The Supreme Court’s order “keeping in abeyance” the 2026 University Grants Commission (Promotion of Equity in Higher Education Institutions) Regulations is yet another unfortunate example of hugely consequential judicial decisions that take the form of unreasoned interim or “stay” orders. The UGC Regulations – themselves the outcome of public interest litigation – had been issued earlier this month with a view to tackling discrimination (and specifically, caste-based discrimination) in higher education institutions (HEIs). These Regulations were challenged, primarily on the basis that the definition of “caste-based discrimination” was asymmetrical, in that it only envisioned Scheduled Castes, Scheduled Tribes, and Other Backward Classes being the victims of discrimination, while excluding Upper (“General”) Castes from protection.
To anyone with even a passing acquaintance of Indian constitutional doctrine, this argument is a non-starter (and that’s putting it kindly). Ever since the judgment in N.M. Thomas, delivered fifty years ago, substantive equality has been the bedrock of Indian equality and non-discrimination jurisprudence, especially when it comes to caste. For example, after N.M. Thomas, reservations are not thought of as exceptions to the rule of equality, but as integral elements of it, because their purpose is to address systemic and structural barriers that exist and operate asymmetrically and to the specific detriment of SC/ST/OBCs. Similarly, the Prevention of Atrocities Act operates asymmetrically – extending protection only to SCs and STs – because it understands the straightforward reality that caste atrocities are asymmetric. Nor is India alone in this: across the world, discrimination codes and hate speech codes are asymmetric, because they are built upon the understanding that discrimination is a function of power relations within society, and the ability of some to use their power to the detriment of others. Indian judgments themselves have built upon N.M. Thomas for the last fifty years, and it is too late in the day to suggest that a caste-discrimination code operating asymmetrically is unconstitutional.
Perhaps unsurprisingly, therefore, the Court records this submission of the petitioners, but does not base its stay order upon it; indeed, doing so would have entailed undermining by stealth (or what lawyers call sub silentio) the last five decades of Indian equality jurisprudence. That is not something the Court appears to be willing to do, or at least not yet. But then, on what basis does it take the very consequential decision of staying the Regulations? Significantly, the Court does not even advert to the well-established rules for granting a stay: that of (a) a prima facie case, (b) irreparable injury should a stay not be granted, and (c) the balance of convenience weighing in favour of the petitioners. As I have noted in the first sentence of this post, this is unfortunately part of a dominant trend now where the Court grants or refuses a stay without applying the relevant law in support of its determination (see here). This assumes even greater significance because of the delays endemic in our system, where a final decision is not going to be forthcoming for quite a while (for example, the next date of this case is now in March, and you can rest assured there will be no adjudication on that date either). This being the case, stays assume the character of permanence, or of a final judgment, thus making the need for a reasoned, in-depth order even greater. Unfortunately, however, the Court appears to be going in the opposite direction – or, to quote its own language in the order – “regressing.”
In the absence of legal reasoning, we must extrapolate. In paragraph 5, the Court says that some provisions of the Regulations “suffer from certain ambiguities, and the possibility of their misuse cannot be ruled out.” Some might argue that this is the basis of the stay. But it cannot be so: time after time after time – and especially in civil rights cases – the Court has said that the “possibility of misuse” has nothing to do with the constitutionality of a provision, and the remedy for abuse is to approach the authorities, instead of a declaration of unconstitutionality. Assuming that the Court is acting in good faith, it cannot be that the “possibility of misuse” is not a ground in civil liberties cases, but suddenly becomes a ground in this case.
The Court then says that based on its prima facie analysis, there are certain “substantial questions of law” that have arisen, and which must be examined. Alright. However, as noted above, the mere existence of substantial questions of law is no ground for a stay; if that was the case, then – just to take one example – all of the Aadhaar Act and Rules should have been stayed for all the years that it took the Court to adjudicate their constitutionality. Of course, the Court did no such thing. It would also mean – in future – that if a petitioner can demonstrate that a constitutional challenge raises “substantial questions of law,” there should be a stay on the law. As everyone knows, that is not going to happen.
