A quick search of the 142-page judgement, delivered by a bench comprising Justices Aravind Kumar and NV Anjaria, finds these key words missing. Instead, the judgement expanded the contours of terrorism. Further, it created two categories of accused – leaders and followers. Researchers Umar Khalid and Sharjeel Imam were designated as “architects” of the conspiracy and denied bail, whereas student activist Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan and Shadab Ahmed were granted bail under stringent censorial conditions. All of them have been in jail since 2020.

While freedom of speech and the right to political dissent are significant contextual elements in the judgment, the Supreme Court explicitly clarified that they are not the core legal issues determining the outcome of the bail applications.

Critics, however, argue that the top court’s judgment sets a dangerous precedent by classifying political dissent and protest speeches as acts of terrorism.

Conditional freedom that robs the right to speak

Supreme Court imposed strict conditions while granting bail to the Fatima, Rehman, Khan, Haider and Ahmed. Apart from the ₹2 lakh personal bond each with two local sureties of the like amount, the top court also gagged the five activists from speaking about any issue from any platform after their release.

Conditions also include that they are:

• Required to stay within the territorial limit of Delhi NCT for the pendency of the trial. Not allowed to leave the city without court’s permission. Any request for travel shall disclose reasons, which would then be considered by the trial court “strictly” on its “merits”
• Surrender passports if any. If there is no passport, then an affidavit to be filed to that effect. Furthermore, immigration authorities have been direction to prevent any exit from the country without the court’s permission
• Twice weekly check-ins at the Delhi Police Crime Branch police station. The police are then required to submit monthly attendance reports to court; Furnish full current address and all contact details with the investigating officer of the case. there must be a seven-day notice before any change to the same.
• Co-operate during the trial, appear at every date unless exempted by court and ensure they don’t act in any way to delay the same
• No witness tampering, or any contact with them at all – direct or indirect. Not allowed to participate in the activities of any group or organization linked to the subject matter of the present FIR/ final report
• Complete media gag
• Gag on attending any rallies – political or otherwise, physically or virtually till the conclusion of the trial
• Not allowed to distribute any posts, handbills, posters, fliers, banners
• “Maintain peace and good behavior.” Violation of this condition gives the police “liberty” to seek revocation of bail

UAPA comes a full circle

The Supreme Court’s judgment in Gulfisha Fatima vs State (2026 INSC 2) represents a ‘coming to a full circle’ moment for the Unlawful Activity (Prevention) Act (UAPA), 1967. The UAPA, which was originally meant to address “secessionist” activities, was later amended and rebranded as India’s anti-terror law.

Around 1962-63, the then Prime Minister Jawaharlal Nehru envisioned UAPA to act as a deterrence against secessionist ideologies and preserve national integration. In the backdrop of the 1965 India-Pakistan war, UAPA was primarily intended to tackle the strong secessionist movement in Tamil Nadu which wanted to be a sovereign state. It was followed by a series of preventive detention laws and, when India signed and ratified all major United Nation counter-terrorism conventions after 9/11, the UAPA was specifically amended in 2004 to align with the country’s international obligations.

The law, in its current avatar, is so vast and vague, that even expressing disaffection towards the state or affection for another state, as in the case of the three Kashmiri youth who were jailed under sedition charges for allegedly cheering for Pakistan’s cricket team when it won the 2021 T20 World Cup, is liable for prosecution.

When protest becomes an act of terrorism

Can protest speeches, public meetings and WhatsApp group membership constitute conspiracy under Sections 16–18 of the UAPA at the bail stage?

According to the Supreme Court: Yes, they can. Even if the protests were peaceful assemblies.

The Supreme Court’s January 5 judgement essentially redefined terrorism. Even though the judgment recognized freedom of speech as a protected right, it stopped where an allegedly pre-planned conspiracy for systemic violence began. Ironically, cases against BJP politicians like Kapil Sharma, who made incendiary speeches on the eve of the breakout of violence in Delhi in 2020, continue at a snail’s pace,

Yet, the January 5 judgement read: “The factual record placed by the prosecution repeatedly returns to a distinction that is central to the case: the differentiation between a conventional dharna and a chakka jam. This is not treated as semantics. It is treated as strategy.”

“A dharna may be expressive; a chakka jam, as alleged, is disruptive by design. The prosecution case is that the sustained choking of arterial roads, replication of blockade sites, and the movement of crowds from minority clusters into mixed population areas were not accidental expressions of dissent, but calibrated acts meant to generate confrontation, overwhelm law enforcement, and create conditions for violence,” it added.

The top court said Delhi Police did not rely on a “single speech, a single meeting, or a single blockade” to oppose bail, rather it relied on “a course of conduct, spread over weeks, involving repeated meetings, formation of coordinating bodies, issuance of directions, and alleged preparations for escalation.”

“The Court cannot, at the bail stage, segregate this course of conduct into isolated benign fragments and assess each in abstraction,” the judgment read.

The Supreme Court reiterated that “dissent and protest occupy a protected space in a constitutional democracy,” however, that protection does not extend to a design that involves “systemic disruption, engineered confrontation, and preparatory steps towards violence”.

“At this stage, the Court must resist from committing two errors. The first is to criminalise speech merely because it is politically charged. The second is to immunize a continuing course of conduct merely because it contains language of non-violence,” the judgment read.

“In the application of such law, the Court does not proceed on identity, ideology, belief, or association. It proceeds on role, material, and the statutory threshold governing the exercise of jurisdiction,” the judgment read. “…[the judgment] neither endorses the prosecution case nor prejudges the guilt of any accused,” the court said adding that it applied the law as it stands, “recognising that individual liberty must be protected, but that it must also withstand the legitimate demands of national security and collective safety.”

“This balance is not a matter of preference rather it is a matter of constitutional duty,” the court added.

Selective application of law

While the Supreme Court’s judgment could be seen as a mixed bag of relief for some accused, in the denial of bail to Imam and Khalid, the top court selectively applied its own judgement and those of the high court on free speech or even bail under section 43d of the UAPA.

In cases like Vernon Gonzalves, Shoma Sen, Arvind Kejriwal, Manish Sisodia, Javed Gulam Nabi Shaikh, Sheikh Javed Iqbal, the top court granted bail due to prolonged incarceration despite the bar under section 43D of the UAPA act.

On free speech, the Supreme Court in its 2015 Shreya Singhal judgment said that dissenting discourse is not a crime. In its Balwant Singh judgment, the court emphasized that shouting stray slogans like “Khalistan Zindabad” were not a crime.

In fact, the Delhi High Court granted bail to student activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha—co-accused in the 2020 Delhi Riots conspiracy case—and pulled up the Delhi Police for its “wanton use” of the UAPA.

In this case, the High Court clearly stated: “… in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril.”

“… the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less,” it added.

Process is the punishment

In the past decade, the State (or corporations) has often been accused of (mis)using the law to stifle dissent. In effect, making the process of law the punishment. Sedition (the old and new avatar), UAPA, defamation, Copyright Act are all being used against free speech.

The NewsClick founder editor Prabir Purkayastha was charged under the draconian UAPA for publishing “propaganda” reports on China that allegedly served to endanger the “sovereignty, unity and security of India.” He secured bail after seven months in custody after the Supreme Court held that his arrest was “invalid in the eyes of the law.”

Sedition, in its new avatar, has been used against climate activist Sonam Wangchuk, Ashoka University professor Ali Khan Mahmudabad, stand-up comic Kunal Kamra, satirists Madri Kakoti and Shamita Yadav better as Dr Medusa and Ranting Gola respectively, Bhojpuri singer Neha Singh Rathore, TV star and Big Boss winner Akhil Marar, a 20-year-old autorickshaw driver Sahil Khan and even Pushpa Sathidar, wife of the late actor Vira Sathidar, who was booked for merely reciting the acclaimed Faiz Ahmed Faiz poem ‘Hum Dekhenge’ at a meeting.in Nagpur in May 2025.

Even after sedition cases are dropped, the punishing process does not end, as the ordeal of Manipuri journalist Kishore Wangkhemcha, booked for speaking out about the struggles of leaders of Manipur or film maker Aisha Sultana, charged for criticising the Lakshadweep administrator, bears out..

Clearly, the price of dissent and critical thought is extremely high. And now, a Supreme Court order penalises peaceful protest and expression as acts of terror, effectively putting an undemocratic premium on the freedom to speak freely.

*About the Author: After an almost decade-long career as a photojournalist in Mumbai, Ritika now covers the Indian judiciary and hopes to simplify the law and decode the judiciary. Now based in Delhi, Ritika is a writer, part-time dreamer & full-time K-drama addict who escapes the city when she’s not bingeing on K-dramas.

Courtesy: Free Speech Collective

The post When Speech Becomes an Act of Terrorism appeared first on SabrangIndia.

So it is the historian in me that hopes that the Supreme Court’s decision to deny bail to both Sharjeel Imam and Umar Khalid as a document will be read ‘against the grain’ perhaps in the not too distant a future. One must today divorce hope from reason in order to this. Such an action is vital to our sanity today.

Those of us who were fortunate enough to be in the Delhi region in late 2019 early 2020, such as myself, were able to witness, if not participate, in one of independent India’s most creative, sustained, non-violent and therefore powerful movements against the Indian state’s intention to restrict definitions of a hard-won citizenship. The movement brought onto the streets, quite literally, large numbers of Muslim women who had rarely participated in public political life, and who sustained their movement for weeks, with little or no overt political support.

This reverberating sound of the National Anthem is the mark of Shaheen Bagh’s love for the country.
India is our nation and we our its citizens.
Come celebrate #JantakaRepublicDay pic.twitter.com/p96NWRngdp

— Shaheen Bagh Official (@Shaheenbaghoff1) January 26, 2020

Is it any wonder that young people were mesmerised by the hopes of that moment, that site, which experimented with new styles and repertoires of protest and communication? Is it any wonder that Sharjeel Imam and Umar Khalid, given their interest in historical research and their political awareness, were drawn to the movement, like many of their age and background?

