The Indian Evidence Act decides what evidence can be used in Indian courts for both civil and criminal cases. But now the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is a game-changer for India's legal system, replacing the old Indian Evidence Act of 1872 (IEA) with fresh, modern rules. It officially came into effect on 1 July 2024 after getting the nod from both the Lok Sabha and Rajya Sabha.
This new law aims to tackle today's legal challenges and keep up with technology, making court processes clearer and more efficient. In this blog, we will take a closer look at how the BSA differs from the old IEA, highlighting key changes and what they mean for India's legal community and its citizens. Let’s jump in!
Major Highlights of BSA:
1. Territorial Application and Definitions: Unlike the IEA's broad application across all of India, the BSA omits this provision, facilitating the admissibility of digital evidence originating outside India. Moreover, the BSA's expanded definition of "document" explicitly includes electronic and digital records, reflecting its recognition of modern data formats beyond traditional paper documents.
2. Evidence and Its Scope: The BSA broadens the definition of "evidence" to encompass statements made electronically and includes electronic and digital records as documentary evidence. This update ensures that the legal framework is adaptable to contemporary forms of communication and information storage.
3. Documentary Evidence: According to the Indian Evidence Act, documents can be things like writings, maps, and caricatures. The Bharatiya Sakshya Adhinyam 2023 adds that electronic records are also considered documents.
There are two types of documentary evidence: primary and secondary.
(I) Primary evidence includes the original document and its parts, like electronic records and video recordings.
(II) Secondary evidence includes documents and oral accounts that can prove what's in the original document. The BSB keeps this classification.
4. Oral Evidence: Under the IEA, oral evidence includes statements made by witnesses in court about the facts being investigated. The BSA allows for oral evidence to be given electronically, meaning witnesses, accused persons, and victims can testify through electronic means.
5. Admissibility of Electronic or Digital Records as Evidence: Documentary evidence also includes information in electronic records that have been printed or stored in optical or magnetic media from a computer. This information might be stored or processed by one or multiple computers. The BSA states that electronic or digital records will have the same legal effect as paper records. It expands the definition of electronic records to include information stored in semiconductor memory or any communication devices like smartphones and laptops. This includes records like emails, server logs, locational evidence, and voicemails.
6. Secondary Evidence: The BSA expands secondary evidence to include (i) oral and written admissions and (ii) the testimony of a person who has examined the document and is skilled in examining such documents.
7. Joint Trials: A joint trial is when more than one person is tried for the same offense. The IEA states that in a joint trial, if one of the accused confesses and it affects the others, it will be treated as a confession against all of them. The BSA adds an explanation: if one of the accused has absconded or hasn't responded to an arrest warrant, it will still be treated as a joint trial.
8. Confessions and Related Provisions: Section 22 of the BSA consolidates and refines provisions related to confessions in criminal proceedings, expanding the factors affecting their relevance to include coercion explicitly. This section also clarifies timelines for when confessions become admissible, ensuring fair and just legal processes.
9. Specificity in Legal Standards: Sections like those dealing with the relevancy of foreign law (Section 32), the admissibility of digital and electronic evidence (Section 39), and the verification of digital signatures (Section 73) demonstrate the BSA's detailed approach to adapting legal standards to modern technological realities.
10. Removal of Colonial Terminology: The BSA eliminates outdated references and terminology inherited from colonial-era laws, aligning India's legal framework with its contemporary sovereign status and removing references to entities like the Parliament of the United Kingdom and Her Majesty.
11. Geographical Scope and Modern Context: Sections like those addressing the applicability of international law (Section 31) reflect the BSA's adaptation to a globalised legal environment, emphasising India's current legal sovereignty and technological advancements.
Issues with the Bharatiya Sakshya Adhiniyam 2023
Concerns About Electronic Records
The Supreme Court recognised that electronic records can be tampered with. While the BSA allows these records to be used as evidence, there are no safeguards to prevent tampering during investigations.
Admissibility and Authentication
Right now, electronic records need a certificate to be used as evidence. The BSA keeps this rule but also says electronic evidence is like documents, which might not need certification. This creates confusion.
Issues with Evidence from Police Custody
According to the IEA, information from an accused in police custody can be used as evidence. The BSA keeps this rule. However, courts and committees have noted that facts discovered in custody can be obtained by coercion without proper safeguards.
Recommendations by the Law Commission
The IEA and the BSA allow information obtained in police custody to be used as evidence, but not if the accused was outside. The Law Commission suggested removing this distinction.
The Law Commission has made several suggestions that have not been included. One recommendation is that if an accused is injured in police custody, it should be presumed that a police officer caused the injuries.
Conclusion
The Bharatiya Sakshya Adhinyam, 2023 marks a big step towards a more flexible, clear, and efficient legal system in India. By using digital advancements and improving evidence standards, the BSA modernises India's legal landscape, ensuring fair and accessible court proceedings. This major reform shows India's commitment to updating its legal system to meet modern challenges and technological progress.