Category: Blog

Submitted by:

Adhiraj Singh

ABSTRACT:

India has a compounded history of refugee governance, while remaining outside the 1951 Refugee Convention and its 1967 Protocol has hosted communities such as Tibetans, Sri Lankan Tamils, Afghans and many more. India’s treatment of refugee is primarily governed under the Foreigners Act of 1946 and a case-by-case approach rather than having a properly stipulated law. The 2025 Immigration and Foreigners Bill marks a new chapter in this discourse, introducing categories like “refugees and asylum seekers”. This paper explores India’s refugee policy in 2025, its historical engagements, the evolving legal landscape, case studies, the role of NHRC, along with a comparative analysis with UNHRC standards on refugees. It argues for a comprehensive legal structure grounded in constitutional values and international humanitarian law along with the comparative analysis

Keywords: Refugee law, India, UNHCR, Immigration and Foreigners Bill 2025, NHRC, Rohingya, Afghanistan, Sri Lankan Tamils, Zoroastrians.

Introduction:

International refugee law, primarily was enshrined in the 1951 Refugee Convention held at UNHRC, Geneva, Switzerland which establishes fundamental principles for protecting those fleeing persecution. Key aspects include the definition of a refugee, the right to seek asylum, and the principle of non-refoulement, which prohibits forcibly returning a refugee to a country where they face persecution and UNHRC is a key player who implements these principles globally. Refugee protection is crucial because it safeguards the basic human rights and security of individuals who have fled their home country due to persecution or other serious threats. When a government is unable or unwilling to protect its citizen then the UNHRC steps in to ensure these rights are respected. There is a need of comparative study of refugee law in India as its domestic legal framework lacks practical implementation and relies on general laws such as the Foreigners Act (1946) and the Passport Act of (1920). Also, it is crucial due to the country’s significant role working outside the scope of 1951 Refugee Convention and the lack of specific refugee law in the legislation.  This results in arbitrary and discretionary refugee governance. The 2025 Immigration and Foreigners Bill introduces a formal structure for immigration and refugee categories but falls short of offering robust protection aligned with UNHCR standards. Given global displacement trends, particularly involving Afghan, Sri Lankan Tamil, and Myanmar refugees, a rights-based approach is urgently needed.

This study is needed to analyse the existing laws and policies, identify gaps in protection, and examine how India compares to other countries in terms of refugee rights and obligations. 

Research Questions/Objectives:

• What is the legal framework governing refugee protection in India?
• How does India’s approach to refugee law compare with UNHCR guidelines?
• What are the gaps between India’s practices and international refugee standards?
• Can India’s refugee policy be harmonized with global norms while preserving national interests?

Methodology:

 This study adopts a doctrinal research approach, analysing statutes, case law, and policy documents. A comparative approach is also used to evaluate India’s refugee framework against UNHCR guidelines and international legal instruments such as the 1951 Refugee Convention.

Scope and Limitations:

 The study focuses on India’s treatment of refugees without specific refugee legislation. It does not cover the refugee policies of other countries in detail. It is limited by the lack of codified refugee law in India and relies on judicial pronouncements, policy papers, and secondary literature for analysis.

International Refugee law and UNHRC Guidelines:

The 1951 Refugee Convention and its 1967 Protocol are essential international standards for international refugee rights. The instruments define a refugee as someone who faces a well-founded fear of persecution stemming from race, religion, nationality, social group membership or political opinions while being outside their nation with an inability or unwillingness to obtain protection from their home country. Through these international documents, refugees obtain protection against non-refoulement, which ensures their safekeeping from forced deportation to situations where their life or freedom would be endangered. If refugee security standards are met, the principle will become part of international law and customs, and all refugee protection initiatives will be protected.

Under the Convention, refugees gain access to vital human rights such as legal identity, protection, freedom of movement, court access, employment opportunities, public education, and social welfare. The protections offered by the Convention provide refugees with dignified living conditions in their host countries to maintain self-reliance before realising one of the durable solutions, such as voluntary repatriation, resettlement, or local integration.

Since 1950, the United Nations High Commissioner for Refugees (UNHCR) has served the UN General Assembly by becoming the leading international body to implement these standards. The organisation defends refugee rights and well-being while giving humanitarian aid and building lasting solutions for displaced persons. The UNHCR collaborates with governing bodies, international civil society organisations, and nongovernmental organisations to support their operations and protect these standards.

Current interpretations of refugee protection show an expansion due to the UNHCR Guidelines for 2023–2025. The guidelines now cover emerging displacement categories through the expanded international scope of concern. According to the guidelines, their members acknowledge climate refugees as growing in numbers, but these refugees remain outside the definition established in 1951. The guidelines establish safeguards for both stateless individuals and minority groups, who experience intense persecution based on their sexual orientations and gender identities in their countries.

The new model of refugee protection works from the community perspective while embracing inclusivity to ensure dignity and intersectional safety, together with long-term resilience capabilities. The development shows that displacement dynamics change over time, so international cooperation becomes vital to solving humanitarian situations fairly while showing compassion.

India’s Legal Framework on Refugees:

India has neither ratified the 1951 Refugee Convention nor its 1967 Protocol, and does not have comprehensive national refugee legislation. Therefore, the refugee’s legal status is defined by a haphazard collection of laws such as the Foreigners Act, 1946; the Passport (Entry into India) Act, 1920; and the Citizenship Act, 1955 (as amended). These laws primarily apply to foreign nationals, do not distinguish between displaced people and other migrants, and often treat all seamlessly under the same legal framework.

Although India does not have a specific refugee law, courts have invoked provisions of the Constitution that offer some protection to refugees, notably under Article 21 of the Constitution, which provides all persons the right to life and personal liberty. A significant case is NHRC v. State of Arunachal Pradesh (1996), in which the Supreme Court intervened at the behest of Chakma refugees evicted by the Government of India to protect their right to life and dignity. Similarly, in Mohammad Salimullah v. Union of India (2021–2023), the Court recognised the principle of non-refoulement, which precludes sending back refugees to countries where they are oppressed. Even so, it has permitted the deportation of Rohingya refugees because of national security concerns.

In 2025, the Indian government introduced the Immigration and Foreigners Bill to codify immigration laws and enhance enforcement. The Bill includes setting up a National Immigration Authority (NIA) and an Integrated Immigration Management System (IIMS). It raises foreigners, “refugees and asylum-seekers,” and biometric identification and AI surveillance. However, though it recognises the fact of refugees, it leaves their rights uncharted, as it does not introduce a legal framework for asylum. There are concerns about protecting vulnerable populations rather than just surveillance and security, which will come across.

The National Human Rights Commission (NHRC) has fulfilled its key refugee protection responsibilities by issuing Suo motu actions and advisory reports. The organisation stepped into situations regarding Rohingya deportation policies and the living standard of refugee settlements. The NHRC issued a 2023 recommendation that pushed for the passing of legislation to protect refugees while adding non-refoulement provisions into the domestic legal framework. Although the recommendatory nature of its recommendations allows the body to make suggestions to policymakers, the executive frequently ignores those recommendations, which limits its policy-making authority.

India’s approach towards refugees has differed based on which region and communities are involved. Myanmar nationals from the Chin and Kuki-Zo communities and others have migrated from Myanmar to Manipur and Mizoram in the Northeast region. These states continue to reject deportation orders that stem from the central government through appeals to ethnic heritage, along with compassionate rationale. The lack of a federal refugee policy causes unfair treatment toward displaced populations between different state jurisdictions.

The legal standing of Afghan refugees became difficult to predict when the Taliban regained power across Afghanistan in 2021. More than 20,000 Afghan nationals came to India because their visas had expired. The Government of India selected security concerns to discontinue Afghan student visa benefits throughout 2023. The Citizenship Amendment Act (CAA) treats Hindu and Sikh Afghan refugees as eligible but excludes Afghan Muslims from protection, causing discrimination concerns.

India has accommodated more than 100,000 Sri Lankan Tamil refugees throughout the Sri Lankan Civil War, and they primarily live in Tamil Nadu. Though these individuals have lived in India for long periods, they still lack official citizenship status and experience difficulties. Still, some refugees now qualify for Indian nationality under the CAA regulations.

The Parsi Zoroastrians who had to escape Iran under religious persecution centuries ago successfully integrated into Indian society after they found welcome in this land. Despite minimal discrimination in institutions, they have positively impacted Indian law, its industrial sector and cultural landscape. The recent refugee situation stands in marked contrast to how peaceful assimilation occurred in the case of their assimilation – the refugee policies of India function via fragmented procedures with a primary focus on security. Refugee protection in India exists as an inconsistent system because there is no national refugee law, which leaves vulnerable populations without adequate defence. An approach based on refugee rights and humanitarian principles should be implemented immediately to achieve fair treatment of refugees across the board.

Comparative Analysis: India vs UNHCR Guidelines:

A. De Facto Protection by India versus De Jure Framework of UNHCR

India’s practice is impromptu and problem-solving, as directed by the executive with a point of reference to the common immigration legislation of the Foreigners 1946 Act, which is more than that of dedicated refugee legislation.

UNHCR offers a rights-based de jure framework (e.g., recognition of the rights of refugees, durable solutions and refoulement protection).

India provides de facto protection for political and diplomatic reasons rather than legal obligations under the 1951 Refugee Convention.

UNHCR demands that for the other acknowledgement of refugee status, one has to go for formal refugee status determination (RSD) and codified rights, which are missing in the Indian system.

B. Key Areas of Alignment

Non-Refoulement (Article 33 of the 1951 Convention):

It is not a statutory recognition in any sense in India, but is recognised through interpretation in some cases by Indian courts under Article 21 of the Indian Constitution.

Cases like NHRC v. State of Arunachal Pradesh and Mohd Salimullah v. Union of India indirectly accept non-refoulement.

Humanitarian Assistance and Basic Rights:

India typically permits refugees access to elementary health and education services via UNHCR partnerships and NGOS, although not consistently in the same way as UNHCR’s vision of guaranteeing minimum dignity and safety.

C. Key Gaps

Legal Recognition:

India maintains no legal separation between refugees, asylum seekers, and illegal immigrants in its laws.

UNHCR mandates legal recognition through a well-defined RSD process.

Status Determination Procedures:

There is no established method in India for asylum seekers to apply for status, which lacks transparency.

The Global Refugee Agency requires established procedures and equitable criteria free from discrimination to establish refugee qualifications.

Rights and Protection:

No legal rights guarantee the freedom to move freely or work in India, nor prevent the detention or deportation of refugees.

Under the Convention, UNHCR provides procedural guarantees to state parties that should implement them within domestic settings.

No National Refugee Law:

Official refugee legislation in India fails to produce a consistent treatment of refugees throughout various regions and diverse refugee communities.

UNHCR promotes national laws that protect refugee rights while creating defined fair procedures.

D. Role of Indian Judiciary vs. International Law Compliance

The Indian judiciary is the leading authority to extend refugee constitutional guarantees, but the country has taken no legislative steps to address this issue.

Indian courts apply a broad interpretation of Article 21 to protect non-citizens, which supports migration practices specified by UNHCR.

India chooses to comply with international law to fit domestic needs instead of complying with specific binding obligations.

Indian authorities have refused to approve the Refugee Convention, which prevents them from submitting to formal oversight procedures.

Regional and International Perspectives:

A. South Asian Context: SAARC and Regional Cooperation

South Asian Association for Regional Cooperation fails to establish a regional solution for refugee issues, as its member governments consider these challenges as domestic problems.

The South Asian nations lack a shared, united framework or protocols for safeguarding refugees while failing to establish cooperation mechanisms for handling regional population migrations.

Refugee situations repeatedly affect India, Bangladesh, Nepal, Pakistan and Sri Lanka, yet these countries maintain diverse reaction approaches.

Most states completely avoid collective refugee responsibility in their approach to regional cooperation.

B. Comparison with Other Non-Signatory States

Bangladesh:

The country did not join the Refugee Convention, but it accepted more than 1 million Rohingya refugees into its borders.

The country provides basic housing for displaced persons, though laws and regulations protect their rights.

The organisation cooperates with UNHCR in refugee issues but maintains full authority over refugee freedom and employment conditions.

Nepal:

In the 1990s, Nepal extended refugee sanctuary to Bhutanese refugees despite their nonparticipation in the Refugee Convention.

The country manages its refugee activities with direct support from the United Nations High Commissioner for Refugees and grants limited welfare and protective support.

Pakistan:

The country has accepted many Afghan refugees since the 1980s without accepting official refugee status.

Implementing Proof of Registration (Por) cards does not provide Bhutanese refugees with citizenship or permanent settlement options.

Contrasting with India:

These countries do not have official refugee laws but maintain administrative systems that work with UNHCR operations.

The Indian legal system operates based on executive decisions, primarily utilising state-specific policies and judicial interventions.

Need for Reform and the Way Forward:

Complete domestic refugee law has become crucial for India due to its necessity for defining refugee rights, asylum seeker protections, and fair status approval systems throughout the country. Such a properly formulated legal code would create transparency through legal frameworks that minimize executive decisions and make India’s refugee protection methods match international norms. The lack of official legal frameworks leads states to make spontaneous decisions, which expose defenceless groups to imprecise national and federal operational protocols.

A national refugee law must balance India’s commitment to protecting immigrants and its requirement for security principles. The security concern is justified, but proper, careful screening procedures can protect genuine refugees from denial of protection when addressing cross-border tensions. Non-refoulement stands included in domestic refugee law to stop Indian authorities from forcibly sending away asylum seekers while India strengthens its status as an ethical leader in the region.

A refugee law must create an unbiased Refugee Status Determination authority that maintains efficient and objective asylum claim procedures. Adopting UNHCR-issued documentation by the state would enhance operational coordination and diminish administrative confusion. A model bill for refugee protection should be drafted with UNHCR by incorporating refugee laws from non-signatory states that effectively maintain refugee support systems.

Judicial activism plays a good role in expanding refugee constitutional rights, though lasting change needs administrative system transformation. Training programs for border and immigration officials, as well as law enforcement personnel, enable them to understand refugee rights along with their international obligations, thus blocking discriminatory mistreatment of refugees.

Academia and civil society organizations should increase their involvement in refugee advocacy, research, and community-based rehabilitation initiatives. Social integration through policy development needs assistance from NGOs, legal aid organizations, and universities, which also help raise public awareness. The combination of different stakeholders will help India create a refugee protection structure based on rights that respect national constitutional principles and global obligations.

