill Lands), judgment of the Bombay High Court dated 17 October 2005, concerning the redevelopment of approximately fifty-eight textile mills in central Mumbai under amended Development Control Regulation 58.

[7]Adarsh Co-operative Housing Society Ltd. v. Union of India, W.P. No. 369 (Chamber) of 2011, judgment of the Bombay High Court (Special Bench) dated 29 April 2016 (Ranjit More and R.G. Ketkar, JJ.).

[8]Bombay Environmental Action Group v. State of Maharashtra, PIL No. 87 of 2006, judgment of the Bombay High Court dated 17 September 2018 (A.S. Oka and Riyaz I. Chagla, JJ.), commonly known as the Mangroves Judgment.

[9]Worli Koliwada Nakhwa Matsya Vyavasaya Sahakari Society Ltd. v. Municipal Corporation of Greater Mumbai, W.P. (L) No. 560 of 2019 and connected petitions (Society for Improvement, Greenery and Nature; Conservation Action Trust; Prakash Laxman Chanderkar; Shweta Wagh), judgment of the Bombay High Court dated 16 July 2019 (Pradeep Nandrajog, C.J. and N.M. Jamdar, J., delivered through opinion of the Chief Justice on 4 October 2019).

[10]Aseem Shrivastava and Ashish Kothari, Churning the Earth: The Making of Global India (Penguin Viking, 2012), discussing the political economy of environmental clearance and the pressure on regulatory institutions to accommodate large infrastructure projects.

[11]Vanashakti v. State of Maharashtra (Aarey Metro Car Shed Petition), W.P. No. 1487 of 2019, judgment of the Bombay High Court dated 4 October 2019 (Pradeep Nandrajog, C.J. and Bharati Dangre, J.).

[12]National High Speed Rail Corporation Ltd. v. State of Maharashtra, W.P. No. 442 of 2020, judgment of the Bombay High Court dated 9 December 2022 (Dipankar Datta, C.J. and Abhay Ahuja, J.).

[13]Awaaz Foundation v. Union of India, PIL No. 179 of 2012, with Vanashakti v. Union of India, PIL No. 198 of 2014, judgment of the Bombay High Court dated 22 March 2024 (Nitin Jamdar and M.M. Sathaye, JJ.).

[14]Bandra Reclamation Area Volunteers Organisation v. Union of India, PIL (L) No. 8224 of 2024, and Zoru Darayus Bhathena v. Maharashtra State Road Development Corporation, PIL No. 22 of 2024, judgment of the Bombay High Court dated 26 August 2025 (Sandeep V. Marne, J. and the Chief Justice).

[15]Brihanmumbai Municipal Corporation v. Union of India, W.P. No. 3790 of 2025, judgment of the Bombay High Court dated 12 December 2025 (Shree Chandrashekhar, C.J. and Gautam A. Ankhad, J.), permitting the felling of mangroves for the Versova-Bhayandar coastal road extension.

[16]High Court on Its Own Motion v. State of Maharashtra, SM PIL No. 3 of 2023, judgment of the Bombay High Court dated 29 January 2026 (A.S. Oka, C.J. and G.S. Kulkarni, J.), constituting a High Power Committee for monitoring air pollution in Mumbai.

[17]The Supreme Court declined to interfere with the Bombay High Court’s conditional permission for mangrove cutting in BMC v. Union of India, WP No. 3790 of 2025, order dated 20 March 2026.

[18]MMRDA v. Union of India, WP No. 3538 of 2026, judgment of the Bombay High Court dated 6 April 2026, permitting diversion of 0.2145 hectares of mangrove forest for an elevated road from Anand Nagar to Saket, Thane.

[19]Wood Court Co-operative Housing Society v. State of Maharashtra, judgment of the Bombay High Court dated 2 February 2026, upholding the fifty-metre mangrove buffer zone against private residential challenge.

Related:

Cracks in Environmental Jurisprudence: A study of central India’s High Courts

Unending Adjudication: The Vanashakti reversal and environmental finality in India

The post Environmental Jurisprudence: The Bombay High Court’s shifting language appeared first on SabrangIndia.

As this article is being written, the Supreme Court has taken suo moto cognizance of the media reports which brought to light the inhumane orders of the trial courts and a High Court order which ordered Dalit and Adivasi individuals, reportedly engaged in anti-mining protests, to clean police stations. The apex court also passed an order directing all courts across the State of Odisha to forthwith delete such or similar offending conditions from bail orders and to refrain from substituting them with any analogous requirements. The court also opined “Given these extenuating circumstances, we are of the considered view that no other State Judiciary also ought to be exposed to or replicate such caste-coloured and oppressive conditions, which have the potential to generate serious social friction.”

It is imperative that any discussion on environment, and analysis of jurisprudence, has to be done in the real material context. The material context here is that the power of the state and ruling establishment is brazen and unkind to the most vulnerable and downtrodden Indians. Such power, sometimes comes as grey hounds or sometimes comes in black robes. This contextual prism has to be used to view and understand the following discussion.

High Courts, in that sense, are not merely intermediate constitutional forums. They are where constitutional promises most frequently meet the citizen in distress. They hear, often as courts of first and last practical resort, disputes ranging from land, livelihood and liberty to forests, mining, displacement and police excess. Yet, despite carrying this enormous constitutional burden, their environmental jurisprudence rarely receives the sustained attention given to the Supreme Court. The volume and variety of cases before the High Courts make them a crucial site for studying how environmental law actually operates: what language judges use, who’s suffering is made visible, whose claims are treated with suspicion, and how courts balance ecological protection against notions of ‘development’, ‘state power and private capital’. It is with this lens that the following discussion turns to recent High Court decisions.

Some context is necessary before turning to the High Courts.

In Vanashakti v. Union of India (decided May 16, 2025),[1] a Bench of Justices Abhay S. Oka and Ujjal Bhuyan struck down the Ministry of Environment’s 2017 notification and 2021 office memorandum (OM), both of which permitted ex post facto environmental clearances — that is, regularisation of projects that had commenced operations without first obtaining the clearance the Environment (Protection) Act, 1986 requires.[2] The judgment held that the notification and OM were contrary to the precautionary principle and that the Ministry could not, by executive instrument, undo what the statute mandated.

A review petition followed. In November 2025, a three-judge Bench took up the review and split.[3] The majority, in an opinion by the Chief Justice with Justice K. Vinod Chandran concurring separately, recalled the original directions and read the law as permitting ex post facto regularisation in suitable cases. Justice Ujjal Bhuyan, who had been on the original Bench, dissented. He called the majority’s approach “a step in retrogression,” and his point was simple and well made — the precautionary principle is the cornerstone; polluter pays is reparation. You cannot swap them around and call it balance. Justice Chandran, in his concurrence, pointed to earlier decisions in Common Cause, Alembic Pharmaceuticals, and Electrosteel,[4] where the Court had let projects stand despite clearance irregularities, subject to conditions. The original Vanashakti judgment, he argued, had missed these precedents, and the cost of enforcing it strictly would be enormous.

This difference between the judges at the Supreme Court, and the support one would find for both the arguments, is actually a mirror of how the polity has come to view environment and environment law. Whether ecological protection is a non-negotiable constitutional imperative that must be satisfied before economic activity proceeds, or whether it is one consideration among several, adjustable after the fact through compensatory mechanisms. And the fact that the Supreme Court itself is divided on this makes it worth asking a more granular question: what is happening in the High Courts below?

This article is the first in a three-part series examining how High Courts across different regions of India are contributing to, or departing from, the trajectory of environmental jurisprudence. This part looks at Central India: Madhya Pradesh, Chhattisgarh, Odisha and Jharkhand. A region that is home to some of the country’s richest forests, its most significant mineral reserves, and its most vulnerable tribal populations.

This exercise is not being taken up with a premade assumption that the judiciary is doing a very bad job at protecting environment or interpreting the environment protection law. It is actually made with the contra assumption that the High Courts are being proactive, but it is made with a probing eye to see if there are any deviations, and if so, what do they reveal.

Parts II and III will extend this inquiry to Northern and Western India.

