April Fools' Day as a Constitutional Thought Experiment

Introduction 

There is something oddly instructive about April Fools' Day. Not because deception is admirable, or because the law has anything particularly useful to say about pranks. But because the day - as a social practice - brings into focus something that constitutional discourse often struggles to articulate cleanly, i.e., a commitment to open discourse is not the same as a commitment to accurate discourse.

One way to see this through is with the mechanics of a prank itself. April Fools' works (at least when it does) - because everyone, at some level, knows the rules. The deceiver deceives; the deceived is deceived; and more crucially, the deception is eventually made known. The lie is not the endpoint. It is just one layer within a multi-layered structure that presupposes disclosure. Nobody walks away from a well-executed April Fools' prank concluding that communication has broken down. If anything, the experience sharpens one's instincts. I was fooled once. I must be careful the next time. 

In this post, I do not wish to argue that constitutional free speech doctrine should be modelled on April Fools' Day. That would be absurd and, frankly, the sort of argument that deserves to be published on a fools’ day. But the analogy does useful work as a starting intuition, and one worth laying bare on the blog.

The Standard Objection(s) to False Speech

The standard objection to protecting false speech goes roughly like this - falsehood has no value; it distorts rather than informs; and a constitutional order has no principled reason to protect statements that undermine the very premises of democratic participation. 

To be fair, the argument is not completely without teeth. It proves a little too much. Democratic discourse has never been - nor has it ever pretended to be - a space in which only verified truths circulate. It is a space of claims and counter-claims - exaggerations and strategic omissions - and of course, some outright lies. 

What distinguishes the system, however, is the openness. Statements, accurate or otherwise, are expected to be contestable. The audience is not a passive recipient of pre-screened information. It is instead, an active participant in an ongoing communicative process. To insist that only true statements may enter this space is to then misunderstand what the space is in the first place. For it treats truth as a precondition of speech rather than something that speech, over time (through discourse), aspires to produce.

The April Fools’ Analogy 

This is where the April Fools' analogy earns its keep. The prank works (if it does!) - not because the audience is passive, but precisely because it is not.

Being fooled is, in a strange way, proof of engagement. The recognition that follows - the moment of correction - is itself part of the communicative process (that I speak of). Scale this up and you have something close to what public discourse is supposed to do. Citizens encounter claims, evaluate them, question them, and sometimes accept them incorrectly. The system's response to error is not pre-emptive suppression, but the creation of conditions (counter-speech, education, etc) under which correction becomes possible.

Some Gray Areas

None of this is to be glib about the harms that false speech can cause. Outside the limited context of April Fools' Day, lies do not come with built-in correction mechanisms. The harms are real, often irreversible, and disproportionately visited upon those with the least power to respond effectively.

At any rate, a regime that empowers the State to identify and suppress falsehood in public discourse is making a much more structural choice about who adjudicates truth. This is so, because it shifts the burden from citizens evaluating competing claims to authorities certifying what claims may be made. Besides, nobody ever really seriously argues that free speech is an absolute bar on all regulation of false statements (targeted regulation of specific, demonstrably harmful falsehoods such as fraud, perjury, defamation, etc - have always been part of the law of the land). 

There is a further wrinkle worth noting. The assumption underlying strong anti-falsehood positions is that the State can reliably identify falsehood. This is because apparently the category is determinate enough to be workable as a standard in law. 

In practice, much of what circulates in public discourse as “false” is better understood as contested. Statements about policy effects, about historical interpretation, about the likely consequences of proposed legislation. These are not false in the way that two plus two equals five is false. They are uncertain / disputed / and more often than not ideologically inflected. A falsehood-suppression regime that captures only clear-cut lies would be narrow, indeed. But one that reaches into contested territory would be something rather more troubling.

Concluding Thoughts

What, then, is the constitutional commitment?

It is not to the truth of individual statements. Nor is it to the proposition that all speech is equally valuable. It is, but, to the integrity of the process through which truth is argued over and arrived at. 

April Fools' Day, for all its frivolity, captures that intuition rather well. Communication does not break down in the presence of falsehood. The prank ends, the realisation follows, and one is left - slightly embarrassed, but a little more careful for the next time. What would genuinely undermine communication is prior removal of the very capacity to be misled and recover from it. For a public that has never had to confront falsehood is unlikely to have developed the faculties that democratic participation requires.

