In Re: Waqf and the Unseen — On the Court’s Posture of Protection and Practice of Punching Down

 Introduction

On 15 September 2025, the Supreme Court in In Re: The Waqf Amendment Act, 2025 (1) upheld most of the 2025 Amendment while partially staying certain provisions. Restrictions on waqfs, abolition of waqf by user, government expropriation, and regulatory changes were largely validated. While the judgement’s broader profile has already been discussed (see here), one strand warrants closer scrutiny — i.e. the exclusion of Scheduled Tribe Muslims from participating in the waqf framework. 

In this piece, I focus on this exclusion, and submit that the central problem lies in the Court’s mode of addressal — where instead of grappling with the tension between Scheduled protections and Part III, the Court retreats into a compartmentalised reading of the constitutional scheme. This inadequacy, I argue, stems from two cumulative moves that together erode adjudicative legitimacy: (i) the absence of an intersectional lens, which renders ST Muslims invisible within both minority and tribal frameworks; and (ii) a misplaced self-image of punching up, which in substance amounts to punching down — reinforcing rather than unsettling existing hierarchies. In so doing, the Court (under the guise of protective reasoning) takes the path of least resistance, leaving intact a hierarchy of rights it found easier to accept than to interrogate.

Inadequate Addressal

At the very outset, it is necessary to recall the place of the Fifth and Sixth Schedules within the Constitution. While they are spoken of separately, their philosophy remains the same, i.e. the protection of tribal autonomy in matters of governance and control over land resources. Besides, land for the Scheduled Tribes, cannot be simply construed as a commodity. It is the locus of their community identity, history, and culture. All the Constitution does, to this end, is erect strong protective barriers around it. Seen thus, the prohibition contained in the 2025 Act does not appear completely without logic. 

For if the goal is to prevent alienation of tribal land to outside institutions, then barring waqf declarations in Scheduled Areas is arguably consistent with the constitutional commitment. 

But here lies the difficulty. The same Constitution that entrenches the Fifth and Sixth Schedules also entrenches rights under Part III. While Article 25 ensures every person’s liberty to freely practice their faith; Article 26 secures the autonomy of denominations to manage their own affairs in matters of religion. Overlay this with Article 14, and the matter becomes sharper still. The waqf is not a mere appendage to Islam. It is a centuries-old institution that represents a living manifestation of the faith’s conception of charity and community responsibility. Hence, to preclude an entire subset of Muslims from creating or maintaining waqf is not simply a matter of land regulation, but a direct encroachment upon their ability to give religious effect to their cultural lives. 

This, then, is the point of departure. For the Court declined to even engage with this conflict. Its reasoning spans a few paragraphs (¶173–178) where it recites the non-obstante clause in the 2025 Act (¶173); restates the constitutional design of the Schedules (¶174); invokes past statutes and judgements that protected tribal lands (¶176); and affirms that the Joint Parliamentary Committee had noted instances of waqf declarations threatening tribal practices (¶177). From this, the Court concluded that the provision has a rational nexus to the object sought to be achieved, and therefore cannot be termed arbitrary (¶178). 

The sum total of judicial analysis is striking not merely in its brevity, but the framing. For the Court confines itself to an isolated reading, treating the Fifth and Sixth Schedules as if they provide exhaustive answers. However, if such a line of reasoning is indeed to be accepted — Article 13 risks becoming redundant and the power of judicial review insignificant. This, perhaps, is precisely what the Court in Peerless (¶48) warned against. It emphasised that while regulation of rights may be legitimate given the legislative form purports to pursue a benign end, the degree and mode of regulation cannot amount to a total annihilation of the right. It cautioned:

“If it directly transgresses or substantially and inevitably effects the fundamental right, it becomes unconstitutional, but not where the impact is only remotely possibly or incidental. The court must lift the veil of the form and appearance to discover the true character and the nature of the legislation, and every endeavor should be made to have the efficacy of fundamental right maintained and the legislature is not invested with unbounded power.” emphasis mine

Could waqf declarations be permitted, subject to the consent of the Governor or the Autonomous District Councils? Could ST Muslims be allowed to create waqf only over their own property, with safeguards against external capture? Could the State design a framework that both prevents elite appropriation of tribal land and allows ST Muslims to give religious expression to their culture? 

