The Bharatiya Sakshya (Second) Sanhita, 2023

The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) represents a significant alteration to India’s legal landscape regarding evidence admissibility. Introduced in December 2023, the BSB2 proposes to supersede the Indian Evidence Act, 1872 (IEA). While retaining core principles established in the IEA, the BSB2 introduces key changes concerning electronic evidence and the admissibility of certain types of statements.

Key Changes and Considerations

• Enhanced Role for Electronic Records: The BSB2 elevates the status of electronic records, granting them primary evidence classification alongside traditional paper documents. This aligns with the increasing reliance on electronic communication and storage in modern society.
• Expanded Scope of Admissible Evidence: The BSB2 broadens the types of evidence admissible in court. Oral and written admissions, along with expert witness testimony based on document examination, are now recognized as secondary evidence.

People Also Read: Key Provisions of Bharatiya Nagarik Suraksha (Second) Sanhita, 2023

Potential Concerns and Areas for Scrutiny

• Safeguarding Electronic Evidence: The BSB2’s focus on electronic evidence necessitates robust safeguards against tampering and manipulation. While the BSB2 retains provisions for authentication certificates, the potential for electronic evidence to be classified as a document (not requiring certification) creates a potential loophole.
• Admissibility of Confessions: The BSB2 inherits the IEA’s approach regarding confessions obtained in police custody. Concerns persist regarding the potential for coercion in such situations. The Law Commission’s recommendation to remove the distinction between confessions made in and outside of custody remains unaddressed.
• Unincorporated Recommendations: The BSB2 overlooks several recommendations from the Law Commission, including the presumption of police culpability in cases of custodial injuries.

Key Changes Proposed in the Bharatiya Sakshya (Second) Bill

The Indian Evidence Act (IEA) of 1872 has long served as the cornerstone for the admissibility of evidence in Indian courts. However, technological advancements and evolving legal landscapes have necessitated revisions. The Bharatiya Sakshya Bill, 2023 (BSB), introduced in August 2023, aimed to replace the IEA. After review by the Standing Committee on Home Affairs, a revised version, the Bharatiya Sakshya (Second) Bill (BSB2), was introduced in December 2023. This iteration incorporates most of the Committee’s suggestions.

Core Principles Remain

The BSB2 largely retains the core principles established in the IEA. These principles define admissible evidence, including “facts in issue” and “relevant facts,” as well as the concept of a “proven fact” based on the court’s evaluation of presented evidence. Additionally, the BSB2 upholds the existing limitations on police confessions, allowing only those recorded by a Magistrate. However, information obtained in custody leading to the discovery of a fact remains admissible.

Key Innovations

The BSB2 introduces significant changes to adapt to the digital age. Here are the major areas impacted:

• Electronic Records as Documents: The BSB2 elevates electronic records to the status of primary evidence, alongside traditional paper documents. This recognizes the increasing reliance on electronic storage and communication.
• Expanded Scope of Admissible Evidence: The BSB2 broadens the types of secondary evidence allowed in court. This includes oral and written admissions, along with expert witness testimony based on document examination.
• Electronic Evidence in Detail: The BSB2 defines electronic or digital records as evidence with the same legal weight as paper records. This encompasses information stored on various devices like computers, smartphones, and communication platforms.
• Oral Evidence via Electronic Means: The BSB2 paves the way for witnesses, defendants, and victims to testify electronically, facilitating remote participation in court proceedings.
• Joint Trials Clarification: The BSB2 clarifies the process for joint trials where an accused is absent. In such cases, the trial will still proceed.

People Also Read: Key Provisions and Changes in Bharatiya Nyaya Sanhita (BNS), 2023

Disadvantages of Bharatiya Sakshya (Second) Bill – BSB2

The Bharatiya Sakshya (Second) Bill (BSB2) introduces significant changes regarding electronic evidence, but these advancements raise concerns about potential manipulation and ambiguity inadmissibility.

Concerns Regarding Electronic Records

• Susceptibility to Tampering: The Supreme Court has acknowledged the ease with which electronic records can be altered. The BSB2 lacks safeguards to prevent tampering during investigation and seizure, potentially leading to fabricated evidence.
• Conflicting Admissibility Rules: The BSB2 classifies electronic records as documents, making them generally admissible as primary evidence. However, it also retains a provision requiring certification for electronic records to be considered documents. This creates confusion about admissibility requirements.
• Learning from Other Jurisdictions: The European Union and the United States have established guidelines for handling electronic evidence. These include ensuring a documented chain of custody and the involvement of IT experts to verify authenticity. The BSB2 could benefit from incorporating similar measures.

Police Confessions and Information Gathering

• Confessions Under Duress: The BSB2 inherits the existing provision allowing information obtained in police custody to be used as evidence if it leads to the discovery of a fact. However, concerns persist that such information might be extracted through coercion. The Law Commission recommended excluding confessions obtained under duress, a suggestion not addressed in the BSB2.
• Disparity Between In-Custody and Out-of-Custody Information: The BSB2 maintains the distinction between information received from an accused in and outside of custody. Information leading to a fact discovery is admissible only if obtained in custody. This distinction has been challenged for creating an unfair advantage for the prosecution. The Law Commission suggested removing this distinction, a recommendation not adopted in the BSB2.

