The Digital Personal Data Protection Act, 2023 (DPDP Act) came into force as India’s first comprehensive data protection legislation. For corporate compliance teams and data privacy practitioners, its implications are well-documented. But for criminal law practitioners — whether prosecuting or defending — the Act introduces a tension that has received far less attention: the collision between the right to informational privacy and the legitimate needs of criminal investigation and prosecution.

The Privacy Interest under the DPDP Act

The DPDP Act recognises the right of a Data Principal (the individual whose data is processed) to know what data is being processed, to correct inaccurate data, and to seek erasure. These are affirmative rights — not merely protections against unauthorised disclosure, but rights that impose obligations on those who hold and process data.

For investigating agencies, this creates a practical challenge. Police and prosecution routinely access personal data — call records, financial transactions, device data, GPS logs, social media activity — as part of criminal investigations. Much of this data is held by Data Fiduciaries (typically telecom operators, banks, and technology companies) who now have enhanced obligations under the DPDP Act before they can share data with any party, including the State.

The Exemption Framework

Section 17 of the DPDP Act carves out exemptions for the processing of personal data in the interest of sovereignty, security, public order, and the prevention and detection of offences. The Central Government may, by notification, exempt any instrumentality of the State from the provisions of the Act for these purposes.

This is a broad but bounded exemption. It does not give investigating agencies a blanket licence to access all personal data — the exemption must be exercised within the framework of existing criminal procedure law. The Code of Criminal Procedure (now the Bharatiya Nagarik Suraksha Sanhita, 2023) still governs the procedural requirements for search, seizure, and access to records. The DPDP Act exemption reduces the data protection obligations of the entity sharing data; it does not override the procedural rights of the accused.

Implications for Defence Counsel

For defence advocates, the DPDP Act creates two distinct opportunities. First, where investigating agencies have accessed personal data outside the exemption framework — without proper procedural authority — there is now a stronger argument that the data was obtained unlawfully, with attendant consequences for admissibility. Second, the Act’s notice and transparency requirements may, in appropriate cases, require disclosure of what data was accessed and how it was used, creating avenues for challenging the evidentiary basis of a prosecution.

These are nascent arguments — the courts have not yet had the opportunity to consider them at length. But as digital evidence becomes the centrepiece of criminal prosecutions across economic offences, cybercrime, and organised crime matters, the intersection of data protection law and criminal procedure will become one of the defining areas of litigation in the coming years.

The Road Ahead

The DPDP Act is still in the process of being operationalised — the Data Protection Board has not yet been constituted, and the Rules under the Act are pending. But practitioners in criminal law would do well to engage with the Act’s framework now, before it becomes live legal strategy in their courtrooms.

This article is published for general informational purposes only and does not constitute legal advice. The views expressed are those of the author in their personal academic capacity. For advice on a specific matter, please consult a qualified advocate.

Anticipatory bail — the grant of bail in anticipation of arrest — was conceived as a protection against the misuse of police power. Section 438 of the Code of Criminal Procedure (now Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023) confers a discretionary power on the Sessions Court and the High Court to grant such relief. In ordinary criminal matters, the jurisprudence on anticipatory bail has developed along largely liberal lines, with the Supreme Court repeatedly affirming its importance as a safeguard of personal liberty.

In matters governed by special legislation — particularly the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) — the picture is significantly different.

The Statutory Bar under UAPA

Section 43D(5) of the UAPA provides that no person accused of an offence under the Act shall be released on bail if the court, on a perusal of the case diary or the report made under Section 173 of the CrPC, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This is a materially higher threshold than that applicable under ordinary bail law.

The Supreme Court in NIA v. Zahoor Ahmad Shah Watali (2019) held that this standard requires the court to be satisfied that the accusation is prima facie true — not merely that there is some material against the accused. This has been interpreted by many High Courts in a manner that effectively treats the UAPA bar as near-absolute at the stage of regular bail, let alone anticipatory bail.

For anticipatory bail under UAPA, the position is starker. Courts have consistently held that the embargo under Section 43D(5) would apply with equal, if not greater, force to pre-arrest applications, since an anticipatory bail order would pre-empt the very investigation that Section 43D seeks to protect.

