Guest Post: Per Incuriam and the Appellate Tribunal's Reading of Section 8(3) PMLA

(This is a guest post by Riddhi Alok Puranik)

A May 2026 order of the Appellate Tribunal constituted under the PMLA 2002 (“ATPMLA”), disposing of four appeals in the NSEL investigation, does something I argue that a Tribunal is not permitted to do. Confronted with a Delhi High Court Division Bench judgment going against how the Directorate of Enforcement read the PMLA, the Tribunal neither followed that authority nor distinguished it on the facts. It held the judgment — Directorate of Enforcement v. Rajesh Kumar Agarwal — to be per incuriam and declined to follow it.

The underlying dispute is narrow. Section 17 of the PMLA allows an authorised officer to search and seize or freeze property. Section 20 allows an authorised officer, on fresh recorded reasons, to retain that property for up to 180 days. Section 8(3) allows the Adjudicating Authority (also constituted under the PMLA) to confirm a retention. Rajesh Kumar Agarwal reads these as sequential i.e. without a Section 20 order the retention is void, and there is nothing for section 8(3) to confirm. The Directorate's case, which the Tribunal accepted, is that Section 8(3) carries an independent power to order retention on a Section 17(4) PMLA application, so that Section 20 may be bypassed altogether.

That interpretive question is contested and is now before the Supreme Court. The Tribunal was entitled to think the Delhi High Court wrong about it. What it could not have done, in my respectful submission, was to declare a Division Bench judgment as per incuriam. This is for two independent reasons: the doctrine does not fit a judgment that construed the very provision said to have been overlooked, and a Tribunal subject to a High Court’s superintendence cannot invoke this rule to avoid a judgment it disagrees with. This piece takes both objections in turn, then sets out why the ED’s reading of section 8(3) fails on the ordinary tools of construction, and finally what is at stake institutionally if the Tribunal’s approach stands.

The Interpretive Question

Three provisions of PMLA govern what happens to property after an ED search:

• Section 17(1) empowers authorised officers to search and seize, or where seizure is impracticable, freeze property, on a recorded reason to believe. Section 17(2) requires the officer to forward those reasons and material to the Adjudicating Authority immediately. Section 17(4), inserted by the 2013 amendments, requires the officer, within thirty days, to file an application before the Authority "requesting for retention of such record or property seized....or for continuation of the order of freezing."
• Section 20 is titled "Retention of property". Section 20(1) provides that where property has been seized or frozen under Section 17, an officer authorised by the Director who has recorded fresh reasons to believe that the property "is required to be retained for the purposes of adjudication under Section 8" may retain or continue the freeze for up to 180 days. Section 20(2) requires that retention order and accompanying material to be forwarded to the Authority. Section 20(3) mandates return of property on expiry of 180 days unless the Authority permits continuation. Section 20(4) requires the Authority, before permitting such continuation, to satisfy itself that the property is prima facie involved in money-laundering and required for adjudication.
• Section 8(3) provides that where the Adjudicating Authority decides under Section 8(2) that property is involved in money-laundering, it shall, "by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or record seized or frozen under section 17 or section 18" whereupon the attachment or retention may continue during investigation for up to 365 days, or the pendency of proceedings.

The dispute here is about the "or" in Section 8(3) PMLA and the operative verb. Does "confirm" distribute across both objects, so that the Authority confirms either a Section 5 PMLA attachment or a Section 17/18 PMLA retention that must first exist under Section 20? Or, does "or" introduce a separate, verb-free power for the Authority to directly order retention on a section 17(4) application, bypassing section 20 entirely?

What the Delhi High Court Held, and What has Followed

In Rajesh Kumar Agarwal, the Delhi High Court read the PMLA scheme as sequential, where Section 17 supplies the seizure/freeze power, Section 20 supplies the executive-layer retention authority for up to 180 days, and Section 8(3) supplies quasi-judicial confirmation for any continuation beyond that. Section 17(4) PMLA is the procedural mechanism through which the officer brings the matter before the Authority and is not an independent retention mechanism [Rajesh Kumar Agarwal (41)–(60)]. Retention not founded on a Section 20 order is void ab initio, incapable of being cured by later confirmation [Anirudh Pratap Agarwal (88)].

This decision is, for now, settled law in the Delhi High Court. Anirudh Pratap Agarwal v. Enforcement Directorate called Section 20 "the crucial link" between seizure and adjudication [Anirudh Pratap Agarwal (34)]. Directorate of Enforcement v. Poonam Malik followed. Ravi Aggarwal v. Deputy Director, Enforcement Directorate treated Rajesh Kumar Agarwal as binding precedent and held that section 8(3) "only governs confirmation."

Why the Per Incuriam Label Fails

The doctrine does not fit on its own terms

A decision is per incuriam when rendered in ignorance or forgetfulness of an inconsistent statutory provision or a binding authority. The AT-PMLA itself quoted Morelle v. Wakeling and Municipal Corporation of Delhi v. Gurnam Kaur to this effect [M/s N K Proteins (58), (60)], correctly stating that decisions given "in ignorance of the terms of a statute" may be treated as per incuriam. But Rajesh Kumar Agarwal was not rendered in ignorance of section 8(3): it construed that provision exhaustively alongside Sections 17 and 20. 

