The intersection of administrative law, fiscal policy, and equitable doctrines represents one of the most complex domains of modern jurisprudence. At the heart of this intersection lies the doctrine of promissory estoppel an equitable mechanism engineered to prevent manifest injustice when a party alters its position in reliance on a clear, unequivocal promise.

However, when the promisor is the sovereign State, the application of this doctrine inevitably collides with the inherent prerogative of the government to formulate, amend, and withdraw economic policies in the service of the public interest. The delicate balance between ensuring administrative fairness and preserving fiscal autonomy forms the core of ongoing legal debates in corporate, constitutional, and tax litigation.

The Supreme Court of India’s landmark judgment in State of Himachal Pradesh & Ors. v. M/s Kundlas Loh Udyog (2026 INSC 534), delivered on May 25, 2026, by a Division Bench comprising Justice J.B. Pardiwala and Justice K.V. Viswanathan, serves as a definitive contemporary exposition on the boundaries and limitations of promissory estoppel.

The judgment categorically establishes that doctrine of promissory estoppel cannot be invoked to compel the State to grant a financial benefit or tariff concession that was never structurally intended for a particular class of beneficiaries under the governing policy framework. Furthermore, the ruling delineates the critical boundaries between inadvertent drafting ambiguities, substantive legal entitlements, and the overarching mandate of public policy. To fully dissect the implications of this ruling, one must anchor the analysis within established theoretical frameworks.

This report provides an exhaustive doctrinal analysis of the Kundlas Loh Udyog judgment. It synthesizes the Supreme Court’s ratio decidendi with broader academic discourse, drawing extensively upon the legal scholarship and doctrinal analyses produced by domain experts. Central to this theoretical framing is the comprehensive 25-page treatise titled “The Doctrine of Promissory Estoppel,” authored by Advocate Aaditya Bhatt, a distinguished practitioner at the Gujarat High Court and Senior Standing Counsel for the Income Tax Department.

By contextualizing the Kundlas Loh Udyog judgment within the broader spectrum of commercial litigation, indirect taxation, customs law, and international trade tariffs, this analysis generates second and third-order insights. It explores how state commitments are interpreted by the judiciary, the limitations of equitable remedies against sovereign entities, and the imperative of policy certainty in an increasingly complex global economic architecture.

II. The Evolution And Theoretical Foundations Of the Doctrine Of Promissory Estoppel

To appreciate the profound nuances of the Kundlas Loh Udyog ruling, it is necessary to first deconstruct the theoretical underpinnings of promissory estoppel.

The doctrine, deeply rooted in the Anglo-American legal tradition, was historically developed as an equitable exception to the strict common law requirement of consideration in contract law.

Conceptualizing the Doctrine

As articulated in doctrinal analyses of the subject, the principle is interchangeably referred to as:

• Promissory Estoppel
• Equitable Estoppel
• Quasi-Estoppel
• New Estoppel

The core premise dictates that if a party (the promisor) makes a clear and unequivocal promise to another party (the promisee), intending that it should be acted upon, and the promisee does indeed act upon it, the promisor is legally precluded from resiling from the promise if doing so would result in inequity or injustice.

Article 90 of the American Law Institute’s Restatement of the Law of Contracts was instrumental in formalizing the doctrine, stipulating that a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character is binding if injustice can be avoided only by the enforcement of the promise.

In the Indian context, the doctrine has evolved significantly through successive judicial pronouncements. It has expanded from governing private commercial contracts to encompassing representations, policy announcements, and tax holidays promulgated by the State and its instrumentalities.

The Shifting Paradigm of “Detriment”

A critical evolution in Indian jurisprudence concerning promissory estoppel relates to the interpretation of “detriment.”

Historically, English common law required the promisee to prove strict monetary or tangible financial loss resulting directly from reliance upon the promise. However, modern Indian legal scholarship highlights a significant paradigm shift. The Supreme Court of India has progressively clarified that detriment is no longer confined merely to quantifiable monetary loss. Instead, the contemporary test is whether it appears unjust or inequitable to permit the promisor to resile from the assurance, having regard to what the promisee has done or refrained from doing in reliance on that representation.

If a citizen or corporate entity alters its position based on a lawful promise made by the Government—such as opening a new factory in a specified geographical area on the faith of a tax holiday announcement—the law aims to protect them against arbitrary withdrawals of that promise.This protection, however, remains strictly conditional upon the promise not being inconsistent with law or contrary to public interest.

The Public Interest Caveat and the 108th Law Commission Report

Despite the liberal application of the doctrine of promissory estoppel to ensure administrative fairness, it is not absolute.

State actions are uniquely bound by the constitutional mandate of public welfare and fiscal responsibility.

Legal treatises on the subject, reflecting upon the recommendations of the 108th Law Commission Report, emphasize that public bodies are bound to carry out representations of facts and promises only to the extent that such enforcement does not cripple the sovereign’s ability to act in the public interest.

The State cannot be compelled through promissory estoppel to carry out a promise if:

• The promise is ultra vires the statute;
• Enforcement would compel breach of a statutory obligation;
• Enforcement would violate fiscal limits; or
• Overriding public interest necessitates withdrawal.

This delicate balance between preventing private commercial injustice and preserving sovereign flexibility forms the absolute crux of the dispute in State of Himachal Pradesh v. M/s Kundlas Loh Udyog.

Evolution of the Doctrine of Promissory Estoppel

III. The Factual Matrix Of State Of Himachal Pradesh v. M/s Kundlas Loh Udyog

The Respondent’s Industrial Operations and Expansion

The respondent, M/s Kundlas Loh Udyog, is an existing industrial entity engaged in metal processing and stamping, having originally been established and operationalized in the financial year 2005-06. In 2020, seeking to leverage the newly promulgated Industrial Policy of 2019, the respondent undertook a massive and substantial expansion of its manufacturing capacity. This expansion was objectively significant, increasing the plant and machinery by 88.69%—far exceeding the minimum 25% statutory threshold required to qualify as a “substantial expansion” under the policy—and generating considerable additional employment.

The Ambiguity in the Industrial Policy of 2019

The genesis of the dispute centered entirely on the interpretation of Clause 16 of the 2019 Policy, which outlined concessional rates for electricity charges, and its corresponding manifestation in Rule 16(i) of the Himachal Pradesh Industrial Policy Rules, 2019.

The structure of the fiscal incentive was dichotomous, deliberately designed to address two distinct categories of industrial entities:

1. Clause 16(a): As originally drafted and published, this clause stated that “eligible enterprises” would receive a 15% discount on the approved energy charges for their respective category for a period of three years.
2. Clause 16(b): This clause specifically and explicitly addressed “existing industrial consumers,” offering them a 15% rebate on energy charges strictly and exclusively for additional power consumption beyond the baseline level recorded in the preceding financial year.

The respondent, being an existing enterprise that had undergone a substantial expansion, sought to claim the broader, more lucrative benefit under Clause 16(a). The company’s legal argument was founded on a literal interpretation: it argued that the term “eligible enterprises” in the original drafting of Clause 16(a) was expansive enough to include existing units undertaking substantial expansion. Therefore, it claimed entitlement to a flat 15% discount on all energy charges, rather than being restricted to the rebate solely on incremental power consumption as dictated by Clause 16(b).

The Clarificatory Amendment of 2022

Recognizing the severe interpretive vulnerability caused by the phrase “eligible enterprises,” and the potential for massive unintended fiscal drain, the State Government of Himachal Pradesh issued an amendment notification on April 29, 2022. The amendment decisively replaced the phrase “eligible enterprises” in Clause 16(a) and Rule 16(i)(a) with the precise term “new enterprises”.

The State consistently contended that this amendment was purely clarificatory in nature. It argued before the courts that the initial use of the word “eligible” was an inadvertent drafting error. The policy’s underlying architecture was always intended to bifurcate benefits economically: broader, blanket discounts for entirely new (greenfield) investments to offset high initial capital barriers, and narrower, incremental discounts for existing (brownfield) industries to encourage expansion without blindly subsidizing their already established baseline operations.

IV. Procedural History And The High Court’s Erroneous Application Of Estoppel

Aggrieved by the State’s administrative refusal to grant the flat 15% discount under Clause 16(a), M/s Kundlas Loh Udyog approached the High Court of Himachal Pradesh via Civil Writ Petition No. 1667 of 2021.

The High Court ruled in favor of the respondent, heavily resting its rationale on a literal interpretation of the pre-amendment policy and a sweeping application of the doctrine of promissory estoppel. The High Court’s logic proceeded on the assumption that the publication of the 2019 Policy constituted a solemn, binding representation by the State. Because the original text of Clause 16(a) utilized the broad term “eligible enterprises,” and because the respondent had substantially altered its position to its detriment by investing heavily in an 88.69% capacity expansion based on this text, the High Court concluded the State was legally estopped from denying the benefit.

Furthermore, the High Court viewed the April 2022 amendment not as a retrospective clarification, but as a prospective alteration of substantive policy. It held that the State could not use a prospective amendment to extinguish the vested equitable rights that had accrued to the respondent prior to the amendment’s promulgation. Consequently, the High Court directed the State to extend the full concessional tariff benefit to the respondent.

The Flaw in the High Court’s Doctrinal Approach

The High Court’s judgment represents a classic misapplication of administrative law principles, particularly regarding the limits of equitable intervention in complex fiscal frameworks. By isolating the phrase “eligible enterprises” from the broader architectural context of the policy, the High Court effectively engaged in judicial rewriting of a fiscal incentive.

In structural policy analysis and statutory interpretation, isolated clauses cannot be read in a manner that renders other clauses redundant. If Clause 16(a) applied to existing units undertaking expansion, Clause 16(b)—which explicitly targeted existing units and limited their rebate to incremental consumption—would become entirely superfluous and practically meaningless. The High Court’s literalism failed to harmonize the provisions, thereby inadvertently expanding the scope of the State’s financial liability far beyond what the executive had calculated, intended, or budgeted for.

V. The Supreme Court’s Definitive Ruling (2026 INSC 534)

Determined to protect the state exchequer and clarify the jurisprudence of administrative promises, the State of Himachal Pradesh challenged the High Court’s decision before the Supreme Court of India. Senior Advocates P. Chidambaram and Kapil Sibal, alongside Additional Advocate General Vaibhav Srivastava, represented the State, arguing forcefully that the High Court had fundamentally misconstrued the limitations of promissory estoppel. The respondent was represented by Senior Advocate Navin Pahwa.

On May 25, 2026, the Division Bench comprising Justice J.B. Pardiwala and Justice K.V. Viswanathan delivered a comprehensive, landmark judgment overturning the High Court’s decision in its entirety. The judgment provides a masterclass in statutory interpretation, the harmonization of policy intent, and the equitable constraints on judicial review.

Clarificatory Amendments and Retrospective Application

Addressing the pivotal April 29, 2022 amendment, the Supreme Court ruled that the substitution of the word “eligible” with “new” was not a substantive alteration of the policy, but a clarificatory correction of a manifest drafting anomaly.

The Court observed that statutory and policy amendments that are inherently clarificatory in nature relate back to the original date of the policy’s promulgation. The true intent of the 2019 Policy, deducible from a harmonious and holistic reading of the entire text, was always to segregate new industries from existing ones to prevent fiscal overlap. Therefore, the amendment did not strip the respondent of a vested right; rather, it clarified that the right under Clause 16(a) simply never existed for existing enterprises in the first place.

The Limits of Promissory Estoppel: Twelve Principles

The most consequential aspect of the Kundlas Loh Udyog judgment lies in its precise, unyielding circumscription of promissory estoppel. The Supreme Court established unequivocally that the doctrine cannot be invoked to create an entitlement contrary to the true scope and intent of the policy itself.

Justice Pardiwala and Justice Viswanathan articulated a robust framework of principles that now govern the application of promissory estoppel against the State, which include the following core tenets:

1. Intent Precedes Estoppel: Promissory estoppel is strictly predicated on the existence of a clear, unequivocal promise. Since Clause 16(a) was never structurally intended to extend broad concessional tariff benefits to existing industrial enterprises undergoing substantial expansion, the foundational requirement of a clear promise was absent from the outset. The Court ruled that a mere drafting error cannot be elevated by the judiciary to the status of a deliberate, enforceable sovereign promise.
2. Harmonious Construction Overrides Literal Windfalls: Equitable doctrines cannot be weaponized to grant a party a “double fiscal benefit” or an unintended commercial windfall. The Court noted that the respondent had already legitimately received the 15% rebate on incremental power consumption specifically designated for its category under Clause 16(b). Having availed itself of the correct, intended benefit, no enforceable equity survived in its favor to claim an additional, broader benefit.
3. Public Interest and Fiscal Discipline: The doctrine of promissory estoppel remains perpetually subordinate to overriding considerations of equity and public interest. The Court observed that construing Clause 16(a) to include existing enterprises would run contrary to the larger public interest underlying the policy, which aimed to ensure a balanced, rational distribution of financial incentives. Compelling the State to blindly subsidize the baseline power consumption of an already established factory would violate fiscal discipline, create market distortions, and disproportionately enrich one category of industry.
4. Procedural Recognition vs. Substantive Sanction: The respondent argued that because it possessed a Certificate of Production (COP) recognizing its 88.69% substantial expansion, the State had acknowledged its eligibility for the wider benefits. The Supreme Court dismissed this argument by clarifying the critical legal distinction between factual recognition and fiscal sanction. The COP Certificate merely recognized the physical and operational fact of substantial expansion; it did not inherently sanction the specific concessional tariff benefit under Clause 16(a). Under the governing rules, fiscal incentives required distinct, explicit sanction by the competent administrative authority, which the respondent never formally received.

VI. Doctrinal Synergies: Fiscal Rectitude, Tax Exemptions, And State Reassessments

The Kundlas Loh Udyog ruling does not exist in a jurisprudential vacuum; it is part of a broader, systemic consensus regarding how state financial commitments—ranging from electricity tariffs to customs duties, GST classifications, and direct tax holidays—must be rigorously adjudicated. A deeper doctrinal analysis reveals that courts treat fiscal concessions with exceptional rigor, a stance heavily supported by contemporary legal scholarship and the daily practice of expert administrative law counsels.

The Strict Construction of Fiscal Concessions and Customs

In matters of taxation, customs tariffs, and state subsidies, the judiciary uniformly applies the rule of strict construction. If an ambiguity exists in an exemption notification, the benefit of the doubt inherently goes to the revenue or the State, not the taxpayer.

The Supreme Court’s reasoning in the present case perfectly mirrors this exact principle. By refusing to exploit the ambiguous term “eligible enterprises” to extract a broader tax-like concession, the Court reaffirmed that financial incentives cannot be inferred through expansive interpretation.

This aligns seamlessly with the arguments frequently advanced in high-stakes indirect tax and customs litigation. For instance, legal frameworks such as the Customs Act of 1962 and the Customs Tariff Act of 1975 govern complex cross-border trade, where the precise classification of goods determines the applicable tariff rate. In disputes over tariff classifications or confiscations—such as those regularly litigated by eminent counsels like Adv. Aaditya Bhatt in cases involving the Principal Commissioner of Customs —courts require absolute clarity before permitting an exemption or releasing goods. The burden of proof rests entirely on the entity claiming the concession to demonstrate that it falls squarely within the precise wording and legislative intent of the exemption framework. The Supreme Court has historically held that the Department is not required to prove its case with mathematical precision, but rather to a degree of probability that a prudent person would believe.

Similarly, in complex Goods and Services Tax (GST) matters, such as the classification of Fly Ash Bricks, the interpretation of what constitutes a specific percentage of material to qualify for a lower tax bracket requires rigorous scrutiny of manufacturing processes by the Advance Ruling Authority and the High Courts. Promissory estoppel cannot be used to bypass these strict classification rules.

Comparisons with the “Tax Architecture” of Special Economic Zones

To fully illustrate the necessity of the Supreme Court’s rigid stance in Kundlas Loh Udyog, one can examine the legal mechanisms governing modern international financial hubs, such as the International Financial Services Centre (IFSC) at GIFT City in Gujarat.

As explored in authoritative analyses regarding tax structures, GIFT City operates not as a mere loosely regulated “tax shelter,” but as a meticulously designed and legally bounded “tax architecture”. The incentives provided to entities—such as tax holidays for foreign portfolio investors (FPIs) relocating offshore funds—are precisely calibrated to attract specific types of global capital while preventing domestic tax base erosion. If the doctrine of promissory estoppel were applied loosely by the courts, allowing domestic or non-qualifying entities to exploit ambiguous statutory wording to claim these offshore tax benefits, the entire architectural integrity and economic rationale of the policy would collapse.

Expert practitioners frequently encounter this fundamental tension between the incentive framework that attracts capital and the compliance framework that ensures those incentives are restricted to their intended boundaries. In complex assessments, such as those involving the Income Tax Department challenging the tax benefits of international trading giants under the ‘Principal Purposes Test’ (PPT) to prevent treaty abuse, the State’s primary objective is to verify that the entity genuinely aligns with the policy’s structural purpose, rather than merely exploiting textual loopholes.

The Supreme Court in Kundlas Loh Udyog performed a highly similar functional analysis. It looked beyond the literal text of the 2019 Policy to enforce the underlying compliance boundary, ensuring the State’s electricity tariff subsidy was not cannibalized by an unintended demographic.

Estoppel vs. The Reopening of Tax Assessments

The profound limitations on equitable doctrines are equally visible in the realm of direct taxation. Under Section 148 of the Income Tax Act, 1961, the revenue department possesses the formidable statutory power to reopen assessments if it has reason to believe that income has escaped assessment.

While taxpayers often attempt to invoke principles akin to estoppel or legitimate expectation—arguing that once a scrutiny assessment is completed, the State is precluded from reopening it absent extraordinary new evidence—courts strictly evaluate the jurisdictional facts. If the State possesses prima facie material indicating a statutory violation or escaped income, equitable defenses are generally subordinated to the statutory mandate to assess income correctly.

However, this power is not unfettered. As observed in recent High Court rulings where department counsels like Adv. Bhatt regularly appear to defend the Revenue, the reopening must be based on specific, relevant material, not vague, non-specific information applied retrospectively. The courts have quashed reassessment notices when the Revenue relies purely on vague third-party material without independent application of mind.

This demonstrates a reciprocal, balanced fairness in fiscal jurisprudence: just as the State cannot use vague information to arbitrarily punish a taxpayer or reopen a closed assessment, a corporate entity cannot use a vague policy word (“eligible”) to arbitrarily extract an unbudgeted subsidy from the State. Both sovereign action and corporate reliance require exactitude.

VII. Global Trade, Tariffs, and the Macro-Economic Need for Policy Certainty

While the Kundlas Loh Udyog case is a domestic dispute over electricity tariffs, the underlying legal principles regarding policy certainty, state promises, and administrative reliability have profound implications on the global macro-economic stage. The breakdown of clear, predictable policy frameworks leads to systemic instability, a phenomenon starkly visible in international trade and global tariff regimes.

The Chaos of Unpredictable Tariff Regimes

The application of tariffs and customs duties on the international stage requires the same level of predictability that domestic investors seek from state industrial policies. When a sovereign entity acts arbitrarily or breaches established frameworks—such as the World Trade Organization (WTO) rules—the resultant uncertainty directly damages global supply chains and foreign direct investment.