These are precisely the questions that constitutional adjudication ought to raise. Instead, the Court chose the path of least resistance, treating the existence of a Schedule-based protection as a trump card. This abdication has implications. For adjudicative legitimacy does not lie in mechanically applying what the text says, but in reasoning through the silences that the text itself generates (where rights under the Schedules and Part III collide, for one). As Professor Fadel argues, such silences catalyse pragmatism, whereas a more rigid view invites instability. Seen thus, the Court was tasked not with picking a winner by default, but with working out a reconciliation that preserves the essence of both. 

By refusing to acknowledge, let alone address this conflict, the Court chooses a minimalist approach that looks like neutrality but functions as abdication. The consequence, clearly, is that the most vulnerable group becomes the easiest to sacrifice. 

Two Failures, One Legitimacy Deficit

To be clear, none of this is to deny the purpose of the Schedules, i.e. pluralism and indigenous self-rule. But fidelity to that purpose does not require blindness to exclusion. Indeed, the very rationale for tribal protections is to insulate vulnerable communities from domination. However, when that rationale is deployed to curtail the religious freedoms of a subset of those very communities, we reach a point where protection in form becomes domination in substance. This paradox, I argue, should have been the fulcrum of judicial analysis. Instead, in In Re: Waqf the Court sidesteps it entirely — content with the thin gruel of a nexus review. 

However, such a paradox does not emerge in isolation. It is sustained by two overlapping failures that together weaken the Court’s claim to legitimacy: (i) the absence of an intersectional lens that renders ST Muslims invisible; and (ii) a misplaced reliance on the punching up illusion, which masks structural domination beneath the rhetoric of judicial protection.

(i) Intersectional Invisibility

Kimberlé Crenshaw’s concept of intersectionality helps illuminate what is at stake in the exclusion of ST Muslims. Intersectionality tells us that belonging simultaneously to two disadvantaged groups does not simply add vulnerabilities together. Instead, it produces a distinct experience of marginalisation that is greater than the sum of its parts. This invisibility occurs when the overlap between identities renders those at the crossroads unseen in both frameworks of protection. 

The exclusion of ST Muslims from creating waqf, I suggest, reflects a similar pattern. By focusing on tribal identity in isolation, appears to frame the problem as one of safeguarding customary institutions from external encroachment (¶175-176). Thus, by treating (a) protecting tribal land and (b) protecting Muslim culture as mutually exclusive objectives it misses the lived experience of those who are both tribal and Muslim — for whom, waqf is not merely a threat to tribal identity but also a mode of expressing religious and cultural autonomy within it. For it is precisely when the courts adopt this blindness, that they legitimise a hierarchy of rights. As again, the tribal without the Muslim is visible, the Muslim without the tribal is visible, but the tribal Muslim remains unseen. 

(ii) Punching Up, Punching Down

Comedy theory often distinguishes between “punching up” and “punching down.” The former involves challenging structures of power by targeting those higher in the social or political hierarchy, while the latter mocks or diminishes groups already disadvantaged. The point is not simply about direction, but about effect. For a joke aimed upwards might be uncomfortable but carries emancipatory potential, whereas one aimed downwards risks reinforcing the very hierarchies that persist, and therefore becomes part of the problem. 

This vocabulary of comedy, I suggest, has explanatory force here. For the Court often likes to imagine itself as punching up — deploying its authority to shield vulnerable groups from being overwhelmed by dominant social and political forces. Consider for instance, the marriage equality judgement. The majority held that while queer couples have a right to enter into relationships of their choice (punching up against heteronormativity), there exists no corresponding right to enter into civil unions approximating marriage that would confer a legal status and rights emanating from the same. Hence, by passing the buck on to the legislature to enable this right, the Court, in effect, punched down — leaving intact the material inequalities of status and recognition. 

In In Re: Waqf, that self-image is visible. The petitioners had primarily challenged the 2025 Act as undermining both equality and the Muslim community’s right to cultural autonomy. The Court, in turn, cast the restrictions on waqf as measures to prevent elite capture of tribal land and to preserve self-governing autonomy in Scheduled Areas. On the surface, then, the Court seemed to punch up. 

