Prologue
It is ironical but correct — under the Indian fiscal landscape, on one side tax officers are not considered police officers,1 yet simultaneously, by law, tax officers are empowered to arrest,2 which is essentially a police function. Tax officers, being governed by their administrative regulations and the fiscal legislations, therefore, follow their own sets of practices and procedures unlike the police officers who are bound to carry out their functions of investigation, search, arrest, etc. in strict compliance with the criminal procedure laws. There are legal consequences of this dichotomy particularly qua the constitutional rights of persons and judicially enshrined doctrines pioneering safeguards of the accused persons. Thus, it becomes imperative to reconcile the scope, manner and oversight of the tax officers’ arrest powers to ensure that overarching constitutional ideals of “rule of law”3 and “due process”4 prevail. Such a reconciliation attempt has been carried out in a recent decision of the Supreme Court, the contours and implications of which are dissected in this article.
Dispute before the Supreme Court and its decision
A large number of writ petitions were filed before the Supreme Court inter alia challenging the validity of the statutory provisions conferring upon the tax officers the power to arrest persons. These petitions were heard together under two broad categories dealing with powers of Customs Officers and Goods and Services Tax (GST) Officers under their respective enactments i.e. Customs Act, 1962 and the Central Goods and Services Tax Act, 2017. In its decision in Radhika Agarwal v. Union of India5 the Supreme Court has rejected the challenge to the validity of the provisions, being of the opinion that there is no lack of legislative competence in the enactment of these provisions.6 However, explaining the legal position qua the powers of the tax officer to arrest persons versus the rights and entitlements of such arrested persons, the Supreme Court has laid down extensive guidelines on the manner in which the power of arrest must be exercised by the tax officers. Drawing richly from the Criminal Procedure Code, 1973 and the jurisprudence flowing from arrest powers under the Prevention of Money-Laundering Act, 2002 (PMLA) the Supreme Court has inter alia set out: (a) the obligations of the tax officer carrying out the arrest; (b) the rights of the person so arrested; and (c) scope and standard of judicial review to be adopted by the court when an arrest made by a tax officer is challenged before it.
Arrest only for cognizable and non-bailable tax offences
Categorically declaring that arrest powers can be exercised by the tax officers are available only to the extent permitted by the statute, the Supreme Court has followed its earlier decision in Om Prakash v. Union of India7 to declare that the officers can arrest only in the event the offence being complained of is a cognizable8 and non-bailable one. To this end, the Supreme Court has identified the provisions in both the Customs Act, 1962 and the Central Goods and Services Tax Act, 20179 that specifically declare which of these offences are cognizable and non-bailable, only in such cases the tax officers have the empowerment to carry out arrest and in other cases they cannot effectuate arrest.
Besides the fact that this legal declaration implies that a person cannot be arrested by the tax officers for any or every contravention of the Customs Act, 1962 and Central Goods and Services Tax Act, 2017, it is also pertinent to highlight that not all tax laws carry such provisions. For illustration, the erstwhile sales tax/value added tax (VAT) laws did not have any such provision. Similarly, the Income-tax Act, 1961 does not envisage any power of arrest by Income Tax Officers with a similar statutory scheme. In other words, the tax officers’ power of arrest is not inherent or omnibus and is instead only limited to specific situations under the Customs Act, 1962 and the Central Goods and Services Tax Act, 2017 in the fiscal paradigm.
