1.
Territorial Application of the BSA: Section 1 of
the Indian Evidence Act (IEA) specified the
application of the act to the entire territory of India.
However, Section 1 of the Bharatiya Suraksha
Adhiniyam (BSA) lacks this provision. This omission is
likely intended to facilitate the admissibility of digital
evidence originating from locations outside India.
2. Document- Section 2(d), BSA (Sec 3(e)IEA)- “
"document" means any matter expressed or
described or otherwise recorded upon any substance
by means of letters, figures or marks or any other
means or by more than one of those means,
intended to be used, or which may be used, for the
purpose of recording that matter and includes
electronic and digital records.”
The new definition included-
Inclusion of Electronic and Digital
Records: The newer definition explicitly
includes electronic and digital records within
the scope of what constitutes a document.
This means that any information expressed,
described, or recorded electronically, such as
through computers, smartphones, or other
digital devices, falls under the definition of a
document.
Expansion of Means of Recording: The newer
definition expands on how information can
be recorded beyond just letters, figures, or
marks. It encompasses any means of
recording, which could include audio
recordings, video recordings, or any other
method of capturing information.
Clarification of Intended Use: Both definitions
mention the intended use of the document
for recording information. However, the
newer definition clarifies that the intended
use may include electronic and digital
formats, ensuring that these formats are not
excluded from the definition due to their
non-physical nature.
Inclusion of "Otherwise Recorded": The
newer definition includes the phrase
"otherwise recorded," which further
emphasizes the broad scope of what
constitutes a document. This phrase
acknowledges that there are various ways
information can be recorded beyond
traditional methods and ensures that such
unconventional methods are also covered
under the definition.
3. Evidence- Section 2(e), BSA (Sec 3(f)IEA)-
“evidence" means and includes—
(i) all statements including statements given
electronically which the Court permits or requires to
be made before it by witnesses in relation to matters
of fact under inquiry and such statements are called
oral evidence;
(ii) all documents including electronic or digital
records produced for the inspection of the Court and
such documents are called documentary evidence;”
The newer definition of "evidence" expands the scope
to include statements given electronically as oral
evidence, alongside traditional oral testimony. It also
explicitly incorporates electronic and digital records
within the category of documentary evidence,
reflecting the contemporary reality of information
storage and communication. This update enhances
clarity and adaptability to technological advances,
ensuring that legal frameworks effectively address
modern forms of evidence. In contrast, the older
definition primarily focuses on oral testimony and
documents without specific mention of electronic
records, potentially limiting its applicability in today's
digital age.
4. Section 4, BSA(Sec 6, IEA)the inclusion of the
phrase "or a relevant fact". This addition broadens
the scope of the connected facts that are considered
relevant. In the earlier section, only facts connected
to a fact in the issue are mentioned, whereas the
newer section includes facts connected to both a fact
in the issue and any relevant fact. This adjustment
allows for a more comprehensive consideration of
connected facts in legal proceedings, ensuring that
all relevant information is taken into account,
regardless of whether it directly pertains to the
specific issue being addressed.
5. Section 6, Bsa(Sec8, IEA): The difference is the
omission of "previous or subsequent conduct" in the
new version. Additionally, the phrase "Admiration of
Poison" in the old section is absent in the new one.
Both versions emphasize the relevancy of motive,
preparation, and conduct in legal proceedings, but
the new section is structured with numbered
subsections for clarity, while the old one is not.
6. Section 22, BSA (Sec24,28-89, IEA): The new
Section 22 of the Bhartiya Sakshya Adhiniyam (BSA)
consolidates and refines the provisions related to
confessions in criminal proceedings from the old
Sections 24, 28, and 29 of the Indian Evidence Act.
Sections 24, 28, and 29 of IEA were separate
provisions dealing with different aspects of
confessions whereas Section 22 (BSA) combines
these provisions into a single section, making the law
more streamlined.
The Inclusion of "Coercion": Where Old Sections:
Only "inducement, threat, or promise" were
mentioned as factors affecting the relevance of
a confession and New Section 22 (BSA): It
explicitly includes "coercion" as a factor,
broadening the scope and providing more
comprehensive coverage.
