Direct-Indirect Horizontality: Conceptual Confusions in the Jane Kaushik Case [Guest Post]

Gautam BhatiaLeave a comment

[This is a guest post by Ghopesh SV.]

Jane Kaushik v. Union of India was a landmark judgement in which a transgender woman teacher had sought compensation from two private schools for alleged employment malpractice, and the State, which had failed to enforce provisions of the Transgender Persons (Protection of Rights Act), 2019 (“TGA”). The Court held that the 2nd school committed discrimination by withdrawing her employment upon learning of her gender identity, and that the State committed omissive discrimination insofar as it did not enforce compliance with the TGA by private parties.

Beyond its significance for queer rights, the judgment is also significant for being the first and only Supreme Court judgment (as of writing), since Kaushal Kishor, to explicitly develop jurisprudence on the operationalisation of horizontality. In this case, the Court explicitly invoked indirect horizontality as the fundamental doctrine for adjudicating the petitioner’s rights and the private respondent’s 2nd school’s liability. Normally, the adoption of a doctrine such as indirect horizontality should provide a clearer framework for the Court to determine the duties of private parties towards others’ fundamental rights; something neglected entirely by Kaushal Kishore.

However, this piece argues that the judgment does not do much to disambiguate Kaushal Kishore, as the Court ended up enforcing direct horizontality as a result of both improper analysis and application of the doctrine of indirect horizontality. In short, the Court failed to distinguish between obligations under a statute and liabilities arising out of the breach of the obligations. Instead, it substituted the liabilities emerging from constitutional law for violations of statutory obligations. This leads to a kind of “direct-indirect” hybrid model of horizontality, where enforcement of horizontality is left purely to the discretion of the Court, with not much regard for the actual statutory scheme – an effect contrary to the purpose of indirect horizontality.

Two Models of Horizontality

Before analysing the judgment, it is imperative to set out a brief overview of the two main relevant models of horizontality (see here for a more detailed overview). Direct horizontality is when constitutional rights and obligations directly subject the conduct of private parties, even in private affairs. Indirect horizontality is when the rights and obligations are already set out in a law that regulates the private affairs of parties, and the Court tests whether said law is in compliance with constitutional values.

The main difference between the two is that in the latter, rights and obligations of the parties stem not from the constitutional law but instead from the non-constitutional law. In the indirect model of horizontality, private conduct is subject to clearly defined bounds as already set out in the non-constitutional law. However, these bounds are subject to interpretation or even modification by the Court to bring it in alignment with constitutional values. That said, the rights and obligations ultimately stem from the non-constitutional law.

The judgment in Kaushal Kishore does not acknowledge, let alone differentiate between these models, and as such, the operationalisation of horizontality has been left in limbo as noted in this blog previously.

The Court’s Analysis of Horizontality

In analysing the Court’s understanding and use of indirect horizontal application, it is first necessary to understand the 4 issues framed by the Court (¶28), which can be summed up as:

  1. Whether there exists a positive obligation on the State, under the Constitution and the TGA, to prevent discrimination?
  2. Whether inaction and omission by the State amounts to discrimination,
  3. Whether the actions of the private schools were discriminatory,
  4. Whether the petitioner is entitled to compensation from all parties?

At the very outset, issues of this nature are not new to the Court, and have been dealt with without explicitly invoking horizontality. The first two issues are purely related to the positive duties of the State. As for the rest, indirect horizontality did not need to be explicitly invoked, as it is well-established by now that the Supreme Court has wide enough powers under Article 32 to make even private parties, at individual instances, amenable to its writ jurisdiction, as has been held in cases such as Jeeja Ghosh. Granted, the petitioner had explicitly sought horizontal effect, arguing that there is a duty cast upon private parties not to discriminate, relying on Kaushal Kishore (¶15), and the 2nd private respondents argued that the present matter was a private employment/contractual issue outside the writ jurisdiction of the Court (¶22-27). However, the Court could have simply relied on Kaushal Kishore and held that the withdrawal of employment upon the learning of a person’s gender identity constitutes an affront to dignity. Then, it could have used its powers under Article 32 to order compensation. This would not have, at the very least, muddled Kaushal Kishore.

Instead, the Court chose to delve into a nuanced and complex topic such as indirect horizontality and made it the main legal basis for determining the rights and liabilities in this case (¶131-135 and ¶162). This is most clear in the following paragraph, where the Court observed that:

The broader controversy surrounding the horizontality of fundamental rights has, in any case, been settled by a Constitution Bench of this Court in Kaushal (supra). Therefore, it is unnecessary to undertake a detailed discussion on the issue in the present case. What is relevant here is that an indirect horizontal application of State-guaranteed rights already exists by virtue of the 2019 Act. The present petition, therefore, is confined to a limited yet significant question, namely, the absence of a grievance redressal mechanism under the 2019 Act, which leaves the petitioner without an effective remedy to address the violations of her rights under the statute. (¶135)

Mediating the constitutional duties of private parties in legislation that explicitly provides for rights and liabilities is a welcome change from Kaushal Kishore. However, the Court has a bare minimum obligation to properly apply the doctrine when it goes out of its way to invoke it. Though the Court does not reference any particular model of indirect horizontality followed in any jurisdiction, it can be gathered that it refers to a very general understanding of the term, as it observed that “by creating statutory obligations for non-state actors, the 2019 Act translates the constitutional promise of equality into a social duty, mandating inclusion beyond State instrumentalities” (¶132).

In its analysis on the statutory obligations, the Court pointed out that the TGA and the TGA rules impose broader negative obligations not to discriminate, as well as positive obligations to provide certain facilities as prescribed by the State (¶139-140). Beyond this, private parties have only one other positive obligation, namely to establish an internal redressal mechanism. But this is about the end of the Court’s analysis on obligations under the TGA. 

The Court failed to note anywhere in its judgment that, under the TGA, there is no other obligation or liability. There is no duty to cast upon the private parties to compensate or provide any other remedy for discrimination. So, if the private party fails its obligations relating to discrimination, its liability begins and ends with the redressal mechanism. However, the framework on redressal mechanism is very thin, and all the private party has to do is meet certain procedural requirements relating to the appointment of complaint officers, investigation and deadlines. As for the actual private remedies to be provided by the mechanism, the statutory framework is completely silent on this. Only a central government policy mentions “appropriate corrective remedies” such as counselling, training, disciplinary measures and “any other necessary actions to rectify the situation”.

So, at most, the liability of the private party may extend to either being punished by the internal committee or providing rehabilitation/institutional support, but only after the redressal process. Liability to compensate can, at most, be argued to maybe form part of “any other actions” under the government policy. However, it is to be noted that compensation is a remedy of a very different nature than, say, rehabilitation. The TGA’s framework is very thin compared to the framework of redressal mechanisms in POSH cases, for example, where the legislation explicitly incorporates provisions relating to compensation and other remedies in an elaborate manner. On a side note, the failure to note this is ironic, considering the other half of the judgment is dedicated to a discussion of omissive discrimination by the State, which also includes legislative gaps.

Digressing, the whole point of indirect horizontality is that liabilities and remedies are statutorily mediated. Therefore, when the Court intends to analyse the constitutional duties of the private parties under its self-chosen instrument of indirect horizontality, and used this instrument to answer issues 3 and 4 it is bound to have engaged with an analysis of: 1) whether compensation is a remedy payable under the TGA and 2), upon its findings, if necessary, modify or interpret the law in alignment with constitutional values if it felt that compensation was necessary.

The court did not undertake any such analysis and instead parroted that the schools have a general duty not to discriminate and the duty to set up an internal redressal mechanism, completely glancing past how thin the framework actually is. In other words, the court did not distinguish between obligations imposed by the TGA and the corresponding liabilities emerging from breach of the obligations.

Direct Constitutional Liability

If indirect horizontality is the legal basis for adjudicating the 2nd school’s obligations, and if the court did not analyse whether the TGA provides for compensation, then naturally one wonders how compensation was awarded. Curiously, the Court, after holding that the private parties are mandated not to discriminate due to the TGA (determination of obligation through horizontal effect), the Court abruptly shifted to the question of compensation payable due to the breach of obligation (¶162-164). In answering this question, the Court simply followed the precedent in cases like Jeeja Ghosh to hold that even private parties are liable to pay compensation when there is a violation of a fundamental right, but no other remedy is available (¶172-177).

It was earlier pointed out in this article that compensation payable by private parties under writ jurisdiction is nothing novel. When the court was anyway going to rely on its powers under Article 32, its invocation of indirect horizontality seems unnecessary, especially when it did not bother to differentiate between obligations and liabilities under the TGA. However, there is a far more conceptual problem here. Compensation here is not enforcement of indirect horizontality; instead, it’s actually the enforcement of direct horizontality. Consider the following:

  1. The 2nd school was found to have violated the fundamental rights of the petitioner in the course of its private dealings.
  2. The school was held liable to compensate the petitioner for this violation.
  3. The basis of this liability/ remedy is purely judicial interpretation of constitutional law.

This is a clear-cut case of direct horizontality, wherein actions of private parties are made subject to constitutional law. A counter-argument, in defence of the judgment, might be that compensation was awarded as an extraordinary measure to give effect to the TGA’s substantive rights when the TGA’s own remedial structure failed. However, this is flawed as in indirect horizontality, the Court must interpret or develop the law to give effect to constitutional values and not bypass the statute and award a constitutional remedy directly. Moreover, the Court itself records in ¶176 that the basis of the compensation payable by the school was for violation of fundamental rights (which are horizontally mediated through the statute). This is unlike the compensation payable by the State for its inaction in enforcing the TGA, which actually does relate to failures of the remedial structure. So, the Court ended up operationalising direct horizontality, contrary to its own premise.

Direct/Indirect Horizontality

Two essential characteristics emanate from the “model” of horizontality as used in this case. Firstly, the obligations of a private party towards fundamental rights arise from statutory laws that explicitly impose them. Secondly, the actual liability of the party for breach of its obligation is determined by the court’s discretionary use of its powers under Article 32, with not much regard for the actual statutory scheme. If one is to make sense of this “model”, it can be best understood as the exemplification of some kind of “direct-indirect” horizontality, wherein direct constitutional liabilities are imposed on private actors for breach of statutory obligations that, at some level, are designed to protect fundamental rights.

Beyond the fact that the Court did not frame it this way, this “model” does little to disambiguate Kaushal Kishore. The only disambiguation, if at all, is that the source of obligations stems from statutory law. But this doesn’t matter much when the source of the corresponding liability stems from Article 32’s discretionary powers, through which the Court can pick and choose which obligation to enforce.

This is exemplified in this very case, as the 1st school escaped any liability, as the court could not factually find the school to have committed discrimination. However, the Court found the school guilty of failing to establish a redressal mechanism, yet, interestingly, chose not to impose any liability on the school. The reason for this was that private parties purportedly cannot be expected to follow provisions not enforced by the State (¶159). Apart from the questionable underpinning logic, this has no statutory basis at all; all private establishments, regardless of State inaction, are bound to set up an internal redressal mechanism.

The duties under TGA meant to give horizontal effect to substantive equality are not just negative, but also positive in nature. The private parties are bound not to discriminate and to set up a redressal mechanism under the TGA. The positive obligation of the school exists independent of whether or not it failed its negative obligation. Yet, the Court chose to overlook the 1st school’s violations based on a dubious logical premise.

Conclusion

Jane Kaushik’s choice of operationalising horizontality through indirect horizontality could have been transformative for the Indian horizontal rights discourse. But that would have required the Court to have clear conceptual clarity on the line separating indirect horizontality, the positive duties of the State and its own powers under Article 32. Kaushal Kishore left the operationalisation of horizontality entirely ambiguous, and Jane Kaushik’s choice of doctrine presented the perfect opportunity to remedy the maladies of its predecessor. Instead, the judgment sets up an “indirect model” of horizontality in which the Court will situate obligations within a statute and derive corresponding liabilities from the Constitution. This has a massive bearing on future cases, as the Court can not only selectively determine what an enforceable obligation is, but also sidestep entire statutory frameworks, all in the name of “indirect horizontality”.

Introducing a Query-Based Approach: Lessons from Abhigyan and Airport CCTV [Guest Post]

Gautam BhatiaLeave a comment

[This is a guest post by Rudraksh Lakra and Medha Kolanu.]

In June 2026, two developments in quick succession illustrated the expanding reach of state surveillance. On 19 June, Home Minister Amit Shah launched Abhigyan, a mobile application developed by the National Crime Records Bureau (“NCRB”) that enables police officers to scan fingerprints in the field using a smartphone and receive a criminal history match from a national database within 35 seconds. Days later, reports emerged that the Central Industrial Security Force (“CISF”) was proposing to deploy facial recognition cameras across six major Indian airports.

The database underpinning Abhigyan is the National Automated Fingerprint Identification System (“NAFIS”), which contains over 1.3 crore fingerprint records. NAFIS is integrated with the Crime and Criminal Tracking Network and Systems (“CCTNS”), the nationwide policing platform containing FIRs, investigation reports, charge sheets, criminal histories, arrest records, and related administrative information. The proposed airport surveillance network, meanwhile, would feed into National Intelligence Grid (“NATGRID”), an intelligence platform linking at least twenty-one categories of government databases. In both instances, surveillance operates through large, centralised databases that aggregate and correlate information across multiple systems.

The accumulation of vast data repositories has become an inevitable feature of both public administration and private enterprise. Since the advent of the internet, increasingly detailed digital footprints have been generated through smartphones, laptops, wearable devices, Internet of Things ecosystems, e-governance initiatives, and digital public infrastructure. The objective is increasingly to map and classify every aspect of individual and social life, from movement and transactions to communications and patterns of association (see here, and here). Surveillance now operates through an intertwined relationship between the state and private actors, with private companies often possessing more detailed information about individuals than the state itself (ibid, and see here).

