Delhi High Court directs Google, Indian Kanoon, and all other search engine operators and intermediary platforms to recognize person's "right to be forgotten" in its operations

In Laksh Vir Singh Yadav vS.  Union of India & Ors. (2026), Justice Sachin Dutta of Delhi High Court delivered a 144-page long judgement dated May 29, 2026, wherein, he concluded:"Google LLC/ Google Inc./Google India Private Ltd. and all other search engine operators are directed to de-index the relevant content, orders, judgments and associated reportage from name-based search results, and shall be complied in the same manner, as a direction under Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. 285. Indian Kanoon (iKanoon Software Development Private Limited) is directed to restrict name-based search functionality within its platform in respect of the records of the petitioners identified above. The judgments and orders shall remain accessible on Indian Kanoon by case number, citation, Court details and date. 286. All petitioners in respect of whom de-indexing has been directed shall be at liberty to seek masking from the concerned Court that rendered the original order or judgment. 287. The Union of India, through the Ministry of Electronics and Information Technology (MEITY), is directed to ensure compliance with these directions by the respondent intermediaries within the aforementioned time period. MEITY shall immediately communicate these directions to Google LLC/ Google Inc., Indian Kanoon and all other search engine operators and intermediary platforms operating within the jurisdiction of India, and shall file a compliance affidavit within a period four weeks from today." 

The 30-page long Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 has been framed under Section 87 (1) (z) (zg) and Section 87 (2) of section 87 of the Information Technology Act, 2000 by Ministry of Electronics and Information Technology (MEITY). It was published in the Gazette of India on February 25, 2021, in the aftermath of Supreme Court's unanimous judgement dated August 24, 027 in K.S. Puttaswamy vs. Union of India, 2017 10 SCC 1. 

The judgement reads: "141. The right to be forgotten, understood as subsuming the right of an individual to seek removal or restriction of personal information from public digital accessibility, where such information is no longer relevant or serves no legitimate public purpose, flows naturally and necessarily from the constitutional recognition of informational privacy under Article 21." He pointed out: "146. India presently lacks a comprehensive statutory framework explicitly governing the right to be forgotten. However, the absence of specific  legislation does not preclude Constitutional Courts from recognizing and enforcing this right."

Justice Dutta recorded that  "Google has submitted that it performs a passive and neutral function" to state that "This is inaccurate. By actively collecting, indexing, organizing and serving personal data through name-based search results, and by deriving commercial revenue through advertising linked to those search results, Google is an active processor of personal data, which materially contributes to the invasion of informational privacy. The same has also been traced by the European Court of Human Rights, in the judgment rendered in Hurbain v. Belgium (Grand Chamber, Application No. 57292/16)...." He noted that "the functioning of Google (and similar search engines) is entirely automated and algorithmic....A purely mechanical process driven by algorithmic logic cannot constitute an exercise of freedom of speech and expression." Justice Dutta referred to the decision in Google Spain, S.L. vs. Agencia Española de Protección de Datos (AEPD) & Mario Costeja González (Case C-131/12) to state that "the activities of Google cannot be equated with those of the 'publishers of websites'. In Google Spain, it has been observed:“35 In this connection, it should be pointed out that the processing of personal data carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites, consisting in loading those data on an internet page.” 176. It follows that Google’s indexing and serving of judicial and other records in response to name-based searches is not an exercise of any fundamental right that can be legitimately pitted against the petitioner’s fundamental right to informational privacy under Article 21 of the Constitution. Such search engines are not ‘passive channels of information’, instead they are in the nature of a ‘commercial platform’, deriving revenue by leveraging user searches and associating them with advertising opportunities."  

Justice Dutta drew on Justice S.K Kaul's concurring judgement as part of 9-Judge Constitution Bench in K.S. Puttaswamy vs. Union of India (2017). Justice Kaul observed: “629. The right of an individual to exercise control over his personal  data and to be able to control his/her own life would also encompass his right to control his existence on the internet. Needless to say that this would not be an absolute right. The existence of such a right does not  imply that a criminal can obliterate his past, but that there are variant degrees of mistakes, small and big, and it cannot be said that a person should be profiled to the nth extent for all and sundry to know....631. The impact of the digital age results in information on the internet being permanent. Humans forget, but the internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration. The footprints remain. It is thus, said that in the digital world preservation is the norm and forgetting a struggle....634....People change and an individual should be able to determine the path of his life and not be stuck only on a path of which he/she treaded initially. An individual should have the capacity to change his/her beliefs and evolve as a person. Individuals should not live in fear that the views they expressed will forever be associated with them and thus refrain from W.P.(C) 1021/2016 & Connected Matters Page 73 of 144 expressing themselves. 635. Whereas this right to control dissemination of personal information in the physical and virtual space should not amount to a right of total eraser of history, this right, as a part of the larger right to privacy, has to be balanced against other fundamental rights like the freedom of expression, or freedom of media, fundamental to a democratic society. 636. Thus, the European Union Regulation of 2016 [ Regulation No. (EU) 2016/679 of the European Parliament and of the Council of 27-4 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).] has recognised what has been termed as “the right to be forgotten”. This does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”

Drawing on the Supreme Court's decsion, Justice Dutta wrote: "....the present proceedings are directed at enforcing the fundamental rights of the petitioners, originating from Article 21 of the Constitution, the rights that the Supreme Court in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, expressly recognized as operating against both State and non-State actors" The relevant observations read: “328. Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the State but from non-State actors as well…… 367. Claims for protection of privacy interests can arise against the State and its instrumentalities and against non-State entities, such as, individuals acting in their private capacity and bodies corporate or unincorporated associations, etc., without any element of State participation. Apart from academic literature, different claims based on different asserted privacy interests have also found judicial support. Cases arose in various jurisdictions in the context of privacy interests based on (i) common law; (ii) statutory recognition; and (iii) constitutionally protected claims of the right to privacy.....644. The right to privacy is a fundamental right. It is a right which  protects the inner sphere of the individual from interference from  both State and non-State actors and allows the individuals to make autonomous life choices.”

Supreme Court asserts "Mere recovery of currency notes....cannot by itself constitute an incriminating circumstance against an accused", its relevance for Yashwant Varma case

In Pooranmal vs. The State of Rajasthan & Ors.(2026), Supreme Court's 3-Judge Bench of Justices Vikram Nath, Sandeep Mehta, and N.V. Anjaria delivered a 31-page long judgement dated March 10, 2026, it observed:"33. Thus, the very factum of recovery of the currency notes comes under a grave cloud of doubt. That apart, mere recovery of currency notes, in the absence of any cogent evidence establishing a clear nexus between the said amount and the crime, would not by itself constitute an incriminating circumstance against the appellant-Pooranmal. Thus, the said circumstance was wrongly treated to be incriminating by the trial Court as the recovery itself is doubtful and additionally, the mere recovery of currency notes cannot constitute incriminating evidence in absence of corroborative evidence." 

It held that that the prosecution had failed to establish a complete chain of incriminating circumstances connecting the appellant to the alleged offence. The Court held that the evidence relied upon by the prosecution was either doubtful, inadmissible, or insufficient to sustain the conviction. The Court set aside the judgments of the trial court and the High Court and acquitted the appellant of all charges. The Court directed that the appellant, who was in custody, be released forthwith.

The Court delivered the judgement upon hearing a criminal appeal challenging the conviction of the appellant for offences punishable under Sections 302/34 and 201 of the IPC in connection with a murder case, where the prosecution had relied entirely on circumstantial evidence, including recoveries and call detail records. 

