Bharatiya Sakshya Adhiniyam (BSA), 2023: Introduction And Features

Overview: The Bharatiya Sakshya Adhiniyam 2023 represents a pivotal legislative update, set to replace the Indian Evidence Act of 1872.

This new Act updates the framework for evidence admissibility and evaluation in India's judicial system, integrating modern technological developments such as the recognition of electronic and digital evidence. It is designed to meet current legal standards, tackling the complexities faced in today’s judicial scenarios.

Moreover, the Act aims to correct prevailing inconsistencies and establish more transparent guidelines for the admission of evidence. It also strengthens safeguards against injustices during custody and optimizes judicial procedures to promote both fairness and efficiency.

If you are a person of legal fraternity then it is important for you to understand Bharatiya Sakshya Adhiniyam, 2023 (BSA), and to help you with that we have made notes for you to read and understand the act in depth.

In this blog we will cover:

• Introduction to Bharatiya Sakshya Adhiniyam, 2023 (BSA)
• Timeline of Legislative Events for Bharatiya Sakshya Bill, 2023
• Major Changes in Bharatiya Sakshya Adhiniyam, 2023 (BSA)
• Key Issues in Indian Evidence Act of 1872 and Analysis
• Comparative table between the Bharatiya Sakshya Adhiniyam, 2023 (BSA) and the Indian Evidence Act, 1872 (IEA)

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Introduction to  Bharatiya Sakshya Adhiniyam, 2023 (BSA)

The Indian Evidence Act of 1872 (IEA) serves as the foundational framework for the admissibility of evidence in Indian judicial processes, applicable to both civil and criminal cases. Over the decades, amendments have been made to the IEA to keep pace with evolving legal practices and technological changes.

Notably, a 2000 amendment recognized electronic records as admissible secondary evidence, reflecting the increased dependency on digital data. Further amendments in 2013 revised aspects concerning consent in rape cases, notably shifting the burden of proof onto the accused to demonstrate that consent was given and affirming that the victim’s character and sexual history should not bear on the consent deliberation.

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The Law Commission has periodically reviewed the IEA, proposing updates to address issues such as custodial violence, the validity of police confessions, and cross-examination protocols. These recommendations are geared towards enhancing the relevance and effectiveness of the legislation.

In line with these efforts, the Bharatiya Sakshya Adhiniyam 2023, intended to supersede the IEA, was presented in the Lok Sabha on August 11, 2023. Following its introduction, the Standing Committee on Home Affairs has undertaken a thorough review of the Bill to ensure it meets contemporary legal standards.

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Key Recommendations and Their Incorporation Status:

Recommendation	Incorporated?
Repeal sections on confessions to police officers	No
Facts discovered through coercion should not be provable	No
Presumption that police caused injuries in custody	No
Requirement of certificate for electronic records	No
Government privilege in evidence	No
Cross-examination of previous statements (oral and written)	No
Criminal liability for conspiracy	No
Detailed provisions on admissible and inadmissible admissions	No
Secondary evidence for documents	No
Presumption of documents produced as record of evidence	No
New provision for establishing credit of witness	No

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Recent Legal Developments: The Bharatiya Nyay Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, three newly enacted laws set to take effect on July 1, 2024, aim to overhaul the longstanding frameworks of the IPC, CrPC, and the Indian Evidence Act, 1872. These changes include:

• Extended Scope of Secondary Evidence: Slight expansion in the BSA to include broader provisions for electronic evidence.
• Enhancements to Electronic Evidence Handling: Updates to better integrate digital documentation into legal processes.

Historical Overview of India’s Criminal Justice System:

• Colonial Codification: Establishment of codified criminal laws during British rule, with significant statutes like the IPC coming into force in 1862 and the CrPC in 1974.
• Legislative Revisions: Continuous updates reflecting the evolving legal landscape, notably the inclusion of electronic records in 2000 and adjustments to rape laws in 2013 focusing on consent.