In India, surveillance practices operate across a spectrum ranging from legal “black holes” to “grey zones”. Black holes are surveillance regimes that function without a clear statutory basis, notwithstanding their significant operational reach. Programmes such as NATGRID, the CCTNS, and the NAFIS fall within the black hole, and many of these evolved in the aftermath of the 26/11 Mumbai attacks, exemplifying this category. Grey zones refer to situations of “lawful illegality”, where formal legal frameworks exist but fail to adhere to a meaningful conception of the rule of law. The targeted surveillance falls within this category.

These surveillance regimes have attracted sustained criticism (see here, here, here and here). They frequently lack meaningful and independent oversight, both at the stage of authorisation and after surveillance has been conducted (ibid). Law enforcement agencies enjoy broad discretionary powers, while the governing legal frameworks provide only limited safeguards relating to data protection, transparency, accountability, and effective remedies (ibid). These features are part of an architecture of authoritarianism and suggest a continuing colonial logic of governance, in which expansive surveillance powers and limited accountability mechanisms privilege state authority (see here, here, and here). Historically, the Indian Supreme Court has also permitted the admission of illegally obtained evidence. Consequently, even where surveillance authorisation procedures were violated, individuals often had little practical recourse against the state. Following the Supreme Court’s decision in Justice K. S. Puttaswamy v. Union of India (2017), which recognised privacy as a fundamental right, a stronger case exists for adopting the “fruit of the poisonous tree” doctrine, under which evidence derived from unconstitutional surveillance would likewise be excluded (see here, and here). Although some High Courts have shown openness to this approach, the broader judicial position remains unsettled.

Although privacy scholarship has extensively examined surveillance authorisation and procedural safeguards, one issue remains under-theorised: how should constitutional privacy law regulate databases themselves, particularly large-scale, interconnected ones? The question arises both when the state directly searches a database and when it compels a private entity to search one on its behalf. As investigations increasingly depend on querying vast datasets and correlating information across multiple systems, privacy doctrine must account for the nature of the data collected, the scale of the repository, the design of search queries, and the inferences they generate. This blog introduces a constitutional framework for analysing database searches. It begins with the leading account proposed by Orin Kerr, identifies its limitations, and advances an alternative query-based model for understanding privacy harms in the age of large-scale databases. The query-based model is developed in greater detail in a forthcoming paper.

Filter-focused model

A recent attempt to address this issue is found in the work of Orin Kerr, who proposes a filter-focused model for analysing searches across digital databases. Kerr developed this framework in response to emerging creative investigative techniques. These techniques challenge the conventional Fourth Amendment doctrine, which protects “persons, houses, papers, and effects” against unreasonable searches and seizures. For instance, in People v. Seymour, investigators asked Google to identify users who had searched for a specific address associated with a criminal investigation by querying its entire Search and Maps records database  (a reverse search warrant). A related technique is the geofence warrant, through which police request information about devices located within a geographic area during a specified time period. Another method is the tower dump, by which authorities obtain records of all devices connected to a particular cellular tower within a specified timeframe. In each case, the traditional warrant model is reversed. Instead of identifying a specific person or place in advance, investigators search the entire database and then narrow the results.

Kerr notes that existing Fourth Amendment principles provide limited guidance for determining how constitutional protections should apply to these forms of database searching. Analogies drawn from physical searches are of limited assistance in digital environments. In a physical search, officers move objects to bring items into view, exposing them to human observation. Digital investigations instead involve computers scanning vast quantities of stored data. The key constitutional question, therefore, becomes whether the search occurs at the moment of scanning, at the point of a positive match, or only when the results are presented to investigators.

Kerr argues for the adoption of a filter-focused model. Rather than emphasising the size of the database, this approach focuses on the design of the filter applied during the search. A digital filter runs through a dataset and produces an output visible to investigators. Constitutional analysis, thus, focuses on what information the output reveals and what inferences may be drawn from the filter used to generate it. The constitutional question remains: “What information becomes exposed to human observation through that filter?” This reasoning subsequently appeared in Seymour, where the Court upheld a reverse search warrant directed at Google. Although the warrant required scanning a database containing records of numerous users, the Court stressed that the search was tightly circumscribed. It was limited to queries for a specific address associated with the crime scene within a narrow time frame. The initial results were anonymised, and only a small number of records were ultimately disclosed. The legality of the search turned not on the size of the database but on the precision of the search parameters.

Query-Based Model

Kerr’s model provides a useful framework for analysing digital surveillance by focusing on what can be inferred from the output of a database search in light of the filter applied. However, the model remains incomplete in two important respects. First, Kerr argues that neither the mere collection of data nor the act of searching raises a privacy concern; rather, the concern arises only at the stage of disclosure. In this view, the size, nature, and granularity of the database matter only to the extent that they shape the filter’s output. The database itself is treated as constitutionally inert until the results are revealed. This approach understates the independent constitutional significance of the filter. The design and configuration of the search filter can implicate privacy interests even before results are produced. If a database contains information protected by the Fourth Amendment, querying that database constitutes a search that must itself satisfy constitutional requirements. Constitutional scrutiny cannot be limited to the final output; it must also extend to the scope and structure of the authorised query.

Consider United States v. Smith (2024), where the Fifth Circuit held:

When law enforcement submits a geofence warrant to Google, Step 1 forces  the  company  to  search  through  its entire  database  to  provide  a  new  dataset  that  is  derived  from  its  entire  Sensorvault.  In  other  words,  law  enforcement cannot obtain its requested location data unless Google searches through the entirety of its Sensorvault—all 592 million individual accounts—for all  of  their  locations  at  a  given  point  in  time.  Moreover,  this  search  is  occurring while law enforcement officials have no idea who they are looking for,   or   whether   the   search   will   even   turn   up   a   result.   Indeed,    the   quintessential  problem  with  these  warrants  is  that  they  never  include  a  specific user to be identified, only a temporal and geographic location where any given user may turn up post-search.11 That is constitutionally insufficient. (Page 32)   

Kerr criticises this reasoning to the extent that it suggests any search across a massive database is inherently suspect. On this point, his critique is persuasive. The mere fact that a search operates across a large dataset does not make it unconstitutional. In digital systems, large-scale queries are often technologically unavoidable. However, Kerr does not fully engage with the more significant aspect of the Court’s reasoning: the absence of particularity. The problem was not simply that Google had to query a large database, but that the warrant failed to specify a particular person or place. Instead, it authorised a search defined only by time and geography, allowing investigators to identify whoever happened to be present in the area.

This reasoning highlights a central constitutional principle. Both the search filter and the resulting output must satisfy the requirement of specificity. A filter that lacks a clear nexus to a particular suspect or defined place, or that is not confined within reasonable temporal limits, risks functioning as a general warrant. Even if later stages narrow the output, the initial authorisation may already have permitted a broad and open-ended search inconsistent with constitutional safeguards. The constitutional problem with geofence warrants, tower dumps, and similar dragnet searches, therefore, does not lie simply in querying a large database. Rather, it lies in the absence of a narrowly defined filter linked to a particular person or place, confined within a reasonable time period, and grounded in a specific investigative objective.

Second, in developing the filter-focused model, Kerr largely conceptualises database searches as mechanistic queries. Under this model, a computer scans a dataset for a precisely defined input, such as a specific word, number, or combination of characters. The system converts the query into machine-readable form, for example, ASCII, checks each record for an exact match, and returns only those entries satisfying the criteria. For instance, law enforcement may query call detail records using a specific phone number to retrieve all calls made to or from that number within a defined period. The phone number functions as the filter, and the system returns only the matching records. The same logic applies to searching an email database for a specific keyword or querying a government database using a unique identification number.

Kerr’s model is built around this understanding of search as an exact-match, filter-based operation. However, restricting the concept of search to exact-match queries is increasingly difficult in contemporary digital systems. Many modern searches rely on probabilistic or similarity-based techniques that lie between strict matching and full algorithmic inference. For example, law enforcement systems searching for child sexual abuse material often use hash databases, where files are compared against known digital fingerprints rather than exact file names or identifiers. Similarly, biometric identification systems rely on facial recognition algorithms that perform one-to-many (1) or many-to-many (N) matching across large databases (see here, and here).

For constitutional analysis, the concept of search should therefore be understood more broadly as a query directed at a dataset. What matters is that the state directs a computational query at a database to extract information about individuals, patterns, or relationships. Whether the method relies on exact matching, probabilistic similarity scoring, or machine learning or AI does not alter the underlying fact that the state is interrogating the dataset. This broader framework may be described as a query-based approach.

This understanding is particularly important where algorithmic systems generate profiles or predictive assessments. Governments increasingly deploy such tools to analyse large administrative databases in areas such as welfare administration, fraud detection, and risk scoring. These systems analyse behavioural patterns, transaction histories, and relational networks to identify individuals who satisfy defined risk profiles. Even where the system is not searching for a single keyword or identifier, it nevertheless conducts a structured interrogation of the dataset to identify individuals meeting analytical criteria. Functionally, this remains a form of database search.

Accordingly, under a query-based approach, the concept of search should encompass both deterministic and probabilistic database queries, including AI-driven analysis. The constitutional concern does not depend on whether the query relies on exact matching or probabilistic inference. Instead, it turns on the scope of the computational query, the nature of the database, the information exposed to scrutiny, and the inferences the state is able to draw from the resulting output.

Abhigyan and NAFIS

NAFIS was first announced by the Ministry of Home Affairs in December 2024 as a consolidated national fingerprint repository, bringing together datasets that state police departments had previously maintained separately under the NCRB. By October 2024, the NCRB had already compiled over 1.06 crore fingerprint records. NAFIS also operates within India’s broader digital policing ecosystem through its integration with the CCTNS, the nationwide policing platform containing FIRs, investigation reports, charge sheets, criminal histories, arrest records, and related administrative information. A biometric match can therefore do far more than identify a fingerprint. It can retrieve criminal justice information associated with that individual from policing records across states, departments, agencies, and stations. A fingerprint search, in other words, was never a search for a fingerprint alone. It was always an entry point into a much larger informational environment capable of generating detailed investigative profiles through the linkage of multiple databases.

Abhigyan does not alter this underlying architecture, but alters the point of access. Where a fingerprint query once required some institutional process, a station visit, a recordkeeping step, where there may be dedicated scanning equipment, or a formal request to access the repository, Abhigyan compresses this into a smartphone application usable by any field officer during a routine encounter. A vehicle check, a street stop, or an interaction with someone an officer regards as suspicious can now generate a query against the full national repository, with a result reportedly returned in approximately 35 seconds.

A query-based analysis asks whether the search filter applied is narrowly tailored and tied to a specific investigative purpose. But, within NAFIS, every comparison effectively runs the recovered print against the entire repository, meaning individuals whose biometric data sits within the system remain continuously searchable across investigations occurring anywhere in the country. Because NAFIS is linked to CCTNS, a successful match may immediately expose not only biometric identity but also connected FIRs, investigation records, charge sheets, criminal histories, and other policing information. The informational consequences of the query, therefore, extend well beyond biometric identification. This converts the relationship between an individual and investigative agencies into one of suspicion. Scrutiny no longer follows from independent evidence connecting a person to an offence. Inclusion within the dataset becomes its own basis for repeated examination.

Abhigyan sharpens this concern by removing the procedural friction that once separated a routine encounter from a database query. The PIB description of the application’s use case, identifying “suspicious individuals” during “routine vehicle checks,” suggests that the query is authorised by an officer’s discretion at the point of contact, rather than by a particularised suspicion connected to a known offence. A search filter without a defined nexus to a specific person, place, or investigation functions, in substance, functions as an open-ended search, irrespective of how efficiently the result is generated. By enabling immediate access to a nationally networked biometric repository from a handheld device, Abhigyan substantially lowers the practical threshold for initiating searches against individuals encountered during ordinary policing activities.

The probabilistic nature of fingerprint matching adds a further layer of concern. Automated identification relies on similarity scoring rather than deterministic comparison, and its reliability may be further reduced where field-collected fingerprints are partial or degraded. Petitioners during the Aadhaar litigation argued that fingerprint authentication carries measurable error rates due to the quality of prints, the conditions of collection, and the limitations of matching technology, and that within a database of this scale, quality concerns become more pronounced and the probability of erroneous identification increases accordingly (see here, here, and here). A 35-second turnaround, while framed as a marker of efficiency, also compresses the time available to assess the reliability of an algorithmic output before it is acted upon in the field. Where the resulting match simultaneously unlocks access to extensive criminal justice records through CCTNS, the consequences of an erroneous identification become considerably more significant than a mistaken biometric comparison alone.

The government cites the Criminal Procedure (Identification) Act, 2022 as the statutory basis for the construction of this repository, but does little to discipline the subsequent act of querying it. Section 3 materially expanded the categories of persons from whom biometric measurements may be collected, extending beyond convicted persons to include arrestees, detainees, persons ordered to give security for maintaining public order or good behaviour, and others falling within its broad scope (also see here, here, and here). It authorises the collection of fingerprints and other biometric identifiers and permits their retention for periods extending up to seventy-five years (Section 4(2)). The combined effect is to substantially enlarge the pool of individuals whose biometric data becomes available for future investigative searches.

