The Act was formulated after the honour killing of a 19-year-old pregnant woman, Manya Patil, for marrying a Dalit man. The 242^nd Law Commission of India Report defines ‘honour crimes’ as incidents of violence and harassment caused to couples marrying against the wishes of the community or family.

Though a pioneering initiative, the Act carries a conspicuous omission. Section 2(a) of the Act defines inter-caste marriage as marriage between persons belonging to different castes or sub-castes, while making no parallel provision for interfaith unions. While Section 5(1) carries a general prohibition barring acts against “any person” in the name of caste, custom, tradition or “honour”, the legislation’s structure, definitions and the stated object centre solely on caste, leaving out interfaith couples from its protection. This selective recognition is not neutral as it tracks the same suspicion of interfaith unions that the State has already written into the anti-conversion law.

The State has a protective obligation towards couples in inter-caste and inter-religious unions. In Lata Singh v. State of Uttar Pradesh and Shakti Vahini v. Union of India, the Supreme Court directed the Centre and state governments to protect inter-caste and inter-religious couples from honour-based crimes and to uphold fundamental constitutional values. The right of choice of one’s partner is constitutionally protected as per Shafin Jahan v. Asokan K.M., where the Court held that choice of a life partner, including interfaith, lies at the heart of dignity and autonomy as recognised in K.S. Puttaswamy (Retd.) v. Union of India and also invokes the freedom of conscience under Article 25. None of this compels the State to legislate protection at all. But that is not the claim: having elected to protect honour-crime victims, it cannot draw the protected class along religious lines.

It is important to contextualise this omission within the broader socio-political context. Karnataka’s anti-conversion law imposes stringent punishments for “unlawful conversions” and renders marriages between interfaith couples void where conversion is treated as unlawful under the Act. It empowers the family members of couples to file complaints alleging unlawful conversion, the same actors who perpetrate honour crimes in most instances.

This produces a stark contradiction. As per the 2026 Act, a person in an interfaith marriage is a victim deserving protection; however, the anti-conversion law casts aspersions on the same union, and the same person becomes a potential perpetrator. How can the act of marital choice deem a person a victim under one law and an offender under the other? It is this coexistence that makes the omission arbitrary rather than merely incomplete.

This contradiction lies at the heart of the issue. The distinction between inter-caste and inter-faith couples is perfectly intelligible; the flaw lies elsewhere. In The State of West Bengal v. Anwar Ali Sarkar, the SC laid down that Article 14 permits classification only where (i) there is an intelligible differentia and (ii) that differentia bears a rational nexus to the statute’s object. Here the object is protecting couples who marry against family/community wishes, and interfaith couples face that risk no less than inter-caste couples (242^nd Law Commission report). The second limb therefore fails.

A defender might say this is under-inclusion, not discrimination, and that a legislature may protect by stages. That answer works only where the omission holds a space open for later protection. Here it does not. The excluded couples are not merely unaddressed; they are branded as suspects by the State’s own 2022 anti-conversion law, which the 2026 Act leaves untouched. The State might have protected interfaith couples through some other instrument, but Karnataka has enacted none and offered no reason for confining this Act to caste; an unreasoned exclusion, set against an active regime of suspicion, is not phased reform but a choice. Silence set against that statute is not phased reform but sustained suspicion. In Shayara Bano v. Union of India, the Supreme Court’s test of manifest arbitrariness against legislative action as capricious, irrational and/or lacking an adequate determining principle reaches exactly this animus-based line. And Article 15(1) forbids it outright, since the disadvantage falls on couples only because their union crosses a religious line. That is a constitutionally impermissible classification, not a drafting defect to be cured later.

The court’s reasoning extends a doctrinal arc running from D. Bhuvan Mohan Patnaik (1975) through Francis Coralie Mullin (1981): prisoners retain Article 21 rights, and dignity does not pause at the prison gate. By locating open prisons within Article 21’s guarantee of life and personal liberty, the Court makes the constitutional mechanism explicit: open prisons allow prisoners to maintain family bonds, earn wages, and participate in community life, giving institutional form to a right that protects not merely physical survival but dignified existence. The shift displaces the older retributive grammar of incarceration with one organised around rehabilitation and reintegration.

