On Calling Everything Terrorism - Reading the Supreme Court's Bail Order in the Delhi Riots cases

In paras 86-90 of the bail order in the Delhi Riots cases, the Supreme Court offers an interpretation of Section 15 of the Unlawful Activities (Prevention) Act so expansive that it absorbs conduct traditionally governed by ordinary criminal law and procedure into the domain of terrorism. 

The concern, however, is not about the outer limits of statutory language alone. What is more troubling is the manner in which this reasoning eats away the graded structure of criminal law itself. The structure through which - different kinds of social harm are classified, penalised, and procedurally managed. And that precisely is what ought to trouble us more, for it carries the most far-reaching implications. 

At the outset, the Court notes that the definition of a “terrorist act” is structured around two elements: 

• First, the requisite intent to threaten the unity, integrity, security, or sovereignty of India, or to strike terror in the people; and 

• Second, the nature of the act and its consequences (para 86). 

The Court emphasises that the Parliament did not confine terrorism to “conventional forms of violence” and consciously used the expression “by any other means of whatever nature.” This phrase, the Court observes, cannot be rendered otiose (para 87). 

Building further, the Court underscores that the consequences contemplated under Section 15 extend beyond death or physical destruction. For acts which disrupt supplies or services essential to the life of the community, or which destabilise civic functioning, are expressly included within the statutory imagination of terrorism (para 88). 

And hence, Section 15 when read together with Section 18 (which speaks of ‘punishment for conspiracy’), the Court concludes that terrorist activity need not be limited to the final act of violence, but may encompass preparatory, facilitative, and coordinative conduct carried out through collective and concerted effort (paras 89-90).

Taken at face value, much of this is unobjectionable. Parliament did not intend Section 15 to be limited to paradigmatic armed attacks, and it would be artificial to insist otherwise. 

The difficulty, therefore, lies not in recognising that terrorism may take non-conventional forms, but in the absence of any limiting principle to accompany this expansion. Special statutes such as the UAPA are justified precisely because they are meant to address a qualitatively distinct category of harm. Ordinary criminal law, by contrast, already anticipates and responds to large-scale disorder through offences relating to unlawful assembly, rioting, mischief, and public tranquility.  

This distinction matters because criminal law is not merely a catalogue of outcomes. Different offences exist not simply because different harms exist, but because those harms are also understood to differ in kind (say in the face of moral blameworthiness and the institutional response they justify). 

This is, however, not to say that the consequences identified by the Court can also describe terrorism. That would be descriptively accurate. But descriptiveness alone cannot do the work of penal classification. For again, Section 15 does not merely catalogue harmful outcomes, but demarcates a category meant to justify exceptional treatment. Once disruption of civic life, coordinated collective action, and destabilisation of essential services are taken to be sufficient descriptors of terrorism (without supplying a limiting principle) the boundary between terrorism and public disorder becomes porous. Large protests that paralyse cities, labour actions that halt essential services, or mass political movements that strain public order - all begin to look indistinguishable from the conduct Section 15 is said to capture. 

The difference between terrorism and ordinary criminality then turns less on principle, but on prosecutorial characterisation. 

And so, the concern, I submit, is not hypothetical by any stretch. It is structurally embedded in the bail regime under the UAPA itself.

Section 43D(5), as interpreted in Watali, narrows the judicial role at the stage of bail. Once the court is satisfied that the accusation is prima facie true, further inquiry is foreclosed. Questions of proportionality, necessity, or individual culpability are displaced by a far narrower inquiry - i.e. whether the prosecution’s narrative can plausibly be located within the contours of terrorism. 

It becomes worth returning to go back to the assembly debates when Mr. Asadudding Owaisi aptly noted:

“Another issue is about bail… This is a limit on judicial discretion. Any public prosecutor will stand up and oppose the bail. What will the Case Diary say? Will the Case Diary write flowers about the accused?...”emphasis mine

Esepcially in the context of mass protest – where causation is diffuse, agency is often collective, and escalation frequently occurs beyond the control of any single actor; the consequences are predictable. Once violence enters the picture, however distantly be it may, the threshold for continued detention is easily met. Preparatory meetings, speeches, logistical coordination, protest planning (conduct that would ordinarily be scrutinised under the BNS) can now very well be capable of being redescribed as facilitative terrorism. 

