What does a 962-bed AIIMS hospital in Odisha, a greenfield airport in Karnataka and a cancer research institute in Tamil Nadu have in common? These are all infrastructure projects that commenced construction or operations without obtaining the mandatory “prior environmental clearance” under the Environment Impact Assessment (EIA) Notification, 2006. On 29 July 2026, a three-judge Bench of the Supreme Court ('SC') saved these and several other non-compliant projects from potential closure or demolition, and opened a door for their regularisation considering their “public interest”. This judgment has, thus, seemingly settled a long-standing debate on what to do with projects that commenced without obtaining prior environmental clearance in violation of the EIA Notification.

The SC has held that while prior environmental clearance is a mandatory requirement under law, the Union Government can exercise its powers in exceptional cases to regularise non-compliant projects which are rooted in genuine public interest. The schemes to regularise such projects should be exceptional, narrowly tailored, and duration-limited, and offer a reasonable window to bring violators into the regulatory fold after subjecting them to EIA requirements, damage assessment, penalty, remediation and future compliance. The SC has further ruled that relief may be granted only if adverse action against the project would affect innocent third-party interests, livelihood, or essential public, environmental or infrastructural functions associated with it. Such schemes can be executed only through a statutory notification with legal standing at-par with the EIA Notification, 2006, not mere departmental instructions.

Considering the size of these projects and the nature of the violation, a few critical questions arise which this July 2026 judgment does not fully engage with: how did these large-scale violations happen in the first place; how was evidently unlawful development work permitted to continue; do we know, with any degree of certainty, how many projects are being developed without an environmental clearance; and how do we ensure this will not happen again? This piece examines the common thread running through all these questions, i.e., capability of the institutions responsible for enforcing the EIA notification.

The judgement and context

An Environmental Impact Assessment is carried out that so that various categories of infrastructure projects, such as mines, power plants, ports, highways etc, are pre-emptively assessed for any adverse impacts they may have upon the ecology, air and water quality and proximate communities. In India such process is mandatory under the EIA Notification, which thereafter determines whether such project may be given a go-ahead with or without conditions for alleviating the potential damage.

While the EIA notification only allows for prior environmental clearance, the Union Ministry of Forests and Environment and Climate Change ('MoEFCC') has issued different instruments of varied legal standing, some in the form of legal notifications and some in the form of mere departmental instruction or office memorandums to regularise non-compliant projects. Such regularisation resulted in these projects gaining an “ex-post facto” clearance, in a complete reversal of the procedure and safeguards mandated in the EIA notification, negating crucial steps such as consulting with public and stakeholders and expert-led appraisal of projects which are meant to be undertaken before any activity is commenced at the site.

These 'violation-management' instruments issued intermittently over the course of more than a decade have faced scrutiny before various Courts, most prominently, the National Green Tribunal ('NGT'), the Madras High Court and the Supreme Court. To get around an NGT judgment of 2015 which set aside the first in these series of instruments, the MoEFCC in 2017 introduced an instrument of relatively stronger legal mandate, a notification which provided a limited-period amnesty scheme for regularising non-compliant projects. This was approved by the Madras High Court in 2018 based on the government's undertaking that it was a strictly one-time measure of six months. However, the MoEFCC issued yet another Office Memorandum in 2021 which sought to convert this one-time exception into a regular practice.

Both these instruments were quashed by a two-judge bench of the SC in May 2025, holding that India's environmental jurisprudence doesn't permit grant of an ex-post facto clearance and even a 'one-time' measure to regularise non-compliant projects is not permitted. The SC further restrained the MoEFCC from issuing any similar instrument in the future. This, however, was recalled in a review judgment which found the 2025 judgment legally erroneous. Now, through its July 2026 judgment, SC has reversed its earlier judgement and permitted ex-post facto clearances in principle while laying down narrow criteria for framing them.

However, as the SC observed briefly, the lax implementation of the EIA notification resulted in rampant violations as projects were commenced or expanded without prior clearance. The SC noted that public projects worth INR 20,000 crores are in violation, consisting of twenty-four central projects and twenty-nine state projects including the three mentioned above. During 2017-24, it is estimated that over 100 projects have received ex-post facto clearances and over 150 have received terms of references, i.e., terms on which the project proponent needs to undertake the EIA process. 

Who is responsible?

Upholding the government's power to grant ex-post facto clearance through a statutory notification can create adverse implications, especially when we are not paying attention to how so many violations went undetected by authorities responsible for enforcing the EIA notification in the first place.