The Baseline

It is unfair to the judiciary and to this exercise to begin with all the environment-protection-dilution jurisprudence and rain only criticism on them. After all, the High Courts have consistently, albeit with exceptions, shown their inclination to protect the environment for the last few decades. It is only fair to begin with where they have held firm.

The Good Days

Madhya Pradesh

Vivek Kumar Sharma v. State of Madhya Pradesh[5] is a good place to start because it shows what the system looks like when it works properly. The MP High Court struck down a 2015 State notification that had exempted sixty-two tree species from the Forest’s Act thus facilitating their transit. The State’s case was that the exemption promoted agroforestry on private lands and had the backing of the Ministry of Environment. The state essentially meant that because those tree species now could be transported without much compliance, private persons will likely grow those trees. The court went and looked at what had actually happened on the ground. No study had been conducted on whether these species also grew in forests. Why would it matter? If these trees did grow in forests, timber mafia would cut down the trees and transport them without any fear of the Forest’s Act’s regulatory quagmire. The State’s own Chief Conservator of Forests, Indore Circle, had reported that the exemption was playing havoc with lush green trees in both forest and non-forest areas. Senior forest officials had flagged that the timber mafia was using the exemption to legitimise illegally procured wood. The court found all this in departmental correspondence that was already on record. Nobody in the State government had acted on it.

The court applied M.K. Ranjitsinh’s precautionary principle,[6] struck down the notification as manifestly arbitrary under Article 14, and refused to entertain the delay objection, holding that environmental questions affecting every citizen’s life cannot be barred by limitation. And it noted, with visible frustration, that but for the PIL petitioners, the court would have been completely aloof of the ground reality. It means the entire regulatory apparatus of the State of Madhya Pradesh had failed to flag what a few public-spirited citizens could demonstrate through departmental correspondence that was already on record. The court stated as follows, observing the faulty manner in which the notifications were issued:

The arbitrary manner in which notifications came to be issued in quick succession from the year 2005 onwards points out clinchingly of the immense pressure of the timber mafia on the State authorities, with the environment and forest as its mute victims. The issuance of impugned notification mechanically, without studying and examining the fundamental aspect of impact of such exemptions on the existing forest cover of the State provokes the conscience of this Court, which has been compounded by dissatisfactory answers given by the State in the present proceedings.

(See ¶ 104.)[7]

On precautionary principle too, the MP High Court had substantial reiterations to be made. It termed the principle one of the “basic features of environmental jurisprudence.” The court stated as follows:

…(the principle) mandates that Courts must lean towards that interpretation of any statutory position, which furthers and advances the precautionary approach towards the environment, forests, and natural resources. Whilst doing so, the Court must be mindful that the State cannot treat the environment, natural resources and forests, as part of its sovereign wealth under its commercial use, rather all these resources are held as a trustee on behalf of the general public.

In a similar vein, the Madhya Pradesh High Court’s Indore Bench took suo moto cognisance in late 2025 based on a newspaper report that 5,961 industries in the State were operating without valid permission from the M.P. Pollution Control Board.[8] The court issued notices to the Chief Secretary, the Principal Secretary for Housing and Environment, and the Pollution Control Board. The court’s willingness to act on a newspaper report, to hold the executive accountable for systemic regulatory failure, represents environmental activism of a substantive kind.

Chhattisgarh

The Chhattisgarh High Court has displayed the same instinct: in In Re: Karkhano Ke Avshesh Aag Ke Havale (21 March 2024), the Bilaspur Bench, in a suo moto PIL prompted by a Navbharat report on the burning of industrial waste behind the Sirgitti police station, summoned the State machinery to demonstrate compliance with the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, and the Solid Waste Management Rules, 2016, and ultimately had the District Magistrate convene meetings of regulators and industrial units to translate the Rules into operational practice.[9]

 Jharkhand

Jharkhand provides the fullest contemporary picture of this baseline activism. Three judgments delivered in 2026 by a Division Bench of Chief Justice M.S. Sonak and Justice Rajesh Shankar deserve particular attention.

The first, Jharkhand Human Rights Conference v. State of Jharkhand, decided on February 26 , 2026,[10] closed a Public Interest Litigation that had been pending since 2012 on the management of bio-medical waste. The Court’s narrative of those fourteen years is instructive starting from a 2012 record of “serious deficiencies” in Ranchi, Dhanbad and Jamshedpur; a 2013 finding that the State did not have basic consolidated data on healthcare institutions generating bio-medical waste; photographic evidence of sharps and microbiological material dumped on public roads; state-wide expansion of the proceedings through the State and District Legal Services Authorities; sustained dissatisfaction through 2014 and 2015; supervision of Common Bio-Medical Waste Treatment Facilities at Lohardaga, Ramgarh and Adityapur; and a suo moto intervention at RIMS, Ranchi, in 2024. The Bench recorded that by the time it closed the proceedings, Jharkhand had moved from a single functional treatment facility to six operational CBWTFs, with a seventh under construction.[11] The Court did not, however, make it look like that this was its own work. It explicitly framed the case as one in which “sustained judicial oversight has contributed to a more responsive and coordinated regulatory framework,” cautioned that “constitutional courts cannot assume the role of a continuing administrator where a statutory mechanism is already in place,” and issued a careful set of nineteen coordination-and-enforcement directions that operationalise the 2016 Rules without supplanting them.

The second, Court on Its Own Motion v. State of Jharkhand (February 16 , 2026),[12] arises from a national highway alignment that had been proposed to cut through the Core Zone of a wildlife sanctuary and an Eco-Sensitive Zone. After repeated dissatisfaction with the pace of the NHAI and the State, the Bench directed for a fresh proposal for an alternative alignment passing through plain and rolling terrain and not through the Core Zone or ESZ, and pressed the State to file an animal-passage plan. The order is short and unremarkable in its own terms; what is remarkable is the assumption running through it, that an executive statement about wildlife corridors made in court must mean what it says, and that two years of non-compliance with such a statement is not an acceptable place for the proceedings to rest.

The third, Anand Kumar v. State of Jharkhand (April 16, 2026),[13] was a PIL by a retired Range Forest Officer challenging two notifications of the Jharkhand State Pollution Control Board that had reduced the minimum distance for stone mining and stone crushers from forest and forest-land boundaries from 500 metres to 250 metres. The State produced a 2015 “Expert Committee” NOC, but the Court read it carefully. Of the five members of the committee, only one was an environmental engineer; the rest were bureaucrats from Mines and Industries Departments and a state industrial agency. The NOC, on its face, did nothing more than refer to siting norms in other States — Orissa, West Bengal, Rajasthan, Punjab, Himachal Pradesh and Bihar — and on that basis proposed a 50 percent reduction in the buffer zone for Jharkhand. There was no comparative analysis of forest density, topography, or ecological sensitivity. The Bench held that this was an exercise vitiated by non-application of mind and by exclusion of relevant considerations, that the precautionary principle “tilts the balance of convenience considerably towards imposing restrictions on the grant of consents within 500 metres of forests and forest lands,” and that the harm to the ecology is “often irreversible.” Until final disposal, the position prevailing before the impugned notifications stands restored: 500 metres for stone mining, 400 metres for stone crushers, and the one-kilometre eco-sensitive zone around national parks and wildlife sanctuaries laid down by the Supreme Court in T.N. Godavarman.[14] The Court’s reasoning is significant for two reasons. First, it draws openly on the precautionary principle of Ranjitsinh, treating it as decisive rather than ornamental. Second, it refuses to defer to the “Expert Committee” label without examining whether the committee was, in any meaningful sense, expert.