The Court noted that the prosecution has failed to establish a proper chain of custody for the seized articles sent for forensic examination. Discrepancies between the testimony of police witnesses and entries in the Malkhana register created serious doubts regarding the safekeeping and movement of the sealed articles before their dispatch to the forensic laboratory. In this context, the Court held that the prosecution had failed to prove the integrity of the chain of custody necessary for relying on the forensic report. Without such proof, the forensic report itself lost evidentiary value. The Bench also addressed the reliance placed by the prosecution on call detail records purportedly showing frequent communication between the accused persons. The Court held that electronic evidence in the form of call detail records can be admitted only upon compliance with the mandatory requirements under Section 65-B of the Evidence Act. The prosecution could not produce the statutory certificate required under the provision. 

As a consequence, the call detail records were held to be inadmissible in evidence. The three circumstances relied upon by the prosecution, recovery of currency notes, recovery of the shirt, and call detail records were not proved in accordance with the law. These circumstances failed to form a complete and unbroken chain of evidence capable of establishing the guilt of the appellant. 

Relevance for Yashwant Varma case

All India Radio reported on May 19, 2026 that the Judges Inquiry Committee investigating allegations concerning Justice Yashwant Varma submitted its report to the Speaker Om Birla, Lok Sabha at the Parliament House. ​It was presented in accordance with the statutory requirements under the Judges (Inquiry) Act, 1968. The committee was constituted on August 12 last year by the Lok Sabha Speaker to inquire into allegations against former High Court judge Justice Yashwant Varma. The report will be laid before both Houses of Parliament in due course. The Presiding Officer of the Judges Inquiry Committee, Supreme Court's Justice Aravind Kumar, along with the Chief Justice of the Bombay High Court Justice Chandrashekhar and Senior Advocate of the Karnataka High Court B.V. Acharya, presented the Report of the Judges Inquiry Committee to the Speaker, Lok Sabha. Notably, Justice Chandrashekhar's name was recommended for his elevation as judge of the Supreme Court on May 27, 2026 by the Collegium, comprising Chief Justice of India Surya Kant and Justices Vikram Nath, J.K. Maheshwari, B.V. Nagarathna and M.M. Sundresh. He is expected to serve approximately three years and eleven months on the Supreme Court bench, retiring in May 2030.  

The Speaker and the MPs ought pay attention to the judgement in Pooranmal vs. The State of Rajasthan & Ors.(2026), dated March 10, 2026 because mere recovery of currency notes....cannot by itself constitute an incriminating circumstance against an accused. The probe was initiated following the discovery of massive amounts of burnt currency notes at his official residence in his absence during a firefighting operation. The currency notes initially estimated to be up to Rs. 15 crore, was discovered in a storeroom at Justice Varma’s residence after a fire broke out on March 14, 2025. Who counted the cash? It was either Rs 15 crore or it was not. How can a specific figure be deemed an estimated  figure? If An initial Supreme Court in-house committee concluded in May 2025 that Justice Varma had "active control" over the room as if his absence from the residence was inconsequential. In May 2025, Chief Justice of India Sanjiv Khanna had sent the report to the President and Prime Minister, recommending the initiation of removal proceedings, with ascertaining the chain of the custody of the currency notes, especially the source of the cash in question. Subsequently, on July 21, 2025, 14th Rajya Sabha Chairman Jagdeep Dhankhar informed Rajya Sabha that he received a notice for the removal of High Court Judge Yashwant Varma and asked the Secretary General, Rajya Sabha to take necessary steps. The notice was signed by more than 50 members of the Rajya Sabha. He observed: “Thus, it meets the numerical requirement of signing by members of Parliament for setting in motion the process of removal of a high court judge". There is no clarity as to what happened to the said notice after the abrupt resignation of Dhankar on on July 21, 2025. As a senior advocate he must have known that mere recovery of currency notes cannot by itself constitute an incriminating circumstance against an accused. Later, the Speaker, Lok Sabha had constituted a three-member statutory committee to formally investigate the charges under the Judges (Inquiry) Act, 1968. 

Has the committee looked in to the question of the likely beneficiaries who gain from killing the reputation of judges? There's more to this than meets the eye. It is a scientifically established fact that appearances are deceptive.   

Advocates point out problems in implementation of three amended criminal laws since July 1, 2024

A Round Table meeting was held on "issues emerging from the implementation of the Bharatiya Nyaya Sanhita (BNS), 2023 enacted 'to consolidate and amend the provisions relating to offences', Bharatiya Nagarik Suraksha Sanhita (BNSS)' to consolidate and amend the law relating to Criminal Procedure' and Bharatiya Sakshya Adhiniyam (BSA) "to consolidate and to provide for general rules and principles of evidence for fair trial" at Patna District Bar Association library at the Civil Court on May 30, 2026. The advocates pointed out that the new amendments have not contributed to reducing delay in the disposal of cases. Instead of changing the serial number of the sections in IPC, Cr.PC and Indian Evidence Act should not have been changed, the same could easily have been inserted within the existing laws, with which judicial officers, advocates and litigants were familiar.  

The meting was addressed by senior advocate, Yogesh Chandra Verma, President of Advocates Association and member, Bihar State Bar Council, Patna High Court Arvind Kumar Mouar, President, District Bar Association (DBA), and Dr. Gopal Krishna, advocate, High Court. The meeting resolved to constitute a committee with Arvind Kumar Mouar as its convener to examine each of the three laws separately and to constitute another committee to undertake study of the problems being faced in the implementation of the civil laws. 

Senior advocate Y.C. Verma pointed out that proviso given in the various provisions of laws reveals the last intention of the legislature. Therefore, they must be given adequate attention. He drew the attention of the advocates towards the Supreme Court's decision dated may 22, 2026 in Pune Bar Association v. Union of India & Ors., wherein, it has held that that any individual possessing special skills and expertise in computer science and cyber forensics can validly sign Part B of the standard-form certificate under Section 63(4) of the BSA, provided the Court is satisfied with their credentials on the basis of unimpeachable material.

Advocate Mouar pointed out that the probe by police takes 5-7 years and in some case it takes 20 years.    

Advocate Dr. Krishna stated that out of the 174 Sections of IPC have been changed, 8 new Sections added and 22 in the BNS Sections repealed. BNS 20 new offences have been added and 19 provisions in the repealed IPC have been dropped. The punishment of imprisonment has been increased for 33 offences, and fines have been increased for 83 offences. A mandatory minimum punishment has been introduced for 23 offences. Therefore, there is a need to undertake section by section analysis of the criminal laws by a high powered committee of the Advocates Association. Unlike Code of Civil Procedure, 1908 (CPC), after 2015 amendments, which has incorporated provisions for electronic service, without crucial safeguards such as authentication, verification, and protection against manipulation, Supreme Court's decisions have ensured that under Cr.PC/BNSS service “by electronic mail service or by any other means of transmission of documents" is impermissible.  Unlike Cr.PC/BNSS, the Order V Rule 9(3A) of CPC authorizes service “by electronic mail service or by any other means of transmission of documents as may be prescribed by the High Court Rules.” Rule 9 (4) of CPC deems service effected when acknowledgment is received or postal articles are returned with endorsements of refusal. 

In the light of decision dated July 16, 2025 by Supreme Court's Division Bench in Satender Kumar Antil vs. Central Bureau Of Investigation  2025, the validity of Section 13 (3) of Adjudicating Authority (Procedure) Regulations, 2013 framed in exercise of the powers conferred by sub-section (15) of Section 6 of the Prevention of Money-Laundering Act, 2002, the Adjudicating Authority, in supersession of the Adjudicating Authority Regulations, 2006, which permits serving  of summon or notice, requires reconsideration. 

