BHARATIYA SAKSHYA ADHINIYAM, 2023

Introduction
In India, enacting and adopting the Indian Evidence Act, 1872 was a mold-breaking concept
in the criminal justice system, changing the entire system regarding the admissibility of
evidence in the Indian Courts of law. The law came into force, at a time when India was a
part of the British Empire, on September 01, 1872. Recently, the Minister of Home Affairs
introduced three new criminal laws with a motive to protect the rights of Indian citizens. He
proposed the introduction of the Bharatiya Sakshya Bill, 2023, Bharatiya Nyaya Sanhita Bill,
2023, and Bharatiya Nagarika Suraksha Sanhita Bill, 2023 with an aim to replace the Indian
Evidence Act (IEA) 1872, Indian Penal Code 1860, and Code of Criminal Procedure 1973
respectively. While introducing the Bharatiya Sakshya Bill 2023 in the Lok Sabha, Union
Minister Amit Shah said, “It aims to consolidate and provide for general rules and principles
of evidence for a fair trial.” This article delves into key provisions and changes in the Indian
Evidence Act of 1872 proposed by the introduction of the Bharatiya Sakshya Adhiniyam,
2023.

Bharatiya Sakshya Adhiniyam, 2023

The Indian Evidence Act of 1872, is a law that plays a significant role in determining the
concept of admissibility of evidence in the Courts. Over the years, the Act underwent
amendments in years 2000 and 2013 to align with the contemporary needs of the people.
Moreover, multiple suggestions for the IEA were mentioned by the Law Commission on
matters including admissibility of police confessions, custodial violence, government
privilege in evidence, and cross-examination. To improve the justice delivery system, the
Minister of Home Affairs on August 11, 2023, introduced the Bharatiya Sakshya Bill, 2023
in the Lok Sabha. The same was withdrawn on December 12, 2023, and consecutively, the
Bharatiya Sakshya (Second) Bill, 2023, was introduced in the Lok Sabha on 12 December
2023. Further, the Bharatiya Sakshya (Second) Bill, 2023, was passed in the Lok Sabha on
December 20, 2023. Following this, the Bharatiya Sakshya (Second) Bill, 2023, was
introduced in the Rajya Sabha on December 21, 2023, and was passed on the same day.
Furthermore, on December 25, 2023, the bill received the assent of the President of
India, Droupadi Murmu. After receiving the assent, the bill becomes an Act known as
Bharatiya Sakshya Adhiniyam, 2023, or Bharatiya Sakshya Act, 2023.

Key Provisions and Changes

The new law, Bharatiya Sakshya Adhiniyam, 2023, consists of 170 Sections in total instead
of 167 Sections as of IEA. This law modified 23 Sections, repealed 5 Sections, and added 1
new Section. The main focus of introducing this new law was to adapt to technological
advancements and societal changes over the recent decades. The Bharatiya Sakshya
Adhiniyam, 2023, or BSA, 2023 retains various provisions of the IEA such as on burden of
proof, confessions, and relevancy of facts. Some of the major changes are listed as follows:

1. Section 2 of the BSA, 2023, modified the definition of document by including

electronic and digital records. It illustrated that “An electronic record on emails,
server logs, documents on computers, laptop or smartphone, messages, websites,
locational evidence, and voice mail messages stored on digital devices are
documents.”
 2. The BSA, 2023, allowed oral evidence to be given electronically whereas earlier IEA
defined oral evidence as ‘all statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact under inquiry”.

3. Section 22 of the new law modified the need for confessional admission, “A
confession made by an accused person is irrelevant in a criminal proceeding, if the
making of the confession appears to the Court to have been caused by any
inducement, threat, coercion, or promise having reference to the charge against the
accused person, proceeding from a person in authority and sufficient, in the opinion of
the Court, to give the accused person grounds which would appear to him reasonable
for supposing that by making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him.”

4. Section 24 of the BSA, 2023, illustrated the provision, ‘consideration of proved

confession affecting person making it and others jointly under trial for same offence’.

5. The Bharatiya Sakshya Adhiniyam, 2023, recognized digital and electronic records as
primary evidence mentioned under Section 57.

6. Section 58 of the BSA, 2023, ‘secondary evidence’, amended the earlier Section 63 of
the IEA, 1872, and expanded the scope of secondary evidence. It included additional
categories such as “oral admissions, written submissions, and evidence of a person
who has examined a document, the original of which consists of numerous accounts
or other documents which cannot conveniently be examined in Court, and who is
skilled in the examination of such documents.”

7. Section 61 of the BSA, 2023, ensures that digital or electronic records will have the
same legal effect, validity, and enforceability as other documents. Also, Section
63 expanded the types of digital or electronic records that can be used as evidence in a
Court of law.

8. Various other noteworthy additions and modifications are made by the Bharatiya
Sakshya Adhiniyam, 2023 in the existing Indian Evidence Act, 1872 to provide for
general rules and principles of evidence for fair trial.

IMPLEMENTING BHARATIYA SAKSHYA ADHINIYAM

The three newly-enacted criminal laws, the Bharatiya Nyay Sanhita (to replace the Indian
Penal Code-IPC), the Bharatiya Nagarik Suraksha Sanhita (to replace the Code of
Criminal Procedure- CrPC) and the Bharatiya Sakshya Adhiniyam (to replace the Indian
Evidence Act, 1872) are to come into force on July 1, 2024.