Conclusion:

The refugee management system of India finds itself at a critical juncture because of its inherited kindness toward displaced people, yet it does not possess specialised legal norms. Since the 1980s, India has provided asylum to refugees from various backgrounds, including Sri Lankan Tamils, Afghans, Tibetans and the Rohingya. However, its policies remain fragmented due to the use of the Foreigners Act in executive decisions and judicial interpretations. The 2025 Immigration and Foreigners Bill represents advancement, yet it fails to establish fundamental rights-based protections that adequately protect refugees. India lacks essential safeguards under the UNHCR framework based on the 1951 Refugee Convention and its 1967 Protocol, since it does not sufficiently preserve non-refoulement, legal identity, or socio-economic rights. Although the Indian judiciary serves as a key interpreter of constitutional protections, permanent reform must require legislative intervention. The demand for formal refugee management in India through a national law becomes more evident when considering differences between various regions, because this legislation should combine security interests with human rights commitments. The required bill must implement a refugee status determination system while affirming non-refoulement practices and upholding UNHCR standards. Strengthening institutions while involving civil society needs to happen alongside public awareness-building efforts to develop refugee policies successfully. A refugee framework approved by law that follows international protocols will strengthen India’s moral influence while protecting displaced individuals from injustice.

REFERENCES:

• Bose, Tapan. Refugee Rights in South Asia. Oxford: Oxford University Press, 2022.
• Chimni, B.S. International Refugee Law and South Asia. New Delhi: Sage Publications, 2019.
• Goodwin-Gill, Guy S. & Jane McAdam. The Refugee in International Law. 3rd ed. Oxford: Oxford University Press, 2007.
• Mander, Harsh. “India and Refugee Law.” Economic & Political Weekly 59, no. 15 (2024): 34–42.
• Menon, N.R. Madhava. “Protection of Refugees: Need for National Legislation.” Economic & Political Weekly 38, no. 29 (2003): 3065–3071.
• National Human Rights Commission (NHRC), India. Annual Report on Refugee Rights. New Delhi: NHRC, 2023.
• UNHCR India. Country Operations Profile. New Delhi: UNHCR, 2025.
• Human Rights Watch. Rohingya Deportations: India’s Obligations Under International Law. New York: HRW, 2024.
• Government of India. The Immigration and Foreigners Bill, 2025. Bill No. XX of 2025.
• Mohammad Salimullah v. Union of India, (2021) 4 SCC 123 (India).
• UNHCR, The State of the World’s Refugees (2006), https://www.unhcr.org/sites/default/files/legacy-pdf/4cd96e919.pdf.
• Brown, Alex, Refugee Rights in South Asia, 2001 ISILYB Int’l Hum. Rts. L. 7, http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html.
• Kumar, Ravi, India and Refugee Policy, Drishti IAS (Jan. 10, 2023), https://www.drishtiias.com/daily-updates/daily-news-analysis/india-and-refugee-policy.
• Elif Durmus, A Typology of Local Governments’ Engagement with Human Rights: Legal Pluralist Contributions to International Law and Human Rights, 38 NETH. Q. HUM. RTS. 30,30 (March 2020).
• James F. III Bailey; Inc. William S. Hein Co. Immigration and Nationality Acts. Legislative Histories and Related Documents. 1977-1986 First Series.
• William Bradford, “With a Very Great Blame on Our Hearts”: Reparations, Reconciliation, and an American Indian Plea for Peace with Justice, 27 AM. INDIAN L. REV. 1,1 (2002-2003).

Submitted by:
Adhiraj Singh

Abstract:

Battered Woman Syndrome stands as a psychological response to extensive domestic abuse,
which legal systems now recognise as a defence in trials affecting abused females who choose
to kill their abusers. Battered Woman Syndrome functions as a legal defence which this paper
evaluates from its historical development to its usage in courts and its complete analysis of its
drawbacks. The study evaluates self-defence laws from various jurisdictions, emphasising

Western and Indian jurisdictions to understand judicial handling when matching classic self-
defence rules with situations involving domestic violence. In the concluding section of this

paper which recommends adopting trauma-aware practices to achieve better justice outcomes
especially in democratic country like India.
Keywords: Battered Woman Syndrome, Psychological, Extensive domestic abuse, A legal
defence, Jurisdictions, India.

Introduction:

The psychological concept of Battered Woman Syndrome (BWS) serves as an explanation of
the complex domestic abuse effects that remain inaccessible to public understanding for
women who experience long-term abuse. In the late 1970s, Lenore E. Walker developed BWS
as an identified sub-category of Post-Traumatic Stress Disorder (PTSD). Few women suffering
through enduring and profound attacks in domestic spaces develop a combination of learned
helplessness and modified danger assessment capabilities. Naturally, Walker developed a
clinical framework that contains seven distinct features that help identify BWS:

1. Recurring traumatic experiences along with intensified anxiety and
2. Hyperarousal patterns,
3. The ability to numb emotions and
4. Practice avoidance behaviours,
5. Disturbances in cognition, and
6. Disturbances in social relationships, physical ailments, and
7. Lastly, intimate relationship difficulties.1
   Traditional legal systems maintained their interpretation of self-defence by following a
   standardized approach that cannot evaluate domestic abuse trauma’s effects on the victim’s

1 Walker, L. E. (1984). The Battered Woman Syndrome. Springer.

3 | P a g e
mental state. Battered women who use lethal force against their abusers face several hurdles
because legal self-defence rules demand an immediate threat that cannot always justify their
actions. The legal academic field of feminist research, together with psychological data, now
modifies how judges understand violence between intimate partners. Legal recognition of BWS
helps courts expand their understanding of necessary and proportional defences in cases
involving self-defence claims.
Justice systems regularly use BWS to back up court orders of self-defence and diminished
responsibility, even if it remains unacknowledged as its defence in the law. BWS obtains
different levels of acceptance throughout jurisdictions since some courts utilize this theory to
make sense of what battered women do. These standards face resistance from certain groups
of individuals since they doubt the impartiality and fairness of these legal standards.
The research focuses on evaluating the scientific and legal foundation of Battered Woman
Syndrome within criminal justice systems, especially while considering homicide cases of
domestic violence victims. This research explores both Indian and foreign jurisdiction
acceptance of Battered Woman Syndrome to understand its practical impact on legal systems
while determining how well it protects victims of domestic abuse.
Psychological Background:

Lenore Walker (1979) developed the “cycle of abuse” model to understand how abuse victims
repeatedly experience violence in abusive partner relationships. Three Stages appear within
this abusive cycle where tension increases via verbal and emotional attacks during the first
phase, and physical episodes or severe emotional mistreatment occur next before the abuser
shows signs of apology or affection to maintain control. Through prolonged exposure to the
abusive cycle, victims develop learned helplessness, which makes them unable to leave despite
having escape possibilities. Battered women exhibit PTSD symptoms such as being constantly
alert and anxious alongside emotional detachment and recurring memories of the abuse
alongside distorted thinking regarding threats.2 Mental disorders affect victim behaviour
because they make crucial choices challenging. Under these circumstances, victims will view
lethal self-defence as their exclusive method of survival, which contradicts the absence of an
active threat. Mental health professionals and forensic psychologists, together with legal
experts, have adequately recognized how long-term abuse affects the cognitive and emotional

2 Walker, L. E. (1979). The Battered Woman. Harper and Row.

4 | P a g e
functioning of victims, according to Battered Woman Syndrome. Legal recognition of expert
opinion about BWS has been instrumental in its incorporation into litigations, specifically
within self-defence defence submissions.

Legal Recognition of BWS

The legal adoption of Battered Woman Syndrome (BWS) has shifted dramatically during the
last several decades inside judicial systems where officials accepted limitations of standard
self-defence principles for prolonged domestic abuse situations. The current defence laws make
it a prerequisite for defendants to exhibit realistic fears about immediate threats of death or
serious injury and demonstrate that their defensive actions are both appropriate and essential.
The legal requirements do not represent the psychological dynamics experienced by battered
women because they screen out continuous and cumulative threats when there is no clear,
immediate danger. Courts that lack knowledge about BWS tend to interpret such acts as
premeditated murders since they fail to understand the victim’s genuine fear of repeated
violence.
The legal system does not accept BWS as an independent defence, but trial judges can use it
when evaluating existing defences, which include self-defence, diminished capacity defence or
defence of provocation. Through the syndrome, the Court better understands what the
defendant perceived as dangerous, which leads to the legal justification of their actions. To
demonstrate self-defence, the defendant relies on BWS evidence that proves their genuine
perception of dangerous circumstances. The syndrome functions in various cases where it helps

reduce mental culpability while demonstrating that the victim exceeded the boundaries of self-
restraint.

In the U.S., courts have consistently allowed BWS expert testimony to assist the Jury in
understanding the psychological state of battered women. A seminal instance involving this is
State v. Kelly (1984),3

in which the New Jersey Supreme Court permitted presentation to
support the defendant’s claim for self-defence of BWS. Similarly, in Commonwealth v.
Stonehouse (1991), BWS was applied to establish that the accused believed that lethal force
was necessary even where the threat was not actual4

. Despite this, however, the use of BWS in

3 State v. Kelly, 478 A.2d 364 (N.J. 1984).
4 V.F. Nourse, Self-Defense and Subjectivity, 68 U. CHI. L. REV. 1235,1235 (Fall 2001).

5 | P a g e
U.S. courts is still contested, with critics claiming that it risks the perpetuation of gender
stereotypes and also has a lack of standardized scientific verification.5
Canada is more tolerant. In the seminal case of R v. Lavallee (1990)6

, the Supreme Court of
Canada even encouraged the existence of BWS by ruling clearly in BWS’s favour that expert
testimony was required in order for a jury to judge the accused’s state of mind adequately and
that the reasonableness of her belief in imminent danger was justified. The Court agreed that
the traditional self-defence rules do not accurately represent the risks faced by battered women.
It recognized the need to consider psychological analysis in the legal framework.7
BWS in the UK is not codified formally, but it has been acknowledged by a reduction in
penalties grounded on mental health aspects. In R v. Ahluwalia (1992)8

, the defendant’s
conviction for murder was reduced to manslaughter on the grounds of diminished
responsibility, with the Court taking into account the long-term, long-lasting psychological
effects of abuse. Where the UK has been more cautious than North American jurisdictions, it
is cases such as Ahluwalia that represent a forward movement in that this marks an acceptance
on the part of the Courts of the role of psychological trauma in continuing to influence a victim’s
reactions to abuse.9
Other common law jurisdictions, including Australia, have also moved to assimilate BWS into
the self-defence jurisprudence. In Osland v. The Queen (1998), the Australian High Court on
BWS was relevant for assessing the accused’s belief in danger, expanding the legal
understanding of necessity in domestic violence criminal case precedents.10
However, India does not formally recognize BWS within its legal framework. Indian Courts
envisage self-defence generally under Section 100 of the Indian Penal Code, 186011, which
permits the right of private defence only on the existence of a reasonable apprehension of
immediate danger. The limited scope of “imminence” under the provision makes it very
difficult for survivors of long-term abuse to justify any retaliatory action. Even though laws
such as Section 304B IPC (Dowry Death) and Section 498A IPC (Cruelty by Husband or

5
Id.
6 R v. Lavallee, [1990] 1 SCR 852 (Supreme Court of Canada).
7
Id.
8 R v. Ahluwalia, [1992] 4 All ER 889 (Court of Appeal, UK).
9
Id.
10 Barbara Ann Hocking, Limited (and Gendered) Concessions to Human Frailty: Frightened Women, Angry Men
and the Law of Provocation, 6 PSYCHIATRY PSYCHOL. & L. 57,57 (1999).
11 Indian Penal Code, § 100, No. 45, Acts of Parliament, 1860 (India)

6 | P a g e
Relatives)12 address specific types of domestic violence, they do not address the particular
psychological dimensions that have been made out in BWS. The landmark case K.M. Nanavati
v. State of Maharashtra (1962)13, although not one of domestic abuse, described the unearthing
of “grave and sudden provocation,” which has sometimes been referred to in other related
matters. However, gender-blindness is a continuing aspect in Indian jurisprudence to examine
the psychological impact of domestic violence on women gender-sensitively.14
In addition, the Bharatiya Nyaya Sanhita (BNS), 2023, which aims to replace the Indian Penal
Code, carries on with the constraints of the originator. It does not allow for psychological abuse
or trauma to fall within the ambit of self-defence or other defences. Indian courts are also very
reluctant to allow the giving of expert psychological evidence in family violence cases, and
that makes it even less likely that the legal defences relying on a diagnosis of BWS will
succeed.
Furthermore, the Bharatiya Nyaya Sanhita (BNS), 2023, which seeks to replace the Indian
Penal Code, retains the limitations of its predecessor. It does not make room for psychological
abuse or trauma within the scope of self-defence or other exculpatory provisions. Indian courts
also rarely permit expert psychological testimony in domestic violence cases, further hindering
the effective use of BWS in legal defence.
In conclusion, while several jurisdictions have progressively incorporated BWS into their legal
frameworks—either explicitly or through interpretive developments—India continues to rely
on traditional statutory provisions that inadequately capture the complex realities of prolonged
abuse. This underscores the need for judicial and legislative reform aimed at bridging the gap
between legal standards and psychological insights, ensuring that the law evolves to offer just
and compassionate remedies for survivors of domestic violence.
Critical Analysis:

The acceptance of Battered Woman Syndrome (BWS) by the legal community has brought a
trauma-injured perspective to the otherwise rigid framework of criminal law. Advocates point
to a BWS helping to explain the behaviour of bodies of women within abusive relationships –
how they fail to leave or go violent outside of the traditional self-defence parameters. Thereby,

12 Indian Penal Code, § 304B & 498A, No. 45, Acts of Parliament, 1860 (India)
13 K.M. Nanavati v. State of Maharashtra, 1961 SCC OnLine SC 69
14 Kapur, R. (1992). Too much or too little: Rethinking domestic violence in the age of human rights. Harvard
Human Rights Journal, 7(1), 198–222.

7 | P a g e
BWS fills the chasm between legal reasoning and psychological reality, leading to a more
sophisticated understanding of the perception of impending threat – as battered women
experience it. Identifying BWS also contributes to promoting gender justice, that is, by
problematizing patriarchal assumptions contained within the legal frameworks that usually
operate from male experiences of violence and retaliation15
.