Recent geopolitical developments, particularly the repeated legal setbacks faced by former U.S. President Donald Trump in American courts regarding global tariffs, highlight this dynamic. The U.S. executive’s attempt to unilaterally impose sweeping 10% global tariffs without explicit congressional authorization or alignment with established trade laws was struck down by U.S. federal courts. These courts ruled the actions “invalid” and “unauthorized by law,” mirroring the administrative law principle that executive action cannot exceed statutory or structural bounds.

The resulting legal and policy uncertainty has actively slowed down Bilateral Trade Agreement (BTA) talks between the United States and major economies, including India. Experts emphasize that nations must wait for a more stable, legally predictable trade framework before committing to long-term bilateral agreements. This global scenario perfectly illustrates the macro-economic risk of policy ambiguity: when promises, tariffs, and regulatory frameworks are subject to arbitrary interpretation or sudden, legally dubious alterations, capital deployment halts.

Corporate Vulnerability to Tariff Classification Disputes

Multinational corporations are highly vulnerable to shifts in how customs and tariffs are interpreted, further underscoring the need for the strict, predictable interpretive rules championed by the Supreme Court in Kundlas Loh Udyog.

A prominent example is the ongoing dispute involving the multinational technology company Xiaomi, which has challenged an Indian tax tribunal ruling alleging the evasion of $72 million in tariffs. The dispute centers on whether royalty payments made to foreign technology firms for patented technologies should be factored into the import value of components assembled by contract manufacturers in India. Xiaomi’s legal team has argued that altering the classification and valuation methodology retrospectively creates massive uncertainty for the entire contract manufacturing industry.

Whether in a domestic dispute over electricity subsidies or an international dispute over semiconductor component royalties, the foundational legal expectation is identical: the State must define its fiscal terms with absolute precision, and courts must enforce those terms based on their true structural intent, preventing either side from extracting an unfair advantage through retrospective ambiguity.

Dispute Resolution and Arbitration

When policy frameworks fail or statutory promises are breached, the resolution mechanisms must be robust. In the realm of international commercial litigation, institutions like the Vienna International Arbitral Centre (VIAC) and the World Intellectual Property Organization (WIPO) Arbitration and Mediation Center have become critical. These institutions provide specialized, neutral forums to resolve highly technical disputes—such as those involving complex energy regulations, renewable project delays, or cross-border intellectual property licenses—that arise when national legal frameworks or state promises prove unstable. The reliance on ADR methods highlights the commercial sector’s profound need for predictability when state actors fail to provide it.

VIII. Legitimate Expectation vs. Estoppel in the Digital and Emerging Economies

A crucial third-order insight from the evolving jurisprudence of administrative law is the functional boundary between promissory estoppel and the doctrine of legitimate expectation, particularly as it applies to emerging sectors like e-commerce, digital justice, and the platform economy.

Differentiating the Doctrines

While both doctrines stem from the constitutional mandate of fairness under Article 14 of the Constitution of India, they operate fundamentally differently in practice.

Legitimate expectation addresses the procedural fairness owed to a party when an established practice, policy, or administrative routine is altered. It ensures that decision-makers do not act arbitrarily and that affected parties are heard. Promissory estoppel, conversely, seeks the substantive, direct enforcement of a specific, binding promise.

In Kundlas Loh Udyog, the respondent conflated the two concepts. It erroneously believed its subjective “expectation” of a 15% flat discount, derived from the ambiguous word “eligible,” translated into a substantive estoppel against the State. The Supreme Court decisively ruled that one cannot have a legally protected legitimate expectation of a substantive benefit that the policy never structurally intended to provide. Legitimate expectation protects against arbitrary changes in valid policies; it absolutely does not protect commercial investments based on misinterpretations of invalid or erroneous policy drafts.

Regulatory Boundaries in the Platform Economy

This distinction is vital for new economy companies navigating complex, evolving regulations. For example, the Competition Commission of India (CCI) recently rejected a complaint against the ride-hailing platform Rapido regarding alleged abuse of dominance and predatory pricing. The CCI observed that the pricing structures did not violate Section 4 of the Competition Act and that many of the operational grievances related to the Motor Vehicles Act, which fell outside the ambit of competition law.

In such highly regulated sectors, companies must constantly align their business models with strict statutory boundaries. They cannot rely on vague interpretations of transport laws to claim an exemption, nor can regulators arbitrarily expand their jurisdiction beyond the statute. The demand for precise, predictable legal boundaries is uniform across all sectors of the economy.

Furthermore, the integration of new technologies, such as the use of metadata in digital justice and evidence collection , or the reliance on advanced forensic evidence to maintain the integrity of law enforcement , all point to a legal system that is increasingly demanding objective, verifiable, and structurally sound evidence over subjective interpretations or ambiguous promises.

IX. Second and Third-Order Implications for Commercial Strategy and State Governance

The jurisprudential maturation of promissory estoppel following State of Himachal Pradesh v. M/s Kundlas Loh Udyog generates profound, actionable ripple effects for both administrative statecraft and corporate legal strategy.

Implications for Corporate Reliance and Due Diligence

For industrial corporations, foreign direct investors, and commercial litigators, this judgment serves as a vital cautionary precedent. It effectively demolishes the viability of the “literalist reliance” strategy in tax and subsidy planning.

1. Due Diligence Beyond the Text: Corporations can no longer safely rely solely on the explicit, literal text of an incentive policy if that text logically contradicts the broader structural and economic intent of the scheme. Legal, tax, and compliance teams must conduct deep, purposive analyses of state policies before committing capital to substantial expansions or geographical relocations.
2. The Inadequacy of Procedural Certificates: As the Supreme Court explicitly noted, possessing a Certificate of Production (COP) or a formal departmental acknowledgment of expansion does not legally equate to a binding sanction of financial benefits. Companies must secure specific, explicit, and final administrative sanctions for tax holidays, tariff reductions, or power subsidies before assuming those financial benefits are secure and modeling their return on investment.
3. Risk of Retrospective Clarification: The judgment strongly affirms the State’s power to issue clarificatory amendments that relate back to the original policy date, thereby neutralizing anticipated benefits. Businesses must factor in the regulatory risk that an apparent “loophole” or generous ambiguity may be retrospectively closed, requiring robust contingency planning.

Implications for Policy Drafting and State Administration

For state governments, revenue departments, and regulatory authorities, the ruling serves as both a powerful shield and a stark warning.

• The Shield: State exchequers are forcefully protected from massive, unintended financial drains caused by clerical or drafting errors in public policy documents. The Supreme Court has reinforced the principle that public funds cannot be depleted through “gotcha” litigation, where a private entity identifies a textual flaw and attempts to aggressively enforce it via equitable doctrines.
• The Warning: While the State prevailed in this specific instance, the protracted litigation highlights the severe systemic consequences of poor legislative and administrative drafting. The inadvertent use of the word “eligible” instead of the intended word “new” triggered years of complex, resource-intensive litigation spanning multiple judicial tiers. The necessity of absolute precision in drafting fiscal incentives—whether they involve state electricity subsidies, complex GST compliance frameworks for e-commerce , or renewable energy tariffs —is paramount. Ambiguity actively invites litigation, damages long-term investor confidence, and ultimately forces the judiciary to intervene in the complex machinery of economic administration.

X. Synthesizing the Limitations of Equitable Remedies in Public Law

The broader academic discourse surrounding promissory estoppel, as synthesized in comprehensive doctrinal papers and advanced by leading practitioners, points to an ongoing, inherent tension between the rigidity of state contracts and the fluidity of equitable justice. Article 299 of the Constitution of India mandates highly specific formalities for government contracts to explicitly prevent the State from being bound by unauthorized, informal, or ill-considered promises.

Doctrine of Promissory estoppel historically served as a vital, equitable bypass to these rigid formalities, ensuring that citizens and businesses were not left remediless when state instrumentalities made solemn representations that induced severe detrimental reliance. However, the Kundlas Loh Udyog judgment represents the necessary, modern limiting principle to this bypass.

The Supreme Court essentially ruled that equity cannot be weaponized to subvert the Constitution or the fundamental architecture of public finance. If a policy clearly intends to provide a specific benefit (such as the incremental rebate under Clause 16(b)) to a specific class (existing industries expanding capacity), allowing that same class to use equitable arguments to claim a broader, distinct benefit meant for an entirely different class (the blanket discount under Clause 16(a), meant for new industries) violates the core constitutional principle of equality before the law. It would result in unequal enrichment, unearned windfalls, and severe structural market distortion.

Therefore, the ultimate object of promissory estoppel—which is to prevent manifest injustice —must be evaluated through a macro-economic lens. Manifest injustice is not merely whether one specific company loses an anticipated discount due to a corrected typo. Manifest injustice must be measured against the severe impact on the public exchequer, the distortion of state budgets, and the equitable treatment of all other competing market participants.

XI. Conclusion

The Supreme Court of India’s definitive judgment in State of Himachal Pradesh & Ors. v. M/s Kundlas Loh Udyog (2026 INSC 534) stands as a monumental contribution to the evolution of administrative law, effectively recalibrating the doctrine of promissory estoppel within the high-stakes context of state fiscal policies.

Through a meticulous process of harmonious statutory construction, the Court dismantled the lower court’s literalist interpretation, reinforcing the foundational principle that an isolated drafting error cannot bind the sovereign to unintended, catastrophic financial commitments. By affirming that clarificatory amendments relate back to the inception of a policy, the Court protected the State from retrospective fiscal hemorrhage, while concurrently establishing rigorous, unforgiving standards for how corporate entities must interpret and rely upon state incentives.

This exhaustive doctrinal analysis reveals that the judgment is entirely congruent with the highest standards of fiscal jurisprudence. As echoed in the broader legal scholarship and the practical, daily realities of indirect tax, customs litigation, and international trade law, state subsidies and tax architectures are highly sensitive precision instruments. They are designed by policymakers to achieve specific macroeconomic outcomes—such as incentivizing new greenfield market entrants without needlessly subsidizing the baseline operations of established brownfield players.

Ultimately, the ruling powerfully affirms that while the modern State remains fully accountable for its solemn representations, the equitable doctrine of promissory estoppel functions as a shield against arbitrary administrative injustice, not as a sword for extracting unintended commercial windfalls. By placing the public interest, fiscal discipline, and true statutory intent above textual opportunism, the Supreme Court has fortified the integrity of economic policymaking, ensuring that equitable doctrines serve their true, historical purpose without compromising the structural stability of state governance or the public purse.

Reference

• State Of Himachal Pradesh v. M/s Kundlas Loh Udyog, 2026 INSC 534 (Indian Kanoon)
  https://indiankanoon.org/doc/73215761/
• Doctrine Of Promissory Estoppel Can’t Be Invoked To Create Entitlement Contrary To True Scope & Intent Of State Policy: Supreme Court (Verdictum)
  https://www.verdictum.in/supreme-court/state-of-himachal-pradesh-ors-v-ms-kundlas-loh-udyog-2026-insc-534-1614694
• Supreme Court Lays Down Principles On Promissory Estoppel, Says It Can’t Be Invoked For Benefits Never Intended (LiveLaw)
  https://www.livelaw.in/supreme-court/supreme-court-lays-down-principles-on-promissory-estoppel-says-it-cant-be-invoked-for-benefits-never-intended-535688
• Principles On Promissory Estoppel (Drishti Judiciary)
  https://www.drishtijudiciary.com/current-affairs/principles-on-promissory-estoppel
• Supreme Court Summarises The Principles Of Doctrine Of Promissory Estoppel
  https://lilythomas.net/supreme-court-summarises-the-principles-of-doctrine-of-promissory-estoppel/
• The Doctrine of Promissory Estoppel (Academia.edu)
  https://www.academia.edu/35594254/The_Doctrine_of_Promissory_Estoppel
• STATE OF HIMACHAL PRADESH v. M/S KUNDLAS LOH UDYOG (CaseMine)
  https://www.casemine.com/judgement/in/6a1441b83d648d39fb1a898c
• Clarificatory Incentive Amendments Relate Back: Promissory Estoppel Cannot Create a Double Fiscal Benefit (CaseMine)
  https://www.casemine.com/commentary/in/clarificatory-incentive-amendments-relate-back:-promissory-estoppel-cannot-create-a-double-fiscal-benefit/view
• Can Promissory Estoppel Be Invoked for Benefits Never Intended by the Government? (Legal Bites)
  https://www.legalbites.in/amp/administrative-law/can-promissory-estoppel-be-invoked-for-benefits-never-intended-by-the-government-1304947

The post Doctrine Of Promissory Estoppel In Administrative And Fiscal Law: A Critical Evaluation Of State Of Himachal Pradesh v. M/s Kundlas Loh Udyog (2026 INSC 534) appeared first on Bhatt & Joshi Associates.

On April 16, 2026, the Ministry of Law and Justice, Government of India, issued a formal gazette notification bringing the Constitution (One Hundred and Sixth Amendment) Act, 2023—popularly known as the Nari Shakti Vandan Adhiniyam—into legal force. The enactment represents one of the most substantial structural alterations to India’s electoral democracy, mandating a 33% reservation for women in the Lok Sabha, State Legislative Assemblies, and the Legislative Assembly of the National Capital Territory (NCT) of Delhi.

However, the legal operationalization of the Act is intrinsically tied to a staggered implementation mechanism. While the substantive rights have been codified, the execution remains subject to strict constitutional preconditions. This publication analyzes the statutory framework, the implementation timeline, and the recent 2026 legislative developments concerning the delimitation exercise.

The post Nari Shakti Vandan Adhiniyam (106th Constitutional Amendment): Women’s Reservation Implementation Timeline And Procedural Roadblocks (2026) appeared first on Bhatt & Joshi Associates.

Section 17A of the Prevention of Corruption Act, 1988 (PC Act), inserted via the 2018 Amendment, mandates investigating agencies to obtain prior approval from the competent authority before conducting any “enquiry, inquiry, or investigation” into offences alleged to have been committed by a public servant, where the alleged offence is relatable to a recommendation made or decision taken in the discharge of official duties.  

The stated legislative intent behind this provision was to insulate honest bureaucrats from malicious and vexatious prosecutions, thereby mitigating the ‘play-it-safe’ syndrome and preventing policy paralysis in government functions. However, since its inception, Section 17A has been a focal point of intense constitutional debate. Is it a necessary safeguard for administrative efficiency, or does it institutionalize a protective shield for corrupt public servants?  

This constitutional dilemma reached its zenith in January 2026, when a Division Bench of the Supreme Court of India delivered a landmark split verdict in Centre for Public Interest Litigation (CPIL) v. Union of India (2026 INSC 55) regarding the constitutional validity of Section 17A. This article deconstructs the divergent judicial opinions and their implications for corporate compliance, bureaucratic accountability, and the rule of law.  

The 2026 Split Verdict: Strike Down Vs. Read Down

The challenge to Section 17A of the Prevention of Corruption Act was predicated on the argument that it effectively resurrected provisions previously struck down by the Supreme Court in landmark judgments such as Vineet Narain v. Union of India (1997) (which struck down the ‘Single Directive’) and Dr. Subramanian Swamy v. Director, CBI (2014) (which struck down Section 6A of the DSPE Act).  

The Division Bench, comprising Hon’ble Justice B.V. Nagarathna and Hon’ble Justice K.V. Viswanathan, issued diametrically opposite rulings on whether Section 17A survives the test of Article 14 of the Constitution.  

The View for Striking Down (Justice B.V. Nagarathna)

Justice Nagarathna declared Section 17A unconstitutional, asserting that it is “manifestly arbitrary” and violates the right to equality under Article 14. Her judgment was anchored on the following core principles:  

Old Wine in a New Bottle: The provision is a legislative attempt to circumvent the Vineet Narain and Subramanian Swamy judgments. By vesting unbridled discretion in the executive to halt even a preliminary “enquiry” at its inception, the provision protects the corrupt rather than the honest.  

Conflict of Interest: The statutory requirement often forces a subordinate to approve an inquiry against a superior, or an authority to approve an inquiry into a decision in which they were tangentially involved. This inherent bias stifles legitimate anti-corruption probes.  

Subversion of the PC Act: The fundamental objective of the PC Act is to detect and punish corruption. Section 17A operates contrary to this object by foreclosing the discovery of truth, functioning as an unspoken fetter on law enforcement agencies.  

The View for Reading Down (Justice K.V. Viswanathan)

Justice Viswanathan, conversely, preserved the constitutional validity of Section 17A by applying the doctrine of ‘reading down’ to balance probity with the protection of bona fide administrative actions:  

Prevention of Policy Paralysis: Acknowledging the chilling effect of immediate, unvetted FIRs, Justice Viswanathan noted that without Section 17A, honest public servants might avoid taking critical decisions. The mere possibility of abuse does not render a statute unconstitutional.  

Independent Screening Mechanism: To cure the conflict of interest identified by the petitioners, Justice Viswanathan held that the “competent authority” granting or refusing approval must not act independently but must be bound by the recommendation of an independent screening body—specifically, the Lokpal at the Union level and the Lokayuktas at the State level.  

Justice Nagarathna explicitly rejected this interpretive approach, noting that the Court cannot judicially substitute the word “government” with “Lokpal” in a penal statute. 

The 2024 Precedent: The Retrospectivity Conflict

The jurisprudential instability of Section 17A is further highlighted by an earlier split verdict delivered by the Supreme Court in Nara Chandrababu Naidu v. State of Andhra Pradesh (2024 INSC 41). In that instance, a separate Division Bench split on the chronological application of the provision:  

Justice Aniruddha Bose held that Section 17A is a procedural safeguard. Therefore, while it is prospective in nature, any active enquiry initiated after the 2018 amendment—even for offences committed prior to 2018—requires mandatory prior approval.  

Justice Bela M. Trivedi held that Section 17A cannot be applied retrospectively under any circumstance. She opined that applying an approval mechanism for offences committed before the 2018 amendment would lead to legislative absurdity, particularly as prior approval could not logically exist for pre-amendment offences.

Corporate And Investigative Implications

Until a larger Constitution Bench resolves the deadlock stemming from the 2026 CPIL verdict, the legal landscape remains complex for public-private interactions:

Investigative Stagnation: Investigating agencies face continued uncertainty. While Section 17A remains on the statute books pending the larger bench’s decision, its moral and constitutional authority has been severely diluted by Justice Nagarathna’s dissent, potentially leading to increased litigation over every denial of approval.

Corporate Engagements: For corporate entities, infrastructure developers, and contractors engaging with government instrumentalities, the split verdict underscores the necessity of maintaining meticulous records of all administrative decisions, tender approvals, and policy negotiations. Should the Supreme Court ultimately strike down Section 17A, the barrier to initiating investigations into joint public-private commercial decisions will be entirely removed.

The Ex-Facie Exception: It must be noted that both lines of jurisprudence (across 2024 and 2026) acknowledge that Section 17A does not apply to trap cases (on-the-spot arrests) or acts that are ex facie criminal (e.g., embezzlement, demanding a bribe) which have no rational nexus to the legitimate discharge of official duty.