Sharjeel Imam and Umar Khalid were no bomb-throwing revolutionaries. I taught both of them, and they impressed me with their intelligence, diligence and capacity for thinking differently. I did not always agree with the ideas they had. I was often irritated by their style of learning, which bordered on the irreverent. But like most JNU (and CHS) students, they were passionately attached to argument, driven by the elemental hunger to read, write, argue, and speak boldly, sometimes even giddily, of many things that had come into their grasp.

JNU’s mission was to provide that intellectual space where the young could take the risks of thinking, arguing, and arriving at conclusions, even dreams that may remain unrealised. This happened not only in our classrooms, and seminars, but in our canteens, messes, open spaces, and in the wonderful ‘philosophy of the night’ that went on into the wee hours in all our hostels, night after night.

Four years before the anti-CAA/NRC agitation, the media-manipulated vilification of the Jawaharlal Nehru University (JNU) and its student leaders including Umar Khalid and Kanhaiya Kumar was exposed in detail by Sabrangindia in reports that may be read here

Can we fault Sharjeel, Umar, Natasha, or Devangana for dreaming of a better world than the one our generation had left him? Many students from CHS were similarly gripped by the desire to build a new future. Our students enjoyed and appreciated the chance of framing questions, reading sources, and assessing ideas on their own. Some of these were harebrained, some shot through with brilliance. But CHS/JNU fostered spaces where these, and other contrary, ideas could be tried out, adopted, defeated in argument, or abandoned, without fear of reprisal.

Instead, Sharjeel and Umar have been incarcerated for five-plus- one more years of the most creative, productive years of their lives — all because of words they chose to use in public.

On this 75th year of our Republic, we must commemorate figures like Sharjeel and Umar who are paying a heavy price for their speech acts, ideas. We must never forget, that legions of others, who openly called for violence against other Indians, continue to enjoy their freedoms today, and even occupy public office — because they have the right names, and have the right political patrons.

We have become acutely aware of the contradictions that BR Ambedkar had warned us about. He had known that democracy was just top dressing in India. He knew that violent contradictions would erupt when the social structure of our inherently hierarchical, unjust society, undermined the Republic’s hard-won political freedoms and liberties.

As the insightful literary scholar, Rahamat Tarikere, has pointed out, India has a long history of producing some of the loftiest ideas, whether religious or not, but our social practice has never matched these ideals. What chance of a less inequitable world – I hesitate to use the more decisive ‘just’ and ‘equal’ — when the very people who are capable of dreaming that possibility, our young, are forced into a form of social death?

But I am confident that Sharjeel and Umar will emerge from these trials with all their ideals intact. In fact, I am sure, that even behind those prison walls, they think, read, dream, and survive, perhaps even transforming the oppressive space to which they have been condemned. Here I can do no more than cite the brilliant words of Mahmoud Dervish, the Palestinian poet:

It is possible
It is possible, at least sometimes
It is possible especially now
To ride a horse
Inside a prison cell
And run away….

It is possible for prison walls
To disappear,
For the cell to become a distant land
Without frontiers
What did you do with the walls?
I gave them back to the rocks.
And what did you do with the ceiling?
I turned it into a saddle.
And your chain?
I turned it into a pencil.

The prison guard got angry.
He put an end to my dialogue.
He said he didn’t care for poetry,
And bolted the door of my cell.
He came back to see me
In the morning,
He shouted at me.
Where did all this water come from?
I brought it from the Nile
And the trees?
From the orchards of Damascus
And the music?
From my heartbeat

The prison guard got mad;
He put an end to my dialogue.
He said he didn’t like my poetry,
And bolted the board of my cell.

But he returned in the evening:
Where did this moon come from?
From the nights of Baghdad.
And the wine?
From the vineyards of Algiers.
And this freedom?
From the chain you tied me with last night,
The prison guard grew so sad…
He begged me to give him back his freedom.

Be with us again, in freedom, Sharjeel and Umar.

Be with us again, in freedom, Sharjeel and Umar.

(This post by the author, Janaki Nair taught at the Centre for Historical Studies at Jawaharlal Nehru University until her retirement in 2020 was posted on social media and may be read here.)

Related:

After Five Years in Jail, Bail Still Barred for Two: Supreme Court denies bail to Umar Khalid and Sharjeel Imam in Delhi riots case

Delhi High Court dismisses bail pleas of Umar Khalid, Sharjeel Imam, and others in 2020 Riots Conspiracy Case

Jailed Without Trial: Umar Khalid’s 4-Year Ordeal Ignites Solidarity

The post JNU Teacher to her Jailed Students: ‘Be with us again, in freedom, Sharjeel and Umar’ appeared first on SabrangIndia.

The verdict was delivered by a Bench of Justice Aravind Kumar and Justice N.V. Anjaria, which held that although prolonged incarceration demands constitutional scrutiny, the statutory embargo under Section 43D(5) of the UAPA continued to operate against Khalid and Imam, as the prosecution material disclosed a prima facie case against them.

At the same time, the Court stressed that all accused are not on the same footing, and that a role-specific, accused-specific analysis was constitutionally necessary even in conspiracy cases — a principle that led to bail being granted to the remaining five appellants.

The judgment was reserved on December 10, 2025, and arises from appeals challenging the September 2, 2025 judgment of the Delhi High Court, which had denied bail to all seven accused.

‘Qualitatively Different Footing’: Why bail was denied to Khalid and Imam

Reading from the operative portion of the judgment, the Bench made it clear that it had “consciously avoided adopting a collective or unified approach”, instead undertaking an independent examination of the role attributed to each accused.

According to LiveLaw, the Court recorded its satisfaction that the prosecution material, if taken at face value as required at the bail stage, disclosed a “central and formative role” played by Umar Khalid and Sharjeel Imam in the alleged conspiracy behind the February 2020 violence in Northeast Delhi.

“The material suggests involvement at the level of planning, mobilisation and strategic direction, extending beyond episodic or localised acts,” the Court observed.

On this basis, the Bench concluded: “This Court is satisfied that the prosecution material discloses a prima facie allegation against the appellants Umar Khalid and Sharjeel Imam. The statutory threshold under Section 43D(5) stands attracted qua these appellants. This stage of the proceedings does not justify their enlargement on bail.”

As reported by Bar & Bench, the Court cautioned that to disregard the distinction between central roles and facilitatory roles would itself result in arbitrariness, even in cases alleging a common conspiracy.

However, the Court clarified that Khalid and Imam may apply for bail afresh either:

• after the examination of protected witnesses, or
• after the completion of one year from the present order.

Both accused have now been in custody for over five years, without the trial reaching the stage of recording evidence.

Arguments raised by the defence

1. Umar Khalid: ‘No violence, no presence, no terrorist act’

During the hearings, Senior Advocate Kapil Sibal, appearing for Umar Khalid, mounted a sustained challenge to both the factual foundation and the legal characterisation of the allegations.

As reported by LiveLaw, Sibal had argued that there was no evidence linking Khalid to any act of violence, and emphasised that Khalid was not even present in Delhi when the riots broke out. According to the defence, this fact alone fatally undermined the allegation that Khalid played any operational role.

A central plank of the prosecution case rested on a speech delivered by Khalid in Amravati, Maharashtra. Sibal read out portions of the speech to demonstrate that Khalid had expressly called for non-violent, Gandhian methods of protest.

“We will not answer violence with violence… We will meet violence with non-violence,” Sibal quoted from the speech.

Sibal argued that calls for “chakka jams” or road blockades are legitimate forms of civil disobedience in a democracy, and that such methods have historically been employed across political movements, including the farmers’ protests, without being labelled as terrorism.

Specifically challenging the invocation of the UAPA, Sibal submitted that Section 15 cannot be stretched to criminalise protest activity, and that even highway or rail blockades do not amount to “terrorist acts” unless accompanied by a clear intent to threaten the country’s economic security or sovereignty. To do otherwise, he warned, would dangerously collapse the distinction between dissent and terrorism.

Despite these submissions, the Supreme Court held that at the bail stage, it could not weigh defence rebuttals, and confined its enquiry to whether the prosecution material, taken at face value, crossed the statutory threshold.

2. Sharjeel Imam: ‘In custody during riots, speech is not violence’

Appearing for Sharjeel Imam, Senior Advocate Siddharth Dave similarly argued that the prosecution’s case was built on attribution and inference rather than direct evidence.

According to Bar & Bench, Dave pointed out that Imam was already in custody in other cases at the time the riots occurred, making it impossible for him to have participated in any on-ground violence or mobilisation.

Dave acknowledged that Imam’s speeches may have been controversial or unpalatable, but argued that political speech, however provocative, does not automatically amount to incitement to violence. He cautioned against equating dissenting or radical speech with terrorist intent.

He also flagged the danger of pre-trial stigmatisation, noting that Imam had been branded an “intellectual terrorist” by the State despite there being no conviction or completed trial.

The prosecution, however, relied heavily on video clips of Imam’s speeches, particularly those in which he spoke about cutting off the “Chicken Neck” or Siliguri corridor, the narrow passage connecting the Northeast to the rest of India.

As reported by LiveLaw, the Delhi Police alleged that these speeches showed an intent to:

• paralyse the functioning of the State, and
• attract international attention during the visit of then US President Donald Trump in February 2020.

The Supreme Court accepted that these allegations, taken at face value, were sufficient at the bail stage to constitute a prima facie case, while clarifying that it was not expressing any final opinion on guilt.

Bail Granted to Five Accused: Liberty with stringent conditions

In contrast, the Supreme Court granted bail to Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Mohd. Saleem Khan and Shadab Ahmed, holding that their continued incarceration could not be justified on parity with Khalid and Imam.

For Gulfisha Fatima, Senior Advocate Abhishek Manu Singhvi made a pointed submission, reported by LiveLaw, that keeping students and young activists in jail for over five years without the trial even beginning makes a “caricature of our criminal justice system”.

Singhvi highlighted that co-accused Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha were granted bail in 2021 on similar allegations, yet Fatima continued to remain incarcerated.

While granting bail, the Court clarified that the relief does not dilute the allegations. According to LiveLaw, the Bench imposed twelve stringent bail conditions, warning that any misuse of liberty would permit the trial court to cancel bail after hearing the accused.