The defence of false speech, in that sense, is not so much a defence of lying as it is a defence of the practice of not being lied to unchallenged. And that, perhaps, is the distinction worth insisting on - even on days that are not the first day of April.

Statelessness & Citizenship in Assam (a Primer)

A brief note at the outset - this is a primer intended to organise and set out Assam’s statelessness issue in accessible terms. It is necessarily incomplete. I should also note, by way of disclosure, that I have been engaging with this subject directly; and shall revise and expand this account as my understanding continues to develop.

Introduction

The statelessness crisis in Assam concerns the exclusion of individuals from legally recognised citizenship - a status that determines formal membership in a state and access to rights, protections, and political participation - primarily through the National Register of Citizens (“NRC”) process. In Assam, historical migration, a fixed cut-off date (24 March 1971), and stringent documentary requirements have made citizenship contingent on proof of ancestry. Many residents, unable to meet these evidentiary standards, face exclusion. Thus creating a population that is neither recognised as citizens nor effectively deportable -- raising administrative and constitutional concerns about rights and state accountability.

Political History: Migration, Agitation and the Assam Accord

The crisis in Assam can perhaps best be understood as the product of a specific political history shaped by migration and regional mobilisation. Migration into Assam dates back to the colonial period, when administrative and economic policies encouraged movement (particularly of labour and cultivators) from Bengal into the Brahmaputra valley. These patterns continued, in different forms, after independence and Partition. Over time, migration came to be perceived not merely as an economic or demographic issue, but as implicating questions of land, language, and political representation.

By the late 70s, these concerns assumed an organised political form in the Assam Movement (1979-85), led principally by student bodies. Its central demand - the identification and exclusion of “foreigners” from electoral rolls - was framed as a claim about the integrity of representative government. The target was thus dual:

1. Migrants - as alleged entrants into the polity, and 

2. The state - as having failed to regulate and, in effect, having legitimised their presence through electoral inclusion. 

To be sure, the movement’s duration and intensity point to a sustained political articulation of belonging, rather than a contingent or episodic disturbance.

The Assam Accord of 1985 (“Accord”), thus, marked the formal political resolution of this movement. It introduced a fixed cut-off date in the face of 24 March 1971 for the detection and classification of foreigners. While largely presented as a settlement, the Accord effectively deferred resolution by embedding a retrospective and document-dependent framework for determining citizenship. This political compromise would later be translated into legal provisions and administrative mechanisms, forming the basis of the contemporary citizenship regime in the state.

Legal History: Statute, Exception and the Allocation of Burden

The law that governs citizenship in Assam can be located within the broader structure of the Citizenship Act, 1955. However, it still departs in significant ways. While the Act sets out general modes of acquiring citizenship (say for eg. by birth, descent, registration, and naturalisation) the position in Assam is shaped by the insertion of Section 6A pursuant to the Accord. The provision introduces a state-specific regime, incorporating the 24 March 1971 cut-off and creating differentiated consequences based on date of entry. And so, in this sense, while Assam does operate within the general law of citizenship - it operates as a qualified exception to it.

A further layer is added by the Foreigners Act, 1946, which governs the identification of “foreigners.” The significance of this statute lies in its procedure. For it places the burden of proof on the individual to establish that they are not a foreigner. This allocation of burden is consequential, because it reorients the process from one in which the state must establish exclusion, to one in which the individual must establish inclusion. 

This position was briefly altered in Assam by the Illegal Migrants (Determination by Tribunals) Act, 1983, which shifted the burden onto the complainant and introduced procedural safeguards. However, in Sarbananda Sonowal v. Union of India, the Supreme Court struck down the IMDT Act, holding that it impeded the detection of illegal migrants. The effect of this decision was to restore the operation of the Foreigners Act, and with it, the placement of the evidentiary burden on the individual.

The legal structure can thus be characterised by two features. 

• First, citizenship in Assam is governed by a retrospective and territorially specific rule embedded in Section 6A. 

• Second, its determination operates through a procedure that places the evidentiary burden on the individual. 

Together, these features convert citizenship from a status presumptively held into one that must be affirmatively established tied to a fixed point in time.

