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Bharatiya Nagarik Suraksha Sanhita : Paradigm Shift from Procedural Code to Nagarik Suraksha

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Introduction

Marking a significant reform and change in India’s criminal law justice system, the old criminal laws were repealed and replaced by three new laws. The new criminal laws came into legal effect from July 1, 2024.

This blog ahead offers significant legal insights into the important features and legal provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 along with a comparative outlook over the changes in the procedure of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) vis-à-vis and The Code of Criminal Procedure, 1973 (Cr.P.C). The piece explores the legal impact & consequences that flow from these changes.

Decoding the Need for Reform & Bharatiya Nagarik Suraksha Sanhita,2023

If we look back, the society, legal aspects, socio-economic outlook, criminality, justice, the valuation and consumption of time and technology amongst many other things, have evolved and grown in terms of their implication and meaning.

After all these years, there were various concerns at hand, procedural lapses, complexity and stringency, huge pendency, low rate of conviction in criminal cases, lack of inculcation of technological advancements and consequent delay or failure of the criminal justice system.

Hence, there was a need to reform the criminal justice system- so that it could effectively adapt to these new-age changes and modern technology and advancements.

Bharatiya Nagarik Suraksha Sanhita, 2023

Bharatiya Nagarik Suaksha Sanhita, 2023(BNSS), the law that replaces the old The Code of Criminal Procedure 1973  (Cr.P.C)- operates on the fundamentals of good governance, speedy trial and effective  justice translated via robust procedural mechanism and timelines.

It is termed as ‘ An Act to consolidate and amend the laws relating to criminal procedure’. Adding to this, the new Bharatiya Nagarik Suraksha Sanhita has been updated and amended to suit and adapt to the new vision of the criminal justice system, reformation, protection of citizens and technological shift and evolution.

Essential Features and Provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023-

  1. Structure- The Code of Criminal Procedure consisted of- 37 Chapters, 484 Sections and 2 Schedules. Now, the Bharatiya Nagarik Suraksha Sanhita consists of –  39 Chapters, 531 Sections, and 2 schedules.
  2. Procedural Law- The Bharatiya Nagarik Sraksha Sanhita, deals with the procedural aspect of the criminal law in the courts and its functioning. Hence it deals with all the aspects related to the procedure followed in criminal cases. Illustratively, inquiry, timelines, bail, cognizance, arrest and appeals.
  3. Citizen’s First -Approach- The Bharatiya Nagarik Suraksha Sanhita (BNSS) has been designed and framed with a citizen-centric approach in its procedure and legal effect. The vision behind the functionality of the criminal justice system and the expected outcome has changed and has taken a citizen-centric approach. The title itself consists of the terms ‘Nagarik’ (i.e. citizens) and ‘Suraksha’ (i.e. protection), hence asserting how this law caters to the safety and empowerment of citizens, as a whole.
  4. 2(1)(a)- Audio-Video Electronic Means– The BNSS, 2023 – has adopted and inculcated the changes as per the digital transformation and technological advancements and hence audio-video devices have a newly found essential place in various procedures involved in criminal law and courts. S.2(1)(a) expressly defines the audio-video electronic means as – the use of any communication device (note- this widens the ambit and includes any form or mode of communication device that can be used for the given purposes) for the purposes of video conferencing, recording of processes of identification, search and seizure or evidence, the transmission of electronic communication and for such other purposes and by such other means as the State Government may provide (note- Again by using the terms like ‘any other purposes’ and ‘any other means’ the law widens the scope of its applicability to include any new form or method that might develop or evolve with time and hence takes into consideration the fast-evolving nature of the technology and possible future advancements).
  5. Forensic Science– An Aid In Investigation- Section 176(3)- The science and forensic science have developed remarkably in terms of both means and effect. Investigation is an essential process and step in the criminal justice system, as the collection of pieces of evidence and hence an effective trial against the crime in question substantially rests on the investigation itself. A scientific approach to the investigation enhances the effectiveness and precision of the elements involved or the evidence collected during the investigation. It even has the capacity to increase the ambit of what can be effectively derived and used as evidence, which might have gone unnoticed by the naked eye. Section 176(3) of BNSS provides for the use of forensic science in investigation – it mandates the visit by forensic expert to the crime scene for collection of forensic evidence, in case of an offence punishable for seven years or more and also recording of the process via videography on mobile phone or any other electronic device (This would be effective from the date, as would be notified within a period of five years by the State Government- this lends the states time to develop and establish the requisite machinery for effective implementation of this mandate).
    If the forensic facility is not available then the State Government will notify the utilization of such facility of any other suitable state, until the required facility is developed or made in that particular State.
  6. Speedy Trial & Specific Timeline- Bharatiya Nagarik Suraksha Sanhita, with an aim to strive towards speedy & fair trial and speedy justice, provides for various stringent timelines to complete various steps or processes and hence aims to address the issue of delay and pendency.
    To count a few-
    Section 173(3) – deals with preliminary inquiry in cases of cognizable offences punishable with 3 years or more but for less than 7 years- the preliminary inquiry is to be conducted within 14 days- to see if a prima facie case exists or not.
    Section 184- that deals with the medical examination of an alleged rape or attempted rape victim. Section 184 (3)- provides that the medical report has to be forwarded by the practitioner to the Investigation Officer within 7 days.
    Section 230- Bharatiya Nagarik Suraksha Sanhita prescribes a period of a maximum of 14 days (without undue delay) from the date of appearance or production of the accused, for providing a copy of relevant documents to the victim and the accused (For proceedings instituted on police report). This provision is similar to Section 207 of old Cr.P.C, however, the new provision provides for a specific timeline of compliance and now the copies of documents are also to be provided to the victim, along with the accused.
    Section 258 which deals with Session court trials, mandates delivery of judgment within a period of 30 days from the date of completion of the arguments. This period can be further extended by 15 days i.e. to a maximum of 45 days with reasons.
  7. Advances in the Usage of Digital and Electronic Means- The Bharatiya Nagarik Suraksha Sanhita, has taken due note of the advancement of technology and hence has brought in effective legal provisions to use electronic and digital means, as required. This increases the speed, functionality and precision of the process and results. Illustratively, if a process is recorded as a video, it significantly reduces the chances of tampering or false manual records.
    E.g. Section 105 of BNSS provides for recording of search and seizure through audio-video means. Section 185(2) provides for an audio-video recording of the search conducted by the police officer and the proviso to Section 185(2) adds that such a recording shall be preferably made by a mobile phone.
    There have been instances where electronic means have been adopted for ease, better accessibility or that would effectively enhance the speed of the procedure. Illustratively, Section 230 (similar to the old Section 207 of Cr.P.C)- dealing with the supply of copies of documents to the accused and the victim,  has an added proviso- according to which supply of these documents via electronic means will also be recognized as the proper compliance of the mandate of Section 230.
    Section 530 which is a new addition in itself, provides for discretionary conduct of all trials, inquiries and proceedings in electronic mode, via modes of electronic communication or any audio-video electronic means (the provision uses the term-‘may’- as it allows trials, inquiries and proceedings to be held via electronic mode). This provision emphasizes on the significant inclusion of technological advancements and digital means into the criminal justice system to improve accessibility and efficient functioning of the system.
  8. Power of Sentencing- Bharatiya Nagarik Suraksha Sanhita has incorporated some changes regarding the sentencing power of the Magistrates. Section 23 of BNSS provides that a Judicial Magistrate of First Class (JMFC) can pass a sentence for imprisonment up to 3 years or a maximum fine of Rs.50,000 or both or community service (As per the old Cr.P.C the power of fine was upto Rs. 10,000 and there was no provision for community service).
    As for Judicial Magistrate of Second Class (JMSC) – they can pass a sentence up to an imprisonment of 1 year or a fine of maximum Rs.10,000 or both or community service (As per old Cr.P.C-this power of imposing fine was limited up to Rs.5000/- and there was no such provision of community service).
    As per, Section 25 of BNSS that deals with a conviction for more than one offence under one trial- the provision has been changed as compared to the old Cr.P.C- Earlier, in case of non-mentioning in the judgment by the court, there was a presumption for the punishments imposed to run consecutively. However, as per BNSS, there is a mandate that the courts shall consider the gravity of the offence while deciding on this aspect and shall mention if the punishments are to run concurrently or consecutively.
    Moreover, Proviso (a) to Section 25(2)- states that in case of consecutive sentences, no convict shall be sentenced to imprisonment for a period longer than 20 years, in aggregate (earlier as per Cr.P.C this was capped at 14 years).
  9. Attendance of Witness– The investigation officer has the power to call any person who seems to be acquainted with the facts and circumstances of the case in question. Earlier Section 160 Cr.P.C dealt with this power. Now Section 179 of BNSS deals with this power and has introduced a few changes. The old provision exempted any man below the age of 15 years or above the age of 65 years from attending before the investigating officer at any place other than his residence. However, the new provision reduced the age to 60 years instead of 65 years and extends this exemption to a person with acute illness as well.
    Adding to this, a new proviso has been added (i.e. Section 179(1))- according to which if the people exempted from appearance before the investigating officer, at any place other than their residence, are willing to appear at the police station itself, then based on their choice they can be permitted for such an appearance on the orders of the concerned investigating officer.
  10. Handcuffing- The Code of Criminal Procedure as such had no provision or power for using handcuffs or handcuffing an accused or arrested person. However, Bharatiya Nagarik Suraksha Sanhita (BNSS) now confers statutory power to use handcuffs, as Section 43(3) of BNSS deals with the power to use handcuffs. The said provision confers a subjective and discretionary power on the police officer as it uses the word-‘may’, for a police officer to decide on the usage of handcuffs. This usage in itself is against Article 14, 19 and 21 of the Indian Constitution and is against human dignity.
    Section 43(3) states that ” The police officer may, keeping in view the nature and gravity of the offence, use handcuff while effecting the arrest of a person who is a habitual, repeat offender who escaped from custody, who has committed offence of organised crime, offence of terrorist act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences”.
  11. Mandatory Summary Trial-(Section 283 to 288 of BNSS)- Chapter 22 of The Bharatiya Nagarik Suraksha Sanhita (BNSS) deals with the procedural aspect of summary trials. Earlier Chapter 21 of Cr.P.C dealt with it. The new provision has a legal mandate to try the listed offences as per the summary procedure, as now the new provision under Section 283 of BNSS uses the word –’shall’ instead of the term – ‘may’ which was used in the old legal provision. Moreover, the value of the property (which is the subject matter of the listed offences) under the provision has been increased to a maximum of Rs. 20,000/- in place of the old maximum limit of Rs. 2000/-. Section 283(2) provides that the magistrate may in his discretion (after hearing the accused in this concern) try summarily all or any of the offences which are not punishable with death, life imprisonment or imprisonment exceeding 3 years (earlier in Cr.P.C it was limited to offences not punishable with death, life imprisonment or imprisonment exceeding 2 years).
    Moreover, the decision of magistrate to try a case summarily under Section 283(2) is not appealable.

Significant Deletions

  1. 144A- The provision dealing with the power to prohibit carrying arms in procession or mass drill or mass training with arms.
  2. Metropolitan Magistrates- Courts of Metropolitan Magistrates that were established for the metropolitan area as per Section 16 of Cr.P.C, do not exist as per BNSS.
  3. Metropolitan Areas- defined under Section 2(k)- as areas so declared under Section 8 of Cr.P.C, have been removed.
  4. Posts of Assistant Session Judge- Section 9(3) that dealt with the appointment of Assistant Session Judges under Cr.P.C, no longer finds reference under the BNSS.

Challenges Ahead

  1. Section 23- Community Service– Explanation to Section 23(3) explains that it is a sentence where the court can order for performance of work (that would benefit the community) without remuneration. However, there are no specifics or explanations regarding the timeline, administration, or the specific nature of work or tasks that may fall under the sentence of community service. This leaves a subjective gap in the procedural and substantive aspects of the issue.
  2. Unfettered power to use handcuffs– Section 43(3) grants handcuffing powers to the police in certain cases. To list a few- considering the nature and gravity of the offence, repeat offenders, habitual offenders, or in cases of sexual offences or drug-related crimes. The Bharatiya Nagarik Suraksha Sanhita (BNSS) via this provision gives subjective, discretionary and unchecked powers to the police to use handcuffs in the wide list of cases in the provision. Adding to this the process of handcuffs has been often criticised as being unconstitutional and violative of human rights and dignity.
  3. Lack of Infrastructure- The new provisions of BNSS (Bharatiya Nagarik Suraksha Sanhita) have been drafted to be inclusive of recent technological, digital and medical advancements, as discussed above. However, factually there is a need to exhaustively develop and upgrade the supporting infrastructure and human resources and training, that can effectively make these changes or inclusions functional. Illustratively, electronic trials or proceedings would need a strong internet network, supportive hardware, accessibility and machinery and the understanding of its functioning by various stakeholders involved in the process. Another significant example is what devices and the lack of availability or specific guidelines over the devices that can be used for audio-video recording in investigation or cases of search and seizure. Usage of personal mobile phones or devices may raise a question of authenticity, safekeeping, technical or personal glitches. The functional efficacy of this process and the lacunas or documentary gaps it might create in the process, are to be looked into.
  4. The authenticity of digital records and electronic evidence and the technological understanding- The electronic evidence or digital records in the new age developments and the unprecedented evolution that lies ahead, are at times vulnerable to tampering or derailing. The courts and the people involved will need special understanding and training to deal with these aspects and glitches. These evidences have to be stringently scrutinized and should have a complete chain of authenticity.
  5. Electronic FIR- Section 173(1)(ii) provides for the registration of electronic FIR by the informant, which is to be signed within a period of 3 days by the informant. However, there is no subsequent guideline or provision to deal with instances of non-signing or delay in signing, and its legal consequences.
  6. Preliminary Inquiry vs. Mandate of FIR- Section 173(3)- Section 173(3) of the BNSS now allows for a preliminary inquiry by the officer-in-charge (on approval of DSP) in a given time frame of 14 days. This preliminary inquiry is to check for the existence of a prima facie case, on receiving an information of the commission of an offence which is punishable for imprisonment of three years or more and less than seven years.
    This leaves wide discretion on the officers to opt for conducting a preliminary inquiry, before proceeding with the investigation. Moreover, this provision seems to be in direct conflict with the Supreme Court’s direction in the Lalita Kumari vs. State of UP (2013 INSC 748), which imposed a legal obligation of registration of FIRs on receipt of a complaint of a cognizable offence.  This confers excessive and unchecked discretionary powers on the police officers and leaves the scope of corruption and delay in the investigation or registration of FIR.
  7. Section 187(2)- Default Bail- The new provision of BNSS now grants the police the authority to hold an accused in the police custody for up to fifteen days, whether in one stretch or in intervals, within a sixty- or ninety-day detention period allowed for respective offences under Section 187.
    Earlier, Section 167(2) of the Code of Criminal Procedure (CrPC) which dealt with the aspect of default bail, provided for police custody only during the initial fifteen days of arrest.
    Critics have expressed due concerns that this provision is prone to misuse and may be used as a deliberate means to avoid bail- if a suspect is proposed to be released on bail anytime during the sixty- or ninety-day period, the police could resist the application in the court on pretext of need of police custody. This seems to be a major issue, considering the under-trial prisoners, over-crowded prisons and pendency are already a concern.

In conclusion, The Bharatiya Nagarik Suraksha Sanhita (BNSS) has been objectively drafted to suit and adopt the changes brought in by time, the leap of technological & medical advancements and the changing purview towards the criminal justice system.

The procedural law and procedure laid down are bound to face impediments in the functional application, as the future or various permutations are not precisely perceivable and the solution would lie in marking and adapting to the requisite improvements in infrastructure, functioning, and factual requirements that would present themselves on a real-time basis.

The BNSS has been drafted and is to be applied to work towards a citizen-centric justice system, while balancing the rights of the accused, victim and an equitable society.

To know more about The Bharatiya Nagarik Suraksha Sanhita, 2023 and for an exhaustive coverage, refer to-

The Bharatiya Nagarik Suraksha Sanhita (BNSS) , 2023 (46 of 2023)-

The Bharatiya Nagarik Suraksha Sanhita repealed The Code of Criminal Procedure. To know the legal provisions and the basics bare act is a necessary legal resource for professionals, academicians and students alike. The bare act lays down all the provisions of the BNSS alongwith the reference to the old provisions for easy navigation.

