Article 142 and Mass Amnesties: How the Rule of Law is being Panchayatised Article 142 quashed criminal cases, but left alleged police overreach unexamined, raising troubling questions about ad hoc justice and constitutional accountability
27, Oct 2026 | CJP Team
The Paradox of Ad-Hoc Benevolence
In constitutional jurisprudence, few distinctions are as crucial, or as frequently conflated, as the line separating the substantive protection of civil liberties from the procedural integrity of the rule of law. When state authorities deploy the machinery of criminal law to target citizens engaging in public protests, registering widespread First Information Reports (FIRs), executing indiscriminate detentions, and imposing coercive measures, the vindication of fundamental freedoms under Articles 19(1)(b) and 21 of the Indian Constitution is an urgent judicial duty. Yet, how a court achieves that protection determines whether its decision operates as a durable triumph of constitutional governance or as an act of unstructured, transactional equity.
The Supreme Court’s order of September 1, 2026, quashing over a hundred FIRs filed across multiple states during the student exam-irregularity protests, presents precisely this constitutional paradox. At first blush, the order appears to be an act of judicial benevolence since it relieves thousands of young student-protesters from the crushing burden of ongoing criminal prosecutions. However, a closer examination reveals that this relief was not achieved through judicial adjudication based in constitutional principle. Instead, it was delivered as the judicial rubber-stamping of a negotiated compromise between the executive branch and a protest organisation.
By invoking its extraordinary powers under Article 142 to extinguish criminal proceedings en masse as part of a bilateral settlement, where the quashing of FIRs was effectively exchanged for the withdrawal of a planned protest march, the Supreme Court shifted its role from an independent court of record to an informal arbitral forum. In doing so, the Court’s methodology closely mirrored the traditional logic of a panchayat, an institution that prioritizes ad-hoc compromise, transactional peace-making. While protecting citizens from abusive state prosecution is unquestionably good, accomplishing it through judicial discretion en masse represents a subtle but dangerous denigration of the rule of law.
Relief as an Executive-Judicial Settlement
The legal proceedings surrounding the July 2026 student protests examination malpractices illustrate the operational mechanisms of this model. Following widespread demonstrations across Delhi, Bihar, West Bengal, Assam, and Maharashtra, law enforcement agencies-initiated dozens of FIRs naming thousands of participants. The pattern was remarkably similar, a stenograph-ed pattern of behaviour that reflected close, cross border communications between different state police! In response, litigations were brought before the Supreme Court, challenging the proportionality of state force, the use of metallic pellet guns, biometric surveillance, and arbitrary detentions.
None of the original writ petitions prayed for a blanket judicial extinction of all criminal cases across the country without trial. Rather, they sought constitutional accountability, judicial scrutiny of police brutality, guidelines on crowd control, and the enforcement of personal liberty under Article 21. On August 18, 2026, the Supreme Court took a step toward structured adjudication by constituting a High-Powered Enquiry Committee, chaired by a retired Supreme Court judge, to investigate police conduct, preserve drone and CCTV footage, and evaluate the legality of blanket prohibitory orders.
Later, the apex court invoked Article 142 of the Constitution. When the protest leadership agreed to withdraw a major national march scheduled for September 5, and in return, the state governments ‘consciously decided’ not to pursue the FIRs. On September 1, 2026, period and Court quashed 129 specified FIRs across five states, closing all unlisted FIRs nationwide arising from the same protest period, and recording the protest group’s formal withdrawal of its demonstration.
Why Procedure is Liberty’s Shield
To understand why this disposition degrades the rule of law, one must examine the architecture of criminal procedure. Criminal law is intrinsically individualised. An FIR is an assertion that a specific individual committed a specific statutory offence at a specific time and place. The statutory scheme for extinguishing criminal proceedings, whether through police final reports, executive withdrawal of prosecution under Section 360 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), or judicial quashing under Section 528 BNSS (formerly Section 482 CrPC), requires judicial evaluation of specific material.
