Sins of the Accused Cannot Be Visited Upon the Family: Constitutional Limits on Vicarious Criminal Liability Under Articles 14 and 21 of the Constitution of India, 1950
By Guru Legal
Keywords: Constitution of India, 1950; Article 14; Article 21; personal criminal liability; vicarious criminal liability; Union of India v. Namdeo Ashruba Nakade; presumption of innocence; fundamental rights; right to equality; right to life and personal liberty; due process; Code of Criminal Procedure, 1973; Section 482; natural justice; judicial review; rule of law
Abstract
The Constitution of India, 1950 (hereinafter, the Constitution) guarantees, under Articles 14 and 21 respectively, the right to equality before law and the right to life and personal liberty, both of which are foundational to a constitutional democracy governed by the rule of law. The principle that criminal liability is inherently personal and cannot be extended to members of an accused person’s family solely by virtue of their relationship constitutes a fundamental tenet of Indian constitutional and criminal jurisprudence. In Union of India v. Namdeo Ashruba Nakade, Citation 2025 LiveLaw (SC) 1109, a bench of the Supreme Court of India comprising Justice Manmohan and Justice NV Anjaria emphatically reaffirmed this principle, holding that undertakings or criminal consequences arising from an accused’s conduct cannot be visited upon family members in the absence of independent evidence of their involvement. The judgment addresses a troubling pattern of State practice in which family members of accused persons are subjected to proceedings, harassment, or adverse consequences on account of their proximity to the accused rather than any culpable act of their own. This article examines the constitutional foundations of the personal liability principle, analyses the judgment in its doctrinal context, identifies the structural failures in criminal procedure that permit such overreach, and argues that legislative and judicial reform is imperative to give full and consistent effect to the constitutional guarantees of Articles 14 and 21.
Introduction
The constitutional architecture of India, as established by the Constitution of India, 1950, proceeds from the premise that every individual is possessed of inherent dignity and fundamental rights that cannot be abridged except in accordance with law and, pursuant to the doctrine of substantive due process affirmed in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, only by procedures that are just, fair, and reasonable. Central to this framework is the principle that criminal liability is personal: a person may be held responsible before the law only for acts or omissions that are directly attributable to that person, and not on account of the conduct of another with whom that person shares a familial, social, or associational connection. This principle is so deeply embedded in the Indian legal order that it may be regarded as an incident of the fundamental rights guaranteed by Articles 14 and 21 of the Constitution.
Notwithstanding the constitutional clarity of this position, empirical experience reveals that family members of persons accused in criminal proceedings are, in several instances, subjected to adverse State action, coercive undertakings, and reputational harm solely on account of their relationship with the accused. Such practices, whether arising from the exercise of investigative discretion, the grant or refusal of anticipatory bail, or the enforcement of conditions attached to bail, frequently produce consequences that are constitutionally indistinguishable from punishment imposed without trial. It is submitted that this represents a serious and recurring failure of the criminal justice system to honour the constitutional guarantees that it is duty-bound to uphold.
In this context, the judgment of the Supreme Court of India in Union of India v. Namdeo Ashruba Nakade, Citation 2025 LiveLaw (SC) 1109, assumes considerable significance. The bench, comprising Justice Manmohan and Justice NV Anjaria, was called upon to address the question of whether criminal or quasi-criminal consequences could be visited upon family members of an accused solely on the basis of their relationship with that accused. The Court’s categorical reaffirmation that the sins of an accused cannot be visited upon family members, in the words of the bench, constitutes a timely and important clarification of the constitutional limits on State action in criminal proceedings.
This article proceeds in four parts. The first part examines the constitutional and doctrinal foundations of the principle of personal criminal liability under Articles 14 and 21 of the Constitution. The second part analyses the specific legal issues addressed in Namdeo Ashruba Nakade and situates the judgment within the broader framework of Supreme Court jurisprudence on fundamental rights and criminal procedure. The third part assesses the consequences of departures from this principle for Indian governance, the rule of law, and access to justice. The fourth and final part advances a set of legislative and judicial recommendations directed at preventing the recurrence of the unconstitutional practices that the judgment sought to address.