The fourth Jharkhand decision in this group, Hemant Kumar Shikarwar v. State of Jharkhand (May 7 , 2026),[15] extends the same approach to enforcement. The petition concerned illegal stone mining and non-compliant stone crusher units around the Siwane River in Hazaribagh district. Drawing on an independent report by the District Legal Services Authority, the Bench documented abandoned water-filled mining pits, damage to roughly a hundred hectares of cultivable land, and disruption of the river’s ecological balance. What is notable is the structural relief that follows. The Bench directs monthly District Level Task Force meetings, an exhaustive review of every Environmental Clearance, Consent to Establish, Consent to Operate, Explosive Licence and mineral-dealer registration in the area, suspension of mining operations until compliances are verified, the Hazaribagh Wildlife Sanctuary one-kilometre buffer, technology-driven enforcement through Wi-Fi-enabled CCTV and GPS tracking, criminal prosecution under §§ 21 and 22 of the MMDR Act, and the application of the polluter-pays principle to recover environmental compensation.[16] The polluter-pays principle is invoked, but it is invoked in its proper register — as a tool of reparation imposed on identified violators, not as a substitute for prevention.

It is worth pausing here on a different kind of Jharkhand case. In Jharkhand Int Nirmata Sangh v. State of Jharkhand (January 15, 2026),[17] a Division Bench of Justices Sujit Narayan Prasad and Arun Kumar Rai rejected a writ petition by brick kiln operators who had been required to obtain environmental clearance and Pollution Control Board consents for soil extraction and brick manufacturing. The petitioners’ argument was that the removal of soil for brick-making has no adverse environmental impact and that, in any event, the District Mineral Foundation Trust contribution under the Mines and Minerals (Development and Regulation) Act, 1957 was not attracted because brick earth is not a “mineral” in the operative sense. The Court rejected both contentions on the simple ground that “soil is also a part of environment and if the soil is being extracted for the purpose of brick kiln the same certainly have the environmental impact.” Brick earth, the Court noted, is listed as a minor mineral in Schedule 2 of the Jharkhand Minor Mineral Concession Rules, 2004, and the manufacturing process cannot be artificially separated from the extraction. It refused to allow the absence of obvious smoke or effluent to be confused with the absence of environmental impact.

The High Courts of this region are, on the whole, capable of vigorous, principled environmental adjudication. The question that follows, then, is when and why does this rigour falter?

What about the bad days?

If the above discussion is affirmative of the proactive role the High Courts have come to play in the development of environmental jurisprudence, the following discussion exposes some cracks. The cracks are at their clearest when one looks at the High Court of Chhattisgarh’s engagement, over fourteen years, with the Hasdeo coal belt. Three judgments form a sequence: Mangal Sai v. Union of India (May 11, 2022), Amrit Lal Bhagat v. State of Chhattisgarh (September 1, 2025), and the Hasdeo Arand Bachao Sangharsh Samiti appeal (April 2026). The legal context shifts slightly from one to the next while the result does not.

A chain of deviations

In Mangal Sai,[18] a Division Bench of Chief Justice Arup Kumar Goswami and Justice R.C.S. Samant disposed of five connected writ petitions filed by 156-odd tribal residents of Charpara Tara, Salhi, Hariharpur and Fattehpur villages in Surguja and Surajpur districts. The petitioners challenged the acquisition of about 1252 hectares of land for the Parsa coal block under the Coal Bearing Areas (Acquisition and Development) Act, 1957, by Rajasthan Rajya Vidyut Utpadan Nigam Ltd. and its mine developer-operator. The grounds were familiar: that the Parsa block was in dense forest, that the PESA Act, 1996 had not been followed, that the gazette notifications under §§ 4(1) and 7(1) of the Coal Bearing Areas (Acquisition and Development) Act, 1957 (CB Act) were not properly served, that some Gram Sabha resolutions were fake. The Court held that gazette notifications had in fact been published; that, the CB Act not requiring personal service of generally addressed notifications, the want of personal service did not vitiate them; that some villagers had filed late objections, which the Coal Controller had considered; and that there was “gross delay” in approaching the Court — the petitions, filed in 2022, challenged notifications of 2017 and 2018. On this basis the petitions were dismissed, with no examination of the underlying ecological objections to mining in dense forest, and no consideration of whether the delay rule should yield where the consequences of the executive action are irreversible.

In Amrit Lal Bhagat,[19] delivered just seven months before the Hasdeo Aranya appeal and from the very same Court, a single Bench dismissed a petition by thirty-eight named residents of Mudagaon and Saraitola villages in Raigarh district. The petitioners had challenged the Stage II forest clearance granted by the Ministry of Environment in respect of 214.869 hectares of forest land for an open-cast coal mining project allotted to a State-owned generation company. Their grievance was that the diversion proceedings had been completed in violation of the Forest Rights Act, 2006 — without the participation of the petitioners and without recognition of the community forest rights of their Gram Sabhas. The Court framed the threshold issue narrowly. “In absence of a resolution of the Gram Sabha authorizing the institution of the present proceedings,” the petitioners did not have the requisite locus standi, and in any case had an alternative remedy under the National Green Tribunal Act, 2010. The petition was dismissed as not maintainable.[20]

The logic here repays close attention. Community forest rights are, the Forest Rights Act says, vested collectively in the Gram Sabha. From that the Court derives a procedural conclusion: only the Gram Sabha, by formal resolution, can litigate to defend those rights. Individual residents who are members of the Gram Sabha and whose lives are directly affected by the diversion of community forest land may not approach the High Court without such a resolution. To require a Gram Sabha resolution before a writ challenge can even be heard is to interpose the very body whose capacity to deliberate and resolve the question may itself have been compromised by the State action under challenge — particularly where, as the Mangal Sai record indicates, allegations of fake Gram Sabha resolutions in the same coal belt had already been before this Court.

The contrast with how the same High Court has handled coal-related petitions by non-tribal individuals is instructive. In Ratan Kumar Jain v. State of Madhya Pradesh (now Chhattisgarh),[21] a Division Bench of Chief Justice Yatindra Singh and Justice Sunil Kumar Sinha entertained writ petitions filed in person by a Korea-district journalist challenging the illegal felling of trees by South Eastern Coalfields Limited at Chirmiri, with no question raised about his personal locus to challenge the operations of a public-sector coal company in his neighbourhood. The Court used the occasion to deliver one of the more memorable passages on environmental protection in the region: “Environment, trees are not devil; they are entitled to much better protection: after all, we have borrowed them from our children and have a pledge to return them back — if not in a better position then at least in the same position as we had got them.” The petitioner — a single individual, with no Gram Sabha resolution — was nominated to an independent monitoring committee. The doctrinal question is not whether Ratan Jain got the law of locus right and Amrit Lal Bhagat got it wrong, or vice versa. The doctrinal question is whether the same threshold of standing is being applied to the same kind of grievance. The honest answer, reading these cases together, is that it is not.

Hasdeo Aranya

The Hasdeo case carries forward the same logic. It is no different than any case with forest conservation on one side and the mining industry on the other. A healthy sprinkle of forest rights is what complicated, rightly so, the issue. The Hasdeo Aranya forest is called the lungs of Chhattisgarh. It is old-growth forest, ecologically and culturally significant, home to tribal communities who depend on it for subsistence. Coal sits beneath it.

What was the case?

After bureaucratic processes which included a sub-committee on Forest Advisory cautioning about the risks of large-scale mining, the Ministry of Environment and Forests (MoEF) granted in-principle approvals for mining in the Hasdeo forest.[22] Later, the Chhattisgarh government passed orders diverting forest land for non-forest use in 2012. Both the MoEF and State government orders were set aside by the NGT.[23] However, the Supreme Court granted an interim stay. On the strength of such interim stay, and a new legislation on coal mining and block allocation, the permission for Phase I mining of the coal was given to Rajasthan Rajya Vidyut Utpadan Nigam, the Rajasthan state-owned electricity company.[24]

Parallelly, proceedings for individual and community forest rights were being conducted wherein three community rights were granted to Ghatbarra village in 2013.[25] On January 8, 2016, the District Level Committee issued a notice stating that the Community Forest Rights earlier granted to Village Ghatbarra were cancelled.[26] It was the case of petitioners that they were not given a fair hearing before the Community Forest Rights (CFR) were cancelled.

The writ petition was filed, first challenging this 2016 notice by the DLC, and later amended their prayer to challenge the later orders by the MoEF for Phase II mining too.