The ATPMLA held that Rajesh Kumar Agarwal is in conflict with the Supreme Court's judgment in Vijay Madanlal Choudhary v. Union of India. This claim has a structural problem though which the ATPMLA did not confront: Vijay Madanlal Choudhary was a constitutional challenge to the PMLA's enforcement architecture, not a case where the precise sequencing of Sections 20 and 8(3) was in issue. Paragraph 84 of that judgment describes the Section 17(2) and 17(4) safeguards in general terms, noting that the Authority "passes an order of retention" following a show-cause process, as part of the Supreme Court's analysis that the overall scheme contains inbuilt safeguards rendering it constitutionally valid.

It does not decide, because it was not asked to decide, whether a Section 20(1) order is a mandatory precondition to the Authority's section 8(3) power. A constitutional imprimatur on the overall architecture is not a specific holding on a sequencing question within that architecture. A court that subsequently decides that sequencing question does not thereby "ignore" the constitutional approval judgment. The Tribunal treated these as interchangeable when they are not.

Nor does the supposed conflict with Vijay Madanlal Choudhary sustain the per incuriam label even on its own terms. There is a fundamental difference between saying that a judgment is inconsistent with, or departs from, Paragraph 84 and saying that it is per incuriam because paragraph 84 was overlooked. Per incuriam requires ignorance of a binding, applicable ratio; it does not require agreement with every prior holding on a general scheme. The ATPMLA conflated disagreement with a precedent and holding that the precedent was per incuriam, which are entirely different propositions.

A lower adjudicatory body may disagree with a High Court's reasoning, but it lacks the institutional authority to treat that precedent as non-binding on that basis alone.

A Tribunal cannot in any case apply the label to a High Court

Even if the doctrine technically applied, the ATPMLA cannot invoke it against a judgment of the Delhi High Court. This is directly settled. In Union of India v. Chand Singh, the Delhi High Court held that "it is not open to the Tribunal to characterise a judgment of a High Court as per incuriam." [Chand Singh (7)]. One narrow latitude was recognised: where a tribunal has before it Supreme Court judgments that state the law differently from a High Court, it may follow the Supreme Court in preference. That is not a licence to call the High Court wrong on the statute; it is a duty, in cases of genuine conflict, to follow the higher court. That latitude is unavailable here because the claimed conflict with Vijay Madanlal Choudhary does not exist. 

What we have is a statutory tribunal substituting its own reading of section 8(3) for that of the High Court. The constitutional architecture forecloses this. The Supreme Court in East India Commercial Co. v. Collector of Customs held that a tribunal subject to a High Court's superintendence cannot ignore the law that court has declared and proceed in violation of it; if it could, the entire logic of supervisory jurisdiction collapses [East India Commercial Co Ltd (14), (31)]. L. Chandra Kumar v. Union of India placed High Court superintendence over tribunals within the basic structure of the Constitution [L. Chandra Kumar (79), (92)].

Why the ED's Interpretation Cannot Hold: A Convergence of Methods

The foundational error does not depend on the underlying interpretation being wrong. But it is worth examining why multiple orthodox techniques converge against the ED's position, because the Tribunal treated the grammar point as sufficient without considering what it does to the rest of the Act.

Grammar and the distribution of "confirm"

The subject-verb-object structure of section 8(3) is: "he shall, by an order in writing, confirm the attachment... or retention... under section 17 or section 18". "Confirm" is the operative verb, governing a single object list connected by "or." On the ED's reading, "or retention" introduces a power to originate retention, i.e. a power for which there is no verb in the sentence and no source in Section 8's architecture.

The Tribunal read "or" as disjunctive and derived from it a new, separate power. But "or" being disjunctive establishes only that there are two distinct objects; it does not supply a second, different verb [M/s N K Proteins (37)]. Filling that gap requires reading words into Section 8(3) that Parliament did not write, which is precisely what the Supreme Court in Vijay Madanlal Choudhary itself said constitutes rewriting the statute [Vijay Madanlal Choudhary [33)].

The Section 5 PMLA Structural Argument

The most telling textual point comes from a direct comparison with Section 5 of the PMLA. Section 5(1) reads: "he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order". This language is self-contained. It grants the Director an executive power of attachment directly, sets its own duration, and requires no separate provision to authorise retention. Section 8(3) then "confirms the attachment... made under sub-section (1) of section 5" and it confirms a prior executive order that Section 5 itself generates.

Section 17’s drafting rationale clearly departs from section 5. It could have, in order for it to be construed as a similar self-containing code, included language providing that the seizing officer may, by order in writing, retain such property for a period not exceeding 180 days. It does not thus, replicate the logic of section 5. Section 17 authorises officers to seize or freeze and contains no self-standing retention authority whatsoever. The officer who seizes under Section 17(1) has no power under section 17 to retain. Section 17(4)'s language confirms this: the officer files "an application requesting for retention", the language of petition to another body, not the language of independent executive order.

