Introduction
The Courts and the Constitution is an annual conference that has, over its seven editions, emerged as a leading forum for rigorous and reflective engagement with constitutional governance and adjudication. The seventh edition, held on 28–29 March 2026, was jointly organised by NALSAR, theå Law and Other Things (LAOT) Blog, and BML Munjal University.
The conference also marked a significant institutional milestone which was the twentieth anniversary of LAOT, celebrating two decades of critical engagement with Indian public law. Each edition of the conference examines some of the most significant constitutional developments of the preceding calendar year, drawing together voices from the bench, bar, academia, journalism, and the student community.
This edition was themed around the constitutionalisation of criminal justice in India, probing the growing chasm between constitutional doctrine and its everyday enforcement, and the shifting relationship between the state and the courts.
The six panel themes contours of citizenship and the Special Intensive Revision exercise, gubernatorial power and federalism, India’s environmental juristocracy, judicial conduct and constitutional accountability, punishment and state violence, and the frontiers of rights adjudication, were identified through a close review of significant Supreme Court decisions delivered between early 2025 and the end of the year, with priority given to developments that reshape federalism, rights adjudication, institutional accountability, and democratic governance.The inaugural session featured addresses by Prof. Srikrishna Deva Rao (Vice-Chancellor, NALSAR), Prof. B.B. Pande (Professor Emeritus, Campus Law Centre, University of Delhi), Ms. Vrinda Grover (Senior Advocate, Supreme Court of India), and Prof. Pritam Baruah (BML Munjal University). The session was chaired and closed by Prof. N. Vasanthi (NALSAR). The conference also paid tribute to the memory of Prof. M.P. Singh, a distinguished constitutional scholar who passed away days before the conference commenced.
Prof. Srikrishna Deva Rao, Vice-Chancellor, NALSAR
Prof. Rao opened the conference by situating its theme within a broader theoretical framework. Drawing on the scholarship of Prof. Mohammad Ghouse and Prof. M.P. Singh, he noted that the idea of the constitutionalising of criminal justice, centring rights to life, liberty, and equality had been a foundational concern in Indian public law, yet remained unrealised in practice. Constitutionalism, he argued, is a culture of restraint: the demand that coercive state power justifies itself through fairness, proportionality, and transparency.
Prof. Rao observed that the Supreme Court had, over the years, generated significant doctrinal victories in areas such as arrest, bail, sentencing, and prisoners’ rights. These victories, however, have been contrasted by what he described as “constitutional silences” domains where the doctrine moves but practice does not. The gap between constitutional pronouncement and lived reality, he argued, remains the central challenge of criminal justice reform in India.
He highlighted several specific sites of concern. In bail jurisprudence, he noted that the preventive detention regime under special laws such as the UAPA and PMLA had rendered access to bail effectively illusory for a significant number of the accused. Courts, which are intended to intervene swiftly and decisively in matters of liberty, had normalised prolonged pre-trial incarceration. He referred to the phenomenon described as “process as punishment.”
He also pointed to the practice of demolition of property, colloquially called “bulldozer justice” as an especially troubling manifestation of the crime control model, one in which the state exercises punitive power outside any judicial or procedural framework. Both tendencies, he argued, reflect an over-emphasis on the crime control model that systematically crowds out the due process values which ought to be at the heart of any constitutionally governed criminal justice system. Prof. Rao concluded by invoking the legacy of civil liberties lawyers Dr. Balagopal and Mr. K.G. Kannabiran, who argued for carrying the constitution into the darkest corners of police stations, prosecution offices, and prisons until even the most powerless could feel its presence.
Prof. B.B. Pande, Professor Emeritus, Campus Law Centre, University of Delhi
Prof. Pande delivered the inaugural address, organising his remarks around three interlocking themes: the philosophy and practice of punishment and sentencing; the reinvention of rule-of-law bypasses through encounter policing and bulldozer action; and the changing relational dynamics between the state and the courts.
On punishment and sentencing, Prof. Pande traced the philosophical lineage of criminal punishment from retributive theories to utilitarian and reformative frameworks, drawing on Herbert Packer’s The Limits of the Criminal Sanction (1968). He observed that the Bharatiya Nyaya Sanhita, 2023 displays a marked preference for retribution and deterrence, as opposed to reformation. He substantiated his claim by pointing to the steep increase in offences attracting the death penalty (now nine) and mandatory life imprisonment. However, he pointed to a significant fracture between this legislative mandate and actual sentencing outcomes. Citing the Square Circle Clinic’s comprehensive death penalty report (2016–2025) and the Supreme Court’s guidelines laid down in Manoj Kumar v. State (2022), he noted a sustained and growing judicial receptiveness to scientifically-informed, reformative sentencing even where the legislature had prescribed the most severe punishments, referring to the lack of Death Penalty cases being affirmed by the Supreme Court in recent years. This fracture, he argued, demands serious academic attention.
