The verdict covers the bail applications of Umar Khalid, Sharjeel Imam, Athar Khan, Khalid Saifi, Mohd Saleem Khan, Shifa-Ur-Rehman, Meeran Haider, Gulfisha Fatima, and Shadab Ahmed.

Another coordinate bench of Justice Subramonium Prasad and Justice Harish Vaidyanathan Shankar pronounced a separate order denying bail at 2:30 pm on the bail plea of co-accused Tasleem Ahmed. The Delhi High Court on Tuesday dismissed the bail plea filed by Tasleem Ahmed, accused in the UAPA case alleging larger conspiracy in the commission of 2020 North-East Delhi riots.

All of these accused had challenged orders of the trial court which had consistently denied them bail under FIR 59 of 2020, registered by the Delhi Police Special Cell. 

Background of the Case

The Northeast Delhi riots of February 2020 left 53 people dead and over 700 injured. The Delhi Police alleged that the violence was not spontaneous but the result of a “deep-rooted conspiracy” linked to protests against the Citizenship Amendment Act (CAA).

• FIR 59 of 2020 was lodged on March 6, 2020 by the Special Cell.
• Multiple chargesheets – five in total – were filed between September 16, 2020 and June 7, 2023.
• The prosecution invoked provisions of the Indian Penal Code, 1860 and the Unlawful Activities (Prevention) Act, 1967 (UAPA).
• Out of the 18 originally arrested, 12 remain in custody. The case is presently at the stage of arguments on charge, with over 897 witnesses cited.

The Delhi Police’s case rests on:

1. WhatsApp group chats (notably Muslim Students of JNU (MSJ), Jamia Coordination Committee (JCC), and Delhi Protest Support Group (DPSG)).
2. Protected witness statements.
3. CCTV footage and digital records.

According to the Special Cell, the accused coordinated protests across 23 sites near mosques and main roads in Muslim-majority areas, which were to escalate into a “chakka jam” during then US President Donald Trump’s February 2020 visit — allegedly to embarrass India globally. 

Accused persons and key bail arguments

Umar Khalid

• Represented by Senior Advocate Trideep Pais.
• Submitted that merely being part of WhatsApp groups without posting messages is not criminality.
• Argued that no recovery was made from him and that the alleged “secret” meeting on February 23–24 was not clandestine.
• Stated that no witness statement specifically attributes terrorism-related acts to him.
• Claimed parity with co-accused who had graver allegations but were granted bail.

Sharjeel Imam

• Represented by Advocate Talib Mustafa.
• Stated he was disconnected from co-accused and not part of conspiracy meetings.
• The last act attributed to him was a speech in Bihar on January 23, 2020, predating the riots.
• Argued entitlement to statutory bail under Section 436A CrPC, since he had already spent more than 4 years in custody (over half of the 7-year maximum for UAPA Section 13).

Khalid Saifi

• Represented by Senior Advocate Rebecca John.
• Questioned reliance on “innocuous messages” under UAPA.
• Invoked parity with three co-accused granted bail in June 2021.
• Submitted that chakka jams were a common protest tool, not terrorism.

Shifa-Ur-Rehman

• Said he had already spent more than 5 years in custody.
• Highlighted that participation in protests/meetings cannot be criminalised.
• Argued delay in trial and inconsistencies in witness statements.

Gulfisha Fatima

• Contended she had no active participation in the alleged conspiracy.
• Argued for bail on grounds of parity with those already released.

Meeran Haider

• Echoed parity and delay arguments.
• Asserted that protected witness statements only indicated protest participation.

Mohd. Saleem Khan

• Argued bail on parity and prolonged incarceration.

Athar Khan

• Argued on parity with co-accused already released.

Tasleem Ahmed

• Represented by Advocate Mehmood Pracha.
• Argued delay in trial; over 5 years in custody without seeking adjournments.

Shadab Ahmed

• Plea heard separately; argued contradictions in witness statements and parity with other bail orders.

Prosecution’s Case (Delhi Police)

Represented by Solicitor General Tushar Mehta and Special Public Prosecutor Amit Prasad, the State opposed all bail pleas.

• Mehta described the probe as one of the “finest investigations” carried out.
• Claimed the riots were “pre-planned, well-organised and sinister,” aimed at dividing the nation on religious lines.
• Alleged that the accused intended to globally embarrass India during Trump’s visit by triggering violence.
• Cited Sharjeel Imam’s speeches, claiming they set a timeline for escalating protests.
• Emphasised that this was not a case of “mere riots” but a premeditated attack on sovereignty.
• Highlighted use of a large iron “gulel” (catapult) as evidence of violent preparation.
• Alleged fake documents used for SIM cards and reference to financial irregularities.
• Stressed that long incarceration cannot justify bail in UAPA cases of national security.

During the hearing, according to LiveLaw, SG Mehta said that “If you are doing something against the nation, then you better be in jail till you are acquitted or convicted.”

Related:

How the Delhi riots case remains stagnant with close to a dozen student leaders incarcerated

5 Years of Delhi Riots: Some Punished, Some Rewarded!

Delhi Riots 2020: Umar Khalid withdraws plea from Supreme Court citing “change in circumstances”

Brinda Karat on the Third Anniversary of Delhi Riots- “Cannot Abandon Struggle for Justice”

Hate speeches amplified by television, incited targeted violence against Muslims: CCR Report, Feb ‘20 Delhi riots

The post Delhi High Court dismisses bail pleas of Umar Khalid, Sharjeel Imam, and others in 2020 Riots Conspiracy Case appeared first on SabrangIndia.

MCOCA is among a class of ‘special laws’ enacted to combat grave threats to the social order. The Statement of Objects and Reasons of MCOCA notes that the existing legal framework was deemed “inadequate” to “curb or control the menace” of organized crime. To address this, the act introduces a set of bail conditions under Section 21 that depart significantly from the standard provisions of the Bhariyay Nagrik Suraksha Sanhita, 2023 (BNSS) by shifting the burden of proof to the accused. Rider: The BNS 2023, under Section 479 also contains very stringent conditions for statutory bail. The said section limits the conditions for granting statutory bail to under trials.

[Section 436A of the CRPC provides for the procedure to be adopted in case the under trial is to be given statutory bail after spending a particular period under detention. In the older CrPC, if an under trial has spent half of the maximum period of imprisonment for an offence in detention, they must be released on a personal bond (not to be applied to offences which are punishable by death) BNSS, 2023 however, retains the said provision, and makes it further stringent. [1]

The stringent bail conditions under MCOCA and other special laws creates a tension between the presumption of innocence and the State’s power to restrict liberty. In Naresh Kumar, the High Court observes that the Supreme Court has consistently held that where trials under special laws are unduly delayed, the rigour of strict bail provisions must yield to the constitutional promise of liberty. The Court ruled that even the special provisions of MCOCA “cannot be construed in a manner that forecloses judicial scrutiny under Article 21.”

The complete judgment delivered in Naresh Kumar @ Pahelwan v. State of NCT of Delhi (2025) can be read here.

The eight long years of Naresh Kumar’s pre-trial detention are far from an anomaly. The indiscriminate use of special laws has created a situation where the promise of a speedy trial is, more often than not, the exception not the rule. The trajectory of the 2020 Delhi Riots cases continues to haunt public memory, where the infamous 17,000 page FIR 59/2020 charged 18 student activists with instigating communal violence as part of a larger “terror conspiracy.” They were arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), a draconian special law which has bound together the politics of protest with the law’s harshest instruments. As of mid-2025, only six have been released on bail. Not a single charge has, five years down, been framed. A detailed analysis of the incarcerations in this FIR may be read here.

This legal resource traces the jurisprudence on the contradiction between and the incarceration under stringent bail statutes and fundamental right to liberty under Article 21. The judicial trend from Satender Kumar Antil v Central Bureau of Investigation (2022) to Vernon Gonsalves v State of Maharashtra (2023) to the latest decision in Naresh Kumar demonstrates a clear and consistent position: the label of a “special law” does not justify indefinite pre-trial detention. Our analysis demonstrates that the more severe the bail restrictions, the greater the obligation on the State to ensure swift adjudication.

The Constitutional Imperative

 “Article 21 is the Ark of the Covenant so far as Fundamental Rights [are] concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India.”
— Satender Kumar Antil vs Central Bureau Of Investigation (2022)

Article 21 of the Constitution of India reads:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The Apex Court has consistently affirmed the ‘Golden Triangle’ of fundamental rights which sustain and nourish each other^[2]: Article 14 (Right to Equality), Article 21 (Right to Life), and Article 19 (Freedom of Speech). Consequently, any legal procedure that deprives an individual of the most fundamental of their rights must be just, fair, and reasonable, that is, a procedure which promotes  speedy trial^[3]. This principle has been foundational to a series of decisions which establish the right to a speedy trial as implicit in the broad sweep of Article 21.