The State’s reason for cancellation, recorded in the DLC’s notice of 08.01.2016, was chronological: the diversion order had been passed on March 28, 2012, whereas the three community forest rights in favour of Ghatbarra were recognised on September 3, 2013. The diversion preceded the recognition; therefore, on the State’s logic, the recognition was either erroneous or could not survive the prior diversion.

Two things ought to have given the court pause here, and neither was addressed. First, the chronology argument inverts the scheme of the Forest Rights Act, 2006. Section 4 (5) of the Act bars eviction or removal of forest dwellers from forest land under their occupation till the recognition and verification process is complete.[27] The Act treats forest rights as pre-existing rights that the statute recognises, not as rights that the statute creates from the date of the recognition order.[28] On that reading, a 2013 recognition order documents rights that were always there, including in March 2012 when the diversion was approved. The State’s chronology, in other words, proves too little — it assumes the rights began in 2013, which is precisely what the Act denies.

Second, even if one were to accept the State’s premise, the cancellation of recognised rights triggers, at a minimum, the obligation to hear the rights-holders before extinguishing what the statute has acknowledged. The DLC’s notice of January 8, 2016 did not afford that hearing. The single judge’s view — that no opportunity needed to be given — sidesteps both the substantive point about when the rights came into existence and the procedural point about how recognised rights may be withdrawn.

One of the arguments by the State before the Hasdeo Aranya case was that since coal has already been mined out the subject lands, they cannot be considered as forests. If they cannot be considered as forests, no forest rights can be claimed. The Chhattisgarh government argued that the Hasdeo Arand Bachao Sangharsh does not have legal sanctity to represent the villagers.

Single Judge’s reasoning for Dismissal

The single judge dismissed the petition[29] on the following grounds:

(i) Diversion order (2012) is prior to CFR granting order (2013) and yet, the diversion was not challenged then or in this Writ Petition.

(ii) None of the petitioners showed that they have forest rights conferred on them or that they are aggrieved persons or that any Gram Sabha resolution has been passed to continue on with the petition.

(iii) The residents can be compensated in terms of money, if the forest rights have not been conferred according to the FRA, 2006.

The judge, after listing the grounds, stated as follows:

It wasn’t necessary for the respondents to provide the petitioners with an opportunity while taking a decision to withdraw the forest rights conferred on the villagers of Ghatbarra.

What is the issue with the Single Judge’s reasoning?

The issue with the single judge’s reasoning is not that he failed to be an activist judge. A writ petition is not a PIL, and the judge was right to treat it as such. The issue is narrower and harder to defend: even within the four corners of an ordinary writ petition under Article 226, the cancellation order of 2016 was open to challenge on its own terms. The petitioners had asked for it to be set aside on the ground that no hearing was given before community forest rights, once recognised, were withdrawn. That is a self-contained natural justice claim. It does not require the court to expand standing, revisit the 2012 diversion, or assume a PIL posture. It requires the court to ask one question: can a statutory right recognised under the Forest Rights Act, 2006 be cancelled without affording the rights-holders an opportunity of hearing? The single judge’s answer that “it wasn’t necessary for the respondents to provide the petitioners with an opportunity” is what merits scrutiny.

The court held that the petitioners had not established they were directly aggrieved persons with subsisting legal rights. These are tribal villagers. They are challenging the destruction of their ancestral forest. They claim community forest rights under a statute that was enacted specifically to recognise and protect those rights. The PIL jurisdiction exists because Justices Bhagwati and Krishna Iyer understood that marginalised people cannot always demonstrate ‘standing’ in the way that a property-owning litigant can.[30] While this was not a PIL, to turn a procedural requirement against the very people the Forest Rights Act was written for is to use a doctrine against its own purpose. One cannot read this stiffness charitably.

The Madhya Pradesh High Court, in the same year, in Vivek Kumar Sharma, held that environmental challenges cannot be defeated by limitation. To be hot and cold on locus of petitioners in sensitive environmental matters is not rooted in some deep philosophical underpinning. It is simply a choice that the court in one case makes to allow and makes in another to disallow on the basis of locus.

And then the Single Judge observed that monetary compensation could suffice for the loss of the forest. The appellants said what needed to be said, i.e., no amount of money restores an old-growth forest. The cultural rights, the subsistence, the biodiversity, the watershed function — none of it comes back with a cheque.

This is the polluter-pays principle being used to replace the precautionary principle, something that Justice Bhuyan’s Vanashakti dissent warned against.

The Appeal in Hasdeo Aranya

The Division Bench dismissed the writ appeal in April 2026.[31] The respondent mining company continued to press locus standi, res judicata, and finality. The Division Bench agreed, holding that the petition was a collateral assault on concluded proceedings and that monetary compensation arguments, “though conceptually appealing,” could not override the legal framework once statutory clearances had been granted and acted upon. The Division Bench stated as follows:

Courts, while sensitive to environmental concerns, are also required to balance competing public interests, particularly where projects have attained substantial completion and involve larger public utility considerations.

Now, this is not some isolated observation by a Division Bench of the Chhattisgarh High Court. Its doctrinal substance comes from the Supreme Court itself — from the judgment in Vanashakti II, in which the apex court stated as follows:[32]

It can thus be seen that this Court clearly held that where the adverse consequences of ex-post facto approval outweigh the consequences of regularisation of operation of an industry by grant of ex-post facto approval and the industry or establishment concerned otherwise conforms to the requisite pollution norms, ex-post facto approval should be given in accordance with law, in strict conformity with the applicable rules, regulations and/or notifications.

The doctrinal tools used here — locus, delay, finality, monetary compensation — are the same tools available to any court. In Vivek Kumar Sharma, every one of them was considered and rejected. In Hasdeo Aranya, every one of them was accepted. In Anand Kumar and Hemant Shikarwar, the Jharkhand Bench reached for the same tools and used them, in the precautionary direction, against the State. The difference is not the law. The difference is coal.

Shanti Construction and the Procedural Double Standard

The Orissa High Court’s decision in Shanti Construction v. State of Odisha[33] raises a different kind of problem.

A construction company got temporary permission to excavate 2,000 cubic metres of earth for a railway project. It excavated about 2, 60, 580 cubic metres — 130 times the permitted quantity — from government land, including jungle category land. The NGT directed recovery of Rs. 1,20,10,000 as environmental compensation.

The High Court quashed the order. The Joint Committee’s inspection had been done without notice to the petitioner. The committee included regulatory bodies that were themselves accused of inaction. The quantification was sub-delegated to the Mining Officer without proper safeguards.

It is not wrong to be a stickler for rules and procedures, especially by authorities with penal powers. It is an important feature that the judiciary should imbibe itself with, surely. The NGT’s practice of farming out adjudicatory work to joint committees has real due process problems. No argument there.

But the company dug out 130 times what it was allowed to dig. That violation did not go anywhere. The court quashed the enforcement order and told the parties to pursue their rights before the appropriate authority. The enforcement was procedurally defective but the violation itself remains unaddressed.

The Odisha High Court in its order stated as follows:[34]

The NGT’s order of May 2, 2025 is vitiated by breach of natural justice by unlawful delegation of its judicial function to the joint committee without affording the petitioner a hearing. The alternative remedy of appeal does not preclude relief, since the order is tainted by fundamental unfairness.

A note of caution before drawing the comparison too tightly. The two cases are not perfectly parallel. Hasdeo Aranya was a constitutional challenge to executive decisions on forest diversion and rights cancellation; Shanti Construction was judicial review of a quasi-judicial NGT order said to be tainted by a natural justice defect. The doctrinal lenses differ, and a court reviewing tribunal action does have a sharper supervisory role on procedural fairness than a court reviewing a policy-laden executive choice. That much should be conceded.

What survives the concession, however, is the asymmetry in how the same threshold doctrines — i.e., alternative remedy, hearing, finality — are weighted against environmental stakes. In Shanti Construction, the existence of an alternative statutory appeal did not deter the High Court from intervening, because the want of a hearing was treated as a fundamental defect overriding the alternative-remedy bar. In Hasdeo Aranya, and again in Amrit Lal Bhagat, the want of a hearing before cancellation of recognised forest rights — or the absence of formal Gram Sabha authorisation — did not produce a comparable response; finality, locus and alternative-remedy considerations carried the day.