Multiple authorities are responsible for implementation of the EIA notification, including the MoEFCC, the State Environment Impact Assessment Authorities ('SEIAA'), the State Pollution Control Boards ('SPCBs') and the Pollution Control Committees ('PCCs'). The MoEFCC and the SEIAAs are the regulatory authorities responsible for granting environmental clearance and for carrying out post-clearance monitoring but the SPCBs are responsible for identifying violations on the ground and reporting them. The breach of prior clearance requirement earlier attracted criminal prosecution and civil penalty under the Environment (Protection) Act, 1986, but its amendment through the Jan Vishwas (Amendment of Provisions) Act, 2023 has now decriminalised its breach. This has further reduced deterrence as violations would now only attract civil penalties instead of prosecution.

But all these institutions suffer from capacity gaps, significantly hampering their ability to perform their statutory mandate. This has been seen from multiple studies and litigations over the years. In a 2019 affidavit before the National Green Tribunal ('NGT'), the MoEFCC admitted that at then existing capacity level, its regional offices would need 13 years for monitoring all existing clearances and 4.5 years to re-inspect every project.

The NGT had also directed performance audits of SEIAA in states like UP and Maharashtra to assess gaps between their requirement and capacity, which found significant gaps between statutory requirements and capacity of SEIAAs. Before the NGT, the MoEFCC could not comment on the capacity of SEIAAs and SEAC as they fall under state's administrative control, but the fact that the situation is still critical is evident from MoEFCC's recent amendment to the EIA notification. This amendment creates new interim institutions for appraising projects at the state level if there are no functional SEIAAs or SEACs. It comes against the backdrop of reconstitution delays and tenure expiry affecting regular functioning of SEIAAs and SEACs and highlights serious governance gaps arising from the absence of functional state-level institutions responsible for enforcing the EIA notification in states.

In the same 2019 affidavit, MoEFCC had announced a Six Monthly Action Plan to reduce vacancies, create new regional offices, and strengthen new monitoring cells for better enforcement of the EIA notification. But whether these admitted gaps have been addressed still remains unclear. Project proponents need to submit six-monthly compliance reports as a condition to the clearance. Though aimed at facilitating compliance and monitoring, these reports are largely self-certifications from project proponents which, without adequate physical verification, may contribute little in spotting violations or discrepancy.

Meanwhile the SPCBs and PCCs are mandated to ensure compliance on the ground. But with nearly 50% of posts lying vacant across multiple states, their ability is seriously constrained. This is not a new story either. Multiple studies over the years have also revealed capacity gaps across SPCBs / PCCs. For instance, studies by Tata Institute of Social Sciences (2013) and Centre for Policy Research (2023) highlighted that challenges related to technical expertise, trained personnel, finance, and leadership still remain unresolved across several SPCBs/PCCs.

In 2019, the NGT had directed performance audits of all SPCBs/ PCCs to assess adequacy of monitoring systems, regulatory mechanisms, competence, etc. These audits found serious deficiencies in human and technical infrastructure, affecting the functioning of environmental regulators. Based on this, the CPCB was expected to formulate a mechanism for effective functioning of SCPBs/PCCs, but whether it has been done remains unclear. In 2025, the SC also directed filing of vacant posts across all SPCBs/PCCs and equipping them with modern technology for performing their functions. Similarly, the NGT is also considering the capacity challenges in these institutions in an ongoing case; the recent filings before the NGT by these institutions indicate that almost all SPCBs / PCCs still lack adequate facilities and capacity to perform their functions.

The story ahead

The Supreme Court has now allowed the Union Government to regularise non-compliant projects which did not obtain prior environmental clearance, provided they serve public interest. But the case didn't attend to a crucial issue that in order to spot these violators and bring them to book, the government needs to first address the underlying institutional crisis that cripples the environmental law regime in the country, which has made the construction and operation of several projects without prior clearances possible over several years.

Meanwhile, the monetary penalties for violation, combined with an ex-post facto regime, would risk converting the prior clearance requirement into a cost of doing business that would need to be accounted for only if violations are detected.

Multiple judicial directions and studies have highlighted capacity challenges in India's environmental regulators, yet these crucial governance actors have not been given adequate attention. The goal should be to prevent projects from breaching environmental regulations, which requires adequately funded, appropriately staffed and independent regulators to detect violations at an early stage, not several years later. In the Court's own words, “Once the die is cast, what is done cannot now be undone”; we need to recognise that environmental harm once done or habitats once affected may not be reversible and prevention is the best approach for environmental conservation

Author Himanshu Pabreja is a Research Lead & Neha Miriam Kurian is an Associate Fellow at the Sustainable Futures Collaborative. Views are personal.