When a High Court or the Supreme Court exercises its inherent power to quash an FIR, the well-established legal standard requires the Court to ask whether taking the allegations in the FIR at face value, does a prima facie criminal offence exist, or is the prosecution demonstrably malicious and an abuse of legal process? This inquiry is the essential mechanism through which the judiciary holds the executive accountable for illegal criminalisation.
In the September 1 order, this entire statutory and analytical framework was bypassed. The Supreme Court quashed 129 FIRs, which encompassed disparate charges ranging from mild unlawful assembly and road blockades to serious allegations of rioting, destruction of public property, and attempted murder, in a single, wholesale decree. The Court did not evaluate whether the allegations were legally unsustainable or factually fabricated. By replacing judicial scrutiny with executive acquiescence, the Court failed to make a finding that the state’s mass registration of FIRs was unlawful. Consequently, the protesters were administratively spared prosecution as an act of state grace, rather than legally vindicated as citizens exercising a fundamental constitutional right.
The Arbitrary ‘Antecedents’ Exception
The risks of abandoning statutory procedure become even more transparent when examining the exceptions carved out within the order itself. While granting blanket immunity to the majority of protesters, Paragraph 7 of the Court’s order excluded approximately 2,873 individuals. These individuals were denied relief and subjected to fresh criminal investigation solely because state police affidavits asserted that they had ‘serious criminal antecedents’ according to national police databases and were ‘prima facie present’ at protest sites.
This carve-out demonstrates the problematic layering of uncanalised discretion. One is that Indian criminal law contains no statutory principle authorising the judicial exclusion of individuals from general legal remedies based merely on ‘antecedents.’ In criminal jurisprudence, an FIR relates to a specific alleged act, not a person’s prior history. Second, the list of 2,873 excluded individuals was compiled using automated facial recognition technology matched against police databases, an unverified process that the Court accepted without independent judicial verification or procedural testing. And then, If the mass filing of FIRs against peaceful assembly was an abuse of state power warranting Article 142 intervention, on what legal principle does prior criminal history deprive a citizen of protection against an admitted abuse of state power?
Discretion inevitably breeds further discretion. Having constructed an extraordinary amnesty unmoored from code procedure, the Court was forced to construct an equally arbitrary threshold to limit that amnesty, relying on unverified executive data to divide citizens into protected and unprotected classes.
Evasion of Constitutional Duty
Perhaps the most defenceless aspect of the September 1 order is its explicit concluding direction: that the invocation of Article 142 was based on ‘peculiar facts and circumstances’ and ‘shall not be treated as a binding precedent.’ In recent years, the practice of issuing sweeping orders while simultaneously stripping them of precedential value under Article 141 has emerged as a frequent judicial technique. From a constitutional perspective, this practice is deeply problematic.
The primary obligation of an apex constitutional court is to declare generalisable legal principles that bind lower courts, discipline executive power, and guide future adjudication. The rule of law requires that like cases be decided alike. When a court decides a dispute, applies legal standards, and then declares that its ruling cannot be cited by any other citizen in any other court, it effaces the decision’s standing as law. It transforms the judgment from a rule of general application into a one-time privilege conferred upon specific litigants.
This non-precedent mechanism severely harms civil liberties jurisprudence. A student protester in a distant trial court facing an identical, fabricated FIR cannot cite the Supreme Court’s order as a legal standard. Trial courts and High Courts remain bound by rigid procedural rules, while the Supreme Court reserves to itself the exclusive power to randomly grant extraordinary, ad-hoc relief. Instead of diffusing liberty-protective legal standards throughout the judicial pyramid, the Court centralises power within its own hall, creating a regime where fundamental rights are accessible not as of legal right, but as a matter of top-tier judicial audience and transaction.
Ad-Hoc Compromise vs. The Rule of Law
It is in this structural departure from legal principle that the resemblance to a panchayat becomes unmistakable. In traditional Indian legal theory and sociology, a village panchayat operates on principles fundamentally distinct from a constitutional court of record. A panchayat does not adjudicate rights according to pre-existing, neutral, written laws, nor is it bound by strict procedural rules or formal evidence. Its primary objective is transactional dispute resolution: ‘buying peace,’ brokering compromises between powerful factions, and restoring social harmony through ad-hoc equity.