Empirical evidence reinforces the court’s constitutional framing. According to the most recent National Crime Records Bureau (NCRB) Prison Statistics India (2023) report, Indian prisoners operated at 120.8% occupancy with several states above 150%. The Court records that daily per-prisoner costs in an open prison are roughly ₹49.6 per day, compared with ₹333 in a closed facility. Open prisons thus represent a rare convergence of fiscal rationality and constitutional fidelity, reducing overcrowding, preserving familial and economic ties, and lowering recidivism while consuming a fraction of carceral expenditure.

The judgment’s force lies in documenting the structural failures through which constitutional entitlement has not become custodial reality. Open prisons constitute only about six per cent of total prisons (para 19); several states have none at all. Eligibility criteria, including conduct records, time served, and offence category, vary arbitrarily across jurisdictions, with required periods of closed-prison incarceration ranging from four to twenty-one years depending on the state (para 55). Nine states, including Assam, Gujarat, Odisha, Punjab, Uttarakhand, Uttar Pradesh and West Bengal, have formally excluded women from eligibility; in Delhi, Karnataka and Tamil Nadu, women are eligible, but no transfer has occurred in practice (para 49).  The Court treats this gendered carceral geography as a violation of Articles 14 and 21 of the Constitution of India read together, with Article 14 guaranteeing equality before the law. Equal protection cannot survive a custodial regime that reserves rehabilitative space exclusively for men.

The international legal framework reinforces this position. The UN Nelson Mandela Rules (Rules 4 and 89) require that imprisonment serve reintegration and that open prisons, relying on self-discipline rather than physical security, provide conditions most conducive to rehabilitation (para 27). In comparative terms, trust-based systems, including Norway’s open prisons and the United Kingdom’s resettlement estate, demonstrate that low-security custody reduces reoffending without compromising public safety. The judgment invokes the Bangkok Rules (Rules 40 and 45), requiring authorities to develop gender-specific classification and use open prisons and home leave to the maximum extent for women prisoners (para 51).

The judgment’s remedial architecture raises a structural question. The Court has constituted a High-Powered Committee chaired by Justice S. Ravindra Bhat (Retd.) to draft common minimum standards for open prison administration across states, and directed every High Court to register suo motu writ petitions as a continuing mandamus (a judicial mechanism that keeps the writ petition live to monitor ongoing executive compliance) to monitor compliance with annual reports due by 31 March 2027. Prisons fall within the State List, the constitutional schedule of subjects reserved for state governments under India’s federal division of powers (para 32). The boundary between corrective oversight and the displacement of state authority will be tested in implementation; whether the Court is filling a governance vacuum or normalising judicial management of penal infrastructure is a question the judgment does not resolve.

Suhas Chakma reminds us that their Constitution does not measure justice by the height of prison walls but by the possibility of human reintegration. Open prisons are constitutionally required, internationally validated and administratively rational. The Indian State must now move from confinement to correction, and from custody to constitutional rehabilitation.

The Bill seeks to address omissions in the existing Foreign Contribution (Regulation) Act, 2010 (FCRA), which has undergone amendments in 2016, 2018, and 2020, and faces strict FCRA accreditation requirements that affect NGOs’ ability to receive foreign funding. At the heart of the present amendment lies the power of the designated authority to manage, use, transfer, or dispose of assets created from foreign contributions by NGOs whose FCRA certificate is cancelled, surrendered or ceased. Such assets will be utilised for public purposes, thereby amplifying the existing disparities in granting operational autonomy to NGOs.

While the Indian Supreme Court upheld that receiving foreign funding by charitable associations is not a vested right, the proposed amendment serves as a blatant mechanism for harassing, intimidating, and censoring NGOs. This reinforces concerns about undermining the right of NGOs to freedom of association, as protected by Article 19 of India’s Constitution and Article 22 of the International Covenant on Civil and Political Rights (the “ICCPR”). The prohibition on foreign funding enables the Government to target the NGOs, which is prejudicial in protecting the individual’s ability to operate NGOs without undue government interference. Statistical abstraction indicates that 21,933 organisations in India have lost their FCRA licenses, resulting in permanent closure or severe restrictions on their activities.

