Statutes, Courts, and the Constant Creating & Plugging of Gaps

Three decisions caught my eye over the past couple of months. Two by different benches of the Indian Supreme Court — Pune Bar Association v. UOI [Decided on 22.05.2026] and Dineshchand Surana [2026 INSC 579] — and one by a Two Justices' bench of the Kerala High Court — CMRL & Ors. v. UOI & Ors. [Decided 26.05.2026]. 

Pune Bar Association dealt with the new Bharatiya Sakshya Adhiniyam 2023 [BSA] regime for the certification of "electronic evidence" such as printouts, and the issue was whether its requirements were unconstitutional. This minefield of an issue was dealt with in two paragraphs, reasoning that since electronic evidence was more likely to be tampered or manipulated with, the imposition of stringent certification requirements was valid. No engagement with the change in law, with the fact that most other countries don't impose certification, and with whether adding a new certification requirement is, in fact, undermining the very claim of the BSA to eliminate the difference between traditional documents and electronic records. Just a lazy recitation of an old logic of tampering which has prompted judicially created barriers of entry for otherwise valuable evidence [discussed at length a long time ago on this blog]. 

At the other end of the spectrum was Dineshchand Surana, which is more than 150 pages long and a mini double-take on an issue which one member of the Bench had dealt with just over a year ago [discussed here]. Are prosecutions for cheque dishonour something which should be covered by the statutory bankruptcy moratorium for individuals? Every possible aspect of how to read the text of the cheque dishonour offence, text of the moratorium clause, and that of the criminal procedure regime, is covered across those 150 pages. The result is that the court ties us in knots by the end of the judgment, because the question it set out to answer — whether an act punishable with imprisonment is really a crime or not — is not something which the text of any law caters to or provides.

Then, there is CMRL, which may yet find its way before the Supreme Court given the stakes of the case and of the issue involved. A Two Justices' Bench of the Kerala High Court has held that (i) there is no relief of 'quashing' an Enforcement Case Information Report (ECIR) that can be sought (but will a writ remedy lie against this action? the court doesn't really answer), and (ii) the Enforcement Directorate can record an ECIR and use PMLA provisions for summoning persons to give statements even before any underlying scheduled offence is linked to the proceedings. A key component of the court's reasoning was, again, the statute, but in an inverse manner. What mattered was the absence of any statutory existence of the ECIR, and its non-statutory basis is the foundation for the judgment.

All three are significant because of the issues that they dealt with and they will surely generate a lot of critique. What I am interested in is the picture we see when we step back a little and look at these three decisions as illustrative of a much broader and commonplace theme within our legal system of how courts engage with statutes, and vice versa. 

For example, it isn't by accident or oversight that the PMLA (or for that matter the Customs Act before it) does not give any statutory basis to an ECIR. It is the result of parliament wisening up to judicial decisions back in the first two decades after independence on wielding of powers by the central statutory agencies dealing with issues such as smuggling and tax avoidance. The Supreme Court decided that a fuzzy statutory basis for conducting investigations allowed these central agencies to wield powers that regular state police do not have — such as taking sworn statements from accused persons, for instance. The message which Parliament took away was that lack of a clear statutory basis would insulate these powers from scrutiny. And we find that it has since become a hallmark of how most central agencies operate.

If CMRL is an example of what happens with Parliament keenly pays attention, one can say that Pune Bar Association and Dineshchand Surana are good examples of what happens when no attention is paid. Since Dineshchand Surana is sort of new, one can perhaps excuse legislators for not fixing the issues which first became obvious when the Supreme Court touched upon this issue in P. Mohanraj more than five years ago. If you are not feeling so charitable, like me, then you can clearly spot how the ongoing fiasco could have been so easily avoided by amending the statute in a timely manner. Now, we have more confusion on hand, in one of the largest arenas of litigation around — cheque dishonour cases. 

Certification is a problem far older than moratoriums, and which is why the BSA provisions and now their treatment in Pune Bar Association are perhaps the most upsetting parts of this story. It took nearly two full decades for law to be settled on how to treat the certification requirement under the old Indian Evidence Act 1872. Even so, many recognised how this requirement was, arguably, unhelpful, pointing famously to the fact that one of the inspirations for the requirement — similar clauses in UK Legislation — had since been repealed. Seemingly aware of this saga, we saw the BSA declare that electronic evidence will be at par with documentary evidence. So far so good, right? Well, not really, because along side this declaration, was the retention of an even more restrictive certification requirement which had to be met to introduce printouts and other obvious items into evidence — the clause under challenge in Pune Bar Association.

What is the point, really? I guess it is to write peculiar judicial opinions, to cite them, to make arguments using them, and pat ourselves on the back for our acumen being the only people who can access this arcane and byzantine domain. It certainly is not to ensure that the law is simple enough for everyone to understand it, use it, and hope for some results within one's lifetime.