Administrative Framework: The Many Processes of Determination

Citizenship in Assam is determined through a set of administrative and quasi-judicial processes that require individuals to prove that they are not “foreigners.” 

1. The most well-known of these is the NRC, which requires residents to show, through documents, that they or their ancestors were present in Assam before 24 March 1971. 

2. Alongside this, FTs decide individual cases referred by the border police, assessing whether a person is a foreigner under the law. 

3. In the electoral process, some individuals are marked as “D-voters” (doubtful voters), which triggers further scrutiny of their citizenship status. 

These processes operate together, meaning that citizenship is not determined once, but questioned repeatedly across different foras.

Concerns: Structure, Process, and Status

Institutional Basis of Foreigners’ Tribunals

Foreigners’ Tribunals (“FTs”) occupy a central role in determining citizenship, yet their institutional foundation remains relatively thin. They are constituted through executive orders under the Foreigners Act, rather than a detailed statutory law that specifies composition, tenure, qualifications, or uniform procedure. This raises questions of civil status, with significant consequences for rights and liberty, that are decided by bodies whose design is largely delegated and variably implemented. The absence of a comprehensive legislative scheme naturally contributes to inconsistency in standards and weakens the claim that these determinations rest on stable adjudicatory foundations.

Due Process

Proceedings before FTs are formally quasi-judicial but do not consistently approximate judicial safeguards. There is no uniform code. Access to legal representation is uneven, and individuals often engage with proceedings under conditions of informational and resource asymmetry. The burden of proof lies on the individual, who must establish citizenship through documentary evidence, often in response to state-initiated references. In this setting, due process concerns arise less from isolated procedural violations and more from the cumulative effect of a system that places determinative weight on processes lacking safeguards.

Evidentiary Regime

The evidentiary model privileges documentary proof of presence or lineage prior to 24 March 1971. This model assumes the availability and reliability of records over long time spans. In practice, documentation is frequently incomplete, inconsistent, or affected by variations in spelling, age, and familial linkage. The system treats such discrepancies as significant, thereby converting ordinary features of record-keeping into grounds for exclusion. 

Rights in Conditions of Uncertain Status

Uncertainty of citizenship status has direct implications for the exercise of rights. While the Constitution extends certain protections to all “persons,” access to many entitlements (particularly political participation and aspects of welfare) remains tied to recognised citizenship. Individuals marked as doubtful voters or subject to tribunal proceedings may experience restrictions in practice, even where formal rights are not explicitly withdrawn. The issue is thus not only formal exclusion, but the emergence of contingent access to rights.

Statelessness in Practice

The framework produces conditions that approximate statelessness, even in the absence of formal designation. Individuals excluded from the NRC or declared foreigners are often not deported, particularly where no receiving state acknowledges them. This results in a population that remains within the territory without secure legal status. Statelessness here thus arises from the absence of effective recognition by any state, combined with the persistence of regulatory control within the territory.

Conditions of Precarity

A defining feature of the system is the absence of closure. Citizenship is not conclusively determined at a single point but remains open to repeated scrutiny across multiple forums (NRC processes, tribunal proceedings, and electoral classifications). Individuals may be required to defend their status over extended periods, with significant financial and personal costs. The possibility of detention, while not uniformly realised, operates as a background condition. 

Arbitrariness and Structure

These features collectively raise constitutional concerns that are structural in nature. The combination of a retrospective cut-off date, a territorially specific regime, and a documentation-dependent evidentiary framework creates conditions where similarly situated individuals may be treated differently. 

The issue is not limited to classification as such, but extends to the manner in which classification is operationalised through administrative processes. The resulting variability engages principles of equality and non-arbitrariness, suggesting that the difficulty lies not merely in implementation, but in the design of the regime itself.

To Conclude

This primer has attempted to set out the structure and operation of the citizenship framework in Assam, tracing (1) its political origins, (2) legal framework, and (3) administrative functioning. The account suggests that the present concerns arise less from isolated failures and more from the ordinary working of a system that renders belonging contingent and persistently open to contestation.

(Endnote – Further Readings)

For those interested in a more detailed engagement with the issues outlined here, the materials provided here might be useful starting points.