The retention authority for Section 17 PMLA property was placed, deliberately and separately, in Section 20. Section 20(1) mirrors section 5(1) in structure and provides that property "may, if seized, be retained... for a period not exceeding one hundred and eighty days". That is the executive retention order. Section 8(3) then confirms it, in the same manner that it confirms the section 5 attachment in the attachment track.

The expressio unius (Latin: expression of one thing is exclusion of another) inference is straightforward.  Parliament clearly enacted two enforcement tracks in the same statute. Under the attachment framework in Section 5, the authority to act and the authority to retain the property for 180 days are contained within a single provision. By contrast, under the search-and-seizure framework, Parliament distributed those functions across Sections 17 and 20, with Section 17 authorising the initial seizure and Section 20 governing subsequent retention. This structural choice reflects deliberate legislative design, where both tracks converge at section 8(3) for quasi-judicial confirmation but both require a prior executive order.

The ED’s argument effectively treats a seizure under Section 17 PMLA as the functional equivalent of an attachment under Section 5 for the purposes of Section 8(3). On this view, the Adjudicating Authority may confirm the seizure itself, even in the absence of a prior order under Section 20. Such an interpretation collapses the distinction that the statute deliberately maintains between the attachment and seizure mechanisms. If a seizure under Section 17 were by itself sufficient to attract Section 8(3), Section 20 would cease to perform any independent role within the search-and-seizure framework. The result would be to render Section 20 redundant, which is a consequence that the statutory scheme does not support.

Differential predicates

Section 20(1) PMLA obliges the authorised officer to record reasons showing that the property must be retained for the purposes of adjudication under Section 8. Section 8(2), which serves as the basis for any order under Section 8(3), requires the Adjudicating Authority to make a substantive finding that the property is involved in money laundering. These are materially different standards operating at different stages in the procedural machinery. The Section 20(1) determination is only a preliminary, executive-level judgement about investigative need while the Section 8(2) determination is a quasi-judicial finding on merits.

If the Section 17(4) PMLA application goes directly to the Adjudicating Authority without any section 20 order, the Authority is asked to make a full-blown section 8(2) money-laundering determination at the earliest possible post-seizure stage, before investigation is substantially complete, basis only the material forwarded under section 17(2). Parliament's decision to give the ED 180 days under section 20 exists precisely because that determination cannot responsibly be made immediately. Collapsing these tiers forces the Adjudicating Authority into an adjudication on merits at a stage for which the statutory scheme provides no adequate procedural preparation.

The Convention architecture

The PMLA's Statement of Objects and Reasons, reproduced in the Solicitor General's Note II, names the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 as one of the international instruments calling for prevention of laundering of drug proceeds and confiscation of proceeds derived from such offences. Chapter VA of the Narcotic Drug and Psychotropic Substances Act, 1985 (“NDPS Act”) was enacted to implement the same Convention's Article 5 on confiscation, and its seizure-confirmation architecture under Section 68F is a two-step structure where the investigating officer seizes or freezes under section 68F(1), and the quasi-judicial competent authority confirms within 30 days under section 68F(2), failing which property is returned.

That confirmation power is precisely a power of confirmation, not an original power of seizure. PMLA was enacted to address the money laundering which the NDPS regime had left uncovered, extending the Convention's framework to the full range of scheduled offences. If the ED's reading of Section 8(3) as an original retention power were correct, that expanded statute would provide fewer executive-layer accountability steps in its search-and-seizure track than the narrower NDPS regime it was designed to go beyond. That outcome can’t be reconciled with the Centre's own framing of PMLA as giving effect to India's Convention obligations.

The Institutional Stakes

The Tribunal’s interpretive disagreement with the Delhi High Court can very well be legitimate. The question remains contested, and with both Rajesh Kumar Agarwal and Anirudh Pratap currently pending before the Supreme Court, awaiting the Apex’s resolution on interpretation. The difficulty lies not in the Tribunal’s disagreement, but in the institutional consequences it drew from it.

The ATPMLA sits in a legal order where it is subject to Delhi High Court jurisdiction under Articles 226 and 227 of the Constitution and, hears appeals that travel to the High Court under Section 42 of PMLA, and has before it a consistent body of Division Bench authority directly on point. If it disagrees with that authority, the remedies open to it are narrow and well-defined, which are to follow the High Court while recording the difficulty and distinguish on facts where facts genuinely differ. Declaring a Division Bench judgment per incuriam is not one of those remedies.

The practical consequences of the Tribunal's approach, left unchallenged, are that Section 20 protections become effective only for those who can afford to litigate back to the High Court under Section 42. The Adjudicating authority cites the ATPMLA and thus it has immunised itself from High Court correction. Property seized without a Section 20 PMLA order stays seized, and Article 300A operates at the Tribunal's discretion rather than as a function of law. That is not a procedural quibble. It is the difference between a safeguard that functions and one that exists only on paper.