Amnesty International has warned that the amendment enables the government to further crack down on civil society under the pretext of national security. Without empathetically understanding the potential side effects of arbitrarily curtailing NGOs’ freedom of association, the government quietly turns FCRA into a political weapon. For receiving foreign funding, every NGO is mandated to obtain a certificate of registration, which is renewable every 5 years. Such a certificate is revocable when it prejudicially affects “public interest”.

The enforcement of the Bill will trigger the closure of NGOs that depend on foreign funding, leaving them to seek mercy at the whims and fancies of the designated authority.  UN Special Rapporteur Maina Kiai had signalled that the Indian government’s unfettered discretion in determining the grant of foreign funding to NGOs, based on notions of public interest, is vague and overbroad, imposing onerous and burdensome requirements on NGOs. International comparative practice indicates that access to foreign funding is vital to the exercise of freedom of association, and that governmental discretion in regulating such funding must be curbed. For instance, the United States (US) does not restrict NGOs from receiving foreign funding and stipulates that funding is not tied to a registration requirement, thereby protecting the freedom to form associations of NGOs. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq. (FARA) is a disclosure statute operating in the US to facilitate a transparent mechanism in ensuring financial accountability and anti-money-laundering safeguards by mandating any person or organisation (US or foreign) that is an agent of a foreign principal to make periodic disclosure about the receipts and disbursements of foreign funding utilised in conducting the activities of the NGOs.

The operational autonomy of NGOs in India has been severely curtailed to accommodate the state’s interests in achieving compliance with compliance standards. The Financial Action Task Force (FATF) in 2024 noted that India is only ‘partially compliant’ with safeguards for NGOs, as FCRA continues to stifle NGOs’ access to essential funds.

On April 1^st, the Opposition parties protested against the passage of the Bill, terming it “draconian” as seizure of assets by the designated authority on minuscule grounds risks NGOs, charities and civil society organisations from functioning effectively. Moreover, the Kerala Catholic Bishops’ Council and the Catholic Bishops’ Conference of India (CBCI) have highlighted that the proposed amendment is “dangerous, undemocratic, unconstitutional and contrary to principles of natural justice”. The Centre had no choice but to put the Bill on hold in the Lok Sabha.

The grave concern raised by the Bill reflects the prolonged influence of government authorities in clamping down on human rights defenders who have been targets of intimidation and abuse. It will be interesting to see how India’s democracy will oscillate between invalidating the present amendment and deferring to political volatility in the upcoming days of discussion.

The Statutory Framework and Its Limits

India lacks central legislation on witch hunting. States such as Jharkhand and Bihar rely on the Prevention of Witch (Daain) Practices Act, 1999, a statute that, despite criminalising witch branding, is structurally inadequate. NCRB data records approximately 2,500 witchcraft-related murders between 2000 and 2016, averaging 150 deaths annually. A 2024 Nirantar Trust survey documents systematic underreporting, as authorities classify such cases as personal disputes, erasing the gendered dimension of the violence entirely.

Four structural deficiencies compound this failure. First, Section 4 of the Act prescribes a maximum of six months’ imprisonment for branding a woman as a witch and subjecting her to torture, grossly disproportionate to the harm caused. The same conduct, prosecuted under the Bharatiya Nyaya Sanhita (BNS), attracts up to seven years for grievous hurt, creating a de facto “legal discount” for superstition-motivated violence. Second, the Act inadequately addresses ojhas (faith healers) who routinely instigate mob violence yet face equally lenient penalties a sharp contrast with BNS Section 49, under which an instigator bears the same punishment as the principal offender where the abetted act is committed. Third, most offences remain bailable, enabling perpetrators to return and intimidate witnesses, precipitating the evidentiary collapse behind persistently high acquittal rates. Fourth, the Act provides no rehabilitation, relocation, or witness protection, forcing survivors back into hostile environments.

Constitutional and International Obligations

These failures carry serious constitutional and international human rights consequences. Witch hunting strikes at the Constitution’s most fundamental guarantees. Article 21, which the Supreme Court in Francis Coralie Mullin v. Union Territory of Delhi (1981) read to encompass dignity, imposes a positive obligation to protect life against non-state violence. Article 14 demands equal protection of law; the state’s tolerance of superstition-motivated killings constitutes a discriminatory denial of that protection to those most at risk. The structural impunity built into the 1999 Act is itself a constitutional violation.