The Court has held:"27. The Legislature, in its wisdom, has specifically excluded the service of a notice under Section 35 of the BNSS, 2023 from the ambit of procedures permissible through electronic communication, that have been delineated under Section 530 of the BNSS, 2023. 28.While interpreting a statute, the legislative intent is to be gathered from a plain and simple reading of the language employed in the provisions, in a purposive manner, thereby upholding the objective behind the enactment. On a plain reading of the BNSS, 2023, the restrictions imposed by the Legislature on the use of electronic communication, to only certain procedures, precludes the use of electronic communication for any other procedure, for which it has not been specifically permitted by the BNSS, 2023. 29. This interpretation is countenanced by the objective sought to be achieved by the BNSS, 2023. As highlighted hereinbefore, the essence of Article 21 of the Constitution imbues the BNSS, 2023, which reflects the laudable objective of safeguarding the liberty of an individual, while facilitating the investigation into and adjudication of offences. The above mentioned restrictions on the usage of the mode of electronic communication, have been imposed in order to safeguard the right to life and personal liberty, guaranteed to an individual by the Constitution, from being impinged during the course of criminal investigation and proceedings. 30.Hence, it is manifestly apparent that the Legislature has particularly specified the circumstances in which usage of modes of electronic communication is permissible, being circumstances which do not have a bearing on the liberty of an individual."  Notices are issued under Section 35 of the BNSS and summons under Sections 63, 64 and 71 of the BNSS. 

The Court observed that 32."....the purpose of an investigation by an Investigating Agency, is markedly distinct from that of an inquiry or judicial proceedings by the Court. While the former is to investigate an offence, the latter is a search towards the truthful determination of an occurrence. Therefore, the procedure of one cannot be read into the other....33. A summons under Section 63(i) of the BNSS, 2023 is issued by a Court in writing, in duplicate, which shall be signed by the presiding officer of such Court, or by such other officer as directed by the High Court from time to time, and shall bear the seal of the Court. 34.A new form of summons has been contemplated by the legislature in the BNSS, 2023. Under Section 63(ii) of the BNSS, 2023, a summons issued by a Court can be in an encrypted or any other form of electronic communication, and shall bear the image of the seal of the Court or digital signature. 35.Section 64 of the BNSS, 2023 pertains to how summons shall be served. We are concerned with Section 64(2) of the BNSS, 2023 which mandates that a summons shall be served personally on the person summoned, if practicable, by delivering or tendering one of the duplicates of the summons. The proviso to Section 64(2) of the BNSS, 2023 provides a discretion of also serving summons by electronic communication, only when they bear the image of the Court's seal in a manner and form that the State Government may provide by rules. 36.From a cumulative reading of Sections 63 and 64 of the BNSS, 2023, the argument on behalf of the applicant that Section 64(2) of the BNSS, 2023 relates to system-generated summons i.e., the e-Summons App, hence the requirement of the Court's seal to make them look authentic, falls to the ground because, irrespective of the summons being issued under Section 63(i) or Section 63(ii) of the BNSS, 2023, it shall necessarily bear the seal of the Court, or the image of the seal of the Court, when the summons is being served.17 Section 71 of the BNSS, 2023."

It added:"37.Section 71 of the BNSS, 2023 provides for the service of summons on witnesses. We are concerned with sub-section (1) which states that a Court issuing a summons to a witness may direct a copy of such summons to be served by electronic communication. 38.The contention of the applicant that a notice under Section 35 of the BNSS, 2023 falls within the same category as a summons under Section 71 of the BNSS, 2023, and therefore, since the latter allows electronic mode of service, the former must also be permitted to be transmitted electronically, cannot be accepted, for the simple reason that a summons under Section 71 of the BNSS, 2023, has no immediate bearing on the liberty of an individual in case of its non-compliance. However, a notice under Section 35 of the BNSS, 2023 could have an immediate bearing on the liberty of the individual in case of its non-compliance, as laid down under Section 35(6) of the BNSS, 2023. 39.Furthermore, a summons issued by a Court under Sections 63 or 71 of the BNSS, 2023, and a notice issued by the Investigating Agency under Section 35 of the BNSS, 2023 travel on different footings and cannot be equated with each other. A summons issued by a Court is a judicial act, whereas a notice issued by the Investigating Agency is an executive act. Hence, the procedure prescribed for a judicial act cannot be read into the procedure prescribed for an executive act."

The Court noted that "40. ....the BNSS, 2023 does not entirely preclude the use of electronic communication by the Investigating Agency. The Legislature has envisioned the use of electronic communication, during the course of investigation, and upon completion of investigation by the Investigating Agency, specifically provided for under Sections 94(1) and 193(3) of the BNSS, 2023 respectively."

It concluded:" 41.The usage of electronic communication by the Investigating Agency, has only been provided for effecting the procedure under Sections 94 and 193 of the BNSS, 2023. 42.Section 94 deals with issuance of summons, in an electronic form, to produce a document. Section 193 deals with the usage of electronic communication for forwarding the report to a Magistrate, upon completion of the investigation, or to inform the progress of the investigation to the informant or victim. None of these procedures have any bearing on the liberty of an individual. 43.Hence, when viewed from any lens, we are unable to convince ourselves that electronic communication is a valid mode of service of notice under Section 35 of the BNSS, 2023, since its conscious omission is a clear manifestation of the legislative intent. Introducing a procedure into Section 35 of the BNSS, 2023, that has not been specifically provided for by the Legislature, would be violative of its intent." 

Senior Advocate Verma spoke about Section 41 and 41 A of the CrPC (Section 35 BNSS). 

Section 35 of BNSS reads: "When police may arrest without warrant. (1)Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who commits, in the presence of a police officer, a cognizable offence; or 

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;(ii) the police officer is satisfied that such arrest is necessary-(a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,and the police officer shall record while making such arrest, his reasons in writing:Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest; or(c) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; or

(d) who has been proclaimed as an offender either under this Sanhita or by order of the State Government; or

(e) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(f) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(g) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(h) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(i) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 394; or

(j) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2)Subject to the provisions of section 39, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.

(3)he police officer shall, in all cases where the arrest of a person is not required under sub-section (1) issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(4)Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(5)Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(6)Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

(7)No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age.

Section 41A of the CrPC, which was a vital safeguard to prevent unnecessary arrests by mandating police to issue a 'notice of appearance' for questioning, rather than making an immediate arrest, has been directly incorporated into Section 35 of BNSS. 

In Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273, the Supreme Court dwelt on the issue of unwarranted arrests and laid down guidelines for arrests to be made under Section 41 f Cr.PC, regarding all the offences punishable with imprisonment up to a period of 7 years. It laid down guidelines for preventing arbitrary arrests and to protect individual liberties protected under Article 21 of the Indian Constitution. The Court observed:“Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.”

In Satender Kumar Antil vs. CBI, (2022) 10 SCC 51, the Supreme Court observed that there was an absence of specific guidelines with respect to the mandatory compliance of Section 41-A of the Code. The Court took a note of the endeavour made by the Delhi Court in the case of Rakesh Kumar vs. Vijayanata Arya where not only the need for guidelines but also the effect of non-compliance towards taking action against the officers concerned was discussed. The Court ordered all State Governments and Union Territories to facilitate Standing Orders in accordance with procedural requirements under Section 41A of the CrPC, noting the Delhi Police’s Standing Order 109 of 2020. The  Court noted: “We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41-A. We express our hope that the investigating agencies would keep in mind the law laid down in Arnesh Kumar, the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance.”

It upheld the judgement of the Delhi High Court in the case of Rakesh Kumar vs. Vijayanata Arya and recognized the importance of following due procedure laid down under the CrPC while serving notice to an accused. The Division Bench of Justices M.M. Sundresh and Rajesh Bindal observed: “It is made amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognised as an alternative or substitute to the mode of service recognised and prescribed under the CrPC, 1973/BNSS, 2023.” It also noted that the Delhi High Court’s guidelines in Rakesh Kumar vs. Vijayanta Arya and Amandeep Singh Johar vs. State (NCT Delhi), both of which were upheld by the Supreme Court in Satender Kumar Antil vs. CBI, must be strictly followed by all States/UTs when issuing Standing Orders to their respective Police machinery pertaining to Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023. 