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On 1 May 2026 — sixty days after the formal Section 4(a)(1) notification of 2 March 2026 — the statutory deadline imposed by the War Powers Resolution of 1973 expired. The United States naval blockade of Iranian ports continued unabated. President Trump did not seek congressional authorisation. In letters to Speaker Johnson and Senate President Pro Tempore Grassley, the President declared that the hostilities beginning on 28 February 2026 had “terminated” — while simultaneously affirming that “the threat posed by Iran to the United States and our Armed Forces remains significant.” This article analyses that constitutional moment — what this author calls the Termination Doctrine — and locates it within the WPR’s enforcement architecture, Congressional tools, and international law. The conclusion: the Termination Doctrine is the most aggressive presidential War Powers Resolution manoeuvre since the statute’s enactment; no Congressional enforcement mechanism is currently available to test it; and its judicial trajectory may end not in enforcement of the Resolution, but in its abolition. The article also situates this within the comparative constitutional question for India, whose legislature lacks any equivalent statutory war-powers framework.

I. The Constitutional Moment of 1 May 2026

On 28 February 2026, joint US-Israeli air strikes on Iran — Operation Epic Fury and Operation Roaring Lion respectively — opened the first major US-Iran armed conflict in four decades. Supreme Leader Khamenei was killed in the opening salvo. The IRGC’s senior command structure was extensively degraded. On 2 March, the White House submitted the formal Section 4(a)(1) notification to Congress. The 60-day clock began.

On 7 April, the President ordered a two-week ceasefire. On 13 April, the United States Navy commenced a maritime blockade of Iranian ports, which by 1 May had interdicted 39+ vessels and reduced Hormuz transit traffic from a pre-war baseline of 125–140 ships per day to approximately 7. Defense Secretary Hegseth announced the blockade was “going global,” extending interdiction to Asian waters. On 29 April, in an Axios interview, the President characterised the blockade as “somewhat more effective than the bombing” and stated Iran was “choking like a stuffed pig.”

The Senate had voted six times to halt the conflict and failed six times — with only Senator Susan Collins of Maine breaking Republican ranks, stating that the 60-day clock is “not a suggestion; it is a requirement.” Speaker Johnson told NBC News that “we’re not at war,” because there is no “active, kinetic military bombing, firing or anything like that.” The President publicly stated he would not seek congressional authorisation “because it’s never been sought before,” characterised members of Congress seeking authorisation as “not patriotic people,” and declared: “I don’t think it’s constitutional what they’re asking for.”

On 1 May 2026, the President wrote to Speaker Johnson and Senate President Pro Tempore Grassley:

“On April 7, 2026, I ordered a 2-week ceasefire. The ceasefire has since been extended. There has been no exchange of fire between United States Forces and Iran since April 7, 2026. The hostilities that began on February 28, 2026, have terminated. Despite the success of United States operations against the Iranian regime and continued efforts to secure a lasting peace, the threat posed by Iran to the United States and our Armed Forces remains significant.”

This is the Termination Doctrine. It is constitutionally distinct from — and more aggressive than — the two prior administration positions. It is not the Libya-precedent argument that a blockade does not constitute “hostilities.” It is not Hegseth’s claim that a ceasefire merely “pauses or stops” the clock. It is the assertion that the war is, in legal contemplation, over — reducing the War Powers Resolution to a self-extinguishing instrument satisfied by presidential declaration alone, even as the same letter affirms a continuing threat, the Pentagon describes the blockade as going global, and Central Command continues active vessel interdictions.

Vice President JD Vance had, in January 2026, told the press that “the War Powers Act is fundamentally a fake and unconstitutional law” that “is not going to change anything about how we conduct foreign policy.” The administration’s posture was telegraphed in advance and delivered as advertised. Together — the formal Termination Doctrine letter, the public refusal to seek authorisation on historical-practice grounds, and the characterisation of authorisation-seeking legislators as unpatriotic — this constitutes the most comprehensive presidential rejection of the War Powers Resolution on record, effectively crystallising a termination doctrine within the statute’s own structure.

Why this matters for India. India routes approximately 53% of its imported crude oil, 55% of its imported liquefied natural gas, and 88% of its imported liquefied petroleum gas through the Strait of Hormuz. The Termination Doctrine answers the question of who controls the blockade’s duration in the manner most adverse to India: the blockade will continue exactly as long as the President of the United States chooses, and no domestic American legal mechanism is available to force its end.

II. The Architecture of the War Powers Resolution

A. Historical Genesis

The WPR (50 U.S.C. §§ 1541–1548) was enacted on 7 November 1973 over Nixon’s veto, by a Congress exhausted by a decade of undeclared war in Vietnam and alarmed by the Nixon administration’s secret bombing of Cambodia. Its declared purpose is “to fulfil the intent of the framers of the Constitution… and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities.” It rests on the constitutional tension between Article I, Section 8, Clause 11 — granting Congress the exclusive power “to declare War” — and Article II, Section 2, designating the President as “Commander in Chief.” Every president since Nixon has argued the Resolution is an unconstitutional infringement on Article II authority. None has fully complied. The 2026 conflict is the most consequential test of its enforcement architecture in the statute’s 53-year history.

B. The Four Operative Obligations

The Resolution imposes four sequential obligations — the structure is meaningful: consultation before action, reporting after action, automatic termination if Congress does not authorise, and a congressional override available at any time.

• Section 3 — Prior consultation with Congress “in every possible instance” before introducing forces into hostilities
• Section 4(a)(1) — Written notification within 48 hours, specifying constitutional authority, scope, and estimated duration
• Section 5(b) — Mandatory withdrawal within 60 days unless Congress declares war, authorises the action, or extends the period; the 30-day extension is available only “in the course of bringing about a prompt removal of such forces” — it is a withdrawal extension, not a blank check for continued operations
• Section 5(c) — Congress may direct removal of forces at any time by concurrent resolution, without presidential signature

As the Project on Government Oversight’s David Janovsky has correctly framed it, the Section 5(b) extension “is not a 30-day blank check for the President to continue whatever hostilities he sees fit.” By declaring hostilities “terminated” rather than seeking the extension, the President bypasses the textual withdrawal obligation entirely.

III. Is a Naval Blockade “Hostilities”?

A. The Three Administration Positions

The Trump administration advanced three legally distinct — and progressively more aggressive — positions on whether the ongoing blockade triggers Section 5(b).

Position One — The Libya OLC Analogy

The blockade does not constitute “hostilities” because no US bombs are being dropped and no troops are in active armed combat. This relies on the 2011 OLC memorandum on Libya, in which the Obama-era OLC concluded US participation did not constitute “hostilities” because the role was “limited in nature, scope, and duration.” The argument is legally inventive but analytically strained: in Libya, the US had no ground forces and limited air operations against a civil war; in Iran, the US maintains a full naval blockade covering 90% of Iran’s maritime trade, with 39+ vessels interdicted and CENTCOM conducting daily enforcement operations. The Brennan Center’s Katherine Yon Ebright has correctly observed that the OLC has “a long history of executive branch lawyers willfully misinterpreting the War Powers Resolution to allow presidents to conduct hostilities even past that 60-day clock.” This is the weakest version of the argument and has been correspondingly de-emphasised since April.

Position Two — The Hegseth Ceasefire-Tolling Doctrine

On 30 April 2026, before the Senate Armed Services Committee, Defense Secretary Hegseth argued that the 8 April ceasefire “pauses or stops” the 60-day clock — on the theory that hostilities cannot be ongoing during a mutually observed cessation of fire. Senator Tim Kaine responded: “I do not believe the statute would support that.” The argument fails on three independent grounds: the statute contemplates termination upon expiration, not executive pause determinations; active naval interdiction under threat of lethal force plainly satisfies the secondary trigger of “situations where imminent involvement in hostilities is clearly indicated by the circumstances”; and the extension mechanism authorises only safe withdrawal, not continued operations. The Brennan Center’s Ebright was precise: ceasefire-tolling “is not something that by its text or by its design the War Powers Resolution accommodates.”

Position Three — The Termination Doctrine (1 May 2026)

The 1 May letter advances the most aggressive position yet: hostilities have not been paused, but terminated. The continuing blockade is reframed as a post-hostilities enforcement regime — legally distinct from the war that was, and difficult to reconcile with the structure of the War Powers Resolution itself. The doctrine is non-falsifiable in any forum respecting the political-question doctrine: the question whether hostilities have “terminated” is precisely the kind of military and diplomatic judgment that courts in Campbell v. Clinton and its progeny have declined to adjudicate.

The Termination Doctrine in operation. Three observations follow. First, it renders the Section 5(b) extension provision functionally obsolete — a President who can declare hostilities terminated does not need a 30-day extension; the question of withdrawal does not arise. Second, it renders the WPR a self-extinguishing instrument — the statute is satisfied by a unilateral presidential declaration that there is nothing left to authorise. Third, it is non-falsifiable in any forum that respects the political-question doctrine. The Doctrine is therefore not merely a refusal to comply with the WPR; it is a structural argument that compliance is impossible to test.

B. The International Law Counter-Position

The counter-argument under customary international law is categorical and rests on centuries of state practice. The Paris Declaration Respecting Maritime Law (1856), the London Naval Conference Declarations (1909), and the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994) all classify a naval blockade as a belligerent operation — an act of war. The ICRC’s humanitarian law guide classifies a blockade as “a belligerent operation under the law of armed conflict.” Under Article 8 bis(2)(c) of the Rome Statute, blockading the ports of another state in violation of international law could in principle constitute an act of aggression. The United States is not a party to the Rome Statute and is therefore immune from ICC jurisdiction; US military commanders enforcing the blockade may, however, face individual exposure under domestic implementing legislation in Rome Statute state parties.

C. The Domestic Statutory Reading

Under US domestic law, Section 4(a)(1) requires reporting whenever forces are introduced into “hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The Army Times, citing military legal experts, has concluded that “a naval blockade is widely considered an act of war under international law. It involves using military force to prevent all vessels from entering or leaving a targeted state’s ports.” US Navy vessels intercepting Iranian and third-country ships under threat of lethal force — with live-fire incidents, 39+ vessels redirected, and an explicit Hegseth announcement that the blockade is “going global” — manifestly satisfy the secondary trigger. The three administration positions, taken together, are not refutations of this reading; they are escape routes from it.

IV. Congressional Enforcement: Four Mechanisms, Each Currently Closed

A. The Chadha Problem: The Resolution’s Fatal Structural Flaw

The most powerful enforcement mechanism Congress gave itself in 1973 was Section 5(c): the concurrent resolution that could direct presidential withdrawal without requiring presidential signature and therefore without exposing the directive to a veto. In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court held that legislative vetoes violate the bicameralism and presentment requirements of Article I, Section 7. Every executive branch since 1983 has interpreted Chadha‘s reasoning to reach concurrent resolutions that bypass presidential signature. The CRS has confirmed in successive reports that the concurrent resolution provision “is now considered by many to be unconstitutional.” The Resolution’s teeth were knocked out not by executive defiance, but by the Supreme Court’s own structural logic.

B. The Appropriations Path: Constitutionally the Strongest, Politically Closed

CNAS has correctly identified the appropriations power as the strongest available enforcement alternative. The historical precedent is real and effective: the Cooper-Church Amendment of 1970 cut off funding for US ground troops in Cambodia; the Boland Amendments of 1982–84 restricted CIA funding for the Nicaraguan Contras. Both succeeded because the Democratic Party held substantial House majorities. In May 2026, a 53-47 Republican Senate and a narrow Republican House make any appropriations rider defunding the blockade impossible to pass. The administration has conceded, through senior Pentagon officials on 30 April, that $25 billion has been spent on the war without any supplemental appropriations request from the White House. Senators Rand Paul, James Lankford, and Brian Fitzpatrick have signalled openness to forcing votes when the ceasefire ends — but “several Republican defections currently insufficient to override a veto” remains the structural outcome. The tool exists constitutionally; it does not exist politically.

C. The Judicial Route: Three Tracks, the Most Dangerous Inverted

Track One — Congressional standing suits filed by Senator Edward Markey and others face the near-insurmountable precedent of Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), in which Federal Judge Paul Friedman dismissed an analogous WPR suit against President Clinton’s Kosovo campaign on standing and political-question grounds. Six failed Senate resolutions reinforce, not undermine, the Campbell rationale: legislative remedies are being attempted, however unsuccessfully. The standing barrier remains effectively impassable.

Track Two — Private-party suits by the ACLU and the Center for Constitutional Rights offer a more legally innovative path. Private parties possess standing that congressional members lack. The political-question retreat in Zivotofsky v. Clinton, 566 U.S. 189 (2012) (Zivotofsky I) — which must be distinguished from Zivotofsky II, 576 U.S. 1 (2015), which expanded executive power on the substantive recognition question — suggests the Court will engage on separation-of-powers questions when private parties present justiciable claims rather than abstract political disputes. This is the most credible route to judicial review on the merits.

Track Three — Supreme Court escalation is the most dangerous from a constitutional perspective. A Trump-appointed 6-3 majority that dramatically expanded presidential immunity in Trump v. United States, 603 U.S. ___ (2024), is doctrinally receptive to formally striking down the WPR as an unconstitutional infringement on Article II Commander-in-Chief authority — the outcome conservative legal theorists have sought since 1973. The perverse result: the very legal challenge filed by Democratic legislators or private plaintiffs to constrain the President could result in the Court abolishing the WPR entirely, leaving Congress with zero statutory war-powers tools.

“The Supreme Court May Legalize Donald Trump’s War on Iran.” — Jacobin, March 2026

D. The Negotiating-Capacity Problem: A Parallel Failure

A constitutional analysis of the WPR’s enforcement architecture is incomplete without acknowledging a parallel structural failure. The Arms Control Association’s April 2026 analysis documents that Special Envoy Steve Witkoff — the lead US negotiator both before and after the war — lacked the technical expertise to engage substantively with Iran’s nuclear file. Witkoff misread Iran’s enrichment offer to 20% for the Tehran Research Reactor as a deliberate effort to shorten breakout time, when 20% enrichment is the standard requirement for the reactor’s medical-isotope production function. He offered Iran “free fuel” as an alternative to domestic enrichment, which Iran rejected as “an assault on our dignity.” He expressed surprise that Iran emphasised its “right to enrich” — a position publicly stated by Iranian governments for over twenty years. The same Witkoff remains the lead negotiator on Iran’s revised proposal of late April 2026. Both the legal architecture and the diplomatic architecture for ending the war are simultaneously broken.

V. The Strait of Hormuz: A Legal Paradox

Under UNCLOS Article 38, the Strait of Hormuz is an international waterway subject to the right of transit passage that cannot be suspended even in wartime. Iran’s 1 March 2026 closure announcement was itself a violation of UNCLOS. The US blockade — declared in its rationale to enforce freedom of navigation — creates a legal paradox: America is using a naval blockade, an act of war under customary international law, to enforce navigation rights guaranteed by treaty.

Iran argues the US blockade violates UNCLOS by creating a military exclusion zone in international waters. The United States responds that Iran’s prior violation of an international strait justified the blockade as self-defence under Article 51 of the United Nations Charter.

The San Remo Manual (1994) establishes four conditions for a lawful blockade: (1) declaration and notification to all states; (2) effectiveness; (3) non-discrimination; and (4) access for humanitarian goods. The blockade satisfies conditions one, two, and four. The non-discrimination requirement is the most legally vulnerable: selective passage for GCC-linked vessels while restricting Chinese and Indian commercial traffic — with Hormuz transit reduced from 125–140 ships per day pre-war to approximately 7 — creates a discriminatory regime that multiple states could challenge before ITLOS under UNCLOS Part XV dispute resolution.

VI. India’s Legal Interests and the Silence Problem

India is a state party to UNCLOS (ratified 1995). The blockade’s selective passage regime creates a prima facie case for ITLOS proceedings. India has invoked international maritime jurisdiction before: the M/V Enrica Lexie arbitration (Italy v. India, 2015) and the Arctic Sunrise provisional measures order (Netherlands v. Russian Federation, 2013) — in which India’s experience as both flag state and coastal state was relevant — demonstrate that flag-state rights violations can trigger ITLOS jurisdiction. An Indian application alleging discriminatory interference with Indian shipping rights in an international strait would be legally credible and institutionally appropriate.

That India has not filed is not legal incapacity — it is a political choice. The United States has reaffirmed support for India’s permanent UNSC seat, provides defence-technology transfers under iCET, anchors the Quad architecture, and hosted the Modi visit to Tel Aviv just 48 hours before the strikes — producing 27 bilateral outcomes including an upgrade to a “Special Strategic Partnership.” India has assessed that the UNSC prize, the defence-technology pipeline, and strategic alignment are worth more than ITLOS relief that the US — not a party to UNCLOS and consistently rejecting compulsory jurisdiction — would in any event ignore.

The law offers India a remedy it cannot politically afford to use.

Cross-reference. The probability framework, the six-channel mediation ecosystem, the BRICS Foreign Ministers Meeting (14–15 May 2026), and the calibrated assessment of India’s mediation prospects (11–14% on strict criteria; 30–34% on relaxed-process criteria) are addressed in the companion paper: The 2026 Iran-USA-Israel War: India’s Diplomatic Window — A Calibrated Probability Analysis (Day 60 Standalone), Bhatt & Joshi Associates, 29 April 2026.

VII. The Political Economy of Continued Pressure

Three measurable indicators on Day 64 suggest that costs are mounting but have not yet reached the threshold for posture change.

Indicator One — Domestic Disapproval

Public disapproval of the Iran war has reached, in CNN’s reporting, levels comparable to disapproval of the Vietnam War — the fastest any American military conflict has reached this level of unpopularity. US gasoline prices are above $4 per gallon, removing a key Republican economic talking point ahead of the November 2026 midterm elections. The Cook Political Report has noted the 2026 Senate map is “trending in Democrats’ direction,” citing the war’s unpopularity as a Republican headwind.

Indicator Two — Allied Alignment Under Strain

On 1 May 2026, the Pentagon announced the withdrawal of approximately 5,000 US troops from Germany — a “thorough review of the Department’s force posture in Europe” to be completed over six to twelve months, framed by Pentagon spokesman Sean Parnell as following established process. The withdrawal is not a Gulf reassignment; it is a punitive NATO-strain signal in response to German Chancellor Friedrich Merz telling high-school students that “the Americans obviously have no strategy” and comparing the Iran campaign to Afghanistan and Iraq. For India, the signal is double-edged: it confirms the blockade is a multi-quarter strategic posture rather than a tactical instrument, and that European allies will not function as moderating influences through the relevant time horizon.

Indicator Three — CENTCOM Contingency Planning

Axios reported that CENTCOM Commander Admiral Brad Cooper was scheduled to brief the President on three escalation options: a “short and powerful” wave of strikes targeting infrastructure to break the negotiating deadlock; a partial takeover of the Strait of Hormuz to reopen it to commercial shipping, possibly involving ground forces; and a special-forces operation to secure Iran’s stockpile of highly enriched uranium. Each carries different WPR implications. Ground forces in the Strait of Hormuz would unambiguously trigger a fresh hostilities determination under Section 4(a)(1) — and would, on the Termination Doctrine’s own logic, require a new 60-day clock.

VIII. Conclusion: From Paper Tiger to Termination Doctrine

The War Powers Resolution of 1973 was designed to prevent precisely the constitutional moment that arrived on 1 May 2026: an indefinite, congressionally unauthorised presidential war sustained through unilateral executive authority and an inert legislative architecture. What has emerged instead is a “termination doctrine” approach that effectively neutralises the Resolution itself. The statute, in practice, has failed in its core purpose.