Details of the judgment pronouncement

1. UAPA and Bail: Delay is not a ‘trump card’, says Court

One of the most closely analysed portions of the judgment concerns the relationship between prolonged incarceration and bail under UAPA. Justice Aravind Kumar observed, as reported by LiveLaw, that in prosecutions under special statutes like the UAPA:

• delay in trial cannot function as a “trump card” that automatically overrides statutory restrictions on bail.

However, the Court simultaneously acknowledged that:

• delay serves as a trigger for heightened judicial scrutiny, especially where incarceration is prolonged.

The Bench clarified that Section 43D(5) does not completely oust judicial scrutiny, and courts must conduct a structured enquiry, limited to:

1. whether the prosecution material, if accepted at face value, discloses a prima facie offence;
2. whether the role attributed to the accused has a reasonable nexus with the alleged offence; and
3. whether the statutory threshold for denial of bail is crossed.

Crucially, the Court reiterated that defence arguments and rebuttals cannot be examined at the bail stage, reinforcing the asymmetrical nature of bail adjudication under the UAPA.

2. Article 21, speedy trial and the limits of judicial intervention

The judgment repeatedly returns to Article 21 of the Constitution, which guarantees the right to life and personal liberty.

Justice Kumar noted that:

• pre-trial incarceration cannot be equated with punishment, and
• the right to a speedy trial is an integral facet of Article 21.

At the same time, the Bench held that in UAPA cases, Article 21 must operate within the statutory framework, and that the Court cannot substitute legislative judgment merely because detention is prolonged.

As reported by Bar & Bench, the Court stated that: “The UAPA as a special statute represents a legislative judgment as to the conditions on which bail may be granted at the pre-trial stage.”

This formulation, while doctrinally consistent with prior UAPA rulings, has been read by legal observers as reinforcing the exceptional nature of liberty under anti-terror laws, even where trials remain stalled for years.

3. Broad reading of ‘terrorist act’ under Section 15

The Supreme Court also rejected a narrow interpretation of Section 15 of the UAPA, holding that “terrorist acts” are not confined to physical violence or loss of life.

According to LiveLaw, the Court held that the provision also covers acts that:

• disrupt essential services, or
• threaten economic stability.

The statutory scheme, the Court noted, extends culpability even to preparatory and organisational acts, significantly broadening the scope of UAPA prosecutions.

Directions to expedite trial

Recognising the constitutional implications of prolonged incarceration, the Supreme Court directed the trial court to ensure that the examination of protected witnesses proceeds without delay, and that the trial is not unnecessarily prolonged. However, the Court did not fix any outer time limit for completion of the trial.

Context: Five years of incarceration

The case arises from the February 2020 communal violence in Northeast Delhi, which left 53 people dead, hundreds injured, and large-scale destruction of property.

Over the last five years, the Delhi Police has pursued a “larger conspiracy” theory, focusing largely on student activists and organisers of anti-CAA protests — an approach that has drawn sustained criticism from civil liberties groups.

Notably, as reported in Indian and international media, a group of US lawmakers recently wrote to Indian Ambassador Vinay Mohan Kwatra, expressing concern over Umar Khalid’s prolonged pre-trial detention, highlighting the growing global scrutiny of the case.

Today’s ruling reinforces a consistent judicial position that while individual differentiation among accused is constitutionally necessary, the UAPA’s elevated bail threshold continues to operate as a near-insurmountable barrier for those alleged to occupy “central” roles — even after half a decade of incarceration without trial.

It leaves unresolved the deeper constitutional question that continues to haunt UAPA prosecutions: at what point does prolonged pre-trial detention itself become punishment?

Related:

The Word is the World: How the Delhi riots conspiracy case ritualises silence

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 Police on Trial: Three court orders reveal collusion, cover-ups, and custodial torture by police officers during 2020 Delhi riots

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

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

The post After Five Years in Jail, Bail Still Barred for Two: Supreme Court denies bail to Umar Khalid and Sharjeel Imam in Delhi riots case appeared first on SabrangIndia.

The judgment did not come out of thin air. It followed months if not years of ‘instant justice’ enabled by bulldozers, in well-publicized incidents as far back as 2021 in Uttar Pradesh, Madhya Pradesh, Gujarat, Delhi, and Haryana, almost always following communal incidents or protests. Many, most obviously in the named jurisdictions, were occurring at night, without rehabilitation, and impacted Muslim, Dalit, and migrant communities disproportionately.

A year has passed. The question to ask is whether these guidelines changed state practice, or whether bulldozers continued to operate in ways that undermined the rule of law – often ways that reinforced reports that we, at CJP and Sabrang India have already documented.

The Judgment that Promised a Reversal

When it rendered its decision in November 2024, the Supreme Court intended to firmly ground demolition practices within constitutional limits. The Bench reiterated that demolitions cannot occur without a statutory basis and must abide by the basic tenets of due process: individuals should be given a notice tailored specifically to them, an opportunity to respond promptly to the notice, a hearing at which to be heard in a meaningful way, and a speaking order evidencing the administrative rationale.

It also spoke to the absurdity of dealing with rehabilitation as an afterthought, especially when it involves vulnerable communities. While some of these principles had stalked Indian law before the decision, the judgment unified them all in one framework during a time when bulldozer-led punitive state action was becoming more commonplace. It indicated we would be seeing efforts to recalibrate the conduct of state institutions in the following year, while signalling to us that we should expect greater adherence to procedural safeguards.

A Year on the Ground: Patterns of Demolition Post the Gavai-Viswanathan verdict

Although in November 2024, the Supreme Court reiterated that demolition cannot take place without notice, a hearing, or rehabilitation, the next twelve months were characterised by a number of drives across states which showed a decidedly different reality on the ground: Demolitions were limited by varying degrees in reliance of this judgement and occurred in urban renewal, and post-arson and riot punitive acts, as reflected in CJP’s and Sabrang India’s reporting, the list below illustrates how state practice was inconsistent, replicating the very failure of procedures the Court had attempted to rectify.

• March 2025

Prayagraj, Uttar Pradesh

A key legal development in the aftermath of the judgment occurred in Prayagraj when the Supreme Court awarded ₹10 lakh in compensation each to six residents whose homes were demolished without due process. As reported by Sabrang India in “Supreme Court slams Prayagraj demolitions…”, the Supreme Court found that the Prayagraj Development Authority did not adhere to the statutory due process when demolishing the homes, thus confirming the long-held position of the demolished families. While the Supreme Court’s intervention was valuable, it occurred years after the demolitions happened, indicating a trend where judicial relief is only provided after the damage has already been done.

• May 2025

Madrasi Camp, Delhi

In Delhi, the demolition of Madrasi Camp in Jangpura has once again raised questions about whether the municipality is conforming to the Supreme Court’s guidelines. As Sabrang India’s article, “Madrasi Camp demolition: CPIM Delhi demands halt…” states, residents asserted that they did not receive a substantial notice and were neither promised nor consulted about rehabilitation. The demolition was carried out with a significant police force present, raising apprehensions that evictions continued in the capital even after the verdict, without full compliance with procedural requirements.

• April – May 2025 

Chandola Lake, Ahmedabad

Ahmedabad’s anti-encroachment drive around Chandola Lake was one of the biggest demolitions in the post-judgment year. In Sabrang India’s coverage of the same event (“Gujarat HC refuses stay…”), it noted that the Ahmedabad Municipal Corporation was clearing structures that were predominantly occupied by Muslim residents, under the Gujarat High Court judgment, as it pertained to reclaiming the lake. Though the recourse to the Gujarat High Court challenged the practice, it did not specifically cease the demolition of the houses, nor addressed the rehabilitation of families or just a simple notice.

• March – April 2025 

Nagpur, Maharashtra

The destruction of Fahim Khan’s home in Nagpur highlighted anxieties over punitive administrative action; residents of Nagpur argued that the short notice period of 24 hours did not provide adequate due process. Sabrang India’s report, “Demolition of Fahim Khan’s home…” noted the demolition was significant in the local political climate and raised even more questions over the motive and process in a post-judgement political landscape.

• January 2025 

Dwarka District Islands, Gujarat

In the Dwarka district, clearance operations ordered by the administration after floods impacted fishing communities and places of religious worship. As Sabrang India reported, houses, community shelters, and several mazars and a dargah were demolished. Residents reported that all notices received came too late to counter the action adequately, which instead made it one of the most significant coastal demolitions this year.

• November 2025 

Gurugram, Haryana

In Haryana, the demolition of a longstanding Dalit settlement located on Old Delhi Road exemplified how marginalized communities are still subjected to abrupt unilateral administrative action after the Supreme Court’s ruling. Residents argued that they had not been given the promises regarding rehabilitation, and that they were not given sufficient opportunity to contest the eviction.

• May 2025 

Ujjain, Madhya Pradesh

In Ujjain, the Ujjain Development Authority initiated a demolition campaign along Mahakal Road. Despite official claims that a notice had been issued months ahead of time, residents affected by the demolition vehemently disputed the timing and sufficiency of the notice. Although the High Court had engaged in surveillance of certain aspects of the proceedings, details of the operation also highlighted the disparity of attention to due process in these matters throughout the state.

• Other States Across 2025 

In addition to these key events, there were many additional demolitions, albeit smaller in scale, that further complicated the patterns of uneven compliance with the judgement safeguards. In Delhi, several slum clusters in Mangolpuri, Seemapuri, and near the Yamuna floodplains were partially demolished from June to September 2025. Residents in these areas contended that municipalities referenced notes in affidavits that had never been served individually to residents. Additionally, in UP, families were told that demolitions after flooding in Prayagraj and Varanasi were justified as “emergency measures.” Families maintained that, especially in Prayagraj, there appeared to be selective enforcement and confusion about categorizing the land as within the floodplain or “vacant.” In Kashmir, demolitions after counter-insurgency operations in the Pulwama region. Although families claimed there were no formal charges against them, the demolitions left families without a home, which drew civil liberties objections. Finally, in Punjab, demolitions associated with NDPS-related investigations were conducted, which resulted in a troubling blurring of the lines between crime-control and punitive administrative action. This suggests that bulldozer governance had begun to arrive in new legal categories, disjointed from purely communal-based incidents.

