Eyes Wide Shut: The Supreme Court’s Bail Order in the Delhi Riots Cases

Gautam Bhatia2 Comments

This post analyses the Supreme Court’s bail order in the Delhi Riots cases, delivered today. Seven appellants had approached the Court against the Delhi High Court’s September 2025 order denying them bail. The Supreme Court allowed the appeals of five, and granted them bail. The appeals of Umar Khalid and Sharjeel Imam were rejected.

This blog has examined the proceedings in this case in some detail, dating back to 2022; we have examined the 2022 trial court order denying bail (here), the 2022 High Court order denying bail (here), and the 2025 High Court order denying bail (here and here). An analysis of these orders has revealed a consistent pattern: at each stage, the courts have adopted what this blog has called an “eyes wide shut approach” to the question of bail under the UAPA: that is, they have invoked Section 43(D)(5) of the UAPA to avoid any meaningful scrutiny of the material presented by the prosecution, and have filled in the obvious gaps in the prosecution’s case through inferences and assumptions. When it comes to Umar Khalid and Sharjeel Imam, today’s judgment, as we shall see, follows the same pattern.

The Question of Delay

The Court frames two preliminary questions, which we shall address. The first is the question of delay. At this point, all the appellants had spent upwards of five and a half years in jail, without trial. They invoked the right to life under Article 21, which also guarantees the right to a speedy trial. In addition, the Supreme Court’s prior judgment in Najeeb, which holds that a delay in a trial under the UAPA will attract Article 21, was also cited.

How does the Supreme Court justify the continued incarceration of Umar Khalid and Sharjeel Imam, even after five and a half years in jail without trial? It does so by deploying two arguments: first, that the delay in the trial is not “solely” attributable to the prosecution or to the court; and secondly, that the “seriousness of the offence” is a relevant factor in deciding the question of delay. Neither reason stands up to scrutiny.

On the first reason: the Court observes that from the record, it appears that despite the prosecution’s readiness to proceed, “objections, requests for deferment, and issues relating to sequencing of arguments were raised on behalf of the accused.” The Court does not actually engage in any analysis with respect to how much of the delay was actually caused by this, which is a rather glaring omission in the analysis. However, let us assume, for the purposes of argument, that some part of the delay is attributable to “objections, requests for deferment, and issues relating to sequencing of arguments” by the accused. Two points follow. First, “objections,” “requests for deferments,” and “sequencing issues” are not the same. It would be remiss of defence counsel to not raise all the objections that criminal law entitles them to raise, on behalf of their client. Pinning a delayed trial on an accused individual’s lawyer invoking legal remedies cannot, therefore, stand. This leaves only “requests for deferment.” But, ultimately, it is the court that decides whether or not to accede to a “request for deferment.” Defence counsel are not in charge of a trial. Defence counsel do not control the courtroom. The court does so. The court can always decline a request for an adjournment and compel the defence to argue. The responsibility for a delayed trial, therefore, lies only on the shoulders of the court conducting the trial. This point is obscured by the Supreme Court’s eliding of “objections”, “requests for deferment” and “sequencing issues”, as if they were all the same, and that they all pointed to the defence’s culpability.

On the second reason: the Supreme Court states that the weight accorded to delay must be “balanced” with the gravity of the alleged offence. This is incoherent. A delayed trial breaches Article 21 because every individual has the right to a speedy trial. How serious an offence is may have a bearing upon consideration of bail on merits, but it has no bearing on the right to a speedy trial. Drawing this link, in fact, opens a dangerous Pandora’s Box where fundamental human rights are made contingent upon what the State chooses to accuse an individual of. In fact, the Supreme Court itself has recognised the untenability of such distinctions, across contexts: for example, the Court has not accepted the proposition that the its rule for hearing death penalty reviews in “open court” be curtailed for particularly serious cases, such as terrorism convictions – because the right to an open court review itself flows from Article 21.

In fact, the Supreme Court’s order here is contrary to its own prior bail jurisprudence under the UAPA: in Sheikh Javed Iqbal vs State of Uttar Pradesh, the Court specifically noted that, in fact, the more serious the offence, the greater the imperative that the trial be concluded expeditiously, and that the seriousness of the offence cannot be invoked in order to make trial delays constitutionally acceptable. Today’s judgment makes no mention of Javed Iqbal, and advances a proposition directly contrary to it. This is not something that co-ordinate benches of the Court can do.

Finally, it is notable that when courts examine the question of delay, they specifically look at the number of witnesses that have to be examined, and the probable further time that it will take for the trial to be completed. None of this is done in the present case.

Definition of Terrorism

As a second preliminary point, the Court considers the definition of “terrorism” under Section 15 of the UAPA. This is relevant because – as this blog has pointed out before – the test for bail under Section 43(D)(5) of the UAPA is whether a “prima facie” case exists against the accused. The question of whether or not a “prima facie case” exists depends on what the ingredients of the offence are. These, therefore, must be outlined with care and specificity.

Unfortunately, the Court is neither careful nor specific. It notes that in addition to weaponry, Section 15 uses the term “by any other means of whatever nature” which – according to the Court – includes “conduct that destabilises civic life or societal functioning, even in the absence of immediate physical violence.” There are two problems with this definition. The first is that it is entirely vague. Every protest that blocks a road “destabilises civic life or societal functioning.” Every such protest is not – obviously – statutory terrorism. Secondly, this definition conflates a number of concepts that decades of Supreme Court jurisprudence have carefully articulated – and separated – from each other. Every law student is familiar with the Supreme Court’s judgment in Ram Manohar Lohia, which advanced the famous “concentric circles” image to distinguish between a disruption of law and order, public order, and of State security. Today’s judgment does not engage in any analysis of these concepts, and indeed, appears to conflate the three circles in the umbrella term “destabilises civic life.”

Why is this a problem? It is a problem, in general, because such a vague definition of “terrorism” ensures that pretty much every act of civic disobedience can invite a UAPA case, and endless incarceration. It is also a problem in this specific case, because the foundational reason for the Court’s decision to deny Sharjeel Imam and Umar Khalid bail is – in its view – the difference between a “dharna” and a “chakka jam.” In my post on the High Court’s judgment, I wrote:

On the chakka jam, it is worthwhile to remember, for a moment, that we live in a country that owes its existence, as a nation-state, to forms of mass mobilisation and protest that were, by their very nature, designed to be disruptive (and the chakka-jam is one among them). Nor is this restricted to the freedom struggle: in a book titled Hailing the State, Lisa Mitchell examines a range of unconventional ways in which Indians have communicated their claims to the State outside of the electoral process: from the “rail roko” to the “chakka jam.” These forms of protest have a specific history and a specific vintage, and have been practiced by Indians of different persuasions, across time and space. It may be argued that the State reserves the right to respond to such methods through the legal form; while that it is a separate debate, what the State has done here is to use anti-terror laws to deal with what was a political protest (recall, once again, that the link between the protesters and the violence remains unproven). That is where the problem lies.

The Supreme Court’s catch-all definition of “terrorism,” therefore, invites selective prosecution – followed by selective incarceration – under the UAPA.

It is important to note one more thing: two years ago, in Asif Iqbal Tanha, the High Court of Delhi embarked on a very detailed and very careful examination of the phrase “terrorism” under the UAPA (see here). In that case, the High Court of Delhi noted the following:

… the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law. (para 49)

The High Court also noted:

The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA. (para 47)

Now, when this case was appealed to the Supreme Court, instead of engaging with the High Court’s reasoning, the Supreme Court simply declared that it would “not be treated as precedent” (see here). The result is what we have today, which is a Section 15 definition that is so wide and vague that more or less any disruptive act can come within it – and whether or not a particular act will come within it depends entirely on how the State, in a given case, decides to frame it. This is not the rule of law.

The Facts

This blog has gone into the details of the factual allegations against Sharjeel Imam and Umar Khalid – and why they do not stand up to UAPA scrutiny – in some detail, on three previous occasions. We must now do it a fourth time. Let us first consider Umar Khalid. As has been noted before, the prosecution’s case has always had a fundamental problem: that Umar Khalid never called for violence, was not involved in any violence (he was not even in Delhi when the riots broke out), and no material was recovered from him. To get over this rather substantial hurdle, the prosecution has alleged the existence of a conspiracy, and that Umar Khalid was one of the two masterminds (Sharjeel Imam being the other).

But the allegation of a conspiracy must be based on something. Here, we see a rather interesting evolution in how the courts have adjudicated this case over the years. In the beginning, the courts have tried to nonetheless find something concrete or specific in the facts (this was taken to the point of absurdity in the High Court’s first order denying bail, where Umar Khalid’s reference to “revolutionary greetings” in a speech was taken as potentially violent because he did not specifically clarify that was talking about a peaceful revolution). However, judgment by judgment – perhaps noting the untenability of these claims – courts have begun to frame Umar Khalid’s role in more and more abstract language, abandoning specificity altogether.

In the Supreme Court’s order, this abstraction is taken to its vanishing point. Note the following: in paragraph 98, the Court says this: “the prosecution material comprises direct, corroborative, and contemporaneous evidence, including recoveries, digital communication trails, and statements indicative of managerial responsibility.” First, evidence of what, precisely? Later on, we are told that the only evidence is that of starting a “chakka jam” (see above), but that to go into this question in more detail would involve scrutiny beyond what is permitted by Section 43(D)(5). Secondly, in paragraph 215, the Court itself admits that there have been no “recoveries” – so it is unclear why it mentions “recovery” in paragraph 98, when this is – quite literally – not true. In that same paragraph 215, the Court says that the absence of recovery may have weight in “ordinary IPC bail jurisprudence” but not under a “statute alleging a wider conspiracy.” But “conspiracy” is not a concept invented by the UAPA – it is, quite literally, a concept defined – and interpreted – under the IPC!

In paragraph 211, the Court states that the prosecution’s narrative is “not episodic; it is architectural.” What on earth does this mean? The Court then says: “It asserts a phased progression: mobilisation and indoctrination; institutionalisation through committees and digital platforms; expansion of protest sites into permanent blockades; preparation for escalation; and culmination in coordinated chakka jams and widespread violence.” Note that none of this except the last two words constitute an offence under the UAPA (I have dealt with the chakka jam point above). What we would therefore need from the Court is the following: a plausible causal link between every word used before the words “widespread violence,” and the “widespread violence” itself. The moment the Court is asked to do this, however, it repeats that such a level of scrutiny is barred under Section 43(D)(5).

To put it schematically: the UAPA requires (conspiracy to) commit “widespread violence.” The actual evidence is well short of establishing any such thing. The Prosecution asserts that this gap between the evidence and the act is filled by “conspiracy.” The Court states that it is barred from examining this (evidence-free) assertion. To take an example, consider para 218:

At this stage, the Court does not decide whether each meeting was conspiratorial. But where multiple meetings across weeks and months are alleged, and where witness material and electronic records are pressed to place the same accused at several of these junctures, the Court is entitled to view continuity itself as a relevant circumstance. Continuity is the difference between a participant and an organiser in the prosecution narrative.

But, for the umpteenth time, we have to ask: continuity of what? Continuity to do what? In the paragraph before, the Court has referred to the following “decision points” (decision of what?):

... the Jangpura meeting of 08.12.2019; the Jamia phase of mid-December; the formation and functioning of JCC/JACT as mobilisation structures; the creation and operation of DPSG as a dissemination mechanism; the meetings at ISI, Gandhi Peace Foundation and Shaheen Bagh; and the January Seelampur phase alleged to involve preparation for escalation.

But once again, it is not in these meetings that the violence took place. There is always a permanent gap between the actual evidence against Umar Khalid and the allegation against him, and no matter how many multi-syllabled words are used in the judgment (“architectural”, “conceptual leadership”, “architect of escalation”), this is a gap that will remain unfilled, because it cannot be filled except through a effort of prosecutorial and judicial imagination.

The final giveaway comes in para 239. After insisting throughout the judgment that its task is to scrutinise the material to see if there is a reasonable nexus with the ingredients of the offence, the Court finally concludes its analysis of Umar Khalid’s case with this: “at the bail stage, the Court does not determine whether these allegations ultimately satisfy the ingredients of a “terrorist act” under Section 15.”

But then, what are we doing here? If the Court will not even ask if the allegations satisfy the ingredients of the offence, then what will it do? What is left for it to do?

In fact, this same issue arises in the Sharjeel Imam bail denial. I have written at some length before about the facts in Imam’s case, and how his speeches – in particular – do not meet the standard of criminalisation under the Constitution (see here). Under the Constitution, speech is protected unless it constitutes incitement to imminent violence; Imam’s speech does not fall within this judicial test. Before the Supreme Court, Imam’s counsel made this argument. The Court says, in para 162:

The defence has urged that the speech contains no direct incitement to violence and is protected. That contention cannot be adjudicated in the manner the defence invites at this stage. The statutory enquiry is not whether the Court, after a full trial, would accept the prosecution’s interpretation. The enquiry is whether the prosecution’s reading is prima facie plausible on the face of the material and whether, read cumulatively with the other links, it contributes to a coherent narrative of planned disruption.

With due respect, this gets the law upside down and back to front. Consider the argument schematically:

Proposition 1: The Constitution prohibits criminalising speech that is short of incitement to imminent violence.

Proposition 2: The UAPA must be interpreted consistently with the Constitution. Consequently, speech that does not incite violence does not fall within Section 15.

Proposition 3: The question of whether or not a speech constitutes incitement, therefore, is essential to determine whether the ingredients of Section 15 have been satisfied, and therefore, whether a prima facie case exists against the accused.

This should make it crystal clear that the question of incitement is fundamental to the question of bail under UAPA. If there is no incitement, then there is no Section 15 offence, and – therefore – no prima facie case. The Court does not engage in any of this analysis.

Miscellaneous

Reading the orders granting bail to the other appellants, a rather curious picture emerges: it is as if the other individuals are automatons, mechanically carrying out the orders delivered from on high by Sharjeel Imam or Umar Khalid. We are treated to phrases such as absence of “autonomous decision-making authority,” “limited to coordination,” “layered participation,” “site level participant whose presence and conduct derive meaning primarily from directives purportedly issued by others,” “conceptual command,” “multi-layered mobilisation architecture,” “conduit for information,” “operational execution,” and so on.

These phrases appear to have been borrowed from the domain of corporate governance, so let’s also use a corporate law phrase: when you pierce the veil that has been drawn by these multi-syllabled words, and when you go back to check the actual evidence that distinguishes what Sharjeel Imam and Umar Khalid have done vis-a-vis what the others have done, there is absolutely nothing on the record that justifies this scary image of two individuals sitting at the node of a vast conspiracy, issuing directions to subordinates who then act unthinkingly on them. This image is built entirely upon a set of assertions that exist in the gap between the actual pieces of evidence.