One of the key benefits of admitting BWS in legal proceedings is validating subjective
experience. It enables courts to value the unique state of mind of survivors of prolonged abuse.
This state may otherwise be seen as unreasonable or premeditated through the lens of
conventional legal rules. In addition, BWS is a significant interdisciplinary convergence that
brings psychological and legal insights into assessing criminal responsibility. So, it helps to
make a more just and fair judicial system, especially helping from a justice system that if
women kill the people who abused them for many years in the course of batter.
Nonetheless, there is no denying that using BWS has numerous ethical challenges and
criticisms. One of the major concerns is pathologizing women, where the legal subject
constructs women defendants as mentally mad/sick, helpless, or naturally passive. These
illustrations might even inadvertently uphold harmful gender stereotypes instead of eliminating
them. In addition, BWS has been attacked for its scientific vagueness, especially considering
the overlap between BWS and Post-Traumatic Stress Disorder (PTSD, and, perhaps more
remarkably, its lack of universally accepted diagnostic criteria. Such concerns raise issues
regarding the reliability and consistency of expert testimony, which can significantly vary
amongst the cases and jurisdictions.16
Another important issue is the legal system’s variable application of BWS. Although some
courts have recognized BWS evidence as critical to the comprehension of the psychological
condition of abused defendants, others have disallowed or curtailed its use, leading to varying
consequences and possible miscarriages of justice. This unpredictability has the effect of
subverting the consistency and fairness of legal reactions in domestic violence cases.
Given these difficulties, experts recommend a broader framework beyond BWS’s. Concepts
like Coercive Control and Intimate Partner Violence (IPV) as provide more detailed insights
into abuse, which includes sociological, emotional, and psychological parts. These frameworks

15 Schneider, E. M. (2000). Battered women and feminist lawmaking. Yale University Press.
16 Stubbs, J., & Tolmie, J. (1999). Battered woman syndrome in Australia: A challenge to gender bias in the law?
In J. Stubbs (Ed.), Women, Male Violence and the Law (pp. 184–210). Institute of Criminology.

8 | P a g e
are also more gender-neutral in order to address the experiences of all survivors- in whatever
gender they happen to identify, within the legal system.
In short, although BWS has been important in pointing out the relationship between law and
trauma, its further utility requires ongoing legal meaning-making, better assessment science,
and persistence in gender-sensitive legal thought. Available data from several states shows
promising evidence of progress in promoting inclusive and trauma-aware legal standards
within more consistent judicial recognition and the support of interdisciplinary collaboration,
which are a continuous need to be able to ensure justice for survivors of domestic violence.17

The Way Forward:
Towards Trauma-Informed Legal Reform in India –
In order to properly handle cases of prolonged domestic violence, the Indian criminal justice
system needs to adjust its approach toward psychological abuse. Legal interpretation must
include psychological trauma elements to deliver substantive justice. These changes must
have new laws, improved judicial skills, and new legal storylines.
A. Legal Reform:
The Indian criminal legal system requires transformation through the inclusion of
psychological abuse as a formally recognized legal injury. This includes:
The Bharatiya Nyaya Sanhita requires amendments to its self-defence provisions to
incorporate cumulative threats as well as non-imminent dangers from continued
psychological and emotional mistreatment.
Legislative guidelines, along with interpretive provisions regarding domestic violence
defences, should provide courts with methods to examine the timeline of changes in
defendants’ emotional states.
The proposed assimilation of trauma-based defences within existing defence structures
creates support that can strengthen current defences of self-defence and diminished
responsibility instead of creating independent defences like Battered Woman Syndrome
(BWS). Filial doctrinal coherence is maintained through this strategy alongside judicial
acknowledgement of trauma-based viewpoints.

17 Stark, E. (2007). Coercive control: How men entrap women in personal life. Oxford University Press.

9 | P a g e
B. Role of Expert Testimony:
Expert psychological testimony needs continuous acceptance for domestic abuse cases to
succeed in court. Such evidence needs court approval for an explanation of how long-term
trauma affects mental health through perceptual changes alongside memory issues,
behavioural alterations, and decision-making difficulties. Conditions for applicable expert
psychological testimony to maintain believability consist of the following elements:
Judges and lawyers need certified training to monitor and decode psychological damage
indicators.
The courts need to establish criteria to approve expert testimony because this would create
consistent and reliable processes throughout different jurisdictions.18
C. Emphasizing Agency and Resilience:
Survivors deserve victim acknowledgement, but their combativeness and resilience, together
with their survival techniques, must feature in legal documents. When BWS appears as a
medical diagnosis, it eliminates women’s ability to present themselves as independent agents
without reducing them to powerless victims. 19A trauma-informed understanding requires
moving away from specialized psychological approaches because it needs to include both the
extent of abuse-related harm and the behavioural strength victims display when facing
abusive experiences.

Conclusion:

Battered Woman Syndrome (BWS) creates a vital meeting point between law, psychology, and
gender studies, which provides essential knowledge about the intricate situations experienced
by women enduring several years of domestic abuse. Several international jurisdictions now
apply psychological interpretations of abuse to their legal systems, but India still needs
complete adoption of these perspectives into its legal framework. The proper identification of

18 Schneider, E. M. (2000). Battered women and feminist lawmaking. Yale University Press.
19 Downs, D. A. (1996). More than victims: Battered women, the syndrome society, and the law. University of
Chicago Press.

10 | P a g e
domestic violence’s psychological impact remains vital because it leads to true justice for
abused individuals while staying clear of fatal misinterpretations.
BWS operates as a developing legal shield to foster fair judgment that respects gender
differences while remaining a continuous point of legal and philosophical analysis. BWS
emphasizes mental harm suffered by abused women, but its implementation produces possible
limitations on how survivors will be portrayed. The process requires legal interpretation
methods that uphold both the survival-enhanced capabilities and the sensitivity of traumatized
survivors. The future development of legal systems has to base its approach on the actual
experiences of protected people. Recognition of BWS or its inclusive modern concepts in legal
defences represents genuine compassion and the required advancement of fair justice
systems.20

INTRODUCTION 

Mob lynching is one of the most disturbing and brutal phenomena witnessed in modern-day democratic society. It is a group non-legalised form of punishment, usually lethal, aimed at punishing someone perceived to have transgressed against communal or social mores and in the absence of due process. However, India, over the last few years, has been subject to a sharp rise in these reported cases, with the triggers being rumours, misinformation and communal tensions. These changes highlight the huge risk to the rule of law, human rights and social harmony.

Regardless of the fact that India is a democratic country with constitutional values and the rule of law, there are no sound mechanisms to respond to mob lynching. The criminal justice system has been criticised for being time-consuming in its adjudication process and not very beneficial as a deterrence and for its poor legal provisions to address this kind of an offence. The Supreme Court of India has already recognised the severity of the issue and provided preventive measures, but execution proves to be an insuperable step.

This paper thus elucidates the meaning of mob lynching, discusses the causative factors and the consequences, explores the legal setup in place, surveys landmark judicial outcomes, evaluates the decision of the court and provides extensive recommendations to curb the menace.

WHAT IS MOB LYNCHING?

Mob lynching is not a statutorily defined term under Indian law but broadly refers to extrajudicial killings tribally committed by a group of individuals who consider the individual thereby killed to have perpetrated some crime or otherwise done something that merits some retribution. This type of violence is group violence, and it is often as a result of community, race or social biases.

The origin of the word lynching can be dated back to the eighteenth century in America when informal organisations used violent methods to punish wrongdoers, mostly the Blacks. In India, lynching became closely linked to cow vigilantism, child-lifting rumours, interrelationships across faiths, and caste-related enmity. The spread of misinformation through social media creates an atmosphere of mistrust that can easily turn into physical violence through the mechanism of mob lynching. Perpetrators act with some level of impunity and anonymity, so it is not easy to hold them accountable, thus resulting in a culture of lawlessness and spreading fear everywhere.

CAUSES FOR MOB LYNCHING 

Mob lynching is not a special event: it cannot be considered outside socio-political, economic, psychological, and institutional determinants. An accurate knowledge of these determinants is essential toward addressing and preventing such occurrences.

1. Social and Religious bigotry

The increased level of religious and communal polarisation is one of the major contributors to mob violence and lynching in India. Very frequently, the victims of these mobs belong to the minority communities; the most common reasons behind such violence include accusations of cow killing, cross-religious relationships (so-called love jihad), and conversion. Extremist ideologies and political discourses that are around the delegitimisation of some groups of people foster a space where violence is justified.

2. Fake News and Social media

Social media, especially platforms such as WhatsApp, Facebook, and Twitter, have by far contributed to magnifying the level of mob violence. Fake news about kids stealing, stealing cows, or committing blasphemy is spreading like bushfire and going unquestioned and creating mob violence. The sources of these platforms can hardly be traced due to the anonymity and speed of spreading that these platforms allow.

3. Law and Order collapse

Mobs in most cases take the laws into their own hands due to loss of trust in the work of the justice system. Slow prosecution, lengthy cases and low rates of conviction in cases result in the view that legal redresses are ineffective. Such a collapse will lead individuals to use vigilante justice.

 4. Patronage and patronage impunity 

Political bodies support or are directly or indirectly involved in mob violence in a number of instances. Protecting or even glorifying lynching by political leaders conveys very dangerous messages that this is a good thing to do. The impunity results in a culture of no prosecution of politically motivated mobs. 

 5. Caste-Based Prejudices 

Most of the mob lynchings are perpetrated on the basis of caste discrimination, especially against the Dalits and the excluded communities. Existing user bias and hierarchies based on social differences regularly develop into mob violence, especially when it comes to cases of inter-caste relationships, the right of access to general places or property disputes.

How are current legal mechanisms used to address mob lynching in India 

The current legal mechanisms against mob lynching in India are in the form of a set of existing criminal laws and judicial directions by various courts along with certain state-specific laws, since there is no specific anti-lynching law in India.

• Indian Penal Code (IPC) & Bharatiya Nyaya Sanhita (BNS):

The perpetrators are also prosecuted under other general provisions offences like murder ( Section 302 IPC/ Section 101 BNS), attempted murder (Section 307 IPC), rioting ( Sections 147-149 IPC), and unlawful assembly.

The new Bharatiya Nyaya Sanhita, 2023, has two special sections devoted personally to lynching by the mob (in Section 103(2) and in Section 117(4)) and is defined as an action by a group of people five or more persons, whose punishment is set between seven years and a life sentence or death penalty.

•  Criminal procedure code (CrPC) and BNSS:

These give the policeman the legal ground to investigation, detention and trial.

• Laws that are State Specific:

Assam, Manipur and West Bengal have their own anti-lynching laws spelling out hard punishments and procedures to protect and rehabilitate victims.

Such measures notwithstanding, implementation is yet to be undertaken effectively owing to the unclear nature and political reasons. The justice system has largely depended on the current criminal laws, and the urge to create a national anti-lynching law is still firm.

LANDMARK CASES

The Mohammad Akhlaq case of 2015 in Uttar Pradesh and the case of Pehlu Khan of 2017 in Rajasthan showed how cow vigilantism is becoming a reality in India. Akhlaq Case The lynching of a 52-year-old man by a mob, reportedly because he consumed and stored beef, led the nation into a furor and brought the rising cow protection activism to national attention. In the transportation of cattle, the Pehlu Khan case followed a milky farmer killed by self-proclaimed cow protectors. Even video evidence was not sufficient to convict the accused people; despite the obviousness of the video evidence, there were serious loopholes in investigation and prosecution.

These incumbent events were portrayed in a later case in Jharkhand, the Tabrez Ansari Case of 2019, where Ansari was beaten to death by a mob that accused him of riding and stealing a motorcycle and being compelled to chant religious slogans. Later he died of his injuries in police custody. The police had initially registered a case of culpable homicide against Ansari instead of murder, which is highly criticised.

Lastly, the recent circumstances of the Palghar lynching of 2020 in Maharashtra demonstrated further that misinformation can lead to brutal violence yet again; a mob attacked three individuals, two of whom were Hindu ascetics, on account of someone stirring up rumours that they were child-kidnappers.

JUDICIARY RESPONSE TO MOB LYNCHING 

The judiciary has been instrumental in recognising and dealing with mob lynching as a major menace to constitutional order.

Tehseen S. Poonawalla versus the Union of India (2018)

In this landmark case, the supreme court went on to severely attack the issue of mob lynching and installed a set of preventive and compensatory actions. According to the ruling of the court:

• The district magistrate of each district was to be appointed as nodal 

                        officers to put an end to any form of lynching.

• Special fast-track courts to carry out trials of mob lynching cases.

• Victim or their families compensation schemes.

Tough measures towards police officials or the administration of a district when there is negligence.

According to the court, the new normal cannot be mobocracy, and it was the duty of the state to ensure the preservation of constitutional values.

Nevertheless, the progress of these directions has been sluggish and uneven despite this proactive role. Lots of states have failed to act fully upon the advice of the Supreme Court.

EFFECTIVENESS OF THE LEGAL RESPONSE 

Although there are legal provisions to prosecute the culprits in the cases of mob lynching, the general legal reaction to mob lynching as a whole has been more or less ineffective owing to a number of reasons:

1. Absence of Deterrence – Most of the offenders do their crimes with impunity since they are sure that nobody can stop them as they have political patronage or support of the public.

2. Police Machinery Breakdowns – Policemen either fear or are biased against responding to the situation of lynching or are politically compelled to ignore or do not bother to look into the issue closely.

3. Slow Justice – Increased delays in trials and convictions all lead to a culture of impunity. Witnesses become hostile usually when they are threatened or not being given shelter.

4. Poor Compensation and Rehabilitation – The state hardly provides any help in time or in the required proportions to the victims or their families.

5. No Centralised Data – There exists no centralised data source on the    occurrence of incidents of lynching, owing to which it is extensively hard to gauge the extent and magnitude of the problem.

CHALLENGES IN THE LEGAL RESPONSE 

However, due to the failure of the legal response to mob lynching, judicial activism, or even popular indignation, many structural or systemic problems still persist in the way of effective legal response:

1. Law ambiguity

Mob lynching has no exact legal definition. These crimes are complicated to prosecute without a distinct and distinguishable offence. Prosecutors and judges have to use the general provisions of criminal law, those that often miss that lynching is an organised and communal phenomenon.

2. Polarization of Community and Politics

The causes of many lynchings are based on hatred of the community or ideological causes. When the politics are involved in the acts of provoking or protecting the mobs, then law enforcement gets its real setback. Such acts are rarely condemned by politicians as it is because of vote-bank politics.

3. Fake News issues

Social media contributes significantly to rumours that spark lynching. Even though most of the cases are made due to incorrect information on kidnappers of children or meat eating, there is no proper mechanism to check on the content where it gets harmful.