Cumulatively, these expanded incidents along this timeline show that although some agencies claimed procedural compliance, the reality in most cases still demonstrated the same post-incident demolitions, disputed notices, crude procedure, and inadequate rehabilitation, all features that were squarely inconsistent with the principles reaffirmed in the judgment.

Due Process and Rule of Law: What the Year Revealed

The demolitions conducted across states during the year following the judgment demonstrate how the gap between constitutional protections and public administration remains intact. The Supreme Court upheld the paramount importance of notice, hearing, and rehabilitation, yet in most reported drives the involuntary responses relied on notices that were either insufficiently raised, or disputed, sometimes delivered to affected households on the night before demolition or after machinery had arrived.

Hearings were virtually absent, and affected families were united in reporting that they were not afforded any opportunity to present a defence to an allegation of encroachment or illegality. Rehabilitation – outlined specifically by the Court for vulnerable groups – was rarely planned, and never actualized. The judicial responses, when they occurred, were often post-facto rather than pro-facto: the most direct orders, such as the imposition of the Supreme Court’s admonition of the Prayagraj demolitions, and the Orissa High Court ruling on the Cuttack community centre, came months, if not years, after the demolition. The High Court made efforts to call for affidavits or provide interim stays on demolitions, but without a method of enforcement, these steps amounted to little more than symbolic acknowledgment of demolition abuses. The judiciary did not have a mechanism for monitoring the demolitions or following up on the assurances to protect vulnerable families. In the absence of enforcement and in the absence of a court interceding pro-facto, routine use of bulldozing remains an option for administrative attention.

All of the incidents throughout the year show that while the courts have provided clarity of law, process continues to be treated by executive branch actors as a process of ritual and not of constitutional obligation that depends on and can range from excesses of the political or administrative context of where a demolition occurs to focusing on the time and nature of the demolition process, such as while in progress, an act undertaken to restore public order through law enforcement, through ordinary adjustments, including diminished due process for the loved ones of the deceased.

Judicial vs Executive Approaches: A Deepening Divide

In the year following Gavai, we saw an increasingly divergent distance between judicial statements of due-process standards and the executive branches’ practices of adhering to those standards. Courts certainly exhibited, especially in a few notable cases, a willingness to hold state actors accountable: Justice Abhay Oka’s Supreme Court Bench, for example, not only condemned Prayagraj’s unlawful demolitions, but also awarded damages and called for an inquiry to hold the officials accountable. Further still, the Orissa High Court ordered to recovery from the former officer in the Cuttack community-centre case. What emerged among a few courts was the express judicial acknowledgment that demolitions without notice and hearing were not simply “administrative” violations, but constitutional violations. Courts, however, did go so far as to issue contempt notices, such as was seen in the proceedings following the demolitions of the Goalpara community centre, in Maharashtra, and in Delhi, indicating that litigants and judges were considering the guidelines proposed in the judgement, as enforceable obligations. Exceptionally, of course, given how rarely an executive agency is sanctioned for non-adherence to due-process protections.

For most of the demolitions and drives in Madhya Pradesh, Gujarat, Haryana, and parts of Delhi and Uttar Pradesh, no disciplinary investigations, prosecutions, or public censures were found. In a few cases, officers were transferred soon after a disputed demolition, but these were simply transferred and not punitive. Even when courts demanded accounts from officials or demanded affidavits, the lapses began to fade into the mass of administrative inertia without consistency or follow-up. The unpredictable but frequent comparisons between the court’s occasional harsh language and the executive branch’s nearly total impunity show the central tension of the post-Gavai year: the words could be said and stated clearly from the Bench, but they could easily be replaced by immediate political, policing, or developmental goals on the ground without a structural mechanism to enforce them.

Constitutional Lens: Articles 14, 21, and 300A

The demolitions conducted across states in the post-judgement timeframe repeatedly placed strain on the constitutional protections outlined in Articles 14, 21, and 300A. Article 14 had more visible effects, where enforcement patterns appeared uneven with bulldozers appearing fastest in Muslim-majority bastis, Dalit settlements, migrant clusters, and other communities with precarious housing. The patterns of the law, particularly the selective invocation of laws regarding encroachment, often within hours of community violence, politicians, and other events, suggested that the police powers were used in a discriminatory manner, informed less by planning considerations and more by the social makeup of neighbourhoods.

Article 21, which underpins the right to life and dignity, is equally undermined. Eviction of temporary structures without any notice does more than involve the destruction of premises; it obliterates the social architecture of family life—livelihoods, safety, and considerations of community. Reporting in The Indian Express of demolitions in Nagpur, Ujjain, Prayagraj, and Delhi were made in consideration of families rendered homeless overnight, with a complete lack of accommodation, with implications for precarious living conditions and a vulnerability to other harms, and dispossession, especially without provision for hearing or rehabilitation in cases of demolition, implicitly indicates a constitutional injury.

Article 300A of the Gavai judgment was arguably the most consistently breached. While state authorities cited legislative authority for demolition, the lack of a fair process, advance notice, and transparent decision-making weakened the “authority of law” mandated by the Constitution. The year’s data suggest that, notwithstanding a robust judicial restatement, the constitutional principles that seek to constrain state authority remain tenuous in the face of administrative urgency or political pressure.

When Landmark Judgments Remain Symbolic

The post-judgement reality reflects a larger trend in a defraying Indian constitutionalism, where even the most impactful judgments risk being reduced to mere symbols. The doctrine implemented in D.K. Basu did not stop custodial torture; Tehseen Poonawalla did not stop lynching; Shreya Singhal did not stop the ongoing usage of Section 66A years after its invalidation. Likewise, the decision, which celebrated the re-centering of due process in demolition practice, has not transformed the habitual behaviour of entrenched administratively.

One reason for this is structural: Indian courts, as a general rule, only intervene when something is brought before them, typically well after demolitions have occurred. As a number of petitions noted by LiveLaw in 2025 highlight, families only arrive in court because their homes are gone – effectively turning the judiciary into an after-the-fact remedial body instead of a preventative one. High Courts occasionally interject with some stern words, but even orders with some public interest stay orders only deal with the facts and circumstances of the individual case.

The political context is also important. In electoral and police discourse, bulldozers have gained a symbolic meaning, viewed as a form of “decisive/aggressive governance” against a select section, India’s marginalized, especially Dalits, Adivasis and the Muslim minority. This symbolism lessens the normative weight of judicial reasoning, giving officers the belief that constitutions are secondary to political mobility. In this context, even a decisive and pathbreaking judgment is susceptible to becoming a citation rather than a restraint.

What Will It Take to Replace the Rule of Bulldozer with the Rule of Law?

A significant transition from bulldozer-led governance to rule-of-law-based governance necessitates more than occasional judicial reprimands. It requires institutional mechanisms that facilitate the provision of procedural safeguards before building demolitions occurring, not after the fact. Mandatory reporting protocols, both before demolitions and immediately following demolitions, that include documentation of public notices, hearings, and rehabilitation plans would create a minimal record of accountability. The reports could be subject to audits by judicially appointed committees or independent agencies.

Courts may also be able to use some form of structured monitoring (as exists in certain environmental and prison-reform litigation) of the state parties in future cases. The state government could make periodic affidavits of compliance, with the threat of civil contempt for systemic non-compliance, and the high courts do registry tracking of demolition cases and violations of the judgement framework by the agency.

Furthermore, executive accountability should reach beyond symbolic shifts of power to committees that was entirely outside of the executive altogether; the state approximate automatic inquiries into demolitions that lack documented due process, the recorded public findings, along with other penalties, serve as deterrents. States may also want to consider codifying the norms in Statutes or regulations, or using agency policies, making these administrative actions defined offences for non-compliance. It is also necessary that rehabilitation be planned and adequately funded. Due process will only be administratively seen as part of the professional duty when officers are routinely and predictably held accountable for the compliant or non-compliant forms of their practice.

A Strong Judgment met With Structural Impunity

The judgment in November 2024 reiterated the core constitutional guarantees: no demolition without prior notice, an opportunity for a hearing and a fair process. It was a principled and timely expression of limits on the powers of the state, especially in the moment when bulldozers had been commonly adopted as some form of immediate administrative response. Yet the following year will demonstrate how even strong jurisprudence may wither away in a context of systemic impunity.

Policies of demolition continued across the states, with at times uneven practices or minimal respect for due process. In a great number of cases, the courts provided relief only after homes had been demolished or schools were turned into rubble. What usually accompanied these rulings were strong observations from the Supreme Court and some High Courts, and an order of compensation, but those decisions were usually either limited in nature or retrospective. State agencies suffered virtually no immediate consequences for their actions, and without institutions capable of monitoring enforcement, the guidelines remained aspirational.

The judgement also highlights the growing disconnect between constitutional principles and everyday executive decision-making. Without continued monitoring, transparent accountability, and meaningful legislative frameworks, a robust ruling cannot control entrenched bureaucratic practices. The promise we have enshrined in the Constitution is hanging in doubt so long as the bulldozer can demolish traditional patterns of adherence to due process.

The judgment may be read below –

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

Related: 

Encroachment or erasure? India’s demolition wave and the law

‘An eye for an eye’- new law of the land for the Muslim minorities in India?

Muslims in the new India: How one week showcases their escalating persecution

Bulldozer Justice: How Unlawful Demolitions are Targeting India’s Marginalised Communities

The post When the Rule of the Bulldozer Outpaces the Rule of Law: One year after this landmark judgment appeared first on SabrangIndia.

The Supreme Court also directed a special court to conduct trial on a day-to-day basis to record the statements of the nine remaining witnesses. Langa has been ordered to extend full cooperation with the proceedings and seek no adjournment on the ground that his petition seeking the case be quashed is pending. The Enforcement Directorate (ED) has been directed to file a status report on compliance with these directions. The matter has been listed for further consideration on January 6.