The tragedy of the case, ultimately, lies in this: that instead of scrutinising these gaps, the courts – at all levels – have chosen to fill them up. As we have seen before, the UAPA does not compel courts to do this. In this case, however, the Courts have chosen an eyes wide-shut approach. The result is that only measured in an indefinite, open-ended, and continuing imprisonment, without trial or conviction.

Orders

A final point. In its order granting bail, the Court has set twelve conditions. Conditions (vii) and (ix) are:

viii. The appellants shall not participate in any programme or address or attend any gathering, rally or meeting, whether physically or virtually till conclusion of the trial.

ix. The appellants shall not circulate any post either in electronic form or physical form or circulate any hand bills, posters, banners, etc in any form whatsoever.

It is one thing to limit rights in relation to the case at hand. But what justifies a sweeping judicial abrogation of the appellants’ Article 19 rights to speech, assembly, and association altogether? How does any of this have any relation to the case actually before the Court – one in which, it is worth remembering, the trial is yet to commence? As with the rest of the judgment, we ask these questions in vain, because no answer is forthcoming.

Conclusion

With respect to Umar Khalid and Sharjeel Imam, the Court states that they are entitled to re-apply for bail after the “protected witnesses” have been examined, or after one year from the date of today’s order, whichever is earlier. An optimistic reading of this direction would suggest that the Court is of the view that at the most, the “balance” between delay and the “gravity” of the offence would – after six and a half years – finally tip in favour of the former. To quote a piece written by two other individuals who have spent years in jail without trial, perhaps then the question – “how long is too long?” – will, at last, be answered that “now, at last, it is too long.” Until then, we can only wait.  

[Thank you to Paras Nath Singh for pointing out the SC’s coordinate bench judgments on delay.]

Constitutional Detours and Perverse Incentives: How States will Respond to SC’s Governors’ Judgment [Guest Post]

Gautam BhatiaLeave a comment

[This is a guest post by Kartik Kalra.]

Last month, the Supreme Court issued its Advisory Opinion in Governors’ Assent – a Presidential reference to seek clarity on the extent of the Governor’s and President’s powers to withhold assent to legislation enacted by state assemblies. Both positions are occupied by nominees of the Union Government, who serve as the titular heads of states and the Union respectively. Although a two-judge bench addressed identical issues in Tamil Nadu v Governor of Tamil Nadu this April, ruling in favour of states by creating timeline and discretion-based fetters on the Governor’s and President’s powers to withhold assent, the Union’s expectation – and so it has turned out – was that the answers here would be different.

In effectively overruling the two-judge decision, the Court, in interpreting Article 200 of the Constitution, held four things: first, that the Governor is not bound by state executives’ “aid and advice” to grant assent to bills, and may withhold it on their discretion; second, that there are no timelines within which the Governor should act; third, that the Governor may reserve any bill for the President’s consideration, again without timelines; and lastly, that even after a bill is returned and reconsidered by the legislature, the Governor can still refer it to the President and stall the legislative process indefinitely. In essence, the Union can choose any among these combinations to keep state legislation in limbo, leaving them to move the Supreme Court to negotiate for assent. This intrusion comes atop an already constricted federal landscape: states legislate on a comparatively small set of regulatory and revenue-sharing subjects, and their laws must concede to parliamentary legislation in cases of conflict. With Governors’ Assent, even laws belonging exclusively in states’ zone can be withheld as matters of pure politics.

While the Court suggests that states may move it for a “direction to take action” when legislation is withheld for unreasonable durations, litigation may be unable to substitute lawmaking. Time-sensitive policymaking would be stifled, governments may be unable to deliver on electoral promises, and weakened assemblies could be used to engineer defections. The impropriety in the court’s decision to hear the reference has been noted previously on this blog, for it effectively grants the Union a special appellate remedy to overturn precedent. For all practical purposes, however, this holding will govern the issue of assent going forward, and states would explore constitutional detours – each of which is democratically inferior to legislation – to minimise the risk of assent being withheld. Three strategies are likely to emerge.

First, the Governor lacks an option to withhold assent and return to the assembly a bill which has been certified as a “money bill”. States may leverage the law on the subject, which – pursuant to the Aadhaar judgment – enables any relationship, howsoever tenuous, between a bill and public funds sufficient to qualify it as a money bill. Accordingly, Speakers, who are partisan players in the political process and support the legislative agenda of their parties, may increasingly certify ordinary legislation as money bills based on a remote relationship of the law with public funds. Since money bills are not voted upon in upper houses, this option would undermine the value of bicameralism, for the Legislative Council – which comprises representatives from municipalities and the educational profession – would stand excluded. This option – under the text of Art 200 – would only prevent the Governor from withholding a bill and returning it to the assembly, not preventing them from referring it to the President. Given this possibility, states may use two other options.

Second, states already have a large volume of legislation in place, most of which allows for subordinate legislation to be formulated by state governments, i.e., their executive. Generally, instead of containing a definite list of matters on which subordinate legislation can be made, laws contain a general clause empowering the executive to make rules for “carrying out the purposes of the Act”. In the Supreme Court’s decisions on the subject, any subordinate lawmaking is acceptable as long as it is compatible with the “policy and guidelines” of the parent act. This is a deferential analysis, and generally, as long as the subordinate legislation does not undermine or conflict with the parent act, it is upheld. States could, therefore, find a statutory basis to their rulemaking by claiming to make rules in pursuance of a statute, avoiding the possibility of their laws being withheld. This is because Article 200 applies only to plenary legislation, and there is no requirement for the Governor’s assent for subordinate legislation. Thus, for instance, if a state seeks to provide affirmative action for infrastructure tenders and its bill doing so gets withheld (this is the situation Karnataka finds itself in), it can instead find a provision in a plenary legislation empowering rulemaking on the subject to occur, and simply bring the requisite policy using this route. This strategy, too, is democratically deficient: it undermines the value of legislative representation, and allows unelected members of the executive to control lawmaking.

Third, states may capitalise on another aspect of Indian constitutional design: its executive-centeredness. Under the constitutional framework, governments do not need a legislative backing to perform their tasks. They can, instead, simply act through their executive, and such acts cannot be challenged on grounds of being incompetent or impermissible solely because they lacked a supporting legislation (these can, of course, still be challenged for violating fundamental rights). The Supreme Court has conceptualised executive power as the “residue of governmental functions after legislative and judicial functions are taken away”, and Article 162 of the Constitution defines the state government’s powers as coextensive with those of legislatures. Accordingly, states may issue directions for desired governance activities to be carried out, and not enact a law at all. This option boasts the worst democratic credentials: in the absence of a definite legislation (plenary or subordinate), citizens cannot plan their affairs, uncertainty dominates, and enforcement depends entirely on administrative discretion.

States may, at least for some time, prefer sticking to the legislative route for activity previously performed this way out of convention. It is not, however, unforeseeable that the decline of federal relations may compel states to find crafty solutions to be able to govern even minimally, without every piece of legislation being stymied by the Union. When they do, these constitutional detours would be democratically deficient, and their origins will lie squarely in the Court’s opinion in Governors’ Assent.

Facilitating Digital Censorship – IV: The Use And Abuse of History in the Karnataka High Court’s Decision in X Corp v Union of India [Guest Post]

Gautam BhatiaLeave a comment

[This is a guest post by Krishaan Doctor. This is the fourth post in a series on the Karnataka High Court’s decision in X Corp vs Union of India. Read Part 1, Part 2, and Part 3.]

Introduction

In X Corp v Union of India, the Karnataka High Court upheld the constitutionality of Rule 3(1)(d) of India’s IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021  as well as the Sahyog Portal.  In reaching this conclusion, a facet of the Court’s reasoning that is noteworthy—but has received little attention—is its significant reliance on history. The court began the judgement by explaining that understanding free speech in the digital epoch required a ‘backward glance’ into the history of communication and technology. To facilitate this inquiry, it framed the following two questions.

(i)Whether the march of human civilization – from the days of yore to the present digital age – has ever witnessed information and communication in an unregulated state; or whether regulation has been its constant companion across epochs?

(ii) Whether the regimes of regulation that prevailed in earlier times continue to subsist, both in the local context of our polity and in the global order of nations?

Through its answers to these questions, the Court constructs an elaborate historical narrative that presented regulation as a timeless and inevitable counterpart of expression. History is portrayed as a linear march, in which every new technology inevitably gives rise to new regulation. The court then situates the contested IT Rules as part of this unbroken historical continuum of regulation, making them appear not as exceptional or overreaching but as part of a natural regulatory tradition. This narrative played an important role in foregrounding the Court’s decision to uphold the contested provisions, and served to broadly legitimise greater state control over digital communication.

This blog argues that the Court’s historical reasoning suffers from several critical flaws. First, the historical inquiry the Court embarks upon bore little relevance to the legal issues before it. Second, the Court fails to substantiate its claim that communication has always been regulated throughout history. Third, it deceptively weaves all historical communication regulation—including administrative, licensing, infrastructural arrangements, and colonial speech laws—into a continuous narrative to legitimise the contested IT Rules and the Sahyog Portal.

A Fundamentally Misguided Inquiry

At the outset, it is important to clarify X Corp’s contention before the court––because this is something that the court mischaracterises while framing the first two issues. X Corp sought to have Rule 3(1)(d) of India’s IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 declared ultra vires or read down to not confer an independent power to issue takedown notices. This was a challenge limited to a particular provision of the broader regulatory framework governing IT. However, the court construes X Corp’s limited claim as one that asked for ‘unbridled freedom’ [¶11.8] and sets out to defend the legitimacy of all forms of regulation.

Through directing its inquiry in such a manner, the court tries to imply that the regulation of communication in the past legitimises, in some manner, the contentious IT Rules of today. However, this reasoning is flawed for a fairly intuitive reason: the descriptive fact that something has occurred in the past does not lend normative justification to it. For a constitutional court, what is of relevance is whether a law conforms with the tenets of the constitution––and not whether it has been in operation since a very long time. While history might be relevant in construing what the constitution means, it by itself cannot be used to justify a particular law.

James Balkin has argued, in the context of constitutional law, that history must function as ‘resource’ for making arguments about the best understandings of our constitutional commitments. However, the questions framed by the court do not appear to use history in order to better understand or interpret a particular constitutional provision. The questions pitched by the court are at too high a level of generality in order to be useful for any kind of constitutional analysis. For example, should the court hold that communication has always been regulated­ it would do little to illuminate the scope of a legal provision or the values it enshrines. Such reasoning, as precedent, could be used to justify virtually any state enactment. This present case directly engaged Article 19 of the Constitution, so a historical inquiry might have been instead directed towards understanding the meaning of ‘reasonable restrictions’.

To conclude, the court’s historical inquiry is a product of a mischaracterisation of X Corp’s claim, and was not tied to the understanding of any particular constitutional or legal provision. The next two sections critically analyse how the court goes about proving the historical claims it makes.

Why Regulation Is Not the ‘Companion’ of Communication

The court, by way of the first issue, advances a sweeping historical claim: that regulation has always been the companion of speech. My observations on the court’s historical account are threefold. First, it merely describes different communication technologies without delineating the nature of regulation they are subject to. Second, the court’s account is cherrypicked: many examples the court references as evidence to prove that communication has been universally regulated demonstrate the contrary. Third, the claim is very easily disprovable.

An Entirely Descriptive Account

The court references a variety of different communication technologies, including the couriers of the Persian Empire, the postal system in the Mauryan age, the telegraph, the the early Internet, the World Wide Web and even YouTube. [see ¶10.01 to ¶10.11 and ¶10.13]

However, in its extensive discussion the word ‘regulation’ appears only twice––the relevant paragraphs are reproduced below.

Just as Kings and Parliaments of the old regulated the messenger, the post, the press, so too did Governments. [¶10.12]

The rise of this medium(Internet)….has not been without the steadying hand of regulation from time to time. [¶10.14]

The court’s engagement with regulation is highly limited––despite the fact that the argument the court is trying to make is that communication has always been regulated. Even when the court mentions regulation, it is invoked primarily as a rhetorical tool. There is no elaboration as to what regulatory mechanisms each form of communication was subject to or how regulation specifically evolved to accommodate each new technology. There is a significant logical jump involved between asserting that a specific communication technology existed and stating that technology was also regulated. A mere mention of different communication technologies––as the court did––does not suffice as evidence of regulatory frameworks governing them.

Cherry Picking

Onto the second point, the examples the court invokes are cherry-picked and could equally support a claim of communication lacking regulation. For instance, the court mentions the ‘printing press’ [¶ 10.3]. It took the Catholic Church 75 years to orchestrate its censorship policies to accommodate the printing press. It was this lack of regulation that allowed the rapid dissemination of ‘Protestant ideas’ that assailed the existence and authority of the Church. The court references the ‘birth of the internet’ [¶ 10.6] but fails to engage with the fact that in the early years of the internet, particularly the 1990s it was notorious for being decentralised and unregulated. It was described in one book as a “virtual ‘Wild West’, an unregulated province of libertarians and cyber-anarchists”. There are many such examples from throughout history­­––the point I am trying to make is that the historical record has been far more fragmented than what the court makes it out to be.

An Impossible Claim

Lastly, two things about how the court’s claim is practically impossible to prove. First proving that communication has always been regulated would require evidence from all of human history––which is impossible to acquire. By logical corollary, that claim also cannot be conclusively proven. This also applies to the other related claim the court makes later on, that there is no nation that has left flow of information, wholly unregulated. [¶ 10.3] Secondly, since the claim is that communication has always been regulated, even a singular counterexample (such as those mentioned above) would disprove it in its entirety.

To conclude this section, I am unsure as to what the court was thinking in framing this particular issue. Not only was it irrelevant to the case for the reasons discussed earlier, it is both historically inaccurate and can be very easily disproven. Further, the court did not even try explain how communication was ‘regulated’ in any meaningful way.

Deconstructing the Court’s ‘Historical Continuum’ of Communication Laws

By way of the second issue, the court draws a continuum between past regulatory regimes, both in India and the U.S, and the present IT Rules––in attempt to legitimise them as part of a broader historical trend.

It lists around forty two different laws and regulations from a variety of different historical eras to conclude the following:

“From the press of the colonial era, to the digital platforms today, there has always existed a framework of law to temper liberty with responsibility, freedom with accountability.” [¶11.9]

In this section, I catalogue the Acts/Rules the court mentions based on the subject matter they pertain to. (This is also necessary because the court has not described most of the laws it cites.) Through this, I aim demonstrate how the Court’s historical account is deceptive because of three key reasons.

