BHARATIYA SAKSHYA ADHINIYAM, 2023

Adv. Usha Andewar

INDIAN EVIDENCE ACT

Background
1. The origins of the law of evidence in India can be found in the
Dharma Shastra, as well as in the Muslim and English legal systems.
The Dharma Shastra has always acknowledged that the objective of
any trial is to determine the truth. The early legislators acknowledged
that trials frequently entailed the concealment of facts and the
discernment of lying. Thus, the Law of Evidence implemented all
necessary measures, in accordance with the prevailing circumstances,
to ensure the revelation of truth. By the time of the ancient Dharma
Shastra, the Indian law of evidence had achieved a significant level of
refinement and incorporated numerous contemporary principles.

In the ancient time, there has been extensive discussion of the rules of
evidence in Sanskrit books. But, not much information is available in
the Muslim period in respect of the Law of Evidence.

2. In 1726, the rules of evidence prevailing in England under Common

law and statute law were introduced in India.

3. Sir James Fitzjames Stephen in 1872 prepared the Bill for the Act.

4. The Law of Evidence which came into force in 1872 continued to be

applicable to till 1st July, 2024.

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Relevance and Function of the Law of Evidence

1. In the process of delivering justice, Courts not only have to go into the
facts of the case but also ascertain the truthfulness of such assertions
made by the parties. To ascertain these facts, the Law of Evidence
plays an important role, being the procedural law in this aspect.

2. It is this procedural law that provides in itself how facts are to be

proved and when the same will be regarded as relevant by the Court in
the administration of justice.

3. It helps judges in deciding the rights and liabilities of the parties

arising out of the facts presented to him for further application of the
relevant laws.

4. Thus, the law of evidence lays down the principles and rules
according to which the facts of a case may be proved or disproved in
the Court of Law.

5. It helps the Courts in preventing the wastage of time upon irrelevant

issues.

6. In the case of Ram Jas Vs. Surendra Nath, it was held that, the law of
evidence does not affect the substantive rights of the parties but
facilitates the course of justice. It lays down rules of guidance for the
Courts. It is procedural in nature, proving how a fact can be proved.

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BHARATIYA SAKSHYA ADHINIYAM

Introduction

BSA 2023, scheduled to be enforced throughout the country starting on 1 st

July, 2024, demonstrates a careful reorganization, consisting of 170
sections, which is only slightly higher than the previous 167 sections. The
emphasis on evidence procedures in the digital era is apparent, as there are
specific provisions for electronic and digital records.
The BSA has experienced substantial modifications to align with the
changing legal environment and eliminate antiquated colonial terms. The
phrases 'Parliament of the United Kingdom', 'Provincial Act', and 'notice by
the Crown Representative' have been removed due to their lack of
relevance. Likewise, words such as 'Jury', 'Lahore', and 'United Kingdom of
Great Britain and Ireland' have been eliminated. In addition, the process of
modernization has substituted outdated terms such as 'Vakil', 'Pleader', and
'Barrister' with the more current term 'Advocate'. These amendments not
only bring the language of the law in line with current usage, but also
indicate a shift away from colonial influences.

The 21st century is characterized by a remarkable speed of technical

advancements and scientific breakthroughs. The advancement, particularly
in the field of Artificial Intelligence, has presented difficulties in tracking
and bringing legal action against criminals, therefore necessitating the
revision of existing legislation. The BSA signifies a notable progress in
India's criminal justice system, with a primary emphasis on adopting
technology. This document presents protocols for managing digital
evidence and broadening the range of acceptable evidence. The primary
objective of this legislation is to make the delivery of justice more efficient

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by utilizing technology improvements, without requiring a major
restructuring of current processes. In 2000, the Evidence Act underwent a
substantial modification to incorporate the expanding domain of electronic
evidence. The Information Technology Act, 2000 (IT Act) was established
in response to the rapid advancement of technology in India. Its purpose is
to govern electronic transactions and grant legal validity to electronic
documents. As a result, modifications were made to the Evidence Act to
address the absence of provisions for electronic evidence. These revisions
were implemented to create a structure for the acceptance of electronic
evidence in Courts, ensuring that legal procedures keep up with technical
progress. As a result, the IT Act brought about various changes to the
Evidence Act, making it easier to accept electronic evidence. This change,
which is currently included in the current Act (BSA), represents a
significant turning point in legal history. Prior to 2000, electronic records
were admissible in Court only if they were accompanied by the equipment
that created them, such as a laptop containing a document. After 2000, the
significance of other computer-generated outputs changed from being less
important to being more important evidence. This made the procedure
simpler because printouts could be considered legitimate evidence on their
own, without needing the device to confirm their authenticity. The present
Act aims to codify these recognized principles by maintaining the term of
'primary evidence' and introducing four additional Explanations to provide
further clarification on the range of electronic recordings that are deemed
primary evidence. Furthermore, Section 61 of the Act clearly guarantees
that electronic or digital records have the same legal status as their paper
equivalents, confirming their acceptability as evidence in court
proceedings. The broadening of secondary evidence to include data from
communication devices and intermediaries is a praiseworthy advancement.
Moreover, the inclusion of a specified format for certificates mandated by

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this section enhances transparency and uniformity in the procedure, so
reinforcing the legal structure for electronic evidence in India.