Today, digital evidence has changed the way criminal investigations are conducted. Mobile phones, laptops, CCTV cameras, emails, cloud storage and messaging applications have become important sources of evidence. The Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) recognises electronic records as documentary evidence [Sections 2(1)(d) and 2(1)(e)] and provides a special mechanism for proving secondary electronic records u/s 63. Under Section 63(4), such records must be accompanied by a certificate in the form prescribed in the Schedule to the BSA.

The certificate is divided into two parts. Part A inter alia requires disclosure of hash value of the electronic records in addition to the declaration required under the erstwhile Section 65B of the Indian Evidence Act, 1872 (“IEA”). Part B of the certificate requires a further declaration signed by an expert. It is this additional requirement that gives rise to the principal difficulty. While safeguards against manipulation of electronic evidence are necessary, the law must also consider whether the means adopted to secure reliability are proportionate to the burden they impose on litigants. This article argues that mandatory expert certification places an onerous financial, technical and procedural burden on litigants and have, in practice, prevented genuine and relevant electronic evidence from being placed before the court.

[Part B, Schedule, BSA. See section 63(4)(c)]

From Flexibility to Mandatory Certification :

The judicial approach to electronic evidence has undergone considerable development. In State (NCT of Delhi) v. Navjot Sandhu, the Hon'ble Supreme Court adopted a liberal approach by permitting secondary electronic evidence to be proved in the same manner as other documentary evidence. This position, however, was subsequently altered in Anvar P.V. v. P.K. Basheer, where the Court held that secondary electronic evidence could not be admitted unless the requirements of Section 65-B, IEA were satisfied. The subsequent decision in Shafhi Mohammad vs the State of Himachal Pradesh watered down the requirement of a certificate in cases where the person producing the computer output is not in possession of the device on the basis of which a certificate is required to be issued under section 65-B, IEA. However, the larger Bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal restored certainty by reaffirming the mandatory nature of the statutory certificate. In Ravinder Singh @ Kaku vs State of Punjab, it was observed that the electronic evidence produced before the court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law.

The position has now been carried into the BSA. Most recently, in Pune Bar Association v. Union of India, the Hon'ble Supreme Court reiterated that the certificate requirement under Section 63 of the BSA remains mandatory and cannot be substituted through oral evidence.

The introduction of expert certification was intended to strengthen the reliability of electronic evidence. At first glance, the requirement appears to be a safeguard against tampering and manipulation of digital records. However, in practice, it creates significant procedural and financial hurdles for litigants without offering any meaningful improvement in the authenticity of electronic evidence.

The practical burden of mandatory expert certification :

The first difficulty is the availability of experts. Although Section 79A of the Information Technology Act, 2000 empowers the Central Government to notify Examiner of Electronic Evidence, only a limited number of laboratories have been notified. Their geographical reach is limited, and many litigants residing in smaller towns or rural areas have no practical access to such facilities. Although the Apex Court in Pune Bar Association (Supra), observed that in addition to entities notified as Examiner of Electronic Evidence under Section 79A, ITA, if the Court is satisfied, on the basis of unimpeachable material, that any other person has special skill and expertise in computer science and cyber forensics, opinion of such person may be held relevant as an expert with regard to electronic/digital record and such person may sign Part B of the Schedule as an expert, the court refrained from giving any conclusive opinion on this issue and kept the question of law open.

The requirement, therefore, assumes the availability of both qualified experts and adequate forensic infrastructure, an assumption that is difficult to sustain given the existing limitations of Indian Forensic Science Laboratories. Even where private forensic experts are available, questions often arise regarding whether their certification satisfies the statutory requirement. This uncertainty defeats the very purpose of creating a clear procedural rule.

The second difficulty is cost. Forensic examination is not ordinarily a free service. Examination of a device, extraction of data, preparation of a forensic report and certification may involve substantial expenditure. Such costs may be manageable for a large corporation or a State investigating agency, but the position is very different for an individual litigant. A person seeking to rely upon an email, WhatsApp conversation, photograph, audio recording or CCTV footage should not be required to incur disproportionate expenditure merely to cross a procedural threshold before the court can examine the evidentiary value of that material.

The burden becomes particularly serious in civil and private disputes. The State, in criminal proceedings, may have access to investigative agencies, forensic laboratories and technical personnel. A private litigant ordinarily does not enjoy the same institutional resources. If every secondary electronic record must undergo expert examination before it can be relied upon, the inequality between parties with different financial and institutional capacities becomes more pronounced. A procedural rule that is formally neutral may, therefore, operate unequally in practice.

