Overview of
Bharatiya Sakshya Adhiniyam
The new Act on law of evidence has been
named as “Bharatiya Sakshya Adhiniyam
(BSA), 2023” which has replaced the Indian
Evidence Act, 1872.
Historical Context of the Evidence Act (1872):
• Enacted in 1872 to consolidate laws concerning evidence
for court judgments.
• Aimed to assist courts in determining case facts and
subsequently pronouncing judgments.
• Came into force on 1st September 1872.
• The new Act on law of evidence has been named as
“Bharatiya Sakshya Adhiniyam (BSA), 2023” which has
replaced the Indian Evidence Act, 1872.
Need for Comprehensive Review:
•Seven decades of Indian democracy necessitate a
comprehensive review of criminal laws, including the Indian
Evidence Act.
•The law of evidence, falling under 'adjective law', outlines the
methodology for operationalizing substantive or procedural
laws.
•Lacks provisions to address the technological advancements
in the country over the last few decades.
Overview of "Bhartiya Sakshya Adhiniyam":
Definition of 'evidence' to encompass electronically
provided information, allowing electronic appearances
of witnesses, accused, experts, and victims.
Admissibility of electronic or digital records.
Expansion of secondary evidence scope
Imposing limits on admissible facts and their
certification in courts, introducing more precise and
uniform rules for court practices
Major changes:
Bharatiya Sakshya Adhiniyam
as compared to
Indian Evidence Act, 1872
The words like ‘Parliament of the United Kingdom’, ‘Provincial
Act’, ‘notification by the Crown Representative’, ‘London
Gazette’, ‘any Dominion, colony or possession of his Majesty,
‘Jury’, ‘Lahore’, ‘United Kingdom of Great Britain and Ireland’,
‘Commonwealth,’ ‘Her Majesty or by the Privy Council,’ ‘Her
Majesty’s Government,’ ‘copies or extracts contained in the London
Gazette, or purporting to be printed by the Queen’s Printer’,
‘possession of the British Crown,’ ‘Court of Justice in England’, ‘Her
Majesty’s Dominions’, ‘Barrister’
have thus been deleted as they are no longer
Language of the BSA has been modernized.
The words like ‘Vakil’, ‘Pleader’ and ‘Barrister’ have been
replaced with the word ‘Advocate’.
The definition of “documents” in section 2(1)(d) has
been expanded to include an electronic or digital record
on emails, server logs, documents on computers,
laptop or smartphone, messages, websites, cloud,
locational evidence and voice mail messages stored on
digital devices.
contd….
This update acknowledges the shift from traditional
paper-based documentation to electronic forms of
communication and data storage in contemporary
India.
It helps ensure that the legal system is equipped to
handle cases involving digital evidence.
It will provide legal practitioners, law enforcement,
and judiciary with a comprehensive framework to deal
with digital evidence stored on various platforms.
Similarly, the definition of ‘evidence’ in section 2(1)
(e) has been expanded to include any information
given electronically.
This will permit the appearance of witnesses,
accused, experts and victims to depose their
evidence through electronic means.
It also establishes ‘digital records’ as documentary evidence.
This addition in BSA demonstrates a technology-neutral approach
by recognizing the validity of information given electronically and
considering electronic communication on par with traditional in-
person statements.
It recognizes the challenges involved in ensuring repeated
physical presence in Courts and offers a viable alternative,
minimizing the necessity for physical travel and the related
expenses.
‘Coercion’ has been added to section 22 as one of the acts
causing a confession to become irrelevant.
In section 39, the scope of an expert has been expanded to
include persons especially skilled in ‘any other field’.
An Explanation has been added to section 24 that clarifies
that in a case when multiple people are tried jointly,
If the accused who has absconded or who failed to comply
with the proclamation issued against him under Bharatiya
Nagarik Suraksha Sanhita, is absent during the trial, the
trial will be conducted as a joint trial.
Section 52 of BSA enables the Courts to take judicial
notice of laws having extra-territorial operations,
international treaty, agreement or convention with
countries or decisions made at international
associations or other bodies; seals of Tribunals, State
Legislatures and the territory of India (as opposed to ‘The
territories under the dominion of the Government of
India’)
To leverage the use of technology in collection of
evidence, significant changes have been introduced in
BSA that recognize contemporary technological practices
where information is distributed and stored across
various platforms in various forms.
contd……..
In section 57, dealing with primary evidence, new
Explanations have been expanded to include -
(i)an electronic or digital record which is created or stored,
either simultaneously or sequentially in multiple files,
then each such file is an original.
(ii)an electronic or digital record is produced from proper
custody, it is sufficient to prove its contents unless it is
disputed.
contd……..
In section 57, dealing with primary evidence, new
Explanations have been expanded to include -
(iii) a video recording is simultaneously stored in electronic
form and transmitted or broadcast to another, each of the
stored recordings is an original.
(iv) an electronic or digital record is stored in multiple
storage spaces in a computer resource, each such
automated storage, including temporary files, is an original.
contd……..
These additions establish a framework for the legal
treatment of electronic or digital records,
emphasizing on their proper custody and establishing
their originality in various storage scenarios.
It streamlines the procedure for validating and
verifying electronic content.
Scope of secondary evidence has been expanded in section 58.
Secondary evidence now also includes - oral admissions, written
admissions, and evidence provided by a person who is skilled in
examining certain documents, which being technical or voluminous
cannot be conveniently examined.
Now, giving matching hash # value of original record as
proof of evidence shall be admissible as secondary
evidence. Importance is given to the integrity of a specific file and
not to the entire storage medium.
Section 61 brings parity in the admissibility of
electronic/digital record and other documents.
Now, electronic or digital records will have the same
legal effect, validity and enforceability as other
documents.
Section 62 & 63 of the Bharatiya Sakshya Adhiniyam provide
a comprehensive framework for the admissibility of electronic
records as evidence.
This section outlines the requirements for submitting a certificate
for establishing the authenticity of an electronic record.
Such a certificate is to be signed by the person in charge of the
computer or communication device.
Furthermore, a separate certificate provided in the schedule
to BSA mandates the signature of an expert, whose
endorsement serves as proof for any statements contained
within the certificate.
Once signed, the certificate serves as evidentiary support for
the matters it asserts.
Changes in section 138 have been made to enable an
accomplice to testify in court against the person accused of
the crime.
It clarifies that a conviction of the accused is not deemed
illegal when it is based on the corroborated testimony of the
accomplice.
The original provision stated that conviction is not illegal
merely because it proceeds upon uncorroborated testimony
A provison has been added to Section 165
that disallows any Court to require any
communication between Ministers and President of
India to be produced before it.