The Inherent Right to a Speedy Trial

“Arrest is not a draconian measure to be used at the whims of the police officer.”

— Inder Mohan Goswami v. State of Uttaranchal (2007)

That the right to a speedy trial is an integral part of the fundamental right to life and liberty was first enunciated all the way back in 1979. In Hussainara Khatoon v Home Secretary, State of Bihar, the Supreme Court reasoned that for a legal procedure to be just under Article 21, it must ensure “a reasonably expeditious trial” to determine the guilt of an accused. Since then, this ratio has been affirmed and re-affirmed without a single dissenting note.

The Constitutional guarantee was further developed by the Apex Court in A.R. Antulay v R.S. Nayak (1992), which recognised that the violation of this right may even demand the “quashing of a criminal proceeding altogether.” In Uday Mohanlal Acharya v. State of Maharashtra (2001), the Supreme Court observed that the right to ‘default bail’ under Section 167(2) of the Code of Criminal Procedure (CrPC) (now Section 187(2) of BNSS) is “nothing but a legislative exposition of the constitutional safeguard under Article 21.” The Bench held that if the accused is ready to furnish bail, and the prosecution has failed to file the charge sheet within the stipulated period, then the former has an indefeasible right to be released on bail. A decade later, the Court in Sanjay Chandra v. Central Bureau of Investigation (2011), recognising the hardship of pre-trial detention, ruled that the act for holding an accused in custody must be based on ‘necessity’ and not ‘punishment.’

Recasting Bail under Special Acts: The Supreme Court’s Mandate

The principles established in these seminal judgments were decisively applied to ‘special acts’ in Satender Kumar Antil v. Central Bureau of Investigation (2022), which sought to provide clear guidelines for lower courts to give effect to the maxim that ‘bail is the rule and jail is the exception.’

Confronting the crisis of India’s overflowing jails and the “continuous supply of cases seeking bail,” the Supreme Court detailed a comprehensive framework to realign the judicial balance between legislative strictures and individual rights. To enlarge the scope and ease the process of bail, the Court devised a four-fold classification of offences, reproduced below:

• Category A Offences: Punishable with imprisonment of 7 years or less
• Category B Offences: Punishable with death, imprisonment for life, or imprisonment for more than 7 years
• Category C Offences (Special Acts): Punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5)), Companies Act, (S.212(6)), etc.
• Category D Offences: Economic offences not covered by Special Acts

Among these, Category C specifically addresses offenses under special acts that contain stringent bail provisions, such as Unlawful Activities (Prevention) Act, 1967 (UAPA), Prevention of Money Laundering Act, 2002 (PMLA), National Security Act, 1980 (NSA), Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), and various Gangster Acts.

Significantly, the Court extended the constitutional mandate of a speedy trial to cases under special laws, stating that “the general principle governing delay would apply to these categories also.” The Court added that Section 436A of CrPC (now Section 479 of BNSS), which limits the detention of undertrial prisoners to half of the maximum prescribed sentence, would apply to special acts in the absence of a specific provision to the contrary.

In a pivotal declaration, the Court directly linked the severity of a statute to a heightened obligation for a speedy trial, holding that “more the rigor, the quicker the adjudication ought to be.”

The complete judgment delivered in Satender Kumar Antil v. Central Bureau of Investigation (2022) can be read here.

The guidelines laid out in Satender Kumar are the culmination of judicial reasoning on special acts which echoes as far back as Shaheen Welfare Association v. Union of India (1996). In that landmark ruling, the Court acknowledged the legislature’s decision to sacrifice some personal liberty for the sake of protecting the community, but stipulated that this very sacrifice makes it “all the more necessary that investigation of such crimes is done efficiently and an adequate number of Designated Courts are set up,” to ensure that “persons ultimately found innocent are not unnecessarily kept in jail for long periods.”

This jurisprudence has continued to evolve through the decades, with P. Chidambaram v. Directorate of Enforcement (2019) cautioning against a “mechanical application of a statute” to deny bail, and Mohd. Enamul Haque v. Enforcement Directorate (2024) holding that prolonged incarceration will “inure to the benefit of the accused for bail” when the delay is not attributable to him.

Read collectively, these cases demonstrate a clear judicial trend: the more severe the statutory bail restrictions, the greater the obligation on the State to ensure a speedy trial, and the more likely that a delay will lead to the accused’s release.

Can Bail be the Exception? The Judicial Approach to Special Laws

The Paradox of Preventive Detention

Aniket is a 24-year-old law student from Madhya Pradesh. On 14 June 2024, he raised his voice against the inappropriate behaviour of a professor towards a female student belonging to a Scheduled Caste. The professor retaliated by assaulting him and registering an FIR against him on a variety of charges, ranging from rioting to attempt to murder.

On recommendation of the Station House Officer and the Superintendent of Police, the District Magistrate charged Aniket with Section 3(2) of the National Security Act. This order of preventive detention was served to him while he was already lodged in Bhopal Central Jail. His representation against the order was rejected by the same District Magistrate who issued the order, and subsequent appeals were dismissed by the Advisory Board and the Madhya Pradesh High Court. Instead, the order was extended thrice, leading to his pre-trial detention for over a year. These extensions were approved despite Aniket being granted bail for the underlying charge all the way back in January 2025.

Aniket filed a Special Leave Petition (SLP) in the Supreme Court, submitting that his alleged offence amounted to nothing more than simple assault and criminal intimidation, charges which have no proximity to demand the draconian measure of preventive detention. The prosecution, however, insisted that the detention was necessary due to Aniket’s “potential to disturb public order.”

The bench of Justices Ujjal Bhuyan and K. Vinod Chandran, aghast at the total “non-application of mind” of the police and lower courts, ruled that his preventive detention under NSA was “wholly untenable.”

The reasoned order by Justice Bhuyan carefully analysed NSA Section 3(2) to conclude that a person can only be taken into preventive detention if his activities are prejudicial to the security of the State, maintenance of public order, or maintenance of essential supplies and services. The Bench observed that the preventive detention order was issued with the intent to prevent the appellant from acting in a manner “prejudicial to the maintenance of law and order.” This, however, is a much broader ambit than “public order” which requires an impact to “the community or the public at large” (Ram Manohar Lohia v State of Bihar, 1965). The inability of the police to handle a law and order situation cannot be an excuse to invoke preventive detention (Nenavath Bujji v State of Telangana, 2024).

Reprimanding the authorities, the Court observed that “the entire intent appears to continue the detention of the appellant since he was likely to get bail in the criminal case, which, in fact, he got.” However, preventive detention is not intended to deny rightful bail to an accused charged with a regular criminal offence. The Apex Court ruled that:

“Preventive detention being a hard law, it is axiomatic that an order of preventive detention should be strictly construed. It is the duty of a constitutional court like the High Court to minutely scrutinize an order of preventive detention to ensure that the order of preventive detention squarely falls within the four corners of the relevant law and that the liberty of a person is not unlawfully compromised.”

 The reasoned order in Annu @ Aniket Through His Father As Next Friend Krupal Singh Thakur v. Union of India (2025) may be read here.

The UAPA Conundrum: Reclaiming Judicial Discretion from Statutory Veto

Within the landscape of India’s special laws, the Unlawful Activities (Prevention) Act occupies a uniquely terrifying position. Enacted in the same year as Naxalbari peasants’ uprising, the Act’s stated purpose is to prevent unlawful and terrorist activities which are prejudicial to the sovereignty and territorial integrity of the State. But overbroad definitions, sweeping investigative powers, and impossibly stringent bail provisions have transformed the legislation into an instrument of terror itself – whereby suspicion becomes conviction and pre-trial detention becomes punishment.

Cartoon by Arun Ferreira | Source: Colours of the Cage

The human cost of this statute is staggering. Based on the data from the National Crime Records Bureau, 8,136 persons were arrested under the UAPA from 2015 to 2020. A mere 2.8% were convicted.^[4]

With the vast majority of cases ending in acquittal or withdrawal, bail becomes the only remedy that stands between an individual and a decade in jail without trial. However, Section 43D(5) of the Act has turned the oft-quoted maxim over on its head – making jail the rule and bail the exception.

Section 43D(5) reads:

“Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

In simple terms, Section 43D (5) forbids the Court from granting bail if the prosecution makes out a preliminary case. The defence, at this stage, is at a significant disadvantage: it can neither submit exculpatory evidence of its own, nor cross-examine the prosecution’s evidence. When judicial discretion is replaced by a prosecutorial veto, how, then, is a Court to grant bail?

