Read now! Analysis of Indian Evidence Act, 1872 and Bharatiya Sakshya Adhiniyam, 2023

Written by Manasvi Rastogi, 2^nd year law student at Symbiosis Law School, Pune.

The Lok Sabha, on 11^th August 2023, introduced three new criminal law bills, one of which was the Bharatiya Sakshya Bill, 2023, which was introduced to replace and repeal the colonial era legislation, the Indian Evidence Act, 1872 (hereinafter IEA). After a few amendments, the Bharatiya Sakshya (Second) Bill, 2023 was passed by the Rajya Sabha on 21^st December 2023, and it received the President’s assent on 25^th December 2023 and shall now formally be known as the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter BSA). The Centre has not declared the date of enforceability as of now, but it shall come into force during 2024 after training forensic, police, jail and court officials and ramping up the technology.

From the outline of the Adhiniyam, we learn that there are 4 parts, 12 chapters and 170 sections in the BSA as compared to 3 parts, 11 chapters and 167 sections that were present in the IEA, thus effectively increasing the ambit of BSA. The BSA recognises that enunciating the rules and principles of evidence is not an end in itself; rather, the aim of providing for general rules and principles of evidence is to ensure a fair trial. The law of evidence lies in the adjective law category, neither substantive nor procedural law, that defines the pleadings and methodology by which the substantive or procedural laws are operationalised. The existing law does not address the technological advancement that the country has undergone in the last few decades, and the new law, thus, helps to overcome this issue by including provisions that allow for digital and electronic records to be considered legally admissible evidence.

This legislation aims to provides for the inclusion of ‘evidence’ also to mean any information given electronically, which would permit the appearance of witnesses, accused, experts and victims through electronic means. It also seeks to expand the scope of the secondary evidence to include copies made from the 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 matching hash value of original record. Furthermore, the Adhiniyam seeks to limit the admissible facts and their certification, along with introducing more precise and uniform rules of practice of courts in dealing with facts and circumstances of the case by means of evidence.

Various changes and amendments have been made to the existing law of evidence to give rise to the new law called the BSA. Some of the important changes are discussed below:

Section 1 of BSA

S.1 of BSA corresponds to S.1 of IEA, and as compared to IEA, which provided for the extension of the Act to the whole of India, such terminology has been omitted in BSA so as not to hamper the admissibility of evidence that is generated outside India in digital mode. Further, BSA shall also be applicable to courts-martial convened under the Army Act, the Naval Discipline Act or the Indian Navy (Disciple) Act or the Air Force Act.

Section 2 of BSA

S.2 of BSA is the counterpart of S.3 of IEA. There are no changes with respect to S.2(1)(a), (b), and (c) of BSA which correspond to S.3 para 1, 3, and 8, respectively, of IEA.

S.2(1)(d) of BSA gives a new compatible definition of the word ‘document’ which was earlier provided in S.3, para 5 of IEA. This definition specifically includes digital and electronic records. It retains the illustrations given in IEA and also adds one where “An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents”. Under this new definition, matter may not necessarily be expressed or described upon any substance by means of letters, figures or marks only. It includes any matter which is “otherwise recorded” upon any substance “by any other means”. As a result, it is possible that even videos recorded on mobile phones would be allowed to be qualified as documentary evidence.

S.2(1)(e) of BSA is related to S.3, para 6 of IEA. Here, under the new definition of “evidence”, there is a specific inclusion of electronic and digital records as documentary evidence, which also correlates to S.530 of Bharatiya Nagarik Suraksha Sanhita, 2023, which provides for the examination in electronic mode by use of electronic communication or by audio-video electronic means.

Furthermore, there are no tangible changes concerning S. (2) (f) to (l) of BSA and S.3, para 2, 4, 1, 9, 7, 3 and S.4, para 2 of IEA, respectively.

A new provision has been added under S.2(2) which provides for words which have not been defined in the Adhiniyam but defined elsewhere and shall have the same meaning as they have in those respective statutes.

Section 6 of BSA

S.6 of BSA corresponds to S.8 of IEA, and there are a few changes that have been made in the statutory illustrations, some of them are:

(d) “vakils” is changed to “advocates”

(e) error of “proved” corrected to “provided”

(f) “man” changed to “person”

(j) “ravished” replaced with “raped”

Section 21 of BSA

S.23 of IEA corresponds to S.21 of BSA, where “advocate” is replaced for “barrister, pleader, attorney or vakil” in admissions in civil cases when relevant.

Section 22 of BSA

S.22 of BSA relates to confessions that are irrelevant in the criminal proceeding caused by inducement, threat, coercion or promise. S.22 consolidates S.24, 28 and 29 of IEA. The word “coercion” has been inserted in S.22 of BSA, which was not present in S.24 of IEA.

Section 23 of BSA

S.23 of BSA, which refers to the confession to a police officer, is a consolidation of Ss.25, 26 and 27 of IEA.