Guest Post: Chaturvedi and the Remission Standard the Supreme Court Declined to Write

(This is a guest post by Kshitij Saruparia)

On 15 May 2026, in Rohit Chaturvedi v. State of Uttarakhand, a bench of Justices B.V. Nagarathna and Ujjal Bhuyan quashed the Ministry of Home Affairs’ refusal to concur in the premature release of a convict in the 2003 Madhumita Shukla murder case. The refusal was a three-line non-speaking order, and on that ground alone it was indefensible. The Court did not stop there. It held in paragraph 7 that the heinousness of an offence “stand[s] exhausted at the stage of sentencing” and cannot be revived to deny remission, and that to refuse remission on that ground “is to reconvert remission into a retrospective reaffirmation of guilt”.

The order quashing the MHA letter is plainly correct. The "exhausted at sentencing" formulation is not, and the judgment itself supplies the proof: the same judgment rests on two authorities that contradict it. The result will not be litigated. That sentence will be.

A Statutory Veto, and the First Test of how it may be Used

The case is decided within a frame the judgment sets out with care. The crime was investigated by the CBI, so by the Court’s own order of 31 January 2025 the State of Uttarakhand could exercise the remission power under Section 473(1) of the Bharatiya Nagarik Suraksha Sanhita only after the concurrence of the Central Government under Section 477(1). The textual change from Section 435 of the old Code appears slight, “consultation” has become “concurrence”, but the operational change is slighter still. The Constitution Bench in Union of India v. V Sriharan Murugan [(2016) 7 SCC 1] had already held, in 2015, that “consultation” under Section 435(1) meant “concurrence”, with the result that the State could not effect remission in CBI-investigated cases without the Centre’s agreement. That reading had operated as settled law for nearly a decade before the Sanhita was enacted. Section 477 does not create the Union veto; it codifies it, entrenching the stricter construction beyond judicial dispute and insulating it from future legislative attempts to restore the provision's literal meaning.

The Standing Committee on Home Affairs, which examined the Bill across twelve sittings in 2023 and submitted the 247th Report, made no observation on what became Section 477 in its clause-by-clause recommendations. The Home Secretary’s presentation of “important changes” to the Committee listed a Central Government concurrence requirement only in the context of sentences awarded by military courts, which is the subject of Section 476, a separate provision. The change at Section 477 converting a Constitution Bench interpretation of a federal power into statutory text drew no recorded scrutiny. Parliament codified Sriharan without Parliament deliberating on whether codifying it was the right choice.

For every centrally-investigated case, the Centre therefore holds a statutory veto over release that is now unambiguous on the face of the legislation and immune to the challenge that a future bench might read “consultation” more narrowly. Chaturvedi is the first judgment to test how that veto may lawfully be exercised, which is why its reasoning, and not only its outcome, matters beyond the petitioner.

The Court’s organising distinction is between sentencing and remission. Sentencing looks back and fixes punishment by the gravity of the act. Remission looks forward to conduct in custody, reform, and reintegration. Allowing the gravity of the offence to defeat remission lets the executive re-impose, through an administrative refusal, a punishment the sentencing court did not pronounce. That objection is sound. It is also not new. The Court itself cites Satish v. State of UP (2021), which held that neither the length of the sentence nor the gravity of the offence can, by themselves, be the sole basis for refusing premature release, and that the risk of reoffending must be assessed from the prisoner’s antecedents and conduct in custody.

The Contradiction is Inside the Judgment

Satish is the careful statement of the rule. Gravity is not the sole basis; it is one input, and it feeds the forward-looking question of recurrence. Chaturvedi adopts something larger. To say gravity is “exhausted” at sentencing is to say it has no residue at the remission stage at all.

That cannot be squared with the test the same judgment adopts a few paragraphs earlier. At paragraph 5.3 the Court sets out the Laxman Naskar factors as the governing criteria for premature release noting that those factors were also reproduced in Rohit Chaturvedi in paragraph 5.3.. The first factor is whether the offence is an individual act of crime without affecting society at large. That is, unavoidably, an inquiry into the nature and gravity of the offence, addressed to the remission authority.

So, the judgment instructs the executive to weigh the character of the offence and, in the same document, declares that character spent. Read literally, the two directions cannot both be operative: an authority cannot apply a factor that turns on the gravity of the offence while simultaneously treating that gravity as having no residue. A remission authority handed both has been given a contradiction, not a standard.

The way to read Chaturvedi without breaking it is to treat “exhausted” as rhetoric and the Satish rule as the holding. Heinousness cannot be a freestanding and conclusive ground of refusal, because used that way it does convert remission into re-sentencing. But the nature of the offence does not disappear. It re-enters as one input into the prognostic question the Court itself frames, the risk of recurrence and the safety of the public, exactly as Satish and Laxman Naskar contemplate.

