Introduction
Last year, the Minister of Home Affairs introduced three new criminal laws aimed at safeguarding the rights of Indian citizens. These laws – the Bharatiya Sakshya Adhiniyam, 2023 (BSA), Bharatiya Nyaya Sanhita, 2023, and Bharatiya Nagarik Suraksha Sanhita, 2023 – are intended to replace the Evidence Act (‘Evidence Act’) 1872, Penal Code 1860, and
Evolution of Evidence Law in India
The term “evidence” originates from the Latin word evidens or evidere, meaning “to show clearly; to make clear to the sight; to discover clearly; to make plainly certain; to ascertain; to prove”. Before the enactment of the Evidence Act, Courts in India, particularly in presidency towns, adhered to the principles of English law regarding evidence. In rural areas (mofussil), British Courts initially followed Mohammedan law on evidence, but later, various regulations were introduced to govern evidence principles in those courts.1
Act II of 1855 was a partial codification of evidence law, although it did not alter the practices in mofussil Courts. In 1868, Sir Henry James Sumner Maine drafted a Law of Evidence Act, but it was abandoned due to its unsuitability for the country. In 1871, Sir James Fitzjames Stephen prepared a new draft, which was enacted as Act I of 1872. The primary objective of the Act I of 1872 (Evidence Act) was to establish stricter standards for evidence admissibility, aiming to bring about greater consistency and accuracy in legal proceedings compared to previous practices. The Act’s scope was limited to prescribing rules for determining the admissibility of evidence in issues where Courts are required to render judgments. This legislation took effect on 01-07-1872, during India’s colonial period under British rule.2
The introduction of the BSA 2023, set to be implemented in the country from 1st July 2024, reflects a meticulous restructuring, featuring 170 sections, a modest increase from the previous 167 sections. The focus on evidentiary procedures in the digital age is evident, with provisions for electronic and digital records.3
A delightful divergence from the chains of colonial vocabulary
The BSA has undergone significant changes to reflect the evolving legal landscape and discard outdated colonial terminology. Phrases such as ‘Parliament of the United Kingdom’, ‘Provincial Act’, and ‘notification by the Crown Representative’ have been eliminated as they no longer hold relevance. Similarly, terms like ‘Jury’, ‘Lahore’, and ‘United Kingdom of Great Britain and Ireland’ have been removed. Additionally, modernization efforts have replaced archaic terms like ‘Vakil’, ‘Pleader’, and ‘Barrister’ with the more contemporary ‘Advocate’. These revisions not only align the language of the law with contemporary usage but also signify a departure from colonial legacies.
Heralding a Legal Revolution: Shaping the Digital Justice Landscape
In the 21st century, the rapid pace of technological development and scientific discoveries continues to amaze. This progress, especially in Artificial Intelligence, has posed challenges in tracing and prosecuting crimes, prompting the need for updated laws. The BSA represents a significant advancement in India’s criminal justice system, with a key focus on embracing technology. It introduces procedures for handling digital evidence and expanding the scope of admissible evidence. The overarching aim of this legislation is to streamline the delivery of justice by leveraging technological advancements without necessitating a complete overhaul of existing systems4.
The Evidence Act saw a significant amendment in 2000 to accommodate the burgeoning realm of electronic evidence. The Information Technology Act, 2000 (IT Act) was enacted to regulate electronic transactions and provide legal recognition to electronic records in India, responding to the surge in technology. This necessitated amendments to the Evidence Act, which lacked provisions for electronic evidence, to establish a framework for the admissibility of electronic evidence in Courts, aligning legal practices with technological advancements. Consequently, the introduction of the IT Act introduced several amendments to the Evidence Act, facilitating the acceptance of electronic evidence. This amendment, now reflected in the current Act (BSA), marks a pivotal moment in legal history. Before 2000, electronic records could only be presented in Court if accompanied by the device that generated them, such as a laptop housing a document. However, post-2000, the status of other computer-generated outputs shifted from secondary to primary evidence, simplifying the process by allowing printouts to stand on their own without requiring the device for validation.