First, the majority of statutes the court cites have little or no connection to speech-related restrictions. Second, among the few laws that do pertain to speech, most are colonial-era censorship enactments whose historical and normative context is left unexamined. Third, the regulations that pertain to proper speech restrictions and are genuinely relevant to the ‘freedom and accountability’ claim and are neither analysed nor contextualised.

Indian and American Administrative/Infrastructural/Miscellaneous Regulations (23 statues)

Sr NoActDescription
1Registration of Newspapers (Central) Rules 1956Regulates how newspapers and books are printed and published–requiring registration and certain declarations
2Press Council of India Act 1978Created oversight mechanism for the press and set journalistic ethics
3Central Media Accreditation Guidelines 2022Accreditation/licensing of media access
4Indian Broadcasting System 1930Establishment of state radio infrastructure
5All India Radio (AIR) 1936State-operated radio network
6Central News Organization (CNO) 1937State news infrastructure
7Prasar Bharati Act 1990Semi-autonomous public broadcaster administrative oversight
8Indian Telegraph Act 1885Licensing & technical operation of telegraph and telecom services
9Indian Wireless Telegraphy Act 1933Licensing & spectrum regulation
10National Telecom Policy 1994The primary objective of the policy was to ensure India’s emergence as major base of telecom equipment
11TRAI Act 1997Established Telecom Regulatory Authority of India (TRAI)
12New Telecom Policy 1999Updated the 1994 Act’s regulatory framework
13National Telecom Policy 2012Modernization & licensing
14NDCP 2018Digital communications policy infra regulation.
15Prohibition of Discriminatory Tariffs for Data Services Regulations 2016Concerning charging of tariffs by different service providers.
16Postal Acts 1792 & 1866Established federal control over U.S. postal services, including rates penalties, and correspondence.  
17Indian Telegraph Act 1885Establish government control over telegraph services and formalised licensing requirements.
18Mann-Elkins Act 1910Amendment to regulate transport & telecommunication infrastructure
19Interstate Commerce Act 1887Regulation of interstate transport and communication infrastructure
20Radio Act 1912Licensing & spectrum regulation for radio
21Communications Act 1934licensing of radio and satellite communications; mostly administrative
22Cable Communications Policy Act 1984Licensing & oversight of cable television networks
23Privacy Act 1974Limits on data collection by federal agencies; affects administration of communications

Colonial Era Censorship Enactments (9 statues)

Sr noAct and YearDescription
1Censorship of Press Act 1799Imposed censorship on printed material to control content and suppress dissent.
2Licensing Regulations 1823Made operating a press without a license an offense. Aimed at Indian-language newspapers or those edited by Indians.
3Press Act or Metcalfe Act 1835Expanded licensing requirements and imposed fines for ‘seditious ‘material
4Licensing Act 1857Gave the government the right to grant/revoke licenses and prohibit the publication of any newspaper or book.
5The Press and Registration of Books (PRB) Act 1867Required registration of books and controlled printing to monitor content
6Vernacular Press Act 1878Targeted vernacular language publications; enabled pre-publication censorship
7Newspaper (Incitement to Offence) Act 1908Criminalized publications that incited ‘violence or rebellion’
8Indian Press Act 1910Imposed stringent controls on press freedom and expanded government powers to seize press materials
9Indian Press (Emergency Powers) Act 1931Gave the government emergency powers to restrict publications during times of unrest

U.S Laws Mentioned By Court: Might Have Been Relevant But Not Analysed (4 statues)

Relevant U.S LawsDescription by Court
Communications Decency Act (CDA) 1996Criminalized display of offensive material to minors while shielding online intermediaries from liability for third party content [¶11.8]  
PATRIOT Act 2001The core purpose was to deter terrorism, expand law enforcement investigatory abilities [¶11.5]  
EARN-IT Act 2022Eliminate abusive and rampant misuse of interactive Technologies. The Act brings in, a federal frame work in prevention of online sexual exploitation of children [[¶11.6]  
Tools to Address Known Exploitation by Deepfakes 2022+(TAKE IT DOWN ACT)The purport of ‘TAKE IT DOWN Act’ is plain to shield dignity and to prevent exploitation in the digital public square and to criminalize non-consensual intimate imagery and seeking to govern the ungoverned expanse of cyberspace, as law and morality [¶11.7]  

The three Indian laws––Cinematograph Act 1952 (introduced U,UA,A,S film certification), Cable Television Rules 1994 and 1995 (set content standards for cable television––that could be construed as relevant to speech restriction are not even described by the court.

Analysis of Findings

A significant majority (24) of these laws dealt with only administrative, infrastructural or economic facets of communication. Indeed, a law that that attempts to universalise access to telephones or build radio infrastructure relate to communication in a broader sense. However, X Corp was about a singular facet of communication­­, which related to freedom of speech on digital platforms. Additionally, the claim that a communication law balanced ‘liberty with accountability’ generally refers to the extent of permitted speech and the restrictions imposed upon it. Thus, insofar as the court attempts to construct a narrative of continuity––between these historical laws and the contentious IT Rules and Sahyog Portal­­––it fails to do so. It is also to be noted that even if these laws did pertain to ‘speech’ they would not by themselves provide sufficient warrant for the laws because of the normative/descriptive distinction discussed in the first section.

A sizeable chunk (9) of laws the court mentions are colonial era enactments. It is deeply concerning that a constitutional court has referenced the likes of the Vernacular Press Act 1848 and Licensing Act 1857 in a case engaging Article 19 of the Constitution. The court later refers to these historical laws as ones that ‘tempered liberty with responsibility’. [¶11.9] Surely, and one hopes, the Court did not mean to rely on such repressive enactments as precedents for construing a constitutional right.

A select set of American legislations may have been relevant for the court’s analysis—however, the court’s engagement with them is limited to mere description. It does not explain what principle each legislation might illuminate or how theX Corp situation might be analogous. Ironically, the Communications Decency Act (CDA)––described by the court as a law that shielded intermediaries for third party content––directly supports X Corp’s position in the case (X Corp’s ‘safe harbour’ status was threatened if it did not comply with directives from the Sahyog Portal). Similarly, the few Indian laws that bore some relation to the broad fora of speech regulation are not analysed or contextualised.

Conclusion

This essay demonstrated the major defects of the Court’s historical reasoning in X Corp. Firstly, the inquiry it undertook was a product of a complete mischaracterisation of X Corp’s contentions and was far too general and ambiguous to be relevant to any kind of constitutional analysis. Secondly, the court’s primary claim (that communication has always been regulated) is something that the court does not even try to prove. In addressing the first issue, the court rarely even mentions regulation and when it does it lacks any genuine engagement. In the second issue, the court’s engagement with regulation was entirely descriptive in nature––and deeply misleading insofar as it tried to justify a speech based restriction on the basis of laws that pertained to subjects as diverse as telecommunications infrastructure, licensing of radio and censorship under a colonial regime.

Further, the court’s historical account does not reflect a bonafide attempt to reach the truth; rather it reads like an ex post facto rationalisation of an already predetermined conclusion. Throughout the decision, there is lack of analytical and reasoned engagement with history and yet, the court seems to reach a highly sweeping conclusion. It is a matter of great concern that this unreasoned narrative is then used to legitimise greater state control over speech.

Lastly, another reason why we must pay more attention to the court’s historical inquiry is because of the seriously diminished standard of judicial reasoning at play. It is disappointing that a bench of a high court is asking questions such as whether communication has ever been ‘unregulated’ or ‘always has been regulated’. These kind of questions reduce a much more complicated historical spectrum into a crude dichotomy. Had the court recognised that regulation exists in different degrees or forms, we could have seen a far more intellectually honest historical inquiry.

The Chief in his Chiefdom: On the Legacy of Chief Justice B.R. Gavai

Gautam Bhatia5 Comments

When I was a child, I loved reading “Choose Your Own Adventure” storybooks. In these stories, you – the reader – were the protagonist. Every few pages, you would be asked to make a choice, which would lead you to different scenarios, and – eventually – to different endings. But the great thing about Choose Your Own Adventure stories was that if you didn’t like it, you could just go back, make a different decision, and change the ending. It was that simple.

If there is one common thread that runs through the six-month tenure of Chief Justice B.R. Gavai – which ends today – it is that he treated his Chief Justiceship as a Choose Your Own Adventure story. If there was some long-standing precedent that he did not like, he used his powers as the master of the roster to overturn it. If another bench of the Court issued a ruling that he didn’t like, he set up his own bench and overruled it. It did not matter that in doing so established norms and conventions were shredded, entirely new jurisdictions were invented, and the rest of the Court was diminished. What mattered was the outcome, which – just incidentally – often happened to be aligned with the outcome that the central executive wanted. 

Let us be clear. Every Chief Justice that this blog has analysed has manipulated the roster to nudge the Court towards their preferred outcomes. CJI Misra did it. CJI Gogoi did it. CJI Bobde did it. CJI Ramana did it. CJI Lalit did it. CJI Chandrachud did it. CJI Khanna did it. Some of these manipulations were egregious, but whether out of a sense of self-restraint, or comity with their fellow judges, or some lingering concern for institutional integrity, these judges did not cross a certain line. In CJI Gavai’s tenure, the line ceased to exist. If his predecessors were – as the old saying goes – still only “first among equals,” despite everything, then he cast off the last remaining shackles of due process, and became a Chief in his Chiefdom.   

As with previous posts, this blog will consider the tenure of CJI Gavai from three lenses: as the head of the collegium (A), as the master of the roster, in control of the direction of the Court (B), and as a judge of a constitutional court (C).*

A. Head of the Collegium

    There are three major criticisms levelled at the collegium system of judicial appointments: first, that it is nepotistic; secondly, that it is non-transparent; and thirdly, that its opacity allows the central executive to exercise an informal, back-channel influence over appointments. Previous Chief Justices’ tenures would rank poorly on one, or perhaps two, of these indices. Chief Justice Gavai’s tenure hit rock bottom on all three. 

    On nepotism: during his tenure, the Collegium (that he was the formal head of) appointed his own nephew a judge of the Bombay High Court. Such a direct conflict of interest has not been seen in recent memory. Of course, it was informally leaked that he did not take part in the specific meeting in which his nephew’s name was put forward. We do not know this, because the records of the meetings remain opaque. But either way, it does not matter: whether or not he was personally present at the meeting does not change the fact that he was the head of the Collegium at the time, and does not cleanse the conflict of interest. 

    On non-transparency: as we have previously noted, CJI Chandrachud’s tenure saw some basic information being provided about the deliberations of the collegium in selecting judicial candidates. This was not very much – and in some ways, it was even counterproductive in establishing hard limits to the degree of transparency that would come from the collegium – but it was something. Under CJI Khanna’s tenure, this something was also rolled back, and under CJI Gavai it vanished completely, taking the collegium back to the cabal-of-high-priests-meeting-in-a-secret-conclave that it has long been accused of being (a late disclosure of the personal details of appointees – such as their caste and gender – does nothing to remedy this basic defect and – once again – provides an appearance of transparency where there is none) . 

    The nadir of this opacity was reached in the controversy around the elevation of Justice Vipul Pancholi to the Supreme Court. This elevation was controversial for a number of reasons involving supersession of multiple other High Court judges and the bypassing of senior, qualified women judges (in a moment of supreme irony, in his farewell speech, CJI Gavai lamented having been “unable” to appoint any women judges to the Supreme Court – while himself being responsible for superceding them!) 

    Now, in the absence of any information, it is impossible to know what – if any – reasons the Collegium had for this appointment, just like it is impossible to know what reasons the Collegium has for any appointment. But for our purposes, it is crucial to note that one of the judges (in fact, the only woman judge on the Collegium) – Nagarathna J. – dissented from the Collegium’s decision, and even her dissent note has been kept a secret. In an interview published today, the CJI stated that if Nagarathna J.’s dissent had “merit,” it would have been accepted by the other judges in the collegium (we all know that is how things work – after all, if Galileo’s views had merit, surely the Catholic Church would have accepted them!). But by this logic, we might as well stop publishing dissenting judgments, because if they had “merit,” they would not be dissents at all. Such flimsy, post-facto justifications need not detain us further, were it not for the frightening future that they portend: a Supreme Court that is so centralised under the Office of the Chief Justice, that even expressions of dissent from within the institution are kept private: what Justice Robert Jackson once called “the unanimity of the graveyard.”

    In sum, thus, not only do we have no access to the Collegium’s reasons for elevating someone as a judge of the Supreme Court, because these reasons are no longer recorded, we do not even have access to a judge’s dissent note that is formally on the record. Indeed, CJI Gavai’s decision to keep Nagarathna J.’s dissent note private was a harbinger of a theme that would be repeated throughout his tenure: a repeated diminishment of the collegial nature of the Supreme Court, and of other judges of the Court, at the expense of the all-powerful Office of the Chief Justice. 

    On executive influence: That the executive has a role to play in judicial appointments is a proposition accepted in most constitutional democracies. What this role ought to be is a matter of debate. But what is not a matter of debate is that this role should be transparent and clearly defined by law, and not something informal and shadowy. This is true whether a country has its executive literally appointing judges (as in the United States), or where the executive is one voice in a multi-member appointment commission (as in the United Kingdom), or where the executive has a downstream role in selecting from a shortlist (as in South Africa). The reason for this is obvious: as there is so much constitutional litigation against the executive, it is imperative to know precisely what role it has had in selecting the judges who will be adjudicating these cases. 

    The non-transparency and opacity of the Collegium is corrosive to this, and the more non-transparent the Collegium gets, the more corrosive things become. Nobody knows the exact role the executive plays, but everyone knows that through the pocket veto and other forms of pressure, it does play a role. And in the absence of specific information, as is inevitable, knowledge is replaced by the kind of speculation that is particularly toxic to maintaining public trust in institutional integrity. 

    None of this is new as far as the Collegium goes, but here again CJI Gavai broke new ground, and not in a good way. This involved the transfer of the High Court judge, Atul Sreedharan J. It was alleged that Sreedharan J. was repeatedly shunted between High Courts because he was a firm and pro-liberty judge whose orders were embarrassing the executive. We cannot comment on this because – once again – there is no transparency with respect to when, where, and for what reason the Collegium orders the transfer of a High Court judge. What we can comment on, however, is that when Sreedharan J.’s transfer order to the Chhattisgarh High Court (where he would have been a member of the High Court Collegium) was countermanded, and instead, he was transferred to the Allahabad High Court (where he would not be), the Collegium Resolution – for the first time – explicitly stated that this was being done at the recommendation of the central executive. 

    But if the whole purpose of the Supreme Court taking over the power of appointment and transfer of judges was to insulate these processes from the executive, then what role does an executive recommendation have to play in a transfer decision? More importantly, what was the recommendation, and why was it made? Yet again, we do not know, because nothing is transparent; what we do know now, however, is that it is on the record that a judge’s transfer was influenced by the executive (to the detriment of that judge’s seniority). 