Ratanlal & Dhirajlal: The Bharatiya Nagarik Suraksha Sanhita, 2023

The trusted and authoritative classic, methodically analyzes the provisions of The Bharatiya Nagarik Suraksha Sanhita, 2023 with necessary reference to the old provisions of the Code of Criminal Procedure, 1973. It highlights the changes, new provisions and omissions, along with landmark cases and recent judgments. It ensures that spirit and essence of the original work is maintained, preserving its relevance and applicability to both the Act and the BNSS.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) & The Code of Criminal Procedure, 1973 (2 of 1974): A Comparison

As the readers and professionals navigate from old to the new provision, a comparative outlook is sure to be of best use. A reliable source of reference which serves the dual purpose at one place, with comparative charts and highlighted differences between the BNSS and the old provisions of Cr.P.C.

Concise Commentary on The Bharatiya Nagarik Suraksha Sanhita, 2023

The exhaustive commentary is a crisp and authoritative resource book with insightful details and has been structured as a handy guide lying between bare act and a voluminous commentary. The commentary comes with a comparative contextual reference to the old law i.e. Code of Criminal Procedure (Cr.P.C).

Decoding Bharatiya Sakshya Adhiniyam, 2023: Comparative Insights & Study with Indian Evidence Act, 1872

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Introduction

Age-old criminal laws of India were recently replaced and reformed by a new set of three criminal laws in India. The new criminal laws came into effect on July 1, 2024, after receiving the President’s assent on December 25, 2023.

As you scroll along, the blog will deal with a comparative view of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) & The Indian Evidence Act, 1872, the need for the replacement of the old law, along with critical insights into the Bharatiya Sakshya Adhiniyam, 2023, its new provisions, omissions, alterations and legal effects of the changes.

Deciphering the Need for the Reform

Back in the year 1871, Sir James Fitzjames Stephen prepared the draft, which was enacted as Act I of 1872 to define, amend, and codify the law dealing with evidence in India and it came into being as The Indian Evidence Act, 1872.

However, since then, the human being, society, its functioning and the means of the existence and operation of all its elements, have evolved across all dimensions. The ways to commit and trace the crime, have both changed. A lot of legal provisions and legal terms had become irrelevant or were mere connotations of colonial references and hence were no longer needed. There has been continuous growth in technological advancements and even some remarkable leaps in a few places, since 1872.

All of this cumulatively paved the reasons for the changes in the evidence law- which were first significantly brought in by the amendments induced by the Information Technology Act, 2000, and now with an entirely new piece of legislation i.e. Bharatiya Sakshya Adhiniyam, 2023 (BSA).

Understanding The Bharatiya Sakshya Adhiniyam, 2023

Evidence is an important component of the justice system and court cases, as it is evidence i.e. the ‘Sakshya’, the facts and proofs that help to prove or rebut the stance and cases. Amongst many types and circumstances, it can be broadly categorized into the following groups- oral and documentary, direct and indirect, primary and secondary, and another significant type being documents in their traditional sense and digital and electronic evidence.

Bharatiya Sakshya Adhiniyam, 2023 (BSA) is structured with 4 parts, 12 chapters, and 170 sections in total. The Adhiniyam proposes to consolidate and lay down general principles and rules of evidence for the objective of fair trial.

The Bharatiya Sakshya Adhiniyam has adopted modern, simple and contemporary legal terms at requisite places and has removed or replaced obsolete, irrelevant, or old terminologies or language.

The BSA represents and reflects a modern and technologically supported legal landscape, paving a shift towards a modern and digital era.  It expands the scope of admissibility at certain places or has made an effort to clarify and simplify certain provisions.

This new legislation aims to aptly structure and simplify the law and procedures of evidence and to align it with modern aspects and developments, aiming towards justice and a fair trial.

Bharatiya Sakshya Adhiniyam at a Glance: Key Features and Comparative Changes

  1. Adjective Law & Lex Fori- Bharatiya Sakshya Adhiniyam (BSA) is the law of the place (Lex Fori) i.e. it is to be applied as per the place where the dispute (i.e. question in the court) arises.
  2. Ambit of General Applicability– The Adhiniyam has widened the scope of the general applicability of the BSA via Section 1(2), as compared to the old Indian Evidence Act, 1872. The Bharatiya Sakshya Adhiniyam now applies to all the judicial proceedings in or before any court including the court martial, but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator. Earlier, The Indian Evidence Act, 1872 excluded the applicability to the Court-martial convened under the Army Act, the Naval Discipline Act or the Indian Navy (Discipline) Act, 1934 or the Air Force Act.
  3. Expanded Scope of Evidence & Documents– Bharatiya Sakshya Adhiniyam (BSA) has significantly expanded the scope of the terms ‘evidence’ and ‘documents’.
    Section 2(d) defining the term “document” has significantly increased its ambit by using the term ‘any other means’ as a mode of expression, description or recording.   Moreover, by its very definition documents are meant to include electronic and digital records. Illustratively, electronic records on server logs or any documents on your laptop are documents and can be used as evidence.
    Section 2(e) of the Bharatiya Sakshya Adhiniyam defines the term “evidence” (the old Section 3 of The Indian Evidence Act, 1872). The new definition includes electronically given statements as oral evidence (e.g. statements by a witness via video conferencing) and electronic or digital records as documentary evidence.
  1. Expanded ambit of proof- Bharatiya Sakshya Adhiniyam (BSA), has made a few changes- increasing the scope of proof via documents or electronic or digital records.
    As for the proof of documents via primary evidence, four new explanations have been added to Section 57 (Explanations 4 to 7) –”Explanation 4 – Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.Explanation 5 –Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed. Note*- This works on account of the authenticity of a document in proper custody and hence is treated as primary evidence by virtue of this explanation.Explanation 6 – Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.

    Explanation 7- Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.”

    Section 58- providing for a list of secondary evidence, now includes- oral admissions, written admissions and evidence by a person (skilled in examination) who has examined the document in dispute, where the original of the said document consists of numerous accounts or other documents which cannot be easily examined in the court (i.e. three new sub-clauses have been added). Moreover, the term ‘means and includes’ (under old Section 63) has been substituted with ‘includes’ under the new provision i.e. Section 58- which by interpretation provides an inclusive list instead of a limited and exhaustive list that was earlier provided in the old provision.

    Section 61 brings electronic evidence and digital records at par with any other documents, subject to fulfilment of other legal requisites. It mentions that nothing in Adhiniyam would as such deny the admissibility of the electronic or digital record in evidence on the ground that it is an electronic or digital record and subject to the requisites of Section 63 regarding its admissibility, it would have the same legal effect, validity and enforceability, like any other document.

  1. Electronic Evidence– The Adhiniyam doesn’t specifically define it. However, Section 2 (2) of BSA – expressly states that reference can be made to the Information & Technology Act for such terms which have not been defined here.
    Explanation to Section 79A of the IT Act, 2000, defines the term -‘electronic form of evidence’ -to mean any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.
  1. Joint Trial & Confession of Co-Accused- Section 24 deals with the confessions of a co-accused, who are being jointly tried for the same offence. Explanation II to Section 24 is a new addition (as compared to the old provision)- It deals with situations of Trial –In – Absentia- and the question of it being a joint trial in such circumstances for the relevancy of the confession of a co-accused. It states that- ‘A trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall be deemed to be a joint trial for this purpose.’
  1. BNSS and BSA– The addition of words “including statements given electronically” under Section 2(e)(i) is also in line with changes brought about in BNSS, which now permits all trials, inquiries and proceedings to be held in electronic mode, by use of electronic communication or use of audio-video electronic means. (Specifically provided via legal provisions and no more a discretion).
  2. Authentic & Genuine Chain of Custody– Section 57 of BSA, now provides that an electronic or digital record produced from proper custody shall be primary evidence. In addition, Section 80 of BSA states that “The Court shall presume the genuineness of every document purporting to be the Official Gazette, or to be a newspaper or journal, and of every document purporting to be a document directed by any law to be kept by any person -if such document is kept substantially in the form required by law and is produced from proper custody.” Explanation attached to Section 80 speifically mentions as to what can be duly considered as a proper custody (i.e. A document is said to be in proper custody if it is in the place in which, and looked after by the person with whom such document is required to be kept; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render that origin probable).
  3. Specific Certificates– The Bharatiya Sakshya Adhiniyam, provides specific formats for the certificates needed to prove electronic evidences, provided in the schedule i.e A certificate signed by the ‘person in charge’ and ‘an expert’ and the certificate has to mandatorily follow the annexed format.
    By adding in the legal pre-requisite and obligation of certification by experts under sub-section 4 of Section 63, BSA now builds an extra layer of accountability and credibility for the admissibility of statements made electronically in evidence (through audio/video mode).
  1. Coercion- Section 22- This provision deals with a confession by the accused caused by inducement, threat, coercion or promise. Here, ‘coercion’ has been added as a new term and such confessions lose legal effect and are inadmissible.
  2. Section 39- This provides for the opinion of experts and its relevance under the Adhiniyam. The Adhiniyam provides that the court can seek the opinion of the expert of the field on- ‘any other field’ amongst the others specifically listed in the provision. Hence, the scope of cases or issues where courts can call for an expert opinion has been substantially increased.
  3. Section 138- Accomplice-Previously, the law addressed convictions not being illegal if solely based on an accomplice’s uncorroborated testimony. However this position has changed with the new provision (i.e. Section 138) according to which such a conviction is not illegal (and hence is legal and acceptable), if it is rather based on the corroborated testimony of the accomplice in question. So, the old rule of prudence has been expressly included in the new provision, whereby a valid conviction on the basis of accomplice’s testimony is possible only if it is backed by corroborative evidence.
  4. Section 165- It imposes a legal obligation on the witness called on by the court to produce a document, to present the document to the court.
    As for the change compared to the old evidence law- it adds a proviso to the provision- which exempts any communication between the Ministers and the President, from the obligation of production before the court.

List of Omissions

Following is the list of the provisions of The Indian Evidence Act, 1872 that have been omitted from The Bharatiya Sakshya Ahiniyam, 2023-

  1. Section 3 (j) – India.
  2. Section 82: Presumption as to document admissible in England without proof of seal /signature.
  3. Section 88: Presumption regarding telegraphic messages.
  4. Section 113: Proof of cession of territory.
  5. Section 166: Power of Jury or assessors to put questions.

Challenges in the Implementation of Bharatiya Sakshya Adhiniyam

The new law on evidence i.e. Bharatiya Sakshya Adhiniyam may be confronted with certain impediments or challenges in its application and effect-

  1. Secondary evidence as for electronic evidence and digital records are now supposed to be accompanied by a certificate of an expert as well. However, the Adhiniyam is silent as to who will be these examiners or experts or their eligibility or qualification for validating the authenticity of the electronic evidence via this certificate. Along with this is the process of examination of authenticity by the examiner and how would the examiner be engaged by the private parties and the question of time and infrastructure to be involved in it.
  2. Another question that can be considered is- if any electronic evidence or digital records were submitted to the court prior to the enactment of the new law, but either a certificate under Section 65B of the Indian Evidence Act, 1872 was not provided, or the one submitted was defective. Should the certificate now be tendered in accordance with the Indian Evidence Act, 1872 and hence be allowed at a later stage or the BSA, given that the trial is still ongoing? One of the possible explanations lies with Section 170 – where such a situation would fall within the ambit of being a pending trial. However, it may still come as a question before the courts to decide, considering the pendency of the certificate itself.
  3. Another question or point of concern may be the lack of infrastructure and technological know-how, to deal with the electronic evidence and digital records and the entire cycle of dealing with them. Hence, there is an assertive need to update and develop the infrastructure and human knowledge or resources to align with the changes brought in by the Bharatiya Sakshya Adhiniyam, 2023.

In conclusion, society and human functioning have evolved with time and technology and hence the evidence law needed an update to synchronize itself with these changes and technological advancements. However, adaptation to the new law, its process, and the machinery included with its functioning will take its own time and is bound to be confronted with certain glitches. The courts have to be conscious of maintaining a balance between the evidence via the new technological shifts and the concerns of data privacy. Adding to it, the courts have to stringently observe that the authenticity of the electronic and digital evidence is maintained and is not compromised by any means, as technology is prone to glitches and tampering.

The wise formula will be to adapt and adopt, along with time and judicial reasoning. For detailed reference and insights refer to-

Recommended Books:

  1. Bare Act of Bharatiya Sakshya Adhiniyam–The Bharatiya Sakshya AdhiniyamThe Bare Act is a basic and essential requisite for academicians, students, researchers, professionals and judicial officers alike.
  2. Ratanlal & Dhirajlal: The Bharatiya Sakshya Adhiniyam, 2023–
    It is one of the most trusted and classic reference for criminal law and hence the new Bharatiya Sakshya Adhiniyam. The commentary is a detailed, section-wise book on the Adhiniyam that critically examines the new provisions introduced by the Adhiniyam and highlights the changes introduced in the provisions of the Indian Evidence Act, 1872.
  3. Textbook on The Bharatiya Sakshya Adhiniyam, 2023 by Chief Justice M Monir-Textbook on The Bharatiya Sakshya Adhiniyam, 2023 by Chief Justice M Monir-
    Insightful commentary that intricately deals with the new law and highlights the changes. An authoritative reference of all times, in its new edition- provides a comparative outlook along with landmark judgments.
  4. The Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) & The Indian Evidence Act, 1872 (1 of 1872): A Comparison by Bharat P. Maheshwari-The Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) & The Indian Evidence Act, 1872 (1 of 1872): A Comparison by Bharat P. MaheshwariThe commentary provides insights into the changes brought in by The Bharatiya Sakshya Adhiniyam. It comes with comparative charts highlighting amendments and changes.
  5. Electronic Evidence in the Courtroom: A Lawyer’s Manual by Yuvraj P Narvankar-Electronic Evidence in the Courtroom: A Lawyer’s Manual by Yuvraj P Narvankar
    This authoritative guide within its arc covers the entire aspect of electronic evidence
    from the stage of obtaining it to the judicial examination of the evidence, backed by
    practical insights and significant case laws.
    Covers and deals with-
    Important formats
    Forensic tools
    SC & HC Judgments
    Three new criminal laws & other allied laws
    Pictorial explanations for technical procedures of electronic evidence
    The commentary is a trusted and enriched resource for lawyers, judicial officers,
    police officers and academicians.
  6. Concise Commentary on The Bharatiya Sakshya Adhiniyam, 2023 by Sharath Chandran-
    Concise Commentary on The Bharatiya Sakshya Adhiniyam, 2023 by Sharath Chandran
    The concise commentary has been concisely structured in a format between a Bare Act and a Commentary. Hence, it aids in an easy transition and reference towards the new provisions. It comes with commentary and landmark judgments, along with the table of cases and subject index.

Reforming The Indian Penal Code: Insights into Bharatiya Nyaya Sanhita, 2023

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The old criminal laws were recently reformed and replaced by a new set of criminal laws developed by the Indian legislature. The Bharatiya Nyaya Sanhita, 2023 received the President’s nod on December 25, 2023, and came into legislative force and effect on July 1, 2024, replacing Lord Macaulay’s age-old Indian Penal Code, 1860.

The new laws are meant to walk in hand with the changes and advancements brought in by time and technology and to meet the modern perspective of society and justice. The blog ahead will deal with the brief over the Indian Penal Code & the need for its replacement, along with critical insights into the Bharatiya Nyaya Sanhita, 2023, its new provisions, omissions and alterations.

The Call of Reform: Harbinger of Bharatiya Nyaya Sanhita, 2023

The Indian Penal Code (IPC) was drafted by the chairman of the first Law Commission, Thomas Babington Macaulay. IPC was losing its relevance and had its own questions to fill in, with the change of time. Society has undergone multi-dimensional and layers of changes in terms of various aspects, illustratively medical advancements, technological shifts, socio-cultural understanding, monetary value etc.