At the international level, Article 2 of CEDAW requires states to eliminate discriminatory customary practices; Article 6 of the ICCPR guarantees the right to life and security. International human rights law imposes a duty of due diligence demanding proactive prevention, not merely reactive punishment. The absence of accessible healthcare and scientific education in rural and tribal regions creates a vacuum in which superstition flourishes. This neglect is itself a form of state failure.

A Two-Pronged Way Forward

Addressing this crisis demands both legislative reform and structural investment. India must enact a National Prevention of Witch-Hunting Act that classifies witch branding as a non-bailable, non-compoundable offence, aligns sentencing with BNS provisions to close the existing legal discount, and introduces strict liability for ojhas and other instigators ensuring those who mobilise mob violence bear the same accountability as those who execute it.

Legislative reform alone is insufficient. Academic analysis consistently calls for dedicated oversight machinery: states should establish District Vigilance Committees comprising legal, medical, and gender rights experts to monitor high-risk communities and coordinate rehabilitation. Mandatory witness protection and state-funded relocation must ensure survivors are not compelled to remain near their attackers during trial. Since witch hunting is frequently deployed as an instrument of land dispossession, the law must also provide for property restoration with state-backed legal title, a model already signalled by the Assam Witch Hunting (Prohibition, Prevention and Protection) Act, 2015. Only through this dual commitment to punitive accountability and structural redress can India fulfil its constitutional obligations and move from reactive policing to proactive protection.

Although the term ‘Constitutional Morality’ featured in Dr. Ambedkar’s speech introducing the Draft Constitution, it was not expressly incorporated into the text of Article 13, which recognises power of judicial review. In 1951, the newly established Supreme Court of India declined to accept that the ‘spirit of the Constitution’, a term often used interchangeably with constitutional morality, constituted a legitimate ground for judicial review, holding that “the court should construe the language of Article 13 according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution.” This position was reiterated in State of Bihar v. Kameshwar Singh, despite Dr. Ambedkar appearing as a counsel and urging the Court to accept the spirit of the Constitution as a valid test of statutory legitimacy.

The tide turned with the landmark decision in Kesavananda Bharati v. State of Kerala, wherein the Court, while adjudicating upon the scope of the Parliament’s power under Article 368, held that the “basic structure” of the Constitution could not be amended. In its subsequent decisions, the Court expanded this basic structure, which now encompasses various fundamental rights and constitutional norms. The recognition and expansion of the basic structure doctrine created a clear anomaly: while a constitutional amendment passed by the Parliament could be struck down for breaching this ever-expanding doctrine, an ordinary legislation could be invalidated only on the limited ground of infringing Fundamental Rights in the Constitution. It is perhaps to remedy this very anomaly that constitutional morality emerged as a test for legislative validity, effectively elevating the undefined moral code within the Constitution over its express text.

The doctrine of constitutional morality played a crucial role in ending the prohibition on the entry of menstruating women into the Sabrimala temple. Article 25 and 26 of the Constitution guarantee religious freedoms to individuals and groups, respectively, subject to public order, health, and morality. Previously, the Court, while striking down the exclusionary practice, held that the term ‘morality’ in the aforesaid provisions must be understood as constitutional morality and not morality as perceived by individuals or religious sects. Thus, by reading constitutional morality into Article 25 and 26, the Court was able to uphold women’s right under Article 25 to enter the temple, despite the same being at loggerheads with the existing religious beliefs, while simultaneously limiting the ambit of denominational rights under Article 26 by denying constitutional protection to religious practices that are discriminatory, oppressive and exclusionary.

While advancing arguments in the ongoing review proceedings, the Solicitor General of India urged the Supreme Court to reinterpret the term ‘morality’ in Article 25 and 26 as “public morality and not some vague concept of constitutional morality”. If accepted, such an interpretation would not only result in denying menstruating women entry into the Sabrimala temple, but would also subject the legitimate exercise of religious freedoms, particularly by individuals belonging to marginalised groups, to popular yet regressive religious sentiments. Importantly, the Court was further urged to strike down the doctrine of constitutional morality altogether, with the Solicitor suggesting that “it better dies sooner”. However, such a declaration would dilute the Supreme Court’s recent judgments that have emboldened India’s human rights framework, and would crucially impact the fate of numerous constitutionally significant cases pending before the Court.