The Court’s instinct is defensible, and worth stating at its strongest. If offence gravity is freely available at the remission stage, executive review collapses into a standing reconsideration of desert, and the sentence imposed by the court is no longer treated as settled, but is repeatedly revisited by the Ministry through successive remission decisions. Holding the line between punishment and post-conviction reform is a serious constitutional purpose, and it is plainly what the bench was reaching for. The difficulty is that the bench already had the instrument for the task. Satish keeps gravity out as a sole or dominant ground while letting it inform the prognosis, and that protects the distinction without pretending the offence has vanished. On that reading the case decides nothing the law did not already hold. “Exhausted” does no more work than Satish; it does the same work less accurately, and leaves behind a sentence the next litigant will weaponise.

The Standard the Court did not Write

The judgment’s nearest approach to a positive standard is paragraph 7.1, where the decision on remission “must emerge from a holistic assessment of the prisoner and after balancing societal interests with the prisoner’s right to be considered for release on fair and reasonable criteria”. This is not a standard. It does not tell the Ministry what a lawful refusal must contain, what evidentiary threshold attaches to a finding of dangerousness, or, most importantly, through which doorway the seriousness of the offence may legitimately enter the “societal interests” side of the very balance the Court prescribes. Having narrowed the admissible grounds on one side, the Court left the content of a permissible refusal undefined on the other.

It then demonstrated the gap instead of closing it. Rather than remit to the Ministry with directions on how to decide, the Court declined to remand at all, called a remand “an empty formality,” and performed the remission assessment itself, on parity with the released co-accused, time served, conduct in custody, and the State’s recommendation. The executive’s function was not corrected. It was substituted. That may be defensible on these facts, where the petitioner had served twenty-two years and a co-accused convicted in the same case was already free. It is no guide at all to the Ministry in the next case, where the facts are worse and the offence graver.

What is settled after Chaturvedi is what was already settled after Satish: gravity alone will not sustain a refusal. What is open, and now sharper, is the question the Centre’s Section 477 veto makes unavoidable. What must a reasoned, non-arbitrary concurrence refusal actually say, on what material, and through which doorway, if any, may the seriousness of the offence return as part of “societal interests”? The “exhausted at sentencing” line will sit at the centre of that fight, pressed by convicts to shut the offence out entirely and distinguished by the Union as loose language unsupported by the judgment’s own authorities. The Court had the materials to write the standard. It offered a philosophy of punishment where a workable standard was needed, and left that standard for another bench and another prisoner. The door it shut needed shutting. The one it left open is the one that decides cases.

Guest Post: Renumbering as Repeal? The Allahabad High Court on the interplay of BNSS with the SC/ST Act

(This is a guest post by Ammar Shahid)

Two orders from the Allahabad High Court raise a peculiar question: does the bar on anticipatory bail under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act“) continue to operate now that the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS“) has replaced the Code of Criminal Procedure, 1973 (“CrPC“)?

In Dinesh Kumar Srivastava v. State of UP (December, 2025), the applicant faced an FIR under Sections 376, 506, 406, 323, and 504 IPC along with Section 3(2)(v) of the SC/ST Act, arising from allegations of a relationship formed on the matrimonial website jeevansathi.com allegedly on a false promise of marriage. He sought anticipatory bail under Section 482 of the BNSS. The informant’s counsel opposed this on the ground that Section 18 of the SC/ST Act barred it. The Court disagreed, holding that firstly, Section 18 specifically refers to “Section 438 of the Code” and anticipatory bail applications are now filed under Section 482 BNSS, the bar had no application. Secondly, the Court held that prima facie the material on record did not establish an offence under Section 376 IPC, given that the relationship appeared consensual. The petition was allowed, and bail granted.

Next, Sushil Kumar v. State of UP (May, 2026) arose from rejection of an anticipatory bail application solely on the ground of Section 18. The alleged facts involved a commercial dispute over unpaid sale consideration for food grains, accompanied by an alleged assault and caste-based insult. The High Court set aside the trial Court’s order on two grounds. The first was the trial Court’s failure to consider the principle laid down in Prathvi Raj Chauhan v. Union of India, where the Supreme Court held that courts retain the power to grant pre-arrest bail in SC/ST Act cases where prima facie the ingredients of the Act are not made out. The second was the BNSS transition argument drawn from Dinesh Kumar Srivastava. The High Court held that these two factors had not been considered by the trial court, and sent the matter case for fresh consideration.

Section 8 of the General Clauses Act

Section 8 of the General Clauses Act, 1897 provides that where a Central Act is repealed and re-enacted with or without modification, references in any other Central Act to the repealed enactment shall, unless a different intention appears, be construed as references to the corresponding provisions of the re-enacted legislation.