Earlier the Penal Code functioned with an approach to punish for the crime in question, even this approach has taken its own turns towards reformation. Certain terms or colonial-era legal provisions have lost the need or effect of their being. The present-day crimes mirror some new kinds and approaches of criminality, owing to a shift in the socio-economic elements, social functioning, technology and technique. As an illustration, cyber-crimes have deepened their roots across geographical boundaries, as a new age crime. The ticking time also called for some reformation and a new age approach towards punishments attached to the crimes in question, e.g. increase in the amount of fines to match up to the present-day value for money and community service as a form of punishment. Hence, the sweep of time called for a sweep of changes to align with the present-day functionalities.

What Called for the Reforms?

The Foundational Features and Legal Provisions of Bharatiya Nyaya Sanhita (BNS)

This year Bharatiya Nyaya Sanhita i.e. BNS, has replaced the Indian Penal Code (IPC) and it came into effect from July 1, 2024.

*(All the provisions of the Sanhita came into force, except Section 106(2) that deals with the hit and run cases i.e. death caused by rash and negligent driving- has been kept on hold and is still not in effect).

Some of the key elements and provisions of BNS are –

  1. Codified Substantive Law- Bharatiya Nyaya Sanhita, which replaces the old Indian Penal Code (IPC), is a codified substantive criminal law. It provides for acts or omissions that would make a criminal offence and the consequent punishments, fines, or the rights of the victims.
  2. Structure and Organisation- The Indian Penal Code i.e. IPC had 23 chapters and 511 sections in total. The Bharatiya Nyaya Sanhita, 2023(i.e. BNS), has been framed as a new law- categorized into 20 chapters with 358 sections in total (laying down various legal provisions and offences under the Sanhita).
  3. Specific Definition Clause and Contextual references- Bharatiya Nyaya Sanhita has a separate section and provision dealing with the definitions for the terms used in the BNS. Section 2 of the Bharatiya Nyaya Sanhita specially lists down all the terms and provides for a contextual reading and understanding of those terms (as an exception), as and where required, according to the other provisions of the BNS.
  4. Recognizes Transgender- The Bharatiya Nyaya Sanhita, 2023, specifically recognizes ‘transgender’ as a gender alongside ‘men’ and ‘women’ under Section 2(10)– as for reference of pronouns in the Sanhita. IPC identified only ‘men’ and ‘women’ in reference to the definition attached to the term ‘gender’ in the code. This is a welcome change in the approach, as with the changing times, transgender people and their rights have been recognized via various judgments and changes in the society. The apex court recognized the transgender and their right to self –identification in the landmark case of NALSA vs. UOI (2014) (2014 INSC 275).
  5. Crimes Against Children & Women- The BNS, has specially categorized a specific chapter for offences against women and children as one category, under Chapter 5 of the Sanhita. This includes sexual offences, criminal force and assault, marriage-related offences, miscarriage and crimes against children. Categorizing the offences against children and women together under one chapter ( i.e. chapter no. 5) draws a parallel between the social vulnerability of both and keeps them on an equal footing, owing to the clubbing together of these two as one kind of a category, which has drawn its own criticism from the critics. However, as a fact, these two are vulnerable in terms of exposure to crime in terms of gender-specific offences and age vulnerabilities and hence need specific attention and categorization. Putting the women and children, as one category causes any harm in terms of social or legal perceptions or implications or not, will be tested over time.
  6. Reformative Form of Justice- Initially, in the colonial era, crime and law were driven by the force to punish and establish a deterrent theory.
    However, with the passage of time, the view- views the objective behind the operation of the criminal law and the infliction of punishment have changed. The criminal law aims towards the reformation of the convict and rehabilitation, along with a victim-centric approach. The considered view taken by the courts and the reformative theory is that – every saint has a past and every sinner has a future.
    Community service has been added as a new form of punishment under Section 4 of the Sanhita, reflecting a reformative and restorative form of justice in cases involving first-time offenders or lighter offences. 
  7. Wider Ambit of Documents- The Bharatiya Nyaya Sanhita has increased the ambit and legal effect of what can be counted as a document. With the leap of technology in the hands of time and digitization of the world, the ambit, the making and the mode of storage, of the documents has widely changed. The definition of the term ‘document’ now includes electronic and digital records (i.e. Section 2(8)).
  8. Corporeal and Incorporeal Property- Section 2 (21) defines ‘movable property’ to be inclusive of everything, which doesn’t fall within the term ‘immovable property’ and is not qualified by the reference of corporeal property (i.e. “it includes property of every description, except land and things attached to earth or permanently fastened to anything which is attached to earth”). Hence as per BNS, the movable property may be corporeal or incorporeal.
  9. Increased Extra-Territorial Applicability – The Bharatiya Nyaya Sanhita, now penalises abetment of offence outside (i.e. without and beyond India) India, for the commission of an offence within India. Section 48 of Sanhita, provides for abetment outside India for offences in India- “A person abets an offense within the meaning of the BNS if they, without and beyond India, abet the commission of any act in India which would constitute an offense if committed in India.”
  10. Consent and Age- As per the Explanation 2 of the Section 375 of Indian Penal Code, sexual intercourse by a man with his wife was punishable if she was under the age of 15 years of age (as otherwise marital rape is not recognized as an offence). However, this was read down by the Supreme Court in Independent Thought vs. Union of India (2017 INSC 1030), and the age was raised to 18 years instead, in this provision (i.e. the age of majority and in consonance with the provisions of POCSO).
    BNS has now expressly raised this age of consent in the case of wives- to 18 years (i.e. Exception 2 of Section 63). Though, marital rape except in the case of a wife below the age of 18 years (i.e. age where there is legally no recognition of consent under POCSO), is still not recognized as an offence under the Sanhita.
  11. False Promise To Marry (Section 69) – Bharatiya Nyaya Sanhita has specifically recognized the offence of sexual intercourse on the pretext of any deceitful means, which expressly includes intercourse on a false promise to marry. This is made an offence (though the act is consensual and not rape in itself) as here the very consent for the act is based on deceit and as per the judicial pronouncements such a promise in question, should be false (i.e. with no intention to fulfil) from the very inception.
    Recently, in MAHESH DAMU KHARE VS. THE STATE OF MAHARASHTRA (2024 INSC 897), the apex court has asserted that for an act to be an offence of sexual intercourse on false promise to marry- the alleged relationship or intercourse must be proved to be only based and carried on, on the faith of such a false promise to marry.  Adding to this the duration of the relationship has to be factored in, as the court opined that in cases of long-standing physical relationships, false promise cannot be certainly claimed to be the basis of carrying on such a relationship.
  12. Gender Neutral References- The word ‘man’ has been replaced by ‘whoever’, for a reference to the offender/accused in Sections 76 and 77 (dealing with offence of Assault or Criminal Force against a woman with the intention of disrobing her and Voyeurism, respectively) of BNS.  Hence, a gender-neutral ambit to cover any accused against these specific offences has been adopted in the Sanhita.
    Similarly, Section 366A of IPC- provided for the offence of procuration of minor girls. However, Section 96 of BNS deals with offence of procuration of any child (irrespective of gender as the term used is ‘any child’).
  13. Section 106- Medical Negligence– Section 106(1) of Bharatiya Nyaya Sanhita, provides a separate and specific reference to a death caused by the negligence of a medical practitioner, in the course of a medical procedure. The Sanhita tends to construct a comparatively liberal approach in cases of medical negligence as against other cases. It provides for a lesser punishment i.e. imprisonment up to 2 years (simple or rigorous) and a fine.
  14. Snatching (Section 304) – BNS provides for a separate and specific offence of cases where theft is snatching. The offence of snatching has been on the rise and had become a usual scenario for past some time and hence a separate recognition and provision for this crime is an appropriate approach. It includes seizure, securing, grabbing or taking away of a movable property- for theft.
    Section 304(2) of the Sanhita –punishes the person for the offence of snatching with imprisonment up to 3 years (either description) and fine.
  15. Sedition Law- Bharatiya Nyaya Sanhita has removed any reference to the sedition law, which earlier was so termed and was an offence under Section 124A of the old Indian Penal Code. The constitutional validity of the old Section 124A under IPC, was challenged under SG Vombatkere vs. UOI (WRIT PETITION(C) No.682 OF 2021), before the apex court on the basis of Article 14 and Article 21 of the constitution. The constitutional validity of the sedition law was earlier upheld by the Supreme Court in Kedar Nath Singh vs.State of Bihar (1962 INSC 17) However, the grounds of challenge were different and the court considered the validity only on the threshold of Article 19(1)(a) and hence needs a reassessment under the wider and evolved aspects of the constitution.

Considering this the apex court restrained the police from registering any new FIR or registering any cases under 124A IPC. The Supreme Court has referred the petition to a 5 Judge bench, to decide on the validity of the said provision.

Over the aspect and claim of ‘sedition law’ having been removed from the new law (i.e. BNS replacing the IPC)- the Supreme Court still considered the reference to be made essential, as the new criminal law will be prospective in its application and effect, and hence the constitutional validity of the old provision has to be essentially tested for the sake of already registered cases or the ongoing prosecution under Section 124A of Indian Penal Code.

Theoretically, the term and the colonial offence of ‘Sedition’ as worded in the old law finds no place in the Bharatiya Nyaya Sanhita.

However, Section 152 of Bharatiya Nyaya Sanhita, 2023 (i.e. BNS) deals with ‘ Acts endangering sovereignty, unity and integrity of India’.

The provision lays down that – If anyone, purposely or knowingly (i.e. highlights the element of intention, knowledge or object), by spoken or written words, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise( I.e. it covers all the means of expression and communication including any form of electronic communication and hence projects wide ambit by using the word ‘otherwise’ to cover every possible means that can be used to express or convey), excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.

Consequently, the provision has a rephrased and new-found place in the Sanhita, with a new name. 

Key Omissions: Bharatiya Nyaya Sanhita -A Shift Against The Backdrop of IPC 

Some of the provisions and old legal expressions that had turned obsolete or had lost their meaning or intended legal effect or need of reference in substantial criminal law, have been repealed and omitted from the new Bharatiya Nyaya Sanhita, 2023 – including many of the sections or legal expressions that already stood repealed via amendments to the Indian Penal Code.

List of some important omissions

Section (IPC) Subject/Provision
Section 18 India

 
Section 50 Sections
Section 53A Construction of Reference to Transportation

 
Section 124A Sedition
Section 153AA Knowingly Carrying Arms in Any Procession or Organizing or Holding or Taking Part in Any Mass Drill or Mass Training with Arms.
Section 236 Abetment in India of Counterfeiting Out of India of Coin
Section 264 to 267 (Chapter 13) Offences Related To Weights and Measures
Section 309 Attempt To Commit Suicide
Section 310 & Section 311 Thug
Section 377 Unnatural Offence
Section 444 Lurking House Trespass by Night
Section 446 House Breaking by Night
Section 497 Adultery

 

Operational Barriers and Challenges for Bharatiya Nyaya Sanhita, 2023

The new Bharatiya Nyaya Sanhita, 2023 came into operation from July 1, 2024. This substantive law being absolutely new in its legal effects and application, along with some significant additions and changes, will have its own share of practical challenges in effective implementation.

  1. Logistic Roadblocks- The substantive criminal law (BNS), has expressly recognized the growth in technology. To illustrate, reference to ‘documents’ in BNS now includes electronic and digital records (i.e. Section 2(8)). Handling of such records, different legal and practical implications and varied technological aspects or glitches will be some of the questions that would find their place along the way.
  2. Deletion of Section 377- Bharatiya Nyaya Sanhita has absolutely removed any reference of the unnatural offences (i.e.Section 377 IPC). Section 377 was partially struck down by the five-judge bench of the Supreme Court in Navtej Singh Johar vs. UOI (2018 INSC 790) (i.e. in cases of consensual sexual intercourse – as it de-criminalised same-sex relationships between consenting adults). However, the rest of the offence was retained i.e. for cases of non-consensual intercourse, bestiality and sodomy. However, BNS fails to consider these acts as an offence, leaving a huge gap prone to misuse and evasion from accountability against criminality.
  3. Section 152- Wide and Undefined Ambit – Section 152 of BNS, deals with –‘Acts endangering sovereignty, unity and integrity of India.’
    The terms used and language are vague, subjective and wide and prone to misuse or miss application by authoritative hands. Section 152 mentions of this offence against – ‘India’ instead of just the ‘government established by law’ and hence widens the scope of activities and effect. There is no explanation or specific definition attached to reflect what exactly falls within the ambit of- ‘subversive activities’ or ‘separatist activities’. The provision will find its true construct and its ambit with time via various judicial pronouncements.
  4. Community Service- Community Service has been added as a new form of punishment under Section 4(f) in the BNS. However, the Sanhita has neither any provision or reference as to what acts would fall within the definition of this ‘community service’ nor does it provide for the mode and method of its administration and continuous supervision.
  5. Conflicting Duplication – The BNS being the general criminal law dealing with offences, has made a reference to some offences which are also dealt and punished by existing special laws, which leads to duplication of provisions. For example, the Bharatiya Nyaya Sanhita provides for offences of ‘organised crimes’ and ‘Terrorism’ (Section 111 to 113). However, these offences are already dealt with, by special laws along with special criminal procedures along with stringent and required procedural expertise and safeguards. This leads to an unwanted overlap and an approaching conflict in future cases.

Conclusion

Concluding, the Bharatiya Nyaya Sanhita, 2023, which has replaced the old Indian Penal Code was very much the need of the time. BNS has been framed according to the technological shifts and advancements and the changes in the socio-economic sentiment or the approach towards criminality or the new offences or modes of offences, along with requisite alterations and omissions. The new structure is bound to have its own issues in legal implementation, as all the future scenarios are not predictable. The provisions will be open to judicial and legal commentaries and interpretations and will adapt to the intended legal effect.

Explore the Best Books & Commentaries on Bharatiya Nyaya Sanhita, 2023 at LexisNexis

For detailed insights and comparative understanding of Bharatiya Nyaya Sanhita, 2023, choose from the best available books & commentaries at LexisNexis-

The Bharatiya Nyaya Sanhita (BNS), 2023 (45 of 2023)

To read and know the provisions of Bharatiya Nyaya Sanhita, 2023- bare act is a must have. The bare act comes with tabular comparison and short comments over the relevant provisions.

Ratanlal & Dhirajlal’s The Bharatiya Nyaya Sanhita 2023, 36th edition

A trusted classic for reference over the subject, lucid & exhaustive for the readers. The notable commentary is an essential and celebrated resource for criminal law. The book provides for comprehensive commentary on new provisions of the BNS and the old retained provisions of the Indian Penal Code. The updated edition provides for an authoritative analysis of the new law, while it retains its classic essence, which makes it a favourite amongst readers.

The Bharatiya Nyaya Sanhita, 2023 (45 of 2023) & The Indian Penal Code (45 of 1860): A Comparison” by Bharat P. Maheshwari

The commentary by Bharat P Maheshwari is a comprehensive and trusted  legal resource published by LexisNexis. The format and lucid writing caters to needs of the potential readers and includes side by side comparative references, charts and highlighted changes.

Textbook on The Bharatiya Nyaya Sanhita, 2023 by K D Gaur

An exhaustive and authoritative commentary on the new provisions of BNS along with the old provisions that have been retained from the Indian Penal Code, for a complete and comprehensive understanding of the new law in force. For a reader friendly reference, the book comes with tabular comparison and highlights the relevant changes in the legal provisions. K D Gaur’s textbook comes with legal annexures providing for the rights of accused, compensation to the victims of crime and guidelines to effectively study and understand criminal law.

Concise Commentary on The Bharatiya Nyaya Sanhita 2023 by Anjana Prakash & Anuj Prakaash

A well structured commentary with comparative legal provisions and details and has been written in a format that lies between bare act and a voluminous commentary, and hence can be a preferred choice for readers who need brevity and yet a complete coverage over the subject. The commentary provides a comparative reference to the provisions of the old law i.e. Indian Penal Code, at relevant places.

India’s Three Criminal Laws: Key Elements & Features

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The three new Criminal laws came into force on July 1, 2024, replacing the three old criminal laws, and they were repealed, by the legal implication of new laws in force.

The criminal justice system has had its own share of challenges with questions over infrastructure, laws being punishment centric, over-stretched trials, pendency, gaps and elongated investigations, overcrowded prisons with under-trial prisoners.  The old laws were very much in need of changes to match up to the new age requirements, technological advancements and to fill in the identified gaps, hence, the new laws brought in an entire overhaul.