An expert certificate may establish the manner in which an electronic record was produced and the integrity of the process, but it does not by itself prove the truth or genuineness of its contents. Making such certification mandatory may therefore give undue importance to procedure at the cost of substantive justice, when the ultimate assessment of the evidence remains with the court.

There is also the question of delay. Electronic evidence is now produced routinely in litigation. If every such record requires expert certification, parties may have to wait for forensic examination before the evidence can meaningfully be considered. The existing limitations of forensic infrastructure can make this process even slower. The result is that a requirement intended to protect the integrity of evidence may itself contribute to the delay that the justice system is already struggling to address.

These concerns must also be viewed in light of Article 21. In Anita Kushwaha v. Pushap Sudan, the Hon'ble Supreme Court recognised access to justice as an essential facet of the right to life and dignity. A procedural requirement that makes it unduly difficult for a litigant to place relevant evidence before the court must therefore be tested against this constitutional guarantee.

A Lesson from the United Kingdom :

Section 65-B, IEA substantially drew from the Civil Evidence Act, 1968 of the United Kingdom, particularly clauses (2)-(6) of section 5 concerning the proof of computer records. Interestingly, the UK's own experience with these provisions soon revealed their limitations.

The UK Law Commission in its 1993 report titled “the hearsay rule in civil proceedings”, had observed that section 5 appeared to have been an “afterthought” and recommended that concerns regarding authenticity and reliability should ordinarily be addressed through the weight of the evidence rather than rigid admissibility conditions (para 3.14, 3.16). Section 5 was consequently repealed by the Civil Evidence Act, 1995. A parallel provision existed under Section 69 of the Police and Criminal Evidence Act, 1984. The requirement was also found to be unnecessary and was ultimately repealed by the Youth Justice and Criminal Evidence Act, 1999. Even before its repeal, Regina v Shepherd [1993] 2 WLR 102 demonstrated that the reliability of computer-generated evidence could be established through oral evidence, without making certification the exclusive method of proof.

Thus, while UK moved away from these technology-specific certification requirements after recognising them as outdated, India retained the basic model under Section 65-B and has now introduced an additional expert declaration under Part B of the Schedule to the BSA.

Towards a more proportionate approach :

The answer does not lie in abandoning safeguards for electronic evidence. The authenticity and integrity of digital material must remain central to its evaluation. The question is whether the law can achieve that objective through a less burdensome mechanism.

A more balanced approach would adequately protect the integrity of electronic evidence while ensuring access to justice. Instead of requiring mandatory expert certification, the law should permit the party producing secondary electronic evidence to file a sworn affidavit affirming the source of the electronic record, the manner in which it was obtained and its authenticity to the best of the deponent's knowledge. Such an affidavit would make the deponent accountable for the truthfulness of the statements made therein and expose the person to prosecution for perjury if the declaration is found to be false.

Where the opposing party specifically disputes the genuineness of the electronic record or raises credible allegations of tampering, the court should retain the power to seek expert opinion under Section 39 of the BSA, which recognises the relevance of opinions on matters requiring specialised knowledge. Expert opinion should therefore be directed where the circumstances of the case genuinely require it, rather than being imposed as a mandatory procedural requirement in every case. It would reduce unnecessary costs, minimise delays and make electronic evidence more accessible, particularly for economically weaker litigants, while continuing to preserve adequate safeguards against fabricated digital evidence.

Electronic evidence has become a regular feature of modern litigation. The law must therefore protect its integrity without making its use unnecessarily difficult. Section 63 of the BSA rightly recognises the special characteristics of electronic records, but the mandatory expert certification contemplated by Part B of the Schedule raises serious practical concerns.

A safeguard cannot be permitted to become a barrier. Where a litigant has genuine electronic evidence but lacks the financial or technical ability to obtain expert certification, exclusion of that evidence may result in the court deciding a dispute without considering material that could assist in reaching the truth. The better course is to permit other reliable modes of establishing authenticity and to reserve expert examination for cases where the genuineness or integrity of the electronic record is genuinely disputed. Such an approach would preserve evidentiary safeguards while ensuring that procedural requirements remain servants of justice, and do not become its substitute.

Author Mayank Makhija is a practicing LCTawyer at Supreme Court of India and former Special Public Prosecutor for Enforcement Directorate & Mr. Naman Sharma is a final year student at Maharashtra National Law University, Nagpur. Views are personal.

On 20 August 2026, the Department of Justice notified nine advocates who will take the oath as Additional Judges of the Punjab and Haryana High Court. On 4 May, the Supreme Court Collegium had approved ten, on a list that began in the High Court collegium and carried the endorsement of every constitutional functionary consulted along the way. The nine who have taken oath deserve every good wish, and nothing here reflects on them. The tenth name, that of Major Navdeep Singh, Senior Advocate, has been dropped without a word. I write this not as an academic observer of the appointments process but as a practising advocate who has watched, at close range, how lawyers quietly alter their professional choices in response to what that process rewards and punishes.

