The Bharatiya Sakshya Adhiniyam 2023

In a significant development on December 25, 2023, the Hon’ble President of India granted her assent to three criminal law bills, which had recently been approved by the Parliament of India. These bills include the Bharatiya Nyaya (Second) Sanhita, 2023 aimed at replacing the Indian Penal Code,1860; the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 intended to replace the Code of Criminal Procedure,1973; and the Bharatiya Sakshya (Second) Sanhita, 2023 seeking to replace the Indian Evidence Act,1872 (“IEA”).

The Bharatiya Sakshya Bill, 2023 was introduced in Lok Sabha on August 11, 2023.  It seeks to replace the IEA.  The Standing Committee on Home Affairs examined the Bill. The Bharatiya Sakshya (Second) Bill, 2023 was introduced on December 12, 2023 after the earlier Bill was withdrawn.  It incorporates most of the suggestions made by the Standing Committee on Home Affairs.

Although all three bills have been passed by the Lok Sabha on December 20,2023 and the Rajya Sabha on December 20,2023 and have received the President's assent on December 25, 2023, the enforcement date of the three Bills is yet to be announced.

The focus of this article is to analyze the changes brought about by the Bharatiya Sakshya Adhiniyam, 2023, (“BSA”) which is set to replace the Indian Evidence Act, 1872 (“IEA”).

Highlights of The Bharatiya Sakshya Adhiniyam 2023

Whilst BSA retains most provisions of the IEA including those on confession, relevancy of facts, and burden of proof, the proposed changes in the BSA are aimed towards modernizing and adapting legal procedures to the evolving landscape of technology while providing clarity and additional considerations in the realm of evidence presentation and trial procedures, which are as follows:

1.    Documentary Evidence

The BSA under section 2(d) broadens the definition of documents by explicitly including electronic records, which was not the case under the IEA. Electronic records under the BSA cover a gamut of documents which includes documents in the form of records on emails, server logs, documents on computer or laptop, websites and locational evidence, etc.

2.    Oral Evidence

While the IEA limits oral evidence to statements made in court, the BSA introduces the option for electronic presentation of oral evidence under section 2(e) of the act. This change allows witnesses, accused individuals, and victims to provide testimony through electronic means.

3.    Admissibility of Electronic or Digital Records

Sections 61 & 63 of the BSA addresses the admissibility of electronic records by stating that they hold the same legal weight as traditional paper records. It expands the scope of electronic records to encompass the information stored in semiconductor memory and various communication devices, including smartphones and laptops.

4.    Secondary Evidence

Under the IEA, electronic records are categorised as secondary evidence.  The BSA Act classifies electronic records as primary evidence.  It expands such records to include information stored in semiconductor memory or any communication devices (smartphones, laptops).

Section 58 of the BSA widens the definition of secondary evidence to include oral and written admissions. It also allows for the testimony of an expert in document examination as secondary evidence.

5.    Joint Trials

A joint trial refers to the trial of more than one person for the same offence.  The IEA states that in a joint trial, if a confession made by one of the accused which also affects other accused is proven, it will be treated as a confession against both.  Section 24 of the BSA introduces an explanation regarding joint trials, specifying that a trial involving multiple individuals will be considered joint even if one of the accused has absconded or has not responded to an arrest warrant. This clarification aims to address situations where the absence or non-cooperation of one accused should not hinder the progress of a joint trial.

6.    Confession

In relation to the provisions pertaining to confession, a notable change has been made through Section 22 of the BSA. Although the earlier Section of the IEA has been retained, two new provisos have been included which allow for certain types of confessions to be considered relevant.

a)     As per the first proviso, a confession can become relevant if the inducement, threat, coercion, or promise, has in the opinion of the court, been fully removed.

b)    Secondly, a confession if otherwise relevant, does not become irrelevant merely because it was (i) made under a promise of secrecy; (ii) or is a consequence of a deception practised on the accused person for obtaining such confession; (iii) or if the accused person was drunk; (iv) or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, (v) or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him. These provisos are likely to require further clarification to ensure that the right against self-incrimination is not affected.

7.    Leading Questions

Section 146, of the BSA pertains to “leading questions” which has been modified from the original provision in IEA to include more specific instances, as opposed to Section 141 of the IEA which was generic and relied on the “suggestive” character of questions.

8.    Production of documents

Section 165 of the BSA concerns to production of documents, the same has been  modified from the original Section 162 under IEA, the modification has been done by adopting the proviso which bars the production of any privileged communication between ministers and the President of India.

9.    Judicial Notice

Section 52 of the BSA pertains to judicial notice which shall be taken by the court, this section has removed multiple colonial references, which were initially a part of  the provision under IEA. Further, new facts have been added of which the Court “shall” take judicial notice. These are, laws having extra-territorial operation, international treaty, agreement or convention with country or countries by India, or decisions made by India at the international associations or other bodies, and seals of Tribunals in addition to seals of courts.

10.Primary Evidence

Additional Explanations have been added under Section 57 (section pertaining to Primary Evidence) of the BSA which reflect new provisions on electronic evidence and the cases in which electronic records are to be treated as primary evidence.

The additions bought by the BSA are a welcome change, as it brings about necessary changes to the dated IEA. While the reintroduced BDA, which has now received the President’s assent, has rectified minor drafting errors from its earlier draft, there are still a few drafting errors that need to be addressed before the official notification of the BSA.

Drafting Errors in the BSA

1.     Illustration (a) of Section 26 of the BSA seems to be wrongly drafted as it has an ambiguous statement, as at one place, A is referred to as ‘she’ and is ‘raped’, but at the other place A refers as a ‘widow’, therefore, gender of A is not clear.

2.     Under Section 58 of the BSA, oral admissions have been added as secondary evidence. However, illustration (d) of the section provides that neither an oral account of a copy compared with the original nor an oral account of a photograph of the original is secondary evidence of the original, thereby the illustration is in conflict with Section 58.

BSA is a testament to India's commitment to reform. It aims to bring our legal, policing, and investigative systems into the modern era with a focus on technology and forensic science.