Its structural flaws were always fatal: a concurrent-resolution mechanism gutted by Chadha; an appropriations power blocked by partisan arithmetic; a judicial path foreclosed at congressional standing and weaponised against the statute itself at the Supreme Court level. CNAS identified the result in 2020 — a paper tiger. The 1 May 2026 letter moved the regime one step further: from paper tiger to Termination Doctrine. Not a refusal to comply with the Resolution, but a structural argument that compliance is what the President says it is.

The Iran blockade may continue for months. The War Powers Resolution clock has expired. Congress has voted six times to halt the war and failed six times. The courts may, if anything, remove the last statutory constraint on presidential war-making rather than enforce it.

For India, the lesson is uncomfortable. The country whose courts, commentators, and constitutional scholars expend considerable energy analysing the boundaries of executive power under Articles 53, 73, and 246 of the Constitution of India would do well to observe what happens when a constitutional democracy’s war-powers constraints are built on statutory sand rather than institutional steel. The Indian Parliament’s own role in authorising foreign military deployments is constitutionally unresolved — there is no Indian equivalent of the WPR, and no requirement under the Constitution of India for parliamentary approval before the executive deploys the armed forces abroad. The Iran war, and the spectacle of a 60-day deadline passing without consequence followed by a Termination Doctrine that purports to satisfy the deadline by declaring the war over, is a cautionary tale: statutory war-powers frameworks without robust enforcement architecture are not merely ineffective. They are constitutionally dangerous. They invite the very judicial overreach that ultimately eliminates them.

“A statute that contains its own unenforceability is not a check on power. It is an invitation for power to prove that checks do not exist.” — Author’s analysis

FAQ 

1. What is the War Powers Resolution and why is it important?
The War Powers Resolution is a U.S. law that limits the President’s ability to engage in military conflict without Congressional approval. It requires notification within 48 hours and mandates withdrawal within 60 days unless Congress authorises the action.

2. What is the “Termination Doctrine” introduced in May 2026?
The Termination Doctrine refers to President Donald Trump’s claim that hostilities with Iran had “terminated,” even while military operations like the naval blockade continued—effectively bypassing the War Powers Resolution.

3. Can a President legally end the War Powers clock by declaring hostilities over?
This is highly contested. The doctrine argues yes, but critics say it undermines the statute by allowing unilateral executive interpretation, making compliance impossible to enforce.

4. Does a naval blockade count as “hostilities” under international law?
Yes. Under customary international law and frameworks like the San Remo Manual, a naval blockade is considered a belligerent act—essentially an act of war.

5. Why couldn’t the U.S. Congress stop the Iran war in 2026?
Congressional tools failed due to:

• Invalidated mechanisms after INS v. Chadha
• Lack of votes to override presidential veto
• Political divisions preventing funding cut-offs

6. Can courts enforce the War Powers Resolution?
Historically, courts avoid such disputes. Cases like Campbell v. Clinton dismissed challenges on political-question grounds, making judicial enforcement unlikely.

7. Could the U.S. Supreme Court strike down the War Powers Resolution?
Yes, there is a real possibility. Given precedents like Trump v. United States, the Court may expand executive power rather than enforce limits.

8. What are the four enforcement mechanisms under the War Powers Resolution?
They include:

• Congressional authorisation
• Mandatory withdrawal after 60 days
• Concurrent resolution (now constitutionally doubtful)
• Funding cut-offs through appropriations

9. Why is the Iran blockade significant for India?
India depends heavily on energy imports via the Strait of Hormuz. Continued U.S. blockade directly impacts Indian oil and gas supply chains and energy security.

10. Can India challenge the U.S. blockade under international law?
Yes, under UNCLOS, India could approach international tribunals like ITLOS, but geopolitical considerations make this unlikely.

11. What is the biggest weakness of the War Powers Resolution?
Its enforcement structure is weak:

• Key provisions invalidated by courts
• Dependent on political will
• No effective judicial remedy

12. Why is the Termination Doctrine considered dangerous?
Because it turns the War Powers Resolution framework into a “self-extinguishing” law—where the President alone decides when legal constraints no longer apply.

13. How is this relevant to Indian constitutional law?
India lacks a statutory framework like the WPR. The situation highlights risks when war powers are not clearly regulated by enforceable legal mechanisms.

14. What happens if the War Powers Resolution becomes unenforceable?
It would leave the U.S. President with largely unchecked authority to conduct military operations without Congressional approval.

Bhatt & Joshi Associates | Advocates · Senior Standing Counsel · Legal Consultants Office No. 311, Grace Business Park, Sola, Ahmedabad 380060 | Established 1978

Bhatt, A. (2026). The War Powers Resolution at the Altar of Executive Supremacy: From Paper Tiger to Termination Doctrine. Bhatt & Joshi Associates Research Papers, 2 May 2026.

© 2026 Bhatt & Joshi Associates, Ahmedabad. All rights reserved. This article is for informational and analytical purposes only and does not constitute legal advice. Views expressed are the author’s own.

The post The War Powers Resolution Collapse: How the “Termination Doctrine” Redefines Presidential War Authority appeared first on Bhatt & Joshi Associates.

Indian governance is increasingly conducted through instructions, circulars, guidelines, and policy documents that are not enacted as formal legislation but profoundly shape legal rights and obligations. The binding nature of administrative instructions — whether they carry legally enforceable force on the issuing authority, on third parties, or on courts — is among the most practically significant questions in Indian administrative law. This article synthesises the Supreme Court’s jurisprudence from Sant Ram Sharma (1967) to Ratan Melting (2008) and beyond, develops a unified five-part doctrinal test for determining that force, and applies it to six major Indian regulatory domains — income tax (CBDT), central excise/GST (CBEC), drug regulation (CDSCO), securities (SEBI), banking (RBI), and telecommunications (TRAI) — to compare how each domain treats its own instructions.

INTRODUCTION

Modern Indian governance is conducted less through statutes and delegated legislation and more through instructions, circulars, guidance notes, policy documents, and administrative orders. The Reserve Bank of India issues master circulars. CBDT issues instruction manuals. SEBI issues guidance notes. CDSCO issues guidance documents. These instruments shape daily regulatory practice far more directly than the parent statutes.

Yet their legal status is deeply uncertain. Are they binding? On whom? In what circumstances can they be enforced? When do they yield to the statute? When can a citizen use them against the issuing authority?

These questions have been answered — often inconsistently — across decades of Supreme Court jurisprudence. This article attempts a synthesis: a unified doctrinal framework that explains the binding nature of administrative instructions and when they carry legal force, applying the framework to each major regulatory domain.

THE FOUNDATIONAL JUDGMENTS

SANT RAM SHARMA v. STATE OF RAJASTHAN, AIR 1967 SC 1910 (Supreme Court, July 7, 1967)

The Supreme Court established the foundational rule: ‘While the Government cannot by its executive instructions create a rule having the force of law, it can certainly direct its officers as to how they shall exercise a discretionary power… such instructions are not rules having the force of law in the sense that a citizen can ask for a writ to have them enforced.’ Administrative instructions bind subordinate officers as a matter of internal discipline — they create no enforceable rights in third parties unless there is specific legislative authority.

G.J. FERNANDEZ v. STATE OF MYSORE & ORS., AIR 1967 SC 1753, [1967] 3 SCR 636

The Supreme Court held: ‘In order that executive instructions have the force of statutory rules, it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution.’ Without this authority, executive instructions ‘confer no right on any member of the public to ask for a writ against Government.’

NAVNIT LAL C. JAVERI v. K.K. SEN, AAC, AIR 1965 SC 1375, (1965) 56 ITR 198 (SC)

For income-tax authorities, the Supreme Court held that CBDT circulars issued under Section 119 of the IT Act are binding on all officers and persons employed in execution of the Act. This is the ‘statutory transmission belt’ case: Section 119 converts CBDT’s instructions into statutory mandates.

BENGAL IRON CORPORATION v. COMMERCIAL TAX OFFICER, 1993 AIR 2414, 1994 Supp (1) SCC 310

The Supreme Court held that quasi-judicial authorities are bound by law, not by administrative instructions, opinions, or circulars: ‘While acting in quasi-judicial capacity, they are bound by law and not by any administrative instructions.’

COMMISSIONER OF CENTRAL EXCISE, BOLPUR v. RATAN MELTING AND WIRE INDUSTRIES, (2008) 13 SCC 1 (Constitution Bench)

The Constitution Bench settled: ‘Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes… if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue.’ But: where a circular contradicts a Supreme Court or High Court judgment on the law, the circular does not prevail.

THE UNIFIED FIVE-PART TEST

Synthesising these judgments, the following five-part test determines the binding nature of administrative instructions — specifically, the force they carry — for any given instrument:

TEST 1 — STATUTORY AUTHORITY: Is the instruction issued under an express statutory power to issue binding directions (e.g., Section 119 IT Act, Section 37B Central Excise Act, Section 119A Customs Act)? If yes: binding on the department and enforceable by courts. If no: proceed to Test 2.

TEST 2 — STATUTORY SILENCE: Does the instruction cover a subject on which the parent statute is silent? If yes: the instruction may fill the gap and bind subordinate officers as a matter of executive power under Article 73 (Central) or Article 162 (State). If the statute actively covers the subject, the instruction cannot operate to modify it.

TEST 3 — CONTRADICTION TEST: Does the instruction contradict an express statutory provision or a Supreme Court/High Court judgment? If yes: the instruction has no legal existence (Ratan Melting). No binding force. The statutory provision prevails.

TEST 4 — QUASI-JUDICIAL FILTER: Is the instruction being applied to a quasi-judicial proceeding? If yes: the instruction is not binding on the quasi-judicial authority, which is bound only by law (Bengal Iron Corporation).

TEST 5 — LEGITIMATE EXPECTATION/ARTICLE 14: Has consistent application of the instruction created a reasonable expectation in third parties? If yes: the issuing authority is bound by Article 14 to follow the instruction consistently or give cogent reasons for departure. Third parties can enforce this against selective application.

APPLICATION ACROSS REGULATORY DOMAINS

CBDT (Income Tax): Section 119 provides statutory transmission belt. CBDT circulars pass Test 1. They bind the Revenue and courts enforce them — even to quash prosecutions launched in violation of them (August 2025 Supreme Court ruling).

CBEC/CBIC (Central Excise/GST): Section 37B Central Excise Act and Section 168 CGST Act provide equivalent statutory authority. Board circulars bind departmental authorities. Courts have consistently held that departmental circulars under these provisions are binding on the Revenue.

CDSCO/DCC (Drugs and Cosmetics): No Section 119-equivalent exists in the D&C Act. DCC prosecution guidelines fail Test 1. They fail Test 3 (they contradict strict liability under Sections 18/27). They have no binding legal force — though Test 5 (legitimate expectation) may be available to individual manufacturers.

SEBI (Securities): SEBI circulars and guidelines are issued under Section 11 of the SEBI Act, which empowers SEBI to ‘protect the interests of investors in securities and to promote the development of, and to regulate the securities market.’ Courts have treated SEBI circulars as having statutory force for regulated entities, though their binding effect on third parties is contextual.

RBI (Banking): RBI Master Directions and Circulars are issued under Sections 21, 35A, and other provisions of the Banking Regulation Act and the RBI Act, which expressly empower RBI to issue binding directions to banks. These pass Test 1 for regulated banking entities.

TRAI (Telecom): TRAI Regulations and Directions are issued under Sections 11 and 13 of the TRAI Act, which confer express power to make regulations and issue directions. They are statutory instruments binding on telecom service providers.

THE PROBLEM OF CIRCULARS BENEFICIAL TO THIRD PARTIES

A particularly complex category is the circular that benefits a third party (e.g., a taxpayer or a manufacturer) by reducing their regulatory burden. When such a circular is subsequently withdrawn or departed from, can the third party enforce the circular against the government?

The answer in income tax law is yes — beneficial CBDT circulars bind the Revenue even if they go beyond the strict terms of the statute (UCO Bank v. CIT). The rationale is that Section 119(2) expressly authorises CBDT to ‘tone down the rigour of the law’ in favour of assessees. Once CBDT does so, the Revenue cannot selectively apply the more rigorous statutory standard against a particular taxpayer.

In drug regulation, no equivalent exists. The DCC’s beneficial guidelines (Category B/C non-prosecution) are not backed by a Section 119(2)-equivalent. They cannot bind CDSCO against prosecution. The asymmetry is total.

CONCLUSION: A PLEA FOR STATUTORY CLARITY

The binding nature of administrative instructions in Indian law — specifically, the force they carry — depends almost entirely on whether the parent statute provides a transmission belt: an express power to issue binding directions. Where that belt exists (CBDT, RBI, SEBI, TRAI), administrative instructions have legal force. Where it does not (CDSCO, DCC), they do not.

The solution is not judicial creativity but legislative clarity: Parliament should, in each regulatory statute, specify whether the principal regulatory body has power to issue binding instructions to subordinate authorities, the scope and limits of that power, and the process for Parliamentary oversight. Until that happens, the enforceability of India’s vast administrative instruction universe will remain uncertain — to the detriment of both regulatory effectiveness and legal certainty.

Frequently Asked Questions (FAQs)

1. What are administrative instructions in Indian law?
Administrative instructions include circulars, guidelines, policy documents, and directions issued by government authorities to regulate internal functioning and implementation of statutes.

2. Are administrative instructions legally binding in nature?

They are not automatically binding. Their enforceability depends on whether they are backed by statutory authority, consistent with the law, and satisfy judicial tests laid down by courts.

3. When do administrative instructions become binding?
They become binding when issued under an express statutory provision (like Section 119 of the Income Tax Act) or when courts recognise their enforceability under principles like legitimate expectation.

4. Can administrative instructions override a statute?
No. Administrative instructions cannot override or contradict statutory provisions. If they do, they have no legal validity.

5. Are circulars binding on government authorities?
Yes, if issued under statutory authority, they are binding on departmental officers. However, they may not bind courts or quasi-judicial authorities.

6. Can courts enforce administrative instructions?
Courts can enforce them in limited circumstances, especially when they are backed by statute or when their consistent application creates a legitimate expectation under Article 14.

7. What is the role of the Supreme Court in determining the binding nature of administrative instructions?
The Supreme Court has laid down key principles through landmark judgments that determine when administrative instructions are binding, when they are merely directory, and when they have no legal effect, thereby clarifying their enforceability in Indian law.

8. Are quasi-judicial authorities bound by administrative instructions?
No. Quasi-judicial authorities must follow the law and are not bound by administrative circulars or executive directions.

9. Do CBDT circulars have binding force?
Yes. Circulars issued by the CBDT under statutory authority are binding on income tax authorities and can even benefit taxpayers.

10. Can a citizen rely on administrative instructions against the government?
In certain cases, yes—especially where the instruction is beneficial and has been consistently applied, creating a legitimate expectation.

11. Why do some regulatory bodies’ guidelines lack binding force?
Because their parent statutes may not provide explicit authority to issue binding directions, making such guidelines advisory rather than enforceable.

12. What is the five-part test for determining binding force?
It is a doctrinal framework that examines statutory authority, statutory silence, contradiction with law, quasi-judicial applicability, and legitimate expectation to determine enforceability.

REFERENCES

[1] Sant Ram Sharma v. State of Rajasthan & Anr., AIR 1967 SC 1910 — Supreme Court of India.  https://lawlens.in/doc/5aa43bbb-095a-4ff0-96ac-f93abfc56ed5

[2] G.J. Fernandez v. State of Mysore & Ors., AIR 1967 SC 1753, [1967] 3 SCR 636 — Supreme Court of India.  https://www.legitquest.com/case/gj-fernandez-v-state-of-mysore-others/4C41

[3] Navnit Lal C. Javeri v. K.K. Sen, AAC, AIR 1965 SC 1375, (1965) 56 ITR 198 (SC).  https://itatonline.org/digest/navnitlal-c-javeri-v-k-k-sen-aac-1965-56-itr-198-sc/

[4] Bengal Iron Corporation v. Commercial Tax Officer, 1993 AIR 2414, 1994 Supp (1) SCC 310.  https://vlex.in/vid/c-no-004474-004474-852342483

[5] Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries, (2008) 13 SCC 1 — Constitution Bench.  https://www.casemine.com/judgement/in/56b48d51607dba348fff2555

[6] UCO Bank, Calcutta v. Commissioner of Income Tax, W.B., (1999) 237 ITR 889 (SC).  https://www.casemine.com/search/in/UCO%20Bank%20Vs%20Commissioner%20of%20Income%20Tax

[7] Ellerman Lines Ltd. v. CIT, AIR 1972 SC 524, (1971) 82 ITR 913 (SC).  https://lawlens.in/doc/92095513-ea85-4572-8e4c-0954426e574d

[8] Income Tax Act, 1961, Section 119 — Income Tax Department.  https://www.incometaxindia.gov.in

[9] The Drugs and Cosmetics Act, 1940, Sections 7, 33, 33P.  https://www.indiacode.nic.in/bitstream/123456789/15278/1/drug_cosmeticsa1940-23.pdf

[10] Dinesh Thakur & Prashant Reddy T., ‘A Report on Fixing India’s Broken Drug Regulatory Framework’ (June 2016).  https://spicyip.com/wp-content/uploads/2016/06/Report_India-Drug-Regulatory-Framework_June-2016.pdf

[11] TaxGuru, ‘CBDT Circulars: Bending Effect’ (July 2015).  https://taxguru.in/income-tax/cbdt-circulars-bending-effect.html

[12] Supreme Court quashes prosecution and imposes Rs. 2 lakh costs on IT Department for ignoring CBDT circular (August 2025).  https://a2ztaxcorp.net/supreme-court-quashes-tax-prosecution-fines-income-tax-department-%E2%82%B92-lakh-for-ignoring-cbdt-circular/

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Section 26A of the Drugs and Cosmetics Act, 1940 empowers the Central Government to prohibit the manufacture, sale, or distribution of any drug in the public interest by notification in the Official Gazette, without requiring any amendment to the Act or rules. It is the most unilaterally powerful instrument in India’s drug regulation toolkit. This article examines the scope and limits of Section 26A power, the procedural question of whether DTAB/DCC consultation is mandatory or directory (settled by the Supreme Court in the FDC ban litigation), the constitutionality of Section 26A notifications as ‘legislation by notification,’ and the implications for pharmaceutical manufacturers. The article also traces the trajectory of the landmark 344 FDC ban (2016), its quashing by the Delhi High Court, and its restoration by the Supreme Court in Union of India v. Pfizer Ltd.

INTRODUCTION

India’s drug regulatory law contains multiple mechanisms through which the Central Government can control the drugs available in the marketplace. The most comprehensive are the D&C Rules, 1945, which establish standards for manufacturing, labelling, and distribution. But the Rules are cumbersome to amend — they require Gazette publication, prior publication for public comment, and Parliamentary tabling.

Section 26A provides an entirely different pathway: the Central Government can, by notification in the Official Gazette, prohibit the manufacture, sale, or distribution of any drug if it is satisfied that the drug’s use is likely to involve risk to human beings or animals, or that the drug lacks therapeutic value, or that it contains ingredients for which there is no therapeutic justification. No amendment, no Parliamentary procedure — a notification suffices.