Now, the current Act seeks to enshrine these established principles, retaining the definition of ‘primary evidence’ while adding four additional Explanations to clarify the scope of electronic records considered primary evidence. Moreover, Section 61 of the Act explicitly ensures that electronic or digital records are afforded the same legal standing as their paper counterparts, reaffirming their admissibility in court proceedings.
The expansion of secondary evidence for electronic records to encompass information from communication devices and intermediaries is a commendable step forward. Additionally, the Act’s provision of a prescribed format for certificates required under this section adds clarity and standardization to the process, further strengthening the legal framework for electronic evidence in India.
Key Changes brought about by BSA, 20235
|
SECTION |
Explanation |
|
Section 2(1)(d) |
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. 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. |
|
Section 2(1)(e) |
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. |
|
Section 22 |
‘Coercion’ has been added to Section 22 as one of the acts causing a confession to become irrelevant. |
|
Section 39 |
Under Section 39, the scope of an expert has been expanded to include persons especially skilled in ‘any other field’. |
|
Section 24 |
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 57 |
Under 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. (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. 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. |
|
Section 58 |
Section 58 of the BSA expands the scope of secondary evidence. It now includes oral and written admissions, as well as evidence from individuals skilled in examining complex or voluminous documents that cannot be easily reviewed. Additionally, the provision allows for the admissibility of matching hash values (#) of original records as proof of evidence, emphasizing the integrity of specific files rather than the entire storage medium. This update aims to enhance the admissibility and reliability of evidence. |
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Section 61 |
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. |
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Section 62 & 63 |
Section 62 & 63 of the BSA 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. |
|
Section 138 |
The amendments to Section 138 now allow accomplices to testify in the Court against the accused. Previously, the law only addressed convictions not being illegal if solely based on an accomplice’s testimony. Essentially, these amendments ensure that accomplices can testify, and if their testimony is corroborated, it can still lead to a valid conviction. |
|
Section 165 |
A proviso has been added to Section 165 disallowing any Court to require any communication between Ministers and President of India to be produced before it. |
Sections of Evidence Act Repealed by BSA, 2023
|
SECTION |
HEADING |
|
3, para 10 |
“India” |
|
22-A |
When oral admission as to contents of electronic records are relevant |
|
82 |
Presumption as to document admissible in England without proof of seal or signature |
|
88 |
Presumption as to telegraphic messages. |
|
113 |
Proof of cession of territory |
|
166 |
Power of jury or assessors to put questions. |
Additionally, Section 52 of the BSA, corresponding to Section 57 of the Evidence Act, expands the Court’s ability to consider various legal aspects. It allows the Court to take judicial notice of laws with extra-territorial reach, international treaties involving India and decisions made by India in international forums. This Section broadens the scope of what Courts must consider, aligning Indian legal standards with global norms and fostering international cooperation.6
Conclusion
The BSA represents a landmark moment in India’s legal landscape, signalling a shift towards modernization and responsiveness to the demands of the digital era. By replacing archaic terminology, expanding the admissibility of evidence, and embracing technology, this comprehensive reform embodies a forward-thinking approach to justice. With provisions for handling digital records, ensuring judicial awareness of international agreements, and facilitating fairer trials, the BSA sets the stage for a more equitable and efficient legal system. As we embark on this new chapter, the BSA stands as a testament to India’s commitment to evolve and adapt to meet the evolving needs of society while upholding the principles of justice and fairness.
*Namrata Banerjee, Senior Editorial Assistant has put this piece together.
1. Sarkar law of evidence: In India, Pakistan, Bangladesh, Burma, Ceylon, Malaysia & Singapore, (2016).
2. III SC Sarkar,Law of Evidence in India, Pakistan, Bangladesh, Burma,Ceylon & Singapore 1-4 (LexisNexis 2016)
3. https://ssrn.com/abstract=4677357
4. https://www.scconline.com/blog/post/2024/04/22/conference-on-indias-progressive-path-in-the-administration-of-criminal-justice-system/.
5. http://www.scconline.com/DocumentLink/4ZL1J8Y1.
6. Shivam Kumar Pandey, Dasari Sony, The Bharatiya Sakshya Bill, 2023, VOL-1 ISSUE-4, Lex Scripta Magazine Of Law And Policy 3, 12-13 (2023)