Langa had been arrested by the Gujarat Police last year in a case involving allegations of Goods and Services Tax (GST) fraud and was subsequently booked in multiple cases. The ED later registered a case against him under the Prevention of Money Laundering Act (PMLA). It was senior advocate Kapil Sibal appeared for Langa. Opposing the plea, Solicitor General Tushar Mehta alleged that Langa had extorted money, claiming that threats were made to publish adverse material if payments were not made. “A journalist is found to be extorting money… We want to file an additional counter,” Mehta told the court.

Sibal objected to the move, stating that the ED was seeking to change its stand. He argued that allegations of “Rs 68-crore fraud” were exaggerated, asserting that “it is not even Rs 68 lakh.” Sibal further pointed out that no charge sheet had been filed in the predicate offence forming the basis of the PMLA case. “I have been in custody since October 2024. For what offence? It is not murder,” he submitted, calling allegations of influencing witnesses “shocking”.

Sibal also alleged that crucial documents had not been furnished to the defence, stating that there was no supplementary complaint and that the prosecution could not “have it both ways”. Finally after heated exchanges in court and taking note of the fact that only nine witnesses remain to be examined, the court granted interim bail. During a brief exchange after the order, Mehta reiterated the allegation of extortion, to which Sibal responded by suggesting that industrialists were targeting journalists. Mehta denied any political motive, stating that the prosecution was acting purely in a professional capacity. When the exchange escalated, the CJI intervened, stressing that the trial must not be delayed and cautioning Langa against misusing his position as a journalist. Sibal responded that any such violation would be grounds for cancellation of bail.

The Gujarat high court had denied bail to Langa following which he had approached the Supreme Court.

Related:

“This system breaks the body when it cannot break the spirit” — Ipsa Shatakshi on her jailed husband, journalist Rupesh Kumar Singh

One more attack on the Media: Local journalist thrashed and urinated upon by railway police, UP

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

The post Interim bail to Gujarat journalist Mahesh Langa: SC appeared first on SabrangIndia.

The Court’s perspective on this issue brings to bear a number of important constitutional issues that need to be addressed immediately. Firstly, having access to content related to “obscenity” linked to the Aadhaar number will also mean that all online anonymity will cease to be protected and, in effect, this will increase the amount of control given to the government regarding what individuals are allowed to view and/or post online. Secondly, since the meaning of “obscenity” has always been subject to personal opinion and moral bias, if the Court continues to follow a technological enforcement of this concept, it will result in an enormous increase in the amount of government control over online spaces such as YouTube and other OTT platforms and, ultimately, over independent creators.

From the Ranveer Allahabadia Matter to Systemic Control

The Court’s changing view can be traced back to a case involving Ranveer Allahabadia, a YouTuber accused of producing “obscene” and “immoral” video content. This case raised the question of whether the legal rules and regulations currently in effect were sufficient to govern such content. As stated in the Supreme Court Observer respectfully, it appeared as though the Court was more concerned with the potential risks posed by unregulated digital content than with determining whether the petitioner was harmed by the defendant’s content. A similar finding was reported in the Global Freedom of Expression case report from Columbia University, which stated that the petitioner did not present evidence of legal harm, but instead framed the issues through the lens of moral panic.

Following this, the positions taken by the Supreme Court became increasingly broad, culminating in a March 2025 request by the Court to the Union government to think about enacting a law creating a national standard for “online obscenity”. In doing so, the Court transitioned from addressing the content grievance in a singular context to calling for a systematic legislative approach to achieve the same. The Court stated that India lacked a neutral, independent regulatory authority to oversee online content.

In late 2025, the ongoing confusion within the legal framework surrounding Aadhaar culminated in the formulation of a very specific concept regarding how Aadhaar should be used as the basis for age verification for the purposes of preventing minors from accessing pornographic materials. This was not simply a passing comment or procedural matter but was rather a comprehensive strategy of linking an individual’s access to online material directly to an individual’s biometric identity through Aadhaar’s use as an age verification mechanism.

The March 2025 Direction and the Government’s Parallel Initiatives

The Supreme Court’s March 2025 directive to the Executive branch of the Union Government came at a time when the Executive branch had been assessing the types of control that it might use to regulate digital content. Witnesses described that the Ministry of Information and Broadcasting was looking into creating regulations that would provide new rules for the regulation of “perverse user-generated content,” which was echoed by Solicitor General Tushar Mehta, who had testified to the Supreme Court.

At the same time, there was an effort on behalf of the Central Government to push out an Influencer Code, resulting in concern over the lack of public consultation. The Internet Freedom Foundation recorded those concerns in its report and called for a consultation on the matter. The report can be read here.

Many parties were warning that the Supreme Court’s strong push for new legislative enactments could have a chilling effect on legitimate online speech, with reports in The Hindu explaining this matter and how it combined with the earlier actions by the Executive branch indicating an increasing amount of judicial interest in the regulation of social media, and the ability of the Supreme Court to regulate online speech.

Therefore, what once appeared to be one case of litigation has been seen to be braided into a more significant regulatory push. The Supreme Court and the Executive branch are seen to mutually reinforce each other’s concerns regarding digital content.

Obscenity as a Legal Category: Colonial Morality in Digital Form

India’s obscenity doctrine has its origins in the pre-constitutional era. The Interpretation of Section 292 in the IPC has been based on the moral standards of Victorian England, in how sexual expression was viewed as corruptive. Although the Supreme Court has attempted to modernize the definition of “obscene” in Aveek Sarkar v. State of West Bengal by moving from the Hicklin test to current community standards, the concept of obscenity remains the most unclear and controversial definition in Indian Law.

Traditionally, the word “obscene” has been a means to censor the expression of LGBTQ+ individuals, feminists, those providing information about reproductive health, those who produce artistic works and literature, and people who provide sex education. By using the same definition of obscenity to create and regulate content within the digital space, these definitions will encompass many types of legitimate speech, i.e., queer content, experimental art, sex education content being made on YouTube, and narratives of survivors.

Because spaces for digital creators, i.e., YouTube and OTT platforms, are some of the only ways that individuals can currently communicate with large audiences that are not already censored within the media through either governmental control or the NBDSA, independent creators possess the unique ability to produce their content on these platforms without any type of government interference. By establishing obscenity regulations, the autonomy that independent creators currently possess would be lessened, allowing the government to indirectly suppress dissent, satire, and criticisms of the established cultural/ethical norms of society, under the guise of “protecting” minors.

Aadhaar-Based Age Verification: The Constitutional Faultlines

The Court’s finding that the Aadhaar system could be used as an age gate for virtual media raises significant constitutional issues.

Article 19 (1) (a) grants individuals a right to receive information as well as to express themselves. Using Aadhaar to authenticate access to digital content destroys the ability to remain anonymous and connects people’s viewing patterns with their biometric identity. Because of this linkage, individuals may feel deterred from viewing and/or interacting with material that is sensitive in nature, including material related to political criticism, mental health, LGBTQ resource issues, and sexual education.

Article 21 requires that any encroachment upon an individual’s right to privacy must meet the proportionality tests outlined in Justice K.S. Puttaswamy v. Union of India. Aadhaar-based verification of an individual’s age does not meet these criteria as it is neither required nor proportionate. Alternative methods of age verification that do not require individuals to disclose their identities, such as anti-fraud age verification or token-based confirmation of age, may serve as less invasive methods.

Article 14 addresses the issue of classification. Because obscenity is a subjective classification and is inconsistently applied across jurisdictions, an identity-linked filtering system allows arbitrary and disparate restriction of content. Thus, material labelled as “immoral” or “perverse” can disproportionately affect marginalized producers of content, as well as LGBTQ related materials, political satire, or criticisms of majority morality.

Globally, similar types of legislation have been challenged and have been ruled unconstitutional in court. In the U.S., age-verification laws in Utah, Arkansas, and Texas were found to violate an individual’s right to privacy by imposing a chill on lawful speech. Additionally, the Digital Economy Act in the U.K. abandoned the use of age verification due to privacy concerns and the difficulty of implementing that scheme. The General Data Protection Regulation (GDPR) of the EU presumes large-scale identity verification in order to access content as a violation of existing privacy law. Finally, Aadhaar-based filtering is significantly more intrusive than any other methodology described above and places India outside the realm of established international norms based on rights.

Who Classifies Obscenity?

In what is likely the most important question raised by the Court’s recent remarks, the issue of determining what constitutes obscenity remains unresolved. While the Court has suggested that a neutral and independent body should make this determination, the historical patterns of regulatory bodies in India indicate that there will be an ongoing struggle for executive supremacy over regulatory bodies. Even self-regulatory agencies are often placed under significant amounts of state pressure, as evidenced by SCObserver’s analysis of takedown jurisprudence found in Wikimedia Foundation v. ANI and pointing to the inherent risk that any regime to classify material as obscene will be manipulated by the political elite in a country where the lines between nationalism and morality have become increasingly unclear. Therefore, it is highly probable that any form of content that has been deemed ‘anti-national’, ‘anti-authority’, or ‘anti-Indian’ will likely be categorized with what is generally regarded as immoral.

The Political and Practical Risks: Can Balance Exist?

Although it is almost impossible to find a balanced approach to controlling minors from unlawful exposure to cyberspace content while at the same time protecting individuals’ right to free speech, the current regulatory developments within India indicate that finding a true balance is aspirational at best. Increasing pressure from the governing body and the continual expansion of the IT Rules, as well as significant interest in ensuring traceability of cyber content, lack of information regarding reasons for user information withdrawal, and draft regulations for influencer(s) will only serve to establish an overwhelming level of executive control over the speech and behaviour of individuals within cyberspace.

In this context, obscene content provides an excellent opportunity for state intervention by way of protecting children but ultimately provides an opening for vague state regulation of all forms of expression. Such an increase in state authority will rarely decrease, as has been pointed out by many authorities in constitutional law who cautioned against the expansion of state power.