This extraordinary power has been deployed with increasing frequency: 344 FDC drugs in 2016, additional FDC batches in 2017 and 2018, and 156 FDCs in 2024. Each exercise has generated intense pharmaceutical industry litigation. Understanding the scope and limits of Section 26A is essential for any regulatory counsel.

THE TEXT OF SECTION 26A: SCOPE AND TRIGGER CONDITIONS

Section 26A reads: ‘Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied, that the use of any drug or cosmetic is likely to involve any risk to human beings or animals or that any drug does not have the therapeutic value claimed or purported to be claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do, then, that Government may, by notification in the Official Gazette, prohibit the manufacture, sale or distribution of such drug or cosmetic.’

Three trigger conditions exist — risk to human beings/animals, absence of therapeutic value, or ingredients without therapeutic justification. The government needs to be satisfied on any one of these three grounds. The ‘public interest’ requirement is not a fourth independent condition but a cumulative test: the government must be satisfied both that a trigger condition exists and that prohibition is in the public interest.

Section 26A covers drugs and cosmetics. It does not require the drug to be already licensed — it can prohibit drugs that were approved pre-1988 (before the current approval regime) as well as post-1988 approvals. The Supreme Court confirmed this in the Pfizer litigation.

THE DTAB/DCC CONSULTATION QUESTION

A central issue in FDC ban litigation has been whether the Central Government must consult the Drugs Technical Advisory Board (DTAB) and the DCC before issuing a Section 26A notification.

The Drugs and Cosmetics Act establishes the DTAB under Section 5 as the primary technical advisory body for matters of drug standards and regulation. Section 26A itself is silent on any consultation requirement.

The Delhi High Court in its 2016 judgment quashing the 344 FDC bans held that DTAB consultation was mandatory. The Government had relied on an Expert Committee (the Kokate Committee) rather than formal DTAB consultation, and the High Court found this procedurally defective.

The Supreme Court reversed this in Union of India v. Pfizer Ltd. & Ors. The Court held that Section 26A does not impose a mandatory consultation requirement with the DTAB or DCC. Such consultation, where done, may be directory — it adds to the quality of decision-making but its absence does not invalidate the notification. The Central Government retains full power to act under Section 26A on the basis of any credible expert material, including Expert Committee reports.

This ruling significantly expanded the Central Government’s Section 26A powers. It also has an important implication for the DCC: even in contexts where DCC consultation is prescribed (by administrative practice), its absence does not automatically vitiate a Section 26A notification.

THE 344 FDC BANS: A CASE STUDY IN SECTION 26A DEPLOYMENT

On March 10, 2016, the Central Government issued a notification under Section 26A prohibiting the manufacture, sale, and distribution of 344 Fixed Dose Combination (FDC) drugs. FDCs — combinations of two or more active pharmaceutical ingredients in a single dose — had proliferated in the Indian market over decades, many without formal approval from the DCGI.

The Kokate Committee, appointed by the Government, found that these FDCs lacked therapeutic justification and posed safety risks. The Section 26A notification was immediate and nationwide.

Pharmaceutical manufacturers, including Pfizer, challenged the notification before the Delhi High Court. A Single Judge quashed the notification in December 2016, holding that DTAB consultation was mandatory and had not been conducted.

The Supreme Court, in the subsequent appeal, restored the notification. The Court upheld the Government’s power to issue Section 26A notifications on Expert Committee recommendations without mandatory DTAB consultation, reinforcing the Central Government’s broad, unilateral power under Section 26A. The Delhi High Court’s quashing order was set aside.

In August 2024, the Central Government invoked Section 26A again to ban 156 FDCs, further demonstrating the ongoing centrality of this provision in India’s drug safety enforcement.

SECTION 26A AS LEGISLATION BY NOTIFICATION: CONSTITUTIONAL LIMITS

Section 26A raises a significant constitutional question: is it a conferral of ‘legislative power’ on the executive that violates the doctrine against excessive delegation?

The doctrine against excessive delegation (developed from In re Delhi Laws Act, 1951 AIR SC 332) holds that Parliament cannot abdicate its legislative function by conferring unlimited, unguided power on the executive. For a delegation to be valid, the statute must lay down the policy and the delegatee must merely fill in the details.

Section 26A satisfies this test: it specifies three clear trigger conditions (risk, lack of therapeutic value, unjustified ingredients), requires satisfaction of a ‘public interest’ criterion, and mandates the instrument (Official Gazette notification). The executive cannot act under Section 26A for reasons outside these parameters — a notification issued on pure commercial or political grounds, without the prescribed satisfaction, would be challengeable as ultra vires.

Courts have consistently upheld Section 26A as a valid delegation, noting that drug safety regulation requires rapid, expert-driven responses that parliamentary amendment procedures cannot provide.

SECTION 26A vs. SECTION 26B vs. SECTION 33EED: COMPARATIVE SCOPE

Section 26A: Prohibition — manufacture, sale, and distribution of any drug or cosmetic. Applies nationwide. Effective on Gazette notification.

Section 26B: Regulation or restriction — Central Government can regulate or restrict (short of outright ban) the manufacture, sale, or distribution of essential drugs or drugs in public interest. Provides a graduated response short of prohibition.

Section 33EED: Equivalent to Section 26A for Ayurvedic, Siddha, and Unani (ASU) drugs. Empowers Central Government to prohibit ASU drug manufacture by notification in public interest.

The three provisions together create a comprehensive toolkit: Section 26B for regulatory restriction, Section 26A for outright prohibition of allopathic drugs, and Section 33EED for prohibition of ASU drugs. The absence of a unified framework for all drug categories creates regulatory asymmetry that the pharmaceutical industry exploits through classification arguments.

VII. CONCLUSION

Section 26A is the most operationally powerful provision in the Drugs and Cosmetics Act, 1940. Its broad scope, its freedom from mandatory consultation requirements (as confirmed by the Supreme Court), and its direct operation by Gazette notification make it the instrument of choice for rapid regulatory intervention. The FDC ban litigation settled the major procedural controversies — DTAB consultation is directory, not mandatory; Expert Committee recommendations suffice; and the Supreme Court will not second-guess the government’s satisfaction on questions of drug safety.

For pharmaceutical manufacturers, Section 26A notifications are existential regulatory events. For regulatory counsel, the key defence arguments — absence of procedural safeguards, lack of DTAB consultation, insufficient expert material — have been progressively narrowed by the Supreme Court. The constitutional limits of the provision remain in the trigger conditions and the ‘public interest’ requirement — grounds that require substantive engagement with the scientific record, not just procedural challenges.

FAQ

1. What is Section 26A of the Drugs and Cosmetics Act, 1940?
Section 26A empowers the Central Government to prohibit the manufacture, sale, or distribution of any drug or cosmetic in public interest by issuing a notification in the Official Gazette.

2. Can the Government ban a drug without amending the Drugs and Cosmetics Rules, 1945?
Yes. Under Section 26A, the Government can ban a drug directly through a Gazette notification without amending the Act or the Rules.

3. What are the grounds for banning a drug under Section 26A?
A drug may be banned if:

• it poses risk to human beings or animals;
• it lacks the therapeutic value claimed; or
• it contains ingredients with no therapeutic justification.

4. Is consultation with DTAB mandatory before issuing a Section 26A notification?
No. The Supreme Court in Union of India v. Pfizer Ltd. held that consultation with the Drugs Technical Advisory Board is directory, not mandatory.

5. What is the 344 FDC drug ban case?
In 2016, the Central Government banned 344 Fixed Dose Combination (FDC) drugs under Section 26A. The ban was initially quashed by the Delhi High Court but later restored by the Supreme Court.

6. What are Fixed Dose Combination (FDC) drugs?
FDC drugs are medicines containing two or more active pharmaceutical ingredients combined in a single dosage form.

7. Can pharmaceutical companies challenge a Section 26A notification?
Yes. Companies can challenge such notifications on grounds like lack of scientific basis, absence of public interest, or arbitrariness.

8. What is the difference between Section 26A and Section 26B?
Section 26A allows complete prohibition of drugs or cosmetics, while Section 26B allows regulation or restriction short of an outright ban.

9. What is Section 33EED of the Drugs and Cosmetics Act?
Section 33EED is similar to Section 26A but applies to Ayurvedic, Siddha, and Unani (ASU) drugs.

10. Is Section 26A constitutionally valid?
Yes. Courts have generally upheld Section 26A as a valid delegation of legislative power because the Act provides sufficient policy guidance and conditions.

REFERENCES

[1] The Drugs and Cosmetics Act, 1940, Sections 26A, 26B, 33EED — India Code.  https://www.indiacode.nic.in/bitstream/123456789/15278/1/drug_cosmeticsa1940-23.pdf

[2] Union of India v. Pfizer Ltd. & Ors. — Supreme Court of India (FDC ban restored, DTAB consultation directory).  https://blog.ipleaders.in/union-india-anr-vs-pfizer-limited-ors-flaws-need-recalled/

[3] Delhi High Court quashes 344 FDC drug ban notification (December 2016) — SCC Online.  https://www.scconline.com/blog/post/2016/12/08/central-governments-notification-banning-344-fdc-drugs-quashed/

[4] Central Government bans 156 FDCs under Section 26A (September 2018) — PIB.  https://www.pib.gov.in/Pressreleaseshare.aspx?PRID=1545741

[5] Mondaq, ‘Supreme Court Expands Government’s Powers to Ban Drugs Under Section 26A’ (January 2018).  https://www.mondaq.com/india/food-and-drugs-law/661326/supreme-court-expands-governments-powers-to-ban-drugs-under-section-26a-o

[6] Section 26A — LawGist: The Drugs and Cosmetics Act, 1940.  https://lawgist.in/drugs-and-cosmetics-act/26A

[7] Notifications under Section 26A declared legally untenable (December 2016) — Patents Rewind.  https://patentsrewind.wordpress.com/2016/12/29/notifications-under-section-26a-of-the-drugs-and-cosmetics-act-declared-legally-u/

[8] ICLG India — Drug and Medical Device Litigation 2026 (April 2026).  https://iclg.com/practice-areas/drug-and-medical-device-litigation/india

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India’s higher education framework rests on a constitutional balance between academic excellence and social equity, derived from the fundamental rights in Part III. Within this structure, the UGC functions as the apex regulator under Entry 66 of List I, tasked with maintaining standards while advancing inclusive access.

On 13 January 2026, the UGC notified the University Grants Commission (Promotion of Equity in Higher Education Institutions) Regulations, 2026, marking a decisive shift from the advisory 2012 framework to a mandatory, enforcement-driven regime. The Regulations introduced detailed definitions of discrimination, a multi-tiered grievance redressal system, and penal consequences for institutional non-compliance — signalling a move toward active regulatory intervention in campus equity.

However, the framework had an unusually short operational life. On 29 January 2026, the Supreme Court of India, in the Mritunjay Tiwari batch of petitions, stayed the Regulations. The Court expressed prima facie concerns regarding statutory vagueness, exclusionary drafting, and the potential for unintended social segregation. Invoking its powers under Article 142, it directed that the 2012 Regulations would continue to operate, preventing a regulatory vacuum while constitutional issues are adjudicated and a jurist committee reviews the framework.

This article undertakes a structured analysis of the 2026 Regulations and the judicial stay, examining their legislative evolution, constitutional vulnerabilities, and practical implications for higher education governance.

2. The Legislative and Jurisprudential Catalyst for the 2026 Framework

The 2026 Regulations emerged from a sustained pattern of institutional failure, judicial intervention, and socio-legal pressure. Their evolution reflects the tension between the State’s commitment to equity and the persistent administrative inertia within higher education institutions.

The Inadequacies of the 2012 Advisory Regime

The UGC (Promotion of Equity in Higher Educational Institutions) Regulations, 2012 established foundational anti-discrimination norms, including Equal Opportunity Cells and Anti-Discrimination Officers. They prohibited discrimination in admissions, evaluation, and access to facilities, and incorporated ragging within the broader equity framework.

However, the framework suffered from structural limitations:

• It operated largely as an advisory regime, lacking enforceable penalties
• Grievance mechanisms were institutionally internal, compromising independence
• No personal liability or punitive consequences for non-compliance

Empirical data presented during the Tadvi proceedings revealed systemic under-reporting and widespread non-compliance, with many institutions failing to submit mandatory Action Taken Reports. The UGC’s lack of enforcement power rendered the framework largely ineffective.

Recognising these failures, the Supreme Court of India directed the UGC in 2025 to frame a more robust and enforceable regulatory mechanism, emphasising that the revised framework must demonstrate practical effectiveness rather than remain merely declaratory.

The Catalyst: The Vemula–Tadvi PIL

The limitations of the 2012 framework were brought into sharp focus by incidents such as the deaths of Rohith Vemula (2016) and Dr. Payal Tadvi (2019), which exposed systemic discrimination within academic institutions. These events led to a Public Interest Litigation under Article 32, filed by their families.

The petition invoked violations of Articles 14, 15, 17, and 21, highlighting caste-based exclusion, social boycott, and institutional inaction. Over time, the Supreme Court exercised continuing mandamus, directing the UGC to:

• Collect nationwide compliance data
• Develop effective grievance mechanisms
• Address the mental well-being of marginalised students

In early 2025, the Court imposed a timeline for regulatory reform, making it clear that the new framework must be substantively effective. The 2026 Regulations were thus not merely a policy initiative, but a direct response to sustained judicial oversight in the Tadvi proceedings.

Statutory Anatomy of the UGC Equity Regulations 2026

The UGC Equity Regulations 2026 introduced a comprehensive institutional and legal framework to address discrimination in higher education institutions (HEIs). Unlike the 2012 regime, the 2026 framework embedded structural accountability, defined compliance timelines, and enforceable penalties, marking a clear shift toward interventionist regulation.

Structural Mandates and Institutional Architecture

The Regulations required all HEIs to establish a multi-layered equity governance system:

Equal Opportunity Centre (EOC)
The EOC functions as the nodal body for equity compliance, responsible for policy implementation, student support (academic, financial, and psychological), coordination with external agencies, and submission of annual reports to the UGC.

Equity Committee
Chaired by the head of the institution, the Committee includes representation from SC, ST, OBC, women, persons with disabilities, and civil society. It operates under strict timelines:

• Meeting within 24 hours of a complaint
• Report within 15 working days
• Action within 7 days

Notably, the absence of mandatory representation from the general category became a point of constitutional debate.

Equity Ambassadors and Equity Squads
The Regulations introduced decentralised monitoring through Equity Ambassadors and mobile Equity Squads, tasked with identifying discriminatory practices across campuses. While intended to improve enforcement, these mechanisms were criticised as creating a surveillance-oriented campus environment.

Ombudsperson
An independent appellate authority with quasi-judicial powers, including the ability to appoint an amicus curiae, enhancing procedural rigour in grievance resolution.

National Monitoring Committee
A central oversight body under the UGC to ensure nationwide compliance and coordination.

Definitional Framework: The Core Constitutional Issue

The most contentious aspect of the UGC Equity Regulations 2026 lies in its dual definition of discrimination, which triggered constitutional scrutiny.

Clause 3(1)(e): Broad Definition
Defines discrimination as any unfair or differential treatment based on religion, race, caste, gender, place of birth, disability, or similar grounds — effectively creating a universal protection standard.

Clause 3(1)(c): Caste-Based Discrimination (Restrictive Definition)
Limits caste-based discrimination specifically to acts against SC, ST, and OBC communities.

This bifurcation created a critical legal ambiguity:

• Whether Clause 3(1)(c) provides additional protection, or
• Whether it excludes non-reserved categories from caste-based claims

This tension became central to the constitutional challenge before the Supreme Court of India.

Additional Definitional Gaps

• No clear definition of “harassment” or “victimisation”
• No explicit inclusion of language or ethnicity, despite their relevance in campus discrimination

These omissions weaken interpretive clarity and expand the scope for inconsistent application.

Punitive Enforcement and Structural Omissions

A defining feature of the 2026 Regulations is the introduction of enforceable penalties, including:

• Withholding of UGC grants
• Financial sanctions
• Regulatory consequences affecting institutional recognition

However, enforcement is constrained by federal limitations, particularly for universities established under State laws, where UGC control operates indirectly through funding and recognition mechanisms.

Key Structural Omission: Ragging Framework
Unlike the 2012 Regulations, the 2026 framework removed the integrated treatment of ragging, leaving it to be governed separately under the 2009 anti-ragging regulations.

This separation is significant because ragging often functions as a vehicle for caste-based and regional discrimination, making the regulatory fragmentation both practically inefficient and constitutionally problematic.

The Constitutional Challenge: The Mritunjay Tiwari Batch

The notification of the UGC Equity Regulations 2026 triggered immediate constitutional scrutiny before the Supreme Court of India. A batch of writ petitions under Article 32 — led by Mritunjay Tiwari, along with other petitioners — challenged the validity of the Regulations, particularly their definitional structure and procedural safeguards.

Petitioners’ Constitutional Challenge

The petitioners mounted a multi-pronged challenge focusing on Article 14 and Article 21 violations:

Article 14 — Arbitrary Classification
The primary attack targeted Clause 3(1)(c), arguing that restricting caste-based discrimination to SC/ST/OBC victims creates an impermissible classification based on identity rather than conduct. This, it was argued, fails the test of intelligible differentia and rational nexus.

“Hierarchy of Victimhood” Argument
The bifurcated definition was said to institutionalise inequality within an equality framework, effectively creating a tiered system of protection.

Article 21 — Due Process Concerns
Petitioners highlighted the absence of procedural safeguards, including protections against false or malicious complaints. Given the serious academic and legal consequences of such allegations, the framework was argued to pose risks to personal liberty and reputational rights.

Supreme Court’s Interim Findings and Stay

During the hearing on 29 January 2026, the Court examined not only the petitioners’ arguments but also broader structural concerns within the Regulations.

Vagueness and Redundancy
The Court found the relationship between Clause 3(1)(c) and 3(1)(e) legally unclear. If the broader clause already covered discrimination, the narrower clause appeared either redundant or limiting, creating interpretive ambiguity and potential misuse.

Risk of Institutional Segregation (Clause 7(d))
A major concern was the wording of Clause 7(d), which dealt with allocation of students in hostels and academic spaces. The Court observed that the provision could be interpreted to permit segregated facilities, raising serious constitutional concerns about regression in social integration.

Non-Regression Principle
Justice Bagchi emphasised that a new regulatory framework cannot dilute broader protections available under the 2012 Regulations. This principle became central to the Court’s reasoning.

Unaddressed Discrimination Gaps
The Court also flagged gaps in the framework, including:

• Lack of clarity on intra-reserved-category discrimination
• Inadequate coverage of regional and linguistic discrimination

These concerns highlighted the incomplete nature of the definitional framework.

Article 142 and Interim Regulatory Position

Recognising that staying the Regulations could create a regulatory vacuum, the Supreme Court of India invoked its powers under Article 142 to ensure continuity.

The Court:

• Stayed the 2026 Regulations
• Directed that the 2012 Regulations would continue to operate
• Ordered the constitution of a committee of eminent jurists to review the framework

Importantly, the order is interim, not a final ruling on constitutionality. The substantive issues — including equality, proportionality, and drafting validity — remain open for adjudication.

Case Law Integration and Constitutional Scrutiny

A proper evaluation of the UGC Equity Regulations 2026 requires placing them within the broader framework of Indian constitutional jurisprudence, particularly doctrines governing delegated authority, proportionality, and substantive equality. Although the Supreme Court of India order is interim, the concerns it raises are rooted in these established principles.