    One does not need to think too far to see the impact this will have on other High Court judges: earlier, they were subject to transfer by an unreasoned collegium order. Now, they are subject to transfer by an unreasoned collegium order on the recommendation of the executive. It cannot be understated how deeply this undermines judicial independence.  

    B. Master of the Roster and the Direction of the Court 

      For the last eight years, this blog has critically examined the extraordinary administrative powers enjoyed by the Chief Justice as the “Master of the Roster”: this includes the power to assign cases to any judge or combination of judges (the CJI has thirty-three to pick from), the power to decide which cases are to be heard, and the power to leave cases hanging in cold storage. These powers – and the way that they have been wielded by each Chief Justice – means that it is, in large part, the CJI who decides not just the cases he places before himself, but also, in a very significant way, the direction of the Court under his tenure. 

      I. The Direction of the Court

      What were some of the significant features of the direction of the Court under CJI Gavai? To start with, the Court continued its time-honoured tradition of judicial evasion: that is, its refusal to hear constitutional cases against the executive, and its maintenance thereby of a status quo that benefits the executive. During CJI Gavai’s tenure, long-pending constitutional challenges continued to go unheard, while – on the other hand – fresh cases pertaining to a very specific issue (the appointment of the district judiciary) were swiftly taken on board, heard, and decided. 

      However, the most egregious case of judicial evasion during CJI Gavai’s tenure was how the Supreme Court dealt with the challenge to the Election Commission’s decision to carry out a Special Intensive Revision (S.I.R.) of the electoral rolls in advance of Bihar state elections. The S.I.R. was challenged soon after it was announced, in early July. It raised fundamental constitutional issues that went to the heart of the electoral and democratic process, such as the competence and powers of the Election Commission to conduct such an exercise in the manner that it was doing, the constitutionality of placing the burden of proof on individuals to demonstrate eligibility through a list of documents, the possibility of mass disenfranchisement, and so on. It was assigned by CJI Gavai to a bench presided over by his next-senior-most colleague. 

      It is now late November. More than four months have passed, and the Supreme Court has not held a single substantive hearing on the constitutional challenge. What it has done is hold multiple, hours-long hearings on issues such as whether “Aadhaar” should be added to the list of documents or not, issues that are all obviously downstream from the constitutional challenge itself. In the meantime, the Bihar elections came and went, and the S.I.R. was subsequently announced in multiple other states. 

      To those who have been following and been involved with the Supreme Court over the last decade, this is a drearily familiar story: constitutional challenges languish until they become infructuous, until what they were challenging has become a fait accompli. In the meantime, the Court holds multiple – and chaotic – hearings on issues that are entirely disconnected from the substance of the challenge itself. The S.I.R. case is a particularly egregious example, as this is a challenge about the electoral process – quite literally, the very ground rules that enable democracy to function. For a constitutional court, this should take first and urgent priority; however, on repeated occasions, on listed dates, the Court told petitioners that it was “hearing other matters”, and this case would have to wait, or be heard for a few minutes (thus precluding any substantive engagement). No constitutional court worth the name would treat democratic disputes in such a callous manner. 

      The Court’s refusal to hear the case – and instead, to rule through a series of one-line interim orders – raises another issue. Constitutional adjudication is not just about settling the rights and obligations of parties, and protecting individuals from State power: it is also about judicial accountability. When Courts write judgments, they must necessarily give legal reasons, and in that process, explain themselves to the public: how, why, and in what manner have they reached their decision? This opens up Courts to public scrutiny and critique, and remains the only real node of accountability. When, therefore, in a case like the S.I.R., the Court takes highly consequential actions over a period of months, but there is no reasoned judgment (as everything is happening through interim orders), it also insulates itself from the accountability that comes with publicly and openly deciding the cases brought to it. This is of a piece with the opacity and non-transparency we discussed in the previous section, and both pertain to how the Court has, in effect, liberated itself from accountability. Judicial evasion is one of the most potent weapons through which it does so. 

      The other significant event which reflected on the direction of the Court under CJI Gavai’s tenure pertained to the “Vantara case.” In a hasty and irregular process, a bench of the Supreme Court – acting on two half-baked public interest petitions – set up a Special Investigation Team to investigate whether Vantara was involved in any illegality when it came to trafficking of wildlife and other related laws; equally hastily (in under three weeks, to be precise), the SIT filed a report clearing Vantara of all charges. At this point, it must be noted that there seems to be absolutely no principle or standard that determines when, and on what basis, the Supreme Court decides to set up these “SITs,” with all the far-reaching consequences that that entails; it apepars to depend entirely on the uncanalised discretion of the judges involved. 

      In any event, the Court then passed an extraordinary judgment, in which the most extraordinary part was two directions. 

      The first was an order that “no further complaint or proceedings based upon such same set of allegations shall be entertained before any judicial statutory or administrative forum.” In one stroke, the Court erased the entire criminal and civil law machinery that exists in the country, with respect to Vantara, on the strength of an SIT that it itself had constituted, and whose report has never been made public (of course, this is not the first time the Supreme Court has done this, and it remains now – as it remained then – unjustifiable).

      The second was a direction that “we may leave it open to the respondent – Vantara to pursue its remedies in accordance with law for the deletion of any offending publication or for any action against those responsible for the misinformation or for actions for defamation…”

      I have previously referred to this as the Supreme Court’s “Idi Amin jurisprudence.” One does not need to be a clairvoyant to read between the lines and understand this for what it is: a signal that it is open season on critics and dissidents. One does not need to be a clairvoyant because, again, one has seen this before: in cases involving Teesta Setalvad and Himanshu Kumar, where – utterly unconnected to the actual case before it – the Court makes these innocuous suggestions to prosecute or otherwise use the law against specific people. The continuation of this judicial vindictiveness under the tenure of CJI Gavai is disturbing. 

      As an aside, it is interesting to note that from start to finish, this case took forty-five days before it was closed, and all of that without the Court ever formally issuing notice on the petition. 

      What of other areas of constitutional law? Things largely stayed the same under CJI Gavai’s tenure as they had under his predecessors, which is not to say that things were good. Personal liberty continued to suffer. Political prisoners still languished in jail for years without trial, even as interminable hearings continued (and continue) before the Supreme Court. Challenges to administrative detention – such as that of the political leader Sonam Wangchuk – were kept pending with long dates until they became effectively infructuous. The Court continued to exhibit a peevish hostility towards the freedom of speech, berating one person, setting up an SIT (that SIT again!) to investigate the Facebook posts of another, and sanctioning continued police harassment by refusing to grant anticipatory bail to a third. The language of the Court continued to coarsen and cheapen towards some of the most vulnerable members of society, such as refugees and migrants. Indeed, while a dislike of refugees and migrants – and of the international legal framework that seeks to protect them from persecution – has long been part of the Supreme Court’s judgments, jibes and taunts from the bench towards the UN High Commission one day, and towards petitioners protesting the physical dropping of refugees into the ocean for deportation another day, marked a new low in the quality of the conversation that takes place within the halls of the nation’s highest constitutional court. While, naturally, one cannot hold the CJI directly responsible for specific oral remarks made by other judges, all in all, the Court’s drift from an institution that engages seriously and dispassionately with law and legal reasoning, to a forum where our society’s nastiest and most parochial sentiments now get a public airing from the bench, continued. 

      II. The Master of the Roster 

      It was in his actions as the Master of the Roster, however, that we saw CJI Gavai as the protagonist of his own “Choose Your Own Adventure Story.” The most prominent example of this, of course, was the manner in which he took up a Presidential Reference filed in the aftermath of the Court’s ruling (State of Tamil Nadu) that Governors and Presidents were bound by timelines to act on state legislative assembly bills. 

      In setting up a bench post haste, which then went on to render an opinion effectively overruling State of Tamil Nadu, CJI Gavai and his bench did something truly extraordinary: as I have noted at some length in this post, they created a new, intra-Court appellate jurisdiction which only one party can utilise: the central executive. After this Presidential Reference, whenever the central executive is unhappy with a case that they have lost before the Supreme Court, they can simply file a Presidential Reference (a privilege which no other litigant in the country has), and get a second bite of the cherry before a five-judge bench, where the previous decision is entirely ignored and the case considered afresh. 

      Yes, we have had Chief Justices previously who have administered what I have referred to as an “executive court”: but this is the first time we have had a Chief Justice who has formally created a privilege reserved only for the executive, and entrenched it within the Constitution. Perhaps we now need a term that goes beyond the “executive court” (see the Conclusion for a suggestion). 

      Other than the Presidential Reference case, CJI Gavai repeatedly manipulated the roster in other cases to overturn precedent that he didn’t like. A two-judge bench of the Supreme Court had passed a judgment holding that post-facto environmental clearances to big corporations involved in extractive activities (such as mining etc) were illegal. Against this judgment, a review petition was filed. A review is an extraordinary remedy requires three things: one – that it be heard by the same bench that passed the original judgment; two – that it be decided in circulation in chambers unless there is a specific, stated reason to hear it in open court; and three – that a review can succeed only if the original judgment has an error on the face of the record (and not simply because another judge believes the law should be decided differently). 

      After passing the environmental clearances judgment, one of the judges – Oka J. – retired. CJI Gavai then set up a review bench that had three judges instead of two: the other judge on the original bench (Bhuyan J), the CJI himself, and a third judge (Chandran J). Without any circulation or reason why the case was being reviewed in open Court, this three judge bench now passed a judgment “recalling” the original judgment (needless to say, Bhuyan J dissented). 

      And needless to say, the “recall” judgment made no effort to demonstrate how Oka J.’s original judgment was so erroneous that it had to be “recalled.” The consequences, as many have noted, are going to be devastating for the environment; but the consequences are also devastating for the Supreme Court as an institution, because clearly, even final judgments of the Court can be very quickly overturned if the Chief Justice does not like them. 

      These examples would have been bad enough on their own, but there are a litany of such cases: from the Court’s Constitution Bench decision on the district judiciary, to the notorious matter involving stray dogs, to an unreasoned stay upon another judge’s order that somehow came to him in “review” in open court after a split bench (see above), CJI Gavai’s tenure was marked by the manipulation of the master of the roster’s powers to not just assign and list cases, but to actively interfere with decided (or pending) cases (for a more detailed analysis, see Indira Jaising’s piece here). The upshot of this – other than the gutting of the doctrine of precedent and the rule of law – is, of course, a diminished institution. It was bad enough that as “first among equals,” the Chief Justice had vast administrative powers of assignment and listing, which could influence outcomes. This influence, however, was indirect; under CJI Gavai’s tenure, this became direct interference, thus effectively rendering the Office of the Chief Justice far more than “first among equals”, and in every way, a superior among subordinates.

      Or, a chief in his chiefdom. 

      C. Constitutional Judge

        What of CJI Gavai’s time as a constitutional judge during this six-month tenure? We do have some judgments involving the district judiciary (as noted above) and tribunals, but at least as far as substantive constitutional law goes, there is only the Presidential Reference (which was authored per curiam). On substantive issues, the Presidential Reference “opinion” has been critiqued elsewhere on this blog; here, in addition to what I have noted above, I will add one further point, which is in line with the theme of this post, and of CJI Gavai’s tenure. The effect of the Presidential Reference Opinion – other than gutting Indian federalism – is to place elected state governments not only at the mercy of Governors and Presidents, but – even worse – at the mercy of the Supreme Court. 

        At its heart, the Presidential Reference Opinion is an expansion of unprincipled and discretionary judicial power, because what it does is to give to itself the final call on whether there has been “enough” delay on part of Governors and Presidents to warrant judicial intervention – but, unlike the State of Tamil Nadu – with absolutely no standards to check the arbitrariness of the Court in making that determination. Henceforth, therefore, for every bill that a Governor pocket-vetoes, states will have to come to the Supreme Court and plead for intervention so that they can go about their business of legislation. And we have seen where this road goes before, with the 10th Schedule and the anti-defection cases: the Court turns into a political actor and a power-broker between the centre and the states, tipping the scales this way and that. And, just like in the 10th Schedule cases, because there is no law and there are no standards, the Court will not explain itself even as it makes hugely consequential decisions. Just like in 2022, the Maharashtra government flipped with two one-line interim orders of the Court, states will be informed through one-line diktats whether they can legislate or not. 

        It would be remiss not to conclude with a brief coda of the hypocrisy involved in the Presidential Reference Opinion. Forget, for a moment, the hypocrisy of the Indian Supreme Court invoking the “separation of powers” in 2025, given its sweeping role in Indian public life. Forget the hypocrisy of the Court suddenly becoming chary of invoking Article 142 of the Constitution in this case. Forget the sudden, odd fidelity to text when each of the judges on the bench owe their own position to the Collegium system, which was invented out of whole cloth. The fact is that the same CJI Gavai who headed this bench saw no problem with imposing a three-month deadline on an Assembly Speaker to decide on disqualification petitions. Walt Whitman may contain contradictions. A Chief Justice does not have that luxury. Or so one would have thought. 

        D. Conclusion 

          Through his tenure, the Chief Justice liked to speak about his achievements. He praised himself for having stopped “bulldozer raj” and restored the rule of law, even as the bulldozers continued to demolish homes. And on his farewell day, he praised himself for not having used a single foreign precedent in the Presidential Reference Opinion. He called it “swadeshi jurisprudence.” 

          But what exactly, one might ask, is “swadeshi” about a judgment written in English, relying primarily on the English common law of precedent, considering the powers of the English-invented institution of the “Governor,” and propounding a doctrine of executive deference that was originally propounded by the German jurist, Carl Schmitt? 

          Indeed, the greatest exponent of that same English language, one Shakespeare, famously asked us: what’s in a name? What we call the executive court, by any other name, would judge the same (or not judge, if it is performing judicial evasion). If CJI Gavai’s parting achievement is to bring together all these diverse elements of the executive court – judicial evasion, non-transparent appointments, manipulation of the roster, callousness towards personal liberty, “Idi Amin rulings,” coarse judicial language, and executive deference before all else (including federalism) – within one label, that of swadeshi jurisprudence, then perhaps we should be grateful to him for that. After all, brevity is the soul of wit, Shakespeare also said. 

          We look forward to the further evolution of this swadeshi jurisprudence. 

          Illegal…For Now: the Supreme Court on the Maintainability of Special Presidential Reference No. 1 of 2025 [Guest Post]

          Gautam Bhatia2 Comments

          [This is a guest post by Karthik Ravichandran.]

          A five-judge bench of the Supreme Court recently gave judgement in an Article 143 Reference in which the President sought answers to fourteen constitutional questions concerning assent of bills by State Governors and the President (“Re Assent to Bills”). As widely noted, many of these questions had been explicitly answered in State of Tamil Nadu v. Governor of Tamil Nadu (“Tamil Nadu”), barely a week before the Reference was made. The Reference itself was obviously a response to the Tamil Nadu judgement.

