Centre's Assurance on Student Protests Cannot Override Law, Say Legal Experts
Even as the Cockroach Janta Party (CJP) contended that the Supreme Court's interim order permitting states to proceed with investigations into FIRs against student protesters contradicted the Centre's assurance of no punitive action, legal experts have clarified that such assurances cannot override statutory criminal procedures.
Once an FIR is registered, the investigating agency may file a closure report if it finds no material to proceed, or the public prosecutor may seek withdrawal from prosecution under the law. However, both routes are subject to judicial scrutiny, experts said.
During the hearing on July 28, 2026, Solicitor-General Tushar Mehta, representing the Union government and Delhi Police, did not reference any assurance of amnesty. Instead, he suggested that violence during the protests may have been caused by 'anti-social elements' who infiltrated the demonstrations. The bench had earlier expressed a prima facie view that an independent inquiry may be needed into allegations of police excesses and attacks on police personnel.
Former Supreme Court judge Abhay S. Oka said, 'It is doubtful whether the Union government can give an assurance on behalf of state governments regarding closure of criminal cases registered by state police. Except for Delhi Police, police are under state control. Moreover, once an FIR is registered, it cannot simply be cancelled.'
He explained that if the investigating agency finds no evidence, it may file a closure report under Section 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Alternatively, the public prosecutor may seek withdrawal under Section 360 of the BNSS before judgment is pronounced. But courts are not bound to accept either; they must hear the complainant or victim before deciding.
In its interim order, the bench led by Chief Justice Surya Kant permitted investigation to continue but restrained police from taking coercive action against 'protesting students' unless they had criminal antecedents. It also ordered immediate release of all arrested minors.
Senior advocate Sanjay Hegde said the order balanced investigation needs with protection of peaceful protesters. 'The court likely did not want to grant blanket protection to those with criminal histories pretending to be protesters,' he said. He added that the restraint on coercive action does not render FIRs infructuous; agencies can continue investigation without arrests.
Advocate Nipun Saxena noted that the exclusion of persons with criminal antecedents from relief highlights the court's attempt to distinguish genuine protesters from miscreants.
