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.
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