The doctrine of adverse possession is a complex and often contentious principle in Indian property law. Rooted in the maxim that “the law assists those who are vigilant, not those who sleep over their rights,” it permits a trespasser or unauthorized occupant to acquire lawful ownership of a property if they occupy it continuously, exclusively, and openly for a statutorily defined period.

As real estate valuations escalate across India, claims of adverse possession have surged, leading to significant judicial scrutiny. By 2025-2026, the Supreme Court of India established stringent evidentiary thresholds and decisive rulings to prevent the misuse of this doctrine as a tool for property grabbing, particularly in landlord-tenant disputes. This publication provides a doctrinal and procedural analysis of the 12-year rule, the burden of proof, and the latest Supreme Court jurisprudence governing adverse possession.

The Statutory Framework: The 12-Year Rule

The legal foundation for adverse possession in India is anchored in the Limitation Act, 1963.

• Article 65: Provides the statutory limitation period for filing a suit for possession of immovable property based on title. The period is 12 years for private property.
• Article 112: Extends the limitation period to 30 years if the property is owned by the Government (State or Central).
• Section 27 (Extinguishment of Right): If the true and lawful owner fails to institute a suit for the recovery of possession within the prescribed 12-year (or 30-year) period, their legal right to the property is permanently extinguished, and the possessor acquires an absolute title by operation of law.

The clock for the 12-year period does not start merely when the occupant enters the property; it commences strictly when the possession of the occupant becomes “adverse” and openly hostile to the true owner.

The Evidentiary Threshold: Burden of Proof

The Indian judiciary views adverse possession with strict scrutiny. The burden of proof lies entirely and heavily upon the person claiming the right (the squatter or occupant). The true owner merely needs to prove their title (through registered deeds); they do not need to prove their possession.

To succeed in an adverse possession claim, the occupant must satisfy the classical requirements of nec vi, nec clam, nec precario (without force, without secrecy, without permission). The claimant must specifically plead and prove the following five elements:

1. Actual and Continuous: The possession must be actual, physical, and uninterrupted for the entire 12-year statutory period.
2. Exclusive: The claimant must exercise sole dominion over the property, excluding the true owner and the general public.
3. Hostile Animus (Animus Possidendi): The claimant must possess the property with the clear intention of holding it as an owner, in direct defiance of the true owner’s rights.
4. Open and Notorious: The possession cannot be secret or stealthy. It must be so visible and obvious that the true owner, exercising reasonable diligence, would be aware of it.
5. Date of Commencement: The claimant must definitively prove the exact date when their possession transformed into an adverse claim, as this triggers the limitation clock.

The Tenant vs. Owner Paradigm: The 2026 Supreme Court Ruling

Historically, long-term tenants have frequently attempted to claim ownership through adverse possession after occupying a property for several decades. This judicial gray area was definitively resolved by the Supreme Court in the landmark verdict of Jyoti Sharma vs. Vishnu Goyal.

The Supreme Court, comprising Justice J.K. Maheshwari and Justice K. Vinod Chandran, categorically ruled that a tenant can never become the owner of a rented property on the basis of adverse possession, irrespective of the length of their occupation.

Key Observations from the Judgment:

• Permissive Entry: The Court highlighted that a tenant’s entry into the property is inherently permissive (derived from a rent deed, lease, or oral permission of the landlord).
• Absence of Hostile Animus: Because the possession is based on the owner’s consent, it is fundamentally “permissive” and not “hostile.” Permissive possession, even if it continues for fifty years, cannot spontaneously mature into adverse possession.
• Estoppel: Under Section 116 of the Indian Evidence Act, 1872, a tenant is legally estopped from challenging the title of the landlord during the continuance of the tenancy. To claim adverse possession, a tenant would have to formally surrender the property to the landlord and subsequently re-enter it as an open trespasser.

This ruling operates as a massive victory for property owners, extinguishing frivolous ownership claims by multi-generational tenants.

The “Sword and Shield” Doctrine

Earlier jurisprudence often restricted adverse possession to a defensive plea—meaning an occupant could only use it as a “shield” to defend against an eviction suit filed by the owner.

However, subsequent Supreme Court clarifications have affirmed that adverse possession can also be wielded as a “sword.” A person who has successfully completed 12 years of continuous, hostile possession can proactively approach a Civil Court and file a suit seeking a Declaration of Title and a permanent injunction against the original owner. Once the prescriptive rights are perfected, the possessor is elevated to the status of an absolute owner for all legal purposes.

The Welfare State Exception: Government Claims Barred

Can the State claim adverse possession against its own citizens? Relying on the constitutional mandate of Article 300A(Right to Property), the Supreme Court (building upon the principles laid down in Vidya Devi v. State of H.P. and State of Haryana v. Mukesh Kumar) has firmly established that the State cannot act as a land grabber.

A welfare State cannot forcibly occupy a private citizen’s land, fail to pay statutory acquisition compensation, and subsequently hide behind the plea of adverse possession. Such actions are deemed a violation of fundamental human rights and the rule of law.

Conclusion and Risk Mitigation for Property Owners

The doctrine of adverse possession in India serves as a harsh penalty for negligent property owners. While the 2026 Supreme Court rulings firmly protect landlords from tenant-driven claims, owners of vacant plots, agricultural lands, and NRI investors remain highly vulnerable to trespassing syndicates.

To mitigate risk and arrest the 12-year limitation clock, property owners must maintain active vigilance: conducting periodic physical inspections, constructing boundary walls, updating municipal and revenue records, and immediately issuing formal legal notices or filing police complaints (under the Bharatiya Nyaya Sanhita) at the first instance of unauthorized occupation. Mere verbal objections do not stop the limitation clock; only the institution of a formal civil suit for eviction breaks the continuity of adverse possession.

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The enforcement of the Bharatiya Nyaya Sanhita, 2023 (BNS) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) on July 1, 2024, fundamentally restructured India’s criminal justice framework. In the domain of cyber crime—where digital footprints cross jurisdictional boundaries and financial fraud reaches unprecedented scales—the legal framework has become substantially more stringent. Investigating agencies now routinely invoke a matrix of provisions from both the Information Technology (IT) Act, 2000, and the newly enacted BNS. Consequently, bail jurisprudence in cyber crime cases has evolved from traditional principles of physical recovery to complex assessments of digital evidence tampering, transnational flight risks, and the newly defined thresholds of organized crime. This article provides a highly researched analysis of the emerging bail jurisprudence governing cyber offences under the IT Act and the BNS/BNSS framework as of mid-2026.

The Statutory Intersection: IT Act Vs. BNS

In contemporary cyber crime First Information Reports (FIRs), investigating agencies typically deploy a dual-statute approach. The specific provisions invoked directly dictate the rigor of the bail hearing:

• Identity Theft and Personation: Prosecuted concurrently under Section 66C/66D of the IT Act (punishable up to 3 years) and Section 319 of the BNS (Cheating by personation).
• Digital Financial Fraud (Phishing/UPI Frauds): Prosecuted under Section 318 of the BNS (Cheating), which carries a maximum punishment of up to 7 years.
• Electronic Forgery: Prosecuted under Sections 335 and 336 of the BNS (Forgery for the purpose of cheating), covering fabricated PDFs, forged emails, and altered digital records.

Historically, because IT Act offences (like Section 66D) carried lesser punishments and were often bailable, investigating agencies began heavily relying on IPC (now BNS) provisions to justify custodial interrogation and oppose regular bail applications.

The post Bail In Cyber Crime Cases: Emerging Jurisprudence Under The IT Act And BNS Provisions (Updated 2026) appeared first on Bhatt & Joshi Associates.

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.

Every time the Income Tax Department raises a demand on a taxpayer — or a taxpayer claims a deduction — the words of the Income Tax Act must be interpreted by someone: an Assessing Officer, a tribunal, or a court. How those words are read can mean the difference between a crore-rupee tax liability and a clean chit. This article is a complete, step-by-step guide to the rules courts apply when interpreting Indian income tax statutes. Whether you are a first-year law student, a practising advocate, or a chartered accountant, this article will help you understand the interpretive framework from the ground up.

1. Introduction: Why Interpretation Matters in Tax Law

The Income Tax Act, 1961 (replaced by the Income Tax Act, 2025 from 1 April 2026) is among the most litigated statutes in India. Income Tax Act interpretation is therefore one of the most consequential skills a tax professional can develop. Its provisions govern what income is taxable, at what rate, who can claim deductions, and what procedures must be followed. But statutes are written by human beings and no statute is ever perfectly clear. Words are ambiguous, situations change, and new fact patterns arise that Parliament never contemplated when it wrote the law.

This is where rules of statutory interpretation come in. These rules are not themselves written in the Income Tax Act — they are principles developed by courts over centuries of common law tradition and constitutional jurisprudence. Understanding them is essential for any tax professional, because the same provision can yield very different outcomes depending on which interpretive rule a court applies.

2. The Constitutional Foundation: Article 265

Any discussion of tax interpretation must begin with Article 265 of the Constitution of India, which provides: ‘No tax shall be levied or collected except by authority of law.’ This is the bedrock constitutional protection for every taxpayer in India.