There was discussion on Section 319, CrPC (Section 358 of the BNSS). On the petition of the informant or the State, the party is being made accused without hearing him. No notice is being issued because there is no law in this regard. Only informant is being heard and cognisance being taken. 

It was observed that Section 498 A of the IPC (Section 85 BNS), an anti-dowry and anti-domestic violence law should have been made compoundable.  

Section 358 of the BNSS grants courts the power to proceed against any person, not originally charged, who appears from evidence to have committed an offence and can be tried alongside the current accused. If evidence during an inquiry or trial indicates an uncharged person is involved in the crime, the court can initiate proceedings against them. If the individual is not in court, the judge may issue a summons or warrant for their arrest, depending on the situation. If the person is already present in the court (e.g., as a witness or spectator), the court may detain them to face trial. This power is reserved strictly for the trial stage; high courts have clarified that a Magistrate cannot use this section to take cognizance of a new offence on their own. For summoning additional accused under this Section, the courts have held the standard is “strong and cogent evidence”, which is higher than mere suspicion but lower than proof beyond reasonable doubt required for conviction.

Section 358, which allows a trial court to summon a person to face trial, does not contemplate that a summoned person must be given an opportunity to be heard before being added as an accused to face the trial. A right of hearing would accrue only to a person who is already discharged in the very same proceeding prior to the commencement of the trial. This is different from holding that a person who has been summoned as per Section 358 has a right of being heard in accordance with the principles of natural justice before being added as an accused to be tried along with the other accused. 

Notably, Jamin & Anr vs. State of Uttar Pradesh & Anr 2025 INSC 330, Supreme Court's Division Bench of Justices J B Pardwala and R Mahadevan have clarified that after the rejection of an application filed under Section 319 under CrPC (358, BNSS) praying to summon other persons to face the trial, a right enures in favor of the proposed accused. "Thereafter, if in the exercise of revisional jurisdiction, the High Court is to pass an order that is prejudicial to the benefit which had already enured in favor of the proposed accused, then the High Court is obligated in law to provide an opportunity of hearing to the proposed accused. This is also the mandate as contained in sub-section (2) of Section 401 of the CrPC". The judgement was authored by Justice Pardwala. 

There was discussion about the issue of search and seizure under special laws like NDPS Act, Excise Act, Vigilance, CBI, PMLA etc., examination of independent witnesses is necessary but not mandatory in the court. Earlier, there was 100 per cent acquittal in cases of illegal goods if there were independent witnesses. 

There was vociferous observations made regarding virtual cross-examinations because video conferencing eliminates physical presence, making it difficult to read a witness's body language or micro-expressions. It compromises a fair trial, as the screen restricts the ability to catch contradictions instantly and prevent remote coaching or witness intimidation. An effective cross-examination relies on observing eye contact, voice fluctuations, and hesitation, which video screens often blur. When a witness is examined remotely, defense advocates cannot be certain that others are not in the room coaching the witness or signaling answers. Presenting a document to a witness to catch them in a lie becomes logistically awkward, giving the witness time to think of an excuse rather than answering spontaneously. Under Section 530 of the BNSS, electronic hearings, including the recording of evidence and cross-examinations, are officially permitted. The government is implementing remote setups to speed up trials. Advocates are fiercely protesting this move which allows police officers to testify remotely directly from police stations. Bar associations have pointed out that allowing police to testify from within police-controlled premises—rather than a neutral, open courtroom—destroys judicial oversight and unfairly advantages the prosecution.

It was stated that juvenile have not been given right to anticipatory bail. There was reference made to a judgement by Justice Soni Srivastava in this regard. 

Senior Advocate Verma referred to Section 437 of Cr.PC (480 BNSS), the primary provision governing bail applications in non-bailable offences before courts other than the High Court or the Court of Session (that operates under the wider powers of Section 439). When a person accused of a non-bailable offence is arrested without warrant or appears before a magistrate, the magistrate may release them on bail. The use of the word “may” – as the Allahabad High Court has clarified – is deliberate and signals a discretionary authority, not a mandatory obligation. However, this discretion operates within clear constraints set by the statute itself. The magistrate cannot simply grant or refuse bail based on instinct. The law prescribes both absolute bars and factors to be weighed.

Under Section 2(a) of the CrPC, a bailable offence is one expressly classified as such in the First Schedule of the Code or any other applicable law. For such offences, the accused has a right to be released on bail under Section 436, and no officer or court can refuse it once surety is furnished. A non-bailable offence is simply any offence not classified as bailable. The classification is not arbitrary – it generally tracks the gravity of the offence and the potential harm to individuals and society. Crimes like murder, culpable homicide, rape, and dacoity fall in this category precisely because their impact on victims and social order is severe. The term “non-bailable” is, however, often misunderstood to mean that bail is impossible. That is incorrect. It means only that bail is not a matter of right – the accused must apply to the court, and the court decides based on the particular facts and circumstances of the case. Section 437 is the primary provision governing bail applications in non-bailable offences before courts other than the High Court or the Court of Session (which operate under the wider powers of Section 439). When a person accused of a non-bailable offence is arrested without warrant or appears before a magistrate, the magistrate may release them on bail. This discretion operates within clear constraints set by the statute itself. The magistrate cannot simply grant or refuse bail based on instinct. The law prescribes both absolute bars and aspects to be factored in.

The two situations under Section 437(1) remove bail from the magistrate’s discretion entirely. First, if there are reasonable grounds to believe that the accused has committed an offence punishable with death or imprisonment for life, the magistrate shall not release them on bail. Second, bail is barred where the accused has previously been convicted of a cognisable offence punishable with death, life imprisonment, or imprisonment for seven years or more – or has two or more prior convictions for cognisable offences carrying sentences between three and seven years. These are statutory prohibitions, and the magistrate must respect them. The only exception carved out by the proviso allows bail even in these cases if the accused is under sixteen years of age, is a woman, or is sick or infirm. This reflects a deliberate legislative choice to extend greater protection to vulnerable individuals within the system. 

Independent of the question of the guilt of the accused is the evidentiary assessment during the investigation itself. Section 437(2) provides that where, at any stage of the investigation, inquiry, or trial, the court finds insufficient grounds to believe the accused has committed a non-bailable offence – but sufficient grounds for further inquiry – the accused may be released on bail pending that inquiry. This is a critical safety valve: it prevents prolonged detention in cases where the evidence is weak or inconclusive, without foreclosing further investigation. 

Outside the ambit of absolute bars, the magistrate has genuine discretion – but it is structured discretion, not a blank cheque. Indian courts, through decades of jurisprudence, have crystallised the factors that must be weighed when considering a bail application in a non-bailable offence.

An offence carrying the death penalty or life imprisonment signals the highest level of societal condemnation and naturally tips the scales against bail. Conversely, a non-bailable offence that carries a moderate maximum sentence allows for more liberal consideration. Courts assess not just the label of the offence but the specific allegations – the manner and circumstances in which the act was allegedly committed. The past record of the accused  is given significant consideration-. A person with prior convictions for serious offences presents a greater risk of repeating the offence and may be less likely to comply with bail conditions. Section 437 itself imposes a bar on bail in certain cases of repeat offending, but even short of that statutory bar, prior criminal conduct remains a live factor in the magistrate’s assessment. First-time offenders, particularly those with stable employment and community ties, are generally viewed more favourably. Out of the two central considerations highlighted by the Supreme Court in Gurcharan Singh vs. State AIR 1978 SC 179, one is the likelihood of the accused fleeing from justice. If there are concrete reasons to believe the accused will abscond – such as the absence of local roots, significant financial resources enabling flight, or prior instances of evasion – bail becomes harder to obtain. Courts look at the accused’s ties to the community: family, residence, employment, and the duration of stay in the jurisdiction.

