Index

1. Introduction 
2. Updates To India’s Evidence Law: The Bharatiya Sakshya Act, 2023
3. Key Provisions Of The Bharatiya Sakshya Act, 2023
4. Key Changes In The Bharatiya Sakshya Act, 2023
5. Key Issues In BSB Act, 2023
6. Main Recommendations And Their Incorporation In The Bharatiya Sakshya Act
7. Drafting Issues In The Bharatiya Sakshya Act
8. Conclusion 

Introduction 

The Bharatiya Sakshya Act, 2023 (BSB) replaces the Indian Evidence Act, 1872 (IEA) but keeps most of its key provisions, like those on confessions, relevance of facts, and burden of proof. Both laws recognize two types of evidence and they are documentary and oral. Documentary evidence includes primary (original documents) and secondary (proof of the contents of the original). The BSB includes electronic records as documents and classifies them as primary evidence, covering information stored in devices like smartphones and laptops. While the IEA treated electronic records as secondary evidence, the BSB expands conditions for using secondary evidence, such as when the document’s authenticity is questioned. More details of this Act will be further discussed in the article. 

Updates To India’s Evidence Law: The Bharatiya Sakshya Act, 2023

The Indian Evidence Act, 1872 (IEA) governs what evidence can be used in Indian courts for civil and criminal cases. Over the years, it has been updated for criminal reforms and technological changes. In 2000, the IEA was amended to allow electronic records as secondary evidence, and in 2013, it added rules for rape cases, making the accused prove consent and stating that the victim’s character and sexual history are irrelevant. The Law Commission has reviewed the IEA many times, suggesting changes for issues like police confessions and cross-examinations. On August 11, 2023, the Bharatiya Sakshya Act, 2023, was introduced in Lok Sabha to replace the IEA. The Standing Committee on Home Affairs has reviewed this new Act.

Under the Indian Evidence Act (IEA), documentary evidence is either primary (original document) or secondary (documents proving the original’s contents). Secondary evidence is used when the original is destroyed or with the opposing party. Documents include writings, maps, and caricatures. The Bharatiya Sakshya Act (BSB) retains these rules and includes electronic records as documents.

The IEA treats electronic records as secondary evidence, with specific procedures for admission. The BSB changes this, stating that electronic records from proper custody are primary evidence unless disputed. If stored in multiple files, each file is considered primary evidence. The BSB also broadens electronic records to cover data in semiconductor memory, smartphones, emails, locations, and voicemails.

The IEA allows information from an accused in police custody to be admissible if it leads to discovering a fact, while similar information from outside custody is not admissible. The BSB keeps this distinction. In 1960, the Supreme Court upheld this provision’s constitutionality, stating it was reasonable to differentiate between those inside and outside custody. The Law Commission (2003) suggested revising this rule to make information related to facts admissible, regardless of whether the statement was made in or outside police custody.

Key Provisions Of The Bharatiya Sakshya Act, 2023

The Bharatiya Sakshya Act, 2023 (BSB) keeps most of the Indian Evidence Act’s (IEA) rules. These include:

Admissible Evidence: Only evidence that is either a ‘fact in issue’ or a ‘relevant fact’ can be presented in court. ‘Facts in issue’ affect the outcome of the case, while ‘relevant facts’ are pertinent to the case. Evidence can be documentary or oral.

Proved Fact: A fact is considered proven if the court believes it exists based on the evidence, or if it is so likely that a reasonable person would act on it.

Police Confessions: Confessions made to police officers or in police custody are generally inadmissible unless recorded by a Magistrate. However, information leading to a discovery of a fact can be admitted if it directly relates to the discovered fact.

Key Changes In The Bharatiya Sakshya Act, 2023

The Bharatiya Sakshya Act, 2023 (BSB) introduces several changes:

Documentary Evidence: The BSB expands the definition of documents to include electronic records. Primary evidence now includes original documents and their parts, like electronic records and videos. 

Oral Evidence: The BSB allows oral evidence to be given electronically, enabling witnesses, accused persons, and victims to testify via electronic means.

Admissibility of Electronic Records: Electronic records, including emails, server logs, and data on smartphones, will have the same legal effect as paper records. The BSB covers information stored in semiconductor memory or communication devices, expanding the scope of admissible digital evidence.

Secondary Evidence: The BSB broadens secondary evidence to include oral and written admissions and the testimony of document examination experts. Secondary evidence is required when the original document is unavailable or its authenticity is in question.

Joint Trials: The BSB clarifies that in a joint trial, where one accused person’s confession affects others, it will be considered against all involved. If an accused has absconded or ignored an arrest warrant, the trial will still be treated as a joint trial.

Key Issues In BSB Act, 2023

Tampering Of Electronic Records

In 2014, the Supreme Court acknowledged that electronic records are vulnerable to tampering and alteration, warning that a trial based solely on such evidence without safeguards could be unjust. The Bharatiya Sakshya Act (BSB) allows electronic records as evidence and permits courts to consult an Examiner of Electronic Evidence. However, it lacks measures to prevent tampering during search, seizure, or investigation. The Standing Committee on Home Affairs (2023) emphasised the need to protect the authenticity and integrity of electronic records and recommended secure handling through a proper chain of custody.