          In Tamil Nadu, a Division Bench of the Court had laid down rules for Governors acting under Article 200. These had to do with, among other things, the width of the Governor’s powers in relation to withholding assent to a State bill, the Governor’s discretion in doing so against the wishes of the Cabinet of Ministers (it had none), the justiciability of the Governor’s actions under Article 200 (widely justiciable under various grounds), and timelines under which the Governor was generally expected to exercise Article 200 powers (specific timelines were stipulated for the various options, with exceptions). Tamil Nadu arose out of a situation in which the Governor sat on bills for months, initially withholding assent without sending them back to the legislature, then sending them to the legislature after much coaxing by the Supreme Court, and then sitting on the bills again after they were returned. It is hard to argue that the Governor wasn’t essentially exercising a pocket veto on the State’s legislative agenda – something the Tamil Nadu Court seems to have acknowledged. Aside from interpreting Article 200, the Court decided that in this particular instance, the Governor was in gross violation of the timelines that it had just laid down. It used Article 142 to deem assent to the bills that the Governor had been illegally sitting on. A judicially deemed assent of a legislative act was a first in India’s history, and was subject to much controversy.

          We will refrain from delving into the merits of the Tamil Nadu judgement, and restrict ourselves to the manner in which the Court answers questions on the maintainability of this Reference. An earlier post on this blog rightly argued that the Reference was clearly not maintainable in as much as it sought to address questions that had been explicitly addressed in Tamil Nadu, considering that it would basically amount to entertaining a second round of litigation where the executive had lost in the first round. In other words, it would amount to creating a special de novo review/appeals process for the Union Government, for judgements that went against it, thus by-passing the high thresholds of invoking the review and curative jurisdictions – what Gautam Bhatia calls “constitutional mulligan” (This author likes the term constitutional trial ball). Presidential References are thus, only meant to answer questions that the President could possibly not have known the answer to from the Court’s jurisprudence, and not as a means to overturn settled law. This argument finds explicit support in the Supreme Court’s judgement in the Cauvery Reference (“Cauvery”). The In Re Assent to Bills Court disagrees.

          For some reason, the Court begins its refutation of this argument by distinguishing this Reference from the fifteen that have come before it, terming this one as a “functional reference” (paragraph 10). This is purportedly because it deals with the “day to day functioning of constitutional functionaries” and “strikes at the root of the continuation of our republican and democratic way”. It is unclear what this means, not in the least because one of the other References – all of which the Court lists out – is the Third Judges Case, which, one could say, did deal with the day to day functioning of powerful constitutional authorities, and was equally consequential to democracy. But more importantly, one wonders why the nature of the subject-matter of this Reference, notwithstanding the uniqueness that the Court ascribes to it, would have any bearing on its maintainability, if it doesn’t fulfil some basic requirements. That the Court appears to decide it does in this case, is emblematic of the way it deals with the entire maintainability question. This is basically laying the groundwork for ascribing a certain inevitability to answering these Reference questions – to the extent that one must do away with any principled engagement with Article 143. Having done that, the Court proceeds to actually deal with the maintainability arguments. 

          The Court begins by arguing that it is generally permissible for it to overrule its judgements even in its Article 143 jurisdiction. It begins substantiating this by extracting a passage from In Re: Special Courts Bill, 1978 (“Special Courts”), another Presidential Reference.

          …We are inclined to the view that though it is always open to this Court to re-examine the question already decided by it and to over-rule, if necessary the view earlier taken by it insofar as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this court even in the exercise of its advisory jurisdiction under art. 143(1) of the Constitution.

          Now this is barely helping the point the Court is trying to make. In Special Courts, the Supreme Court was contemplating, after substantively considering the questions of that Reference, whether an Article 143 opinion was binding on other Courts. The Court ended up deferring that question for a later day but expressed its inclination to answer in the affirmative. But, more importantly, in doing so, the Court observed, in the extracted paragraph, that only the Supreme Court has the power to overrule its judgements. This was merely a reiteration of the Court’s general power under Article 141, and not a comment on whether there is an exception in the Court’s overruling powers for when it is hearing a case in its Article 143 jurisdiction. Now, the Court correctly points out that this same passage has been used by it earlier, in the Natural Resources Allocation Reference (“2G Reference”), to explicitly say that the Court does have power to overrule judgements in its Article 143 jurisdiction. Be that as it may, this reliance, as I have pointed out above, is incorrect.

          Let us now deal with the 2G Reference. Other than invoking that one paragraph from Special Courts, the 2G Reference Court also makes some points on first principles. It engages with Cauvery, which recall, explicitly states the opposite – that the Court cannot overrule previous judgements in its Article 143 jurisdiction, because doing so would amount to sitting in a special appeal over its own decision. In 2G Reference, the Court says that when Cauvery refers to the “overruling” of judgements, it only refers to the specific inter partes dispute or the lis in the judgement being overruled. Overruling the judgement on the lis is not permissible except in the Court’s review and curative jurisdictions, as opposed to overruling a “view of the law” which the Court says it is entitled to do under Article 143, when it is read with Article 141. And surely enough, the Re Assent to Bills Court reiterates this point.

          This is problematic for a variety of reasons. Firstly, this is a misreading of Cauvery, which makes repeated references to the overruling of “questions of law”, explicitly stating that only those “questions of law” that have not been decided by the Court are open for the President to refer under Article 143 (paragraph 85). The phrase, “questions of law” is borrowed from the text of Article 143 itself, where there is a distinction drawn between questions of law and fact. Now, from what this author understands, the entire concept of stare decisis which is the fundamental basis for the common law system, is based on the idea that a principle laid down in a particular case, even if it is in the context of a particular set of facts, is applicable to similarly placed parties in the future. That principle answers what is known as a question of law, and establishes a position of law that is supposed to influence future behaviour, and governs future disputes. Now, under this formulation, in what universe are the propositions laid down in Tamil Nadu, not answering questions of law? Under Tamil Nadu, the law would, for instance, require Governors to decide on withholding assent to bills within a stipulated time period. After Re Assent to Bills, the law does not do that. This is in the most straightforward sense, an overruling in a question of law, and contrary to Cauvery.

          Secondly, let us keep Cauvery aside for a while, and entertain on first principles the idea that the only kind of overruling not permitted under Article 143 is an overruling in terms of the inter partes lis. Under this formulation, is a Presidential Reference containing the question “Can Parliament amend the basic structure of the constitution” maintainable only because it is not framed as, “Are the 24th, 25th and 29th Constitutional Amendments valid?” Is any Presidential Reference on any Constitutional question having wide implications, previously decided by the Court, maintainable as long as the Court does not re-visit the facts out of which the question arose the last time? The Court’s answer to this question seems to be in the affirmative. In paragraph 26 of the judgement, the Court says that because the Reference does not require it to “vacate, amend or modify the relief” granted in Tamil Nadu, it is maintainable as regards questions surrounding “propositions of law” decided in that case.

          This is untenable and upends the very fabric of law that the Supreme Court declares, especially when the Union Government is involved. The Union Government’s interest in a question of law does not extinguish as soon as it loses or wins a particular case implicating that question of law. This is even more so in cases involving disputes between itself and the States, namely matters of federalism, which, as we have been told repeatedly, is a basic feature of the Constitution. For instance, the Union’s interest in the question of law surrounding the Article 131 suit between the State of Kerala and the Union, goes beyond the suit. A victory for the Union enables it to impose fiscal borrowing ceilings on every other State, whereas a loss does the opposite. But this is meaningless if the Union loses and is then enabled to reverse the position of law through a Presidential Reference, as long as the relief granted to the State of Kerala is not reversed. This is equally true in matters concerning individual fundamental rights, which is why it should be extremely concerning that Courts are, for instance, prohibiting the use of bail judgements as legal precedent.

          Lastly, consider this. If a question of law being overruled in a Presidential Reference was previously answered in a judgement involving the Union, the idea that the Court is not entering into the inter-partes dispute is, at any rate, only half true, especially when the interests of the Union in both proceedings are identical. And this is precisely where the sleight of hand is happening – because what the Court fails to mention in all of this, is that one party is omnipresent, namely the Union. The Union is involved in every dispute involving federalism, and it is only the Union that is entitled to get its interests reconsidered through a Presidential Reference.

          Conclusion

          If you believe the Constitution is a terrain of contestation of power, Re Assent to Bills, by simply admitting the Reference,helps further the tilt in the power-balance in the Union executive’s favour – and this is on all the axes of power the Union executive occupies, given that an Article 143 Reference can be brought in with regard to pretty much any question of law. And this is not even counting the substantive part of the Reference where the Court reverses some progressive ideas from the Tamil Nadu judgement that helped reign in Governors’ impunity in dealing with State bills.

          One final observation. The Indian Supreme Court is known for its “illegal but what to do now?” jurisprudence whereby it prospectively lays down propositions of law in matters where it either refuses to use said propositions to do justice to the parties before it, or places itself in positions where it is unable to do so. These days, the Court seems to have devised the mirror image to this, whereby it does justice to parties before it, but then revokes the benefit of that justice to future litigants. We can call this “illegal…for now” jurisprudence. And like its mirror image, “illegal…for now” jurisprudence is the perfect ode to the discretion-based law that the Supreme Court of India has come to champion in recent times.

          Unconstitutional by Design: Prior Restraint and Compelled Speech in the 2025 IT Rules Draft Amendments

          Gautam BhatiaLeave a comment

          [This is a guest post by Rudraksh Lakra.]

          On October 22, 2025, the Ministry of Electronics and Information Technology proposed amendments (“Draft Amendments”) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.  The stated objective of the Draft Amendments is to address the “growing misuse of synthetically generated information including deepfakes, misinformation, and other unlawful content” and to further the goal of creating an “Open, Safe, Trusted, and Accountable Internet.”

          While the Draft Amendments have generated extensive policy and legal debate, two significant free speech concerns have received insufficient attention: (i) the risk of prior restraint, and (ii) the imposition of compelled speech/must-carry obligations on intermediaries. This article argues that, in their current form, the Draft Amendments are unconstitutional because they introduce disproportionate compelled speech requirements and create an unlawful system of prior restraint.

          Prior Restraint

          Draft Amendments, Rule 4(1A)(a) requires users to declare whether the information they upload on a Significant Social Media Intermediary (“SSMI”) platform is synthetically generated information. “Synthetically generated information” is defined as “information which is artificially or algorithmically created, generated, modified, or altered… in a manner that such information reasonably appears to be authentic or true.”

          Further, Rule 4(1A)(b)-(c) requires SSMIs to deploy “reasonable and appropriate technical measures,” including automated tools, to verify user declarations, and where it is confirmed that the “information is synthetically generated, ensure that the same is clearly and prominently displayed with an appropriate label or notice, indicating that the content is synthetically generated.”  Now Draft Amendments, Rule 4(1A) chapeau provides that a significant social media intermediary “shall, prior to such display, uploading, or publication….” One reasonable interpretation of this language is that content cannot be posted unless it has first been verified by the intermediary. The accompanying explanation reinforces this reading by requiring intermediaries to “verify the correctness of user declarations and ensure that no synthetically generated information is published without such declaration or label.” Interpreted in this manner, the provision would amount to a form of prior restraint on free speech.

          Prior restraint refers to regulatory mechanisms that prevent speech or publication before it occurs, rather than imposing accountability after the expression has entered the public domain. Prior restraint is treated as uniquely suspect because it suppresses speech at its source, denying both the speaker the opportunity to express and the public the opportunity to receive information. Unlike post-facto regulation, which allows speech to circulate and then subjects it to accountability. Prior restraint presumes speech to be harmful unless permitted, thereby inverting the constitutional default in favour of free expression. Such systems tend to create a chilling effect, as speakers may choose silence over the uncertainty, delay, or scrutiny involved in obtaining prior approval. They also typically vest discretionary power in administrative or executive actors, which makes it easier to circumvent constitutional guarantees and heightens the risk of selective or politically motivated enforcement.

          In India, for these reasons, the Supreme Court has struck down prior restraints in Romesh Thappar v. State of Madras (1950) (“Romesh Thappar”), Brij Bhushan v. State of Delhi (1950) (“Brij Bhushan”), and R. Rajagopal v. State of Tamil Nadu (1995) (“R. Rajagopal”). In Brij Bhushan, the Court cited Blackstone for the proposition that “the liberty of the press consists in laying no previous restraint upon publications” and that “every free man has an undoubted right to say what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press.” In R. Rajagopal, after relying on extensive American jurisprudence, where there is a strong presumption against prior restraint, the Court held that pre-publication censorship of material allegedly defamatory of the State or its officials was unconstitutional. Although the Supreme Court in K.A. Abbas v. Union of India(1970) (“K.A. Abbas”) upheld pre-censorship in the context of cinema; that decision was rooted in a parens patriae approach to film as a distinct medium and did not engage with the earlier rulings in Romesh Thappar and Brij Bhushan. Even in Abbas, however, the Court acknowledged that “freedom of speech and expression admits of extremely narrow restraints in cases of clear and present danger,” and further noted that censorship must be “precise.” Taken together, this line of cases establishes that prior restraint is presumptively unconstitutional and can only be justified under exceptional circumstances. Further, any such restriction must meet the requirement of demonstrating a proximate connection between the expression and the likelihood of unlawful action.

          Draft Amendments, Rule 4(1A) introduces a mandatory pre-verification requirement, and this mandate is unconstitutional under the proportionality standard because it is a disproportionate restriction. First, the labelling requirement envisaged under the Draft Amendments does not have a proximate connection to the stated aim. Labelling does not identify harmful content; it merely indicates whether a piece of content is synthetically generated information or not. The label itself does not assess illegality, misinformation, harm, or user intent. Second, the efficacy of such a labelling system is highly doubtful. Given the technical and operational limitations of automated content moderation tools, especially in non-Western contexts, non-Latin scripts, and in situations where the assessment of content requires meaningful context-based analysis. Third, a pre-verification model risks substantially altering how users engage with social media platforms, where spontaneity and immediacy are defining features. If adding a label to AI-generated content results in delays before posting, users may be discouraged from disclosing that their content is AI-generated, even when it is. This would defeat the purported objective of the draft Rule.

          Thus, even assuming the legitimacy of the State’s stated objective, the pre-verification mandate fails the balancing stage of the proportionality test: it is both operationally and technically unworkable, and it imposes a significant and unjustified burden on free expression. SSMIs now function as the modern equivalent of the public sphere, providing the primary space for political debate, social interaction, and the exchange of ideas. Thus, they are no longer merely private platforms but have become essential infrastructure through which contemporary democratic discourse is mediated. Imposing a verification burden on these platforms converts them into pre-publication censors. This concern is heightened by the fact that the definition of “synthetically generated information” in the Draft Amendments lacks objective criteria, inviting arbitrary and ad hoc decision-making under threat of liability. Further, the verification process is not accompanied by any meaningful procedural safeguards or due process guarantees.