Obligation of tax officers carrying out the arrest and corresponding rights of accused
Holding that Customs Officers are not police officers10 and hence, the framework governing exercise of powers by police officers does not apply to cases of arrest effected by the Customs Officers, nonetheless in its decision the Supreme Court has opined that certain judicial protections are warranted given that protection against arbitrary arrest “promotes and protects the life and liberty of citizens” besides furthering “the constitutional and statutory rights of citizens”. Thus, judicially incorporating the effect of various statutory provisions governing arrest by police officers and those operating under the PMLA, in this decision the Supreme Court has crystallised the following legal position to be followed by the Customs and GST Officers carrying out the arrest, which corresponds to legal rights now being available to those being arrested:
1. A statutory duty is enjoined on officers to inform the arrestee about their grounds of arrest.11 These grounds of arrest must be given in writing to the arrestee before he is produced before the criminal court because such service of grounds “enables the accused to contest and challenge his arrest and seek bail from the court”, the non-compliance of this mandate shall deprive the accused of his right to bail.12
2. Officers making an arrest are required to bear an accurate, legible, and clear indication of their names to facilitate ease of identification by the arrestee.13
3. A person arrested by a Customs Officer has the right to meet an advocate of his choice during interrogation, but not throughout interrogation.14
4. Every tax officer making an arrest shall forthwith give information regarding such arrest and place where the arrested person is being held to any of his friends, relatives, or other person as may be disclosed or nominated by the arrested person for the purpose of giving such information.15
5. Customs Officers must maintain case diaries with details of investigations and statements recorded by the arrested person, such that the court concerned can review the progress and decide on further incarceration or bail to the arrested person.16 They “must also maintain records of their statutory functions including details like the name of the informant, name of the person who has violated the law, nature of information received by the officers, time of arrest, seizure details, and statements recorded during the course of detection of the offence(s)”.17
6. The arrested person must be informed of this right. The details of compliance with this mandate must be entered into the diary maintained by the Customs Officer. It is the duty of the criminal court, when an arrested person is produced, to satisfy himself that these requirements have been complied with.18
7. It shall be the duty of the person having custody of the arrested person to take reasonable care of their health and safety.19
In addition to these, taking judicial notice of the administrative instructions issued by the Central Board of Indirect Taxes20 which entail guidance to be observed by officers while effecting arrest, the Supreme Court has further directed that the procedure and safeguards set out in the instructions shall also apply.21
What constitutes valid arrest?
Seeking to further ensure against arbitrary exercise of arrest powers, the Supreme Court has also set out judicial guidelines on the thresholds and minimum standards to be observed before a tax officer decides to arrest a person. These guidelines were inter alia necessitated in view of the Court’s perception that “the power to arrest a person without a warrant and without instituting a criminal case is a drastic and extreme power”.22 To this end, the Supreme Court has extended the guidelines declared by it earlier in context of arrest under the PMLA in Arvind Kejriwal case23, having noticed that the arrest provisions under the Customs Act, 1962 and the PMLA are similarly worded.24
Furthermore, the Supreme Court in Radhika Agarwal case has further declared that courts can judicially review the legality of arrest. In fact, the decision declares that “judicial review is permissible both before and after criminal proceedings or prosecution complaints are filed”.25 This is because of the following reasons, which in turn are also valuable grounds on which the arrested person can challenge the arrest:
1. Power of arrest is not unconditionally available to an officer. It is “fenced with certain preconditions. These preconditions act as stringent safeguards to protect the life and liberty of individuals”.26
2. The conditions which must exist before a person can be arrested by a tax officer are: (i) the officer must have material in his possession; (ii) on the basis of such material, the officer should form and record in writing, “reasons to believe” that the person to be arrested, is guilty of an offence punishable under the Customs/GST Act; and (iii) the person arrested must, as soon as may be, be informed of the grounds of arrest.27
3. A tax officer can be considered to have a “reason to believe” if he has sufficient cause to believe that thing but not otherwise; this represents a more stringent standard than the “mere suspicion” threshold.28
4. The “reason to believe” must also establish inter alia: (i) why the actions of the person constitute a cognizable and non-bailable offence (as contrasted from other offences); (ii) “why an arrest is being made in a specific case, particularly given the specific severity assigned to the offence by the legislature”; (iii) how the monetary thresholds outlined in the law are breached, which “must include a computation and/or an explanation, based on factors such as the goods seized, from which a conclusion of guilt can be drawn”; etc.29
5. It is necessary, post arrest, that not just “grounds of arrest” but also “reasons to believe” are shared with the persons arrested. This is required “such that they can challenge the legality of their arrest”, though “exceptions are available in one-off cases where appropriate redactions of “reasons to believe” are permissible”.30
6. Arrests cannot be made arbitrarily on the whims and fancies of the authorities.31 The “materials” on which the tax officer decides to arrest a person must be such that they are “admissible before a court of law”. The reason for such position is that the office concerned “is required to arrive at a conclusion of guilt based on the ‘material’ examined and such guilt can only be based on admissible evidence”.32
7. Most critically, the tax officer making the decision to arrest “is also required to look at the whole material and cannot ignore material that exonerates the arrestee. A wrong application of law or arbitrary exercise of duty by the designated officer can lead to illegality in the process”.33
Pithily put, extraneous considerations, personal knowledge of officer, etc. cannot be basis for arrest, which can only be based on tangible material which is admissible in a court of law to obtain a conviction of guilt of such person qua such offence for which arrest has been made.
