Repeal and Savings under Section 170 of the Bharatiya Sakshya Adhiniyam, 2023: When the Adhiniyam Applies and When the Indian Evidence Act Still Does

One section closes the Adhiniyam and repeals a statute that governed Indian courts for a hundred and fifty-two years. Its second sub-section is the more important of the two: proceedings pending on 1 July 2024 continue under the Indian Evidence Act as if the new law had never come into force. For a generation of cases both statutes are therefore live, and the question in any given matter is which one governs — a question that turns out to be harder than the drafting suggests.

1. The Provision

The Adhiniyam received the President's assent on 25 December 2023 and came into force on 1 July 2024, by notification under Section 1. The Indian Evidence Act, 1872 stood repealed from that date.

The Adhiniyam was one of three statutes commencing together, and the savings provisions are drafted in parallel. Section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 saves pending proceedings from the operation of the new procedural law, and Section 358 of the Bharatiya Nyaya Sanhita, 2023 deals with the repeal of the Indian Penal Code, 1860.

2. The Basic Rule

The savings clause covers six categories, and the list is wide: an application, a trial, an inquiry, an investigation, a proceeding, or an appeal. The inclusion of 'investigation' is notable — an investigation pending on 30 June 2024 continues under the old law even though no court proceeding had begun.

Two features of the drafting govern the operation of the sub-section.

'Immediately before the date'. The test is the position as at the close of 30 June 2024. A matter instituted on 1 July 2024 or later is not pending immediately before that date, whatever the date of the occurrence to which it relates.

'As if this Adhiniyam had not come into force'. The saved proceeding is conducted entirely under the old law. This is not a rule that the old law applies to evidence already recorded and the new law to evidence recorded afterwards; the whole of the proceeding continues under the Indian Evidence Act.

3. Why the Choice Matters

If the two statutes were identical the question would be academic. They are not, and in one area the difference is substantial.

The practical consequence is that in the great majority of saved proceedings the choice of statute makes no difference, because the provisions are the same in substance and the decisions on them apply to both. Where it matters, it matters a great deal — and almost always in relation to electronic evidence.

The point is sharpest with the Explanations to Section 57. Under the earlier scheme almost every electronic output was arguably a copy requiring a certificate under Section 65B(4). Under the Adhiniyam, a printout from one's own device, a forensic recovery from a cache, a synchronised cloud copy and a simultaneously recorded video are all primary evidence, and the certificate does not arise. A party in a saved proceeding does not have that advantage.

4. The Appeal Problem

The most difficult transitional question concerns appeals, and it is worth setting out because it is genuinely unsettled.

4.1 The two situations

An appeal pending on 30 June 2024 is squarely within Section 170(2) — 'appeal' is one of the six saved categories — and continues under the Indian Evidence Act.

An appeal filed on or after 1 July 2024, from a judgment in a trial conducted under the Indian Evidence Act, is the difficulty. It was not pending immediately before the commencement. Is it therefore a fresh proceeding governed by the Adhiniyam, or a continuation of the saved trial?

4.2 Why the question is awkward

Two propositions pull in opposite directions.

On the one hand, an appeal is ordinarily regarded as a continuation of the original proceeding, and it would be odd for evidence recorded and assessed under one statute to be reassessed on appeal under another. The trial court applied the Indian Evidence Act because it was bound to; an appellate court applying the Adhiniyam to the same record would be judging the trial by a standard the trial judge was forbidden to use.

On the other hand, Section 170(2) saves what was pending immediately before the commencement, and an appeal filed afterwards was not. On a literal reading it falls outside the savings clause. The position under the procedural law points the same way: an appeal or revision filed after 1 July 2024 is filed under the Bharatiya Nagarik Suraksha Sanhita, 2023 and not under the Code of Criminal Procedure, 1973 — the view taken in Abdul Khader v. State of Kerala, 2024 (4) KLT 516.

5. Other Transitional Questions

Four further situations recur and the analysis for each follows from the same two features of the sub-section.

The last row deserves emphasis because it is counter-intuitive and frequently got wrong. A party proving an electronic record created in 2020, in a suit filed in 2025, relies on the Adhiniyam — including the Explanations to Section 57 and the Schedule certificate under Section 63(4). The date of creation of the record is immaterial; what governs is the law in force when the question of proof arises.

6. The Effect of Repeal on the Case Law

A question that is asked constantly and has a short answer: the decisions on the Indian Evidence Act continue to apply.

The reason is that the Adhiniyam re-enacted the great bulk of the earlier statute in substantially the same terms. Where a provision is carried forward without material change, the decisions construing it construe the new provision equally, and a court applying Section 26 is applying the law developed under Section 32.

A citation practice follows from this and is worth adopting. Where an earlier decision is relied upon, the provision it construed should be identified together with its counterpart in the Adhiniyam — 'Anvar P.V., on Section 65B of the Indian Evidence Act, now Section 63' — so that the reader can see whether the provision was carried forward and whether the reasoning survives.

7. The Wider Saving

Section 170(2) is a special savings provision. Beyond it, the ordinary rules about the effect of a repeal apply — principally the General Clauses Act, 1897, which provides that unless a different intention appears, a repeal shall not revive anything not in force at the time, shall not affect the previous operation of the repealed enactment or anything done under it, shall not affect any right, privilege, obligation or liability acquired or incurred under it, and shall not affect any investigation, legal proceeding or remedy in respect of such right or liability.

Two consequences follow that Section 170(2) does not itself address.

Things done under the repealed Act stand. A certificate issued, an order made, a document certified or a commission executed under the Indian Evidence Act is not invalidated by the repeal.

The repeal does not revive earlier law. The Indian Evidence Act itself repealed a body of earlier enactments, and nothing in the Adhiniyam brings them back.

8. Practical Points

1. Establish the date of institution. The single question under Section 170(2) is whether something was pending immediately before 1 July 2024.
2. Do not look at the date of the occurrence or of the document. Neither is relevant to which statute applies.
3. In a saved proceeding, apply the Indian Evidence Act throughout, including to evidence recorded after the commencement.
4. Identify whether the difference matters. In most matters the two statutes are the same in substance and the choice is academic.
5. Where electronic evidence is in issue, the choice usually matters, and the Explanations to Section 57 are the principal difference.
6. On an appeal filed after the commencement from a trial conducted under the old law, argue the point rather than assuming either answer.
7. Cite earlier decisions with both provisions — the section construed, and its counterpart in the Adhiniyam.
8. For a record created before the commencement but tendered afterwards, apply the Adhiniyam. The law in force at the time of proof governs.

9. The Position Stated Shortly

1. Section 170(1) repeals the Indian Evidence Act, 1872, with effect from 1 July 2024.
2. Section 170(2) saves six categories — an application, trial, inquiry, investigation, proceeding or appeal pending immediately before that date.
3. A saved proceeding continues wholly under the earlier Act, as if the Adhiniyam had not come into force.
4. The test is pendency, not the date of the occurrence or of the document.
5. A record created before the commencement but tendered afterwards is proved under the Adhiniyam.
6. The principal practical difference is electronic evidence, and above all the Explanations to Section 57.
7. An appeal filed after the commencement from a trial under the earlier Act raises an unsettled question, and the parallel procedural position points towards the new law.
8. The earlier case law survives wherever a provision was carried forward in substance, which is most of the statute.

10. Related Topics and Provisions