Safeguards against a Moral-Political Regime

The Supreme Court’s development of a new anti-obscenity regime should include critical safeguards, including:

1. a transition from ‘moral’ definitions to ‘harm’ based definitions;
2. an independent and accountable regulatory authority not influenced or dominated by the Executive;
3. a requirement for all regulations to be developed with transparency and public consultations;
4. a strong commitment to continuing judicial review over takedown requests; and
5. a prohibition on access to content via Aadhar-based identity links.

If these safeguards are not implemented, India risks creating a system where the use of morality as a justification for censorship, identity as a currency for realizing one’s right to access information, and a re-definition of digital public spaces under the control of State powers occur.

The judgment in Aveek Sarkar v. State of West Bengal can be read here:

The judgment in Justice K.S. Puttaswamy v. Union of India can be read here:

The judgment in Wikimedia Foundation v. ANI can be read here:

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

Related

The Sentinel and the Shift: Free speech in the Supreme Court

Free Speech in the Digital Age: A doctrinal analysis of four recent Supreme Court cases on Article 19(1)(a)

Ranveer Allahbadia: A “victim” of selective outrage?

Don’t cross the line: Courts on media trials and erring conduct of anchors

Free Speech Upheld: Bombay HC strikes down IT (Amendment) Rules, 2023 as unconstitutional

The post When Morality Meets Surveillance: The court’s push toward state-regulated digital content appeared first on SabrangIndia.

The Bench of Justices Vikram Nath and Sandeep Mehta, according to the report of LiveLaw, was visibly enraged as it confronted the record of the case. Justice Mehta rebuked Assam Police for what the Court described as a shocking and indefensible lapse: “This is appalling! Two years you are not filing a chargesheet and the man remains in custody? Whatever the stringent provisions may be, the UAPA does not authorise illegal detention. You consider yourself to be a premier investigative agency?”

The petitioner had been apprehended in July 2023 with ₹3.25 lakh and later taken into custody through a production warrant. The chargesheet surfaced only on 30 July 2025—well past the outer limit of 180 days, which itself requires a reasoned judicial extension under Section 43D(2) of the UAPA.

As per the LiveLaw report, the Supreme Court stressed that default bail is not a discretionary indulgence but an “indefeasible right” under Article 21, crystallizing the moment statutory timelines lapse: “By no stretch of imagination can custody extending beyond 180 days without a chargesheet—and without any valid extension order—be regarded as lawful. The detention is unconstitutional.”

The Gauhati High Court Order- What the Supreme Court found wrong

The Gauhati High Court’s December 20, 2024, order in Tonlong Konyak v. State of Assam rejected the petitioner’s plea for bail in a UAPA case by resting its decision almost entirely on the finding that he was a foreign national from Myanmar who had entered India illegally. The petitioner had been arrested on 26 August 2023 in connection with Sapekhati P.S. Case No. 29/2023, registered for offences under the IPC and multiple provisions of the UAPA. He argued that the State had failed to file its investigation report within the statutory period mandated under Section 173(2) CrPC / Section 193(3) BNSS, and therefore he had acquired an indefeasible right to default bail. Relying on Article 21 and key Supreme Court precedents, he submitted that co-accused had already been released and that neither the FIR nor the forwarding report contained any concrete incriminating material linking him to the alleged offences.

The State opposed the bail plea by placing the case diary before the Court, asserting that the petitioner was an active linkman for ULFA (I), facilitating extortion networks across Charaideo district. According to the prosecution, he was apprehended by Assam Rifles on 29 July 2023 with ₹3.2 lakh in extortion money, was in constant touch with persons aiding the banned organisation, and was responsible for carrying ransom amounts across the India–Myanmar border. The State further contended that he lacked any travel documents or passport, proving illegal entry, and argued that releasing him would result in an almost certain risk of absconding.

Justice Manash Ranjan Pathak’s order reproduces at length the allegations from the FIR and the case diary: the extortion demands made by ULFA (I), the pattern of ransom payments collected from tea-estate owners, and the role of intermediaries based in Charaideo. The Court recorded that the petitioner had allegedly contacted several linkmen arrested in the case, provided details of businessmen to ULFA (I), and transported extortion money to the organisation’s hideouts in Myanmar. It also noted that the petitioner faced additional cases in Borhat and Mon, and concluded that the materials showed active involvement with banned groups.

The crux of the High Court’s legal reasoning, however, turned on Section 43D(7) of the UAPA, a non-obstante clause that prohibits grant of bail to foreign nationals who enter India unauthorisedly, unless “very exceptional circumstances” are shown. The Court held that this provision overrides the default-bail regime under CrPC/BNSS. Since the petitioner was indisputably a foreigner who entered India without authorisation, and since he had not demonstrated any exceptional circumstances, the Court held that he was categorically barred from seeking bail—even default bail.

In effect, the High Court treated illegal entry as a complete statutory bar that extinguishes the default-bail right. It reasoned that the gravity of allegations, the petitioner’s foreign nationality, and his alleged cross-border activities “amply justified” continued custody. Without examining whether the investigating agency had obtained any valid court order extending the statutory investigation period to 180 days, or whether the failure to file a chargesheet rendered custody unlawful, the Court concluded that statutory protections under Section 167 CrPC / 193(3) BNSS do “not apply” to such a foreign national accused under UAPA.

Ultimately, the High Court held that the petitioner could not claim the benefit of default bail due to the overriding effect of Section 43D (7), and dismissed the bail application. This reasoning—treating nationality and illegal entry as grounds to deny a constitutionally recognised procedural safeguard—became the central point of contention before the Supreme Court, which later corrected the position by holding that no statutory non-obstante clause can override the default-bail right when the State itself violates statutory timelines.

Where the High Court went wrong (and why the SC could not have upheld it):

1. The HC collapsed two distinct bail regimes—default bail and regular bail—into one: Section 43D (7) restricts regular bail to foreign nationals who have illegally entered India, unless very exceptional circumstances exist. But default bail is not regular bail.
   Default bail does not depend on:

• gravity of allegations
• nationality
• risk of absconding
• case diary materials
• exceptional circumstances

It depends only on whether the State complied with statutory timelines. The HC treated a constitutional right as if it were a discretionary privilege.

2. The HC placed Section 43D (7)’s non-obstante clause above the Constitution: The HC held that the 43D(7) non-obstante clause overrides the right to default bail.
   This is plainly contrary to the Supreme Court’s consistent jurisprudence (Uday Mohanlal Acharya, M. Ravindran, Rakesh Kumar Paul), which holds:

• Default bail arises directly from Article 21.
• No statutory non-obstante clause can override a constitutional guarantee.
• Once the right accrues, it is absolute.

The HC’s interpretation effectively allowed the State to nullify constitutional default-bail protection by merely alleging illegal entry, which is impermissible.

3. The HC relied extensively on allegations in the case diary—irrelevant for default bail: The attached order spends multiple paragraphs reproducing police allegations: alleged ULFA(I) links, extortion networks, border crossings, ransom collection, etc. These may be factors in a merits-based bail hearing, but they have zero bearing on whether the 90/180-day period expired without a chargesheet.

Default bail entitles the accused to release even if the allegations are grave, credible, or proven, because the right is triggered by State failure—not by innocence.

4. Illegality of entry cannot justify illegality of detention: The HC repeatedly asserted that the petitioner’s “unauthorised entry” bars him from bail. However:

• Illegal entry is a separate offence.
• It cannot legitimise detention that violates statutory timelines.
• The State cannot defend one illegality (custody) on the basis of another alleged illegality (entry).

5. The HC never examined whether there was a valid extension order under Section 43D(2): A fatal omission as the law requires:

• Written application by the Public Prosecutor,
• Detailed reasons showing progress of investigation,
• A judicial order extending time up to 180 days.

The HC’s order shows no such extension existed—yet it still rejected default bail. This omission could alone renders the order unsustainable.

The complete order of the Gauhati HC may be read here:

Why the Supreme Court intervened so strongly

The Supreme Court focused on the most fundamental issue: the petitioner’s detention was per se illegal, irrespective of nationality or the gravity of allegations. The Court’s reasoning reflects three constitutional anchors:

1. UAPA’s severity does not permit investigative complacency: The Act’s stringency heightens, not relaxes, the burden on the State to maintain strict procedural discipline.
2. Nationality is constitutionally irrelevant to default bail: The right protects any person in custody. Article 21 does not distinguish between citizens and non-citizens.
3. Default bail is a constitutional protection against State abuse: It exists precisely to prevent the scenario seen here: endless incarceration without trial.
4. Courts must not allow non-obstante clauses to amputate constitutional rights: The Supreme Court restored the correct position: Statutes cannot override the Constitution—ever.

Conclusion: A powerful reassertion of liberty in the UAPA era

The Supreme Court’s order is a striking reminder that even under the most severe national-security legislation, the State cannot suspend procedural safeguards. The ruling not only restores the petitioner’s liberty but also implicitly corrects the Gauhati High Court’s overly broad reading of Section 43D (7), which had the effect of collapsing the distinction between default bail and regular bail.

By granting bail and condemning the prolonged pre-trial incarceration, the Court reinforces a key constitutional principle: When the State violates statutory timelines, detention becomes illegal—no matter who the accused is, or what the allegations are.

Related:

Punjab & Haryana High Court refuses anticipatory bail to journalist accused of provocative, communal statements against Purvanchal community

Six Days Behind Bars After Bail: Patna High Court orders ₹2 lakh relief, flags state-wide pattern of illegal detention

A Terror Case Without Evidence: Allahabad High Court’s ‘heavy heart’ acquittal After 28 Years

A New Silence: The Supreme Court’s turn toward non-interference in hate-speech cases

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The decision came during the hearing of special leave petitions filed by the Union challenging two Calcutta High Court orders of September 26–27, which had directed the return of six individuals deported to Bangladesh and mandated an opportunity to them to establish their Indian citizenship. Sunali and her child are among those six deportees, whose removal from India has since raised troubling questions of due process, legality, and the treatment of vulnerable individuals caught in verification drives.

