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Understanding the Bhartiya Sakshya Adhiniyam, 2023




Introduction

In the realm of legal reforms, India has witnessed the enactment of the Bhartiya Sakshya Adhiniyam, 2023 (BSA) that aims to modernize and streamline the procedures related to the admissibility of evidence in legal proceedings. This legislation holds significance in its approach towards evidence presentation and differs from the Indian Evidence Act, 1872 (IEA) in various aspects. 


As India navigates the intricacies of its legal landscape, the Bhartiya Sakshya Adhiniyam, 2023 represents a significant leap towards modernization and adaptability in evidence presentation. While drawing inspiration from the foundations laid by the Indian Evidence Act, this new legislation addresses the evolving nature of evidence in the digital era.


As indicated in its long title, the Bhartiya Sakshya Adhiniyam, 2023 (BSA) attempts to consolidate and establish general rules and principles of evidence for fair trials. To guarantee a fair trial, general rules and principles of evidence are provided.


Bhartiya Sakshya Adhiniyam, inter alia, provides as under:- 

  1. It provides that ‘evidence’ includes any information given electronically which would permit appearance of witness, accused, experts and victims through electronic means; 

  2. It provides for admissibility of an electronic or digital record as evidence having the same legal effect, validity and enforceability as any other document; 

  3. It seeks to expand the scope of secondary evidence to include copies made from 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 a document given by some person who has himself seen it and giving matching hash value of original record will be admissible as proof of evidence in the form of secondary evidence; 

  4. It seeks to put limits on the facts which are admissible and its certification as such in the courts. The proposed Bill introduces more precise and uniform rules of practice of courts in dealing with facts and circumstances of the case by means of evidence.


Comparative study of some provisions of the Bhartiya Sakshya Adhiniyam, 2023 and Indian Evidence Act, 1872: 


Section 2(1)(d) - DOCUMENT

Section 3, paragraph 5 of the Evidence Act corresponds to Section 2(1)(d) of the BSA.   

 

The definition of "document" as stated in Section 2(1)(d) of the BSA has been updated to reflect the current digital era. Electronic and digital records fall within the new definition of "document" in a specific way.  


The five statutory illustrations from the previous definition have been subsequently retained. The new definition gives a sixth statutory illustration No. (vi) which clarifies that "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". 


According to the new definition, information need not be expressed or described on any substance using letters, numbers, or marks to be considered a "document" or "documentary evidence".  


What is "otherwise recorded" on any substance "by any other means" will likewise be considered "document" or "documentary evidence."

 

It seems that a video recording on a mobile phone would also qualify as "documentary evidence" as it is "otherwise recorded" upon any substance "by any other means". 



Section 2(1)(e) - EVIDENCE  

Section 3, paragraph 6 of the Evidence Act is analogous to Section 2(1)(e) of the BSA. 


As per the revised definition of "evidence", as stipulated under section 2(1)(e) of the BSA, statements, including statements sent electronically, are considered forms of evidence as well as oral evidence. This makes sense considering section 530 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which permits the electronic examination of complainants and witnesses by audio-visual or electronic communication methods. 


The Evidence Act did not specifically include digital records in its definition of "evidence," and only electronic records were accepted as documentary evidence. 


Digital or electronic records are notably included in the Bhartiya Sakshya Adhiniyam's Section 2(1)(e) as documentary proof. 


Section 2(1)(f) - FACT  

Section 3, paragraph 2, of the Evidence Act is analogous to Section 2(1)(f) of the BSA. 


Illustration (e) in section 3 (2nd para) of Evidence Act which states that "(e) That a man has a certain reputation, is a fact." is omitted in the new revised definition of "fact" as provided under section 2(1)(f). 


Section 63 - ADMISSIBILITY OF ELECTRONIC RECORDS 

Section 63 of the BSA corresponds to Section 65B of the Evidence act. 


The expression "computer" has been substituted with "computer or any communicable device" under Section 63 of the BSA. 


Section 63(1) of the BSA broadens the application of Section 65B(1) of the Evidence Act to make it applicable also to any information contained in semiconductor memory or in any communication device (e.g. smartphone) or otherwise stored, recorded or copied in any electronic form. 


Section 63 of BSA stipulates that notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible. 


Section 85 – PRESUMPTION AS TO ELECTRONIC AGREEMENTS 

Section 85A of the Evidence Act and Section 85 of the BSA are comparable. 


Section 85A of the Evidence Act outlined that the Court shall presume that every electronic record purporting to be an agreement containing the electronic signatures of the parties was so concluded by affixing the electronic signature of the parties. 


Section 85 of the Bhartiya Sakshya Adhiniyam stipulates that the court shall presume that every electronic record purporting to be an agreement containing the electronic or digital signature of the parties was so concluded by affixing the electronic or digital signature of the parties. 


Section 122 - ESTOPPEL OF TENANT AND OF LICENSEE OF PERSON IN POSSESSION 

Section 116 of the Evidence Act is analogous to Section 122 of the BSA.


Section 116 of the Evidence Act provided that no tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. 


Section 122 of BSA provides that no tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy or any time thereafter, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. 


Section 134 – CONFIDENTIAL COMMUNICATION WITH LEGAL ADVISERS 

Section 134 of the BSA corresponds to Section 129 of the Evidence Act. 


The phrase “legal professional advisor” are replaced by words “legal adviser”. 


Section 138 - ACCOMPLICE 

Section 133 of the Evidence Act is analogous to Section 138 of the BSA. 


The word "if" is substituted in section 138 of BSA for the words "merely because" in Section 133 of Evidence Act. 


Section 133 of the Evidence Act provided that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. 


Section 138 of BSA provides that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice. 

 

Section 165 – PRODUCTION OF DOCUMENTS 

Section 165 of the BSA corresponds to Section 162 of the Evidence Act. 


New proviso to Section 165 of the BSA provides that no court shall require any communication between the Ministers and the President of India to be produced before it. 


New Sections in BSA 

Besides these provisions, there are a few other provisions that were added to the Evidence Act by the Bhartiya Sakshya Adhiniyam, 2023, they are: 


Section 2(2) 

Words and expressions 

Section 61 

Electronic or digital record 


Sections repealed in BSA 

And there are a few other provisions of the Evidence Act which were repealed by the BSA. They are: 


Section 3, para 10 

“India” 

Section 22A 

When oral admissions as to contents of electronic records are relevant 

Section 82 

Presumption as to document admissible in England without proof of seal or signature 

Section 88 

Presumption as to telegraphic messages 

Section 113 

Proof of cession of territory 

Section 166 

Power of jury or assessors to put questions 


Conclusion 

As India navigates the intricacies of its legal landscape, the Bhartiya Sakshya Adhiniyam, 2023 represents a significant leap towards modernization and adaptability in evidence presentation. While drawing inspiration from the foundations laid by the Indian Evidence Act, this new legislation addresses the evolving nature of evidence in the digital era. 

 

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