This seemingly simple sentence has profound consequences for interpretation. It means:

• Only Parliament or a State Legislature can authorise the imposition of a tax — the executive cannot do so by mere notification or administrative order (Chhotabhai Jethabhai Patel & Co. v. Union of India, AIR 1962 SC 1006).
• Taxation must be accompanied by a clear method of computation. If the computation mechanism is absent or broken, the tax cannot be levied (CIT v. B.C. Srinivasa Setty, (1981) 2 SCC 460).
• Where ambiguity exists in a charging provision — a provision that creates the tax liability — the benefit of that ambiguity goes to the taxpayer. The government cannot tax what Parliament has not clearly authorised.
• Both the levy of tax and its collection must be backed by valid law. Unauthorized collection is as unconstitutional as unauthorized levy.

“No tax shall be levied or collected except by authority of law.” — Article 265, Constitution of India

This provision is the ultimate safeguard against arbitrary taxation. Every rule of interpretation in tax law flows from and must be consistent with this constitutional mandate.

3. The Three Categories of Tax Provisions

Before applying any rule of interpretation, you must first identify what type of provision you are dealing with. Indian courts have consistently recognised three broad categories, each attracting a different interpretive approach:

4. Rule 1: Strict Construction of Charging Provisions

The oldest and most fundamental rule in tax interpretation is that a charging provision — one that imposes a liability — must be strictly construed. If Parliament has not clearly said that a particular type of income or transaction shall be taxed, the courts will not extend the charging provision by analogy, implication, or liberal reading.

The classic articulation of this rule comes from Justice K.S. Hegde in CIT v. Vegetable Products Ltd., (1973) 88 ITR 192 (SC), where the Supreme Court held:

“If two reasonable constructions of a taxing provision are possible, that construction which is in favour of the assessee must be adopted.” — Justice K.S. Hegde, CIT v. Vegetable Products Ltd., (1973) 88 ITR 192 (SC)

This principle was reaffirmed in Pradip J. Mehta v. CIT, (2008) 300 ITR 231 (SC): ‘It is well settled that when two interpretations are possible, then invariably the Court would adopt the interpretation which is in favour of the tax payer and against the Revenue.’ This rule applies specifically and exclusively to charging provisions — sections that create the obligation to pay tax.

Why does this rule exist? Because the State’s power to deprive a citizen of property through taxation must rest on clear and explicit legal authority. Any expansion of that authority by interpretive creativity would violate Article 265 of the Constitution.

5. Rule 2: Strict Construction of Exemption Provisions — But Favouring Revenue

Here is where many practitioners — and even some courts — have gone wrong historically. There was a long-standing belief, based on the ratio in Sun Export Corporation, Bombay v. Collector of Customs, Bombay, (1997) 6 SCC 564, that if there is ambiguity in an exemption notification or provision, the benefit should go to the assessee.

This belief was definitively overturned by a Constitution Bench (five judges) of the Supreme Court in Commissioner of Customs (Import), Mumbai v. M/s. Dilip Kumar and Company & Ors., (2018) 9 SCC 1 (Civil Appeal No. 3327 of 2007, decided 30 July 2018). The Constitution Bench answered the reference as follows:

• Exemption notifications should be interpreted strictly.
• The burden of proving applicability rests on the assessee — the taxpayer must show that their case clearly falls within the exemption.
• When there is ambiguity in an exemption notification, the benefit of such ambiguity cannot be claimed by the assessee — it must be interpreted in favour of Revenue.
• The ratio in Sun Export case is not correct and all decisions taking a similar view stand overruled.

The Key Distinction:
Charging provision + Ambiguity → Benefit goes to ASSESSEE (protects from unauthorized taxation)
Exemption provision + Ambiguity → Benefit goes to REVENUE (prevents unwarranted loss to national exchequer)

Although Dilip Kumar arose under the Customs Act, 1962, courts have consistently applied it to the Income Tax Act, 1961 and the Income Tax Act, 2025.

The rationale: An exemption is a concession from the State. The State grants it willingly, but only to the extent it clearly does so. Extending an exemption through interpretive generosity would amount to a judge-made tax concession that Parliament never intended. This violates the principle of democratic accountability in fiscal legislation.

6. Rule 3: The Literal Rule — Read the Statute as Written

The first and primary rule of statutory interpretation in all areas of law — and particularly in tax law — is the literal rule: words must be given their plain, natural, and ordinary meaning. Tax statutes are not to be construed equitably or liberally. Courts ask: what do these words, read in their natural sense, mean?

The Supreme Court in PCIT-III, Bangalore v. M/s. Wipro Limited, Civil Appeal No. 1449 of 2022, decided 11 July 2022, applied this rule with full force. The Court held that the time limit under Section 10B(8) of the Income Tax Act, 1961 was to be read ‘literally’ — the words ‘before the due date for furnishing the return of income under Section 139(1)’ meant exactly that, and no extension of time would be implied.

7. Rule 4: The Purposive Rule — What Was Parliament Trying to Achieve?

When the literal rule gives an absurd, repugnant, or manifestly unjust result, courts may apply the purposive rule: reading the provision in light of the overall purpose and object of the statute. For this, courts look at:

• The Statement of Objects and Reasons of the amending Finance Act
• The Memorandum explaining the Finance Bill
• Parliamentary debates (Hansard) — though these are used with caution in Indian courts
• CBDT Circulars — which are binding on Revenue (though not on courts or assessees) per CIT v. P.V.A.L. Kulandagan Chettiar, (2004) 267 ITR 654 (SC)
• The overall scheme and structure of the Act as a whole

The purposive rule is particularly useful when a provision has been amended and the amendment creates a gap or inconsistency. In such cases, courts ask: what mischief was the amendment designed to remedy? (The ‘mischief rule’ or Heydon’s Case rule.)

8. Rule 5: Mandatory vs. Directory Provisions

One of the most practically important interpretive questions in income tax law is whether a provision is mandatory (requiring strict compliance, with non-compliance vitiating the action) or directory (requiring substantial compliance, with minor deviations not being fatal).

Indian courts apply a multi-factor test. The use of ‘shall’ or ‘may’ is not determinative — what matters is:

• Legislative intent: Does the statute intend strict compliance as a condition of validity?
• Purpose of the provision: Is the requirement designed to protect the assessee’s rights, or is it an administrative convenience?
• Consequence of non-compliance: Does the statute provide an explicit penalty or nullification for non-compliance?
• Prejudice: Would treating the provision as directory cause prejudice to any party?
• Nature of the right involved: Is the provision creating a substantive right, or is it purely procedural?

General Rule: Mandatory provisions require strict observance; non-compliance renders the action void.
Directory provisions require substantial compliance; minor deviations are condoned if the purpose of the provision is served.

— P.T. Rajan v. T.P.M. Sahir, (2003) 9 TMI 765 (Supreme Court of India)

In income tax, the Supreme Court has held that conditions attached to exemptions and deductions — such as the requirement to file a return or a declaration before a specified date — are mandatory. This is consistent with the Dilip Kumar rule: since exemptions are to be strictly construed, the conditions for claiming them must also be strictly complied with.

9. Rule 6: The Doctrine of Beneficial Interpretation

When a provision is enacted for the benefit of a class of persons — such as relief provisions for small taxpayers, agricultural income exemptions, or deductions for social causes — courts apply the doctrine of beneficial interpretation: the provision should be read broadly enough to serve its remedial or welfare purpose.

However, this doctrine has limits in tax law. Even a beneficial provision cannot be extended to cover a case that clearly falls outside its language. And after Dilip Kumar (2018), beneficial interpretation cannot override the rule that exemption provisions must be strictly construed.

10. The Income Tax Act, 2025: What Changes and What Does Not

The Income Tax Act, 2025 replaced the Income Tax Act, 1961 with effect from 1 April 2026. The 2025 Act reorganises the provisions into 23 simplified chapters, reduces the total number of sections from over 700 to 536, and eliminates alphabetical suffixes in section numbers (e.g., 80C, 80D are renumbered sequentially).

Critically, the interpretive principles discussed in this article are not codified in the Income Tax Act itself — they are common law rules developed by courts. These rules therefore carry forward into the new Act. Judgments decided under the 1961 Act remain binding precedents for the interpretation of equivalent provisions in the 2025 Act.

11. Quick Reference: All Six Rules at a Glance

12. Practical Takeaways for Every Reader

• If you are claiming a deduction or exemption, read the eligibility conditions literally. Courts will not excuse non-compliance with conditions on grounds of substantial compliance — particularly after PCIT v. Wipro (2022).
• If Revenue is trying to tax something, ask whether the charging provision clearly covers the situation. If there is genuine doubt, the benefit goes to you — but this applies only to charging provisions, not exemptions.
• If a provision contains the word ‘shall’ along with a specific deadline, treat it as mandatory unless there is strong contrary indication. Do not assume ‘shall’ is directory.
• CBDT Circulars can be used in your favour. The Supreme Court has confirmed that Departmental circulars are binding on Revenue, even if they grant a benefit not contemplated by the Act.
• The Income Tax Act, 2025 has renumbered sections, but the law itself has not changed. All Supreme Court and High Court precedents decided under the 1961 Act continue to apply.