The Constitutional Foundation of Personal Criminal Liability: Articles 14 and 21 and the Principle of Individual Culpability
The principle that criminal liability must attach to individual conduct rather than to familial association is not a novelty of recent judicial invention. It is, rather, a principle of ancient lineage that finds its modern expression in the fundamental rights guaranteed by Part III of the Constitution of India, 1950. Article 14 of the Constitution mandates equality before law and the equal protection of the laws within the territory of India, a guarantee that the Supreme Court of India has interpreted to prohibit not only discriminatory legislation but also arbitrary State action that treats similarly situated persons differently, or that imposes burdens upon persons without reasonable nexus to any legitimate State objective. The imposition of criminal consequences upon a family member of an accused, in the absence of evidence of that family member’s own culpable conduct, is a paradigmatic instance of arbitrary State action prohibited by Article 14.
Article 21 of the Constitution provides that no person shall be deprived of life or personal liberty except according to procedure established by law. As the Supreme Court of India held in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, this procedure must be just, fair, and reasonable, and must satisfy the requirements of Articles 14 and 19. Any procedure that operates to deprive a person of liberty on grounds that are unconnected with that person’s own conduct, and that are instead predicated solely upon that person’s relationship with another who is accused of an offence, is, it is submitted, manifestly inconsistent with the constitutional standard of fairness and reasonableness affirmed in Maneka Gandhi. The principle of personal culpability is, in this sense, not merely a rule of criminal law but a constitutional imperative derived from the intersection of Articles 14 and 21.
The presumption of innocence, while not expressly stated in the text of the Constitution, has been recognised by the Supreme Court of India as an essential facet of the right to a fair trial and, by extension, of the right to life and personal liberty under Article 21. In Noor Aga v. State of Punjab, (2008) 16 SCC 417, the Supreme Court affirmed that the presumption of innocence is a human right recognised both under Indian constitutional law and under international instruments to which India is a party, including the International Covenant on Civil and Political Rights, 1966. The extension of criminal liability or adverse consequences to family members of an accused, without independent evidence of their culpability, constitutes a de facto denial of this presumption to the family members concerned and is therefore inconsistent with their constitutional right to life and personal liberty under Article 21.
Union of India v. Namdeo Ashruba Nakade: Doctrinal Analysis and Constitutional Significance
The case of Union of India v. Namdeo Ashruba Nakade, Citation 2025 LiveLaw (SC) 1109, arose in circumstances that illustrate with particular clarity the dangers of permitting criminal consequences to extend to persons who have not themselves engaged in culpable conduct. The facts of the case involved an undertaking offered by the family members of an accused before the Supreme Court of India, raising the question of whether proceedings could validly be initiated against those family members on the basis of their relationship with the accused, in the absence of any independent allegation or evidence implicating the family members in the commission of any offence. The bench, comprising Justice Manmohan and Justice NV Anjaria, held that such proceedings could not be sustained, and reiterated in unambiguous terms the principle that criminal liability is personal in nature.
The observation of the bench that the sins of the accused cannot be visited upon family members is not merely a statement of policy preference but a doctrinal affirmation of the constitutional principle of individual culpability. The judgment draws upon a long line of Supreme Court authority for the proposition that punitive or quasi-punitive State action must be directed at the individual who has engaged in the prohibited conduct, and that the mere existence of a familial relationship between that individual and another person cannot, of itself, provide a constitutionally adequate basis for proceedings against the latter. This principle has been recognised in various contexts within Indian criminal law, including in the interpretation of Section 482 of the Code of Criminal Procedure, 1973 (hereinafter, the CrPC), which empowers the High Courts to quash proceedings that constitute an abuse of the process of court, and which has been invoked in numerous cases to protect family members from proceedings that lack an independent evidentiary foundation.
The significance of the judgment in Namdeo Ashruba Nakade extends beyond its immediate facts. The Supreme Court’s reaffirmation of the personal liability principle, in the context of undertakings offered before the highest court of the land, sends a clear and authoritative signal to subordinate courts, investigating agencies, and prosecuting authorities across India that the constitutional rights of family members of accused persons must be scrupulously respected. Compounding this significance is the fact that the judgment was rendered in the context of constitutional provisions guaranteeing fundamental rights, rather than merely in the interpretation of statutory provisions, thereby elevating the personal liability principle to the level of a constitutional mandate that cannot be diluted by legislative or executive action.
