ABSTRACT

EVOLUTION AND BACKGROUND

India's criminal justice system has traversed a remarkable journey, shaped by the
confluence of diverse regional systems, rulers, and historical events. In pre-
colonial India, traditional legal systems of various social groups held sway, each
with their distinct evidence rules and practices. The ancient Hindu legal text,
Manu smriti, and the Islamic law, Sharia, influenced the legal landscape. The
arrival of the British East India Company in 1726 marked a significant turning
point, as the British sought to establish a uniform legal system.
The British era saw the establishment of Mayor's courts in key cities, followed by
the enactment of the Indian Evidence Act (IEA) in 1872. The IEA, a landmark
legislation, aimed to standardize evidence rules and procedures. However, its
19th-century roots made it challenging to keep pace with the rapid evolution of
crime and technology. The IEA's limitations became increasingly apparent in the
face of modern crimes like cybercrime, terrorism, and white-collar fraud.
In the post-independence era, India's criminal justice system continued to evolve.
The Supreme Court and Law Commission played a vital role in addressing
emerging challenges and filling legal gaps. Landmark judgments and legislative
reforms aimed to strengthen the system, ensuring it remained responsive to the
needs of a changing society. The introduction of the Bharatiya Sakshya Adhiniyam
(BSA) in 2023 marked a significant milestone, as India sought to modernize its
evidence law and address the complexities of the digital age.
Throughout its evolution, India's criminal justice system has grappled with the
need to balance individual rights, public interest, and the pursuit of justice. The
journey has been marked by significant reforms, judicial innovations, and a
constant quest for improvement. As India continues to navigate the complexities
of modern crime and justice, its criminal justice system remains a work in
progress, shaped by the country's rich history, diverse culture, and the pursuit of a
more perfect justice.

INTRODUCTION
Introduction and the implementation of the new criminal laws is a landmark
turning point to the existing criminal jurisprudence in the legal history of India.
These laws are an attempt to swap away the existing colonial laws leaving behind
the footprints of the colonial rule.
BSA denotes Bharatiya meaning India/Indian, Sakshya meaning Evidence and
Adhinyam meaning The Act. The Bharatiya Sakshya Adhiniyam is a procedural law
that provides the rules and regulations established to reign over the relevancy and
admissibility of evidence in court proceedings, further removing the abstruseness
and helping avoid the probable complexities that may arise during the
admissibility of relevant evidence during the court proceedings. The then Union
Home Minister Amit Shah introduced three Lok Sabha measures, including the
Bhartiya Sakshya Bill on August 11, 2023 enforceable by July 1, 2024.
The BSA recognizes that articulating the rules and principles of evidence is not an
end in the objective for providing for general rules and principles of evidence is to
assure a fair trial. The Law Commission of India has periodically reviewed the IEA
and proposed amendments to address various concerns, including those related
to custodial violence and the admissibility of police confessions. These
recommendations often stem from suggestions put forward by bodies like the
Standing Committee on Home Affairs.

NEED FOR CHANGE

Here are some following reasons for shift from Indian Evidence Act, 1872 to The
Bharatiya Sakshya Adhiniyam (BSA), 2023;
1. Consolidation of Sections: This involves restructuring or combining existing
sections of the Evidence Act to streamline its organization and possibly clarify
certain provisions. Consolidation aims to make the Act more coherent and easier
to navigate.
2.Removal of Colonial-era References: Many laws in former British colonies,
including India, still contain references or provisions that reflect the legal
framework of the colonial period. Removing these references signifies a move
towards modernizing the law and aligning it more closely with contemporary legal
principles and practices.
3.Maintaining Similar Construct: Despite the changes mentioned, the core
structure and principles of the Evidence Act remain largely intact. This approach
ensures continuity and familiarity for legal professionals and stakeholders while
updating and refining specific aspects of the law.
These proposed changes suggest an effort to update and improve the Evidence
Act by addressing structural issues and eliminating out-dated references, all while
preserving the fundamental framework that governs the admissibility and
reliability of evidence in legal proceedings.
The question to be considered is, whether a statutory provision should be inserted
in our Act on the subject of deaths in common catastrophe most notable changes
to the Evidence Act which have been proposed in the Bill.
The rapid pace of technological advancements and the evolving nature of crimes
in India necessitated a revamp of the outdated evidence laws. The Indian Evidence
Act, 1872, though a landmark legislation, was struggling to keep up with the
complexities of modern criminal investigations. The advent of digital evidence,
cybercrimes, and sensitive social issues like marital rape and mob lynching
exposed the need for a more comprehensive and robust evidence law. The BSA
aims to bridge this gap by providing a modern framework for evidence collection,
admissibility, and evaluation, ensuring that justice is served in a fair and efficient
manner, while also protecting individual rights and privacy in the digital age.