Delegated Authority and Federal Balance

In Prof. Yashpal v. State of Chhattisgarh, the Supreme Court affirmed the primacy of the UGC Act under Entry 66 of List I in matters concerning coordination and standards in higher education. This provides the constitutional foundation for UGC’s authority to frame binding regulations.

However, the judgment also underscores an implicit limitation. Many universities are created under State legislation, and higher education operates within a shared federal domain (Entry 25, List III). As a result, while the UGC can prescribe standards, deep institutional interventions—such as mandatory governance structures or appointment mechanisms—must remain sensitive to federal boundaries.

This tension becomes relevant to the 2026 Regulations, particularly provisions relating to Ombudspersons and centralised oversight, which may be viewed as extending beyond coordination into institutional control.

Proportionality as the Analytical Framework

The proportionality doctrine, articulated in Modern Dental College v. State of Madhya Pradesh, provides the governing test for evaluating restrictions affecting fundamental rights. The four-part test requires:

• A legitimate state aim
• A rational connection between means and objective
• Necessity (least restrictive alternative)
• Balancing between rights and public interest

The objective of eliminating discrimination in higher education clearly satisfies the legitimate aim requirement. However, constitutional difficulty arises at the stages of necessity and balancing.

• Necessity: Whether intrusive mechanisms such as Equity Squads, strict timelines, and penal sanctions were indispensable, especially when the alternative of strengthening the 2012 framework existed.
• Balancing: Whether the Regulations adequately protected procedural rights of the accused, given the absence of explicit safeguards and the potential for serious academic and reputational consequences.

Although not expressly applied in the interim order, the Court’s concerns regarding vagueness, misuse, and overreach reflect a proportionality-based critique in substance.

Substantive Equality and Asymmetric Protection

The doctrine of substantive equality, articulated in State of Kerala v. N.M. Thomas and later consolidated in Indra Sawhney v. Union of India, recognises that equality under the Constitution permits targeted protections for historically disadvantaged groups.

This doctrinal framework supports the rationale behind Clause 3(1)(c), which seeks to address caste-based discrimination as a structurally asymmetric phenomenon rooted in historical disadvantage.

However, the constitutional issue lies not in the legitimacy of such asymmetry, but in its statutory articulation. A regulatory framework must maintain clarity and avoid interpretive ambiguity. By combining a restrictive caste-specific definition with a broader general definition, the 2026 Regulations created uncertainty as to whether protections are inclusive or exclusionary in operation.

Thus, the challenge is one of drafting precision, not necessarily doctrinal validity.

Continuing Mandamus and the Implementation Imperative

The ongoing Tadvi proceedings exemplify the doctrine of continuing mandamus, through which the Supreme Court retains supervisory jurisdiction to ensure sustained enforcement of constitutional obligations.

Through successive directions, the Court has emphasised that formal regulatory frameworks are insufficient without effective implementation, particularly in cases involving systemic discrimination and student welfare.

This explains the shift toward a stricter enforcement model in the 2026 Regulations. At the same time, the interim stay clarifies a critical constitutional boundary:

enhanced enforcement must still comply with requirements of clarity, fairness, and proportionality.

The current legal position therefore reflects a dual mandate — strengthening institutional accountability while preserving constitutional safeguards.

Adversarial Stress Test: Constitutional Arguments in Conflict

To assess the robustness of the UGC Equity Regulations 2026, it is useful to evaluate them through an adversarial lens — testing how they would withstand sustained constitutional challenge before the Supreme Court of India. This reveals the gap between normative intent and drafting precision.

Constitutional Challenge to the Regulations

A challenge to the Regulations would primarily rest on Article 14, Article 21, and structural overreach:

Arbitrary Classification (Article 14)
Clause 3(1)(c) may be attacked as creating an impermissible sub-classification, since it defines caste-based discrimination based on the identity of the victim rather than the nature of the conduct. This risks failing the test of intelligible differentia and rational nexus.

Procedural Deficiency (Article 21)
The absence of explicit safeguards against false or malicious complaints, coupled with serious academic and reputational consequences, raises concerns regarding fairness and due process. The framework may be seen as disproportionately affecting the rights of the accused.

Segregation Risk (Clause 7(d))
Ambiguity in the language on allocation of students could be interpreted as permitting segregated hostels or academic groupings, undermining constitutional values of integration and fraternity.

Federal Overreach
Provisions relating to centralised oversight and appointment mechanisms (such as Ombudspersons) may be challenged as exceeding the UGC’s coordinating role and intruding into the domain of State-regulated institutions.

Defence of the Regulations

The defence would rely on substantive equality and administrative necessity:

Substantive Equality Justification
Drawing on State of Kerala v. N.M. Thomas and Indra Sawhney v. Union of India, it can be argued that caste-based discrimination is inherently asymmetric, and therefore requires targeted recognition. Clause 3(1)(c) reflects this reality and aligns with constitutional provisions such as Article 15(4).

No Denial of Remedy
The argument that non-reserved categories are left without remedy can be countered by pointing to Clause 3(1)(e), which provides a broad, universal protection against discrimination. The caste-specific clause is thus additive, not exclusionary.

Necessity of Strong Enforcement
Given the documented failure of the 2012 advisory framework, stricter mechanisms — including penalties and monitoring structures — may be justified as necessary to achieve effective compliance.

Synthesis: Intent vs Drafting

The adversarial analysis highlights a central conclusion:

• The objective of the Regulations is constitutionally legitimate
• However, their drafting lacks precision and internal coherence

Key vulnerabilities include:

• Ambiguity between Clauses 3(1)(c) and 3(1)(e)
• Poorly framed segregation provisions
• Absence of procedural safeguards
• Structural concerns around enforcement mechanisms

This disconnect between substantive equality goals and statutory clarity explains the interim intervention by the Supreme Court of India, which prioritised constitutional consistency over immediate enforcement.

Practical Case Scenarios and Interpretive Nuance

The suspension of the UGC Equity Regulations 2026 and the revival of the 2012 framework create a complex compliance landscape for universities. The following scenarios illustrate how key legal ambiguities operate in practice.

Scenario A: Reverse Discrimination Claims

Facts:
A general category student alleges exclusion from an academic project by OBC students, accompanied by caste-based remarks.

Under 2026 Regulations (Hypothetical):
The complaint would face interpretive difficulty, since Clause 3(1)(c) limits caste-based discrimination to SC/ST/OBC victims. The matter would likely be forced under Clause 3(1)(e), creating ambiguity about scope and applicability.

Under 2012 Regulations (Current Position):
The complaint can be examined without definitional barriers, as the framework broadly prohibits discrimination regardless of category.

Insight: The 2026 framework creates uncertainty where the 2012 framework remains procedurally clearer.

Scenario B: Affirmative Housing vs Segregation

Facts:
A university creates an optional residential facility for ST students to support first-generation learners.

Under 2026 Regulations (Hypothetical):
Clause 7(d) could be interpreted to prohibit or question such arrangements, as the line between supportive clustering and segregation is unclear.

Under 2012 Regulations:
Such arrangements may be defensible if they are voluntary, non-inferior, and welfare-oriented, consistent with substantive equality principles.

Insight: Drafting ambiguity risks discouraging even legitimate affirmative measures.

Scenario C: Ongoing Investigations During the Stay

Facts:
A complaint initiated under the 2026 framework remains pending after the Supreme Court stay.

Legal Position:
Proceedings must shift to the 2012 framework. Actions taken under the stayed Regulations may be legally vulnerable if continued.

Insight: Institutions must ensure procedural transition to avoid ultra vires actions.

Scenario D: Regional and Linguistic Discrimination

Facts:
A student faces harassment based on language, accent, and regional identity.

Under 2026 Regulations:
Only Clause 3(1)(e) may apply, as caste is not involved. The absence of explicit protection for language and ethnicity creates interpretive gaps.

Under 2012 Regulations:
The broader anti-discrimination approach allows the complaint to proceed, though explicit recognition remains limited.

Insight: Both frameworks inadequately address non-caste identity discrimination.

Scenario E: Ragging and Caste-Based Abuse

Facts:
A student is subjected to ragging involving caste-based humiliation.

Under 2026 Regulations:
The matter would require parallel proceedings — caste discrimination under equity rules and ragging under separate regulations.

Under 2012 Regulations:
The issue can be addressed within a single integrated framework, combining both aspects.

Insight: The removal of ragging from the equity framework creates fragmented enforcement.

Administrative and Strategic Impact on the 2026–2027 Academic Year

The stay of the UGC Equity Regulations 2026 and the revival of the 2012 framework create a transitional compliance environment for higher education institutions (HEIs). Universities must now balance legal continuity, administrative clarity, and campus stability.

Immediate Compliance Measures

Following the interim order of the Supreme Court of India, institutions should realign their governance structures with the 2012 Regulations:

• Institutional Bodies
  Suspend Equity Committees, Equity Squads, and Ombudspersons created under the 2026 framework. Reinstate the Anti-Discrimination Officer and Equal Opportunity Cell mechanisms.
• Policies and Documentation
  Update prospectuses, websites, and student handbooks to remove references to the 2026 Regulations and reflect current applicable procedures.
• Grievance Redressal
  Process all complaints strictly under the 2012 Regulations and anti-ragging framework, ensuring procedural consistency.
• Data and Reporting
  Continue maintaining detailed records of complaints and Action Taken Reports, as obligations under the Tadvi proceedings remain active.
• Federal Coordination
  State universities should align compliance with both UGC directives and State regulatory frameworks, particularly in areas of disciplinary and appellate authority.

Key takeaway: Compliance must reflect the currently operative legal regime, not the suspended framework.

Campus and Sociological Impact

The stay has triggered divergent responses across stakeholder groups.

• Advocates of stronger equity enforcement view the stay as a setback to reform
• Others see it as a necessary correction to overbroad or exclusionary provisions

This divergence creates a sensitive campus environment, requiring institutions to prioritise:

• Awareness and sensitisation programmes
• Mental health and counselling support
• Inclusive engagement across student groups

The absence of the 2026 framework does not dilute the institution’s constitutional responsibility toward equity and dignity.

Anticipating the Revised Framework

The direction to constitute a jurist committee indicates that the current position is temporary. A revised version of the Regulations is likely to address:

• Harmonisation of definitional provisions
• Inclusion of language and regional discrimination
• Clarification of segregation-related provisions
• Reintegration of ragging within the equity framework
• Recalibration of monitoring mechanisms (e.g., Equity Squads)
• Greater sensitivity to federal institutional structures

HEIs should maintain administrative flexibility, as the transition to a revised framework is likely to be mandatory and time-bound once notified.

Conclusion

The UGC Equity Regulations 2026 mark a shift toward enforceable equity in higher education, but their drafting deficiencies raised serious constitutional concerns.

The interim intervention by the Supreme Court of India restores balance by prioritising clarity, fairness, and proportionality, while keeping protections in place through the 2012 framework.

As the sector awaits a revised regime, universities must ensure compliance with existing rules while preparing for a framework that is likely to be more precise, balanced, and constitutionally robust.

FAQs:

1. What are the UGC Equity Regulations 2026?

The UGC Equity Regulations 2026 are a regulatory framework issued by the University Grants Commission to address discrimination in higher education institutions, introducing mandatory grievance mechanisms and penalties for non-compliance.

2. Why did the Supreme Court of India stay the 2026 Regulations?

The Court stayed the Regulations due to concerns about vagueness, definitional inconsistency, exclusionary drafting, and the risk of segregation, particularly in the treatment of caste-based discrimination.

3. Are the UGC Equity Regulations 2026 currently in force?

No. The Regulations are currently in abeyance following the Supreme Court’s interim order. The 2012 UGC Equity Regulations are presently applicable.

4. What is the issue with Clause 3(1)(c) of the 2026 Regulations?

Clause 3(1)(c) defines caste-based discrimination only for SC/ST/OBC communities, raising concerns that others may be excluded, leading to a potential Article 14 (equality) challenge.

5. How does the Supreme Court’s Article 142 order affect universities?

By invoking Article 142, the Court ensured that the 2012 framework continues to operate, preventing a regulatory vacuum while the validity of the 2026 Regulations is reviewed.

6. What is the difference between the 2012 and 2026 UGC Regulations?

• 2012 Regulations: Advisory, limited enforcement, integrated approach (including ragging)
• 2026 Regulations: Mandatory, penal framework with structured grievance mechanisms

7. Do the 2026 Regulations cover regional or linguistic discrimination?

Not explicitly. While broader provisions may apply, the Regulations do not clearly define protection based on language or ethnicity, which has been flagged as a gap.

8. What happens to complaints filed under the 2026 Regulations before the stay?

Such complaints should be processed under the 2012 framework, as the 2026 Regulations are currently not operative.

9. Will the UGC Equity Regulations 2026 be revised?

Yes. The Court has directed the formation of a jurist committee, and a revised framework addressing constitutional concerns is expected.

10. What should universities do during the interim period?

Universities must comply with the 2012 Regulations, maintain grievance redressal systems, and prepare for a revised regulatory framework.

The post UGC Equity Regulations 2026: Constitutional Scrutiny, the Supreme Court Stay, and Implications for Higher Education appeared first on Bhatt & Joshi Associates.

BACKGROUND AND LEGISLATIVE CONTEXT

The regulation of foreign contributions to civil society organisations, non-governmental organisations (NGOs), religious bodies, and charitable trusts in India has long occupied the intersection of national security, sovereignty, and constitutional freedoms. The Foreign Contribution (Regulation) Act, 2010 (the Act or FCRA 2010) replaced the original 1976 statute and established a consolidated regulatory framework requiring mandatory registration with the Ministry of Home Affairs (MHA), designation of a single FCRA bank account, restrictions on utilisation, and periodic renewal of registration every five years.

The Foreign Contribution (Regulation) Amendment Act, 2020 (FCRA 2020) significantly tightened this framework: it prohibited the sub-granting of foreign funds between registered NGOs, reduced the permissible administrative overhead from 50% to 20% of foreign receipts, and mandated that all foreign contributions be received exclusively at the New Delhi Main Branch of the State Bank of India. The constitutional validity of the 2020 amendments was challenged before the Supreme Court in Noel Harper & Ors. v. Union of India (2022), wherein a bench of three judges upheld all the challenged provisions — save a partial reading-down of the Aadhaar-only identification requirement — holding that the right to receive foreign contributions is not a fundamental right, and that restrictions aimed at national sovereignty satisfy the standard of reasonable restrictions under Article 19(2) of the Constitution.

Against this backdrop, the Union Cabinet approved the Foreign Contribution (Regulation) Amendment Bill, 2026 (the Bill or FCRA 2026) and it was introduced in the Lok Sabha on 25 March 2026 by the Minister of State for Home Affairs, Shri Nityanand Rai. The Bill was listed for passage on 2 April 2026 but was deferred following fierce opposition protests and significant political controversy in the election-bound State of Kerala. Sources indicate the Bill may be taken up in the Monsoon Session of Parliament.KEY PROVISIONS OF THE BILL

The Statement of Objects and Reasons of the Bill frames its intent as establishing a comprehensive statutory framework for vesting, supervision, management and disposal of foreign contribution and assets. In substance, the Bill effects the following structural changes to the FCRA 2010:

A. Creation of the Designated Authority

The most consequential innovation of the Bill is the establishment of a Designated Authority — an executive officer appointed by the Union Government under new Section 16A — vested with broad powers to take possession of, manage, transfer, and dispose of foreign contributions and assets created therefrom in specified circumstances. The Designated Authority is empowered to:

• Take provisional and/or permanent possession of foreign contributions and assets when an FCRA registration is cancelled, surrendered, or has ceased to be valid due to non-renewal or expiry;
• Undertake the management of the activities of the affected organisation;
• Transfer assets to a government department or sell them, with sale proceeds deposited into the Consolidated Fund of India;
• Direct key functionaries to provide complete access to accounts, records, and properties;
• Impose terms and conditions on the maintenance of assets and continued activities of the organisation.

Decisions of the Designated Authority are challengeable only before a court of law, not before any independent quasi-judicial authority. The Bill does not prescribe any compensation mechanism for assets transferred or sold, nor does it stipulate timelines within which the Authority must act.

B. Permanent Vesting of Assets on Cessation of Registration

Under the existing FCRA 2010, Section 15 provides for the vesting of assets upon cancellation of registration, but the absence of a comprehensive supervisory and disposal framework created administrative uncertainty. The Bill restructures this entirely through new Sections 14B and 16A. Upon automatic cessation of the FCRA certificate — triggered by failure to apply for renewal, rejection of the renewal application, or expiry of the validity period without renewal — the foreign contributions and all assets created partly or wholly from foreign contributions vest provisionally in the Designated Authority, and permanently if registration is not restored within the prescribed period.

A notable and legally significant feature of the Bill is the treatment of mixed-funding assets: if any asset is created or acquired partly from foreign contribution and partly from domestic sources, the entire asset vests in the Designated Authority upon loss of registration. This provision departs from ordinary principles of property law and raises serious concerns under Article 300A of the Constitution regarding fairness, proportionality, and the absence of adequate compensation.

C. Automatic Cessation of FCRA Registration

The new Section 14B introduces the concept of ‘cessation’ of an FCRA certificate — distinct from cancellation and surrender — which occurs automatically and without any adjudicatory process if: (i) the organisation fails to submit an application for renewal; (ii) the MHA rejects the renewal application; or (iii) the certificate is not renewed before its expiry date. Upon cessation, the organisation is immediately prohibited from receiving or utilising any foreign contribution.

This provision has attracted particular criticism from legal practitioners. The MHA has historically rejected renewal applications citing opaque ‘adverse inputs’ from field inquiries without disclosing specific grounds — often claiming national security exemptions under the Right to Information Act. The Supreme Court in September 2025 reprimanded the Union Government for refusing to renew the registrations of two NGOs on ‘technical grounds’ without any evidence of fund misuse. The cessation mechanism under the Foreign Contribution (Regulation) Amendment Bill, 2026, absent transparent procedural safeguards, risks institutionalising what the Supreme Court characterised as regulatory harassment.

D. Prohibition on Sub-Granting

Although the blanket prohibition on sub-granting was introduced by the FCRA 2020 and upheld in Noel Harper, the Foreign Contribution (Regulation) Amendment Bill, 2026 reinforces this mechanism by ensuring that NGOs receiving foreign funds must utilise those funds solely for the specific purpose for which they were received and may not transfer any portion to any other organisation. This dismantles the previously prevalent ‘proxy chain’ model where money would flow through a tier of registered organisations, obscuring the financial trail.

E. Real-Time Accountability and Time-Bound Utilisation

The Bill mandates that organisations must receive and utilise foreign contributions within prescribed timelines, preventing indefinite accumulation of foreign funds. Organisations are required to provide real-time financial reporting to authorities. The precise timelines are to be prescribed through executive rules — a feature that has drawn criticism for leaving critical compliance parameters outside the legislative framework and within the exclusive domain of executive discretion.

F. Restrictions During Suspension

Organisations whose FCRA registration is under suspension are prohibited from selling, transferring, mortgaging, or otherwise encumbering any asset created from foreign contributions without the prior approval of the Central Government. This effectively renders such organisations operationally and financially paralysed during the pendency of any regulatory inquiry, which may extend for indeterminate periods.