In 2021, the Karnataka High Court set guidelines for safeguarding electronic records during search and seizure. These include having a forensic examiner present, prohibiting investigators from using seized devices, and storing devices in Faraday bags to block electromagnetic signals.

In the European Union, a draft directive aims to standardise the use of electronic evidence, ensuring it hasn’t been manipulated and is secured throughout the chain of custody, with IT experts involved when requested. In the United States, the authenticity of electronic records must be proven by the proponent, with data certified by a qualified individual.

Ambiguity In Admissibility Of Electronic Records

The Bharatiya Sakshya Act (BSB) includes electronic records as documents and states that all documents should be admissible as primary evidence unless they qualify as secondary evidence (e.g., if the original is destroyed or with the opposing party). However, the BSB also requires electronic records to be authenticated with a certificate for admissibility, creating potential confusion.

The Standing Committee on Home Affairs (2023) noted this ambiguity, as the BSB requires proving electronic records as primary evidence but also mandates certificate authentication. It recommended that electronic records should be proven according to the section requiring certificate authentication.

Coercion In Police Custody

The Indian Evidence Act (IEA) and the Bharatiya Sakshya Act (BSB) state that information leading to the discovery of a fact from an accused in police custody is admissible if it directly relates to the discovered fact. However, the Supreme Court and Law Commission reports have highlighted that such discoveries might result from coercion or torture. In 2003, the Law Commission recommended that facts discovered through threats, coercion, or torture should not be admissible.

Main Recommendations And Their Incorporation In The Bharatiya Sakshya Act

Police Custody And Confessions To Police

Malimath Committee: Recommended repealing sections on confessions to police officers (IEA. S.25-29). This recommendation was not incorporated, the original provisions are retained in Clauses 22 and 23.

Law Commission: Suggested that facts discovered through threats, coercion, violence, or torture in police custody should not be admissible and that facts should be relevant whether discovered in or outside custody. These recommendations were not included in the Act.

Moreover, the Law Commission proposed a new provision presuming that injuries to a person in police custody are caused by the police, shifting the burden of proof to the authorities. Another provision recommended prosecution of police officers for bodily injuries caused in custody, with specific criteria for presumption. These suggestions were not incorporated.

Authentication Of Electronic Records

Supreme Court: Stated that a certificate is unnecessary if the original document is produced in court by the device owner. If the device is part of a network that can’t be physically brought, a certificate must be provided. This distinction was not addressed in the Act.

Government Privilege In Evidence

Law Commission: Recommended that unauthorised access to unpublished official records should be prohibited without departmental permission, with the Court having authority over admissibility. Original provisions in Clauses 129 and 130 were retained.

The Law Commission suggests that public officers should not be forced to reveal confidential communications if it harms public interest. The court should privately review objections before making a decision. This recommendation was not included.

Cross-Examination

Law Commission: Proposed that cross-examination should include oral statements, not just written ones (IEA S.145). This was not adopted; the original provision is retained in Clause 148.

Criminal Liability For Conspiracy

Supreme Court: Emphasised that actions in reference to a conspiracy should mean actions in furtherance of common intention. The original provision in Clause 8 was retained without this interpretation.

Other Recommendations

Law Commission: Suggested splitting provisions on admissions into parts detailing those that can and cannot be proved (IEA S.21). The original provisions were retained in Clauses 19, 60, and 79.

The Law Commission Has also recommended including cases where individuals refuse court orders to produce documents in the context of secondary evidence (IEA S.65).

Additionally, the Law Commission proposed including statements recorded by a magistrate and dying declarations in the presumption of documents produced as record of evidence (IEA S.80).

Lastly, they have suggested a new provision for establishing the credibility of witnesses by independent evidence.

Drafting Issues In The Bharatiya Sakshya Act

1. The BSB introduces oral admissions as secondary evidence but states that oral accounts of copies compared with originals or photographs of originals are not secondary evidence.
2. The BSB replaces references to “unsound mind” with “mental illness,” but some illustrations still mention unsoundness of mind.
3. The Standing Committee on Home Affairs noted that the certificate for electronic records doesn’t meet all requirements, such as declaring the device’s condition. It recommended amending the certificate accordingly.
4. The BSB replaces “lunatic” with “person with mental illness,” but there are discrepancies in terminology between the repealed Indian Lunacy Act and the current Mental Healthcare Act.
5. The BSB doesn’t list adultery as an offence, but some illustrations in the BSB still treat it as such.
6. An illustration in the BSB raises questions about gender usage (“she” and “his or her”) and terminology (“ravished” vs. “rape”).

Conclusion

The Bharatiya Sakshya Act, 2023 thus marks a significant overhaul of India’s evidence law, aiming to modernise and streamline judicial processes. By addressing key provisions and incorporating essential recommendations, the Act seeks to enhance the efficacy of evidence management in courts. However, certain drafting issues and unresolved key issues could indicate a need for further refinement to ensure comprehensive justice delivery. As India progresses, the evolution of its legal framework through such legislative reforms remains crucial for upholding the rule of law.