13. Conclusion

Statutory interpretation is not an abstract academic exercise — in income tax law, it is a matter of concrete money. The rules discussed in this article form the framework within which every income tax dispute is resolved. Understanding the distinction between charging provisions, exemption provisions, and procedural requirements — and which interpretive rule applies to each — is the first essential step for any practitioner or taxpayer navigating India’s income tax system.

The Income Tax Act, 2025 represents a significant structural modernisation, but the interpretive principles forged by decades of Supreme Court jurisprudence remain fully operative. Income Tax Act interpretation, in this sense, is a living discipline — shaped by constitutional values, common law tradition, and evolving judicial reasoning. The constitutional bedrock of Article 265 continues to guarantee that no citizen shall be taxed except by clear authority of law — and no concession shall be extended beyond what Parliament has clearly granted.

Frequently Asked Questions (FAQs)

1. What is statutory interpretation under the Income Tax Act?
   Statutory interpretation under the Income Tax Act refers to the legal principles courts use to understand and apply tax provisions when the wording of the law is unclear, ambiguous, or disputed.
2. What is the rule of strict interpretation in tax law?
   The rule of strict interpretation means that taxing provisions must be read narrowly. If a charging section is ambiguous, the benefit generally goes to the taxpayer.
3. What happens when there is ambiguity in an exemption provision?
   After the Supreme Court’s decision in Commissioner of Customs (Import) v. Dilip Kumar & Co., ambiguity in exemption provisions is interpreted in favour of the Revenue, not the taxpayer.
4. What is Article 265 of the Constitution of India?
   Article 265 of the Constitution of India states that no tax shall be levied or collected except by authority of law, protecting taxpayers from arbitrary taxation.
5. What is the literal rule of interpretation in income tax law?
   The literal rule requires courts to apply the plain and ordinary meaning of the words used in the statute when the language is clear.
6. What is the purposive rule in tax interpretation?
   The purposive rule allows courts to interpret tax provisions based on the intention of Parliament when a literal reading leads to absurd or unjust results.
7. Are CBDT circulars binding in income tax matters?
   Circulars issued by the Central Board of Direct Taxes are binding on the Income Tax Department, though they are not binding on courts or taxpayers.
8. What is the difference between mandatory and directory provisions?
   Mandatory provisions require strict compliance, while directory provisions allow substantial compliance if the main purpose of the law is fulfilled.
9. Does the Income Tax Act, 2025 change interpretation rules?
   No. The Income Tax Act, 2025 mainly reorganises and renumbers sections, while existing judicial principles of interpretation continue to apply.
10. Which Supreme Court case says ambiguity in charging provisions benefits the assessee?
    CIT v. Vegetable Products Ltd. held that where two reasonable interpretations of a charging provision are possible, the interpretation favouring the assessee should be adopted.

References

1. Article 265, Constitution of India, 1950
2. CIT v. Vegetable Products Ltd., (1973) 88 ITR 192 (SC)
3. Commissioner of Customs (Import) v. Dilip Kumar & Co., (2018) 9 SCC 1
4. PCIT-III, Bangalore v. Wipro Ltd., Civil Appeal No. 1449 of 2022 (SC, July 11, 2022)
5. Sun Export Corpn. v. Collector of Customs, Bombay, (1997) 6 SCC 564 (overruled)
6. Pradip J. Mehta v. CIT, (2008) 300 ITR 231 (SC)
7. Chhotabhai Jethabhai Patel & Co. v. Union of India, AIR 1962 SC 1006
8. CIT v. B.C. Srinivasa Setty, (1981) 2 SCC 460
9. Uma Developers v. ITO, ITA No. 2164/Mum/2016, ITAT Mumbai (2019)
10. M/s. Saffire Garments v. ITO, ITAT Special Bench, Rajkot, (2013) 140 ITD 6
11. Income Tax Act, 2025 (in force from 1 April 2026) — Section Comparison
12. T. Rajan v. T.P.M. Sahir, (2003) 9 TMI 765 (Supreme Court)

The post Income Tax Act Interpretation: How Courts Read Tax Laws in India – A Step-by-Step Guide appeared first on Bhatt & Joshi Associates.

Mutual consent divorce under the Hindu Marriage Act, 1955 is the most peaceful way to end a marriage in India. Both spouses file a joint petition under Section 13B. They do not need to prove cruelty, adultery, or desertion. Instead, they simply agree — mutually and voluntarily — that the marriage should end.

However, the law adds a structural pause. It requires a six-month cooling period between the first and second motions. For decades, courts treated this pause as a hard rule. As a result, even couples who had already settled every dispute faced months of pointless delay.

Fortunately, the Supreme Court stepped in. Through landmark judgments — starting with Amardeep Singh (2017) and culminating in the Constitution Bench ruling in Shilpa Sailesh (2023) — the Court firmly held that the cooling period is directory, not mandatory. Courts can waive it when the facts demand. Furthermore, the Delhi High Court Full Bench in Shiksha Kumari (December 2025) extended this logic even further.

Therefore, this article covers the full legal picture as it stands in 2026. It explains the statute, traces the case law, sets out the waiver criteria, and answers the most common questions from litigants and practitioners.

The Statutory Framework: Section 13B of the Hindu Marriage Act, 1955

Legislative Background

The Hindu Marriage Act, 1955 originally did not allow divorce by mutual consent. Parliament changed this through the Marriage Laws (Amendment) Act, 1976. That amendment inserted Section 13B into the HMA. The purpose was clear: create a humane, non-adversarial exit for couples who both want the marriage to end. Forcing a couple to stay married when neither party wants to continue serves no one.

The Text of Section 13B: What Does It Actually Say?

Section 13B(1) lets both parties jointly file a dissolution petition. They must show three things: first, they have lived separately for at least one year; second, they cannot live together; and third, they both agree the marriage should end.

Section 13B(2) then governs the second motion. Both parties must file it not earlier than six months — and not later than eighteen months — after the first motion. Once the court is satisfied that the marriage took place and the facts are true, it passes the divorce decree.

The Twin Temporal Requirements: A Composite 18-Month Wait

Together, Sections 13B(1) and 13B(2) create a composite minimum wait of about eighteen months. First, the parties must separate for one year. Then, they must wait another six months after the first motion. Lower courts historically treated this entire period as a jurisdictional condition. They could not proceed without it.

Additionally, the eighteen-month outer limit is a hard boundary. If the parties do not file the second motion within eighteen months of the first, the court loses jurisdiction. Consequently, the petition lapses and the parties must start again.

Why the 18-Month Wait Caused Problems

In practice, this composite wait caused real hardship. Many couples had already separated for years. They had settled alimony, custody, and property. Yet courts still made them wait. The cooling period served no purpose in such cases. It simply prolonged their distress. Accordingly, courts began to question whether the period was truly mandatory.

Section 14(1): The Bar on Petitions Within One Year of Marriage

Section 14(1) adds a further restriction. No petition for divorce can be filed within one year of marriage. However, the proviso allows an exception. Courts can admit an early petition if the case involves exceptional hardship to the petitioner or exceptional depravity by the respondent. This proviso intersected significantly with the one-year separation rule under Section 13B(1). The Delhi High Court Full Bench in Shiksha Kumari v. Santosh Kumar (2025) ultimately resolved that conflict.

Judicial Evolution of the Cooling Period Doctrine: From Mandatory to Directory

The Early Position: Treating the Cooling Period as Mandatory

Before 2017, courts disagreed sharply on one key question: was the Section 13B(2) cooling period mandatory or directory? The most influential case on the side of restraint was Manish Goel v. Rohini Goel (2010) 4 SCC 393. There, the Supreme Court refused to waive the cooling period under Article 142. Importantly, though, the Court did not decide whether the period was mandatory or directory. The parties simply never raised that question.

Similarly, Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234 added one important rule: mutual consent must survive until the court passes the decree. Either party can withdraw consent before that point. However, that case also did not decide the mandatory/directory issue.

How High Courts Took a Different View

Meanwhile, several High Courts moved in a different direction. The Andhra Pradesh, Karnataka, Delhi, and Madhya Pradesh High Courts each held — in different factual settings — that the cooling period was directory. Courts could waive it in exceptional cases. This conflict between High Court decisions and the Manish Goel approach created deep uncertainty. Litigants could not predict what a court would do. The law clearly needed a definitive answer.

The Watershed: Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746

Facts and Context

The parties in Amardeep Singh married in January 1994. By the time the case reached the Supreme Court, they had lived separately for over nine years. They had signed a full settlement — Rs. 2.75 crore permanent alimony and clear custody arrangements. Everything was agreed. Yet the Family Court at Tis Hazari, New Delhi, still refused to waive the residual cooling period.

The Ruling: The Cooling Period Is Directory

Justices Adarsh Kumar Goel and Uday Umesh Lalit finally answered the question left open in Manish Goel. They held that the six-month period under Section 13B(2) is directory, not mandatory. Where reconciliation is impossible and all issues are settled, enforcing the period serves only one purpose: prolonging the parties’ distress.

Crucially, the Court also held that Family Courts — not just the Supreme Court — can grant the waiver. This made relief accessible at the first instance level. Parties no longer needed to approach the apex court.