Anticipatory bail and disapproval of arrest power as a means of coercion
Declaring that its earlier contrary decisions34 “should not be treated as binding”, the Supreme Court has declared that anticipatory bail is available even in such cases of arrest by tax officers subject to satisfaction of judicially declared tests for grant of anticipatory bail.35
Furthermore, taking note of the facts and figures to that effect, the Supreme Court declared that tax officers cannot threaten persons with their power to arrest so as to coerce them into making illegal payments.36 Referring to a departmental instruction37 which evidenced that such instances were indeed the order of the day, the Supreme Court declared that “authorities must exercise due care and caution as coercion and threat to arrest would amount to a violation of fundamental rights and the law of the land”; with a further direction that “the Central Board of Indirect Taxes and Customs promptly formulate clear guidelines to ensure that no taxpayer is threatened with the power of arrest for recovery of tax in the garb of self-payment”.38 Opening doors for judicial vindication of such grievances by the taxpayers, the Supreme Court has further clarified that “in case there is a breach of law, and the assessees are put under threat, force or coercion, the assessees would be entitled to move the courts and seek a refund of tax deposited by them”; and “department would also take appropriate action against the officers in such cases”.39
However, the Supreme Court, partially modifying a Delhi High Court decision40, has clarified that arrest of a person need not always await adjudication quantifying the quantum of the tax evaded or erroneously refunded or input tax credit wrongly availed. In other words, tax officer can arrest a person even before a formal order of assessment quantifying the tax liability is passed against such person.41
Furthermore, the Supreme Court has also dehyphenated the statutory provision for compounding of offences as not coming into way of the tax officers’ power to arrest persons.42
Standard of judicial review to appreciate validity of arrest
Besides setting out the legal standards to be observed by the tax officer determining the need to arrest a person, the Supreme Court has also set out the parameters of judicial review to be exercised by courts when an arrest made by a tax officer is challenged before them. The Supreme Court has made it plain that an “error made by a Customs Officer can lead to a frustration of the constitutional and statutory rights of the arrestee”43 and hence, its judicial review is mandatory. On this aspect, because the majority opinion has been supplemented by a concurring opinion, it is expedient to separately examine the facets of the manner in which judicial review to be carried out in cases of arrest by tax officers.
The majority decision has set out the following parameters for judicial review of such arrest vis-à-vis the criminal courts:
(A) The Court can only examine whether based upon the “material” available with the tax officer, such officer had “reasons to believe” that the arrestee is guilty of an offence under the cognizable and non-bailable offence.44
(B) It is noteworthy that the scope of judicial review at this stage is limited; “judicial review does not amount to a mini-trial or a merit review”; if “adequate and due care is taken by” the tax officer “to ensure that the ‘reasons to believe’ justify the arrest”, then the arrest will not be invalidated; to clarify, “doubts will only arise when the reasons recorded by the authority are not clear and lucid, and therefore a deeper and in-depth scrutiny is required”.45
(C) Courts can also employ the “doctrine of proportionality” to determine whether the arrest was valid or not.46 Thus, the criminal courts are enjoined to inter alia examine: (i) whether the arrest had a legitimate aim/purpose; (ii) whether it had a rational connection with the aim/purpose; (iii) whether it was necessary to arrest and if there was a less restrictive alternate measure that was equally effective for the tax officer to achieve the objective; and (iv) whether continued arrest of the person in the specific circumstances is an appropriate balance between the fundamental right of the arrested person and the aim/purpose being pursued by the tax officer.