OVERVIEW
The Bharatiya Sakshya Adhiniyam (BSA) is a transformative legislation that
revolutionizes India's evidence law, bridging the gap between traditional legal
frameworks and the demands of the digital era. By recognizing and regulating
digital evidence, the BSA acknowledges the paradigm shift in criminal
investigations and trials. The legislation also prioritizes witness protection, data
privacy, and forensic infrastructure, ensuring a robust and reliable justice
system. As a harmonizer of international standards and best practices, the BSA
reinforces India's commitment to a fair, efficient, and modern criminal justice
system, equipping the nation to tackle emerging challenges and crimes with
confidence.
Many provisions of IEA are retained in the new and modified BSA. BSA also added
elements to simplify and transparent the judicial trial process. There were
modifications in 23 Sections, 5 repealed sections, and 1 newly added section gave
birth to the NEWLY BSA, 2023.

KEY FEATURES
Below are some key features of the Bharatiya Sakshya Adhiniyam;
  Digital Evidence Revolution: BSA acknowledges digital evidence as a
crucial aspect of modern investigations, providing a framework for its
collection, analysis, and admissibility.
 Enhanced Witness Protection: The legislation prioritizes witness safety
and well-being, offering comprehensive protection measures to ensure
their testimony is given without fear or intimidation.
 Data Privacy Shield: BSA establishes stringent data privacy protocols,
safeguarding sensitive information and ensuring its confidentiality,
integrity, and availability.
 Forensic Infrastructure Boost: The legislation emphasizes the
development of modern forensic infrastructure, enabling investigators to
leverage cutting-edge technology and scientific techniques.
 International Harmonization: BSA aligns India's evidence law with global
standards and best practices, facilitating collaboration and exchange in
cross-border criminal investigations.
 Electronic Records Management: The legislation regulates the creation,
storage, and retrieval of electronic records, ensuring their authenticity,
reliability, and admissibility in legal proceedings.

OMMITED SECTIONS
The potential rationale behind omitting certain sections in a legislative update like
the BNA, aiming to create a more coherent, efficient, and equitable legal
framework that meets the needs of contemporary Indian societal norms. Sections
that refer to out-dated technologies, practices, or circumstances that are no
longer applicable in today's context (e.g., provisions related to obsolete forms of
communication or out-dated modes of evidence) Sections that duplicate
provisions found elsewhere in the legal framework or have been rendered
redundant by subsequent legislation or judicial rulings. Sections that may be
perceived as discriminatory or inconsistent with current human rights standards,
requiring removal or amendment to uphold equality and non-discrimination
principles. Sections that contradict fundamental rights and principles guaranteed
by the Indian Constitution, necessitating revision or removal to ensure consistency
with constitutional values. Sections that contribute to procedural delays,
inefficiencies, or complexities in the legal system without commensurate benefits
in terms of justice or fairness. Sections that have rarely been invoked or applied in
practice due to impracticality or lack of relevance in contemporary legal
proceedings. Sections that diverge significantly from international legal standards
 and best practices, hindering international legal cooperation and harmonization
efforts.
 The following provisions from Indian Evidence Act,1872 have been
deleted from the Bharatiya Sakshya Adhiniyam:

1 Section 3(j): India

“India” –– “India” means the territory of India excluding the State of Jammu and Kashmir.