Three interpretive frames emerge:

First, if the Muslim community’s cultural autonomy is taken to be preserved in the abstract while ST Muslims are excluded from its scope, then the result is a hierarchy within the minority itself. What appears as protection for the community as a whole becomes an exclusion of its most vulnerable members. In effect, the Court recognises autonomy at the level of the aggregate but denies it at the level of the intersectional individual — an internal contradiction that translates directly into punching down.

Second, if the waqf itself is cast as an elite institution, the judgement again, at least optically, seems to punch up — acting as a check against powerful actors appropriating tribal land. However, ST Muslims occupy the intersection of two vulnerabilities — tribal identity and religious minority. They are hardly dominant actors in the property landscape. Their exclusion from the waqf framework, therefore, does not shield against any exploitation but simply compounds it. What looks like punching up, is still, in practice, punching down.

Finally, I submit that the metaphor extends even more literally. To punch up, one must expend greater effort, because the impact must travel against gravity. Punching down, by contrast, requires little effort and lands easily, because the target is already below. Here too, the Court takes the path of least resistance. For it is much easier to curtail the rights of ST Muslims than to confront the state directly on questions of land autonomy and develop a jurisprudence reconciling tribal protections with minority rights. 

To sum, the legitimacy of adjudication depends not only on what the Court appears to be doing but also on what its decisions actually achieve. When optics diverge from impact, the danger then, is that exclusion becomes naturalised under the guise of protection.

In Re: Waqf — A First Look at the Stay Judgement

On 15 September 2025, a two-judge bench of the Supreme Court (Gavai CJ and Masih J) delivered an order in In Re: The Waqf Amendment Act, 2025, partially staying certain provisions of the Waqf (Amendment) Act, 2025. The Amendment, enacted earlier this year, makes significant structural changes to the 1995 Waqf Act.

Petitions challenging its validity were filed even prior to Presidential assent, raising claims of violations of equality and minority rights. Yesterday’s order marks the Court’s first substantive engagement with these challenges.

One of the key changes introduced by the 2025 Amendment is the requirement that any person creating a waqf must demonstrate practice of Islam for at least five years. The Court upheld this provision in principle, though it stayed its operation until the Central Government frames rules for assessing religious practice. The reasoning offered is worth noting.

The bench invoked the Statement of Objects and Reasons of the Mussalman Wakf Act, 1923, which had flagged the misuse of waqf as a device to shield property from creditors. On that basis, the Court suggested that recent converts might use waqf in a similar manner.

But this reasoning raises serious questions —

First, reliance on a century-old Statement of Objects and Reasons is curious, especially since subsequent legislation has already introduced safeguards against such misuse. 

Second, the assumption that individuals might convert solely to exploit waqf protections remains speculative; no data was cited to show this to be a real problem. 

The result is a provision whose justification rests more on historical suspicion than on present-day evidence.

Another provision bars the declaration of Scheduled Tribe land under the Fifth and Sixth Schedules as waqf property. Here, the Court upheld the Amendment, reasoning that the objective was to safeguard vulnerable tribal interests. Yet, this conclusion appears to take for granted a paternalistic view of Scheduled Tribes as incapable of making autonomous decisions regarding endowments.

For Scheduled Tribe Muslims, this translates into an absolute denial of the ability to dedicate property to waqf. The Court does not interrogate whether this blanket exclusion is proportionate, or whether narrower safeguards might have sufficed.

The Amendment. then, also abolishes the doctrine of waqf by user prospectively. This doctrine had historically recognized waqf character for properties without deeds but with longstanding customary use. The Court found this change unproblematic, framing it as a necessary response to encroachment of government land. The judgment cites instances of waqf boards attempting to notify government land as waqf property. However, the Court’s reasoning overlooks the fact that prior legislation already required registration of waqf property, but never treated non-registration as extinguishing waqf status. The 2025 Amendment effectively invalidates unregistered waqf by user overnight, despite decades of recognition. 

And perhaps the most contentious provision allows the government to notify waqf property as “government property” and take it over. Under the Amendment, disputes were to be resolved by a state-appointed officer. The Court partially intervened, directing that final determination of title must rest with the waqf Tribunal rather than an executive officer. This ensures at least some measure of judicial oversight. Still, the Court did not question the basic premise that property could be treated as government-owned by unilateral notification. Pending determination, mutawallis are barred from creating third-party rights over such property. While this avoids immediate alienation, it leaves open the broader issue of how far the state can go in asserting control over waqf assets.