The Supreme Court’s judgment in NIA v. Zahoor Ahmad Shah Watali (2019) is the starting point for the modern jurisprudence on this question. The Court overruled a bail order granted to the accused by the Delhi High Court, stating that its analysis “[bordered] on being perverse, as it has virtually conducted a mini trial…and even questioned the genuineness of the documents relied upon by the Investigating Agency.” The judgment placed extraordinary weight on the accusatory narrative of the police and practically barred trial courts from examining the merits and demerits of the evidence.

The Court held that:

• Statutory mandate of a prima facie assessment requires a lighter degree of satisfaction. The evidence collated by the investigating agency must be presumed true.
• At the bail stage, courts must not engage in a “detailed analysis of evidence” or discard any material being placed before it as inadmissible.

The Watali judgement has cast a long shadow over the evolution of bail jurisprudence under the UAPA, widely and often blindly cited by High Courts in several bail rejection orders. It not only cements the “jurisprudence of suspicion,” but equates the degree of satisfaction required to reject bail to the level of the one necessary to frame charge^[5].

Such an interpretation of ‘prima facie true’ criteria raises a fundamental contradiction: if the allegations of the investigative agency are to be taken at face-value, what is the need or purpose of the Judiciary?

Union of India vs K.A. Najeeb (2021) offers a modest pushback^[6]. The case involved an accused who had been incarcerated for more than five years, without a trial even having commenced. Relying on the ratio of Shaheen Welfare Association, the Kerala High Court held that such protracted incarceration violates the respondent’s right to speedy trial and access to justice, regardless of limitations under special enactments. The State’s appeal relied on Watali to argue that the High Court erred in granting bail without adhering to the statutory rigours of Section 43­D(5).

The Apex Court dismissed the appeal, holding that:

• Section 43­D (5) is not the sole metric, but “merely…another possible ground” for the Court to deny bail. It is to be considered alongside factors like gravity of the offence, possibility of evidence or witness tampering, chance of absconsion, etc.
• The rigours of a provision like Section 43­D (5) will “melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.”

Read a detailed comparative analysis of Watali and Najeeb here.

Though the Najeeb ruling partially reads down the ‘prima facie true’ argument, it refrains from confronting Watali head-on, finding that the latter deals with an “entirely different factual matrix.” A direct challenge appears for the first time in Vernon vs State of Maharashtra (2023).

Trade unionist Vernon Gonsalves and Advocate Arun Ferreira were two of the accused in the Bhima Koregaon case. Based upon a combination of inferences drawn from letters in the nature of hearsay, statements from ‘protected witnesses,’ and third-party communication, the Prosecution wove a narrative alleging that the two were part of a ‘conspiracy’ to overthrow the State.

In granting their bail application, Supreme Court Justices Aniruddha Bose and Sudhanshu Dhulia recalibrated the standard set in Watali. The Court held that:

• A “surface-level analysis of the probative value of evidence” is essential when assessing whether the case is prima facie true under Section 43D (5) of UAPA.
• Though an ordinary bail petition precludes a scrutiny of evidence, the “restrictive provisions” of Section 43D (5) make “some element of evidence-analysis…inevitable.”

Affirming the guideline in Satender Kumar Antil, the Court ruled that “when the statutes have stringent provisions the duty of the Court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act.”

The Court also acknowledged Najeeb noting that at the time of the judgment, the accused had spent five years in jail, while further clarifying Article 21 can be invoked due to prolonged incarceration, even if the period is less than half of the maximum sentence.

 By requiring courts to assess some believability in the evidence (and not merely its existence), the Vernon ruling opens the door for meaningful judicial engagement at the bail stage^[7].

The complete judgment delivered in Vernon vs State of Maharashtra (2023) can be read here.

Advocate Gautam Bhatia’s analysis of the jurisprudence on bail under UAPA, culminating in Vernon, distils three judicial principles^[8]:

1. The definitional clauses of the UAPA must be given a strict and narrow construction.
2. The allegations in the chargesheet must be individualised, factual, and particularistic.
3. Bail cannot be denied when the Prosecution’s evidence is of “low probative value.”

However, the jurisprudence on this point remains ambiguous. Since Watali, Najeeb, and Vernon were delivered by benches of equal strength, lower courts are free to selectively rely on either approach. The Delhi High Court, for instance, has had multiple opportunities to apply Vernon and Najeeb in the context of FIR 59/2020, but has betrayed a caution verging on abstention^[9].

While we wait for the Supreme Court to explicitly resolve this interpretive conflict, Professor Hany Babu and Advocate Surendra Gadling (two other accused in the Bhima Koregaon case who continue to be in pre-trial detention) present an elegant argument^[10] which may lift the ominous

shadow of Watali. A close reading of Section 2 (d) of UAPA defines “Court” as a criminal court with jurisdiction to try offenses under the Act. This means that the restrictions on bail in Section 43D (5) were intended to apply only to trial courts, and not to constitutional courts.

Such an interpretation renders Watali per incuriam, and frees Constitutional Courts from the statutory constraint altogether – restoring the power of the Constitutional promise of liberty to override a statutory bail provision, no matter how special the law.

Stringency and Snails: The PMLA Recalibration

In the lead-up to the 2024 Lok Sabha elections, the Prevention of Money Laundering Act was shrewdly maneuvered to disrupt the electoral playing field. The Enforcement Directorate (ED) initiated raids on a number of prominent opposition figures, including Hemant Soren (Jharkhand Mukti Morcha), D.K. Shiva Kumar (Indian National Congress), and Abhishek Banerjee (All India Trinamool Congress). In the high-profile ‘Delhi Liquor Scam’ case, the arrests of Delhi Chief Minister Arvind Kejriwal (Aam Aadmi Party) and K. Kavitha (Bharat Rashtra Samithi party) came in step with the Election Commission’s announcement of the Lok Sabha poll schedule.

The arrests brought two recurring themes into popular discourse: the weaponisation of the ED’s powers of arrest, and the draconian nature of the PMLA’s bail conditions.

The first of these finds its roots in Section 19 of the PMLA, which grants ED officials the power to arrest individuals if they have “reason to believe” that a person is “guilty of an offence punishable under this Act.” The Supreme Court in Vijay Madanlal Choudhary v. Union of India (2022) upheld this provision, reasoning that unlike police officers who are only tasked with investigating offences, ED officers have an added responsibility to “prevent” money laundering. Operating under the PMLA as a ‘special’ investigative agency, the ED is exempt from many procedural safeguards and oversight mechanisms that apply to the police under BNSS. By vesting the power to arrest entirely within the ED’s internal hierarchy without prior judicial sanction, the provision allows the agency to be the sole judge of its own “reason to believe.”

The second concerns the twin bail conditions under PMLA. Section 45(1) of the Act reads:

“Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence under this Act shall be released on bail or on his own bond unless:

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”

In 2017, the two-judge Bench in Nikesh Tarachand Shah v Union Of India had struck down an earlier version of Section 45(1), holding that it inverted the presumption of innocence. The Parliament amended the provision in 2018, replacing the offence threshold with the phrase “under this Act” but retaining the twin conditions. A subsequent challenge to the amendment in Vijay Madanlal was rejected by the Court, which held that the revised provision is “reasonable” and has a “direct nexus” with the purpose of the PMLA.

In “deferring to the wisdom of the Parliament” and upholding the constitutionality of Section 45 (1), Section 19, and several other contested provisions of the PMLA, the judgment in Vijay Madanlal entrenches a legal architecture that cements the unfettered powers of the ED while severely restricting the grant of bail^[11].

However, the stringent statutory framework upheld in Vijay Madanlal was soon confronted with the practical realities of indefinite incarceration. Subsequent decisions reveal a recalibration, with the judicial trend deferring to the right to liberty in the face of prolonged proceedings.

The Constitutional imperative of a speedy trial was the fulcrum for granting bail to former Deputy Chief Minister of Delhi Manish Sisodia, arrested in the Delhi liquor policy scam in February 2023. The Supreme Court noted the ‘snail’s pace’ of the proceedings^[12] (17 months without trial commencement) and the scale of the case (493 witnesses, thousands of pages of records and over a lakh pages of digitised material), making near-term completion unrealistic. Reinforcing the ratios of Sanjay Chandra, which emphasised the ‘necessity’ test, and Satender Kumar Antil, which mandated Article 21 protections for Category C offences, the Court ruled that bail is not to be withheld as a punishment. “The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial,” wrote (now, Chief) Justice B.R. Gavai.