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A Concise History of the Transformation from Bharatiya Sakshya Bill, 2023 (BSB) to Bharatiya Sakshya Adhiniyam, 2023 (BSA)

The Bharatiya Sakshya Bill, 2023 (BSB) was introduced to streamline and modernize the principles of evidence for fair trials, eventually leading to the repeal of the Indian Evidence Act, 1872. This legislative journey began with the bill's introduction to the Lok Sabha on August 11, 2023, followed by detailed scrutiny by a Standing Committee.

Despite the initial draft being withdrawn on December 12, 2023, it was promptly replaced by a more refined version, the Bharatiya Sakshya (Second) Bill, 2023. This revised bill moved swiftly through the legislative process, receiving approval from both houses of Parliament and culminating in presidential assent on December 25, 2023, thereby becoming the Bharatiya Sakshya Adhiniyam, 2023 (BSA).

Timeline of Legislative Events for Bharatiya Sakshya Bill, 2023

Bharatiya Sakshya Bill, 2023 (BSB)

• Introduced in Lok Sabha: August 11, 2023
• Referred to Standing Committee: August 11, 2023
• Standing Committee Report: November 10, 2023
• Withdrawn: December 12, 2023

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Bharatiya Sakshya (Second) Bill, 2023

• Introduced in Lok Sabha: December 12, 2023
• Passed in Lok Sabha: December 20, 2023
• Passed in Rajya Sabha: December 21, 2023
• Presidential Assent: December 25, 2023

Details of Bharatiya Sakshya Adhiniyam, 2023

• Act No. 47 of 2023
• Enactment Date: December 25, 2023
• Enforcement Date: July 1, 2024
• Repealed Act: Indian Evidence Act, 1872

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Structure of the Act:

• Total Sections: 170, divided into four parts and twelve chapters, covering preliminary aspects, relevancy of facts, proof mechanisms, and the production and effect of evidence.

Key Amendments Introduced:

• Section Revisions: Updates and expansions to existing sections to better meet contemporary legal needs.
• New Inclusions and Deletions: Introduction of new sections and deletion of outdated ones, reflecting a comprehensive overhaul tailored to modern judicial requirements.

2023 Legislative Reforms: The Parliamentary session in December 2023 marked a significant shift with the passage of pivotal bills aimed at modernizing and improving the efficiency and applicability of criminal justice laws in India.

Detailed Provisions of BSA, 2023:

• Admissibility of Evidence: Maintains traditional classifications of admissible evidence, distinguishing between 'facts in issue' and 'relevant facts'.
• Documentary and Oral Evidence: Emphasizes the inclusion of electronic records as documents, acknowledging the modern digital environment.
• Police Confessions and Discoveries: Stipulates conditions under which confessions and discoveries in police custody are considered admissible.
• Joint Trials and Electronic Testimony: Facilitates joint trials and permits electronic forms of testimony to adapt to contemporary needs.

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Challenges and Considerations:

• Handling of Electronic Records: Identifies potential issues with the tampering and authenticity of electronic records, suggesting stringent safeguards to prevent miscarriages of justice.
• Admissibility Ambiguities: Calls for precise legal definitions and standards to govern the use of electronic evidence in courts.

Recommendations for Effective Implementation:

• Safeguarding Digital Evidence: Advocates for strict protocols to manage and safeguard electronic evidence, referencing international standards and the proactive role of judicial bodies like the Karnataka High Court.
• Legislative and Judicial Guidelines: Suggests comprehensive guidelines to ensure the integrity and admissibility of electronic evidence, aligning with global best practices.

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Overview Highlights

The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) aims to replace the Indian Evidence Act, 1872 (IEA). This new bill retains most of the provisions of the IEA, including those on confessions, relevancy of facts, and the burden of proof.

• Types of Evidence: The IEA identifies two kinds of evidence - documentary and oral. Documentary evidence includes primary (original documents) and secondary (proof of the contents of the original). The BSB2 maintains this distinction and classifies electronic records as documents.
• Electronic Records: Under the IEA, electronic records were categorized as secondary evidence. The BSB2 classifies electronic records as primary evidence and expands the definition to include information stored in semiconductor memory or communication devices such as smartphones and laptops.
• Secondary Evidence: The BSB2 expands secondary evidence to include (i) oral and written admissions, and (ii) the testimony of a person skilled in the examination of documents.