Key Provisions and Changes

The newly enacted legislation, known as Bharatiya Sakshya Adhiniyam,

2023, comprises a total of 170 Sections, which is an increase from the
previous count of 167 Sections under the Indian Evidence Act. This
legislation amended 23 Sections, abolished 5 Sections, and introduced 1
(one) new Section. The primary objective of implementing this new
legislation was to accommodate the progress in technology and the shifts in
society that have occurred in recent decades.

The Bharatiya Sakshya Adhiniyam, 2023, also known as BSA, 2023,

preserves some sections of the IEA, including those related to burden of
proof, confessions, and relevancy of facts. The following is a list of the
main changes :-

1. Section 2 – expanded the definition of "document" to include

electronic and digital records. The statement demonstrates that various
forms of digital data, such as emails, server logs, computer
documents, smartphone files, messages, websites, location data and
voice mail messages, can be considered as documents.

2. It also introduced the provision for oral evidence to be presented

electronically. In contrast, the previous Indian Evidence Act
described oral evidence as "all statements made by witnesses, as
permitted or required by the Court, regarding matters of fact under
investigation."

3. Section 22 – modified the requirement for confessional admission.

According to the modification, a confession made by an accused
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 person is considered irrelevant in a criminal proceeding if the court
determines that the confession was influenced by inducement, threat,
coercion, or promise from a person in authority. The court must also
find that the accused person had reasonable grounds to believe that
making the confession would result in gaining an advantage or
avoiding any temporal harm related to the proceedings against them.

4. Section 24 – illustrated the provision of consideration of a proven

confession that impacts both the person giving the confession and
others who are jointly facing trial for the same offence.

5. Section 57 – acknowledges digital and electronic records as the main

form of proof.

6. Section 58 – made changes to Section 63 of the IEA in 1872, namely

on 'secondary evidence', and broadened the range of secondary
evidence that can be considered. The expanded scope encompassed
supplementary classifications such as "verbal confessions, written
presentations, and testimony from an expert who has scrutinized a
document composed of multiple accounts or other documents that are
impractical to examine in court, and possesses expertise in document
examination."

7. Section 61 – guarantees that digital or electronic records shall possess

equivalent legal effect, validity and enforceability as traditional
papers.

8. Section 63 – broadened the categories of digital or electronic

recordings that are admissible as evidence in a Court of law.

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Aims and Objects

 The aims and objects of the Bharatiya Sakshya Adhiniyam, 2023

(BSA), as per its long title, are to consolidate and to provide for
general rules and principles of evidence for fair trial.

 The BSA recognizes that enunciating the rules and principles of

evidence is not an end in the aim for providing for general rules and
principles of evidence is to ensure a fair trial.

 It is submitted that the provisions of the BSA should be interpreted in

the light of the avowed aim expressed in long title to achieve a fair
trial.

Objects and Reasons

The law of evidence (not being substantive or procedural law), falls in the
category of ‘adjective law’, that defines the pleading and methodology by
which the substantive or procedural laws are operationalised. The existing
law does not address the technological advancement undergone in the
country during the last few decades.

The proposed legislation, namely “Bharatiya Sakshya Adhiniyam”, inter

alia, provides as under :-

 It provides that ‘evidence’ includes any information given

electronically, which would permit appearance of witnesses, accused,
experts and victims through electronic means.

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 It provides for admissibility of an electronic or digital record as
evidence having the same legal effect, validity and enforceability as
any other document.
 It seeks to expand the scope of secondary evidence to include copies
made from original by mechanical processes, copies made from or
compared with the original, counterparts of documents as against the
parties who did not execute them and oral accounts of the contents of
a document given by some person who has himself seen it and giving
matching hash value of original record will be admissible as proof of
evidence in the form of secondary evidence.

 It seeks to put limits on the facts which are admissible and its
certification as such in the courts. The proposed Bill introduces more
precise and uniform rules of practice of courts in dealing with facts
and circumstances of the case by means of evidence.

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Structure of Bharatiya Sakshya Adhiniyam, 2023

Total Sections - 170

Total Parts - 4
Part 1: Preliminary (Sections 1 to 2)
Part 2: Relevancy (Sections 3 to 50)
Part 3: On Proof (Sections 51 to 103)
Part 4: Production and Effect of Evidence (Sections 104 to 170)

Total Chapters - 12
Chapter 1 - Preliminary (Sections 1 to 2)
Chapter 2 - Relevancy of Facts (Sections 3 to 50)
Chapter 3 - Facts Which Need Not Be Proved (Sections 51 to 53)
Chapter 4 - Oral Evidence (Sections 54 to 55)
Chapter 5 - Documentary Evidence (Sections 56 to 93)
Chapter 6 - Exclusion of Oral Evidence By Documentary Evidence
(Sections 94 to 103)
Chapter 7 - Burden of Proof (Sections 104 to 120)
Chapter 8 - Estoppel (Sections 121 to 123)
Chapter 9 - Witnesses (Sections 124 to 139)
Chapter 10 - Examination of Witnesses (Sections 140 to 168)
Chapter 11 - Improper Admission and Rejection of Evidence (Section
169)
Chapter 12 - Repeal and Savings (Section 170)

Total Schedule - 1

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