The Act also does not answer when, and on what threshold, those stored biometric records may subsequently be queried. Authorisation to collect and retain biometric data is effectively treated as sufficient authority to search that data whenever an officer chooses to initiate a scan. This conflates two distinct legal issues: the legality of constructing the database and the legality of each subsequent search conducted against it. The former does not automatically justify the latter. A statutory power to retain fingerprints does not answer the separate question of whether a field officer may query a national repository during a routine stop, absent any demonstrable investigative nexus.

Thus, an individual arrested but never convicted may remain within NAFIS for decades, with no clear statutory mechanism ensuring deletion where continued retention becomes difficult to justify. Through its integration with CCTNS, that individual’s biometric record remains continuously capable of revealing associated policing information whenever a search is initiated. Abhigyan ensures that this person can now be identified by any authorised officer, in any location, through an instantaneous field query conducted on the strength of a database entry that may never have resulted in a finding of guilt. Viewed through the query-based lens, the constitutional difficulty therefore lies not simply in the existence of a fingerprint database, but in the combination of an expansive collection regime, prolonged retention, extensive cross-database integration, probabilistic matching, and a query mechanism that permits repeated searches without requiring a clearly defined investigative justification before they are initiated.

Airport Facial Recognition and NATGRID

NATGRID was established in 2010 in response to the intelligence coordination failures exposed by the 2008 Mumbai attacks. It does not operate as a conventional database. It functions as middleware, a query infrastructure connecting at least twenty-one categories of datasets maintained across separate government and private entities, spanning banking and financial transactions, telecommunications subscriber data, passport and immigration records, tax filings, travel histories, and vehicle registration information. In December 2025, this architecture was extended further through integration with the National Population Register, which holds family-wise demographic data for 119 crore residents.

The defining feature of this system, from a query-based standpoint, is that a single identifier can trigger simultaneous searches across every connected dataset. A phone number or passport number entered as a query parameter does not return information from one database. It returns whatever can be correlated across financial records, communications data, travel patterns, and administrative identifiers at once. The effective scope of a query, then, is not determined by how narrowly an investigator frames the search. It is determined by the breadth of what the platform has been built to connect.

This is the central difficulty with the CISF proposal to integrate facial recognition at six major airports into a national data fusion centre cross-referenced against NATGRID. A traveller’s face, captured at an airport gate, becomes a query parameter capable of activating searches across systems that bear no apparent relationship to airport security. The query-based framework requires that a search filter be tied to a specific investigative objective. It becomes difficult to identify what that objective is once a facial match at a checkpoint is permitted to cascade into an inquiry across multiple connected databases, none of which were within contemplation when the camera captured the image.

The structural design of the proposed deployment compounds this concern. CISF officials have described cameras positioned at entry and exit points across airports, intended to flag fugitives and persons of interest as travellers pass through. This is not a targeted search authorised against a known suspect. It is a continuous screening of the travelling public, with each face automatically compared against stored templates. Within a query-based analysis, this constitutes population-level interrogation rather than investigation, a distinction that carries real constitutional weight. A query directed at a specific, named individual suspected of a specific offence operates within the bounds that particularity requires. A query that screens an entire travelling population, on the possibility that some unspecified match may surface, does not.

NATGRID’s own architecture deepens the inferential stakes of this integration. The platform incorporates tools such as Gandiva, which enable entity resolution and relational analysis across connected datasets, generating behavioural and associational profiles that extend well beyond what any single database could reveal on its own. A facial match at an airport gate, layered onto this infrastructure, becomes a potential entry point into a far larger correlation exercise, capable of reconstructing a traveller’s movement history, financial conduct, and family relationships from datasets that had no connection to the original purpose for which the airport camera was installed.

Officials have indicated that privacy and data protection will remain “a priority,” yet the public record offers no detail on the legal checks, technical limits, or independent oversight that would give that assurance. Under the query-based model developed here, that absence is itself the constitutional defect. The legitimacy of the system cannot rest on the eventual reliability of a match; it depends on whether the query authorising the search is confined by a defined subject, a defined purpose, and a defined boundary on the datasets it may reach. As proposed, the CISF system supplies none of these constraints, and the gap between aspiration and architecture is where the privacy concern actually resides.

Conclusion

The aim of this blog was to introduce and outline the contours of a query-based approach by applying it to Abhigyan and NAFIS, and to airport facial recognition integrated with NATGRID. While there may be reasonable disagreement about some of its conclusions, the principal value of the model lies not in prescribing fixed outcomes but in providing a structured framework for analysing how database surveillance operates. It serves as a methodological tool that enables courts, regulators, and policymakers to identify the constitutional questions that arise when the state interrogates large datasets. By examining the design of a query, the nature of the dataset, and the inferential capacity of analytical tools, the framework connects technical architecture with constitutional doctrine.

Its relevance extends beyond criminal investigations and surveillance to any context in which databases are queried, including digital public infrastructure, welfare administration, financial monitoring, and other forms of digital governance. In the forthcoming paper, we develop the framework in greater detail, also apply it to targeted surveillance, and propose a structured set of questions to constitutionally operationalise the query-based approach. The paper also advances high-level safeguards for database surveillance at three levels: the legal authorisation of database queries, the technical systems through which queries are executed, and the design of the databases that enable them.

On the Delhi High Court’s Telegram Ban Judgment – II: The Incoherence of Indian Proportionality Jurisprudence [Guest Post]

Gautam BhatiaLeave a comment

[This is a guest post by Rudraksh Lakra.]

Introduction

On 19 June 2026, the Delhi High Court, in Telegram FZ LLC v Union of India (2026) (“Telegram FZ“), upheld the temporary nationwide blocking of Telegram and its associated features under Section 69A of the Information Technology Act, 2000 (“IT Act”), in response to fraud surrounding the NEET-UG re-examination. Given that the decision affected approximately 150 million users of the platform, it has generated substantial discussion touching upon administrative law, constitutional law, and statutory interpretation. Tanmay Durani, in his insightful post on this blog, had offered a detailed merits analysis of the decision. He argued that the order lacked a rational basis and that blocking an entire platform is not permitted under the IT Act, as it is contrary to the legislative intent underlying the provision and the decision in Shreya Singhal v. Union of India (2015). Anushka Aggarwal has taken the latter argument even further, contending that the Court’s reasoning resembles copyright law jurisprudence, where the platform’s architecture itself becomes the basis of liability.

The pieces by Tanmay Durani, Apar Gupta, Indumugi C., Naman Kumar, and Amber Sinha have all emphasised the Court’s failure to properly understand and apply the proportionality standard, particularly at the necessity stage. They argue that although the Court adopted the framework laid down in Anuradha Bhasin v Union of India (2020) (“Anuradha Bhasin“), it failed to meaningfully apply it. The relevant extracts from Anuradha Bhasin regarding necessity are as follows:

… before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. (Para 78)

This is supported by the next two paragraphs, where the Court notes that the “degree of restriction and the scope of the same, both territorially and temporally” and “restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction.” (Para 79 to 80)

Thus, Anuradha Bhasin appears to place considerable emphasis on the Court examining less restrictive alternatives, in the form of more narrowly tailored measures. In Telegram FZ, however, and given that this point has already been discussed extensively elsewhere, it is sufficient to note that the Court, at this stage, merely restated the arguments of the petitioners and the respondents. It offered no meaningful analysis as to why other, less restrictive measures were unavailable. Thus, it would fail the Anuradha Bhasin standard.

In this blog, I do not seek to offer a case-specific or merits analysis. Instead, I use Telegram FZ as an opportunity to reflect on the necessity stage of the traditional proportionality test, a term I define in the following section. This issue is important as the petitioners placed considerable emphasis on necessity, and it has been, and is likely to remain, a central feature of constitutional adjudication in the future.

I argue that the necessity stage is widely misunderstood. It is often assumed to make proportionality a demanding and rigorous standard of review. Properly understood, however, the opposite is true. The traditional necessity inquiry is highly deferential to the State because it requires any less restrictive alternative to achieve the State’s objective to the same extent as the impugned measure. As a result, it is particularly well-suited to justify blanket restrictions and other overbroad limitations on rights, such as the Telegram ban. Building on this insight, I argue that Indian courts should abandon the traditional formulation in favour of the Hutterian model of necessity, which is both more rigorous and conceptually coherent.

I first developed this argument in detail in 2023, where I also proposed how each stage of the proportionality test could be redesigned and applied in India. My recommendations concerning the necessity stage remain equally relevant today. Indeed, they have become even more pressing as the State’s ability to impose overbroad restrictions, and the range of measures available through its expanding digital authoritarian infrastructure have continued to grow. This piece revisits that argument in light of the Telegram ban.

Traditional proportionality test and the Indian Supreme Court

I refer here to the traditional four-stage proportionality test, developed and applied in Germany, initially theorised by Robert Alexy and subsequently popularised by scholars such as Kai Möller, Aharon Barak, Alec Stone Sweet, Jud Mathews, and others. In comparative constitutional scholarship, including Indian literature, the term proportionality is often understood in this traditional four-limb form. The four stages of the traditional proportionality test  are, according to Kai Möller, and Aharon Barak:

  1. Legitimate aim: The measure must pursue a legitimate objective.
  2. Suitability (or rational nexus): The measure must have a rational connection with the legitimate objective. In other words, it must be capable of promoting that objective.
  3. Necessity: It requires that amongst two means that can promote the state’s aim to the same extent, the one that is less intrusive should be chosen
  4. Proportionality stricto sensu (balancing): this stage determines whether the interference with the right is justified in light of the benefits secured by protecting the competing right or public interest. It requires balancing the extent of the rights infringement against the importance of the competing objective.

The Indian Supreme Court has a long history of applying a relatively deferential standard of review under the guise of proportionality (see here, here, here, here, here, and here). The structured proportionality test emerged in the Court’s jurisprudence only in the last decade, beginning with Modern Dental College and Research Centre v State of Madhya Pradesh (2016) (“Modern Dental College“). However, while attempting to develop a structured proportionality jurisprudence, the Court has frequently reverted to its earlier approach. It has often failed to define and apply the proportionality test in a coherent and consistent manner. In cases such as Modern Dental College and Puttaswamy I, the Court did not clearly articulate a proportionality framework (see here, and here). In Puttaswamy II, it attempted to do so, but the third limb (necessity) and the fourth limb (balancing) were formulated in a manner that rendered the framework internally inconsistent (see here, and here). I shall return to Puttaswamy II in the last section. Further, in cases such as Puttaswamy II, Vivek Narayan Sinha v Union of India (2023) (“Vivek Narayan Sinha“), and Association for Democratic Reforms v Election Commission of India (2026) (“Association for Democratic Reforms II”), the Court did not apply the standard rigorously (see here, and here). Aparna Chandra has accordingly observed that “the Court’s approach of assimilating proportionality into the pre-existing framework for rights review limits the disruptive potential of proportionality”. This is because the Court appears to believe that proportionality has always been part of Indian constitutional jurisprudence. Consequently, it sees no need to make any substantive changes to the existing, lower standard of review, whether in terms of the substantive standard or the allocation of the evidential burden.

Even in Anuradha Bhasin, the Court stated that it was applying the structured proportionality standard, but it neither adopted nor properly articulated the traditional four-stage framework. Instead, it conflated several distinct limbs of the test:

In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It ought to be noted that such goal must be legitimate. However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. (Para 78)

The opening sentence clearly refers to the first limb of proportionality, namely the requirement of a legitimate aim. Notably, however, the Court omits any discussion of the second limb, namely, suitability or rational connection. The following sentence refers to the existence of less restrictive alternatives and therefore corresponds to the necessity stage.

The most significant difficulty lies in the final sentence. The Court states that the “appropriateness of such a measure depends on its implication upon the fundamental rights”. Assessing whether the extent of the rights infringement is justified in light of the importance of the competing objective is the inquiry ordinarily undertaken at the fourth stage, namely, proportionality stricto sensu or balancing. At the same time, the Court also refers to the “necessity of such measure”, thereby collapsing the necessity and balancing stages into a single inquiry. Even then, the balancing envisaged in Anuradha Bhasin is not equivalent to proportionality stricto sensu. The Court appears to weigh the degree of rights restriction against the availability of less restrictive alternatives. By contrast, under the traditional proportionality framework, proportionality stricto sensu requires balancing the severity of the rights infringement against the importance of the State’s objective. These are analytically distinct inquiries. More fundamentally, Anuradha Bhasin neither adopts the traditional four-stage proportionality framework nor articulates any other coherent structured model. Rather, it fails to approach proportionality as a methodological exercise comprising distinct and analytically separate stages of review.

Necessity and the traditional proportionality standard

Necessity is commonly misunderstood. It is often assumed that the necessity stage makes the traditional proportionality standard stringent and rigorous for the government. In reality, the opposite is true. Properly understood, it is a highly deferential standard. Under the traditional formulation, necessity requires that where two measures are capable of promoting the State’s objective to the same extent, the less rights-restrictive measure must be adopted.

The necessity stage is, in practice, almost otiose under the traditional proportionality framework because it is exceedingly difficult to identify an alternative measure that would achieve the State’s objective to the same extent. This limitation significantly weakens the test. Empirical evidence from Germany, where the traditional necessity standard is applied, supports Bilchitz’s argument and demonstrates the dominance of the final balancing stage. In 84 per cent of the reviewed cases, the impugned measure failed only at the fourth stage, while only 14 per cent failed at the necessity stage. Further, in 44 per cent of the cases, the Federal Constitutional Court either skipped the necessity inquiry altogether or dealt with it only briefly. Overall, the traditional formulation makes it exceptionally difficult for Courts to identify a viable alternative measure, rendering it unlikely that a measure will fail at the necessity stage unless the Court departs from the orthodox standard. Indeed, where the Federal Constitutional Court has found that a measure failed the necessity requirement, it has often done so only after deviating from the traditional understanding of necessity. This suggests that the capacity of the necessity stage to promote a culture of justification is inherently limited.

