Important features of Bharatiya Sakshya Adhiniyam,2023

 1. The new Act on law of evidence has been named as “Bharatiya Sakshya Adhiniyam (BSA), 2023” which has replaced the Indian Evidence Act, 1872.

2. The words like ‘Parliament of the United Kingdom’, ‘Provincial Act’, ‘notification by the Crown Representative’, ‘London Gazette’, ‘any Dominion, colony or possession of his Majesty, ‘Jury’, ‘Lahore’, ‘United Kingdom of Great Britain and Ireland’, ‘Commonwealth,’ ‘Her Majesty or by the Privy Council,’ ‘Her Majesty's Government’, ‘copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s Printer’, ‘possession of the British Crown’, ‘Court of Justice in England’, ‘Her Majesty’s Dominions’, ‘Barrister’ have thus been deleted as they are no longer relevant.

3. Language of the BSA has been modernized. The words like ‘Vakil’, ‘Pleader’ and ‘Barrister’ have been replaced with the word ‘Advocate’.

4. 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.

5. Similarly, the 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. It recognizes the challenges involved in ensuring repeated physical presence in Courts and offers a viable alternative, minimizing the necessity for physical travel and the related expenses.

6. ‘Coercion’ has been added to Section 22 as one of the acts causing a confession to become irrelevant. In Section 39, the scope of an expert has been expanded to include persons especially skilled in ‘any other field’.

7. 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.

8. Section 52 of BSA enables the Courts to take judicial notice of laws having extra-territorial operations, international treaty, agreement or convention with countries or decisions made at international associations or other bodies; seals of Tribunals, State Legislatures and the territory of India (as opposed to ‘The territories under the dominion of the Government of India’)

9. To leverage the use of technology in collection of evidence, significant changes have been introduced in BSA that recognize contemporary technological practices where information is distributed and stored across various platforms in various forms. In 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.

10. Scope of secondary evidence has been expanded in Section 58. Secondary evidence now also includes - oral admissions, written admissions, and evidence provided by a person who is skilled in examining certain documents, which being technical or voluminous cannot be conveniently examined. Now, giving matching hash # value of original record as proof of evidence shall be admissible as secondary evidence. Importance is given to the integrity of a specific file and not to the entire storage medium.

11. 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.

12. Section 62 & 63 of the Bharatiya Sakshya Adhiniyam 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.

13. Changes in Section 138 have been made to enable an accomplice to testify in court against the person accused of the crime. It clarifies that a conviction of the accused is not deemed illegal when it is based on the corroborated testimony of the accomplice. The original provision stated that conviction is not illegal merely because it proceeds upon uncorroborated testimony of an accomplice.

14. A proviso has been added to Section 165 that disallows any Court to require any communication between Ministers and President of India to be produced before it.

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