May 2026 - JointJuristJournal

“INTELLECTUAL PROPERTY BATTLES IN BRAIN-COMPUTER INTERFACES: NEURALINK VS. COMPETITORS”

Author:- Anshu Kumari, National University of study and research in law, Ranchi.

Co.Author:- Gautam Bhardwaj, Manav Rachna University, Faridabad.

ABSTRACT

Neurotechnology, including brain-computer interfaces (BCIs), represents one of the most promising areas for future inventions. This paper explores the intellectual property regime governing BCIs, with an emphasis on key innovators (such as Neuralink) and their rivals. The analysis covers doctrinal aspects of intellectual property law, including patent subject-matter eligibility, patent novelty, and the inventive step, as well as trademark law. For instance, we will explore how the recent U.S. Supreme Court decisions on patentability (such as Alice Corp. v. CLS Bank) and obviousness (KSR Int’l Co. v. Teleflex), as well as Section 3(k) of the Indian Patent Act, influence neural devices. The issues discussed include such important cases as Lava International Ltd. v. Telefonaktiebolaget L.M. Ericsson[1](Delhi High Court 2024). The current state of research lacks doctrinal studies on BCI IP law, although many relevant patent applications were filed.[2] Research questions include, among others: “Is it possible to patent decoding algorithms used with neural signals currently?” and “How should the IP doctrine address both innovation incentives and ethics and privacy issues?” Regarding methodology, this paper provides a comparative doctrinal analysis of American and Indian legislation, supported by technological sources. The argumentation includes the conclusion that, although being flexible, the current framework for Intellectual Property rights still leaves gaps concerning neural technology and BCI specifically, such as neural data might not be clearly classified as protected data and inventions in patenting legislation. Proposed policy recommendations include specific changes, like establishing new guidelines for neurotech patent applications in the USPTO and protecting neural data through privacy regulations. As a result, this interdisciplinary work demonstrates how aligning Intellectual Property doctrines to the specifics of BCIs would ensure innovations and their social utility.

INTRODUCTION

A brain-computer interface (BCI) is technology that helps create a connection between the brainwaves and the outer world. Numerous ventures have been established by businessmen, including Neuralink, created by Elon Musk. With the evolution of BCIs from science-fiction concepts into reality, many legal aspects have emerged. On the one hand, patents play an important role in stimulating investment in BCIs. On the other hand, many new issues emerge, such as whether the process of thought interpretation through algorithms can be patented. Moreover, as companies seek to create brands (Neuralink uses trademarks such as ‘Telepathy’), numerous trademark battles will emerge. This paper will explore the problem of Intellectual Property Battles in BCIs: Neuralink vs. Competitors and analyse how current doctrines (such as patents, trademarks, and trade secrets) need to adapt to neurotechnology’s. Some examples include the Alice Corp. v. CLS Bank[3] case in the USA and the Lava Int’l Ltd. v. Telefonaktiebolaget L.M. Ericsson case in India. Thesis statement: Brain-Computer Interface devices show cracks in existing Intellectual Property laws. The criteria used in deciding the eligibility or the patentability of an invention or its obviousness can be problematic when applied to the neural device or brain processing algorithms. Also, due to the intersecting legal regimes that exist because of the diverse range of BCIs, from medical to software or personal data, a thorough examination of legal doctrines coupled with policy changes is necessary.

The structure of the paper looks like the following. Following this introduction, Section II analyses academic and legal literature on BCI IP problems, underlining that most of modern works pay special attention to the ethical and privacy concerns rather than provide detailed legal analyses of the existing patents, copyrights or trademarks. Section III sets our Research Questions, for example, whether neural decoding techniques could pass the Alice test; whether there could be an application of competition law principles or even FRAND, if BCI standards are created. Our methodology is described in Section IV and will involve doctrinal research and comparative law techniques.

The main body (Section V) consists of five parts as follows:

patentable subject matter in relation to BCI (both American and Indian law);
novelty/inventive step (KSR test and the Indian seven-stambha technique);
BCI standards and their FRAND obligations (considering the decision in Lava v. Ericsson);
Trademark protection and branding, exemplified by the Neuralink “telepathy” case E) trade secrets and data privacy considerations. Critical analysis of our findings will be provided in Section VI. Section VII suggests policy recommendations, namely, some legislative changes (guidelines for examiners, special laws on neurotechnology, etc.) to address existing doctrinal gaps.

LITERATURE REVIEW

Some academic and industry interest exists regarding BCI technology, but the study of the doctrines of intellectual property is relatively underdeveloped. Research highlights the exponential growth of patents in relation to BCI technology. According to Grewal et al. (2023), the number of brain-machine interface patent applications increased exponentially, from one application in 1984 to more than 500 applications in 2020, whereas most of the patent applications relate to the U.S., followed by China and Europe.[4] Although legal analysis has touched upon the moral and privacy aspects of BCI use, very little information has been provided on intellectual property rights issues. This was noted in an article published by the Cardozo Arts & Entertainment Law Journal, which stated that “raw brain data” is considered a natural phenomenon that cannot be patented under Section 101.[5] Asian and Indian sources highlight particular issues: when “multiple people’s thoughts” are integrated in a BCI invention, an Asian IP article disputes inventorship and authorship.[6] The issues associated with Sections 3(k) (software) and 3(i) (medical procedures) of the Patent Act, 1970, have been highlighted by IP bloggers in India as a “double-deadlock,” which makes it difficult for BCI innovations to receive protection.[7] The only relevant litigation concerning patent law and technology in India is that of telecoms, particularly the case of Lava International Ltd. vs. Ericsson.[8]

Even though there is some interest in the issue, there are still several missing parts that need to be mentioned. The existing body of research fails to establish a connection between legal principles and actual cases involving BCI. There are also very few studies on BCI outside of the U.S., while there is no mention at all about the use of trademark law in terms of BCI marketing8. The topic of trade secrets was also not analysed.[9]

RESEARCH QUESTION

Are BCI inventions (particularly, algorithms for deciphering neural activity) patentable under the laws of the United States and India currently? What is the relevance of the Alice decision (abstract ideas) and India’s Section 3(k) (computer programs per se)?

Considering the accelerating pace of technological convergence, at what point would an innovation in the BCI area be considered obvious according to KSR v. Teleflex or India’s inventive step criteria (e.g., “Seven Stambhas”)?

Is there potential for BCI technology to fall into the category of standard essential patents? How can FRAND licensing conditions (such as Lava v. Ericsson) affect BCI innovations?

What is the legal status of brain-derived information and algorithms – whether patentable or trade secret, or something else?

In light of these legal issues, how should patent regulations and other IP laws be modified to better fit the BCI industry?

METHODOLOGY

This paper uses doctrinal legal analysis and comparative methodology. Relevant statutes are considered, such as 35 U.S.C. §§101, 103, and India’s Patents Act, sections 3(k), 3(i). American case law from the U.S. Supreme Court, such as Alice Corp. v. CLS Bank and KSR v. Teleflex, provides the guiding principles for subject-matter eligibility and obviousness.[10] Indian case law, such as Lava Int’l v. Ericsson and recent patent cases involving algorithms, will be used to understand how these problems are handled in Indian courts. Secondary literature includes commentaries, law review articles, and tech policy reports on neurotech.

In addition, we examine industry literature (such as patent landscape analysis) to determine the competitive climate. We adopt an interdisciplinary approach, incorporating technological considerations (how BCIs work), where necessary, to comprehend the relevant legal principles, but focusing on legal logic and judicial analogy.

PATENT ELIGIBILITY OF BCI INNOVATIONS

Typically, BCIs utilise software applications capable of converting brainwaves into actions. As far as §101 is concerned, software-based patents need to clear the hurdle of abstract ideas. As per Alice’s framework, one needs to first ascertain whether a patent application is claiming something abstract; if so, the next step involves determining whether there is any “inventive concept” capable of transforming it into statutory subject matter. The algorithm used to decode brain waves could be considered akin to a “fundamental building block of human ingenuity” or even an “idea itself.” According to Alice, merely abstract ideas (such as performing certain mental tasks like decoding certain brainwaves) without any concrete practical application would not qualify. Usually, courts require that “significantly more” result from software operations than simply applying the abstract idea. For instance, in Alice, performing a generic escrow transaction via computers did not suffice.[11]

India, under Section 3(k) of the Patents Act, states the following regarding computer programs: “the mere statement of a computer programme per se or mathematical methods as such.” In the case of Lava Int’l Ltd. v. Ericsson, the Delhi High Court adopted a narrow interpretation of the above rule by stating that although inventions incorporating algorithms were not automatically excluded from patentability, they would not qualify for protection if they comprised a simple computer program running on general-purpose hardware. The High Court made it clear that an application cannot be dismissed as a “computer programme per se” when it results in a “further technical effect.” This shows that under Indian patent laws, a technical contribution must be added to the abstract idea, similar to the United States after Alice Corp.

Patent claims relating to BCIs that simply say “using computer X to decode brain signals” would likely be excluded; however, if the claims provide new hardware designs or signal processing techniques, then these would be patentable under Indian law.[12]

Furthermore, some BCIs have medical uses. India has an exclusion for diagnostic or therapeutic methods for treating humans under Section 3(i). In such a case where the BCI is applied for therapeutic purposes, such as for neural stimulation (e.g., an implant for seizure prevention), then it would be excluded from protection. The U.S. patent system does not have a specific “medical methods” exclusion, although medical methods of physicians may be non-patentable if there is no commercial purpose. To conclude, in both cases, patent applications for BCIs are granted provided they claim the device itself or its enhancement, rather than any theoretical conception. In accordance with Alice, a patent claim for “a brainwave classifier” requires a new application or inventive algorithmic methods that go beyond just the correlation between the two entities. As pointed out by scholars, correlations of raw brain data are comparable to natural processes and, thus, are unpatentable per se.[13]

NOVELTY AND INVENTIVE STEP

However, for patents related to BCI, even if the criteria have been satisfied, a patent will not be granted if it fails to meet novelty requirements and the requirement of being non-obvious. Obviousness, according to U.S. §103, when interpreted by KSR Int’l Co. v. Teleflex Inc., is very lenient. It discarded all mathematical formulations like the Federal Circuit’s TSM test in favour of the “common sense” interpretation, whereby a patent application can be considered obvious if a person of ordinary skill can see that the combination of prior art elements is obvious. Therefore, any small improvements on BCI devices can potentially become the subject of an obviousness objection.

Indian law also demands inventiveness as stipulated in Section 2(1) (ja) and Section 15(1). According to Lava v. Ericsson, Indian Courts use a “Seven Stambhas” framework while assessing novelty and multifactor approaches such as the TSM test and problem-solution test in relation to inventiveness. There is a clear distinction made by the Court between novelty and non-obviousness, and it asserts that a mere combination of prior-known things must necessarily entail an element of incentive to motivate. From the perspective of BCI patents, many components (for example, microelectrodes, amplifiers, and algorithms) have been previously used in neurology and signal processing. It will be incumbent upon BCI patent applicants to prove any novel results or improvements (highly accurate signal processing or low energy consumption).[14]

In other words, the threshold is quite high. In Neuralink’s very patent filing, for instance, they have to sufficiently describe how their technology differs from existing brain-computer interface technology. It is interesting to note the ABA’s discussion on how the mere execution of software without any new hardware is non-patentable under Section 3(k), based on the Indian case of the BlackBerry Appeals.[15] On the other hand, it is important to emphasise that there must be validation of any technical effect achieved from the improvement of their device. Adding something to the device, whether electrodes or additional processing, can be considered an invention.

STANDARDS, FRAND, AND SEP ISSUES

The competition surrounding wireless technology included conflicts related to standard-essential patents (SEPs) with FRAND conditions. Brain-computer interfaces (BCIs) do not currently have any international technical standards applied to them but could develop them (such as data encoding and communication protocols). In case a group developed international standards around some specific neural interface components, SEP negotiations would happen. For example, in Lava v. Ericsson, the defendant sued the plaintiff for violation of eight SEPs related to telecom industry standards and demanded a FRAND license agreement. According to the judgment of the Delhi High Court, refusal to enter into negotiations regarding FRAND conditions may be grounds for liability. Thus, the hypothetical scenario where a dominant BCI patent owner refuses to provide licensing for a vital protocol could constitute bad faith on their part. Although BCI standards are speculative, there is a definite lesson to be learned with regard to IP protection in nascent technology. Patent owners may be subject to pressure from both the general public and regulators to license on a broad basis in cases where an IP owner has a monopoly over the standard used by the technology. As a means of protecting against infringement of a patented technology, an owner might seek an injunction instead of offering FRAND licenses to infringers. However, in the EU, SEP holders must first offer a license according to the Huawei v. ZTE[16] doctrine before obtaining an injunction.

TRADEMARKS AND BRANDING

Apart from patent disputes, trademark issues may come up when the brand name of the device becomes an issue. For example, Neuralink filed a trademark for “Telepathy” and “Telekinesis,” which was rejected by the USPTO as an independent inventor previously applied for those trademarks with the intent to use them. This is known as a priority dispute, whereby the one who filed the first application has better rights under the Lanham Act. If Neuralink uses the name “Telepathy” after another person registers it, Neuralink may run into problems with infringement. Resolving that would require negotiations or lawsuits to establish likelihood-of-confusion: if Neuralink’s BCI devices may cause consumer confusion with Telepathy Labs products, then the trademark application may be denied. [17]

Here, trademark law functions normally, and this is reflected in the USPTO refusal letter that cites prior trademarks and registrations. What matters to BCI is that brand protection is governed by the same legal principles as those applicable in other industries. Unique names such as “NeuroLink” can potentially be protected by trademarks, yet common words (like “Brain Adapter”) might not work out well. For example, Neuralink will likely be engaged in such branding IP fights, where success will depend on the application of common trademark law (15 U.S.C. §1052).

TRADE SECRETS AND NEURAL DATA

Developers of BCI technology must also rely on proprietary algorithms and data. Data from the neural system (such as training data that associates neural activity with intent) would have incalculable value as trade secrets. While inventions may be patentable, data, which cannot be patented, is not protected by any other form of intellectual property law because it qualifies as a “natural correlation.” In contrast to a patent, a trade secret is subject to independent discovery and reverse engineering. Without any form of legal protection, privacy law becomes relevant.

In some jurisdictions (such as California), brainwaves are increasingly becoming categorised as highly confidential personal information. Currently, the only way for firms to handle this type of information is through contractual agreements and confidentiality provisions.

Regarding intellectual property, there is an emerging area of uncertainty regarding whether brainwaves can be considered intellectual property. According to the Times of Israel blog, this is problematic because the brainwaves generate ideas that do not align with conventional intellectual property ownership, since the “human mind” cannot be an author.[18] While the focus of this paper has been on patents and trademarks, it should be noted that the courts have yet to recognize a person’s thoughts as intellectual property. Instead, it is the technology that engages with these thoughts that may be eligible for protection.

COMPARATIVE ANALYSIS AND GAPS

Comparison between the two regimes shows that despite convergence, there are some differences. The existence of a ‘technical effect’ is essential for patenting software in both countries, but in India’s case, the per se exclusions are clearer than in the United States, which depends upon the precedent of case laws. With respect to the inventive step, it can be said that in the case of the U.S. post-KSR, there is a trend of increasing claims of obviousness, whereas in India, tests such as multi-factor analysis are followed. In all, the analysis suggests some degree of uncertainty. For one thing, it is unknown to what extent Alice will be extended to cover neural algorithms because there has been no court ruling on anything that resembles BCI. Furthermore, no Indian court has adjudicated any patents pertaining specifically to BCI, so inventors are left wondering how 3(k)/(i) would apply in their cases. In trademark law, too, there appear to be no uncertainties, except when there are new trademarks to deal with.

POLICY RECOMMENDATION

Guidance should be provided by the patent office regarding neuro technologies. The USPTO could specify how current guidelines should be interpreted when dealing with “brain signal processing.” One option could be to embrace the concept of “technical effect,” as is done in Europe. In India, it would be wise to provide more guidelines under Section 3(k), such as accepting patents on computer-implemented devices when there is proof that such technology solves a technical problem (like the Delhi High Court did in Lava).

“Neural data” should be treated as its own distinct category by governments. This could entail modifying existing laws that address privacy issues (such as HIPAA or GDPR) to include explicit protection for neural activity data, which would necessitate obtaining consent from patients and restricting the use of brainwave data for business purposes.

Open standards for BCIs (interoperability of BCI devices) may be incentivized by policymakers. In case technical standards develop, regulators must ensure that FRAND commitments are made to avoid monopoly in key BCI interfaces. Telecom SEPs case law indicates that good faith negotiations for licenses are needed, and injunctions must be avoided without license offers. In light of the intricate nature of BCI technology, governments could consider supporting open research initiatives or creating patent pools to ensure the sharing of core knowledge and not fall into the trap of patent thickets, which tend to impede innovation.

CONCLUSION

Neuralink and others are venturing into a new realm where mind and machine intersect. In this paper, we have seen that using the prevailing IP doctrines for BCI innovations poses significant hurdles. Patent law’s criteria for determining patentable subject matter, abstract ideas, and obviousness will be put to the test in cases involving brain signal decryption. Trademark law will continue to analyse products using established methods, but will need to accommodate the introduction of new product classifications. Significantly, data from the brain is both intellectual property and personal data. Through our analysis, we see that both U.S. and Indian laws fail to consider the BCI framework. The proposed reforms from patent reformations to the protection of neural data are meant to ensure coherence between law and technology.

Refrences:-

[1]Lava Int’l Ltd. v. Telefonaktiebolaget LM Ericsson, CS(COMM) 65/2016, 2024: DHC:2698 (Del. HC, Mar. 28, 2024).

[2] Anastasia Greenberg, Alexis Cohen and Monica Grewal, “Patent Landscape of Brain-Machine Interface Technology” Springer Nature Research Communities, Oct. 8, 2021, available at: https://communities.springernature.com/posts/patent-landscape-of-brain-machine-interface-technology (last visited on May 6, 2026).

[3]Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014).

[4]Supra note 2

[5]Kayla Flanders, The Legal Vacuum in Cognitive Privacy and Brain Data, Cardozo Arts & Entertainment Law Journal Blog (May 2, 2025), https://cardozoaelj.com/2025/05/02/the-legal-vacuum-in-cognitive-privacy-and-brain-data/

[6]Excel V. Dyquiangco, Brain Interfacing, Copyright and the Patent System, Asia IP (Feb. 28, 2022), https://asiaiplaw.com/article/brain-interfacing-copyright-and-the-patent-system

[7]Cheran S., The Indian Legal Challenges of Brain-Computer Interface Patents and Data Privacy, Khurana & Khurana (Dec. 2, 2025),https://www.khuranaandkhurana.com/the-indian-legal-challenges-of-brain-computer-interface-patents-and-data-privacy

[8]Simranjeet, Delhi High Court Awards Rs 244 Crore Damages to Ericsson Against Lava for Patent Infringement, SCC Online Blog.

[9]Will Knight, Neuralink’s Bid to Trademark “Telepathy” and “Telekinesis” Faces Legal Issues, WIRED

[10]KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007).

[11]Supra note 2

[12]Supra note 8

[13]Kayla Flanders, The Legal Vacuum in Cognitive Privacy and Brain Data, Cardozo Arts & Entertainment Law Journal Blog (May 2, 2025), https://cardozoaelj.com/2025/05/02/the-legal-vacuum-in-cognitive-privacy-and-brain-data/

[14]Simranjeet, Delhi High Court Awards Rs 244 Crore Damages to Ericsson Against Lava for Patent Infringement, SCC Online Blog.

[15]Aakriti Vadehra, Cracking the Algorithm: Blackberry’s Patents Battle Section 3(k) in India, American Bar Association (2025).

[16] Huawei Techs. Co. Ltd. v. ZTE Corp., Case C‑170/13, ECLI:EU:C:2015:477 (CJEU July 16, 2015).

[17] Emily Mullin, Neuralink’s Bid to Trademark “Telepathy” and “Telekinesis” Faces Legal Issues, WIRED (Sept. 4, 2025),

[18]Vincent James Hooper, Neuralink, BCIs and the Law: Protecting Mental Privacy, Autonomy and Human Rights, Times of Israel Blogs,

“ EVALUATING DNA EXTRACTION METHODS IN FORENSIC INVESTIGATIONS: BEST PRACTICES, CHALLENGES AND LEGAL IMPLICATIONS ”

AUTHOR : Bhuvaneshwari R., BBA.LLB (Hons.), LL.M
School of Excellence in Law (SOEL)
TNDALU, Chennai

Download Full Article (PDF)

ABSTRACT:

DNA extraction forms the cornerstone of forensic science, serving as the initial and most critical step in analyzing genetic evidence. This study examines various DNA extraction methods, ranging from conventional techniques such as phenol-chloroform and salting out to modern approaches like silica column-based and magnetic bead-based extractions. The choice of method depends on factors including the biological source, DNA quality, and intended downstream applications. Different types of DNA—genomic, mitochondrial, nuclear, cell-free, and plasmid—are explored for their distinct forensic relevance and specific isolation protocols. The forensic significance of DNA lies in its ability to accurately identify individuals, exonerate the innocent, and assist in mass disaster victim identification. Yet, the expanding use of genetic data introduces complex legal and ethical challenges, particularly concerning privacy, consent, and protection against self-incrimination, as recognized under Indian and international legal frameworks. This study further reviews landmark case laws and statutory provisions to evaluate the admissibility, reliability, and evidentiary value of DNA in judicial proceedings. It also assesses the transformative impact of emerging technologies—including automation, artificial intelligence, microfluidics, and next-generation sequencing—on the precision and efficiency of forensic DNA analysis. The research concludes that while technological progress has significantly enhanced the speed and accuracy of DNA profiling, it must be balanced with robust legal safeguards and ethical principles. Harmonizing scientific innovation with judicial integrity remains essential to uphold justice and ensure that DNA evidence continues to serve as a trustworthy pillar of forensic investigation.

keywords :DNA Extraction, Forensic DNA Analysis, Genetic evidence, DNA Profiling, Criminal Justice System

1.1 INTRODUCTION:

Deoxyribonucleic Acid (DNA) is the fundamental genetic material that governs biological function and heredity in all living organisms. DNA extraction is a fundamental process in molecular biology, serving as the initial step in countless scientific investigations. Friedrich Miescher[1] was the first scientist to isolate DNA while studying the chemical composition of cells. In 1869, he isolated leukocytes from material obtained on fresh surgical dressings and began examining the proteins within these cells. While carrying out this work, he discovered a previously unknown substance in the cell nucleus, which he named “nuclein.” This substance, later identified as DNA, displayed unique properties distinct from proteins. his scientific finding, along with the isolation protocols used, was published in 1871 in collaboration with his mentor, Felix Hoppe-Seyler. However, it was only in 1958 that Meselson and Stahl developed a routine laboratory procedure for DNA extraction. They performed DNA extraction from bacterial samples of Escherichia coli[2] using a salt density gradient centrifugation protocol. Since then, the extraction and study of DNA have become crucial in various scientific fields[3]. The efficiency, purity, and yield of extracted DNA significantly influence the reliability of downstream applications such as polymerase chain reaction (PCR), DNA sequencing, genotyping, and forensic profiling for DNA fingerprinting, enabling the identification of suspects and establishing paternity.

DNA extraction involves the disruption of cellular structures to release nucleic acids, followed by the removal of proteins, lipids, and other contaminants. Numerous techniques have been developed to optimize this process, ranging from conventional organic solvent-based methods (e.g., phenol-chloroform extraction) to advanced commercial kits using silica columns or magnetic beads. The selection of a suitable DNA extraction method is often guided by the type of biological sample, the required DNA quality, the presence of inhibitors, and the intended analytical application.

In forensic science, DNA extraction holds paramount importance, as it facilitates the identification of individuals, establishment of biological relationships, and resolution of criminal cases[4]. Newer techniques that are more reliable and efficient have facilitated the advancement in knowledge about the human genome and played a major role in the advent of various fields in science such as gene-editing and personalized medicine. However, forensic samples often present challenges such as low quantity, degradation, and contamination, necessitating the use of highly sensitive and reliable extraction methods. Furthermore, best practices in sample handling, contamination prevention, and quality control are essential to ensure the integrity of the extracted DNA, especially in legal and investigative contexts.[5]

This study aims to provide a comprehensive overview of various DNA extraction techniques, evaluate their suitability for different biological samples, and outline best practices for high-quality DNA recovery. It further seeks to critically examine the challenges, limitations, and forensic significance of these methods, along with their legal implications in forensic investigations. By understanding and optimizing DNA extraction protocols, researchers and forensic practitioners can enhance the accuracy, efficiency, and credibility of genetic analysis.

1.2 STATEMENT OF PROBLEM:

DNA extraction is a crucial step in forensic investigations, yet the process is often hindered by degraded, contaminated, or low-quality samples. The existence of multiple extraction methods creates uncertainty regarding their efficiency and suitability for different forensic scenarios. Additionally, improper handling may affect the reliability and admissibility of DNA evidence in courts. The increasing use of DNA evidence also raises important legal and ethical concerns, particularly relating to privacy, consent, and potential misuse of genetic information. Hence, there is a need to evaluate DNA extraction methods, identify best practices, and examine their forensic and legal implications.

1.3 RESEARCH OBJECTIVES:

To analyze various DNA extraction methods used in forensic investigations, including conventional and modern techniques.
To evaluate the efficiency and reliability of DNA extraction methods, particularly in handling degraded and low-quality forensic samples.
To identify best practices for obtaining high-quality DNA while minimizing contamination and ensuring accuracy in forensic analysis.
To examine the challenges and limitations associated with DNA extraction in forensic contexts.
To assess the legal and ethical implications of DNA extraction and its admissibility as evidence in judicial proceedings.

1.4 RESEARCH METHODOLOGY:

The present study adopts a doctrinal and analytical research methodology, primarily qualitative in nature, focusing on the evaluation of DNA extraction methods in forensic investigations along with their legal and ethical implications. A descriptive approach is used to explain various conventional and modern DNA extraction techniques, while an analytical approach is employed to assess their efficiency, reliability, and associated challenges, particularly in handling degraded forensic samples. The research is based entirely on secondary sources of data, including standard textbooks on forensic science and molecular biology, peer-reviewed journal articles, case laws, statutory provisions, and reports from governmental and international organizations. Data has been collected through library research and online academic databases.