Bharatiya Nyaya Sanhita, 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA), displaced the existing Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Indian Evidence Act, respectively and brought in the new criminal law legislations in its place. The blog ahead, discusses the features and the important provisions of the three new laws.

Bharatiya Nyaya Sanhita, 2023: Replaces & Dislodges The Age Old Indian Penal Code, 1860

The Bharatiya Nyaya Sanhita, 2023 replaced the Indian Penal Code, that was drafted by the first law commission chaired by Thomas Babington Macaulay. Some of the crucial features and elements of the BNS are discussed below.

  • Community Service- Section 4 of the Bharatiya Nyaya Sanhita provides for six types of punishments i.e. Death Penalty, Life Imprisonment (i.e. rest of the convict’s life), Rigorous or Simple Imprisonment (Nature of punishment for certain period), Forfeiture of Property, Fine and Community Service.
    Community service has been added as the new type of punishment. This punishment intends to work towards reformation and restorative justice, for a convict of minor offences.Some of the offences providing this as punishments are – non-appearance in response to a proclamation, theft by 1st time convict (where the value of the stolen property is less than five thousand rupees and returns or restores the value of property), misconduct in public by a drunken person.
  • Erasure of Specific Terms – Bharatiya Nyaya Sanhita, has changed or displaced references to few of the legal terms in its provisions, for better references or legal implications. The connotation or word ‘minor’ in the provisions of the Indian Penal Code has been replaced with ‘child’at all the relevant places in the BNS, as the Indian Majority Act provides for minor being a person under 18 years of age and hence identical to what is termed as ‘child’, in the law .
    The word gender includes transgender. Movable properties now include property which is corporeal or incorporeal.
  • Mob lynching- has been a rising concern, BNS has considered it with specific relevant provisions.
    Section 103(2)- The provision covers the crime of mob lynching by a certain number of people (i.e.five or more). It punishes for murder committed by a group of 5 or more people, while acting in concert together – on the grounds of race, caste or community, sex, place of birth, language, personal belief or any other similar ground.
    Section 117(4)- Voluntarily Causing Grievous Hurt- When a group of five or more persons acting in concert, voluntarily causes grievous hurt to a person on the ground of his race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be guilty of the offense of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
  • Crime Against Women- The Bharatiya Nyaya Sanhita (BNS) categorically provides for distinct and specific chapter, pertinently covering crimes against woman and children (i.e. Chapter 5, Section 63 to Section 99). The provisions dealing with this category of offence under Sanhita includes sexual offences, criminal force, assault, offences related to marriage and others.
    There have been views reflecting concern that this draws a parallel between the status of children and women, in terms of vulnerability, dependency or the need of protection in the societal setup. However, this also highlights that BNS identifies both of them as special categories which indeed need specific attention and categorized provisions, to deal with rising crime against them, which cannot be overlooked as a fact.
  • Organized Crimes & Terrorism- Bharatiya Nyaya Sanhita, specifically carves and lays down the provisions for organized crimes and terrorism, and hence making them an offence under the BNS itself. It is noteworthy that this is a new legal provision under this substantive law which succeeds the IPC and was earlier comprehensively covered only under the special laws.S.111(1)- provides that – Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber crime, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime.Section 111 covers other aspects like abetment, attempt, membership etc. as well, for the organised crime.There are other special laws that deal with the organized crime and terrorism, with special provisions and procedures, with essential safeguards in procedure, for such heinous crimes. These provisions in BNS (which is a general criminal law) now overlap and cut across  other specific laws.Explanation attached to the provision dealing with terrorism i.e. Section 113(7) – states that it is for the officer not below the rank of Superintendent of Police to decide that such a case be registered under S.113 or under the special legislation i.e. Unlawful Activities Prevention Act (UAPA).

Discover the Best Books on Bharatiya Nyaya Sanhita (BNS), 2023 at LexisNexis

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The Bharatiya Nyaya Sanhita (BNS), 2023 (45 of 2023)

The Bharatiya Nyaya Sanhita repealed the Indian Penal Code. Bare Act is a must have resource and an all-time reference. This bare act lays out an exhaustive tabular comparison with the provisions of Indian Penal Code.

Find the three new criminal law bare acts here.

Textbook on The Bharatiya Nyaya Sanhita, 2023 by K D Gaur

The textbook unravels an exhaustive and comprehensive commentary on new provisions of BNS as well as the old provisions that have been retained from the erstwhile IPC. For an easy reference the book provides for tabular comparison and highlights the contextual changes. The book envelops legal annexures documenting and attending the rights of accused, compensation to the victims of crime and guidelines to effectively study and understand criminal law.

The Bharatiya Nyaya Sanhita, 2023 (45 of 2023) & The Indian Penal Code (45 of 1860): A Comparison by Bharat P. Maheshwari

The commentary is an exhaustive and reliable resource published by LexisNexis. A reader friendly structure with an all –inclusive side by side comparative references, charts and highlighted changes.

Concise Commentary on The Bharatiya Nyaya Sanhita 2023 by Anjana Prakash & Anuj Prakaash

The reference book is a crisp resource with well calibrated comparative legal provisions and details and has been structured as book between bare act and a voluminous commentary. The commentary comes with a comparative contextual reference to the old law i.e. Indian Penal Code.

 

Bharatiya Nagarik Suraksha Sanhita, 2023: Replaces and Succeeds the Criminal Procedure Code,1973

The Code of Criminal Procedure of 1973 was framed back then as per the report of the 41st Law Commission of India and dealt with the procedural aspect of the criminal law. Some of the key elements of BNSS are discussed below-

  • Citizen Centric- The Bharatiya Nagarik Suraksha Sanhita, has framed its new provisions to let the procedural provisions operate in a citizen centric manner. BNSS now provides for fixed timelines (mandatory and directory) for different procedures provided under the Sanhita, which were earlier not there or were not stringent., For an example- it now limits the number of adjournments that can be granted to only two. The law builds itself towards good governance, in effect via a time bound and accessible procedure.
  • Uniformity in Court Structure & Posts – The BNSS has sewed in a thread of uniformity, by deleting certain classes of judges and posts. The designation of Metropolitan Magistrate and Assistant Session Judge has been abolished from the Sanhita and hence it brings consistency and harmony in the structure of designated posts in the courts, across the entire country. As per the new provisions – the courts will have Judicial Magistrate of the second class, Judicial Magistrate of the first class, Chief Judicial Magistrate, Additional Chief Judicial Magistrate (if any), Sessions Judge, Additional Session Judge (if any) and Executive Magistrates.
  • The Medical Advancements- The new procedural law has caught up with the leap of technology, which has taken place from the time when the old criminal laws were in operation. The BNSS makes the forensic investigation and visit by the forensic investigation team mandatory, for the investigation of offences punishable for imprisonment for 7 years or more.
  • The Digital Age- The world has transcended into great technological advancements and a digital era. The BNSS has duly taken cognizance of the paradigm shift and innovations and has accordingly altered & added relevant provisions. Illustratively, summons can be now served electronically and hence reducing the procedural timeline and the voluminous paperwork. The provisions endorse and aid the use of electronic communication modes and digital means, for various criminal law procedures (e.g. Accused person may be examined via electronic means).

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The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (46 of 2023)

The BNSS repealed The Code of Criminal Procedure. Bare Act is a must have legal resource for professionals, academicians and students alike. The bare act rolls out a well chiselled  comparison of Bharatiya Nagarik Suraksha Sanhita with the provisions of the Code of Criminal Procedure.

Find the combo of the three new criminal law bare acts here.

Ratanlal & Dhirajlal: The Bharatiya Nagarik Suraksha Sanhita, 2023

The trusted classic, methodically analyzes the provisions of The Bharatiya Nagarik Suraksha Sanhita, 2023 with corresponding references to the old provisions of the Code of Criminal Procedure, 1973. It highlights the changes, new provisions and omissions, along with landmark cases and recent judgments. It ensures that spirit and essence of the original work is maintained, preserving its relevance and applicability to both the Act and the BNSS.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) & The Code of Criminal Procedure, 1973 (2 of 1974): A Comparison by Bharat P. Maheshwari

A crisp source of reference that serves the dual purpose at one place, with comparative charts and highlighted differences between the BNSS and the old provisions of Cr.P.C.

Make a wise pick, by opting for the set of comparative books on new criminal laws.

Concise Commentary on The Bharatiya Nagarik Suraksha Sanhita, 2023 by Namit Saxena

The definitive commentary is a crisp and authoritative resource book with peculiar details and has been structured as a handy guide lying between bare act and a voluminous commentary. The commentary comes with a comparative contextual reference to the old law i.e. Code of Criminal Procedure (Cr.P.C).

Bharatiya Sakshya Adhiniyam, 2023: Replaced The Indian Evidence Act, 1872

Bharatiya Sakshya Adhiniyam replaced The Indian Evidence Act, which was drafted by James Fitzjames Stephen back in the year 1872.

Some of the conspicuous features of the Bharatiya Sakshya Adhiniyam (BSA) have been rolled out here-

  • Adjective Law- Bharatiya Sakshya Adhiniyam (i.e. BSA) is an adjective law in its nature, legal effect and operation. The statement of objective of the BSA specifically mentions that the Adhiniyam i.e. law of evidence is neither a procedural nor a substantive law and instead falls under the category of an adjective law that defines the pleadings and methodology by which the substantive or the procedural law are operationalised.
  • Wider Scope of Documents- The BSA widens the scope of the term ‘documents’ for the purpose of evidence law and to decide as to what can be termed and admitted as a document. The expansion of scope is significant, as documents form an essential part of the materials generally termed and available as evidence (e.g. cheques, letters, CD, pen drive, written contracts etc.).
    Electronic and digital records have been specifically included as documents and hence bringing them at par with and admissible like, any other document in the court. Moreover, documents under the Adhiniyam now includes, -‘matter expressed or described on any substance by any means’,and hence widening the vey scope of form of expressions.
  • Wider Ambit of Evidence- The Bharatiya Sakshya Adhiniyam (i.e. BSA) by expanding the scope of the term ‘document’ has widened the ambit of what is considered to be an ‘evidence’ under the Adhiniyam. Evidence under the Adhiniyam, now recognizes and includes electronic statements and electronic and digital records in the form of and at par with any other form of documents (subject to fulfilment of other legal requisites). These are admissible and legally effective like any other document in the court, for the purpose of evidence, subject to other procedural requisites or safeguards.
  • Primary Evidence and Electronic & Digital Records- Earlier the electronic evidence was a special category of evidence brought in by an amendment and described as a secondary evidence by virtue of Section 65B. Now Section 57 of Bharatiya Sakshya Adhiniyam, identifies electronic records and digital records (created or stored as mentioned in the provision) in form of documents, as primary evidences.
  • Widened Scope of Secondary Evidence- Bharatiya Sakshya Adhiniyam has expanded the list of evidences that can be included and admitted as secondary evidence of the fact, document or statements in question. To exemplify, the list of secondary evidences now includes oral and written admissions by any person. This enlarges the admissibility of evidences before the court.

Discover the Best Books on Bharatiya Sakshya Adhiniyam (BSA), 2023 at LexisNexis

For legal and critical reference or insights into the new evidence law refer to-

The Bharatiya Sakshya Adhiniyam (BSA), 2023 (47 of 2023)

BSA repealed the old Indian Evidence Act. Bare Act is a pre-requisite and a must have, for anyone and everyone dealing in the field of law.  The bare act sails an astute comparison of Bharatiya Sakshya Adhiniyam with the provisions of the old Indian Evidence Act.

Ratanlal & Dhirajlal: The Bharatiya Sakshya Adhiniyam, 2023

The 27th edition of the book retains its essence of being the evergreen classic reference in the field of criminal laws, while it scrupulously explains the legal provisions introduced by the Adhiniyam and categorically refers to the changes introduced via the new provisions. The commentary  uncoils a feature write-up on ‘Electronic Records’ by the author. It provides for a dedicated section on omissions in the new law and a comprehensive comparative tabular analysis with the Indian Evidence Act, 1872, backed by the judicial interpretations over the years and latest updates.

The Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) & The Indian Evidence Act, 1872 (1 of 1872): A Comparison by Bharat P Maheshwari

 

The commentary gives critical legal insights into  the changes and differences between the old Indian Evidence Act and The Bharatiya Sakshya Adhiniyam and makes a side-by-side reference to them categorically. It replaces the need of carrying two voluminous book with one exhaustive and well-structured book.

Textbook on The Bharatiya Sakshya Adhiniyam, 2023 by Chief Justice M Monir

The classic and most authoritative commentary of all times, is an exhaustive section wise book on the Adhiniyam. The book provides for concurrent reference to the old provisions of  the Indian Evidence Act, 1872 and highlights contextual comparative differences and modifications between the provisions of both the laws.

Concise Commentary on The Bharatiya Sakshya Adhiniyam, 2023 by Sharath Chandran

A crisp source of reference that serves the dual purpose at one place, with comparative charts and highlighted differences between the BSA and the old provisions of Indian Evidence Act. The commentary includes table of cases and insightful analysis landmark judgments

Conclusion

Concluding, the old criminal laws were enacted decades ago and the time, technology and centrifugal forces driving the crime and criminal justice system have also flown with their own good pace. In the new age where technology and digitization is what every finger swipes at, it was essential for law and courts to identify the new modes and means of crime, procedure and consequent evidences. There was a need for stricter timelines, follow-ups, reformation and victim centric approach. Hence, to adapt and adopt   the contemporary needs there was need for a systematic overhaul of the criminal laws in India. The new criminal laws in place, have aimed to bridge up that gap and will see its own challenges and evolution, in effect and operation.

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Digital Libraries: Revolutionizing Legal Research in India and Its Comparative Advantages

      In the realm of legal research, in India, the emergence of digital libraries has sparked a significant change, completely altering how legal experts access, analyze, examine, and apply legal data. No more struggling with libraries, manual flipping through pages, or tedious hunts through piles of printed materials, till you find what you have been looking for. Nowadays digital libraries provide a collection of sources right at the fingertips of attorneys, judges, academics, and learners. This piece will explore the idea of digital libraries, highlighting their advantages and superiority as compared to the conventional libraries.

What is a Digital Legal Library?

In the legal field, a digital library indicates an online internet-based archive or compilation of commentaries, bare acts, journals, documents, databases, publications, and other legal resources that can be accessed digitally.

Advantages of Digital Libraries

In the era of technology, leveraging digital libraries for legal research offers numerous benefits that are vast and unquestionable. Illustratively the advantages of opting for digital libraries are-

      1. Cost-effective: Digital libraries are usually more budget-friendly than print libraries. They save a lot of money in terms of purchase, storage, and maintenance.
      2. Access to Vast Resources: Digital libraries provide a wide range of resources at one place, such as- case studies, laws, regulations, legal publications, articles, and discussions. This broad selection guarantees easy and compact access to multiple resources and references for lawyers at one place, to back and supplement their legal research and viewpoints.
      3. Updated and Dynamic Content: Online libraries offer regularly updated information & databases. This guarantees that researchers can access case rulings, laws, and legal discussions right on time to keep abreast of the latest legal trends and developments.
      4. Saves Time: Researchers can efficiently find materials through digital libraries, thanks to their advanced and relevant search features. This saves them the time that would have been spent on long searches and reading through the heaps of print books or while navigating through the printed indexes.
      5. Advance Search Capabilities: Within digital libraries, you can find powerful search tools, like keyword searches, Boolean operators, filters, and sorting features. These tools help the researchers narrow down their searches and easily find the apt and specific information from the pool of extensive databases.
      6. User-friendly: Digital libraries and resources provide easy and streamlined access and availability. Digital libraries are user-friendly, enabling researchers to access all their legal material anywhere and anytime, with an internet connection. This flexibility empowers the readers to conveniently carry on their research whether they are at work, at home, or, on the move, with their compact devices.
      7. Eliminate Deterioration of Resources: Unlike print books, digital resources do not depreciate and are not prone to external damage, making it easier to preserve resources for future use, in the form of digital libraries. Digital libraries are easy to maintain and upgrade in the long run.
      8. Cross-referencing and Citation Management: In digital libraries there are tools that help the researchers to link information and manage citations in their work, making it simpler to record references of legal sources, in research papers or briefs.

