Supreme Court Upholds Vested Rights in Surrogacy; Courts Grapple with New Criminal Laws

New Delhi – In a landmark decision providing relief to numerous aspiring parents, the Supreme Court of India has ruled that the Surrogacy (Regulation) Act, 2021, cannot retrospectively nullify the "vested rights" of couples who had cryopreserved embryos before the law took effect on January 25, 2022. The judgment in Arun Muthuvel v. Union of India stands as a significant bulwark against the retroactive application of disabling statutes and headlines a momentous week in jurisprudence, which also saw courts across the country actively interpreting and shaping the contours of India's new criminal codes.

Surrogacy Act: Protecting Vested Rights Against Retrospective Disqualification

The Supreme Court's division bench delivered a crucial verdict protecting couples caught in a legal limbo by the enactment of the Surrogacy (Regulation) Act, 2021. The Act introduced, for the first time, stringent upper age limits for intending parents—50 for women and 55 for men. Many couples who had already undergone the expensive and emotionally taxing process of in-vitro fertilisation (IVF) and embryo freezing found themselves disqualified overnight.

The Court held that these couples had acquired a right that could not be extinguished by subsequent legislation. In a powerful concurring opinion, Justice KV Viswanathan articulated the core legal principle at stake. He distinguished the couples' situation from a mere hope ( spes ) of parenthood, classifying it instead as a vested right.

"By the fertilization of the embryo prior to 25.01.2022, certain rights inhered in the intending couple and the Surrogacy (Regulation) Act, 2021... does not divest them of those rights," Justice Viswanathan observed.

He reasoned that by completing the fertilisation process at a time when no statutory age bar existed, the couples had "crossed a legally recognised threshold." Citing Salmond on Jurisprudence, he noted that they were exercising a "liberty" which later statutory restrictions could not invalidate. The Court rejected the Centre's narrow interpretation of the Act's transitional clause (Section 53), which only protected ongoing pregnancies, stating that the clause "operates in its own sphere" and does not empower the Act to divest vested rights. This judgment reaffirms the principle of legal certainty and protects citizens who have acted in good faith based on the law as it stood.

The New Criminal Codes in the Crucible of Judicial Scrutiny

As the legal system continues to adapt to the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Nyaya Sanhita (BNS), the judiciary has been actively defining the application and interpretation of these new codes. This past week saw a flurry of significant rulings from the Supreme Court and various High Courts.

Defining the Scope of Quashing Powers under BNSS

The Supreme Court issued crucial guidance on the exercise of inherent powers under Section 528 of the BNSS (equivalent to Section 482 CrPC) to quash criminal proceedings.

In Pradeep Kumar Kesarwani v. The State of Uttar Pradesh , the apex court laid down a clear four-step test for High Courts to determine the veracity of a quashing plea. The test requires courts to assess if the material relied upon by the accused is of "sterling and impeccable quality," sufficient to overrule the complaint's assertions, unrefuted by the prosecution, and if continuing the trial would be an abuse of process.

Further clarifying the procedural pathway, the Court in Pradnya Pranjal Kulkarni v. State of Maharashtra held that once a magistrate takes cognizance of an offence, a writ petition under Article 226 cannot be used to quash the chargesheet. The appropriate remedy, the Court clarified, lies under Section 528 of the BNSS.

Adding another layer of nuance, the bench in Nitin Ahluwalia v. State of Punjab cautioned High Courts against mechanically dismissing quashing petitions. It stressed the importance of appreciating the "background in which the case was filed," particularly to determine if an FIR is a retaliatory measure filed with oblique motives.

Jurisdictional Clashes and Procedural Safeguards

A notable point of judicial divergence emerged over anticipatory bail. The Supreme Court, in Mohammed Rasal.C v. State of Kerala , expressed strong disapproval of High Courts directly entertaining anticipatory bail applications, bypassing the Sessions Court. It opined that this should only happen in "exceptional cases." However, in a subsequent ruling ( Venu Gopalakrishnan v. State of Kerala ), the Kerala High Court reiterated its position that such applications are maintainable directly before it, citing existing precedents. This sets the stage for a potential future clarification from a larger Supreme Court bench.

Several High Courts also delivered key pronouncements on procedural aspects of the BNSS:

• Police Powers Curtailed: The Andhra Pradesh High Court, interpreting Section 179(1) BNSS, ruled that a police officer's power to compel the attendance of a person is territorially restricted to their own police station or an adjoining one, preventing overreach.
• Victim's Rights Upheld: The Calcutta High Court, in a case under the POCSO Act, suspended bail granted by a trial court because the victim was not notified and heard, underscoring the mandatory nature of the victim's participatory rights under Section 483(2) BNSS.
• Discharge Application Timeline Set: Filling a legislative gap, the Orissa High Court ruled that a POCSO accused can file a discharge application under Section 250(1) BNSS within 60 days of receiving police papers, providing much-needed clarity.

Substantive Offences under BNS Interpreted

The judiciary also provided vital interpretations of substantive offences under the new BNS.

The Supreme Court, in Arshad Neyaz Khan v. State of Jharkhand , clarified a fundamental distinction between 'cheating' (Section 318 BNS) and 'criminal breach of trust' (Section 316 BNS). It held that the two offences are "antithetical" and cannot co-exist on the same set of allegations, as cheating requires dishonest intent from the inception, while criminal breach of trust involves a later misappropriation of lawfully entrusted property.

In a case from Himachal Pradesh, the High Court held that accidentally shooting a person while mistaking them for a wild animal does not constitute murder under Section 103 BNS. Instead, it falls under the offence of causing death by negligence (Section 106 BNS), which is bailable. This ruling draws a critical line between intent and negligence in culpable homicide cases.

This week's legal developments showcase a judiciary deeply engaged in balancing statutory evolution with fundamental rights. The Supreme Court's decision on surrogacy rights champions legal certainty and protects individual liberties, while the ongoing judicial discourse on the new criminal codes is methodically shaping the future of India's criminal justice system, one precedent at a time.