(To be updated)

For Constitutional Fidelity (even in matters of faith) — Eyes on the Sabarimala Review

The Sabarimala Temple litigation is often narrated as a dispute about the entry of women of menstruating age into a shrine dedicated to Lord Ayyappa. That description, however, is accurate only in the narrowest sense. The real - and perhaps more difficult - question raised by the dispute is not simply restricted to who may enter a temple, but how a constitutional court ought to see religion. 

This is so, for a court that refuses to examine religious practices abandons individuals to tradition. On the other hand, a court that examines them too closely becomes, in effect, a theological tribunal. Sabarimala sits precisely at this fault line. 

For context, the Supreme Court in Indian Young Lawyers Association struck down the exclusion of women between the ages of ten and fifty from entering the temple. While the majority opinions (by Misra & Khwilkar J.J., Chandrachud J. and Nariman J.) framed the practice as incompatible with the constitutional guarantees of equality and dignity - in dissent Malhotra J. - argued that courts ought to exercise restraint when confronted with matters of faith. 

What becomes rather apparent upon these readings is that the majority-minority disagreement reflects two fundamentally distinct schools of thought. One understands the Constitution as an instrument capable of dismantling hierarchies embedded within religious practices. The other treats the Constitution as imposing limits upon judicial intervention in religious life.

Neither position is obviously absurd. And that, precisely, is what makes the problem difficult.

I argue, however, that once the institutional role of a constitutional court is taken seriously - and understood properly - the path forward becomes much clearer. For the primary task of a constitutional court is to ensure that public life (which includes institutions that exercise social authority) remains consistent with constitutional values. And thus, whenever any practice - religious or otherwise - comes into direct conflict with these commitments, the answer must not be one of hesitation. If a practice violates constitutional values, it must go.

To be clear, the proposition I submit is - by no means - an attempt to homogenise religion or to smuggle in a debate about UCC. It merely insists that when religious practices enter the domain of public law - they cannot claim immunity. Of course, this does not (and can not) dissolve the practical challenges that might come along the way. Yet they do not (and can not) ultimately alter the analysis. More importantly, any alternative will not (and can not!) be neutral.

For a court that shall decline to intervene in the face of clear constitutional violations will effectively be allowing tradition to determine the scope of fundamental rights. With the power of rights then ceased of its function to act as a constraint on social power. A constitutional court cannot become an arbiter of religious doctrine. But neither can it allow claims of faith to override the commitments embedded within the Constitution. That is the simple - but firm - position the litigation in Sabarimala ultimately compels us to confront. When constitutional values and exclusionary practices collide, the role of a constitutional court is not to reconcile the irreconcilable. It is to enforce the Constitution.

Associative Harm in Ilareva: Clarity, Not Contraction [Guest Post]

(This is a guest post by Tanmay Durani)

Introduction

The commentary by Natalie Alkiviadou on Ilareva and Others v Bulgaria (“Ilareva”) presents the judgment as a moment of doctrinal slippage, an instance where the European Court of Human Rights (“Strasbourg Court”) has blurred the line between death threats and hate speech, and in doing so, stretched Article 14 (prohibition of discrimination) of the European Convention on Human Rights (“Convention”) beyond principled limits. More specifically, the concern is that the Strasbourg Court collapsed the distinction between individualised threats and equality-based harm, thereby expanding the reach of discrimination analysis into a terrain that is traditionally governed by criminal law and Article 8 (right to respect for private life) alone. 

The anxiety is intelligible. When courts expand positive obligations in the domain of speech regulation, the spectre of conceptual overreach is never far away.

How the Case Reached Strasbourg

To appreciate the stakes, however, the factual and procedural context of Ilareva requires closer attention. The applicants — Valeria Ilareva, Lidia Staykova, and Krasimir Kanev — were prominent human rights defenders in Bulgaria working with refugees and migrants at a time of heightened anti-immigrant rhetoric. In January 2015, they became the targets of a barrage of Facebook posts containing explicit death threats, including calls to “hang them at Parliament,” to “shoot them,” and to poison them. A photomontage portraying them as “Freaks of the Year” circulated widely. Their professional identities were publicly known, office addresses easily accessible, and one of the applicants was later physically attacked after appearing on television.

Complaints were lodged with the Bulgarian authorities under two provisions of the Criminal Code: Article 144 (criminal threats) and Article 162 (hate speech). Prosecutors, however, chose to pursue only Article 162 and declined to investigate the more direct charge of threats. Crucially, they then concluded that the applicants could not qualify as “victims” under the hate speech provision because they were not themselves members of a protected minority. The investigation stalled, with authorities characterising the posts as “negative assessments” unlikely to generate justified fear because they were made online. 