G. Centralisation of Investigative Oversight

The Bill mandates that no investigation under the FCRA can be initiated without the prior approval of the Central Government — a provision that applies to state governments as well. The government argues this prevents politically motivated investigations; critics contend it equally grants the Centre an absolute veto over all enforcement, potentially concentrating prosecutorial power in the hands of the ruling dispensation.

H. Expanded Definition of ‘Key Functionary’ and Personal Liability

The Bill substantially widens the definition of ‘key functionary’ to encompass all directors, partners, trustees, office-bearers, members of governing bodies, and any person with control over the management of the organisation. Offences by organisations are directly attributed to such key functionaries, subject to the defence of lack of knowledge or exercise of due diligence.

I. Rationalisation of Penalties

The Bill reduces the maximum term of imprisonment for FCRA offences from five years to one year, characterised by the government as a ‘rationalisation of penalties’ consistent with a compliance-oriented approach. Critics note that this reduction in criminal liability is more than offset by the dramatic expansion of civil and regulatory consequences — including permanent asset vesting — and the broadening of personal liability through the expanded key functionary definition.

III.  CONSTITUTIONAL AND LEGAL ANALYSIS

The Bill raises several significant constitutional questions that will almost certainly be tested before the courts, should it be enacted in its current form.

A. Article 300A — Right to Property

The permanent vesting of assets — particularly mixed-funding assets where only a portion was created from foreign contributions — in the Designated Authority without any compensation mechanism raises serious questions under Article 300A of the Constitution, which provides that no person shall be deprived of their property save by authority of law. While Article 300A does not guarantee compensation, the Supreme Court has held that arbitrary deprivation of property without a procedure that is just, fair, and reasonable can violate the overarching guarantee of due process under Article 21. The disproportionate vesting of entire mixed-funding assets may fail the proportionality standard developed in K.S. Puttaswamy v. Union of India (2017).

B. Article 19(1)(c) — Freedom of Association

The power of the Designated Authority under Section 16A(3) to ‘undertake the management of activities’ of an organisation whose assets are vested — effectively taking over the operations of a private civil society body — strikes at the core of the right to form associations under Article 19(1)(c). An association managed and directed by a government-appointed authority is, by any meaningful standard, no longer a private, autonomous, voluntary body. The question of whether such management takeover constitutes a ‘reasonable restriction’ within the meaning of Article 19(4) will require the courts to apply the doctrine of proportionality rigorously.

C. Article 14 — Equality and Arbitrariness

The requirement of prior Central Government approval before initiating any investigation introduces a structural risk of discriminatory enforcement. Selective initiation — or non-initiation — of investigations based on the political alignment or community character of an organisation could violate Article 14. Congress MP Manish Tewari has characterised the Bill as ‘arbitrary, malafide, and capricious’ and submitted that it violates Articles 14, 19, and 300A. The live question for courts will be whether the legislative scheme is capable of discriminatory application and whether procedural safeguards are adequate.

D. Judicial Precedent: Noel Harper v. Union of India (2022)

The Supreme Court in Noel Harper held that FCRA restrictions, even when stringent, can survive constitutional challenge provided they pursue the legitimate aim of protecting national sovereignty from foreign influence and impose restrictions proportional to that aim. The Court expressly held that receipt of foreign donations went against ‘constitutional morality’ and that organisations have no ‘absolute or even vested right to receive foreign donations.’ However, the 2026 Bill goes materially beyond the 2020 amendments upheld in Noel Harper by introducing asset vesting, management takeovers, and automatic cessation — mechanisms not considered in Noel Harper. New constitutional challenges are to be anticipated, and the outcome will depend critically on whether courts find the new provisions proportional.

IV. POLITICAL CONTEXT AND LEGISLATIVE TRAJECTORY

The Bill’s introduction on 25 March 2026, days before the Kerala Assembly elections scheduled for April-May 2026, has immersed it in intense political controversy. Kerala is home to a vast network of Christian-run educational and healthcare institutions substantially reliant on foreign funding. The Catholic Bishops’ Conference of India (CBCI) described the Bill as ‘dangerous’ and ‘alarming,’ warning of executive overreach into minority institutions. The Kerala Chief Minister wrote to the Prime Minister demanding withdrawal of the Bill, citing risks to religious charitable organisations and democratic governance.

Opposition parties — including the Indian National Congress and the CPI(M) — staged protests in Parliament House, disrupting proceedings and forcing the Parliamentary Affairs Minister, Shri Kiren Rijiju, to announce on 2 April 2026 that the Bill would not be taken up for passage in the Budget Session. The Bill may now be brought before Parliament during the Monsoon Session. The government has consistently maintained that the Bill is religion-neutral and directed solely at ensuring transparency and accountability, with senior BJP leaders dismissing allegations of minority targeting as ‘completely false, fabricated and misleading.’

The regulatory trajectory over the preceding decade provides important context. Nearly 22,000 NGO registrations have been cancelled or expired since 2014 — reducing the number of registered FCRA organisations from over 40,000 to approximately 15,000. The Foreign Contribution (Regulation) Amendment Bill 2026, if enacted, would institutionalise and further entrench this direction of regulatory contraction.

V. COMPARATIVE REGULATORY FRAMEWORK

India’s foreign funding regulatory architecture is frequently compared to analogous regimes in other jurisdictions. The table below summarises key comparative dimensions:

India’s objective — protecting national sovereignty from covert foreign influence — is shared by major democracies. However, the mechanisms employed by the FCRA 2026 Bill are substantially more coercive than those of comparable liberal democracies. The US Foreign Agents Registration Act (FARA) focuses exclusively on disclosure without prohibiting the receipt of foreign funds or authorising asset confiscation. India’s approach is closer in structure to the Russian foreign agents law, though with significant constitutional constraints that the Russian framework lacks.

VI. COMPLIANCE IMPLICATIONS AND ADVISORY NOTES

Pending the enactment of the Bill — anticipated in the Monsoon Session of Parliament — all FCRA-registered organisations, their key functionaries, foreign donors, and associated legal counsel should take note of the following advisory points:

• Renewal Timeliness: Under proposed Section 14B, cessation of registration is automatic upon non-renewal. Organisations should ensure renewal applications are filed well in advance of expiry, with all documentation complete, to avoid triggering automatic cessation and consequent asset vesting.
• Asset Audit: Organisations holding assets created from foreign contributions — including immovable property, vehicles, equipment, and bank balances — should conduct comprehensive asset audits to quantify exposure, particularly for mixed-funding assets that could be wholly vested.
• Key Functionary Liability: Directors, trustees, partners, and governing body members should obtain independent legal advice regarding personal liability under the expanded definition and implement robust internal compliance frameworks.
• Sub-Grant Review: All existing sub-grant arrangements should be reviewed for compliance with the absolute prohibition on fund transfer. Internal fund flows that may be characterised as sub-grants should be restructured.
• Legal Challenge Preparedness: Organisations whose assets may be at risk should evaluate constitutional grounds for challenge under Articles 14, 19(1)(c), and 300A, and assess legal remedies available before High Courts and the Supreme Court.
• Regulatory Engagement: Foreign donors and international bodies should engage proactively with Indian grantees to understand compliance risk and consider restructuring grant agreements accordingly.
• Documentary Trail: Maintain meticulous documentation of the source and purpose of every foreign contribution, and preserve records distinguishing foreign contribution-funded assets from domestically funded assets.

VII.  CONCLUSION

The Foreign Contribution (Regulation) Amendment Bill, 2026 represents a paradigm shift in India’s regulatory posture toward foreign-funded civil society — from a framework centred on monitoring, disclosure, and compliance to one centred on asset control, executive authority, and deterrence. The policy rationale — shielding India’s sovereignty from covert foreign influence through fifth-generation warfare tactics — reflects genuine and recognised national security concerns. India is not alone in recognising the destabilising potential of opaque foreign funding of domestic actors; multiple democracies have enacted analogous frameworks.

However, the specific architecture of the Bill — particularly the absence of an independent appellate mechanism, the disproportionate treatment of mixed-funding assets, the opacity of the cessation trigger, the management takeover power of the Designated Authority, and the centralisation of investigative oversight — raises legitimate constitutional questions that the courts will need to adjudicate. The deferred passage of the Bill provides an important legislative window for incorporating procedural safeguards, transparent timelines, a compensation framework for property vesting, and an independent review mechanism — reforms that would strengthen both the constitutionality of the legislation and public trust in its administration.

Until the legislative position is finalised, FCRA-registered organisations and their functionaries are advised to engage proactively with legal counsel to assess exposure and prepare compliance strategies robust under both the existing Act and the proposed amendments.

The post India’s Foreign Contribution (Regulation) Amendment Bill, 2026 appeared first on Bhatt & Joshi Associates.

At the crossroads of bodily autonomy, religious freedom, and constitutional morality lies one of the most legally complex and socially charged questions in contemporary Indian jurisprudence: whether the practice of khatna, or female circumcision, as performed on minor girls within the Dawoodi Bohra community, can survive constitutional scrutiny under Articles 14, 15, and 21 of the Constitution of India, or whether it finds shelter under the religious freedom guarantees of Article 25. The World Health Organization defines female genital mutilation as encompassing “all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” [1] That definition, which is internationally accepted, sits at the very heart of the ongoing petition before the Supreme Court of India — a petition that has forced the judiciary to confront not only the limits of religious freedom but also the State’s constitutional duty to protect the dignity and bodily integrity of its most vulnerable citizens.

The Dawoodi Bohra community is a sub-sect of Shia Islam, concentrated largely in Maharashtra, Gujarat, Rajasthan, Kerala, and Telangana. Within this community, khatna — also referred to as khafz or khafd — is performed on girls typically between the ages of six and seven, and involves the partial or complete removal of the clitoral hood. The stated rationale is to achieve taharat, or ritual purity, by excising what community tradition describes as an “immoral lump of flesh” thought to obstruct spiritual cleanliness. The practice is not mentioned in the Quran and is not endorsed by the mainstream Islamic scholarly consensus. Its doctrinal basis within the Bohra community rests primarily on Daim al-Islam, a religious text specific to the Fatimid school of Islam followed by the Bohras. [2] This distinction is critical because it directly bears upon whether khatna qualifies as an “essential religious practice” entitled to constitutional protection.

The Constitutional Framework: Articles 25 and 26

Article 25(1) of the Constitution of India declares that “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” However, this right is explicitly conditioned by internal qualifications. The article itself provides that the right is “subject to public order, morality and health and to the other provisions of this Part.” Article 25(2)(b) goes further, expressly permitting the State to make law “providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.” While this specific sub-clause addresses Hindu institutions, the broader principle — that the constitutional guarantee of religious freedom is not absolute — pervades the entire framework of Part III. Article 26, which protects the rights of religious denominations to manage their own religious affairs, is similarly subject to the same qualifications of public order, morality, and health.

The question of what constitutes a practice deserving protection under Article 25 has historically been answered through the doctrine of essential religious practices, first formulated by a seven-judge bench in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954 AIR 282). [9] The Court held that the term “religion” is not limited to doctrines or beliefs alone, but extends to rituals and observances. Crucially, it established that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” This observation seeded the essential religious practices test: only those practices fundamental to a religion, to the extent that their removal would fundamentally alter its character, deserve constitutional protection. Optional or peripheral practices do not qualify. In State of West Bengal v. Ashutosh Lahiri, the Supreme Court held that the slaughter of a cow for religious purposes does not form an essential element of the Muslim religion, and that an optional practice cannot seek shelter under Article 25. The same logic has been extended to a wide range of contested customs.

Sunita Tiwari v. Union of India: The Petition That Changed the Conversation

In April 2017, Delhi-based human rights advocate Sunita Tiwari filed Writ Petition (Civil) No. 286 of 2017 before the Supreme Court of India under Article 32, seeking a complete ban on the practice of khatna within the Dawoodi Bohra community. [8] The petition argued that the practice constitutes a gross violation of Articles 14, 15, and 21 of the Constitution, which protect the right to equality, prohibition of discrimination on grounds of sex, and the right to life and personal liberty respectively. It further invoked the United Nations Convention on the Rights of the Child, to which India is a signatory, as well as the Universal Declaration of Human Rights of 1948. The petition alleged that approximately 75 per cent of women in the Dawoodi Bohra community had been subjected to this procedure and called upon the State to discharge its constitutional duty under Article 39 to protect the person and well-being of citizens. The petitioner drew attention to the fact that the practice causes “permanent disfiguration to the body of a girl child” and that it is illegal in several countries including the United States, Australia, and the United Kingdom.

The Dawoodi Bohra Women’s Association for Religious Freedom (DBWRF), which claimed to represent over 70,000 community women, filed counter-affidavits contesting the petition vigorously. Senior Advocate Abhishek Manu Singhvi, appearing for the DBWRF, argued that the practice was over 1,400 years old, that it was an essential religious practice within the Fatimid school of Islam, and that any judicial ban would accordingly constitute an unconstitutional interference with the community’s right to freedom of religion under Articles 25 and 26. He further argued that because male circumcision is similarly practised within the community, treating female circumcision differently would itself violate Article 14. [2]

The Supreme Court bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud, while hearing the matter on 27 August 2018, made a series of sharply critical observations. The bench remarked that “this kind of mutilation leaves a permanent emotional and mental scar on small girls,” and added: “you just cannot inflict any kind of injury to another person.” The bench also referred to Article 25(2) and noted that it “enabled the State to make law and if the State does not make the statute, even then on the ground of ‘public order, morality and health’ the practice of FGM can be scrutinised by the court.” The bench was categorical that “the fact that the practice is essential religious practice does not make it constitutional.” [4]

On 24 September 2018, the three-judge bench formally referred the question of the constitutionality of khatna to a larger five-judge Constitution Bench. [8] The order of that date in Sunita Tiwari v. Union of India, WP(C) No. 286/2017, observed that “regard being had to the nature of the case, the impact on the religious sect and many other concomitant factors, we think it apposite not to frame questions which shall be addressed by the larger Bench,” and directed that the matter be considered in its entirety from all perspectives.

The Sabarimala Overlay and the Seven-Judge Constitution Bench

The trajectory of the FGM petition became significantly more complicated in November 2019. While hearing review petitions in the Sabarimala matter — Indian Young Lawyers Association v. State of Kerala, (2018) 10 SCC 689 [5] — the Supreme Court ordered that several pending cases involving gender and religious freedom, including the Sunita Tiwari petition, be referred to a seven-judge Constitution Bench. The majority in the review proceedings explicitly stated that “the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque…of Parsi Women married to a non-Parsi in the Agyari…and including the practice of female genital mutilation in Dawoodi Bohra community…may be overlapping and covered by the judgment under review.” The seven-judge bench is, as of writing, yet to take up the consolidated hearing.

The Sabarimala judgment itself, delivered on 28 September 2018 by a four-to-one majority, is foundational to the pending FGM question. The majority held that the exclusion of women between the ages of ten and fifty from the Sabarimala temple was not an essential religious practice within Hinduism — there being no scriptural evidence that the exclusion was fundamental to the religion — and that “constitutional morality must prevail over social morality.” The Court’s reasoning, that practices grounded in biological distinctions and notions of ritual purity cannot override constitutional guarantees of equality and dignity, applies with even greater force to khatna, which involves permanent physical alteration of a child’s body. Justice D.Y. Chandrachud’s observation that “Dignity of the individual is the unwavering premise of the fundamental rights” carried unmistakable resonance for the FGM question. [5]

Female Genital Mutilation Through the Lens of Fundamental Rights

The constitutional challenge to khatna operates across multiple intersecting provisions of Part III. Article 21, as interpreted through post-Maneka Gandhi jurisprudence, encompasses not merely the right to life in a narrow biological sense but the right to live with dignity, bodily integrity, and freedom from unwanted physical intrusion. The Supreme Court’s nine-judge bench in Justice K.S. Puttaswamy (Retd.) v. Union of India, decided on 24 August 2017, [6] declared the right to privacy to be a fundamental right under Articles 14, 19, and 21 of the Constitution. The judgment held that “privacy recognises the ability of individuals to control vital aspects of their lives” and that the “autonomy of the individual and the right of every person to make essential choices which affect the course of life” lie at its core. The judgment expressly categorised “bodily privacy” — defined as the ability to prevent others from violating one’s body — as a primary type of privacy interest. Since khatna is performed on minor girls aged six to seven without their consent, it constitutes precisely the kind of violation of bodily privacy that Puttaswamy guards against.

Article 14 guarantees equality before law and equal protection of law. The petition argues that khatna is inherently discriminatory: it is performed exclusively on female children with the stated aim of controlling their sexuality, while no comparable tissue-removing procedure is performed on male children for the same purpose. Article 15(1), which prohibits the State from discriminating against any citizen on grounds of sex, would, if engaged, render any State inaction that effectively permits FGM constitutionally suspect. The petition also presses Article 21 in tandem with Article 15, arguing that the constitutional guarantee of life with dignity demands that the State act — legislatively or otherwise — to prevent a practice that mutilates the bodies of girls based on their sex.

Existing Statutory Framework and Its Application to Female Genital Mutilation

India does not have specific legislation criminalising female genital mutilation. This lacuna has meant that the practice has persisted without direct legal prohibition. However, several existing statutory provisions are capable of being applied to Female Genital Mutilation as a matter of interpretation.

The Protection of Children from Sexual Offences Act, 2012 (POCSO) applies to all persons below the age of eighteen. Section 7 criminalises “sexual assault” and provides that “whoever, with sexual intent touches the vagina, penis, anus or breast of the child” commits sexual assault, an offence punishable with a minimum of three years’ imprisonment under Section 8. [7] Legal commentators have argued that khatna — which involves the deliberate cutting of the genitalia of minor girls — may fall within the scope of Section 7, and that the aggravating circumstances present (performed without the child’s consent, causing permanent physical injury) may attract the provisions of aggravated sexual assault under Sections 9 and 10 of the Act. The POCSO Act was enacted in recognition of India’s obligations under the UN Convention on the Rights of the Child and reflects a legislative intent to protect children from all forms of bodily harm involving their genitalia.

The Indian Penal Code, 1860 also provides potential avenues of prosecution. Section 319 defines “hurt” as the causing of bodily pain, disease, or infirmity to any person, while Section 320 defines “grievous hurt” to include the permanent disfiguration of the head or face. Since khatna involves the removal of a part of the body and leaves the child with a permanent alteration, a strong argument exists that it constitutes “grievous hurt” under Section 320, punishable under Section 325 with imprisonment of up to seven years, and under Section 326 where the grievous hurt is caused by means of an instrument. The petition before the Supreme Court specifically sought directions to the Director Generals of State Police to invoke these provisions of the IPC in the absence of dedicated legislation.

Internationally, the contrast is stark. Australia’s first FGM prosecution in the case of R v. A2; R v. KM; R v. Vaziri resulted in the conviction of a retired nurse and a mother belonging to the Dawoodi Bohra community under Section 45 of the Crimes Act, 1900 (NSW), with the court holding that khatna falls squarely within the legal definition of FGM. [3] Following the conviction, the Anjuman-e-Burhani Trust of Sydney conceded that the practice constituted a crime. That concession from within the community — in a jurisdiction where the law was clear — is itself significant.