PAK and the Policing of Healthcare

The legal battle began with a 16-year-old girl, known as PAK, who experienced pregnancy complications in Kilifi County. She sought emergency treatment from Salim Mohamed, a trained clinical officer, who determined she had suffered a spontaneous abortion and  performed a life-saving abortion procedure.

During the procedure, police officers stormed the clinic, confiscated medical records, and arrested both the patient and the provider. PAK was forced to sign a confession without legal representation and was later charged with procuring an abortion under the Penal Code. This case highlighted a dangerous reality that, in Kenya, seeking medical help for a miscarriage can lead to a police cell.

The High Court: Prioritizing Dignity and Health

In 2022, the High Court issued a momentous decision in favour of reproductive rights. Justice Nyakundi quashed the criminal charges, declaring that abortion care is a fundamental right under the Kenyan Constitution. The court found that Article 26(4), which allows abortion when a woman’s life or health is in danger, must be read alongside the rights to privacy, health, and dignity.

The judgment was precise in its practical impact. It affirmed that the opinion of a single trained health professional is sufficient to authorize a legal abortion. It also ruled that the police lack the medical expertise to second-guess these clinical decisions. By aligning Kenyan law with global standards, the High Court recognized that forcing a woman to carry an unwanted pregnancy to term is a violation of her bodily integrity.

The Court of Appeal: A Return to Restriction

This progress was short-lived. On 24^th April 2026, the Court of Appeal overturned the High Court decision. The appellate judges held that abortion is not a fundamental right. Instead, they argued the Constitution “expressly prohibits” it, viewing the health exceptions in Article 26(4) as narrow gaps in a general ban. Consequently, the court reinstated the criminal proceedings against the teenager and her doctor.

The reasoning of the Court of Appeal contains significant analytical weaknesses. It relies on a rigid interpretation of Article 26(1), which states that life begins at conception, while ignoring the requirement to balance this against the rights of the living woman. By prioritizing the criminal process over constitutional vindication, the court has allowed the punitive 1963 Penal Code to effectively override modern human rights protections.

A Conflict of Constitutional Interpretation

The Appeal Court failed to interpret the Constitution as an integrated whole. A holistic reading requires that rights to life, health, and non-discrimination sustain each other. When the law treats a medical procedure as a crime, it creates a chilling effect that deters health providers from offering legal services for fear of harassment.

This decision signals a retreat from the living instrument doctrine that has long guided Kenyan jurisprudence. By viewing Article 26(4) only as a restrictive exception rather than a right-based protection, the court has marginalized the health needs of women.

Beyond the Paper Promise

This decision is a major setback for the rule of law. It suggests that constitutional gains can be clawed back, leaving the most vulnerable, like PAK, at the mercy of an aggressive criminal justice system. If seeking reproductive healthcare remains a gamble with one’s liberty, the daily toll of seven deaths will continue to rise. Sadly, the Appellate Court has traded the promise of dignity for the safety of a legalistic cage. As this matter inevitably moves toward the Supreme Court, the apex court faces a defining choice between upholding the transformative spirit of the Constitution or allowing the shadow of the Penal Code to eclipse the right to health. Until the courts reconcile the law with the reality of women’s lives, the Constitution will remain a magnificent promise on paper while seven more women die in the shadows today.

Brief background

The Aravalli hill ranges in India have consistently preserved the natural diversity and acted as a natural defence against the expansion of the Thar desert in northwest India. Since November 2025, the Indian Supreme Court has been critiqued for declaring an operational definition of the Aravallis (“…any elevation of a landform of more than 100 metres in the Aravalli districts…”) and of Aravalli range (“…several hills within the proximity of 500 metres from each other…”). What necessitated this definition was the growing cases of illegal mining in light of lack of a uniform definition adopted by all the states.