The 2025 Amendment permits non-Muslims to serve on the Central Waqf Council and State Waqf Boards, and even as Chief Executive Officers of these bodies. It further allows the possibility of non-Muslim majorities. Petitioners argued this undermined the representative character of these institutions. The Solicitor-General denied that non-Muslim majorities would result, but the Court settled the issue by issuing a direction prohibiting such majorities, without striking down the provision.

This leaves unresolved the broader question i.e. to what extent should regulation of a community’s religious endowments be confined to members of that community? The Court avoided this debate, preferring a narrow reading that manages immediate concerns while deferring deeper questions of representation.

It is to these ends, that the interim order in In Re: The Waqf Amendment Act, 2025 reflects a cautious judicial approach. The Court has stayed certain aspects and read down others, but largely accepted the legislative framework. 

At multiple points, its reasoning rests on broad assumptions rather than concrete evidence, particularly in relation to restrictions on waqifs and the abolition of waqf by user. 

Future hearings hence will need to confront whether these provisions are consistent with constitutional guarantees of equality, minority rights, and property protections.

Depoliticising Disqualification (Coherence Beyond Politics)

A recent post on the Verfassungsblog, described the gravity of the moment that the Constitution (One Hundred and Thirtieth Amendment) Bill represents. It situated the proposal within its political context, cautioned against the risk of weaponisation, and concluded that the Bill collapses “even on its own terms.” I argue, however, that a closer reading points instead to an internally coherent design.

[Note: My comments bracket away the political context and engage only with arguments concerning the Bill on its own terms.]

Ministers and Legislators

The earlier post argues that if detention prevents a minister from discharging executive duties, the same logic should apply to legislators. A detained MP or MLA is equally unavailable to represent their constituency, and the distinction therefore makes little sense.

To this line of reasoning, I submit that Legislators represent their constituencies in the law-making process. Their primary democratic function is electoral, i.e., they embody the will of the people who returned them. Ministers, by contrast, are legislators who step into an additional role. They wield executive power, take decisions that directly bind the State, and oversee the machinery of governance. Unlike legislators, their actions are not merely deliberative but decisional. This asymmetry is precisely why heightened standards, then, become justified.

Additionally, the Constitution itself distinguishes between the two offices. Articles 74-75 and 163-164 vest the exercise of state power in the Council of Ministers, with the Prime Minister and Chief Ministers at its helm. Decisions on budgets, national security, policing, and administration cannot be “delegated” sideways in the same easy manner as legislative votes. This is so, for a missing Prime Minister or Chief Minister creates a governance vacuum, and not merely a numerical absence.

Nor does this, I argue, create an unequal regime in any invidious sense. The principle of equality under Article 14 requires like cases — to be treated alike. Ministers and legislators are not like cases. Their constitutional roles and responsibilities diverge, thereby requiring a greater degree of integrity from ministers. This, then, also aligns with the principle of responsible government — where the executive is continuously accountable to the legislature and, by extension, the people. 

The “Serious Offence” Threshold

The earlier post criticises the “serious offence” threshold as vague, manipulable, and constitutionally suspect. It argues that leaving disqualification to hinge on undefined seriousness invites arbitrariness, undermines certainty, and risks being weaponised by governments against political opponents. 

This criticism, while important, confuses indeterminacy with incoherence. Legal systems, for long, have used open-textured standards — such as “reasonable,” “public order,” and “gross negligence” precisely because context matters. The “serious offence” threshold belongs to this very family. While it might not be perfect in precision, it is, still, a constitutionally acceptable rational filter that prevents trivial infractions from triggering disproportionate consequences.

The key to understanding this, I submit, would be proportionality. If every conviction (no matter how minor) automatically disqualified ministers, we would reduce governance to a game of technical knockouts. The seriousness filter, very simply operates as a constitutional sieve, ensuring that disqualification targets only those offences grave enough to cast doubt on a minister’s fitness for public trust. It also becomes worth noting that “serious offence” is not left in a vacuum. Indian statutes already employ the term. For instance, criminal procedure in India distinguishes between bailable and non-bailable offences, and legislations from narcotics to corruption laws use seriousness as a legislative yardstick. Courts, in turn, have developed jurisprudence to interpret such gradations. Far from inviting unbridled discretion, the phrase plugs into an existing vocabulary that is familiar both to judges and practitioners.