4. No Witness protection

Witnesses are discouraged from testifying in court due to fear of victimisation. India is deficient in a self-governing witness protection system, primarily in communal crimes.

5. The late policy reforms

There are demands to formulate a specific anti-lynching statute by the Union Government, but it has been reluctant to come up with a specific anti-lynching act again and again when the judiciary and civil society continue to urge it to do so.

RECOMMENDATIONS 

The concept of mob lynching ought to be managed using a multi-pronged approach. Some of the important recommendations are as follows:

1. Passage of a National Anti-Lynching Legislation

One should enact legislation that defines mob lynching and criminalises the various aspects of it and prescribes stern punishment. The following should be covered under the law:

• Mob lynching, incitement of, and becoming their participant and                 facilitator.

• Neglect of duty of officeholders.

• Victims protection and pay.

• Special courts and speedy trials are provided.

2. Supreme Court Guidelines implementation

States have to follow the sensibilities of what is instructed in the Tehseen Poonawalla judgement. Special courts, special officers and victim compensation should be institutionalised.

3. Regulation of the Social Media

In collaboration with other communication technologies such as WhatsApp, Facebook and Twitter, the government should establish mechanisms of real-time fake news tracking and reporting which may lead to violence.

4. The Awareness and Community Policing

Sensitisation should be created in such areas or places where rumours are spread so that communal harmony should be established. Police ought to liaise with the local communities to establish faith and intelligence.

5. Police Reforms

The police have to be sensitised and trained on how to deal with mob cases and communal tensions in a level playing field. Officers that do not avert lynching should be dealt with.

6. Protective measures schemes

This should be done by enacting a strong and binding witness protection law that will protect the interests of those who will come to give testimony on the lynching issues.

7. Accountability of the Public Officials

They should hold public officials criminally and administratively liable when they do not fulfil their role of lynching prevention. These are suspension, departmental inquiry, and criminal prosecution in case it is necessary.

CONCLUSION 

Lynching, really, is not solely a law and order issue but a major threat to the constitutional values of India, the social integrity of India, and the ethos of its democratic polity. The increased cases of mob violence question the fundamental idea that all people are innocent until proven guilty by a court of law.

In spite of the judiciary interventions several times, there is still a lack of special legislation, political intentions, and other effective enforcement tools that still encourage the perpetrators under the current circumstances. The legal system that is available has been shown to be inadequate in dealing with the seriousness of mob lynching even though it is enforceable in law theory.

India should take strong steps. This involves the formulation of strict legislation, building strong institutions, creating sensitivities in the society, and the accountability of the mobs and the authorities alike. Then only we can have the real rule of law and can deliver justice to the victims of mob lynching.

REFERENCES 

• https://lawfullegal.in/mob-lynching-in-india-legal-framework-challenges-and-the-quest-for-justice/
• https://legaleagleweb.com/articalsdetail.aspx?newsid=77&utm_
• https://tijer.org/tijer/papers/TIJER2312115.pdf?utm_
• https://restthecase.com/knowledge-bank/mob-lynching-in-india 
• https://www.drishtijudiciary.com/to-the-point/bharatiya-nyaya-sanhita-&-indian-penal-code/mob-lynching-under-bharatiya-nyaya-sanhita-2023?utm_
• https://nualslawjournal.com/2024/04/22/criminalisation-of-mob-lynching-under-the-bhartiya-nyaya-second-sanhita-2023/?utm_
• https://www.sriramsias.com/upsc-daily-current-affairs/mob-lynchings-in-india-legal-framework-and-judicial-response/?utm_ 
• Indian Penal Code, 1860
• Supreme Court of India. Judgment in Tehseen S. Poonawalla vs. Union of India & Ors., W.P. (Civil) No. 754 of 2016.
• India Today. “Palghar Lynching: What Really Happened”, April 2020.
• Human Rights Watch. “Violent Cow Protection in India: Vigilante Groups Attack Minorities.” Human Rights Watch, 2019.
•  Bharatiya Nyaya Sanhita, 2023
  

Abstract
In an age of growing maritime threats and geopolitical complications, the littoral states all
around the globe are increasingly relying on international maritime laws as a guiding principle
for their operation and defense. India, with its long coastline of over 7,500 kilometres, is

confronted by a large number of security issues varying from piracy and trafficking to state-
sponsored infiltration and terrorism by its neighbouring countries. This paper critically

examines how international maritime law specifically conventions such as UNCLOS, the SUA
Convention and SOLAS affects the India’s coastal security policies. It follows the development
of India’s maritime legal awareness after the horrifying 26/11 Mumbai attacks and analyses
how legal frameworks affect operational strategy, inter-agency coordination and legislative
reforms. With growing tensions in the Indo-Pacific and growing strategic interest from external
naval powers, India’s maritime governance is poised at the intersection of international
responsibility and national interest. Analytically and comparatively, it is submitted in this paper
that the intersection of domestic security measures with international legal norms is not only
desirable but also imperative for effective maritime sovereignty.

Introduction
Maritime security has become a corner-stone of national defense policy of sea-fronting
countries worldwide. India, with a coast line of 7,516.6 km and 12 major ports, has a
dependence on sea trade that brings to the forefront its strategic concerns of security and
sovereignty of its sea frontiers. Beyond economic concerns, India’s coastlines are vulnerable to
a spectrum of threats unleashed by terrorism, illegal immigration, arms-smuggling, drugs, and
environmental threats. The dastardly 26/11 Mumbai attacks, engineered through the sea route,
served as a wake-up call for India’s defense establishment and ushered in a paradigm shift in
maritime policy and legislation. To that end, international maritime law presents a framework
and an arsenal of tools by which states can build policies that balance security requirements
with obligations under international convention. Treaties such as the United Nations
Convention on the Law of the Sea (UNCLOS), the Convention for the Suppression of Unlawful
Acts Against the Safety of Maritime Navigation (SUA Convention), and the International
Convention for the Safety of Life at Sea (SOLAS) have created internationally consensual
standards for territorial seas, high seas, maritime crime and state cooperation.

3

This paper examines the evolving function of international maritime law in shaping India’s
coastal security paradigm. It examines India’s balancing of the twin imperative of national
security and the rule-based international maritime order. In an examination of legislative
responses, operational doctrine and institutional constructs, this research paper seeks to
demonstrate the significance of crossing international legal borders with domestic policy to
secure a secure and rule-based maritime environment.

India’s Maritime Geography: Why India’s Coastal Security is so
Complex?
India’s maritime geography is both a vast strategic opportunity and a complicated security
challenge. With a huge coastline of more than 7,500 kilometres, bounded by the Arabian Sea
on the west and the Bay of Bengal on the east, the nation is located at a vital crossroads of
international sea lanes that handle almost 90% of international trade. Its position also situates
it within close range of some of the world’s most unstable maritime zones, such as the Persian
Gulf, the Horn of Africa and the Strait of Malacca all being hotbeds of piracy, trafficking and
geopolitical tensions. The fact that there are more than 1,300 islands, several minor and major
ports and thousands of fishing boats makes coastal surveillance and enforcement difficult.
Several coastal areas, especially in the states of Gujarat, West Bengal and Tamil Nadu are also
socioeconomically weak and hence prone to illegal smuggling, human trafficking and radical
penetration. All these are further aggravated by weak infrastructure in distant coastal areas,
uncontrolled movement of small fishing craft and divided jurisdiction between maritime
authorities. In this environment, the use of international maritime law transcends the issue of
compliance and it becomes an instrument of survival and stability. Legal regimes provide India
the foundation to exercise sovereignty, protect sea lanes and cooperate globally against threats
that are pan-national. Concurrently, the variability of threats means India must tailor these laws
to its distinct geography, community-driven security requirements and regional security
context. This approach of segregating the international laws with the domestic laws will be
definitely provide a helping hand to eliminate some of the major complexities which are
associated with the India’s maritime geography. It will not only enhance the India’s coastal
security but will also align India with various international frameworks to work in uniformity
with other countries all around the world, giving out a clear and crisp message of unity and
parity.

4

Key Maritime Conventions and Their Influence on India
India’s perspective of international maritime law is largely shaped by treaties and conventions.
These treaties and conventions setup pertinent legal parameters as well as mechanisms for
cooperation with respect to ocean governance. While formulating coastal security policies for
India, there are three treaties of particular importance. The first one is UNCLOS, followed by
the SUA Convention of 1988 and SOLAS including amendments of 1974 and other subsequent
amendments later on.

1. The UNCLOS Convention:
   This treaty nowadays holds the status of a guiding light to the India maritime legal framework.
   By virtue of the fact that this convention was ratified in 1995, India accepted and recognized
   the legal definitions of territorial sea (12 nautical miles [nm]), contiguous zone (24 nm), and
   EEZ zone (200 nm). Thus, India has been in a position to exercise due jurisdiction allowing
   certain activities of national security and economic interest like oil exploration in the Arabian
   Sea or controlling illegal fishing in the Bay of Bengal. On the other hand within the ambit of
   India’s security perspective, the more pertinent provisions would be hot pursuit and the right of
   innocent passage, each of which is integral to the security of India. Simply put, hot pursuit
   allows the Indian Coast Guard or Navy to pursue and apprehend foreign vessels that have
   breached laws within its EEZ, provided the pursuit was continuous and commenced in
   permissible zones.
2. The SUA Convention (1988):
   The Convention on the Suppression of Unlawful Acts against the Safety of Maritime
   Navigation (SUA), in particular gained momentum in the aftermath of the terror attacks of
   26/11 on Mumbai. This SUA protocol criminalizes a wide range of activities that threaten
   maritime security, such as hijacking, sabotage and attacks on ships, crews or offshore
   platforms. Recognizing the significance of this tool, India amended its domestic legislation to
   empower its enforcement agencies to curb maritime terrorist acts without reference to the SUA
   framework.
   Key operational consequences of the SUA include extending the jurisdiction of Indian
   authorities to arrest or prosecute any person believed to have conspired or committed maritime
   crimes regardless of whether such conduct occurs in international waters that are allegedly
   harmful to India.

5

3. The SOLAS Convention:
   Undoubtedly, SOLAS certainly is the best and most widely accepted treaty for the safety of
   merchant vessels. It has really had some quite strong implications for India especially in the
   scope of inspections of ships and also with regard to port security. Post 2004, when the ISPS
   Code was adopted as an amendment to SOLAS, Indian ports underwent a considerable
   transformation with respect to the introduction of a culture of security including vessel
   monitoring systems, identity verification, surveillance and stringent compliance protocols. By
   adopting SOLAS and its future amendments, India not only complies with international
   standards but also enhances the coordination capacity with foreign navies, coast guards and
   shipping agencies which is quite relevant given the high levels of international traffic through
   Indian Ocean trade routes.

Evolution of India’s Coastal Security Post – 26/11
In the early hours of November 26, 2008, the attacks on Mumbai, popularly described as 26/11,
changed forever the security environment within India. Ten armed terrorists landed in Indian
territory through sea routes that somehow plummeted past various layers of coastal
surveillance. This incident, which took the lives of more than 170 people and raised cries across
the world, opened up the large chinks in the Armor of India’s maritime security and thereby
became the fulcrum around which the reworking of India’s coastal security strategy came to be
instituted. Prior to 26/11, India’s coastal security was a largely piecemeal affair, run on the basis
of overlapping jurisdictions amongst the Indian Navy, Indian Coast Guard, Marine Police,
Customs and port authorities.
In response to the attack, the Indian government initiated a multi-tier response to address the
situation. The National Committee for Strengthening Maritime and Coastal Security
(NCSMCS) was put in place to better coordinate with various maritime stakeholders. The
Coastal Security Scheme being revamped and reinforced has also now gained the resources to
equip and train state marine police forces while the armed forces assigned to maritime security
were given to the Indian Navy.
In yet another important institutional reform, the NC3I for National Command Control
Communication and Intelligence Network was created that united coastal radar systems,
automatic identification systems and maritime surveillance infrastructure into one grid. The

6

network led to considerable enhancement of real-time situational awareness and inter-agency
coordination.
Another institution created in 2014 was the Information Management and Analysis Centre
(IMAC), a centralised platform for collection, analysis and dissemination of maritime
intelligence. IMAC jointly works with the Information Fusion Centre – Indian Ocean Region
(IFC-IOR) to enhance international cooperation with navies and maritime stakeholders. These
developments herald the coming of a new approach to coastal security, moving from a reactive
to a proactive and layered approach. The coastal-marine police complement and enhance by
community engagement programs with increased reports in vulnerable fishing communities.
But the challenges are still there. This raises further threats to jurisdictional overlaps, logistical
restrictions in the smaller coastal states and uneven capacity-building across regions. Hence
while there is considerable achievement to boast of with respect to coastal defense in India,
momentum will need to be sustained through continuous investments, periodic monitoring and
above all, interfacing with international best practices and legal norms.

What are the Legal Challenges for India in Aligning Domestic Policy
with International Law?
However, it is not smooth sailing for India- made coastal security policies in accordance with
the international legal framework. Its adherence to international maritime laws has improved
over time, but this process is by no means an easy one. Access to infrastructure, operations,
legal flexibility, sovereignty position, federalism and allocation of budget are some of the issues
at play.

1. Fragmented Jurisdiction and Overlapping Authority:
   The most permanent problem of all in coastal security would probably be the confusion of
   central-state role demarcation. Overall, the Indian Navy takes care of maritime security, while
   the Coast Guard patrolled law enforcement operations in the territorial waters. The states
   provide a marine police service that patrolled the coastal area up to 12 nautical miles. All these
   multidimensional agencies often herald chaos and slow responses in emergencies, especially
   when legal jurisdiction is dubious or even contested. Even with its clear definitions of maritime
   zones in treaties such as UNCLOS, operationalizing those definitions into effective domestic

7

jurisdiction is still proving to be a task. Central-state government coordination remains uneven
across the states-most especially those with weak administrative capacity-in the context of
sovereignty, federalism, legal flexibility and budget allocation.

