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.

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.

Segregation, Misunderstood: In Defence of Clause 7(d) of the 2026 UGC Regulations

Introduction

The Supreme Court (“Court”), in its interim order staying the University Grants Commission (Promotion of Equity in Higher Education Institutions) Regulations, 2026 (“2026 Regulations”), framed five “substantial questions of law”, including - among others - whether the inclusion of the expression “segregation” in Clause 7(d) could amount to a “separate yet equal” classification infringing constitutional guarantees of equality and fraternity. 

Notably, Clause 7(d) was not, at least on the record, a focus of the petitioner’s challenge. The concern appears to have been raised by the Court suo moto.

The Anxiety with “Segregation”

“Segregation”, in its most basic sense, denotes the enforced separation of groups within shared civic, social, or institutional spaces on the basis of race, sex, or religion. With time, it has come to describe a structured system of hierarchy where separation is backed by law, justified by claims of difference, and sustained through material inequality. 

In the United States, the doctrine of “separate but equal” was crystallised in Plessy v. Ferguson, wherein state-mandated racial segregation was upheld on the fiction that formal parity of facilities satisfied the Equal Protection Clause. The result was the Jim Crow regime, which produced racially divided schools, transport, housing, and public accommodations - all nominally equal yet systematically unequal in resources, access, and dignity. Nearly six decades later, when the U.S. Supreme Court reversed course in Brown v. Board of Education, it did so on the insight that enforced separation in public education was inherently unequal because it generated stigma and stamped Black children with a badge of inferiority. 

And so, the Court’s anxiety is, to be fair, understandable. The semantic charge the term carries has accrued through repeated association with systems that converted separation into hierarchy. The question, however, is whether that historical memory should control interpretation when the word appears within a materially different regulatory design.

In Defence of Clause 7(d)

Clause 7(d) of the 2026 Regulations provides:

“Higher Education Institutions shall ensure that any selection, segregation, or allocation for the purpose of hostels, classrooms, mentorship groups, or any other academic purposes is transparent, fair, and non-discriminatory.”

Properly read, Clause 7(d) appears to be neither an authorisation of segregation nor a flirtation with “separate yet equal.” It is a safeguard simpliciter. The provision states that any “selection, segregation, or allocation” for hostels, classrooms, mentorship groups, or other academic purposes must be “transparent, fair, and non-discriminatory.” The operative word is not separation, but discipline in the face of being transparent and without prejudice or bias. The clause recognises that higher education institutions inevitably organise students across space (eg. rooms are allotted, mentorship cohorts assembled, etc) and insists that such organisation must not reproduce prohibited hierarchies.

The inclusion of the word “segregation” does not create a new power. It acknowledges an existing institutional reality wherein students are sorted, clustered, and allocated for multiple reasons, which can sometimes, very well just be logistical. In a caste-stratified society, these processes might not always be neutral. Spatial arrangements can reflect and entrench social divisions even in the absence of explicit intent. Hostel allotments, informal grouping practices, or mentorship allocations may inadvertently track social background. Clause 7(d) brings these practices within the ambit of an equality review. It renders them visible and therefore regulable.

And thus, to conflate this with the logic of “separate but equal” is to overlook the difference between enforced separation as an instrument of domination and regulated allocation as an administrative necessity. In the former, the state mandates classification on prohibited grounds. In the latter, institutions perform ordinary organisational functions, now subject to equality constraints. 

The clause reflects an anti-subordination impulse. It recognises that equality in educational institutions cannot be confined to admissions and examinations; it must extend to how institutional space is structured. If spatial organisation becomes a vehicle for isolation or exclusion, the promise of equal participation is hollowed out. By placing allocation practices under an explicit equality obligation, Clause 7(d) seeks to prevent precisely that outcome.

A Brief Endnote

The validity of Clause 7(d) ultimately turns on the method of judicial approach. If adjudication proceeds by isolating historically charged text from the design and objective of the Regulations, it risks converting memory into reflex. But if it proceeds by examining structure, purpose, and social context, the analysis shall look markedly different. Clause 7(d) neither mandates separation nor legitimises hierarchy – it subjects allocation to equality discipline. That is not a regression into “separate but equal,” but an attempt (and a rather modest one) to ensure that the organisation of space within universities does not replicate entrenched social divisions.

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.