A similar asymmetry appears in M/s Jindal India Thermal Power Ltd. v. State of Odisha (September 25, 2024),[35] where the Odisha State Pollution Control Board had revoked a 2×600 MW coal-based thermal power plant’s Consent to Operate for direct discharge of wastewater into the Kakudia Nallah, which feeds the Tikira river. The plant was ordered shut. By the time the writ came up for hearing, the company had produced affidavits of compliance during pendency. The High Court quashed the revocation order, observing that the Writ Petition need not be kept pending unnecessarily, and remarking only — almost in passing — that “damage to the environment cannot get a tacit community tolerance.” The same Court that demands strict due process from the NGT when the polluter is the petitioner, accepts compliance-during-pendency as adequate when it is the polluter’s licence at stake. The two postures are not inconsistent in any narrow doctrinal sense. They are different defaults.

Quiet Changes in Language

In M/s Balasore Alloys Ltd. v. Union of India (3 November 2023)[36], the petitioner, a chromite mining lessee in Kaliapani, Jajpur district, had been kept out of a 64.463-hectare forest portion of its leasehold because the Stage II forest clearance had not issued. The Court walked through the chronology — initial mining lease in 2000, splitting of the lease into forest and non-forest blocks, withdrawal of an earlier writ, a string of applications for compensatory afforestation land and Net Present Value payments, and intermittent inaction by the State. The High Court issued a writ of mandamus directing the opposite parties to “grant necessary Stage II forest clearance in respect of the subject mineral block over an area 64.463 hectares… by complying all the formalities as expeditiously as possible without creating further hindrances in the matter.” One looks at this judgment in vain for any examination of the present condition of the forest in question, the cumulative impact of chromite mining in the Sukinda valley, or the population that lives downstream of these leaseholds. The Court’s mandamus is, on its face, a mandamus to discharge a statutory duty without delay. It is also, in substance, a judicial accelerant to the grant of a forest clearance, framed entirely in the lessee’s rights.

The Odisha Citizens’ Action Forum PIL[37] shows a related pattern, and it is in some ways more telling than Hasdeo Aranya, because here the Court was not even pushed by a contest between an industry and a forest community. There was no displacement at stake. There was no felling of trees in real time. The petition, brought by a Bhubaneswar-based forum, was about something much more anodyne in its framing: that mining lessees in Odisha were not extracting iron ore at the volumes their leases obligated them to, and that the State was not enforcing Rule 12 (1) (ee) of the Concession Rules, 2016, which permits the State to step in and carry out the mining itself at the lessee’s cost when the lessee defaults on its statutory obligations. That is the sum of the grievance. The lessees are not mining enough.

Now, one would think that this is exactly the kind of complaint a State government, with a full apparatus of mining officials, geological surveys, and a Department of Steel and Mines, would be able to address on its own. The State knows how much each lessee has been allotted. The State has the production figures. The State has the rule that lets it act. If lessees are sitting on iron ore reserves and not extracting them, the State can issue notices, levy penalties, invoke Rule 12 (1) (ee) and have the National Mineral Development Corporation step in. None of this requires a writ court. It is plain administrative function. And yet the High Court, instead of asking the obvious threshold question of why a constitutional court is being moved to do what an executive department is paid to do, took up the petition, called for affidavits, and eventually directed the State to invoke Rule 12 (1) (ee) and route the underutilised mines to NMDC.

The Court’s framing is what makes the case worth dwelling on. Iron ore reserves are described as having “potential capacity to meet the requisite requirements in the indigenous market.” The 2015 amendments to the MMDR Act[38] are described as a “radical shift” from executive fiat to a transparent auction regime. The Make in India initiative is invoked. Bhushan Power and Steel Ltd. v. State of Odisha[39] is cited at length for the proposition that the auction regime aims at eliminating discretion, attracting private investment and securing for the Government an enhanced share of the value of mineral resources. Article 39(b)[40] is mentioned, but only to ground a duty of “optimum, continuous and sustainable utilization” of minerals. The vocabulary is the vocabulary of resource governance.

This is not a case where the Court refused to consider environmental concerns because they were not raised. They were not raised, and that is precisely the point. The petition was framed to push for more extraction, and the Court accepted the frame without interrogating it. A High Court hearing a PIL is not a passive forum. It can, and routinely does in other contexts, expand the scope of the petition, call for the State to file additional reports, ask uncomfortable questions about cumulative impact. The Madhya Pradesh High Court did exactly this in Vivek Kumar Sharma when it went looking through departmental correspondence on its own. The Jharkhand High Court did the same in Anand Kumar when it unpacked the composition and reasoning of the so-called Expert Committee whose recommendation underlay the impugned buffer-zone notification. Here, the Orissa High Court did the opposite. It accepted, at face value, that the constitutional concern in the matter was underutilisation, and on that basis it issued a direction that the State further activate iron ore mining across blocks where production was low. There is no sign in the judgment that the Court asked whether some of these blocks were not being mined for reasons that might actually deserve protection: a pending forest clearance issue, an unresolved claim under the Forest Rights Act, environmental compliance defaults that might justify slowing down rather than speeding up extraction. The premise was that the mines must be mined.

When a court starts with the question ‘has this lessee complied with its conditions’ instead of ‘should extraction happen here given what we know about this ecosystem,’ the answer is mostly predetermined.

What Comes Through

A few things come through when you look at all of this together.

Locus standi and delay are being applied selectively. Same doctrine, opposite results, depending on what is being challenged. The law has not changed between Vivek Kumar Sharma and Hasdeo Aranya, between Ratan Jain and Amrit Lal Bhagat, between Anand Kumar and Mangal Sai. The economic interest has.

The fait accompli has become its own justification. Phase-I is done, so Phase-II must follow. The project is built, so the clearance must be regularised. The compliance came during pendency, so the revocation must be quashed. This rewards the very non-compliance it is supposed to prevent. The Vanashakti review relied partly on this logic too: the cost of undoing what had been built without clearance became the reason not to undo it.

Money is being treated as a substitute for ecology, without anyone checking whether the money actually does anything. Where the polluter-pays principle survives in its proper form — as in Hemant Shikarwar — it is imposed on identified violators after a finding of breach. Where it is abused — as in the Hasdeo Aranya disposal — it replaces the precautionary principle and lets the breach itself stand.

And there is a diagnostic that is quite reliable: look at whether the judgment engages with ecological evidence. Vivek Kumar Sharma is full of it. Forest survey reports, departmental findings, species data. Anand Kumar interrogates the composition of the Expert Committee and the substance of the NOC. Hemant Shikarwar relies on an independent DLSA report of abandoned pits and degraded farmland. Jharkhand Human Rights Conference works from photographic evidence of dumped sharps. The Hasdeo Aranya dismissal does not engage with the ecological significance of the forest at all. Balasore Alloys does not weigh the chromite footprint in the Sukinda valley. The Orissa iron-ore PIL does not so much as look up at the forest cover. Courts have only come up with pro-environment jurisprudence when they looked at hard evidence.

Looking Ahead

This present exercise is neither a whistle nor some big breaking, to project some kind of institutional takeover. It is simply a neutral probe, with utmost respect for and faith in the rich jurisprudence that countless movements have collectively achieved via a progressive judiciary.

The Indian Environmental Law Regime is not a simple one. It is filled with exceptions, absolutisms, resulting paradoxes, rectifying reviews, and much more. The Vanashakti split is proof of that complexity. The precautionary principle is the cornerstone, and a court cannot be seen backtracking on it. That position finds its fullest expression in Vivek Kumar Sharma, in the Jharkhand Bench’s 2026 quartet, and in the Chhattisgarh High Court’s suo moto responsiveness on industrial waste. It finds its starkest negation in Hasdeo Aranya, in the locus-standi disposal of Amrit Lal Bhagat, and in the quieter accommodation of mining capital in the Orissa lease cases.