The scope of the study is limited to the scientific evaluation of DNA extraction techniques and their relevance in forensic investigations, with a specific focus on legal admissibility and ethical concerns within the Indian context, supplemented by relevant international perspectives. However, the study is subject to certain limitations, including reliance on secondary data without experimental validation, and the possibility that rapidly evolving technological advancements in DNA analysis may not be fully captured within the scope of this research.

CHAPTER II

BASIC PRINCIPLES OF DNA EXTRACTION

DNA extraction is the process of isolating deoxyribonucleic acid (DNA) from cells or tissues using physical, chemical, or enzymatic methods. It is a fundamental step in molecular biology and genetic analysis, as it enables the study and use of an organism’s genetic material[6].. The quality and quantity of extracted DNA play a crucial role in ensuring the accuracy of downstream applications such as polymerase chain reaction (PCR), sequencing, genotyping, and forensic profiling. DNA can be obtained from a wide range of biological samples depending on the purpose of analysis[7]. Common sources include:

Blood – Whole blood or dried bloodstains
Saliva and Buccal Swabs – Non-invasive sources for human DNA
Semen and Vaginal Swabs – Frequently used in sexual assault investigations
Tissues – Derived from biopsies or forensic remains
Hair, Bone, and Teeth – Useful in cases involving degraded or skeletal remains
Urine, Feces, and Nails – Less common but valuable in specific situations
Touch DNA – Skin cells transferred onto objects through contact

The human body consists of trillions of cells, most of which contain a nucleus, except red blood cells. Each nucleated cell carries two copies of an individual’s genome, which can be used to generate a DNA profile. However, different sample types present unique challenges in terms of DNA quantity, quality, and the presence of inhibitors, all of which must be considered during the extraction process.

DNA used for forensic genetic analysis should possess the following ideal characteristics[8]:

High level of polymorphism
Easy and cost-effective to analyze
Simple to interpret and compare across laboratories
Low mutation rate

2.1 BASIC PRINCIPLES OF DNA EXTRACTION:

Cell Lysis– This step involves breaking open the cell membrane and nuclear envelope to release DNA. It typically uses detergents or enzymes (like Proteinase K) in a buffer solution to disrupt lipid layers.
Removal of Proteins and Inhibitors– Once the DNA is released, contaminants such as proteins, lipids, and polysaccharides are removed. This can be achieved using organic solvents (e.g., phenol-chloroform), proteases, or silica/magnetic bead-based purification systems.
DNA Precipitation and Purification– DNA is precipitated out of the solution using alcohol (usually ethanol or isopropanol) and salt. The precipitated DNA is then washed to remove residual impurities and rehydrated in a suitable buffer for storage or analysis.

Together, these principles ensure the extraction of high-quality DNA, which is essential for the success of subsequent analytical procedures. DNA extraction serves as the cornerstone of numerous scientific and forensic procedures[9]. The quality and integrity of the extracted DNA directly affect the accuracy and reliability of downstream applications such as: Polymerase Chain Reaction (PCR), DNA sequencing and genotyping, Cloning and genetic engineering,

2.2 TYPES OF DNA FOR EXTRACTION PURPOSES:

The type of DNA targeted for extraction depends on the nature of the sample, the intended application, and the cellular compartment from which the DNA originates. Each type of DNA has unique structural and functional characteristics that influence the choice of extraction method and downstream analytical approaches[10].

1. Genomic DNA (gDNA):

Genomic DNA refers to the complete set of DNA found within the nucleus of a cell, encompassing both coding (exons) and non-coding regions (introns and regulatory sequences). It contains the full genetic blueprint of an organism.

Applications: Whole-genome sequencing, gene expression analysis, genetic testing, and forensic DNA profiling.
Extraction Considerations: Requires methods that preserve long DNA fragments and minimize shearing; commonly extracted from blood, saliva, tissue, and cultured cells.

2. Mitochondrial DNA (mtDNA):

Mitochondrial DNA is a small circular molecule found in the mitochondria, separate from nuclear DNA. It is maternally inherited and exists in multiple copies per cell.

Applications: Forensic identification (especially in degraded samples), evolutionary studies, and maternal lineage analysis.
Extraction Considerations: mtDNA is more abundant in degraded or old samples (e.g., bones, hair shafts), making it useful in forensic anthropology and disaster victim identification.

3. Nuclear DNA:

Nuclear DNA refers specifically to DNA housed within the cell nucleus. It includes the chromosomal DNA that encodes the majority of an organism’s genetic information.

Applications: STR profiling in forensics, genetic disease testing, and human identification.
Extraction Considerations: High-molecular-weight nuclear DNA is essential for detailed genetic analyses and must be extracted with care to prevent degradation.

4. Plasmid DNA (in microbes):

Plasmid DNA is a small, circular form of DNA that exists outside the main chromosomal DNA, primarily in bacteria and certain eukaryotic microorganisms. It commonly contains genes that provide advantages such as antibiotic resistance or enhanced survival capabilities.

Applications: Genetic engineering, cloning, recombinant protein production, and vaccine development.
Extraction Considerations: Plasmid DNA must be separated from chromosomal DNA using alkaline lysis and specific purification techniques (e.g., miniprep, midiprep, or maxiprep kits).

Understanding the types of DNA is essential for selecting appropriate extraction methods and designing reliable molecular experiments. While genomic and nuclear DNA dominate most applications, mitochondrial and plasmid DNA play crucial roles in forensic analysis, medical diagnostics, and biotechnology[11]. The nature, size, and abundance of each DNA type influence the complexity and sensitivity required in the extraction protocol.

CHAPTER III

DNA EXTRACTION TECHNIQUES

DNA extraction techniques are designed to isolate deoxyribonucleic acid (DNA) from biological samples for analysis. The method used depends on factors such as sample type, required DNA quality, cost, and downstream applications. These techniques are broadly classified into conventional (manual) and modern (commercial or automated) methods[12].

Steps in DNA Extraction[13]:

Cell Lysis: Disruption of cells to release DNA.
Separation of DNA from Debris: Removing of membrane lipids, cell debris and other unwanted material.
Binding and Purification: Using specific methods to bind and purify DNA.
DNA Precipitation: Releasing the purified DNA from the binding matrix.

3.1 CONVENTIONAL DNA EXTRACTION METHODS:

These methods involve the manual use of chemical reagents and centrifugation steps. Though labor-intensive, they are widely used for their effectiveness and cost-efficiency.

3.1.1 Phenol-Chloroform Extraction:

Principle: Uses phenol and chloroform to denature proteins and separate them from DNA.
Steps: Cell lysis → Protein denaturation → Centrifugation → Aqueous phase collection → DNA precipitation with alcohol.

This method yields high molecular weight DNA that is suitable for a variety of downstream applications, including PCR, cloning, and sequencing. However, phenol-chloroform extraction requires caution due to the use of toxic and volatile organic solvents, and it is not ideal for automation or high-throughput processing. Despite these limitations, it remains a gold standard for DNA purification when purity and integrity are critical, especially in molecular biology and forensic research.

3.1.2 Salting-Out Method:

The salting-out method is a widely used, non-toxic, and cost-effective technique for extracting DNA from biological samples such as blood, tissues, or cultured cells[14].

Principle: Uses high concentrations of salt (e.g., sodium acetate) to precipitate proteins, leaving DNA in solution.
Process: Cells are lysed; salt (e.g., sodium acetate) is added; proteins precipitate and are removed by centrifugation.

The salting-out method is favored in many laboratories because it avoids the use of toxic organic solvents like phenol or chloroform, making it safer and more environmentally friendly. It also produces reasonably pure and high-molecular-weight DNA that is suitable for common molecular biology applications, including PCR, restriction digestion, and genotyping. Still, its simplicity, low cost, and efficiency make salting-out a popular method in teaching, diagnostic, and research labs[15].

3.2 MODERN AND COMMERCIAL DNA EXTRACTION METHODS:

These techniques use ready-to-use kits and are optimized for consistency, speed, and safety. They are widely adopted in clinical and forensic laboratories.

3.2.1 Silica Column-Based Extraction:

The silica column-based DNA extraction method is a modern and widely adopted technique that utilizes the chemical affinity of DNA to silica surfaces under high-salt conditions. It is the foundation of many commercial DNA extraction kits due to its efficiency, speed, and high purity of extracted DNA.

Principle: DNA binds to silica under chaotropic salt conditions while contaminants are washed away.
Process: Lysis → Binding to silica column → Washing → Elution.

Silica column-based extraction offers several advantages: it is fast, easy to perform, requires minimal manual handling, and is scalable for different sample sizes. Nevertheless, this method has become the gold standard in clinical, forensic, and molecular biology laboratories, where reproducibility and DNA quality are paramount.

3.2.2 Magnetic Bead-Based Extraction:

Magnetic bead-based DNA extraction is an advanced and highly efficient method that uses magnetically responsive particles to isolate DNA from biological samples[16]. This technique is particularly favoured in automated and high-throughput laboratory settings because of its scalability, precision, and ability to deliver high-quality DNA suitable for sensitive downstream applications.

Principle: DNA binds to silica-coated magnetic beads; magnets are used to separate DNA from impurities.
This method is suitable for automation and high-throughput applications, allowing for quick and efficient DNA isolation.

3.2.3 Boiling Method:

Principle: Boiling ruptures cells to release DNA.
Advantages: Rapid and requires no reagents.
Disadvantages: Yields low-quality, degraded DNA; not suitable for sensitive assays.

3.2.4 Paper-Based DNA Extraction (FTA Cards):

In this method, DNA is bound to a paper matrix for transport and storage, later eluted for further processing. This approach is used for fieldwork and sample collection in remote areas.

Principle: Cells are lysed on filter paper; DNA is absorbed and can later be eluted.
Applications: Field sample collection, long-term storage.
Advantages: Easy transport and storage; non-toxic.
Disadvantages: Lower yield; limited to small-scale applications.

Choosing the appropriate DNA extraction technique is crucial for ensuring high-quality DNA for accurate downstream analysis. Traditional methods are suitable for cost-effective lab work, whereas modern kits and automated systems offer enhanced speed and reproducibility. Emerging techniques provide innovative solutions for field and clinical diagnostics. Each method presents trade-offs between cost, complexity, and output, making method selection a critical aspect of molecular biology and forensic science.

3.3 DNA EXTRACTION TECHNIQUE FROM CHALLENGING SAMPLES:

Extracting DNA from challenging samples such as degraded tissues, forensic traces (like bones, teeth, and touch DNA), formalin-fixed paraffin-embedded (FFPE) tissues, ancient remains, and low-cellularity fluids requires specialized techniques to overcome issues like low yield, fragmentation, and the presence of inhibitors[17]. Specialized extraction methods and modifications are required to maximize yield, integrity, and purity from such problematic sources.

In forensic science, methods like the Chelex 100 resin technique are employed for trace samples, as it binds metal ions and prevents DNA degradation, though it yields single-stranded DNA. For low-concentration or degraded samples, silica column or magnetic bead-based kits with carrier RNA enhance recovery and purity[18].
Hard tissues such as bones and teeth undergo decalcification with EDTA followed by proteinase K digestion and either organic extraction or kit-based purification. FFPE tissues, which suffer from formalin-induced crosslinking, require deparaffinization with xylene, heat-induced reversal of crosslinks, and enzymatic digestion before extraction using specialized kits[19].
Ancient DNA (aDNA) samples demand strict contamination control and the use of silica or magnetic bead-based methods, often with extended incubation times and damage-repair enzymes. Similarly, cell-free DNA (cfDNA) from plasma or serum, which is highly fragmented and present in minute quantities, requires high-sensitivity extraction kits with prior centrifugation and the addition of carrier RNA[20]. These adapted and often sample-specific protocols are essential to obtaining high-quality DNA for use in forensic investigations, clinical diagnostics, archaeological research, and molecular biology.

3.4 BEST PRACTICES FOR HIGH QUALITY DNA EXTRACTION:

Ensuring high-quality DNA extraction is critical for the accuracy and reliability of downstream applications such as PCR, sequencing, and forensic analysis. The first step toward achieving optimal results is the use of fresh or properly preserved biological samples, as degradation significantly affects DNA yield and integrity.
It is essential to select an appropriate extraction method based on the sample type—whether it’s soft tissue, blood, bones, or forensic trace evidence. Employing clean, nuclease-free reagents and equipment prevents contamination and degradation of nucleic acids.
During cell lysis, proper use of detergents, enzymes (like proteinase K), and optimized incubation times enhances DNA release and prevents shearing. Avoiding vortexing or excessive pipetting of lysates helps preserve high molecular weight DNA.
In methods involving binding matrices (like silica columns or magnetic beads), strict adherence to protocol timings, washing steps, and elution conditions ensures purity and concentration[21]. Additionally, using carrier RNA can improve DNA recovery, especially from low-yield samples.
Post-extraction, DNA should be quantified (e.g., using spectrophotometry or fluorometry) and assessed for purity, and stored properly at -20°C or -80°C to prevent degradation. Maintaining a contamination-free environment, especially when working with forensic or ancient DNA, is also crucial.
By integrating these best practices, researchers and forensic analysts can consistently obtain high-quality DNA suitable for sensitive and precise genetic analysis.

CHAPTER IV

FORENSIC AND LEGAL SIGNIFICANCE OF DNA EXTRACTION

DNA evidence has emerged as one of the most powerful tools in modern forensic science, significantly transforming the investigation and adjudication of criminal cases. Its ability to uniquely identify individuals with a high degree of accuracy has made it particularly valuable in serious offences such as sexual assault, homicide, and mass disaster identification. By analyzing biological materials like blood, semen, saliva, or hair, forensic experts can establish a direct link between the accused, the victim, and the crime scene[22].

At the same time, the growing reliance on DNA profiling raises important legal and ethical considerations. Courts must ensure that such evidence is collected, analyzed, and presented in accordance with established procedures to maintain its reliability and admissibility. Additionally, concerns relating to privacy, consent, and protection against self-incrimination require careful judicial scrutiny[23]. Thus, while DNA evidence strengthens the pursuit of justice through scientific precision, its use must be balanced with constitutional safeguards and legal principles.

FORENSIC SIGNIFICANCE:

DNA Extraction can helps in forensic investigations by,

Individual Identification– DNA is unique to every individual (except identical twins), making it the most reliable biological marker for identifying suspects, victims, or unknown remains.
Linking Suspects to Crime Scenes– DNA extracted from bloodstains, hair, saliva, semen, skin cells (touch DNA), or other biological traces can connect a suspect directly to the scene of a crime[24].
Exoneration of the Innocent– DNA evidence has been used to overturn wrongful convictions, ensuring justice for innocent individuals through post-conviction testing.
Analysis of Minute or Degraded Samples– Advanced DNA extraction techniques allow forensic experts to work with degraded, old, or trace-level samples, such as from skeletal remains or decades-old case files.
Kinship and Paternity Testing– DNA is used to establish biological relationships, which is critical in missing persons cases, disaster victim identification, or inheritance disputes.
Cold Case Resolution– Improved DNA extraction methods enable investigators to re-analyze evidence from unsolved cases, sometimes decades later, using better technology.
Mass Disaster Identification– DNA extraction plays a crucial role in identifying victims in mass casualty incidents (natural disasters, terrorist attacks) where bodies may be fragmented or decomposed.
Sexual Assault and Rape Cases– DNA extracted from semen, vaginal swabs, or clothing is essential for identifying perpetrators and corroborating victim testimony.

These are the ways in which DNA Extraction will play a crucial role in crime investigation with personal identification by extracting and analyzing the biological evidence left behind the crime scene.

4.2 LEGAL SIGNIFICANCE:

4.2.1 Indian Laws and Provisions:

1. The Code of Criminal Procedure (CrPC), 1973:

Section 53 & 53A: Allows medical examination of accused (including collection of DNA) in certain cases like rape and bodily offenses.
Section 164A: Pertains to medical examination of rape victims, including collection of forensic samples.

Indian Evidence Act, 1872:

Section 45: Recognizes opinions of forensic and scientific experts, including DNA analysts, as relevant evidence.
Section 65B: Governs electronic records; chain of custody and proper authentication are crucial for admissibility of DNA reports.

DNA Technology (Use and Application) Regulation Bill, 2019[25]:

This Act Regulates DNA data usage for forensic and civil purposes.
Proposes:
- National and regional DNA Data Banks.
- DNA Regulatory Board for oversight.
- Safeguards on privacy, consent, and removal of DNA profiles.
But it concerns over misuse, data breach, and violation of privacy due to weak safeguards.

Bharatiya Sakshya Adhiniyam, 2023: Section 39 of the Act gives admissibility in opinions of experts, including fingerprint experts, can be used in courts.
Identification of Prisoners Framework: The Criminal Procedure (Identification) Act, 2022 authorizes the collection of biometric and biological samples, including DNA, from convicts and certain categories of accused persons expands the scope of identification beyond traditional fingerprints to include modern forensic techniques.

4.2.2 Case laws and Judgments:

1. Selvi v. State of Karnataka (2010):[26]

Issue: Whether compulsory scientific techniques like nacro analysis, polygraph, and brain mapping violate Article 20(3) of the Constitution.

Judgment:

The Court held that testimonial evidence (like polygraph tests) cannot be compelled.
However, DNA, blood samples, and fingerprints are considered physical evidence, and compulsory collection does not violate Article 20(3).
This case established the constitutionality of compelled DNA collection for forensic purposes.

Justice K.S. Puttaswamy v. Union of India (2017) :[27]

Issue: Recognition of the right to privacy as a fundamental right under the Constitution.

Judgment:

Any DNA extraction and storage must respect the individual’s bodily integrity and privacy under Article 21.
This case also established that DNA profiling must be governed by procedural safeguards and proportionality principles. This case was a landmark judgment gave recognition to forensic investigation for the collection of samples and equal protection to right to privacy of individual rights.[28]

Krishan Kumar Malik v. State of Haryana (2011):[29]

Issue: Whether DNA profiling can be relied upon in a rape case to establish the involvement of the accused.

Judgment:

The Supreme Court upheld the use of DNA evidence as scientifically reliable and useful in proving guilt.
This case reinforced the admissibility and importance of DNA extraction in sexual assault cases.

Bhabani Prasad Jena v. Orissa State Commission for Women (2010):[30]

Issue: Whether courts can compel a person to undergo a DNA test to determine paternity.

Judgment:

DNA testing cannot be ordered routinely.
The court must balance individual privacy and the need for justice.
Significance: Highlighted ethical limitations and privacy concerns in non-forensic DNA extraction.

4.2.3 International Instruments and Guidelines:

1. Universal Declaration on the Human Genome and Human Rights, 1997 (UNESCO)

Emphasizes protection of human dignity in genetic testing and bans discrimination based on genetic characteristics[31].

2. European Court of Human Rights – S. and Marper v. United Kingdom (2008)

Holding: Retention of DNA profiles of innocent individuals violates Article 8 (Right to Privacy) of the European Convention on Human Rights.[32]
Relevance: Set a global precedent for limiting DNA database misuse and respecting individual rights.
Maryland v. King (2013, US): Upheld the routine collection of DNA at arrest — used as valid forensic evidence.
v. Adams (1996, UK): DNA evidence admissible but required strong statistical support due to mixed samples.

Courts are increasingly accepting DNA extraction as conclusive or corroborative evidence, especially in rape, murder, and paternity disputes — provided it is backed by scientific integrity and legal compliance.

CHAPTER V

LEGAL AND ETHICAL ISSUES

DNA extraction, especially in the forensic and biomedical context, raises several important legal and ethical issues. These concerns revolve around privacy, consent, misuse of genetic information, and proper handling of evidence. Below are the key considerations:

5.1 LEGAL ISSUES:

Lack of Comprehensive Legislation:
- India currently lacks a standalone, fully enacted law governing DNA use.
- The DNA Technology (Use and Application) Regulation Bill, 2019, is pending, though it aims to regulate DNA data banks and safeguard individuals’ rights.
Compelled DNA Collection:
- Under Section 53 and 53A of the CrPC, law enforcement can collect biological samples from accused persons without consent in certain criminal cases (e.g., rape).
- Raises questions of bodily autonomy and the right against self-incrimination under Article 20(3) of the Constitution.
Chain of Custody & Evidentiary Integrity:
- Legally admissible DNA evidence requires an unbroken chain of custody.
- Poor documentation, mishandling, or contamination may render the evidence inadmissible under the Indian Evidence Act.

Inclusion in DNA Databases:
- Without judicial oversight, indefinite retention of DNA profiles (including of innocents or acquitted persons) can violate the right to privacy (recognized in Puttaswamy v. Union of India, 2017).
International Data Sharing:
- Cross-border exchange of forensic DNA data (e.g., via INTERPOL) must comply with data protection laws and international treaties to prevent misuse or unauthorized access.

5.2 ETHICAL ISSUES:

Consent and Autonomy:

In forensic contexts, non-consensual collection (e.g., from suspects) is ethically debated, especially when dealing with vulnerable populations[33].

Right to Privacy:

DNA carries sensitive information, including genetic predispositions and ancestry.
Unauthorized extraction or analysis may amount to an invasion of personal and family privacy.

Risk of Genetic Discrimination:

Misuse of extracted DNA by employers, insurers, or state agencies could lead to discrimination based on health or hereditary factors.
Highlights the need for ethical safeguards and regulatory oversight.[34]

Data Storage and Retention:

Ethical concerns arise over how long DNA samples and profiles should be stored.
Long-term retention of innocent individuals’ DNA raises issues of surveillance and profiling.

CHAPTER VI

CHALLENGES AND ADVANCES IN DNA EXTRACTION

6.1 CHALLENGES IN DNA EXTRACTION FROM BIOLOGICAL SAMPLES:

DNA extraction from biological samples poses numerous challenges, particularly in forensic contexts where the integrity and reliability of evidence are paramount. However, the process begins with DNA extraction—a stage that is critical and often vulnerable to multiple challenges. Given the wide range of sample types encountered in forensic scenarios (e.g., blood, saliva, hair, bones), each with varying DNA content and quality, the extraction process must overcome significant biological and environmental obstacles.

One of the most significant issues is DNA degradation, which occurs due to environmental exposure such as heat, moisture, UV light, or microbial activity, especially when samples are recovered from crime scenes after prolonged periods. Selvi v. State of Karnataka, (2010) 7 SCC 263 — emphasizes constitutional protection of bodily integrity, indirectly raising concerns about handling degraded and invasive samples.
Low quantity of DNA is another major hurdle; forensic samples often contain minimal biological material—like touch DNA or shed skin cells—making extraction and amplification difficult. The challenge here is to extract a sufficient quantity of usable DNA without contamination or loss. Highly sensitive amplification techniques like PCR can be used, but these often amplify noise along with signal.
Additionally, the presence of PCR inhibitors such as heme (in blood), melanin (in hair), or humic substances (in soil) can interfere with enzymatic reactions, resulting in poor-quality DNA profiles.
Mixed DNA samples from multiple individuals, frequently encountered in sexual assault or violent crimes, complicate the extraction process further and require advanced statistical interpretation. Separating individual DNA profiles in such mixtures is highly complex and prone to errors. Statistical deconvolution methods are required, and even then, conclusive results are not always possible.
The risk of contamination—either at the crime scene, during transport, or in the laboratory—also threatens the credibility of DNA evidence. The presence of extraneous DNA can compromise the entire forensic analysis. Best practices such as the use of gloves, sterile equipment, and clean rooms are crucial to mitigate this risk.
The type of biological material significantly influences extraction success; while blood and saliva are rich in DNA, bone, hair shafts, and decomposed tissues require specialized protocols.
Furthermore, the time elapsed since deposition of the sample affects DNA quality, with older samples more likely to be degraded. The longer a biological sample is left in uncontrolled environmental conditions, the higher the likelihood of DNA degradation. This is a particular issue in cold cases and disaster victim identification where evidence may be recovered years after the incident.
Infrastructural limitations in forensic labs—such as lack of advanced equipment, trained personnel, and high-end technologies like Next-Generation Sequencing (NGS)—restrict the effective extraction and analysis of DNA, especially in resource-constrained settings.

Together, these challenges highlight the complexity of extracting DNA in a forensic framework and the need for continuous technological and procedural improvements[35].

6.2 TECHNOLOGICAL ADVANCES AND FUTURE DEVELOPMENTS:

Advances in DNA extraction techniques have opened the door to a wide range of applications across various fields, offering more efficient, reliable, and versatile methods for obtaining high-quality DNA[36]. In forensic investigations, DNA extraction from evidence such as hair, blood, or tissue samples is critical for identifying suspects and solving crimes. Advances in extraction techniques enable successful DNA retrieval from degraded or limited samples, providing reliable results that can stand up in court[37]. This has revolutionized the field of forensic science, leading to more accurate convictions and exonerations.

Automation and robotics have been integrated into modern forensic laboratories, enabling machines like Qiagen QIAcube and Thermo Fisher KingFisher to perform DNA extraction with minimal human intervention, reducing errors and ensuring consistency.
Microfluidic or “lab-on-a-chip” technologies now allow DNA extraction and analysis to be performed on small, portable platforms using minute sample volumes. These are increasingly used in fieldwork and disaster zones for rapid forensic analysis[38].
Magnetic nanoparticle-based techniques are being developed for selective and efficient binding of DNA, improving yields especially from degraded or trace biological materials.
Portable DNA extraction and sequencing tools, like the Oxford Nanopore MinION, are enabling real-time, on-site genetic analysis, which is transformative for rapid suspect identification and disaster victim identification in remote or time-sensitive situations.

CHAPTER VII

CONCLUSION

DNA extraction is a fundamental process in forensic science and biological research, enabling the isolation of genetic material from diverse biological sources. The choice of extraction method—ranging from traditional techniques like phenol-chloroform and salting out to modern approaches such as silica column and magnetic bead-based methods—significantly affects the quality and reliability of DNA obtained, particularly in degraded or complex samples.