The second key consideration from Gurcharan Singh is the potential for the accused to interfere with the course of justice – by tampering with physical evidence or intimidating prosecution witnesses. In Gudikanti Narasimhulu vs. Public Prosecutor (1978), the Supreme Court held that the granting of bail must balance personal liberty with societal interest, and concerns about evidence integrity go directly to that balance. The courts are particularly cautious in cases involving organised crime, public servants, or situations where witnesses are vulnerable.

The Supreme Court observed in Sanjay Chandra vs. CBI (2012) that even persons accused of non-bailable offences are entitled to bail if the prosecution has failed to establish a prima facie case. This underscores that the presumption of innocence – rooted in Article 21 of the Constitution – does not evaporate the moment a non-bailable offence is alleged.

A principle of Indian bail jurisprudence, firmly stated by the Supreme Court in State of Rajasthan vs. Balchand (1977), is that bail should be the norm and imprisonment the exception unless specific circumstances justify continued custody. Pre-trial detention is not punishment. Holding a person in jail before they have been found guilty is a serious curtailment of the liberty guaranteed by Article 21, and courts have consistently held that this curtailment must be justified – not assumed.

This principle was reiterated in Sanjay Chandra vs. CBI (2012), which arose from the 2G spectrum case involving allegations of large-scale criminal conspiracy and corruption. The Supreme Court, despite acknowledging the gravity of the economic offences involved, held that the investigation had concluded and further detention served no legitimate purpose. Pre-trial detention, the Court ruled, must not be used as a punitive tool – bail conditions, not custody, are the appropriate safeguard once investigative necessity subsides.

Section 437 also addresses the problem of prolonged undertrial detention caused by delays in the judicial process. Under Section 437(6), if a trial before a magistrate in a non-bailable offence is not concluded within sixty days from the first date fixed for taking evidence, the accused – if in custody throughout that period – must be released on bail unless the magistrate records written reasons for denying it. This provision directly implements the constitutional mandate of speedy trial articulated by the Supreme Court in Hussainara Khatoon vs. State of Bihar (1979), where prolonged undertrial detention was held to violate the right to life and personal liberty.

When bail is granted under Section 437, it does not mean unconditional release. Courts routinely – and in certain cases mandatorily – impose conditions to ensure the accused’s continued participation in the legal process and to protect the integrity of the trial. Standard conditions include regular appearances before the investigating officer or the court, surrender of passport, and a prohibition on leaving the jurisdiction without prior permission. Courts may also specifically prohibit contact with prosecution witnesses or direct the accused to report to the local police station at fixed intervals.

Under Section 437(3), where the accused is charged with an offence punishable with seven or more years of imprisonment, or an offence under Chapters VI, XVI, or XVII of the Indian Penal Code, conditions regarding attendance, non-repetition of the offence, and evidence protection become mandatory. Courts are expected to tailor these conditions to strike a balance, protecting the integrity of the legal process without creating unnecessary hardship for the accused.

Granting bail is not irreversible. Section 437(5) empowers any court that has released a person on bail under this section to direct re-arrest if it considers it necessary – for instance, where new evidence emerges, where the accused violates bail conditions, or where there is credible information of witness intimidation. This power is not to be exercised lightly, and courts have held that cancellation requires cogent and overwhelming grounds beyond the initial reasons for grant. 

Section 437(4) mandates that the court or officer granting bail must record the reasons or special grounds in writing. This requirement serves a dual purpose: it disciplines the exercise of discretion (preventing arbitrary decisions) and enables higher courts to review those decisions if the accused or the prosecution challenges the order. A bail order passed without reasons is legally vulnerable to being set aside. With regard to bail for vulnerable accused persons, the proviso to Section 437(1) and the architecture of Section 437 both extend special consideration to certain categories of accused persons. The law recognises that women, children below sixteen years of age, and persons who are sick or infirm may be granted bail even in cases otherwise attracting the statutory bars. These are not loopholes – they reflect a deliberate legislative judgment that the criminal justice system must account for the vulnerabilities of those within it, without compromising the overall framework of discretion.

Advocates Ram Jiban Singh, Amarnath, ex-President, DBA, Amarendra Kumar Singh, Shivanand Giri, Dr. C.B. Verma, Sanjeev Kumar Sinha, Nand Kishor, Rekha Prem Samaiyar, Rajeev Kumar, Binod Kumar Singh, Sadan Kumar, Prashuram Singh, Ashok Kumar, Shyamal Kishor, Surendra Prasad, Uday Prasad Singh, Krishna Murari, A.K Vidyarthi, H.H. Razvi, Shyam Krishna Gupta, Mithlesh Kumar and Kranti Kumar participated in the discussion.  

Also read: Implications of amendments in the criminal laws 

19 Chapters and 358 Sections of Bharatiya Nyaya Sanhita (BNS) replaces 23 chapters and 511 Sections of Indian Penal Code

 

          

E-Certified Copy Rules of Patna High Court amended within 3 months

The e-Certified Copy Rules of the High Court of Judicature at Patna (1st Amendment), 2026 states that in cases where the digitized record(s)/document(s) are not available, the Copying Department/Section of the Patna High Court, now it is required to "obtain the relevant record(s)/document(s), scan and digitize the same (as the case may be) and take necessary steps including providing the e-Certified Copy to the applicant" in light of the e-Certified Copy Rules of the the High Court. The Section is required to obtain the relevant records/documents, scan and digitize the same (as the case may be) and take necessary steps including providing the e-Certified Copy to the applicant in light of the e-Certified Copy Rules, 2026. The amendment was published in  the Bihar Gazette on May 20, 2026. Earlier, the e-Certified Copy Rules of the High Court of Judicature at Patna, 2026 was notified in the Bihar Gazette on February 20, 2026

In exercise of the powers conferred under Article 225 and 227 of the Constitution of India, the High Court had made this amendment in the e-Certified Copy Rules of the High Court.  

These Rules shall apply to the High Court as well as the District Court under its control and supervision. The facility of providing e-Certified Copy under these rules shall be in addition to the existing facility of providing certified copies as per the rules provided in Chapter-XIV under Part- IV of the Rules of the High Court at Patna, 1916 and Part- IV of the Civil  Court Rules of the High Court of Judicature at Patna (Volume- I) and Criminal Court  Rules of the High Court of Judicature at Patna.

The preface of the Rules reads:"Preface.—These Rules will apply to electronic application(s) made for obtaining an e-Certified Copy of Order(s)/ Judgment(s)/ Petition(s)/ Document(s)/Evidence(s) available on the record of a pending or disposed off case. The procedure to scrutinize the application for e-Certified Copy shall be consistent with all the existing rules & circulars pertaining to obtaining the copies. Documents restricted under the Rules of the High Court at Patna, 1916, Civil Court Rules of the High Court of Judicature and Criminal Court Rules of the High Court of Judicature at Patna shall continue to remain restricted and shall not be supplied under these rules as well".

Rule 5 reads: "Entitlement to receive e-Certified Copy.—Applications for the e-Certified Copy of the Judgment(s)/ Order(s)/ Petition(s)/ Document(s)/ Evidence(s) available on the record of a pending or disposed off case in any proceeding may be made by:-
(a) A party to the proceeding, if the party has appeared in person. 
(b) The Advocate representing the party. 
(c) A Public Officer if the Copy is required for public purpose." Advocate with AUIN No. assigned to them need not register again and can proceed for application of e-Certified Copy.