Guest Post: Indiscriminate by Design - Case against Pellet Guns

(This is a guest post by Rudraksh Lakra)

Pellet guns entered the conversation around Indian protest policing in July, when the Rapid Action Force used them against demonstrators at the Cockroach Janta Party (“CJP”) march in Delhi. This is not new territory; security forces have deployed pellet-firing shotguns against protesters in Jammu and Kashmir since the early 2010s.

While hearing petitions concerning the violence during the CJP protest, the Supreme Court observed that pellet guns may be used in exceptional circumstances. This approach mirrors the Court's response in 2017 when it considered the excessive use of pellet guns in Jammu and Kashmir. The Court observed that pellet gun deployment ought to require proper application of mind by the authorities.        

I find this approach deeply unsatisfactory. In 2017, the Court did not seriously examine whether pellet guns were themselves constitutionally permissible. In 2026, even at the stage of interim relief, the Court observed that pellet guns may be used in exceptional circumstances, nudging against a constitutional challenge to the weapon itself. In both instances, the Court chose to regulate the manner in which pellet guns may be deployed rather than asking whether they are compatible with the constitutional guarantees of life and peaceful assembly.

In contrast, I argue that the use of pellet guns for policing protests fails the proportionality test because they are inherently indiscriminate and excessive by design. Unlike conventional ammunition that discharges a single projectile, pellet cartridges release dozens or even hundreds of metal pellets in India that spread over a widening area immediately after being fired. Once fired, each pellet travels independently, making it impossible to confine the force to a particular individual. The foreseeable area of impact extends beyond the intended target, exposing nearby protesters, journalists, bystanders, and even persons attempting to leave the assembly to serious injury. 

The resulting injuries are determined more by the mechanics of the ammunition than the decision to pull the trigger. This matters because it moves the inquiry away from the conduct of the individual officer. An officer who exercises restraint, aims carefully, and fires in line with official instructions still cannot control where each pellet lands once it leaves the barrel. The risk of striking unintended persons is built into the weapon rather than caused by poor implementation. Procedural safeguards can govern the decision to fire, but they have no bearing on the trajectory of a pellet after it has been discharged. 

The severity of injuries caused by pellet guns further demonstrates why they are unsuitable for policing assemblies. Metal pellets penetrate soft tissue and frequently strike highly vulnerable parts of the body, particularly the face and eyes. Victims can suffer permanent blindness, retinal detachment, ruptured eyeballs, facial fractures, internal bleeding, nerve damage, lung injuries, and abdominal trauma (see here, and here). In Jammu and Kashmir, between 2015 and 2017, pellet guns were responsible for the deaths of at least 17 people. The Jammu and Kashmir Chief Minister, Mehbooba Mufti, informed the Legislative Assembly that between July 2016 and February 2017 alone, 6,221 persons sustained pellet injuries, including 782 eye injuries. More than 1,000 Kashmiris have suffered partial or complete loss of vision since pellet guns were introduced in 2010.

This is also why leading human rights organisations have consistently concluded that pellet guns are unsuitable for policing assemblies. Physicians for Human Rights and the International Network of Civil Liberties Organizations concluded that pellet rounds disperse multiple projectiles across a broad area, making accurate targeting impossible. For this reason, they recommend that kinetic impact projectiles firing multiple pellets should be prohibited during protests. The Omega Research Foundation similarly explains that the spread pattern of pellets is inherently inaccurate and that the pellets can lodge in multiple parts of the body, making medical treatment significantly more difficult.

The United Nations guidance on less lethal weapons in law enforcement notes that weapons firing multiple projectiles generally cannot comply with the principles of necessity and proportionality, and recommends banning metal pellets, fired from shotguns like in India.  Human Rights Watch also calls upon India to prohibit the use of metal pellet shotguns for crowd control. This inability to distinguish between individuals, and its capacity to inflict serious physical injuries, renders it incompatible with international human rights law. 

Therefore, a constitutional framework founded upon necessity and proportionality cannot accommodate a weapon whose ordinary operation creates a foreseeable risk of striking persons who were never intended to be hit. 

The same conclusion follows from domestic law governing the use of force. Sections 148 to 150 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), corresponding to Sections 129 to 131 of the Code of Criminal Procedure (“CrPC”), embody a principle of graduated force while dispersing unlawful assemblies. Section 149(3) of the BNSS, corresponding to Section 130(3) of the CrPC, expressly requires that the armed forces use "as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly." In Anita Thakur v. Union of India (2016), the Supreme Court held that force used to disperse an unlawful assembly must remain reasonable and confined to what is necessary to restore order. In Ramlila Maidan Incident v. Home Secretary (2012), the Court recognised that excessive force by the police, including disproportionate use of tear gas, and noted that these actions had “an element of criminality”. A weapon that is inherently indiscriminate, and excessive sits uneasily within a statutory scheme built around a graded, minimal, reasonable, and proportionate response.