While informal compromise has a legitimate place in customary community spaces or private civil mediation, it is the antithesis of constitutional adjudication. A constitutional court exists to enforce jus (principled justice), and not merely to secure social peace at the expense of legal standards. The Supreme Court conditioning the quashing of unlawful prosecutions on a political party agreeing to call off a protest march is the Court adopting the precise logic of the panchayat. It treats fundamental freedoms, such as the right to peaceably assemble under Article 19 (1) (b), not as non-negotiable constitutional guarantees, but as bargaining chips to be traded away in exchange for executive leniency.
This approach creates severe long-term institutional risks. It signals to the executive that mass criminalization is an effective strategy; the state can file thousands of baseless FIRs against peaceful dissenters, safe in the knowledge that if public pressure escalates, the Supreme Court will facilitate a negotiated settlement without ever holding police officers accountable or declaring the state’s actions illegal. Conversely, it signals to citizens that relief from state coercion depends on organizational bargaining power rather than constitutional entitlement.
Emergency judicial relief brings immediate comfort to citizens facing state coercion. When the Supreme Court uses Article 142 to clear criminal cases against peaceful protesters, individual lives are saved from endless prosecution. Problems emerge when that relief depends on political bargaining. Trading criminal dismissals for cancelled rallies produces informal settlements. Declaring these orders without precedential value removes their legal weight. The Court assumes the role of a village panchayat, brokering temporary peace between unequal sides.
The consequences of this approach appeared during the October demonstrations against the Chief Election Commissioner. In September, the Court wiped away FIRs from student protests while leaving foundational legal questions unresolved. The bench did not evaluate whether police could issue blanket prohibitory notices under Section 163 of the BNSS or close transit networks. By treating the September quashing as an isolated compromise, the Court allowed law enforcement to retain unchecked statutory authority.
When citizens gathered again in October, authorities deployed their usual tactics. Officials shut metro stations and stopped incoming trains. Police also detained working lawyers on their way to court. Lacking prior legal standards, the bench convened emergency Sunday sittings to hear contempt petitions. Justices issued oral warnings that regulation cannot equal total prohibition while ordering police to remove restrictive notices from around court gates.
Had the Court articulated binding constitutional boundaries in September, executive agencies would have faced clear limits. Setting prospective rules constrains state authority and protects public assembly across future disputes. Settling individual cases through transactional orders creates administrative convenience today while guaranteeing repeated overreach tomorrow.
Structural Remedies
The critique of the CJP order is not to suggest that the Supreme Court should have allowed thousands of innocent students to be dragged through decades of oppressive trials. Rather, it demonstrates that a truly liberty-preserving court must protect citizens by developing and applying legal principles, rather than resorting to ad-hoc, non-precedential amnesties.
In landmark constitutional jurisprudence ranging from Prem Chand Garg v. Excise Commissioner (1962) to Supreme Court Bar Association v. Union of India (1998), the Supreme Court established that Article 142 cannot be used to supplant statutory frameworks or override fundamental rights. To genuinely protect civil liberties against state overreach, the Court must deploy structural remedies grounded in Public Law. The Court should formally evaluate mass FIRs against the standards of Article 19 (1) (b) and Article 19 (3), explicitly ruling that the routine criminalization of peaceful assembly is unconstitutional and illegal. Under the doctrine established in Nilabati Behera v. State of Orissa (1993) and D.K. Basu v. State of West Bengal (1997), the Court should impose direct compensatory damages on state authorities for malicious prosecution and illegal detention, creating a genuine deterrent against police abuse. By declaring clear, generalizable legal standards under Article 141, the Supreme Court empowers trial courts and High Courts across India to swiftly quash abusive FIRs at the threshold, ensuring equal protection for all citizens.
The protection of civil liberties and the preservation of the rule of law are not opposing values; they are mutually dependent. A judicial order that delivers immediate relief by sacrificing procedural rigor and precedential integrity provides only a fleeting, fragile sanctuary. True constitutional justice demands that the Supreme Court remain an uncompromising court of law protecting the citizen not through the informal compromise of a panchayat, but through the enduring, equalizing power of constitutional principle.
(The author is a legal researcher with the organisation)