The following seven details is embedded on the e-Certified Copy:- 
(i) Electronic Application Number 
(ii) Date of requisition 
(iii) Date of Preparation of e-Certified Copy 
(iv) Total Number of Pages 
(v) Total Cost 
(vi) Name and digital signature of Authorized Officer 
(vii) A unique QR Code to verify the authenticity of the e-Certified Copy

In exercise of the powers conferred under Article 225 and 227 of the Constitution of India, the High Court had made the Rules and amended the e-Certified Copy Rules of the High Court.  

 

Transfer of maintenance proceedings from Family Courts to Gram Nyayalayas in exercise of statutory powers is valid in law

In Civil Court Bar Association & Anr. vs. High Court of Judicature at Allahabad & Ors. ( 2026), Division Bench of Justice Ajit Kumar and Justice Swarupama Chaturvedi held on May 26 that where an action is taken under statutory authority, its validity cannot be questioned independently without first challenging the provision conferring such power.

The Allahabad High Court has held that transfer of maintenance proceedings from Family Courts to Gram Nyayalayas in exercise of statutory powers is valid in law.

The Court also held that a challenge to administrative or consequential action is not maintainable in the absence of any challenge to the statutory provisions under which such action is taken.

The Court was hearing writ petitions challenging administrative orders directing transfer of maintenance proceedings from Family Courts to Gram Nyayalayas under the Gram Nyayalayas Act, 2008.

It observed that “where an administrative or consequential action is founded upon a statutory provision, the same cannot be set aside without first dislodging the statutory foundation itself”, held: “The challenge to impugned orders is not maintainable in the absence of any challenge to the validity of the statutory provision under which it is passed, and further, applying the settled principle that a later enactment prevails over an earlier enactment in case of inconsistency, the transfer of maintenance proceedings from the Family Court constituted under the Family Courts Act, 1984 to the Gram Nyayalaya under Section 16 of the Gram Nyayalayas Act, 2008 is held to be valid”.

The petitioners had challenged administrative orders passed by the District Judiciary transferring maintenance proceedings pending before Family Courts to Gram Nyayalayas. The principal contention raised was that such a transfer deprived litigants of their statutory right of appeal to the High Court under the Family Courts Act, 1984 and was contrary to the legislative scheme.

It was also submitted that Family Courts, being special courts constituted for the adjudication of family disputes, possessed exclusive jurisdiction which could not be divested through administrative orders. The petitioners also argued that the Gram Nyayalayas Act, 2008, operated in a distinct field and could not override the Family Courts Act.

The respondents submitted that the transfer by relying upon Sections 12 and 16 of the Gram Nyayalayas Act, 2008, which empower Gram Nyayalayas to entertain maintenance claims and authorise transfer of pending proceedings.

The Court noted that Section 12 of the Gram Nyayalayas Act confers jurisdiction upon Gram Nyayalayas to entertain maintenance proceedings, while Section 16 empowers the District Judge to transfer pending cases. It further observed that Section 18 provides an overriding effect to the Act in criminal matters, thereby reinforcing the legislative intent to expand access to justice at the grassroots level.

The Court reiterated the settled principle that where two special statutes are irreconcilable, the later enactment must prevail. Relying on Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. (2001) and subsequent decisions, the Court held that the Gram Nyayalayas Act, 2008, being a later enactment, would prevail to the extent of inconsistency.

The Court further held that the petitioners had failed to challenge the vires or applicability of the relevant provisions of the Gram Nyayalayas Act, 2008, namely Sections 12, 16, and 18, which constituted the very source of the power exercised.

It observed that “the validity of the action taken thereunder cannot be assailed in isolation,” and reiterated the principle that a consequential order cannot be challenged without assailing the foundational statutory provision.

The Court relied upon precedents, including V.K. Majotra vs. Union of India (2003) and Edukanti Kistamma vs. S. Venkatareddy (2010), to emphasise that courts cannot nullify actions taken under statutory authority without first striking down the enabling provision.

The judgement reads: “In the absence of any challenge to the vires or applicability of the statutory provisions, the validity of the action taken thereunder cannot be assailed in isolation, …it is a well-settled legal principle that where an administrative or consequential action is founded upon a statutory provision, the same cannot be set aside without first dislodging the statutory foundation itself, … the impugned orders, having been passed in exercise of powers provided in the enactment, cannot be termed as without jurisdiction so as to warrant interference under Article 226 of the Constitution”.

The Court also observed that the impugned orders, being administrative in nature and traceable to statutory power, could not be termed as without jurisdiction to warrant interference under Article 226 of the Constitution.

The High Court held that the challenge to the administrative orders was not maintainable in the absence of any challenge to the statutory provisions under which such orders were passed.

The Court upheld the validity of the transfer of maintenance proceedings from Family Courts to Gram Nyayalayas under Section 16 of the Gram Nyayalayas Act, 2008 and dismissed the writ petitions.

Any individual possessing special skills and expertise in computer science and cyber forensics can validly sign Part B of the standard-form certificate under Section 63(4) of the Bharatiya Sakshya Adhiniyam

In Pune Bar Association vs. Union of India & Ors. (2026), 3-Judge Bench of Supreme Court of Justice Surya Kant, Justice Joymalya Bagchi, Justice Vipul M. Panhcoli clarified that any individual possessing special skills and expertise in computer science and cyber forensics can validly sign Part B of the standard-form certificate under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), provided the Court is satisfied. 

While disposing of a petition filed by the Pune Bar Association, the Court heard the challenge the constitutionality of Section 63(4) of the BSA and its accompanying Schedule. The petitioner had argued that the dual requirements of disclosing a digital record's hash value under Part A and obtaining a signature from a government-notified expert under Part B imposed an extremely onerous obligation on ordinary litigants, rendering the provision manifestly arbitrary and unjust.

The judgement read: "If the two sub-sections are read harmoniously, it is possible to hold, in addition to entities notified as Examiner of Electronic Evidence under Section 79A, if the Court is satisfied, on the basis of unimpeachable material, that any other person has special skill and expertise in computer science and cyber forensics, opinion of such person may be held relevant as an expert with regard to electronic/digital record and such person may sign Part B of the Schedule as an expert."

It observed: "We are further fortified to make such observation as sub-section (2) of Section 39 (unlike 63(4) and erstwhile 65B) is not prefaced by a non-obstante clause so as to exclude the operation of sub-section (1) from the arena of electronic records. The High Court had deferred adjudication of such issue and directed the State to notify adequate number of persons under Section 79A. Under these circumstances, we hold that the finding of the High Court that Part B must be filled up by an expert notified under Section 79A of the IT Act shall not be treated as a binding precedent."

The Pune Bar Association submitted that Section 63(4) of Bharatiya Sakshya Adhiniyam, 20231, read with the Schedule thereto, was unconstitutional as it imposed undue hardship on an ordinary litigant by requiring submission of a certificate prescribed in the Schedule comprising Part A, which needed disclosure of the hash value of digital records, and Part B, which must be signed by an expert. It was argued that the imposition of such pre-requisites for admissibility of electronic records is an extremely onerous obligation on a litigant and renders the provision manifestly arbitrary and unjust.

It observed that with the rapid advancement of technology, the digital space encroached upon all spheres of human life, and consequently, evidence in the form of electronic records became commonplace in all forms of litigation.

"Electronic record is a unique species of evidence which is liable to continuous mutation and modification affecting its authenticity, integrity and intrinsic evidentiary value. Challenges to admissibility and probative value of electronic records are further accentuated with the advent of artificial intelligence and deepfake technology. Such fast and varied transformation in technology necessitated reviewing the erstwhile Evidence Act and the BSA was enacted". 

It noted that such fast and varied transformations in technology necessitated a review of the erstwhile Evidence Act, which ultimately led to the enactment of the Bharatiya Sakshya Adhiniyam (BSA). It observed that Section 63(4) of the BSA improved upon the certification envisaged under the old law by mandating a standard-form certificate prescribed in the Schedule.