Section 482 BNSS corresponds with Section 438 CrPC. Both carry the heading of anticipatory bail and provide the same relief to the same class of persons in the same procedural context. When Parliament enacted the BNSS, it was re-enacting an existing one under a different statutory number. By operation of Section 8 of the General Clauses Act, Section 18’s reference to Section 438 CrPC must now be read as a reference to Section 482 BNSS.

Neither Dinesh Kumar Srivastava nor Sushil Kumar consider Section 8, which is a serious flaw. The legal question, at its foundation, was one of statutory interpretation across a legislative transition. Section 8 of the General Clauses Act is the rule Parliament has itself put in place for resolving exactly this question. Its absence from the reasoning of both decisions is a significant gap.

The only caveat Section 8 carries is the phrase “unless a different intention appears.” One would need to find, within the SC/ST Act or Section 18 itself, some indication that Parliament intended the bar to be tied specifically and permanently to Section 438 CrPC as a provision, rather than to the institution of anticipatory bail as such. No such intention is apparent. Section 18 was aimed at the relief of anticipatory bail, not at a particular section number. The number was simply the address at which that relief resided at the time.

What the 2018 Amendment Tells Us

The legislative history of Section 18 adds important context. In Subhash Kashinath Mahajan v. State of Maharashtra, the Supreme Court permitted anticipatory bail in SC/ST Act cases subject to certain conditions. Parliament responded within months by enacting the SC/ST Amendment Act, 2018, inserting Section 18-A which, among other things, reinforced the bar on anticipatory bail. Parliament actively closed a space that the Supreme Court had opened (which it has, since, reopened - more on that below).

The suggestion that this same Parliament, in 2023, inadvertently allowed the Section 18 bar to lapse through the BNSS transition without any express amendment is difficult to accept. When a legislature has demonstrated such attentiveness to a particular provision, the more reasonable inference is that it relied on established principles of statutory interpretation, specifically Section 8 of the General Clauses Act, to ensure continuity. If Parliament had wanted to lift the bar, it could have done so expressly in the BNSS. It did not.

The Prathvi Raj Chauhan Exception

Both decisions also place reliance on the principle formulated by Prathvi Raj Chauhan, where the Supreme Court held that in cases where no prima facie material exists to make out an SC/ST Act offence, Courts may grant pre-arrest bail through inherent jurisdiction under Section 482 CrPC. This reading of Prathvi Raj Chauhan, however, is broader than what the judgment actually supports.

The inherent jurisdiction of the High Court in criminal matters vested in Section 482 CrPC, which corresponds to Section 528 of the BNSS, not Section 482 BNSS, which is the anticipatory bail provision. Section 18’s bar has always applied to the anticipatory bail route, not to the exercise of inherent jurisdiction in exceptional cases. These are two separate heads of power, and conflating them misrepresents both.

Beyond this structural issue, the Prathvi Raj Chauhan exception is not a straightforward gateway to routine merits review. The Supreme Court was clear that this inherent power is available “sparingly” in “very exceptional cases” to prevent a “miscarriage of justice or abuse of process of law,” and was explicit that “a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.” The Court in Sushil Kumar, having identified Prathvi Raj Chauhan as a primary ground for remand, does not specify how the trial court is to apply this demanding threshold on reconsideration. Without any guidance, the remand functions as an implicit invitation to conduct the kind of routine merits review that Prathvi Raj Chauhan cautioned against.

This issue is also visible in Dinesh Kumar Srivastava. The Court's own prima facie analysis found no offence under Section 376 IPC on the basis that the relationship appeared consensual and no force was alleged. But the Prathvi Raj Chauhan threshold is directed at the absence of SC/ST Act ingredients from the face of the FIR, not at the tenability of a connected IPC charge. Where an FIR contains specific allegations of caste-based insult or harassment, as it does in both the decisions under discussion, it is not obvious that the threshold for invoking the inherent jurisdiction exception has been crossed. Hitesh Verma v. State of Uttarakhand, which Sushil Kumar itself cites, reaffirms that the bar under Section 18 is absolute where SC/ST Act offences are prima facie made out. Citing Hitesh Verma while simultaneously remitting for fresh consideration of anticipatory bail, without a definitive holding on whether SC/ST Act ingredients are absent from the FIR, creates a real tension that the judgment leaves unresolved.

Conclusion

The question raised by these two decisions is ultimately not a complicated one. Section 8 of the General Clauses Act provides a clear and direct answer: the bar under Section 18 travels with the legislative transition from CrPC to BNSS because Section 482 BNSS is the corresponding provision to Section 438 CrPC. The legislative history of Section 18, including the 2018 amendment, makes it implausible that Parliament intended this bar to lapse silently. The Prathvi Raj Chauhan exception operates through inherent jurisdiction in exceptional cases, not through anticipatory bail as a matter of routine.