The complete judgment in Manish Sisodia v Directorate of Enforcement (2024) can be read here.

Arvind Kejriwal v. Directorate of Enforcement (2024) further expanded the scope of judicial scrutiny at the bail stage. It held that “all material and evidence that can be led in the trial and admissible, whether relied on by the prosecution or not, can be examined,” since guilt “can only be established on admissible evidence to be led before the court.” Recognising that the ED’s power of arrest under the PMLA constitutes a drastic curtailment of liberty under Article 21, the Court emphasised that the Special Court must “independently apply its mind, without being influenced by the opinion recorded in the ‘reasons to believe.’”

The bail order in Arvind Kejriwal v. Directorate of Enforcement (2024) can be read here.

The Human Cost of Procedural Delay

Mohd. Muslim was 23 years old when he was arrested under the Narcotic Drugs and Psychotropic Substances Act, a drug trafficking case involving 180 kilograms of ganja. Though he was not found in possession of any narcotic drugs (his name having surfaced only in a co-accused’s statement), he was charged with the production, possession, and criminal conspiracy in a drug offence. By 2023, he had spent over seven years in prison with the trial barely at its halfway stage.

Section 37 of the NDPS Act restricts the grant of bail through twin conditions similar to the PMLA. It requires that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. In Mohd. Muslim v. State (NCT of Delhi), the Court observed that the Section 37 requirement to be “satisfied” of the twin conditions can only mean a “prima facie determination,” since all evidence is not yet before the court. It reasoned that a literal or mechanical reading would leave judicial discretion “within a very narrow margin,” effectively excluding bail altogether and amounting to punitive detention. To remain within constitutional limits, the Court stressed that this prima facie assessment must be applied “reasonably” based on the materials available at the time of the bail hearing.

The judgment further clarified that undue delay in trial is an independent ground for bail in light of Section 436A CrPC (Section 479 BNSS), which is not fettered by Section 37. Holding that prolonged incarceration, particularly where the delay is not attributable to the accused, must weigh heavily in favour of release regardless of the gravity of the alleged offence, the Court granted bail.

Before parting, the Court reflected on special laws and their stringent bail conditions, warning that if trials are not concluded in time, then the “injustice wrecked on the individual is immeasurable.” Drawing from A Convict Prisoner v. State of Kerala (1993), it recognised imprisonment as a “radical transformation” whereby the prisoner completely loses his identity: known by a number, stripped of personal possessions and relationships, engulfed by psychological scars from a complete loss of freedom, status, and dignity. The impact is especially acute for those from the weakest economic strata, where detention means an immediate loss of livelihood, disintegration of family, and alienation from society. The judgment stressed that courts must remain sensitive to these irreparable harms and ensure that trials, particularly under special laws with stringent bail thresholds, are taken up and concluded with urgency.

The judgment delivered in Mohd. Muslim v. State (NCT of Delhi) (2023) can be read here.

The Long Wait for Justice

Across four decades of jurisprudence, Constitutional Courts from Naresh Kumar to Vernon Gonsalves to Manish Sisodia have articulated a consistent judicial trend: the Constitution does not carve out exceptions to liberty simply because a statute is labelled “special.” The more severe the bail restrictions, the greater the obligation on the State to ensure a swift and fair adjudication.

The key principles accepted by the judiciary to grant bail in special statutes are outlined below:

• Undue Delay as a Constitutional Trigger: Prolonged pre-trial detention is a direct violation of the right to liberty under Article 21. Even under special laws with stringent bail provisions, undue delay in trial, particularly when not attributable to the accused, in trial is per se a valid bail ground for securing bail.
• The ‘Prima Facie’ Contradiction”: A mechanical interpretation of the statutory condition that a court must be ‘prima facie’ satisfied of an accused’s innocence would make bail illusory. Courts must apply a reasonable interpretation of this condition, avoiding a pre-emptive determination of guilt and ensuring the presumption of innocence is not inverted.
• Scrutiny of Evidence: While avoiding a mini-trial, courts must exercise meaningful scrutiny of evidence at the bail stage. Special courts must demonstrate an independent application of mind, free from the influence of prosecuting and investigative agencies, to assess whether the material has some probative value. Guilt can only be established on admissible evidence.
• “Graver the offence, greater the scrutiny”: An order of preventive detention should be strictly construed. It is the duty of a constitutional court to ensure that such an order falls squarely within the four corners of the relevant statute.
• Length of Detention: The mandate to grant bail when an undertrial has served half the maximum possible sentence (BNSS Section 479) applies equally to special laws, unless expressly excluded. Under Article 21, prolonged incarceration can itself justify bail, even if the period served is less than half the maximum sentence.
• “Constitutional mandate is the higher law.” The judiciary’s ultimate deference is to the supremacy of the Constitution. The constitutional mandate of Liberty is the highest law of the land, and must unequivocally trump any and all statutory restrictions.

“In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other” (Satender Kumar Antil).

Inside the courtrooms, judges may eloquently espouse democratic ideals as counsel spar over whether Article 21 is an administrative indulgence. But on the outside, the endless adjournments of the bail hearings for Surendra Gadling, Hany Babu, Sharjeel Imam and Gulfisha Fatima, among countless others incarcerated under ‘special laws’, betray a different reality. Alongside with the sweeping, often unchecked, powers of agencies like the NIA and ED, the ‘impression’ continues to tilt uncomfortably towards indefinite preventive detention masquerading as prosecution.

Cartoon by Arun Ferreira | Source: Colours of the Cage

The promise of a speedy trial has emerged as the judiciary’s primary safeguard against indefinite detention under draconian statutes. But a safeguard that is invoked only after years of confinement or ladders of appeals is no safeguard at all. The Constitutional imperative demands that it must be enforced with unflinching consistency, from the highest constitutional courts to the lowest trial courts, and the burden must be on the State to justify every continued moment of incarceration.

(The legal research team of CJP consists of lawyers and interns; this legal resource has been worked on by Raaz)

Footnotes

[1] Naresh Kumar @ Pahelwan v. State of NCT of Delhi (2025)

[2] Now, under Section 479, the provision of granting bail to under trial prisoners will now be limited to those undertrials who are first-time offenders if they have completed one-third of the maximum sentence. Since charge sheets often mention multiple offences, this may make many under trials ineligible for mandatory bail. Furthermore, through the said provision, the prohibition of getting bail under the said section had also been expanded to those offences that are punishable with life imprisonment. Therefore, the following under trials are barred from applying for statutory bail under the said section if: offences punishable by life imprisonment, and persons who have pending proceedings in more than one offence.

[3] Supreme Court Legal Aid Committee v Union of India (1994)

[4] Union of India v K.A. Najeeb (2021)

[5] ‘UAPA: Criminalising Dissent And State Terror’(People’s Union of Civil Liberties, September 2022)

[6] ‘When Najeeb meets Watali – On the statutory restrictions on grant of bail under UAPA’ (Hany Babu and Surendra Gadling, Issues in Constitutional Law and Philosophy, 2025)

[7] ‘Bail under UAPA: Does the new SC judgment offer a ray of hope?’ (Sanchita Kadam, Citizens for Justice and Peace, 2021)

[8] ‘How the Delhi riots case remains stagnant with close to a dozen student leaders incarcerated’ (SabrangIndia, 2025)

[9] ‘Recovering the Basics: The Supreme Court’s Bail Order in Vernon Gonsalves’ Case’ (Gautam Bhatia, Issues in Constitutional Law and Philosophy, 2023)

[10] Supra, 7

[11] Supra, 5

[12] ‘Challenges to the Prevention of Money Laundering Act | Judgement Summary’ (Sushovan Patnaik, Supreme Court Observer, 2024)

[13] ‘“A game of snake and ladder”: Tracing Manish Sisodia’s 17-month journey to bail’ (Sushovan Patnaik and Advay Vora, Supreme Court Observer, 2024)

The post Liberty on Hold: Delays turn the promise of justice into punishment appeared first on SabrangIndia.

The lawsuit was a SLAPP suit – a legal tactic used to silence critical reports and public debate. This case and several other such cases highlight the growing use of lawfare to threaten and silence media, especially independent media. Akshay Luhadia and Istela Jameel in their report, Strategic Lawsuits against Public Participation in India –An Analysis in the Context of Indian Defamation Laws, published in the NLIU Law Review discuss the threats to free speech and expressions in democracies through Strategic Lawsuits Against Public Participation (SLAPP). They highlight examples of SLAPP cases in India and the negative impact on democracy, particularly targeting minorities and women. Read their report here.