A Futuristic Approach & A Requisite of Time

In this digital age, the legal research landscape is shifting towards internet-based platforms and digital libraries. By embracing these resources legal experts and academicians or other people of the field can walk hand in hand with the advancements and needs of the time.

The apex court and Justice D Y Chandrachud have been actively propagating the idea of adopting digital means and methods in the legal field, courts, and legal procedures or proceedings to make the functioning or results more effective, time efficient, accessible, and appropriate.

Various new initiatives and programs have been developed to work in this direction and digitize the functioning of the legal field-

      • Virtual Justice Clock- This is an LED sign board with the objective of creating public awareness and spreading updated information. The display board displays various schemes of the law and justice department, updates the status of disposal of cases, e-services provided in the court complexes, and legal aid options. As per the available data around a total of 39 Justice Clocks are operational in 25 high courts of our country.
      • Virtual Hearings- The process of virtual hearing of cases came into being as a necessity during the COVID-19 crisis. However, this feature and option was retained and has been slowly inculcated in various courts.

In Sarvesh Mathur vs. High Court of P&H, the apex court observed that only a few HCs were operating in hybrid mode and there was a lack of internet facilities in the court premises, hence, the Supreme Court went on to lay down necessary directions to the high courts, providing for, hearing through hybrid mode and online filings.

In another case, referring to Swapnil Tripathi vs. the Supreme Court of India, it was held that the impact of technology was to ensure access to justice along with strengthened rule of law and democracy.

The provision of virtual hearings of the court cases ensures easy and participative access.

      • E-Filing 2.0: Paperless filing of cases in the Supreme Court, some of the other HCs, district courts, and tribunals has been adopted and streamlined. The new and updated e-filing software is easily accessible. The updated software provides for user-friendly and personalized dashboard for the Advocate on Record or concerned litigants.
      • Integrated Case Management and Information System (ICMIS): ICMIS is a case management software of the apex court of India. This efficaciously optimizes the service delivery process and the system involved in the management of the database of cases.
      • Right To Information Online Portal: The Supreme Court of India has its own online RTI portal for filling of RTI applications and appeals, hence, ensuring easy and all-time access. Many high courts in India have developed the same kind of RTI portals, following the benchmark set by the SC.
      • eSCR: The judgments of the highest court of the country i.e. the Supreme Court are accessible by the general public online by the Supreme Court Reporter (SCR) via digital copies and PDFs.
      • AI Transcriptions: This AI-integrated software transcribes the arguments of constitutional bench cases in the court, on a real-time basis which are accessible on the SC’s official website.
      • E-Office Registry Office: The Supreme Court’s Registry office now has adopted the ‘work from anywhere’ module for their e-offices and hence works and manages functioning digitally via their computers
      • SuSwagatam: This was an initiative facilitating court visitations via online e-pass, saving the users from the hassle and chaos of long queues for getting physical entry and exit passes.
      • National Judicial Data Grid (NJDG): NJDG is a database, that provides for updated details and status of pendency and disposal of cases and judgments, of courts in India.
      • E-Sewa Kendra: This E-Kendra is a service center for citizens in the apex court for availing and accessing different e-services related to the court and its procedure.
      • Free –Wi-Fi and digital display: Free –Wi-Fi is accessible in the Supreme Court premises. This facilitates actual and effective adoption and usage of all the technological advancements that are being integrated in the daily functioning of the courts, as all of it actually relies on the availability of a proper internet connection.
        Adding to this the courtrooms were upgraded with the touch of technology via the LED video wall displays in the courtrooms.
      • Online Appearance Portals: The Supreme Court launched the Advocate’s Online Appearance portal back in 2023 –for seamless access and conducting of virtual and digital courts.

All of these prominent initiatives work towards the integration of technology and digitization into the court’s functioning and usual legal procedures and hence, mark a walk in hand with the technological advancements brought in with the time. Even digital libraries have been integrated into the system which is available and accessible via usual web network and hence ensuring the availability of digital legal resources.

Advantages of Digital Libraries over Traditional Print Book Libraries: A Side-by-Side Comparison

S. No. Basis of Differentiation Traditional Print Books Digital Libraries
1 Keeping Knowledge Up-to-Date Keeping knowledge up to date through print books basically would mean to physically buying new copies. Subscribing to digital libraries would mean continuous access to legal updates, the latest commentaries, bare acts, and journals, and your knowledge remains up-to-date.
3. Expert Opinion at your disposal There is limited access to expert opinions in printed books. Includes access to a large variety of expert opinions through various

commentaries, and expert blogs or papers.
4. Availability Printed books or physical copies are bulky and are not always at hand when required. The libraries and resource centers usually have limited working hours and resources. Digital libraries can be effectively accessed 24×7, at the reader’s ease and with compact compatible devices.
5. Personalisation Personalisation is limited to personal browsing and reading, taking notes, or buying physical copies. Can be personalised through recommendations of users, saved preferences, search preferences, and other effective search tools e.g. bookmarks or annotations.
6. User Excerpts Manual Copying, highlighting, and taking notes is difficult sometimes It grants the user an option to copy, highlight, take notes, and then share the files electronically.
7. Environment friendly Requires huge amounts of paper for printing of books and also requires physical space for storage. No physical space and paper are required and this reduces reliance on paper and other related physical materials.

 
8. Ease of Research Comparatively difficult and tedious due to individual browsing of the subject and/or the index provided in the book. Digital libraries have powerful search engines and specific filters for enhanced research. These are backed by advanced research capabilities, which makes it comparatively easier.
9. Ease of carrying Difficult to carry, transport, or store due to physical build, size, and weight. You don’t need to carry physical copies as digital libraries give access to resources from any device with just an internet connection.
10. Updated Cannot be updated and is dependent upon buying of a new updated print book. Moreover the updates and their physical availability are comparatively time taking. Digital libraries and its resources can be updated readily.

 

LexisNexis Digital Legal Library

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Lexis Advance® – Smarter Way to Do Legal Research

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Conclusion

The rise of digital libraries has truly transformed research in India. The Hon’ble Supreme Court has also embraced the new era of technology by giving access to the judgments through online portals and supporting the new era of digitization by opting for varied technological tools in its functioning. The digitization efforts are also receiving positive responses, as the e-Courts mobile app recorded a huge success with 1.88 crores downloads by June 30, 2023. With their features like affordability, time-saving functions, and regular & immediate updates, digital libraries have made legal information more accessible to everyone, in the field, be it experts, academicians, or students. As we progress further into the era of technology, digital libraries will remain crucial in influencing the realm of legal research and application in India promoting creativity, trust, and ease of access. Thus, it is time for you to adapt and adopt and match the needs of the changing times.

An Eagle’s View of The Constitutional Law in India: Brief, Evolution, Features and Recent Developments

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Always heard of the Constitution of India, Constitutional law and the celebration around its utmost importance! The constitution of India is often hailed as a living document. Constitutional law deals with the study and the provisions of the Constitution. Wondering and inquisitive of why and how? The piece below, as you scroll through will lead you to answers and much more.

Scope and Nature of Indian Constitution

The constitution is often termed as the law of the land or supreme law of the land, as it acts as the foundation stone for all the laws, rules, regulations and legislative or executive acts.

As a matter of record and general norm, the Constitution can be written or oral. The Indian Constitution is written and is the longest in the world. United Kingdom, Israel and New Zealand are the prominent illustrations of the countries having an unwritten constitution for their country.

The constitution is a living document as it is flexible to interpret for effective application and can be amended or modified to suit the needs of changing times and legal tangents. The document acts as the fundamental law of the land and the basis of other legislative pieces and regulations.

The Supreme Court of India acts as the guardian and interpreter of the constitution and its provisions. For a piece of legislation or any act to be valid, it has to withstand the test of constitutionality.

History and The Making of The Constitution of India

The constitution acts as a fundamental tool of governance. As for India the suggestion of forming a constitution was given by the revolutionary and philosopher M.N Roy.

A Constituent Assembly of 389 members was formed for this in November 1946, following the Cabinet Mission Plan and it held its first meeting on December 9, 1946.

On record, it took 2 years, 11 months and 18 days to frame the Constitution of India, with Dr. BR Ambedkar as the head of the ‘Drafting Committee’.

The objective resolution moved by Pt. Jawahar Lal Nehru was adopted as the Preamble of the Constitution.

The reading of the draft was conducted in three stages and the Indian Constitution was passed and enacted on November 26, 1949, and it came in effect and enforcement on January 26, 1950.

At its inception, the Indian Constitution constituted of a Preamble, 22 Parts, and 8 Schedules.

Now the Constitution on record has 25 Parts in number and 12 Schedules.

Constitution: A Book of Supreme Functionality 

The constitution works and acts at different dimensions and in different magnitudes, as the foundational stone and the basic law of the country- serving the provisions and guidelines for individual rights and duties, rights, duties and functioning of State and other Constitutional bodies and relations between different organs and constitutional tangents.

  • Sets the foundational principles of existence and functioning like liberty, sovereignty, unity, integrity, secular existence by its preamble and other provisions.
  • Broadly sets the social and legal aspirations and ideals of the country and the State.
  • Deals with the geographical boundaries of countries.
  • Fundamentals, granting and withdrawal of citizenship.
  • Fundamental Rights
  • Fundamental Duties
  • Directive Principles of State Policy
  • Functioning and Structure of Centre and State (Executives), including constitutional appointments and positions and the local governance.
  • Centre- State Relationship.
  • Provisions of Emergency.
  • Constitutional Amendments (Article 368).
  • Inter-se functioning of various constitutional instrumentalities.

Inherent Features of The Indian Constitution

The constitution works as the linking thread of harmony and due exercise of the constitutional power in the country. The constitutional law balances the individual and the community rights and its co-existence.

Some prominent features of the construct are-

  • Lengthiest Constitution of the world
  • A written Constitution which has grown into (448 Articles and 22 Parts by count via various amendments).
  • Provides for a Parliamentary form of Government, with the President and the Governor as the head of the Union Government and the State Government respectively.
  • Quasi-federal – The Constitution of India is a necessary blend of unitary and federal features. It functions as a federal system with separation of power between organs, written format, independent judicial system, and bicameral legislature. On the other hand, it stabilizes itself with unitary elements like single citizenship for Indian citizens, provisions of Emergency providing for National, State, and Financial Emergency (Article 352 to Article 360).
  • A Rigid structure with necessary flexibility (with the apt provisions of amendment and scope of judicial interpretation of constitutional law).
  • Independent Judiciary with Supreme Court as the apex court (Article 124).

Constitutionalism by this provides for legitimacy and legality of legislative and government’s actions and ensures necessary constitutional compliance in lieu of fundamental validity. The constitution is needed to act as a cornerstone for inception and development of other laws and provisions. The Indian Constitution is needed as an enabler of fair and harmonious functioning, in the well defined parameters of the fundamental law and directives in the form of the written constitution itself that lays down and at the same time limits the power play and power functionality at different levels of the democratic country.

The Preamble of The Indian Constitution

The preamble acts as the preface and source of the Constitution. As the basic structure of the constitution, it sets the tone and broader outline for the provisions and ideals of the constitution along with the fundamental features at play.

The preamble necessarily sets the tone and monologue as a citizen of India, as it says -”we the people of India…”

It provides for a – Sovereign, Socialist, Secular and Democratic Republic. The preamble provides and aims at Justice, Liberty, Equality and Fraternity and hence highlights the nature of the constitutional law.

Is Preamble A Part of The Constitution?

In the Berubari Case (1960), the apex court held that though the preamble reflects on the general ideals and purpose it is not a part of the constitution and not a source of authority.

This was followed by Kesavananda Bharati vs. State of Kerala, where the 13 Judge Bench held that the Preamble is the part of the constitution and guides the interpretation of the constitutional law and its provisions.

The highest court of the country later deliberated on the issue of amendment of preamble in Minerva Mills vs. Union of India (1980)- The majority opinion penned back then, held that the Preamble being the part of the constitution can be validly amended by the way of a positive amendment i.e. an addition or a modification, as per the provision of Article 368 of the constitution.

S.R Bommai vs. Union of India (1994) – the Supreme Court following the earlier view held that the preamble was very much the part of the Constitution. The court went on to hold that the Preamble hence can be amended by the virtue of Article 368 subject to the limitation that no changes can be made to the basic structure of the Constitution of India.

Amendment of The Preamble

Till date the preamble has been amended only once by the 42nd Amendment in the year 1976- by which three words Socialist, Secular and Integrity were added to the preamble.

Important Provisions and Parts of The Constitution

  • The Fundamental Rights (Part 3 – Article 12 to Article 35)
    • Right to Equality ( Article 14)
    • Article 19 ( Right to Freedom)
    • Article 21 ( Right to life)- Article 21 has with the wave of time expanded its magnitude
      to various rights via various judicial interpretations and cases and gained immense significance in terms of being the right to life, that in itself for effective application and living, is a bundle of rights. The latest and significant ones being the right to health, right to privacy ( K.S Puttaswamy Case), right to marry ( a combination of Article      19 and Article 21).
    • Right to Freedom of Religion (Article 25 to Article 28)
    • Educational and Cultural Freedom (Article 29 and Article 30).
    • The Golden Triangle- Article 14, 19 and 21, owing to their fundamental interplay and immense significance as Right to Equality, Right to Freedom, Right to Life and Liberty are marked as forming a golden triangle.
    • Article 32 – is one of the most effective rights as it infuses functionality and enforceability  in other rights. Article 32 provides for the remedy against the infringement of the fundamental rights of an individual that can be exercised by approaching the Supreme Court under the writ jurisdiction.
      (5 writs – Habeas Corpus, Prohibitory, Quo Warranto, Certiorari, Mandamus).
  • Directive Principles of State Policy – Article 36 to Article 51- these are directive and are guiding in nature (based on Gandhian, Liberal and Socialist Principles) for the State policies and are not legally enforceable.
  • Fundamental Duties- Article 51 A (Part IV-A) was added to the Constitution of India by the 42nd Amendment in the year 1976 with 10 fundamental duties for the citizens. The 11th fundamental duty was added in the year 2002 by 86th amendment – with an obligation to provide education to the child between the age of 6 years to 14 years.
  • Part I- The Union and Territories.
  • Part II- Citizenship.
  • Part V and VI -The Union and the State.
  • Part VIII- Union Territories.
  • Part IX- Panchayats.
  • Part IX-A- Municipalities.
  • Part IX-B- Cooperative Society.
  • Part X- Scheduled and Tribal Areas.
  • Part XI- Union and State Relations.
  • Part XII- Finance and Property.
  • Part XIII- Trade and Commerce.
  • Part XIV- Union and State Services.
  • Part XIVA – Tribunals.
  • Part XV- Elections.
  • Part XVI- Special Provisions.
  • Part XXVII- Official Language.
  • Part XVIII- Emergency.
  • Part XIX- Miscellaneous.
  • Part XX- Amendments
  • Part XXI- Temporary Provisions
  • Part XXII- Short, Title and Commencement.

Sources that Inspired The Indian Constitution 

The makers and the constituent assembly drew inspiration from a lot of sources for the Indian Constitution, as it was a process of thorough analysis, examination, analysis of different legal systems and debates.

SOURCE FEATURES
Government of India Act, 1935 Federal Structure

Post of Governor

Judiciary

Public Service Commissions
British Constitution Bicameral Structure

Parliamentary form of Government

Rule of law

Legislative procedure

Single Citizenship

Writ Jurisdiction
Irish Constitution Procedure of President’s Election

Directive Principles of State Policy

Nomination of Rajya Sabha members
Germany Suspension of Fundamental Rights (during the Emergency Period)
USA Vice President’s Post

Fundamental Rights

Independent Judicial System

Judicial Review

Impeachment of the President

Removal of Supreme Court and High Court Judges
Australia Concurrent list (3rd list)

Freedom of Trade

Commerce and intercourse.

Joint sitting of the Upper and Lower House.
South Africa Amendment of the Constitution (Article 368)
USSR Fundamental Duties

Social, Economic and Political Justice.