Three distinct arguments run through this piece, and it is best to state them at the outset. The first is procedural: a candidate cleared through the constitutional selection process should not disappear into unexplained executive silence. The second is constitutional: even without reservation, which nobody is demanding, the composition of the judiciary is not a matter to which a constitutional democracy can be indifferent. The third is institutional: the opacity of the present process makes it impossible to distinguish legitimate selection from arbitrary exclusion, and that inability is itself the injury. Put shortly, the question is not whether Navdeep Singh is entitled to a judgeship because he is a Sikh. It is whether a candidate who has cleared the constitutional selection process can be silently excluded without explanation, and whether a judiciary that already suffers from a demonstrable diversity deficit can afford to treat representation as irrelevant.

The Man And The Silence

Navdeep Singh's record is public. A constitutional and service law practitioner at Chandigarh, he is the most decorated officer in the history of the Territorial Army, with eleven commendations earned largely while serving in counter insurgency areas during court vacations. He founded the Armed Forces Tribunal Bar Association, served on the Government's own Committee of Experts constituted in 2015 under the late Manohar Parrikar to curb litigation against soldiers, helped shape international military justice instruments at Yale and Stellenbosch, and has written or edited several books and over two hundred articles. He was the only military veteran among the ten recommended, and the only turbaned Sikh.

I do not claim to know why he was excluded. That is precisely the point. No reason has been recorded, disclosed or even hinted at, to him, to the Collegium or to the public. What I am asking is why the country is not entitled to know.

This Has Happened Before

The silence is harder to accept because it is not new. In October 2023, the Collegium recommended five advocates for this very court; the Centre appointed three and withheld the two turbaned Sikhs in the batch, Harmeet Singh Grewal and Deepinder Singh Nalwa. A bench headed by Justice Sanjay Kishan Kaul asked in open court: "Two of the candidates not cleared are both Sikhs. Why should this arise?" The Shiromani Gurdwara Parbandhak Committee called it discrimination. No answer ever came. The two were appointed only in February 2025, nearly sixteen months after they were first cleared, their seniority permanently damaged.

Nor is unexplained withholding reserved for any one community. Senior Advocate Aditya Sondhi withdrew his consent to a Karnataka High Court judgeship in 2022 after a year of silence while his batchmates were appointed. Shwetasree Majumdar, one of the country's finest intellectual property lawyers, withdrew in 2025 after the Government appointed the two advocates recommended alongside her and never acted on her file. In no case was a reason stated. A lawyer who consents to judgeship winds down a practice built over decades; to leave such a person in limbo indefinitely is a quiet cruelty, and the Bench loses its best candidates to it.

The Numbers Tell A Larger Story

Set these episodes against the composition of the courts, with one honest caveat: the Government does not formally record the religion of judges, so counts of community rest on publicly known identity. By my count from the public record, of the roughly fifty five judges serving in the Punjab and Haryana High Court on the eve of these appointments, eleven are Sikhs, in a court whose jurisdiction includes the one Indian state where Sikhs are a majority, and only five of those eleven came from the Bar; the rest rose from the judicial services, as a matter of right, as per their seniority, at the close of long careers, with little time left to shape the court's jurisprudence. Representation that arrives late and leaves early is representation in name.

Higher up, the Supreme Court has had no Sikh judge since Chief Justice J.S. Khehar retired in August 2017. Justice Gurmeet Singh Sandhawalia, Chief Justice of the Himachal Pradesh High Court, is by all India seniority the third senior most High Court judge in the country and the senior most sitting Sikh Chief Justice, with an unblemished record; lawyers of the region, concerned by he being marginalised , have formally petitioned for his elevation. Yet when the Collegium recommended five appointments to the Supreme Court this May, he was passed over, and among those elevated was a judge junior to him from his own parent High Court.