The concurring opinion sets out the standard of appreciation to be adopted by constitutional courts when an arrest is challenged before them:
(A) Upon a review of its provisions, it is clear that “the Constitution permits both punitive and preventive detention provided it is according to the procedure established by law made for the purpose, and if both the law and the procedure laid down by the law, are valid”.47 Thus, the extraordinary powers of the constitutional courts must be used sparingly and in the extraordinary circumstances because “the court is expected to take into consideration the nature of right infringed, the scope and object of the legislation under which such arrest or detention is made, the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked, etc.”48
(B) By distinguishing the role of the criminal court reviewing the exercise of arrest power vis-à-vis the standard of judicial review to be adopted by a constitutional court exercising its extraordinary writ jurisdiction under Articles 32 and 226 of the Constitution, the concurring opinion clarifies that the latter’s “judicial intervention is warranted only in exceptional circumstances when the arrest is prima facie found to be mala fide; or is prompted by extraneous circumstances, or is made in contravention of or in breach of provisions of the statute concerned; or when the authority acting under the statute concerned does not have the requisite authority, etc.” In other words, the threshold for invocation of extraordinary remedy before constitutional courts has been set very high.
(C) Another reason for exceptional use of judicial review against exercise of powers of arrest is that “frequent or casual interference of the courts in the functioning of the authorised officers who have been specially conferred with the powers to combat the serious crimes, may embolden the unscrupulous elements to commit such crimes and may not do justice to the victims, who in such cases would be the society at large and the nation itself. With the advancement in technology, the very nature of crimes has become more and more intricate and complicated. Hence, minor procedural lapse on the part of authorised officers may not be seen with magnifying glass by the courts in exercise of the powers of judicial review, which may ultimately end up granting undue advantage or benefit to the person accused of very serious offences under the special Acts”.49
Thus, through this decision, the Supreme Court has delineated the guidelines on the manner of exercise of tax officers’ arrest powers and prescribed the standards of judicial review to be adopted when the ensuing arrest is challenged before the courts.
Epilogue: A journey half travelled?
There cannot be two views on the proposition that arrest is a serious transgression of civil liberties and directly interjects the right to life and liberty of an individual. Hence, the decision of the Supreme Court in installing safeguards is a welcome contribution to jurisprudence. Having said that, at a macro level, the decision at best deals with procedural safeguards to be observed by the tax officer and does not innovate any additional substantive safeguards for the arrested person besides reiterating the safeguards already available under legislations or judicial decisions.
By limiting judicial review to appreciation of procedural safeguards, the decision may result into a serious dilution of the role of the criminal courts, which may be inclined to sustain the arrest of a person upon their satisfaction of the procedural compliance by arresting the tax officer instead of examining and evaluating the precise loss of constitutionally guaranteed liberty of the arrested person. It must be appreciated that tax officers are not inherently trained on the finer nuances of criminal law and its interface with constitutionally guaranteed civil liberties. Hence, the overwhelming need for close judicial oversight on the functioning of the tax officers cannot be overemphasised insofar as the empowerment of such officers to arrest inherent carries potential for unlawfully intruding upon exercise of constitutional rights of life and liberty.
To illustrate the above, under Section 132(1)(b) of the Central Goods and Services Tax Act, 2017 issuance of fake invoices which results in tax evasion of more than five crores is a cognizable and non-bailable offence. In such circumstances, the tax officer is required to record in writing the reason why the arrested person is believed to have committed such an offence of fake invoice and observe other procedural safeguards as delineated by the Supreme Court. Serious questions arise, which appear not to have been addressed in the decision, the following being a few:
(i) How would the tax officer demonstrate compliance and the criminal court appreciate its correctness, as regards: (a) what will the tax officer achieve by the arrest? and (b) whether there is a rational connection with the arrest and the purpose of arrest, etc. especially if no further investigation is warranted or the facts are already available with the Tax Department?