The SC/ST Act is protective legislation enacted for a specific purpose. Its provisions are intended to give effect to that purpose, not to be read in ways that drain them of content through procedural technicality. Courts interpreting special protective statutes are expected to favour readings that advance the statute’s objects. A reading that allows the bail bar to lapse because a provision number changed does the opposite.

[Note: at the time of writing, it is not clear whether either decision has been challenged in the Supreme Court, or has been questioned by a bench of larger strength in the High Court itself]

Guest Post: Reconsidering the Expulsion Requirement in The Offence of Causing Miscarriage

 (This is a guest post by Ananya Kumar)

Under the Indian Penal Code 1860 (IPC), causing the death of a foetus was a criminal offence, even if done with the consent of the mother. The adoption of the Medical Termination of Pregnancy Act (MTPA) in 1971 created an exception to this. It allowed registered medical practitioners to terminate pregnancies with the mother’s consent, i.e., to carry out abortions. The IPC continued to penalise acts done with criminal intent to harm the foetus, or the mother, or both, i.e., the offence of causing miscarriage. Now, Sections 88 to 92 of the Bharatiya Nyaya Sanhita 2023 (BNS) prescribe punishment for the offence of causing a woman to miscarry without her consent in its varying forms in the same manner as the IPC.

Despite this statutory framework, a fundamental issue remains unresolved. Neither the MTPA, nor the BNS define ‘miscarriage’, and how it differs from ‘abortion’. Consequently, courts assume that both abortion and miscarriage entail the expulsion of a foetus from the womb before its term with the intent of causing its destruction, the only difference being that the former is done with the mother’s consent (see para 4).

However, miscarriage and abortion have significant differences and implications, beyond mere consent. For instance, miscarriages happen spontaneously and can sometimes lead to the death of a foetus inside the womb without it getting expelled. Yet, as things stand, courts have interpreted ‘miscarriage’ under the IPC to necessarily require expulsion. Consequently, courts have incorrectly dismissed charges of the offence of causing a foetus’ death on the grounds that it was not expelled from the womb. 

In this blog, I highlight how the law has wrongly assumed that expulsion of the foetus is a necessary element for the offence of causing miscarriage. I then point out cases where this has led to the acquittal of probable offenders for causing miscarriage. Accordingly, I suggest two interpretations through which courts can correct their approach towards interpreting the offences of causing miscarriage, in the absence of legislative action.

The Difference between Miscarriage and Abortion

In medical sciences, miscarriage is also referred to as ‘spontaneous abortion’. By contrast, what we ordinarily call abortion is called ‘induced abortion’. It is perhaps this terminology that has led courts to conclude that principally, the only difference between miscarriage and abortion is the non-consensual and spontaneous nature of miscarriage. 

For instance, Modi’s Medical Jurisprudence And Toxicology (10th edn, 1949) explains that when a woman consents to the expulsion of the foetus from her body, it is abortion. On the other hand, when a foetus is made to be expelled from a woman’s womb without her consent, it is termed as miscarriage (see page 319). In light of this, even when Parliament has defined miscarriage, in social security legislations, it has described it as the ‘expulsion of the contents of a … uterus’ (see, Maternity Benefit Act 1961 and the Code on Social Security 2020). This definition replicates the same error courts have been interpreting under criminal law.

The Supreme Court in Dr. Jacob George v State of Kerala (1994) relied on this explanation to state that the distinction between abortion and miscarriage is ‘not material’ for the purposes of the IPC so long as there is an intent to cause miscarriage (para 5). However, the difference between spontaneous and induced abortion cannot be reduced to the presence or absence of consent alone. 

There are many circumstances and complications that lead to different kinds of spontaneous abortions that do not have similar characteristics to abortions. Sometimes, complications in miscarriages, can lead to death of the foetus in-utero, without the expulsion of the products of conception. This type of miscarriage is called an ‘incomplete’ or a ‘missed’ miscarriage. This is why, equating miscarriages to ‘abortions with consent’ can miss the complicated reality of miscarriages. 

Another distinction between the two is the intent behind the act. Abortions are done with the deliberate intent of terminating and removing the foetus from the womb. However, it is not necessary that an offence is committed against a woman with the specific intent of bringing about the expulsion of the foetus. The intention may simply be to cause harm or death to the mother, or the foetus. In some cases, the child may die in-utero due to extraneous circumstances like shock, stage of foetal development, or death of the mother. Therefore, courts should recognise that miscarriages can also take place without the expulsion of the foetus.

Case Dismissals Due to the Expulsion Requirement

Courts have previously dealt with cases of incomplete or missed miscarriages under Sections 312 and 314 of the IPC. The interpretation by the courts in these cases shows flawed reasoning that has led to the acquittal of probable offenders, only due to non-expulsion of foetus from the mother’s body. 