In effect, the applicants were excluded from protection both as victims of threats and as victims of hate speech. This failure created a ‘protection vacuum’ where the domestic authorities’ formalistic interpretation of victimhood effectively immunized prejudice-motivated threats from legal scrutiny. It was against this backdrop that the case reached Strasbourg.

Layered Harm in Digital Space

A closer reading of Ilareva, however, suggests not the erosion of doctrinal clarity, but an attempt — albeit imperfect, and perhaps under-theorised — to grapple with the layered nature of harm in contemporary digital environments. Online threats differ from their offline analogues not merely in medium but in scale, permanence, and networked amplification. They circulate rapidly, accumulate visibility, and can generate diffuse but enduring intimidation. And so, to that extent, the Strasbourg Court appears to have recognised that such harm may operate simultaneously at multiple normative levels -

It locates the threats within a matrix of prejudice. The applicants were targeted not randomly, but because of their professional association with refugees and migrants. The hostility was thus directed simultaneously at individuals and at the equal civic standing of the groups they defended. This is the hinge of the disagreement.

The charge of “hate speech by association” assumes that equality-based protection is triggered only when the immediate target belongs to a protected class. Yet anti-discrimination law has long recognised associative harm. One need only recall the reasoning in Beizaras and Levickas v Lithuania, where the Court held that homophobic abuse required investigation under Articles 8 and 14, not solely because of the personal distress caused, but because of its discriminatory character. Or consider the trajectory from Aksu v Turkey to Minasyan and Others v Armenia, where the Court progressively acknowledged that speech reinforcing structural prejudice inflicts harms that exceed individual reputational injury.

Seen in this light, Ilareva does not invent a new category; it extends an existing logic to a context where prejudice operates through proxy. This reflects the doctrine of 'transitive animus,' where the hostility directed at the advocate is not a separate injury but a 'mirrored' manifestation of the structural prejudice aimed at the primary group.

The deeper concern, however, is about hierarchy.

Does the invocation of Article 14 risk suggesting that a death threat becomes more legally significant when prejudice-motivated? That anxiety misconceives the function of equality analysis. Criminal law across many European jurisdictions treats bias motivation as an aggravating factor — not because threats absent bias are trivial, but because prejudice-based violence compounds harm. It intimidates communities, chills participation, and signals exclusion from the civic order. To acknowledge this additional dimension is not to dilute the gravity of threats per se; it is to recognise that harm can be cumulative and relational. Indeed, to exclude activists from equality protection on the ground that they are not themselves members of the vulnerable group would create a perverse asymmetry: solidarity would receive less protection than identity, narrowing Article 14 in a manner inconsistent with its purpose.

Concluding Thoughts

None of this is to deny that Strasbourg’s reasoning would benefit from sharper articulation. The Court’s positive obligations jurisprudence has expanded steadily, and its doctrinal architecture sometimes lags behind its normative intuitions. The justification for regulating hate speech lies not merely in preventing offence, but in protecting public assurance — the guarantee that all members of society can stand as equals without being publicly denigrated or threatened (Waldron, 2012). If that is the animating principle, then threats aimed at silencing those who defend minorities directly undermine that assurance. What remains for the Court, however, is to specify the analytical thresholds that distinguish (i) unprotected threats of violence, (ii) discriminatory hostility that engages Article 14, and (iii) protected but unsettling expression. Greater clarity as to intent, severity, nexus to protected characteristics, and demonstrable impact would go some way toward stabilising the framework.

Ultimately, Ilareva should not be read as collapsing categories, but as recognising their intersection. Death threats are punishable because they endanger personal security; prejudice-motivated threats implicate equality as well. The convergence of Articles 8 and 14 in such circumstances reflects the dual nature of the harm rather than an inflation of doctrine. The challenge for Strasbourg is not to retreat from this recognition, but to render explicit the theory that underpins it. Without such theoretical precision, critics will continue to perceive expansion where the Court may intend doctrinal continuity. With it, the jurisprudence can evolve without surrendering the commitment to freedom of expression that lies at the heart of the Convention system.