The definition has been criticised by environmentalists and scholars alike for opening up the doors to incessant mining, as it leaves out a huge number of hills from its ambit. What has been particularly concerning is the impact of such mining on reduced groundwater levels for western Rajasthan, a state in northwest India. Given the role of the Aravallis in preserving the ecology, there have been massive protests, calling for doing away with the problematic definition. It has been claimed that the definition has the potential to retrospectively validate otherwise unlawful mining activities, happening within the 100-meter range.

Against this conundrum, granting personhood to the Aravallis may play a vital role in the mobilization efforts to save the hills.

Indian perspective of Personhood

The ‘rights of nature’ jurisprudence derives from the ecocentric approach to environmental protection that recognises the intrinsic value of natural resources and has been greatly shaped by judicial decisions in India. The only attempt towards statutory recognition of legal personhood, a private members’ Bill in 2024, did not see light of the day. The Courts have gone on to grant legal personhood to specifically identified resources like a certain river, mountain or lake, or the ‘mother earth’ in general, implying that the resources are “living entities with all corresponding rights, duties, and liabilities of a living person”.

Then, there are cases that have obliquely recognised rights of ecological resources in an attempt to protect them. For instance, in a noted decision, Orissa Mining Corporation v. Ministry of Environment and Forest, the Indian Supreme Court recognised the religious and spiritual rights of the local community over the bauxite rich hills to order a referendum of the local Gram Sabha (association of local community). Years of protests by the indigenous communities opposing the environmental clearance granted to a mining company to extract bauxite from the Niyamgiri hills, culminated in the decision.

Implications on conservationism

By recognising the religious beliefs of the tribal population in Niyam Raja, or the ‘king of Law’, the deity residing atop the Niyamgiri hills, the Court impliedly recognised the intrinsic rights of the hills, by considering it a ‘living entity’, without actually conferring personhood in explicit terms. Thus, this decision has been hailed as one of the early decisions that contributed to the rights of nature jurisprudence. The process of recognition of rights was instrumental in changing the status quo i.e. grant of mining rights in the hills. The rights recognition gave an opportunity to the Courts to refer the matter back to the Gram Sabha. This suggests that the very implied recognition of rights added the much-needed impetus to the social mobilization for preservation of the resource in question. This must serve as a motivation for litigants, attempting to protect certain natural resources to push for an explicit recognition of personhood and for judges, to grant them.

Conclusion

Drawing parallels between the Niyamgiri movement and the Aravalli movement, it can be argued that grant of personhood may have long standing implications for protection of the latter. The grant of personhood may give the Aravallis a standing in the Courts, which is currently missing. As per the current definition, some hills fall outside its scope, creating a lacuna. Granting personhood eliminates this gap, allowing the entire Aravalli range to be understood as a single being or entity, with no room for bifurcation within the range to identify which is a hill, which is not. Thus, intrinsic value of the hill range can be recognised, irrespective of its height and other quantitative parameters. While there is no deification of the Aravalli hills, like that of the Niyamgiri, it still is home to various ‘sacred groves’ and is considered a spiritual heritage by the local communities, with their core belief lying in the preservation of nature. Therefore, the Niyamgiri experience must be used as an example by everyone fighting for the cause, to call for grant of personhood on the Aravallis.

This amendment follows the Gujarat Freedom of Religion (Amendment) Act 2021, parts of which were stayed by the Gujarat High Court. The court had held that provisions treating conversion for the purpose of marriage as automatically suspect could interfere with an individual’s right to choose a partner. India’s Constitution guarantees the right to life and personal liberty under Article 21, which the Supreme Court has consistently interpreted, in landmark judgments such as Shafin Jahan v Union of India (2018) and Navtej Singh Johar v Union of India (2018) to include the freedom to choose one’s partner. Gujarat’s proposed amendment is also at odds with the ruling in K.S. Puttaswamy v. Union of India (2017), where the Supreme Court had held that decisional autonomy in matters relating to family, marriage and intimate choices is protected under the right to privacy. Further, in Laxmibai Chandaragi B v. State of Karnataka (2021), the Supreme Court reaffirmed that consenting adults have the right to marry a person of their choice, regardless of familial or social approval.