MCOCA: A Comparable Regime

MCOCA contains a similar provision — Section 21(4) — which bars bail unless the Public Prosecutor has been given an opportunity to oppose and the court is satisfied that there are reasonable grounds for believing the accused is not guilty and that he is not likely to commit any offence while on bail. This twin condition has been interpreted strictly, and courts in Maharashtra have been notably reluctant to grant bail in MCOCA matters at the trial stage, let alone anticipatory bail.

Practical Implications for Defence

Where an accused faces the likelihood of arrest under UAPA or MCOCA, defence counsel must move early and strategically. Anticipatory bail applications in these matters require a granular engagement with the First Information Report and the case diary — challenging not just the sufficiency of evidence but the classification of the offence under the special statute. If the underlying offence does not squarely attract UAPA or MCOCA, a challenge to the invocation of the special statute itself may be the more productive route, which can be pursued through a writ petition questioning the basis of the scheduled offence, while simultaneously pursuing interim protection from arrest.

Personal liberty, though increasingly constrained by special statutes, remains a constitutional value. Article 21 does not yield entirely even to parliamentary override, and creative lawyering at the intersection of constitutional law and criminal procedure remains the most effective tool available to defence counsel in these matters.

This article is published for general informational purposes only and does not constitute legal advice. The views expressed are those of the author in their personal academic capacity. For advice on a specific matter, please consult a qualified advocate.

One of the most significant features of the Companies Act, 2013 is the robust framework it provides for minority shareholder protection. Sections 241 and 242 of the Act empower the National Company Law Tribunal (NCLT) to intervene where the affairs of a company are being conducted in a manner prejudicial to the interests of members or prejudicial to public interest, or where material changes in the management have occurred in a way that is likely to affect the company’s affairs prejudicially.

Who Can Apply?

The right to apply under Section 241 is not available to all shareholders. A member or members holding not less than one hundred members of the company or one-tenth of the total number of its members, whichever is less, may file a petition. For companies having share capital, the applicant(s) must hold not less than one-tenth of the issued share capital of the company. The Central Government may also apply under Section 241(2) where it considers the affairs of a company to be conducted in a manner prejudicial to public interest.

This threshold requirement is a threshold for standing, not for the merits of the petition. Courts and the NCLT have been clear that once standing is established, the substantive question of whether oppression or mismanagement has occurred is decided on the facts.

What Constitutes Oppression?

The term “oppression” is not defined in the Act, and the jurisprudence under the predecessor provision (Section 397 of the Companies Act, 1956) remains relevant. The Supreme Court in Shanti Prasad Jain v. Kalinga Tubes Ltd (1965) articulated the foundational principle: there must be a continuous course of conduct in the management of the company which is burdensome, harsh, and wrongful. A single act of mismanagement, however serious, may not suffice.

Under the 2013 Act, the NCLT has taken a somewhat more expansive view, particularly where majority shareholders have been found to have systematically excluded minority directors from board decisions, altered share structures to dilute minority holdings, caused the company to enter into related-party transactions at undervalue, or denied access to corporate records. Each of these, in the right factual matrix, has been held to constitute oppression.

The NCLT’s Remedial Powers

Section 242 confers extraordinarily wide powers on the NCLT if the petition is found to be justified. The Tribunal may regulate the conduct of company affairs in future, provide for the purchase of shares or interests of any members by other members or by the company, restrict or prohibit the transfer or allotment of shares, terminate or set aside or modify any agreement between the company and its directors, and appoint administrators or receivers. The power to buy out the minority at a fair value determined by the Tribunal is, in practice, the most commonly sought and granted relief.

Strategic Considerations

For minority shareholders considering this route, timing and documentation are critical. The NCLT will scrutinise the evidence of oppression with care, and the petitioner must be prepared to place on record a detailed chronology of prejudicial conduct, supported by minutes, resolutions, correspondence, and financial records. The petition must also demonstrate that the acts complained of are oppressive in their effect on the petitioner as a member — not merely injurious to the company as a whole, which would be the province of a derivative action.

This article is published for general informational purposes only and does not constitute legal advice. The views expressed are those of the author in their personal academic capacity. For advice on a specific matter, please consult a qualified advocate.