Finally, consider the alternative. To remove the seriousness filter is to cast the net of disqualification absurdly wide. Ministers would be perpetually vulnerable to removal for trivialities, a result both democratically undesirable and constitutionally disproportionate. By insisting that only serious offences justify disqualification, the Bill affirms that the law must calibrate its sanctions to the gravity of the wrong.

Presumption of Innocence and Ministerial Office

The earlier post argues that the Bill offends the presumption of innocence by penalising individuals before conviction. Removal from ministerial office is treated as punishment, effectively turning detention into a ground for disqualification without proof of guilt. 

The presumption of innocence is a principle of criminal adjudication which prevents the State from convicting or punishing an individual until guilt is proved beyond reasonable doubt. However, it is not a blanket guarantee that one may continue to wield high constitutional office while under sustained judicial custody. The Bill does not impose any penalty. Membership of Parliament or the state legislature remains untouched. No rights of franchise are curtailed, no civil disabilities attach, and no stigma of guilt is formally declared. What changes is simply the eligibility to serve in the executive (that too, a temporary bar, which again can be seen as designed to protect continuity of governance).

Finally, the safeguard of reappointment after release ensures proportionality. Once liberty is restored by judicial order, office can be restored too. Put differently, the Bill does not erode the presumption of innocence. Instead, it preserves the presumption of functionality. The public’s right to a working government is not suspended merely because a minister insists on retaining his red beacon from behind bars.

Governance and the Need for Objective Rules

The earlier post suggests that the Bill does not address the underlying governance problem. It argues that if the aim is to ensure ministers are accountable and able to perform their duties, the focus should be on speeding up trials or strengthening parliamentary oversight, and not creating a trigger for automatic removal. 

This criticism, I would argue, misunderstands the realities of executive governance. While faster trials and stronger oversight are desirable, they are long-term reforms that cannot resolve the immediate problem. A minister detained for an extended period is functionally absent, and the machinery of the State cannot wait. A Prime Minister cannot delegate constitutional responsibility in the same way as a legislator can rely on quorums. The Bill provides a clear, enforceable mechanism to ensure continuity of administration in such circumstances.

Finally, the amendment reflects the Constitution’s broader commitment to responsible government. Ministers are accountable not just to Parliament, but to the people whose lives depend on functioning administration. Ensuring that offices of high constitutional authority are occupied by those capable of performing their duties is a principle deeply embedded in constitutional practice, and now translated into an objective rule. Hence, the Bill does, in fact, provide a governance solution. It protects executive functionality, clarifies ministerial responsibility, and does so without compromising fundamental rights or legislative representation. 

To Conclude

In sum, the Bill should not be read as a veiled encroachment, but as a measured attempt to reconcile democratic legitimacy with executive functionality. By distinguishing between (1) legislators and ministers, (2) filtering disqualification through the lens of seriousness, and (3) treating custody not as guilt but as incapacity — the Bill (4) aligns with the principles of responsible government. One may debate its prudence, but on its own terms it reflects coherence rather than collapse. 

If anything, it reaffirms that governance cannot be run from jail cells, however politically inconvenient that conclusion may seem.

Some thoughts on free speech and bad metaphors

Note: These are stray ideas I was trying to develop into a longer piece, but I couldn’t quite manage to structure them fully. I am posting the crux of my thoughts here in the hope that it might still be useful for some discussion.

The Trouble with the Marketplace

The “marketplace of ideas” is a metaphor that looms large over free speech jurisprudence (see its Indian application in Shreya Singhal, (¶) 11, and more recently in Kunal Kamra, — Chandurkar J.’s opinion). 

Its attraction lies in its simplicity. Just as markets allocate resources through competition, the competition of ideas will allow truth to emerge. The State, therefore, should not regulate the flow of speech, because the “marketplace” will correct itself. The problem, I take, primarily is that any transplantation of this theory from the United States fits neither the Indian constitutional text nor the realities of our present age.