The picture is no better elsewhere. The Department of Justice's list of judges as on 1 February 2026 shows the Delhi High Court, in the capital of a country of, with a sizable Muslim population, with forty four judges serving against a sanctioned strength of sixty and not one publicly identifiable Muslim among them. So far as community is publicly known, the Supreme Court today has one Muslim judge and one Christian judge against a sanctioned strength of thirty eight now. And the caste picture comes from the Government's own mouth: in March 2025 the Law Ministry informed the Rajya Sabha that of 715 High Court judges appointed since 2018, only 22 were from the Scheduled Castes, 16 from the Scheduled Tribes, 89 from the Other Backward Classes and 37 from the minorities, which leaves roughly seventy seven per cent drawn from the upper castes, and, as anyone who practises in our constitutional courts knows, disproportionately from a narrow, urban, English speaking elite, from established legal families and a handful of storied chambers, a phenomenon entrenched enough that the Law Commission's 230th Report and Parliament's own records discuss it as the "uncle judges" syndrome. In seventy six years, only two Dalits have held the office of Chief Justice of India. Whole states can go unseen too: Jharkhand waited a decade for a judge of its High Court to sit on the Supreme Court, until this year's round of appointments. Parliament's Standing Committee on Law and Justice, in its 133rd Report of August 2023, called this a "diversity deficit", recorded a declining trend, and recommended that the collegiums recommend adequate numbers from the marginalised sections, a duty it wanted written into the Memorandum of Procedure. Nothing of the kind has happened. We cannot even measure the pipeline, because no body, governmental or professional, publishes data on the social composition of the lakhs of lawyers who enrol each year.

This Is Not An Argument For Quotas

There is no reservation in the higher judiciary, and no one is asking for any. But the absence of a quota is not the absence of a constitutional concern. Four ideas must be kept apart: reservation, which is a legally prescribed allocation; representation, which asks whether an institution broadly reflects the society it governs; merit, which is the threshold of competence every candidate must cross; and selection, which is the choice among the many who cross it. The argument here is not that anyone should be appointed because of community. It is that when several candidates are professionally qualified, the institutions choosing among them cannot be indifferent to a pattern in which entire sections of society are systematically absent from the outcome.

And this matters for justice itself, not merely for appearances, because judging is not a mechanical act. Every judge who takes the oath applies open textured phrases, equality, due process, dignity, reasonableness, to the facts of other people's lives, and what strikes a judge as reasonable or fair depends, inescapably, on the range of lives that judge is able to imagine. The judicial power of a constitutional court is an exercise of constitutional morality and of equity as much as of technical law; between two legally available outcomes, it is a judge's tempered sense of what justice requires that decides the case, and that sense is formed by experience. In a country of this size and diversity, where the same statute falls upon a tribal forest dweller, an urban startup founder and a landless labourer, a bench drawn from a single narrow stratum will, with the best will in the world, see some litigants clearly and others only dimly. Diversity on the Bench is therefore not a concession to identity politics; it is an epistemic necessity for a fairer and more equitable system of justice, one in which litigants of every description can be understood, and can believe they will be understood. South Africa's framers went further and constitutionalised the concern: Section 174(2) of that country's Constitution directs that "the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed." India chose a different model, leaving composition to the discretion of the appointing institutions under Articles 124 and 217. But a discretion left unstructured by text is structured by constitutional morality, and the equality code of our Constitution is not suspended at the door of the appointments process. Where there is no quota, diversity can come only from conscious choice. That is a duty, not a favour.

What If There Is A Reason?

The fair minded reader will ask the obvious question: perhaps there is something about this candidature the public does not know. I accept that possibility without reservation. There may be considerations of suitability known to the Government and not to us; I do not claim otherwise. But the Constitution's own machinery answers this. The Memorandum of Procedure permits the Government to return a recommendation, with reasons, for the Collegium's reconsideration, and the Collegium can then weigh the material and respond. What the Government has done instead is neither to appoint nor to return, but to sit silent while notifying everyone else. If there is a reason, the process exists to state it. If there is none, the appointment must issue. A constitutional system should not operate through unexplained exclusion, because unexplained exclusion is indistinguishable, from the outside, from arbitrary or discriminatory exclusion, and the reputational cost of that ambiguity is borne by the candidate and by the institution, never by the officials who maintain the silence.

Why The Stakes Are So High

These are not ordinary personnel decisions. Whatever the merits of individual candidates, appointments to the constitutional courts are exercises of public power with profound and near permanent consequences. Not a single judge of a High Court or the Supreme Court has been removed through the constitutional process in the seventy nine years since Independence. A judge once appointed will interpret the Constitution and decide questions of life, liberty and property for decades, answerable in that time to conscience alone. And each such judge carries an extraordinary share of the Republic. The Punjab and Haryana High Court serves upward of six crore people through a working bench in the sixties, roughly one judge for every ten lakh citizens; nationally, the Department of Justice's court wise statement as on 1 May 2026 records 797 working judges against a sanctioned 1,122, nearly one in three seats vacant. In a system this stretched, every name added or withheld matters enormously, and every unexplained withholding is a decision of constitutional consequence taken invisibly.