Structural Failures in Criminal Procedure: Coercion of Family Members and Institutional Accountability
A more troubling dimension of the problem addressed in Namdeo Ashruba Nakade is the manner in which the criminal procedure framework in India, as administered in practice, frequently creates conditions that facilitate or incentivise the imposition of consequences upon family members of accused persons. The practice of requiring family members to execute sureties, personal bonds, or undertakings as a condition of the accused’s release on bail, without independent examination of the family member’s own legal position, is one such structural feature. While the Code of Criminal Procedure, 1973 and the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter, the BNSS), which has succeeded the CrPC in respect of offences under the Bharatiya Nyaya Sanhita, 2023, make provision for surety bonds as a condition of bail, the manner in which these provisions are applied in practice frequently exposes family members to liability that is disproportionate to any legitimate State interest in ensuring the accused’s appearance before court.
The Law Commission of India, in its Report No. 268 (2017) on Amendments to the Code of Criminal Procedure, 1973 Bail Provisions, observed that the bail system in India operates in a manner that is frequently inequitable and that imposes undue burdens upon persons who are not themselves accused of any offence but who are required to provide surety for the accused’s release. The Commission recommended that the criteria for the grant of bail be revised to focus upon the individual circumstances of the accused, rather than upon the financial capacity or social standing of the accused’s family members, and that the conditions imposed upon sureties be made more transparent and proportionate. Regrettably, these recommendations have not been comprehensively implemented in the legislative framework that has succeeded the CrPC.
The practice of initiating proceedings against family members as a form of leverage in criminal investigations a phenomenon documented in reports by civil society organisations including the Commonwealth Human Rights Initiative constitutes a particularly serious abuse of State power and is directly inconsistent with the constitutional principles affirmed in Namdeo Ashruba Nakade. Investigating agencies that summon, detain, or otherwise subject family members of accused persons to adverse action, in the absence of any evidence of those family members’ own involvement in the alleged offence, engage in conduct that violates Articles 14 and 21 of the Constitution and that may also give rise to liability under Section 166 of the Bharatiya Nyaya Sanhita, 2023, which penalises public servants who disobey directions of the law with intent to cause injury to any person.
Consequences and Implications for the Indian Constitutional Framework
The failure to consistently uphold the principle of personal criminal liability, and the associated practice of subjecting family members of accused persons to adverse State action without independent evidentiary foundation, carries consequences that extend well beyond the individual cases in which such practices occur. At the level of constitutional principle, these practices erode the foundational commitment of the Indian State to the rule of law and to the equal protection of the laws guaranteed by Article 14 of the Constitution. A criminal justice system that systematically fails to confine the incidence of criminal liability to those who have engaged in culpable conduct is a system that cannot claim to be operating in accordance with constitutional values, regardless of the formal legality of the procedures it employs.
At the level of social impact, the stigmatisation and harassment of family members of accused persons produces consequences that are felt acutely and disproportionately by those who are already socially and economically marginalised. Empirical studies conducted by the National Law School of India University and the Centre for Law and Policy Research indicate that family members of persons accused in serious criminal cases frequently suffer loss of employment, social ostracism, and psychological harm as a direct result of their association with the accused, consequences that are substantially exacerbated when the State itself treats them as quasi-accused. The judgment in Namdeo Ashruba Nakade, by affirming the constitutional limits on such State action, contributes to the protection of an often overlooked class of victims of the criminal justice system.
The Case for Reform: Legislative and Judicial Recommendations
The first area of reform concerns the codification of the personal liability principle in the Bharatiya Nagarik Suraksha Sanhita, 2023. While the constitutional basis of this principle is well-established in the jurisprudence of the Supreme Court of India, its explicit statutory recognition would serve to guide investigating agencies, prosecutors, and subordinate courts in their day-to-day conduct of criminal proceedings. It is submitted that the Ministry of Home Affairs ought to introduce an amendment to the BNSS inserting a provision expressly prohibiting the initiation of proceedings against any person solely on the basis of that person’s familial relationship with an accused, in the absence of independent evidence of that person’s own culpable involvement. Such a provision would give legislative effect to the constitutional principles affirmed in Namdeo Ashruba Nakade and would reduce the scope for their violation in practice.