First, Article 19(1)(a) is not the First Amendment. While both provisions protect free expression, their structures are fundamentally different. The First Amendment is drafted in absolute terms, for it reads: “Congress shall make no law … abridging the freedom of speech.” By contrast, Article 19(1)(a) coexists with Article 19(2), which sets out eight express grounds for restricting speech. In India, the Constitution itself anticipates regulation, and it is impossible to speak of speech rights in absolutist terms. Thus, a doctrine born in the First Amendment’s absolutist universe will necessarily operate differently here.

Second, even in its American origins, the metaphor was a product of analog times. Holmes J., who popularised the phrase, could not have envisioned the realities of the digital ecosystem (for instance, algorithms optimised for virality, echo chambers, and information cascades). The assumption that truth will gradually rise to the top of public debate becomes far less plausible when falsehoods spread faster, stick longer, and attract more engagement than carefully reasoned truths.

Third, the theory rests on a normative vision of free speech as requiring almost no restriction whatsoever. But this is a vision that the Indian Constitution explicitly rejects. As the Supreme Court noted in Shreya Singhal, there is a clear line. While discussion and advocacy are protected, incitement can be regulated. The Court accepted that some restrictions are necessary, particularly where speech threatens public order. The metaphor of the marketplace, however, does not help in identifying where this line should be drawn (Nariman J., in what is often considered his finest judgement, might well have done better to develop this reasoning before invoking the “marketplace” metaphor).

---

In the end, the “marketplace of ideas” offers little more than a comforting illusion. It invites us to believe that the truth is self-correcting, when both our constitutional text and our digital realities suggest otherwise. What Indian free speech law needs is not the wholesale import of metaphors forged in a different age, but frameworks attentive to our own constitutional design. 

Article 19(2) embodies the decision that freedom of speech is not an unregulated market but a structured space where certain harms justify restriction. Recognising this is not to abandon free expression, but to situate it honestly within our constitutional order. Perhaps, then, the task is to move beyond economic imagery altogether, and think of speech not as a commodity in a bazaar, but as a fragile public resource.

One that flourishes only when cultivated with care, and sometimes, with boundaries.

On the "Grammar" of Time and Liberty in Indian Criminal Procedure

Surendra Gadling, a lawyer and human rights defender, has been incarcerated since 2018 under India’s Unlawful Activities (Prevention) Act (“UAPA”). His detention forms part of the Bhima Koregaon prosecutions, where sixteen activists, lawyers, and academics have faced sweeping charges of conspiracy and incitement. The trials have advanced with striking slowness, leaving many in prolonged pre-trial custody. Gadling has continued to write from prison (see here, here and here), underscoring just how the passage of time in detention has itself become a constitutional question.

For readers unfamiliar with the context, some background is in order. The UAPA is India’s principal anti-terror statute, known for its harsh bail restrictions, wide definitions and long pre-trial detentions. In the Bhima Koregaon case, the State has alleged a Maoist conspiracy behind violence at a 2018 commemorative gathering. Yet, much of the evidence has been challenged as unreliable or even fabricated. What is undeniable, however, is that most accused, including Gadling, have spent years in custody without trial.  

In this essay, I advance a fairly simple claim. I suggest that time itself has become a constitutional axis in Indian criminal procedure today. For prolonged detention under statutes like the UAPA do not merely test traditional rights frameworks, but unsettle them completely. To take temporality seriously, then, is to recognise it as a constitutional harm in its own right.

Time as Substance

The Supreme Court has consistently held that delay in trial affects the enforceability of fundamental rights. In Hussainara Khatoon v. State of Bihar, the Court read the right to a speedy trial into Article 21, emphasising that liberty loses meaning when incarceration outlasts adjudication. This position, then, was reinforced in A.R. Antulay v. R.S. Nayak, where a Constitution Bench held that undue delay amounts to a violation of the right to life and personal liberty, warranting judicial intervention.

Yet, these precedents typically address delay in investigation or trial stages.

The Gadling case presents a subtler but perhaps an equally significant problem in the face of delay not in trial, but in the hearing of bail applications themselves. In K.A. Najeeb v. Union of India, the Court recognised that prolonged incarceration without trial requires constitutional correction through bail, even under stringent statutes like UAPA. But this principle presupposes timely judicial engagement. If the Court does not hear the matter, the constitutional safeguard remains toothless.