Moreover, the current formulation of the necessity inquiry is itself deferential to the State. Because the State determines the level of protection it seeks to achieve, it also effectively determines the benchmark against which alternative measures are assessed. Consequently, highly intrusive measures, including blanket bans, are likely to satisfy the necessity requirement because targeted alternatives will rarely achieve the State’s objective to precisely the same extent.

Properly understood, therefore, the traditional necessity test provides a particularly strong justification for blanket restrictions. If applied to Telegram FZ, assuming that preventing further dissemination of the leaked examination paper constituted a legitimate aim, a blanket ban on Telegram would almost certainly satisfy the traditional necessity requirement. It would have been exceptionally difficult for the petitioners to identify an alternative measure that could have prevented further dissemination to the same extent as a complete platform-wide restriction. This illustrates the central weakness of the traditional necessity test. Since the State defines the level of protection that it wishes to achieve, and the blanket ban or the overbroad restriction is likely to be the most effective means of achieving that level of protection, the measure is likely to satisfy the necessity requirement.

Reflections on the necessity stage in India and the Hutterian model of necessity

The Indian Supreme Court has not adopted a consistent understanding of the necessity requirement in its proportionality jurisprudence. It rarely applies the necessity inquiry and seldom examines whether less restrictive alternatives to the State’s chosen measure exist, largely because it is reluctant to second-guess executive and legislative choices. For instance, in Justice Chandrachud’s opinion in Puttaswamy I, which has subsequently been cited and followed in several cases, the necessity inquiry is absent altogether. In Association for Democratic Reforms v Union of India (2024) (“Association for Democratic Reforms I”) and Akshay N. Patel v Reserve Bank of India (2021) (“Akshay N. Patel”), the majority’s formulation in Puttaswamy II was followed. I shall critique the Puttaswamy II version shortly.

The traditional necessity standard can be found in cases such as Vivek Narayan Sinha and Association for Democratic Reforms II, as well as in the writings of Aharon Barak, whose formulation of the necessity inquiry was approvingly cited in Modern Dental College. However, in both Vivek Narayan Sinha and the Association for Democratic Reforms II, the Court did not actually apply the traditional necessity standard. Instead, it applied an even more deferential standard of review. Ironically, Vivek Narayan Sinha and the Association for Democratic Reforms II are rare cases in which a faithful application of the traditional necessity test would lead to potential failure at the state. If the traditional necessity standard is consistently applied, it would make it considerably easier for Courts to uphold measures such as blanket bans.

The strongest argument against adopting the traditional formulation of the necessity stage can be found in the majority opinion in Puttaswamy II. There, the Court observed that, under the German model of proportionality (traditional version), the balancing stage performs almost all the analytical work, rendering the earlier stages, including necessity, largely useless (Para 122-123). To address the concerns regarding the German model, it adopts David Bilchitz’s formulation of the necessity standard (Para 123).

To address the concern that the balancing stage of proportionalitystricto sensu is impressionistic and unguided, the Court reasoned that the use of established “bright-line rules” could discipline the inquiry (Para 123-124). In doing so, it drew upon the work of Jochen von Bernstorff without citing him. This becomes apparent from paragraph 123 of Puttaswamy II, which is a near verbatim reproduction of Kai Möller’s overview of Part II of Reasoning Rights: Comparative Judicial Engagement, to which both David Bilchitz and Jochen von Bernstorff contributed chapters setting out distinct models of proportionality.

It is possible that the Court did not read beyond Möller’s introductory chapter. Had it done so, it would have recognised that von Bernstorff’s principal criticism of the traditional proportionality framework is directed at the balancing stage itself. Von Bernstorff argues that, in most cases, only the first three stages of proportionality should be applied. In exceptional cases involving serious infringements of rights, a fourth stage may be justified, but it should not take the form of proportionality stricto sensu. Instead, it should be replaced with categorical rules. The Court thus relied upon a model that, far from seeking to discipline the balancing stage, advocates for its removal altogether.

The difficulty is compounded by the fact that Bilchitz’s model introduces a form of balancing at the necessity stage (see below) that closely resembles proportionality stricto sensu, whereas von Bernstorff rejects balancing altogether and replaces it with categorical rules. As Bilchitz himself acknowledges, there is a conflict between the two approaches (Page 59-60). These two conceptions of proportionality cannot be reconciled.

Bilchitz’s model requires:

First, a range of possible alternatives to the measure employed by the Government must be identified. Secondly, the effectiveness of these measures must be determined individually; the test here is not whether each respective measure realises the governmental objective to the same extent, but rather whether it realises it in a ‘real and substantial manner’. Thirdly, the impact of the respective measures on the right at stake must be determined. Finally, an overall judgment must be made as to whether in light of the findings of the previous steps, there exists an alternative which is preferable. (Puttaswamy II majority opinion Para 123)

The major problem with the standard advanced by Bilchitz is the design of the last limb of his model. At the last limb, the Bilchitz model introduces balancing, which Bilchitz acknowledges. The nature of the balancing that the Bilchitz standard introduces is much closer to the stage of proportionality stricto sensu. As it requires the degree of achievement and the degree of impact to be balanced, these are the two factors ordinarily balanced at the stage of proportionality stricto sensu. This raises an important issue concerning the role of the stage of proportionality stricto sensu. If balancing is already being carried out at the stage of necessity, then what remains to be done at the stage of proportionality stricto sensu? The Bilchitz standard, therefore, conflates the third and fourth stages of the traditional proportionality test.

I have elsewhere argued for the adoption of the formulation provided by the Canadian Supreme Court in Alberta v Hutterian Brethren of Wilson Colony for the necessity stage. According to this approach, at the stage of necessity, any less restrictive alternative that achieves the State’s aim to a “real and substantial degree” should be adopted (“Hutterian model of necessity“). This model was used by David Bilchitz to build his model. The Hutterian model of necessity would resolve the primary issues highlighted in the traditional proportionality test. Allowing alternatives that achieve the State’s aim to a substantial extent to be considered reduces the strictness of the necessity stage and helps operationalise it by making potential alternatives available for a Court to examine. Further, the Hutterian model has an important advantage over the Bilchitz standard. It keeps the necessity and balancing stages separate, does not conflate them.

Mariyam Kamil has described the approach adopted in Puttaswamy II as a “hybrid” model of proportionality, combining the approaches of David Bilchitz and Jochen von Bernstorff (manuscript on file with the author).  However, there is an intractable conflict between these two approaches. Consequently, subsequent decisions, such as Akshay N. Patel (para 21) and Association for Democratic Reforms II (para 62), adopt the Puttaswamy II formulation of the necessity standard, although the latter does so only implicitly, without attempting to reconcile Bilchitz’s and von Bernstorff’s competing theories. Instead, in formulating the necessity inquiry, they effectively adopt the Hutterian model without acknowledging it. However, as noted above, when called upon to apply the proportionality test, both  Vivek Narayan Sinha and the Association for Democratic Reforms II, ultimately reverted to a lower standard of review under the guise of the test.

For these reasons, Indian Courts should adopt, and petitioners and appellants should advocate for, the Hutterian model of necessity. Had the Delhi High Court in Telegram FZ applied this approach, it would have been required to undertake a genuine examination of whether less restrictive alternatives, such as the targeted blocking of specific channels, groups, or functionalities, could have achieved the State’s objective to a real and substantial degree. Such an inquiry would have been considerably more demanding than the traditional necessity test while preserving the analytical distinction between necessity and proportionality stricto sensu.

Conclusion

While this piece focuses specifically on the necessity stage, the design and implementation of the traditional proportionality standard marginalises all other stages and places predominant weight on balancing. One study found that 84% of cases reviewed before the German Federal Constitutional Court were resolved solely at the balancing stage. This raises two concerns. First, marginalising the first three stages can undermine the quality of reasoning at the balancing stage itself, since all prior stages feed into it. Second, balancing is an arduous exercise that has attracted a host of criticisms, many of which have considerable force.

Much of the scholarship on proportionality in India focuses on the Supreme Court’s failure to adopt and apply the traditional proportionality standard faithfully. However, even if the Court were to do so, the concerns raised by the traditional framework suggest that faithful application alone may not effectively reshape legal culture or reconfigure power relations in the way envisioned. Without making the test more robust, proportionality risks remain a bridge to nowhere, rather than a bridge towards a culture of justification.

For this reason, over the last decade, a growing body of scholarship has sought to refine the proportionality test (see here and here). While recognising its value, this scholarship also acknowledges the criticisms the traditional framework has attracted and attempts to redesign and apply proportionality in a more defensible form.

In my July 2023 literature review, “Pathways for the Future Evolution of the Proportionality Discourse in India,” I found that there were very few Indian contributions engaging with this emerging strand of proportionality scholarship aimed at strengthening, rather than merely applying, the test. Today, the landscape remains much the same. In the constitutional law jurisprudence following Puttaswamy II, there has been no serious engagement with the criticisms of the traditional proportionality framework or with how it might best be adapted for the Indian constitutional context. Improving the design and application of the proportionality test is therefore the next stage in its evolution in India, with comparative and empirical scholarship playing a pivotal role. That responsibility falls on scholars, litigants, and Courts alike.

Treating the Platform as “Information”: On the Delhi High Court Judgment Upholding the Telegram Ban [Guest Post]

Gautam Bhatia1 Comment

[This is a guest post by Tanmay Durani.]

The Delhi High Court’s judgment in Telegram FZ LLC v Union of India (W.P.(C) 8259/2026), delivered by Justice Tejas Karia on 19 June 2026, concerns the temporary nationwide blocking of an entire messaging platform under Section 69A of the Information Technology Act, 2000, in response to fraud surrounding the NEET-UG re-examination. At one level, this is simply another examination malpractice case, the sort of dispute that appears with some regularity in Indian administrative law. The more consequential aspect of the judgment, however, lies elsewhere. To my knowledge, it is the first time a court has more or less accepted that Section 69A, which was enacted to block specific information, may extend to blocking an entire platform when the State argues that the platform’s design prevents unlawful content from being separated out from lawful content. The question this raises is not whether examination fraud is a serious problem, which it is. The question is whether the structure of Section 69A, as the Supreme Court understood it in Shreya Singhal v Union of India, can sustain the extended interpretation of “information”, and whether the proportionality analysis that is supposed to condition such an interpretation was, in this case, actually performed.

The Court’s Two Moves

The judgment proceeds along two analytically distinct tracks, though the Court does not always keep them apart. The first concerns administrative law: was the Secretary’s satisfaction under Rule 9 of the 2009 Blocking Rules an independent one, or merely reiterating the requesting agencies’ case? The second concerns constitutional and statutory interpretation: does the blocking power in Section 69A extend to an entire intermediary, and if so, on what terms does the doctrine of proportionality permit its exercise?

On the first question, the Court may well be correct, although its reasoning leaves something to be desired. Telegram’s objection was that the 16 June 2026 Order mostly tracks the language of Section 69A and reproduces the requesting agencies’ account of events, without revealing any distinct evaluative exercise undertaken by the Secretary himself. Seen through an administrative-law lens, this raises a straightforward issue of non-application of mind. There is an important difference between recording satisfaction and genuinely reaching it. Where Parliament or the legislature requires an authority to be satisfied about certain facts before exercising power, courts have been willing to test whether that satisfaction emerged from the authority’s own consideration of relevant material, rather than from a formulaic adoption of someone else’s view (Barium Chemicals Ltd. v Company Law Board; see also Rohtas Industries Ltd. v S.D. Agarwal).

The Court’s answer (at paragraphs 25 and 28) is that the two-stage structure of the Blocking Rules, an emergency interim direction under Rule 9, followed by a hearing and a reasoned Final Order under Rule 7 – means that the adequacy of reasons must be assessed across the process, not frozen at the moment of the interim order. That makes sense in terms of how the Rules are set up. Rule 9 is there because, in urgent situations, the government is not expected to provide the kind of detailed justification that would ordinarily accompany a blocking order. Requiring that level of reasoning at the interim stage would largely defeat the point of having an emergency mechanism in the first place. The Final Order of 18 June 2026 is, on its face, far more elaborate, engaging Telegram’s submissions point by point.

It’s worth being precise about what is conceded here, because it isn’t much. Accepting that detailed reasons can come after the hearing says nothing about whether those reasons, once given, are the product of actual adjudication or simply echo one party’s version of the facts. The Committee’s conclusion that “granular filtration is technically impossible at this scale” (Final Order, para 5) is treated as a fact already established, yet this was the precise point Telegram disputed, in its Reply and then again in clarifications filed after the Meeting. The Court doesn’t really probe how the Committee approached and reconciled this technical disagreement between Telegram and the Government; all it says is that Telegram’s submissions were heard and ultimately rejected (paras 27-30). That gives almost no basis to judge whether the Committee independently weighed the competing technical claims or essentially deferred to the Government’s account of Telegram’s limitations. Having reasons and having arrived at them independently are not the same thing, and neither is the same as the interim-versus-final distinction the judgment leans on. So the Court’s answer to the timing objection simply doesn’t reach this deeper question.

The Expansion of Section 69A

The second move is the more consequential one, and it is here that the judgment departs furthest from existing scheme of law. Section 69A authorises the blocking of “any information generated, transmitted, received, stored or hosted in any computer resource.” “Information” is defined in Section 2(1)(v) to include, among other things, codes, computer programmes, software, and databases. The Court reasons (paragraphs 35 to 37) that since an application is, in the most literal sense, a compilation of code, software, and databases, an application is therefore “information” within the meaning of the section, and Section 69A consequently authorises the blocking of the application as a whole.