Statement on Vantara’s failed legal case against Himal Southasian

The post Vantara case against Himal Southasian dismissed by Delhi High Court appeared first on SabrangIndia.

The recent order of the Delhi High Court directing YouTuber Shyam Meera Singh to remove his video critical of Isha Foundation and its founder, Sadhguru Jaggi Vasudev, raises significant questions about the balance between free speech and the right to reputation. The court’s decision, passed as an ex-parte ad-interim order without providing Singh an opportunity to present his case, highlights the increasing use of defamation laws to curtail criticism and investigative reporting.

The court directed Google LLC (YouTube), X Corp, and Meta to remove the video from their platforms. Singh was further restrained from sharing or publishing the video in any form, and the court went a step further by barring the general public from re-uploading it. This sweeping injunction raises concerns about the breadth of judicial power in restricting digital content before a full trial.

The order states “Defendant No.4, his associates, servants, agents, affiliates, assignees, substitutes, representatives, employees and/or persons claiming through him [are restrained] from creating, publishing, uploading, sharing, disseminating, etc., the defamatory videos.”

The court justified its decision by stating that Singh’s video was based on “unverified material” and that its title was “clickbait to attract public attention.” It also noted that the video directly impacted the reputation of the Isha Foundation and its founder, stating that allegations of improper practices at the ashram harmed their public standing. However, Singh’s response highlights a procedural issue: he was only served with a copy of the defamation suit after the order had already been passed, denying him the chance to contest the allegations before the injunction was issued.

Justice Prasad also observed that Singh had made social media posts to promote the video before uploading it. The Court pointed out the need to balance free speech with the right to reputation. The order stated that “It is well settled that reputation is an integral part of the dignity of each individual and there is a need to balance between freedom of speech and freedom of expression vis-a-vis the right to reputation which has been considered as a part of the right to life under Article 21 of the Constitution of India. The video does have a direct impact on the reputation of the founder of the Plaintiff/Trust.”

The order may be viewed here.

Ex-parte orders and the right to be heard

Singh, in his response to the court order, pointed out that he was served a copy of the defamation suit only after the order had already been passed.

A statement on behalf Meera said, “…Hon’ble High Court has passed the ex parte (without giving an opportunity of hearing) ad-interim order directing that the said video be taken down. The order has been complied with. It is categorically stated that Shyam Meera Singh has been served with the copy of the suit, only after the said order was passed.”

“The said ex parte ad- interim order prima facie appears to be arbitrary and not in consonance with law. Therefore, Shyam Meera Singh is exploring all the legal remedies available before him,” it further said.

I came to know through the media that yesterday, the Hon’ble High Court passed an interim order to take down my video. I was not served with any notice nor provided with any information about this hearing. Further, I was not given an opportunity to present my side in the court. I…

— Shyam Meera Singh (@ShyamMeeraSingh) March 13, 2025

Statement on behalf of @ShyamMeeraSingh pic.twitter.com/9xtQtQrGza

— Mayank Yadav (@imayankyadav) March 12, 2025

This raises a crucial issue: the principle of audi alteram partem, which guarantees the right to be heard before an adverse order is issued. While courts can grant ex parte relief in exceptional cases where immediate harm is evident, it is difficult to see how this case justified such urgency. The Isha Foundation’s claim that the video was uploaded two days before Maha Shivratri to create a public controversy does not, in itself, establish the kind of imminent harm that would warrant bypassing Singh’s right to respond.

Defamation cases, particularly those involving public figures or organisations of significant influence, require careful judicial scrutiny. Courts have historically recognised that public figures are subject to higher levels of criticism and scrutiny. In this case, the Isha Foundation is a well-known institution with considerable public influence, making it all the more important for the judiciary to ensure that Singh’s right to critique its activities is not unduly curtailed.

Balancing reputation and free speech

The court’s rationale—that the video’s contents “directly impinge upon the reputation of the Plaintiff in the eyes of the general public”—raises broader concerns about how defamation laws are applied. Reputation is undoubtedly a significant right, but it must be weighed against the fundamental right to freedom of speech and expression, especially when the subject matter concerns public interest.

In India, the Supreme Court has repeatedly affirmed that the right to reputation, while important, cannot be used to shield public figures from criticism. In Subramanian Swamy v. Union of India (2016), the Court upheld criminal defamation but also emphasised that the right to reputation should not be invoked to silence fair criticism. The present case, however, suggests a broad interpretation of defamation that could have a chilling effect on investigative reporting and critical journalism.

Implications for digital journalism and public discourse

This is not the first instance of judicial intervention affecting Singh’s content. In January 2025, the Delhi High Court ordered him to remove a video about Dera Sacha Sauda chief Gurmeet Ram Rahim Singh, citing prima facie defamation. In that case, however, the court allowed Singh to upload a new video with a disclaimer stating that its contents were sourced from a trial court judgment and a book. The difference in approach between the two cases underscores the need for clear judicial guidelines on how courts handle online defamation claims.

The broader concern is the potential chilling effect on digital journalism. If courts continue to grant takedown orders before assessing the validity of defamation claims, independent journalists and content creators may become hesitant to investigate or report on powerful figures and institutions. Such orders, even if later reversed, can discourage critical reporting due to the financial and legal burdens involved.

Related:

The murder of Raghvendra Bajpai: A chilling reminder of the dangers faced by journalists in India

SC’s denial of bail to journalist Rupesh Singh once again showcases how the Court looks at bail under UAPA, with varying consistency

Indian Newspaper Day: Journalists’ Groups Demand Independent Media Commission

Baster Journalist killing: UNESCO condemned the killing of Mukesh Chandrakar

The post Delhi High Court’s takedown order against Shyam Meera Singh’s video on Isha Foundation raises free speech concerns appeared first on SabrangIndia.

I. Brief history of rape law

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

II. Separation of powers and judicial restraint

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. On other arguments

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

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

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

V. MRE violates Article 21 of the Constitution

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

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

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

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

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

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

VII. Presumption of constitutionality of pre-constitutional statutes

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

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

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

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

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

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

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

IX. On miscellaneous issues

Conjugal expectations and marital rights

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

Marriage as an institution vs. individual rights

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

Labeling marital rape as “rape”

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

False cases and empirical evidence

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

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

Invasion of the private sphere

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

Conclusion

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

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

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

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

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

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

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

[1] 2022 SCC OnLine Del 1404

^[2]  (2008) 3 SCC 1

[3] (2018) 10 SCC 1

[4] (2019) 3 SCC 39

Related:

D*ck or fist

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

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

Background of the case

This case revolves around the arrest of Marfing Tamang under FIR No. 157/2024, registered at P.S. Kamla Market, Delhi, under several provisions of the IPC and the Immoral Traffic (Prevention) Act, 1956.

The petitioner was accused of managing an establishment involved in sexual exploitation and benefiting financially from such activities. The police alleged that the establishment functioned as part of a larger network engaging in trafficking and forced prostitution.

On May 17, 2024, the petitioner was detained and subsequently arrested at 6:30 p.m. He was initially placed in police custody for two days before being remanded to judicial custody for 14 days. The core contention in the case was whether the procedural safeguards under Section 50 CrPC were adhered to. Specifically, the issue was that the grounds of arrest were not communicated at the time of the arrest but instead were served later, after the remand application had been filed. The petitioner argued that this violated his fundamental rights and due process under the law, making the arrest illegal. The court was called upon to determine whether this procedural lapse warranted the quashing of the arrest and remand orders.

Issues

1.  Whether the phrase “forthwith”under section 50 CrPC mandates immediate communication of grounds of arrest.
2.  Whether the delay in serving the grounds of arrest invalidates police custody and judicial remand.
3.  Whether discrepancies in the grounds of arrest mentioned in the remand application and those later served affect the legality of the arrest.

Court’s observations

• The court distinguished between “forthwith”in section 50 CrPC and “as soon as may be”under PMLA. It held that “forthwith” means immediate and simultaneous communication of arrest grounds at the time of issuing the arrest memo.

“..the word ―forthwith‖ appearing in section 50 Cr.P.C. must be interpreted strictly, meaning thereby that the grounds of arrest or the grounds for arrest must be communicated to an arrestee immediately and without delay.” (Para 30.6)

• The court held that the failure to inform the petitioner of the grounds for arrest at the time of his detention amounted to a direct violation of his constitutional rights under Article 22(1) and procedural safeguards under Section 50 CrPC.

“Accordingly, in the opinion of this court, the arrest of the petitioner is vitiated for non-compliance with the mandate of section 50 of the Cr.P.C. and Article 22(1) of the Constitution.” (Para 32)

• The court emphasised that the grounds of arrest must not only be communicated in writing but must be done in a timely manner that allows the accused to prepare for legal representation.