 

Significant Amendments to The Constitution of India 

The constitutional law of India that stands firm on its rigid elements, illustratively in terms of basic structures and certain other features discussed above, has a unique sense of flexibility to it. Law is something that governs the society and the individual social beings, and the society, living norms, regulatory requisites and thresholds are bound to change and need to change with changing times. This element of flexibility makes it adaptable to changes, interpretations and needful modifications or alterations to its provisions, as and when required as per the changing requirements of law. A very fluid illustration of this as discussed in previous paragraphs, is the evolution of Article 21 (Right to Life and Liberty), which with time has attained and encompassed within itself lots of new elements and rights of life.

Article 368 of the Constitution of India, provides for the power of amendment of constitution by the parliament and its procedure, whereby the amending bill can be introduced in either of the two houses of the parliament. Every amendment so made by the parliament is open to the process of judicial review and has to withstand the test of basic constitutionality and validity.

3 Types of Amendments:

  • An amendment by simple majority i.e. majority of members present & voting, of both the houses of the parliament.
    • Example in cases of change in the name of the state.
  • An amendment by special majority- i.e. majority of 2/3rd of members present and voting in both the houses.
    • For instance in cases of amendment to the fundamental rights or the fundamental duties under the constitution.
  • An amendment by special majority along with due ratification by half of the states- i.e. majority of 2/3rd of members present and voting in both the houses and ratified by half of the states.
    • Illustratively- such a ratification is needed in case an amendment is sought to be made
      to the Article 368 itself or if amendment is to be made to the 7th Schedule (i.e. 3 lists of subjects).

List of Significant Amendments till Date

AMENDMENT NO. YEAR SUBJECT
1ST Amendment 1951 Added Article 31A & 31 B.

Saving of laws, providing for the acquisition of estates, etc.

Added 9th schedule preventing land reforms from judicial review.
7th Amendment 1956 Abolished the existing categorization of states in parts.

Extension of the jurisdiction of high courts to union territories and establishment of a common high court for two or more states.
42nd Amendment 1976 MINI CONSTITUTION

Three new words were added by the 42nd Amendment Act, i.e., socialist, secular, and integrity, which were added in the Preamble.

10 Fundamental Duties for citizens were inserted.

As per amendment, the President shall be bound to  act in accordance with the advice of the Council of Ministers in the discharge of his functions under Article 74.

Provided for the provision of administrative tribunals and tribunals for other matters. (Added Part XIV A).

Constitutional amendments were made to operate beyond judicial scrutiny.

The tenure of Lok Sabha and state legislative assemblies was raised from 5 to 6 years.

Laws enacted to implement Directive Principles cannot be deemed invalid, unless it violates any of the Fundamental Rights.

3 new Directive Principles of State Policy inserted- equal justice and free legal aid, participation of workers in the management of industries, and protection of the environment, forests, and wildlife.
44th Amendment 1978 Substituted the term “internal disturbance” with “armed rebellion” as for the ground of  national emergency.

President could  declare a national emergency only on the written recommendation of the cabinet.

‘Right to property’ was removed  from the list of Fundamental Rights, making it a legal and constitutional right only.

Fundamental rights guaranteed by Articles 20 and 21 could not be suspended during a national emergency.
52nd Amendment 1985 Provision for Anti -Defection Law (10th schedule).
61st Amendment 1989 The voting age was reduced from 21 years to 18 years.
65th Amendment 1990 Established the National Commission for SC & ST.
69th Amendment 1991 Delhi was designated as NCT of Delhi (Special status).
73rd Amendment 1992 Added the Panchayati Raj Institutions (11th Schedule) with  reservation of seats for SCs and STs in proportion to their population, and one-third reservation of seats for women were granted.
74th Amendment 1992 Constitutional status to the urban local bodies ( i.e Part IX A – Municipalities and 12th Schedule)
85th Amendment 2001 Consequential seniority in cases of promotion on the basis of reservation for Scs and STs.
86th Amendment 2002 Inserted Article 21-A as Right to Education “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may determine.” (State’s obligation and a fundamental right).

Simultaneous changes were made to Fundamental duties – “It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or ward between the age of six and fourteen years”.
92nd Amendment 2003 Official languages were increased from 18 to 22 with the addition of Bodo, Dogri, Maithili and Santhali.
97th Amendment 2012 Cooperative societies were given a constitutional status with insertion of Part IX B.
99th Amendment 2014 Collegium system was replaced by NJAC

(This was later struck down by the SC as unconstitutional and restored the collegium system for appointment of SC and HC Judges).
100th Amendment 2015 Gave effect to the LBA agreement with Bangladesh.
101st Amendment 2016 Introduced the new system of taxation i.e. Goods and Services Tax (GST).
102nd Amendment 2018 Constitutional status to the National Commission for Backward Classes.
103rd Amendment 2019 Economically Weaker Section (EWS):

 

A maximum of 10% Reservation for Economically Weaker Sections of citizens of classes other than the classes mentioned in clauses (4) and (5) of Article 15.

Inserted Article 15(6) and 16(6)

This amendment was upheld by the apex court in Janhit Abhiyan vs. UOI.
104th Amendment 2020 Extension of deadline for the cessation of seats for SCs and STs in the Lok Sabha and state assemblies from 70 to 80 years.

Removal of the reserved seats for the Anglo-Indian community in the Lok Sabha and state assemblies.
105th Amendment 2021 Restored state governments’ power to prepare the list for Socially and Educationally Backward Classes (SEBC).
106th Amendment 2023 Reservation of 1/3rd Seats For Women-

Reserves 1/3rd of all seats for women in Lok Sabha, State Legislative Assemblies, and the Legislative Assembly of the National Capital Territory of Delhi, including those reserved for SCs and STs.

 

Now that you have scrolled through the making, evolution and developments of the Indian Constitution and the constitutional law, let us briefly explore the modern day understanding and changes of the constitutional law by touching upon the recent constitutional bench cases of the Supreme Court.

A constitutional bench is a scenario where 5 or more Judges of the Supreme Court form a bench to decide a substantial question of law that involves the interpretation of constitution, scrutinizing constitutionality or hearing a reference from the President under Article 143.

2023 was a year of many prominent constitutional bench decisions, to list down a few-

  • Vivek Narayan Sarma vs. UOI – Upheld the constitutional validity of demonetization of 2016 (4:1).
  • Kaushal Kishore vs. State of UP- Held that the fundamental rights can be asserted against private individuals and only reasonable restrictions listed under Article 19(2) can be used as limitations.
  • Joseph Shine vs. UOI– held that the decriminalization of the offence of adultery wouldn’t affect the ambit of disciplinary proceedings against the armed forces personnel.
  • Anoop Baranwal vs. UOI – The apex court held that there was a gap in law regarding the procedure of the appointment of members of the Election Commission of India (ECI), as it was being solely done by the President and hence created an appointing committee. A law later in the year, was passed by the parliament filling in the lacuna and replacing the committee that was earlier formed by the SC Judgment.
  • Animal Welfare Board of India vs. State– Upheld the validity of the practice of Jallikattu. The Supreme Court clarified that animal rights are not at par with the individual’s (human) fundamental rights.
  • Supriyo @ Supriya Chakraborty v Union of India- dealt with the issue of marriage equality i.e. granting marital rights to the LGBTQ community. The court rejected the plea stating that bringing in such a change could only be carried by the means of a law and that fell in the ambit of the legislature.
  • In Re: Article 370 of the Constitution– that challenged the validity of the abrogation of the special status of the Jammu and Kashmir State- the Supreme Court upheld the validity and constitutionality of the abrogation of the temporary status.

CONCLUSION

Concluding, this traces down the constitutional law, its ambit and quasi federal functioning in India. The Indian Constitution serves as the fundamental guiding light for all other laws and allied acts or actions and is needed to maintain a valid legal balance and prevent arbitrary actions guided by tools of power. The constitution is the need for a functional law, and its dutiful compliance and implication is the need of the constitution itself.

Related Books

For more information, references, and critical appreciation of the Constitution, constitutional provisions or constitutional law refer to

Statement of Indian Law by Govind Goel (2nd Edition)

An exhaustive and professionally chiselled commentary on the Constitutional Bench Judgments of the Supreme Court of India, with a foreword by the Chief Justice of India- Justice DY Chandrachud.

The commentary lays down an in-depth interpretation on the development of the Indian Constitution and its adaptive interpretation, via the cases decided by the Constitutional Benches of the apex court.

Bare Text on The Constitution of India

This Bare Text on the Indian Constitution is the latest and updated with all the recent amendments to the Indian Constitution.

Constitutional Law eBook Packages

Constitutional Law eBook package consists of eBooks on constitutional law including the latest titles such as Dr J N Barowalia and Abhishek Barowalia: Commentary on The Right to Information Act, DD Basu: Introduction to the Constitution of India, MP Jain: Outlines of Indian Legal and Constitutional History, M P Jain: Indian Constitutional Law (8th Edition), P M Bakshi: The Constitution of India (19th Edition).
It has an exhaustive range of reference resources for the subject at one place.

Create your personalized digital legal library with LexisNexis eBook Package

Benefits of LexisNexis eBook packages:

• Freedom to choose packages as per practice area

• Get access to full year’s new titles and editions in the package

• Easy to cite in court

• Available on Desktop, iOS and Android

• Save upto 80% as compared to print prices

Introduction to the Constitution of India  by D D Basu

Durga Das Basu’s Introduction to the Constitution of India is a classic commentary and an evergreen resource book to scroll through the origin and development of the Constitution of India.

One of the most trusted reference resources to study about the making and development of the Constitution. This edition is Includes notable judgments of the Supreme Court of India such as In re: Article 370 of the Constitution, Government of NCT of Delhi v UOI, Sita Soren v UOI, M K Ranjitsinh v UOI, etc. The latest, the 27th edition is available to order.

Hindi Translation of the much talked about book is also available, currently in its 15th edition to order.

Lay your hands and clicks on these and get some of the best books to read about the Constitutional law of India!

Outlines of Indian Legal and Constitutional History by MP Jain (8th Edition)

It is a classic and comprehensive text authored by Professor MP Jain, one of the founders of the modern Indian legal education and research. For many years, Professor M P Jain’s books and other writings on Indian legal history have been prescribed texts for students of law. An essential reference aid for law students, researchers, academicians, judges, advocates, and people preparing for competitive examinations.

Indian Constitutional Law by M P Jain (8th Edition)

The commentary is diligently updated with the case law, the book remains rooted to the original essence by setting out the legal principles drawn by these cases. This edition also comes with exhaustive critiques The book also covers the issues of contemporary jurisprudence along with its evolving tangents.

Constitution of India by P M Bakshi (19th Edition)

This book offers a comprehensive and yet concise commentary on the Constitution, providing accurate and up-to-date information on legislative developments and significant judicial pronouncements. Each article is accompanied by short notes for understanding of the concept.

Also Read: 6 Books That Will Deepen Your Understanding of the Indian Constitution 

Constitutional Bites (FAQs)

  1. How many constitutional laws are there in India?
    There is one constitution of India (longest and written in format), which has 395 Articles, 12 Schedules and 22 Parts.
  2. Who wrote the Constitution Law of India?
    The Constitution was framed by the Constituent Assembly, with Dr. BR Ambedkar as the head of the drafting committee and Dr. Rajendra Prasad as the President of the Constituent Assembly.
  3. Who is the father of the Constitution?
    Dr. BR Ambedkar is hailed as the father of the Indian Constitution.
  4. How big is the Indian Constitution?
    The Indian Constitution is the longest written constitution in the world. At present it has 395 Articles, 22 Parts and 12 Schedules
  5. What is the 1st Article of the Indian Constitution?
    Article 1 lays down that –
    (1) India, that is Bharat, shall be a Union of States.
    (2) The States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule.
    (3) The territory of India shall comprise —
    (a) the territories of the States;
    (b) the territories specified in Part D of the First Schedule; and
    (c) such other territories as may be acquired.

Corporate Law: Legal Provisions, Scope and Developments

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Inquisitive about the corporate laws and provisions operating in India?

Companies, corporations, and allied institutions or elements form a large share of the physical structure and economy of the country. This is regulated and governed by the corporate laws in force in India.

Corporate law deals with different aspects of the formation, functioning, regulation, and winding up of the companies and other allied aspects. It over-arcs many specific laws, with the Insolvency and Bankruptcy Code being an evolving new field. Generally, corporations and companies are primarily regulated by the Companies Act.

Well-placed regulation of entities, are prerequisite for smooth and reliable functioning of the complex business. This makes it essential for law students, professionals, corporate lawyers, law firms, and those aiming to pitch themselves into corporate litigation, an ever-growing arena, to have a stronghold and understanding over the corporate law, corporate governance, and other allied business laws.

Companies Act: Developments and the Growth-

  • In the year 1850, taking the English Joint Stock Companies Act of 1844 as the guiding law, a provision was made for the registration of joint stock companies in India.
  • Later the Joint Stock Companies Act, which introduced the concept of limited liability, was passed in 1857.
  • Next the Companies Act was passed in the year 1866, which consolidated and amended the laws relating to the incorporation, regulation, and winding-up of companies and other associations.
  • The Indian Companies Act, 1913, later replaced the 1866 Act. The Indian Companies Act, 1913 was revised by the H.C. Bhaba committee, and The Companies Act of 1956 came into being. Further, The Indian Companies Act, 2013 replaced the Indian Companies Act, 1956. The Companies Act, 2013 makes comprehensive provisions to govern all listed and unlisted companies in the country.
  • Various types of companies categorised as per law are- Public Companies, Private Companies, One Person Companies, Producer Companies, Non-Profit Companies.

Key Features of the Companies Act 2013

Companies Act, 2013 was celebrated as a harbinger of ease of doing business, reliable transparency and improved corporate governance with well-structured procedures and self-regulations in place.

  • Section 2(20)of the Companies Act of 2013, defines the term ‘company’ as a company incorporated under the Companies Act, 2013 or under any of the previous company law. The Act even brought in the provision for electronic maintenance of documents and records.
  • The Act instrumentally empowered the shareholders, as it brought in the necessity of shareholders’ approval at requisite places and the concept of a class action suit. It gave way to flexibility and even the requisite amount of stringency by fast track and cross-border mergers and a time-bound liquidation process.
  • The 2013 Act brought in the model of the ‘One Person Company’ and even made India the first country to make Corporate Social Responsibility a mandatory obligation. As for the authorities, the National Company Law Tribunal(NCLT) was established under the Companies Act 2013 and was constituted in June 2016 by the Government of India & was formed on the basis of the recommendations of Justice Eradi’s committee on law that dealt with the insolvency and winding up of the companies.

Recent Amendments in the Companies Act

The Amendments of 2019

It brought in some important changes as they made obligatory the upkeep of unspent amount into a CSR-specific account, which if left unspent for a prescribed period, would move to another account provided for in the schedule. As another move towards ease of doing business, 16 minor offences under the Act were decriminalised.

The 2021 Amendment

It amended the schedule of the Act to enhance the reliability of financial statements and gave in the mandate to round off the figures on the basis of ‘Total Income’. It obligates the disclosure of – current maturities from long-term borrowings to be separately made in the financial statements, borrowing from banks and financial institutes, details of all those immovable properties whose title deeds are not in the name of the company, loan granted to Promoters, Directors, KMPs and the ‘Related Parties’, if declared defaulters by the bank or the lender, undisclosed income and dealings in cryptocurrency as prominent changes amongst a few other amendments.

Corporate Governance: An Essential Framework

The Companies Act, provides for corporate governance provisions with a board of directors and various committees for the proper functioning and regulation of a company. Corporate governance is the framework of rules and processes by which a company is directed and regulated to balance the interests of various stakeholders, including shareholders, management, customers, and other elements involved.

The framework deals with and ensures fairness, accountability, transparency, proper compliance, risk management at various levels, voting rights and requisite disclosures amongst other tangents.

Another prominent authority, National Financial Reporting Authority (NFRA) was established back in 2018 as a guarding body to investigate matters of professional misconduct by the CAs or CA firms.

Other Important Corporate Laws

Contract Act

Contract act in general governs contracts and contractual obligations between different parties. These parties may be individuals, organisations, bodies, companies or corporations and hence it would intersect cases of contracts involving companies or corporations.

The Indian Partnership Act

The Indian Partnership Act, 1932 explains partnership as a relation between two or more people who come to a common ground to share the profits of a business handled by them all or by one or more persons involved in this process. The provisions of partnership act regulate the partnership firms in India.

