Editor’s Note: This blog post is based on the oral order, handed down by the Supreme Court, during proceedings on 11th March, 2026. It will be updated once the written order is uploaded by the Supreme Court, and made available.
In medieval England, there existed something called a “bill of attainder.” A bill of attainder refers to legislation “that declares an individual or group guilty of misconduct or a crime and imposes punishment without the benefit of a judicial proceeding.” Bills of attainder were enacted by the medieval English parliament to “deal with” people that the legislature really did not like, and their purpose was to visit severe consequences (such as deprivation of property, or even of life and liberty) without the inconvenience of a judicial trial (see here).
Bills of attainder were considered an anathema, and were abolished with the advent of the 18th century. Legislation, by its very nature, was meant to be general in nature, and not targeting specific individuals with punishment (in modern democracies, such a thing could only be done after a trial, conducted under the aegis of an independent judiciary). Modern India saw one curious attempt at a (reverse) bill of attainder, when Indira Gandhi’s voided election to Parliament was sought to be validated by the 39th Amendment. This was struck down by the Supreme Court in Indira Nehru Gandhi vs Raj Narain, on grounds of violation of the basic structure.
Today’s Supreme Court order in the suo motu NCERT textbook case has created a new and paradoxical concept: a judicial bill of attainder. Previously, on this blog, we had discussed the Supreme Court’s order banning the NCERT Class VIII textbook that had a chapter on “judicial corruption,” under the heading “Can the Supreme Court ‘ban’ a book?” Today, the Court has gone beyond banning the book, and has also banned people: in particular, the three individuals who had authored the chapter in question. The relevant part of the Court’s, as handed down orally in Court, stated that:
“At the outset we have no reason to doubt that professor Michel Danino along with Ms Diwakar and Mr Alok Prasanna Kumar either does not reasonable knowledge about Indian judiciary or they deliberately knowingly misrepresented the facts in order to project a negative image of Indian judiciary before students of class 8 who are at an impressionable age. There is no reason as to why such persons be associated in any manner with preparation of curriculum or finalisation of text book for the next generation. We direct union, all states, all institutions recieving state funds, to disassociate them from rendering any service which would mean payment to them from public funds. This is subject to them approaching this court for seeking modification after tendering their response.”
It should be immediately obvious that banning an individual from a certain type of employment is a coercive act that infringes their constitutional rights (in particular, their freedom of trade under Article 19(1)(g) and their right to livelihood under Article 21). The Supreme Court’s order thus raises two important questions of jurisdiction. The first is the exact question that we had raised in our previous post: namely, that the Constitution does not authorise the restriction of fundamental rights through judicial decree. Fundamental rights can be restricted only by law, and judicial orders do not constitute “law” for the purposes of the fundamental rights chapter. The constitutionally-assigned task of the Court is to judicially review legislative action restricting fundamental rights for compliance with the Constitution, not to restrict rights itself (from which, of course, there is no review). In a comment to that post, a reader had pointed out that the book ban might be justified under the Court’s contempt powers; whatever the merits of that view, it is clear that contempt powers do not authorise the Court to deprive an individual of employment.
The second point is that this punishment has been visited upon the three individuals without any clarity about what law they have broken, without a charge or a trial, without a hearing, and without a judgment. In essence, the Supreme Court has created a punishment without a law or a process. In other words, this is a judicial bill of attainder: the punishment of an individual, or individuals, purely through judicial decree. And here is both the paradox and the tragic irony: bills of attainder were deemed to be an anathema precisely because it was widely believed that in a modern society, an individual can be punished only if they are found in breach of a pre-existing general law, by an independent judiciary, after due process. What the Court has done here is to take the form of the bill of attainder, and clothe it with judicial power.
The Court’s order invites the three individuals to apply to the Court for a modification of the order – presumably, to “explain” themselves. This does not make the order legal or palatable. To start with, it inverts the fundamental principle that an individual ought not to be punished before a hearing by first delivering the punishment, and then asking the individual to come and explain why they should not be punished. Even in departmental enquiries, there is first a show-cause notice, then a defence, and finally a verdict. If, tomorrow, a department was to fire an employee and then issue a notice asking the employee to justify why they should not be fired, presumably this very court would strike it down for violating administrative law. And secondly, even a hearing does not cure the fundamental absence of jurisdiction, and the fact that this remains, at its core, a judicial bill of attainder: punishment by judicial decree, without law or legal process.
Banning books and banning people is not what constitutional courts are established for, and they form no part of a constitutional court’s remit – no matter how offensive the court may find a particular book, or how odious it may find a particular person. Judicial outrage cannot be a substitute for constitutionalism; to make it so would be to set both the rule of law, and constitutionalism, adrift without anchor.