The Lawyer Watching From The Back Of The Court

Think, finally, of what all this teaches the young lawyer watching. A first generation lawyer, a Dalit or Adivasi lawyer, a Muslim or Sikh lawyer, a woman without a judge for a father, a scholar, an independent mind: each learns, episode by episode, that the system will not reliably reward merit, integrity, scholarship, courage or the diversity they embody, and that it may answer those qualities with silence and limbo. Many of the best will simply stop thinking of judgeship at all. I confess I am one of them. That loss appears in no government table, but the institution will pay it for a generation.

So, who gets to judge in India? Today the honest answer is: whoever survives a process in which the Collegium chooses behind closed doors and the Government vetoes behind closed lips. Neither should be able to decide invisibly. If there is material against Major Navdeep Singh, let it be returned to the Collegium with reasons, as the process commands. If there is none, let the warrant issue. And in either event, let both institutions begin doing openly what the Constitution's promise of equality demands: seeking out able candidates from every section of this country, appointing them, and telling us why when they do not. Until then, every list of ten that arrives as a list of nine will ask a question the system refuses to answer, and the silence will go on doing its quiet damage. The independence of opinion, commitment to principles of preamble to constitution should never be a disqualification to become a judge in India, a constitutional democracy.

Author is an Advocate practicing at Punjab and Haryana High Court. Views are personal.

India does not have to borrow right to know from anywhere. Courts here have used Articles 19(1)(a) and 21 for decades to compel disclosure from manufacturers who would rather have avoided, from what a soft drink contains to whether a snack is vegetarian. The E20 controversy poses the question whether that same right reaches the fuel every vehicle owner must now buy. It rose through a dispute over what the government's own counsel had actually told the Court.

During the hearing of a Special Leave Petition before the Supreme Court filed by Bharat Petroleum Corporation Limited over the allocation of ethanol to a distillery following a Karnataka High Court order, Attorney General R. Venkataramani was reported to have described the government's 20% ethanol-blending E20 programme as an “experiment”. The Attorney General's Office initially denied making any such remark stating that no such argument had been included in its response and that media reports had misrepresented the arguments actually made in court. Venkataramani later clarified saying he had used the term experiment in reference to ethanol supply and not in relation to the E20 policy. What does the government owe consumers who are practically compelled to use a fuel blend mandated by executive decision rather than legislation? That question now unfolds across three matters; the BPCL petition, Akshay Malhotra's dismissed PIL and Narender Kumar Goswami's pending disclosure petition. Together they mark a shift from asking courts to revisit the policy rather than asking them to enforce what it owes consumers regardless of the policy's merits.

The First Round: Malhotra and the Doctrine of Policy Deference

It is not the first time that the controversy related to E20 scheme has come up before the courts. In August 2025, Advocate Akshay Malhotra moved a Public Interest Litigation before the Supreme Court seeking a direction to the fuel stations to ensure availability of ethanol-free petrol for old, non-complying vehicles along with mandatory ethanol content labelling at fuel stations. The litigation was based on a 2021 NITI Aayog report which raised concerns of inefficiency, corrosion and wear-and-tear of engines manufactured before E20 implementation. A bench led by Chief Justice B.R. Gavai and Justice K. Vinod Chandran dismissed the petition on September 1, 2025, treating the ethanol-blending programme as part of a broader national strategy on energy security and sustainability. The Attorney General went further describing the petitioner as a name-lender for an organised lobby. Having accepted the government's account of the policy's rationale in full, the Court never engaged with the relief actually sought labelling and consumer choice.

This position aligns with well-established precedent in which courts decline to interfere with economic and technical policy, from BALCO Employees Union (Regd.) v. Union of India, 2001 INSC 601 to the environmental-policy deference in Narmada Bachao Andolan v. Union of India, 2000 INSC 489. Judicial review of policy is available on grounds of manifest arbitrariness or constitutional infirmity, not a court's own view of whether a different policy would serve the public better. Read narrowly, Malhotra was not an endorsement of E20's technical safety it was a refusal to treat technical safety as a question courts are equipped to answer. Labelling and consumer choice were left unaddressed on their own terms, not resolved against the petitioner.

The Second Round: Goswami and the Reframing Around Consent

The newest petition before the Supreme Court, filed by Advocate Narender Kumar Goswami, does not repeat that mistake of asking the Court to re litigate the policy. The petition explicitly disclaims any challenge to the ethanol-blending programme or to the underlying objective of energy self-reliance. Instead it recasts the grievance in constitutional terms that the Malhotra bench never had to confront the absence of disclosure and informed choice. This change modifies the jurisdiction of the court in that the court now moves away from challenging the wisdom of the policy, something that Malhotra says courts will not entertain. It bases its review on the narrow issue of administrative mistakes such as arbitrary actions, lack of due process, or violation of legal rights. Since such cases only concern themselves with procedural issues, it allows the court to intervene without judging the policy.