For these reasons, I believe the Supreme Court's protocol and safety-based approach to pellet guns addresses a symptom rather than the underlying problem. A weapon whose ordinary operation predictably disperses uncontrollable projectiles cannot be rendered proportionate through better training, stricter authorisation or revised operational guidelines. The documented experience of Kashmir demonstrates that the harms associated with pellet guns are systemic rather than accidental. The constitutional guarantees of life and assembly therefore require a categorical prohibition on the use of pellet guns in protest policing. 

Guest Post: Between Administration and Abolition - Reading Black Warrant Along side Angela Davis

(This is a guest post by Aishwarya Nabh)

The debate on prisons is usually framed as a choice: reform the system or abolish it. But that framing may be too narrow. Read together, two very different books, one written from inside a jail superintendent's office and the other from the vantage point of an activist-scholar challenging incarceration itself, suggest that the more useful question is not which side to choose, but what each side sees that the other misses.

Sunil Gupta and Sunetra Choudhury's Black Warrant: Confessions of a Tihar Jailer and Angela Davis's Are Prisons Obsolete? could not be more differently positioned. Gupta writes from decades inside India's largest prison system. Davis writes as a scholar questioning the very foundations of incarceration. Yet neither romanticises prisons, and read side by side, they open up an important conversation about punishment, power, dignity and the future of criminal justice, one that has particular urgency in India today.

The View from Inside: Black Warrant's Administrative Realism

Black Warrant is fundamentally an insider's account. Gupta does not ask whether prisons should exist; he accepts their existence as a given and focuses on the realities of running one. Through accounts of notorious inmates, executions, institutional crises and everyday prison life, the book exposes overcrowding, corruption, violence, political influence, administrative constraints and the psychological burden borne by inmates and staff alike. Prison administration, it turns out, is not merely about enforcing confinement. It is about managing human beings under constant tension and scarcity.

The strength of Gupta's account lies in its realism. The prison that emerges from these pages is not a neatly functioning institution governed solely by legal rules, but a complex ecosystem where law, bureaucracy, politics and human behaviour intersect. Officials must maintain order among thousands of inmates while complying with judicial directions, government policy and public expectation, often making difficult decisions where no ideal solution exists.

The book also illustrates, almost incidentally, how prisons become repositories of society's failures. Poverty, illiteracy, addiction, social exclusion and mental illness do not stay outside prison walls; they enter alongside the people who are incarcerated. What struck me while reading Black Warrant was how many of the people who entered Tihar seemed to carry histories that began long before their imprisonment. Gupta observes these realities as a jailer; he does not set out to explain them. But their presence raises an uncomfortable question: if prisons keep absorbing the consequences of broader social failure, can prison reform alone ever be enough? Black Warrant stops short of interrogating the structures that produce these conditions. Its concern is not why prisons exist, but how they function.

Angela Davis and the Case Against the Prison

Angela Davis begins from a different premise altogether. In Are Prisons Obsolete?, she argues that incarceration has become society's default response to social problems, one that conceals deeper issues such as poverty, inequality, racial discrimination and failures of public welfare. Her concern is not merely that prisons function poorly, but whether they are capable of fulfilling the objectives claimed for them at all.

For Davis, prisons have become so normalised that society rarely pauses to examine their necessity. Crime is treated as an individual failing rather than a phenomenon shaped by economic and political conditions, and incarceration becomes the default fix while the underlying causes go unaddressed. In her analysis, the prison functions not just as a place of confinement but as a mechanism through which society distances itself from uncomfortable realities.

Two Lenses on the Same Problem

At first glance, Gupta and Davis appear to be speaking about entirely different things: one occupied with prison management, the other with prison abolition; one concerned with what happens inside prison walls, the other with the conditions that make those walls necessary in the first place. Yet the distance between them is smaller than it looks. Gupta writes from inside the institution; Davis questions it from outside. Both are grappling with the same underlying problem: what prisons do to human beings, and what society expects prisons to achieve. Gupta's narratives repeatedly expose institutional failure and the limits of state control; Davis theorises these failures as consequences of a system built around exclusion rather than rehabilitation.

This distinction is visible most sharply in how each treats capital punishment. In Black Warrant, execution appears as an administrative responsibility: death warrants must be carried out in accordance with law, irrespective of personal views, and the emphasis falls on procedure, compliance and the burden placed on the officials who implement one of the law's most severe sanctions. Davis approaches the same subject from an entirely different direction. She treats capital punishment as an extension of a punitive culture that prioritises retribution over restoration, asking not whether executions are lawfully conducted but whether a society committed to human dignity can justify them at all. The focus shifts from implementation to legitimacy.

A lawyer reading both works quickly notices that each addresses only part of the larger problem. Administrative accounts explain how prisons function but rarely question the assumptions that sustain them. Abolitionist theory identifies structural flaws but can underestimate the practical realities of maintaining public order and responding to serious crime. The task, then, is not to choose between Gupta and Davis, but to see what each reveals and what each leaves unanswered.

