Chapter XII – Section 170: Repeal and Savings under the Bharatiya Sakshya Adhiniyam, 2023 | Latest Update & News - Sajjad Husain Law Associates | Legal News & Judgment

Introduction

How does a country swap out a 150-year-old evidence law for a brand-new one without throwing thousands of ongoing trials into limbo? The answer sits in a single, unglamorous provision: the repeal-and-savings clause.

With the Bharatiya Sakshya Adhiniyam, 2023 (BSA) now in force, the Indian Evidence Act, 1872 has been formally retired. But retiring a statute that underpins every ongoing criminal and civil trial in the country cannot be done with a clean break — it needs a bridge. That bridge is Chapter XII, Section 170 of the BSA. This article breaks down what the section actually repeals, what it deliberately preserves, and what that split means in practice for FIRs, pending appeals, and evidence already on court record.

1872 → 2023

151 years separate the two evidence codes Section 170 has to reconcile

Section 170 Explained: The Mechanics of Transition

At its core, Section 170 does two jobs at once. First, it repeals the Indian Evidence Act, 1872 outright — the old Act no longer governs any proceeding started after the BSA's commencement. Second, and just as important, it stops that repeal from unravelling everything decided or done while the old Act was still in force.

Without this second half, every trial already underway on the day the BSA commenced would have been thrown into legal uncertainty — was the evidence already recorded still valid? Could a conviction be challenged simply because the law that governed the trial no longer exists? The savings clause exists precisely to foreclose those questions.

Bare Act Text — Section 170, Bharatiya Sakshya Adhiniyam, 2023

(1) The Indian Evidence Act, 1872 is hereby repealed.

(2) Notwithstanding such repeal, if, immediately before the date on which this Adhiniyam comes into force, there is any application, trial, inquiry, investigation, proceeding or appeal pending, then, such application, trial, inquiry, investigation, proceeding or appeal shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement, as if this Adhiniyam had not come into force.

Note: A repeal-and-savings clause is a standard drafting tool used whenever India replaces a foundational statute (the same technique was used when the Bharatiya Nyaya Sanhita replaced the IPC, and the Bharatiya Nagarik Suraksha Sanhita replaced the CrPC). It is not unique to evidence law.

What Exactly Does Section 170 Save?

Sub-section (2) is written broadly on purpose. It names six specific categories of pending matters that keep running under the 1872 Act instead of switching to the BSA:

Applications pending before any court or authority
Trials already underway
Inquiries in progress
Investigations not yet concluded
Proceedings of any other kind pending
Appeals awaiting disposal

If any of these existed immediately before the BSA's commencement date, it continues exactly as though the BSA had never been enacted — the 1872 Act governs it from start to finish.

Note: Section 170 itself names only these six categories. Related consequences — such as previously recorded evidence remaining valid, or rights already vested under the old law surviving the repeal — follow from general savings-clause principles under Section 6 of the General Clauses Act, 1897, not from separate express wording in Section 170.

Old Act vs. New Act: What Actually Changes

The practical effect of Section 170 is a split system: which rulebook applies depends entirely on when a case was instituted, not on today's date.

Scenario	Indian Evidence Act, 1872	BSA, 2023 (post Section 170)
New FIR filed today	Not applicable	Governed entirely by BSA rules of evidence
Trial already underway	Continues to apply, unchanged	Does not apply — proceeding stays under the 1872 Act
Pending appeal	Governed by the old Act at trial stage	Appeal continues under the same old-Act framework
Electronic record admissibility	Section 65B certificate regime	Section 63 procedure applies, but only to newly instituted matters

Caution: A common mistake is assuming the BSA's commencement date automatically upgrades every pending case to the new evidentiary rules. It does not. The date a proceeding was instituted — not the date evidence is led or the date of judgment — is what fixes which Act applies.

Real-World Example: Tracing a Case Through the Transition

Consider a murder case where the FIR was registered in 2022, well before the BSA came into force.

1 2022 — FIR registered and trial begins. The proceeding is instituted under the Indian Evidence Act, 1872.

2 Witness statements recorded under the old Act. These remain valid evidence for this trial regardless of what happens next.

3 BSA, 2023 comes into force. Section 170 repeals the 1872 Act nationwide.

4 The 2022 trial continues, unaffected. It is still tested against the 1872 Act's rules, including the earlier witness statements.

5 A fresh FIR filed today for an unrelated matter, by contrast, must comply with the BSA's evidence rules from the outset.

Who Section 170 Actually Affects

The provision is easy to treat as a technicality, but it reaches every part of the criminal justice pipeline:

Police and investigating officers need to know which rulebook governs evidence collection for any case still open on the transition date.
Trial judges must apply two different evidentiary standards depending on when each case on their docket was instituted.
Defence and prosecution counsel cannot assume a procedural challenge succeeds just because "the law has changed" — Section 170 forecloses that argument for anything already done under the old Act.
Appellate courts reviewing convictions from before the transition continue to test the record against the 1872 Act, not the BSA.

Key Takeaways

The 1872 Act is repealed, not erased: It no longer applies to new proceedings, but its past effect is preserved.
The trigger is the institution date: Whether a case runs under the old Act or the BSA depends on when it was instituted, not today's date.
Vested rights survive the transition: Rights and liabilities fixed under the old law are not disturbed by the repeal.
Prior evidence stays admissible: Material lawfully recorded under the 1872 Act cannot be attacked solely on the ground that the Act has since been repealed.
New matters follow new rules: Every proceeding instituted after commencement must comply with the BSA in full, including its evidence-admissibility framework.

Conclusion

Section 170 is what makes India's shift from the Indian Evidence Act, 1872 to the Bharatiya Sakshya Adhiniyam, 2023 workable in practice rather than just on paper. By repealing the old framework for the future while explicitly saving its effect on the past, it lets two evidentiary regimes run in parallel for as long as pre-BSA cases remain pending — without either regime undermining the other.

For anyone handling a live case, the practical rule is simple: check the date the proceeding was instituted before assuming which Act's evidentiary standards apply. Getting that boundary wrong is the most likely way to lose an otherwise sound procedural argument during this transition period.