The proposed amendment reflects a broader pattern of expanding state surveillance and scrutiny over intimate decisions. Laws such as the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, pejoratively described as the “love-jihad” law, were introduced on the premise that inter-faith marriages are taking place under coercion or manipulation, thereby justifying state intervention in these matters. Similarly, more stringent rules were introduced in Uttar Pradesh wherein couples could only register their marriage in a district where at least one of the spouses or their parents live, thereby making elopement to marry more difficult. Further, under the new rules, couples would  also have to submit an affidavit from the priest who solemnised the wedding, containing their full details, along with a video recording of the ceremony. Similar measures, under The Special Marriage Act 1954, have subjected inter-faith marriages to long waiting periods, tedious verification processes and intrusive inquiries.

More recently, Gujarat has passed the Uniform Civil Code Bill 2026, mandating registration of all marriages (with a fine of up to ₹10,000 for non-compliance within 60 days) and live-in relationships (punishable by up to 3 months imprisonment or ₹10,000 fine). These measures, although presented as mere bureaucratic formality, often create an environment of fear and suspicion around relationships that depart from social norms. Further, the implications of such laws and policies are not abstract. For many couples, particularly those in inter-caste or inter-faith relationships, privacy is not merely a preference but a safeguard against harassment, arrest, or even violence. India’s long and troubled history of “honour crimes” targeting individuals who marry outside their caste or faith makes these fears all too real. In such contexts, public notification may expose couples to precisely the risks that constitutional protections are meant to guard against. The right to choose one’s partner, as constitutional courts in India have repeatedly affirmed, is a core aspect of individual liberty. By regulating who can love and marry, Gujarat’s proposed amendment tests the limits of personal autonomy under the law.

The Wholesale Ban Without Individualized Assessment

The Court disclaims intent to stifle critique, yet bans an entire chapter without identifying which passages warrant suppression. This violates the principles set out in the United Nations’ (UN) UN Human Rights Committee’s General Comment 34, the authoritative interpretation of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which protects freedom of expression. The Committee held that expression restrictions cannot include blanket publication bans unless authorities demonstrate that specific, non-severable content can be legitimately prohibited. The wholesale ban reveals the Court treats teaching students about judicial corruption as presumptively illegitimate.

The blacklisting without a hearing compounds this. The European Court of Human Rights (ECtHR), in Kyprianou v Cyprus, identified a structural problem also present in the Indian Supreme Court’s orders: when the judge who is the subject of criticism also adjudicates the contempt charge, fair-trial guarantees are violated. Here, the entire institution judges its own criticism.

Institutional Capture Through Circular Logic

The orders reveal progression from suppression to control. Having banned the chapter, the Court extended its reach to monitor who discusses orders and determine who may teach about the judiciary. The March 11 order directs the identification of social media accounts that acted irresponsibly, but provides no standard defining irresponsibility, no safeguards, and no temporal boundary.

The UN Office of the High Commissioner for Human Rights has documented that even the possibility of surveillance creates a chilling effect on Article 19 ICCPR expression rights. Citizens must now calculate whether discussing a Supreme Court order might expose them to contempt liability. This transforms critique from democratic practice into risk calculation.

But surveillance alone does not complete institutional capture. The curriculum mandate does. The Court requires any rewritten chapter to be approved by a committee, including a former judge collaborating with the NJA. The judiciary determines whether its criticism is legitimate, blacklists academics whose work fails this test, and then mandates that judges approve future curriculum.

The ECtHR in Mustafa Erdoğan v Turkey, applying Article 10 of the European Convention on Human Rights (protecting freedom of expression), held that academic freedom extends to the examination and criticism of public institutions, as democracies require independent assessment. India’s Supreme Court requires such examination to be vetted by the institution examined. When courts determine what may be taught about courts, they eliminate external scrutiny that legitimacy requires and invert accountability fundamental to democratic governance.

Why Nemo Judex Matters

When courts control boundaries of permissible criticism, they claim institutional privilege incompatible with democratic accountability. The global retreat from scandalizing contempt reflects this. The United Kingdom abolished the offense of scandalizing the court in 2013 through Section 33 of the Crime and Courts Act 2013, emphasizing that respect for the judiciary is undermined by criminal offenses that provide special protection from criticism. Canada’s Ontario Court of Appeal in R v Kopyto held that the same offense violated freedom of expression under Section 2 of the Canadian Charter of Rights and Freedoms, reasoning that courts earn public regard through merit, not through suppressing questioning.