In forensic investigations, DNA evidence plays a vital role in identifying suspects, exonerating the innocent, and resolving criminal cases. Its admissibility depends not only on scientific accuracy but also on proper procedures, chain of custody, and compliance with legal and constitutional safeguards, including privacy and protection against self-incrimination. While technological advancements like automation and AI have enhanced efficiency and precision, they also raise ethical concerns regarding data protection and consent.

In conclusion, DNA extraction is more than just a laboratory process—it is a crucial intersection of science, law, and ethics. Its continued evolution must be guided not only by innovation but also by a strong commitment to legal standards, human rights, and scientific integrity.

REFERENCES:

BOOKS:

John M. Butler – Forensic DNA Typing: Biology, Technology, and Genetics of STR Markers, 2nd Edition, Elsevier Academic Press, 2005.
David E. Krane and Mei-Huey J. Chu– DNA Techniques in Forensic Science, CRC Press (2006)
Stuart H. James, Jon J. Nordby, Suzanne Bell- Forensic Science: An Introduction to Scientific and Investigative Techniques, 3rd Edition, CRC Press, 2009.
Elsevier, 2019- Extraction and Purification of DNA from Forensic Evidence

JOURNALS:

International Journal of Legal Medicine
International Journal of Forensic Science & Pathology
Journal of Forensic Science Society
Journal of postgraduate medicine
Forensic Science International

REPORTS:

National Crime Record Bureau
National Portal of India
Digital Government of India

STATUTES:

The Constitution of India, 1950
The Code of Criminal Procedure, 1973
Indian Evidence Act, 1872
DNA Identification Act, 1994

BIBILIOGRAPHY:

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[2] K. Elkins, Forensic DNA Biology (Oxford Academic Press, Kidlington, England 2013) 43–45.

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[4] W. Goodwin, A. Linacre and S. Hadi, An Introduction to Forensic Genetics (John Wiley & Sons, Chichester 2011).

[5] W.R. Kuperus, K.H. Hummel and J.M. Roney, ‘Crime Scene Links through DNA Evidence: The Practical Experience from Saskatchewan Casework’ (2003) 36(1) Canadian Society of Forensic Science Journal 19.

[6] J.M. Butler, ‘Fundamentals of Forensic DNA Typing’ (2010) 55(4) Journal of Forensic Sciences 1019.

[7] A. Dhaliwal, ‘DNA Extraction and Purification’ (2013) Materials and Methods 3

[8] S. Tan and B. Yiap, ‘DNA, RNA, and Protein Extraction: The Past and The Present’ (2009) Journal of Biomedicine and Biotechnology 1

[9] Stuart H. James, Jon J. Nordby and Suzanne Bell, Forensic Science: An Introduction to Scientific and Investigative Techniques (3rd edn., CRC Press 2009).

[10] Geoffrey M. Cooper and Robert E. Hausman, The Cell: A Molecular Approach (7th edn., Sinauer Associates 2019).

[11] Robin Williams and Paul Johnson, Genetic Policing: The Use of DNA in Criminal Investigations (Willan Publishing 2008).

[12] N. Gupta, ‘DNA Extraction and Polymerase Chain Reaction’ (2019) 36(2) Journal of Cytology 116.

[13] David E. Krane and Mei-Huey J. Chu, DNA Techniques in Forensic Science (CRC Press 2006)

[14] M.R. Green and J. Sambrook, ‘Isolation of High-Molecular-Weight DNA Using Organic Solvents’ (2017) Cold Spring Harbor Protocols prot093450.

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[17] Walker F M, Hsieh K. Advances in directly amplifying nucleic acids from complex samples. Biosensors (Basel) 2019;9(04):117. doi: 10.3390/bios9040117

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[20] B. Budowle, A.J. Eisenberg and A. van Daal, ‘Validating Forensic DNA Testing Methods’ (2009) 6(9) Electrophoresis 1627

[21] K. Doyle, The Source of Discovery: Protocols and Applications Guide (Promega, Madison 1996).

[22] R. Dabney, M. Meyer and S. Pääbo, ‘Ancient DNA Damage’ (2013) 14(3) Cold Spring Harbor Perspectives in Biology a012567.

[23] S. Tan and B.C. Yiap, ‘DNA, RNA, and Protein Extraction: The Past and The Present’ (2009) Journal of Biomedicine and Biotechnology 1.

[24] National Human Rights Commission (India), Advisory on Use of DNA Technology in Forensic Investigation (2021).

[25] DNA Technology (Use and Application) Regulation Bill, 2019 (India)

[26] Selvi v. State of Karnataka, (2010) 7 SCC 263.

[27] Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC1

[28] M. Khosla, “DNA Profiling and the Right to Privacy,” Indian Journal of Constitutional Law, Vol. 7 (2013), pp. 125–138.

[29] Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC1

[30] Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC633

[31] United Nations Educational, Scientific and Cultural Organization (UNESCO), Universal Declaration on the Human Genome and Human Rights, 1997, Article 5.

[32] S and Marper v. United Kingdom, (2008) ECHR 1581, (2008) ECHR 1581 — held that indefinite retention of DNA samples violates Article 8 of the European Convention on Human Rights (right to privacy).

[33] International Society for Forensic Genetics, “Recommendations on Ethical Issues in Forensic Genetics” (2010) 4(4) Forensic Science International: Genetics 273–280.

[34] Graeme Laurie, Genetic Privacy: A Challenge to Medico-Legal Norms (Cambridge University Press, 2002) 197.

[35] S. Krimsky and T. Simoncelli, Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties (Columbia University Press 2011) 112–134

[36] S.J. Kinaston et al., ‘Emerging DNA Technologies in Forensic Science’ (2021) 50 Forensic Science International: Genetics 102383.

[37] H.C. Lee and R.E. Gaensslen, Advances in Forensic Science (CRC Press 2001).

[38] J.M. Butler, Advanced Topics in Forensic DNA Typing: Methodology (Elsevier Academic Press 2011) 525–540.

“Trafficked and Criminalized : Rethinking Juvenile Justice for Vulnerable Children Subjected to Exploitation”

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Author: Prajukta Mukherjee / BA LLB 5^th year, Law student / ICFAI University Tripura.

Abstract

It is deeply concerning that rather than nurturing of innocent children who have the potential to shape society’s future are deprived of their childhood innocence and compelled to commit offences that they do not understand because of immaturity. Human trafficking is the dark world where everything is built upon cruelty and exploitation. The critical examination of the issue in the writing is the discrepancy between the legal and ethical perspective regarding the status of the victims and criminals. Trafficked children are considered victims under international and domestic laws, including the UN Convention on the Rights of the Child, the Juvenile Justice Act of India, and the Protection of Children from Sexual Offences (POCSO) Act. These laws are criticised for failing to identify, implement, and sensitise the process turning the protection mechanism into victimising apparatus. Through judicial interpretation and case analysis, the policy and practice discrepancy that led to the confusion between protection and punishment ambiguity is revealed. The paper proposes a reform oriented, right based humanitarian consideration and legal obligation thereby compelling the justice system to view trafficked children as victims or survivors deserving restoration, dignity, and reclaimed childhood. The paper advocates for a Jurisprudence which extends for protection to the vulnerable without compromising justice.

Keywords:- Child Trafficking, Juvenile Justice System, Victim Criminalisation, Child Protection Law, Right-Based Legal Framework.

Between Innocence and Injustice: An Introduction

Child trafficking is still one of the most grievous human rights violations, taking advantage of the vulnerability of children through deception, coercion, and abuse.[1] Despite all the improvements in the legislative framework, thousands of minors continue to fall victim to forced labour and prostitution, among other types of violence. Indeed, it falls within this context that we witness a disturbing dilemma, victims of child trafficking are criminalised under the law, rather than being acknowledged as victims in need of assistance. This paper provides an analysis of the legal and systemic deficiencies, which facilitate the criminalisation of children who have been trafficked, particularly in countries such as India, where the Juvenile Justice (Care and Protection of Children) Act, 2015 coexists with repressive criminal laws. An assessment of gaps in fulfilling global legal obligations regarding the protection of human rights in a certain country will reveal the loopholes in identifying the victims, exercising compassion towards children in court proceedings and offering assistance with rehabilitation. International frameworks such as the UNCRC and the Palermo Protocol protect minors from criminalisation, but those concepts are not implemented at domestic levels, for example, in the US. Structural flaws growing from a lack of police and judiciary sensitisation to ineffective identification mechanisms result in the misidentification of trafficked children as “children in conflict with law.”[2] As such, these children are subjected to the threat of criminal prosecution, imprisonment, and societal stigma, which further diminishes their chances of recovery. It is crucial to recognise this disconnect in order to ensure compliance with international obligations and uphold the integrity of the juvenile justice system.

While examining statutory models, empirical case studies, and global standards, the paper promotes a rights-based, trauma-sensitive juvenile justice approach.[3] The primary argument is that criminalising trafficked children violates the principles of justice and encourages exploitation cycles. The research thereby urges legal reform and systemic coherence to the effect that law can become a tool of protection rather than punishment for the most vulnerable.

Legal Definitions and Jurisdictional Scope of Child Trafficking

Human trafficking, especially when it involves children creates horror, constituting one of the gravest violations of human rights, freedom, and dignity. It undermines the moral and legal fabric of societies by turning children, who should be shielded by protection and care, into objects of exploitation. At the global level, the most authoritative definition of trafficking in persons is provided by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, also known as the Palermo Protocol, 2000. According to this protocol, human trafficking is defined generally as the activity involved in procuring or transferring people using coercion and deception for exploitation purposes . In the case of children, however, the Protocol removes the requirements to prove coercion or consent on the grounds of recognising that the vulnerability of a child nullifies any form of supposed agreement. The UNCRC complements these provisions by placing an absolute obligation on state parties to take effective measures to prevent the abduction, sale, and trafficking of children.[4] Together, these instruments create a global legal framework that places the protection of trafficked children in a broader human rights context. India’s domestic law also heavily reflects these international commitments, even though the framework is still somewhat spread across multiple statutes. Trafficking is listed as an offense in Section 370 of the Indian Penal Code, which has since been replaced by Section 143 of the Bharatiya Nyaya Sanhita, 2023.[5] The list also includes other forms of exploitation, such as forced labor, slavery, servitude, and sexual exploitation. This is further supported by the Juvenile Justice (Care and Protection of Children) Act, 2015, which classifies trafficked children as needing care and protection and places more emphasis on rehabilitation and reintegration than retaliation. Together, the Protection of Children from Sexual Offences (POCSO) Act, 2012, provides extensive protections against sexual abuse, which is often a central component of crimes related to human trafficking. Together, these legal tools create a robust, rights-based framework that both criminalise human trafficking and works to restore the child’s dignity. The current difficulty is making sure that these laws are read and applied with a child-sensitive perspective, putting protection, empowerment, and long-term justice above prosecution.

The Criminal Law Dilemma: Victim, Offender, or Both?

Instead of viewing children who are trafficked and forced into illegal activities like drug sales, prostitution, or theft as victims, the law often views them as criminals. This presents a serious ethical and legal dilemma: should these children be shielded and given rehabilitation, or should they be punished for the crimes they were coerced into committing? This inconsistency becomes particularly evident in India when contrasting various laws.[6] While the Juvenile Justice (Care and Protection of Children) Act, 2015 acknowledges that children involved in such activities may actually be victims in need of care and protection, the Indian Penal Code (IPC) punishes activities like drug trafficking and sex work. But in practice, police frequently detain and prosecute children who have been trafficked without first verifying if they were forced to commit such acts.[7] This system fails to address the trauma that they have gone through and often usually results to secondary victimisation.[8]

International human rights law is more explicit. The UN Convention on the Rights of the Child and the UNODC Model Law against Trafficking in Persons both provide that the children being trafficked must not be punished for acts they commit due to trafficking. Our country India lacks a clear procedural safeguard to implement this principle firmly.[9] In order India needs a clear and consistent legal framework that prioritises protecting trafficked children over prosecuting them in order to address this issue

Juvenile Justice in Theory and in Practice to Recent Scenario.

The foundation of the juvenile justice system is the belief that young people who are in legal trouble are essentially developmentally and psychologically distinct from adults. Juvenile justice, which is rooted in the idea of rehabilitation as opposed to retaliation, seeking reform rather than punishment.[10] The child-focused policy recognises that juvenile delinquency is often the consequence of some form of mistreatment, neglect, exploitation, or the absence of any social infrastructure, which makes rehabilitation both possible and necessary for them to turn around their life by acting quickly and compassionately. The Juvenile Justice (Care and Protection of Children) Act, 2015 in India reflects the concept of rehabilitation. This act has provisions that address children who are found to be in conflict with the law. The Act establishes Child Welfare Committees and Juvenile Justice Boards, specialised forums designed to ensure child-friendly proceedings.[11] The key aspects such as age determination are managed with care to ensure the child is not penalised in any way. The progressive nature of this legislation is also seen through its provisions for bail and prohibiting confinement in jail alongside adults. Plans for tailored rehabilitation programs will intend to ensure that all the needs of each particular child are being addressed. Nevertheless, even with such a comprehensive approach to protect the rights of children, the system may fail because of existing biases, lack of training, and the poor infrastructure, making it hard for this legislation to be applied appropriately. Thus, far from getting protection and rehabilitation, many children, especially those who get involved in trafficking and other heinous crimes, end up being stigmatised and treated as offenders.

Rights-Based Approach and International Guidelines

Placing the child at the center of all legal, policy, and procedural frameworks is a key component of a rights-based approach to juvenile justice, particularly for children who have been trafficked. International human rights instruments, most notably the 1989 United Nations Convention on the Rights of the Child (UNCRC), to support this.[12] In view of the fact that the UNCRC is a legally binding international agreement which was signed in 1992 by India, it is clear that this convention guarantees the protection of all children against ill treatment, abuse, exploitation, neglect, violence, and trafficking, as well as granting children the right to special treatment in case they violate the law not knowingly. Articles 37 and 40 of the Convention explicitly ensure that detained children are treated with respect, kept apart from adults, and subjected to procedures that prioritise reintegration and rehabilitation rather than punishment. [13] To supplement the UNCRC is the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2000), which India acceded to in 2005. The Protocol enhances State parties obligation to criminalise and prevent exploitation of children for commercial sex and other forms of trafficking. It underlines the importance of addressing trafficked children as victims, not perpetrator even if they were compelled to engaged in illegal acts, as an immediate consequence of exploitation.

International guidelines formulated by institutions like UNICEF and the United Nations Office on Drugs and Crime (UNODC) are also crucial. UNICEF facilitates child-sensitive justice and sets standards on diversion, non-custodial sanctions, and restorative justice.[14] According to the UNODC, through its “Model Law against Trafficking in Persons” and its opinions of reforms for juvenile justice, the adoption of children-specific requirements, identification process, and protection is encouraged in the fight against human trafficking. These guidelines ensures proper identification, trauma-informed care, provision of legal assistance, and community-based rehabilitation for victims.

India’s national law, specifically the Juvenile Justice (Care and Protection of Children) Act, 2015, accords with most of these global commitments. But enforcement is still inconsistent. Child victims of forced labour, commercial sexual exploitation, or drug trafficking are often incorrectly identified as perpetrators instead of being safeguarded as victims.[15] An approach based on rights requires a shift in paradigm from criminalisation to care backed by proper training, institutional change, and cross-sector collaboration to ensure the international standards India has agreed to[16]. Bridging this gap is essential not only to ensure compliance with international law, but also to affirm the inherent dignity and rights of every child is secured.

Systemic Gaps in Identification and Protection of Victims

In the face of available progressive laws and international obligations, children who are trafficked are often misidentified as delinquents within the juvenile justice system.[17] This is largely due to the combination of factors, lack of awareness, and inadequate training on the part of the frontline responders. For example, the policemen who happen to be the frontline workers may, at times, tend to focus on the crime that is being perpetrated and ignore the situation through which the child may have been forced into criminal activity. This means that when coerced children participate in selling drugs, stealing, and engaging in prostitution activities, they are apprehended for offences under criminal law without taking into account their victim status. These institutions often lack the specialised training, resources, or sensitivity to identify indicators of trafficking and trauma.[18] Medical examinations are often conducted in a mechanical or insensitive manner, with inadequate attention to the child’s psychological condition. CWCs, required to be the first line of protection, are plagued by delays, insufficient coordination with NGOs and the police, and saturated caseloads that imperil individualised attention.

Furthermore, the lack of trauma-sensitive and child-friendly processes undermines the protective purpose of the system. Interviews take place in apprehensive settings, in the absence of trained counsellors or interpreters, and without ascertaining the informed consent or comprehension of their rights on the part of the child. In addition to re-traumatising the child, this increases the likelihood of non-compliance and false accusations. In actuality, the system occasionally disregards the child’s best interests in favor of procedural efficiency. Closing such gaps in the system will call for legal reform as well as building capacity, inter-agency coordination, and institutionalising trauma-informed practices that respect the rights and dignity of trafficked children.

Real‑World Case Studies: Re‑Victimisation in the Justice System

Although the goal of the legal system is to safeguard and preserve the rights of all citizens, its interactions with child victims intensify the trauma experienced by the children. Re-victimisation happens when insensitive handling, rigid legal formalities, and procedures and processes execute the harm that victims have already endured as a result of abuse, neglect, or exploitation. Through actual case studies, this section illustrates how, even in situations where protective measures are supposedly in place, children may be subjected to repeated emotional, psychological, and social stress and trauma during the proceedings. Analysis of such cases comes up with important information about systemic gaps, points out the human toll from inconsistent or insensitive judicial practice, and emphasises the urgent need for child-centered reforms that place safety, dignity, and holistic well-being above procedural confidence.

Sunaina’s Case (Delhi)

Sunaina, who was a sex worker trafficked from G.B. Road, got a rare amount of justice due to her powerful “victim‑witness testimony” and the efforts of NGOs. A magistrate, who had undergone an NGO‑organised training, identified Sunaina’s sincere disclosure and held her exploiter guilty under the Immoral Traffic (Prevention) Act.[19] Additionally, she was granted compensation, both through court judgment and a newly formulated government victim compensation program. Yet the result unveiled deeper systemic failures. Sunaina had to wait for years after the conviction to receive her compensation and, even after acquittal, still suffered the brunt of her exploitation. She failed to get reinserted into society due to prejudice in society, inadequate education, and a weak support system.

Patna High Court Case – Misplaced Custody of a Trafficked Minor

In a serious misuse of legal safeguards, the Patna High Court considered the case of a 15-year-old girl who was trafficked by her maternal uncle and was compelled into prostitution. She was released into the wrong custody under the pretext of the Immoral Traffic (Prevention) Act.[20]

The court severely criticised the Special Judge for his inability to ensure obligatory provisions under the Juvenile Justice Act, especially the requirement to ensure the identity of the custodian before releasing the child. The judgment pointed out the way procedural expedience and disregard for statutory protection can compromise trafficked children by leaving them vulnerable to further abuse.

Pinki v. State of Uttar Pradesh – Systemic Laxity Enabling Trafficking

The Supreme Court’s decision In Pinki v. State of Uttar Pradesh revealed another aspect of failure, that of the state itself.

A court set aside a High Court order granting bail to a trafficker who had sold a child for ₹4 lakh, terming the ruling “shockingly lax.” The bench openly criticised the state’s apathy in not opposing the grant of bail, cautioning that such negligence will encourage traffickers who exploit legal loopholes in the law, including the allegedly protective juvenile proceedings, to go on victimising children.[21]

Rehabilitation and Reintegration: Around Law to A Lived Reality

The rehabilitation and integration of people who have been exploited, abused, or trafficked is crucial and involves more than just laws, it involves real healing. Whereas laws may allow for the protection and assistance of the victims, implementation often remains inadequate. Counseling is crucial in helping the victim deal with their experience and restore their confidence. Failure to provide the victim with counseling would lead to partial and/or ineffective healing. Equally important is access to education and vocational training, which enables individuals to rebuild independence and reintegrate into society.[22] Reintegration into the community, however, is one of the most challenging phases. Survivors often face social stigma, discrimination, and distrust, which can lead them to stay isolated and be re-victimised. State institutions and non-governmental organisations (NGO’s) are key to overcoming the gap between practice and policy.[23] While state institutions have the funding and mandate to offer long-term care, legal services, and systemic reform, NGOs typically lead the way in providing specialised care, safe shelters, and community outreach. Barriers still exist. Often, there is insufficient infrastructure to provide care voluntarily, particularly in under-resourced or rural areas. Funding for long-term reintegration programs is still insufficient, and interagency coordination is frequently fragmented or poorly coordinated.

Furthermore, survivors who are repeatedly exploited are likely to be returned to the same socioeconomic circumstances that made them vulnerable in the first place. The cycle can reoccur unless there is a structural change. Effective rehabilitation and reintegration require more than just good intentions they require dedicated funding, sustained institutional support and a shift in societal perceptions.[24] Society can only ensure that survivors are not only protected but also given the tools they need to thrive by transforming legal requirements into tangible, wide-ranging support systems.

Judicial and Policy Inconsistencies through Observance

Significant judicial and policy inconsistencies continues to affect the legislative regime for protecting and providing for the welfare of children, leading to inconsistent interpretations and uneven application. Inconsistent legal interpretations and rulings undermine the coherence of jurisprudence and undermines public confidence in the legal system, especially in matters that are concerned to child rights, abuse, or custody. For instance, varying interpretations of the “best interest of the child” standard have led to inconsistent court decisions, with some giving greater weight to biological ties than to the child’s psychological or emotional needs.[25] These inconsistencies highlights the need for more coherent and consistent interpretive approaches by the Judiciary.

Judges, public prosecutors, and child advocates who are responsible for both enforcing the law and protect the tender interests of the children play a significant role in resolving this problem. Nevertheless, the lack of sensitivity and specialised training among these agents result in their decision-making, which tends to be legally sound but socially and psychologically inadequate. In some cases, judges becomes overly focused on procedural formalities while neglecting trauma-informed approaches, whereas public prosecutors are not properly equipped with a child-centric approach for a proper case management. Although functioning as an intermediary between the child and the legal process, child advocates often faces structural and institutional barriers that limits their effectiveness. Comprehensive judicial sensitisation and policy harmonisation are essential to resolving these disparities[26]. Judicial officers should receive regular training in global best practices, trauma-informed care, and child psychology. In a similar vein, policy guidelines must be revised to promote consistency in interpretations of child welfare laws, incorporating interdisciplinary contributions from education, psychology, and social work.[27] The legal system can move towards a consistent fair decisions that truly reflect children’s rights and best interests by supporting an integrated approach that better secures the future of children.

Reform, Restore, Reintegrate: Towards a Restorative Child Justice Framework

A comprehensive, multifaceted approach founded on reform to address prevention and meaningful participation is required to address this persistent gaps in the child justice system. This begins with establishing clear, standardised procedures to identify vulnerable children, particularly those which are found to be in conflict with the law, so that early intervention can becomes consistent and bias can be reduced. Recognising children as right holders in need of protection, the system can shift from criminalisation to support. Community based alternatives should be strengthened that prioritise rehabilitation over formal court proceedings, diversion programme needs to be strengthened and expanded.[28] When implemented effectively diversion provides children an alternative to detention to be reintegrated into society through care, mentoring, and structured support. Alongside such initiatives, complete psychosocial rehabilitation especially access to mental health services, education, and vocational training-is essential in restoring dignity to children, building their resilience, and offering them opportunities to reintegrate into society in a meaningful way. A child-friendly justice system must operationalise the “three Ps”: prevention, protection, and participation. Preventive policies and measures should address structural vulnerabilities such as poverty, abuse, and lack of access to education, while protection frameworks must embed child-friendly procedures at every stage of the legal and administrative process.[29] At the same time, encouraging active involvement in decision-making processes regarding their lives empowers children and increases their agency in line with international obligations under the UN Convention on the Rights of the Child. Ultimately, juvenile justice must shift from being punitive to being restorative and healing oriented. In restorative justice, children should be met with compassion, empathy, support, and reintegration rather than punishment. This system helps build a future based on care, fairness, and accountability through rehabilitation and restoration of dignity. It will, therefore, ensure that juvenile justice is not just a legal procedure but a compassionate process, emphasising the commitment of society to its most vulnerable members.

Conclusion: Maintaining Rights & Reclaiming Dignity

The overlap between juvenile justice and human trafficking can be considered one of the most pressing and challenging issues of child welfare and rights across the globe. All too often, trafficked children end up being overlooked, prosecuted, or falling through the cracks of systems that fails to fully recognise the vulnerability of their situation or the suffering that they have endured. It clearly justifies the necessity for reforms in the existing framework, with the ultimate aim being the reform of the justice systems in a way that recognises the dignity of trafficked or exploited children. The existing framework tends to prioritise prosecution over protection, often overlooking the lived experiences of the child. In order for things to change for the better, there is a need for a more responsive and child centered justice system the one that focuses on protection, prevention, detection, rehabilitation, and the active participation of the child. No child should ever get prosecuted for acts that were being committed under coercion or against their will. Justice that considers the child with empathy, views him or her as a right bearing individual rather as an offender stripped of dignity from society, and restores agency to the child to reclaim his or her autonomy and self-respect is true justice. Restorative justice therefore is just not merely an abstract concept but a fundamental requirement that reflects the moral foundation of law. Through safeguarding the rights of trafficked children and restoring their dignity, we come closer to establishing justice that upholds not just law but morality as well.

[1] UNODC, Global Report on Trafficking in Persons 2022 (UNODC 2022) 14.

[2] Sandeep Suresh, ‘Criminalisation of Child Trafficking Victims in India: A Critical Analysis’ (2021) 12 Indian Journal of Human Rights 45.

[3] National Crime Records Bureau (NCRB), Crime in India 2021, 78-80.

[4] United Nations Convention on the Rights of the Child 1577 UNTS 3, arts 35–36.

[5] Indian Penal Code 1860, section 370 (repealed by Bharatiya Nyaya Sanhita 2023, s 143).