“Once the grounds for requiring a person’s arrest have been formulated in the investigating officer‟smind, there can possibly be no reason why those grounds cannot be reduced into writing and communicated to the person simultaneously at the time of arrest.” (Para 30.8)

• The court reiterated that the Magistrate erred in ruling that serving the grounds of arrest just before the remand hearing was sufficient compliance, as meaningful legal representation requires adequate notice.

“This was clearly an erroneous interpretation and application of the law by the learned Magistrate, since furnishing the grounds of arrest in writing just about an hour before the remand hearing in the present case, cannot possibly be due or adequate compliance of the requirements of section 50 Cr.P.C., which mandates that grounds of arrest must be communicated to an arrestee forthwith that is to say simultaneously and immediately upon the arrest of such person.” (Para 34)

• The remand order dated May 18, 2024 was set aside as it did not comply with the requirements of Section 50 CrPC, rendering the petitioner’s continued detention unlawful.

“In order to bring abundant clarity in the matter, this court would also observe that sufficient time must given to an arrestee after the grounds of arrest have been served upon him in writing, to enable the arrestee to engage and confer with legal counsel, the test being that the arrestee must have meaningful opportunity to resist his remand to police custody or judicial custody.” (Para 36)

Accordingly, remand order dated 18.05.2024 also stands vitiated and is set-aside. (Para 37)

• The court reaffirmed the significance of procedural compliance in arrests, underscoring that any deviation from statutory mandates weakens due process and constitutional protections.

“In light of the above, without addressing the controversy as to whether the petitioner stood deprived of his liberty once he reached the police station at 11:30 a.m. on 17.05.2024, there can be no contest that the petitioner was formally arrested when the arrest memo was issued to him i.e., at 06:30 p.m. on 17.05.2024. In compliance of section 50 of the Cr.P.C., as interpreted above, the I.O. was required to serve the grounds of arrest upon the petitioner simultaneously with the issuance of the arrest memo. This was admittedly not done.” (Para 31)

How this judgment can be applied for the advancement of human rights

This judgment establishes a strong precedent for safeguarding human rights, particularly in the realm of criminal justice and due process. By mandating immediate communication of the grounds of arrest, it ensures that accused individuals are not deprived of their fundamental rights arbitrarily. This ruling upholds the principle that legal processes must be transparent, ensuring that law enforcement agencies strictly adhere to procedural requirements.

Additionally, this case reinforces the necessity of allowing accused persons adequate time to prepare their legal defence. Ensuring that legal representation is meaningful rather than a mere formality is crucial for upholding the right to a fair trial. The judgment highlights the importance of compliance with constitutional safeguards under Article 22(1) and procedural mandates under Section 50 CrPC, making it clear that any deviation from these principles weakens the integrity of the justice system.

Beyond individual rights, this ruling has broader implications for the protection of vulnerable communities. It prevents law enforcement from abusing detention powers and sets a precedent for judicial intervention when fundamental rights are violated. This judgment can serve as a tool for human rights advocates to challenge unlawful detentions and ensure accountability in law enforcement practices.

By reinforcing procedural compliance and transparency, the ruling contributes to the larger framework of human rights jurisprudence, emphasising that the rule of law must prevail over arbitrary actions by the state. It strengthens the principle that liberty is a fundamental right that cannot be curtailed without adhering to established legal norms, thereby protecting individuals from unjust state actions.

The judgment in the case of Marfing Tamang v. State (NCT of Delhi) delivered by Anup Jairam Bhambhani J, Delhi high court on 4th Feb 2025 may be read here:

(The Legal research team of CJP consists of lawyers and interns; this judgement primer has been worked on by Shailendar Karthikeyan)

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The post Delhi high court strikes down illegal arrest: Reaffirms the right to immediate disclosure of grounds of arrest appeared first on SabrangIndia.

Earlier, the Court had granted interim protection from arrest. During the hearing, Khan’s Senior Advocate Kapil Sibal assured the Court that Khan had been cooperating with the investigation and would continue to do so. Sibal raised concerns over potential harassment by the police under the guise of investigation and objected to the police’s demand for access to Khan’s phone.

Justice Singh, while recognizing the concern, affirmed the police’s right to investigate.

Background

An FIR (No. 280/2024) was filed against activist Nadeem Khan on November 30 at Shaheen Bagh Police Station under sections 196/353(2)/61 of the BNS, 2023. According to the FIR, a sub-inspector (SI) on patrol duty was alerted by “secret sources” about a video circulating on social media. The video was reportedly inciting strong anger among local residents and had the potential to provoke violence. The FIR alleges that a video titled “Records of Hindustan in Modi Sarkar,” posted on the “Akram Official 50” YouTube channel on November 21, depicted an individual at an exhibition booth gesturing towards a banner. The video reportedly mentioned names like Nadeem Khan, Akhlaq, Rohit Vemula, and Pehlu Khan, while also referencing the 2020 Shaheen Bagh protests and the Delhi riots. The FIR claims that the video portrayed a specific community as victims and attempted to incite unrest.

Following this, a non-bailable arrest warrant was issued against Khan. However, on December 3, the Delhi High Court granted him interim protection from arrest until December 6. Justice Jasmeet Singh, during the hearing, directed Khan to cooperate fully with the investigation and to join the ongoing probe. Furthermore, Khan was instructed not to leave the National Capital without the permission of the Investigating Officer.

During the December 3 hearing, when the Delhi Police counsel informed the court that Khan had contacted various individuals, including lawyers, when the officials attempted to arrest him, Justice Singh made an oral remark:

“That can’t be a reason to arrest him. Anybody who’s getting arrested calls people no? Where is the question…how do you go to Bangalore? You say, you go in police uniform in Bangalore to arrest him. How do you do that?

The court said that, “Please understand, we are in a democratic country. The harmony of our nation is not so fragile. It is not so fragile that merely one exhibition, merely someone shouting, it cannot be. Consider people as intelligent…You repose very little faith in the common man. Common man is intelligent. Common man isn’t so fragile that merely one exhibition will”

“We are living in a democratic country. The country places great pride in our fundamental rights. Article 19(1)(a) is to be protected. If you think that a common man will get incited by this, the common man doesn’t have the IQ to understand what is right for them… we are intelligent people. Please have some faith in the common man” the Court further remarked. As Live Law Reported.

Khan framed narrative portraying “particular community” as govt victims: Delhi Police

According to Live Law, the Delhi Police informed the Delhi High Court that civil rights activist Nadeem Khan, through “targeted dissemination of selective and misleading information,” sought to create a narrative portraying a “particular community” as victims of “systematic oppression” by the government.

The police stated, “This selective portrayal is not only factually distorted but appears to be calculated to evoke feelings of victimization and persecution within that community. Such actions suggest a deliberate attempt to provoke discontent and unrest, amounting to a larger conspiracy aimed at undermining communal harmony and public order.”

In its affidavit, the Delhi Police also claimed that Khan was evasive during his December 5 interrogation. It revealed that the “exhibition” organized by “Jamaat-e-Islami Hind,” where the alleged video was recorded at the APCR stall, was entirely managed and controlled by him.

Delhi High Court shielded Khan from arrest and quashed no-bailable warrant

On December 11, in a petition filed by Nadeem Khan under section 528 of BNSS, 2023 seeking quashing of order issuing non-bailable warrant and the proceedings emanating therefrom in FIR No. 280/2024, Justice Jasmeet Singh of Delhi High Court quashed the warrant and provided protection from arrest to civil rights activist Nadeem Khan.

Justice Singh also directed that, should the Delhi Police require Khan’s custody, they must provide a seven-day advance written notice. The Delhi Police assured the court that Khan would not be arrested, and if custodial interrogation became necessary, they would notify him in advance.

Delhi Police conducted raid at Delhi office of APCR on November 29

Earlier, on November 29, Delhi Police conducted a raid at the Delhi office of the Association for Protection of Civil Rights (APCR). The next day, on November 30, the police attempted to detain Nadeem Khan at his brother’s residence in Bengaluru. The raid and detention attempt were reportedly triggered by social media posts, particularly from a Twitter user named “Mr. Sinha.” The police action followed an exhibition organized by the APCR, which attracted attention from right-wing groups on social media, who have previously targeted Khan due to his vocal criticism of police brutality and state involvement in mob violence.

In response, the People’s Union for Civil Liberties (PUCL) condemned the police actions, describing them as part of a targeted witch-hunt against Khan. PUCL expressed concern over the harassment, which they believe was instigated by certain social media accounts, labelling it an attack on human rights activism.