Clarification on Timing: where Section 28, IEA:
Mentioned the relevance of a confession made
after the removal of the impression caused by
inducement, threat, or promise and new Section
22, BSA: It provides a clearer timeline,
specifying that a confession becomes relevant
once the impression of inducement, threat, or
promise has been fully removed.
Expanded Scenarios for Relevance: Section 29:
It listed scenarios where a confession remains
relevant despite being made under certain
conditions. Section 22 (BSA): It expands on
these scenarios, including confessions made
under a promise of secrecy, after deception,
when drunk, or in response to questions not
required to be answered. It also mentions that
the lack of warning about the admissibility of
the confession doesn't make it irrelevant.
Section 22, BSA offers a more comprehensive,
structured, and inclusive approach to the
admissibility of confessions in criminal
proceedings compared to the older, fragmented
provisions in the Indian Evidence Act.
7. Section 24, BSA (Sec30. IEA): The wording in the
BSA,2023 section appears to be slightly more
streamlined and clearer compared to the Indian
Evidence Act. However, the core content and
meaning remain essentially the same
in both sections.
Only insertion of “Explanation II—A trial of more
persons than one held in the absence of the accused
who has absconded or who fails to comply with a
proclamation issued under section 82 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 shall be
deemed to be a joint trial for the purpose of this
section.”
8. The new Section 32 of the BSA,2023 restructures
and refines the provisions found in Section 26 of the
Indian Evidence Act, 1872. BSA,2023 categorizes the
cases into numbered subsections (1 to 8), offering a
clearer and more organized framework. Notably,
BSA,2023 adds specificity to some categories, like
defining the types of business-related documents in
subsection (2) and detailing certain relationships in
subsections (5) and (6). However, BSA,2023 omits
the provision related to documents specified in
clause (a) of section 11 of the Indian Evidence Act.
Despite these changes, the core intent and content
of the provisions remain largely consistent between
the two versions.
9. Section 31, BSA(Sec37, IEA): The new section
focuses on Indian Central and State Acts and
acknowledges digital formats, reflecting India's
modern legal sovereignty and adapting to
technological advancements. In contrast, the old
section includes UK Acts and lacks digital
acknowledgment, indicating its colonial-era origins.
The new section removes colonial references,
aligning with India's independent status. Overall, the
changes show a move towards a localized, digitally
inclusive, and post-colonial legal framework.
10. Section 32 BSA(Sec 38) Inclusion of Digital and
Electronic Formats:
Section 32: Explicitly states that statements about
foreign law can be contained in books published in
both physical and electronic or digital forms. This
indicates a modern approach, recognizing the
evolving nature of legal publications and the
increasing reliance on digital resources whereas,
Section 38: Although it mentions law contained in
books, it does not explicitly recognize electronic or
digital forms. This implies that the section predates
the common use of digital media, focusing primarily
on physically printed materials. Both sections specify
that the books must be printed or published under
the authority of the government of the country
whose law is being discussed, ensuring the
authenticity of the source.
BSA section ensures that the law stays relevant with
technological advancements and the increasing
accessibility of legal documents in digital formats.
11. 35(Sec 41, IEA): The sections deal with the
relevance and the conclusive proof provided by final
judgments, orders, or decrees from competent courts
exercising probate, matrimonial, admiralty, or
insolvency jurisdiction and the new change is largely
confined to document formatting and slight
variances in phraseology.
12. Section 39,BSA (Sec45, IEA): Both sections
address the relevance of expert opinions in court
cases regarding specific types of specialized
knowledge, including foreign laws, sciences, arts,
and the identification of handwriting or fingerprints.
BSA included:
Digital and Electronic Evidence: It mentions
the role of the Examiner of Electronic
Evidence under the Information Technology
Act, of 2000.
Legal Structure and Detail: Provides a more
detailed structure, including a subsection
specifically dedicated to electronic evidence,
which highlights the legal framework’s
adaptation to contemporary technological
challenges.
The primary distinction between BSA sec 39 and IEA
sec 45 lies in the explicit recognition and
incorporation of digital and electronic evidence in the
BSA, reflecting a modernization in legal proceedings
that accommodates advances in technology. Both
sections underline the importance of expert
testimony in judicial processes but the BSA
demonstrates a broader scope by integrating
contemporary issues like digital evidence.