One need not quarrel with the language of Section 2(1)(v) to see the difficulty here. The interpretation has no obvious stopping point. A messaging platform is software, certainly, but so is an email client, a banking application, or a hospital database. If that is enough to trigger Section 69A, then the provision ceases to be about blocking particular unlawful content and starts becoming a tool for controlling the software systems through which information is exchanged. The Court does not pause to ask whether Parliament, in 2008, legislating in the aftermath of 26/11 and primarily contemplating the blocking of specific websites, URLs, and content items, intended “information” to bear this platform-level meaning. Nor does it engage with the fact that the statute keeps blocking under Section 69A structurally apart from intermediary regulation under Section 79 and the 2021 Rules — a separation this blog discussed before, in writing on the Sahyog portal litigation. There, the Karnataka High Court let Rule 3(1)(d) takedown powers substitute for what Section 69A was supposed to handle, and we criticised that for muddying a boundary Parliament had drawn with some care. The Telegram ruling muddies the same boundary, approaching from the other direction entirely. Where Sahyog dressed up intermediary powers as blocking powers, Telegram does something blunter: the blocking power simply swallows up the intermediary.

Much turns on what exactly the Supreme Court thought it was approving in Shreya Singhal. The judgment repeatedly describes Section 69A as narrow, and the reason for that description becomes apparent when one reads the Court’s discussion of the Rules. The process assumes a fairly simple model: particular information is identified, a request is made, relevant parties can be heard, reasons are recorded, and the decision is tested against Article 19(2). The safeguards are calibrated to that model. A platform-level blocking order departs from it in a fundamental way. The target is no longer a discrete item of information but the platform itself, carrying an ever-changing mix of lawful and unlawful content. There is no obvious originator, no singular piece of hosted material, and no straightforward way of matching the order to a particular constitutional ground. Yet the same procedural safeguards are treated as sufficient. The effect is to stretch Section 69A beyond the setting in which its constitutionality was defended, while leaving untouched the safeguards that were designed for a much smaller exercise of power.

Proportionality and Architecture

The judgment’s proportionality analysis (paragraphs 38 to 47) recites the four-part structure from Anuradha Bhasin v Union of India: legitimate aim, rational nexus, necessity, and least restrictive means — and concludes that each is satisfied. What is distinctive about the analysis, however, is not its structure but its object. The Government’s argument rather than turning principally on the content circulating on Telegram, turned on Telegram’s architecture: its cloud-based infrastructure, its bot ecosystem, its capacity to spin up mirror channels the instant an offending one is taken down, and its message-editing function, which the Committee found capable of being used to backdate fabricated “leak” evidence. The Court accepts (paragraph 42 onward) that these features render content-specific enforcement futile, and that this futility is itself what justifies the platform-wide remedy.

This is a genuinely novel form of reasoning, and it deserves to be named as such. Proportionality analysis ordinarily asks whether this restriction is necessary to address this harm, measured against the availability of narrower alternatives. What the judgment does instead is treat the platform’s design — its resistance to narrower enforcement — as itself supplying the proportionality of the broader remedy. The less amenable a platform is to surgical intervention, the more proportionate total intervention becomes. Taking this logic to its end-point,  the more effectively a platform is built — the more resilient, decentralised, and resistant to selective takedown — the more vulnerable it becomes to being blocked in its entirety, because resilience is taken to signify unaccountability. A feature engineered for legitimate purposes (resistance to censorship, privacy through pseudonymous handles, resilience against targeted takedown) becomes, on this reasoning, evidence supporting the case for a remedy that dispenses with narrow-tailoring altogether.

The existence of fraud was not at issue in this case. The authorities relied on a substantial body of material: I4C’s findings, multiple arrests, a registered FIR, and even statements by Durov himself acknowledging the problem of “backdating scams” (Para 10–11, Final Order; Para 26 of the judgment). The harder question was whether a complete block was proportionate. Anuradha Bhasin requires courts to examine whether less intrusive alternatives remained available. Yet it is not entirely clear that such an exercise was undertaken here. What the judgment shows is that the executive claimed to have exhausted other options. What it does not show with the same clarity is why those options were insufficient. Paragraph 45’s finding that “entity-specific interventions… were repeatedly found to be ineffective and inadequate” rests on NTA’s account of channels reappearing under new names, which is one party’s characterisation of a fact Telegram disputed, having claimed 900 of 1,300 flagged URLs were already disabled. Anuradha Bhasin required the authority to show it had genuinely canvassed intermediate options — say, geofenced restriction, time-bound holds on forwarding, feature-specific suspension short of a full block — before reaching for the most restrictive tool available. Further, the Judgment seems to be over-relying on the fact that channels re-emerged, but there is little quantification of how successful or unsuccessful the targeted approach actually was, for the court to decide that this approach had failed. A court could have required a more systematic showing, some empirical data that such harm was being caused without stoppage, so the government had no choice but to ban it (see Internet Mobile Association of India vs Reserve Bank of India)

The judgment is rich in evidence that the harm was real, but considerably less rich in evidence that this particular step, that nothing short of a total block could have stopped it, was independently tested rather than adopted from the agency seeking the block.

The Problem of Architectural Liability

The deepest difficulty with the judgment, however, lies a level below its application of proportionality. It lies in the principle the judgment installs for future cases: that the difficulty of enforcing the law against specific bad actors on a platform can itself justify removing the platform from the public altogether. Constitutional law traditionally addresses unlawful conduct — actual speech, actual fraud, actual incitement — rather than around the abstract possibility that a communications technology might be misused. This distinction is embedded in free-speech doctrine itself. In Shreya Singhal, the Supreme Court made clear that public-order restrictions demand a close nexus between speech and the anticipated disorder. The Court was not concerned with expression merely because it created an environment in which disorder might become possible — something akin to the State’s argument here that the platform’s architecture facilitates such outcomes — but with expression directly connected to the disorder itself.

The architectural-liability logic in Telegram threatens to dissolve that distinction. Once the basis for blocking shifts from particular content to the design of a service itself, the implications spread much further. Features such as encryption, disappearing messages, pseudonymous accounts, or limits on centralised moderation are hardly unique to one platform. They exist across a range of digital services. If those features become grounds for state action because they complicate investigation or enforcement, then the same argument could just as easily be directed at encrypted email providers, VPNs, peer-to-peer networks, and other privacy-enhancing technologies. Yet these are technologies that have long been defended as important safeguards for free speech and privacy precisely because they reduce the state’s ability to monitor and control communications. A rule that converts resistance-to-takedown into a ground for platform-wide blocking is, in substance, a rule that prohibits privacy-by-design. The Attorney-General’s submission that a platform “structurally incapable of ensuring accountability” forfeits the right to invoke proportionality (paragraph 15) should be read with this consequence squarely in view: it is an idea that, if generalised, asks not what a platform’s users did, but what a platform’s engineers built, and treats the latter as sufficient grounds for excluding the former from the public sphere.

Conclusion

The facts of Telegram are dramatic enough to attract attention, but they are not what makes the case important. Its lasting significance lies in how it reimagines Section 69A. The judgment moves from blocking particular information to accepting that a platform itself may be the object of a blocking order, and it does so through an expansive reading of the statutory definition of “information.” More strikingly, Telegram’s resistance to targeted intervention becomes part of the justification for shutting it down altogether. If that approach holds, the constitutional debate after Shreya Singhal changes considerably. The question, more than content, now, is also about whether entire digital spaces may disappear from public use because the State finds them difficult to police in narrower ways.

Constitutional Statute Approach to Institutional Independence of ECI: A Critique of the 2023 Election Commision Act[Guest Post]

Gautam BhatiaLeave a comment

[This is a guest post by Shrey Garg.]

The enactment of the Election Commission (Appointment, Conditions of Service and Term of Office) Act, 2023 (hereinafter ‘2023 Act’) and its restoration of executive dominance in the appointment process of the Chief Election Commissioner (CEC) and Election Commissioner’s (EC’s)  raises an important constitutional question about the role of the executive in shaping the very institutions that are tasked with regulating its influence and holding it accountable. The 2023 Act reinstates the executive dominance in the appointment process by replacing the appointments framework proposed by the Supreme Court in the case of  Anoop Baranwal v. Union of India which institutionalised a consultative and bipartisan  framework for appointments of CEC and EC’s by proposing a selection committee composed of the Prime Minister, Leader of Opposition and Chief Justice of India until the Parliament plugs the ‘legislative gap’ within the text of Article 324(2) through an appropriate legislation. However, the 2023 Act by replacing the CJI in the selection committee by a Union Minister appointed on the recommendation of the PM dilutes this institutional framework

The constitutionality of the Act is currently under challenge before the Supreme Court where the petitioners argue that the Act dilutes the appointments framework put in place in Anoop Baranwal and undermines the institutional independence of the ECI by restoring executive dominance in the appointments process. The Union Government on the other hand defends the constitutionality of the 2023 Act by arguing that the Parliament retains the ultimate power to determine the appointments framework for ECI and the framework proposed by the judiciary in Anoop Baranwal as only temporary until the Parliament enacts a suitable legislation.  

This conflict raises a deeper constitutional question- – are there limits on the power of the Parliament to alter the very institutional structure of institutions whose independence  is essential for the very survival of our democracy and if such limits exist how can they be imposed in a principled manner by the courts.  In this post, I evaluate this question through the extension of the concept of a ‘constitutional statute’ discussed previously by Gautam Bhatia and Malvika Prasad in context of non-constitutional bodies.

I argue for extension of the concept to constitutional institutions like ECI which perform an essential function of free and fair elections and therefore structure a relationship between the citizen and state. On the basis of this theoretical conception, I therefore argue against an implied repeal of the standard of institutional independence of the ECI proposed in the Anoop Baranwal case through the 2023 Act.

Redefining the Concept of A ‘Constitutional Statute’

Bhatia’s conception of a ‘constitutional statute’ is based on the premise that fundamental rights impose a positive obligation upon the state to create conditions for realization of fundamental rights. In relation to non-elected bodies, Bhatia argues that this positive obligation of the state can be fulfilled through creation of an ‘infrastructure of implementation’ in absence of which such the positive dimension cannot be effectively fulfilled.

At this stage Bhatia introduces an important nuance to the framework. He argues that this framework cannot be judicially created because it would raise legitimate concerns grounded in lack of expertise and legitimacy. Therefore, Bhatia argues that once such a statute is put in place by the legislature it becomes imperative for courts to institutionalize an ‘infrastructure of implementation’ for operationalizing the underlying fundamental right and any retrogation from this established standard should be declared unconstitutional.

The conception of ‘constitutional statute’ proposed by Bhatia however becomes normatively difficult to apply to institutions like ECI which do not enforce a clearly recognizable fundamental right but operationalize principles like free and fair elections which are essential for preservation of a democratic order. In comparative constitutional developments in the UK, also the emphasis on constitutional statutes has shifted from rights enforcing legislations to institutions which perform similar functions like institutions restructuring state power. Scholars like John Mc Garry and Samantha Spence drawing from the jurisprudential experiences in the UK have advanced ideas like recognizing ‘constitutional fundamentals’ like free and fair elections as also within the scope of constitutional statutes if they are either codified through an appropriate legislation or interpretated as part of  common law by judges.  

Once such a legislation is put in place, the court’s in UK jurisprudence have drawn a different test for these laws than ordinary statutes. Laws J. in the case of Thoburn v. Sunderland City Council observed that a constitutional statute can be repealed through an ‘actual not imputed, constructive, or presumed – intention’ of the Parliament expressed through ‘words so specific that the inference of an actual determination to effect the result contended for was irresistible’.  He further also invoked the principle of legality which mandates that any statute enacted by the Parliament should be construed to not depart from intention expressed in the previous statute except use of clear and unambiguous words.  The commentary on this case and subsequent affirmation of this test by the Supreme Court of UK have argued that this approach of express repeal provides a quasi-entrenched status to constitutional statutes in UK whose repeal is more difficult than an ordinary statute.  A similar version if adopted in Indian context can solve the problem of ‘thin entrenchment’ in the original constitutional design of the appointments procedure of ECI officials as argued previously by Bhatia.  

Free and Fair Elections as A Constitutional Fundamental in India

 In the Indian context, the idea of free and fair elections has been recognized as a part of the basic structure doctrine in the case of Indira Nehru Gandhi v. Raj Narain and has been subsequentially reaffirmed as an essential constitutional principle in subsequent jurisprudence. The idea of free and fair elections also does not operate as a judicial abstraction but has been operationalized through laws like the Representation of People Act 1950 and Representation of People Act, 1951 which entrust the ECI with sufficient powers and functions to hold free and fair elections in the country.

Therefore, the idea of free and fair elections can meaningfully alter the relationship between a citizen and state by providing the citizen a legitimate exercise of their voting power in a transparent manner and the ECI as a public institution governing elections performs an essential role in providing meaningful conditions for the same. The enactment of these legislations also serves as evidence of a parliamentary intent for upholding the spirit of free and fair elections in India.  A similar argument has been previously made on this blog.