The Limited Liability Partnership Act, 2008

A Limited Liability Partnership Act, 2008 is a legal entity that is distinct from its partners and possesses perpetual succession. The liability of the partners in a LLP is limited which helps it in the mitigation of risks. It features the benefits similar to that of Limited Liability Company and of a partnership firm.

The Securities and Exchange Board of India Act

The Securities and Exchange Board of India Act provides for the formation of the regulatory board (SEBI) to regulate and protect the economic and transactional interests of the investors and to regulate and oversee the functioning of securities market and securities exchange.

The Competition Act, 2002

This piece of legislation seeks to regulate fair competition in the market amongst the market players by promoting free trade and prevent manipulation by any undue forces and prevents anti-competitive practices.

Foreign Exchange Management Regulations, 2024

These regulations issued by the Reserve Bank of India, are meant to regulate and streamline the export and import processes and work towards the ease of doing business.

Insolvency and Bankruptcy Code, 2016 (IBC)

Insolvency and Bankruptcy Code, 2016 provides a comprehensive framework that deals with insolvency and bankruptcy situations arising in a company, firm, corporation or cases involving individuals and the legal process that follows such conditions.

Significance of Corporate Laws in India

There has been immense growth in the functioning of businesses, markets, people or companies involved on these planes and other transactional elements that interplay with it. With globalisation and digitisation this has evolved into an entirely different screenplay with cross-border access, trades and transactions, huge inflow and outflow, effectively no physical borders or limitations, followed by many other complexities that are involved with such a bulk of transactions at play. The primary reason for the existence and the importance of corporate laws is to lay down a framework for harmonious and well-regulated functioning of the businesses in India. Its major objective is to give a uniform platform for legal entities to function freely and fairly. Corporate Law also regulates the rights and obligations of the legal entities, directors of company, and the company officers to align the vision of the company with the working mechanism. This governs not only external functioning but also internal affairs of a company. These laws and regulatory provisions oversee a proper functioning, and effective resolution and prevent impropriety at any possible tangents.

The Difference between Commercial Laws and Corporate Laws

Corporate laws and commercial laws are two different laws and operate in different legal fields, though the functioning or the application may overlap or intersect.

As discussed above, corporate law in itself deals with corporate function, regulations, framework, and its governance. Commercial laws on the other hand deal with commercial space and commercial transactions, trade, and commerce. These transactions may of course involve corporate structures, individuals, organisations, trade channels or any other element of the network and hence deals with and regulates the commercial interaction in general.

As an analogy corporate law deals with company itself and the commercial laws in such cases deals with the commercial and business transactions involving the company.

Conclusion

In conclusion, Corporate laws play a huge significance on businesses and companies by laying out a framework that regulates its formation, structure, and general operations. Corporate laws overarc the entire legal knitting involved from inception to conclusion of companies, firms, or corporate bodies. Considering the same, the above analysis clearly shows that the functioning of the business cannot be done without the corporate law, especially in a business-oriented country like India where the essence of its economy hugely relies on the entrepreneurial spirit of the people.

Recommended Books for Understanding Corporate Laws in India

To know more about the subject and for an in-depth analysis of the provisions of corporate laws refer-

Corporate Governance by Vinod Kothari & Company

The book encompasses a multi-jurisdictional coverage, with an emphasis on Indian laws.  The book exhaustively dwells on ‘Corporate Governance’ as a concept and its evolution.

The book comprises of 25 chapters with important topics like: (i) The Trajectory of Corporate Governance; (ii) The Pillars of Governance; (iii) Conflicts of Interest; (iv) Accountability and Assurance; (v) Corporate Democracy; (vi) Information Symmetry; (vii) Enterprise-wide Governance; (viii) Sustainability and Social Responsibility; (ix) Governance Considerations in Financial Sector Entities.

 

Securitisation, Asset Reconstruction and Enforcement of Security Interests (7th Edition) by Vinod Kothari

This is the seventh edition of one of the most trusted references on securitisation -of non-performing loans, enforcement of security interests, asset reconstruction companies, and a brilliant reference book for peculiarities of SARFESI Act.

The commentary covers the securitisation of performing loans, encompassing RBI directions on the securitisation of standard assets, as well as the legal, taxation, and accounting aspects of securitisation.

K R Chandratre’s Company Meetings – Law, Practice and Procedure 

The comprehensive commentary deals with changes brought by the Companies Act, 2013, along with the governing principles.

This book is a ready reference and trustworthy resource for all types of companies, company secretaries, lawyers, and judges. Moreover, organizations other than companies can also use it as a practical guidebook to look into its practical aspect.

Corporate Law eBook package

Corporate Law eBook package consists of eBooks on corporate law including the latest titles such as Securitisation, Asset Reconstruction and Enforcement of Security Interests, 7th edition by Vinod Kothari, and Corporate Governance by Vinod Kothari & Company.

Commercial, Banking, and Corporate Laws Bare Acts eBook package is a set of 14 digital bare acts that can be used for easy reference.

You can also subscribe to Commentaries and Digital Bare Acts eBook package – Corporate, Banking, and Commercial which is a set of 62 titles and digital bare acts pertaining to Corporate law. It has an exhaustive range of reference resources for the subject at one place.

Create your personalized digital legal library with LexisNexis eBook packages.

Benefits of LexisNexis eBook packages:

  • Freedom to choose packages as per practice area
  • Get access to full year’s new titles and editions in the package
  • Easy to cite in court
  • Available on Desktop, iOS and Android
  • Save up to 80% as compared to print prices

Protection of Women from Domestic Violence Act, 2005

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Domestic abuse poses a noteworthy problem in society impacting women and children worldwide. The Protection of Women from Domestic Violence Act of 2005 in India plays a pivotal role in providing protection, prevention, and support for those affected by violence in the families. In this blog post, we’ll explore the definition of domestic violence, different forms of abuse addressed in the law, objectives, extent, important sections of the legislation, and legal steps as well as recourse available to the aggrieved women.

Aim and Objective

The Beijing Declaration, The Vienna Accord, and CEDAW (i.e. Convention on Elimination of All Forms of Discrimination Against Women) have stated that domestic violence is essentially a human rights violation.

United Nation’s CEDAW, in its general recommendation, provided that the States should work towards protecting aggrieved women against domestic violence.

Hence, the Domestic Violence Act was enacted providing for an effective, time efficient, civil law remedy, considering the right to equality (Article 14), prohibition of discrimination on grounds of religion, race, caste, sex, and place of birth (Article 15) and right to life and liberty (Article 21) ensured by the Indian Constitution.

Preventing Domestic Violence: The Act aims to stop any form of violence, safeguarding the security and welfare of women and children, in their homes and within families and matters therewith or incidental thereto.

Supporting Victims: It establishes laws for protection of rights guaranteed under the constitution and to shield women and children from types of mistreatments such, as physical, emotional, verbal, financial, and sexual abuse.

Support and Aid Provision: The legal system guarantees that people who have suffered from violence can receive help such, as medical facilities, financial support, counselling, shelter homes, and therapy. It mandates the assignment of protection personnel and service authorities to assist those requiring assistance.

Legal recourse: It allows individuals the right to seek remedies, like court orders, living arrangements and financial aid. The legislation gives judges the authority to intervene in safeguarding those impacted.

What is Domestic Violence?

Violence that happens within a family or domestic environment, in a domestic relationship is known as domestic violence. As per Section 3 of the Protection of Women from Domestic Violence Act of 2005 (PWDVA),

“any act, omission, or commission by the respondent constitutes domestic violence if it:

(a) Harms or injures or endangers the health, safety, life, limb, or well-being, whether mental or physical, of the aggrieved person, including causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or

(b) Harasses, harms, injures, or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for dowry or other property or valuable security; or

(c) Threatens the aggrieved person or any person related to her by any conduct mentioned in clause (a) or (b); or

(d) Otherwise injures or causes harm, whether physical or mental, to the aggrieved person”

Who is an Aggrieved?

Aggrieved person is any woman who is or has ever been in a domestic relationship with the respondent and who alleges to have been a victim of domestic violence in any form. So, it covers a woman who has been in a domestic relation either at the time of filing of the application under the Act or in the past (Section 2(a)).

The magnitude of set-up or relationships covered under the term is wide, as it mentions of “domestic relationship” i.e. a  setup where people live or have lived in a shared household and are related by consanguinity, adoption or a relationship in nature of marriage.

Who is a Respondent?

Section 2(q) defines, who a respondent can be under the proceedings of Domestic Violence Act. Earlier the act included only an adult male member. However, later the Supreme Court interpreted the provision to include even a female member, as otherwise the provision could be misused to veil an act of violence behind the shield or through a woman relative.

Types of Abuse

The Protection of Women from Domestic Violence Act (PWDVA) or the “Act” acknowledges different types of abuses, giving victims of violence and abuse the ability to pursue legal action against unlawful actions by the respondent (male or woman) and family members provided the aggrieved person is any woman who is or has been in a domestic relationship with the respondent and who claims to have been a victim of domestic violence (provided under Section 2(a)).  There are various types of abuse listed under the Domestic Violence Act (Section 3, Explanation 1): –

Physical Abuse

This covers any physical violence, assault, criminal intimidation or criminal force, directed at the victim like- hitting, kicking, slapping, or causing bodily harm. Any act of a kind that causes bodily pain, harm, threat to life, limb, or health or impairs the development of the aggrieved.

Verbal and Emotional Abuse

This includes humiliation, insult, ridicule, verbal intimidation or any similar conduct towards the victim. Any repeated threats to cause pain or harm to the aggrieved directly or any person of interest to the aggrieved. This sort of conduct builds itself into emotional abuse against the victim. Examples are name-calling, manipulation, intimidation tactics or isolating the victim. The Domestic Violence specifically mentions insults directed for not having a child or a male child.

Financial Manipulation and Abuse

Economic abuse entails manipulating the victim’s situation restricting their access, to money or taking advantage of them financially.

Sexual Abuse

Encompasses any forced sexual behavior imposed on the victim without their agreement, such, as marital rape, or any abuse of sexual nature humiliating and degrading the dignity of women.

Scope and Applicability of the Act

The Act provides for various forms and modes of protection, as it acknowledges different types of abuse beyond just physical violence. This encompasses actions that cause bodily harm, emotional and verbal mistreatment leading to distress and insults, financial control and economic deprivation as a form of abuse, and any form of sexual abuse or conduct that undermines the dignity of women.

The law provides for the protection of women, such as mothers, sisters, wives, widows, and partners residing with the respondent (abuser). It applies to women in adoptive relationships too. Furthermore, it offers safeguards to women, in family setups even if they are not biologically or legally related to the respondent as long as they live under the same roof in a domestic relationship.

Important Provisions and Orders of the Act

Section 8: Protection Officers: are appointed by the State Government in every district to handle complaints, assist victims in making applications, and coordinate with the court. Preferably these Protection Officers should be female.

The Protection officer makes the ‘domestic incident report’ on the complaint to the Magistrate, ensures the provision of legal aid, medical examination and shelter home to the aggrieved woman, if required. Protection officers are officially designated to ensure the execution of monetary order.

Different Orders Under the Act-

Section 18 Protection Orders

If the magistrate is satisfied with the claim of the aggrieved (person facing abuse) (prima facie) and giving proper opportunity of hearing to the respondent, then he may pass a protection order in favor of the aggrieved and direct the respondent to stop committing and/or abetting any act of abuse, to stop entering the place of employment or if the aggrieved is a child then prevent the respondent from entering the school and to stop communicating or making any such attempt in any manner with the abused or prohibit alienation or operation of any assets, bank accounts or lockers.

Section 19 Residence Orders

Passed by the magistrate to restrain the respondent from dispossessing the victim or disturbing her settled position, and in some cases even may direct the respondent to leave from the shared household (except in cases where the respondent is a woman) even though the owner might be the respondent. Magistrate may restrain the respondents or the relatives from entering aggrieved woman’s part of shared household or from alienating or disposing off in any manner such a shared household or may otherwise order for an arrangement of an alternate accommodation for the applicant woman. Hence the order upholds the right to shared household as per section 17.

Section 20- Monetary Relief

Magistrate may direct the respondent to pay the aggrieved and any child, to cover expenses and losses, including loss of earnings, medical expenses, loss of property and for lump sum or monthly maintenance.

This monetary relief has to be adequate and reasonable, as per surrounding circumstances and the standard of living of the aggrieved.

Section 21- Custody Orders

Magistrate may at any stage of application for any other reliefs, may grant temporary custody of an child to the aggrieved or the applicant, including the orders for visitation.

Section 12 Application to Magistrate

The aggrieved person or another person representing the aggrieved (like another individual, a Protection Officer) can submit an application, to the Magistrate. This request is to ask for relied based on the rules of the Act and details the assistance and safeguards needed by the victim. The Magistrate can seek assistance of a welfare expert or can direct the party or parties to undergo counselling, if needed.

Section 31 Penalty for Breach of Protection Order

If the respondent breaches the Protection Order or the Interim one, then such act will be an offense under the provisions of the Act and the respondent will be punishable with either a fine of max. INR 20,000 or Imprisonment upto 1 year, or both.

Legal Remedies and Procedure

Section 12 Filing a Complaint

As per Section 12 of the Act, the aggrieved person or someone acting on their behalf (another person, Protection Officer), can file a complaint with the Magistrate and the Magistrate is under a legal obligation to consider the domestic incident report and can seek the required assistance for dealing with the domestic violence cases.

Court Proceedings

The magistrate, during the court proceedings has the authority to issue protection orders, for instant safety measures like preventing the respondent from reaching out to the victim. The proceedings may be held in camera if so required as per the circumstances of the case and if either of the parties to the case request so. In accordance with the case, the judge may also decide on residence orders and/or financial assistance.

Enforcement of Protection Orders

The authorities have the duty of upholding protection orders. Violating these orders can lead to consequences, such, as being sentenced to jail and/or penalties and/or both.

Related Books

Commentary on The Protection of Women from Domestic Violence Act by Dr J N Barowalia & Abhishek Barowalia

This commentary published by Lexis Nexis is a clear and concise interpretation of the Act. The Authors have thoroughly and dedicatedly done the research and deep study of the subject and compiled in a very lucid manner. The Protection of Women from Domestic Violence Act that came as special piece of legislation for a specific and quick remedy, finds all the explanations in this book. The commentary by these two remarkable co-authors, lays out diligent and comprehensive interpretation of the legal provisions, developments and standings under the Domestic Violence Act. The book provides for legal insights in a structured manner and simplifies the legal complexities involved in the Act.

 

Protection of Women from Domestic Violence Act, 2005 along with Rules, 2006

This bare act is comprehensive, latest edition published by Universal and Lexis Nexis and contains all sections along with the required Rules of 2006. It is an ideal read for students, lawyers and citizens.

 

Textbook on Women & Child Laws by Dr Nuzhat Parveen Khan

This textbook carefully and comprehensively takes readers through the legal landscape of laws governing women and children. Further, it traces the developments made in legal and policy landscape pertaining to women and child development.

CONCLUSION

Domestic abuse is a huge problem in the world with severe consequences. The Protection of Women from Domestic Violence Act, 2005 serves as a shield providing assistance and protection to those affected. This legislation acknowledges forms of abuse ranging from violence to psychological manipulation and financial abuse. It enables victims to seek orders, access medical care and shelter, or other requisite assistance from the legal or administrative machinery developed as per the provisions of the act. By familiarizing themselves with the processes and available support systems, an aggrieved person can navigate the system effectively and begin rebuilding their life. The Act offers a path toward safety, fairness and a hopeful future.

Further Reading:

Laws for Women in India: An Overview

New Criminal Laws in India

Right to Information Act, 2005

Important Things to Know about Divorce Under Hindu Marriage Act, 1955

Family Law in India: An In-Depth Discussion and Historical Perspective

Digital Courts: Future of The Indian Legal System

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India has been out on the digitalization journey for years. Its administration in the judiciary got a major thrust after COVID-19. This brought about a golden opportunity to ease and speed up the case filings as well as their hearing through the digital courts. In India, the e-governance system in the Indian legal system started in the late 1990s. It caught up in acceleration after the enactment and enforcement of the Information Technology Act in the year 2000. e-Courts were launched in the year 2006. This was a part of the National e-governance plan.