          Compelled Speech/Must Carry Speech

          Compelled speech arises when the State requires an individual or entity to express, endorse, or disseminate a message they would not voluntarily convey. Although free speech protections are often understood in terms of restrictions on expression, compelled speech is equally problematic because the constitutional right to free speech necessarily includes the right not to speak. The Supreme Court in Union of India v. Motion Picture Association (1999) (“Motion Picture Association”) held that compelled speech constitutes a violation of free speech and must therefore be justified under Article 19(2) of the Constitution. It further noted that: “[i]f a ‘must carry’ provision furthers informed decision-making which is the essence of the fight to free speech and expression, it will not amount to any violation of the fundamental freedom of speech and expression.” However, the Court decision failed to mention that apart from pursuing a legitimate aim of enabling informed decision-making, the measure itself must be reasonably designed. In the contemporary constitutional context, the requirement of reasonableness under Article 19(2) translates into satisfying the proportionality principle [Modern Dental College v. MP(2016), Puttaswamy I (2017), Puttaswamy II (2018) and Anuradha Bhasin v. UoI (2020)].

          The Draft Amendments introduce three compelled-speech obligations. First, Rule 4(1A) requires users to declare whether their content is synthetically generated. Second, it mandates that SSMIs verify such declarations and attach corresponding labels. Third, Rule 3(3) obligates any intermediary that “enables, permits, or facilitates the creation, generation, modification or alteration” of synthetically generated information to apply a label/watermarking to such content. These requirements are akin to disclosure obligations mandating ingredient labels on food products or health warnings on cigarette packets. These were noted as examples of legitimate forms of compelled speech by the Supreme Court in Motion Picture Association. In the present context, the stated aim of enabling users to distinguish between synthetic and non-synthetic content is likewise a valid and important objective, particularly given the risks posed by deepfakes and misinformation. However, as I demonstrate below, the specific labelling measures imposed by the Draft Amendments are overbroad and unduly burdensome, as they fail the necessity and balancing stages of the proportionality test.

          Under Rule 3(3), the watermark has to cover “at least ten percent of the surface area of the visual display or, in the case of audio content, during the initial ten percent of its duration.” The use of the terms “visibly displayed” or “made audible in a prominent manner” makes clear that the type of watermarking envisaged is a visible label. However, visible watermarking is one of the weakest forms of content authentication, since such marks can be removed or obscured using basic editing tools, defeating the regulatory purpose. By contrast, robust authentication systems rely on imperceptible or embedded watermarks that remain detectable even after editing or compression. The Rule is also problematic because requiring a watermark to occupy ten percent of a visual display risks materially degrading the aesthetic, immersive, or expressive quality of content for end users. This burden becomes even more disproportionate given the provision’s sweeping scope, which applies not only to fully AI-generated content but also to trivial or routine edits such as cropping, colour adjustment, or the application of filters that do not meaningfully alter the semantic content of the underlying work.

          Comparable regulatory models take a far more calibrated approach. For instance, the European Union Artificial Intelligence Act (2024) adopts a narrower and more technically informed approach: it exempts AI systems used for ordinary editing functions and requires watermarking duties to take into account “the specificities and limitations of various types of content,” cost implications, and the state of available technology [Article 50(2)]. Accordingly, the provision is unconstitutional because it imposes a burdensome and overbroad compelled-speech requirement while relying on a technically deficient mechanism that neither reliably distinguishes between synthetic and non-synthetic content nor meaningfully advances the stated regulatory objective.

          Rule 4(1A) imposes an even more disproportionate compelled-speech obligation. It requires users to declare whether their content is synthetically generated and obligates SSMIs to verify and label such content. By comparison, the watermarking requirement in Rule 3(3), if properly designed, is a more effective and proportionate method of achieving the same regulatory objective. Watermarking allows the developer or deployer of a generative tool to embed a secure identifier directly into the content at the point of creation, enabling later authentication. In contrast, Rule 4(1A) requires SSMIs to rely on automated systems to infer whether content is synthetically generated. As such tools operate on probabilistic models, they cannot offer definitive authenticity checks; they merely assign likelihood scores that the content is AI-generated. These systems are also prone to errors, leading to compliance uncertainty and operational strain. To compensate for these inaccuracies, intermediaries may need to introduce additional layers of manual review, increasing costs, slowing content flows, and expanding exposure to liability for both under- and over-compliance. The Rule’s scope is also overinclusive: it mandates labelling for all AI-generated content without regard to context, harm, or risk. Such a blanket obligation not only exceeds what is necessary to address genuine harms but also compels speech in circumstances where the State lacks a legitimate regulatory interest. Taken together, the technical infeasibility of accurate detection, the heavy compliance and resource burdens imposed on intermediaries, and the absence of reasonable tailoring render Rule 4(1A) an unconstitutional form of compelled speech under settled free-speech jurisprudence.

          Questioning a “Substantial Question of Constitutional Importance”: Article 145(3) and its Puzzling Interpretation [Guest Post]

          Gautam BhatiaLeave a comment

          [This is a guest post by Anshul Dalmia.]

          Last week, a five-judge bench of the Supreme Court (‘Court’) in Rejanish K.V. v. K. Deepa, delivered its judgment on the interpretation of Article 233(2) of the Indian Constitution. The Court held that a judicial officer, who has a combined experience of seven years as a judicial officer and an advocate, is eligible to apply for direct appointment (through the bar quota) as a district judge. This decision allowed for the direct appointment of those lawyers who became judicial officers, during their application for a district judge. While the substantive interpretation and conclusion invite praise, I aim to explore the jurisdictional issues spanning the case, and the channels through which it came before the constitution bench.

          In the first part of the blog, I aim to examine the judicial background which lead the case being re-opened by the Court. Through this, I showcase the questionable origins of the case and interpretations of Article 145(3) of the Constitution. In the second part, I seek to evaluate the consequences of such interpretation and the highlight the addition of an arrow in the Court’s jurisdictional quiver.

          Who let the Cat Out of the Bag? The Re-Opening of The Case

          The complaints around the eligibility criteria for a direct district judge appointment began in 2018. A two-judge bench in Dheeraj Mor v. High Court at Delhi, held that due to several conflicting interpretations and since the matter could be resolved by conclusively interpreting Article 233(2), the case was referred to an appropriate bench which would be constituted by the Chief Justice. In that very year, another bench G. Sabitha v. High Court too faced this dilemma and realized the incongruence of judicial interpretation. The two-judge bench noticed that a similar case i.e., the Dheeraj Mor case was pending consideration and instructed the Registry to accordingly tag the cases. The Chief Justice ultimately set-up a three-judge bench, which disposed the matter. The three-judge bench headed by Justice Mishra unanimously interpreted the eligibility criteria for candidates who had applied to be district judges through the bar quota. This approach while seemingly straightforward, opened a can of interpretative worms, five years later.

          Several review petitions were filed against the three-judge bench judgment of Dheeraj Mor which were taken up in Rejanish K.V. v. K. Deepa. In a case, where a review is filed, the jurisdiction of the Court is extremely limited. The Court can entertain the review only if the bench feels if there is ‘an error apparent on the face of the record’. This has been interpreted to mean egregious faults with the interpretation of laws and the Constitution. Here, however, instead of restricting itself to this limited means of review jurisdiction, the Court retraced its footsteps and highlighted a fault with the initial setting-up of the bench in Dheeraj Mor.

          The Court observed that when the two-judge bench in Dheeraj Mor had raised concerns regarding the skewed interpretation of Article 233(2) and referred it to an appropriate bench—the bench had to have five judges and not three—due to the employment of Article 145(3). Article 145(3) states that the minimum number of judges which shall decide a ‘substantial question of law’ as to a constitutional interpretation shall be five. Accordingly, the Court instructed the setting-up of a larger bench of five judges to remedy this constitutional abnegation. Here, that the Court freed itself from the limited jurisdiction it had under the review powers—it could now re-open the case and substantively hear it de novo.

          I argue that such an interpretation not only incorrectly identifies the problem with the composition of the benches, but also muddles up the jurisprudence under Article 145(3) allowing the Court to substantively re-open cases. First, the two-judge bench in Dheeraj Mor judgment did not indicate the number of judges which had to be present on the bench. The bench merely indicated the Chief Justice to set-up an appropriate bench to hear these case. Second, the bench did not expressly indicate the referral to a larger bench due to the operation of Article 145(3). Third, this leads to disturbing a question of interpretation which has been finally and effectively decided by this Court i.e., the three-judge bench in Dheeraj Mor. The Court in State of J&K v. Thakur  Singh read with Bhagwan Swarup Lal v. State of Maharashtra has previously held that a substantial question of law under Article 145(3) could not arise if the law on that subject has been conclusively decided. I submit that in the three-judge bench in Dheeraj Mor unanimously determined the interpretation of Article 233(2). This prevents the Court from re-opening the case, wrongfully tagging it as a ‘substantial question of law’ under Article 145(3).

          Who will Bell the Cat? Examining The Interpretational Consequences

          It can be counter-argued that smaller benches need not explicitly mention Article 145(3) and since it involves a substantial question of law, the bench which hears it next has to be of five judges through an automatic operation of the constitutional provision. However, I argue that this would skew the jurisprudence further, cause access-to-justice concerns, and create a double-edged sword.

          First, precedent dictates that the reference order must be checked to assess if the reference is made to a constitution bench or just a larger bench. Here, a larger bench would mean a greater number of judges than the bench which referred it. In the case of M Siddiq v. Mahant Suresh Das, it was held that merely if a case states that an appeal involves a substantial question of law, it does not indicate that it must be heard by a five-judge constitution bench. It could be read also as an order to place the case before a larger bench. The analysis here indicates that the Dheeraj Mor bench had instructed placing it before a larger appropriate bench, which was accordingly done. The absence of an indication to delegation to a constitution bench ought not to have been read-in by the Court here. Moreover, the ratio in M Siddiq clearly highlights the non-violation of Article 145(3).

          Second, if every case dealing with a substantial question of law had to go before five judges, the matter would not be heard expeditiously. Experience and history have shown that constitution benches are seldom constituted. These benches consume a lot of time of both the lawyers and the judges, and are thus kept in abeyance. Even if they are constituted, the decision to do so is selective and based on the discretion of the Chief Justice. Chief Justices under their administrative power have been entrusted the role to make a decision—not just based on the law but also logistical convenience. Thus, every case dealing with a questionable ‘substantial question of importance’ must go before the Chief, who has to assess if the order indicates the operation of Article 145(3). In the Dheeraj Mor example, the Chief was within his administrative discretion in place it before a larger three-judge bench as compared to a constitution bench—with the former usually being chosen for quick disposal.

          Third, this would mean the dangerous possibility of re-opening several cases and ruffling settled interpretations. A quick perusal of judicial archives indicates several cases which have been subjected through a similar path – smaller bench instructs delegation to an appropriate bench, the Chief makes an administrative decision to place it before a three-judge bench, the three-judge bench hears the case, delivers the judgment, and conclusively determines the interpretation. If the interpretation in the current case is adopted, it could leave several cases being re-opened to scrutiny and for investigation—unsettling years of precedents and common law interpretation. Thus, I argue that the Court in Court in Rejanish K.V. v. K. Deepa has incorrectly interpreted the operation of Article 145(3).

          Through this blog, I have sought to draw attention towards the re-opening and re-hearing of a case which should not have gone before a five-judge bench in the first place. While the Court states that irrespective of the past error, it observes that the case now involves a substantial question of law and invokes Article 145(3)—the manner, channel, and mechanism through which it was done raises concerns. The consequences of which seem to be dire. On another note, it becomes imperative to ponder, why does a Chief Justice not list several pending constitution bench cases but instead only lists recently referred cases? Another constitution bench which shall hear matters soon indicates a similar yet disturbing trend.

          Missed Opportunities and Active Omissions in Jane Kaushik: A Queer Legal Methods Perspective [Guest Post]

          Gautam BhatiaLeave a comment

          [This is a guest post by Prakhar.]

          This post carries forward the discussion that Jane Kaushik v. Union of India (2025) has initiated in discrimination law. Some aspects of the judgment are noteworthy, for instance the recognition of omissive discrimination (“OD”) and the deployment of right to reasonable accommodation (“RA”) of transgender persons, beyond the limited deployment of RA to disability law thus far. However, while the judgment is couched in the language of rights, the discrepancies between its operative part and obiter render the very principles it seeks to entrench ineffective. The judgment also acts as a missed opportunity for the Court to settle the law on the multiple possible interpretations of Article 15(2) of the Constitution of India. By not allowing compensation against the “First School”, the Court seems to have failed to understand the purpose of Article 15(2).

          In this post, I have employed queer legal methods to understand the paradoxes this judgment is fitted with. When I say queer legal methods, I mean a legal realist investigation of what the Court did, and what could have been done instead, with the special context of the biopolitics that revolves around transgender bodies. Thus, this realist enquiry would also require to study the language of the judgment closely. A lot of times, language is capable of doing violence, and since the Court is also trying to condemn silences, its own judgment must not escape such enquiry.

          In Part I, I discuss the various nuances of the doctrine of RA, and how the Court has missed the opportunity to actually effectuate the doctrine in its judgment. In Part II, I develop how the judgment itself suffers from OD. In Part III, I discuss the “entry-centric” interpretation the Court seems to be employing towards Article 15(2), ignoring the purport of the said clause.

          Did the Court Take Reasonable Accommodation Seriously?

          Recognition of RA in the Judgment

            The Court recognises the right to RA of transgender persons as a facet of Article 14 of the Constitution. In paragraph 45 of the judgment, the Court reads RA as a promise of equal protection of law under Article 14. It further calls it a “tool of substantive equality.” In paragraph 54, the Court makes the explicit observation that even though the principles of RA are implied in the TG Act, it thinks it proper to make an explicit recognition of the principle for implementation of the mandate of the Act against establishments and appropriate government.

            The Language of Rights without Enforcement

            The Court seems to be talking in the language of rights. But ultimately the operative part of the judgment does not realise the right to RA. The operative part only directs the Committee chaired by Justice Asha Menon to consider what can be avenues of reasonable accommodation. Even though the Court consciously realises that failure to accommodate reasonably also results in discrimination, yet no fruitful guidelines are rendered.

            It is not that the Court is entirely oblivious of what RA can mean for a transgender person. The “Meaningful Suggestions” crafted by the Court in paragraph 198 give a glimpse: gender neutral washrooms, updating of forms at educational institutes and workplaces, etc. However, as discussed in the next section, these suggestions are precisely where the judgment suffers from OD.