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Major Changes

Tampering of Electronic Records:

• The Supreme Court has recognized the potential for tampering with electronic records. While the BSB2 provides for the admissibility of such records, it lacks safeguards to prevent tampering and contamination during the investigation process.

Authentication of Electronic Records:

• Currently, electronic records must be authenticated by a certificate to be admissible. The BSB2 retains this provision but also classifies electronic evidence as documents, which may not require certification, creating a contradiction.

Information Discovered in Police Custody:

• Under the IEA, facts discovered due to information received from an accused in police custody may be admissible. The BSB2 retains this provision. However, courts and committees have noted that such facts may be discovered through coercion, without adequate safeguards.

Recommendations Not Incorporated:

• The Law Commission has recommended several changes, including the presumption that a police officer caused injuries if an accused was injured in custody. These recommendations have not been incorporated into the BSB2.

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Highlights of the Bill

Context:

• The Indian Evidence Act, 1872 (IEA) governs the admissibility of evidence in Indian courts, applicable to both civil and criminal proceedings. Over the years, the IEA has been amended to align with criminal reforms and technological advancements, such as the inclusion of electronic records as secondary evidence in 2000 and provisions related to consent in rape cases in 2013.

Key Features:

• Admissible Evidence: Legal proceedings can only involve admissible evidence, classified as either ‘facts in issue’ or ‘relevant facts’. The BSB2 retains the IEA’s provisions for documentary and oral evidence, defining electronic records as documents.
• Proved Fact: A fact is proven if the court believes it to exist based on the presented evidence or if its existence is highly probable.
• Police Confessions: Confessions to a police officer are inadmissible unless recorded by a magistrate. Facts discovered from information received from an accused in custody may be admissible if they distinctly relate to the discovered fact.
• Documentary Evidence: The BSB2 includes electronic records as documents and retains the classification of primary and secondary evidence.
• Oral Evidence: The BSB2 permits oral evidence to be given electronically, allowing testimonies through electronic means.
• Admissibility of Electronic Records: Electronic or digital records will have the same legal effect as paper records. The BSB2 expands the definition to include information stored in semiconductor memory or communication devices.
• Joint Trials: In joint trials, a confession by one accused that affects others will be treated as a confession against all. The BSB2 clarifies this provision for cases where an accused has absconded or not responded to an arrest warrant.

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Key Issues and Analysis

Admissibility of Electronic Records:

• The BSB2 clarifies that electronic records from proper custody are primary evidence unless disputed, expanding to include semiconductor memory and communication devices.

Tampering of Electronic Records:

• The Supreme Court recognized electronic records’ susceptibility to tampering. The BSB2 lacks adequate safeguards to ensure authenticity and integrity during investigations. Recommendations include secure handling and proper chain of custody for electronic records.

Challenges to Facts Discovered in Police Custody:

• The IEA allows information from an accused in custody to be admissible if it leads to fact discovery. The BSB2 retains this provision despite concerns about coercion. The Law Commission recommended that facts discovered through coercion should not be provable, and the distinction between information obtained inside or outside custody should be removed.

Recommendations of Various Committees and Courts:

• Table 1 outlines key recommendations from the Law Commission and other committees, highlighting areas where the BSB2 has not incorporated suggested changes, such as the treatment of police confessions and the presumption of injuries caused by police in custody.

Comparative table between the Bharatiya Sakshya Adhiniyam, 2023 (BSA) and the Indian Evidence Act, 1872 (IEA)

Here is the complete comparative table based on the correspondence between the Bharatiya Sakshya Adhiniyam, 2023 (BSA) and the Indian Evidence Act, 1872 (IEA) from the provided document:

BSA Section	IEA Section	Subject	Summary of Comparison
1	1	Short Title, Application, and Commencement	BSA excludes territorial extent provision that IEA had, which extended to the whole of India.
2	3	Interpretation Clause/Definitions	BSA redefines words and expressions with individual clauses, excludes definition of "India".
2(1)(a)	3, para 1	"Court"	No change.
2(1)(b)	4, para 3	"Conclusive Proof"	Adds "means"; "Act" replaced with "Adhiniyam".
2(1)(c)	3, para 8	"Disproved"	Phrase changed for clarity.
2(1)(d)	3, para 5	"Document"	Includes electronic and digital records; expands definition.
2(1)(e)	3, para 6	"Evidence"	Adds digital records and electronic statements.
2(1)(f)	3, para 2	"Fact"	Removes outdated illustration and modernizes language.
2(1)(g)	3, para 4	"Facts in Issue"	No change.
2(1)(h)	4, para 1	"May Presume"	No change.
2(1)(i)	3, para 9	"Not Proved"	No change.
2(1)(j)	3, para 7	"Proved"	No change.
2(1)(k)	3, para 3	"Relevant"	No change.
2(1)(l)	4, para 2	"Shall Presume"	No change.
2(2)	New	Words and Expressions	New addition to BSA, aligns definitions with other contemporary acts.
3	5	Evidence and Relevant Facts	No change.
4	6	Relevancy of Facts in Same Transaction	No change.
5	7	Occasion, Cause or Effect of Facts	Adds "or relevant facts" to the title.
6	8	Motive, Preparation, Conduct	Updates language and replaces outdated terms in illustrations.
7	9	Explain or Introduce Facts	Minor textual updates; adds words for clarity.
8	10	Conspirator Statements	Updates geographical references in illustrations.
9	11	Relevancy of Non-relevant Facts	Updates city names in illustrations.
10	12	Determine Amount in Damages	Reorders words in the title.
11	13	Right or Custom in Question	No change.
12	14	State of Mind, Body	Modernizes terms in illustrations.
13	15	Accidental or Intentional Act	Updates currency terms in illustrations.
14	16	Course of Business	No change.
15	17	Admission Defined	No change.
16	18	Admission by Party or Agent	Structural changes in presentation.
17	19	Admission by Others	No change.
18	20	Express Admissions	No change.
19	21	Proof of Admissions	Updates currency terms in illustrations.
20	22	Oral Admissions of Documents	No change.
21	23	Admissions in Civil Cases	Replaces legal terms with "advocate".
22(1)	24	Inducement, Threat in Confessions	Adds "coercion"; integrates sections as provisos.
23(1) & (2)	25 & 26	Confession to Police Officer	Simplifies language and integrates sections.
24	30	Considered Confessions	Adds new explanations for joint trials.
25	31	Admissions as Estoppel	No change.
26	32	Relevant Statements by Unavailable Persons	Updates language and removes outdated terms.
27	33	Relevancy for Proving Truth	Minor textual adjustment.
28	34	Entries in Books of Account	Removes reference to electronic forms from the title.
29	35	Public Record or Electronic Record	No change.
30	36	Statements in Maps, Charts, Plans	No change.
31	37	Public Nature Facts in Acts or Notifications	Modernizes terms and removes colonial references.
32	38	Law Statements in Law Books	Adds "electronic or digital form".
33	39	Conversation, Document, Electronic Record	No change.
34	40	Previous Judgments	No change.
35	41	Judgments in Probate	Adds "Tribunal" and restructures text.
36	42	Judgments, Orders, Decrees	No change.
37	43	Other Judgments	No change.
38	44	Fraud or Collusion in Judgments	No change.
39(1)	45	Experts' Opinions	Expands scope to include any field.
39(2)	45A	Examiner of Electronic Evidence	Integrates section as a subsection.
40	46	Expert Opinions on Facts	No change.
41(1) & (2)	47 & 47A	Handwriting and Electronic Signature	Adds "signature" and integrates as subsections.
42	48	Custom or Right Opinions	No change.
43	49	Usages, Tenets Opinions	Structures paragraphs as clauses.
44	50	Relationship Opinions	No change.
45	51	Opinion Grounds	No change.
46	52	Character in Civil Cases	No change.
47	53	Character in Criminal Cases	No change.
48	53A	Character in Sexual Cases	No change.
49	54	Character in Reply	No change.
50	55	Character Affecting Damages	No change.
51	56	Judicially Noticeable Facts	No change.
52	57	Court's Judicial Notice	Updates terms and adds international references.
53	58	Admitted Facts	No change.