A family caught in a deportation sweep

The case originated from a habeas corpus plea filed by Bhodu Sekh, Sunali’s father, who told the High Court that his family hailed from West Bengal but had migrated to Delhi for better livelihood opportunities. According to Sekh, Sunali, her husband, and their son were detained on June 21 during an identity-verification campaign initiated under a Ministry of Home Affairs (MHA) notification dated May 2. Within five days, the family was produced before the Foreigners Regional Registration Office (FRRO) and deported to Bangladesh on June 26.

In its September rulings, the Calcutta High Court noted the “hot haste” of the proceedings and criticised the Union and Delhi Police for effecting deportation without a fair hearing or adequate inquiry. The court observed that the names of the deportees’ grandfathers appeared in the electoral rolls of West Bengal—an important indication of Indian lineage. It also highlighted that the May 2025 MHA memo allows immediate deportation only under emergent circumstances following proper inquiry, finding that such procedural safeguards were “conspicuously absent.”

Detailed reports on the said case may be read here, here and here.

Humanitarian Intervention by the Supreme Court

At the recent hearing, Solicitor General Tushar Mehta informed the Supreme Court that the Union had, after consultations, agreed to bring back Sunali and her child because of her advanced pregnancy and the need to avoid separation between mother and minor child. He clarified that the gesture:

• was not an admission concerning their citizenship,
• would not set a precedent,
• and would be accompanied by appropriate surveillance upon their return.

As the deportation was conducted formally through official channels, Mehta requested that the court incorporate the Union’s undertaking into its written order to expedite diplomatic coordination with Bangladeshi authorities. The Bench complied, ensuring that the repatriation process could begin without administrative obstacles.

Significantly, as per the report of Livelaw, the court remarked: “These are cases where law has to bend to humanity. Some of these cases require a different outlook.”

The order marks a crucial assertion of judicial discretion in situations where rigid enforcement risks inflicting disproportionate harm on vulnerable individuals.

Directions ensuring medical and social support

Accepting requests from senior advocates Kapil Sibal (appearing for the State of West Bengal) and Sanjay Hegde (for Bhodu Sekh), the Supreme Court directed that Sunali be allowed to reside temporarily in Birbhum district, where her family lives. As per Livelaw report, the Bench further ordered:

• Free and comprehensive medical care for Sunali, including all delivery-related services;
• Full assistance and day-to-day care for her minor son;
• Immediate coordination between the Union, West Bengal authorities, and medical officials to ensure safe return and treatment.

The Bench noted that since Sunali was picked up from Delhi, she may initially be brought back to the national capital before being shifted to her native district.

Citizenship Inquiry: Biological link may be pivotal

Justice Bagchi raised a crucial legal issue: if Bhodu Sekh is indeed an Indian citizen—as the High Court record suggests—then Sunali, as his biological daughter, and Sabir, as her child, would also qualify as Indian citizens. The Court urged the Union to undertake an inquiry into Sekh’s citizenship in accordance with principles of natural justice, signalling that the broader dispute over nationality remains very much alive.

Contempt proceedings and Union’s concerns

The Solicitor General informed the Court that a contempt petition was pending before the Calcutta High Court against the Union Government for non-compliance with the repatriation directions. While Mehta requested protection, the Bench said that since the Supreme Court was now seized of the matter, the High Court would not proceed independently. It declined to formally stay the contempt proceedings but indicated that the issue would not trouble the Union in light of ongoing Supreme Court supervision.

Remaining Deportees: Union maintains they are Bangladeshis

The Supreme Court also took note of the fact that four other deportees named in the High Court’s September orders remain in Bangladesh. Senior advocate Kapil Sibal requested that the Union take instructions regarding their return as well. The Solicitor General resisted, insisting that the remaining individuals were “Bangladeshi nationals” and that the Union had a serious contest to their claims of Indian citizenship.

The Bench has directed the Union to return with its instructions at the next hearing, signalling that the nationality dispute for the remaining individuals is far from settled.

Backdrop of procedural lapses

The High Court’s criticism of the June 2025 deportations remains a crucial backdrop. The Delhi Police, FRRO and central agencies executed the arrest-to-deportation timeline in five days, a speed the High Court deemed incompatible with fair procedure. It held that:

• no adequate inquiry was conducted,
• no meaningful opportunity to be heard was given,
• and the exercise violated the Union’s own procedural guidelines.

Although the Supreme Court has not yet ruled on these legal defects, its present orders focus on preventing further harm while preserving the Union’s right to contest the High Court’s findings.

A limited but crucial relief

While emphasising that its directions do not prejudice the Union’s legal arguments on the merits of the deportation, the Supreme Court made clear that humanitarian imperatives could not be ignored. The Court will resume hearing the matter on December 12, when it will also consider the status of the remaining deported individuals.

For now, the Court’s intervention ensures that a heavily pregnant woman and her young child will not be left without medical care or family support across an international border—sending a powerful message that judicial oversight remains vital where citizenship, deportation and human dignity intersect.

Order can be read here.

Related:

“All I Wanted Was Peace”: How 55-year-old widow Aklima Sarkar won back her citizenship

From Despair to Dignity: How CJP helped Elachan Bibi win back her identity, prove her citizenship

Calcutta High Court strikes down arbitrary deportations of West Bengal residents, orders return from Bangladesh

Gauhati High Court seeks Centre’s May 2025 deportation notification as legality of re-detention of Abdul Shiekh and Majibur Rehman is scrutinised

Another Pushback Halted: SC stays deportation of woman declared foreigner, issues notice on challenge to Gauhati HC order

CJP Win! Gauhati HC stays deportation of Ajabha Khatun, will address bail demand on April 4

The post SC secures return of pregnant woman and child deported to Bangladesh, says ‘law must bend to humanity’ appeared first on SabrangIndia.

A Bench of CJI Surya Kant and Justice Joymalya Bagchi made the observation while hearing the Union’s challenge to a Calcutta High Court order directing the repatriation of six persons who were pushed across the border in June 2025. Representing the petitioners, Senior Advocates Kapil Sibal and Sanjay Hegde argued that the Union had delayed compliance and initiated its challenge only when the families moved for contempt.

During the hearing, Hegde pointed out that the Union had allowed the High Court order to “lie in defect” for nearly a month. “These are Indian citizens who have been thrown across,” he submitted, according to a report of LiveLaw.

“What prevents you?” — CJI questions Union’s resistance

After examining the record, the CJI noted that substantial documentary material had emerged: birth certificates, land records, Aadhaar and PAN details of the deportees or their family members. These, he said, constituted “evidence of probability” that warranted a proper enquiry — something the authorities had “hardly” undertaken before deportation.

According to the LiveLaw report, the CJI observed: “If somebody has something to show you — that wait, I belong to India, I am born and brought up here — he has a right to plead before you. Earlier you hardly held any enquiry. The allegation is that the deportee was never heard.”

He then posed the central question to the Union: “So what prevents you? Why don’t you, at least as a temporary measure, bring them back, give them an opportunity of hearing, verify all these documents and take a holistic view?”

The Court directed the Union to obtain instructions by Monday, indicating that the government may consider facilitating their return while the enquiry is reopened.

Background of the case

The High Court order the Union has not complied with: This Supreme Court hearing stems from the Calcutta High Court’s September 26, 2025 judgment in Bhudu Sheikh v. Union of India, which quashed the deportation of six persons, including:

• Eight-month pregnant Sunali (Sonali) Khatun,
• Her husband Danish Sheikh,
• Their eight-year-old son Sabir,
• Sweety Bibi, and
• Her two minor sons.

The individuals had been picked up in Delhi during an “identity verification drive” and deported within 48 hours, allegedly without inquiry or notice to the West Bengal authorities. The petitioner — Sunali’s father, Bhudu Sheikh, a resident of Birbhum — maintained that all six were Indian citizens.

HC finds “hot haste,” disregard of MHA rules: The Division Bench of Justice Tapabrata Chakraborty and Justice Reetobroto Kumar Mitra held that:

• The deportation violated the MHA memo dated May 2, 2025, which requires a 30-day verification through the home State.
• Statements allegedly made by the detainees admitting they were Bangladeshis were inadmissible, since statements to police “without procedural safeguards” carry no presumption of voluntariness.
• Aadhaar and PAN records established that Sunali was born in 2000, making it impossible for her to have “entered India illegally in 1998,” as claimed.

Observing that “suspicion, however grave, cannot replace proof,” the Court declared the deportation unconstitutional and held that the executive’s conduct had “crippled the constitutional grant of fairness and reasonableness.”

HC ordered repatriation in 4 weeks: The High Court directed the Union, FRRO Delhi, and Delhi Police to repatriate the six individuals within four weeks, via the Indian High Commission in Dhaka. It refused to stay its own order, noting that:

“Liberty once lost must be swiftly restored.”

The four-week deadline expired on October 24, 2025, without compliance. Instead, the Centre filed a Special Leave Petition in the Supreme Court on October 22 — two days before the deadline.

Bangladesh Court also found them to be Indian citizens: In a development with diplomatic implications, the Senior Judicial Magistrate, Sadar Court, Chapainawabganj (Bangladesh) on September 30, 2025, also held that all six deportees were Indian citizens.

The Magistrate cited:

• Their Aadhaar details,
• Proof of residence in Birbhum,
• And the absence of evidence that they were Bangladeshi nationals.

The Court concluded that they had been “wrongfully pushed across the border,” directing that its order be transmitted to the Indian High Commission in Dhaka for appropriate action.

This created an extraordinary situation: both Indian and Bangladeshi courts had recognised the deportees’ Indian citizenship, while the Union government declined to bring them back.

Union’s defence of jurisdiction, suppression, and “confessional” statements: Before the Supreme Court, the Union contended that:

• The Calcutta High Court lacked jurisdiction as similar matters were pending before the Delhi High Court.
• The petitioner had allegedly suppressed this fact.
• The detainees had confessed to being Bangladeshi nationals during interrogation.

However, the High Court had already rejected these assertions, holding that:

• Jurisdiction for a habeas petition lies where the petitioner resides or where the effect of the detention is felt.
• Statements to police cannot form the basis of deportation under Articles 14, 20(3), and 21.

Detailed report on this may be read here.