What are Digital Courts?

Digital courts as the name suggests use various software and technologies to function remotely. This was introduced as the Green Initiative of India to reduce the use of paper and to accelerate the adjudication of the plethora of pending cases by the litigants sitting at home. Digital courts function just as the physical courts the difference being that they work on virtual platforms. There are two components of the digital courts namely: the digital courts web portal and the digital courts desktop app.

Advantages of Digital Courts:

  • Increased Efficiency: Digital courts save a lot of time that is given to travel to reach the physical court by litigants, advocates, Judges, and other court members. This eases the mode of operating case management through automation and also saves time in accessing case files which is also done through a virtual platform. This increases the efficiency and speeds up the disposal of the cases.
  • Improved Accessibility: The cases in digital courts are managed through automated platforms and the files are also available to be accessed through virtual mediums. This helps in accessibility. The litigants also have ease of access to the court hearings which is otherwise difficult due to the uneven distribution of conventional physical courts.
  • Enhanced Transparency: Every detail of the case is stored on the virtual platform and the case and case files management system is automated through various apps which ensures transparency. This also presents a safer environment for the witnesses to present their testimonials.
  • Cost Reduction: A huge amount of expenditure is involved in the process of the adjudication of the case, including the travel expenses of the people involved to the use of amenities of the courts and papers. Virtual courts reduce this cost. Especially in the stages of appeals and final hearings cost of commute is entirely cut out.
  • Sustainability and Environmental Impact: There are numerous amount of use of papers that goes into court matters. Considering the plethora and number of pending cases and the record of previously disposed cases is humungous. This only shows the direct proportion of the trees being cut down to generate that amount of paper. Hence, digital courts help in sustainability and help in the process of going paperless which reduces the negative impact on the environment.
  • Reducing Backlogs and Improving Judicial Reach: The digital courts help in the adjudication of cases with the use of minimum resources. They save the commute and waiting time and help all the litigants in proportionate access to the courts. This helps in the reduction of the pendency and also improves the judicial reach.

Shift Towards Digital Courts

The digitalization of courts in India began in the year 2006 with the initiative to progress towards a green nation but the shift towards digital/virtual courts came with COVID-19. The pandemic set the stage for the full-fledged use of e-governance in the judiciary arena. Digital justice is being taken care of through the establishment of e-courts in various parts of the country.

Many legal tech start-ups have been set up that are offering services like legal research and legal automation systems for documentation. The implementation of digital identity projects has set foundation for the secure identification verification. This shift was also possible due to the Bar Council’s Initiatives for legal technology. This shift also gives legal aid to the marginal section of society through organizations like the National Legal Services Authority through their digital platforms. When the courts went live, the Supreme Court allowed the plaintiffs to appear through the Video apps. Several High Courts of various States employed their technology to conduct court hearings.

The future of the Indian Legal System through Digital Courts looks promising. The advancements in technology, government initiatives, and the rising demand for a more efficient and accessible legal system. The future is secure because various technologies such as artificial intelligence, machine learning, virtual reality, augmented reality, data analytics and many more technologies as such are actively a part of the Indian Courts. The technology that is being used for legal matters are benefitting in the case management, legal research, online dispute resolution, e-filling, e-Challan, and many more as such.

The Supreme Court of India has also embraced the technology by giving judgments through online portals and have also agreed upon live streaming which is kind of a revolutionary thing to do. The Supreme Court also uses various technological tools and have also advised other law firms to use, some of those are e-Court Projects, SUVAS (Supreme Court Vidhik Anuvaad Software), SUPACE (Supreme Court Portal for Assistance in Court’s Efficiency).

As the importance of digitalizing the courts for better functioning and quick solutions are increasing, more and more software as well as technologies are coming into the picture. Thus, the future from here on is going to be efficient, seamless, and easy to access.

Role of Digital Law Libraries in Supporting Digital Courts

  • Streamlined Legal Research: The e-Courts make use of the cloud-based software to store the case-related data which makes the data more streamlined and helps in the easy research of any document or case files.
  • Enhancing Accessibility and Flexibility: It helps the general public to access the cases and enhance legal knowledge. Any person for free or with minimal subscription can have access to any recent cases or legal knowledge.
  • Enabling Efficient Case Management: Every information and document related to the cases can be stored in the cloud set-up and can be easily made accessible to the litigants and court members. It has made the process of file storage hassle-free.
  • Up-to-Date Information: Every information and case progression are instantly updated on the software and is made up-to-date. This reduces the backlogging of any data on any hearing.
  • Building a Robust Digital Legal Ecosystem: The e-courts or digital courts have made the legal system much more robust, updated, and hassle-free. It has reduced the over-working of the court members, especially in terms of documentation and case file management, and has also accelerated the case hearings.

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Conclusion

To conclude, it is safer to say that the future of the Indian Legal system can reach great heights and is reaching greater heights already with the adoption of Digital Courts. The amalgamation of technology with the judicial processes promises to enhance efficiency, capability, accessibility, and transparency in the journey of justice. Digital Courts can fasten up the backlog cases thereby reinforcing public trust in the legal system. And LexisNexis will be the absolutely best platform for 10x faster and efficient results with Lexis Advance.

As India progresses towards a phenomenal digitally empowered judiciary, addressing challenges related to digital literacy, cyber laws, and digital infrastructure is vital to ensure the smooth and easy implementation of Digital Courts. To embrace this transformation means supporting the new era of legal system that would uphold the principles of Justice and the rule of law in the Digital Era.

Insurance Law in India

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Insurance has a deep-rooted history in India. Various forms of writing can be seen in Manusmriti, Dharmasastra, and Arthashastra. This blog unfolds the history of Insurance law and its development in India. It further discusses the regulatory body of Insurance in India, its roles and functions, and powers and responsibilities. We further delve into the different kinds of Insurance Acts that govern India. This blog also discusses the process of licensing and regulation of Insurance companies in India and gives us a glimpse of the different types of insurance, insurance contracts, and policies and key components of insurance contracts. It concludes with recommended Insurance law books and frequently asked questions.

What is Insurance Law?

Insurance laws frame a legal outline to govern the insurance business and its contracts. Insurance is a type of contract of indemnity in which an insurer indemnifies the other party against a loss that happens due to the happening of a contingent event. This segment of law is governed by the IRDAI. It covers various types of risks. Insurance is a contract of indemnity. It works on the principle of Uberrimae Fides which means in utmost good faith. It means that both the insurer and insured must disclose all the material facts about the person or property being insured. An entity that provides insurance is known as an insurer and the entity to which the insurance is provided is known as the insured.

Historical Development of Insurance Law in India

The evolution of Insurance law in India dates back to the year 1818 when India saw the advent of life insurance in India. The returns of insurance companies in India started getting published in 1914. In 1956, the Life Insurance Corporation came into existence. Concerning the General Insurance laws in India, in 1957 general insurance in India was formed and in 1973 it was nationalized. In April 2000, the Insurance Regulatory and Development Authority of India was established as a statutory body and in August 2000 it opened up the market in India.

Insurance Regulatory and Development Authority of India (IRDAI)

IRDAI stands for Insurance Regulatory and Development Authority of India. It was formed in the year 1999 under the IRDA Act. It came into effect on 19th April 1999. The IRDAI is a statutory body of India governing the insurance laws of India. The primary role of IRDAI is to protect and safeguard the interest of the policyholders of India and to focus on the development of the insurance sector in India. IRDAI has its own set of rules and regulations to govern the insurance laws in India. It is also vested with the power to investigate matters that involve malpractice by an insurance company. IRDAI also has the power to pass orders, give directions to other bodies, and make awards. IRDAI also works closely with government bodies like the Reserve Bank of India and the Securities and Exchange Board of India.

Roles and Functions:

It looks after the fair treatment and interest of the insurance holder. It frames regulations to ensure the operation of the industry without any ambiguity.

Powers and Responsibilities:

The major power and responsibility of the IRDAI is to promote and regulate the orderly growth of the insurance and reinsurance business in India. Its key responsibility is to protect the policyholders’ interest and encourage fairness in the insurance industry.

Insurance Laws and Acts in India

After the nationalization of both general and life insurance in India, many acts and legislations came into power to address the various types of insurance. This laid down the Acts to check the functioning of the insurance business in India. Different Acts govern different aspects of the insurance laws in India. Below are a few Acts and laws that govern the insurance sector in India.

The Insurance Act, 1938

The main purpose of this Act is to lay out a legal framework to carry out insurance business in India. This Act is the parent legislation that aims at consolidating and amending the previous insurance laws that existed during British rule. This Act lays down ground rules for the operation of the insurance business in India.

Related book: Insurance Act, 1938

Insurance Regulatory and Development Authority Act of 1999

This act establishes the statutory authority that will look into the protection of the rights and interests of the policyholders. The objective of this act is to promote and regulate the insurance industry in India. It also checks to create a fair business environment.

The Life Insurance Corporation Act, 1956

The main objective of this Act is to nationalize the life insurance business in India. This regulated the necessity for the certification of premium rate tables and periodical valuations of the companies.

Related Book: Life Insurance Corporation Act, 1956

The General Insurance Business (Nationalization) Act, 1972

The purpose behind the enforcement of this Act was to provide Indian insurance companies and other existing insurers shares to be enabled for the acquisition and transfer of for better economic needs. This was to ensure the safeguarding and development of the general insurance business. It was established to look into the best interest of the community and control businesses.

The Marine Insurance Act, 1963

This act focuses on the maritime industry. This legislation ensured that any loss or damage of ships, terminals, cargo, or any transport in which property was transferred or held between two points of origin and final destination was given coverage.

The Motor Vehicles Act, 1988

This Act has been legislated to govern road transport vehicles. This act compels the insurance of motor vehicles plying on roads. The owner is also bound by this act to insure the vehicle against third-party risks.

Related book: Motor Vehicles Act, 1988

Licensing and Regulation of Insurance Companies

The licensing and regulation of the insurance company gives it the authority to operate its business in India. This licensing and regulation is done by the IRDAI. The State insurance commissioner is in charge of the issuance of the license. Only after attaining the license, the insurance company can sell its policy and products to the general public.

Criteria for Licensing

The issuance of license and registration of an insurance company in India is governed by the IRDA Registration of India Insurance Companies (Seventh Amendment) Regulation, 2016. The eligibility criteria are that to get a license to have been a registered public company under the Companies Act, 2013, to have 100 crores of cash, and to build a reinsurance company you need to have 200 crores.

Regulatory Compliance for Insurance Providers

IRDAI compliance is required for any insurance provider to function in India because it is the regulatory body. This regulatory body safeguards the interest of the policyholders and ensures the uniform and fair functioning of all the insurance providers with clarity.

Types of Insurance in India

Insurance in India is segregated into various types depending upon the subject matter of the risk being insured. Insurance is available for living and non-living properties. Several factors are considered to bifurcate the various policies as per the property being insured. The types are broadly divided into two major categories: life and general insurance. It is crucial to select the right kind of policy as per the need to secure oneself from financial risk.

Life Insurance

Life insurance is a contract between an individual and a life insurance company. In this type of insurance, the beneficiary/beneficiaries are paid a sum of amount depending upon the premium on the demise/disability of the policyholder. This ensures the financial protection of the family members of the policyholder.

General Insurance

General Insurance is a type of insurance or agreement between the policyholder and insurer in which the insurance company protects the valuable assets of the policyholder from any unfortunate accident like fire, theft, burglary, etc.

Insurance Contracts and Policies:

All the contractual agreements in India are governed by the Indian Contract Act, of 1872. Insurance being a contract of indemnity is also guided by the same Act. But with evolving times and the rise of different situations, courts have laid down principles to balance the interest of both the insurer and the insured without going against the principle of the contract law.

Formation of Insurance Contracts:

Offer and Acceptance

Offer and acceptance in an insurance contract refers to the willingness of the policy-holder to accept a certain policy of the insurance company in exchange of a premium amount to cover a certain loss.

Premiums and Consideration

Premium is the amount of money paid by the policy-holder to the insurance company which is the consideration of the agreement in return for which the insurance company will do a certain kind of loss on the occurrence of a certain event.

Policy Terms and Conditions

Policy terms and conditions of the insurance are certain prerequisites of the agreement of the insurance which is to be abided by the policy-holder and on acceptance of which the premium is paid.

Key Components of Insurance Policies:

An insurance policy also has some key elements that look into how the policy will operate or function. As the insurance is a contract of indemnity, the contract is comprised of few essential components and so is the policy of insurance. Any insurance policy has three main components which are the premium, policy limit, and deductibles. The policy contains the premium that is to be paid by the insured, the subject matter that is being covered from risk or loss, up to what limit/amount the risk is being covered and under what conditions, and against what types of risk the subject is covered.

Declarations

The declaration of a policy tells you in detail about the entire policy. It discusses everything from who is covered to which all coverages are paid. It includes personal details of the policyholder, type of coverage, coverage limit, cost of coverage, and deductibles.

Insuring Clauses

This mentions the risk that is covered by insurance. This clause entails the risk for which the insurer is liable for paying and also outlines the scope of coverage.

Exclusions and Conditions

These are the clauses of an insurance contract that prevent or limit a liability or legal obligation in cases where a certain occurrence takes place.

Claims Process:

Claiming insurance is a process that has a few steps. There are a few steps involved which lay down a guideline as to how one can proceed to make an insurance claim. The claim of insurance involves the necessary steps to be taken by the insured to file the claim on the happening/non-happening of the event that caused damage to the property or subject matter that was insured.

Filing a Claim

Filing a claim in the insurance process refers to the request made by the policyholder to the insurance provider to do good the loss or reimburse against the losses that were supposed to be covered as per the insurance policy.

Investigation and Settlement

When a claim is filed by the policyholder, a dedicated team of the insurance company investigates the matter and the loss that has happened and checks for the fulfillment of certain parameters. If they are ticked off, the claim is settled. In situations where the parameters are not met, the claim might also be rejected. The investigation needs to be done within 90 days of the claim intimation. The settlement needs to be done in 30 days thereafter.

Dispute Resolution Mechanisms

Many times, when in the investigation process, the necessary elements are not met, the claim can be rejected by the insurance provider. In these cases, the parties resort to dispute resolution mechanisms. Dispute resolution mechanism in insurance of what happens through arbitration. In this method, the parties of insurance i.e. the policy-holder and the insurance provider sit amicably to resolve the issue in the presence of a third party.

Recommended books for further reading:

Commentary on The Insurance Regulatory and Development Authority Act by S K Sarvaria and Apoorv Sarvaria

This is an illustrative book that gives a detailed overview of the features and regulations of the IRDA. It also gives the details of the insurance laws in India. This book is a reference and a great guide for scholars, practitioners, and even students.

Principles of Insurance Law by M N Srinivasan and K Kannan

This is not just a guide but gives a critical overview of the insurance law. This includes all the aspects of the insurance law including the general principles, practices, procedures, and special chapters on tax planning.

Law of Insurance by B N Banerjee & S K Sarvaria

This is a comprehensive book that gives an exposure to all kinds of insurance laws. It includes all the laws of different insurances that are followed in India along with commentaries on the Motor Vehicle Act and the latest amendments.

Conclusion

The insurance laws in India are growing with the evolving times and because India as an economy is transitioning, all the assets have an economic value attached with it. Insurance acts as an important tool to provide security. Insurance acts as a useful instrument to indemnify against a loss. IRDAI as a regulatory body governs the policies and safeguards the interest of people in the insurance business. This law is a tool to protect and maintain the legal and regulatory architecture of the country.

FAQs

  • What is the General Insurance Act in India?

With the goal of better serving the needs of the economy, the General Insurance Act was introduced to facilitate the acquisition and transfer of shares in Indian insurance companies and other related undertakings of various existing insurers.

  • What was the first insurance act in India?

The Indian Life Assurance Companies Act, of 1912 was the very first insurance act in India.

  • What is the Insurance Laws Amendment Act 2015 in India?

The Insurance Laws Amendment Act, 2015 removes archaic and redundant provisions present in the legislation. It also incorporates certain provisions to provide the Insurance Regulatory and Development Authority of India with some flexibility to discharge the function effectively as well as efficiently.