The petitioners claiming to be the owners of pre-E20 vehicles observe that fuel pumps have no marking of ethanol content, invoices disclose nothing, and consumers have no alternative. The petition seeks mandatory disclosure of the ethanol percentage a vehicle-wise compatibility database, protection of warranty and insurance rights of consumers and a national consumer disclosure protocol. In addition, it also seeks formation of an expert committee to study compatibility, durability, and food and water security concerns, matters no court could resolve on its own. The argument is not that the Court should balance energy security against consumer convenience, but whether the government can pursue a legitimate objective through what the petition calls “administrative silence.” That brings the case closer to the Consumer Protection Act, 2019, than to non-justiciable economic policy landscape which defeated the Malhotra petition.

Why Disclosure Is the Stronger Legal Ground

Comparative practice reinforces this approach. In the case of the US, E10/E15 blend rates come with a mandatory labelling regime as per the EPA¹ and FTC² regulations, which would provide the consumers with information about the amount of ethanol in the blend and the vehicle compatibility of the fuel although blending itself is not an issue being litigated. The case of Brazil is slightly different where the regulator has since 2011 obliged the fuel to be labeled ethanol rather than the more ambiguous alcohol³. Yet the underlying theory behind both approaches is identical in nature in terms of separation of disclosure from blending and how transitioning to higher blends is not an excuse to drop the labeling requirements. It is pertinent to note that the Indian regulatory framework itself acknowledges this principle in other spheres of life nutritional labeling of packaged food products, fuel economy labeling of automobiles and disclosure obligations as per the Legal Framework.

A Right to Know That Already Exists in Indian Law

The argument does not have to borrow from foreign practice to find its footing. In Santosh Mittal v. State of Rajasthan, 2005(1)WLC52 the Rajasthan High Court held that Articles 19(1)(a) and 21 obliged beverage manufacturers to disclose the pesticide content of their products, since a consumer paying for a commercial product was entitled to know what it contained. The reasoning traces to State of U.P. v. Raj Narain, 1975 INSC 14, where the Supreme Court first held that the right to know flows from Article 19(1)(a), and that secrecy in routine matters affecting the public can seldom be legitimately claimed. If a soft-drink manufacturer can be compelled to disclose what is in the bottle, a government mandating a fuel blend can be compelled to disclose what is in the tank, and to publish the compatibility data that allows an owner to know what that blend costs their vehicle.

What makes the petition compelling is not some new piece of information but rather an old piece of information that is applied to a new product, as the information being sought by way of the petition is not information that needs to be created by the government, but rather information that needs to be released or required at the pump. Deference to policy as it relates to “why” ethanol blending should occur does not alone answers “how” this occurs, especially when it comes to consumer rights.

None of this guarantee Goswami will succeed, or even be heard on similar terms as Malhotra. The stance of the government that blending ethanol helps farmers, saves foreign exchange, and fulfills the climate commitment of India won't change and the BPCL hearing controversy will only make the government more careful about the matter. However, what the Court needs to distinguish here is whether that explanation of policy justifies non-disclosure. If it dismisses this case, it doesn't mean the dismissal of Malhotra the policy remains intact there. If it dismisses this case, then it will mean that the Court considers non-disclosure another discretionary power of the executive branch.

The E20 dispute follows a common pattern in Indian public law. A petition broad enough to invite dismissal in deference to policy, followed by a tighter one built around the loophole the first left open. Whether the Supreme Court sees the case of Goswami as simply another attempt to reopen an already-decided matter or on its own merits will decide something larger than one case. whether India's shift to ethanol is made transparent to its citizens in the same way that everything else is supposed to be, or whether it carries on under the idea that policy legitimacy is an answer to something that they have always had the right to know.

References

1. U.S. Environmental Protection Agency, “E15 Fuel Dispenser Labeling and Compatibility With Underground Storage Tanks,” Federal Register.

2. Federal Trade Commission, “Complying with the FTC Fuel Rating Rule,” 16 CFR Part 306.

3. ANP (Agencia Nacional do Petroleo, Gas Natural e Biocombustiveis), Resolution on fuel labelling (2011), Brazil.

Author Parul Shukla is an Assistant Professor of Law at Marwadi University, Rajkot, Gujarat & Bijendra Shandilya is a final-year Law student at Indian Institute Of Management, Rohtak (IIM-R). Views are personal.