54	59	Oral Evidence	Excludes "electronic records".
55	60	Direct Oral Evidence	Updates language and structures paragraphs.
56	61	Document Contents Proof	No change.
57	62	Primary Evidence	Adds explanations.
58	63	Secondary Evidence	Updates definitions and adds clauses.
59	64	Primary Document Proof	No change.
60	65	Secondary Evidence Conditions	Updates language and structures paragraphs.
61	New	Electronic or Digital Record	Adds provisions for admissibility and legal effects of electronic records.
62	65A	Electronic Record Evidence	No change.
63	65B	Electronic Records Admissibility	Expands definitions and adds detailed provisions for admissibility.
64	66	Notice to Produce	Updates legal terms.
65	67	Handwriting Proof	No change.
66	67A	Electronic Signature Proof	No change.
67	68	Document Execution Proof	No change.
68	69	Attesting Witness Absence Proof	Excludes reference to the United Kingdom.
69	70	Attested Document Admission	No change.
70	71	Attesting Witness Denial Proof	No change.
71	72	Non-attested Document Proof	No change.
72	73	Signature, Writing Comparison	Structures paragraphs and simplifies language.
73	73A	Digital Signature Verification	No change.
74(1) & (2)	74 & 75	Public and Private Documents	Adjusts terms, removes colonial references, and adds "private" to the title.
75	76	Certified Public Documents	No change.
76	77	Certified Copy Proof	No change.
77	78	Official Document Proof	Updates terms, removes colonial references, and restructures conditions.
78	79	Certified Copy Genuineness	Simplifies language and restructures paragraphs.
79	80	Document Record Evidence	Removes colonial references and adds explanations for custody.
80	81	Official Gazette Presumption	Consolidates references to gazettes and adds custody explanation.
81	81A	Electronic Gazette Presumption	Adds a new explanation for electronic document custody.
82	83	Government Map Presumption	No change.
83	84	Law Collection Presumption	No change.
84	85	Power-of-attorney Presumption	No change.
85	85A	Electronic Agreement Presumption	Adds "digital" to the provisions.
86	85B	Electronic Record Presumption	No change.
87	85C	Electronic Signature Certificate Presumption	No change.
88	86	Foreign Judicial Record Presumption	Updates geographic references.
89	87	Book, Map Chart Presumption	No change.
90	88A	Electronic Message Presumption	Excludes previous explanation.
91	89	Document Execution Presumption	No change.
92	90	Old Document Presumption	Adds a new explanation similar to section 80 for old documents.
93	90A	Old Electronic Record Presumption	Adds a new explanation similar to section 81 for old electronic records.
94	91	Contract, Grant, Disposition Document Evidence	Updates geographic references and modernizes currency values in illustrations.
95	92	Oral Agreement Exclusion	Updates legal terms and modernizes currency values in illustrations.
96	93	Ambiguous Document Amendment Exclusion	Modernizes currency values in illustrations.
97	94	Document Application Exclusion	No change.
98	95	Unmeaning Document Evidence	Updates geographic references in illustrations.
99	96	Singular Application Language	Updates geographic references in illustrations.
100	97	Inapplicable Language Evidence	No change.
101	98	Illegible Character Evidence	Updates regional references.
102	99	Document Variation Evidence	No change.
103	100	Will Provision Saving	Updates references to the Indian Succession Act.
104	101	Burden of Proof	No change.
105	102	Proof Burden	No change.
106	103	Specific Fact Proof Burden	No change.
107	104	Admissible Evidence Proof Burden	No change.
108	105	Accused Exception Proof Burden	Updates references to the Bharatiya Nyaya Sanhita.
109	106	Special Knowledge Fact Proof Burden	No change.
110	107	Recent Death Proof Burden	No change.
111	108	Alive Person Proof Burden	Simplifies the provision.
112	109	Relationship Proof Burden	No change.
113	110	Ownership Proof Burden	No change.
114	111	Active Confidence Transaction Proof	Updates legal terms.
115	111A	Certain Offense Presumption	Updates references to the Bharatiya Nyaya Sanhita.
116	112	Marriage Legitimacy Proof	Gender-neutral language update.
117	113A	Married Woman Suicide Abetment Presumption	Updates references to the Bharatiya Nyaya Sanhita.