The Court underlined that the hash value of electronic data was synonymous with an electronic fingerprint and provided a sure way of identifying and verifying digital data. Therefore, it observed that the necessity of incorporating the hash value in Part A of the certificate was intended to ensure the authenticity and integrity of the electronic record, and could not be said to lack a rational nexus with the object of the Act.

It observed that the requirement of a certification by an expert in Part B provided an additional layer of authenticity to secondary electronic evidence. It held the view that the new provision possessed a clear and rational nexus with the object of the law, and could not be termed as arbitrary or unreasonable so as to suffer from the vice of manifest arbitrariness.

It was pointed out that the judgment of the Madras High Court it merely referred to sub-section (2) of Section 39 of the BSA while omitting sub-section (1). Section 39(2), unlike Section 63(4) or the erstwhile Section 65B, was not prefaced by a non-obstante clause so as to exclude the operation of sub-section (1) from the arena of electronic records.

The Court noted that if sub-sections (1) and (2) of Section 39 were read harmoniously, it was possible to hold that in addition to the entities notified under Section 79A of the Information Technology Act, any other person possessing special skill and expertise in computer science and cyber forensics could be treated as an expert.

If the Court was satisfied on the basis of unimpeachable material regarding such expertise, the opinion of such a person would be relevant and they could validly sign Part B of the Schedule.

Supreme Court constitutes two more Election Tribunals under BCI besides three Central Election Tribunals/Committees constituted on June 25, 2023

In Savita Devi @ Savita Dhanda & Ors. vs. Union of India & Ors. (2026), Supreme Court's Division Bench of Chief Justice Suryakant and Justice Joymalya Bagchi passed a 3-page long order dated May 18, 2026. The  order reads: "All the State Bar Councils are directed to keep the records intact till the election disputes are finally decided by the Tribunal(s)" upon exploring the possibility of the constitution of one or two Election Tribunals for the purpose of speedy adjudication of the disputes arising from the ongoing elections of different State Bar Councils." The Court constituted two additional election tribunals for expeditious adjudication of disputes which arise out of elections to various State Bar Councils, while hearing petitions concerning alleged irregularities in the electoral process and implementation of reservation for women candidates. 

Kumud Lata Das, the Advocate-on-Record, the counsel for the petitioners made her submission regarding the role of the Bar Council of India (BCI) and the election process. Das argued that "the BCI should not be part of the adjudicatory mechanism since the petition itself alleged that the BCI’s decision to adopt a 'single composite ballot paper' had contributed to the controversy." It is noteworthy that besides Election Tribunal, the other committees of BCI are:Executive Committee, Legal Aid Committee, Advocates’ Welfare Committee, Foreign Affairs and Foreign Educational Institutions, Finance Committee, Co-ordination of State Bar Councils, Co-ordination of Bar Associations of the country, Rules Committee, Building Renovation Committee, Five members of Legal Education Committee, All India Bar Exam (AIBE) Committee, High Powered Verification Monitoring Committee, Disciplinary Committee and AIBE Tender/Selection Committee. The application of the Rule of Ejusdem Generis and a joint reading of the BCI's notification and its url of the Committees makes it crystal clear that Election Tribunal is one of the several committees of BCI headed by Manan Kumar Mishra.

As per the verdict of Supreme Court dated February 5, 2018 passed in T.C. No. 126 of 2015, the three men-Central Election Committees/Tribunals headed by a former Chief Justice of some High Court and consisting of two former Judges of any High Court was to be constituted by the Bar Council of India. The BCI.notified Rules in this regard by notification dated December 30, 2020 in accordance with the verdict of the Supreme Court. 

Rule 9 of Chaper-IV of the notification dated June 23, 2023 published in the Gazette of India, Bar Council of India Rules (for qualification/Disqualification and produce for election and code of conduct for the elections of S.B.C/B.C.I.) 2023 made provision for Central Election Appellate Committee/Tribunal of Bar Council of India. It reads:"In order to secure transparency and fairness and also to avoid the multiplicity of litigations in courts and for early disposal of the election disputes, there shall be an Election Appellate Committee of Bar Council of India consisting of a former Judge of Supreme Court of India to be nominated by Bar Council of India in consultation with the Chief Justice of India and two former Judges of High Court(s) to be nominated by Bar Council of India. Any final order/decision passed by the Central Election Committee/Tribunal can be challenged before this Election Appellate Committee (which may also be called the Election Appellate Tribunal of Bar Council of India) within a period of 15 days of the order/decision of Central Election Committee/Tribunal. The Central Election Committee and the Appellate Committee shall have their secretariat in the premises of Bar Council of India. The Appellate Election Committee shall frame its own Regulations for the disposal of appeals. The hearings before the Appellate Committee shall be in Hybrid Mode depending upon the convenience of the parties. The pleadings of petitioners/appeals/Replies/Rejoinders may be online or offline as per convenience of the parties. 

Earlier, three Central Election Tribunals/Committees were constituted on June 25, 2023.  The notification provides details about the composition of the Tribunals. Tribunal No. 1 comprises of Justice L. Narasimha Reddy, Former Chief Justice, Patna High Court,  Justice Arun Tandon, former Judge, High Court of Allahabad and local former Judge to be nominated by the State Bar Council. Tribunal No. 2 comprises of Justice S. Mukherjee, Former Chief Justice, High Court of Karnataka,  Justice Shivaji Pandey, former Judge, Patna High Court and  local former Judge to be nominated by the State Bar Council. Tribunal No. 3 comprises of Justice Rajendra Menon, Former Chief Justice, High Court of Delhi, Justice M. Sathyanarayanan, former Judge, Madras High Court and local former Judge to be nominated by the State Bar Council.   

The BCI was required to make amendment in its notification in the light of the Supreme  Court's order dated May 18, 2026. The BCI has notified the Court's directions for the election disputes arising out of the elections to the State Bar Councils held in the year 2026. The directions provide for:

1. Constitution of Election Tribunals for State Bar Council Elections, 2026

For the purpose of adjudication of election petitions arising out of the elections to the State Bar Councils held with effect from the year 2026, the two Election Tribunals shall function as Election Tribunals of the Bar Council of India:

Election Tribunal I (a) Hon’ble Mr. Justice Deepak Gupta, former Judge, Supreme Court of India, as Chairperson; (b) Hon’ble Mr. Justice Dhiraj Singh Thakur, former Chief Justice, Andhra Pradesh High Court, as Member; (c) Ms. Mahalakshmi Pavani, Senior Advocate, as Member.

Election Tribunal II (a) Hon’ble Ms. Justice Hima Kohli, former Judge, Supreme Court of India, as Chairperson; (b) Hon’ble Mr. Justice Tarlok Singh Chauhan, former Chief Justice, Jharkhand High Court, as Member; (c) Ms. Kaveeta Wadia, Senior Advocate, as Member

2. Continuance of earlier pending matters
The constitution of the aforesaid Tribunals shall not, by itself, disturb election petitions, applications or proceedings relating to earlier elections or earlier assigned matters which are already pending before any existing Election Tribunal, including the Tribunal headed by Hon’ble Mr. Justice Rajendra Menon, former Chief Justice, High Court of Delhi, along with its Members. Such pending matters shall continue before the Tribunal to which they already stand assigned, unless the Bar Council of India, for administrative reasons orders otherwise.

3. Filing of Election Petitions
Every election petition relating to the State Bar Council elections held with effect from the year 2026 shall be presented before the Secretary, Election Tribunal, Bar Council of India, who shall also act as the Secretary/Registry for the purpose of receipt, scrutiny and registration of such election petitions, complaints, applications or representations.

4. Allocation of matters
Upon presentation and registration of an election petition, the Bar Council of India shall allocate the matter to the concerned Election Tribunal (or the High Powered Election Supervisory Committee constituted by Hon’ble Supreme Court vide its Order dated 18.11.2025 having regard to the nature of the dispute, pendency, convenience and workload. The Bar Council of India may, for administrative convenience and expeditious disposal, allocate or reallocate matters among the Election Tribunals.