The Four Amardeep Singh Conditions

The Court also laid down four conditions for granting a waiver:

• The combined statutory periods — one year under Section 13B(1) and six months under Section 13B(2) — must already have elapsed before the first motion.
• All mediation and conciliation efforts under Order XXXIIA Rule 3 CPC, Section 23(2) HMA, and Section 9 Family Courts Act must have failed with no prospect of success.
• The parties must have genuinely settled all issues — alimony, custody, and any other disputes.
• Further waiting will only prolong their suffering.

Key Principle — Amardeep Singh (2017) The six-month cooling period under Section 13B(2) is directory and not mandatory. Courts, including Family Courts, may waive it where reconciliation is impossible, all issues are settled, and further waiting would only prolong distress.

Amit Kumar v. Suman Beniwal (2021 SCC OnLine SC 1270; (2023) 17 SCC 648)

Background

In Amit Kumar, an IPS officer and an IFS officer married on 10 September 2020. They separated just three days later. After more than one year apart, they filed a Section 13B petition with a waiver application. However, the Family Court at Hisar refused the waiver. It treated the Amardeep Singh conditions as mandatory checkboxes rather than guiding principles.

The Eight-Factor Holistic Test

Justices Indira Banerjee and J.K. Maheshwari held that the lower court had fundamentally misread Amardeep Singh. The conditions in paragraph 19 of that judgment are illustrative, not exhaustive. Courts must not apply them like a rigid checklist. Instead, the bench directed courts to weigh eight holistic factors:

• How long the parties were married.
• How long they actually lived together.
• How long they have been separated.
• How long the litigation has been pending.
• Whether other proceedings exist between them.
• Whether reconciliation is genuinely possible.
• Whether they have children together.
• Whether both parties freely and voluntarily agreed to the settlement.

Key Principle — Amit Kumar (2023) The Amardeep Singh conditions are illustrative, not exhaustive. Courts must apply an eight-factor holistic test, engaging with the specific facts of each case. Mechanical refusal of a waiver application is an error of law.

The Constitutional Dimension: Article 142 and the Shilpa Sailesh Constitution Bench

The Reference to a Five-Judge Bench

The most authoritative ruling on this subject came from a five-judge Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544, decided on 1 May 2023. Justice Sanjay Kishan Kaul presided. Justice Sanjiv Khanna authored the judgment. The bench also included Justices Abhay S. Oka, Vikram Nath, and J.K. Maheshwari.

Core Holdings

Article 142 Is Not Fettered by Section 13B

The Constitution Bench held unanimously on a key point: Article 142(1) empowers the Supreme Court to do complete justice. That power is not restricted by the procedural requirements of Section 13B. Therefore, the Supreme Court can dissolve a marriage by mutual consent without waiting for the six-month cooling period. It can also dissolve a marriage on the ground of irretrievable breakdown — even where that ground does not exist in the HMA.

The Scope and Limits of Article 142

Article 142 allows the Court to depart from specific statutory procedures. It can even override substantive statutory provisions when justice demands it. However, it has clear limits. The Court cannot use Article 142 to violate fundamental rights or override general public policy. In short, the power is broad but not unlimited.

Dissolution on Irretrievable Breakdown: The Most Significant Holding

The Constitution Bench confirmed one sweeping principle: when a marriage is emotionally dead and beyond any hope of revival, keeping it alive in law serves no purpose. Accordingly, the Supreme Court can dissolve it under Article 142 — even if one spouse objects.

However, three important limits apply. First, this power belongs only to the Supreme Court. High Courts and Family Courts cannot use it. Second, parties cannot file writ petitions under Articles 32 or 226 to seek dissolution directly. Third, the Court must exercise this power carefully and weigh all the equities.

Key Principle — Shilpa Sailesh (2023) The Supreme Court can waive the Section 13B(2) cooling period under Article 142 and can dissolve a marriage on the ground of irretrievable breakdown even without mutual consent. This power is exclusive to the Supreme Court and must be exercised with restraint.

The Operative Criteria for Waiver: Consolidated Legal Position as of 2026

Who May Apply and When

A waiver application may be filed by both parties jointly, as early as one week after the filing of the first motion under Section 13B(1). Both parties must appear before the court or, where personal appearance is impracticable for valid reasons, they may be represented through close relations (parents or siblings) by video conferencing.

The Eight-Factor Holistic Test (Post-Amit Kumar)

Following Amit Kumar, courts must weigh the following factors holistically. None is exhaustive or decisive on its own:

• Duration of the marriage — how long the relationship lasted overall.
• Length of actual cohabitation — which is often much shorter than the marriage itself.
• Period of separation — the longer the separation, the weaker the case for enforcing the cooling period.
• Pendency of litigation — long-running civil or criminal proceedings strengthen the waiver case.
• Possibility of reconciliation — this is the central question. If reconciliation is genuinely possible, enforce the period. If not, waive it.
• Existence of children — custody and maintenance must be fully and fairly settled.
• Completeness of settlement — alimony, property, maintenance, and all pending disputes must be resolved.
• Voluntariness of consent — both parties must agree freely, without pressure or coercion.

The Dispositive Test: Possibility of Reconciliation

Ultimately, one question drives the entire analysis: is reconciliation genuinely possible? If yes, the court enforces the cooling period. If no, the court can waive it. As the Supreme Court stated in Amit Kumar, where parties have been separated for a long time and all mediation has failed, prolonging the proceedings serves no purpose. It only adds to their suffering.

Recent High Court Developments: 2025–2026

Delhi High Court Full Bench: Shiksha Kumari v. Santosh Kumar (December 2025)

Background and the Questions Referred

The most important High Court ruling in this period is Shiksha Kumari v. Santosh Kumar, 2025:DHC:11467-FB, decided on 17 December 2025. Justices Navin Chawla, Anup Jairam Bhambhani, and Renu Bhatnagar sat on the Full Bench. Justice Bhambhani authored the judgment. The bench considered two specific questions:

• Can parties file a Section 13B(1) petition before completing one year of separation?
• If yes, can the court also waive the six-month cooling period — even though the one-year separation is not yet complete?

What the Full Bench Decided

The Full Bench answered both questions with a clear yes. On the first question, it confirmed that courts can use the proviso to Section 14(1) to admit an early petition. This is available only in genuine cases of exceptional hardship or exceptional depravity.

On the second question, the bench went further. It held that the six-month cooling period under Section 13B(2) is independently waivable. The two statutory periods are separate. Therefore, waiving one does not block waiving the other.

Most significantly, the bench set aside part of the 2013 Sankalp Singh ruling. That earlier decision required courts to wait until the one-year separation elapsed from the actual separation date — even after admitting an early petition. The Full Bench rejected that approach. Where all conditions are satisfied, the court can pass the decree immediately. It need not wait for any calendar date.

The bench captured this principle memorably: “Is a court mandated to stall divorce by mutual consent, thrusting unwilling parties — not into marital bliss, but into a matrimonial abyss?” The answer is no. Consent is the cornerstone, not the calendar.

Allahabad High Court (2024–2025)

The Allahabad High Court has also made important contributions. It has set aside several Family Court orders that refused waiver applications without proper analysis. The Court consistently holds that a waiver refusal must be reasoned and fact-specific. A blanket rejection — without engaging the Amardeep Singh and Amit Kumar factors — is a legal error that warrants interference.

Bombay High Court: The Duty of Proactive Relief

Similarly, the Bombay High Court has directed Family Courts to act proactively. Where parties submit a full settlement agreement and clear affidavits showing no prospect of reconciliation, courts must act promptly. Unnecessary delay is not neutrality. In matrimonial matters, delay is itself a form of injustice.

The Persisting Legislative Gap: Irretrievable Breakdown as a Statutory Ground

What the Law Commission Has Recommended

Indian matrimonial law has a significant gap. Irretrievable breakdown of marriage is not a statutory ground for divorce under the Hindu Marriage Act. This is not for lack of expert recommendation. The Law Commission proposed its introduction in its 71st Report (1978) and again in its 217th Report (2009). Both times, Parliament did not act.

The Failed Bill and the Current Position

The Marriage Laws (Amendment) Bill, 2010 sought to fill this gap. It passed the Rajya Sabha on 26 August 2013. However, it lapsed when the Fifteenth Lok Sabha dissolved. Parliament has not re-introduced it since. As a result, as of March 2026, irretrievable breakdown remains an extra-statutory remedy — available only through the Supreme Court’s Article 142 jurisdiction.

This creates a serious access problem. Most litigants cannot afford to approach the Supreme Court. Consequently, parties whose marriages have permanently broken down — but who have not reached a mutual settlement — have no accessible remedy. They cannot prove a fault ground. Yet they cannot get a divorce. This gap demands urgent legislative attention.

Practical Implications for Practitioners and Litigants

At the Family Court Level

After Amardeep Singh and Amit Kumar, Family Courts can waive the Section 13B(2) cooling period on their own. They do not need to refer to a higher court. Additionally, after Shiksha Kumari, Family Courts in Delhi — and, by persuasive authority, across India — can also admit petitions before the one-year separation is complete. They can pass the decree without waiting for any fixed date.