118	113B	Dowry Death Presumption	Updates references to the Bharatiya Nyaya Sanhita.
119	114	Fact Presumption	Restructures illustrations and adds subsections.
120	114A	Rape Consent Absence Presumption	Updates references to the Bharatiya Nyaya Sanhita.
121	115	Estoppel	No change.
122	116	Tenant, Licensee Estoppel	Adds minor textual updates.
123	117	Bill Acceptor, Bailee, Licensee Estoppel	No change.
124	118	Witness Testimony	Updates mental health references.
125	119	Non-verbal Communication Witness	No change.
126	120	Spousal Witness Competency	Updates title and structures paragraphs.
127	121	Judicial Official Testimony	No change.
128	122	Marital Communication Evidence	No change.
129	123	State Affair Evidence	No change.
130	124	Official Communication Evidence	No change.
131	125	Offense Commission Information	No change.
132(1) & (2)	126	Professional Communication	Updates legal terms and simplifies language.
132(3)	127	Interpreter, Employee Professional Communication	Updates employment references.
133	128	Volunteered Evidence Privilege	Updates legal terms.
134	129	Legal Adviser Confidential Communication	Simplifies legal terms.
135	130	Non-party Witness Title Deed Production	No change.
136	131	Document Production Refusal Right	No change.
137	132	Witness Answer Compulsion	Simplifies the provision.
138	133	Accomplice Testimony	Updates language for clarity.
139	134	Witness Number	No change.
140	135	Witness Examination Order	No change.
141	136	Evidence Admissibility Judgment	Structures paragraphs and excludes headings.
142	137	Witness Examination	Structures paragraphs and simplifies language.
143	138	Examination Order	Structures paragraphs and updates terminology.
144	139	Document Production Witness Cross-examination	No change.
145	140	Character Witness	No change.
146(1)	141	Leading Questions	Integrates IEA section as a BSA subsection.
146(2) & (3)	142	Leading Question Restrictions	Integrates IEA sections as BSA subsections.
146(4)	143	Leading Question Allowances	Integrates IEA section as a BSA subsection.
147	144	Written Matter Evidence	No change.
148	145	Written Statement Cross-examination	No change.
149	146	Cross-examination Questions	Updates legal references and structures items.
150	147	Answer Compulsion Witness	No change.
151	148	Question Asking and Answering Court Decision	Adds "namely" for clarity in subsection.
152	149	Question Ground Reasonability	Updates legal and criminal terms.
153	150	Unreasonable Ground Question Court Procedure	Updates legal terms.
154	151	Indecent, Scandalous Questions	No change.
155	152	Insulting, Annoying Questions	No change.
156	153	Veracity Testing Answer Contradiction Exclusion	Updates geographic references.
157	154	Own Witness Questioning	No change.
158	155	Witness Credit Impeachment	Structures items and updates criminal terms.
159	156	Expert Opinion Fact Corroboration	No change.
160	157	Witness Previous Statement Corroboration	No change.
161	158	Proved Statement Relevant Fact Proof	No change.
162	159	Memory Refreshing	Structures paragraphs and simplifies provisions.
163	160	Document Stated Fact Testimony	No change.
164	161	Memory Refreshing Document Adverse Party Right	Updates language for clarity.
165	162	Document Production	Structures paragraphs and adds new proviso.
166	163	Document Notice Production Evidence	No change.
167	164	Refused Document Production Evidence	No change.
168	165	Judicial Questioning, Document Production	Updates terminology and simplifies language.
169	167	Evidence Admission, Rejection Trial Impact	No change.
170	New	Repeal and Savings	Newly added provision for transitional measures.

This table encapsulates the detailed correspondence and differences between the Bharatiya Sakshya Adhiniyam, 2023 (BSA) and the Indian Evidence Act, 1872 (IEA), highlighting updates, modernizations, and additions to align with contemporary legal standards and digital advancements.

Conclusion:

The Bharatiya Sakshya Adhiniyam aims to refine the definition and management of electronic records in legal proceedings, requiring a coordinated effort from all stakeholders to ensure its successful implementation and to address the challenges of the digital age in the legal domain.