For example, in Prasoon Kumar Jaiman (2017) before the High Court of Rajasthan, the petitioner was accused of causing miscarriage (Sec 313) where there was no expulsion of foetus from the mother’s womb. However, the Court held that no offence was made out due to a ‘lack of medical evidence’ proving miscarriage. The ‘lack’ here referred to the fact that the foetus had not been expelled from the mother’s body, which had been termed by the doctor as a ‘missed abortion’ (page 3).

Along similar lines, the judgment of the High Court of Chhattisgarh in Rajesh Kumar (2024) was another case where the expulsion requirement was misused by the accused. There the accused had allegedly administered a poisonous liquid to the mother with the intent to kill the foetus conceived outside marriage. The mother died soon after. In the autopsy, it was found that the foetus had died inside the womb before the mother, without getting expelled. The Court observed that causing miscarriage necessarily requires the expulsion of foetus (para 14). Since no such expulsion had occurred, the accused were acquitted on the charges under Section 312 and 314 of the IPC (Sections 88 and 90 of BNS). These cases demonstrate how the absence of a definition of miscarriage, as well as the judicial insertion of the expulsion requirement, allows perpetrators to evade culpability.

Avoiding Miscarriage of Justice

The most straightforward resolution to this issue would be for the legislature to introduce a statutory definition of ‘miscarriage’ in the BNS, one that does not make expulsion of the foetus a necessary requirement. A definition that instead focuses on the death of the foetus before term, whether or not followed by expulsion, would bring penal law in line with medical reality.

Alternatively, so long as there is legislative silence on the definition of miscarriage under the BNS, courts can prevent its abuse through two approaches. First, by interpreting the offence in a manner consistent with its medical meaning. Alternatively, by proceeding against perpetrators under other offences.

Firstly, as established above, miscarriages differ from induced abortions for more reasons than just consent. Keeping this in mind, interpretation of ‘miscarriage’ for the specific purpose of these crimes must be in line with the medical realities of their outcomes. Thus, the focus of the definition of miscarriage and abortion should not be on the expulsion of the foetus. Both aim to destroy the foetus inside the womb of the mother before the completion of the gestation period. Thus, regardless of whether there has been an expulsion of the foetus or not is not relevant for establishing the crime of causing miscarriage. The death of the foetus before term should be enough to meet that threshold.

Secondly, pending an authoritative reinterpretation of miscarriage by a larger bench, two alternative charges may be available to prosecutors in cases where there has been no expulsion. The foremost is Section 62 of BNS, which criminalises attempt to commit a crime. Thus, even if an offence of causing miscarriage is not made out on grounds of non-expulsion, offenders may still be tried for attempting to cause miscarriage with criminal intent if evidence is found.

The other alternative is Section 91, which punishes the act of ‘preventing a child from being born alive’ amongst others. Unlike the miscarriage provisions, Section 91 makes no reference to miscarriage or expulsion. While no court has applied Section 91 to situations of missed miscarriages yet, a textual interpretation of this Section would be wide enough to cover cases of intrauterine foetal death. 

Conclusion

By equating miscarriage with abortion for legal purposes, legislators and courts have overlooked the medical realities of miscarriage and in doing so, unreasonably narrowed the scope of criminal liability. This approach has serious consequences, as it allows individuals who have caused the death of a foetus with mala fide intent to evade culpability simply because the foetus was not expelled from the womb. Prior precedents demonstrate how absence of a statutory definition of miscarriage has become a loophole that undermines the objective of the law.

An interpretation of ‘miscarriage’ that focuses on the death of the foetus in-utero rather than its expulsion from the womb would resolve this inconsistency. Pending such a reinterpretation by a larger bench, the alternative routes available under Sections 62 and 91 of the BNS offer prosecutors a meaningful, even if not entirely ideal, path forward. Change in this area will require courts to look to the harm the provisions were designed to prevent.

Update - IBC Moratoriums, Personal Insolvency, and Cheque Bounce Cases

About a year ago, the blog covered a decision of the Supreme Court [Rakesh Bhanot v. Gurdas Agro, 2025 INSC 445] dealing with the issue of interim moratoriums under the Insolvency and Bankruptcy Code, 2016 [IBC] and prosecutions for offences under the Negotiable Instruments Act, 1881 [NI Act]. It took the view that the decision in Rakesh Bhanot did not sufficiently explain its conclusions, especially in light of existing precedent in the field. At the same time, the post also noted that the concerns animating the decision were, arguably, originating in poor legislative design of the IBC.

Over the past year, it appears that the correctness of the view taken in Rakesh Bhanot has come under a cloud. The most recent doubts were raised when in May 2025 a bench of Three Justices — headed by the Chief Justice — issued notice and granted interim reliefs in a petition which has, at least going by the news article, directly challenged the correctness of Rakesh Bhanot [Karan Bhatia, W.P. (Crl.) 131/2026]. 

