Section 358 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Section 358 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, which deals with "Repeal and Savings":
๐ Section 358: Repeal and Savings โ A Detailed Commentary
๐น Text of the Section:
Section 358(1):
โThe Indian Evidence Act, 1872 (1 of 1872), is hereby repealed.โ
Section 358(2):
โNotwithstanding such repeal,โ
(a) all actions, proceedings, and matters commenced, continued, or completed under the repealed Act shall be deemed to have been validly undertaken as if this Act had not been enacted;
(b) any reference to the repealed Act in any other law, rule, regulation, or document shall be construed as a reference to this Act.โ
๐ Purpose and Importance of Section 358
Section 358 is a transitional provision included in the Bharatiya Sakshya Adhiniyam, 2023, to ensure a smooth legal transition from the Indian Evidence Act, 1872 to the new evidence law. When any new law replaces a long-standing statute (like the Indian Evidence Act, which was over 150 years old), it becomes essential to address how existing cases and references are to be handled. Section 358 does precisely that.
โ๏ธ Clause-by-Clause Analysis
โค Sub-section (1): Repeal of the Indian Evidence Act, 1872
This clause formally repeals the Indian Evidence Act, 1872.
It marks the end of the legal force and applicability of the 1872 law from the date the BSA, 2023 comes into effect.
This repeal is necessary for the new law to take full and independent effect.
โค Sub-section (2)(a): Preservation of Existing Legal Proceedings
"Notwithstanding such repeal" means that despite the old law being repealed, its impact remains intact for certain situations.
This clause saves all legal actions, trials, appeals, and proceedings that were initiated under the old Act.
If a court case was started under the Indian Evidence Act, 1872, it will not be invalidated or questioned just because that law is now repealed.
These matters will be treated as if the old law was still in force for the purpose of those cases.
๐ Example: If a criminal trial began in 2022 under the Indian Evidence Act, and the Bharatiya Sakshya Adhiniyam comes into force in 2023, the trial does not have to restart under the new Act. It continues under the rules it began with.
โค Sub-section (2)(b): Interpretation of References in Other Laws
This provision ensures harmonization across the legal system.
Any mention of the Indian Evidence Act, 1872 in other laws, contracts, government notifications, or regulations is to be interpreted as referring to the new Bharatiya Sakshya Adhiniyam, 2023.
This is important to avoid legal confusion, misinterpretation, or gaps in application.
๐ Example: If a provision in the Code of Criminal Procedure (CrPC) refers to โSection 114 of the Evidence Act,โ it should now be read as referring to the corresponding provision in the BSA, 2023, even if the CrPC hasnโt been updated yet.
๐ Significance of Section 358 in Legal Practice
Continuity and Stability: Prevents disruption in the judicial system due to the repeal of an old law.
Legal Certainty: Ensures that cases, judgments, and legal documents remain valid and enforceable.
Harmonization: Promotes uniformity by updating references in other legal instruments without the need for immediate amendment.
Judicial Efficiency: Allows courts to continue proceedings without restarting or invalidating cases already in progress.
Public Confidence: Citizens, lawyers, and courts can trust that the shift in law will not cause injustice or delays.
๐๏ธ Conclusion
Section 358 of the Bharatiya Sakshya Adhiniyam, 2023 is a critical bridge provision that ensures the legal system continues to function smoothly during the transition from the colonial-era Indian Evidence Act, 1872 to the modernized framework of evidence law under the 2023 Act. It maintains the validity of ongoing proceedings, provides clarity for legal references, and protects the integrity of the judicial process. This kind of provision is standard and essential whenever major legal reforms are introduced.
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