This provides a principled justification for securing the institutional independence of the ECI through a fair and transparent appointment process free from interference of the executive branch. This proposition also finds support from the KM Joseph J’s  reading of independence of the institution as an underlying philosophy behind the Parliament  providing for a long stint of six years for CEC and EC’s of the ECI through the  The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

Joseph J. in his majority judgment notes:

The philosophy behind giving a reasonably long stint to the appointee to the post of Election Commissioner or the Chief Election Commissioner, is that it would enable the Officer to have enough time to gear himself to the needs of the Office and to be able to assert his independence. An assured term would instil in the appointee, the inspiration and the will to put in place any reforms, changes, as also the inspiration to bring out his best. A short-lived stint may drain the much-needed desire besides the time to fulfil the sublime objects of the high Office of the Election Commissioner or the Chief Election Commissioner. Any tendency towards placating the powers that be, would wax as also the power and the will to assert his independence may wane, bearing in mind, the short tenure. This apparently is the underlying philosophy of the law made by Parliament, assuring, a term of six years.  (emphasis mine).  

A structural reading of these legislations and their judicial interpretation leads to the conclusion that that free and fair election qualifies as a ‘constitutional fundamental’ in the Indian context and the institutional independence of the ECI serves as an effective ‘infrastructure for implementation’ for operationalizing this principle and together the whole framework qualifies the modified version of ‘constitutional statute’ proposed in this article and any statute enacted by the legislature in future could be expressed only through an expressed repeal.

Evaluating the 2023 Act

The 2023 Act deals with as the title suggests with the appointments, tenure and service conditions of the Chief Election Commissioners (CEC) and Election Commissioners (EC). Therefore, the core subject matter has an important bearing on the institutional independence of the ECI. Therefore, from the perspective of its constitutionality, the evaluation of the provisions of this statute

Section 8 of the 2023 Act has put in place a three -member selection pannel for the appointments of CEC and EC’s which finalizes the appointments through a majority vote. Since the pannel consists of two members who form the part of the executive branch ( PM and a Union Minister) this framework raises legitimate concerns of ‘executive capture’ of the ECI as  it renders any dissent from the LoP in the appointment process meaningless and his presence in the committee is merely ‘ornamental’ as the petitioners before the Supreme Court have contended.

Therefore, it weakens the very ‘infrastructure of implementation’ that is required to ensure that ECI functions in a transparent manner and performs its functions of ensuring genuinely free and fair elections which are acceptable to both the general electorate and the political actors. However, a partisan appointments procedure jeopardizes ECI’s capacity to gain a broad support base with electorate and the political actors due to charges of partisanship. Therefore, scholars like Tarunabh Khaitan have argued for freeing ‘guarantor institutions’ like ECI from partisan structures.  In this backdrop, it becomes essential that the court applies the stricter test of an express repeal of a prior constitutional statute by the Parliament proposed in the UK context.

The application of doctrine of express repeal in Indian context requires an important doctrinal clarification. Such an application is not in contrast to Parliament’s power to enact a statute under Article 324(2) but only limited to ensuring that any such statute should respect the parliamentary intent expressed in the already existing legislative framework i.e. furthering the institutional independence of the commission by putting in place a robust and non-partisan appointments framework and any such departure from this framework should be accompanied by a clear parliamentary intent which can be gleaned from the very text of the statute ( like the statements of  objects and reasons clause of the statute).  

In the present case, the statement of objects and reasons clause of the statute only mentions that the Act has been enacted as per the mandate of the Supreme Court in the Anoop Baranwal case to enact an appropriate legislation for appointments of CEC and EC’s. Therefore, as a logical corollary the provisions of the statute should respect the underlying basis of Anoop Baranwal case which was to have a consultative process for appointments of CEC and EC’s.  The clause nowhere states that there is a clear parliamentary intent to depart from this  consultative framework proposed in the Anoop Baranwal case. Therefore, the present statute fails to meet the doctrinal test of ‘express repeal of a constitutional statute’.  

At this stage, there is a need for an important clarification. may appear that by characterizing certain statutes as ‘constitutional statutes’ there is a disguised attempt to extend the basic structure doctrine style judicial review to ordinary legislations. Any such objection is serious given the contested terrain of basic structure review of ordinary legislation in India. However, the argument made here is limited in its scope. It only argues for preservation of those constitutional fundamentals for which a statutory framework already exists and therefore, there is a clear parliamentary intent for having such a fundamental. In such cases a stricter review of a subsequent legislation becomes a legitimate judicial intervention to prevent a retrogression from an already established framework for safeguarding a constitutional fundamental.

Conclusion

The ongoing hearings before the Supreme Court have articulated the question about the constitutionality of the 2023 Act about preserving the institutional independence of ECI and the role of Parliament in its appointing process keeping in mind the broader principles of free and fair elections which form a fundamental core of India’s constitutional democracy. This case poses a challenge before the judiciary about how to preserve ECI’s institutional independence which formed the core part of the reasoning in Anoop Baranwal without exposing itself to charges of judicial overreach.

The extension of the category of constitutional statutes to ‘ constitutional fundamentals’ as argued in this blog  offers a principled ground for the court to strike a balance between legislative deference and judicial overreach. It recognises that certain statutory frameworks like those securing institutional independence are integral to the functioning of democracy while preserving parliamentary authority to alter them through clear and deliberate action.

The Myth of the ‘Preliminary’ Inquiry: Rethinking Natural Justice in the In-House Inquiry Against Justice Yashwant Varma [Guest Post]

Gautam BhatiaLeave a comment

[This is a guest post by Pranav Mittal.]

On 18 April, Justice Yashwant Varma tendered his resignation while impeachment proceedings against him were underway in Parliament. His resignation letter raises serious concerns about the fairness of the proceedings, particularly with respect to the denial of an opportunity to examine witnesses in person and the redaction of portions of witness testimony.

In this blog post, I examine the fairness and natural justice concerns arising from the in-house inquiry conducted against him. I do not engage with the merits of the allegations of judicial misconduct. Rather, I adopt an administrative law lens to assess whether the procedure complied with basic procedural safeguards. I argue that the inquiry violated principles of natural justice by failing to ensure a fair hearing and by not adhering to the duty to give reasons. I first challenge the characterization of the inquiry as “preliminary, ad hoc and not final” by identifying the civil consequences that flow from it. I then apply the proportionality standard to assess whether the departures from natural justice can be justified.

A. ‘Preliminary inquiry’ and the question of civil consequences

In 2025, when the in-house inquiry was underway, the constitutionality of paragraphs 5(b) and 7(ii) of the In-house Procedure, 1999 (‘Procedure’) was assailed. Under the Procedure, once the Committee is satisfied regarding the veracity of the allegations of judicial misconduct, it has the power to report its conclusion to the Chief Justice of India (‘CJI’) [paragraph 5(b)]. Upon receiving a report confirming the allegations, the CJI must advise the judge to seek voluntary retirement [paragraph 7(i)]. Upon non-compliance, the CJI may ask the Chief Justice of the concerned High Court to not allocate any judicial work to the judge [paragraph 7(ii)]. Such withdrawal of judicial work alongside the committee’s report must also be communicated by the CJI to the Prime Minister and the President [paragraph 7(ii)]. The CJI based on the Committee report’s findings of the seriousness of judicial misconduct can also endorse the initiation of the impeachment proceedings before the Parliament [para 67].

The Court proceeded to analyse the nature of the inquiry under the in-house procedure. It held that the in-house inquiry is distinct from, and a step prior to, the impeachment proceedings for removal of a judge before Parliament under the Judges Inquiry Act, 1968. It was described as an internal self-regulatory mechanism devised by the judiciary to preserve public trust in the institution [para 83]. Relying upon Indira Jaisingh v. Supreme Court of India, the Court noted that the inquiry is fact-finding in nature, intended to enable the CJI to form his personal satisfaction under the Procedure [para 87]. It was therefore understood as a preliminary inquiry meant to assess, on a prima facie basis, whether the allegations are true before the commencement of full-fledged proceedings under the Judges Inquiry Act [para 92]. The Court thus affirmed the view that the in-house inquiry is “preliminary, ad hoc and not final” in nature.

On this understanding, the Court held that since the inquiry is merely a preliminary stage preceding the final proceedings, the judge cannot claim a lack of opportunity of a fair hearing at this stage. The principles of natural justice, it reasoned, are sufficiently guaranteed in the impeachment process under the Judges Inquiry Act. Further, since the impeachment proceedings are to be conducted independently, they cannot rely upon the evidence collected or findings recorded during the in-house inquiry. If such reliance were to occur, the judge would be entitled to challenge it at that stage. It was therefore held that a violation of the principles of natural justice could not be raised at this stage.

The Court’s likening of the in-house procedure to a preliminary inquiry without any civil consequences is, however, mistaken. In Mohinder Singh Gill v. Chief Election Commissioner, it was held that the principles of natural justice must be complied with wherever civil consequences ensue. These were understood broadly to include any adverse effect on civil rights, including property or personal rights, civil liberties, material deprivations, and even non-pecuniary harms.

Under paragraph 7(ii) of the procedure, the CJI’s order for the withdrawal of judicial work is consequent upon the adverse findings of the committee’s report. This qualifies as an appropriate civil consequence for the judge emanating from the committee’s inquiry.

In the present case, the direction to withdraw judicial work was issued by the CJI before the Committee submitted its report. This was inconsistent with the scheme of the Procedure, as paragraph 7(ii) permits such action only upon an adverse finding by the Committee. Ordinarily, the power to assign judicial work vests exclusively with the Chief Justice of the concerned High Court as the ‘master of the roster’, a prerogative that cannot be exercised at another’s direction. Further, while High Courts exercise supervisory control under Article 227 over subordinate courts, the Supreme Court does not exercise comparable administrative control over High Courts; treating it otherwise risks implying a hierarchical relationship that does not exist.

The Committee subsequently disclosed that it had found strong evidence of judicial misconduct. In that light, although the direction was premature under paragraph 7(ii), it may be justified as a temporary measure taken to preserve institutional credibility, as suggested by the press release describing it as operative “for the time being”. On this understanding, the withdrawal of judicial work was contingent upon the Committee’s eventual findings.

It is in this context that the significance of the Committee’s report becomes apparent. The report directly affects the rights and obligations of the judge by determining whether the condition for continuation of the withdrawal of judicial work is satisfied. Had the Committee found no substance in the allegations, the earlier direction would necessarily have to be vacated, restoring the judge to his full judicial functions. Conversely, an adverse finding sustains the deprivation. The report thus alters the judge’s legal position by affecting the discharge of his judicial office. This, it is argued, entails concrete civil consequences.

B. Whether abridgement of fair process rights here permissible?

Given that the in-house inquiry has civil consequences for the judge, the minimum core of natural justice must be guaranteed. This core comprises the principle of audi alteram partem, the rule against bias, and the right to a reasoned order. While deciding the constitutional challenge to the Procedure, the Court held that a personal hearing after the Committee submitted its report was not mandatory, since it was not expressly prescribed [para 126]. However, once civil consequences are established, the application of basic principles of natural justice cannot be excluded merely by the absence of an explicit requirement in the Procedure.

In the in-house inquiry against Justice Yashwant Varma, two aspects are particularly significant. First, on 4th May 2025, the CJI granted time until 6th May 2025 for the judge to seek voluntary retirement, failing which he would communicate with the Prime Minister and the President to initiate removal proceedings. The judge’s request to submit a written representation after a thorough review of the report was not accepted, and the communication was sent on the stipulated date. He was thus afforded less than 48 hours to examine the report and respond. This falls short of the requirement of a fair hearing, which includes a meaningful opportunity to respond within a reasonable time.

Second, the CJI’s letter to the constitutional authorities was treated as confidential and not disclosed to the judge. This raises concerns regarding the duty to give reasons, as the judge was not informed of whether the CJI independently endorsed the Committee’s findings or the reasons that informed such a decision.

The Supreme Court has recognised that the content of natural justice is flexible and must be tailored to the circumstances of the case. In Madhyamam Broadcasting Limited v. Union of India, the Court applied a structured four-pronged proportionality standard to assess departures from these principles. This framework provides an appropriate lens to evaluate whether the limitations on the right to a fair hearing and the duty to give reasons in the present case can be justified.

Right to Fair Hearing

      The judge was not given sufficient time to examine the contents of the report and respond to the CJI’s letter, thereby violating his right to a fair hearing. As noted above, he was afforded less than 48 hours to do so, which is inadequate in the context of serious allegations supported by detailed material. Sufficient time must be granted based on the seriousness of the allegations and the nature of material placed against the person. It has been held that a mere three day period to respond to detailed material against the person was insufficient.

      Applying the proportionality standard, at Prong I, protecting the image of the judiciary through swift action in cases of judicial misconduct is a legitimate goal. At Prong II, it must be shown that the two-day period to respond to the notice bears a rational connection to this goal. The credibility of the judiciary is not achieved merely through a speedy process, but also requires a fair procedure for removal. Here, a fair hearing was not meaningfully afforded in the in-house procedure conducted by the judiciary itself. A process that is speedy but procedurally unfair risks undermining, rather than enhancing, the credibility of the judiciary.

      At Prong III, the means adopted must be the least restrictive alternative among those available. Here, alternative measures were available which could have achieved the stated goal in a real and substantial manner. The CJI could have furnished the report to the judge and provided a reasonable period to respond, either through a written representation or an oral hearing. However, the request for additional time was denied, and the CJI proceeded to communicate with the concerned authorities immediately upon expiry of the stipulated period. Therefore, the abridgement of the right to a fair hearing is unjustified as it fails Prongs II and III.

      At Prong IV, the public interest in preserving trust in an impartial judiciary must be balanced against the public interest in the right to fair hearing. The speedy process achieve through the a restricted two days achieves very little in terms of salvaging trust in an impartial judiciary, whereas it leads to severe rights infringement. The public interest in an impartial judiciary is served not only by the removal of corrupt judges but by the procedural integrity of the removal process itself. Varma’s resignation letter damages public confidence in the judiciary’s self-regulatory capacity and therefore the weight on the restriction side is further reduced.

