NEW DELHI: The sentencing order in the case of banned Dukhtaran-e-Millat (DeM) chief Asiya Andrabi and her co-accused marks a critical moment in the intersection of criminal law, ideology, and constitutional freedoms.
A close reading of the judgment, particularly paras 10, 11, 11.1, 12, and 16, reveals a reasoning that appears to move beyond established legal principles into uncertain theological and subjective terrain.
At the heart of the judgment lie two broad aggravating factors: the alleged propagation of Iqamat-e-Deen and the perceived absence of remorse. Both demand scrutiny.
First, on Iqamat-e-Deen. The court records that the organisation Dukhtaran-e-Millat (DeM), associated with the convicts, “stands for Iqamat-e-Deen.” However, beyond this assertion, the judgment does not meaningfully define or examine the concept.
There is no engagement with its intellectual history, no reference to established interpretations, and no attempt to distinguish between belief and unlawful conduct.
Instead, the reasoning appears to take a narrower route. The court, while not elaborating the concept itself in depth, seems to have relied on a paper titled “Meaning of Iqamat-e-Deen and its implementation in the contemporary era,” authored by Qazi Abdul Wadood, a PhD scholar, and Dr Muhammad Muavia Khan, an assistant professor at the Islamia University of Bahawalpur in Pakistan.
This reliance raises immediate concerns.
Courts, especially when dealing with sensitive religious or ideological concepts, are expected to draw from authoritative and widely recognised scholarship. In the Indian context, there exists a vast body of work on Iqamat-e-Deen by scholars such as Maulana Abul Hassan Nadvi, Qazi Mujahidul Islam Qasmi, and Abul A‘la Maudoodi, among others.
"Iqamat-e-Deen" way of life
These writings situate the concept within a broader ethical and social framework — often describing it as a “way of life” rooted in moral reform, community welfare, and spiritual discipline.
Yet, the judgment bypasses this rich intellectual tradition.
Instead, it appears to have relied on a relatively obscure academic paper sourced through what seems to be a generalised online search. The contrast with earlier Indian jurisprudence is striking. In the 1995 Hindutva judgment, the Supreme Court under Chief Justice J.S. Verma described Hindutva as a “way of life,” drawing on a wide spectrum of interpretations, including the writings of Maulana Wahiduddin Khan, rather than confining itself to a narrow or selective source.
Here, however, Iqamat-e-Deen is treated as indicative of a particular intent without examining whether the concept itself necessarily implies illegality. The absence of such analysis risks collapsing a broad theological idea into a prosecutorial narrative.
This becomes more significant when read alongside the prosecution’s claims in paras 10–12 of the judgment, which allege cross-border conspiracy, ideological mobilisation, and use of media platforms to further unlawful aims. But these are legal assertions that require proof of intent and demonstrable consequence. They cannot be sustained merely by invoking a religious concept that remains undefined and contested.
The defence, in its written submissions, underscored this gap precisely. It argued that the prosecution failed to demonstrate any concrete consequence or direct causal link between the alleged acts and actual harm. The absence of demonstrable impact, it contended, should be a significant mitigating factor in sentencing.
The judgment, however, appears to give greater weight to ideological framing.
The second pillar of the court’s reasoning — the “lack of remorse” — raises equally serious questions.
Indian sentencing jurisprudence is clear that punishment must be proportionate, individualized, and grounded in objective factors. Courts are required to consider mitigating circumstances such as age, health, background, and the actual consequences of the offence.
The defence submissions reiterate this, noting that sentencing is not meant to be mechanical but must reflect fairness and proportionality.
Absence of Remorse
Yet, the judgment appears to treat the absence of remorse as a decisive aggravating factor.
This is problematic on multiple counts. Remorse is inherently subjective. It is an internal state that cannot be easily measured or verified. Elevating it to a central consideration risk penalising an accused for what they believe or choose not to express, rather than for what has been proven in law.
It also raises concerns about the right against self-incrimination and the broader principle that criminal liability must rest on evidence, not inferred moral judgment.
Another troubling aspect of the judgment is the treatment of the accused’s political position on Kashmir. The prosecution, as reflected in the record, portrays their articulation of Kashmir and their ideological advocacy as part of a larger conspiracy against the sovereignty of India.
Yet, the distinction between political opinion and criminal conduct appears insufficiently examined. The defence has consistently maintained that their activities were rooted in ideological expression and commentary on a long-standing political dispute, not in direct acts of violence.
In democratic jurisprudence, holding or expressing a political view — even one that challenges the official position of the state — cannot, by itself, constitute a criminal offence unless it is clearly linked to incitement or unlawful action.
This is particularly significant in the context of Kashmir, which has historically been acknowledged at multiple levels as an issue between India and Pakistan. The current government led by Prime Minister Narendra Modi even acknowledges that a part of Kashmir, under Paksitan’s occupation, is an issue and needs to be retrieved.
Need for dialogue on Kashmir
Indian leaders across decades, from Jawaharlal Nehru’s early statements at international forums to Atal Bihari Vajpayee’s emphasis on “insaniyat, jamhooriyat, Kashmiriyat,” and even the 2015 Ufa engagement between India and Pakistan, have recognised the need for dialogue and political resolution. If there is no issue, what political resolutions are these documents signifying?
To treat the mere articulation of Kashmir as evidence of criminal intent risks collapsing legitimate political discourse into the realm of penal law. It also raises a deeper constitutional concern: whether dissenting or alternative political thought can be criminalised in the absence of a clear, proximate link to violence.
Equally important is what appears to be missing from the court’s balancing exercise.
The defence submissions place on record several mitigating factors: the advanced age of the convicts, their educational backgrounds, their deteriorating health conditions, and the fact that they have already undergone nearly eight years of incarceration. These are not minor considerations. They are central to the principle of proportionality that underpins modern sentencing jurisprudence.
There is also the issue of demonstrable harm. The defence points out that even the record does not establish a clear causal link between the alleged acts and any actual disturbance or violence. In criminal law, especially in serious offences, such a link is critical.
Taken together, the judgment raises fundamental questions.
Can a court rely on a limited and obscure academic source to interpret a complex religious concept? Should a broad theological idea like Iqamat-e-Deen be treated as evidence of criminal intent without engaging with its established meanings? And can the absence of remorse outweigh objective mitigating factors such as age, health, and the lack of demonstrable harm?
In a constitutional democracy, courts are expected to maintain a careful balance between enforcing the law and safeguarding fundamental freedoms. When judicial reasoning appears to blur the line between belief and culpability, or between evidence and interpretation, that balance comes under strain.
The concerns raised by this judgment are not confined to one case. They go to the heart of how courts interpret ideology, assess intent, and apply the principles of fairness and proportionality.
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