India's Constitutional Bridge

This conversation carries particular weight in India, where prisons continue to face persistent overcrowding, understaffing, inadequate healthcare and limited opportunities for rehabilitation. A substantial share of the prison population consists of undertrials who have not been convicted of any offence, and delays in investigation and trial often mean that incarceration operates as punishment before adjudication. These are not merely administrative concerns; they are constitutional ones.

It is here that Indian constitutional jurisprudence offers a bridge between Gupta's institutional realism and Davis's normative critique. The Supreme Court has consistently rejected the idea that prisoners lose their fundamental rights upon incarceration. In Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, the Court held that prison walls do not place state action beyond constitutional scrutiny, and affirmed that the guarantee of life and personal liberty under Article 21 extends to prisoners. Around the same time, in Charles Sobhraj v. Superintendent, Central Jail, AIR 1978 SC 1514, and later in Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96, the Court emphasised humane treatment, access to legal safeguards and protection against arbitrary prison practice.

The principle animating these decisions is simple but far-reaching: imprisonment may curtail liberty, but it does not extinguish personhood. The Constitution does not stop operating at the prison gate. In many ways, this vision reflects the concerns of both Gupta and Davis at once. It accepts the necessity of prison administration while insisting that the exercise of state power remain accountable to human dignity.

Even capital sentencing has gradually moved toward a rights-based framework. In Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, the Supreme Court held that procedural fairness, mental health considerations and human dignity continue to apply even to death-row convicts, marking a shift from viewing prisoners merely as subjects of control to recognising them as individuals entitled to constitutional protection.

What Neither Answers Alone

This is perhaps where the conversation between Gupta and Davis becomes most interesting: neither offers a complete answer. Gupta's experience shows why institutions matter, since no criminal justice system can function without trained personnel, procedures and mechanisms for maintaining order. Davis reminds us that institutions should never become immune from moral and political scrutiny. A prison system focused solely on control risks losing sight of rehabilitation; a theory focused solely on abolition risks overlooking the realities faced by victims, communities and administrators.

Conclusion: Beyond the False Choice

The debate between prison reform and prison abolition is often presented as a binary. Gupta and Davis suggest that this may be a false choice. Gupta's account makes it difficult to deny the practical necessity of prison administration; Davis makes it equally difficult to accept prisons as the inevitable answer to social harm. Read together, they expose the limits of both certainty and ideology.

For India, this conversation is especially urgent. The Constitution increasingly speaks the language of dignity, fairness and rehabilitation, yet the realities of overcrowding, understaffing, inadequate mental healthcare and prolonged undertrial detention continue to test those commitments. The gap between constitutional promise and institutional reality remains wide.

Perhaps that is the enduring value of reading Black Warrant along side Angela Davis. One reminds us that prisons are real institutions staffed by real people making difficult decisions every day. The other reminds us that no institution should become so familiar that it ceases to be questioned. The future of prison reform may not lie in choosing between administration and abolition. It may lie in letting each perspective challenge the other.

Guest Post: Illegally arrested, Legally Detained - The Paradox of Habeas Corpus

(This is a guest post by Bipul Kumar and Vaneet Kumar)

Recently, the petitioner, an accused under murder case, in Neeraj v. State of UP (“Neeraj”), filed a writ of habeas corpus in Allahabad High Court arguing that his remand is illegal since he was not informed of the grounds of his arrest. However, Neeraj vide its order dated 27 May 2026, rejected the petition by holding that the post-cognizance remand cannot be vitiated because of illegal arrest (para 88). Moreover, it also declared Mihir Rajesh Shah v. State of Maharashtra line of judgments that declared arrest and subsequent remand illegal on non-communication of grounds as per incuriam, for conflicting with Kanu Sanyal v. DM, Darjeeling line of judgments (paras 87). The Court, while reaching these conclusions, also introduced two limitation ‘points’ on the availability of habeas corpus petition against arrest and remand: (a) taking of cognizance, and (b) the rejection of bail application. This article upon critically engaging with Neeraj argues that while the High Court correctly limits the remedy to pre-cognizance detention, its holding of per incuriam and its second limitation on habeas corpus are legally unsustainable.

Is Mihir Rajesh Shah Really Per Incuriam?

Neeraj concluded that Mihir Rajesh Shah and like “are not binding precedents and hit by the principles of stare decisis” (that is, per incuriam), without providing any reason provided alongside this conclusion (paras 86-87). This conclusion invites two lines of enquiry: (a) Whether the High Court can declare a precedent as per incuriam? And (b) Whether the conclusion reached by Neeraj is correct, irrespective of its competence? On the first line of enquiry, the answer can be found in Sundeep Kumar Bafna v. State of Maharashtra, where the Supreme Court held that the all courts, including High Courts, can declare a decision to be per incuriam; however, such declaration should be made with extreme caution and circumspection (para 16). Therefore, Allahabad High Court, via Neeraj, is competent to declare Mihir Rajesh Shah per incuriam.