13. Section 52,BSA(Sec57, IEA): The sections ensure
courts operate with efficiency by recognizing
commonly accepted facts without proof, but they
differ in their historical context and the specificity
with which they approach modern legal frameworks.
Section 52 appears more tailored to current legal
contexts, while Section 57 provides a broader
historical scope that includes colonial influences and
the evolution of legal recognitions over time. This
reflects the dynamic nature of legal texts as they
adapt to changing governance and societal
structures.
14. Section 55, BSA(Sec 60, IEA): Both sections
describe the requisites for oral evidence in judicial
proceedings, emphasizing the importance of direct
testimony from witnesses regarding their personal
experiences of sensory perceptions or opinions. The
modification is on subtle legal distinctions or
contextual applications rather than on the
fundamental legal requirements detailed in these
sections.
15. Section57,BSA( Section 62. IEA):
Inclusion of Digital and Electronic Records:
includes detailed explanations about how
electronic or digital records are treated as
primary evidence. It covers scenarios like
electronic files stored in multiple locations or
formats and video recordings stored and
transmitted simultaneously, reflecting modern
digital realities.
Depth of Explanations and Examples: offers
more extensive explanations and includes
additional scenarios relevant to modern
technology, like electronic records and video
recordings.
16. Section 58,BSA(Section 63, IEA): Both sections
define and elaborate on the concept of secondary
evidence in the context of legal proceedings.
Secondary evidence is essentially any evidence that
is not the original document or artifact but can still
provide credible information about the original. In
the New act includes additional categories such as
oral admissions, written admissions, and evidence
from persons skilled in examining complex
documents (like financial records), which are not
explicitly mentioned in section 63, IEA.
This expansion reflects a broader approach to what
can be considered secondary evidence under the
BSA, potentially accommodating more diverse types
of evidence in legal processes. It provides a more
detailed enumeration of what qualifies as secondary
evidence, including conditions under which certain
types of evidence are admissible.
17. Section 59, BSA (sec 64, IEA): Section 59 states
that documents shall be proved by primary evidence
except in the cases hereinafter mentioned. It also
mandates the use of primary evidence for proving
documents but phrases it slightly differently by
emphasizing the method of proof ("Proof of
documents by primary evidence").
The section seems to be more directive ("shall be
proved"), indicating a mandatory action.
18. Section 60,BSA (Sec 60,IEA): BSA sec 60 refers to
sec 64 for the notice, while IEA sec 65 refers to sec
66.
The mention of "India" in IEA section 65 suggests it is
tailored specifically to the Indian legal context,
whereas BSA section 60 does not specify a
geographical context, possibly making it more
generic or applicable in a different jurisdiction.
19. Section 63, BSA( Sec 65B, IEA) : Section 63
provides an elaborate description of scenarios,
including the case where multiple computers or
devices over a period or network might be involved.
It details how these should be treated as a single
source for evidence if they were used
interchangeably or in a sequence that is consistent
with regular business practices. It goes into greater
detail regarding the treatment of data processed
through various modalities, whether directly, through
intermediaries or across different systems or
networks.
20. Sec 73, BSA(Sec 73A, IEA):
Section 73 specifically addresses the verification of
digital signatures. This involves the production of a
Digital Signature Certificate and the application of
the public key listed therein to verify the
authenticity of the digital signature whereas, 73A
deals with traditional signatures, writings, or seals.
It outlines a method for comparing these items with
others that have been admitted or proved to verify
their authenticity.
Section 73 involves a technical process that
requires specific digital tools and certificates,
reflecting its adaptation to digital communication
and authentication technologies and section 73A
uses a more traditional approach by comparing the
questioned signature, writing, or seal directly with
known samples that have been accepted by the
court. This section also allows for real-time
demonstration by directing a person to create new
writing or signatures in court for comparison
purposes.
Sec 73 is tailored towards the realm of digital
transactions and electronic documents, which is
increasingly relevant in modern legal contexts due
to the rise of digital communications and sec 73A
applies to physical documents and is versatile in its
application, including to impressions with necessary
modifications, thus covering a broader range of
evidence types than BSA 73.