(ii) What are the other less restrictive alternate measures available with the Tax Department? Furthermore, will the criminal court assign any weightage to the submissions of the accused that there were other less restrictive alternate measures available with the Tax Department which were equally effective for them to prosecute the guilty persons?
(iii) What are the substantive tenets required to be appreciated by the criminal court to determine whether the continued arrest of the person is an appropriate balance between the fundamental right of the arrested person and the aim/purpose being pursued by the tax officer in the specific circumstances of the case before it?
(iv) In which case will the arrest satisfy the test of “manifest arbitrariness or gross violation or non-compliance of the statutory safeguards” excepting a case where the procedural safeguards (such as non-furnishing of grounds of appeal, etc.) have been complied with?
At another level, it is noteworthy that the income tax law has been in vogue for more than a century and the legislature has not felt the need to confer the officers administering this law with the power to arrest persons. In fact, the Income-Tax Bill, 2025 also does not propose to confer upon the Income Tax Officers power to arrest persons. This indicates that the absence of arrest by tax officer does not come in the way of administration of fiscal laws. Perhaps in the case of customs law arrest may be warranted in scenarios where the accused person is a foreign national and thus carries flight risk. However, one fails to appreciate the need for tax officers to arrest in all other cases because the prosecution for criminal violation can indeed be carried out even without the person concerned having been arrested.
The decision of the Supreme Court carries a void insofar as it upholds the statutory provision conferring power of arrest upon the tax officers by only examining the legislative competence. However, the decision does not proceed towards juxtaposing the “due process” test, as to the constitutional propriety, necessity and permissibility of allowing tax officers to arrest individuals (as contrasted from imprisonment after criminal conviction) during the pendency of investigation into tax violations. A review of the provisions made cognizable and non-bailable in the Customs and GST Acts reveal that they do not differ substantively from other offences enacted under these legislations and the declaration of cognizable and non-bailable is only qua the monetary threshold. One can appreciate that the punishment (upon conviction) should be more in the event the tax evasion is of a greater amount. However, how does that justify arrest, that too by the tax officer, and more importantly, when the investigation itself is pending? If indeed the intent is to ensure completion of investigation and avoid destruction of evidence, there are enough powers under law (besides arrest) for the tax officers to ensure that objective. As stated earlier, if Income Tax Officers can administer their legislation without need for arresting anyone, perhaps one requires a rethink for other tax officers’ abilities on that front.
Another related aspect is the consequence of another declaration in the decision. The Supreme Court has emphatically refused to reconsider its earlier decisions to the effect that tax officers are not police officers, thereby declaring that the constitutional protection of right against self-incrimination50 is not available in tax investigations.51 As a consequence, a person summoned by the tax officer must state the truth and is not allowed to withhold information without penal consequences.52 Put differently, there is no constitutional or legal sanction against tax officers obtaining confessions which even police officers are injuncted from. One wonders if such a state of affairs passes the muster of “rule of law” and instead is not an instance of “rule by law”.53
One would hope that the unanswered questions would soon be visited, either in the wake of tax policy revisit or in an appropriate judicial contest wherein the very need for a tax officer to arrest (instead of obtaining a court ordered summons and arrest warrant) are debated upon and conclusively determined.
*Advocate, Supreme Court of India; LLM, London School of Economics; BBA LLB (Hons.) (Double Gold Medalist), National Law University, Jodhpur. The author can be reached at: mailtotarunjain@gmail.com.
1. For illustration, see Ramesh Chandra Mehta v. State of W.B., 1968 SCC OnLine SC 62.
2. For illustration, see Customs Act, 1962, S. 104; Central Goods and Services Tax Act, 2017, S. 69.
3. For illustration, see Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481 which inter alia observes as under:
237. The manner of functioning of the court in accord with the rule of law has to be dispassionate, objective and analytical. Thus, everyone within the framework of the rule of law must accept the system, render due obedience to orders made and in the event of failure of compliance, the rod of justice must descend down to punish. It is mainly through the power of judicial review conferred on an independent institutional authority such as the High Court or the Supreme Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. Thus, those concerned with the rule of law must remain unmindful and unruffled by the ripples caused by it. Rule of law does not mean protection to a fortunate few. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. In the words of Krishna Iyer, J., “the finest hour of the rule of law is when law disciplines life and matches promise with performance” [Fatehchand Himmatlal v. State of Maharashtra, (1977) 2 SCC 670, para 73]. In ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521], H.R. Khanna, J. in his dissenting judgment said, “rule of law is the antithesis of arbitrariness”.