The cracks appear when the economic interests are large and state-backed; when the affected communities are Adivasi/tribal, rural, and litigation-poor; when the extraction has progressed far enough to create a fait accompli; and when the environmental harm is diffuse and long-term and falls on people without political voice. Where these conditions converge, courts, sometimes, seem to reach for the procedural exit, sidestepping the petitioner environmental question.

Whether these cracks hold in Northern and Western India is what the next two parts will try to find out.

Note:

The 3-part series is based on strong empirical standing. Part I deals with substantive high court pronouncements coming from resource rich Central and Eastern India- Jharkhand, Chhattisgarh, Madhya Pradesh and Odisha. Part II (Western India) deals with the high courts of Bombay, Karnataka and Goa. Finally, Part III (Northern India) reflects on judgments from Delhi, Punjab & Haryana, Uttarakhand and Allahabad.

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

[1]Vanashakti v. Union of India, decided 16 May 2025 (Supreme Court of India, Bench: Oka & Bhuyan, JJ.). Striking down MoEFCC Notification S.O. 804(E) dated March 14, 2017 and Office Memorandum dated July 7, 2021.

[2]The Environment (Protection) Act, 1986, §§ 3, 6 read with the Environment Impact Assessment Notification, 2006 (S.O. 1533(E), dated September 14, 2006).

[3]Vanashakti Review – Order on Review Petition (Nov. 2025), three-Judge Bench, majority opinion by the Chief Justice of India with Vinod Chandran, J., concurring; Bhuyan, J., dissenting.

[4]Common Cause v. Union of India, (2017) 9 SCC 499; Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 SCC 157; Electrosteel Steels Ltd. v. Union of India, (2021) SCC OnLine SC 1247.

[5]Vivek Kumar Sharma v. State of Madhya Pradesh, W.P. No. 16931/2021, decided by the High Court of Madhya Pradesh, Indore Bench (Division Bench), March 1, 2025.

[6]M.K. Ranjitsinh v. Union of India, (2024) SCC OnLine SC 570 (recognising Articles 14 & 21 protection against the adverse effects of climate change and reaffirming the precautionary principle).

[7]Vivek Kumar Sharma, supra n. 5, ¶ 104.

[8]In Re: Functioning of 5,961 Industries without Valid Consent – Suo Moto W.P. (PIL), High Court of Madhya Pradesh, Indore Bench (2025).

[9]See, inter alia, In Re: Suo Moto PIL based on news item “Karkhano Ke Avshesh Aag Ke Havale,” WPPIL 106 of 2023, High Court of Chhattisgarh, order dated 21 March 2024 (hazardous waste burning at Sirgitti industrial estate, Bilaspur); Jharkhand Human Rights Conference v. State of Jharkhand, W.P. (PIL) No. 1385 of 2012, decided February 26, 2026 (biomedical waste management).

[10]Jharkhand Human Rights Conference v. State of Jharkhand, W.P. (PIL) No. 1385 of 2012, judgment dated February 26, 2026, Neutral Citation No. 2026:JHHC:5689-DB (Sonak, C.J. and Rajesh Shankar, J.).

[11]Jharkhand Human Rights Conference, supra n. 10, ¶¶ 18–24 (continuing mandamus from 2012 to 2026; expansion of treatment infrastructure from one CBWTF to six operational facilities across Ramgarh, Lohardaga, Dhanbad, Pakur and Deoghar).

[12]Court on Its Own Motion v. State of Jharkhand, W.P. (PIL) No. 3935 of 2020, Order dated February 16, 2026 (Sonak, C.J. and Rajesh Shankar, J.) (proposed national highway realignment to avoid Core Zone of wildlife and Eco-Sensitive Zone; animal-passage plan directed).

[13]Anand Kumar v. State of Jharkhand, W.P. (PIL) No. 3950 of 2024, order dated April 16 , 2026 (Sonak, C.J. and Rajesh Shankar, J.).

[14]In Re: T.N. Godavarman Thirumulpad v. Union of India, (2022) 10 SCC 544, ¶ 56.1 (one-kilometre eco-sensitive zone around protected areas), as modified by order dated April 26, 2023.

[15]Hemant Kumar Shikarwar v. State of Jharkhand, W.P. (PIL) No. 290 of 2013, judgment dated May 7, 2026, Neutral Citation No. 2026:JHHC:13668-DB (Sonak, C.J. and Rajesh Shankar, J.).

[16]Hemant Kumar Shikarwar, supra n. 15, ¶ 79 (directions including monthly District Level Task Force meetings; review of all statutory permissions; CCTV and GPS-based monitoring; criminal prosecution under MMDR Act §§ 21–22; environmental compensation on the polluter-pays principle).

[17]Jharkhand Int Nirmata Sangh v. State of Jharkhand, W.P. (C) No. 617 of 2021, judgment dated January 15, 2026, Neutral Citation No. 2026:JHHC:1169-DB (Sujit Narayan Prasad and Arun Kumar Rai, JJ.) (brick kiln operators’ challenge to environmental clearance and CTO requirement dismissed; District Mineral Foundation Trust payments held attracted).

[18]Mangal Sai v. Union of India, W.P. (C) No. 302 of 2022 and connected matters, decided May 11, 2022 by the High Court of Chhattisgarh at Bilaspur (Arup Kumar Goswami, C.J. and Rajendra Chandra Singh Samant, J.) (challenge by 156+ petitioners from Salhi, Hariharpur, Fattehpur and Tara villages to acquisition of land for Parsa Coal Block under the Coal Bearing Areas (Acquisition and Development) Act, 1957, dismissed on grounds of delay and merits).

[19]Amrit Lal Bhagat v. State of Chhattisgarh, W.P. (C) No. 2361 of 2025, decided 1 September 2025 by the High Court of Chhattisgarh at Bilaspur (Arvind Kumar Verma, J.), Neutral Citation No. 2025:CGHC:44375.

[20]Amrit Lal Bhagat, supra n. 23, ¶¶ 16–17 (dismissing the petition as not maintainable for want of express Gram Sabha authorisation and pointing the petitioners to the alternative remedy under the National Green Tribunal Act, 2010).

[21]Ratan Kumar Jain v. State of Madhya Pradesh (now Chhattisgarh), W.P. No. 4520 of 2000 and W.P. (C) No. 5354 of 2009, decided 5 December 2012 by the High Court of Chhattisgarh at Bilaspur (Yatindra Singh, C.J. and Sunil Kumar Sinha, J.).

[22]Forest (Conservation) Act, 1980; Stage-I and Stage-II forest clearances accorded by the Ministry of Environment, Forest and Climate Change for the Parsa East & Kanta Basan (PEKB) and Parsa coal blocks in the Hasdeo Arand region.

[23]Sudiep Shrivastava v. Union of India & Ors., Order of the National Green Tribunal, Principal Bench, dated March 24 , 2014; subsequently stayed by the Supreme Court.

[24]Coal Mines (Special Provisions) Act, 2015, read with the Coal Mines (Special Provisions) Rules, 2014 and allocation orders to Rajasthan Rajya Vidyut Utpadan Nigam Ltd. (RVUNL).

[25]Recognition under §§ 3(1)(i) and 5 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 in respect of Village Ghatbarra (resolution of the Gram Sabha and order of the Sub-Divisional Level Committee, dated 3 September 2013).

[26]Notice / Order of the District Level Committee, Surguja, dated January 8, 2016 purporting to cancel the Community Forest Rights of Village Ghatbarra.

[27]The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, § 4(5).

[28]See generally Orissa Mining Corp. Ltd. v. Ministry of Environment & Forest, (2013) 6 SCC 476 (Niyamgiri); and Banwasi Seva Ashram v. State of U.P., (1986) 4 SCC 753, on the pre-existing nature of forest dwellers’ rights.

[29]Hasdeo Arand Bachao Sangharsh Samiti v. State of Chhattisgarh, W.P. (C) before the High Court of Chhattisgarh at Bilaspur (Single Judge), order of dismissal.

[30]Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; S.P. Gupta v. Union of India, 1981 Supp SCC 87, on relaxed standing in public interest matters.