There are tons of such fact scenarios playing out causing much grief to (some) litigants. A Three Justices Bench granting an interim relief in the face of the existing judgment, is a decent sign of which way the wind may blow. Additionally, it would be nice if, this time, the issue can also get the clarity that it requires. As the previous post discussed, there are some thorny law and policy issues involved here. It requires careful reading of the Indian Contract Act, the IBC, as well as precedent (such as P. Mohanraj). 

One can only hope that the issue thus gets finally resolved soon, one way or another. That is eminently more desirable than a Vijay Madanlal kind of scenario where the Court is kicking the proverbil can down the road which clogs the docket, as more and more persons move for interim reliefs, and also continues the confusion in courts below.

  

Course Correction on Delays and Bail under the UAPA?

[This post was updated at 6PM on 19.05.2026 to add reference to this news article and on 23.05.2026 to add reference to the SC Order dated 22.05.2026]

On 18.05.2026, a Division Bench of the Supreme Court handed down its verdict in Syed Iftikhar Andrabi [2026 INSC 503]. The bail application was allowed, which if we see the facts is not entirely surprising: the accused had been in jail for more than five years, there were many co-accused already on bail, some of them quite similarly placed, the incriminating material was largely confessional, and the trial was nowhere near completion. 

It is not because of the factual analysis that the judgment runs into 102 pages, which is quite unusual for a bail petition. The length was necessitated as the Bench felt it had to clear the legal position on a key issue affecting bail adjudication in the UAPA context, and the broader context of special crimes more generally. This, of course, was the issue of what impact does lengthy undertrial incarceration have in bail petitions under the UAPA with its additional restrictions for grant of bail under Section 43-D.

According to the Bench, a position had been set out by the Bench of Three Justices in K.A. Najeeb [(2021) 3 SCC 713], holding that the rigours of merits-based statutory restrictions for granting bail would, in the case of grave delays, be trumped by the concerns for an accused's liberty. The value of liberty and to a speedy trial was seen as grounded in Article 21 of the Constitution; lengthy undertrial detention would, in case of grave delay, be seen as causing detention in a manner contrary to these fundamental rights.

This position seemed to have been doubted and departed from in two subsequent judgments delivered by Division Benches; the first was Gurwinder Singh [(2024) 5 SCC 403], and the second Gulfisha Fatima [2026 SCC OnLine SC 10] (both were opinions of the same author). These subsequent decisions had, seemingly, held that bail was not the rule in UAPA cases owing to the restriction placed by Section 43-D UAPA which evidenced a legislative preference for jail as the default, and no relaxation or mollification of this statutory restriction was caused by delays or by the lengthy undertrial detention of an accused. 

The validity of this line of reasoning from both these opinions has been expressly doubted in Syed Iftikhar Andrabi [Paras 26 to 41]. The simplest line of critique is that the Division Benches could not have doubted or disagreed with the judgment of Three Justices in Najeeb. But the Court does not rest there, perhaps due to the manner in which both Gurwinder Singh and Gulfisha Fatima made departures. Neither said that the law laid down in Najeeb was bad; instead, the fight was about what law, if any, did Najeeb lay down in the first place. 

Gurwinder Singh and Gulfisha Fatima departed from the opinion in Najeeb by reading the latter as tightly wound to its facts. In that case there was no prospect of speedy trial whereas in Gurwinder Singh notable progress had already been made, and in Gulfisha Fatima the delays were 'natural' owing to the complexity of the case. In other words, both opinions tried to denude the opinion in Najeeb of having laid down any law at all. Having done so, both opinions offered their reading of the law, which saw the statutory bar of Section 43-D UAPA remaining unaffected by any length of delay. Even if there was delay, the detention of an accused may yet be justified in the overall facts of a case.

Syed Iftikhar Andrabi has specifically disapproved of this interpretation of Najeeb, as well as the holding of both Gurwinder Singh and Gulfisha Fatima that the statutory bar is adamantine and remains unaffected by delays. It reminds us of the very clear observation in Najeeb, that in appropriate cases the statutory bar would 'melt' in the face of the pressure created by the prolonged and unconstitutional deprivation of an accused's liberty. The statutory bar is, and remains, subservient to constitutional interests.

The verdict is a helpful course correction by the Supreme Court in the domain of bail on grounds of delay which has seen a renaissance of sorts in the past five years across multiple statutory contexts containing a clause restricting grant of bail. Whether the course correction will hold or not is something to be seen. All it takes is another Bench of Three Justices to come and doubt Najeeb, after all. And it took only a day for the State to raise the possibility. Think about this for a moment. It is not a right to release on bail, but the mere possibility for considering bail pleas slightly more favourably for those who have spent inordinately long periods in custody pending trial, is what the fight is about. And even this possibility is precarious, dependent upon how some words in a statute are read. For now though, the possibility shines brighter than it did six months ago.