      Duty to Give Reasons

      The communication of the CJI based on the Committee report was not disclosed to the judge, and thus constituted a violation of the duty to give reasons. The judge was not informed whether the CJI had endorsed the findings of the Committee and himself recommended removal, nor of the reasons that weighed in his mind while doing so.

      At Prong I, it may be argued that preserving the confidentiality of communications between constitutional functionaries is a legitimate objective. Such confidentiality is necessary to maintain the integrity of exchanges between the head of the judiciary, on the one hand, and the head of the executive and the head of the State, on the other.

      However, as held in Madhyamam, this by itself is insufficient; it must also be shown that the purpose is actually served by the non-disclosure. On that basis, the Court rejected a blanket claim of confidentiality over investigative reports where the material was already in the public domain. In the present case, the CJI’s letter was based on the Committee’s report, which was itself disclosed to the judge. There was therefore no additional layer of sensitive information that necessitated complete non-disclosure.

      At Prong II, it must be examined whether such non-disclosure bears a rational connection to the stated objective. In Madhyamam, the Court drew a distinction between withholding material from the public and withholding it from the affected person. It held that denying even a summary of reasons to the affected party lacks a rational nexus to any legitimate aim, since procedural guarantees are intended precisely for that individual. Here, the question is not one of public disclosure, but disclosure to the judge who was already a party to the process and aware of the contents of the report. Non-disclosure of the CJI’s reasoning to him therefore bears no rational connection to preserving institutional integrity.

      At Prong III, less restrictive alternatives were clearly available. The CJI could have disclosed the contents of the letter, or at the very least provided a summary of the reasons underlying the communication.

      At Prong IV, the importance of preserving the integrity of communication between constitutional functionaries may be weighed against disclosure to the judge. Here, however, the public interest underlying confidentiality is directed at restricting disclosure to the general public. That objective can be achieved while still disclosing the material, at least in a limited form, to the judge. There is therefore no real conflict requiring balancing in the first place.

      C. Conclusion

      The characterization of the in-house inquiry as merely “preliminary” obscures the real civil consequences it entails. Once these consequences are acknowledged, the departures from natural justice both in affording a fair hearing and in providing reasons become untenable. Tested against proportionality, these abridgements cannot be justified. Procedural safeguards, even in internal judicial processes, therefore remain indispensable to the legitimacy of institutional action.

      The SIR Case: A Round-Up

      Gautam Bhatia1 Comment

      Readers can find below, in chronological order, the CLP blog’s coverage of the SIR case.

      1. Bihar’s Voters and Constitutional Chicken: Hearing of 10 July 2025, by Vasudev Devadasan (10 July, 2025).
      2. A Piece of Abstract Art: on the Supreme Court’s Bihar Election Rolls Ruling, by Gautam Bhatia (11 July, 2025).
      3. The Chief in his Chiefdom: On the Legacy of Chief Justice B.R. Gavai, by Gautam Bhatia (23 November, 2025).
      4. The constitutional demand at the heart of voter-fraud allegations, by Vasudev Devadasan (9 August, 2025).
      5. The unravelling of the SIR challenge, by Vasudev Devadasan (3 February, 2026).
      6. The legality and constitutionality of the SIR, by Vasudev Devadasan (10 March, 2026).
      7. Programming Democracy Part 1: Delimitation in Assam, by Rudraksh Lakra (25 May, 2026)
      8. Programming Democracy – II: The SIR in West Bengal, by Rudraksh Lakra (26 May, 2026).
      9. Programming Democracy – III: Connecting the Dots, by Rudraksh Lakra (26 May, 2026).
      10. ADR v Union (the SIR Judgment): We will not protect you, by Vasudev Devadasan (29 May, 2026).
      11. Democratic Decay and Judicial Newspeak: Proportionality, Disenfranchisement, and SIR Judgment, by Rudraksh Lakra (1 June, 2026).
      12. Eternal Sunshine of the Spotless Judgment: Citizenship Despite Everything (in ADR vs Union), by Rajyavardhan Singh (4 June, 2026).
      13. The Bihar SIR Judgement: Indiscretion in Providing Discretion to the Election Commission, by K. Shiva (4 June, 2026).

      The Bihar SIR Judgement: Indiscretion in Providing Discretion to the Election Commission [Guest Post]

      Gautam Bhatia1 Comment

      [This is a guest post by K. Shiva. The author was one of the advocates-on-record in the Bengal SIR case.]

      The Hon’ble Supreme Court of India (“SC”) recently delivered its Judgement in Association for Democratic Reforms and Ors. v. Election Commission of India and Ors. and WP(C) No. 640 of 2025 other connected matters (“Bihar SIR Judgement”). This forms the bedrock of all the SIR challenges particularly to the States of Bengal and Tamil Nadu, which is also pending. Out of several, one of the moot questions was whether the Election Commission can trace its power to Article 324 of the Constitution to conduct the Special Intensive Revision (“SIR”), when the parliamentary legislation such as Representation of Peoples’ Act, 1950 (“RP Act, 1950”), and Registration of Electors Rules, 1960 (“1960 Rules”), is already in place. While analyzing this issue, the Court, in paragraphs 16 to 55, legitimizes the SIR exercise by tracing the power of ECI to conduct such revision on the basis of Section 21(3) of the RP Act, 1950 de hors the 1960 Rules. Simply put, the SC states that the SIR carried out in Bihar falls within the purview of Section 21(3) of the RP Act, 1950 and hence the same is not required to be in conformity with the 1960 Rules. In furtherance, SC framed the first issue as to whether the ECI has power to conduct the SIR in the first place, without adhering to the 1960 Rules, merely because Section 21(3) starts with a non-obstante clause.

      The issue that is addressed here is not the correctness of the overall exercise but whether the Hon’ble Court was right in stating that SIR will not be bound by the procedures of 1960 Rules which contains the important procedures specifically mentioned Part II of the rules (Rules 4 to 23). These rules, inter alia, contain procedures regarding preparation of roll in part, publication of roll in draft, period of lodging claims and objections, inquiry into those claims, final publication of rolls and appeals against the rolls. However, at paragraph 36 and 37 of the Judgement, SC held that Rule 25 (which lays down the contours for revision of rolls and make them amenable to Rule 4 to 23), will not be applicable to Section 21(3). According to the Hon’ble Court, the term “prescribed manner” is only mentioned in Section 21(2), and the said prescribed manner mentioned in the Statute is answered by the legislature by making Rule 25. It is in this backdrop, Hon’ble SC held that the Section 21(3) is not amenable to procedures in Rule 25 and in turn to Rules 4 to 23.

      The solecism interpretation

      However, the same requires a little deeper analysis. Primarily, in terms of the Statute RP Act, 1950, the term “Special Intensive Revision”, is not defined anywhere. The term “Intensive Revision” finds its roots to the Rule 25 of 1960 Rules. The said rules classify the revision as (i) intensively, (ii) summarily, (iii) partly intensively and (iv) partly summarily. However, the said Rule restrict such meaning of the Revision only confined to Section 21(2) of the RP Act 1950.

      The Apex Court, in paragraph 32 and 33 of the Bihar SIR Judgement interprets or rather diversifies Section 21 of the RP Act, 1950 into three different types of SIR enumerated under three sub-sections. SC states that Section 21(1) contemplates mere preparation of electoral roll in prescribed manner with reference to qualifying date. Further as per the Judgement, Section 21(2), (which under rules classifies revisions in four different types), embodies the ordinary scheme of revision i.e., periodical revision of rolls.

      The core of the controversy lies in the interpretation or expansion of meaning given by the SC to Section 21(3). According to the Judgement, since sub-section 3 begins with a non-obstante clause, the same is placed on higher footing to tackle exigencies and empowers the ECI to direct a Special Revision of the electoral roll at any time by recording reasons. Hon’ble SC states that it is an enabling provision, and therefore holds that the powers conferred under Section 21(3) are akin to the residual inherent power of ECI to specially revise any rolls in manner it deems fit, at any point of time, for any or all Constituencies, without adhering to the procedures and safeguards laid down in the 1960 Rules. The judgement in paragraph 34 also notes that the change of Statute vide 1956 amendment while replacing existing Section 25 with Section 21 and its sub-sections, widened the powers vested with ECI by making sub-section 3. Therefore, for this reason, the Hon’ble Court states that the 1960 Rules are not applicable to the revisions such as SIR under Section 21(3) of the RP Act, 1950.

      The legitimization of the exempting the application of 1960 Rules to the contours of Section 21(3) is that the word “prescribed manner” is mentioned only in Sub-Section (2) of the Act and Sub-Section (3) starts with a non-obstante clause and further holds “ in manner it deems fit” hence the prescribed manner will not come into play. In furtherance, the Hon’ble Court assigns meaning of prescribed manner alone to the 1960 Rules. In other words, the Court states held that the whole of 1960 Rules is a creature under Section 21(2) of the Act alone and hence is only confined to operation of Section 21(2) and not other Sections.

      The issues

      The issue with the said interpretation of SC is that now a constitutional body is vested with unfettered powers vide a Statute, which is open to wide misuse and is highly arbitrary for the reasons discussed below. From the RP Act, 1950 and 1960 Rules it is amply clear as explained above that there exists nothing like a Special Intensive Revision. It could either be one of the four in terms of Section 21(2) or it could be a Special Revision in terms of Section 21(3). Now since the Section 21(3) does not contemplate the nature of revision and the very categorization of revision is only found in the Section 21(2), it stands to reason that Section 21(3), with respect to the meaning of “revision,” is subject to the Section 21(2). Further, the non-obstante clause in Section 21(3) has no relation whatsoever to the application of 1960 Rules.

      The fundamental issue in the interpretation given by SC to non-application of 1960 Rules to Section 21(3) is that the rules are not solely framed under Section 21(2), but under the RP Act, 1950. A plain reading of sub-rule (1) of Rule 25 lists out the four types of revision as discussed above. The disjoint sub-rule (2) of the said Rule provides a general application of Rules 4 to 23 to all revisions undertaken under the Statute, which would by default include the Special Intensive Revision as well. However, the narrow reading of the Hon’ble SC has now given an unfettered ride to the ECI to conduct the SIR without any adherence to the Rules framed by the very Statute under which such revision is undertaken. In paragraph no. 37 of the Judgement the Hon’ble Court states that absence of delegated legislation will not vitiate the express power conferred upon the Statute. However, the Hon’ble Court did not notice that the express powers of Section 21(3) itself are enforceable only vide the delegated legislation i.e., the 1960 Rules, which is the procedural law for implementing the Revision of rolls, (Rule 4 to 23 and 25) without which, the ECI would be forced to function in highly disorganized way.

      In the case of ICICI Bank Ltd. v. SIDCO Leathers Ltd., (2006) 10 SCC 452, the Hon’ble SC held that a non obstante clause must be given effect to, to the extent Parliament intended and not beyond the same. In Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel, (2006) 8 SCC 726the Hon’ble Court held that while the non obstante nature of a provision may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy.

      A reading of Section 21 would make clear that the intent of Parliament is not to curtail the necessary Special Revision to timelines mentioned in Sub-Section (2) or make it strictly bound by the prescribed manner. However, by no stretch of imagination it could be inferred that the Parliament intended to give the 1960 Rules a go-by for the Special Intensive Revision. The dangerous interpretation would take away even the basic safeguards provided to the deleted voters under the Special Revision to even file an appeal (Rule 23). It is owing to such interpretation, that the Hon’ble SC was burdened with heavy administrative task of appointing judicial officers from West Bengal, Jharkhand and Orissa to dispose of the objections to deletion of rolls in the case of Motari Banu v. The Election Commission of India and Ors., and other connected matter, WP No. 1089 of 2026 and connected matters (“Bengal SIR matters”). In the same matter, the Hon’ble SC had to take an unprecedented move to even constitute Appellate Tribunals to challenge the orders passed by the Judicial officers vide order dated 10.03.2026. At one end of spectrum, the Hon’ble Court unsettled the mechanism provided under the 1960 Rules by the broad interpretation of Section 21(3), whereas on the side, the SC has burdened itself, the State Judiciary of three states with huge administrative task of overseeing the SIR process. An interpretational problem which was created was attempted to be solved at the cost of Judicial time and resources.

      Now, whenever a Special Revision is proposed, since the same would not be subjected to the 1960 Rules based on the ruling in Bihar SIR Judgement, the Constitutional Hon’ble SC or the High Courts would be burdened with a the task akin to that of an Executing Court to safeguard and tackle the issues that would come up, which would end up in endless litigations.

      Eternal Sunshine of the Spotless Judgment: Citizenship Despite Everything (in ADR vs Union) [Guest Post]

      Gautam Bhatia1 Comment

      [This is a guest post by Rajyavardhan Singh.]

      Last week, the Supreme Court upheld the validity of the Special Intensive Revision (“SIR”) of electoral rolls in Bihar. Among the four principal questions that crystallised over the course of the proceedings was whether the Election Commission of India (“ECI”) possessed the competence to scrutinise the citizenship status of persons seeking an inclusion in, or a continuation on, the electoral roll (¶15(iv)). The Court answered the question in the ECI’s favour holding that it may indeed undertake enquiries into citizenship for the limited purpose of determining electoral eligibility, and that any consequences flowing from such enquiries shall be confined to the electoral process (¶184).