The second area of reform concerns the regulation of surety and bail conditions as they affect family members of accused persons. It is submitted that the Supreme Court of India, in exercise of its inherent jurisdiction under Article 142 of the Constitution to pass orders necessary for doing complete justice, ought to issue comprehensive guidelines governing the conditions that may be imposed upon sureties in criminal proceedings, with a view to ensuring that such conditions are proportionate to the legitimate State interest in securing the accused’s attendance before court and do not operate as instruments of coercion against family members. Such guidelines would supplement the legislative framework and would provide a more immediate source of protection for family members who are currently exposed to disproportionate liability as a result of the accused’s conduct.
The third area of reform pertains to the accountability of investigating agencies that subject family members of accused persons to unlawful adverse action. It is submitted that the National Human Rights Commission of India, constituted under the Protection of Human Rights Act, 1993, ought to be empowered to investigate and adjudicate complaints by family members of accused persons who have been subjected to violations of their fundamental rights by investigating agencies or prosecuting authorities, and to recommend appropriate compensation and departmental action. Comparable mechanisms exist in other constitutional democracies, including the United Kingdom under the Police Reform Act, 2002, and the Republic of South Africa under the Independent Police Investigative Directorate Act, 2011, and their adoption in India would constitute a significant step towards institutional accountability in the criminal justice system.
The fourth area of reform concerns legal aid and access to justice for family members of accused persons who are aggrieved by unconstitutional State action. The Legal Services Authorities Act, 1987 (hereinafter, the Legal Services Act) establishes a framework for the provision of free legal aid to persons who are unable to afford legal representation, but the categories of persons eligible for such aid under Section 12 of the Legal Services Act do not expressly include family members of accused persons who are themselves subjected to State action in connection with criminal proceedings against the accused. It is submitted that Section 12 of the Legal Services Act ought to be amended to expressly extend eligibility for free legal aid to such family members, ensuring that they are able to access effective legal representation in proceedings before the High Courts under Article 226 of the Constitution or before the Supreme Court under Article 32 for the enforcement of their fundamental rights.
The fifth area of reform addresses the need for a comprehensive review of the bail jurisprudence of the High Courts with a view to identifying and correcting patterns of practice that are inconsistent with the constitutional principles affirmed in Namdeo Ashruba Nakade. It is submitted that the Law Commission of India ought to be tasked with preparing a follow-up report to Report No. 268 (2017), examining the extent to which the recommendations of that report have been implemented in the BNSS and identifying further amendments necessary to ensure that the bail system operates in a manner that is fully consistent with the constitutional rights of accused persons and their family members.
Conclusion
The judgment of the Supreme Court of India in Union of India v. Namdeo Ashruba Nakade, Citation 2025 LiveLaw (SC) 1109, represents a significant and timely reaffirmation of the constitutional principle that criminal liability is personal in character and that the State is prohibited, by virtue of Articles 14 and 21 of the Constitution of India, 1950, from visiting punitive or quasi-punitive consequences upon family members of an accused in the absence of independent evidence of those family members’ own culpable conduct. The principle so affirmed is not merely a technical rule of criminal procedure but a reflection of the deeper constitutional commitment of the Indian Republic to individual dignity, the rule of law, and the equal protection of the laws. It is submitted that the full realisation of this commitment requires not only the vigilance of the Supreme Court and the High Courts in enforcing the principle in individual cases, but also the structural and legislative reforms recommended in this article, reforms that would ensure that the constitutional vision articulated in Namdeo Ashruba Nakade is given consistent and effective expression throughout the criminal justice system of India.
Frequently Asked Questions (FAQ)
Q1. What is the constitutional basis for the principle that criminal liability cannot be extended to family members of an accused person in India?
The principle that criminal liability is personal and cannot be extended to family members of an accused is grounded in Articles 14 and 21 of the Constitution of India, 1950. Article 14 guarantees equality before law and the equal protection of the laws, prohibiting arbitrary State action that imposes burdens upon persons without reasonable nexus to a legitimate State objective. Article 21 guarantees the right to life and personal liberty, and, as the Supreme Court of India held in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, requires that any procedure depriving a person of liberty be just, fair, and reasonable. The Supreme Court of India reaffirmed these principles in Union of India v. Namdeo Ashruba Nakade, Citation 2025 LiveLaw (SC) 1109, holding that the sins of the accused cannot be visited upon family members in the absence of independent evidence of their own culpable involvement.