At the same time, let us not overstate the usefulness of this jurisprudence of apology created by our courts. Where, after depriving individuals of their liberty for years, at some unspecified point in the future their custodial detention mysteriously burnishes their claims to liberty with greater light. In fact, Syed Iftikhar Andrabi has ironically reinforced the sheer unfairness of it all quite drastically. At paragraph 42, the Court cites data suggesting extremely low conviction rates for UAPA crimes, and rhetorically asks how can the prolonged detention be justified merely because of serious allegations if there are such high possibilities of a future acquittal. If this reasoning is good for prolonged detention and delay on grounds of bail, it is also good for demanding greater accountability for deciding bail applications on merits and seriously assailing the constitutionality of the restrictive bail clauses under the UAPA and other laws.

The allegations against the accused were serious in Syed Iftikhar Andrabi, but they were based on hardly any credible material. So why did the courts below continue to shy away from granting bail on merits for the five years that it took for this judgment to pass? That, really, is the question which deserves a lot more scrutiny going forward in bail jurisprudence under the UAPA. 

The vigour with which the Court has sought to resolve the creases within the legal fabric on delay-based bail for UAPA and other such crimes requires urgent reciprocation in the realm of merits-based bail. Only then will the proclamation of the Court in Syed Iftikhar Andrabi carry any real force: that bail remains the rule, and jail the exception, in all circumstances in our law.

UPDATE: It did not take long for the issue to get referred to a bench of larger strength. On 22.05.2026, while granting interim bail to the applicants, a bench of the Supreme Court took note of the observations in Syed Iftikhar Andrabi and requested the Chief Justice to constitute a bench of appropriate strength to "clarify or expound the position of law laid down in K.A. Najeeb's case, particularly in the backdrop of the rigour of 43D(5) which imposes restriction consciously and has received the assent of the Parliament, which obviously was brought in keeping in mind the valuable right enshrined in Article 21 of the Constitution of India." (Para 24). All eyes on the Court, then.     

[On reading of restrictive bail clauses, readers may find the six-part series 'Jail is Not the Rule' helpful]

Snippet - The Prison Statistics India 2024 Report

This past week, the Prison Statistics India Report for 2024 ['PSI Report'] was published by the National Crime Records Bureau ['NCRB]. I could not spot any massively interesting data points as such, especially if we read this Report together with the 2023 PSI Report. Indian prisons continue to be filled overcapacity, mostly with undertrial prisoners, who are usually young and poorly educated. While we do know that the prisons were collecting both religion and caste demographics, these indicators continue to be out of sight in these Reports. Economic profiles of prisoners are also not provided. If we did have that data provided in the Reports, one suspects it would further confirm that our prisoners are, disproportionately, coming from marginalised backgrounds.

The five-year charts in the 2024 Report show us that there has been a tapering of the prisoner population. The highs seen in the 2022 Report have, thankfully, not been witnessed again. Any positivity generated by this data is offset when we consider that that reasons for that tapering is not systemic improvement. One big reason are the efforts made in 2023 by the Supreme Court to push for release of prisoners through undertrial review committees. This is coupled by consistent decrease in prisoner population seen in Uttar Pradesh over the past couple of years. Anybody can see that these are not long-term solutions.

The 2024 Report is going to be interesting historically, as hereon the legal framework will no longer speak to the Criminal Procedure Code of 1973 but the Bharatiya Nagarik Suraksha Sanhita of 2023. 1973 saw the introduction of a new Code with an impetus on ensuring speedy justice and provisions meant to reduce unjust undertrial incarceration. It went out in 2024 with an unpleasant legacy on these fronts. The new law has built upon the same rotten foundations but with some tweaks on aspects of arrest and bail, so it would be interesting to see what changes it brings on the ground. 

A case in point will be the impact on default bail under what was Section 436-A of the 1973 Code, which has now become Section 479 of the 2023 Sanhita. This scheme of default bail under the old Code had enabled release of prisoners who had served half their prison term. The revised scheme allows for release on serving one-third of the sentence, provided it is a first-time offender (with some more caveats which we needn't elaborate here). 

Implementation of 436-A is seen by some as a chokepoint resulting in unjust incarceration. However, the PSI data has consistently shown that this may not be the case, as there was hardly a sizeable number of the prison population eligible for release in the first place. The 2024 Report reaffirms this trend. As we have seen, 479 BNSS will change the eligibility criteria, potentially expanding the reach of the clause. It will be fascinating to see the impact it has. If the half-year's worth of data is anything to go by, the future of this species of default bail may not be very different from its past.