            Legislative Omission Followed by Judicial Inaction

            It is commendable that the Court goes beyond the legislative history of the Transgender Persons (Protection of Rights) Act, 2019 (“the TG Act”) to recognise the right to RA. The Rights of Transgender Persons Bill, 2014 had express provisions for RA under Section 2(o), defining it as “an accommodation needed to ensure transgender persons the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.” However, the TG Act enacted in 2019 omitted this. It definitely raises an eyebrow that the Court, while willing to call out a legislative omission, fails to correct such omission despite noting it to be discriminatory.

            The Judgment’s Omissive Discrimination: When the Court Reinforces What it Condemns

            Understanding Omissive Discrimination

              A striking feature of the judgment is its recognition of omissive discrimination. Generally, discrimination is seen as an individualised pathology. But it is far more patterned. Prof Khaitan calls discrimination a legal, political and social conception. What follows from this is that discrimination is not monolithic; it is intersectional and layered. The belief that only intentional acts can result in discrimination has long been discarded. Now, facial neutrality has also been recognised as discriminatory, if it is capable of creating a disadvantageous effect on a protected group.

              The Court acknowledges that discrimination can exist in negligent or rash omissions. In paragraph 68, it highlights that the pitfalls with which the TG Act is dotted are instances of OD, in the teeth of Article 14. It employs Sandra Fredman’s four dimensions of substantive equality to situate ‘discrimination’ in OD. Yet, ironically, the judgment itself becomes an example of OD in the following respects.

              Biopolitics of “Meaningful Suggestions”

              In paragraph 198, the Court highlights some suggestions for the consideration of the Union and the States. These suggestions are fitted with the word “may,” making compliance discretionary.

              • Suggestion (viii): The Court recognises that transwomen are often arrested by male police officers, yet merely suggests that the Ministry of Home Affairs “may ensure” this does not happen. The violence of this suggestion is that until the Ministry acts, illegality persists under judicial observation.
              • Suggestion (vi): The Court recognises the binary nature of security check-ins at metro stations and malls but chooses to do nothing. These check-ins, by their binary nature, violate Articles 15(2) and 19(1)(d), chilling transgender persons’ right to movement.

              The context is crucial: it took years for the Court to acknowledge this violence, yet instead of doing “complete justice,” it now chooses operative silence.

              Toothless Engagement with the TG Act

              In roughly 15 pages, from paragraphs 178 to 197, the Court deals with the various shortcomings of the TG Act by engaging with various writs and litigations from the High Courts of the land. In six pointers, the Court encapsulates the problems faced by the transgender community in day-to-day life.

              The first is surveillance and hyper-vigilance. In the previous part of this post, I talked about Suggestion No. (vii). It just shows how seriously the Court takes surveillance and hyper-vigilance, which are a part of the history of the transgender community.

              Second, the Court identifies discrimination in employment and professional spaces. Even though the scope of the litigation dealt with the same, the Court fails to correct this mischief. The Court recognises the trend that many a times the transgender community cannot even participate in professional spaces, as the recruitment forms, etc. do not have columns for their gender identity. But the Court actively chooses to do nothing about this anomaly. And it is not like that this anomaly is a new one before the Court. In NALSA, the Court had specifically ordered for the incorporation of “third gender” on forms. The statutory framework also requires the same as positive obligations. The least the Court could have done was to assure the compliance of the same, especially when it was issuing a “continuing mandamus.”

              Third, similar is the case with denial of changes in documentation. The Court could have very easily directed a continuing mandamus to assure that no one is denied changes in their documents on the ground of their gender identity.

              In the fourth and fifth pointers, the Court laments exclusions from educational institutions and social participation. These pointers are just remodelling of previous ones, because of the similar nature of administrative omissions, which acted as entry barriers.

              The last pointer deserves a discussion. The Court recognises the difficulties faced by the transgender community in getting benefits of social securities. It discusses a High Court case where a transgender woman was denied the benefits of the service of her father as an “unmarried daughter.” Service, employment and labour laws are heavily pitted with such anomalies, where the transgender community, due to their non-conformation of the binary genders, faces exclusion.

              Such cognisance would have warranted the Court to correct these anomalies. Other such anomalies that exist include the scope for maternity benefit for, say, trans men and gender non-conforming individuals; safeguards available to a “woman” under the Medical Termination Act, 1971; prohibition of discrimination on the ground of “sex” under the Code of Wages, 2019; and denial of welfare schemes like SMILE, on the ground of absence of TG ID card etc.

              All these anomalies are practical examples of denial of social benefits to transgender persons. But this is one such aspect which the judgment does not cater to at all, despite identifying the same. For the purpose of omissive discrimination, it is a very material omission.

              Ambivalence under Article 142: Half-Baked Justice

              The Court issues a continuing mandamus to do complete justice. Article 142 of the Constitution allows the Court to pass necessary orders to do “complete justice.” In cases of omissive discrimination, “complete justice” would mean filling such lacunae. However, the Court’s mandamus seems limited to mere statutory lacunae. Barring Direction Nos. (i) and (vi) in paragraph 199, which talk about vesting of appellate powers in District Magistrate and the creation of a toll-free helpline, no other direction would warrant the employment of Article 142. The other directions are about enforcement of the statutory obligations, for which the writ jurisdiction is more than sufficient. Article 142 enables creative constitutional supplementation, as seen in Vishakha v. State of Rajasthan (1997) and NALSA v. Union of India (2014). Here, despite recognising glaring Part-III violations, the Court employs Article 142 performatively, committing what I call “half-baked justice.” By choosing not to fill these gaps, despite recognising omissive discrimination, the Court reinforces it. At best, it creates a discourse out of the transgender community’s lived experiences, a trend reminiscent of previous queer marriage litigations.

              Omissive Discrimination as Systemic Pattern

              The Court, in many senses, understands what can RA mean for transgender persons. It could be gender inclusive washrooms, gender neutral dress-code policies, gender inclusive housing and hostel facilities, conducive policies for name-change and accommodation of desired pronouns. But the Court actively fails to ensure RA. While it does formulate a Committee chaired by Justice Menon, but at the end of the day, the ball will lie in the court of the Union of India to decide what would RA eventually look like. I am trying to problematise the fact that this is no ordinary case; the Court actively uses Article 142 and continuing mandamus, which are very expansive remedies. But the nature of the operative remedies is nothing to the stature of what Article 142 and a continuing mandamus is capable of doing, which makes the judgment a site for omissive discrimination.

              Article 15(2) of the Constitution: A Missed Cause

                In this section, I wish to clarify the extent of horizontality of Article 15(2) of the Constitution of India, which the Court could have investigated. Article 15 provides the general embodiment of Article 14. Much has already been discussed on this Blog, but this case was a good opportunity for the Court to revisit and clarify its horizontality. However, the Court merely relies on Kaushal Kishor v. Union of India (2023).

                Article 15(2) not only prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth but also recognises the socio-economic rights of citizens. Under Article 15(2)(b), no citizen shall be subjected to any disability, liability, restriction, or condition with regard to places dedicated to public use, such as wells, tanks, bathing ghats, roads, and other places of public resort. These may be maintained by State funds or accessible to the general public. It reinforces that in our welfare democracy, no one will be excluded from public places. For instance, if a citizen is restricted from using a public garden maintained by a private charity on the count of their religion or place of birth, it violates Article 15(2)(b). Similarly, if a transgender woman is denied access to public washrooms or those meant for everyone’s use in a premise, it violates her fundamental right under Article 15(2)(b). The words “places of public resort” are wide enough to include all such spaces. Recently, the Court highlighted the need to ensure accessibility of sporting facilities irrespective of class, sex, or place of birth, citing Article 15(2).

                While Article 15(2)(b) is clear, it is clause (a) that needs closer examination. Article 15(2) recognises socio-economic rights by realising that these may be stifled on the listed grounds. To ensure full participation of marginalised identities, Article 15(2) prohibits discrimination by non-State actors in spheres where State control may not be regular or omnipresent. Thus, it is not the State but private individuals who are injuncted from discrimination.

                If one were to plainly read Article 15(2), especially clause (a), it may seem to remove only “entry barriers” when it says, “[n]o citizen shall… be subject to any disability, liability, restriction or condition with regard to— (a) access to shops,…; or (b) the use of wells… and places of public resort…” However, without contextualising the lives of those affected, this reading is empty. The mischief that Article 15(2) corrects is the power of private actors to discriminate. Article 15(2) only lists, in a non-exhaustive manner, some of the ways non-State actors may discriminate. This is what Mr. C. Subramaniam articulated in the Constituent Assembly Debates. In the draft to Article 15 (then draft-Article 9), both 15(1) and 15(2) appeared under the same clause. Mr. Subramaniam suggested separating them, since the first part dealt with discrimination by the State, while the second targeted discrimination by private individuals.

                The Constituent Assembly engaged in detailed debate on the words “shops,” “tanks,” and “places of public resort.” Dr. B.R. Ambedkar clarified that these words must carry elastic meanings. For example, “tanks” would also include ponds, lakes, or any static water body funded by the State or open for public use. When asked whether “places of public resort” included burial or cremation grounds, Dr. Ambedkar clarified that it would, provided such a place was funded by the State.

                Much of the discussion then centred on “entry” because marginalised communities were literally excluded from establishments. Borrowing Dr. Ambedkar’s understanding, we can expand this to housing. Providing housing in a tenancy or paying-guest setup is a service; hence, housing can be deemed a “shop” under Article 15. Therefore, if someone denies tenancy or hotel accommodation to a transgender person purely on the ground of gender identity, it violates Article 15(2). Section 3(g) of the 2019 Act also prohibits “denial or discontinuation of, or unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property.”

                Mr. Subramaniam identified that it is the power of the non-State actor to discriminate that Article 15(2) curtails. “Access” must mean full and conducive access, for only then can a disability or liability be placed. The present case raises the question whether Article 15(2) merely stops discrimination in admissions or also requires private institutions to ensure their rules and practices do not indirectly discriminate. Even without explicit exclusion, private regulation of access can perpetuate disadvantage, which is the very mischief Article 15 seeks to remedy.

                Let us test whether discrimination by an employer towards an employee satisfies Article 15(2)(a). The POSH Act, for example, operationalises Article 15(2) by prohibiting discrimination and exclusion of women from workplaces on grounds of sex, ensuring equal access and participation in public employment spaces. It embodies the horizontal application of equality against private employers and guarantees access to a conducive working environment. Its preamble also mentions that it bolsters the mandate of Article 15.

                Take an example: a supervisor attempting to sexually harass his junior creates a hostile and less conducive working environment, conditioning access to the workspace to sexual harassment. Similarly, if an employer fires an employee on the grounds of sexual identity, the employer restricts workplace access, imposing a disability or liability. These conditions are only suggestive, as the “power to discriminate” will evolve with time. The shift from service-purchaser to service-provider does not alter this dynamic. Hence, Section 3 of the TG Act envisions the prohibition of discrimination both in housing and employment, where transgender persons may alternately be service-purchasers or service-providers.

                While the judgment does imagine indirect horizontality for transgender rights, it ignores the opportunity to clarify Article 15(2), despite being a fit case for such exposition. In NALSA and Navtej v. Union of India (2018), the Court recognised that the ground of “sex” under Article 15 includes gender identity. Yet here, the Court fails to recognise that the petitioner’s experience of body shaming and name-calling arose from non-conformity with the ‘female’ body norm. Such comments, though misogynist and sex-based discrimination, were not seen in the context of transgender persons, especially those experiencing gender dysphoria and exclusion for defying the male/female binary. Such comments could have definitely stood the test of the sex+ discrimination. The Court does not allow any compensation against the First School, stating that it could not conclude active discrimination since the petitioner had been provided girls’ hostel lodging, and ignoring her plea that she was fired after her gender identity was revealed and the various omissions on the part of the school as per the statutory framework. Even if it could not reach a conclusive finding due to contested facts, it could have revived the proceedings before the National Commission for Women. Instead, it closes the litigation entirely.

                This shows that the Court interprets Article 15(2) narrowly, seeing it merely as protecting entry, rather than as addressing the deeper mischief of private power to discriminate.

                Conclusion

                Jane Kaushik was an opportunity to transform discrimination jurisprudence by recognising the full horizontality of equality. Yet, in recognising “omissive discrimination,” the Court simultaneously performs it. The judgment’s half-baked reliance on Article 142, its deferential suggestions instead of enforceable directions, and its neglect of Article 15(2)’s horizontal potential all reinforce the same structural omissions it condemns. By employing queer legal methods, this post has sought to reveal how the Court’s language of rights remains caught in the biopolitics of discretion. Queer lives, however, continue to demand not suggestions but justice.

                The Sahyog Regime: Architecture of Digital Control and Censorship [Guest Post]

                Gautam BhatiaLeave a comment

                [This is a guest post by Rudraksh Lakra and Nidhi Jha.]

                On 22 October 2025, the Central Government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2025 (“Sahyog Rules” or “Rules”). These Rules serve to formalize and lend greater legitimacy to the Sahyog content takedown regime. The Sahyog platform functions as a centralized hub through which the government can issue notification for intermediaries to remove or disable online content.

                The Sahyog regime establishes a parallel blocking process, distinct from the established framework under Section 69A of the Information Technology Act, 2000 (“IT Act”). Section 69A is the primary statutory mechanism for blocking information under IT Act, with a more elaborate authorization process and with stronger procedural safeguards. By contrast, the Sahyog regime relies on Section 79(3)(b) of the IT Act in conjunction with Rule 3(1)(d) of the IT Rules, 2021, circumventing the stricter checks embedded in Section 69A. This alternative mechanism is implemented through the Sahyog platform itself. The regime was challenged in the High Court of Karnataka in X v. Union of India (2025), where the Court ruled in favor of the Union Government; the petitioner, has indicated an intention to appeal this decision.