What follows is a subtle but powerful sorting mechanism. Low-intensity, non-disruptive dissent continues to be managed within ordinary criminal processes. But all intense protest in case of road blocks or any that spirals into violence (even if through unintended escalation) is pushed into the exceptional domain of terror law. 

High-intensity dissent is thus structurally disfavoured, not through conviction, but through prolonged pre-trial detention. Exceptional law ceases to be exceptional when its triggering conditions are defined so broadly that they mirror ordinary disorder. The bail embargo under Section 43D(5), once conceived as a narrow exception justified by the unique threat of terrorism, begins to operate as a default response to political escalation.

But none of this is to deny that mass violence can, in some circumstances, amount to terrorism. Nor is it to suggest that the State is powerless to respond to coordinated attacks on civic life. The point is more basic. If terrorism is to remain a meaningful category, and something that justifies exceptional treatment - there must, and has to be something that distinguishes it in principle from riot, rebellion, or large-scale disorder. Intent alone cannot do this work when intent is inferred from disruption itself. Similarly, consequence alone cannot do it when those consequences are already familiar to ordinary criminal law.

The failure of the bail order then is not that it reads Section 15 too broadly. It is that it reads it broadly without discipline. And in doing so, it allows terror law to seep into spaces traditionally governed by ordinary criminal process, carrying with it procedural consequences that are anything but ordinary. That is what ought to trouble us most. Not simply that bail was denied to some and granted to others, but that escalation itself is now enough to normalise exception. In that world, terrorism no longer describes a qualitatively distinct harm. It becomes a prosecutorial lens.

And that, for a constitutional criminal justice system, is a far more unsettling legacy than any single bail order.

[Update] CLP Piece on Presidential Reference No. 1 of 2025

The Presidential Reference No. 1 of 2025 has attracted sustained commentary, ranging from questions of maintainability to its substantive holdings. In a new piece on Mr. Gautam Bhatia's Constitutional Law and Philosophy blog, I focus on the Court’s reasoning in responding to the charge that the reference was, in substance, an “appeal in disguise”, and argue that it's response is troubling in and of itself.

The article is accessible here: https://indconlawphil.wordpress.com/2026/01/26/presidential-reference-no-1-of-2025-and-the-new-afterlife-of-judgements/

Comments would be lovely.

Lines in the Margin (Part IV): Bhagwati J. in Bachan Singh v. State of Punjab

This essay is part of a four-part series on some of the greater dissents in Indian constitutional law that are worth returning to. The previous posts can be accessed here, here and here. I can only hope that readers find something of interest in this journey. 

Introduction 

The death penalty is, and will remain, intensely debated. People say it deters. Politicians promise it for “heinous” crimes. Families of victims demand it as moral closure. But wrongful convictions happen. Evidence breaks. Witnesses recant. Judges err. And when the State gets the sentence wrong, the mistake is forever. 

It is this tension between retributive appetite and the fallibility of human institutions that paints Justice Bhagwati’s dissent in Bachan Singh v. State of Punjab. Start there, and you quickly see that it is not a jab at sentencing law. He simply questions whether a polity founded on dignity may permit the deliberate extinction of life by the State. (See the opinion beginning para 227 and Bhagwati J.’s later reasons)

Parsing the Dissent 

Bhagwati J.’s dissent must not be read as part of a binary “for or against death penalty” debate. For he is not primarily responding to penological policy. The entire opinion tries to inquire if the Constitution permits. Accordingly, the reading begins at paragraph 227 where Bhagwati reframes the issue away from sentencing discretion and towards fundamental rights to equality and life (with liberty and dignity). And so, every subsequent paragraph is read through the lens of a single question: does the Constitution, as a moral document, authorise the State to extinguish life?

Identifying the argumentative layers

However, the method is not that simple, and the brilliance of the dissent lies in the multiple layers through which the same question is answered. The dissent thus can be parsed into five overlapping layers of argument, rather than read linearly:

1. Doctrinal layer – At the level of doctrine, Bhagwati J. reads Articles 14 and 21 together (and cites Fazl Ali J.’s opinion in Gopalan multiple times!), refusing to treat equality and life as siloed guarantees. He shows that a law which permits death through unguided choice necessarily produces arbitrariness, and arbitrariness is fatal for any Constitution. Deprivation of life, in his account, cannot be justified by procedure alone and that it must also satisfy equality. This integrated reading destabilises the assumption that capital punishment is neutral once procedural safeguards (the lack of) are observed.