Prof. Pande described encounter policing and demolition drives as twin mechanisms through which state governments circumvent constitutional and criminal justice rule-of-law frameworks in the name of expediency or due to public pressure. Both practices, he argued, are in patent violation of the PUCL guidelines on encounter deaths and the Supreme Court’s 2024 judgment by Chief Justice Gavai on the demolition of structures. Their persistence signals that constitutional constraints are being instrumentally acknowledged but practically disregarded.
In discussing the changing relationship between the state and the courts, Prof. Pande turned to three recent judicial interventions he identified as instances of the courts performing their corrective function. First, in Imran Pratapgarhi v. State of Gujarat (2025), the Supreme Court quashed proceedings against a poet charged for reciting verse at a Muslim congregation, with Justice Oka holding that Section 173(3) of the BNSS mandates a preliminary inquiry before FIR registration in offences punishable up to seven years, and that police officers are constitutionally obligated to apply the standards of Article 19(1)(a) and 19(2) before invoking speech-related provisions.
Secondly, in the case of State of Uttarakhand v. Om Prakash, the Supreme Court through Justice M.M. Sundaresh intervened after nine judicial institutions across thirty-one years had failed to address the plea of juvenility raised by a fourteen-year-old boy convicted for murder. The court’s intervention resulted in Om Prakash’s release under the Juvenile Justice Act, though Justice Sundaresh was conspicuously restrained in his observations, noting only that the accused had suffered due to errors committed by the courts.
Third, in a case involving the right to privacy of a victim of statutory rape in Kerala, where the court took suo moto cognizance, Justice Oka exercised the court’s extraordinary jurisdiction under Article 142, declining to remove a sentence of thirty years despite a legal conviction, after an expert committee revealed that it was the consequences of legal proceedings and not the original offence that had caused the deepest trauma to the victim. The court paired this with five directions to the state government to provide care, education, security, and financial support to the victim.
In contrast with these corrective instances, Prof. Pande placed two cases he described as instances of the judiciary coming “under the influence of the state.” In the Delhi riots case decided on 5 January 2026, the court, in declining bail to accused persons under the UAPA, appeared to subordinate Article 21 to the statutory framework of Section 43D (5) of the UAPA, treating the constitutional guarantee of personal liberty as operative only in cases of indefinite incarceration without any progress in trial, and not otherwise. Therefore treating an article of the constitution as subordinate to a special law. Similarly, in the Sonam Wangchuk case, an individual detained under the NSA for 170 days was released two days before the final hearing of his petition, without reasons or explanation. Prof. Pande emphasised that these aberrations are not incidental but are connected to real and structural changes in the relational dynamics between the state and the constitutional courts.
Ms. Vrinda Grover, Senior Advocate, Supreme Court of India
Ms. Grover, who described herself as a lawyer-activist in the structured her address around what she called the “prevarications of the court and the defiant state.” Her central argument was that the most threatening target of the contemporary security state is not violence, but ideas and claimed that the judiciary, by failing to robustly protect the space for ideas, has become complicit in their suppression.
Drawing on Imran Pratapgarhi, she noted that the court’s signal achievement was not merely quashing the FIR but telling the police to read, to understand that the Constitution protects the very forms of expression the police reflexively treat as seditious. Yet she contrasted this with an unreported case she personally handled: a cartoonist from central India, who had shared old social media posts about political figures, found himself not only before the Supreme Court on anticipatory bail, but was made by the court to publicly apologise and was effectively coerced into silence on social media. The court was, in her account, visibly offended by the cartoons and directed the police to audit his entire social media history. This, she argued, is not constitutional adjudication it is the court functioning as an instrument of chilling effect, discouraging people from exercises their right to expression. Similarly, in the case of Prof. Ali Khan Mahmudabad of Ashoka University, the state framed its position before the Supreme Court as one of magnanimity in permitting the exercise of freedoms, and the court, rather than correcting this inversion, appeared to accept the framing. The goalpost of Article 19(1)(a), she argued, had been moved not by the legislature or executive, but by the court itself.
Ms. Grover also addressed the detention of Gulfisha Fatima, Umar Khalid, and Sharjil Imam in connection with the 2020 Delhi riots, noting that the court has refused bail from 2020 to 2026 on the basis that the impermissibility of restraining personal liberty under Article 21 has not yet been “exhausted”, language she described as constitutionally questionable. The individuals detained, she emphasised, are those who conceptualised, planned, and strategised a peaceful protest not those who actually committed or facilitated violence.
She flagged with particular caution the trajectory of the death penalty. She acknowledged and credited the work of the Square Circle Clinic, among others that no death sentence was confirmed by the Supreme Court in 2025. However, she cautioned that the cases before the court involved none of the accused charged with terrorism-related offences. She argued that the jurisprudential commitment to abolition would face its true test only when a terrorism-accused death row prisoner comes before the court, and she expressed hope that the court would resist the instrumentalisation of “collective conscience” to sustain capital punishment, a phrase she said was meaningless in a society as deeply stratified by caste, religion, and class as India.