4. For illustration, see Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 which inter alia observes as under:
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind, viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson’s eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
6. Radhika Agarwal case, 2025 SCC OnLine SC 449, paras 72-77 inter alia observing that “impugned provisions lay down the power to summon and arrest, powers necessary for the effective levy and collection of GST” and the legislative competence to enact GST laws encompasses “as a necessary corollary, enact provisions against tax evasion”.
8. Om Prakash case, (2011) 14 SCC 1, the Supreme Court has explained the meaning of expression in the following terms:
“41. ‘Cognizable offence’, defined in S. 2(c) of the Code, means an offence for which the police officer may, in accordance with the First Schedule of the Code or any other law for the time being in force, arrest without a warrant. ‘Non-cognizable offence’, defined in S. 2(l) of the Code, means an offence for which a police officer has no authority to arrest without a warrant.”
9. For illustration, see Radhika Agarwal case, 2025 SCC OnLine SC 449, paras 53-55.
10. Following State of Punjab v. Barkat Ram, 1961 SCC OnLine SC 93; Ramesh Chandra Mehta v. State of W.B., 1968 SCC OnLine SC 62; Illias v. Collector of Customs, 1968 SCC OnLine SC 117; Tofan Singh v. State of T.N., (2021) 4 SCC 1.
11. Radhika case, 2025 SCC OnLine SC 449, para 24. Following Enforcement Directorate v. Deepak Mahajan, (1994) 3 SCC 440, 474, para 113 invoking Constitution of India, Art. 22(1) and extrapolating Criminal Procedure Code, 1973, S. 50.
12. Radhika case, 2025 SCC OnLine SC 449, para 47.
13. Radhika case, 2025 SCC OnLine SC 449, para 25. Applying Criminal Procedure Code, 1973, S. 41-B, following D.K. Basu v. State of W.B., (1997) 1 SCC 416 and according to judicial sanction to Circular dated 20-2-1998 [F. No. 591/01/98-CUS(AS)].
14. Radhika case, 2025 SCC OnLine SC 449, para 26. Extending Criminal Procedure Code, 1973, S. 41-D and following Directorate of Revenue Intelligence v. Jugal Kishore Samra, (2011) 12 SCC 362.
15. Radhika case, 2025 SCC OnLine SC 449, para 27. Invoking Criminal Procedure Code, 1973, S. 50-A and Section 41-B(c), Code of Criminal Procedure.
16. Radhika case, 2025 SCC OnLine SC 449, para 19. Following decision in Enforcement Directorate v. Deepak Mahajan, (1994) 3 SCC 440.
17. Radhika case, 2025 SCC OnLine SC 449, para 24.
18. Radhika case, 2025 SCC OnLine SC 449, para 27.
19. Radhika case, 2025 SCC OnLine SC 449, para 28. Extending Criminal Procedure Code, 1973, S. 55.
20. Circular dated 20-2-1998 [F. No. 591/01/98-CUS(AS)]; Ministry of Finance, General Circular No. 38/2013-Customs (Issued on 17-9-2013) F. No. 394/68/2013-Cus.(AS); Instruction No. 02/2022-23 [GST — Investigation] dated 17-8-2022; Circular No. 128/47/2019-GST dated 23-12-2019; Instruction No. 01/2025-GST dated 13-1-2025.
21. Radhika case, 2025 SCC OnLine SC 449, para 62.
22. Radhika case, 2025 SCC OnLine SC 449, para 31.
23. Arvind Kejriwal v. Enforcement Directorate, (2025) 2 SCC 248.
24. Radhika case, 2025 SCC OnLine SC 449, paras 39-46.
25. Radhika case, 2025 SCC OnLine SC 449, para 33.
26. Radhika case, 2025 SCC OnLine SC 449, para 30.
27. Radhika case, 2025 SCC OnLine SC 449, para 30, extrapolated from the decision in Arvind Kejriwal case, (2025) 2 SCC 248, para 9.