Human Rights Watch condemned the Delhi Police raid

International Human Rights Body, Human Rights Watch strongly condemned the November 29, 2024, raid by Delhi police on the offices of the Association for Protection of Civil Rights (APCR). In a statement, HRW expressed concern that the Indian government is actively seeking to silence voices critical of its policies and those who offer assistance to individuals targeted by politically motivated investigations. HRW’s Pearson stated, “The Indian government appears determined to silence voices that speak out against its abusive practices as well as those who provide assistance to people facing malicious investigations.”

The organization further said that by punishing individuals for exercising their right to free expression, the government is not silencing dissent but rather adding to the growing list of human rights violations in the country. This raid highlights a troubling effort to stifle criticism and further marginalized groups defending the rights of minorities and vulnerable communities in India.

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The sixth Schedule to the Constitution provides for implementation of specific measures to have an autonomous administration in tribal areas to protect the rights and identity of locals. At present, it is applicable only to Assam, Meghalaya, Tripura and Mizoram in northeast India. Few months ago,  Wangchuk had been on a prolonged hunger strike to press for his demands which also include environmental protection in Ladakh. Last month, Wangchuk and others began the foot march to national capital.

In a questionable late night operation, before either he and other activists could enter the national capital, Delhi Police detained them. The foot march was scheduled to end at Rajghat on Gandhi Jayanti to mark the birth anniversary of the father of the nation on October 2.

Late last night, at 10.30 a.m. here is what Sonam Wangchuk said on X (formerly twitter):

I AM BEING DETAINED…
along with 150 padyatris
at Delhi Border, by a police force of 100s some say 1,000.
Many elderly men & women in their 80s and few dozen Army veterans…
Our fate is unknown.
We were on a most peaceful march to Bapu’s Samadhi… in the largest democracy… pic.twitter.com/iPZOJE5uuM

— Sonam Wangchuk (@Wangchuk66) September 30, 2024

“I am being detained..along with 150 padyatris at Delhi Border, by a police force of 100s, some say 1,000. Many elderly men and women in their 80s and some Army veterans…Our fate is unknown. We were on a most peaceful march to Bapuy’s Samadhi..in the largest democracy in the world, the mother of democracy…Hey Ram.”

Echoing Gandhi’s last words as he was felled by the bullets of assassin Nathuram Godse, Wangchuk’s arrest has drawn widespread condemnation on social media. The legacy print media have played it down, however.

The petition for their release was mentioned before the Bench of Chief Justice Manmohan and Justice Tushar Rao Gedela by advocate Vikram Hegde. However, an urgent hearing of the plea was declined. It is now likely to come up for hearing on October 3.

Apart from seeking the release of Wangchuk and others, the plea has also sought directions for permitting the activists to enter Delhi “for the purpose of raising their demands peacefully”.

“Permit the group of persons, including senior citizens, led by Mr Sonam Wangchuk to assemble peacefully in a designated area,” the plea states.

The advocate who filed it is Mustafa Haji, who has stated that he has been closely involved with the movement for environmental protection and democratic representation in Ladakh. “A group of about 150 persons started on a foot march (pad yatra) from Leh to Delhi on 01.09.2024. The purpose of their march is to make a representation to the Union Government in Delhi on the occasion of Gandhi Jayanti, inter alia seeking environmental protection, sixth schedule status for Ladakh, Statehood and greater democratic representation,” the plea states.

Incidentally, as news of the peaceful march picked up on social media the Delhi police was quick to act, repressing freedoms. The prohibitory order issued by Delhi Police on September 30 against assembly of five or more persons has also been challenged in the plea.

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The post Delhi High Court Petition against detention of Ladakh climate activist Sonam Wangchuk appeared first on SabrangIndia.

While stating on record that the blocking order was unjust, X supported HW’s request that the social media account be unblocked, objecting the Centre govt order to blocking the account on multiple grounds. ‘X’ has also expressed willingness to restore Hindutva Watch’s account. X in its reply before the Delhi High Court stated that the impugned order of qualify the requirement of section 69A of the IT Act, 2002.

X also submitted before the court that the Central govt’s order also violates the Supreme Court’s decision in the Shreya Singhal vs. Union of India, (2015) 5 SCC 1, relating to restrictions on online speech, held as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.

Background

This year in January, 2024, the ‘X’ account of Hindutva Watch, a hate-crime tracker in India, was blocked by the social media giant ‘X’ after the Ministry of Electronics and Information technology (MeitY) issued a notice listing several accounts that the government intended to block as it had the “the potential to incite violence and disrupt public law.” This list also included the account of HW (@HindutvaWatchIn).

In compliance with the government’s direction, in January, 2024, ‘X’ withheld the account of Hindutva Watch, stating that the action was being taken in response to a legal demand.

Raqib Hameed Naik, Founder of Hindutva Watch filed a writ petition Raqib Hameed vs Union of India, [Writ Petition (Civil) 6023/2024] in the Delhi High Court in April, 2024 against the blocking of account @HindutvaWatchIn and challenged the MeitY blocking order.

According to Bar and Bench, X said that it objected to MeitY notice, claiming that @HindutvaWatchIn’ did not fall within the grounds specified under Section 69A of the Information Technology Act, 2000 (IT Act) and that the MeitY flagged the posts as inciteful without basis.

X said that despite their objection, the Ministry issued a blocking order directing ‘X’ to block HindutvaWatchIn. X reverted with an objection letter, stating that the blocking order was issued in violation of Articles 14 (Right to Equality) and 21 (Right to life and personal liberty) of the Indian Constitution and Section 69A of the IT Act. In objection letter, ‘X’ mentioned that the blocking order would disproportionately affect the user’s rights. But the Ministry not responded on this.

Blocking order was “without basis” and “disproportionate”

The social media giant X has submitted in its reply that the Modi government’s blocking order against Hindutva Watch is without basis and disproportionate. X further added that the blocking of the Petitioner’s entire Account, as opposed to specific posts, was disproportionate and did not constitute the “least intrusive measure” as mandated under law.

X notes that the blocking order “disproportionately affect the user’s rights” because it prevents the user from using X in India at all and blocking HW’s entire account does not meet the four-part proportionality test.

 X said ready to restore account but not ‘the State’ under Article 12

While objecting the Centre’s blocking proposal, X also asserted that Hameed’s petition was not maintainable against X, as the company is not “the State” under Article 12 of the Indian Constitution, nor does it perform a public function. However, X Corp. also states that, without prejudice to those objections, it does not oppose Hameed’s request to restore the account and will comply with a court order to that effect.

“It is admitted that Respondent No. 1’s (Union of India) blocking of the Petitioner’s (Hindutva Watch founder) entire social media accounts on the basis of certain alleged offending posts is contrary to Section 69A of the IT Act, disproportionate, and exceeds the limits prescribed under Article 19(2) of the Constitution. It is admitted that a possible and less rights-infringing approach would involve the removal of specific posts, if found to be in violation of the law … Without prejudice to the Preliminary Objections, Answering Respondent (X/ Twitter) does not oppose Petitioner’s request to restore Petitioner’s X Account in India, and will comply with such an Order if this Hon’ble Court grants it,” X stated before the court through its reply. Reported Bar and Bench

In support of its Position, X cites the decision of the High Court of Delhi in Sanchit Gupta v. Union of India, 2024 SCC OnLine Del 5880 in which the Court held that X Corp. does not perform a public function and is therefore not amenable to the Court’s writ jurisdiction.

Violates right to freedom of expression

The central government’s blocking of Hindutva Watch’s Twitter account constitutes a blatant violation of freedom of speech. By censoring the account, the government suppresses critical voices and stifles the documentation of hate crimes and hate speech by right-wing outfits and leaders. This arbitrary action undermines India’s democratic values and the fundamental right to expression guaranteed under Article 19(1)(a) of the Constitution. The blocking order lacks transparency, proportionality, and judicial oversight, setting a chilling precedent for online speech, as no prior notice was served to the HW, before or after the action. It highlights the government’s growing tendency to silence dissenting voices, compromising the safety of minority populations and undermining accountability towards rising in motivated hate crimes and hate speeches.

What is Hindutva Watch?

As per its website, Hindutva Watch (HW) is a media and research initiative committed to documenting hate crimes and hate speech targeting India’s religious minorities and marginalized groups, including Dalits. The project has been described by the Washington Post as “one of the most robust real-time data sets of human rights abuses in the world’s largest democracy.” The LA Times has described HW as “a thorn in the side of Hindu nationalists who have been provoking anti-Muslim sentiment for years.”