As per Sundeep Kumar Bafna, “a decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment” (para 15). There should be a “glaring case of obtrusive omission”, as per Bajaj Alliance General Insurance Company v. Rambha Devi. In simple terms, if the overlooked binding precedent alters the conclusion of the judgment, such judgment is per incuriam. It is the assertion of Neeraj that Mihir Rajesh Shah line of decisions “do not appear to have considered the aforesaid earlier pronouncements of the Apex Court” (that is, Kanu Sanyal line of judgments) (para 77). However, Neeraj proceed to declare the former line of judgments as per incuriam without so much as asserting the irreconcilability of the two lines of judgments. This renders its conclusion doubly flawed, falling short of both the legal test enunciated in Bajaj Alliance and the salutary caution prescribed in Sundeep Kumar Bafna. Unlike Neeraj, it is our assertion that these two lines of judgments are not competing at all and, even if deemed to be so, are readily reconcilable. To enunciate, while the Mihir Rajesh Shah line of judgments deal with the post-arrest remand orders issued under section 187 of the Bharatiya Nagarik Suraksha Sanhita (“BNSS”) (or pari materia section 167 of the Code of Criminal Procedure, 1973), the Kanu Sanyal line of judgments deal with the preventive detention or remand orders issued under sections other than section 187 of the BNSS. Since the basis of remand is different under the two lines of judgments, they were never at loggerheads.

First Limitation ‘Point’

Although there is no limitation ‘period’ for filing a writ petition for enforcing the fundamental rights, especially under Article 22(1) of the Constitution (it mandates communication of grounds of arrest), Neeraj introduces limitation ‘points’ for this remedy. We shall discuss these two ‘points’ at length in this and following section. First, as mentioned above, Neeraj postulates that cognizance is a cut-off point for filing a habeas corpus writ under Mihir Rajesh Shah regime. This conclusion, in our opinion, is but obvious, and flows from multiple reasons which we proceed to address in turn. But before turning to these reasons, it is important to distinguish between the pre-cognizance and post-cognizance remand orders. While the remand orders under section 187 of the BNSS are pre-cognizance orders, the remand orders under sections 232 and 346 of the BNSS (or pari materia sections 209 and 309 of the Code of Criminal Procedure, 1973, respectively) are made after cognizance and hence, called post-cognizance orders. Neeraj postulate the reason as follows: “The order taking cognizance is a judicial order and stands on a higher footing than an order of remand passed under [section 187 of the BNSS], which is merely a pre-investigation judicial order” (para 75).

This quote provides us with first reason that the post-cognizance remand is based on separate considerations (that is, investigative material or chargesheet) that pre-cognizance remand (that is, pre-investigation material), making it legally untenable to adjudge the legality of the former detention on the basis of legality of the latter detention. The second reason, albeit absent from Neeraj, is straightforward: while pre-cognizance remand cannot be made but for arrest, the post-cognizance remand can be made independent of arrest. Therefore, the legality of arrest cannot impose as a litmus test for post-cognizance test. Thirdly, doing it otherwise would have violated the well-established and accepted ‘rule of return’. Fourthly, the factual matrix underlying Mihir Rajesh Shah regime concerned itself exclusively with pre-cognizance remand orders. The extension of that regime to post-cognizance remand orders would therefore be contrary to the doctrine of stare decisis, which demands that precedents be applied only to cases arising from analogous facts and circumstances. Therefore, cognisance as the ‘point’ of limitation for writ of habeas corpus can be founded well-established in law.

Before moving to the second ‘point’, it is pertinent to discuss the murkiness that lies beneath the superficially clear limitation ‘point’ of cognizance. Suppose X is illegally arrested and remanded under section 187 of the BNSS. The police subsequently file a charge-sheet under Section 193 of the BNSS; however, as is invariably the case in practice, there ensues a period of delay before the Court takes cognizance. Now, the writ of habeas corpus filed by X is heard at this stage. Should X be released? Now, as per the discussion up till now, the answer might appear yes. However, the answer is not as straightforward as it seems. Surprisingly and unfortunately, there is no provision that governs the detention during the period between charge-sheet and cognizance because while section 187 of the BNSS, as per Sanjay Dutt v. State, ceases to operate upon filing of chargesheet, sections 232 and 346 of the BNSS, as per State of UP v. Laxmi Brahman, cannot be applied until cognizance is taken.

Despite this peculiar situation, Neeraj, without providing any reason, declares that remand under section 187 of the BNSS “remains operative only till cognizance of the offence” (para 74). This inference despite treating X’s remand and pre-cognizance alike is hit by the doctrine of per incuriam as it ignores Sanjay Dutt. Contrarily, the Delhi High Court in Nitin Nagpal v. State declared X’s remand patently illegal (para 18). Therefore, the X’s writ of habeas corpus under Mihir Rajesh Shah regime will succeed in either scenario; however, X does not even need to allege ignorance of grounds, if Nitin Nagpal is considered. Conversely, the Allahabad High Court in Sudhakar Rastogi v. State of UP, by ruling that X’s remand is governed by section 346 of the BNSS, ends up classifying it as post-cognizance remand. This classification renders the X’s writ infructuous due to first limitation ‘point’ of Neeraj. Therefore, writ filed by an accused, who is in position similar to that of X, will receive different answers by different benches or Courts, even though we believe that Delhi High Court’s opinion is correct because the Courts, as per Natabar Parida v. State Of Orissa, do not have inherent power to detain.