Practitioners must prepare carefully. A successful waiver application requires the following:

• Comprehensive Settlement Agreement: This must cover alimony amounts and payment schedule, maintenance during proceedings, child custody and visitation rights, division of matrimonial property, and withdrawal of all pending civil and criminal cases.
• Statement of Facts: The waiver application must explain the duration of the marriage, period of separation, litigation history, mediation efforts, and why the cooling period serves no purpose. It must address each of the eight Amit Kumar factors specifically.
• Affidavit of Irretrievable Breakdown: Each party must separately confirm free consent, impossibility of reconciliation, and that the settlement is fair and uncoerced.
• Quashing of Ancillary Proceedings: Where Section 498A IPC / Section 85 BNS complaints, domestic violence cases, or maintenance applications are pending, the settlement must cover their withdrawal. Quashing can be sought under Section 482 CrPC / Section 528 BNSS, relying on Gian Singh v. State of Punjab (2012) 10 SCC 303.

At the Supreme Court Level

When parties approach the Supreme Court under Article 142, the Shilpa Sailesh framework applies. Whether the application is for a cooling period waiver or for dissolution on irretrievable breakdown, the factual record must be comprehensive. It must show the history of failed reconciliation, the full settlement, and the equities on both sides.

The Prohibition on Writ Petitions for Dissolution

One point deserves emphasis. The Constitution Bench in Shilpa Sailesh specifically warned parties not to file writ petitions under Articles 32 or 226 to seek divorce. Courts will reject such petitions. Instead, parties must follow the ordinary route through Family Courts. The Supreme Court steps in only in exceptional cases under Article 142.

Constitutional Principles Underpinning the Evolving Doctrine

Four constitutional principles together support the waiver doctrine:

• Personal Liberty and Dignity (Article 21): Every individual has the right to exit a marriage they have irrevocably chosen to end. Forcing consenting adults to remain in a dead marriage violates their personal liberty and dignity under Article 21.
• Access to Justice (Articles 14 and 21): Before Amardeep Singh, the mandatory cooling period blocked parties with settled disputes from getting timely relief. The waiver doctrine therefore serves the fundamental right of access to justice.
• Non-Arbitrariness (Article 14): Applying the cooling period mechanically — without asking whether it serves any purpose in the specific case — is arbitrary. It has no rational connection to the statutory goal and violates Article 14.
• Complete Justice (Article 142): The Supreme Court’s power under Article 142 is not an exception to the Constitution. It is an expression of it. The Shilpa Sailesh Constitution Bench has now provided a clear and authoritative framework for its use in matrimonial cases.

Case Law at a Glance: Key Judgments Table

Conclusion

Mutual consent divorce under the Hindu Marriage Act, 1955 has changed fundamentally since 2017. Courts no longer treat the six-month cooling period as an immovable wall. Instead, they waive it when the facts demand — and Family Courts can do this without referring to a higher court. Furthermore, the Delhi High Court’s Full Bench in Shiksha Kumari has extended the same logic to the one-year separation rule in cases of exceptional hardship.

The principle is now clear: matrimonial law exists to serve the parties, not to trap them. Where the conditions for dissolution are objectively established — settled disputes, genuine consent, no prospect of reconciliation — the court must act. It cannot hide behind procedural formalism.

Nevertheless, one major gap remains. Parliament has still not enacted irretrievable breakdown as a statutory ground for divorce. Until it does, courts will continue to do their best under Amardeep Singh, Amit Kumar, Shilpa Sailesh, and Shiksha Kumari. Practitioners who know these decisions well are best placed to help their clients get timely, principled relief.

Frequently Asked Questions (FAQ): 

Q1. What is mutual consent divorce under the Hindu Marriage Act 1955?

Mutual consent divorce under the Hindu Marriage Act 1955 is a joint-petition process under Section 13B. Both spouses file together. They do not blame each other. Instead, they simply agree — freely and voluntarily — that the marriage should end. Unlike fault-based divorce, no one needs to prove cruelty, adultery, or desertion.

Q2. What are the conditions for filing mutual consent divorce under the Hindu Marriage Act?

Three conditions must be satisfied. First, both parties must have lived separately for at least one year. Second, they must confirm they cannot live together. Third, they must mutually agree to dissolve the marriage. Additionally, all ancillary matters — alimony, child custody, and property — should ideally be settled before the second motion.

Q3. Can the 6-month cooling period be waived in mutual consent divorce under the Hindu Marriage Act?

Yes. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month cooling period is directory, not mandatory. Therefore, Family Courts can waive it. However, three things must be clear: reconciliation is impossible, all disputes are settled, and the combined 18-month statutory period has already elapsed. The eight-factor test from Amit Kumar v. Suman Beniwal (2023) guides the discretion.

Q4. How long does mutual consent divorce take under the Hindu Marriage Act?

Without a waiver, the process takes at least 18 months from separation. This includes one year of pre-petition separation and six months between the two motions. However, if the court grants a waiver under Amardeep Singh, the timeline shortens significantly. In some cases, the decree follows within weeks of the first motion — provided all issues are fully settled.

Q5. Can one party withdraw consent in mutual consent divorce under the Hindu Marriage Act?

Yes. Either party can withdraw consent at any time before the second motion. If consent is withdrawn, the petition fails. The court cannot grant the decree. This rule comes from Sureshta Devi v. Om Prakash (1991) and was affirmed in Hitesh Bhatnagar v. Deepa Bhatnagar (2011). Consent must survive all the way until the court passes the decree.

Q6. What happens if the second motion is not filed within 18 months?

The petition lapses. Under Section 13B(2), the court loses jurisdiction once 18 months pass from the first motion. There is no extension. Consequently, the parties must file a fresh petition from scratch. The 18-month outer limit is a hard jurisdictional boundary.

Q7. Can mutual consent divorce under the Hindu Marriage Act be filed before completing one year of separation?

Generally, no. However, the Delhi High Court Full Bench in Shiksha Kumari v. Santosh Kumar (December 2025) carved out an exception. In cases of exceptional hardship or exceptional depravity, courts can use the proviso to Section 14(1) to admit a petition early. This is an exception to the general rule, not the default. The court must be genuinely satisfied that exceptional circumstances exist.

Q8. Can the Supreme Court grant mutual consent divorce under the Hindu Marriage Act without the cooling period?

Yes. The Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023) confirmed this clearly. Under Article 142, the Supreme Court can dissolve a marriage by mutual consent without the second motion or the cooling period. It can also dissolve a marriage on the ground of irretrievable breakdown — even without mutual consent. Importantly, however, this power belongs only to the Supreme Court. High Courts and Family Courts cannot use it.

Q9. What documents are needed for mutual consent divorce under the Hindu Marriage Act?

The key documents are: a joint petition under Section 13B(1); a comprehensive settlement agreement covering alimony, custody, property, and withdrawal of pending cases; proof of marriage; proof of separate residence; identity and address proofs for both parties; and — where waiver is sought — individual sworn affidavits confirming free consent, impossibility of reconciliation, and fairness of the settlement.

Q10. Is irretrievable breakdown of marriage a ground for divorce under the Hindu Marriage Act?

No, not yet. As of March 2026, irretrievable breakdown is not a codified ground under the Hindu Marriage Act 1955. The Law Commission recommended it in 1978 and again in 2009. The Marriage Laws (Amendment) Bill 2013 lapsed in the Lok Sabha. Parliament has not re-introduced it. As a result, this remedy is only available through the Supreme Court’s Article 142 jurisdiction — which most litigants cannot access. This remains the most urgent legislative reform needed in Indian matrimonial law.

The post Mutual Consent Divorce Under Hindu Marriage Act: Supreme Court on Cooling Period Waiver (2026 Update) 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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The replacement of the Code of Criminal Procedure, 1973 with the Bharatiya Nagarik Suraksha Sanhita, 2023 marked a major reform in Indian criminal procedure. Questions arose whether this transition affected the substantive legal standards, particularly the discharge and framing of charges under BNSS. In February 2026, the Supreme Court of India delivered a landmark judgment in Dr. Anand Rai v. State of Madhya Pradesh & Anr. [1], clarifying the continuity of jurisprudence between the two enactments.

The judgment, delivered by a bench comprising Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh on 10 February 2026, holds profound significance for criminal practitioners, trial courts, and accused persons across India. The Court unequivocally held that the substantive legal standards governing discharge and framing of charges under the CrPC continue unchanged under the BNSS, while the new legislation introduces regulatory discipline through express timelines and procedural structuring.

Background of the Case

The case originated from an incident on 15 November 2022 in Ratlam, Madhya Pradesh, during the unveiling of a statue of Bhagwan Birsa Munda. An FIR was registered at PS Bilpank, District Ratlam, alleging that members of the JAYS organization, including Dr. Anand Rai, had intercepted vehicles of Members of Parliament and Members of Legislative Assembly and engaged in a confrontation with district officials [1]. The appellant was charged under various provisions of the Indian Penal Code, 1860, along with Sections 3(2)(v) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The Trial Court partially accepted the discharge application, framing charges under both the IPC and the SC/ST Act. The Madhya Pradesh High Court upheld this decision in an appeal under Section 14A of the SC/ST Act. The appellant challenged this order before the Supreme Court, raising two primary contentions: first, that the charges under the SC/ST Act were not sustainable in the absence of any material establishing the complainant’s caste or the appellant’s knowledge thereof; and second, that the High Court had failed to independently examine the record as required in a first appellate proceeding.