Q2. What legal remedy is available to a family member of an accused who has been subjected to unlawful proceedings or adverse State action?
A family member of an accused who is subjected to unlawful proceedings or adverse State action in connection with criminal proceedings against the accused may seek relief before the appropriate High Court by way of a writ petition under Article 226 of the Constitution of India, 1950, seeking a writ of certiorari to quash the proceedings or a writ of mandamus directing the competent authority to cease the unlawful action. Alternatively, in cases of fundamental rights violations, the aggrieved person may approach the Supreme Court of India under Article 32 of the Constitution. Under Section 482 of the Code of Criminal Procedure, 1973, or its successor provisions under the Bharatiya Nagarik Suraksha Sanhita, 2023, the High Court is empowered to quash criminal proceedings that constitute an abuse of the process of court, including proceedings initiated against family members without independent evidentiary foundation.
Q3. What penalties or consequences may arise for a public servant who initiates proceedings against family members of an accused without legal basis?
A public servant who initiates proceedings against family members of an accused without legal basis and with intent to cause injury to such persons may be liable under Section 166 of the Bharatiya Nyaya Sanhita, 2023, which penalises public servants who disobey directions of the law with intent to cause injury to any person. Additionally, the aggrieved family members may file a complaint before the National Human Rights Commission of India, constituted under the Protection of Human Rights Act, 1993, which is empowered to investigate violations of human rights by public servants and to recommend compensation and departmental action. Courts have also, in appropriate cases, awarded monetary compensation for violation of fundamental rights under Articles 14 and 21 of the Constitution, following the precedent established in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
Q4. What obligation does the State bear to protect family members of accused persons from harassment or adverse action in the course of criminal proceedings?
The State bears a positive constitutional obligation, derived from Articles 14 and 21 of the Constitution of India, 1950, to ensure that its investigative and prosecutorial agencies do not subject persons to adverse action in criminal proceedings unless there is an independent and constitutionally adequate evidentiary basis for such action. This obligation extends to the regulation of bail conditions under the Bharatiya Nagarik Suraksha Sanhita, 2023, to ensure that conditions imposed upon sureties are proportionate and do not operate as instruments of coercion against family members of the accused. The Supreme Court of India, in exercise of its jurisdiction under Article 142 of the Constitution, may issue comprehensive guidelines to give effect to this obligation, and the National Legal Services Authority, constituted under the Legal Services Authorities Act, 1987, is mandated to take measures to ensure access to justice for persons whose rights are violated in the course of criminal proceedings.
Q5. Are there any circumstances under which family members of an accused person may legitimately be made party to criminal proceedings?
Family members of an accused person may legitimately be made party to criminal proceedings only where there is independent evidence establishing their own direct or constructive participation in the commission of the alleged offence, or where a specific statutory provision expressly subjects them to liability in connection with the accused’s conduct. Mere relationship with the accused, knowledge of the accused’s activities, or the provision of financial support to the accused does not, of itself, constitute a sufficient basis for criminal liability, unless such conduct independently satisfies the ingredients of the offence charged. The Supreme Court of India affirmed this position in Union of India v. Namdeo Ashruba Nakade, Citation 2025 LiveLaw (SC) 1109, and the High Courts have consistently applied the same principle in the exercise of their jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 to quash proceedings that lack an adequate evidentiary foundation against the persons named therein.
Bibliography
Primary Sources
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– Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (Supreme Court of India).
– Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 (Supreme Court of India).
– Noor Aga v. State of Punjab, (2008) 16 SCC 417 (Supreme Court of India).
– Code of Criminal Procedure, 1973 (Act No. 2 of 1974), Section 482.
– Bharatiya Nagarik Suraksha Sanhita, 2023 (Act No. 46 of 2023).
– Bharatiya Nyaya Sanhita, 2023 (Act No. 45 of 2023), Section 166.
– Protection of Human Rights Act, 1993 (Act No. 10 of 1994).
– Legal Services Authorities Act, 1987 (Act No. 39 of 1987), Section 12.
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