2. Legislative Gaps and Outdated Laws:
   Even after acceding to major international conventions, India continues to live with many
   colonial laws, such as the Indian Ports Act of 1908 or the Territorial Waters, Continental Shelf,
   Exclusive Economic Zone and Other Maritime Zones Act of 1976, and these do not have
   provisions for present-day threats like cyber piracy, maritime terrorism or unmanned
   underwater vehicles.
   In addition, India is far from completing the domestication of all the provisions of conventions,
   such as SUA and SOLAS, into domestic-enforceable laws. This leaves loopholes in the law
   and does not allow the law-enforcement agencies to charge effective prosecution of maritime
   criminals, particularly those caught in the open international waters or EEZs.
3. The Compromise between National Sovereignty and International Norms:
   Generally, India has been somewhat modest about responding to foreign military presence in
   its waters and global mandates that could infringe on its sovereignty. Thus, that type of joint
   naval exercise or coordinated patrol or even information-sharing scheme with international
   cooperative frameworks would be politically more sensitive, even when they enhance national
   security interests. For example, while India has adopted a range of maritime domain awareness
   (MDA) programs with countries like the United States, Japan or Australia, it is still rather
   selective about sharing information for the sake of strategic autonomy and intelligence
   confidentiality.
4. Resource Deficits and Capacity Fractions:
   Deployment of comprehensive international obligations is expensive in all respects-financial,
   technical, and human resources. India has progressed in establishing the radar stations, AIS
   receivers, watchkeeping, and full coverage systems. Most coastal states still suffer from poorly
   funded marine police stations, inadequate infrastructure, and little training. This infrastructural
   inadequacy becomes a bottleneck for complete effective implementation of international
   protocol and, therefore, weakens India’s ability to deal with transnational maritime threats in
   real-time scenarios.

8

India’s Role in the Indo-Pacific: Legal Diplomacy and Strategic
Alignment
India’s maritime security agenda must be understood in relation to the changing dynamics of
the Indo-Pacific, a geopolitical stage that now holds central significance in global commerce,
naval dominance and international law. As tensions heighten in the South China Sea, piracy
continues to be an issue in the Strait of Malacca and foreign naval presence grows in the Indian
Ocean. India has emerged as a regional maritime stabilizer balancing sovereign interests with
support for a rules-based international order.

1. Maritime Law as a Tool of Diplomacy:
   India’s maritime diplomacy has its foundation in the pursuit of the liberties under UNCLOS.
   By maintaining these legal standards, India stands with like-minded nations like the United

States, Japan, Australia and France all of whom believe in a free, open, and inclusive Indo-
Pacific.

Through forums such as the Quad and the Indian Ocean Rim Association (IORA), India has
advocated regional maritime cooperation, mutual exercises, and harmonization of law on
piracy, humanitarian response, and disaster relief. Such partnerships not only advance India’s
strategic leverage but also support its reputation as a responsible maritime actor.

2. Legal Standing in Maritime Disputes
   While India’s maritime boundaries are mostly resolved especially since the 2014 arbitral award
   in the India-Bangladesh maritime dispute, its persistent call for dispute resolution under
   international law has gained it diplomatic capital. Unlike unilateral or militarized claims
   elsewhere, India’s legal approach provides a normative example for the region.
   This credibility enables India to talk from a position of principle in calling for legal conduct in
   disputed waters, e.g., in the South China Sea or near sensitive choke points like the Hormuz
   Strait. It gives greater power to India’s voice in international maritime forums.
3. Strategic Use of Legal Infrastructure:
   India’s attempts to forge legal maritime partnerships are now supported by strategic pacts like
   White Shipping Agreements (non-military information sharing) with more than 20 nations and
   the creation of the Information Fusion Centre – Indian Ocean Region (IFC-IOR). These moves

9

enable India to marry international legal mechanisms with real-time operational coordination,
improving surveillance as well as legal enforceability.
In addition, Indian naval diplomacy through exercises such as Milan or humanitarian visits to
the Indian Ocean frequently includes legal messaging: a demonstration not only of ability to
reply militarily, but to maintain international maritime norms.

4. Navigating Regional Complexities:
   But India’s sea-going activity in the Indo-Pacific is not without its own challenges. Its bilateral
   ties with Southeast Asian coastal states, several of whom are anxious about big regional
   powers, need sensitive legal and diplomatic calibration. Sometimes India needs to steer its
   advocacy of international legal traditions while being anxious to not be involved in larger
   power politics.

Conclusion
International maritime law is a ubiquitous influence in the Indian coastal security paradigm
with an essential presence. The Indian Ocean is a region of the world of great geopolitical
importance and economic significance and thus the security establishments in India cannot
afford to ensure its operations in that theatre without a resemblance of international maritime
norms and expectations. As this research paper has demonstrated conventions such as
UNCLOS, SUA and SOLAS, which not only establish the organizational framework for legal
maritime conduct but also serve as essential tools of cooperation, deterrence and strategic
legitimacy. India’s assertive course correction to the 26/11 vulnerabilities was a turning point
in the country’s coastal security approach. Subsequent institutional consolidation,
modernization of surveillance, and integrated command system building are signs of an era of
new maritime governance.

Still, despite all that appears visible, there are quite a few challenges left ahead of institution-
building, there are old laws and jurisdictional ambiguity behind it, improper inter-agency

coordination and thin technology reach in remote coastal zones. Harmonization of domestic
law with international commitments is not so much a legal reform question but also a matter
of political will and long-term investment. India needs to accord top priority to updating its
maritime laws to address current security concerns, such as cyber-attacks on port facilities,
autonomous underwater drones and increasingly converging environmental degradation with

10

security concerns. In the process, the government also needs to address systemic problems like
under-manned marine police stations, non-reach-out to coastal communities and procedural
slowness in sharing intelligence.
Another promising path is maritime diplomacy. As a responsible and democratic naval power,
India can best lead by exemplifying international maritime law and regional stability in the
Indo-Pacific. Adherence to law not only lends credibility to India but also provides India with
bargaining power during negotiations, alliances and resolution of maritime conflicts. When
autocratic actors are increasingly violating international maritime norms, India’s rule-based
reaction based on dialogue, transparency and cooperation can be the model for a more balanced
and secure maritime future. Furthermore, Indian security and legal institutions have to look
ahead to address long-term challenges of climate change, sea rise and changing maritime
boundaries. The climatic shifts will redefine current-day EEZs, affect accessibilities around
ports and redraw global trade routes all of which need forward-looking policy and legal
thinking.
In essence, India’s coastal security policy needs to be forward-looking and globally networked.
The maritime custodianship of the future will be determined by nations that are capable of
balancing equally the need to obey the law and strategic flexibility. Making investments in the
building of the law, inter-agency coordination, global partnerships and coastal vulnerability
reduction, India can reshape its sea policies from being mere reactive responses to threats into
long-term, legal and forward-looking ones. With increasing confidence, India is forging ahead
towards its Indo-Pacific maritime future. Aligning the national policy on coastal security with
the international legal order is no longer an option but a strategic necessity. The path forward
is to establish institutions, update the legislations, construct cooperation and enforce the rule
of law in the seas.

11

References

• Chaturvedi, A. K. (2021). Maritime Security of India. STRIVE India. Retrieved from
  https://striveindia.in/maritime-security/ [Internet]
• Singh, A. (2024). The State of India’s Coastal Security Preparedness. Observer

Research Foundation. Retrieved from https://www.youtube.com/watch?v=Yf-
wbK0p8KY [YT Video]

• Observer Research Foundation. (2017). India’s Coastal Security Paradox. Observer

Research Foundation. Retrieved from https://www.orfonline.org/research/india-
coastal-security-paradox [Internet]

• International Maritime Organization. International Convention for the Safety of Life
  at Sea (SOLAS). Retrieved from

https://www.imo.org/en/About/Conventions/Pages/International-Convention-for-the-
Safety-of-Life-at-Sea-(SOLAS),-1974.aspx [Internet]

• International Maritime Organization. Convention for the Suppression of Unlawful Acts
  Against the Safety of Maritime Navigation (SUA Convention). Retrieved from
  https://www.imo.org/en/About/Conventions/Pages/SUA-Treaties.aspx [Internet]
• Drishti IAS. (2019). India’s Coastal Security. Drishti IAS. Retrieved from
  https://www.drishtiias.com/paper3/indias-coastal-security/print_manually [Internet]
• Observer Research Foundation. (2024). Towards a Cohesive Maritime Security
  Architecture in the Indian Ocean. Observer Research Foundation. Retrieved from

https://www.orfonline.org/research/towards-a-cohesive-maritime-security-
architecture-in-the-indian-ocean [Internet]

Abstract

This research critically examines the role of Battered Woman Syndrome (BWS) as a legal
defense in cases involving prolonged domestic abuse. Introduced by psychologist Lenore E.
Walker, BWS illustrates the psychological impact of intimate partner violence (IPV) and its
influence on a victim’s perception of threat and survival. The paper explores the
psychological foundations of BWS, its recognition in jurisdictions such as the United States,
United Kingdom and Canada, and contrasts it with its limited application in the Indian legal
system. Key legal provisions, case laws and judicial attitudes are analysed alongside the
ongoing debate on gender neutrality in psychological defenses. The study advocates for a
more inclusive, trauma-informed approach to justice and offers recommendations for
reforming India’s legal response to domestic violence. The findings emphasize the necessity
of integrating forensic psychology with legal reasoning to ensure a fair and empathetic legal

framework for all survivors of abuse.

3

Battered Woman Syndrome as a Legal Defense: A Critical Analysis

Introduction
Battered Woman Syndrome (BWS) is a psychological condition that develops in women who
have been subjected to prolonged and severe domestic abuse (usually by their male partner).
This condition can significantly impact a woman’s quality of life, emotional stability, mental
well-being and may also trigger various neurological and psychological disorders. This concept
was first introduced in 1979 by American psychologist Lenore Edna Walker, who observed a
recurring pattern of behaviour in women who had endured prolonged intimate partner violence
(IPV), typically at the hands of a male partner in a close relationship.
BWS has since become a subject of considerable legal and psychological scrutiny, particularly
regarding its role as a defense in criminal cases where abused women retaliate against their
abusers, sometimes with fatal consequences. The recognition of BWS as a legal defense
challenges traditional legal conventions and raises important questions about justice, mental
health, gender dynamics and the societal structure that perpetuate cycles of abuse.

Psychological Background
Walker, in her study of Battered Woman Syndrome (BWS) proposed the theory of the “Cycle
of Abuse,” which includes three recurring phases: tension-building, acute battering incident
and reconciliation. This cycle creates a psychological trap for the victim, gradually dismantling
her ability to seek professional help. Over time, this continuous exposure to abuse can lead to
the development of various neurological and psychological complications, making it
increasingly difficult for the victim to break free from the traumatic and oppressive
environment.
Victims of BWS often suffer from depression, anxiety and post-traumatic stress disorder
(PTSD). These mental health conditions significantly affect their perception of fear, threat and
decision-making. Forensic psychologists frequently provide expert testimony to explain how
prolonged abuse can condition a victim to perceive the use of lethal force as the only means of
survival.

4

Legal Recognition of BWS
Battered Woman Syndrome (BWS) has been recognized in various jurisdictions all around the
globe, primarily as a component of self-defense or as a mitigating factor during conviction or
sentencing. This recognition has evolved over time through judicial interpretations and the
growing influence of forensic psychology in legal proceedings. In the United States, courts
have allowed expert testimony on BWS in numerous cases, acknowledging that prolonged
abuse can significantly alter a victim’s perception of danger and available choices for survival.
A landmark case in this regard is State v. Kelly (1984), where the Hon’ble Supreme Court of
New Jersey held that BWS evidence was admissible to help the jury understand the accused’s
mental state, thereby supporting her claim of self-defense.
Similarly, in R v. Ahluwalia (1992), the United Kingdom Court of Appeal recognized the
psychological impact of prolonged domestic abuse, leading to a reduction in the charge from
murder to manslaughter. In this case, the defendant, Kiranjit Ahluwalia, had suffered years of
physical and emotional abuse at the hands of her husband before retaliating. The court’s
decision to consider her mental state represented a significant shift towards acknowledging the
complexities of domestic violence in criminal cases.
The Canadian jurisprudence has also made progressive advancements in this area. In the case
of R v. Lavallee (1990), the Supreme Court of Canada accepted expert testimony on BWS and
held that the traditional legal criteria for self-defense were inadequate to evaluate the
experiences of abused women. The Court emphasized that psychological evidence was
essential for the jury to understand why a battered woman might reasonably perceive a lethal
threat even in the absence of immediate danger. This case laid a strong precedent for the
integration of psychological evidence into legal reasoning.

These jurisdictions have gradually moved towards a more flexible understanding of self-
defense that includes psychological trauma and recognizes the unique circumstances under

which abused individuals may act. However, the acceptance of BWS is not uniform across
legal systems and often depends on judicial discretion, the availability and credibility of expert
testimony and evolving social approach towards domestic violence and gender-based trauma.
While some courts have embraced BWS as a legitimate and necessary legal tool, others remain
hesitant, citing concerns about objectivity and potential misuse.

5

Indian Context
In India, Battered Woman Syndrome (BWS) is not formally codified as a standalone legal
defense and the criminal justice system has yet to develop a comprehensive framework that
accommodates psychological defenses rooted in long-term abuse. Nonetheless, Indian courts
have occasionally acknowledged the psychological and emotional toll that sustained domestic
violence can have on women. The legal protections currently available to victims are largely
reactive and punitive in nature, centred around provisions such as Section 498A of the Indian
Penal Code (IPC), 1860 (Now Section 85 of the Bharatiya Nyaya Sanhita (BNS), 2023) which
criminalizes cruelty by a husband or his relatives, and Section 304B of the Indian Penal Code
(IPC), 1860 (Now Section 80 of the Bharatiya Nyaya Sanhita (BNS), 2023), which deals with
dowry-related deaths. These provisions focus primarily on post-offense accountability rather
than offering proactive legal recognition of the trauma experienced by battered women who
might act in self-defense.
Self-defense, as defined under Section 100 of IPC, 1860 (Now Section 38 of BNS, 2023) does
allow the use of force even to the extent of causing death, if there is a reasonable apprehension
of grievous harm or death. However, Indian jurisprudence has largely interpreted this provision
in a restrictive and immediate sense, often requiring the threat to be imminent at the moment
the force is used. This legal rigidity presents a significant challenge for women suffering from
chronic abuse, who may retaliate during moments of relative calm. The notion of “learned
helplessness,” a core element of BWS, is rarely engaged within Indian judicial reasoning,
leading to limited scope for legal relief in such circumstances.
Although legislative reforms such as the Protection of Women from Domestic Violence Act,
2005 have introduced civil remedies, including residence orders, protection orders and
monetary relief, these measures still fall short of addressing the criminal culpability of women
who are forced to take extreme steps due to repeated abuse. The Indian legal system remains
hesitant to integrate psychiatric and psychological explanations into its criminal law doctrine,
largely due to concerns of evidentiary reliability and lack of legal precedent.
One illustrative case, though not directly linked to BWS, is K. M. Nanavati v. State of
Maharashtra (1959), where the Hon’ble Supreme Court of India clarified the narrow
parameters of the “grave and sudden provocation” defense. While the case revolved around a
man who killed his wife’s lover, it underscores the judiciary’s traditional view of provocation

6

as requiring an immediate trigger, thereby excluding cases involving cumulative provocation,
a key issue in BWS-related defenses.
In recent years, advocacy by women’s rights organizations and legal scholars has highlighted
the inadequacy of existing criminal defenses for abused women and called for the integration
of forensic psychology in criminal trials involving domestic violence. However, systemic
inertia and cultural stigmas continue to hinder meaningful progress. For India to evolve in this
regard, there must be a prominent shift from viewing victims of abuse solely as complainants
to recognizing the complex interplay between sustained trauma and defensive aggression.