Sec 73 potentially involves interactions with digital
authorities such as Controllers or Certifying
Authorities, highlighting the collaborative nature
between the judiciary and digital certification bodies
and sec 73A, while more straightforward, invokes
the court's authority to create ad hoc evidence by
directing the creation of writings or signatures in the
courtroom, making it highly practical and
interactive.
These differences underline the distinct approaches
required by courts when dealing with digital versus
traditional forms of evidence, reflecting the
adaptations needed to accommodate technological
advancements in legal proceedings.
21. Sec74, BSA( Sec 74-75, IEA):
Sec 74, BSA categorizes documents into public and
private categories.
The approach taken by BSA to consolidate the
classification may streamline legal processes by
providing all relevant information in one place,
whereas IEA’s division across two sections could help
in emphasizing the legal distinctions and implications
of each category. This classification impacts
everything from evidence admissibility to public
access and document handling procedures in legal
settings.
22. Colonial and antiquated terminology, including
references to entities such as the ‘Parliament of the
United Kingdom’, ‘Provincial Act’, ‘London Gazette’,
‘Commonwealth’, ‘Privy Council’, ‘Queen’s Printer’,
and ‘Her Majesty’, as well as colonial proclamations
and orders (as outlined in Section 77 of the BSA,
which corresponds to Section 78 of the IEA, and
Section 79 of the BSA, corresponding to Section 80 of
the IEA), have been eliminated.
23. Section 88, BSA( Sec86, IEA):
Geographic Scope: sec 88, BSA applies to judicial
records of any country beyond India. It does not
specify any particular jurisdiction or geographic
limitation whereas sec 86, IEA applies to judicial
records of any country not forming part of India or
Her Majesty’s Dominions. This includes a broader
range of countries but excludes territories under
Indian or British sovereignty.
Definition of Representative: BSA sec 88 specifies
that an officer designated as a Political Agent for a
territory or place outside India is deemed to be a
representative of the Central Government of that
country. This provision facilitates the identification
of a representative for certification purposes and
sec 86, IEA also recognizes Political Agents for
territories or places not forming part of India or Her
Majesty’s Dominions as representatives of the
Central Government. However, it does not define
another legislative act, as in sec 88, BSA.
Cross-references and Explanations: BSA sec 88
includes an explanation for the term "proper
custody" within the section itself and IEA sec 86
refers to other sections of the General Clauses Act,
of 1897, for definitions, and does not include an
explicit explanation within the section itself.
24. Section 112, BSA( Sec 116, IEA):
BSA section 112 deals with the burden of proof
regarding the existence or cessation of certain
relationships, such as partners, landlord and
tenant, or principal and agent. It places the
burden of proof on the person who denies the
existence of these relationships after they are
acting as such and IEA section 116 focuses
specifically on estoppel within landlord-tenant
relationships and the license of a person in
possession of immovable property. It prohibits
tenants or those claiming through them from
denying the landlord's title during the tenancy.
Similarly, it prevents individuals who enter
property with the permission of the person in
possession from denying that person's title to
possession at the time of granting the license.
Nature of Estoppel: BSA sec 112 establishes a
general principle of burden of proof regarding the
existence or cessation of certain relationships. It
doesn't explicitly use the term "estoppel," but it
implies that once a relationship is established by
evidence of acting as such, the burden shifts to
the party denying it and IEA sec 116 explicitly
refers to estoppel and outlines specific situations
where tenants or licensees are estopped from
denying the landlord's or possessor's title,
respectively, during the continuance of the
tenancy or license.
Applicability: BSA section 112 applies to a
broader range of relationships beyond just
landlord-tenant scenarios, including partnerships
and agency relationships and IEA section 116 is
narrowly focused on the landlord-tenant
relationship and the licensee's relationship with
the person in possession of immovable property.
Legal Framework: BSA sec 112 is part of the
Indian Evidence Act, which is a comprehensive
statute governing the admissibility and relevancy
of evidence in Indian courts and IEA sec 116 is
also part of the Indian Evidence Act and
addresses specific aspects of landlord-tenant
relationships within its framework.
25. Terminology considered insensitive or outdated,
like ‘lunatic’, has been updated to more respectful
terms such as ‘person of unsound mind’ (per Section
124 of the BSA, corresponding to Section 118 of the
IEA).