[31]Hasdeo Arand Bachao Sangharsh Samiti v. State of Chhattisgarh, Writ Appeal, decided by the Division Bench of the High Court of Chhattisgarh in April 2026.

[32]Vanashakti Review (Nov. 2025), supra n. 3, majority opinion (extract on conditions for ex post facto regularisation).

[33]M/s Shanti Construction v. State of Odisha, W.P. (C) before the High Court of Orissa at Cuttack (decided January 2026), arising from the order of the National Green Tribunal, Eastern Zonal Bench, dated May 2, 2025.

[34]Shanti Construction, supra n. 36, extracted from the High Court’s order quashing the NGT’s direction.

[35]M/s Jindal India Thermal Power Ltd. v. State of Odisha, W.P. (C) No. 8822 of 2024, order dated September 25, 2024 (Dr. S.K. Panigrahi, J.) (consent to operate, revoked by the Odisha State Pollution Control Board for direct discharge of wastewater into the Kakudia Nallah feeding the Tikira river, restored).

[36]M/s Balasore Alloys Ltd. v. Union of India, W.P. (C) decided November 3 , 2023 by the High Court of Orissa (Dr. B.R. Sarangi, A.C.J. and M.S. Raman, J.) (mandamus issued directing grant of Stage II forest clearance for chromite mining over 64.463 hectares in Kaliapani, Jajpur District).

[37]Odisha Citizens’ Action Forum v. State of Odisha, W.P. (PIL) before the High Court of Orissa at Cuttack, concerning enforcement of Rule 12(1)(ee) of the Mineral (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016.

[38]Mines and Minerals (Development and Regulation) Amendment Act, 2015 (Act 10 of 2015).

[39]Bhushan Power & Steel Ltd. v. State of Odisha, (2017) 2 SCC 125.

[40]Constitution of India, art. 39(b) (Directive Principles – distribution of material resources of the community to subserve the common good).

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The post Cracks in Indian Environment Jurisprudence: An examination of High Courts of central India appeared first on SabrangIndia.

For a country that saw the Bhopal Gas Tragedy and many such incidents where lack of regulation resulted in massive loss of human life and toll on victims that exists to date, this turnaround is rather surprising. That too, for it to have triggered by a judgement of the Supreme Court, an institution that has been a guardian of environment from the T.N. Godavarman Thirumulpad v. Union of India case, where tree-felling and non-forestry activity in forests across the country was stopped by an order of the Supreme Court to the Niyamgiri hills case where indigenous Dongria Kondh tribe successfully fought against Vedanta Aluminium’s bauxite mining project, using the Forest Rights Act (FRA) 2006 to assert their cultural and religious rights over the sacred hills.[1]

Background: Tracing the Origins of “Prior” Clearance

To appreciate the magnitude of the conflict between the May 2025 and November 2025 Vanashakti judgments, it is essential to situate the dispute within the broader evolution of environmental constitutionalism in India.

In the wake of the 1972 Stockholm Conference and the catastrophic Bhopal Gas Tragedy of 1984, India developed a legal regime grounded in the “Precautionary Principle.” Interpreted by the Supreme Court as part of Article 21 (the Right to Life), this principle requires that environmental protection measures must anticipate, prevent, and address sources of environmental degradation before any damage occurs.

The principal mechanism for implementing this principle is the Environment Impact Assessment (EIA) Notification. Introduced in 1994 and updated in 2006, the EIA framework mandates that certain industrial and infrastructure projects must secure “prior” Environmental Clearance (EC) before any construction begins. The underlying rationale is that any environmental harm, such as deforestation or wetland destruction, is often irreversible. If assessments are conducted post-construction, they serve merely as a bureaucratic formality, failing to achieve the goal of sustainable development.

However, a significant gap has emerged between this normative ideal and the realities of India’s rapid industrialization, ready crony land grab. Successive governments, prioritising the “Ease of Doing Business,” began to grant “ex post facto” (retrospective) clearances to projects that had already commenced operations unlawfully. This practice created a moral hazard—companies found it cheaper to violate the law and pay penalties later than to undergo the rigorous and time-consuming process of prior assessment. The Vanashakti litigation originated when the Ministry of Environment, Forest and Climate Change (MoEFCC) attempted to formalize this practice through a 2017 Notification and a 2021 Office Memorandum (OM), thereby turning what was intended as amnesty into a standard procedure.

The May 2025 Judgment: The Normative Firewall

On May 16, 2025, a two-judge bench consisting of Justice Abhay S. Oka and Justice Ujjal Bhuyan delivered a judgment that aimed to uphold the “Rule of Law” over economic expediency.

Textualist Rigidity and the “Anathema” of Retrospection

The May judgment adopted a strict and literal interpretation of the EIA Notification 2006, holding that the requirement for “prior” EC is mandatory. Relying on precedents such as Common Cause v. Union of India (2017) and Alembic Pharmaceuticals v. Rohit Prajapati (2020), the bench emphasised that ex post facto clearances are “completely alien to environmental jurisprudence” and constitute an “anathema” to the EIA framework. Permitting operations without prior assessment, the Court reasoned, effectively condones violations. If EC is eventually denied after construction, the environmental harm is already irreversible; if granted, the “precautionary principle” is rendered meaningless.

The Sanctity of Executive Undertakings

The Court also scrutinised the legal history of the 2017 Notification, which had offered a six-month “amnesty” window for violators. When challenged before the Madras High Court, the Union Government had assured the court that this was a “one-time measure.” The May bench found that the subsequent 2021 OM—which perpetuated the amnesty indefinitely—breached this judicial undertaking. The Court held that the executive cannot renege on its assurance to the court, striking down the 2021 OM as arbitrary and violative of Article 14.[2]

Rejection of Monetary Regularisation

The May judgment explicitly rejected the notion that penalties under the “Polluter Pays Principle” could substitute for prior compliance. It noted that while Section 15 of the Environment (Protection) Act, 1986 provides for penalties, it does not authorize the regularization of illegal structures. As a result, the Court held that even if penalties are paid, illegal constructions lacking prior clearance must be halted and demolished. The bench stressed that the “Polluter Pays Principle” cannot be twisted into a license to pollute.[3]

The November 2025 Review: The Pragmatic Recalibration

In a dramatic turnaround just six months later, a three-judge Review Bench led by Chief Justice B.R. Gavai (with Justice Bhuyan dissenting) set aside the May judgment.

 The “Per Incuriam” Doctrine and the Battle of Precedents

The Review Bench invoked the doctrine of per incuriam—rendered in ignorance of binding law—to overturn the May judgment. The majority held that the May Bench had failed to consider coordinate bench decisions in Electrosteel Steels Ltd. (2021)[4], Pahwa Plastics (2022)[5], and D. Swamy (2023)[6].

The May Bench had relied on Common Cause and Alembic to assert that ex-post facto EC is illegal. The Review Bench argued that while Alembic described such clearances as “anathema,” it ultimately allowed industries to continue operating after paying fines.

The Review Bench interpreted the relief granted in Alembic (allowing the industry to operate) as the binding principle of law, whereas the May Bench considered the relief as an exceptional measure under Article 142, treating the prohibition on retrospective EC as binding law.

Ultimately, by prioritising Electrosteel—which stated that the Environment Protection Act “does not prohibit” ex post facto clearance—over the strict reading of Common Cause, the Review Bench found the May judgment erroneous for ignoring the more recent “balanced approach” adopted by the Court.[7]

2. The Doctrine of “National Assets” and Sunk Costs

Economic consequences were a decisive factor in the Review Judgment. The Court accepted the Union’s argument that the May judgment would require the demolition of “national assets” valued at over ₹20,000 crore.[8]

The Court cited specific examples such as the AIIMS hospital in Odisha (962 beds) and the greenfield airport in Vijayanagar as projects facing potential demolition.[9]

The Review Bench further argued that demolishing these large-scale projects would cause more environmental damage (from dust and debris) than allowing them to remain operational. The Court rhetorically questioned whether demolishing effluent treatment plants would truly benefit environmental protection.[10] This reasoning, in effect, used environmental concerns to justify non-enforcement of environmental law.