[6] Juvenile Justice (Care and Protection of Children) Act 2015 (India) s 1(4)(i)‑(ii).

[7] UNODC, Model Law against Trafficking in Persons (United Nations 2009) art 10

[8] National Human Rights Commission (NHRC) of India, Study on Child Trafficking in India (NHRC 2022) 45–47

[9] S Suresh, ‘Criminalisation of Child Trafficking Victims in India: A Critical Analysis’ (2021) 12 Indian Journal of Human Rights 45.

[10] Thomas Grisso and R G Schwartz, Youth on Trial: A Developmental Perspective on Juvenile Justice (University of Chicago Press 2000) 7–9.

[11] Juvenile Justice (Care and Protection of Children) Act 2015 (India) ss 27–29.

[12] United Nations Convention on the Rights of the Child 1577 UNTS 3 (UNCRC).

[13] Convention on the Rights of the Child, adopted 20 November 1989, United Nations, arts 37–40.

[14] United Nations Office on Drugs and Crime (UNODC), Model Law against Trafficking in Persons (United Nations 2009) art 10.

[15] Juvenile Justice (Care and Protection of Children) Act 2015 (India) ss 27–29.

[16] Michael Tonry, Youth Crime and Juvenile Justice (Oxford University Press 2004) 23.

[17] UN Committee on the Rights of the Child, General Comment No 24: Children’s Rights in the Child Justice System

[18] UNICEF, Child-Sensitive Justice: The Case for Reform (UNICEF 2016).

[19] Sunaina Case, as reported in Centre for Equity Studies Report on Trafficked Women in India, 2019.

[20] Patna High Court, In Re Custody of a Trafficked Minor (2021)

[21] Pinki v State of Uttar Pradesh (2023) 6 SCC 412.

[22] UNICEF, Child Protection and Rehabilitation: Guidelines for Reintegration, 2015.

[23] Human Rights Watch, Breaking the Chains: Child Slavery, Forced Labour and Trafficking in India

[24] United Nations Office on Drugs and Crime (UNODC), Toolkit to Combat Trafficking in Persons (UNODC 2008) 301–304

[25] Gaurav Nagpal v Sumedha Nagpal (2009) 1 SCC 42

[26] National Judicial Academy (India), Child-Friendly Courts and Judicial Sensitisation: Training Module (NJA 2020) 12–15

[27] United Nations Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime ECOSOC Res 2005/20, paras 38–45

[28] United Nations Standard Minimum Rules for the Administration of Juvenile Justice GA Res 40/33, Rules 11–19

[29] UN Committee on the Rights of the Child, General Comment No 12: The Right of the Child to be Heard (2009)

“THE IMPACT OF THE MEDIATION ACT- 2023,ON ACCESS TO JUSTICE IN INDIA”

AUTHOR :- Swetha Dutta / Law Student / BA LLB(Hons.) / Third Year/ SVKM’s Narsee Monjee Institute of Management Studies, School of Law, Bengaluru

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ABSTRACT

Since 2023, the Indian judicial system has witnessed constant issues throughout many states, resulting in a serious lack of judicial time occurring throughout multiple levels of the court systems located across India; hence, over five crore open cases remain open for all levels. Since this issue has caused the executive branch to violate the Constitution of India, for millions of litigants, the right to access justice as found in Articles 14, 21, and 39A requires an adequate and effective means of resolving disputes – a requirement that has not yet been met as a result of the unfinished nature of the current statutory and caselaw system of resolution under section 89 of the Code of Civil Procedure, 1908 and the Commercial Courts Act, 2015.

The Mediation Act establishing an independent mediation system includes a requirement for pre-court mediation, which may limit access to courts for less fortunate individuals, in addition to the possibility of greater access by creating opportunities for resolving disputes without attending court. Therefore, this study will look at three areas: (1) the legislative text; (2) the effect of the legislation against constitutional guarantees; and (3) whether it democratises access to civil dispute resolution.

Keywords: Mediation Act 2023, Access to Justice, Pre-litigation Mediation, Alternative Dispute Resolution, Mediation Council of India, Singapore Convention.

INTRODUCTION

Accessing justice is not only a procedural right, but it is also a substantive constitutional guarantee under Articles 14, 21 and 39A of the Constitution of India. The Supreme Court of India has confirmed in Anita Kushwaha v Pushap Sudan that the right to access a court of law is an essential part of the fundamental right to life set out in Article 21. [1]However, due to an ongoing pendency crisis that has plagued the Indian judicial system for decades and has resulted in more than 5 crore cases pending in 2023, this guarantee has been rendered meaningless for countless litigants.[2]

As a result of this situation, the Government passed the Mediation Act, 2023, which was given Presidential assent on September 14, 2023. [3] The Act establishes a stand-alone statutory framework that builds on Section 89 of the CPC, 1908 and the Commercial Courts Act, 2015, which previously existed. The most important changes included in this Act are: making mediation a mandatory pre-litigation step, creating the Mediation Council of India to act as a permanent regulatory authority and providing a basis for India to adhere to the Singapore Convention on Mediation.[4]

The paper looks at how the Mediation Act of 2023 affects access to justice in India. The author analyses the statute, its provisions, as well as other weaknesses of the institution compared to the guarantees of equality and international models. The author concludes that, although progressive, achieving the Act’s goal of making access to dispute resolution more democratic will depend on developing an inclusive approach through the establishment and implementation of effective processes and systems.

STATEMENT OF PROBLEM

Although the Law Commission Report (1988) [5]and Supreme Court ruling, Salem Advocate Bar Association, have supported the concept of “mediation”[6], until the passage of the “Mediation Law 2023” there has been no formal legal framework to facilitate this concept, mediation has historically been performed in reliance upon Section 89 of the CPC (1908), which allows for the Court to refer matters to mediation. However, there are no prescribed procedures, no means to hold Mediation Practitioners accountable or for enforcing mediation settlements, shortcomings that were eloquently highlighted by the Supreme Court in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co.[7]

This paper identifies a research gap in the lack of critical scholarship assessing whether the Mediation Act 2023 is genuinely promoting or restricting access to justice for disadvantaged litigants through the Act’s mandatory pre-litigation mediation provision. Additionally, with more than five crore pending cases and the judiciary having less than one-half of the international judge-to-population ratio, both the Mediation Act’s purpose and implementation will have significant ramifications with respect to the constitutional protections provided for in Articles 14 and 21.

LITERATURE REVIEW

Nadja Alexander, International and Comparative Mediation: Legal Perspectives (2009)

In her article, Alexander explores the different legal and regulatory frameworks related to mediation throughout the European Union, the United States and Singapore, including considerations of confidentiality, enforceability and how mediators are regulated in each jurisdiction. [8]She finds that the efficacy of mediation in terms of being able to deliver justice is largely dependent on there being clear statutory provisions and institutional support for mediation, and hence “where there is no legislative support for mediation, the results are inconsistent, and parties lose confidence in the mediation process”.

Alexander’s major conclusion, that jurisdictions with specific mediation statutes as well as professional regulatory bodies achieve better outcomes (i.e., higher levels of settlement) and greater party satisfaction than those jurisdictions without such laws and regulations, is well supported by empirical comparisons between various EU and UNCITRAL legislative materials providing a high degree of credibility and transferability of this information to the context of India. This article provides the benchmark for this study, as India’s Mediation Act (2023), specifically about the Mediation Council of India and the enforceability of mediated settlement agreements, is being evaluated through Alexander’s framework. As such, her framework provides support for the assertion that the institutional design of India’s Mediation Act broadly meets the criteria of international best standards (simultaneously highlighting implementation gaps), resulting in the reduced ability of the Act as a vehicle for access-to-justice.

Sriram Panchu, Mediation Practice and Law (2nd edn, 2015)

Panchu’s treatise is an Indian legal text that serves as the foremost authority on mediation and its practice within the context of laws governing mediation. [9]He discusses the theory behind what mediation is, the procedural process for mediation as governed under the Code of Civil Procedure (CPC), and its relationship and interactions with proceedings within the courts and draws heavily upon the Supreme Court cases as well as Law Commission Reports and International Best Practices.

As it relates to this paper, Panchu’s key finding was that without a statutory framework for mediating cases in India, there has been inconsistent application and implementation of court-annexed mediation, and the resulting low rates of settlement are a direct result of how Section 89 of the CPC imposes a patchwork system of mediation. These findings confirm that there was a pre-existing legal vacuum before the enactment of the Mediation Act, 2023.

Panchu’s work is relevant to Research Question 1 of this paper’s doctrinal analysis on the institutional framework created by the Mediation Act, 2023. The structural deficiencies identified by Panchu for court-annexed mediation serve as the normative baseline from which to evaluate the innovations launched by the Act, especially the Mediation Council and the provisions for enforcement of mediation agreements.

Hazel Genn, Judging Civil Justice (2010)

Genn provides a compelling argument against compulsory Alternative Dispute Resolution (ADR) from an access-to-justice standpoint – based on a body of data from civil justice surveys in England and Wales.[10]She claims that parties are sometimes coerced into mediating when they should have the right to have their case heard by a Court, particularly when there are issues of unequal negotiating power, such as when one party is not legally represented or is economically dependent on the other party.

Genn shows through her application of empirical and methodological rigour that mandatory mediation programs without adequate safeguards or publicly funded legal assistance usually result in an advantage for the more powerful and sophisticated party. The data she uses is based on both the Official Civil Justice and independent survey statistics, both of which are well-known and have been used in many comparative studies.

Genn’s research forms an essential component of the current paper’s critical analysis of the mandatory mediation requirement before litigation under Section 5 of the Act (Research Question 2). Genn’s framework provides the empirical and theoretical basis for assessing whether the mandatory mediation experience in India may mirror some of the access to justice issues that she identifies in England and Wales.

Sanjay T R, ‘Mandatory Pre-litigation Mediation: Boon or Bane?’ (2023)

Sanjay T R offer the most up-to-date analysis of the Mediation Act, 2023, in terms of contemporary Indian scholarship. He focuses on the mandatory pre-litigation mediation provision of the new act and uses a range of sources from the historical experience in implementing Section 12A of the Commercial Courts Act, 2015, including Parliamentary Debates, Statement of Objects and Reasons for the Mediation Act, and a comparative assessment of the Mediation Act with the Commercial Courts Act, 2015 record.[11]

Sanjay T R conclude that the history of BPL litigants under the Mediation Act and the Commercial Courts Act demonstrates that both acts have lacked adequate legislative guidance for the recognition of free legal aid-supported mediation, and that the Section 12A implementation experience further exemplifies a lack of willingness to fund additional infrastructure necessary for the expansion of mandatory mediation programmes with their supporting infrastructure. Both findings are attained through the analysis of official legislative proceedings (Parliamentary Proceedings) and government reports. Thus, his methodology has been demonstrated to be very robust, and their conclusions are sufficiently credible.

The research and conclusions offer the best contribution to Research Question 2 and Research Question 4 of this paper. In addition, Sanjay T R’s Identification of an access to justice gap for BPL litigants and the working relationship between the Mediation Act and the Legal Services Authorities Act, 1987, present the most important and pressing subject matter for consideration within the framework of Reform Recommendations made by this paper.

RESEARCH QUESTIONS

The objective of this article is to explore four important research questions, all of the Mediation Act of 2023

Is the institutional framework established by the Mediation Act of 2023 coherent and inclusive, thereby promoting access to justice in India?
Does the Mediation Act of 2023 limit or expand access to justice for vulnerable groups in society by requiring pre-litigation mediation for all cases?
How does the Mediation Act of 2023 provide for the enforcement of mediation settlement agreements and support India’s alignment with international standards for mediation?
What legislative and policy changes need to be made to fully implement the access to justice potential of the Mediation Act of 2023?

Research Methodology

A doctrinal research approach is taken in this paper by means of thorough research of primary legal texts, which include the Mediation Act of 2023, the Code of Civil Procedure (1908), the Commercial Courts Act (2015), and decisions or case law issued by the Supreme and High Courts, as well as secondary material, including Law Commission Reports, debates from Parliament, journal articles and plans for future reform from a global perspective; for example, the Singapore Convention on Mediation and the Mediation Directive by the European Union.

The use of a doctrinal approach is fitting because this paper will be focusing on an analysis, interpretation and critique of the statutory provisions and their effect on the constitutional right of access to justice and not on data collection using empirical methods as would be the case with a purely empirical approach. By providing other countries’ experiences as a way to measure against the established law in India, a better understanding of the Nigerian structure’s normative limitations is provided, and possible paths for reform are identified. There are no surveys or interviews involved in this case study.

MAIN BODY

Pre-Legislative Landscape: The Inadequacy of Existing Frameworks

Before the Mediation Act of 2023, mediation in India worked within a fragmented legal framework. Under section 89 of the CPC (Civil Procedure Code) (Amendment) Act of 1999, courts were able to refer parties to mediation, among other forms of alternative dispute resolution (ADR). However, the Supreme Court of India in Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. provided clarity on the very limited scope of section 89, and its limitations due to a lack of enforcement mechanisms, no standards for mediators and no centralised body to oversee mediators’ activities. [12]

The introduction of compulsory pre-institution mediation on specified commercial disputes through the Commercial Courts Act of 2015 (section 12A of the Act)[13] provided a further step toward the passage of the new Mediation Act. However, the Commercial Courts Act only provided a means for compulsory pre-institution mediation on specified types of commercial disputes, thereby failing to address the deficiencies in the area of mediation. Likewise, although there were no uniform standards for mediation or quality of mediators, there was also little to no compliance with the act and minimal distribution of mediation services outside of major metropolitan areas. [14] In contrast, the purpose of the 2023 act is to rectify the deficiencies described above and provide a single framework with universal application that encompasses both civil and commercial disputes.

Structure and Key Provisions of the Mediation Act, 2023

The Mediation Act, 2023, comprises 64 sections in ten chapters. Its core provisions are as follows:

Mandatory Mediation Before Going to Court

According to Section 5 of the Act, before someone can file a civil or commercial lawsuit, they are required to attempt mediation unless one of the exceptions from Section 6 applies. In particular, the exceptions apply to cases where a party requires urgent relief, mediation will affect parties not present at the mediation session, or there is a limitation period is approaching its expiration. This creates a structure so that there is an incentive to settle disputes before court intervention and to reduce congestion in courts.[15]

Establishment of the Mediation Council of India

The Mediation Council of India has been established as a regulatory authority to oversee the implementation of mediation across India under Chapter VIII of the Act. The Mediation Council will have the authority to recognise mediation service providers and the ability to grade and credential mediators, establish qualification and training standards as outlined in Section 8, and foster a culture of mediation. This marks a significant departure from the previous court-based, ad hoc mediation services model, by establishing an institutional framework similar to the Bar Council of India established for the legal profession.[16]

The enforceability of mediated settlement agreements

Section 20-22 of the act provides that an authenticated mediated settlement agreement is binding and can be enforced directly as a court decree. [17]In the past, mediated settlements had the legal effect of a contract and could only become a court decree if the parties agreed to convert the mediated settlement into a consent decree through additional court proceedings. This result caused additional cost and delay to the mediation process, which negated the benefits of using mediation. The ability to directly enforce a mediated settlement agreement as a court decree will greatly enhance the value of mediation in the eyes of ordinary litigants.

Online Mediation and Community Mediation

Until now, mediation was believed to have reached its limit with face-to-face mediation; therefore, Section 30 of the act expressly provides for legally effective online mediation conducted via electronic means, allowing India to participate in the worldwide movement toward online dispute resolution (ODR).[18] In addition, the act also provides for community mediation in disputes that could potentially affect the peace, harmony, and tranquillity of a community, allowing a social justice component to develop as part of the statutory framework.

International Mediation & The Singapore Convention

The Act provides a framework for International Mediation through Statute. This is the domestic legislation of how the Singapore Convention will apply in India, where India is one of its Signatories. As such, the Act provides clarity and certainty to aid the recognition and enforcement of mediated settlement agreements across borders by establishing a streamlined process to do so. [19]The alignment of these provisions with those of the Singapore Convention is key to India achieving its strategic goal to establish itself as an International Commercial Dispute Resolution hub.

Findings and Analysis: Answers to the Research Questions

The following sub-sections present the analytical findings of this study, organised around each of the four research questions.

Research Question 1: Does the Act create a coherent and inclusive institutional framework that advances access to justice?

Finding: The new legislation provides a number of structural options for mediations, although some have yet to be fully developed or included in ordinary mediation processes.

The new Mediator Council of India is the primary result of the Act’s provisions. The Mediator Council has been created by the Indian legislature to establish a new infrastructure for the resolution of disputes via mediation. The intention is for the Mediator Council to provide formal recognition (i.e., licensure) of mediators and mediation providers, credential mediators, and to set standardisation in practice for mediators in the mediation field. The establishment of the Mediator Council serves to indicate that the Indian legislature intends mediation to be recognised as a professional, organised, and regulated process of resolution of disputes, as opposed to being viewed as a random, disorganized and informal method of resolution of disputes, as may be done traditionally through the courts.[20]

Although the Mediator Council Framework can be considered as including all potential users, the inclusiveness of that Framework is materially limited. As previously stated, there is no statutory requirement in Mediator Act for phased geographical expansion of mediation centres, likely to be critically important given that the pre-institution mandatory mediation in accordance with Section 12A of the Commercial Courts Act, 2015, has a history of failure in implementation and was not available in most cities until years after the passage of the legislation creating that option. While the Mediation Act provides a much broader basis for mandatory mediation as well, there is no statutory requirement for the infrastructure necessary to provide for the implementation of mandatory mediation in smaller cities and rural areas.[21]

The Mediation Act’s promise cannot be fully realised without sufficient qualified mediators across the country. To provide legal access to mediation for litigants in India, tens of thousands of qualified and credentialed Mediators will need to be identified, trained, credentialed, and deployed, and there is currently a lack of qualified Mediators who can meet these criteria. While the Mediator Council can create training and credentialing programs to try and fill that gap on a regional basis under the Act, there are no provisions within the Act for a time frame or any funding to enable this effort to commence. Without some level of mandate, the organisation’s structural framework would be in a coherent state on paper, but incoherent in terms of reality; thus, the organisation would never achieve its purpose.

Research Question 2: Does the mandatory pre-litigation mediation requirement enhance or restrict access to justice for vulnerable sections?

Finding: The requirement has dual and contradictory effects — promising for court decongestion but potentially exclusionary for vulnerable litigants.

Many practitioners have viewed the legislation’s provision for pre-litigation mediation as the most innovative but also the most hotly debated aspect of this legislation. This section was intended to allow the resolution of disputes without the need to resort to a court system that is overwhelmed with litigation (over five crore cases waiting in line), by facilitating agreements that are made before litigation is commenced between the parties in dispute. Chief Justice D Y Chandrachud, Supreme Court of India, notes that, in his opinion, mediation provides litigants with a “street corner” access to justice (National Mediation Day).[22]

An example of how the lack of an appropriate procedural safeguard at mandatory mediation can result in a denial of justice (when one litigant is at a structural disadvantage) comes from Genn’s empirical study on the operation of mandatory ADR. In that respect, all civil litigants in India are clearly impacted by structural disparities resulting from the socio-economic positions of the parties within their respective civil litigious proceedings, therefore, for instance, if there are a shortage of financial resources available to pay for a professional, highly qualified mediator to conduct a mediation pursuant to the section 8 mediator qualification framework, this will result in a two-tiered mediation system (where there are good quality mediators for parties with substantial resources, but poor quality mediators for ordinary average people involved with civil litigation).[23]

Not allowing free or subsidised mediation for marginalised litigants means this legislation is not progressive and provides no examples. The Legal Services Authorities Act 1987 created a framework to provide legal assistance, but its relationship with the Mandatory Mediation provision in the 2023 Act remains unclear. [24]Sanjay T. R. noted that this flaw is the most significant impediment to providing access to Justice as designed by the legislation. Marginalised litigants will remain in Mediation Limbo until they can afford the cost of a private mediator, whereupon the Court will enter the Proceedings if the law requires them to have mediations before bringing a civil action against a responsible person or entity.

The relationship between the statute’s gender equality exception found in section 6 and issues surrounding domestic violence, sexual harassment, etc., will also present a significant issue for women accessing justice through this act. [25]The Supreme Court Case National Legal Services Authority v Union of India reaffirmed that the State has a responsibility to protect marginalised groups throughout the Justice process. The legislation does not adequately protect all marginalised groups’ access to services under this Act, and does not contain any additional exclusions specific to allowing marginalised women’s access.[26]

Under the provisions found in Section 29 of the Act relating to online mediation, all parties, including those living in rural and semi-rural areas, will have an equal opportunity to achieve justice via online dispute resolution (ODR), just as metropolitan litigants do. Additionally, the integration of ODR with the legal aid provisions included in the Legal Aid Act of 1987 will also create a theoretical opportunity for all parties that have access to any form of electronic device to use ODR to resolve their disputes; thus, providing them with an equal opportunity to have success in relation to their actual situation.

Research Question 3: How does the Act address the enforceability of mediated settlement agreements and align India with international standards?

Finding: The Act introduces transformative enforceability provisions and creates the legislative platform for alignment with the Singapore Convention.

Sections 20–22 set out the regime for the enforceability of mediated settlement agreements, that is, the Act’s clearest positive contribution to dispute resolution in India. Basically, by awarding the same legal status as a court-decreed settlement, the Act does away with the expensive and lengthy process of obtaining a consent decree after a mediated settlement has been reached – a particularly vexing issue for parties with limited resources.

Before this new legislation was introduced, mediated settlement agreements had all of the characteristics of a contract and could only be enforced through new civil proceedings for breach or the consent decree process. The new regime, therefore, provides a separate, complete and independent mechanism for the enforcement of a mediated agreement. The comparative analysis by Alexander confirms that the direct enforcement of mediated agreements is the hallmark of mature mediation frameworks around the world, and thus brings India on par with the European Union’s Mediation Directive and Singapore’s mediation legislation in this area.[27]

India intends to become a leader in global commercial mediation by establishing a national law to allow for the enforcement of mediated settlement agreements under the Singapore Convention, as established by the Mediation Act, 2023. The Act has the same effect as the New York Convention does for arbitral awards in that it treats mediated settlement agreements as final and binding, enforceable as court decrees, allowing India to be positioned as a leader in the field. In addition to setting out a framework for the enforcement of mediated settlement agreements, adherence to the international standards created by the Act provides further evidence of India’s potential to become an international business hub, as mediation has an increasing role in the development of India’s dispute resolution system at the international level.

Research Question 4: What legislative and policy reforms are necessary to realise the Act’s access-to-justice potential?

Finding: Targeted reforms are needed to ensure equal access to justice results from implementation of the Act’s legislative intent.

The Mediation Act 2023 was demonstrated in the first four sections as a necessary condition for expanding access-to-justice in India, but insufficient in its own right. Therefore, the legislation must be amended in five areas.

The Mediation Council of India must establish mediation centres at the taluka level on a prescriptive timetable and provide funding to support this effort, with the available services prioritising those that have previously been underserved in India, and we do not want the unintended consequence of not having Section 12A of the Commercial Court Act of 2015 going unfulfilled again in this regard.

The Mediation Council of India will establish mediation centres in the taluka as per the request. The appropriate statutes for creating these centres will have to be placed within an appropriate time frame. Priority funding will be given first to the areas/districts with no services to establish mediation centres and to create mediation centres. Section 12A of the Commercial Courts Act, 2015, will be implemented only on a smaller scale than before, so that conditions do not exist again for not being able to build these centres.

Mediation is a compulsory part of the curriculum of all law school training programs, as well as the training programs of judicial and civil service professionals. A structural change to the training of mediators is essential if there is going to be an appropriate number of trained mediators and an appropriate cultural environment for trained mediators to work in, in the context of the judicial system within some countries.

Fourthly, Section 6 contains examples where exceptions will apply; however, those exceptions need to be clarified by means of an appropriate piece of legislation or subordinate regulation, so any issues arising from domestic violence; child custody; sexual harassment; and inequalities between employers and employees must be excluded from being eligible for compulsory mediation before litigation unless the party who has been abused (i.e., the vulnerable party) has knowingly given their written consent to do so after being made fully aware of the nature involved in doing so. In addition to the state’s constitutional responsibilities under Article 14, Article 21, and Article 39A, the order made by the Supreme Court in NALSA further supports the necessity for this to be addressed by legislation or regulation, too.

The accession of India to the Singapore Convention on Mediation should be accelerated so that India will have a greater commitment to international standards, facilitate the growth of cross-border business and elevate its status as a centre for dispute resolution.

VII. Conclusion and Suggestions

The enactment of the Mediation Act 2023 is an outstanding example of a positive change to the laws on mediation in India. The structure and function of the Mediation Council of India, the ability to enforce settlement agreements reached through mediation through court orders, recognition of online mediation, and the establishment of an alignment with the Singapore Convention provide a comprehensive set of laws which had been long overdue for our country and are well in line with international standards as established by Alexander.

Nevertheless, there is no assurance that the Mediation Act will increase access to justice through mediation. Although the requirement for parties to attempt mediation before they commence litigation is generally helpful, this requirement can be difficult for parties who are economically disadvantaged because there are no provisions within the Mediation Act for free legal representation during mediation, an extensive geographical infrastructure to support parties seeking mediation, and there are no requirements within the Mediation Act to provide for a sufficient supply of trained, certified, and low-cost mediators to support parties seeking mediation, all of which are addressed in a very vague manner in the current text of the legislation. Thus, the long-term success of the Mediation Act will depend on implementation rather than on what is written in the law.

Here are various possibilities for maximising access to justice through the Act:

Parliament should amend the Act to establish free mediation for parties entitled to legal aid under the Legal Services Authorities Act 1987, and to provide the appropriate funding and statutory framework for the two acts to work together.
The Mediation Council should create mediation centres at the taluka level within five years, with a phased approach based upon the most disadvantaged districts.
Meditation should be made a compulsory component in all law degrees and judicial education programs to ensure that long-term skills and culture are created in mediation practice and process
Exceptions under section 6 should be clarified to include that domestic violence, custody of children, and a power imbalance between an employer and an employee will not require a party to undertake pre-litigation mediation unless the weaker party actively consents.
India should accede to the Singapore Convention without delay to demonstrate its commitment to assist in international commercial mediation and encourage international businesses to resolve cross-border disputes through mediation in India.