Statutory Provisions: Section 227 CrPC and Section 250 BNSS

Section 227 of the CrPC provided that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing [2].

Section 250(2) of the BNSS retains the same substantive language, stating that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing [3]. The critical difference introduced by the BNSS is procedural rather than substantive.

Section 250(1) of the BNSS introduces a new provision stipulating that the accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under Section 232 [3]. This timeline was not present in the CrPC, representing a regulatory innovation aimed at structuring the process and reducing delay. Similarly, Section 251 of the BNSS prescribes that charges should ordinarily be framed within sixty days from the date of first hearing in Sessions-triable cases [4].

Supreme Court’s Observations on Continuity of Discharge and Framing of Charges Under BNSS

The Supreme Court conducted a close textual analysis of both the CrPC and the BNSS to determine whether there had been any substantive change in the legal standards applicable at the stages of discharge and framing of charges. The Court observed that “on a close reading of the statutory text of the CrPC and the BNSS, the position is one of continuity rather than change in relation to the Court’s power at the stages of discharge and framing of charge” [1].

The Court explained that at the stage of discharge, the Court is required to consider whether there is any sufficient ground for proceeding against the accused in Sessions cases, or whether the charge is groundless in Magistrate warrant cases. At the subsequent stage, charges are to be framed only if the Court forms an opinion that there is a ground for presuming that the accused has committed an offence [1]. These formulations, the Court emphasized, have long anchored the exercise of judicial discretion under the CrPC and are carried forward in substance in the corresponding provisions of the BNSS, without any textual indication that the level of scrutiny is intended to be either heightened or diluted.

Addressing the nature of changes introduced by the BNSS, the Court held that “what the BNSS does is to change the procedural setting within which this discretion is exercised. The new statute introduces express timelines for the filing of discharge applications and for the framing of charges, and it expressly recognises the possibility of the accused being heard or examined through electronic means. These changes are regulatory in nature. They are aimed at structuring the process and reducing delay, not at transforming the judicial task itself” [1].

Established Jurisprudence Under the CrPC Remains Applicable

The Court conclusively held that “the established jurisprudence developed under the Cr.P.C. on the scope and limits of consideration at the stages of discharge and framing of charges under BNSS continues to hold the field. The statutory language supports the conclusion that the Legislature has retained the same substantive balance between the rights of the accused and the interest of prosecution, while seeking to impose greater procedural discipline and expedition. In substance, the power remains the same; only the manner of its exercise has been more tightly structured” [1].

This declaration is of immense practical significance. It means that the entire body of precedents developed by the Supreme Court and High Courts interpreting Section 227 CrPC regarding discharge, and Section 228 CrPC regarding framing of charges, continues to guide courts operating under the BNSS. The foundational principles laid down in landmark cases remain fully applicable.

Key Precedents That Continue to Apply

The most significant precedent governing discharge proceedings is Union of India v. Prafulla Kumar Samal [5], decided in 1979. This judgment laid down four fundamental principles that have guided discharge proceedings for over four decades. First, the Judge while considering the question of framing charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

Second, where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. Third, the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

Fourth, in exercising his jurisdiction under Section 227 of the Code, the Judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial [5].

These principles have been consistently reaffirmed by the Supreme Court in numerous subsequent judgments. In P. Vijayan v. State of Kerala [6], the Court reiterated that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused. In State of Orissa v. Debendra Nath Padhi [7], the Court clarified that the defence of the accused is not to be looked into at the stage when the accused seeks to be discharged, and the expression “the record of the case” is to be understood as the documents and articles, if any, produced by the prosecution.

More recently, in M.E. Shivalingamurthy v. Central Bureau of Investigation [8], decided in 2020, the Supreme Court reaffirmed that at the stage of discharge, a strong suspicion suffices. However, a strong suspicion must be found on some material which can be translated into evidence at the stage of trial. In 2025, the Supreme Court again emphasized in State Represented by Inspector of Police, CBI, ACB, Visakhapatnam v. M/s. Cotton Corporation of India Limited [9] that an accused has no right to rely on documents outside the chargesheet at the stage of framing of charges, and only the report filed under Section 173 CrPC and the materials submitted with it can be considered.

Regulatory Innovations Under the BNSS

While the substantive standards remain unchanged, the BNSS introduces significant regulatory innovations aimed at reducing delay and imposing procedural discipline. The most important of these is the introduction of express timelines. Section 250(1) of the BNSS requires that an application for discharge be filed within sixty days from the date of commitment of the case [3]. This timeline, which did not exist under the CrPC, is designed to prevent indefinite delay in the filing of discharge applications.

However, the Kerala High Court in Sajith v. State of Kerala [4] clarified an important aspect of this provision. The Court held that the use of the word “may” in Section 250(1) makes the sixty-day timeline directory rather than mandatory. The Court observed that unlike Section 330(1) of the BNSS, which uses the word “shall” and includes a proviso for extension, Section 250(1) uses “may” and contains no such proviso. Therefore, even after the expiry of sixty days, a petition for discharge can be considered by the court since the time limit is not mandatory and is only directory.

The Kerala High Court also identified a legislative gap in Section 250(1) regarding cases where committal is not possible, such as proceedings under special statutes like the POCSO Act, NDPS Act, or SC/ST Act. In such cases, there is no committal procedure, and the Special Court takes cognizance directly. To address this ambiguity, the Orissa High Court in a 2025 judgment [3] directed that in POCSO cases, the sixty-day period for filing discharge applications should be counted from the date when copies of documents are supplied to the accused under Section 230 of the BNSS.

Section 251 of the BNSS prescribes that in Sessions-triable cases, charges should ordinarily be framed within sixty days from the date of first hearing [4]. This timeline reflects the legislative intent to expedite the pre-trial stage and reduce the prolonged pendency that has historically plagued criminal trials in India. The Supreme Court in 2025 expressed concern over prolonged pendency at the charge-framing stage and underscored the need for strict adherence to these statutory timelines, observing that delays at this stage undermine both the rights of the accused and public confidence in the justice system.

Another procedural innovation is that the BNSS expressly recognizes the possibility of the accused being heard or examined through electronic means [1]. This provision acknowledges the technological capabilities now available to courts and seeks to facilitate proceedings without requiring physical presence in all cases, thereby reducing delay and inconvenience.

Impact on Criminal Practice and Trial Courts

The Supreme Court’s clarification in Dr. Anand Rai has several important implications for criminal practice. First, it provides certainty to practitioners and trial courts that the extensive body of case law developed under the CrPC remains fully applicable under the BNSS. This means that arguments, precedents, and principles that were well-established under the CrPC need not be re-litigated or re-established under the new legislation.

Second, the judgment emphasizes that the Court’s obligation to apply its mind to the record, to hear both sides, and to record reasons where discharge is ordered remains exactly as before, as does the caution against weighing evidence or conducting a mini-trial [1]. This continuity ensures that the fundamental safeguards against frivolous prosecutions remain intact.

Third, the introduction of timelines imposes a discipline on both courts and parties. The sixty-day timeline for filing discharge applications encourages accused persons to promptly exercise their right to seek discharge rather than allowing matters to linger. The sixty-day timeline for framing charges similarly requires trial courts to prioritize these matters and dispose of them expeditiously. While these timelines are primarily directory in nature, they represent clear legislative expectations regarding the pace at which pre-trial proceedings should move.

Fourth, the judgment clarifies that the regulatory changes introduced by the BNSS do not transform the judicial task itself. Courts are not required to apply either a more lenient or a more stringent standard when considering discharge applications under the BNSS. The test remains whether there is sufficient ground for proceeding against the accused, evaluated by considering whether the prosecution material discloses grave suspicion that has not been properly explained.

The SC/ST Act Dimension: Knowledge as a Foundational Element

In the Dr. Anand Rai case itself, the Supreme Court also addressed important substantive questions regarding the SC/ST Act. The Court held that for charges under Sections 3(2)(v) and 3(2)(va) of the SC/ST Act, the element of knowledge regarding the victim’s caste identity is not incidental but foundational. Section 3(2)(v) requires that the accused must have knowledge that the victim belongs to SC/ST, and this knowledge must be prima facie established at the stage of framing charges [1].

The Court found that in the present case, there was no averment whatsoever in the FIR or the statements recorded under Section 161 CrPC that the complainant belonged to a SC or ST community, nor was there any material showing that the appellant acted with knowledge of the victim’s caste [1]. In the absence of such prima facie material, the Court held that continuation of proceedings under the SC/ST Act would amount to mechanical application of a protective statute and quashed the charges under that Act.

Duty of Appellate Courts Under Section 14A of SC/ST Act

The judgment also clarified the nature of appellate jurisdiction under Section 14A of the SC/ST Act. The Court held that the High Court does not function as a revisional or supervisory Court while exercising jurisdiction under Section 14-A but assumes the role of a first appellate court. A mechanical affirmation of the order of the Special Court, without independent scrutiny, would be inconsistent with settled appellate jurisprudence and would amount to a failure to exercise jurisdiction [1].