However, the blocking of X accounts of those critical of the Modi government is not a new phenomenon. Many reports have highlighted the complicity that X has shown, or has been pressurised to show by the Indian government, in regards to mass censorship of its users. In October 2023, accounts of two U.S. based non-profits that frequently criticised Indian political leaders’ record on minority and caste rights issues in India, namely The Indian American Muslim Council (IAMC) and Hindus for Human Rights (HFHR), had also been withheld owning to “legal demands”.

The next date of hearing in the matter is October 3, 2024

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The post Govt order to block Hindutva Watch account unjustified: X tells Delhi HC appeared first on SabrangIndia.

In a strongly worded judgement delivered by the Delhi High Court Justice Anup Bhambhani on July 23, the court minced no words as it questioned the investigation done by the Delhi Police and ordered the transfer of the case to the Central Bureau of Investigation (CBI) citing tardy and sketchy conduct of the former. In a case relating to the death of one Faizan, the victim of 2020 Delhi violence, who was beaten by a mob dressed in police uniform and later alleged to have been tortured in police custody at Jyoti Nagar police station, the case now stands transferred out of the Special Investigation Team (SIT) appointed by the Delhi Police, and has been handed over to the CBI for further investigation and prompt action. The petition was filed by the mother of the deceased, Kismatun, and was argued by advocate Vrinda Grover for the petitioner.

Notably, Faizan had succumbed to his injuries on the intervening night of February 26 and 27, 2020 while being treated at Lok Nayak Hospital in New Delhi. An FIR (No. 75/2020) was registered against his death at Bhajanpura Police Station on February 28, 2020 under sections 147, 148, 149 and 302 of the Indian Penal Code (IPC) against unknown persons. Furthermore, while the FIR was registered on February 28, the Crime Branch took the statement of her mother almost 3 weeks later, on March 18. The case became sensational in the backdrop of 2020 Delhi Violence after a video went viral on the social media, in which a group of men dressed in police uniform could be been beating Faizan with their batons and forcing him sing National Anthem even as they questioned his patriotism.

The High Court observed that “the Crime Branch of Delhi Police examined the petitioner for the first time only on 18.03.2020. More than 4½ years have elapsed since. However, not even one of the policemen involved in the abuse and assault has been conclusively identified in the course of the investigation so far. The perpetrators of the crime are therefore still at large, though they are all members of the police force in Delhi.”

Facts of the case

Faizan, a 23-year-old young man, had left his home on February 24, 2020 to search for his mother, Kismatun, who had been protesting along with other women against the controversial Citizenship Amendment Act (CAA). When his mother retuned back home, she did not find Faizan around, and in the meantime, the communal violence had broken out in their area. Later, it was learnt that Faizan along with other Muslim men had been beaten and dumped near the street by the police forces who forced them to sing National Anthem (though the prosecution version alleged that they had rescued Faizan as he was injured due to stone pelting when the riots broke out in the area). Subsequently, the police personnel from Jyoti Nagar police station took the men, along with Faizan, to GTB hospital for medico-legal check-up (incidentally, the men were under the jurisdiction of Bhajanpura Police Station when they were taken away by the Jyoti Nagar police personnel).

While at GTB hospital, Faizan received basic medical aid, including stitches on his head and ear, and was referred by the hospital for a further specialised medical treatment. His mother alleged that on the same day, i.e., 24.02.2020, upon receiving the information that Faizan had been at GTB hospital, they visited the hospital at 8PM but were informed that the police had taken back the men to Jyoti Nagar police station after ensuring basic medical treatment. What happened to Faizan at the police station is a matter of dispute, with the petitioner alleging that Faizan had been tortured at the station by men in uniform even while denying him urgent special medical treatment as was recommended by GTB hospital due to which his son succumbed to his injuries later on. The police version claimed that Faizan had voluntarily stayed at the station as the situation was communally tense in his area after the outbreak of the riots, and no harm was done to him at the station; nonetheless, it did not deny the video in which Faizan was earlier shown being beaten up by the men in uniform before being taken to the hospital and subsequently to the police station. The mother had questioned the police claim about his son allegedly voluntarily staying at the police station and said that she had visited the Jyoti Nagar police station on February 24 itself, but was not provided any helpful response. Importantly, all the CCTVs were out of order in Jyoti Nagar Police Station during the time of Faizan’s custody, the fact which both the petitioner and the court found suspicious. While Faizan was finally handed over to his mother on February 25 late night, he was found severely wounded, with torn trousers, blood-soaked clothes, and multiple stiches around his head and ear. He was admitted to Lok Nayak hospital the very next day, i.e., on February 26, where he later succumbed to his injuries.

High Court Judgement

Justice Anup Bhambhani posed multiple queries on the conduct of investigation and countered the claims made by Delhi Police on several fronts. The court said that it took almost 3 weeks upon registration of the FIR for the police to record the statement of the petitioner (victim’s mother) and collect the blood-stained, torn clothes worn by Faizan at the time of the incident. Further, the police have failed to take the statement of the witness, Kausar Ali, who was another injured victim and eye-witness to the incident. As per Ali, the police had started beating Faizan and other men without any provocation, and mocked at the victims while questioning their patriotism merely on the basis of their religious identity even as they laid severely injured on the roadside. Significantly, the Delhi Court High pointed out that “the police have failed to even identify the policemen who had humiliated and brutally assaulted Faizan (and four other young men), as plainly visible in the video-footage available in the public domain.” The verdict also observed that no action has been taken against police personnel at Jyoti Nagar police station where Faizan was illegally detained and denied urgent medical intervention, which resulted in his death.

The judgement further brought attention to the issue raised by the petitioner, which questioned the claim of the police that no CCTV footage is available to trace gypsy in which Faizan was picked up, even though the route in question would have several commercial establishments, petrol pumps, and DMRC metro stations.  On the malfunctioning of the CCTVs inside the police station premises, the court cited Paramvir Singh Saini vs. Baljit Singh & Ors., which says that “It shall be the duty and obligation of the SHO to immediately report to the DLOC any fault with the equipment or malfunctioning of CCTVs. If the CCTVs are not functioning in a particular police station, the SHO concerned shall inform the DLOC of the arrest/interrogations carried out in that police station during the said period and forward the said record to the DLOC”. In this regard, the verdict notes that the police took a very convenient stand, presenting a fait-accompli, which does not inspire confidence and cannot be countenanced. Moreover, the claim made by the police that Faizan stayed at the station at his own will was found counter-intuitive, and the court reasoned if that was the case, he would have at least informed about his whereabout to his family. The verdict also commented that if Faizan was already severely injured why would he be kept at the police station, even at his own request and safety?

Significantly, Justice Bhambhani countered the narrative of the Delhi Police, which claimed that it has not been able to identify the guilty personnel. The judge said that, as per the narrative, “SHO, P.S.: Jyoti Nagar took the injured young men to GTB Hospital in a police Gypsy but that the said police officer has been unable to identify any of the policemen who were involved in the abuse and assault.” He further said that putting the said SHO to polygraph test only now, after 4 years, is not suggestive of the investigation and promptitude. The verdict emphasised that none of the accused have been identified till date even though the Investigating Officer “informs the court that they have identified a head constable and a constable who were present at the spot, as possible suspects, it is their case that the said two policemen have given deceptive responses in their polygraph tests…”.

The judgment recognised the present case as an instance of hate crime and citing the judicial precedent in Tehseen S. Poonawalla vs. Union of India &Ors, it remarked, “It must be understood that mob-vigilantism and mob-violence do not cease to be so merely because these are perpetrated, not by ordinary citizens, but by policemen themselves. If anything, the element of abomination gets aggravated if hate-crime is committed by persons in uniform.” The verdict further underscored the importance of fair investigation, and said that “a fair investigation, and not just a fair trial, is now considered part of the fundamental right enshrined in Article 21 of the Constitution.”

Relying on the judicial precedents concerning fair trial and investigation in Bharati Tamang vs. Union of India, Mithilesh Kumar Singh vs. State of Rajasthan, and Awungshi Chirmayo & Anr. vs. Govt. of NCT of Delhi, the Delhi High Court transferred the case registered under FIR No. 75/2020 at Bhajanpura Police Station to the CBI as it reasoned that the perpetrators of the offence are themselves members of the agency that is investigating the crime, and this does not inspire confidence.

Today, the court rejected Delhi Police’s plea to put the order in abeyance but it extended the time for transfer of the investigation to CBI from 7 days to 14 days.

The High Court judgement may be read here:

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The post Delhi High Court transfers to CBI the case involving Delhi violence victim Faizan who was attacked by the mob in police uniform and forced to sing National Anthem appeared first on SabrangIndia.