Second Limitation ‘Point’

On the second limitation ‘point’, Neeraj reasons that subsequent bench should not entertain habeas corpus writ if the High Court or Supreme Court has rejected the bail application because doing otherwise “will amount to appeal/review of the judgment passed by the bench deciding bail application” (para 88(ii)). Even if this reasoning seems palatable, we contend that it is incorrect representation of law because while bail application contends that the accused satisfies the triple test and poses no risk of flight, tampering, or reoffending, a writ of habeas corpus challenges the legal validity of the detention at its very root. Furthermore, the distinction also lies in the judicial approach: while bail is discretionary and admits of no straitjacket formula, the writ of habeas corpus is, in a sense, compulsory. This may appear an extreme proposition; however, what is meant is simply that under the Mihir Rajesh Shah regime, the writ operates on a near-mechanical basis — failure to communicate the grounds of arrest must necessarily result in release from pre-cognizance custody. If the grounds, purposes, and operation of two are inherently different, Neeraj ought not to consider one as an appeal or review of another, simply because both ends up in same outcome (that is, liberty of the accused).

Rather, the Courts have even entertained both the applications simultaneously and one after another. For example, Arvind Kejriwal (in CBI matter) filed both writ of habeas corpus and bail application, and the Delhi High Court vide two separate orders decided these two petitions (see Arvind Kejriwal v. CBI (I) and Arvind Kejriwal v. CBI (II)). For another example, Kejriwal (in ED matter) filed a bail application in the Special Court, after the Supreme Court in Arvind Kejriwal v. ED reserved the matter involving writ of habeas corpus. While it is conceded that neither of the examples exhibit a bail application filed after habeas corpus writ; however, these examples exemplify that the courts have treated both the petitions differently. Critics, like Neeraj, might resort to Eastern Coalfields Ltd. v. Dugal Kumar to argue that the accused should exercise writ at the earliest reasonable opportunity. Though we concede that this allows the accused to avail relief at the earliest opportunity, this in itself cannot act as a bar for a writ petition filed after the bail application is rejected, especially when first limitation ‘point’ exists.

Conclusion

Upon culminating all the arguments, it can be concluded that the Neeraj not only wrongfully declared the Mihir Rajesh Shah line of judgments as per incuriam but also provided bail rejection as a legally untenable limitation ‘point’ for filing writ petition of habeas corpus. Upon removing these observations from Neeraj, the correct legal position can be stated as follows: the accused can file a writ petition of habeas corpus for illegal arrest until the court takes cognizance and detains the accused under post-cognizance remand orders.

Furthermore, it is important to note that this analysis of Allahabad High Court’s judgment comes at a crucial time, especially when the Supreme Court in State of Meghalaya v. Sonam Raghuvanshi on 23 July 2026 created a distinction between non-service of grounds and insufficiency of reasons stated therein. In our opinion, it effectively limited the scope of Mihir Rajesh Shah to form (that is, service of grounds) and hinged the vitiation of arrest on substance of grounds (that is, prejudice caused due to insufficiency of reasons). This might give rise to mechanical act of furnishing grounds of arrest by the police, leaving the accused to prove the prejudice before the courts — ultimately, becoming a brewing ground for upcoming jurisprudence on the grounds of arrest and its intersection with Mihir Rajesh Shah. Interestingly, the apex Court while hearing this very matter, like Neeraj, orally mulled referring Mihir Rajesh Shah to a larger bench for being per incuriam. However, the Court, without delving into reasons, relied on Shah, leaving the question of per incuriam for a future occasion. This constant attack on Mihir Rajesh Shah also exposes the possibility of potential judicial conflict. Hence, this piece should not be confined to the vision of Neeraj, but rather be considered against the ever-expanding jurisprudence on ‘grounds of arrest’.

Lastly, as a parting note, it is important to recollect that, as per Vihaan Kumar v. State of Haryana (one of the judgments in Mihir Rajesh Shah regime), the illegal arrest violates fundamental rights enshrined under both Article 21 and 22. The gravity of violation is well reflected by Supreme Court’s statement: “Deprivation of liberty even for a single day is one day too many” in Arnab Manoranjan Goswami v. The State of Maharashtra. Considering the gravity of violation, we opine that the shift to post-cognizance remand should not leave the arrestee remediless; rather, the accused should be entitled to compensation for illegal detention. The Supreme Court in Bhim Singh v. State of J & K, a case dealing with illegal detention, provided compensation even though illegal detention has ended. Therefore, the Constitutional Courts like Bhim Singh should push for compensation, in addition to release, as a relief under the writ of habeas corpus to deter the state machinery from violating the accused’s fundamental rights.