The Court emphasized that even where the appellate Court ultimately agrees with the reasoning of the Courts below, the judgment must disclose that the material was independently examined. In this case, the High Court’s judgment, though running into eighteen pages, did not deal at all with the charges under the SC/ST Act and merely recorded that the trial court had assigned elaborate reasons. This approach was found to be insufficient [1].

Conclusion

The Supreme Court’s judgment in Dr. Anand Rai v. State of Madhya Pradesh represents a significant judicial pronouncement on the transition from the CrPC to the BNSS. By unequivocally holding that the substantive legal standards governing discharge and framing of charges under BNSS continue unchanged, the Court has provided clarity and certainty to the criminal justice system. The extensive jurisprudence developed over decades under the CrPC remains fully applicable, ensuring continuity and predictability.

At the same time, the judgment acknowledges and validates the regulatory innovations introduced by the BNSS. The express timelines for filing discharge applications and framing charges represent legislative efforts to impose greater procedural discipline and expedition. While these timelines are primarily directory in nature, they signal clear expectations regarding the pace at which pre-trial proceedings should move.

The judgment also underscores the human consequences of criminal prosecutions. As the Court observed, at the stage of framing of charge or considering discharge, the Court is not dealing with an abstract legal exercise but with real people, real anxieties, and the real weight of criminal prosecution [1]. This reminder emphasizes the importance of courts exercising their discharge jurisdiction with due care, ensuring that no person is subjected to the ordeal of a trial without sufficient ground.

For practitioners, trial courts, and appellate courts, the message is clear: in substance, the power remains the same; only the manner of its exercise has been more tightly structured. The foundational principles established in cases like Union of India v. Prafulla Kumar Samal continue to guide the exercise of judicial discretion at the pre-trial stage. The BNSS has not transformed the judicial task; it has merely structured the procedural setting within which that task is performed.

References

[1] Dr. Anand Rai v. State of Madhya Pradesh & Anr., 2026 INSC 141 (Criminal Appeal No. 814/2026, decided on 10 February 2026). Available at: https://www.livelaw.in/supreme-court/crpc-jurisprudence-on-discharge-framing-of-charges-continues-under-bnss-supreme-court-522780

[2] Code of Criminal Procedure, 1973, Section 227.

[3] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 250. See also: https://drishtijudiciary.com/current-affairs/section-250-of-bnss

[4] Sajith v. State of Kerala, Kerala High Court, Crl.Rev.Pet No. 879 of 2024. Available at: https://www.lawweb.in/2024/09/kerala-hc-sessions-or-special-court-has.html

[5] Union of India v. Prafulla Kumar Samal & Anr., (1979) 3 SCC 4, 1979 AIR 366, decided on 6 November 1978. Available at: https://indiankanoon.org/doc/1360078/

[6] P. Vijayan v. State of Kerala, (2010) 2 SCC 398.

[7] State of Orissa v. Debendra Nath Padhi, AIR 2005 SC 359.

[8] M.E. Shivalingamurthy v. Central Bureau of Investigation, Bengaluru, (2020) 2 SCC 768.

[9] State Represented by Inspector of Police, CBI, ACB, Visakhapatnam v. M/s. Cotton Corporation of India Limited & Ors., Supreme Court judgment dated July 2025. Available at: https://lawbeat.in/supreme-court-judgments/accused-cannot-rely-on-documents-beyond-chargesheet-to-seek-discharge-supreme-court-1500704

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India’s national capital has, for decades, carried the grim distinction of being one of the most polluted cities in the world. Each winter, a toxic haze descends on Delhi and its surrounding National Capital Region, pushing Air Quality Index readings past 400 — a level classified as “severe” — and triggering emergency responses that range from school closures to construction bans. This recurring crisis has brought both the CAQM and broader efforts to control Delhi air pollution into sharp public focus, highlighting the challenges of coordinating action between an overburdened judiciary and a fragmented executive.

The Commission for Air Quality Management in the National Capital Region and Adjoining Areas — universally referred to as the CAQM — was established through an ordinance in 2020 and given permanent statutory footing through the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 [1]. Parliament designed CAQM to be the single coordinating authority for air pollution control across Delhi, Haryana, Punjab, Uttar Pradesh, and Rajasthan — five states whose competing agricultural, industrial, and vehicular interests collectively determine the air Delhiites breathe. Yet despite this institutional design, the Supreme Court of India has repeatedly stepped back into the space that CAQM was meant to occupy, directly supervising the implementation of emergency pollution protocols, reprimanding the Commission for inaction, and issuing binding orders that function, in substance, as executive governance. The result is a constitutional curiosity: a statutory regulator that exists in law, but a Supreme Court that behaves, in practice, as though it does not.

The Legislative Inheritance: From EPCA to CAQM

To understand CAQM’s place in the legal ecosystem, one must first understand what it replaced. The Environment Pollution (Prevention and Control) Authority, or EPCA, was constituted in 1998 by the Supreme Court itself, in the long-running M.C. Mehta v. Union of India proceedings [2]. That case, filed originally in 1985 as a writ petition under Article 32 of the Constitution, had evolved over four decades into one of the most consequential examples of continuing mandamus in Indian judicial history. The EPCA was the Court’s institutional response to chronic inter-state coordination failures — an expert body meant to advise and oversee, but one that critically lacked any statutory backing. Without penal powers or independent enforcement authority, the EPCA could recommend but not compel, and the years between 1998 and 2021 saw pollution in Delhi worsen despite its continued functioning.

The push for a statutory replacement gained momentum through separate litigation. In 2020, environmental activist Aditya Dubey, then a minor, filed Writ Petition (Civil) No. 1135 of 2020 before the Supreme Court seeking relief against stubble burning in Punjab and Haryana [3]. The Court, in a three-judge bench headed by the Chief Justice, directed the formation of a committee chaired by retired Justice Madan B. Lokur to monitor stubble burning — a striking illustration of the Court once again filling institutional voids. It was in this charged environment that the central government promulgated the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020, which was converted into the CAQM Act, 2021 following parliamentary approval.

The CAQM Act, 2021: Statutory Design and Powers

The CAQM Act, 2021 — formally, the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 (No. 29 of 2021) — is one of the most centralised environmental statutes India has produced. Its architecture gives the Commission powers that expressly override state governments and State Pollution Control Boards in all matters relating to air quality in the NCR [1].

Section 12(1) of the Act provides: “Notwithstanding anything contained in any other law for the time being in force, the Commission shall have the power to take all such measures, issue directions and entertain complaints, as it deems necessary or expedient, for the purpose of protecting and improving the quality of the air in the National Capital Region and adjoining areas.” Section 12(2)(xi) empowers the Commission specifically to “issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.” The explanation appended to this provision makes clear that this directional power includes the authority to order “the closure, prohibition or regulation of any industry, operation or process” and the “stoppage or regulation of the supply of electricity or water or any other service.”

Section 14 provides enforcement teeth. It empowers the Commission to initiate proceedings against any officer who fails to comply with its orders, with non-compliance punishable by imprisonment of up to five years, a fine of up to one crore rupees, or both. All appeals lie, not to civil courts, but before the National Green Tribunal. This structure was designed to insulate CAQM’s functioning from political interference while ensuring accountability through specialised environmental adjudication.

Despite this formidable statutory design, the Commission has struggled to translate legal authority into consistent on-the-ground enforcement. The Graded Response Action Plan — a tiered framework of emergency air quality measures introduced by the EPCA and continued by CAQM — was revised in September 2024 to be implemented proactively based on meteorological forecasts rather than reactively once AQI thresholds had already been breached. Yet, as the winter of 2024 demonstrated, this proactive mandate went largely unobserved.

The Constitutional Underpinning: Article 21 and the Right to Clean Air

Before examining the judiciary’s specific interventions, it is necessary to locate this discourse within the constitutional framework that makes judicial supervision both possible and, in India’s peculiar jurisprudence, almost inevitable.

In Subhash Kumar v. State of Bihar, (1991) 1 SCC 598, [4] the Supreme Court held that “right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.” While the petition in that case was dismissed on the ground that it was not filed in genuine public interest, the constitutional proposition it established became foundational. If clean air is an aspect of the right to life and personal liberty under Article 21, then persistent, preventable air pollution is not merely an administrative failure — it is a constitutional violation, and courts possess jurisdiction to remedy it.

This constitutional anchor is what has kept M.C. Mehta v. Union of India — Writ Petition (Civil) No. 13029 of 1985 — alive in its various iterations for more than four decades [2]. The case, filed against vehicular pollution and industrial emissions in Delhi, became a permanent channel through which the Supreme Court has monitored, directed, and occasionally castigated executive bodies responsible for Delhi’s air. The continuing mandamus issued in this case has, over the years, produced orders on CNG conversion for public buses, odd-even vehicle schemes, and, more recently, the implementation of GRAP IV restrictions.

The Court as De Facto Regulator: The 2024 Interventions

The winter of 2024 produced the most direct and pointed display of the Supreme Court’s regulatory posture in recent memory. On 18 November 2024, a bench of Justices A.S. Oka and A.G. Masih took up the air pollution crisis in Delhi in M.C. Mehta v. Union of India. The AQI in Delhi had crossed 401 on 12 November 2024, but the CAQM had waited until 14 November to implement Stage III of the GRAP — a delay the Court found wholly unjustifiable [5].