In this sense, judicial time is not a neutral background condition. It actively shapes the content of rights. A bail hearing scheduled but repeatedly deferred transforms Article 21 from a guarantee of liberty into a contingency of docket management. This becomes particularly true in cases under the UAPA, where statutory constraints on bail already tilt the balance heavily against the accused. Judicial delay, then, functions as an additional (though formally invisible) layer of restriction.

The constitutional concern, however, is not simply individual but systemic. In Supreme Court Legal Aid Committee v. Union of India, the Court ordered release of undertrial prisoners detained beyond half the maximum sentence prescribed, recognising that systemic delay cannot be borne entirely by individuals. Gadling’s case illustrates the need to extend this reasoning to bail hearings themselves. This being so, for if delay can constitutionalise early release in trial, it should equally trigger judicial scrutiny when adjournments in higher courts prolong incarceration.

To this end, I submit that time here acquires substantive force. For it determines whether a right is realised or deferred into irrelevance. The Gadling proceedings show just how liberty is not only curtailed by law, but also by judicial inaction over time.

Time as a Constitutional Metric 

If time alters the substance of rights, then it must be treated as a constitutional metric, and not merely an administrative problem alone. Jurisprudence in India already gestures towards this direction. In Anil Rai v. State of Bihar, the Court acknowledged how delayed judgements compromise justice, and held that unexplained delay(s) in pronouncement can itself amount to a denial of justice. Similarly, in Vakil Prasad Singh v. State of Bihar, the Court quashed proceedings where prosecutorial delay undermined fairness. 

The point is made even more clearly in Shaheen Welfare Association v. Union of India, where the Court dealing with a TADA case (an earlier anti-terror statute with similar bail restrictions) granted bail undertrials due to prolonged detention. The reasoning was explicitly temporal. The sheer passage of time, without progress, converted lawful custody into arbitrary detention. If seventeen adjournments over two years prevent a bail plea from being heard, the constitutional injury is not speculative, but measurable through time spent in custody. The absence of a hearing itself becomes a constitutional wrong. This would require reconceptualising Articles 21. The guarantee of personal liberty entails not only substantive protections but also temporal obligations on the judiciary. 

To move towards such a jurisprudence, two shifts are necessary.

First, constitutional adjudication must treat time as a factor of equal weight to legality. Just as unlawful arrest or unlawful search vitiates state action, unreasonable judicial delay should vitiate continued detention. Second, remedies must be designed with time in view. Automatic presumptions of bail after defined periods of non-hearing, or constitutional damages for prolonged adjournments, could serve as structural correctives.

These suggestions, I submit, are not without precedent. In P. Ramachandra Rao v. State of Karnataka, while the Court declined to fix timelines for trials, it affirmed that delay can, in appropriate cases, justify termination of proceedings. Therefore, the principle that justice is inseparable from timeliness is (arguably) well established. The fundamental challenge that remains, hence, is to extend it beyond trials to appellate and bail proceedings. 

Towards a Constitutional Grammar of Time

What Gadling’s case finally exposes is that Indian constitutionalism has yet to evolve a grammar for the lived temporality of liberty. Our doctrine tends to conceptualise rights in binary terms. Either granted or withdrawn / available or denied. Whereas in practice, liberty is often eroded not by sudden extinguishment but by slow attrition. Time dissolves liberty day by day, until the original guarantee of rights becomes almost unrecognisable. Yet our jurisprudence persists in treating delay as a matter of administration. As if the passage of months or years were external to the constitutional promise. 

This, then, is the point of departure. Indian constitutionalism must move from permissions to obligations, requiring the State to justify not only why liberty is curtailed but also for how long, and under what schedule of adjudication. If courts continue to treat time as external to constitutional reasoning, liberty will remain vulnerable to erosion through delay. To recognise rights as temporal goods is to accept that their worth lies in their ability to check power in the present, and not in some indeterminate future when a trial is concluded or a bail hearing is eventually scheduled.

Gadling’s case, in this light, is more than a personal tragedy. It is a structural parable, reminding us that justice is inseparable from time, and that a constitutional order blind to this fact risks making liberty itself a perishable illusion.