5. Limitation
Every election petition seeking to question or set aside an election, result or declaration of any returned candidate, or the election as a whole, shall be filed within thirty days from the date of declaration of the result. Provided that, in respect of those State Bar Councils whose results have already been declared before the date of publication of this notification, the election petition shall be filed within fifteen days from the date of publication of this notification in official gazette.

6. Fee
Every election petition shall be accompanied by proof of deposit of process fee of Rs.30,000/- in the account of the Bar Council of India and other complaints and/or applications shall be required to accompany a fee of Rs. 5,000/-as already prescribed under the Regulations notified in the Gazette of India on 10th October, 2023. The fee shall be payable to the Registrar of the Tribunal. No election petition shall be treated as duly filed unless accompanied by proof of such deposit, subject to such orders as may be passed by the concerned Election Tribunal.

7. Time frame for disposal
The Election Tribunals shall endeavour to dispose of election petitions as expeditiously as possible and, as far as practicable, within a maximum period of six weeks from the date of filing. The Election Tribunal may regulate its own procedure, curtail unnecessary adjournments, call for records, direct production of election papers, decide preliminary issues, and pass such procedural directions as may be necessary for expeditious and effective adjudication of election disputes.

8. Records and cooperation
All State Bar Councils, Returning Officers, Assistant Returning Officers, Observers, officers and other authorities connected with the election process shall extend full cooperation to the Election Tribunal and the Bar Council of India and any authority acting under the directions of the Hon’ble Supreme Court or the Election Tribunal, and shall produce records, election papers, result sheets, ballot-related material, correspondence and other relevant documents as and when requisitioned.

9. Power to issue clarifications
The Bar Council of India may issue such administrative clarifications, allocation orders, filing instructions, registry directions or consequential directions as may be necessary for giving effect to this notification and for ensuring timely disposal of election disputes.

Notably, in Yogamaya M.G vs. Union of India [W.P.(C) No. 581/2024, Diary No. 38583/2024] and Shehla Chaudhary vs. Union of India [W.P.(C) No. 1060/2025], the Court had issued notice in September 2024 in the matter of the under-representation of women, queer individuals, persons with disabilities, and marginalised communities in the BCI and State Bar Councils. The Division Bench of Chief Justice Surya Kant and Justice Bagchi has ordered, "We have to ensure that women members who are contesting/proposing to contest elections in the four Bar Councils of Andhra Pradesh, Punjab & Haryana, Uttar Pradesh and Telangana, will contest the elections with full spirit. The Advocate-voters will also endeavour to ensure that adequate representation is provided to the women members of the bar. The elections to the Bar Councils of Bihar and Chhattisgarh are also notified. So these two bar councils are also to be excluded. In so far as the remaining State Bar Councils are concerned, it is directed that women must receive 30% representation. The 20% of these seats will be filled by way of election, and10% will be filled through co-option...A proposal explaining how the co-option of women advocates will be carried out shall be placed before this Court."

Appearing for the BCI, Manna Kumar Mishra, the Chairman, BCI addressed Lata saying, “you must stop levelling allegations against BCI every time. This is very bad. Leave this habit.” Kumud Lata Das responded, “You can’t shout at me! I am not under your disciplinary authority! I am an AOR; I know well how to submit to the Court. You are virtually a permanent Chairman, so you think the bar is identified with you....” Lata was alluding to Mishra's unopposed re-election as the Chairman of the BCI for the seventh consecutive term.

Guru Krishna Kumar, senior advocate, Dr. Ram Sankar, advocate. and M/s. Ram Sankar & Co. appeared for the respondents.

The Chief Justice observed that there appeared to be only a “communication gap” between the parties, and both Das and Mishra were there to assist the Court and represent their clients. The Court also noted that issues relating to the co-option of women candidates had already been referred to the supervisory committee headed by Justice (Retd.) Sudhanshu Dhulia. The matter will continue before the Court after the tribunals begin functioning and examine the election disputes."

The four other respondents were: Union of India, Bar Council of India, High Powered Election Committee, Election Commission of Bar Council of Punjab and Haryana and Bar Council of Punjab and Haryana. The other 27 petitioners were:Navneet Kaur Waraich, Parveen Dahiya, Suman Dahiya, Sarbjit Kaur, Neelam Choudhary, Bhagyashri Setia, Monika Jhangra, Sunita Sheokhand, Priya Legha, Savita Devi, Nimrata Gill, Sonia Tanwar, Pooja Sharma, Omkala Yadav, Veena Bhardwaj, Meenu Rani, Kamlesh Panchal, Suman Rawat, Anisha Sharma, Pratibha Mehra, Dimple Chaudhary, Bhanu Priya Sharma, Anita Tripathi, Neelam Kathuria, Sharad Harish Arora, Rabeena and Sonia Rohilla. The Court's record reveals that notices were sent to 25 secretaries of the states including Bihar. The other counsels for the petitioners were:  Bibhuti Krishna, Harsh Ajay Singh, Ashutosh Saini, Ravi Agarwal, Siddhant Narayan Das, Puneet, Bela, Savita Devi, Navneet Kaur, Suman Dahiya, Devadatt Kamat, Aditya Singh, Aakash Sirohi, Indra Lal, Amit Rawal and Neema. 

Meanwhile BCI has filed an application before the Court seeking its approval of a vote-linked mechanism for co-opting women candidates to State Bar Councils under the 10% co-option quota, in the matter of M. Vardhan vs. Union of India, WP(C) No. 1319 of 2023. The BCI proposed that women candidates who narrowly missed election in the State Bar Council polls, based on their finishing position, be co-opted against the reserved co-option quota where 25 members are to be elected, candidates finishing in the 26th and 27th positions; where 20 members are to be elected, candidates finishing in the 21st and 22nd positions; and where 15 members are to be elected, the candidate finishing in the 16th position. The BCI has submitted that linking co-option to the actual votes polled by women candidates ensures that the process remains connected to the democratic choice expressed by advocates. The BCI has placed the same proposal before the Supreme Court’s Supervisory Committee overseeing the election process. It has prayed for a specific direction from the Court in this regard. 

Earlier, in Bihar, on March 17, 2025, advocates had held a press conference on a petition filed against the Bihar State Bar Council elections in Muzaffarpur. It was reported in Hindustan newspaper. Advocates Sudhir Ojha, Sanjay Kumar Sinha, Kamlesh Kumar, Mantu Kumar Singh, Raju Kumar Choudhary and others held a press conference in connection with the election petition filed against the Bihar State Bar Council elections. They informed that while hearing the petition, the Election Tribunal of the BCI issued notices to the opposite parties Giving two weeks time, the opposition was asked to respond. The notice states a case of disobeying of the order passed by the Tribunal. Notices have been issued to 23 members, including the chairman of the Bihar State Council, seeking their replies. On October 12, 2025, it was reported in Hindustan newspaper that the Election Tribunal refused to dismiss the three petitions against the bungling in the elections of Bihar State Bar Council. Advocates Sudhir Kumar Ojha, Umesh Prasad Singh, Ratan Kumar, Mahendra Singh, Praveen Kumar, Bhola Kumar, and Alka Pandey have filed a petition alleging irregularities in the election. The petitioner advocate Sudhir Ojha stated that the tribunal's order makes it clear that a case will be filed regarding his allegations of election rigging. Sachchidanand Singh is a respondent in the case. The dispute is pending with the Central Election Tribunal. 

Also read: Bihar Bar Council Journal removes names of members of Bihar State Bar Council due to pending dispute before Central Election Tribunal 

After 7 years, bar council elections to took place in Bihar