Section 3(j) of the Indian Evidence Act defines the word INDIA in Section 3(j) and it has been deleted in the
new BSA,2023
2 Section 82: Presumption as to document admissible in England without proof
of seal or signature
When any document is produced before any Court, purporting to be a document which, by the law in force for
the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in
England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official
character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp
or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official
character which he claims, and the document shall be admissible for the same purpose for which it would be
admissible in England or Ireland.

Section 82 of the IEA talks about certain presumptions as to the genuineness of any document that is
admissible in England without proof or a seal of signature and now has been deleted.

3 Section 88: Presumption as to telegraphic messages

The Court may presume that a message, forwarded from a telegraph office to the person to whom such
message purports to be addressed, corresponds with a message delivered for transmission at the office from
which the message purports to be sent; but the Court shall not make any presumption as to the person by whom
such message was delivered for transmission. 3 [88A. Presumption as to electronic messages. –– The Court may
presume that an electronic message, forwarded by the originator through an electronic mail server to the
addressee to whom the message purports to be addressed corresponds with the message as fed into his
computer for transmission; but the Court shall not make any presumption as to the person by whom such
message was sent. Explanation. –– For the purposes of this section, the expressions “addressee” and
“originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section
(1) of section 2 of the Information Technology Act, 2000 (21 of 2000).]

Section 88 of the IEA talks about the presumptions as to telegraphic messages and
has been deleted from the BSA

4 Section 113: Proof of cession of territory

A notification in the Gazette of India that any portion of British territory has 1 [before the commencement of
Part III of the Government of India Act, 1935 (26 Geo. 5, c. 2)] been ceded to any Native State, Prince or Ruler,
shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such
notification. 2 [113A. Presumption as to abetment of suicide by a married woman. ––When the question is
whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband
and it is shown that she had committed suicide within a period of seven years from the date of her marriage and
that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having
 regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such
relative of her husband. Explanation. –– For the purposes of this section, “cruelty” shall have the same meaning
as in section 498A of the Indian Penal Code (45 of 1860).] 3 [113B. Presumption as to dowry death. ––-When the
question is whether a person has committed the dowry death of a woman and it is shown that soon before her
death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any
demand for dowry, the court shall presume that such person had caused the dowry death. Explanation. –– For
the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal
Code (45 of 1860).]

Section 113 of the IEA, which gave the conclusive proof regarding the cessation of certain territories to
native states, now stands deleted from the BSA.

5 Section 166: Power of jury or assessors to put questions

In cases tried by jury or with assessors, the jury or assessors may put any questions to the witnesses, through or
by leave of the Judge, which the Judge himself might put and which he considers proper.

Section 116, which mentioned the power of the jury and accessors to put questions to the witness directly,
has been removed from the BSA

CRITICISM
1. Electronic Records: Susceptible to Tampering
The Supreme Court acknowledged in 2014 that electronic records can be altered
or tampered with, which may lead to injustice if relied upon as primary evidence
without proper safeguards.
2. Ambiguity in Admissibility of Electronic Records
The BSA allows for the admissibility of electronic records, but lacks clear
guidelines, leading to uncertainty. The Act includes electronic records in the
definition of documents, but raises questions about their reliability.

3. Information Obtained in Police Custody

The IEA permits the use of information obtained from accused individuals in
police custody, but raises concerns about duress and torture. This provision is
retained in the BSA.

4. Discrimination Between Accused

The IEA discriminates between accused individuals based on their custody status,
allowing information from those in custody to be admissible, while excluding
similar information from those outside custody.
5. Lack of Safeguards
The BSA's acceptance of electronic records as primary evidence increases the risk
of tampering, highlighting the need for robust safeguards.
6. Digital Ignorance
The rise of artificial intelligence and cybercrime amplifies concerns about hacking
and unethical handling of electronic evidence, emphasizing the need for digital
education.
7. Privacy Concerns
The inclusion of electronic evidence in the BSA raises privacy concerns due to
potential misuse of personal data, highlighting the need for strict regulations to
protect individuals' privacy rights.