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On April 2, a bench of Justices P.S. Narasimha and Alok Aradhe delivered a judgment in M/s A.K.G. Construction and Developers Pvt. Ltd. v. State of Jharkhand that may be the most consequential statement on the law of blacklisting in recent years. The judgment upheld the termination of a construction contract but struck down the accompanying blacklisting order. Its reasoning rests on a proposition at once elementary and, in the present institutional climate, pointed: that blacklisting is stigmatic, exclusionary, and cannot be imposed without a specific show-cause notice and a meaningful hearing.

The timing invites attention. On March 11, a bench led by Chief Justice of India (CJI) Surya Kant directed the Union and state governments to disassociate Professor Michel Danino, Suparna Diwakar, and Alok Prasanna Kumar from all publicly funded curriculum work. The three had supervised the drafting of Chapter IV of the NCERT Class 8 textbook Exploring Society: India and Beyond, which contained a section on corruption in the judiciary.  The bench had banned the book in February in a suo motu case. The March 11 direction was issued without  hearing the three experts.

The NCERT textbook case is listed again on April 6. On March 20, the same CJI-led bench, hearing a related petition by former NCERT member Dr Pankaj Pushkar challenging a passage in an older textbook, remarked that “the judiciary should not be so oversensitive about healthy criticism.” The doctrinal principles that the P.S. Narasimha bench articulated on April 2 in another case, cast the March 11 direction in the NCERT case in sharper relief.

The facts in AKG Construction

The appellant held a contract for an Elevated Service Reservoir with Jharkhand’s Drinking Water and Sanitation Department. On June 1, 2024, the top dome collapsed. The Department issued a show-cause notice on June 4, seeking an explanation for negligence. Multi-level enquiries followed, drawing on assessments from the Birsa Institute of Technology, Sindri, and IITs at Delhi, Madras, and Bombay. All found the contractor negligent for departing from approved design. On August 23, 2024, the chief engineer passed a combined termination-cum-blacklisting order, blacklisting the contractor for five years. The high court dismissed the writ petition and the review.

The distinction the court drew

The Supreme Court upheld the termination: the evidence of negligence was unimpeachable, and the contractor had been heard through two tiers.

The blacklisting was set aside. Justice Narasimha reasoned that termination operates upon the subsisting contract; blacklisting transcends it, debarring the contractor from future contracts. The two decisions “operate in two dimensions: past and subsisting for termination and future for blacklisting.” Because the consequences differ in gravity, the proceedings must be independent.

The June 4 notice did not indicate that blacklisting was under contemplation as a measure distinct from termination. Rule 10.5 of the Contractor Registration Rules, 2012, mandates a show-cause notice before blacklisting. The bench drew on a half-century chain of precedent. Erusian Equipment and Chemicals Ltd. v. State of West Bengal (1975) established that blacklisting orders involve “civil consequences” and are “instruments of coercion.” UMC Technologies Pvt. Ltd. v. Food Corporation of India (2020) required the proposed penalty to be specified “unambiguously.” M/s Techno Prints v. Chhattisgarh Textbook Corporation (2025) extended these principles to the show-cause stage itself.

A blacklisting order, Justice Narasimha held, “assumes that the contractor is an incorrigible entity, at least for some time to come.” For this premise to operate, there must be “sufficient evidence, clear application of mind and stronger adherence to principles of natural justice.”

The direction against the three NCERT textbook authors satisfies none of these requirements.

The court acted suo motu.  It directed all publicly funded institutions across the Union and every state to disassociate Danino, Diwakar, and Kumar from any assignment entailing public payment. The three were not parties. They received no notice. They were not heard.

The operative word is “disassociate.” Under the Erusian Equipment test, substance prevails over label. The direction debars the three from all publicly funded curriculum work, across every state, without a defined term. That is blacklisting.

The bench preserved a narrow recourse: the three could seek “modification with explanation.” This inverts the natural justice sequence. As the Verfassungsblog analysis noted, this route requires the affected individuals to petition the very bench that has already pronounced on their conduct. The UMC Technologies formulation, endorsed in AKG Construction, holds that the opportunity to defend must precede the adverse order.

The counterarguments and their limits

Three objections arise. First, that administrative blacklisting principles cannot bind a judicial direction. But AKG Construction rests on the nature of the consequence, not the source of the power. Stigma and exclusion attach irrespective of whether the order emanates from a chief engineer or a Chief Justice. A court that dispenses with audi alteram partem while insisting a state department observe it invites the charge of asymmetry.

Second, it would appear that the CJI-led bench was exercising contempt jurisdiction and urgency warranted summary action. This is factually incorrect. The direction was an interim order in a suo motu writ proceeding. Contempt notices were issued to the NCERT director and the secretary of School Education on February 26; none were issued to the three authors.

Third, the pragmatic objection: the court acted to prevent institutional damage. But in AKG Construction, the contractor’s negligence was unimpeachable, the dome had collapsed, and five institutions concurred. The bench refused to treat blacklisting as the “logical consequence” of a substantive finding. The principle applies a fortiori where the underlying conduct is itself contested.

A coordinate bench, not a superior one

The Narasimha-Aradhe bench sits as two judges; the CJI-led bench comprises three. In a direct conflict, the larger bench prevails. But AKG Construction does not purport to overrule the NCERT direction. The principles it restates are drawn from Erusian Equipment, UMC Technologies, and Techno Prints. They are settled, unchallenged by any larger bench, and unqualified by any exception for the Supreme Court’s own orders. When a coordinate bench restates half a century of settled law the day before the impugned case returns to court, the restatement carries doctrinal weight.

The NCERT case has been listed before the CJI-led bench on April 6 as item 40. The Union government has informed the court that an expert committee will vet the rewritten chapter. It comprises former Justices Indu Malhotra and Aniruddha Bose, and former Attorney General K.K. Venugopal. Whether the bench will revisit its March 11 direction, given the principles reaffirmed on April 2, remains to be seen.

The AKG Construction judgment does not name the NCERT case. It does not need to. Blacklisting, by whatever name, requires notice, hearing, application of mind, and reasons. A court that demands these safeguards from a state department in Jharkhand cannot, without doctrinal embarrassment, dispense with them itself.

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