Critical Analysis
Arguments For Recognition:

• Battered Woman Syndrome (BWS) provides a psychologically grounded explanation for why
  victims of prolonged domestic abuse often remain in abusive relationships and in some cases
  resort to using force as a last resort. Traditional legal assumptions often overlook the
  psychological impact of sustained abuse, including feelings of entrapment, helplessness and
  diminished self-worth. BWS helps bridge this gap by offering a framework rooted in
  psychological realism.
• Recognizing BWS in court helps contextualize behaviours that might otherwise seem
  irrational or legally indefensible. For instance, acts of self-defense that occur during periods of
  apparent calm, rather than during immediate confrontation may seem unprovoked without an
  understanding of the cyclical nature of abuse.
• The incorporation of BWS into legal reasoning promotes a more empathetic and informed
  approach to justice. It aligns legal interpretations with contemporary understandings from
  forensic psychology, allowing courts to make more accurate determinations about the mental
  state and intent of defendants.
  Arguments Against Recognition:
• Critics argue that legal recognition of BWS might unintentionally reinforce gender
  stereotypes, portraying women as inherently weak, submissive or incapable of rational action.
  This can undermine the agency of women by reducing their complex decision-making
  processes to a fixed psychological profile, thereby risking paternalism in legal proceedings.

7

• There is concern that BWS could be strategically exploited to justify acts of premeditated
  violence under the guise of self-defense. Without stringent evidentiary standards and rigorous
  psychological evaluation, the defense might open the door to misuse, potentially allowing
  perpetrators to escape accountability by falsely claiming victimhood.
• Another significant challenge lies in the legal system’s dependence on expert testimony in
  BWS-related cases. Since psychological assessments can vary widely and are often subjective,
  overreliance on such testimony may lead to inconsistencies in judicial decisions. This
  variability risks undermining the objectivity and uniform application of legal principles,
  especially in cases where expert opinions conflict.

Gender Neutrality
There is an emerging and necessary debate on whether Battered Woman Syndrome (BWS), as

a legal and psychological concept, can be extended to encompass male, transgender and non-
binary victims of domestic violence. Traditionally, BWS has been framed in gendered terms,

with a focus on women in heterosexual relationships. Critics argue that the term “Battered
Woman Syndrome” is inherently gendered, reinforcing the stereotype of women as passive
victims and men as default aggressors, thereby limiting the defense’s applicability to cases
involving non-female survivors.
The evolving understanding of domestic violence as a non-gendered phenomenon has
prompted scholars and legal practitioners to advocate for more inclusive frameworks such as
“Battered Person Syndrome” or the broader category of Intimate Partner Violence (IPV) related
trauma. Studies and data increasingly reveal that men and gender minorities can also
experience sustained physical, emotional and psychological abuse within intimate
relationships. In such cases, the psychological responses such as learned helplessness,
hypervigilance and perception of inescapable danger, may closely resemble those found in
female survivors.
From a legal perspective, extending BWS-type defenses to all individuals, regardless of gender,
aligns with constitutional principles of equality before the law and non-discrimination. In
jurisdictions such as Canada and Australia, courts have shown some openness to admitting
psychological evidence in self-defense claims made by male or LGBTQ+ defendants, though
these cases remain rare and underreported.

8

In India, where the legal discourse on gender identity and domestic violence is still developing,
recognizing the trauma endured by non-female survivors remains a significant challenge due
to deeply entrenched gender norms and legal definitions that often assume the perpetrator is
male.

Way Forward
To make Indian criminal law more responsive to the realities of domestic abuse, several steps
can be considered:

• Legislative Reform: Introduce specific provisions acknowledging psychological
  trauma in self-defense claims.
• Judicial Training: Educate judges and prosecutors about BWS and the cycle of abuse.
• Expert Testimony: Establish protocols for the inclusion of forensic psychology in
  trials involving domestic violence.
• Gender-Inclusive Language: Ensure that legal reforms address all victims of abuse,
  regardless of gender.
• Integrated Support Systems: Combine legal remedies with social and psychological
  support for survivors.
  BWS should not necessarily be a standalone defense but part of a broader legal recognition of
  psychological conditions affecting behaviour. This will require a shift in legal thinking from
  reactive to empathetic and informed justice.

Conclusion
Battered Woman Syndrome (BWS), at the intersection of law and psychology, presents a
powerful lens through which the justice system can begin to understand the deeply rooted
complexities of domestic abuse. While the syndrome has paved the way for judicial
acknowledgment of psychological trauma in several jurisdictions, its full legal recognition,
especially in India remains limited and fragmented. This gap underscores a critical need for
systemic transformation that aligns legal doctrine with psychological realities.

9

Moreover, extending the conceptual boundaries of BWS to include male, transgender and non-
binary victims is not only a matter of legal inclusivity but a constitutional imperative, rooted

in equality and human dignity. The shift from gendered assumptions to a universal recognition
of intimate partner violence is vital for justice to be truly impartial and humane.
Ultimately, addressing BWS in the legal context is not about excusing violence but, it is about
understanding its origins, especially when born out of fear, trauma and systemic failure. The
way forward lies in embedding psychological insight within legal frameworks, training judicial
actors, adopting inclusive language and fostering a culture of justice that listens not only to
what victims do, but to why they do it? In doing so, the law can become not just a tool of
punishment, but a vehicle for protection, rehabilitation and profound societal change.

10

References
American Psychological Association. (2020). Diagnostic and Statistical Manual of Mental
Disorders (5th ed.). APA Publishing.
R v. Lavallee, [1990] 1 S.C.R. 852 (Canada).
R v. Ahluwalia [1992] 4 All ER 889 (UK).
State v. Kelly, 478 A.2d 364 (N.J. 1984).
Walker, L. E. (1979). The Battered Woman. Harper & Row.
Indian Penal Code (IPC), 1860. Sections 100, 304B, 498A.
Bharatiya Nyaya Sanhita (BNS), 2023. Sections 38, 80, 85.
K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605.

Sunakshi Choudhary

INTRODUCTION
Upendra Baxi
“International human rights law, though not always binding, influences constitutionalism
profoundly1
.”

In the contemporary globalized landscape, universal treaties are essential in forming national
strategies and genuine frameworks. Countries such as India often enter into treaties on diverse
matters, spanning discussions about the environment, human rights, and security. Yet, this
raises a significant question—are international treaties acknowledged within the Indian legal
structure?
Under Monist framework, International law & domestic law are regarded as components of a
unified legal system allowing treaties to inevitably become portion of domestic law upon
ratification.
In contrast, A Dualist framework, followed by India, maintains a clear parting between the
two. Under dualism, global agreements do not gain the influence of law within the country
unless they are explicitly transformed into domestic legislation by Parliament.
Article 253 permits Parliament the authority to formulate laws for the execution of treaties. In
any event, the absence of a planned merging clause suggests that treaties—regardless of their
official status on the international stage—are not enforceable in Indian courts unless they are
accompanied by specific legislative enactments. This perspective has been validated and
articulated by Indian courts in several key judgments, including Magan bhai Patel v. Union of
India2 and Jaunty George Varghese v. Bank of Cochin3

. Moreover, the judiciary has
occasionally utilized international conventions to bridge legislative gaps, as evidenced in the
famous case of Vishaka v. State of Rajasthan4
.

1 Upendra Baxi, “Constitutionalism as a site of state Formative Practices” in Law, Justice and Society: Selected
Works of Upendra Baxi (Eastern Book Company, 2007) 210.
2
AIR 1969 SC 783.
3 AIR 1980 SC 470.
4 AIR 1997 SC 3011.

2

Difficulties arise when India is involved in disputes before international courts such as the ICJ.
While India acknowledges the authority of the ICJ and has complied with its decisions in cases
like the Kulbhushan Jadhav case5

, these rulings do not automatically invalidate Indian law

unless they are enacted through a statutory instrument.
GLOBAL RULES FOR TREATIES
Treaties are formalized agreements between states, recognized under international law. Their
framework is primarily established by the Vienna Convention on the Law of Treaties, 1969
6
(VCLT) which is widely considered an indispensable part of international law, even though
India has not signed it.
Article 2(1)(a) expresses a treaty as a written agreement between states governed by
international law7
.

Article 26 (Pacta Sunt Servanda) necessitates that treaties in force must be executed in good
faith8
.
Article 27 prohibits states from citing domestic laws as a reason to evade treaty obligations9
.
In summary, once a treaty is ratified, it becomes binding on a state under international law, and
domestic legal challenges cannot be used to justify non-compliance.
TREATIES ARE OF TWO TYPES:
Bilateral: Between two countries.
Multilateral: Involving multiple states (e.g., UN treaties, WTO agreements).
TREATIES VS CUSTOMARY LAWS
Treaties are based on consent and are documented, providing greater legal clarity. Customary
international law, although not written, is obligatory due to constant state practice and a belief
in legal obligation10
.

5
India v. Pakistan (2019) ICJ Rep 418.
6 Vienna Convention on the Law of Treaties, 1969 (adopted on 23rd may, 1969, entered into force on 27th
January 1980, 1155 UNTS 331).
7
Supra note 6 at 2, art. 2(1)(a).
8
Supra note 6 at 2, art. 26.
9 Supra note 6 at 2, art. 27.
10 Disentangling Treaty and Customary practices (available at: Disentangling Treaty and Customary
International Law on JSTOR) (Last visited on 25th June, 2025)

3

ENFORCEABILITY ISSUE:
Although treaties are binding on an international scale, domestic legal systems depends on
whether a country follows a monist or dualist legal framework. In monist states, treaties
become law upon ratification; in dualist states like India, they require separate legislation to
take effect domestically.
MONOIST & DUALIST SYSTEM 11
A crucial aspect in Identifying whether International treaties are authoritative within a nation
is the approach that nation takes towards international law & its affiliation with domestic
(national) law. This approach is generally classified into two broad theories: Monism and
Dualism.

1. MONIST SYSTEM
   International law & domestic law are viewed as parts of a integrated legal system. Once a treaty
   is sanctioned, it inevitably becomes part of national law and can be directly enforced by the
   courts without the need for new domestic legislation.
   Key Features of Monism
2. No necessity for discrete legislation to make provisions effective.
3. International law takes direct effect within the national legal system.
4. Provisions can even override conflicting domestic laws (in some countries).
   Example Nations:
   Netherlands: Article 93 of its Constitution allows treaties to have direct effect12
   .

France and Russia: obey to monist principles where international treaties can be directly
appealed in courts.

2. DUALIST SYSTEMI
   International law & domestic law are treated as two distinct and independent legal systems. In
   such countries, ratifying a treaty is not sufficient. The agreement must be ‘transformed’ into

11 Monism and dualism in International law, available at: Monism and dualism in international law –
Wikipedia(Last visited on 25th June, 2025)
12 Constitution of the Kingdom of Netherlands,2008(as amended), available at: The Constitution of the
Kingdom of the Netherlands 2008 | Regulation | Government.nl ( Last visited on 25th June, 2025)

4

domestic law through appropriate regulation passed by Parliament before it can be enforced in
national courts.
Key Features of Dualism

1. Treaties are not automatically binding domestically.
2. Parliament or the legislature must enact a law to implement a treaty.
3. Domestic law prevails in case of a conflict, unless the treaty is formally adopted.
   Example Countries: India, United Kingdom, Australia
   Example :
   R v Secretary of State for Domestic Affairs, ex parte Brind (1991)
   13:

UK court held that unless Parliament sanctions a treaty provision into law, courts cannot
enforce it.
INDIA’S STAND
India’s standpoint on the relevance of international agreements is shaped by its legal agenda,
particularly under its Constitution and the principle of dualism. The following outlines its
functioning:
The revised provisions of the Constitution of India directly pertain to international treaties and
their enforcement. Article 51(c)14, which falls under the Directive Principles of State Policy15
,
indicates that the State seeks to encourage respect for international law and treaty obligations.
In Article 51(c)16, ‘International Law’ and ‘Treaty obligations’ are mentioned distinctly. As
stated by Prof. C. H. Alexandrowicz17, the term ‘International Law’ refers to Customary
International Law, while ‘Treaty Obligations’ denotes the responsibilities that emerge from
International Treaties18
.

1. Dualist Approach

13 1 AC 696 (HL)
14 The Constitution of India, art. 51(c)
15 The Constitution of India, art 51
16 Supra note 14 at 4
17 C.H. Alexandrowicz, International law and the Indian Constitution (1972) 2 Indian YBIL 187.
18 DR. Kinna T. Chadokia, “The Standing International Treaties under Constitution: An Indian Perspective”: An
International Multidisciplinary Journal, ISSN 2455-314x, VOL 7, ISSUE 4.