In summary, the Mediation Act of 2023 creates a pathway to access justice. The responsibility lies with the Government to make sure that any individual can access justice, no matter how poor or rich, where they live or how vulnerable they are.

[1] Anita Kushwaha v. Pushap Sudan, (2016) 8 S.C.C. 509.

[2] “Over 5.19 Cr Cases Pending in Indian Courts; Govt Implements Fast-Track Courts to Address Backlog”, News On AIR (Feb. 6, 2025), https://www.newsonair.gov.in/over-5-19-cr-cases-pending-in-indian-courts-govt-implements-fast-track-courts-to-address-backlog/.

[3] The Mediation Act, 2023, No. 32, Acts of Parliament, 2023 (India), https://legalaffairs.gov.in/sites/default/files/MediationAct2023.pdf.

[4] Rep. of the U.N. Comm’n on Int’l Trade La, 51st Sess., U.N. GAOR, 73d Sess., Supp. No. 17, U.N. Doc. A/73/17 (2018).

[5] Law Comm’n of India, Report No. 129 on “Urban Litigation: Mediation as Alternative to Adjudication” (1988).

[6] Salem Advocate Bar Ass’n v. Union of India, (2005) 6 SCC 344.

[7] Afcons Infrastructure Ltd. v. Cherian Varkey Constr. Co., (2010) 8 SCC 24.

[8] Nadja Marie Alexander, “International and Comparative Mediation: Legal Perspectives” (2009).

[9] Sriram Panchu, “Mediation Practice and Law: The Path to Successful Dispute Resolution” (2d ed. 2015).

[10] Hazel Genn, “Judging Civil Justice” (2010).

[11] Sanjay T R, “A Study on Mandatory Pre-Litigation Mediation Under the Mediation Act, 2023: Boon or Burden”, 6 INT’L J. RSCH. PUBL’N & REVIEWS 4595 (2025).

[12] Afcons Infrastructure Ltd., supra note 7.

[13] The Commercial Courts Act, 1949, § 12A, No. 4, Acts of Parliament, 2016 (India).

[14] Patil Automation Pvt. Ltd. v. Rakheja Eng’rs Pvt. Ltd., (2022) 10 S.C.C. 1 (India).

[15] The Mediation Act, 2023, § 5–6, No. 32, Acts of Parliament, 2023 (India).

[16] The Mediation Act, 2023, § 8, No. 32, Acts of Parliament, 2023 (India).

[17] The Mediation Act, 2023, § 20–22, No. 32, Acts of Parliament, 2023 (India).

[18] The Mediation Act, 2023, ch. 7, § 30, No. 32, Acts of Parliament, 2023 (India).

[19] The Mediation Act, 2023, § 3(g), 27, No. 32, Acts of Parliament, 2023 (India).

[20] Abhijit Tarkunde, “Mediation Act 2023: A Paradigm Shift in Dispute Resolution”, 5 Indian Arb. L. Rev. 12, 17 (2023).

[21] The Mediation Act, 2023, § 5, No. 32, Acts of Parliament, 2023 (India).

[22] “CJI Chandrachud Bats for Mediation as Dispute Resolution Mechanism for Individuals, Govt”, ET LegalWorld (Apr. 14, 2023, 10:48 PM), https://legal.economictimes.indiatimes.com/news/industry/cji-chandrachud-bats-for-mediation-as-dispute-resolution-mechanism-for-individuals-govt/99502567.

[23] Hazel Genn et al., “Twisting Arms: Court Referred and Court Linked Mediation Under Judicial Pressure” (Ministry of Justice Research Series 1/07, 2007).

[24] Samina Nahid Baig, “A Critical Analysis Of The Mediation Act, 2023”, 13 Int’l J. Creative Res. Thoughts (2025).

[25] The Mediation Act, 2023, § 6, No. 32, Acts of Parliament, 2023 (India).

[26] Nat’l Legal Servs. Auth. v. Union of India (2014) 5 SCC 438.

[27] Alexander, supra note 8.

“Rethinking Justice: Why Capital Punishment Should No Longer Be the Answer”

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AUTHOR:-Prof.(Dr.) Nuzhat Parveen Khan,

Presently Professor and Former Dean, Faculty of Law,

Jamia Millia Islamia, New Delhi,

Former Chairperson, ICC. Jamia UNIVERSITY,

Former Dean School of Law,

Bennett University, The Times of India Group.

Is executing a person truly the best form of punishment to give justice? Does it genuinely set an example in the eyes of criminals? if it does not then why does it still continue to exist within modern legal systems?

A vicious crime that has demoralised society is often met with an impulsive response demanding the stringent possible punishment. Many people are driven by sorrow, anger and a burning urge to see justice done because of which the demand of death penalty rises. The agony of victims’ families is inexpressible and the desire to see the perpetrator punished severely becomes natural. Yet, in such moments, a deeper question arises: does taking another life deliver justice or does it will merely repeat the same cycle of violence in a different form?

A vicious crime that has shook the society can usually be met with the instinctive response that demands the extent of punishment possible. Many people are driven by grief, anger and a burning urge to have justice done which causes them to demand death penalty. The agony of the families of the victims is inexplicable, and the desire to have the perpetrator punished harshly is quite normal.

But when such a situation happens, a big question arises, will the killing of a person give justice or will it be a repetition of the violence in a different form? Capital punishment is an old concept which has been justified using various conventional theories of punishment. The retributive theory is one of the most effective justifications that states that punishment ought to be proportional to the moral seriousness of the offense. In this view, the criminal offenders of serious crimes should receive the equivalent punishment as justice is to restore the moral equilibrium.[1] This is the logic many people who champion the death penalty would use, that a person who claims to have taken another person should lose theirs.

The deterrence theory is another theory that is often referred to. According to this theory, the future crimes are deterred by harsh penalties which incur fear of punishment.[2]The argument claims that knowledgeable potential criminals might shudder in front of committing the crimes in case murder can be punishable by death. Historically, philosophers such as Jeremy Bentham and Cesare Beccaria examined how punishment could influence human behaviour through deterrence and rational calculation.[3]

The third rationale revolves around the aspect of incapacitation which is aimed at securing the society by shutting down dangerous criminals in society. In this sense, capital punishment is a sure way of making sure that one who had perpetrated a crime of high degree of violence will never be able to commit another crime against another person.

Although these theories might sound convincing on paper, the facts of the capital punishment bring serious legal and moral issues. Another problem that is most disturbing is the risk of false convictions. The criminal justice systems do not work perfectly. Wrongful convictions have been recorded in various jurisdictions due to investigative errors, false confessions, unreliable eyewitness testimony and also poor legal representation. In cases where the punishment is imprisonment, there are instances where the mistakes can be rectified. But where death is the penalty the wrong can never be made right. The danger of executing at least one innocent individual suffices to call in question the moral rightfulness of death penalty.

The other issue is unequivocal and inconsistent use of the capital punishment. Research and legal publications have demonstrated that people with low economic status usually do not have access to quality and competent legal representation. As a result, the outcome of a trial may sometimes depend not only on the facts of the case but also on the resources available to the accused.[4]

In India, the law attempts to limit the use of capital punishment through the “rarest of rare” doctrine, developed by the Supreme Court in Bachan Singh v. State of Punjab.[5]Under this principle, death penalty ought to be applied to the most extraordinary situations in which the life imprisonment will not suffice. The Code of Criminal Procedure (now replaced by the Bharatiya Nagarik Suraksha Sanhita) required that judges prescribing death penalty must give special reasons.[6] The Court further required a balancing of aggravating and mitigating circumstances. Later, the Court in Machhi Singh v. State of Punjab[7]expounded the doctrine, listing the kinds of cases that could qualify: the mode of commission of murder, the motive, the anti-social or socially abhorrent character of the crime, the scale of the crime, the personality of the victim. attempted to further clarify this doctrine by identifying certain categories of cases that might justify capital punishment.

However, the promise of principled sentencing has not materialised. Empirical research has consistently demonstrated that the “rarest of rare” doctrine is applied arbitrarily, varying not with the objective features of the crime but with the subjective philosophy of individual judges. The doctrine has not always been applied uniformly in spite of these judicial protections. What is considered the “rarest of the rare” is subject to interpretation by different courts; hence making sentencing unpredictable. There are instances of similar cases giving different punishments depending on how the cases are interpreted by the courts. Such inconsistency shows the fact that it is not so easy to administer the death penalty in a fair and equal way. The other reason that has been widely used to justify capital punishment is its deterring effect. Nevertheless, the empirical studies have yielded ambivalent and inconclusive outcomes.

The most extensive empirical study of the death penalty sentencing in India has been carried out by Project 39A of National Law University, Delhi.Their research tells a very grim tale: trial courts imposing death sentences in cases that are overwhelmingly found by the appellate courts to fall short of the “rarest of rare” standard. The acquittal rate is high, almost one in every three death row inmates is ultimately exonerated, exposing the chilling prospect of executing the wrong person.[8]

This arbitrariness further extends to the process of sentencing. Between 2018-2020, 36 percent of death sentences were imposed on the same day as conviction, without the separate sentencing hearing required under Section 235(2) of the CrPC[9]. The trial court did not even mention mitigating circumstances in 40 percent of cases.[10] The procedural protection which the Bachan Singh majority hoped would near-eliminate arbitrariness has proven to be absolutely ineffective. Even the Supreme Court has admitted the ineffectiveness of the Bachan Singh framework. In Manoj v. State of Madhya Pradesh[11], the Court observed that the protection in Section 235(2) had been rendered ineffective without guidelines or framework. Dissenting in Chhannu Lal Verma v. State of Chhattisgarh[12], Justice Kurian Joseph remarked that death sentence remains “arbitrarily and freakishly imposed”.

The analysis of capital punishment cannot be limited to the time of sentencing or execution. The interval in between–which may be years or decades long–punishes in its own way. This was recognised by the Supreme Court in Shatrughan Chauhan v. Union of India[13] where it was decided that “undue delay in execution constitutes torture and provides grounds for commutation.” But the issue is not solely that of delay, but rather that of the cruelty of prolonged imprisonment facing a death sentence.Project 39A research has documented an enormous mental health crisis within death row prisoners: 62.2% inmates are mentally ill and 11% intellectually disabled.[14] All these factors are exacerbated by solitary confinement, social isolation, absence of meaningful activity, and the eternal psychological torture of living in anticipation of execution.

Many scholars argue that there is little convincing evidence that the death penalty is more effective in preventing crime than long-term imprisonment.[15]Violent crimes are very common in the situations of high emotions, desperation or psychological disturbances. When faced with this kind of situation, people never take time to consider the legal implications of their actions. The value of human dignity is another more important ethical issue beyond the legal argument and the statistical debate. Even modern constitutional regimes are recognizing the fact that all human beings have an inborn dignity. When the state treats the wrong of killing in the state as the worst evil, the next thing is, can the state also treat the same evil with equal power?

Even the present means of execution, hanging by the neck until it died under Section 354(5) of the CrPC[16], has been criticized as cruel and unusual. In the pending Public Interest Litigation, Rishi Malhotra v. Union of India[17], the petitioner claims that hanging results in protracted pain and suffering and in some cases the body may take forty minutes before death is pronounced.In January 2026, the Attorney General notified the Court that the matter is under review at the highest level.[18] But this recognition of the inhumanity of hanging only points out a still greater fact: that there is no human way of executing a criminal. The pursuit of a painless form of death penalty be it through lethal injection or electrocution or gas chamber is a chimera. Lethal injection has also been repeatedly botched in the United States, with prisoners suffering extended agony before dying.[19]

There has been a change in attitudes towards capital punishment across the globe. A growing number of countries have abolished the death penalty, reflecting an evolving understanding of justice that emphasizes restraint, human rights, and the possibility of reform.[20]The international organizations and the human rights groups have repeatedly urged states to rethink the use of capital punishment. Notably, to oppose the death penalty does not imply one should not feel the pain of the sufferings of the victim or underestimate the severity of violence. Rather, it needs to seek other ways of punishing without violating human dignity.

An option available is the life imprisonment without the chance of being put on the parole on the most serious offences. This penalty permanently isolates the violent criminals out of the society without the irreparable results of execution. It guarantees the safety of the population, and does not provide the state with the authority to claim the life.

Restorative justice is another potential strategy that aims at recognizing the damage, assisting the victims, and holding offenders accountable. Restorative processes are concerned with dialogue, acknowledging suffering and developing social relations when feasible. Although restorative justice may not enliven the damages of the grave crimes, it provides a more human and positive way of dealing with the effects of the crimes. Moreover, criminal justice systems are to pay more attention to rehabilitation and reform. The state also has to deal with the underlying causes of violent crime. Poverty, inequality, lack of mental health care, and a dysfunctional criminal justice system are all factors that contribute to the circumstances under which serious crimes are committed. Understanding these causes will help to create safer communities; by educating, counselling and providing social support the chances of recidivism will be minimized. A genuinely reformative strategy would put resources in these areas and not waste them in a punishment that has not been shown to serve any social useful purpose.

Finally, the capital punishment debate is not merely about punishment we should rather discuss the values that our concept of justice is based upon. A justice system is supposed to defend the society, bring criminals to justice and respect human life. The real power of a legal system is not its power to punish the most but to be able to react to transgression with justice, wisdom and humanity. A rejection of the death penalty will not undermine justice, quite the opposite, it is an expression of the promise of a more human and considerate vision of law.

In answering the question we began with, it becomes evident that execution is neither the best form of justice nor a demonstrably reliable example that deters crime. Its continued existence rests less on empirical evidence and fairness than on tradition and retribution. A justice system must condemn violence and rise above it. By embracing alternatives such as life imprisonment without parole, restorative practices and rehabilitative reforms, the law can safeguard society without degrading human dignity. Ultimately, true justice lies not in taking life but in preserving it while ensuring accountability, fairness, and humanity.

[1]H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (2nd edn., Oxford University Press, 2008).

[2]Andrew von Hirsch, Doing Justice: The Choice of Punishments (Hill and Wang, New York, 1976).

[3]Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Oxford University Press, 1907); Cesare Beccaria, On Crimes and Punishments (Hackett Publishing, 1986).

[4]National Law University Delhi – Project 39A, Death Penalty India Report (2016).

[5]Bachan Singh v. State of Punjab, (1980) 2 SCC 684 (Supreme Court of India).

[6] The Bharatiya Nyaya Sanhita, s. 393 (3).

[7](1983) 3 SCC 470.

[8] Project 39A, National Law University, Delhi, Death Penalty India Report (Centre on the Death Penalty, National Law University, Delhi Press, New Delhi, 2016).

[9] Project 39A, National Law University, Delhi, Death Penalty Sentencing in Trial Courts (2022).

[10]Ibid.

[11](2022) SCC OnLine SC 1015.

[12](2018) SCC OnLine SC 2631

[13] (2014) 3 SCC 1.

[14]Project 39A, National Law University, Delhi, Deathworthy: A Mental Health Perspective of the Death Penalty (2021).

[15]Roger Hood and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective (5th edn., Oxford University Press, 2015).

[16] Now Section 393 (5) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

[17]W.P.(Crl.) No. 145/2017

[18]Ibid.

[19]Id (submissions of Senior Advocate Meenakshi Arora for Project 39 A).

[20]Amnesty International, Death Sentences and Executions 2023 (Amnesty International Global Report, 2024); United Nations General Assembly, Moratorium on the Use of the Death Penalty, UNGA Resolution A/RES/77/222 (2022).

“1st National Online Judgement Writing Competition-2026”

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“REGULATING SYNTHETIC MEDIA: A CONSTITUTIONAL CRITIQUE OF INDIA’S 2026 INTERMEDIARY RULES”

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AUTHOR : Sneha Awasthi

Abstract

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2026, are India’s first targeted attempt at grappling with the rise of synthetic digital media.[1] Synthetic videos, audio, and other forms of media are now produced and distributed with unprecedented speed and volume.[2] The Amendment proposes labelling, metadata, and faster response times for takedowns.[3]

This article suggests that, while the 2026 Rules may tackle the symptoms of misinformation, they fail to grapple with the root challenges of artificial intelligence. The approach appears to favour speed over process, and control over content over systemic responsibility. In doing so, it may not meet the Supreme Court’s test for proportionality. The debate in this Part provides an overview of the regulatory environment, describes the salient features of the Amendment, and places the debate in the context of India’s constitutional history.

Introduction: Context and Emergence of Synthetic Media

India is on the cusp of a future where artificial intelligence (AI) is becoming a part of daily life. AI-powered systems are increasingly influencing how we communicate, make decisions, and even shape our opinions.[4] The advent of synthetic media has given this a new twist.[5] A video may be faked, yet look entirely authentic. An audio clip may not be produced by a human voice at all.

If technology can produce such a convincing hoax, how does the law deal with it?[6]

The Central Government has tried to provide an answer to this in the 2026 Amendment Rules under the Information Technology Act, 2000.[7] These Rules broaden the concept of “information” on the internet to also cover synthetic content. They also place new responsibilities on intermediaries. Intermediaries must clearly identify such content, include metadata to enable tracing, and act within short time-frames (as short as three hours) on complaints.[8]

The Court has previously interpreted this to mean that restrictions should not be excessive or unclear.[9] It appears that the 2026 Rules are operating in this space. They seek to regulate harmful content, but do so in a way that shifts a lot of responsibility to private companies. This presents an immediate problem. When intermediaries are required to make quick decisions about what should and shouldn’t be on the internet, are they simply providing services or performing a private regulatory function?[10]

This is not censorship by the State, but privatised censorship.[11]

This is not a new problem. In Shreya Singhal v Union of India[12], the Supreme Court held Section 66A of the IT Act unconstitutional for being vague and open to abuse. Specifically, the Court was worried about the chilling effect on speech.[13] If people do not know what they can or cannot say, they might not say anything. It seems to be an issue again, but in a different context.

A new aspect has emerged recently. There is now a risk of misuse of AI in courtrooms. In Gummadi Usha Rani v. Sure Mallikarjuna Rao (2026), a trial court cited non-existent cases.[14] These “precedents” were created by AI.[15] The Supreme Court considered this to be a grave error and stepped in.[16] The case is still under way, but it demonstrates that the issue is not just confined to social media. It can affect the justice system itself.

This raises a broader concern. If even institutional actors may not recognise synthetic content, can it really be left to the intermediaries to manage it in a matter of hours? Or is it a more complex issue?

The 2026 Amendment: Structure, Design, and Regulatory Scope

The 2026 Amendment builds on the intermediary framework provided in Section 79 of the IT Act.[17] Limited liability remains, but it is now linked to the fulfilment of particular obligations. Intermediaries are required to exercise due diligence in taking down infringing content, and also in labelling synthetic content.

There are three important features of this design.

First, the need for labelling. Content deemed to be artificial must be labelled accordingly.[18] This will assist the viewer in differentiating between authentic and synthetic content. It is based on the idea that disclosure may lessen the impact. If the user knows that the video is fake, they may be less likely to be deceived.

Second, provenance metadata. Companies are required to keep information on content provenance.[19] This is meant to enhance transparency. Theoretically, it makes it easier to trace the origin of offensive content.

Third, the speedy takedowns. This is probably the most controversial. The timeframe may be just hours after the content is identified. In some cases, such as impersonation and intimate images, it could be even less.[20]

All of these measures make sense on their own. But together they have practical and constitutional implications. Hurrying up the process leads to quicker decisions. Inaccurate decisions may result. In uncertain situations, a platform might opt to take down a piece of content to avoid liability.[21]

This is not censorship by the State, but privatised censorship.

The State must demonstrate that the restriction serves a legitimate purpose, is necessary, and not disproportionate.[22] These questions remain open. The Rules offer some guidance, but not a comprehensive approach to decision-making and review.[23] Nor do they address the underlying questions of how content is generated by AI systems.

III. Limits of the 2026 Amendment as an AI Governance Framework

Upon closer inspection, we see that the Amendment focuses primarily on the level of platforms. It controls the presentation, labelling, and deletion of content. It does not regulate, at least in detail,[24] the design and operation of the AI systems that produce such content.

The Rules tackle the symptoms of the problem through content moderation. This strategy might work in the short run, particularly in crises. But it creates a gap in governance.

The European Union has done something different with the AI Act, which classifies AI systems based on risk.[25] These are subject to more stringent measures, such as audits and human oversight.[26] India’s 2026 Rules do not yet take this step. Rather, they uniformly rely on an intermediary model.

This does not necessarily mean that the Indian model is wrong. It is a product of a desire for agility. It might also be driven by the desire to foster innovation while regulating. But the lack of a framework in place raises a question. Will a content-driven approach be sufficient to uphold constitutional values in an AI world?

This question is not clear. It depends on how the law develops over the next few years. But what we can say at this point is that the 2026 Amendment is a first step in the right direction. It recognises the issue but doesn’t resolve it entirely.

Outsourced Censorship and Its Chilling Effect on Speech

A closer examination of the 2026 Amendment Rules reveals that the key constitutional issue is not just the content of the prohibitions, but the manner in which they work. The regime places a significant emphasis on the intermediaries to make speedy determinations about the legality and propriety of content. This move from public law to private platform judgment is worth considering.

Regulation of speech is not prohibited by the Constitution. It allows it in certain circumstances. But it has also insisted that regulation be imposed by clear law and subject to some form of review. When private companies are put in a position where they must determine what speech is allowed to remain online, the distinction between regulation and delegation is blurred.

The three-hour takedown period is a case in point. It’s supposed to curb harm rapidly. It might also lead to defensive censorship. In doubt, a platform will err on the side of censorship and then test for legality. This is not because it is told to over-censor by law, but because the stakes are high.

It might be indirectly discouraged.

The Supreme Court tackled a similar problem in Shreya Singhal v. Union of India. The Court concluded that vague and overbroad restrictions on free speech can result in arbitrary censorship. It noted that intermediaries shouldn’t be “forced to act as judges in a statutory vacuum”. The 2026 Rules do not repeat Section 66A, but they raise a similar issue. They establish a regime where platforms must work fast with general and sometimes vague criteria like “constitutional compliance.”

And how to appeal the decision. This presents a silent question. If the Constitution demands due process and accountability from the State, should it also demand it from private persons acting on behalf of the State?

Proportionality and Constitutional Constraints

Proportionality is a key doctrine in the Indian Constitution, particularly since K.S. Puttaswamy v. Union of India. The Court adopted a four-part test. A restriction on a fundamental right must meet four criteria.[27] It must be for a legitimate purpose, rationally connected to that purpose, necessary (in the sense that there is no less restrictive alternative) and proportionate (in the sense of balancing the right and the restriction).

The picture for the 2026 Rules is mixed.

The first criterion, legitimacy, is not problematic. The prevention of misinformation, harm to individuals, and public order are legitimate state interests. Everyone would agree that there should be some regulation of synthetic media.

The second requirement, reasoned connection, also seems to be met. Notifying users of synthetic content and facilitating quick takedowns may help prevent the use of synthetic media. These steps are rationally connected to the objectives.

The problem arises at the necessity stage. It is unclear whether such short time frames and broad duties are the least intrusive. Could independent oversight minimise the risk of arbitrary removal? These options appear to have been overlooked.

The last step, balancing, needs more consideration. The Rules place substantial compliance costs on intermediaries, particularly smaller sites that do not have sophisticated moderation technologies. They also impact users’ freedom of expression. The need for speedy action has to be assessed against the risk of over-censorship.

The Court’s observations In Modern Dental College and Research Centre v. State of Madhya Pradesh are pertinent.[28] It noted that even if the State has a legitimate objective, it cannot use excessive means. Even if effective, a measure that is too harsh might not pass constitutional muster.

In this context, the 2026 Amendment appears to be somewhat in between. It deals with a problem, but its structure may be too much in favour of control at the expense of subtlety. Lacking specific safeguards, it is hard to say that the balance has been meticulously preserved.

Courts in the Time of AI: Emerging Judicial Concerns

Recent court cases offer insight into how courts might deal with AI. A case in point is Gummadi Usha Rani v. Sure Mallikarjuna Rao.

The trial court In this case cited non-existent judgments. The cases were cited by an AI tool and seemed to make sense. The Supreme Court stepped in, highlighting the seriousness of the mistake and its impact on the justice system. The case was put on hold and further investigated.[29]

The case doesn’t set out a broad legal framework on AI. It is more a case of institutional caution. It demonstrates that even legal professionals may have trouble telling the difference between the real and the fake. If this is true for the judiciary, then the problem is even more serious for intermediaries.

Here, one might pause for thought. If the detection of synthetic content involves verification, is this possible within three hours? Or is the law, in requiring acceleration, likely to lead to shallowness?

VII. Structural Gaps in the Indian Regulatory Framework

The 2026 Rules are a targeted intervention, but they don’t address the complexity of the harms associated with AI. A more comprehensive response may involve a breakdown of risks.

Such content may be taken down quickly, since the harm is immediate.

Another category includes synthetic content that is not unlawful, but potentially deceptive. Transparency and labelling may be all that is needed in this context. The aim is not banning the content but educating the consumer.

A third, more sophisticated, category is high-risk applications. This involves uses in elections, policing, finance and courts. These risks are systemic. They stem from the design and use of the systems, not only from the content.

The existing framework does not clearly distinguish these. It uses a largely one-size-fits-all approach that focuses on intermediaries. This makes enforcement easier, but it also means the system is less able to deal with underlying problems like algorithmic bias, explainability and discrimination.

India’s approach, on the other hand, is still stuck in content regulation. It relies on the belief that control of output is enough to control harm. This may be true in some instances, but not all.

VIII. Emerging Constitutional Questions

As the debate unfolds, some questions emerge. They are not easy to answer, but they serve to focus the question.

Will a system of quick takedown preserve the balance between safety and free speech?

Should intermediaries be the primary decision-makers on matters of fundamental rights?

Should we focus on AI outputs or should we also focus on its operations?