                The Sahyog Rules replace the current iteration of Rule 3(1)(d) under the IT Rules, 2021, and introduce four procedural safeguards for blocking content pursuant to Section 79(3)(b) of the IT Act. First, Rule 3(1)(d) currently permits takedown upon receiving actual knowledge in the form of a notification from the appropriate government or its agency. The revised provision specifies that government officers authorised to issue such notices must be “not below the rank of Joint Secretary or an officer equivalent in rank,” and that police officers performing this role must be “not below the rank of Deputy Inspector General of Police” [Rule 3(1)(d)(ii)(I)]. This theoretically ensures that senior officials, rather than lower-level functionaries, are making blocking decisions. Second, the notice must clearly specify “the legal basis and statutory provision invoked, the nature of the unlawful act, and the specific uniform resource locator, identifier, or other electronic location of the information, data, or communication link required to be removed or disabled” [Rule 3(1)(d)(ii)(II)]. This requirement, in principle, promotes reasoned decision-making, which is integral to cultivating a culture of justification. Third, the Rules further require that such orders be “subject to periodic review by an officer not below the rank of the Secretary of the concerned Appropriate Government once every month to ensure that such intimations are necessary, proportionate, and consistent” with Section 79(3)(b) of the IT Act [Rule 3(1)(d)(ii)(I)]. The use of the terms “necessary” and “proportionate” should be understood as invoking the constitutional standard of proportionality, which encourages more disciplined and deliberative decision-making. Fourth, the Rules seek to align the authorised grounds for restricting content with those enumerated under Article 19(2) of the Constitution of India [Rule 3(1)(d)]. Collectively, these safeguards are a response to the lacunae identified by the petitioners in X v. Union of India.

                However, these safeguards are woefully inadequate. The Rules fail to codify many protections embedded in Section 69A and its subsidiary legislation, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“Blocking Rules”). Such as: pre-decisional hearings for intermediaries; transparency obligations; and a concentrated instead of fragmented blocking power. For instance, Bhandari and Lahiri contend that the ex-ante and ex-post executive oversight framework embedded in the Blocking Rules is unconstitutional in light of the Supreme Court’s decisions in K.S. Puttaswamy v. Union of India (2017) and K.S. Puttaswamy v. Union of India (2018).

                Ironically, the Blocking Rules themselves have been criticized as being paper-thin, lacking independent and competent oversight. The need was to strengthen these safeguards and address longstanding concerns, but instead, the IT Rules, 2021, have moved in the opposite direction. Moreover, the 36-hour takedown requirement under Rule 3(1)(d) imposes an unduly short compliance window, raising the risk of overblocking. This requirement did not exist under either the 2009 Blocking Rules or the 2011 Intermediary Guidelines and seems to pressure intermediaries into erring on the side of removal to avoid liability.

                Importantly, the Sahyog Rules do not deal at all with the functioning of the Sahyog portal. There is substantial opacity regarding the working of the portal, and there are many concerns arising from it. The High Court of Karnataka in X v. Union of India did not meaningfully engage with any of these contentions (see here and here). The Sahyog Rules are inadequate to prevent potential arbitrary decision making by the officials under the Sahyog regime. This was the main thrust of the petitioners challenge against the Sahyog regime which remains underdressed. There is a need for clear regulations, procedures, and safeguards in terms of transparency, natural justice, accountability, preventing bias, and cybersecurity. The Rules fall short in these respects as well.

                The Sahyog Rules were released on the same day as another amendment to the IT Rules, 2021, which deals with synthetically generated information. Critically, the latter amendments were released for a period of public consultation of two weeks, whereas the Sahyog Rules were not. This omission suggests an attempt to insulate executive control over digital speech from democratic deliberation. In sum, the Sahyog Rules have not been created to address the rights-based concerns surrounding the architecture of censorship and control. Rather, they are designed to bolster the case for the Sahyog regime’s constitutionality before the Supreme Court.

                The broader implications of the Sahyog regime are profound. It constitutes a direct challenge to the intermediary liability framework established in Shreya Singhal v. Union of India (2015) (“Shreya Singhal”). Shreya Singhal was a landmark decision that reaffirmed fundamental principles protecting free expression, strengthened the chilling effect doctrine, and applied these principles to cyberspace. It recognized that intermediaries, being risk-averse and sensitive to liability, tend to over-remove content when safe harbor protections are weak or ambiguous. Faced with a binary choice between preserving liability immunity and risking legal consequences, intermediaries will invariably err on the side of censorship.

                The Court in Shreya Singhal carefully calibrated this risk, holding that content can only be removed via (1) a government order under Section 69A of the IT Act or (2) a court order. The parallel mechanism introduced under Section 79(3)(b) of the IT Act, read with IT Rules 2021 Rule 3(1)(d), and operationalized through the Sahyog portal, circumvents this framework. Where Shreya Singhal struck an equilibrium that privileged the rights of internet users, the Sahyog architecture recalibrates that balance decisively in favor of state power.

                This development reflects a broader emerging pattern of digital authoritarianism, enabling the government to monitor, regulate, and influence online discourse, thereby reshaping the contours of digital public spheres. In X v. Union of India, the government argued that Shreya Singhal is outdated, a position the Karnataka High Court accepted. With a Supreme Court challenge now pending, the constitutional future of India’s online speech regime, and the freedoms secured in Shreya Singhal hang in the balance.

                Guest Post: Indirect Horizontality and Trans Rights in the Supreme Court’s Jane Kaushik Judgment

                Gautam Bhatia1 Comment

                [This is a guest post by Sarthak Gupta.]

                On 17 October 2025, the Supreme Court of India in Jane Kaushik v. State of NCT of Delhi (“Jane Kaushik”) delivered one of its earliest rulings applying the doctrine of indirect horizontal application of fundamental rights. The Court extended constitutional values into private law relations through legislative mediation rather than direct judicial enforcement. By situating its reasoning within the framework of the Transgender Persons (Protection of Rights) Act, 2019 (“2019 Act”), the Court adopted a measured and textually grounded approach to the horizontal operation of fundamental rights, one that recognises the limits of judicial authority while allowing constitutional principles to guide both public and private spheres.

                In this post, the author examines how Jane Kaushik marks a doctrinal moment of consolidation rather than expansion in India’s horizontal rights jurisprudence. [See here] Unlike the conceptual ambiguity that underlay Kaushal Kishore v. State of Uttar Pradesh (2023) [As earlier discussed on the blog here, here and here], where horizontality was proclaimed but never operationalised, Jane Kaushik makes a fair attempts to provide an analytically coherent and institutionally grounded framework. The decision grounds the horizontal effect of fundamental rights in legislative design rather than in direct constitutional adjudication, thereby advancing a form of legislatively mediated constitutionalism that reconciles the transformative aspirations of fundamental rights with the institutional discipline of constitutional structure.

                The Story of Jane, Pride and (No) Prejudice

                The petitioner, Jane Kaushik, a transgender woman and teacher, challenged her unlawful termination, from a private educational institution in Delhi. The petitioner alleged that her termination was based solely on her gender identity and therefore violated the equality and dignity guarantees under Articles 14, 15, and 21 of the Constitution, as well as the express prohibitions on discrimination contained in Section 3 of the 2019 Act. What began as an individual grievance of wrongful termination developed into a constitutional question of broader significance: whether and to what extent fundamental rights, conceived primarily as vertical guarantees against the State, may acquire indirect horizontal effect through statutory frameworks that embed constitutional values within private relations.

                The Supreme Court, in its judgment, upheld the petitioner’s claim, holding that the obligations of equality and non-discrimination articulated in the 2019 Act reflect the constitutional ethos of Articles 14, 15, and 21 and bind both State and non-State actors. (Paras 125–127) The Court further observed that Section 3 of the Act functions as a statutory vehicle for the indirect horizontal application of fundamental rights, ensuring that private employers cannot invoke their non-State character to escape constitutional accountability. (Para 129) Importantly, the Court clarified that this horizontal reach arises not from a direct constitutional command but from the legislative translation of constitutional principles into enforceable statutory duties. (Para 130)

                Kaushal Kishor to Jane Kaushik: Some Constitutional Clarity

                The decision in Kaushal Kishore represented an crucial but analytically unsettled moment in the evolution of fundamental rights jurisprudence in Indian Constitution. [Earlier discussed on this blog, here and here] The Constitution Bench held that Articles 19 and 21 could, in appropriate contexts, be enforced even against private individuals (Paras 155–156), signalling that constitutional rights were not confined to the State’s vertical domain. Yet, the reasoning in Kaushal Kishore was marked by doctrinal ambiguity and conceptual overlap. The majority opinion blurred the distinction between State action, positive obligations, and direct horizontal application, without clarifying the mechanism by which constitutional rights could govern private conduct. Justice B.V. Nagarathna’s separate opinion underscored this uncertainty, warning that the majority’s approach risked “constitutionalising every private dispute” and eroding the autonomy of private law.

                This analytical weakness can be understood via the “boundary” and “transplant” questions of horizontality. The Court in Kaushal Kishore failed to articulate where the boundary of horizontal application should lie, when constitutional adjudication is justified and when disputes ought to remain within private law, and whether rights such as those under Articles 19 and 21 can meaningfully be transplanted into private relations without distorting their original constitutional context.  The absence of a clear doctrinal pathway in Kaushal Kishore left the understanding of our constitutional structure with a form of rhetorical horizontality, an expansive promise of rights protection without corresponding institutional or normative structure. The judgment’s ambition to extend rights beyond the State was evident, but its method of doing so remained unresolved.

                Against this background of conceptual uncertainty, Jane Kaushik represents a turn toward constitutional clarity and institutional realism. The Court in Jane Kaushik approached the question of horizontality through legislative mediation rather than judicial invention. By locating horizontal application within the  2019 Act, a statute that imposes affirmative duties on both public and private entities, the Court recognised that the indirect horizontal application of fundamental rights operates through laws that embody constitutional values rather than through direct judicial enforcement. As the Court noted, “since the legislature has already imposed obligations on non-State actors, the theoretical debate over horizontality becomes largely academic”. (Para 130)

                The reasoning in Jane Kaushik closely parallels the German model of “indirect effect” (mittelbare Drittwirkung), developed by the Federal Constitutional Court (Bundesverfassungsgericht) in its seminal Lüth decision of 1958. In that case, the Court held that while constitutional rights under the Grundgesetz (Basic Law) are primarily enforceable against the State, they also possess an “objective order of values” (objektive Wertordnung) that permeates the entire legal system. Rather than applying constitutional rights directly to private parties (unmittelbare Drittwirkung), the Court mandated that private law must be interpreted and developed in conformity with constitutional values, thereby ensuring that private relations reflect the spirit, if not the letter, of constitutional rights. [See, Moller] Under this doctrine, ordinary courts remain the primary fora for enforcing such rights within private law, but they must interpret statutory and common law rules through a constitutional lens, balancing individual autonomy with the collective value order of the Constitution. The Lüth principle thus preserves the public–private distinction while ensuring that constitutional morality informs the entire legal order, a balance between rights protection and institutional restraint that has become a defining feature of post-war German constitutionalism. [See, here and here]

                Viewed through this German Constitutionalism, Jane Kaushik situates Indian constitutionalism within a broader movement toward legislatively mediated horizontality, where the extension of rights depends on the institutional vehicle through which they are operationalised. [See here for Kenyan Courts’ discussion on Horizontal rights] The Court refrained from imposing direct constitutional duties on private entities, recognising instead that Parliament, as the democratically accountable branch, is best positioned to translate constitutional norms into binding private law obligations. Jane Kaushik thus represents a shift from the abstract universalism of Kaushal Kishore to a form of constitutional pragmatism grounded in legislative design and institutional competence.

                Jane Kaushik Moment: Consolidating (Not Transforming) Horizontality

                The reasoning in Jane Kaushik represents a significant, though measured, step in the evolution of India’s horizontal rights discourse. Unlike the sweeping and doctrinally unsettled reasoning in Kaushal Kishore, the Jane Kaushik Bench approached horizontality with conceptual restraint and institutional clarity. It neither celebrated a constitutional revolution nor invented a new category of rights; instead, it consolidated the indirect horizontal application of fundamental rights through the legislative framework of the 2019 Act.

                The Court’s principal interpretive move was to locate horizontality within legislative mediation rather than judicial innovation. It held that, because the 2019 Act imposes duties on both State and non-State actors to prevent discrimination based on gender identity, the statute itself translates constitutional rights into enforceable private obligations. As the Court observed, “the obligations imposed on private bodies by the 2019 Act reflect the constitutional commitment to equality, dignity, and non-discrimination under Articles 14, 15, and 21”. (Para 128) In this sense, the Court treated the 2019 Act not as an instrument of judicial extension but as a legislative embodiment of constitutional principles, thereby grounding horizontality in democratic legitimacy.

                At the same time, the Court recognised the institutional limits of this model. It acknowledged that the 2019 Act’s enforcement mechanisms remain underdeveloped and that its grievance redressal framework is inadequate to ensure effective implementation. (Para 132) The Court noted that while the Act “operationalises the horizontal effect of constitutional rights in form,” its “limited institutional enforcement mechanisms” risk undermining its transformative potential.  Implicit in this reasoning is an appreciation of the boundary question, that constitutional adjudication should not displace private law where adequate remedies exist. By situating horizontality within statutory design, the Court effectively delineated a boundary that preserves private law autonomy while ensuring that its operation remains consistent with constitutional values. This acknowledgment situates Jane Kaushik within a realist tradition of constitutional interpretation. Hence, Jane Kaushik does not convert horizontality into a fully functional doctrine; it anchors it in statutory reality and administrative feasibility. The decision represents a move from constitutional overreach to constitutional discipline, a recognition that transformative constitutionalism must proceed through legislative channels that are democratically enacted and institutionally equipped. In contrast to Kaushal Kishore’s abstract universalism, Jane Kaushik embodies a mature, context-sensitive constitutionalism, one that aspires to inclusion without dissolving the boundary between constitutional rights and private autonomy.

                Conclusion: Institutionalising Horizontality [?]

                The movement from Kaushal Kishore to Jane Kaushik reflects the emergence of a more structured understanding of horizontality within Indian constitutional law. Kaushal Kishore gestured toward extending fundamental rights into private spheres but failed to articulate the boundary question, when constitutional adjudication should enter domains otherwise governed by private law. Jane Kaushik responded to this gap by situating horizontality within legislative frameworks, implying that the reach of fundamental rights beyond the State must depend on democratically enacted statutes that translate constitutional principles into enforceable obligations. In doing so, the Court delineated a pragmatic boundary that preserves the autonomy of private law while ensuring that it operates in conformity with constitutional values.

                At the same time, the Jane Kaushik offers a cautious answer to the transplant question, whether rights originally designed to bind the State can meaningfully apply to private relations. Jane Kaushik demonstrates that such transplantation is legitimate only through statutory mediation, where constitutional norms are contextually embedded in specific regulatory schemes. This approach offers a template for extending similar constitutional commitments to other vulnerable groups, most notably persons with disabilities, where the Rights of Persons with Disabilities Act, 2016 could serve as a comparable legislative conduit for the indirect horizontal application of equality and dignity rights. Taken together, the boundary and transplant dimensions mark a move toward institutionalising horizontality in India. The future of horizontal rights adjudication thus lies not in unbounded judicial extension but in institutional frameworks that mediate constitutional values through legislation, administration, and adjudication, ensuring that the transformative promise of rights remains consistent with the discipline of constitutional structure.