Related:

Calcutta High Court strikes down arbitrary deportations of West Bengal residents, orders return from Bangladesh

Gauhati High Court seeks Centre’s May 2025 deportation notification as legality of re-detention of Abdul Shiekh and Majibur Rehman is scrutinised

Another Pushback Halted: SC stays deportation of woman declared foreigner, issues notice on challenge to Gauhati HC order

CJP Win! Gauhati HC stays deportation of Ajabha Khatun, will address bail demand on April 4

Assam’s New SOP Hands Citizenship Decisions to Bureaucrats: Executive overreach or legal necessity?

The post ‘They Have a Right to Be Heard’: Supreme Court suggests Union brings back alleged deportees from Bangladesh “at least as a temporary measure” appeared first on SabrangIndia.

According to the Hindu, the bench remarked “We are not legislating in the garb of this petition. Rest assured, we are not inclined to either legislate or monitor every small incident which takes place in X, Y, Z pocket of this country”. Stressing the constitutional architecture already in place, the judges noted, “There are high courts, there are police stations, there are legislative measures. They are already in place.”

The Supreme Court’s latest remarks—disclaiming responsibility for monitoring hate-speech incidents and directing petitioners to High Courts and police stations—represent an increasingly pronounced judicial retreat at a time when hate speech has become pervasive, organised, and often politically sanctioned. Coming from a Bench of Justices Vikram Nath and Sandeep Mehta, the Court’s insistence that it “cannot legislate or monitor every small incident” may appear administratively pragmatic, but constitutionally, it raises serious concerns.

‘Approach the High Court; We cannot monitor the entire country’

The Bench initially directed the applicant to raise the grievance before the concerned High Court. “How can this court continue to monitor all such instances all over the country?” it asked, according to The Print. “You approach the authorities. Let them take action, otherwise go to the high court.”

Counsel for the applicant, Advocate Nizam Pasha, submitted that he had filed an application in an already pending writ petition on hate speech, bringing forth “additional instances” of boycott calls. When the Bench observed that the calls appeared to be made by private individuals, counsel responded that “some public representatives are also issuing similar calls.”

Solicitor General Tushar Mehta interjected sharply: “Public interest cannot be selective to one particular religion… There are severe hate speeches going on amongst all religions. I will supply those details to my friend (applicant). Let him add that and espouse that public cause on a pan-religion basis.”

The applicant’s counsel insisted that he approached the Court only because the authorities “are not taking any action,” and invoked earlier directions of the Court where State inaction on hate speech was to trigger suo motu registration of FIRs and potential contempt for non-compliance.

Mehta maintained that while “no one can be indulging in hate speech,” a public-spirited litigant “cannot be selective.” The Bench reiterated that statutory mechanisms existed: “Whichever state you have a problem with, you approach the jurisdictional high court for appropriate relief.”

Advocate Nizam Pasha, appearing for journalist Qurban Ali and others, reminded the Court of its October 2022 order. In October 2022, disturbed by the “unabated ferocity” of hate crimes and warning that a “climate of hate prevails in the country,” the Court had directed police authorities to suo motu register cases against hate-speech offenders. However, these remarks suggest a recalibration: the Supreme Court asserting that enforcement must be handled at the proper institutional levels, not continuously escalated to the apex court.

In addition to this, Pasha also referred to an affidavit flagging a post shared by an Assam minister following the BJP’s victory in Bihar, claiming it referenced the 1989 Bhagalpur massacre by alluding to “Bihar approving gobi farming”—an alleged nod to victims whose bodies were buried in cauliflower fields.

The Bench listed the matter for further hearing on December 9, 2025.

To read about the surge of hate speech during elections, read here, here and here.

A Court that once called arresting hate crimes a “sacrosanct duty” now says: go elsewhere

These oral observations represent a notable moment nearly seven years after the Court’s landmark Tehseen Poonawala (2018) judgment, where it held that preventing hate crimes is the State’s “sacrosanct duty.” The Court had then laid down extensive guidelines to prevent mob violence and lynching.

In Tehseen Poonawala (2018), the Supreme Court emphatically held that preventing hate crimes is the State’s “sacrosanct duty” and placed considerable constitutional responsibility on the judiciary to ensure compliance.

When the Bench says: “We are not inclined to either legislate or monitor every small incident”, the question naturally arises: What counts as “small” in hate speech? Hate speech is not an isolated “X, Y, Z pocket” problem; it is a structural, national, and increasingly legitimised phenomenon that fuels violence, radicalises communities, and undermines constitutional fraternity. Treating each incident as merely local—best handled at the nearest police station—ignores the systemic, not episodic, nature of the problem.

Additionally, the petitioner’s counsel explicitly reminded the Court of its own earlier directions: If States fail to act on hate speech, police must register FIRs suo motu; if police fail, contempt proceedings follow. By refusing to even monitor compliance with its own framework, the Court creates a paradox:

• Duty to act remains,
• but enforcement evaporates.

This turns constitutionally mandated preventive oversight into judicial suggestion, not judicial command.

In regards to Solicitor General’s assertion that public interest cannot be selective and that all religions face hate speech is a familiar rhetorical manoeuvre that:

1. Equates majority-to-minority hate speech with minority-to-majority rhetoric, flattening unequal power structures;
2. Deflects from documented, systemic hate speech targeting Muslims, including political campaigns;
3. Reframes structural discrimination as generic social disharmony.

The Court’s willingness to echo the “pan-religion basis” line dilutes the urgency of addressing majoritarian hate speech, a constitutional and empirical reality widely acknowledged by previous benches.

For detailed report of significant orders of Supreme Court on hate speech issue, read here.

Chhattisgarh High Court: Reinforcing judicial distance from enforcement

The Chhattisgarh High Court’s decision on November 21 in a separate hate-speech matter further illustrates the judiciary’s growing reluctance to scrutinise investigative lapses in such cases. A Division Bench of Chief Justice Ramesh Sinha and Justice Bibhu Datta Guru dismissed a plea seeking coercive action against Johar Chhattisgarh Party leader Amit Baghel, accused of repeated inflammatory statements against Agrawal, Sindhi, and Jain communities

The Division Bench held firmly that the petitioner had failed to substantiate allegations of State inaction, emphasising that mere accusations of “State apathy” could not justify extraordinary judicial intervention.

The Court observed:

• “The Petitioner has not brought forth any cogent material to demonstrate that the investigating agency has either shut the investigation or refused to act on the FIRs.”
• “Mere dissatisfaction with the pace or nature of investigation cannot, in law, furnish a ground for invoking the extraordinary jurisdiction of this Court under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 or Article 226 of the Constitution.”

The Bench cautioned that the reliefs sought—direction for arrest, supervision by a specific-rank officer, periodic status reports, consolidated chargesheet—would amount to “judicial micromanagement” of investigation and intrude into the statutory domain of the police.

The Court reiterated established law: a writ of mandamus cannot compel arrest, dictate the course of investigation, or require a consolidated chargesheet when the statute does not mandate one. “The Petitioner has not shown any exceptional circumstance to indicate non-compliance with these guidelines, nor is there any imminent threat to public order warranting extraordinary measures,” the Court added in its order.

Finding no exceptional urgency or imminent threat to public order, the petition was dismissed.

The Chhattisgarh High Court’s dismissal of the plea against Amit Baghel fits seamlessly into this larger pattern of institutional distancing. By insisting that:

• dissatisfaction with investigation pace is not enough,
• courts cannot “micromanage,”
• no “exceptional circumstances” exist,

the High Court reinforces a trend where judicial review of State inaction on hate speech is increasingly restricted, even as hate speech intensifies.

Order of the Court may be read here.

The constitutional misdiagnosis at the heart of India’s hate-speech crisis

The core difficulty lies in the Court’s very conceptualisation of hate speech: by repeatedly characterising it as a routine “law-and-order” matter to be handled by local police or challenged before jurisdictional High Courts, the Supreme Court collapses a profound constitutional crisis into an administrative problem. This framing disregards the Court’s own jurisprudence recognising hate speech as a threat to equality, an assault on dignity, a catalyst for mob violence, a barrier to democratic participation, and a weapon disproportionately used against minorities and dissenters—phenomena that cannot be meaningfully addressed through ordinary policing. Far from being “pocket-level incidents,” contemporary hate speech is intimately connected to electoral mobilisation, vigilante networks, and entrenched patterns of institutional discrimination, placing it well beyond the capacity or neutrality of local law-and-order mechanisms. The Court’s withdrawal from scrutiny therefore carries structural consequences: it signals to State authorities that inaction will not attract judicial oversight; it chills public-spirited litigation by suggesting that constitutionally significant harms are too “small” or “local” for the Supreme Court’s attention; and it sits uneasily with the Court’s own earlier precedents mandating suo motu FIRs and warning States of contempt, thereby diminishing both doctrinal coherence and the credibility of constitutional adjudication. In effect, reducing hate speech to a routine policing matter does not merely minimise its gravity—it risks normalising it.

Conclusion: A constitutional moment demanding vigilance, not withdrawal

India is living through a documented and politically charged escalation in hate speech, and at such a moment the Supreme Court’s assertion that it cannot monitor “every small incident” risks being interpreted not as judicial restraint but as a signal that State authorities may do less, not more. No constitutional court is expected to police every episode—but it is expected to ensure that State machinery functions, that fundamental rights are meaningfully protected, and that its own earlier mandates are not rendered hollow through non-enforcement. By appearing to withdraw just when constitutional vigilance is most necessary, the Court creates a troubling gap between constitutional promises and institutional practice. At a time when hate speech carries structural, electoral, and communal consequences, this is not a moment for judicial distance but for principled constitutional engagement; stepping back now risks weakening precisely the safeguards the Constitution relies on courts to uphold.

Related:

Unveiling the diverse impact of Hate Speech: From elections to escalating violence

Hate speeches, stone pelting, brandishing of weapons – what VHP’s Shaurya Yatras have achieved till date

India’s Struggle for Social Harmony: Challenges Amidst Surge in Hate Speech

Three separate benches of the Indian Supreme Court interrogate hate speech

CJP writes to Minorities Commission over repeated attacks on Muslims

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