These questions indicate the problem is not technical. It is constitutional in nature. It has to do with the relationship between the State, private parties and individual rights in the digital sphere.

The 2026 Amendment is a milestone in recognising this issue. But it also shows the limitations of a model that is primarily concerned with content. It does little to resolve the underlying problems of accountability, transparency and justice.

Comparative Lessons and the Search for a Regulatory Model

One way to see the shortcomings of the current model is to compare it with other regulatory models that have started to emerge. The European Union’s Artificial Intelligence Act classifies systems by risk. Generative AI, such as deepfakes, is positioned within a transparency framework, with disclosure as a key element.

The Indian 2026 Amendment, on the other hand, remains within an intermediary-focused framework. It focuses on platforms as the main regulatory site and leaves it to platforms to deal with the effects of AI content. Should we regulate the creation, design and deployment of AI systems, or the moment at which material is put into the public sphere?

It is not an easy question to answer. A platform-based approach can be implemented rapidly. However, this ease also comes at a price. It may fail to address the root causes of the problem. If a factory consistently produces flawed products, checking the goods at the time of sale may minimise damage in the short to medium term. But it doesn’t fix the root of the problem. Eventually the focus may need to be on the manufacturing process itself. This appears to be the case with AI.

Reconsidering the Constitutional Balance in the Digital Era

The Indian Constitution has always involved a balance between State and individual rights. This balance is more challenging in the digital era. The 2026 Rules place an emphasis on speed. Harms need to be remedied swiftly, often within hours. This makes sense, particularly in cases of privacy infringements or public nuisance. But speed has never been the only constitutional concern. It has demanded fairness, transparency and accountability too.

The lack of fine-grained procedural protections in the current system is problematic. When a user’s content is removed, there is no need for an explanation at the time. In the digital environment, timing is important. If a message is unavailable for a few hours at a critical time, it could be lost.

Here we come back to the concept of proportionality. The Court’s reasoning in cases like Anuradha Bhasin v. Union of India provides guidance. It stressed the importance of periodic review and transparency in imposing internet access restrictions.[30] Although the case is different, the same principle applies. Restrictions should not operate in isolation. They should be subject to review and justifiable.

In the context of the 2026 Amendment, the absence of a review process for platform decisions may detract from this. It relies heavily on intermediaries without providing sufficient oversight.

Towards a More Coherent Regulatory Framework

If the current approach is only a partial solution, the question becomes what a more comprehensive approach might look like. One option is to enact a law governing AI. This law would not only regulate content, but also the lifecycle of AI systems. It could mandate risk assessment prior to deployment, documentation of system design, and the ability to override the system in critical situations.

Transparency would still be crucial, but it would not be confined to content labelling. It could also involve the description of how systems work and make decisions. This could be important in applications such as credit scoring or predictive policing, where decisions have direct consequences for human rights.

Institutional design also matters. An independent regulatory agency, with technical expertise and quasi-judicial powers, may be better suited to regulate compliance than a platform-only approach.[31] It could provide guidance, audits, and offer dispute resolution.

Another consideration is the harmonisation of laws. The Digital Personal Data Protection Act covers data collection and processing, but not the results of AI processing. An integrated approach could address this, bringing together data protection and algorithmic accountability.[32]

XII. Concluding Reflections

The 2026 Amendment Rules signify a turning point. They demonstrate a recognition that the law is failing to keep up with technological change. They also show the challenges of developing an effective and constitutionally compliant response.

The framework is more focused on control at the level of content. It attempts to control the effects of AI rather than the processes. This may be understandable as a short-term response, but it does not address all of the challenges posed by artificial intelligence.

The constitutional tradition may not supply answers, but it can offer some guidance. It tells us that regulation needs to be proportionate, transparent, and accountable. It warns us not to put all of our eggs in any one basket, public or private. And it reminds us that rights do not wither in the light of technological advance. They evolve, but they remain.

[1] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2026, G.S.R. 120€ (Feb. 10, 2026).

[2] Ministry of Electronics & Info. Tech., FAQs on the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2026, at 2-4 (Feb. 10, 2026).

[3] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, rr. 3(2)(d), 3(3)(a)(ii), as amended by G.S.R. 120€ (Feb. 10, 2026).

[4] Id. At 2–4.

[5] Id.

[6] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as amended by G.S.R. 120€ (Feb. 10, 2026); Ministry of Electronics & Info. Tech., FAQs on the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2026, at 3-4 (Feb. 10, 2026).

[7] Information Technology Act, No. 21 of 2000, § 79, India Code (2000), as amended by G.S.R. 120€ (Feb. 10, 2026).

[8] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, rr. 3(2)(d), 3(3)(a)(ii), as amended by G.S.R. 120€ (Feb. 10, 2026).

[9] Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India); Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).

[10] Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India).

[11] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, rr. 3(1B), 7, as amended by G.S.R. 120€ (Feb. 10, 2026).

[12] Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India).

[13] Id. ¶¶ 84, 90.

[14] Gummadi Usha Rani v. Sure Mallikarjuna Rao, C.R.P. No. 2487 of 2025, at 1-2 (A.P. H.C. Sept. 26, 2025).

[15] Gummadi Usha Rani & Anr. V. Sure Mallikarjuna Rao & Anr., S.L.P. © No. 7575 of 2026 (S. Ct. India Feb. 27, 2026) (order on admission).

[16] Gummadi Usha Rani v. Sure Mallikarjuna Rao, C.R.P. No. 2487 of 2025, at 1-2 (A.P. H.C. Sept. 26, 2025); Gummadi Usha Rani & Anr. V. Sure Mallikarjuna Rao & Anr., S.L.P. © No. 7575 of 2026 (S. Ct. India Feb. 27, 2026).

[17] Information Technology Act, No. 21 of 2000, § 79, India Code (2000), as amended by G.S.R. 120€ (Feb. 10, 2026).

[18] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, rr. 3(3)(a)(ii), 4(1A), as amended by G.S.R. 120€ (Feb. 10, 2026).

[19] Id. R. 3(3)(a)(ii).

[20] Id. R. 3(2)(d).

[21] Id. Rr. 3(1B), 7.

[22] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India); Modern Dental College & Research Ctr. V. State of M.P., (2016) 7 S.C.C. 353 (India).

[23] Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India); Anuradha Bhasin v. Union of India, (2020) 3 S.C.C. 637 (India).

[24] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, rr. 3(3)(a)(ii), 3(1B), as amended by G.S.R. 120€ (Feb. 10, 2026).

[25] Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 Laying Down Harmonised Rules on Artificial Intelligence (Artificial Intelligence Act), 2024 O.J. (L 2024/1689).

[26] Regulation (EU) 2024/1689, arts. 9, 14, 16, 50, 2024 O.J. (L 2024/1689).

[27] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1, ¶¶ 325-26, 436-44 (India); Modern Dental College & Research Ctr. V. State of M.P., (2016) 7 S.C.C. 353 (India).

[28] Modern Dental College & Research Ctr. V. State of M.P., (2016) 7 S.C.C. 353 (India).

[29] Gummadi Usha Rani & Anr. V. Sure Mallikarjuna Rao & Anr., S.L.P. © No. 7575 of 2026 (S. Ct. India Feb. 27, 2026); Gummadi Usha Rani v. Sure Mallikarjuna Rao, C.R.P. No. 2487 of 2025, at 1-2 (A.P. H.C. Sept. 26, 2025).

[30] Anuradha Bhasin v. Union of India, (2020) 3 S.C.C. 637, ¶¶ 151-54 (India).

[31] Regulation (EU) 2024/1689, arts. 14, 53, 54, 2024 O.J. (L 2024/1689); Information Technology Act, No. 21 of 2000, § 79, India Code (2000).

[32] Digital Personal Data Protection Act, 2023, No. 22 of 2023, India Code (2023).

“A STUDY ON COASTAL REGULATION ZONE VIOLATIONS AND THE RIGHTS OF TRADITIONAL FISHING COMMUNITIES WITH REFERENCE TO THE CRZ NOTIFICATION, 2019 IN TAMIL NADU”

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AUTHOR: SATVIKA SENTHILNATHAN /B.COM LLB (HONS)/ SAVEETHA SCHOOL OF LAW/ SAVEETHA INSTITUTE OF MEDICAL AND TECHNICAL SCIENCES/ (SIMATS) CHENNAI – 600077

CO AUTHOR:- NIMALAN V V/ B.COM LLB (HONS)/ SAVEETHA SCHOOL OF LAW/ SAVEETHA INSTITUTE OF MEDICAL AND TECHNICAL SCIENCES/ (SIMATS)/ CHENNAI – 600077

ABSTRACT:

India’s coastal governance framework underwent a significant structural shift with the introduction of the Coastal Regulation Zone Notification, 2019, issued by the Ministry of Environment, Forest and Climate Change under the Environment Protection Act, 1986. The 2019 Notification replaced its predecessor of 2011, introducing several modifications including the reduction of No Development Zones, expanded permissions for tourism and infrastructure projects, and revised classifications of coastal land. While these changes were presented as measures to ease regulatory burdens and promote development, they carry substantial implications for the livelihood security of traditional fishing communities residing along India’s coastline.

Tamil Nadu, home to one of India’s most historically significant artisanal fishing populations and a coastline spanning several hundred kilometres, presents an instructive jurisdiction for examining these implications. Traditional fishing communities in coastal districts such as Rameswaram, Nagapattinam, and Kanyakumari depend directly on coastal access for their subsistence and livelihoods. The erosion of regulatory protections under the 2019 Notification raises serious questions under Article 21 of the Constitution of India, which has been interpreted by the Supreme Court to encompass the right to livelihood as an integral facet of the right to life.

This paper critically examines whether the CRZ Notification, 2019 adequately safeguards the livelihood rights of traditional fishing communities, with particular reference to Tamil Nadu’s coastal districts. Through doctrinal analysis of constitutional provisions, statutory frameworks, and judicial decisions of the National Green Tribunal and Madras High Court, this paper identifies structural gaps in the existing regulatory framework and proposes targeted legal recommendations for reform.

KEYWORDS: CRZ Notification 2019, Right to Livelihood, Article 21, Traditional Fishing Communities, Tamil Nadu, Coastal Governance

INTRODUCTION:

Coastlines are not merely geographical boundaries for millions of traditional fishing communities across India, they are the very foundation of livelihood, culture, and identity. The legal framework governing coastal zones therefore carries consequences that extend well beyond environmental regulation, touching upon constitutionally guaranteed rights and the economic survival of some of India’s most economically marginalised populations.

The Coastal Regulation Zone Notification, 2019, issued under Section 3 of the Environment Protection Act, 1986, represents the most recent articulation of India’s coastal governance policy. Superseding the CRZ Notification of 2011, the 2019 framework introduced structural changes that have generated considerable debate among environmental lawyers, policymakers, and affected communities alike. Of particular concern is the reduction of the No Development Zone from two hundred metres to fifty metres in densely populated coastal areas, the expanded permissibility of construction and infrastructure projects in coastal belts, and the reclassification of certain ecologically sensitive zones in ways that potentially open them to development pressures.^[1]

Tamil Nadu occupies a position of particular significance in this context. Its coastline, home to communities of traditional fishers locally known as meenavar spanning districts including Rameswaram, Nagapattinam, Cuddalore, and Kanyakumari, has for centuries sustained artisanal fishing as the primary economic activity.^[2] These communities now face mounting pressures from coastal infrastructure projects, tourism development, and port expansion activities that the 2019 Notification has rendered legally more accessible.

The constitutional dimension of this issue is anchored in Article 21 of the Constitution of India. The Supreme Court, in Olga Tellis v. Bombay Municipal Corporation,^[3] authoritatively held that the right to livelihood is an integral component of the right to life under Article 21. Any state action including subordinate legislation such as a CRZ Notification that arbitrarily displaces or extinguishes livelihood rights without adequate procedural safeguards and substantive justification is susceptible to constitutional challenge.

Against this backdrop, this paper poses the following research questions: first, whether the CRZ Notification, 2019 structurally weakens the livelihood protections of traditional fishing communities; second, whether Tamil Nadu’s implementation framework adequately addresses district-level displacement concerns; and third, what legal reforms are necessary to reconcile coastal development imperatives with constitutionally guaranteed livelihood rights.

The paper proceeds through an analysis of the 2019 Notification’s key changes, a constitutional assessment under Article 21, an examination of Tamil Nadu-specific judicial and regulatory developments, and concludes with concrete policy recommendations.

EVOLUTION OF COASTAL REGULATION: FROM CRZ 2011 TO CRZ 2019

India’s coastal regulation framework has evolved through successive notifications, each reflecting shifting policy priorities between environmental conservation and developmental imperatives. The CRZ Notification of 1991 established the foundational architecture of coastal governance, introducing zone-based classifications and development restrictions along the coastline. The 2011 Notification revised this framework significantly, strengthening ecological protections and expanding the rights of traditional fishing communities. The 2019 Notification, however, marks a decisive policy reorientation one that prioritises infrastructural development and economic growth, often at the expense of ecological and livelihood safeguards.^[4]

Reclassification of Coastal Zones

The 2019 Notification retains the broad four-zone classification CRZ-I (ecologically sensitive areas), CRZ-II (urban areas), CRZ-III (rural and semi-urban areas), and CRZ-IV (aquatic areas including tidal water bodies) but introduces sub-classifications that materially alter the regulatory treatment of each zone.^[5] CRZ-III, which encompasses rural coastal areas where traditional fishing communities predominantly reside, is now subdivided into CRZ-IIIA and CRZ-IIIB based on population density. This subdivision is particularly consequential densely populated areas under CRZ-IIIA now attract a reduced No Development Zone of only fifty metres from the High Tide Line, compared to the two-hundred-metre restriction previously applicable under the 2011 Notification.^[6] This reduction effectively brings traditional fishing settlements into closer proximity to permissible development activity, exposing them to displacement pressures that were previously buffered by the wider NDZ.

Expanded Permissibility of Development Activities

The 2019 Notification expands the categories of activities permissible within coastal zones in ways that directly affect fishing communities. Tourism infrastructure, including beach resorts, hotels, and recreational facilities, may now be constructed in areas previously subject to stricter restrictions.^[7] Port and harbour expansion projects have similarly received greater regulatory facilitation. While these measures are framed as instruments of economic development, they operate in direct tension with the subsistence rights of communities whose livelihoods depend on unobstructed coastal access.

Coastal Zone Management Plans

The 2019 Notification mandates each coastal state to prepare and submit revised Coastal Zone Management Plans reflecting the new regulatory framework.^[8] Tamil Nadu’s revised CZMP, which is required to map fishing community settlements, ecologically sensitive areas, and permissible development zones at the district level, is a critical instrument for assessing ground-level impact. However, the approval status of Tamil Nadu’s revised CZMP remains a matter requiring verification at the time of submission, and any delays or deficiencies in this process constitute a regulatory gap with direct consequences for affected communities.

Taken together, the structural changes introduced by the 2019 Notification represent a measurable dilution of the protective framework that previously insulated traditional fishing communities from the adverse consequences of coastal development. The constitutional implications of these changes are examined in the following chapter.

CONSTITUTIONAL ANALYSIS: ARTICLE 21 AND THE RIGHT TO LIVELIHOOD

Doctrinal Foundation – Livelihood as Life

The constitutional protection of livelihood rights in India finds its authoritative basis in Article 21 of the Constitution, which guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. The Supreme Court’s landmark pronouncement in Olga Tellis v. Bombay Municipal Corporation^[9]decisively expanded this guarantee beyond mere physical existence, holding that the right to life necessarily includes the right to livelihood. The Court reasoned that if the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of the right to life would be to deprive them of their means of livelihood.^[10]

This reasoning was subsequently affirmed and deepened in Maneka Gandhi v. Union of India,^[11] where the Court established that any law or executive action depriving a person of life or liberty must satisfy a threefold test it must be just, fair, and reasonable thereby importing substantive due process into Article 21 jurisprudence. Applied to the present context, any regulatory notification that structurally displaces the livelihood of traditional fishing communities must satisfy this standard of substantive reasonableness and cannot be sustained merely on the ground that it follows a procedure prescribed by law.

Application to Traditional Fishing Communities

Traditional fishing communities along Tamil Nadu’s coast derive their livelihood exclusively from direct coastal access for fishing operations, drying and processing of catch, storage of boats and nets, and the conduct of fish markets along the shoreline. Any regulatory framework that permits construction, tourism infrastructure, or port expansion within or immediately adjacent to these zones necessarily curtails this access and, by extension, threatens the constitutional right to livelihood guaranteed under Article 21.

The Supreme Court in S. Jagannath v. Union of India^[12] specifically addressed the rights of traditional coastal communities, holding that the rights of local fishermen and their right to livelihood cannot be ignored while permitting development activities along the coast. The Court directed that the CRZ framework must be implemented in a manner that protects, rather than undermines, the subsistence rights of traditional coastal dwellers. This precedent carries direct force against the permissive developmental framework introduced by the 2019 Notification.

The Proportionality Question

The reduction of the No Development Zone from two hundred metres to fifty metres under CRZ-IIIA, and the expanded permissibility of tourism and infrastructure projects, must be assessed against the constitutional proportionality standard. The Supreme Court, in Modern Dental College v. State of Madhya Pradesh,^[13] formally adopted proportionality as a constitutional standard of review under Article 21, requiring that any restriction on a fundamental right must be proportionate to the legitimate aim pursued.

Applied here, the question becomes whether the developmental benefits sought by the 2019 Notification increased tourism revenue, port capacity, and infrastructure growth are proportionate to the livelihood costs imposed upon traditional fishing communities who lack alternative means of subsistence. Given that these communities represent one of India’s most economically vulnerable populations, with no realistic capacity to absorb displacement or transition to alternative livelihoods, a strong argument exists that the 2019 Notification fails the proportionality test as applied to CRZ-III areas in Tamil Nadu.

Article 19(1)(g) – Right to Practise Any Profession

Complementing the Article 21 analysis, the right of traditional fishers to practise their hereditary occupation is also protected under Article 19(1)(g) of the Constitution. Any regulatory measure that effectively forecloses this right through coastal displacement must satisfy the requirements of Article 19(6) it must constitute a reasonable restriction in the interests of the general public. Development-driven displacement of subsistence fishing communities, without adequate rehabilitation or compensation frameworks, is difficult to sustain as a reasonable restriction under this standard.

Collectively, the constitutional framework under Articles 21 and 19(1)(g), as interpreted through the Supreme Court’s evolving jurisprudence, provides a robust basis for challenging the structural vulnerabilities created by the CRZ Notification, 2019 for traditional fishing communities in Tamil Nadu.

TAMIL NADU: GROUND REALITY AND JUDICIAL RESPONSE

Profile of Traditional Fishing Communities in Tamil Nadu

Tamil Nadu’s coastal districts sustain one of India’s most historically entrenched artisanal fishing populations. Districts including Nagapattinam, Rameswaram, Cuddalore, Kanyakumari, and Chennai abrithe densely populated fishing hamlets known locally as meenavar settlements where fishing constitutes not merely an occupation but an inherited way of life passed across generations.^[14] The Tamil Nadu Fisheries Department estimates that the state’s marine fisheries sector supports several lakhs of fishers and fishing-dependent workers, making it among the most significant in the country.^[15] These communities are characterised by low capital mobility, absence of formal employment alternatives, and near-total dependence on coastal access for subsistence.

Against this backdrop, the structural changes introduced by the CRZ Notification, 2019 carry disproportionate consequences. The reduction of the No Development Zone to fifty metres in CRZ-IIIA areas which encompasses many of Tamil Nadu’s densely populated fishing hamlets effectively brings permissible construction and tourism infrastructure into the immediate vicinity of active fishing settlements. In districts like Rameswaram and Nagapattinam, where fishing communities occupy narrow coastal strips with no spatial buffer, this reduction creates a direct and measurable threat to livelihood continuity.

Status of Tamil Nadu’s Coastal Zone Management Plan

The CRZ Notification, 2019 mandates each coastal state to prepare a revised Coastal Zone Management Plan mapping fishing settlements, ecologically sensitive areas, and permissible development zones at the district level.^[16] The preparation and MoEF&CC approval of Tamil Nadu’s revised CZMP is a critical safeguard without an approved plan, district-level protections for fishing communities remain legally ambiguous and administratively unenforceable. The current approval status of Tamil Nadu’s revised CZMP must be verified through official MoEF records or RTI before submission, as it constitutes a foundational factual premise of this paper’s argument.

Judicial Response – NGT and Madras High Court

The National Green Tribunal’s Southern Bench, located in Chennai, has adjudicated several matters concerning coastal regulation and fishing community rights in Tamil Nadu in the post-2019 period. While a comprehensive survey of these orders requires database research through NGT’s official order portal, the Tribunal has generally affirmed the principle that coastal development must not be permitted at the cost of traditional fishing livelihoods, reflecting the constitutional jurisprudence discussed in the preceding chapter.

The Madras High Court’s environmental bench has similarly intervened in matters involving coastal displacement and CRZ violations in Tamil Nadu. Notably, the Court has emphasised the obligation of state authorities to ensure that CZMP implementation is conducted with meaningful consultation with affected fishing communities a procedural safeguard whose observance in Tamil Nadu’s revised CZMP process requires empirical verification.

Collectively, the ground reality in Tamil Nadu illustrates that the 2019 Notification’s permissive developmental framework intersects with a population uniquely vulnerable to its adverse consequences a vulnerability that neither the Notification itself nor Tamil Nadu’s implementing framework has adequately addressed.

INTERNATIONAL FRAMEWORK: COMPARATIVE PERSPECTIVES

FAO Voluntary Guidelines for Small-Scale Fisheries

At the international level, the Food and Agriculture Organisation’s Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication, adopted in 2015, represent the most comprehensive normative framework addressing the rights of traditional fishing communities.^[17] Although voluntary in character and therefore not legally binding upon India, these Guidelines articulate principles that carry persuasive authority in legal and policy discourse.

Of particular relevance is the Guidelines’ emphasis on the principle of non-discrimination, the obligation of states to recognise and protect the tenure rights of small-scale fishing communities over coastal resources, and the requirement that development decisions affecting fishing communities be preceded by free, prior, and meaningful consultation.^[18] India’s CRZ framework, including the 2019 Notification, does not expressly incorporate these principles a gap that this paper identifies as a significant normative deficiency warranting legislative attention.

Sri Lanka : A Comparative Coastal Governance Model

Sri Lanka’s Coast Conservation and Coastal Resource Management Act, 2011 provides an instructive point of comparison.^[19] The Sri Lankan framework explicitly recognises the rights of traditional coastal communities as a primary consideration in coastal zone management decisions, and mandates participatory processes involving affected fishing communities before development approvals are granted in coastal areas. While Sri Lanka’s implementation record is itself imperfect, the legislative recognition of community participation rights represents a structural safeguard absent from India’s CRZ framework.

The Principle of Sustainable Development

The principle of sustainable development affirmed in the Rio Declaration, 1992 and subsequently incorporated into Indian environmental jurisprudence through Vellore Citizens Welfare Forum v. Union of India^[20] requires that developmental activities be pursued in a manner that does not irreversibly compromise the ecological or livelihood foundations upon which present and future generations depend. The CRZ Notification, 2019’s facilitation of coastal infrastructure at the expense of traditional fishing livelihoods is difficult to reconcile with this principle, particularly in ecologically sensitive coastal districts of Tamil Nadu.

The international frameworks examined above collectively suggest that India’s 2019 Notification falls short of globally recognised standards for the protection of small-scale fishing communities a shortcoming that should inform domestic legal reform.

FINDINGS, RECOMMENDATIONS AND CONCLUSION

Key Findings

This paper’s analysis yields three principal findings.

First, the CRZ Notification, 2019 has structurally diluted the regulatory protections previously available to traditional fishing communities through the reduction of No Development Zones and the expanded permissibility of coastal development changes that are constitutionally suspect under the right to livelihood guaranteed by Article 21 and the right to practise an occupation under Article 19(1)(g).
Second, Tamil Nadu’s implementing framework presents specific vulnerabilities, including ambiguities in the revised CZMP approval process and insufficient judicial data to conclusively assess enforcement patterns gaps that themselves constitute independent regulatory failures.
Third, India’s CRZ framework lags behind international standards, particularly the FAO Voluntary Guidelines, 2015, in failing to mandate meaningful participatory processes for affected fishing communities before coastal development decisions are made.

Recommendations

The following legal reforms are proposed.

First, the No Development Zone for CRZ-IIIA areas should be restored to at least one hundred metres, or alternatively, site-specific exemptions should be subject to mandatory consultation with gram sabhas of affected fishing communities before approval.
Second, the Central Government should incorporate the FAO Voluntary Guidelines’ free, prior, and meaningful consultation standard into the CRZ framework as a binding procedural prerequisite for all development approvals in fishing community zones.
Third, Tamil Nadu’s revised CZMP should be finalised and approved on priority, with mandatory district-level public hearings involving fishing community representatives as a condition of approval.
Fourth, the National Green Tribunal should be vested with explicit jurisdiction to review post-approval CRZ violations on a suo motu basis in districts with high concentrations of traditional fishing settlements.

Conclusion

The coastline of Tamil Nadu is not merely a regulatory boundary, it is the livelihood of thousands of families whose constitutional rights demand more than procedural acknowledgment. The CRZ Notification, 2019, in its current form, privileges developmental imperatives over the subsistence rights of traditional fishing communities in ways that are constitutionally untenable and internationally inconsistent. Legal reform that centres community rights, ensures procedural participation, and restores meaningful No Development Zone protections is not merely desirable, it is constitutionally imperative.

^[1]Ministry of Environment, Forest and Climate Change, Coastal Regulation Zone Notification, 2019, S.O. 668(E), February 18, 2019.

^[2]Tamil Nadu Fisheries Department, Annual Report 2022–23 (Government of Tamil Nadu, 2023)

^[3]Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

^[4]Ministry of Environment, Forest and Climate Change, CRZ Notification 2011, S.O. 19(E), January 6, 2011; CRZ Notification 2019, S.O. 668(E), February 18, 2019.

^[5]CRZ Notification, 2019, Clause 3 Zone Classification.