      This post examines the purported “principled distinction” drawn by the Court between citizenship adjudication and the ECI’s enquiry into electoral eligibility which largely underpins its answer to the competence question. As the discussion below would suggest, the distinction proves unable to bear the weight placed upon it and ultimately comes unstuck on the Court’s own terms. What remains – for all practical purposes – is an enquiry conducted under the rubric of electoral eligibility, with consequences that extend just as easily into the domain of citizenship. (The remaining questions identified for determination in the litigation need not detain us here; a fuller discussion of the judgement can be found elsewhere on the blog, as can a more focused proportionality analysis.)

      The Citizenship Question in Context

      For readers unfamiliar with how the question of competence over citizenship determination came to feature so prominently in the challenge, some context is necessary.

      The issue arose because the SIR exercise – as conducted – involved the deletion of names from existing electoral rolls where the ECI was not satisfied that certain individuals fulfilled the statutory conditions for inclusion, with citizenship perhaps being among the most important of those conditions. The petitioners argued that this effectively involved the ECI in a scrutiny of citizenship that it had no competence to undertake, relying upon the Citizenship Act 1955 and the Allocation of Business Rules to press the point that such questions fell within the exclusive domain of the Central Government (¶12(l)). The ECI – for its part – replied that its constitutional mandate under Articles 325 and 326 read with Section 16 of the Representation of People Act 1951 necessarily implied the power to examine whether persons on the electoral roll met the conditions to be there. It further maintained that this did not amount to a determination of citizenship simpliciter, for it was merely an incident of its constitutional mandate i.e. to ensure the accuracy of the electoral roll (¶14(p)–(r)).

      The disagreement between these two positions – i.e. whether the ECI was impermissibly determining citizenship, or merely satisfying itself as to electoral eligibility – therefore required the Court to take a position on the matter.

      The Court’s “Principled Distinction”

      The Court accepted the ECI’s framing of the issue (see ¶173) and proceeded to explain why it considered that position sustainable. At paragraph 174, the Court states:

      The question then is one of the nature and extent of such satisfaction. In our considered view, there is a clear and principled distinction between an adjudication of citizenship on the one hand, and an administrative satisfaction as to eligibility for enrolment on the other. The former involves a conclusive determination of status under the Citizenship Act; the latter is a limited enquiry undertaken for the purposes of electoral representation.

      Reduced to its essentials, the Court’s explanation is that: (1) the ECI is not determining citizenship conclusively, and (2) what it is doing instead is merely forming a view on electoral eligibility. The relevant distinction therefore lies in the nature of the conclusion ultimately reached. And so, while the ECI and the competent authority under the Citizenship Act may both find themselves considering the same underlying question of citizenship, only the latter can arrive at a conclusive determination of status. Perhaps it is on this basis that the Court insists – as it does so repeatedly – that whatever the ECI does in the course of the SIR exercise touches upon citizenship only incidentally and produces consequences limited to the electoral roll.

      Paragraph 176 then offers greater clarity on what – in the Court’s view – distinguishes the two enquiries. Indeed, paragraph 174 does hint that the question is of the “nature and extent” of the satisfaction required:

      We have no hesitation in adding that this assessment is necessarily prima facie and contextual. Where the material furnished by an individual does not inspire confidence or give rise to doubt, the Commission is within its authority to decline enrolment or to initiate action for deletion, strictly in accordance with law.

      Two words here are the load bearers of the standard the Court is setting, and may be thought to further separate the ECI’s limited enquiry from the more exacting process of citizenship adjudication: “prima facie” and “contextual”. The idea appears to be that a preliminary assessment of the material before the ECI – one that does not “inspire confidence” – is enough. While there may – no doubt – be something to be said about the Court’s clear failure to specify any minimum standard by which citizenship claims are to be assessed, that is a question which may be left aside for now. On its own terms, the distinction is not obviously indefensible. A preliminary, non-binding view on electoral eligibility carrying consequences limited to the roll is at least in the abstract, a different thing from a formal adjudication of citizenship.

      The trouble is, however, that the Court does not allow the distinction to remain at that level of abstraction.

      The Distinction Consumed by Its Consequences

      A finding of non-satisfaction, the Court holds at paragraph 178, triggers a mandatory referral:

      Moreover, in cases where the Commission is not satisfied that a person meets the statutory conditions for inclusion in the electoral roll, it would be incumbent upon it to refer such an individual to the competent authority within the Central Government for adjudication in accordance with law.

      It is here that the Court’s careful effort to recast the issue as one of electoral eligibility comes unstuck. A truly limited electoral enquiry that left citizenship entirely untouched would require no citizenship adjudication downstream. After all, what would the competent authority be adjudicating if the ECI had done no more than form a preliminary view on electoral eligibility? The referral mechanism appears to be – if anything – the Court’s own acknowledgment that the ECI may do rather more than assess electoral eligibility. For if the ECI’s finding is capable of setting in motion a process of citizenship adjudication, it is difficult to avoid the conclusion that citizenship has already been placed in issue.

      What the judgement produces then, comes to resemble a two-stage process in which administrative satisfaction comes first and formal adjudication follows in due course – with the individual disenfranchised throughout both stages. The “principled distinction” survives only as a means of describing the transition from one stage to the next, rather than as a basis for treating the two as genuinely distinct enquiries.

      And as Vasudev Devadasan notes in his analysis of the judgement, this is in fact a road that has been travelled before:

      We have seen where this leads, in 1997, during a revision of rolls in Assam, voters whose citizenship was doubted were marked as ‘Doubtful’, now infamously referred to as ‘D-Voters,’ and referred to foreigner tribunals. Tens of thousands of individuals were drawn into decades-long legal battles against a system engineered to deny citizenship. The numbers excluded from rolls under the SIR already run into the millions and could reach the tens of millions. It will take decades for the claims to be processed, during which time these individuals will be stuck in legal limbo. Where this road leads is therefore to a permanent class of disenfranchised persons who simply exist but cannot participate in political life.

      In this sense, one can see just how the placement of citizenship in issue – even if only indirectly – can set in motion a process that takes on a life of its own; and outgrows the “principled distinction” within which it is initially presented as. And it is precisely here – then – that something more be said about the Court’s distinction. For it demonstrates most clearly that the issue is not exhausted by questions of the ECI’s competence alone. From the perspective of the individual subjected to the process, there is little difference in kind between a procedure that places citizenship in doubt and one that formally adjudicates it when the former is itself the gateway to the latter. Indeed, the distinction may survive as a matter of legal classification. But for those required to live through the process, it is unlikely to register as a distinction of much consequence (let alone a principled one!).

      Citizenship, Despite Everything

      Finally, a brief mention must be made of paragraph 180, for it reveals the structure of the Court’s thinking:

      This delineation of functions preserves the constitutional balance…To hold otherwise would either render the Commission incapable of enforcing the basic eligibility condition of citizenship or compel it to assume an adjudicatory role not contemplated by law.

      The Court presents its holding as striking a “constitutional balance” between two alternatives that it understands as mutually exclusive: (1) either the ECI enforces the citizenship requirement, or (2) it adjudicates citizenship and thereby exceeds its statutory mandate. If that is so, a genuine balance would have required each of these competing concerns to operate as a meaningful constraint upon the other. For if the ECI’s enquiry were truly limited in both purpose and consequence to the electoral roll (as the “principled distinction” suggests), it is difficult to explain what the competent authority is being asked to adjudicate when the mandatory referral arrives. Conversely, if the referral mechanism were coherent, it could only be because citizenship had already been placed in issue, in which case the claim that the enquiry remains limited simply falls away.

      What is thus presented as a “balance” between two distinct enquiries comes to resemble – as noted above – successive stages within a single process concerned with the determination of citizenship. And a distinction which dissolves itself into a single enquiry upon its first application – in any meaningful sense – is not a balance at all.

      Seats are not power: Why the response to delimitation should run through the Rajya Sabha

      Vasudev Devadasan1 Comment

      Recent reporting suggests that the Union Government is preparing a revised legislative roadmap for the redistribution of Lok Sabha seats, following Parliament’s rejection of the proposed 131st Constitutional Amendment and Delimitation Bill. That rejection was seen as a highwater mark for opposition unity and a victory for federalism. But it was a defensive victory; it blocked redistribution on the Government’s terms without settling the underlying problem. Any revised proposal requiring a constitutional amendment will again need the opposition support to clear Parliament, so the real question is what the opposition should demand in return.

      So far, the opposition has offered no unified answer beyond insisting that the existing allocation of Lok Sabha seats be retained. This position is unprincipled and politically hard to justify; it extends a status quo already unfavourable to the opposition, and mistakes seats in the Lok Sabha for power in Parliament. A better approach, as this piece argues, is to propose a genuine revamp of India’s federal compact, grounded in the Rajya Sabha.  

      From the perspective of constitutional law and design, the case for such a reform is obvious. The Indian Constitution has long had a ‘centralising drift’ that is antithetical to the principle of distributed power which undergirds constitutionalism. Re-balancing federalism is one way to restore this notion of distributed power. But it is worth spelling out why the national opposition should fight for States’ rights. Federalism has emerged as the most durable bulwark against the national executive, and State Governments remain the underlying source of power for most opposition parties. Even the Congress is unlikely to ever return to power without strong regional partners. The interests of the States and national opposition are, in other words, currently aligned. What strengthens the States strengthens the opposition.

      Problem with extending the current allocation

      The current allocation of seats in the Lok Sabha is based on state populations from 1971 and extended it is problematic. First, votes from more populous northern states would count for less in national elections, because their populations have grown faster since 1971. This both violates the principle of ‘one-person-one-vote’ and is politically hard to justify as the Lok Sabha was designed to represent citizens equally. Further, as Shruti Rajagopalan points out, such malapportionment disproportionately underrepresents younger, poorer, and marginalised citizens.

      Second, continuing the existing seat allocation commits the opposition to prolonging the current state of Indian federalism, which is deeply unfavourable to the States. As things stand, State Governments have no direct say over budgetary legislation in Parliament, the appointment of the Finance Commission, or ad-hoc fiscal devolutions to States by the Union. Further, they have no say over appointments to national institutions that often affect their interest deeply, such as the Supreme Court of India, the Election Commission of India, or national investigative agencies. Securing a few additional seats in the Lok Sabha solves none of these problems for State Governments.

      More seats in the Lok Sabha does increase a party’s chances of influencing government formation or being part of the Union Government. But this episodic relevance to coalition arithmetic should not be confused with durable power in Parliament. Increasing the power of the States, not preserving seats in the Lok Sabha, should be the starting point of the opposition’s response to delimitation. This is what should be demanded in return for the population-proportionate redistribution of Lok Sabha seats that the Government seeks. The best way to secure power for the States, I would argue, is to reform the Rajya Sabha.  

      Three proposed changes to the Rajya Sabha

      Unlike the Lok Sabha, which was intended to represent people and thus allocates seats based on population, the Rajya was intended to represent States. Seats in the Rajya Sabha can therefore be allocated to States as constitutive units of the Union, without the concern for population-proportionality that governs the Lok Sabha. One option is to give every State the same number of seats in the Rajya Sabha. But given the vast divergences in State populations and finances, larger States may reject this out of hand. Inter-state parity also raises the problem of minority rule and gridlock, where a few states representing a small fraction of the population could repeatedly block legislation in Parliament. A more balanced solution would be to apply a degressive proportionality formula to seat allocations in the Rajya Sabha, giving all States a baseline number of seats (e.g., six) and the very largest getting a few more (e.g., ten). This would sharply equalise the power between small and large States in the Rajya Sabha, making each State a significant actor in the Chamber.

      The second, and most obvious, change is to empower the Rajya Sabha with respect to budgetary legislation, fiscal devolutions to States, and national appointments. Second chambers in other federal countries such as the United States Senate, the German Bundesrat, the Australian Senate, and the Brazilian Federal Senate, all possess meaningful powers of this kind. The risk that States will block spending on key national priorities can be minimised by excluding items such as national defence from the Rajya Sabha’s ambit. But if the Rajya Sabha is to meaningfully advance States’ interests, it must be given power over the money flowing to the States and control over the institutions that affect them.    

      However, an empowered Rajya Sabha will be meaningless if its Members continue to be responsive to solely to national party leaders. While Members are nominally elected by State Assemblies, the anti-defection law requires them, once in Parliament, to vote in line with whips issued by the national leadership. The State Assemblies that elected these Members have no control over them. This disconnect between State Assemblies and Rajya Sabha MPs was on full display in the recent episode involving Raghav Chadha’s defection. The AAP’s MPs in the Rajya Sabha, claiming to represent the party, “merged” with the BJP in clear contradiction of the will of the Punjab Legislative Assembly that elected many of these MPs.

      The third change would therefore replace elections to the Rajya Sabha, which in any case are mathematical along party lines, with a system of direct appointment and recall by state political parties. Every party in a State Assembly would be entitled to appoint, and recall at any time, the same number of Members to the Rajya Sabha as it would win under the current voting system. This would preserve the status of the Rajya Sabha as a permanent body while continually reflecting the composition of State Assemblies. In the event of President’s Rule or a hung assembly, existing appointees would stay on until replaced by the newly elected Assembly.

      This would also allow the anti-defection law to be made inapplicable to the Rajya Sabha. The right to recall would impose comparable party discipline, since any Member who defected would be immediately recalled by their state party. The result would be Rajya Sabha Members who were truly responsive to the States, while leaving room for state and national party units to coordinate where necessary.

      Why create a plan  

      One might argue that the Government will never accept such proposals, making them futile. But as noted at the outset, any constitutional amendment the Government introduces will needs some opposition votes. Articulating a clear opening position based on States’ rights can only strengthen the opposition’s hand in the negotiations to come. Doing so openly would also let citizens weigh the opposition’s vision against the Government’s and would put to rest the key charge that is merely obstructionist.