2. Institutional layer – Institutionally, Bhagwati J. questions the capacity of courts themselves. He exposes the impossibility of consistent capital sentencing within an adversarial system marked by unequal resources, variable judging styles, and subjective moral responses. The dissent treats judicial discretion not as a virtue but as systemic risk.

3. Empirical-probabilistic layer – Rests on uncertainty. Bhagwati J. repeatedly foregrounds error (in the face of mistaken facts, unreliable witnesses, flawed investigations) and treats these not as aberrations but as predictable features of criminal adjudication. Deterrence is approached with the same skepticism. And absent demonstrable proof, it remains speculative. This layer quantifies the implications of error. Naturally, once punishment is irreversible, even a small probability of mistake acquires overwhelming constitutional significance.

4. Moral-philosophical layer – Dignity, reform, and moral humility form the ethical spine of the dissent. The question is not whether the offender deserves death, but whether the State is morally competent to impose it. By framing punishment as a reflection of constitutional character, Bhagwati J. relocates the debate from retribution to legitimacy, insisting that severity cannot substitute for moral authority.

5. Rhetorical-cultural layer – Finally, Bhagwati J. draws on literature, history, and humanitarian thought (Victor Hugo, for instance). These references function as moral witnesses, reminding us people that justice systems do not operate in isolation from civilisation’s ethical progress. The rhetoric thus, is deliberate and humanises the abstract and situates constitutional interpretation within a broader cultural conscience, reinforcing the dissent’s claim that law must answer to humanity, not merely to text.

… 

I shall not reflect much. The readers, I am sure, are already familiar with the debates around the death penalty and have likely reflected on them in their own ways. Thus, this account shall be a brief one:

Once the method and idea of the dissent are laid bare, what emerges is not a simple opposition to capital punishment but a deep distrust of the State’s confidence in exercising the power to kill. Bhagwati J.’s invocation of constitutional morality operates as a critique of power (wonder whether Mr. Bhatia has written about this in Indian Constitution: Conversation with Power, on a lighter note readers are welcome to gift it to me!).

The dissent is a reminder that the Constitution is written for fallible institutions, not omniscient ones. Where punishment is irreversible, error becomes decisive. Dignity, in this frame, is not exhausted by fair procedure. It includes the possibility of moral becoming. Of reform and change -- something which death forecloses absolutely. Most striking, when I first read Bhagwati J.’s opinion, is his inversion of judgement. That punishment reflects the character of the State, not merely the crime of the offender.

Seen such, the dissent insists that moral strength lies in refusal, not excess. And in so a doing, Bhagwati J. leaves us with: how much violence can a Constitution permit before it ceases to be constitutional at all?

(Not) Miscellanous

There are, finally, aspects of Bhagwati J.’s dissent that are almost never talked about. And so, here are three - loosely related, but worth placing on the table nonetheless.

First, the dissent quietly resists minimalism. Bhagwati J. by refusing to accept the “rarest of rare” formulation as an answer pushes back against the judicial habit of salvaging morally troubling laws through narrowing constructions and restraint (that too rhetorical, in most cases). His dissent suggests that some questions cannot be managed or softened without doing violence to the Constitution itself. 

Second, the dissent relies very little on exceptionalism. Bhagwati J. does not pile up grotesque facts or extreme hypotheticals. Instead, he treats the death penalty as an ordinary exercise of State power, embedded in everyday processes. Killing, per Bhagwati J. does not become constitutional simply because it is rare. And this attention is subtle but extremely important. 

Finally, the dissent anticipates a modern, rights-based understanding of punishment by decisively decoupling constitutional protection from moral innocence. Bhagwati J.’s concern is not limited to the risk of executing the innocent (serious as that risk is) -- but extends to the proposition that even the guilty remain constitutional subjects. Rights do not evaporate at conviction. If anything at all, scrutiny must intensify at the moment of punishment. 