Section 24 of BSA

S.24 of BSA is associated with consideration of proved confession affecting the person making it and others jointly under trial for the same offence. It corresponds to S.30 of IEA. A new Explanation II has been added to clarify that “A trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall be deemed to be a joint trial for the purpose of this section.”

Section 31 of BSA

This section corresponds to S.37 of IEA, and it is related to the relevancy of statements as to facts of a public nature contained in certain acts or notifications, and under this section, electronic or digital form of Official Gazette has been made an admissible form of evidence.

Section 32 of BSA

Under this section, e-books and websites have been purported to be relevant where, in certain circumstances, electronic or digital forms of books and court rulings have been made admissible as evidence.

Section 39 of BSA

S.39 of BSA corresponds to S.45 and 45A of IEA and is related to the opinion of experts. This section includes the opinions of experts not only as given in S.45 of IEA but also those of experts in other fields.

Section 52 of BSA

This section deals with the facts of which the court shall take judicial notice, and it is the counterpart of S.57 of IEA. Under S.52(a), the scope is expanded to include laws with extra-territorial operation. S.52(b) requires Courts to take judicial notice of international treaties, agreements, conventions, etc. This section omits reference to Acts passed by the UK Parliament, the course of proceedings of the UK Parliament, and articles of war for the Indian Army, Navy or Air Force, to name a few.

Section 57 of BSA

S.62 of IEA corresponds to S.57 of BSA, and new Explanations have been inserted in this section, specifically Explanations 4 to 7. These explanations provide clarification on various aspects related to primary evidence.

Explanation 4 clarifies the storage of multiple files. Explanation 5 provides clarification on the record produced from proper custody. Explanation 6 clarifies primary evidence concerning stored recordings, and Explanation 7 clarifies automated storage.

Section 58 of BSA

S.58 of BSA, which is concerned with secondary evidence, corresponds to S.63 of IEA. Here, secondary evidence includes written admission, oral admissions and evidence of a person who is skilled in examining the documents.

Section 61 of BSA

This new provision provides the same validity, enforceability and legal effect as paper records to the electronic and digital records and the admissibility of the same shall not be denied subject to S.63 of BSA.

Section 63 of BSA

S.63 of BSA is related to the admissibility of electronic records. The section of IEA that corresponds to this section is S.65B. Here, the words “computer or any communication device” have been used. S.63(1) extends the scope of S.65B and also makes it applicable to any information that has been stored in semiconductor memory or in any communication device or which has been otherwise stored or copied electronically. S.63(2) lays down the conditions with respect to the computer output as given under S.63(1). Further, under S.63(3), it is provided that all the computers or communication devices used shall be treated for the purposes of this section as constituting a single computer or communication device. Under S.63(4), the format of the certificate to be given with the electronic record has been specified in the Schedule to the BSA; there is no such format in IEA for the certificate in S.65B(4) of IEA.

Section 80 of BSA

S.80 of BSA is related to the presumption of the genuineness of every document that purports to be the Official Gazette, newspapers, and other documents which include journals, every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody. It corresponds to S.81 of IEA, and multiple omissions have been made in the Adhiniyam concerning the phrases related to the British documents. While S.81 of IEA did not define what proper custody meant, it has been clarified in the Explanation to S.80 of BSA.

Section 81 of BSA

S.81 of BSA corresponds to S.81A of IEA, wherein the words “or digital” have been added after “electronic” with reference to the presumption of the genuineness as to the Official Gazettes in electronic or digital records.

Section 85 of BSA

The affixing of electronic or digital signatures of the parties in agreements has been given in S.85 of BSA, which corresponds to S.85A of IEA, where the word “digital” was not used.

Section 90 of BSA

Under S.90 of BSA, which is the counterpart to S.88A of IEA, the Explanation in S.88A has been omitted as it has become redundant because the definition of the words “addressee” and “originator” have been included in S.2(1)(b) and (za) of the Information Technology Act, 2000 which as a result of S.2(2) of BSA shall have the same meaning as given therein.

Section 165 of BSA

S.165 of BSA corresponds to S.162 of IEA. A new proviso to the production of documents that has been added to S.165 provides that no Court shall require any communication between the Ministers and the President of India to be produced before it.

In conclusion, it is imperative to mention that while there has been an inclusion and addition of new provisions and sections, various sections of the IEA have been retained as they are, with only a change in the numbering of the section, while some have been consolidated into one section. Additionally, a new Schedule has been added in the BSA for which there was no corresponding Schedule in the IEA. This Schedule prescribes the certificate as mentioned under S.63(4)(c) of BSA. All in all, the Adhiniyam proves to be a way forward wherein the British-era phrases and terms have been omitted and replaced; an example of the same would be the replacement of the words “barrister, attorney, pleader, or vakil” with “advocate”, words like “lunatic” and “idiot” have been replaced with the words “person of unsound mind” to make the law inclusive and sensitive.