Furthermore, a close look at the four questions framed by the Court reveals that even taking them at face value, they reveal no case for a stay. Let’s deal with them in reverse order. The Court’s fourth question is whether the absence of “ragging” in the Regulations amounts to a “regressive and exclusionary legislative omission.” With respect, this is a non-starter. “Ragging” is dealt with under separate UGC Regulations, which have not been excluded by the 2026 Regulations (the 2026 Regulations only replace the 2012 Regulations of the same name, not every UGC Regulation in existence). The Court’s third question is whether the use of the word “segregation” in Regulation 7(d) amounts to a “separate but equal” measure. This is also, with respect, a non-starter, for several reasons, the first of which is that the Regulation does not mandate “segregation”, but only notes that if there is “any selection, segregation, or allocation for the purpose of hostels, classrooms, mentorship groups, or any other academic purposes,” then it has to be done on a transparent basis. Secondly – and more importantly – the use of the words “selection, segregation, or allocation” together make it very clear what this Regulation is referring to: for instance, something like specialised SC/ST scholarships, or minority mentoring programmes, and the like. To get from here to late 19th century American Jim Crow laws (which is where the phrase “separate but equal” comes from) is – to put it very politely – something of a stretch. Thirdly, even if there is a problem with the word “segregation”, the answer is surely to stay any segregation in pursuance of the Rules, and not the entirety of the Rules themselves. That is how it has always worked.
The Court’s second question is whether the definition of “caste-based discrimination” will have an effect on sub-classification. This is, with respect, a red herring, because sub-classification is an element of reservations jurisprudence, and – to repeat a point above – the doctrine of sub-classification does not mandate governments to sub-classify for the purposes of reservation, it only permits them to do so. Therefore, it is unclear how sub-classification has any relevance to the UGC Regulations, which are about discrimination. The Court goes on to question whether the Regulations effectively protect extremely backward classes (EBCs); but – assuming for a moment that they do not – its answer defies logic, because what it does is to stay these Rules and revive the 2012 Rules, which also have nothing to say about sub-classification and the EBCs!
Finally, the Court’s first question is whether there is a need for a separate definition of “caste-based discrimination”, given that the Regulations already define “discrimination” exhaustively, and given that there is no separate redressal mechanism for caste-based discrimination in the Regulations. Once again, the answer to this question is to be found in the Court’s own previous jurisprudence where laws and rules have been upheld, which it appears not to have engaged with here: which is that it is well within the competence of the legislature to recognise a specific, and particularly serious, subset of harm within a broader category of legislatively-defined harm. The Regulations define “discrimination” in an exhaustive and inclusive sense. They also define “caste-based discrimination” as a specific instance of discrimination that is marked by whom it targets: that is, SCs, STs, and OBCs. The Court’s objection here seems to be that the Regulations only define, and do not go beyond. That might be a policy call for strengthening the Regulations; it is certainly not a legal argument for unconstitutionality.
Ideally, after having framed these four questions, the Court would have explained why, on an application of the three-pronged test for stay to each question, a case was made out for keeping the Rules in abeyance. Because it did not do so, in this blog post, we have been forced to carry out a somewhat strange exercise, where we have set out what might be the arguments if they were to be made, and then countered them ourselves. It’s a bit like being both proposition and opposition in a debate: not ideal, but nor have we been left with much of a choice. The point, however, remains: increasingly, a significant part of the Court’s most consequential activity is taking place without the fundamentally important element of public reasoning. The fact that many of these orders are passed in the context of highly politicised cases (such as the present one) only heightens the need for public reasoning that can withstand scrutiny; its absence is a significant loss, both for constitutional adjudication, and for the ability of the public to hold the Court accountable for its decisions.