When the Union of India and CAQM sought to defend the delay by citing meteorological forecasts that predicted improvement, Justice Oka responded with a statement that cut to the heart of the institutional dysfunction: “This is a completely wrong approach… Even in anticipation of AQI decreasing the threshold limit, it is the duty of the commission to start implementation of GRAP III or GRAP IV, as the case may be.” This observation was not merely a rebuke — it was a restatement of CAQM’s own statutory mandate and a direct finding that the Commission had abdicated its function.

The Court did not stop there. It invoked Section 14 of the CAQM Act directly, directing the Commission to initiate proceedings against the officers responsible for the delays. It appointed thirteen advocates as Court Commissioners to physically monitor compliance at Delhi’s entry points — because police and traffic authorities had failed to prevent non-essential trucks from entering the city in violation of Stage IV restrictions [5]. Out of 113 city-entry checkpoints, only 13 had any meaningful enforcement presence, as the Amicus Curiae Aparajita Singh informed the bench on 22 November 2024.

The Court also held that even when AQI levels improved, the Delhi government could not unilaterally downgrade from Stage IV restrictions. It reserved that decision for itself — requiring the government to approach the Court for permission before relaxing emergency measures. This is not the role of an appellate court. This is the role of a regulator overseeing CAQM Delhi air pollution management.

By 5 December 2024, after studying updated AQI data, the bench permitted the CAQM to take a call on reducing Stage IV to Stage II restrictions “in view of the improvement of the situation” — essentially granting the Commission conditional autonomy subject to judicial concurrence [5]. The same evening, the CAQM withdrew Stages III and IV.

Judicial Activism or Institutional Gap-Filling?

Critics of this judicial posture argue that the Supreme Court’s deep involvement in what is, at its core, an executive function distorts constitutional boundaries. The legislature created the CAQM precisely so that the Court could stand back. When the Court supervises truck entry at Delhi’s borders, directs governments to use satellite data from South Korea’s GEO-KOMSAT 2A satellite, and tells state governments which pollutant categories to prioritise, it is performing a function that the CAQM Act assigned to an executive body [5]. There is a genuine institutional cost: prolonged judicial supervision may disincentivise the Commission from building independent decisional capacity, since any significant decision will eventually be ratified or overruled by the Court.

Defenders of the Court’s approach point to the empirical record. The CAQM’s predecessor, EPCA, spent twenty-two years as essentially an advisory body, and Delhi’s air quality deteriorated regardless. The CAQM itself — despite possessing statutory powers that override state governments — has repeatedly waited for AQI levels to become critical before activating emergency protocols. This demonstrates that Delhi air pollution continues to be a serious challenge, even under the CAQM’s authority. If the Commission is not going to use its statutory powers proactively, the argument runs, somebody must. And in India’s constitutional order, that somebody has consistently been the Supreme Court, armed with Articles 32 and 142 of the Constitution.

The Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 — the foundational environmental statutes — both impose obligations on state and central governments to prevent Delhi air pollution, but neither provides the kind of coordinated multi-state enforcement mechanism that the CAQM Act was meant to create. In their absence, the Court has historically served as the coordinating institution. The CAQM’s track record has not yet persuaded the Court that this historical role has become redundant.

The GRAP Framework: Regulation by Emergency Protocol

The Graded Response Action Plan deserves specific attention because it is the primary tool through which CAQM discharges — or fails to discharge — its mandate. GRAP divides responses to air pollution into four stages based on AQI thresholds: Stage I (Poor, AQI 201–300), Stage II (Very Poor, AQI 301–400), Stage III (Severe, AQI 401–450), and Stage IV (Severe Plus, AQI above 450). Each stage carries progressively stricter restrictions, culminating in Stage IV’s prohibition on non-essential trucks, suspension of construction and demolition activities, and recommended work-from-home mandates for public offices.

CAQM issues these restrictions under Section 12(2)(xi) of the CAQM Act. In November 2024, when AQI in parts of Delhi crossed 450, Stage IV was triggered. But the Supreme Court noted that the Commission’s revised September 2024 GRAP schedule — specifically designed to allow pre-emptive activation based on forecasts — had not been followed. The Court’s October 2018 order in M.C. Mehta, directing pre-emptive steps without waiting for pollution thresholds to be formally breached, had similarly not been complied with. The Court’s November 2024 order invoked Section 14 against the officers responsible [5].

This pattern — statutory mandate, non-compliance, judicial intervention — has repeated itself so regularly that it has ceased to be exceptional. The Supreme Court, sitting in its continuing mandamus jurisdiction, has become the effective appellate authority over CAQM’s emergency decisions, reviewing their proportionality and timing with a degree of scrutiny that any administrative law practitioner would recognise as judicial review on the merits, not merely on process.

Inter-State Coordination and the Limits of Statutory Authority

One dimension of the Delhi air Pollution crisis that the CAQM Act was explicitly designed to address is the problem of inter-state coordination. Stubble burning in Punjab and Haryana — the practice of burning paddy residue after harvest — contributes significantly to Delhi’s winter pollution. The CAQM’s mandate extends to coordinating with these states under Section 12 of the Act. In practice, the Commission has issued directions and imposed environmental compensation under the CAQM in NCR and Adjoining Area (Imposition, Collection and Utilization of Environmental Compensation for Stubble Burning) Rules, 2023, but farm fires have continued at scale.

The Supreme Court, in November 2024, took up the question of satellite monitoring of farm fires, directing CAQM and ISRO to collaborate on obtaining real-time data from geostationary satellites to overcome the limitation of NASA satellites that only capture data at 10:30 AM and 1:30 PM — a gap that, the Amicus noted, farmers had reportedly learned to exploit by timing their burning around satellite passes [5]. This level of operational detail — which satellite systems to use, how many checkpoints to staff — is not typically what courts do. But in the context of Delhi’s air crisis, the Court has found itself repeatedly compelled to fill these gaps.

Conclusion: An Unresolved Constitutional Question

The Commission for Air Quality Management, as constituted under the CAQM Act, 2021, is a statutory body with substantial powers: it overrides state governments, issues binding directions, imposes penalties up to one crore rupees, and operates beyond the jurisdictional limits of any single State Pollution Control Board. On paper, it is exactly what Indian environmental governance has long needed. In practice, its record has been characterised by delayed GRAP activation, insufficient inter-state coordination, and a tendency to manage crises rather than prevent them.

The Supreme Court’s continued deep engagement with Delhi’s air crisis — appointing commissioners, scrutinising satellite data, and deciding when GRAP stages can be relaxed — is not judicial overreach. It reflects a response to a genuine institutional deficit. The constitutional guarantee of clean air under Article 21, articulated in Subhash Kumar and strengthened through decades of M.C. Mehta litigation, requires active enforcement. When the designated enforcer, in this case the CAQM, fails to act decisively, judicial intervention becomes necessary to manage Delhi air pollution effectively.

The more fundamental question is whether this arrangement is sustainable or desirable. The Supreme Court’s docket is already stretched. Deep involvement in technical air quality management pulls judicial attention from other constitutional obligations. The CAQM’s effectiveness depends, ultimately, on it developing the institutional confidence to act without awaiting judicial affirmation. Whether that confidence emerges — and whether the Court is willing to step back once it does — will determine whether the CAQM becomes what Parliament intended: an autonomous, effective environmental regulator, rather than a body that operates only under judicial supervision.

References

[1] Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 — PRS Legislative Research Overview: https://prsindia.org/billtrack/the-commission-for-air-quality-management-in-national-capital-region-and-adjoining-areas-ordinance-2021

[2] M.C. Mehta v. Union of India, W.P. (C) No. 13029 of 1985 — Indiankanoon (January 2020 Order): https://indiankanoon.org/doc/16059052/

[3] Aditya Dubey (Minor) v. Union of India, W.P. (C) No. 1135 of 2020 — Indiankanoon (December 2021 Order): https://indiankanoon.org/doc/97319720/

[4] Subhash Kumar v. State of Bihar, (1991) 1 SCC 598, AIR 1991 SC 420 — Indiankanoon: https://indiankanoon.org/doc/1646284/

[5] Supreme Court Observer — “Delhi Pollution Crisis: Can the Supreme Court Clear the Air?” (November 2024): https://www.scobserver.in/journal/delhi-pollution-crisis-can-the-supreme-court-clear-the-air/

[6] Supreme Court Observer — “Supreme Court’s Evolving Role in Mitigating Delhi’s Air Pollution Crisis” (December 2024): https://www.scobserver.in/journal/supreme-courts-evolving-role-in-mitigating-delhis-air-pollution-crisis/

[7] M.C. Mehta v. Union of India (GRAP IV Order, November 2024) — Casemine: https://www.casemine.com/judgement/in/674509f6e8c0441261876d18

[8] Section 12 — CAQM Act, 2021 — Indiankanoon: https://indiankanoon.org/doc/22229493/

[9] CPR India Brief — “The CAQM Act 2021: An Overview”: https://cprindia.org/wp-content/uploads/2021/12/The-CAQM-Act-2021-An-Overview_Harish-Ghosh-Mathew.pdf

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