Bharatiya Sakshya Adhiniyam 2023: History, Need, Features & More| UPSC Notes

The Bharatiya Sakshya Adhiniyam 2023, is a significant legislative reform aimed at replacing the Indian Evidence Act of 1872. This new Act modernizes the Indian legal framework for the admissibility and evaluation of evidence in judicial proceedings. It incorporates contemporary technological advancements, recognizing electronic and digital evidence. It aligns with current legal standards to address the complexities of the modern judicial landscape. The Act also seeks to rectify inconsistencies and provide clearer guidelines on evidence admission. It enhances protections against custodial injustices and streamlines the legal process to ensure fairness and efficiency.

For UPSC aspirants, the Bharatiya Sakshya Adhiniyam 2023, is relevant to General Studies Paper II under the topic of Governance, Constitution, Polity, Social Justice, and International Relations. It also intersects with the Law Optional subject of the UPSC Exam, particularly under the sections dealing with the Indian Legal System, Evidence, and Judicial Processes.

Understanding this new Act can help candidates analyze contemporary legal reforms and their implications on governance and justice in India.

About the Bharatiya Sakshya Adhiniyam 2023

The Bharatiya Sakshya Adhiniyam 2023, is a landmark legislative effort aimed at overhauling and modernizing India’s evidence laws. It replaces the venerable but outdated Indian Evidence Act, 1872. This new Act is designed to address the challenges and complexities of the 21st-century legal landscape. It incorporates advancements in technology, aligning with contemporary legal reforms, and addressing long standing issues within the system.

Background

The Indian Evidence Act, 1872 (IEA), is the primary legislation governing the admissibility of evidence in Indian courts. It is applicable to both civil and criminal proceedings. Over the years, the IEA has been amended to align with contemporary legal practices and technological advancements. For instance, the amendment in 2000 introduced the admissibility of electronic records as secondary evidence, recognizing the growing reliance on digital information. In 2013, the Act was further amended to address issues related to consent in rape cases. It shifted the burden of proof to the accused to show that consent was indeed given. It established that the victim’s character and sexual history are irrelevant when determining consent.

The Law Commission has reviewed the IEA on several occasions, recommending changes on various critical issues. This includes custodial violence, the admissibility of police confessions, and the protocols for cross-examination. These recommendations aim to modernize and improve the applicability of the Act. The Bharatiya Sakshya Adhiniyam 2023, which seeks to replace the IEA, was introduced in the Lok Sabha on August 11, 2023. The Standing Committee on Home Affairs has conducted an examination of the Bill to provide a detailed assessment.

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Need for Replacing the IEA with the Bharatiya Sakshya Adhiniyam 2023

The Indian Evidence Act of 1872 has become outdated in the context of modern legal and technological advancements. The new Bharatiya Sakshya Adhiniyam 2023 caters to contemporary legal needs. This includes the treatment of digital evidence and modern technology.

• Modernization and Technological Advancements: The Bharatiya Sakshya Adhiniyam 2023, aims to modernize the legal framework to include electronic records and digital evidence. It ensures that they are legally recognized and appropriately handled in judicial proceedings.
• Consistency with Criminal Reforms: Over time, various amendments have been made to the IEA to align with criminal law reforms. However, these changes have led to a fragmented and inconsistent framework. The new Bill integrates these reforms cohesively, addressing issues such as the burden of proof in rape cases and the irrelevance of the victim’s character in determining consent.
• Addressing Custodial Injustices: The IEA inadequately safeguards against custodial violence and coercion. The new Bill introduces stricter guidelines to ensure that evidence obtained through coercion is inadmissible. It thus protects the rights of the accused and enhances the integrity of the judicial process.
• Enhanced Clarity and Efficacy in Evidence Admission: The Bharatiya Sakshya Adhiniyam 2023, aims to clarify the rules on admissibility of evidence, including electronic records. This removes ambiguity and ensures a consistent approach to handling primary and secondary evidence. It thereby improves the effectiveness of legal proceedings.

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Key Features of the Bharatiya Sakshya Adhiniyam 2023

The Bharatiya Sakshya Adhiniyam 2023, includes the explicit admissibility of digital and electronic evidence. It ensures they are treated appropriately in court proceedings. It also introduces clearer definitions and streamlined legal processes to expedite judicial efficiency and safeguard witness protection.

Admissible Evidence

Similar to the IEA, the BSA stipulates that only admissible evidence is allowed in legal proceedings. Admissible evidence is classified as either ‘facts in issue’ or ‘relevant facts’. Facts in issue refer to any fact that can determine the existence, nature, or extent of any right, liability, or disability contested in legal proceedings. Relevant facts are those that are materially related to the case. The types of evidence include documentary evidence and oral evidence.

Proved Fact

A fact is considered proved when, based on the evidence presented, the Court believes it either (i) exists, or (ii) its existence is so probable that a rational person would act on the assumption that it does exist in the context of the case.

Police Confessions

Confessions made to a police officer are considered inadmissible, as are confessions made while in police custody unless recorded by a Magistrate. An exception exists if a piece of information, received from the accused in custody, leads to the discovery of a new fact distinctly related to the information received, which can be admitted as evidence.