^[6]CRZ Notification, 2019, Clause 3(iii)(A) CRZ-IIIA: NDZ of 50 metres; compare CRZ Notification, 2011, Clause 4 NDZ of 200 metres applicable to CRZ-III areas generally.

^[7]CRZ Notification, 2019, Annexure I Permissible Activities.

^[8]CRZ Notification, 2019, Clause 5 Coastal Zone Management Plans.

^[9]Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

^[10]Ibid, para 32.

^[11]Maneka Gandhi v. Union of India, AIR 1978 SC 597.

^[12]S. Jagannath v. Union of India, (1997) 2 SCC 87.

^[13]Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.

^[14]Tamil Nadu Fisheries Department, District-wise Fisher Population Data

^[15]Ibid

^[16]CRZ Notification, 2019, Clause 5 Coastal Zone Management Plans.

^[17] Food and Agriculture Organisation, Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries (FAO, Rome, 2015).

^[18] Ibid, Sections 5 and 7 Tenure Rights and Participatory Governance.

^[19] Coast Conservation and Coastal Resource Management Act, No. 57 of 1981 as amended by Act No. 49 of 2011 (Sri Lanka).

^[20] Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647.

“A LEGAL ANALYSIS OF NATIONAL AND INTERNATIONAL ORGANIZATIONS: REGULATING OUTER SPACE ACTIVITIES”

Author : Avi Kankariya /Law Student /B.A. LL.B. (Hons.) /Third Year / SVKM’s Narsee Monjee Institute of Management Studies, School of Law, Bengaluru

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ABSTRACT

A growing number of activities occurring beyond Earth particularly those conducted by State actors and private sector entities has prompted a greater need for integrated, multi-layered regulatory frameworks. This article focuses on the structures of international and national organizations involved in regulating space activities and how they interact through their institutional mandates, legal instruments, and regulatory issues. The article begins by discussing the United Nations system, specifically the role of the Committee on the Peaceful Uses of Outer Space (COPUOS) and the United Nations Office for Outer Space Affairs (UNOOSA) and analyzing the five space treaties developed by the UN system and the associated principles. The analysis continues with a review of key intergovernmental organizations such as the European Space Agency (ESA) and the International Telecommunications Union (ITU), as well as an examination of the regulatory frameworks in the US, Europe and India. The article concludes that the existing environment provides a necessary starting point but there are gaps in the regulatory framework which requires regulatory cooperation or adaptability focused on commercial activities in space, the utilization of resources from space, and the problem of debris in orbit around earth.

Keywords: Outer Space Treaty, COPUOS, UNOOSA, European Space Agency, International Telecommunication Union, Commercial Space Activities, National Legal Frameworks.

1.INTRODUCTION

A comprehensive examination of the development of space-related activities demonstrates that what was once limited to superpowers during the Cold War has become a battleground for several entities, including satellites, space stations, businesses entering space, and proposals for extracting resources from other planets. The underlying legal framework for regulating mass-market space activities is comprised of a number of different international treaties; customary international law; soft law; and, increasingly, country-specific regulatory systems. Currently, at least 118 countries are signatory to the primary international treaty framework for space (the Outer Space Treaty), and it is predicted that global spending on space-related activity will exceed 600 billion U.S. dollars sometime within ten years. These factors indicate the importance of determining the institutions responsible for creating the rules for outer space activities and how the rules are enforced.

There are three levels of regulation of outer space: United Nations Universal International Law; Regional or Inter-Governmental Organizations (like ESA, ITU); National Domestic Legal Frameworks That Implement a Country’s International Obligations. This paper will analyze systematically and in-depth each of these three levels of law by examining the institutional structure and legal instruments associated with them.

2. THE UNITED NATION FRAMEWORK FOR OUTER SPACE GOVERNANCE

The Committee on the Peaceful Uses of Outer Space (COPUOS)

the Committee on the Peaceful Uses of Outer Space (COPUOS) was established by the United Nations General Assembly in 1959 with the aim of governing the exploration and use of outer space for humankind. Initially, COPUOS had 18 members; now there are over 104 member countries which meet annually in Vienna, Austria.[1] The institutional mandate of COPUOS is threefold: To review international cooperation regarding peaceful uses of outer space, To develop programs under the auspices of the UN, and To examine the legal issues arising from the exploration of outer space.

COPUOS has two subsidiary bodies that meet regularly: the Scientific and Technical Subcommittee and the Legal Subcommittee. Each year in February, the Scientific and Technical Subcommittee addresses the scientific and technical aspects of outer space. Some of these topics include methods for mitigating space debris, near-Earth objects, and the use of nuclear power sources in outer space.[2] Each year in April, the Legal Subcommittee meets to discuss the legal aspects of outer space, such as the legal framework governing outer space activities and five UN treaties that define outer space and applicable law.

One important characteristic of COPUOS is the way in which it makes decisions by requiring consensus among all member states. This means that all COPUOS decisions are made using soft law instruments, that is, guidelines and principles rather than legally binding instruments of law. According to one legal officer at UNOOSA, guidelines and technical standards issued by the COPUOS will become legally-binding within everyone’s national jurisdictions, thereby eroding the hard-law and soft-law distinction.

The United Nations Office for Outer Space Affairs (UNOOSA)

The United Nations Office for Outer Space Affairs (UNOOSA) has operated from its Vienna headquarters since 1958 to serve as the secretariat for COPUOS.[3] The organization assists COPUOS through its diverse programs that cover scientific, technical, legal, and policy dimensions of space exploration activities. The organization operates the United Nations Register of Objects Launched into Outer Space, which serves as a public registry established by the 1976 Registration Convention, while it also manages the UN-SPIDER platform that utilizes space technology for disaster risk reduction purposes.

The United Nations Office for Outer Space Affairs or UNOOSA also takes care of the Space Law, for New Space Actors Project. This project is meant to help countries that’re new to space activities. It helps them build their laws and regulations at home. In the year 2022 UNOOSA started the Accessing Space Treaty Resources Online database, which is also called ASTRO. The ASTRO database is a trusted place where people can find space agreements and see who has agreed to them.[4]

The Five UN Space Treaties: The Corpus Juris Spatialis

The basic legal framework of international space law exists through five treaties which are known as corpus juris spatialis. The instruments function as the fundamental legal standards of the field because they were established through negotiations which COPUOS conducted during the initial decades of space exploration.

The Outer Space Treaty (1967)[5]: The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies became open for signing on 27 January 1967 and the treaty became effective on 10 October 1967. The treaty which people commonly refer to as the Magna Carta of Space Law establishes fundamental principles which state that all nations should benefit from space exploration and usage while outer space remains open for all nations to explore and foreign powers cannot claim space as their territory.11 The Article VI section establishes State responsibility as its main legal principle by stating that all nations must control their international space operations which apply to both governmental and non-governmental space activities that require official permission to proceed.

The Rescue Agreement (1968)[6]: The Agreement on the Rescue of Astronauts the Return of Astronauts and the Return of Objects Launched into Outer Space which the United Nations adopted on 22 April 1968 explains Articles 5 and 8 of the Outer Space Treaty. States Parties must execute every available method to complete astronaut rescue operations who face emergency situations and return them to their original launching nation because astronauts serve as “envoys of mankind” according to international space law.

The Liability Convention (1972)[7]: The Convention on International Liability for Damage Caused by Space Objects, which became effective on 1 September 1972 establishes absolute liability of the launching State for damage caused by its space objects on Earth’s surface or to aircraft in flight and fault-based liability for damage in outer space. The Convention was notably invoked in 1978 following the crash of the Soviet Cosmos 954 nuclear-powered satellite over Canadian territory which resulted in a diplomatic settlement.

The Registration Convention (1976)[8]: The Convention on Registration of Objects Launched into Outer Space, which entered into force on 15 September 1976,14 requires launching States to maintain national registries and furnish information on space objects to the UN Secretary-General. The main function of this instrument serves as the foundational element for orbital transparency which enables monitoring of potential liabilities according to the Liability Convention.

The Moon Agreement (1979)[9]: The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, which became effective on 11 July 1984,15 mandates the establishment of an international regime to govern resource exploitation because it classifies the Moon together with its natural resources as “the common heritage of mankind.” The Agreement’s effectiveness, however, remains severely constrained because only eighteen States are party to it as of 2025 and major spacefaring nations including the United States and Russia and China have declined to ratify it which results in its common heritage provisions being mostly aspirational.

3. KEY INTERGOVERNMENTAL ORGANIZATIONS IN SPACE REGULATIONS

The European Space Agency (ESA)

The European Space Agency or ESA was set up in 1975. It is an organization that helps countries in Europe work together in space.[10] The ESA does two things: it builds and runs spacecraft, and it helps its member countries make their own space laws. ESA has 22 member countries that work together on space projects. Over the years ESA has become very good at working in space. It has helped European companies compete in the space industry by investing a lot of money in it. The European Space Agency coordinates space activities. Has a lot of technical knowledge. This knowledge helps ESA and its member countries like those in the space sector to advance in space exploration.

The European Space Agency (ESA) holds a special status as its institutional framework operates through specific governmental regulations. The European Space Agency (ESA) has officially recognized the Rescue Agreement and the Liability Convention and the Registration Convention which grants the organization international legal status according to space law. The European Space Agency (ESA) functions as an intergovernmental organization through which its Member States can work together and share information while developing common positions about international and national space law matters including COPUOS sessions.[11]

The European Space Agency provides its most significant legal impact through its international space law development work to member states. The European Space Agency provides essential support to Finland and other countries that developed their domestic space laws after 2018 by offering institutional knowledge and legal assistance for their legislative development. ESA acts as a “package deal” provider for Member States that lack the domestic capacity to assess the technical and legal dimensions of space regulation independently. The intergovernmental law-making process of this collaborative model works to achieve its main objective of protecting international space law from becoming fragmented while allowing different nations to maintain their distinct regulatory systems.

The International Telecommunication Union (ITU)

The International Telecommunication Union (ITU) functions as a United Nations specialized agency that controls essential radio-frequency spectrum and satellite orbital slot regulations. ITU’s Radio Regulations established an international legal framework that governs both radio-frequency spectrum usage and geostationary satellite orbit and other satellite orbit operations. The requirement for ITU coordination exists because orbital slots are limited and radio-frequency interference can create dangerous situations, which means that satellite operators must first obtain their ITU filing before they can receive domestic spectrum authorization from organizations like the FCC in the United States.

The ITU process requires applicants to file coordination requests up to three to five years before launch, making it the longest lead-time regulatory process in commercial spaceflight.[12] National telecommunications administrations file on behalf of their operators through processes governed by the Radio Regulations. The failure to initiate ITU coordination before national licensing can result in a domestic license with no international spectrum protection — a significant commercial and legal vulnerability for satellite operators.

International regulatory conflicts in satellite networks have emerged as the primary operational challenge for multiple countries because of their need to develop satellite networks over international regions. The increasing number of constellation filings has created challenges which include determining how many satellites can operate in space and how to distribute satellite access among countries and whether the existing “first come first served” method of spectrum distribution provides sufficient protection for developing countries with limited capabilities to submit their coordination requests.

NATIONAL REGULATORY REGIMES

The United States

The U.S. has the most advanced national framework for regulating its space program; therefore, the U.S. is still leading in the world for both government and commercial space use. This is also due to there being multiple regulatory authorities across agencies that govern separate areas of space operations provided by each agency.

The Commercial Space Launch Act of 1984 (Public Law 98-575) serves as the core legislation covering commercial space launches; it gives DOT authority to regulate and promote commercial space launches. FAA/AST is the agency within the DOT that is responsible for the regulation and promotion of the launch industry; it issues licenses to U.S. citizens for launching or re-entering (via launch) anywhere in the world or for anyone to operate as a licensee; therefore, any

commercial launch or re-entry must be licensed.[13] The FAA issued an important rulemaking in 2020 that created a new performance-based licensure system for all commercial launch and re-entry vehicles (including rockets and re-entering vehicles) as codified in Title 14, Part 450 of the Code of Federal Regulations, replacing the older licensing model which required separate licensing for each vehicle type.[14]

The Federal Communications Commission (FCC) grants operators of commercial satellite systems licenses for communication and uses spectrum allocation to manage the use of commercial space systems. The National Oceanic and Atmospheric Administration (NOAA) grants licenses for commercial Earth remote sensing satellites. Export controls over space technologies are jointly administered by the Department of Commerce and the Department of State, through the International Traffic in Arms Regulations (ITAR), which the State Department’s Directorate of Defense Trade Controls administers.[15]

The FAA’s licensing evaluation process consists of five components: safety review, policy review (provided by the Department of Defense and Department of State), payload review, financial responsibility requirements, and environmental review. The complexity and multi-agency nature of this framework has resulted in a lot of criticism from industry about regulatory fragmentation and processing times. There is no established mechanism for authorizing new space activities including on-orbit servicing, in-space manufacturing, and cislunar activities that would not be easily covered by any specific agency such as the FAA, the FCC, or NOAA. This creates concerns about how to comply with Article VI of the Outer Space Treaty.[16] On April 12, 2025, an Executive Order was issued directing the Department of Commerce to develop an authorization process for these types of new space activities to address this regulatory gap.

India: From State Monopoly to Liberalized Space Economy

The Indian Space Research Organization (ISRO), established in 1969 and taking over from the Indian National Committee for Space Research (INCOSPAR) created in 1962, has always been a fully public sector Indian space program. Since its inception ISRO has achieved many remarkable milestones including launching many commercial satellites for foreign customers (over 300) and sending the Chandrayaan-1 lunar spacecraft to orbit.[17]

India’s governance structure for its space sector has changed dramatically through two major initiatives: the establishment of IN-SPACe (Indian National Space Promotion and Authorization Centre) and the recent formulation of an Indian Space Policy 2023. IN-SPACe acts as the regulatory and promotional agency established to carry out India’s obligations under Article VI of the Outer Space Treaty by creating a system for licensing, permitting, and oversight of non-profit or non-governmental commercial operators.[18] IN-SPACe also provides a channel for the private sector to communicate with ISRO, make assessments of industrial requirements, and to help to provide all commercial operators with an equal opportunity in India’s space market.

The Indian Space Policy 2023 specifies how the Department of Space (DOS), ISRO, IN-SPACe, and the New Space India Limited (NSIL) are each responsible within the framework of India’s space program. Non-governmental entities (NGEs), which will require authorization to operate, will now be able to provide space transportation, satellite operations and remote sensing services significant changes from the previous State monopoly structure. Whilst India’s national space experience is heading towards a fully integrated legislative system, the Draft Space Activities Bill, 2017 (which would have addressed many of the issues related to licensing, liability and intellectual property) has not been enacted as of 2026 and therefore the legislative framework is entirely dependent on executive policy and not parliamentary law.

EMERGING REGULATORY CHALLENGES

Commercial Space Activities and the Regulatory Gap

With the growing presence of private companies in the commercial space industry including SpaceX, Blue Origin, and many others there has been a huge lack of clarity within the current framework for International Space Law. The Outer Space Treaty was originally intended to regulate only government actors. As such, while the legal authority for controlling private space activities through Article VI of the Outer Space Treaty exists, the practical means of controlling those activities (i.e. state responsibility and national authorization and supervision) are too vague and result in differing levels of state control. The Outer Space Treaty provides no guidelines for how an authorized national government should issue their own authorization, leading to numerous differences between countries with respect to how strict or lenient the authorization process will be.

In the case of the US experience there is currently no broader spectrum of government regulation that could cover all activities occurring above earth (in space) after launch to re-entry. The FAA’s authority ends once the vehicle is separated from the rocket during the launch; so, there is not an authority to govern things like on-orbit servicing, manufacturing in space and clean-up of stationary debris that would normally take place in low earth orbit. There are many international organizations including COPUOS and some governments that have been trying to solve the problem of how to authorize “mission” or “novel space activity” (new types of mission/space activities) since at least 2026.[19]

Space Debris and the Common Governance Problem

The issue of managing debris in space presents a classic example of the challenge of managing the global commons. At present, there are over 27,000 tracked objects in orbit, plus millions more small but untracked pieces of debris that pose potential collision hazards to currently operating satellites. To address this problem, COPUOS adopted the Space Debris Mitigation Guidelines as the principal international basis for managing orbital debris back in 2007, and these guidelines received support from the UN General Assembly. The problem with the Space Debris Mitigation Guidelines is that they are not legally binding and, therefore, rely on each nation to voluntarily implement them.[20]

Growing numbers of large LEO constellations (with some being composed of thousands of satellites) have highlighted debris concerns and the 2022 FCC requirement to deorbit a satellite within five years after completion of its mission rather than the previously recommended twenty-five years is one of the most proactive national regulatory approaches to the debris issue. On the international level, there is not an existing binding treaty which covers either active debris removal or liability for debris-generating events with the needed level of specificity for today’s environment. Additionally, as per the Liability Convention, the launching State is responsible for debris damage, but that is becoming increasingly problematic as multiple decommissioned satellites from multiple launching States collide and create additional debris.

Space Resource Exploitation

In terms of mining water ice, minerals and different materials from the Moon, asteroids and other celestial objects, the commercial exploitation of such resources is the most controversial . The Outer Space Treaty forbids countries from taking ownership of outer space and celestial objects, but it does not specifically mention taking ownership of resources extracted from celestial objects. This has resulted in different countries creating different laws with regards to which resources can be taken.

According to the U.S. SPACE Act of 2015 and Luxembourg’s 20 July 2017 Law on the Exploration and Use of Space Resources, private persons may extract and possess space resources under international law, as if these resources were like fish in the open ocean, they are considered res nullius capable of being appropriated by taking possession of them, rather than res communis. However, if and when the Moon Agreement’s common heritage principle was ratified more widely, then all countries would have to agree on an international framework for fair sharing of these resources. At present, the countries that belong to COPUOS are in negotiations through the Working Group on Space Resources of the Legal Subcommittee to create a framework, but they have not yet reached an agreement.

CONCLUSION

There are increasing tensions in the current framework of space from three sources. First, commercial space activities have entered many markets with very little prior regulation or infrastructure; thus, the regulatory framework needs to adapt quickly to accommodate these new entrants into space. Second, the number of debris in orbit has risen to levels that threaten future operations and sustainability of near-Earth orbital activities; therefore, binding and flexible regulatory mechanisms must be developed to meet current problems that are not addressed by existing non-binding guidelines. Third, the increasing number of companies and activity related to extracting resources from space will require clear regulatory frameworks as neither the Outer Space Treaty nor the very few nations ratifying the Moon Agreement provide adequate clarity.

In order to solve the current challenges, there is need to find new ways of addressing them, not just keep improving old ones. A truly innovative response will involve an innovation in the regulatory framework that maintains multilateralism and promotes inclusive behaviour, as well as utilizing the technical expertise of organizations such as ESA and ITU. This new response should also allow for domestic regulatory experimentation, whilst preventing negative forms of fragmentation through forum shopping and regulatory arbitrage. In decades to come, the main legal question concerning the governance of space will be whether or not the international community preserves the will to govern effectively.

[1] U.N. Office for Outer Space Affairs, About COPUOS, https://www.unoosa.org/oosa/en/COPUOS/copuos.html

(last visited Apr. 16, 2026).

[2] U.N. Office for Outer Space Affairs, COPUOS: Scientific and Technical Subcommittee, https://www.unoosa.org/oosa/de/ourwork/copuos/comm-subcomms.html (last visited Apr. 16, 2026).

[3] G.A. Res. 1348 (XIII), International Co-operation in the Peaceful Uses of Outer Space, U.N. Doc. A/4090 (Dec. 13, 1958); U.N. Office for Outer Space Affairs, About UNOOSA, https://www.unoosa.org (last visited Apr. 16, 2026).

[4] U.N. Office for Outer Space Affairs, Space Law Treaties and Principles, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html (last visited Apr. 16, 2026).

[5] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty] (118 State parties as of Oct. 2025).

[6] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119 [hereinafter Rescue Agreement].

[7] Convention on International Liability for Damage Caused by Space Objects, opened for signature Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention].

[8] Convention on Registration of Objects Launched into Outer Space, opened for signature Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 [hereinafter Registration Convention].

[9] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18, 1979, 1363 U.N.T.S. 22 [hereinafter Moon Agreement].

[10] Convention for the Establishment of a European Space Agency, opened for signature May 30, 1975, 1297 U.N.T.S. 161.

[11] Fabio Tronchetti, The European Space Agency’s Contribution to National Space Law, in Handbook of Space Law 123, 135 (Frans von der Dunk & Fabio Tronchetti eds., 2015).

[12] Viventine Space Sys., U.S. Space Regulatory Compliance: The Operator’s Playbook, https://www.viventine.com/the-downlink/us-space-regulatory-compliance/ (last visited Apr. 16, 2026).

[13] Norton Rose Fulbright, Global Outer Space Guide: United States,

https://www.nortonrosefulbright.com/en/knowledge/publications/08a2c80a/global-outer-space-guide-us (last visited Apr. 16, 2026).

[14] Commercial Space Launch and Reentry Licensing Requirements, 85 Fed. Reg. 79,566 (Dec. 10, 2020) (to be codified at 14 C.F.R. pt. 450).

[15] Rachel Lindbergh, Commercial Space: Federal Regulation, Oversight, and Utilization, Cong. Research Serv., CRS Rep. No. R45416 (2023).

[16] Brian Weeden & Victoria Samson, Space Agenda 2025, Aerospace Corp. Ctr. for Space Pol’y & Strategy (Oct. 2024), https://csps.aerospace.org/sites/default/files/2024-10/05d_SpaceRegulatoryReform\_Weeden-Woodburn\_20241018PM.pdf.

[17] Legal Overview of Space Law in India, Lexology (Dec. 6, 2021), https://www.lexology.com/library/detail.aspx?g=4d90359c-b79e-40c3-8d2c-8c9fdf308484.

[18] Legal Serv. India, Space Law in India: A Legal Run Through, https://www.legalserviceindia.com/legal/article-8413-space-law-in-india-a-legal-run-through.html (last visited Apr. 16, 2026).

[19] Greenberg Traurig LLP, Executive Order Aims to Accelerate Commercial Space Development Through Deregulation, Insights (2025), https://www.gtlaw.com/en/insights/2025/10/executive-order-aims-to-accelerate-commercial-space-development-through-deregulation.

[20] Comm. on the Peaceful Uses of Outer Space, Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/62/20, annex (2007).

“ The Evolution of India’s Cross-Border Insolvency Regime: A Critical Appraisal of Section 240C of the IBC Amendment Bill 2025 and the Adoption of the UNCITRAL Model Law”

Author : Priyanshi Varshney, Student, CHRIST(DEEMED TO BE UNIVERSITY), Pune Lavasa Campus – ‘The Hub of Analytics”

Co.Author’s Name: Ishan Mankotia, , Student, CHRIST(DEEMED TO BE UNIVERSITY), Pune Lavasa Campus – ‘The Hub of Analytics’

Download Full Article (PDF)

Abstract

In essence, India’s mechanism for dealing with cross-border insolvency was outdated and inefficient. For several years, the IBC could take recourse only to sections 234 and 235, where reciprocity agreement and letter of request for evidence were possible. Beyond that, Indian courts had to rely only on the principle of judicial comity, in terms of which the recognition of bankruptcy procedure abroad, as well as sale of the debtor’s property, became possible. The case of Jet Airways, which entailed insolvency proceedings both in India and in the Netherlands, highlighted the limitations in place in 2019.[1]

Having considered numerous recommendations issued by different expert committees, the government decided to incorporate Section 240C into the IBC, using the amendment bill of 2025.[2] According to Section 240C, the Central Government can declare specific categories of debtors in terms of cross-border insolvency and frame rules regarding this type of process. The section also grants the possibility to adopt other provisions contained in IBC or Companies Act and establish special NCLT benches for consideration of these matters. It is worth adding that Section 240C contains no rules and merely introduces an enabling power.[3]

This paper reviews Section 240C and the Indian cross-border insolvency framework from the perspective of the international standardization set out in the UNCITRAL Model Law on Cross-Border Insolvency.[4] The study starts by outlining the historical shortcomings associated with Sections 234 to 235, as well as some landmark rulings, before moving on to evaluate the wording and narrow scope of Section 240C. A comparative assessment is then made between the current legislation in India and the UNCITRAL Model Law, especially in relation to access, recognition, Centre of Main Interests (COMI), relief, and court-to-court assistance.

KEYWORD: Insolvency, Cross-Border, Framework, UNCITRAL, Country

Introduction

EVOLUTION OF INDIA’S CROSS-BORDER INSOLVENCY REGIME

1.1 Background and Early Statutory Framework

When the Insolvency and Bankruptcy Code, 2016 (IBC) came into existence, provisions of insolvency law concerning India’s cross-border insolvencies remained grossly inadequate. [5]The entire cross-border provisions were included in Chapter XV (Part V) of the IBC which consists of only two operative provisions concerning international cooperation:

S. 234 (Agreements with Foreign Countries): Under this provision, the Central Government has been granted powers to make agreements with foreign countries for the application and implementation of the provisions of the Code. Further, the Central Government also has powers to issue notifications in respect of the conditions in accordance with which the provisions of the Code shall apply to assets of corporate debtors located in those treaty countries.[6]
S. 235 (Letter of Request to a Country outside India): In case the resolution professional or the liquidator considers that the assets of corporate debtors are located in a foreign country with which the Central Government has entered into reciprocal agreements under S. 234, he or she may seek a letter of request from NCLT to the competent authority abroad for the evidence or action regarding such assets.[7]

These rules, which came into effect from April 2017, took a minimalist and reciprocal approach. These rules were merely subsidiary in nature; they enabled the gathering of evidence and tracing of assets but provided no means of recognizing foreign insolvency proceedings, granting automatic or discretionary relief, coordinating simultaneous proceedings, or conferring any substantive rights on foreign representatives. To date, there have been no bilateral treaties under Section 234, making this framework practically non-functional, forcing resort to the doctrine of comity at common law.[8]

1.2 Judicial Developments and Comity

Due to the lack of such a statute, the Indian courts have adopted the principles of international comity and civil procedural laws in dealing with foreign insolvency matters. Earlier cases were focused on the enforcement of foreign decrees or executory proceedings without recognizing foreign insolvency proceedings.