And finally, to sum

Bhagwati J.’s dissent reminds us that constitutions are not tested by how they treat the ordinary, but by how they restrain themselves at their most tempted moments. And perhaps that is what provokes. 

For a Constitution that kills must explain not just why, but whether it ever should.

Lines in the Margin (Part III): H.R. Khanna J. in ADM Jabalpur v. Shivkant Shukla

This essay is part of a four-part series on some of the greater dissents in Indian constitutional law that are worth returning to. The previous posts can be accessed here and here. I can only hope that readers find something of interest in this journey. 

We have spoken enough about how dissents shape the future, how they become doctrine, and how time eventually vindicates them. This essay is about no redemption arc. This is about sheer grit. It is about the loneliness of choosing principle. It is about the violence of knowing the consequences. Khanna J.’s opinion in ADM Jabalpur v. Shivkant Shukla is not great because it won later. It is great because it lost then. It refused to barter away liberty even when every State instinct was pushing the other way. It is great because it shows us what courage actually looks like in real time. And precisely so for the reasons stated above, this essay by no means is a tribute to what the dissent became. 

It is quite simply a return to what it was in that moment.

What was at stake in ADM Jabalpur was not a courtroom disagreement that was to be resolved through reasoning. It was the State asking the judiciary to accept the unimaginable; that during the Emergency, a citizen could be picked up and detained – and the law would have nothing to say. For the nation, this was not just about Article 21 in a technical sense. It was about whether constitutionalism itself could survive the suspension of constitutional morality. If the Court agreed, it would mean that the State could place power beyond law, that liberty existed only at the government’s mercy, and that the judiciary would accept this new reality without protest. If you think about it – this was the closest our Republic came to formally normalising authoritarianism under the seal of judicial authority.

For Khanna J., the stakes were brutally personal. He knew what his dissent meant. Seniority was everything in that Court; the next Chief Justice’s chair was practically in sight. He also knew, almost certainly, that dissent meant losing it. And yet, he did not dilute his opinion, did not search for compromise to retain respectability. He chose to stand in a courtroom where every incentive must be pushing him the other way. Happier still, Khanna J. risked everything the institution could offer him, in order to remind it what it was meant to stand for.

What does this teach us today?

First, that destruction rarely announces itself. It arrives incrementally. Wrapped in legality, justified by necessity, defended as pragmatism (readers familiar with Professor Tarun Khaitan’s Killing a Constitution by a Thousand Cuts will recognise this pattern instantly). We see the same logic at work today when preventive detention is normalised, when bail is treated as an exception rather than the rule, and when dissent is reframed as disorder—or worse, as terror. The recent bail order in cases arising out of the Delhi riots illustrates this with uncomfortable clarity. The lesson of ADM Jabalpur is therefore not confined to Emergency-era excesses; it is a standing warning against judicial acquiescence whenever the State invokes exceptional circumstances.

Second, Khanna J.’s dissent reminds us that institutions do not save constitutions. People do. Courts are not inherently counter-majoritarian; they become so only when judges consciously choose that role. The comforting assurance that “the Court will correct itself over time” is of little solace to those whose liberty is extinguished in the meantime. Correction delayed is often justice denied.

Finally, the dissent teaches us that courage in adjudication is an inherently lonely exercise. It does not come with applause, nor does it guarantee legacy. It demands a willingness to be isolated, misunderstood, and professionally diminished. In an era where conformity is often rewarded and dissent is casually dismissed as disruption, Khanna J.’s dissent functions as a manual on judicial ethics. It reminds us that fidelity to the Constitution may sometimes require standing alone – against the State – against one’s own institution – and even history itself.

[Blog Update] Setting Up a Mailing List

Dear readers,

I wanted to finally put this in place. If you would like, you can now subscribe to a mailing list for the blog. From time to time, I hope to send a short monthly note, apart from the usual notifications when something new is published. 

I know this is something I should probably have done earlier. But at any rate, after a small but determined struggle with technology, I have settled on a small little Google Form (find it here!!) to keep all the addresses in one place.

It is hardly elegant, I get it. Perhaps, in time, it will become something more streamlined. I hope this works, though. At least for now. 

I would be very glad to have you on the list.

Best,