Documentary Evidence

Under the IEA, a document encompasses writings, maps, and drawings. The BSA expands this definition to include electronic records as documents. Documentary evidence comprises primary and secondary evidence. Primary evidence includes the original document and its subsidiary parts, such as electronic records and video recordings. Secondary evidence includes documents and oral accounts that can prove the content of the original. The BSA retains these classifications while expanding the scope to cover digital records.

Oral Evidence

The IEA defines oral evidence as statements made before the courts by witnesses regarding facts under inquiry. The BSA modernizes this provision by allowing oral evidence to be given electronically. This permits witnesses, accused persons, and victims to testify via electronic means, thereby enhancing accessibility and efficiency.

Electronic or Digital Records as Evidence

Documentary evidence now includes electronic records that have been stored in optical or magnetic media produced by a computer. These records, whether stored or processed by a combination of computers or different computers, are now recognized with the same legal validity as paper records. The BSA further expands this to include information stored in semiconductor memory and other communication devices such as smartphones and laptops. This encompasses a wide array of electronic records, including emails, server logs, locational evidence, and voicemails.

Secondary Evidence

The BSA broadens the scope of secondary evidence to include (i) oral and written admissions, and (ii) the testimony of a person who has examined the document and possesses the expertise in document examination. Secondary evidence may be required under various conditions, such as when the original is in the possession of the person against whom the document is sought to be proved or when the original has been destroyed. The BSA adds that secondary evidence may also be required if the authenticity of the document is questioned.

Joint Trials

A joint trial refers to the trial of many persons for the same offense. The IEA stipulates that in a joint trial, if a confession made by one of the accused persons affects the others, it will be treated as a confession against all concerned. The BSA adds clarity to this provision by stating that if an accused person has absconded or has not responded to an arrest warrant, the trial will still be considered a joint trial.

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Issues Concerning the Applicability of Bharatiya Sakshya Adhiniyam 2023 

Issues concerning the applicability of the Bharatiya Sakshya Adhiniyam 2023 involve ambiguities in its provisions, challenges in aligning with international evidence standards, and the potential for misuse or misinterpretation in judicial processes.

Electronic Records as Evidence

Under the IEA, documentary evidence is divided into primary and secondary evidence. Primary evidence refers to the original document. Secondary evidence encompasses documents that can prove the contents of the original under certain conditions. This includes the destruction of the original or its possession by the opposing party. The BSA retains these provisions and explicitly includes electronic records in the definition of documents.

While the IEA allows electronic records as secondary evidence, the BSA clarifies that electronic records from proper custody will be considered primary evidence unless contested. If electronic records are kept in many files, each file is treated as primary evidence. Additionally, the BSA broadens the definition to include data stored in semiconductor memory or on smartphones (including emails, locational data, and voicemails).

Two main issues arise from admitting electronic records as evidence:

Tampering of Electronic Records

Electronic records are vulnerable to tampering and alterations. In 2014, the Supreme Court emphasized the need for adequate safeguards to prevent the distortion of justice due to manipulated electronic records. The BSA allows courts to consult an Examiner of Electronic Evidence to help validate such records. However, the Bill lacks explicit safeguards for ensuring the integrity of electronic evidence during search and seizure or investigation processes. Recommendations include mandating secure handling and a proper chain of custody for electronic records collected as evidence.

Examples from Other Jurisdictions

The Karnataka High Court has introduced guidelines to protect electronic evidence during searches and seizures. These include requiring a qualified forensic examiner to accompany the search team. It prohibits the investigating officer from using seized devices during the search and using Faraday bags to pack electronic storage devices to prevent data loss or manipulation. In the European Union, similar provisions include ensuring that electronic evidence has not been tampered with from production through the chain of custody. It requires IT expert involvement at the request of the accused, and establishing uniform minimum standards for admissibility. In the United States, the authenticity of electronic records must be established by a qualified individual to be considered admissible.

Admissibility of Electronic Records May Be Ambiguous

The BSA includes electronic records as documents and maintains that all documents should be admissible as primary evidence unless they qualify as secondary evidence under specific conditions. However, the BSA also retains the requirement for certificate authentication for electronic records. It creates potential ambiguities regarding their admissibility. The Standing Committee on Home Affairs observed this overlap and recommended adherence to the section on admissibility by certificate for electronic records.

Challenges to Facts Discovered in Police Custody

Facts discovered during police custody are often scrutinized for the potential of custodial torture and coercion. The Bharatiya Sakshya Adhiniyam 2023, addresses these challenges by strengthening provisions against the admissibility of confessions obtained under duress, to ensure fair trials and protection of human rights.

Provable Information Obtained in Police Custody Using Coercion

The IEA allows information discovered as a result of facts received from an accused in custody to be admitted if it directly relates to the discovered fact. The BSA retains this provision. However, concerns have been raised about the potential for duress and torture in eliciting such facts. The Law Commission suggested that any fact discovered under coercion should not be admissible.

Admissibility Based on Custody Status

Under the IEA, information obtained from an accused in custody is admissible if it leads to a discovery. However, similar information received from an accused outside of custody is not. The BSA retains this distinction. Although the Supreme Court upheld the constitutionality of this provision in 1960, asserting that it created a reasonable differentiation, the Law Commission has recommended revisions to ensure relevance irrespective of custody status.

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