The Jan Vishwas (Amendment of Provisions) Act, 2026 is a landmark legislation. Criminal offences have been replaced with civil penalties across 80 central laws. Businesspeople will no longer face imprisonment for these offences but only pay fines. Some first-time offenders will be warned and given the chance to set things right.
The Act’s structure is lean — five operative sections and all the amendments tucked into a schedule. At first glance, it is a masterclass in legislative drafting. But then there is section 4 — the section that swallows the Act. Section 4 is the Act’s “savings clause”, a standard and necessary legal precaution that ensures that new laws do not inadvertently disturb existing legal structures. The problem lies in what the section says.
Its first limb states that any amendment made by the Act “shall not affect any other enactment in which the amended or repealed enactment has been applied, incorporated or referred to”. This means if some other law (Act X) refers to a law (Act Y) that this Act has changed, Act Y does not get updated for Act X. Consider what this means in practice. The Act decriminalises several offences under the Drugs and Cosmetics Act, 1940. But the Representation of the People Act, 1951 relies on some of these offences under the 1940 Act to disqualify individuals from becoming MPs or MLAs. Even though the Jan Vishwas Act removes these offences from the Drugs Act, the savings clause freezes the cross-references in the Representation Act in place.
Assume a person committed an offence under the amended Drugs Act and paid a fine and now decides to run for office. A rival may try to get him disqualified, arguing that because the Representation Act refers to the older version of the Drugs Act, the criminal penalty still exists for candidates.
The third limb of the section is more expansive, saving every “principle or rule of law, or established jurisdiction” that was derived from any law that the Act amends. The whole point of the Act is to shift jurisdiction from criminal courts to administrative adjudicators and to shift the burden of proof from “beyond reasonable doubt” (the standard required for criminal offences) to the “balance of probabilities” (the standard required for civil adjudication). But the third limb of section 4 appears to preserve the old criminal jurisdictions as well as the old legal principles. The Act opens the door, and its savings clause promptly bolts it shut again.
So, where did this clause come from? It was copied from the Jan Vishwas Act, 2023. That borrowed the clause from repealing and amending Acts, which repeal obsolete laws. Those Acts, in turn, got it from the UK’s 19th century statute law revision Acts. It was originally crafted by Richard Bethell, 1st Baron Westbury, Lord High Chancellor of Great Britain from 1861-1865. Westbury designed the clause for the delicate task of clearing centuries of obsolete legislative debris without accidentally upending settled law. It ensured that despite repealing hundreds of enactments, nothing would break the legal system.
The Jan Vishwas Act, however, is not a housekeeping exercise. It is not trying to leave the law unchanged. In fact, it is trying to do the opposite. Adopting Westbury’s savings clause in this context not only makes little sense but also undermines the intent of the Act. There is also an irony in the Act’s ambition to decolonise the Indian legal system while simultaneously adopting a Victorian legislative relic.
Courts will refuse to read the savings clause in this manner, as judges generally avoid interpretations that lead to absurdity. But legal arguments are made by parties with interests. If clause 4 permits ambiguity, litigation will follow. Businesses could face challenges and regulators could face jurisdictional contests, requiring courts to resolve questions that should have been answered in Parliament.
That this was not a clerical error is troubling. The drafters changed the phrase “notwithstanding that” in the savings clause of the 2023 Act to “despite the fact that” in the 2026 Act, indicating that they read the clause, modernised its grammar, and yet retained its flawed substance. The Select Committee of the Lok Sabha then sat 48 times and reviewed every clause. When clause 4 came up, it was adopted unchanged.
Every word inserted in a statute is a commitment, and equally, every ambiguity is an invitation to litigation. This savings clause in the Act, and in every other similar Act which will follow, may create the very clutter it was intended to prevent. Over 150 years after it was first drafted, the spectre of the Westbury continues to haunt India’s statute book. It is time we finally exorcise this ghost.
Aditya Prasanna Bhattacharya is at University of Cambridge. The expressed views are personal