This principle (that courts earn respect through merit, not by suppressing criticism) is embodied in international standards. The Commonwealth Latimer House Principles, which India endorses, state that contempt proceedings should not restrict legitimate criticism of judicial performance. The 2002 Joint Declaration by the UN, the Organization for Security and Cooperation in Europe (OSCE), and the Organization of American States (OAS) Special Rapporteurs on freedom of expression declares that special restrictions on commenting on courts cannot be justified. These instruments reflect a principle about what courts protect when invoking contempt power.

South Africa’s Constitutional Court, in S v Mamabolo, captured that principle: contempt law protects not judicial officers’ self-esteem or dignity, but the moral authority of the judicial process, which depends on informed public scrutiny as a democratic check. When courts police the boundaries of criticism, they undermine the legitimacy they claim to protect. India’s Supreme Court exemplifies this: requiring judicial pre-approval for curriculum on judicial corruption exercises institutional veto over accountability itself.

Proving the Thesis Through Suppression

The Court proved what it sought to suppress. Banning curriculum on judicial corruption, blacklisting academics without hearings, and mandating judicial approval to treat critique as a threat rather than accountability. If courts control what is taught, what prevents other institutions from claiming privilege? Where does self-protection end and accountability begin? When global consensus rejects contempt to shield courts, why India’s opposite trajectory? The institution that claims to protect independence demonstrates the insecurity that undermines it.

Background

Article 22 of the Constitution of India recognises laws providing for preventive detention, i.e. detention without a trial.  These powers are an extraordinary measure, which operate outside the ‘normal’ criminal justice system. A detenu is not afforded legal representation, only a personal hearing [Article 22(5)]; and the detention order is only subjected to review by an executive body (the Advisory  Board) [Article 22(4)].

Constitutional courts recognise that these powers are a draconian measure, confer arbitrary powers to the state, should not be used to circumvent ordinary criminal procedure, and are part of the country’s colonial legacy. Nevertheless, time-and-again, their constitutionality has been upheld (see here, here and here). Originally enacted with temporal limits on their operation, they are fully entrenched in the Indian legal system with four central legislations and several state-laws authorising these powers.

The Problem of Misuse

The Crime in India 2023 report by the National Crime Records Bureau shows that 33,070 persons were detained in 2023 under various preventive detention laws; out of which, 16,758 were released by the Advisory Board itself. Therefore, about half of all the people detained were released after an internal, administrative review, without any judicial oversight.

Though there is not enough data on the number of detention orders quashed by pursuing the remedy of habeas corpus, several studies suggest that  most of the orders challenged before constitutional courts are eventually quashed. For example, an empirical study of habeas corpus cases before the Madras High Court from 2000 to 2022 showed that in 87.9% of the cases, the detention order was quashed (also see Madras High Court’s own analysis at para 15); similarly, a study of habeas corpus cases arising from National Security Act, 1980 at the Allahabad High Court showed that between 2010 and 2019, 73 out of 101 cases (72.2%) the detention order was quashed.

Penal Consequence of Preventive Action

Mr Wangchuk’s detention is not an aberration but another instance in a series of using the preventive laws against political dissent by the State. These powers have been routinely used against journalists, political opposition, and human rights activists (see here and here). In Mr Wangchuk’s case, the detention order is presumably for a speech given about two weeks prior to the incident of violence and in effect, punishes him for the violence that ensued.

The penal character to the detention also comes with Mr Wangchuk’s treatment as a prisoner instead of a detainee. He has been imprisoned in a solitary cell at Jodhpur Central Jail, far away from his residence in Ladakh and reportedly suffers from medical distress. While the habeas corpus petition against his detention remains pending, his detention in prison enters its sixth month. It is troubling that the extraordinary, preventive powers are used by the State to effectively punish the detenu, bypassing normal criminal justice procedures, which would afford him safeguards that are provided to every accused in a criminal trial.