The Bharatiya Sakshya Bill’s Journey Through Parliament (2023)

• August 11th: The Bharatiya Sakshya Bill, 2023, is introduced in the Lok Sabha by the Home Minister, Amit Shah.
• December 12th: The original Bharatiya Sakshya Bill is withdrawn.
• December 12th: A revised version, the Bharatiya Sakshya (Second) Bill, 2023, is introduced in the Lok Sabha.
• December 20th: The Lok Sabha passes the Bharatiya Sakshya (Second) Bill.
• December 21st: The Bharatiya Sakshya (Second) Bill is introduced and passed in the Rajya Sabha on the same day.
• December 25th: The President of India grants assent to the Bharatiya Sakshya (Second) Bill, making it law.

Key Points:

• The initial Bharatiya Sakshya Bill underwent revision before final approval.
• The revised bill successfully passed through both houses of Parliament (Lok Sabha and Rajya Sabha).
• The President’s assent on December 25th marked the official enactment of the law.

Detailed comparison of the Indian Evidence Act (IEA) and the Bharatiya Sakshya Bill/Adhiniyam (BSB)

Feature	Indian Evidence Act (IEA)	Bharatiya Sakshya Bill/Adhiniyam (BSB)
Year of Enactment	1872	2023
Overall Approach	Foundational legislation governing the admissibility and evaluation of evidence in Indian courts	Aims to modernize and streamline the rules of evidence, incorporating advancements in technology and legal principles
Scope of Evidence	Defines “evidence” and outlines categories of admissible and inadmissible evidence	Retains the IEA’s definition of evidence but expands the scope of admissible evidence to include electronic records and other forms of modern evidence
Relevancy of Facts	Provides rules for determining the relevancy of facts to the case	Largely retains the IEA’s provisions on relevancy but clarifies and expands the scope of relevant facts
Burden of Proof	Establishes the burden of proof for different types of cases	Retains the IEA’s principles of burden of proof but may introduce modifications in specific cases
Oral and Documentary Evidence	Distinguishes between oral and documentary evidence and sets rules for their presentation	Retains the distinction between oral and documentary evidence but classifies electronic records as documents
Hearsay Evidence	Generally restricts the admissibility of hearsay evidence	May allow exceptions for hearsay evidence in certain circumstances, with safeguards to ensure reliability
Character Evidence	Limits the admissibility of evidence related to a person’s character	Retains the IEA’s restrictions on character evidence but may introduce exceptions for specific types of cases
Expert Testimony	Provides rules for the admissibility and evaluation of expert testimony	Retains the IEA’s framework for expert testimony but may introduce additional requirements or guidelines
Electronic Evidence	Limited recognition as secondary evidence	Recognizes electronic records as primary evidence, establishing procedures for authentication and verification
Police Confessions	Confessions made to police officers are generally inadmissible, except if recorded by a Magistrate	Similar provisions, but stricter requirements for admissibility. May allow exceptions for confessions leading to discovery of facts.

Conclusion

The Bharatiya Sakshya (Second) Bill (BSB2) proposes a modernization of evidence rules in India. While it acknowledges the importance of electronic evidence and broadens the types of admissible evidence, concerns linger. The BSB2 lacks safeguards against tampering with electronic records and creates confusion around their admissibility. 

Additionally, the Bill inherits provisions regarding police confessions that raise questions about fairness and the potential for coercion. Overall, the BSB2 represents a step forward, but it would benefit from incorporating best practices for handling electronic evidence and addressing the Law Commission’s recommendations on confessions to ensure a more robust and just legal system.

Frequently Asked Questions about Bharatiya Sakshya Adhiniyam (BSA)

Q1. What is the Bharatiya Sakshya Adhiniyam (BSA)?

Ans1. The BSA is a recent law in India that governs the admissibility and use of evidence in court proceedings. It replaces the Indian Evidence Act of 1872, aiming to modernize the legal framework for handling evidence in the digital age.

Q2. When did the BSA come into effect?

Ans2. As of today, April 19, 2024, the BSA is not yet in effect. The exact date of implementation will depend on the official notification by the Indian government.

Q3. What are the key changes introduced by the BSA?

Ans3. Some key changes include provisions for handling electronic evidence like digital records and social media posts, clearer guidelines for witness testimony, and updated rules for confessions and hearsay evidence.

Q4. How does the BSA differ from the Indian Evidence Act?

Ans4. The BSA incorporates new types of evidence and clarifies existing rules. It aims to be more adaptable to contemporary legal needs compared to the outdated provisions of the Indian Evidence Act.

Q5. Does the BSA impact civil and criminal cases?

Ans5. Yes, the BSA applies to both civil and criminal cases in India. It establishes the legal framework for how evidence is presented and considered in court, regardless of the case type.

Q6. How will the BSA affect the role of lawyers?

Ans6. Lawyers will need to adapt to the new rules for handling evidence, particularly regarding electronic records and digital forensics. The BSA may also require adjustments to trial strategies based on the updated framework.

Q7. What are the benefits of the BSA?

Ans7. The BSA aims to improve the efficiency and accuracy of legal proceedings by providing clearer rules for evidence admissibility. It also facilitates the use of relevant electronic evidence in the digital age.

Q8. Are there any concerns about the BSA?

Ans8. Some concerns include potential challenges in handling vast amounts of electronic evidence and ensuring data security. Additionally, there may be questions about the interpretation and application of certain new provisions.

Q9. Where can I find more information about the BSA?

Ans9. You can find official government resources and legal commentaries online or consult with a lawyer specializing in evidence law.

Q10. Will the BSA require changes in existing legal documents?

Ans10. Legal documents like contracts or wills may need to be reviewed to ensure they comply with the BSA’s rules regarding evidence and its admissibility in court. It’s advisable to consult a lawyer for specific guidance.