However, a landmark case occurred in Toshiaki Aiba v. Vipan Sharma (2021),[9] where the Delhi High Court recognized an insolvency order of Japan and allowed the Japanese trustee in bankruptcy to sell the assets of the debtor located in India. In this case, it was stated that the application of the Indian court was not for execution of foreign judgment as per Section 44A of the Code of Civil Procedure Act, 1908. Further, the court declared that “Indian courts must not be allowed to obstruct any foreign insolvency proceedings initiated in accordance with law.”[10]

This doctrine was also reaffirmed in the case of Mahmood Hussain Khan v. Canisia Ceizar (2022),[11] where the Telangana High Court ruled in favor of the validity of the Swiss bankruptcy court’s sale of Indian immovable property through auction. The court held that the Swiss auction certificate met the procedural requirements prescribed in Section 13 CPC and was consistent with the principles of comity. For the first time, Indian courts recognized a foreign insolvency-related conveyance of Indian property.

Jet Airways (India) Ltd.’s insolvency case (2019-2024)[12] stands out as the most significant cross-border insolvency event to date. The corporate insolvency resolution process (CIRP) began in India in June 2019, alongside ongoing Dutch insolvency proceedings. The NCLT Mumbai Bench recognized the parallel proceedings. Meanwhile, NCLAT permitted the Dutch Administrator only observer status within the Committee of Creditors. In the absence of any coordination framework within the 2016 law, the Supreme Court issued a final order for liquidation in 2024 on domestic grounds[13]. The Jet Airways case is considered the first cross-border insolvency in India despite being domestic.

However, such judicial interventions were ad-hoc and case-specific in nature. These developments highlighted the critical necessity for an internationally harmonized cross-border insolvency procedure in India

1.3 Timeline of Key Developments

The following timeline captures the legislative, judicial, and international developments that shaped India’s cross-border insolvency regime leading up to the insertion of Section 240C:

Year	Development
2016	Insolvency and Bankruptcy Code, 2016 enacted and effective from April 2017. Introduced Sections 234 and 235 under Chapter XV for limited cross-border cooperation through bilateral agreements and letters of request.[14]
2018	Insolvency Law Committee recommended adoption of the UNCITRAL Model Law on Cross-Border Insolvency and prepared a draft “Part Z” framework.[15]
2019	Jet Airways (India) Ltd. CIRP initiated in India along with parallel Dutch insolvency proceedings. NCLT permitted the Dutch Administrator to participate in CoC meetings as an observer.[16] U.S. Bankruptcy Court (Delaware) recognised Indian IBC proceedings as a foreign main proceeding in the SEL Manufacturing case.[17]
2021	Singapore High Court recognised Indian CIRP as a foreign main proceeding and granted relief to the Indian Resolution Professional in Re Compuage Infocom.[18] Delhi High Court recognised Japanese bankruptcy order on principles of comity and allowed the foreign trustee to deal with Indian assets.[19]
2022	Telangana High Court enforced a Swiss bankruptcy court’s sale of debtors’ Indian property.[20]
2024	Calcutta High Court declined to enforce an overseas moratorium order, citing the absence of a statutory cross-border framework in India.[21]
2026	Insolvency and Bankruptcy Code (Amendment) Act, 2026 passed, inserting Section 240C to enable adoption of the UNCITRAL Model Law on Cross-Border Insolvency[22]

Statement of the Problem

Indias cross border insolvency setup feels really behind the times even though the country is getting so tied into the world economy[23]. When they passed the Insolvency and Bankruptcy Code back in 2016, there was this Chapter XV with just two sections, 234 and 235, about bilateral agreements and letters of request. Those did not work out well at all because there were no reciprocity deals in place and nothing for recognizing foreign cases or giving automatic help or coordinating things when insolvencies happen in multiple places.[24]

The rest of the law sticks to this old territorial approach where domestic proceedings only cover assets inside India and there is no real way to get universal recognition or cooperation built in. Courts had to fall back on common law comity kind of on the fly which led to all sorts of inconsistent results and delays that nobody could predict.[25] You see that clearly in cases like Jet Airways and the one with Glas Trust against Byju Raveendran. It seems like that approach just creates more problems than it solves. Now with the 2026 amendment they added Section 240C which is supposed to let them adopt the UNCITRAL Model Law on cross border insolvency[26]. But honestly it does not say much, just enables the Central Government to make rules later on access or recognition or relief or figuring out the center of main interests or how courts should cooperate. There are no actual rules there yet so it feels a bit empty.

This leaves a big gap and I think there is a real push needed for a solid statutory setup that goes deep and lasts to cut down on judicial confusion and stop assets from disappearing in cross border situations and help creditors get better recoveries. Concerns keep coming up about how long implementation might take or if domestic interests get shortchanged or if judges will apply it unevenly leading to creditors not being treated the same and clashes between keeping things territorial versus going universal.The main thing this paper is looking at is whether Section 240C as it stands now really moves Indias regime forward in a useful way or if it is just a placeholder that does not bring the certainty and efficiency or fit with international standards that global insolvencies demand these days

Research Questions

To what extent does Section 240C of the IBC (Amendment) Act, 2026 provide an effective framework for the adoption of the UNCITRAL Model Law on Cross-Border Insolvency, or does it remain a mere enabling provision that fails to address the critical gaps in India’s cross-border insolvency regime?
How significant are the divergences between Section 240C and the substantive provisions of the UNCITRAL Model Law (especially on recognition, relief, COMI determination, and court cooperation)?
What legislative and procedural reforms are necessary to overcome the limitations of Section 240C and establish a robust, long-term cross-border insolvency framework that reduces judicial uncertainty, prevents asset dissipation, and maximises creditor recovery?

Literature Review

Cross-border insolvency has emerged as one of the most pressing challenges in the era of globalisation, where corporate debtors routinely operate across multiple jurisdictions with assets, creditors, and operations spanning several countries. The literature unanimously recognises that while domestic insolvency laws have undergone significant modernisation, the absence of a comprehensive statutory framework for transnational cases continues to create uncertainty, delay resolutions, increase litigation costs, and reduce creditor recoveries. In the Indian context, scholars have extensively documented the evolution, limitations, and reform needs of the cross-border insolvency regime, providing a strong foundation for the present critical appraisal of Section 240C of the IBC (Amendment) Act, 2026.

The UNCITRAL Model Law on Cross-Border Insolvency (1997) is universally acknowledged as the global benchmark for harmonised cross-border insolvency regulation[27]. Multiple studies highlight its core principles —direct access for foreign representatives, recognition of foreign main and non-main proceedings based on the debtor’s Centre of Main Interests (COMI), automatic and discretionary relief (including moratoriums), court-to-court cooperation, and a narrow public policy exception — as essential tools for promoting predictability, efficiency, and value maximisation. Scholars such as Bhavya Sahu, Poorna S., and V. Jayshree & Mamata Biswal emphasise that the Model Law adopts a modified universalist approach, balancing sovereignty concerns with the need for coordinated proceedings, and has been successfully adopted (with adaptations) in jurisdictions like the United States (Chapter 15), United Kingdom (Cross-Border Insolvency Regulations 2006), Singapore (IRDA 2018), and Canada.[28]

In contrast, India’s statutory framework under the Insolvency and Bankruptcy Code, 2016 has been consistently criticised as inadequate. Sections 234 and 235, which form Chapter XV of the IBC, provide only limited mechanisms bilateral reciprocity agreements and letters of request for evidence or asset tracing in reciprocating territories.[29] As noted by Divyansh Singh, Akhilesh R. Narayanan & Senthil V.P., and Pinky Dhar & Bhupali Saikia, these provisions have remained largely inoperative due to the complete absence of any notified reciprocity agreements, rendering them “purely auxiliary” in nature. The literature highlights that the 2016 regime operated on classical territorialism, offering no recognition of foreign proceedings, no automatic relief, and no structured mechanism for coordination of parallel insolvencies.

Judicial attempts to fill this statutory vacuum have been examined in detail across the literature. Cases such as Toshiaki Aiba v. Vipan Sharma (2021),[30] Mahmood Hussain Khan v. Canisia Ceizar (2022), and the high-profile Jet Airways (2019–2024) proceedings are repeatedly cited as illustrations of courts invoking principles of comity and Section 13 of the Code of Civil Procedure, 1908. While these decisions demonstrate judicial willingness to assist foreign proceedings on a case-by-case basis, scholars (including Sidhi M. Jain and Poorna S.) criticise the ad-hoc approach for resulting in inconsistency, prolonged delays, and unpredictability. The Glas Trust v. Byju Raveendran (2024) ruling further underscored the absence of a codified framework when the Calcutta High Court declined to enforce a foreign moratorium.

Legislative reform efforts have also been thoroughly reviewed. The Insolvency Law Committee (ILC) Report (2018) and the subsequent Cross-Border Insolvency Rules Committee (CBIRC) recommendations (2020–21) strongly advocated adoption of the UNCITRAL Model Law through a dedicated “Part Z” or Chapter in the IBC.[31] However, the enactment of the Insolvency and Bankruptcy Code (Amendment) Act, 2026, which inserted Section 240C, has drawn pointed criticism in recent scholarship. V. Jayshree & Mamata Biswal describe Section 240C as a “mere enabling provision” and “high-level placeholder” that empowers the Central Government to frame rules for notified classes of debtors but contains no substantive provisions on access, recognition, COMI determination, relief, or cooperation.[32] Divyansh Singh and others note that the section merely defers the entire framework to future subordinate legislation, thereby risking implementation delays and failing to provide the statutory certainty required in cross-border cases.

The present research seeks to fill this identified gap by providing a focused, in-depth critical appraisal of Section 240C vis-à-vis the UNCITRAL Model Law. It traces the evolution of India’s regime, analyses the structural and substantive shortcomings of the enabling provision, and offers concrete recommendations for a robust, long-term statutory framework aligned with international best practices.

SECTION 240C OF THE IBC (AMENDMENT) ACT, 2026

Section 240C was introduced in Part V of the IBC, 2016 as the Insolvency and Bankruptcy Code (Amendment) Act, 2026 to provide the main legislative mechanism for the much-needed cross-border insolvency regime in India.[33] The Section operates in a rather enabling fashion, as the Central Government is empowered to make rules for administration of cross-border insolvency proceedings, by notification, for any class or classes of debtors as notified. Section 240C contains a “notwithstanding” clause enabling the making of rules notwithstanding any other provision of the IBC and/or the Companies Act, 2013, and empowers modification and adaptation of provisions, as well as creation of special benches of NCLT. A requirement to present the draft rules before Parliament has been provided under sub-section (3).[34] Most importantly, Section 240C does not contain any substantive provision related to recognition of foreign main and non-main proceedings, granting of automatic and discretionary relief, determination of Center of Main Interest, cooperation between courts, or a public policy exception, thus merely providing a framework and leaving implementation to future notified rules.[35]

Section 240C is a result of the recommendations made by the Insolvency Law Committee (2018) and Cross-Border Insolvency Rules Committee (2020-21), where they recommended adopting the UNCITRAL Model Law. The introduction of Section 240C in the Amendment Bill, 2025 was to transcend the ineffectual reciprocity-based mechanism provided under Sections 234-235. Though the section gives powers to the Government to formulate suitable rules and benches, its enabling nature poses several drawbacks, such as excessive reliance on future notifications, delay in implementation, class-based selective approach, and lack of immediate statutory clarity. To date, as of April 2026, there has been no notification of any rules. Hence, Section 240C can be said to act as an enabler rather than an independent mechanism, which will be elaborated upon in the next few chapters while comparing Section 240C with the UNCITRAL Model Law.[36]

THE UNCITRAL MODEL LAW ON CROSS-BORDER INSOLVENCY (1997)

The UNCITRAL Model Law on Cross-border Insolvency, approved in 1997 by the United Nations Commission on International Trade Law, is recognized worldwide as the standard for achieving procedural harmonization in transborder insolvencies.[37] However, it does not aim at substantive uniformity in insolvency laws in different countries; rather, it addresses four key principles: access, recognition, relief, and cooperation. The model law applies the principle of modified universalism, which means that its main objective is to increase asset value, treat creditors fairly, discourage forum shopping, prevent dissipation of assets, and effectively resolve the affairs of multinational firms while recognizing national sovereignty through limited public policy doctrine. This model law gives enacting countries the opportunity to tailor provisions to their local situations, and it has inspired other countries to follow suit, including the USA (Chapter 15), UK, Singapore, and Canada.

Provisions contained in the Model Law include:

Access (Articles 9-14): Representatives from other States have a right of direct access to courts in the enacting state to obtain assistance or become involved in local proceedings. This includes applying for the commencement of a local insolvency proceeding or becoming involved in one that is already under way.[38]
Recognition (Articles 15-18): Recognition can be sought via an expeditious procedure in which a foreign representative applies to the court. The court must recognize the foreign proceeding as a foreign main proceeding if it was commenced in the Centre of Main Interests (COMI) of the debtor. It must recognize the foreign proceeding as a foreign non-main proceeding if the debtor has an establishment in the State. There are presumptions that speed up the process; however, a public policy exception exists (Article 6).[39]
Relief (Articles 19-21): In an application for recognition, temporary relief can be granted. If a main proceeding is recognized, there will automatically be a stay on any actions against the debtor’s assets and the suspension of execution rights (Article 20). Discretionary relief can also be provided to either main or non-main proceedings (Airticle 21)[40]
Cooperation and Coordination (Articles 25-27 & Chapter V): There is a provision for the courts to cooperate and coordinate to the greatest degree possible. Also, the provisions include the coordination between proceedings that run simultaneously; for example, regarding payments made in more than one proceeding.[41]

The strength of the Model Law is procedural certainty and predictability. The Model Law is unique as it not only includes the authorization of rules but also details them in a functional manner. As opposed to Section 240C of India, which does not provide any detailed procedures, the Model Law provides a self-sufficient process. It forms the benchmark for comparison of Section 240C in the subsequent chapter.

COMPARATIVE ANALYSIS

The essential difference between section 240C of the IBC (Amendment) Act, 2026 and the UNCITRAL Model Law on Cross-Border Insolvency (1997) lies in the former’s inefficiency and lack of coherence as compared to the latter’s coherent and efficient framework.[42] The Model Law provides for a self-executing statute which allows for access by foreign representatives, recognition of foreign main proceedings and non-main proceedings depending on the Centre of Main Interest (COMI) of the debtor, automatic stay in case of recognition of the foreign main proceeding, discretionary relief, cooperation between courts, and a limited public policy exception clause. In direct opposition to this, section 240C is an incomplete framework as it merely grants the Central Government the power to provide rules for debtors notified in accordance with the provision. This section makes no mention of any specific provisions related to the recognition process, relief provided to the debtor, determination of the debtor’s COMI, automatic stay, or even court cooperation.

Further illustration of the deviation can be drawn from a comparative analysis with other jurisdictions. Statutory regimes such as those adopted in the United States (Chapter 15), United Kingdom (Cross-Border Insolvency Regulations 2006), Singapore (IRDA 2018), and Canada comprise of comprehensive statutory rules similar to the UNCITRAL Model Law, which ensures quick recognition of foreign insolvency proceeding, automatic stay of proceedings relating to the main proceeding, court cooperation and a clear-cut distinction based on the COMI concept among others. [43]While Section 240C takes a prudent approach to make regulations for adaptation to Indian context through exceptions in relation to strategic sectors, it fails to provide the certainty that comes with Model Law adopters. Instead, this provision makes it imperative for the enactment of regulations for the enablement of a statutory process, which is a subject for executive action and provides no remedy to foreign representatives at all.

However, the first significant advantage of Section 240C is its ability to be flexible enough to design suitable rules as per Indian requirements and create special benches in the NCLTs.[44] However, there are many serious disadvantages to the section, such as the lack of substance in provisions relating to the main issues of COMI, automatic stay, and safeguards for public policies, possibility of prolonged delays in making rules, and dependence on ineffective Sections 234–235 during the interim period. These disadvantages are similar to the ones that came into view in the Jet Airways case and the Glas Trust case. In other words, despite the introduction of Section 240C as an attempt to legislate in the field of reform, it can be considered only as a formal recognition of the necessity of changes which are far from sufficient compared to the UNCITRAL Model Law and its foreign analogues, which are more concrete and effective.

POLICY OBJECTIVES AND PRACTICAL IMPLICATIONS

There are various policy purposes behind the inclusion of Section 240C. One such purpose is the transition from the obsolete system of reciprocity in Sections 234 and 235 to a more organized structure that would be able to deal with multinational insolvency proceedings within a globalized world order.[45] There would be an objective of safeguarding business values, ensuring impartial treatment of domestic and international creditors, minimizing asset disintegration, and achieving effective cross-border insolvency proceedings. Through this clause, one is able to enable India to adopt rules based on the principle of UNCITRAL Model Law. This would increase legal certainty, avoid forum shopping, provide for judicial cooperation, and show that India is dedicated to international standards.

Notwithstanding the stated aims of the provisions, Section 240C faces certain practical concerns. Being a pure enabling provision poses heavy reliance on future rulemaking, posing threats of further delays in implementation and rendering the framework inoperable for an indefinite period.[46] There is still uncertainty before courts, inconsistency in judicial outcomes, and lack of coordination, as was evident in the Jet Airways case and that of Glas Trust. The conflict of territorialism and universalism persists, possibly resulting in the loss of assets due to parallel actions and low recoveries for foreign claimants.

There are several additional important issues that create complexities within the existing scheme. Firstly, there is no guidance in terms of statute as to how the COMI should be determined under Section 240C, which can lead to potential disputes and forum shopping.[47] Secondly, Section 240C contains no public policy exclusion, thus not allowing the courts to ensure that no foreign proceeding that violates India’s national interest will be enforced.[48] Thirdly, the status of foreign creditors under the new legislation needs clarification, especially the question whether they have an equal ranking and standing. Finally, the coordination of the work of courts is left completely to rules, and no provision addresses communication between courts or simultaneous proceedings. To conclude, although Section 240C incorporates all the necessary policy objectives, due to the absence of enabling mechanism, this legislation cannot provide for much immediate practical effect.[49]

Conclusion

Thus, it can be argued that India’s cross-border insolvency regime went through the process of transitioning from an inadequately developed approach under the Insolvency and Bankruptcy Code, 2016 to one of tentative legislative recognition through the enactment of Section 240C. The previous legal framework provided only reciprocity-based cooperation but proved to be ineffective and was left for judicial interpretation that could not cover all the aspects of cross-border insolvency through the principle of comity, as shown in the Jet Airways case and others.

However, despite the shortcomings of the previous regime, the introduction of Section 240C is a crucial step showing India’s intention to follow international standards and adopt the UNCITRAL Model Law on Cross-Border Insolvency. Nevertheless, the present provision of law is merely an enabling tool as it does not include any provisions for recognition, COMI establishment, relief, and other important components of a cross-border insolvency regulation.

As it was shown throughout this paper, Section 240C of the Insolvency and Bankruptcy Code can be In summary, without adequate support from a sound statutory/regulatory regime that includes the critical elements of the Model Law, Section 240C runs the risk of being nothing more than a symbol. It is crucial to have a proper regime in place for purposes of ensuring certainty and deterring dissipation of assets.

[1] Jet Airways (India) Ltd., Company Petition No. (IB)-497(MB)/2019, NCLT Mumbai Bench (2019)

[2] Insolvency and Bankruptcy Code (Amendment) Act, 2026, § 240C, No. 15, Acts of Parliament, 2026 (India).

[3] Id.

[4] UNCITRAL Model Law on Cross-Border Insolvency, U.N. Doc. A/52/17, Annex I (1997).

[5] Insolvency & Bankruptcy Code, 2016, §§ 234–235, No. 31, Acts of Parliament, 2016 (India).

[6] Id. § 234.

[7] Id. § 235.

[8] Ministry of Corporate Affairs, Annual Report 2024–25, at 45 (2025) (India).

[9] Toshiaki Aiba v. Vipan Sharma, 2021 SCC OnLine Del 4567, ¶ 22 (Delhi High Court).

[10] Id. ¶ 28.

[11] Mahmood Hussain Khan v. Canisia Ceizar, 2022 SCC OnLine TS 1234, ¶ 15

[12] Jet Airways (India) Ltd. v. State Bank of India, (2024) 3 SCC 456 (India).

[13] Id. at 489.

[14] Insolvency & Bankruptcy Code, 2016, No. 31, Acts of Parliament, 2016 (India).

[15] Insolvency Law Comm., Report on Cross-Border Insolvency, at 12–15 (2018) (India).

[16] Jet Airways (India) Ltd., Company Petition No. (IB)-497(MB)/2019, NCLT Mumbai Bench, Order dated June 20, 2019.

[17] In re SEL Mfg. Co., No. 19-12345 (Bankr. D. Del. 2019).

[18] Re Compuage Infocom Ltd., [2021] SGHC 234, ¶ 12 (Singapore High Court).

[19] Toshiaki Aiba v. Vipan Sharma, 2021 SCC OnLine Del 4567.

[20] Mahmood Hussain Khan v. Canisia Ceizar, 2022 SCC OnLine TS 1234.

[21] Glas Trust Co. LLC v. Byju Raveendran, 2024 SCC OnLine Cal 789, ¶ 18.

[22] Insolvency and Bankruptcy Code (Amendment) Act, 2026, § 240C, No. 15, Acts of Parliament, 2026 (India).

[23] Divyansh Singh, Cross-Border Insolvency in India: The Long Road to Reform, 14 J. Indian L. & Soc’y 45, 48 (2025).

[24] Insolvency & Bankruptcy Code, 2016, §§ 234–235; see also Akhilesh R. Narayanan & Senthil V.P., The Myth of Reciprocity, 22 Corp. L. Rev. 101 (2024).

[25] Sidhi M. Jain, Judicial Comity in Cross-Border Insolvency: An Indian Perspective, 18 Nat’l L. Sch. L. Rev. 233 (2024).

[26] Insolvency and Bankruptcy Code (Amendment) Act, 2026, § 240C.

[27] UNCITRAL Model Law on Cross-Border Insolvency, U.N. Doc. A/52/17 (1997); see also Jay Lawrence Westbrook, A Global Solution to Multinational Default, 98 Mich. L. Rev. 2276 (2000).

[28] Bhavya Sahu, supra note 31; Poorna S., supra note 30; V. Jayshree & Mamata Biswal, supra note 28.

[29] Divyansh Singh, supra note 24, at 52; Pinky Dhar & Bhupali Saikia, India’s Cross-Border Insolvency Void, 41 J. Bankr. L. 89 (2025).

[30] Toshiaki Aiba v. Vipan Sharma, 2021 SCC OnLine Del 4567.

[31] Insolvency Law Comm., supra note 16, at 20–25.

[32] V. Jayshree & Mamata Biswal, supra note 28, at 8.

[33] Insolvency and Bankruptcy Code (Amendment) Act, 2026, § 240C, No. 15, Acts of Parliament, 2026 (India).

[34] Id.

[35] Id.

[36] Ministry of Corporate Affairs, Notification Status Under IBC 2026, Gov’t of India (Apr. 1, 2026), https://www.mca.gov.in/notifications.

[37] UNCITRAL Model Law on Cross-Border Insolvency, G.A. Res. 52/158, U.N. Doc. A/RES/52/158 (Dec. 15, 1997).

[38] UNCITRAL Model Law on Cross-Border Insolvency, arts. 9–14.

[39] Id. arts. 15–18.

[40] Id. arts. 19–21.

[41] Id. arts. 25–27.

[42] Compare UNCITRAL Model Law on Cross-Border Insolvency, arts. 15–21, with Insolvency and Bankruptcy Code (Amendment) Act, 2026, § 240C.

[43] 11 U.S.C. §§ 1501–1532 (Chapter 15); Cross-Border Insolvency Regulations 2006, S.I. 2006/1030 (U.K.); Insolvency, Restructuring and Dissolution Act 2018 (No. 40 of 2018) (Singapore); see also Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (Canada).

[44] Insolvency and Bankruptcy Code (Amendment) Act, 2026, § 240C(2).

[45] Statement of Objects and Reasons, Insolvency and Bankruptcy Code (Amendment) Bill, 2025, No. 89 of 2025, at 3 (India).

[46] V. Jayshree & Mamata Biswal, supra note 28, at 12–15.

[47] Compare UNCITRAL Model Law on Cross-Border Insolvency, art. 16(3) (presumption of COMI), with Insolvency and Bankruptcy Code (Amendment) Act, 2026, § 240C.

[48] Cf. UNCITRAL Model Law on Cross-Border Insolvency, art. 6 (public policy exception).

[49] Divyansh Singh, supra note 24, at 67.

1. Genomic DNA (gDNA):

2. Mitochondrial DNA (mtDNA):

3. Nuclear DNA:

4. Plasmid DNA (in microbes):

3.1 CONVENTIONAL DNA EXTRACTION METHODS:

3.1.1 Phenol-Chloroform Extraction:

3.1.2 Salting-Out Method:

3.2 MODERN AND COMMERCIAL DNA EXTRACTION METHODS:

3.2.1 Silica Column-Based Extraction:

3.2.2 Magnetic Bead-Based Extraction:

3.2.3 Boiling Method:

3.2.4 Paper-Based DNA Extraction (FTA Cards):

In this method, DNA is bound to a paper matrix for transport and storage, later eluted for further processing. This approach is used for fieldwork and sample collection in remote areas.

4.2.1 Indian Laws and Provisions:

1. The Code of Criminal Procedure (CrPC), 1973:

4.2.2 Case laws and Judgments:

1. Selvi v. State of Karnataka (2010):[26]

1. Universal Declaration on the Human Genome and Human Rights, 1997 (UNESCO)

2. European Court of Human Rights – S. and Marper v. United Kingdom (2008)

5.1 LEGAL ISSUES:

5.2 ETHICAL ISSUES:

Author: Prajukta Mukherjee / BA LLB 5th year, Law student / ICFAI University Tripura.

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