On the broader architecture of state power, Ms. Grover noted the proliferation of anti-conversion laws across ten or more states and the Digital Personal Data Protection Act both of which impinge on decisional and associational autonomy and the court’s continued delay in adjudicating these challenges. She concluded by urging the conference to reframe its discourse: the question is not merely what the courts should do, but why the state has become the primary violator of constitutional order. She called for a new vocabulary to replace terms such as “bulldozer justice” which, she argued, had no justice involved, just as the term “honour killing” needed to change as there was no honour in killing. The university, she suggested, had the ability to produce this vocabulary and the literature that goes with it.
Prof. Pritam Baruah, BML Munjal University
Prof. Baruah, who described himself as a legal theorist speaking at the level of abstraction, structured his address around two concerns: the neurobiological case for protecting deliberative institutions, and the troubling shift from formal-legal reasoning to managerial-instrumental reasoning in constitutional adjudication.
Opening with a brief on endothermic evolution in human biology, Prof. Baruah argued that universities, courts, constituent assemblies, and parliaments are heirs to an evolutionary inheritance of high-investment, long-term deliberation. Just as the human brain’s development requires prolonged gestation before it can function, these institutions require sustained investment in deliberation, without immediate outcomes to encode learning and remain capable of responding to future challenges. Freedom of speech and expression, he argued, is the medium through which such high-intensity social deliberation becomes possible, and universities must protect it even at high cost.
Prof. Baruah then turned to what he identified as the central jurisprudential pathology of the year 2025: the substitution of formal-legal-constitutional reasoning by managerial, instrumental, and strategic reasoning in judicial decision-making. He illustrated the contrast with the case of the Tamil Nadu Governor. The judgments that dealt with the governor’s delays in assenting to bills, he argued, employed recognisable tools of administrative law natural justice, non-arbitrariness and grounded their conclusions in constitutional text.
By contrast, the presidential reference that followed introduced concepts like the “dialogic model”, the idea that constitutional provisions exist to facilitate dialogue between the governor and the legislature, with the court as facilitator, and the notion that the court would be “usurping” the jurisdiction of other constitutional organs. Neither concept, he argued, has any grounding in constitutional text or doctrine. The first is a descriptive concept borrowed from academic constitutional theory (he cited Sandra Fredman); the second is a restatement of separation of powers without its constitutional content.
The danger of this managerial turn, Prof. Baruah argued, is that it treats citizens and their rights purely instrumentally as objects configured in a larger institutional game rather than as the subjects for whose sake the entire constitutional structure exists. He was critical of the “incompletely theorised agreements” school (Sunstein, Cass), which counsels courts to avoid deep engagement with constitutional rights in favour of narrow convergences capable of managing social disagreement. This may be an appropriate posture for bureaucrats or policy-makers, he argued, but courts have a distinctive duty to produce reason-based justifications and to define rights even if those definitions are later contested.
The symptom of this managerial turn, he suggested, is the blurring of the line between the courtroom and the drawing room, offhand remarks made from the bench that signal not merely lax decorum, but a deeper absence of the formalism that holds the court accountable to the law and to the parties before it. Formalism, properly understood, is not literalism; it is the discipline of establishing legal relationships from the text of the law, maintaining coherence, and subjecting departures from precedent to the pressure of justification.
Prof. Baruah concluded with reflections on legal philosophy. Drawing on H.L.A. Hart’s conception of the rule of recognition as a social fact, he suggested that India is approaching a crisis point: some accept the Constitution as binding, and some do not. In this condition, Kelsen’s insight becomes urgent that the Grundnorm requires not just social agreement but moral justification. The breakdown of consensus around basic constitutional norms depletes what he called the “value of care,” the capacity to regard other persons as members of a common political community. The task of rebuilding this consensus, he argued, cannot be left to courts or legislatures alone; it must be undertaken by academics and students, in classrooms and in the corridors beyond them, through the generation of literature and the cultivation of a culture of constitutional argument.
Prof. N. Vasanthi, NALSAR University of Law
Prof. Vasanthi brought the inaugural session to a close, reflecting on the significance of the conference as an institution now in its seventh year. She noted that the preceding addresses had, together, made a compelling case for understanding academia as a constitutional actor not merely as an observer or commentator on courts and legislatures, but as a participant in the production and reproduction of constitutional values. She acknowledged the loss of Prof. M.P. Singh, whose contributions to comparative constitutional law had shaped the intellectual framework within which much of this conference proceeds.
Prof. Vasanthi expressed particular gratitude to the student editorial team of Law and Other Things, noting that the blog represents an unusual and important institutional achievement: a platform through which emerging scholars take ownership of public legal discourse. She emphasised that the conference’s value lies not only in its formal sessions but in the community, it assembles, a community that, as multiple speakers had argued, is indispensable to keeping constitutional values alive in a period of institutional stress.
Edited by: Aditi Bhojnagarwala and Keerthi Sathvika Tammineedi