The Essential Religious Practices Test Applied to Khatna

The most pivotal legal question is whether khatna satisfies the essential religious practices test so as to claim the protection of Article 25. The test, refined through decades of judicial interpretation following Shirur Mutt, requires the court to determine whether the absence of the practice would “fundamentally alter the religion.” The Dawoodi Bohra community argues that khatna is mandated by Daim al-Islam, is over fourteen centuries old within their tradition, and is observed as a matter of religious obligation, thereby satisfying the essentiality criterion.

The counter-argument carries far greater constitutional weight. The Quran — the primary source of Islamic law — makes no reference to female circumcision. Islamic scholarly opinion from across the world broadly rejects the practice as having no Quranic foundation. The practice is banned in several Muslim-majority countries. The Supreme Court’s clear signal during the August 2018 hearing — that essentiality alone does not make a practice constitutional — reflects the growing jurisprudential position that Article 25 cannot be used as a shield for practices that harm the bodies of non-consenting children. The bench drew the explicit analogy of sati and devadasi, both once defended as essential religious obligations and both ultimately abolished. [4]

Constitutional morality, as powerfully articulated in Sabarimala, provides the decisive normative frame. Even where a practice is genuinely embedded in religious tradition, it must conform to the values of equality, dignity, and non-discrimination that the Constitution mandates. A practice that structurally subjugates women — by removing part of their genitalia without consent, in childhood, for the purpose of suppressing their sexuality — is quintessentially in conflict with the constitutional commitment to the dignity of women under Article 21 and the directive of Article 51A(e) to renounce practices derogatory to the dignity of women.

The Path Forward: Legislative and Judicial Imperatives

The matter pending before the seven-judge Constitution Bench will likely shape India’s approach to the intersection of religion and bodily rights for a generation. The court will be called upon to settle foundational questions: whether constitutional morality trumps popular religious morality where the two conflict; whether the essential religious practices test requires reform or abandonment; and whether the right to privacy and bodily autonomy of a minor can ever be abridged on the basis of parental religious belief. At the UN Human Rights Council’s Universal Periodic Review in 2022, Costa Rica recommended that India criminalise FGM and formulate a national eradication plan. India’s response has remained non-committal.

The government’s obligations, as argued by Attorney General K.K. Venugopal during the initial hearings, are clear: the State is bound by Article 25(2) to regulate practices that run counter to public order, morality, and health, and FGM meets all three criteria. [2] The Women and Child Development Ministry’s on-record position — that no official data from the National Crime Records Bureau confirmed the prevalence of FGM in India — has been criticised as reflecting institutional neglect rather than factual absence. Without a specific statute criminalising the practice, prosecution under the IPC and POCSO remains uncertain, dependent on judicial interpretation rather than clear statutory mandate. The enactment of a dedicated FGM prohibition law, along the lines of those in force in the United Kingdom (Female Genital Mutilation Act 2003) and the United States (18 U.S.C. § 116), would place India in conformity with international human rights norms and discharge its obligations under the UN Convention on the Rights of the Child.

Conclusion

The legal journey of khatna from a closely guarded community secret to a question before a seven-judge Constitution Bench reflects the deep and unresolved tension in Indian constitutional democracy between the claims of religious community and the rights of the individual — particularly the female child who bears, on her body and in her memory, the weight of a practice she had no power to refuse. The constitutional provisions are not silent. Article 25’s guarantee of religious freedom is bounded, explicitly and by design, by public order, morality, and health. The doctrine of essential religious practices does not immunise a practice from constitutional challenge; it only establishes a threshold question. And beyond that threshold lies constitutional morality — a morality that demands religion not be used as a vehicle to perpetuate the subordination of women and the violation of children. It is that question, framed with precision by the facts of Sunita Tiwari v. Union of India, that the Constitution Bench must now definitively answer.

References

[1] World Health Organization, “Female Genital Mutilation: Key Facts” (February 2020) — https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation

[2] Supreme Court Observer, “Ban on Female Genital Mutilation — Sunita Tiwari v. Union of India (Case Background)” — https://www.scobserver.in/cases/sunita-tiwari-union-of-india-ban-on-female-genital-mutilation-case-background/

[3] Law School Policy Review, “Examining the Constitutionality of Female Genital Mutilation in India” (December 21, 2022) — https://lawschoolpolicyreview.com/2022/12/21/examining-the-constitutionality-of-female-genital-mutilation-in-india/

[4] Business Standard / PTI, “FGM Leaves Permanent Emotional Scar on Dawoodi Bohra Girls: SC” (August 27, 2018) — https://www.business-standard.com/article/pti-stories/fgm-leaves-permanent-emotional-scar-on-dawoodi-bohra-girls-sc-118082701011_1.html

[5] Supreme Court Observer, “Sabarimala Temple Entry — Indian Young Lawyers Association v. State of Kerala (Case Background)” — https://www.scobserver.in/cases/indian-young-lawyers-association-v-state-of-kerala-sabarimala-temple-entry-background/

[6] Supreme Court Observer, “Fundamental Right to Privacy — Justice K.S. Puttaswamy v. Union of India (Case Background)” — https://www.scobserver.in/cases/puttaswamy-v-union-of-india-fundamental-right-to-privacy-case-background/

[7] LSE Human Rights Blog, “Female Genital Mutilation/Cutting in India: An Urgent Need for Intervention” (May 6, 2022) — https://blogs.lse.ac.uk/humanrights/2022/05/06/female-genital-mutilation-cutting-in-india-an-urgent-need-for-intervention/

[8] Indian Kanoon, Sunita Tiwari v. Union of India, WP(C) No. 286/2017, Order dated 24 September 2018 (Supreme Court of India) — https://indiankanoon.org/doc/181206322/

[9] Indian Kanoon, The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282 — https://indiankanoon.org/doc/1430396/

The post Female Genital Mutilation as a Constitutional Question: FGM, Dawoodi Bohras, and the Limits of Article 25 appeared first on Bhatt & Joshi Associates.

On February 17, 2026, a three-judge bench of the Supreme Court comprising Chief Justice Surya Kant, Justice Joymalya Bagchi, and Justice Vipul M. Pancholi issued a procedural order setting in motion what may become the most consequential constitutional adjudication on religion in independent India [1]. The Court directed that a nine-judge Constitution Bench would commence hearings from April 7, 2026, to conclusively determine seven questions about the scope of religious freedom under the Constitution — questions that have festered, unresolved, for over six years. The matter arises from a batch of 66 petitions tagged to the review of the Supreme Court’s September 28, 2018 judgment in Indian Young Lawyers Association v. State of Kerala, (2018) 10 SCC 689, which had struck down the exclusion of women of menstruating age from the Sabarimala temple in Kerala.

The April 2026 hearings are not merely a second look at who can enter a single hill-shrine. They represent a structured judicial effort to revisit, and perhaps fundamentally reconstitute, the Essential Religious Practices (ERP) test — the tool that courts use to decide which religious customs deserve constitutional protection and which do not. That test, born in 1954 and applied inconsistently for seven decades, is finally being subjected to the scrutiny of the largest bench ever assembled in India for a religion-law question. The outcome will affect not just Hindus at Sabarimala, but Muslim women seeking entry into mosques and dargahs, Parsi women married outside the community who have been barred from Agyaris (fire temples), and the Dawoodi Bohra community’s contested practice of female genital mutilation — all of which are tagged to this reference [1].

The Origins of the ERP Test: The Shirur Mutt Case and the Doctrine of Essentiality

To understand why April 2026 matters, one must begin in 1954. In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 [2], a seven-judge bench of the Supreme Court confronted the Madras Hindu Religious and Charitable Endowments Act, 1951, which gave state authorities sweeping powers over the management and finances of Hindu religious institutions. The Shirur Mutt — one of the eight Udupi maths founded by Shri Madhvacharya — challenged this Act as a violation of the constitutional guarantees of religious freedom.

Justice B.K. Mukherjea, writing for the bench, formulated what became the cornerstone of Indian religious liberty jurisprudence. He held that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” The court further drew a clear distinction between the religious and the secular, observing that “what Article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.” This formulation — handed down almost as an aside in a case about institutional finance — became the essential religious practices test: courts would look into religious doctrine and decide which practices were “integral” enough to deserve constitutional shelter.

Seven years later, in Durgah Committee, Ajmer v. Syed Hussain Ali, 1961 AIR 1402 [3], the Supreme Court applied the ERP doctrine in a Muslim context while cautioning against treating every observed practice as automatically essential. The bench noted that practices of a merely “accretive or historical character” — not rooted in the core tenets of the faith — would not be entitled to the protection that Articles 25 and 26 of the Constitution of India provide. In doing so, the court introduced a tension it had not resolved: if judges themselves must decide what is “essential” to a religion, are they doing law or theology? This unresolved conflict between the Shirur Mutt approach and the Durgah Committee caution is one of the formal legal questions now before the April 2026 nine-judge bench [8].

The Legal Framework: Articles 25, 26, and the Kerala Legislation

The constitutional provisions at the heart of this reference are Articles 25 and 26 of the Constitution of India. Article 25(1) provides that “subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” Article 25(2) carves out the state’s authority to regulate “economic, financial, political or other secular activity” associated with religious practice and, under sub-clause (b), to make laws providing for “social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”

Article 26 operates at the collective level. It provides that “subject to public order, morality and health, every religious denomination or any section thereof shall have the right — (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.” The phrase “manage its own affairs in matters of religion” is where the real tension lives, because what counts as “matters of religion” is precisely what the essential religious practices test is supposed to determine.

At the statutory level, the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, mandates that Hindu places of public worship shall be open to all sections and classes of Hindus. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, however, permitted the exclusion of women between the ages of 10 and 50 years from the Sabarimala temple on the basis of customary practice. The constitutional validity of Rule 3(b) formed the immediate trigger for the 2018 litigation, and the majority declared it unconstitutional as violating Articles 25(1) and 15(1) of the Constitution [4].

The 2018 Sabarimala Judgment: The Constitution Bench’s Holdings

In Indian Young Lawyers Association v. State of Kerala, (2018) 10 SCC 689 [4], a five-judge Constitution Bench held by a majority of 4:1 that the exclusion of women aged 10 to 50 years from the Sabarimala temple was unconstitutional. Chief Justice Dipak Misra, along with Justices R.F. Nariman, A.M. Khanwilkar, and D.Y. Chandrachud, held that the exclusionary practice did not constitute an “essential religious practice” under Article 25 and therefore could not be shielded from constitutional scrutiny. The majority further held that the devotees of Lord Ayyappa did not constitute a separate “religious denomination” within the meaning of Article 26 — meaning the Travancore Devaswom Board could not claim the denominational autonomy that Article 26(b) guarantees to manage religious affairs internally.

Applying the essential religious practices test, the majority concluded that there was no scriptural or theological basis establishing the exclusion of women as a core requirement of Ayyappa worship. It declared that “devotion cannot be subjected to gender discrimination” and struck down Rule 3(b) of the 1965 Rules as violative of Articles 25(1) and 15(1). Justice Chandrachud went further in his concurring opinion, characterising the exclusion as a form of untouchability prohibited under Article 17. Justice Indu Malhotra — the sole dissent and the only woman on the bench — disagreed fundamentally. She held that the devotees of Lord Ayyappa did satisfy the criteria for a religious denomination under Article 26, that the exclusion was a protected internal matter of religious practice, and that courts in a secular democracy should not pronounce on what is rational or necessary within a faith’s own theology.

The judgment triggered widespread protests across Kerala. Over 50 review petitions were filed in the Supreme Court by Kantaru Rajeevaru and others, challenging the majority’s application of the essential religious practices test as an overreach into territory that belongs to religious communities and their own doctrinal authorities [4].

From Review to Reference: The 2019 and 2020 Orders That Created the Nine-Judge Reference

In November 2019, the five-judge review bench led by Chief Justice Ranjan Gogoi — in Kantaru Rajeevaru v. Indian Young Lawyers Association [5] — issued a majority order by 3:2 referring the review petitions to a larger bench. The majority reasoned that the questions about the interplay between Articles 25 and 26, and the scope of the essential religious practices test, required authoritative resolution by a bench larger than seven judges. Three other pending disputes were tagged: petitions about Muslim women’s entry into mosques and dargahs, Parsi women married to non-Parsis seeking entry into Agyaris, and the challenge to female genital mutilation in the Dawoodi Bohra community. The 2019 order did not stay the 2018 judgment — the temple technically remained open to women of all ages — but kept the review petitions alive [5].

On February 10, 2020, a nine-judge bench constituted under Chief Justice S.A. Bobde — comprising Justices R. Banumathi, Ashok Bhushan, L. Nageswara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, R. Subhash Reddy, B.R. Gavai, and Surya Kant (now Chief Justice of India) — upheld the maintainability of the reference [5]. The bench formally framed seven questions for determination: (1) the scope and ambit of the right to freedom of religion under Article 25; (2) the interplay between Article 25 rights of persons and Article 26 rights of denominations; (3) whether Article 26 rights are subject to provisions of Part III beyond public order, morality, and health; (4) the scope and extent of the word “morality” in Articles 25 and 26 — and whether it means “constitutional morality”; (5) the extent of judicial review of religious practice under Article 25; (6) the meaning of “sections of Hindus” in Article 25(2)(b); and (7) whether a person outside a religious denomination can challenge its internal practices through a PIL. The 2020 bench then became dysfunctional — eight of its nine members retired before arguments could begin — and the matter lay dormant for six years [5][9].

April 2026: The Bench, the Schedule, and the Stakes

The February 2026 order provides for hearings beginning at 10:30 AM on April 7, 2026 [1][6]. Parties supporting the review of the 2018 judgment — including the Central Government, which through Solicitor General Tushar Mehta supported the review petitioners — are to be heard from April 7 to April 9. Parties opposing the review will argue from April 14 to April 16. Rejoinders are fixed for April 21, and the amicus curiae, Senior Advocate K. Parameshwar, is to make concluding submissions on April 22. All parties were directed to file written submissions before March 14, 2026. The final composition of the new nine-judge bench is to be notified separately through an administrative order of the Chief Justice [7].

The Central Government’s position in favour of review is politically and constitutionally significant. It signals federal executive alignment with those who argue that courts have overstepped in applying the ERP test to override a community’s own understanding of its theology. Whether the bench agrees — and how it balances judicial deference to religious communities against the Constitution’s equality guarantees — is the central question April 2026 will force it to answer.

The Seven Questions and Why Each One Matters

The seven questions framed in February 2020 are not merely academic. Each maps onto live controversies in how Indian courts have regulated religion, gender, and state power for seven decades. The first two questions — the individual scope of Article 25 and its interplay with Article 26 — go to the foundational architecture of religious freedom in India. The Constitution’s framers deliberately distinguished individual religious liberty from collective denominational autonomy, but seventy-five years of case law have produced a jurisprudence without a clear governing principle for when one overrides the other.

The fourth question on “constitutional morality” is the most philosophically charged. The 2018 majority, particularly Justice Chandrachud, argued that the “morality” in Articles 25 and 26 must mean constitutional morality — the values embedded in Part III — not the popular or religious morality of a community. This reasoning was deployed both in the triple talaq case of Shayara Bano v. Union of India, (2017) 9 SCC 1, and in the Sabarimala majority. If the nine-judge bench accepts this reading, it will fundamentally alter every religion-related claim: the constitutional text becomes the supreme arbiter of what a community may or may not practise. If it rejects this reading and holds that “morality” in Articles 25 and 26 retains a religious or community-specific meaning, courts would be required to show far greater deference to the internal norms of religious groups.

The seventh question — on standing in PIL — directly interrogates who gets to litigate religion before the Supreme Court. In the Sabarimala case, the petitioning lawyers’ association was not a body of Ayyappa devotees. If the nine-judge bench answers this question restrictively, it would significantly narrow access to courts in religion-related constitutional challenges going forward [8].

Implications Beyond Sabarimala: A Pan-India Reckoning

Because 66 matters across faiths are tagged to this reference, the April 2026 bench is conducting, in effect, a constitutional audit of gender-based religious exclusions across India. The Dawoodi Bohra case on female genital mutilation raises the question of whether the essential religious practices test can be used to invalidate a practice that involves bodily harm even when a community insists it is religiously mandated. The Muslim women’s mosque-entry petitions ask whether the Sabarimala reasoning on gender discrimination extends to non-Hindu religious contexts. The Parsi Agyari case raises questions about a demographically small community seeking to enforce an exclusion tied simultaneously to its ethnic and religious identity.

None of these disputes can be resolved without first settling what the ERP test actually requires. A stricter test — demanding textual and scriptural proof of essentiality — would likely invalidate many of these exclusions. A more deferential test — accepting a community’s own account of what is theologically essential — would likely protect many of them. The April 2026 bench must supply doctrine where there has been, for decades, only case-specific improvisation [8][9].

Conclusion: A Doctrine Sixty Years in the Making

Seven decades of the Essential Religious Practices Test have produced a jurisprudence that is simultaneously powerful and internally incoherent. Courts have used it to abolish instant triple talaq, to allow women into temples, to regulate temple archakas, and to limit public processions of certain sects — all in the name of deciding what is “essential” to a religion, which is a question most theologians would regard as beyond judicial competence. The April 2026 nine-judge bench offers the Supreme Court a rare opportunity to bring principled coherence to this domain: to draw defensible lines between constitutional review and theological intrusion, and to finally answer the question that Shirur Mutt opened in 1954 and Sabarimala reopened in 2018. When religion and constitutional rights collide in India, which framework governs — and how? The hearings begin April 7, 2026.

References

[1] Supreme Court Observer, “Sabarimala Review | Nine-judge Bench to commence arguments from 7 April 2026” (February 2026) — https://www.scobserver.in/reports/sabarimala-review-nine-judge-bench-to-commence-arguments-from-7-april-2026/

[2] Indian Kanoon, Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 — https://indiankanoon.org/doc/1430396/

[3] Indian Kanoon, The Durgah Committee, Ajmer v. Syed Hussain Ali and Others, 1961 AIR 1402 — https://indiankanoon.org/doc/1262157/

[4] Indian Kanoon, Indian Young Lawyers Association v. State of Kerala, W.P.(C) No. 373 of 2006 (decided 28 September 2018) — https://indiankanoon.org/doc/163639357/

[5] Indian Kanoon, Kantaru Rajeevaru v. Indian Young Lawyers Association, R.P.(C) No. 3358/2018, Order dated 10 February 2020 — https://indiankanoon.org/doc/125326128/

[6] Bar and Bench, “Supreme Court 9-Judge Bench to Hear Sabarimala Reference from April 7” (February 2026) — https://www.barandbench.com/news/litigation/supreme-court-9-judge-bench-to-hear-sabarimala-reference-from-april-7

[7] Live Law, “Supreme Court Sets Sabarimala Reference for Hearing from April 7 before 9-Judge Bench” (February 2026) — https://www.livelaw.in/top-stories/supreme-court-sabarimala-review-9-judge-bench-reference-dawoodi-bohra-parsi-muslim-women-entry-dargah-fire-temple-523254

[8] Supreme Court Observer, “Essential Religious Practices: Court in Review” (October 2023) — https://www.scobserver.in/journal/essential-religious-practices-court-in-review/

[9] Shardul Amarchand Mangaldas & Co, Case Note — Kantaru Rajeevaru v. Indian Young Lawyers Association (11 May 2020) — https://www.amsshardul.com/insight/constitutional-law/

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