28. Radhika case, 2025 SCC OnLine SC 449, para 43.
29. Radhika case, 2025 SCC OnLine SC 449, para 44.
30. Radhika case, 2025 SCC OnLine SC 449, para 32.
31. Radhika case, 2025 SCC OnLine SC 449, para 33.
32. Radhika case, 2025 SCC OnLine SC 449, para 34.
33. Radhika case, 2025 SCC OnLine SC 449, para 35.
34. State of Gujarat v. Choodamani Parmeshwaran Iyer, 2023 SCC OnLine SC 1043; Bharat Bhushan v. Director General of GST Intelligence, (2024) 129 GSTR 297 : 2024 SCC OnLine SC 2586; Radhika case, 2025 SCC OnLine SC 449, para 56. in footnote 56 of the decision.
35. Radhika case, 2025 SCC OnLine SC 449, para 70.
36. Radhika case, 2025 SCC OnLine SC 449, paras 63-68.
37. Instruction No. 01/2022-23 dated 25-5-2022.
38. Radhika case, 2025 SCC OnLine SC 449, para 65.
39. Radhika case, 2025 SCC OnLine SC 449, para 68.
40. Makemytrip (India) (P) Ltd. v. Union of India, 2016 SCC OnLine Del 4951.
41. Radhika case, 2025 SCC OnLine SC 449, para 59.
42. Radhika case, 2025 SCC OnLine SC 449, para 71.
43. Radhika case, 2025 SCC OnLine SC 449, para 45.
44. Radhika case, 2025 SCC OnLine SC 449, para 36.
45. Radhika case, 2025 SCC OnLine SC 449, para 36, extrapolated the decision in Arvind Kejriwal v. Enforcement Directorate, (2025) 2 SCC 248, para 44.
46. Radhika case, 2025 SCC OnLine SC 449, para 38. Footnote 45 of the decision explains the doctrine of proportionality. It states as under:
“The doctrine of proportionality has been expounded by this Court in a line of decisions, including the recent judgment of Assn. for Democratic Reforms (Electoral Bond Scheme) v. Union of India, (2024) 5 SCC 1. It comprises four prongs — (i) legitimate aim/purpose — The first step is to examine whether the act/measure restricting the fundamental right has a legitimate aim and/or purpose; (ii) rational connection —The second step is to examine whether the restriction has rational connection with the aim; (iii) minimal impairment/necessity test — The third step is to examine whether there should have been a less restrictive alternate measure that is equally effective; and (iv) balancing stage — The last stage is to strike an appropriate balance between the fundamental right and the pursued public purpose.”
47. Radhika case, 2025 SCC OnLine SC 449, para 3.
48. Radhika case, 2025 SCC OnLine SC 449, para 4.
49. Radhika case, 2025 SCC OnLine SC 449, para 12.
50. Constitution of India, Art. 20(3). It states that “no person accused of any offence shall be compelled to be a witness against himself”.
51. Radhika case, 2025 SCC OnLine SC 449, para 69.
52. For illustration, see Central Goods and Services Tax Act, 2017, S. 70(1-A) which states that every summoned person “shall be bound to attend … and the person so appearing shall state the truth during examination or make statements or produce such documents and other things as may be required”. Furthermore, Central Goods and Services Tax Act, 2017, S. 70(2) states that even summons every such inquiry “shall be deemed to be a ‘judicial proceedings’ within the meaning of Ss. 193 and 228 of the Penal Code, 1860 (Ss. 229 and 267 of the Nyaya Sanhita, 2023)”. In turn these provisions of Nyaya Sanhita inter alia criminalise intentional submission of wrong evidence.
53. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 inter alia observes that “S. 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary State behaviour.” Per Chandrachud, J., para 376. Furthermore, in Rajeev Suri v. DDA, (2022) 11 SCC 1 it has been acknowledged that “rule of law” is on a higher pedestal than the governance by “rule by law”.