5

India adopts a dualistic approach to the affiliation between international law and local law. This
means that treaties & conventions do not mechanically become part of Indian law upon
ratification. They must be explicitly merged into Indian domestic law by Parliament before
they hold legal significance within the country.
Ratification of Treaties:
India can ratify an international treaty, but it does not automatically supersede or alter domestic
laws unless specific legislation is passed by Parliament to integrate the treaty’s provisions into
Indian law.
Example:
While India has ratified the Convention on the Elimination of All Forms of Discrimination
Against Women19 (CEDAW), the provisions of CEDAW are not automatically enforceable in
Indian courts unless Parliament enacts specific laws in line with the treaty’s standards.
ROLE OF PARLIAMENT IN INCORPORATING TREATIES:

• Legislation Required: For a treaty to have official effect on Indian citizens, it necessitates
  legislation by the Indian Parliament. Once passed, it becomes part of Indian law.
• Article 253 of our Constitution20 vests Parliament with the right to enact laws for the
  implementation of international treaties, even if the subject matter is not otherwise covered
  under the Constitution.
  Legal Interpretation of Treaties:
• Indian courts may mention the international treaties when interpreting domestic laws,
  especially if they do not conflict with Indian statutes or the Constitution.
• Indian courts may also construe domestic laws in light of international commitments,
  particularly if a law is ambiguous or silent on a matter.
  ROLE OF ARTICLE 253 WITH REFERENCE TO INTERNATIONAL TREATIES21
  Article 253 grants the Indian Parliament the authority to legislate for the purpose of
  implementing international agreements, treaties, or decisions, even if the subject matter of such
  19 Convention on the Elimination of All Forms of Discrimination Against Women, 1979, 1249 UNTS 13.
  20 Constitution of India, art. 253.
  21 Dr. Kinna T. Chadokia, “The standing International Treaties Under Constitution: An Indian Perspective”: An
  International Multidisciplinary Journal, ISSN 2455-314X, VOL 7 ISSUE 4.

6

laws typically falls under the State List, which is the area where only state governments are
usually empowered to legislate.
WHY IS ARTICLE 253 IMPORTANT?
India adheres to a dualist legal framework, which means that global agreements do not
mechanically become a share of local law. Even if India signs and ratifies an international
agreement, it can’t be imposed in Indian courts unless Parliament enacts a law to provide it
with domestic effect. Article 253 is the instrument that allows Parliament to create such
legislation, even when the subject matter is generally classified under the State List within the
Constitution.
KEY FEATURES OF ARTICLE 253:

1. It negates the distribution of powers as described in Article 246 22 and Schedule VII23
   .
2. Parliament is allowed to legislate on any matter, including those within the State List, if the
   intention is to implement an international agreement or decision.
   JUDICIAL INTERPRETATION
3. Magan bhai Ishwar bhai Patel v. Union of India (196924)
   ➤ The Incomparable Court asserted that settlements are not self-executing.
   ➤Article 253 allows Parliament to create laws to meet international obligations—even if they
   are categorized under the State List.
4. Jaunty George Varghese v. Bank of Cochin (1980)25
   ➤ The court ruled that international customs cannot take precedence over domestic law unless
   Parliament legislates under Article 253.
   So, Are treaties binding in nature?
   Internationally: Yes, once India signs and ratifies a treaty, it is required to adhere to it under
   international law.

22 The Constitution of India, art. 246.
23 The Constitution of India, Schd VII.
24 Supra note 2 at 1.
25 Supra note 3 at 1.

7

Domestically: Not unless a law is enacted under Article 253.
ROLE OF JUDICIARY IN APPLYING INTERNATIONAL LAW
Indian courts predominantly do not apply international law directly; however, they have
consistently employed it as a guiding or interpretative instrument, particularly in the absence
of explicit domestic legislation. In instances where there is no conflict between a treaty and
prevailing Indian law, courts are willing to grant legal recognition to international obligations.
This flexible and dynamic approach enables the judiciary to uphold international standards,
especially in fields such as civil rights, gender equality & environmental protection, even in
the absence of specific legislation.

1. People’s Union for Respectful Freedoms (PUCL) v. Union of India26
   In this instance, the SC highlighted issues linked to phone tapping & the right to privacy. The
   Court referenced the ICCPR which India has ratified to interpret Article 21 of the Constitution27
   (Right to Life and Personal Liberty).The Court determined that international norms, although
   not directly enforceable, can be employed to bolster fundamental rights, especially in situations
   where domestic law is silent or underdeveloped.
2. Gramophone Company of India Ltd. v. Birendra Bahadur Pandey28
   Implications and distribution of copyrighted materials, the Court dealt with a situation
   involving an international treaty—The Berne Convention. The Court observed that:
   “The comity of nations necessitates that the principles of international law may be enforced
   within domestic law even in the absence of explicit legislative approval, provided they do not
   contradict the laws of the land.”29
   .

BROADER LEGAL APPLICATION OF UNIVERSAL STANDARDS
In a manner detached from specific cases, Indian courts have referenced international norms.

1. Human Rights Law:
   26 AIR 2003, SC 2363.
   27 The Constitution of India, art. 21
   28 AIR 1984 SC 667.
   29 Ibid.

8

The courts have frequently invoked International Human Rights Treaties (such as the
ICCPR30 & CEDAW31) to interpret Articles 14, 19, and 21 of the Constitution 32in a
progressive manner.

2. Gender Equality:
   Vishaka v. State of Rajasthan33 SC referred to CEDAW to establish guiding principle
   on sexual harassment at workplace, given the nonappearance of relevant Indian
   legislation at that stretch.
3. Environmental Law:
   T.N. Goda Varman Thirumulpad v. Union of India34
   Judicial bodies have invoked international env. principles and standards, with
   “Precautionary Principle” & “Sustainable Development,” in Public Interest Litigations
   (PILs) related to environmental protection35
   .

ICJ JUDGMENTS AND THEIR AFFECT ON INDIA

ICJ aids as the essential judicial body of UN, recognized by the UN Charter. It resolves
disagreements between nations and offers suggested views on legal matters referred by
legal UN bodies & dedicated agencies. As a signatory of the ICJ Statute, India
recognizes its jurisdiction under specific conditions; however, the domestic
enforceability of ICJ rulings within India presents intricate issues within its dualist legal
framework36
.

Are ICJ Judgments Authoritative?

30
“International Covenant on Civil and Political Rights, 1966, adopted on 16 Dec. 1966 entered into force on
23rd March 1976, 999 UNTS 171”.
31 “Convention on the Elimination of All forms of Discrimination Against Women, adopted on 18th Dec. 1979,
entered into force on 3 Sept. 1981, 1249 Unts 13”
32 The Constitution of India, art. 14, 19& 21.
33
Supra note 4 at 1.
34 AIR 1997 SC 1228
35 T. N Goda Varman Thirumulpad v. Union of India, AIR 1997 SC 1228
36 Contentious cases organized by state, available at: INTERNATIONAL COURT OF JUSTICE ( Last visited
on 25th June, 2025)

9
Article 94(1) [UN CHARTER]:
“Each Member of the United Nations undertakes to comply with the decision of the
International Court of Justice in any case to which it is a party.37”
The decisions by ICJ are considered official only in relation to the entities engaged in
the conflict and exclusively for that specific instance. However, it is central to note that
ICJ judgments hold authority under international law, but they do not automatically
carry the same weight under Indian law.
Given that India adheres to a dualist legal framework, ICJ decisions can’t be imposed
directly in domestic courts, unless there’s local legislation in place to implement them
or the government takes action based on those decisions.

ICJ Cases Including India

1. Kulbhushan Jadhav Case (India v. Pakistan), 201938
   India approached the ICJ after Pakistan sentenced Indian citizen Kulbhushan Jadhav to
   death on charges of espionage.

India argued that Pakistan had violated the Vienna Convention on Consular Relations
39 by denying consular access. The ICJ ruled in Favor of India, determining that
Pakistan had infringed upon Article 36 40of the VCCR.
The Court instructed Pakistan to review and reconsider the conviction and to grant
consular access to Jadhav.

Impact:
India leveraged this ruling to exert diplomatic pressure on Pakistan. However, the
enforcement of the ICJ’s judgment remained contingent upon Pakistan’s willingness to
comply, as ICJ rulings do not possess an automatic enforcement mechanism. In India,
while the judgment was acknowledged and publicly referenced, no domestic legal

37 Charter of the United Nations,1945, art. 94(1)
38 Supra note 5 at 2.
39 Vienna Convention on Consular Rights, adopted on 24th Apr. 1963, entered into force on 19Mar. 1967, 596
UNTS 261.
40 VCCR art. 36

10

measures were activated, reinforcing the notion that such decisions are not self-
executing.

2. Marshall Islands v. India
   Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
   and to Nuclear Disarmament 41

The ICJ dismissed the case on grounds of insufficient evidence to establish a legal
dispute, and therefore did not address the substantive issues.

Impact:
Although case did not yield any direct legal consequences for India, it highlighted the
limitations of ICJ jurisdiction, which is contingent upon the consent of states, and
demonstrated how India strategically manages its international legal engagements.

BROADER IMPACT OF ICJ JUDGEMENTS IN INDIA

Despite the fact that judgments from the ICJ aren’t directly applicable within Indian
courts, they hold significant political, legal, and diplomatic weight. The broader impact
of these judgments on India can be understood through the following key aspects:

1. Strengthening India’s International Image
   India’s participation in ICJ proceedings Kulbhushan Jadhav’s Case, for example,
   illustrates its commitment to upholding a rule-based international order. Engagement
   with the ICJ helps bolster India’s reputation as a law-abiding, responsible global power
   that believes in the peaceful resolution of disputes.
2. Diplomatic Utility
   Even when not binding domestically, ICJ rulings can provide India with robust
   diplomatic tools to negotiate or exert pressure on other nations. Eg: Jadhav case, ICJ
   ruling assisted India for globally shaming Pakistan and demanded that consular rights
   be respected.

41 (2016) ICJ Rep 255

11

3. Influence on Domestic Policy and Legal Reforms
   While ICJ judgments and international legal standards may not be automatically
   binding, they often influence Indian courts, policymakers and legislators. This can lead
   to legal reforms, particularly in sectors pertaining to human rights, environmental law
   & consular practices.
4. Legal Reference and Interpretation
   Indian courts may refer to ICJ decisions as persuasive authority when interpreting
   constitutional rights or international law obligations. Although not binding, such
   references add credibility and an international perspective to domestic judgments.
5. Limitations of Enforcement Highlight the Need for Reform
   The non-binding nature of ICJ decisions under India’s dualist framework also points to
   a gap between international law and domestic enforcement. This has sparked
   discussions around:

Necessity for Change

Change does not roll in on the wheels of inevitability, but comes through continuous
struggle.”
— Dr. Martin Luther King Jr.42
The non-binding characteristic of ICJ rulings within India’s dualist system highlights a gap
between international law and domestic enforcement. This has initiated discussions regarding:
Whether India requires a formal law for treaty implementation. The need for increased
parliamentary oversight in matters related to treaties.
CONCLUSION
In the dynamic landscape of international collaboration, treaties serve a crucial function in
promoting legal consistency and shared accountability among nations. Nevertheless, India’s

42 Martin Luther King Jr., Stride Toward Freedom: The Montgomery Story (Harper& Row, 1958)123.

12

adherence to such treaties is influenced by its dualist legal framework, which distinctly
separates international law from domestic law. Consequently, while India may sign or ratify
treaties on the international stage, these obligations do not automatically gain enforceability
within its borders unless Parliament passes enabling legislation. This arrangement is founded
on constitutional principles such as parliamentary supremacy and federalism, which emphasize
democratic consent over executive authority.43
WAY FORWARD: KEY SOLUTIONS & INSTITUTIONAL REFORMS
Establish a Treaty Implementation Commission

1. A dedicated institutional mechanism should be established to:
2. Monitor India’s treaty obligations.
3. Collaborate with ministries for legal drafting.
4. Oversee delays in legislative action following ratification.
5. Parliament may enact a general law permitting:
6. Automatic incorporation of specific categories of treaties (e.g., human rights,
   environment).
7. Parliamentary review and endorsement within a specified timeframe.
8. Mandatory Timeline for Legislation after Ratification
   Implement policies that:
9. Establish a legislative deadline (e.g., within 1–2 years of ratification).
10. Hold ministries accountable to Parliament for their progress.
11. Strengthen Executive-Legislature Coordination
12. Facilitate pre-ratification discussions in Parliament for significant treaties.
13. Ensure that the executive engages with stakeholders and legal experts prior to
    committing India internationally.
14. Judicial Training & Legal Education
15. Integrate international law more thoroughly into judicial academies and law schools.
16. Promote the development of consistent norms by courts for referencing international
    law.

43 “V.G. Hegde, “ Relationship between International Law and Municipal Law: A study with reference to India”
(1994) 34 Indian JIL 215”

13

9. Enhance India’s Global Legal Standing
   A robust treaty implementation framework will:
10. Enhance India’s credibility in international forums (UN, WTO, ICJ).
11. Position India to spearhead legal reforms in the fields of networking rights, data
    protection & climate change.
    As the eminent universal legal theorist Hans Kelsen observed, “International law is the basic
    norm of the legal order of the world.” By aligning its domestic legal framework with its
    international obligations, India can emerge as a model constitutional democracy that not only
    makes promises but also fulfils them on the global stage.44

• JUSTICE KRISHNAN IYER
  “International instruments can be read into domestic law when they are not inconsistent with
  it.”45

44 Hans Kelsen, Pure Theory of Law (2nd edn, University of California Press 1967)216
45 Supra note 3 at 14

Abstract

This paper addresses the instrumental role of the Supreme Court of India in furthering social justice through Public Interest Litigations (PILs), Judicial Activism and important landmark judgments. The Court has expanded constitutional constructions and liberalized access so that marginalized people receive protection in respect of gender equality, environmentalism and labor interventions through unprecedented decisions such as Kesavananda Bharati, Maneka Gandhi, Vishaka, NALSA, and Navtej Singh Johar have transformed India into something unfamiliar in the socio-legal landscape. We acknowledge that there were numerous advances concerning social justice that were made due to aspects of judicial activism, however there are ramifications caused by activist lawyering which ultimately worry us with respect to judicial overreach. From now on, it is vital for judicial activism to achieve a balance with the constitutional limits, thus realizing meaningful social justice to all posts, rails, and other parts of societies. 

Keywords 

Supreme Court, Social Justice, PIL, Judicial Activism, Landmark Judgments

Introduction 

Social justice is one of the values that the Indian constitution promotes; therefore, it tries to guarantee that the citizens are treated equally and are protected equally, especially those who are marginalized. The Supreme Court of India has developed into a protector of constitutional rights and an advocate for future social reforms through legislative and policy changes. The usage of Public Interest Litigation (PIL) has provided a means for the Supreme Court to engage in judicial activism which has allowed the Supreme Court to intervene in social justice matters both in cases of individuals being deprived of their rights, but also to remedy systemic injustice.

Judicial Role in Social Justice

Guardian of Constitutional Values 

 Adithyan S.R., The Supreme Court’s Role In Shaping Social Equity, IJLLR (Oct. 29, 2024).