Statutory Flexibility

Contrary to the May judgment, the Review Bench held that Section 15 of the Environment Protection Act does not mandate demolition. The Act, according to the Review Bench, allows for flexibility, and the executive can “amend or modify” notifications as needed.[11] Thus, the 2021 OM was not seen as violating the “one-time” judicial undertaking but as a valid exercise of executive power, especially as it was issued following directions from the National Green Tribunal (NGT).

Analytical Critique: The Erosion of Certainty

The rapid shift between the Vanshakti verdicts reveals a deep schism within India’s environmental constitutionalism. While the Review Judgment saved billions in investment, it set a precarious precedent that undermines the rule of law in three key areas.

The Inversion of Stare Decisis (Precedent)

The main issue with the Review Judgment is its handling of precedent. Justice Bhuyan’s dissent pointed out that Electrosteel and Pahwa—relied on by the Review Bench—were two-judge bench decisions, as was Common Cause, which formed the foundation of the May judgment and offered a comprehensive interpretation of the EIA Notification.

The Review Bench declared the May judgment per incuriam for not following Electrosteel, but the dissent argued that Electrosteel itself was per incuriam for disregarding the binding principle established in Common Cause.[12]

The Review Bench’s position—that the relief granted in Alembic (allowing industries to continue) constitutes binding laws jurisprudentially problematic. The Supreme Court often uses its extraordinary powers under Article 142 to grant case-specific relief while maintaining a contrary legal principle. By elevating discretionary relief to binding precedent, the Review Judgment effectively legalises violations, signaling to lower courts that statutory prohibitions on retrospective clearance can be ignored when economic stakes are high.

The Institutionalisation of Fait Accompli

The Review Judgment entrenches the doctrine of Fait Accompli in Indian law, suggesting that violations on a sufficiently large scale become practically irreversible.

By explicitly referencing the ₹20,000 crore investment as a justification for recall, the Court signaled that the “Right to Environment” is subordinate to the “Right to Investment.” This creates a dangerous incentive for developers to proceed with construction and heavy investments before obtaining clearance, believing that courts will hesitate to order the destruction of “national assets.”

Moreover, the reasoning that demolition itself would cause pollution effectively shields all large-scale illegal infrastructure from enforcement. The further along illegal construction is, the more “environmentally damaging” it becomes to remove, thus guaranteeing its persistence. This undermines the “Precautionary Principle,” which is based on prevention rather than after-the-fact remediation.

Simply put, if the municipality of a city refrains from demolishing the encroachment buildings on banks of lakes, the city will be prone to flood and is exposed to more vulnerabilities than before. Vanshakti II judgement fully fails to engage with this very obvious and basic logic.

Conclusion: From Gatekeeper to Toll Collector

The shift from the May judgment to the November Review marks a transformation in the Supreme Court’s role in environmental governance. The May judgment sought to act as a Gatekeeper, upholding the “Prior Clearance” requirement to prevent environmental degradation before it occurs. In contrast, the Review Judgment recasts the Court as a Toll Collector, allowing violations to continue in exchange for fines and remedial actions.

While the Review Judgment provides a practical solution to the immediate issue of “stranded assets” such as the Odisha AIIMS and the Vijayanagar Airport, it causes enduring harm to the credibility of India’s environmental regulatory regime. It endorses the executive’s strategy of “dilution by notification,” where statutory mandates are weakened to accommodate industrial needs. Most significantly, it undermines the finality of Supreme Court judgments, implying that even environmentally protective verdicts can be recalled if the economic arguments are persuasive enough.

For developers, the message is unambiguous: compliance is optional, so long as one can afford the cost of post-facto forgiveness.

Amen.

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

[1] Orissa Mining Corporation Ltd vs Ministry Of Environment & Forest &Ors, Writ Petition (Civil) No. 180 of 2011

[2] Para 30, Vanshakti v. Union of India 2025 INSC 718 (Vanshakti I)

[3] Para 27, Vanshakti I

[4] Electrosteel Steels Limited v. Union of India and Others  (2023) 6 SCC 615

[5] Pahwa Plastics Private Limited and Another v. Dastak NGO and Others (2023) 12 SCC 774

[6] D. Swamy v. Karnataka State Pollution Control Board and Others (2023) 20 SCC 469

[7] Para 55.1, CREDAI vs. Vankshakti 2025 INSC 1326 (Vanshakti II)

[8] Para 108, Vanshakti II (CJI Gavai)

[9] Paras 109, 110, Vanshakti II (CJI Gavai)

[10] Para 7 (VIII), Vanshakti II (Justice K. Vinod Chandran)

[11] Para 75, Vanshakti II (CJI Gavai)

[12] Para 20, Vanshakti II (Justice Bhuyan)

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The post The Judicial Ouroboros: The Vanashakti Reversal & Crisis of Environmental Finality in India appeared first on SabrangIndia.

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

I. The Waqf Amendment Act, 2025 in brief

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

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

The Disquieting Juxtaposition: Waqf vs. Others

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. The Re-imposition of Limitation

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

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

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

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

III. The State as Arbiter

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

A. Non-Muslim Inclusion and Secular Administration

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

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

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

B. The Five-Year Practice of Islam Requirement

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

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

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

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

IV. The Shadow of Exclusion: Tribal Lands

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

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

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

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

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

V. The Opportunity Cost: Alternatives to Sweeping Invalidation

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

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

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

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

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

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

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

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

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

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

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

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

[6] Para 209, Waqf Interim Order.

[7] Para 201, Waqf Interim Order

[8] Para 189, Waqf Interim Order.

[9] Para 140, Waqf Interim Order

Related:

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

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

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

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

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

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

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

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

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

The Bill

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

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

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

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

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

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

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

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

The Disproportionate Nature

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

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

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

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

Strict laws are already present

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

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

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

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

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

Goes against entrenched Constitutional Principles

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

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

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

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

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

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

The Real Crisis: Horse Trading of MLAs

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

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

Why Horse Trading is More Dangerous than Imprisonment of Ministers

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

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

The Missing Reform: Strengthening Anti-Defection Laws

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

Constitutional Morality and Silence on Defections

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

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

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

Related:

SC acquits two men accused of rape of a minor; terms the case an example of shabby and lacklustre investigation

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

A Proposal on Collegium Resolutions: Towards a single comprehensive format

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

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

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

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

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

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

A. The Failure to Establish Incriminating Circumstances

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

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

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

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

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

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

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

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

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

A. Inadmissible and Contradictory DNA Reports

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

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

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

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

B. The Catastrophic Breakdown of the Chain of Custody

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

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

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

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

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

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

A. A Catalogue of Critical Investigative Omissions

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

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

B. Capital Punishment and the Constitutional Imperative

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

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

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

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

Conclusion

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

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

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

[1] Para 69

[2] Para 37

[3] Para 43

[4] Para 56

[5] Para 36

[6] Para 38

[7] Para 32

[8] Para 35

[9] Para 75

[10] Para 66

[11] Para 66

[12] Para 75

[13] Para 64

[14] Para 65

[15] Para 73

[16] Para 71

[17] Para 74

[18] Para 68

Related:

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

A Proposal on Collegium Resolutions: Towards a single comprehensive format

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

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

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

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

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

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

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

Facts

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

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

Arguments advanced by the Parties

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

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

The Supreme Court’s reasoning deconstructed

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

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

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

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

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

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

Legislative framework

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

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

Connecting legislative framework to Jugraj

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

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

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

Jurisprudential evolution of section 438 CrPC

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

The Sibbia doctrine: Magna Carta of Anticipatory Bail

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

The key principles laid down in Sibbia are:

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

Modern Application and Jugraj

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

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

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

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

The Constitutional Bedrock: Article 20(3)

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

Judicial Interpretation of “Cooperation”

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

Applying the Standard to Jugraj

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

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

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

Synthesis and Concluding Analysis

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

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

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

[1] 2025 LiveLaw (SC) 837

[2] MANU/SC/0031/1952

[3] MANU/SC/0215/1980

[4] MANU/SC/1021/2010

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

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