The Supreme Court is a guardian of constitutional values via the power of judicial review. The Basic Structure Doctrine was established in Kesavananda Bharati v. State of Kerala, through which democratic features of the Constitution, as well as social justice, can be protected from arbitrary amendment. Through the interpretation and enforcement of fundamental rights (Articles 32 and 226), the Court will ensure that all legally authorized enactments meet the standards of justice, equality, and human rights.

Interpretation Power and Directive Principles 

The judiciary has constantly converted directive principles (Part IV, Indian Constitution) into enforceable rights by broadly interpreting fundamental rights. Through this interpretative power, the Supreme Court has acted on issues relating to education, health, gender justice, minority rights, etc.

Public Interest Litigation 

Concept and growth 

PIL became popular in the late 1970s and 1980s with specific questions raised about marginalized populations who could not access courts, either through lack of knowledge, or of finances. Public interest litigating acts as a way for individuals or groups to petition the Supreme Court or High Courts to achieve justice in public interest even in cases where the petitioners are free from any stigma that would prevent them from accessing courts personally.

Empowering Marginalized Communities 

PILs have played a huge part in bringing to the fore the complaints of the poor, women, scheduled castes and tribes, children, bonded labourers, prisoners, and so on. For example, in Bandhua Mukti Morcha v. Union of India and People’s Union for Democratic Rights v. Union of India, the respective PILs generated judicial intervention against bonded labour and child workers.

Promoting Environmental and Human Rights PILs have addressed a variety of social justice issues, including environmental protection (M.C. Mehta v. Union of India), children’s rights, and protections against custodial torture. The mechanism promotes

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
DrishtiIAS, Mains Practice Questions: Social Justice, (June 10, 2025).

K. Shiv Sidharth, Judicial Governance in India and Its Implications for Social Justice, CNLU Law Review (Jan. 2022).

Sleepy Classes, Public Interest Litigation: A Tool for Social Justice in India, (Oct. 29, 2024).
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.
M.C. Mehta v. Union of India, AIR 1987 SC 1086.

being accountable to the government and helps create new methods of justice that utilize participatory justice, rather than adversarial litigation.

PILs and Women’s Rights

The Court has used PIL for women’s issues like sexual harassment, rape, and trafficking. Many would remember Vishaka v. State of Rajasthan where the Court issued the Vishaka Guidelines, in which the Court made a law for the workplace dealing with sexual harassment in the absence of one.

Judicial Activism: Concept and Impact 

Meaning of Judicial Activism 

Judicial activism is the proactive engagement of the judiciary to enforce the law pursuant to its constitutional authority to adapt and interpret the Constitution to address changing social needs. In India, one can identify activism because of the willingness of the Court for a variety of public interest issues, and a more liberal reading of constitutional provisions.

Notable Examples 

• Maneka Gandhi v. Union of India — redefined ‘right to life and personal liberty’ (Article 21) to include procedural fairness.
• Golaknath v. State of Punjab — held that Parliament could not amend Fundamental Rights.
• Sunil Batra v. Delhi Administration — prohibited custodial torture and upheld dignity of prisoners.

Activism and Policy Shaping 

Judicial activism has influenced policies related to transgender rights (NALSA v. Union of India) and homosexuality decriminalisation (Navtej Singh Johar v. Union of India) by bridging legislative debates and influencing government action.

BYJU’S, Judicial Activism, (Feb. 16, 2024).
Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
Golaknath v. State of Punjab, AIR 1967 SC 1643
Sunil Batra v. Delhi Administration, (1978) 4 SCC 494.
NALSA v. Union of India, (2014) 5 SCC 438.
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Landmark cases in Judicial Activism 

1. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
2. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
3. NALSA v. Union of India, (2014) 5 SCC 438.
4. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
5. Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
6. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
7. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
8. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494.
9. M.C. Mehta v. Union of India, AIR 1987 SC 1086.

Challenges and Criticisms 

Following are the challenges and criticisms ,

• Risks of judicial overreach into the purview of the other branches
• Resistance to implementation by bureaucracy slows the process.
• Frivolous PILs diminish credible advocacy.

Conclusion

The Supreme Court of India has played an important role in the advancement of social justice through public interest litigation (PILs) and judicial activism, from redefining the boundaries of constitutional protections, to speaking for the voiceless and inducing policy change. Landmark judgments have dealt with questions of caste, gender, labor, environment, and fundamental rights, redefining India’s legal landscape to reflect principles of equality and dignity.

Right to Privacy

Right to privacy has been talked about by great philosophers like Aristotle where they drew a discretion among the acts of a person in the public and private space respectively. The term “Right to Privacy” was coined by Warren and Brandeis[1] in their paper titled ‘right to privacy’ in 1890s when the print media just came on track and the use of cameras were started. They thought publication of pictures can hurt the right to privacy of the citizens 

Evolution of right to privacy in India

Right to privacy finds its roots from the R M Malkani v State of Maharashtra[2] in which the phone of the plaintiff was being tapped, the court said that it will protect the telephonic conversations of the innocent people but this protection will not be provided, to the person found guilty of the offence. Though this was a precise judgement only dealing with the phone tapping thing it initiated the talks on the Right to privacy in India.

Then in 2017 a full-fledged judgement was given by the Hon’ble supreme court on the right to privacy. In the case of Justice K. S. Puttaswamy. vs Union of India[3] by a nine-judge constitutional bench. This case came up as a writ after in the Aadhar case the attorney general stated that there was no clarity about Right to privacy being a fundamental right the attorney general cited the Kharak Singh case[4] and the M.P. Singh case[5].  To check the validity of these cases the three-judge bench referred it to a nine-judge constitutional bench. The bench over ruling both of these cases said that right to privacy is a fundamental right and comes under the Article 21 that is right to life and personal liberty.

Anti CAA protests- A brief overview of the situation

In 2019, just after the introduction of Citizenship Amendment Bill there were a lot of protests going on in the whole. Many of them even turned violent and lead to a mass destruction of public property.[6]

Amid of all this the Uttar Pradesh government came up with a solution which they thought was a suitable method to curb these protests. After the violent protests in Lucknow on 19 December 2019 some of the people were video graphed and many of them were sent a notice that if they do not pay compensation for the loss suffered by the public their property would be taken away by the government. The protesters had filed an appeal against the notice which they received. On 6th March 2020 the district administration and the police administration of Lucknow city decided to hang the posters of around 60 protesters with their image, name, address and some other personal details on the main signals of Lucknow city. The poster basically said that these people were liable for the loss of public property in the protests that took place on 19 December 2019 and they ow a lump sum amount to the government for the loss caused to the public property.[7]

Suo moto cognizance by Allahabad High Court

The High court of Allahabad took the Suo moto cognizance of this matter on 8 march 2020 the bench of two judges headed by Hon’ble Chief Justice of the state Govind Mathur and Justice Ramesh Sinha and called upon the District Magistrate and the Commissioner of police of Lucknow city they were represented by the Advocate General of the State.

Advocate general contended that the PIL can not sustain on the following grounds:

• The court does not have territorial jurisdiction as the erection of banners took place in Lucknow and not Allahabad.
•  The court should take this PIL as the people who are on the poster do not belong to the marginalized section of the society. They are capable to raise their own complaint.
• The people whose posters are erected are wrongdoers and the court should not interfere when such good initiative is by taken the state.
• This case should be taken by a divisional bench and not a single bench as it is a PIL.

The High court of Allahabad giving its judgement said that

• It has the territorial jurisdiction as the main cause of action in not the personal injury which the people will face but the injury to the constitutional rights caused by this “shameless” act of the administration. Also, administration of various other parts of the state like Meerut were allegedly planning to the same thus there can be no question on the territorial jurisdiction.
• The court talked about the separation of power and said that when there is a gross violation of fundamental right being done by any of the two organs judiciary has the power to stop them from doing so. In this case the fundamental right was violated which is not acceptable and the court can take Suo moto cognizance.
• The court said that it is good that the state wants to punish the wrong doer and curb crime in the state but it has no right to violate any fundamental right of the citizens.

Hon’ble bench also said that there in no such provision in Criminal procedure code which can give permission to the police to publish images of the accused. At most they can only take a picture of the accused.

Then the High court of Allahabad checked the legitimacy of the poster for this it performed the following tests:

• Necessity of the society: Whether it was a necessity of the society to know them. The High Court said it found nothing which made it necessary for the people of the state to know these people.
• Legitimate Aim: According to the High Court there was no legitimate aim behind the erection of such posters.
• The object that the government wants to reach and the means applied for it should be proportionate: In this case the object was to stop people from doing illegal activity the HC said that in this case why only the poster of 60 odd protestors were there when lakhs of people in Uttar Pradesh were accused for the riots.

The court finally ordered that all these posters should be removed as soon as possible.[8]

[1] Wikipedia https://en.wikipedia.org/wiki/The_Right_to_Privacy_(article) July 3 2021

[2] R M Malkani v State of Maharashtra (1973) 1 SCC 471

[3] Justice K. S. Puttaswamy. vs Union of India (2017) 10 SCC 1

[4] Kharak Singh v, State of U.P. & others 1964 SCR (1) 332

[5] MP Sharma v. Sathish Chandra (1954) SCR 1077

[6] India Today https://www.indiatoday.in/india/story/lucknow-news-citizenship-amendment-act-protest-stone-pelting-tear-gas-1629687-2019-12-19 July 3 2021

[7] The Wire https://thewire.in/law/allahabad-hc-takes-cognisance-of-hoardings-with-names-photos-of-anti-caa-protesters July 3 2021

[8] In-Re Banners Placed on Road Side in The City of Lucknow v. State of U.P., PIL No. 532 of 2020 (Allahabad High Court, March 9 2020)

Abstract:

This article is an analytical research on the power of appropriate government to reducing the punishment of life imprisonment, imposed by the Court on the offenders, mentioned under Section 55 of the Indian Penal Code. The author has tried to summarize the provision and the ambit of this section and its application in certain cases. The description in this article solely focuses to help develop an understanding towards ‘why would such a law exist?’ and ‘what could possibly be the reason for such commuting of punishment of the wrongdoers?’. It focuses on the essence of the law and the powers it grants to the appropriate government.

Body:

The Section 55, Commutation of sentence of imprisonment for life, as mentioned in the Indian Penal Code, specifies that, “In every case in which sentence of imprisonment for life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years.” Deriving the meaning and essence of this law in common words, it means that, in cases where the sentence of imprisonment for life has been announced by the Court, the appropriate government (meaning, central government or the government of the state)1, without the consent or consultation of the offender, reduce the punishment to less than fourteen years of imprisonment. This new punishment imposed by the appropriate government may either be rigorous imprisonment2 or simple imprisonment. The punishment of life imprisonment when announced by the court, means, till the natural death of the person, he/she shall remain in prison. It is the power of the appropriate government to exercise its power in commuting this punishment into any term which shall not be more than fourteen years.

Sentence of life imprisonment is given in different types of offences:

Firstly, in offences where the last punishment that can be given by the court is the death penalty. E.g., in cases of murder.

Secondly, in offences where the last punishment that can be given by the court is the life imprisonment. E.g., in cases of dowry death.

1 https://www.lawinsider.com/dictionary/appropriate-government

2 https://www.business-standard.com/article/pti-stories/rigorous-or-simple-imprisonment-for-lifers-sc-to- examine- 112101000502_1.html#:~:text=A%20person%20sentenced%20to%20simple,labour%20during%20his%2Fher% 20term.&text=Hence%20in%20the%20absence%20of,to%20rigorous%20imprisonment%2C%20he%20conten ded.

And thirdly, in offences where the Court has given the death penalty to someone for an offence. Later, this punishment is commuted into life sentence.

It is in the first two types of cases that the appropriate government can exercise this power over the decision of the court.

The cases falling under the conditions of first and third examples mentioned above, are dealt with the procedure provided under Section 433 A of the Criminal Procedure Code. This section of the Cr.P.C. adds clarity to section 55 of IPC by stating that, “notwithstanding anything contained in section 432, where the sentence of imprisonment for life is imposed on the conviction of a person for an offence for which death is one of the punishment imposed by laws, the sentence of death imposed on a person has been commuted under section 433 into one of the imprisonment for life, such person shall not be released from prison, unless he has served at least fourteen years of imprisonment.”3 It means that in cases where death penalty could be imposed but instead the Court gave the sentence for life imprisonment, or in cases where the punishment of death penalty has been reduced to life imprisonment, the offender compulsorily has to be in detention for not less than fourteen years and cannot be released, even by the appropriate government, before the completion of fourteen years of imprisonment.

On reading section 55 of IPC and section 433 of Cr. P. C, together, it can be concluded that, in cases where death penalty remains an option of punishment, the offender is bound to remain in prison for at least 14 years and cannot be released from prison even by the appropriate government. In cases where the maximum punishment of the offence committed by the offender is life imprisonment, E.g., in the offence of rape, the minimum punishment by the Court to the offender can be seven years and the maximum may be life imprisonment,4 the appropriate government can reduce the punishment of the offender from life imprisonment to less than fourteen years, i.e., 13 or 12 or 9, etc. years, but this relaxation shall not be less than the minimum time specified in the law, i.e., for the offence of rape, the appropriate government cannot release the offender before completion of the minimum tenure of punishment recommended, i.e., seven years. Similarly, in cases of offence of dowry death, Section 304 B of the Cr, P. C. specifies that, “whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life,”5 the appropriate government cannot reduce the punishment of the offender to be less than the minimum tenure as mentioned in the law, i.e., seven years.

3 https://indiankanoon.org/doc/237247/

4

https://www.advocatekhoj.com/library/bareacts/criminallawamendment/9.php?Title=Criminal%20Law%20%2 8Amendment%29%20Act,%202013&STitle=For%20sections%20375,376,376A,%20376B,%20376Cand%20376D

%20of%20the%20Penal%20Code,%20the%20following%20sections%20shall%20be%20substituted,%20namely #:~:text=376.,also%20be%20liable%20to%20fine.

5 https://www.indiacode.nic.in/show-

data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=342#:~:text=(2)%20Whoever%20commi ts%20dowry%20death,extend%20to%20imprisonment%20for%20life.%5D

Conclusion:

This law restores the power of the appropriate government to commute the punishment of life imprisonment of an offender, given to him/her by the Court, and reduce it to a tenure of less than fourteen years and more than the minimum punishment recommended in specific laws. The appropriate government takes a step like this only when it finds the offender to be improving and proving to be fit for the society again. This provision exists in the law system of India in order to ensure continued beliefs of its citizens in rehabilitation and restoration of humanity in offenders.