The contents of the Indian Evidence Act (IEA), 1872 have changed little as far as the
Bharatiya Sakshya Adhiniyam (BSA) is concerned. The scope of secondary evidence has
been slightly broadened and some changes have been made in the provisions relating to
electronic evidence in the BSA.
Note
Evolution of Criminal Justice System:
1. Throughout India's history, different criminal justice systems have evolved and gained
prominence in different regions under different rulers.
2. During British rule, criminal laws were codified in India, which remained largely
unchanged until recently.
3. IPC is the official criminal code of India drafted in 1860 in the wake of the first law
commission established in 1834 under the Charter Act of 1833, and became
effective from January 1st, 1862.
4. The IEA, originally passed in India by the Imperial Legislative Council in 1872,
during the British Raj, provides a set of rules and allied issues governing admissibility
of evidence in the Indian courts of law.
5. In line, CrPC provides procedures for administering criminal law in India. It was
enacted in 1973 and became effective from 1st April 1974.
6. The Parliament, in December 2023, passed three pivotal Bills: Bharatiya Nyaya
(Second) Sanhita, 2023; Bharatiya Nagarik Suraksha (Second) Sanhita, 2023; and
Bharatiya Sakshya (Second) Bill, 2023 to overhaul the criminal justice system.

What are the Different Provisions of BSA, 2023?

The BSA, 2023 retains most of the provisions of the IEA,1872. These include:
 Admissible Evidence: Parties involved in a legal proceeding can only present
admissible evidence. Admissible evidence can be classified as either ‘facts in issue’ or
‘relevant facts’.
 ‘Facts in issue’ refer to any fact that determines the existence, nature, or extent of
any right, liability, or disability claimed or denied in a legal proceeding.
 ‘Relevant facts’ are facts that are pertinent to a given case. The IEA provides for
two kinds of evidence – documentary and oral evidence.

 A Proven Fact: A fact is considered proven when, based on the evidence presented,
the Court believes it to either: (i) exist, or (ii) its existence so likely that a prudent man
should act as if it exists in circumstances of the case.

 Police Confessions: Any confession made to a police officer is inadmissible.

Confessions made in police custody are also inadmissible, unless recorded by a
Magistrate.

However, if a fact is discovered as a result of information received from an accused in

custody, that information may be admitted if it distinctly relates to the fact discovered.

Key Changes Incorporated in BSA, 2023:

 Documentary Evidence: Under the IEA, a document includes writings, maps, and
caricatures. The BSA adds that electronic records will also be considered as
documents. Documentary evidence includes primary and secondary evidence.
 Primary evidence includes the original document and its parts, such as
electronic records and video recordings.
 Secondary evidence contains documents and oral accounts that can prove the
contents of the original.
 The BSA expands secondary evidence to include: (i) oral and written
admissions, and (ii) the testimony of a person who has examined the document
and is skilled to examine the documents.
  Oral Evidence: Under the IEA, oral evidence includes statements made before
Courts by witnesses in relation to a fact under inquiry. The BSA allows oral evidence
to be given electronically.
 This would permit witnesses, accused persons, and victims to testify through
electronic means.
 Admissibility of Electronic or Digital Records as Evidence: Documentary evidence
includes information in electronic records that have been printed or stored in optical
or magnetic media produced by a computer.
 Such information may have been stored or processed by a combination of
computers or different computers.
 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.
 The BSA adds an explanation to this provision. It states that a trial of multiple
persons, where an accused has absconded or has not responded to an arrest
warrant, will be treated as a joint trial.

What are the Various Crucial Changes Introduced in BSA, 2023?

 Precise Definition of “Document”: An illustration to the definition of “document”
(which includes electronic and digital records) says that an electronic record on
emails, server logs, documents on computers, laptop or smartphone, messages,
websites, locational evidence, and voice mail messages stored on digital devices are
documents.

 Clarity With Respect to Primary (Electronic) Evidence: It says that where a video
recording is simultaneously stored in electronic form and transmitted or broadcast or
transferred to another, each of the stored recordings shall be primary evidence.
This may help the investigating agencies in fixing culpability of a cyber-criminal even
if he destroys his original electronic record to deny the allegations as it may be
collected from other sources without its value getting diminished.

 Synchronisation with IT Act, 2000: Section 63, which deals with admissibility of
electronic records, includes terms such as ‘semiconductor memory’ and ‘any
communication device’ for better visibility.

However, this does not change the impact of the provision because the definition of
‘electronic form’ given in the IT Act, 2000 includes information generated, sent,
received or stored in ‘computer memory’.

What are the Different Concerns with Respect to Provisions of BSA, 2023?
 Issues Regarding Electronic Records:
 Tampering of Electronic Records:
 In 2014, the Supreme Court recognised that electronic records are susceptible
to tampering and alteration. It stated that without adequate safeguards, if the
whole trial is based on proof of electronic records, it may lead to a travesty of
justice.
 Ambiguity in Admissibility of e-Records:
  The BSA provides for the admissibility of electronic records and gives the
Court discretion to consult an Examiner of Electronic Evidence to form an
opinion on such evidence.
 The BSA includes electronic records in the definition of documents. It
retains the provision from the IEA that all documents must be admissible
as primary evidence, unless it qualifies as secondary evidence (original
has been destroyed, or is with the person against whom the document
must be proved).

 Information Obtained in Police Custody May be Provable: The IEA provides that
if a fact is discovered as a result of information received from an accused in police
custody, that information can be admitted if it distinctly relates to the fact discovered.
The BSA retains this provision.

Over the years, the Supreme Court and various Law Commission reports have
highlighted that facts may have been discovered in custody due to the accused being
subject to duress and torture.

 Discrimination Between Accused Within or Outside Police Custody: Under the

IEA, information received from an accused in police custody is admissible if it relates
to a fact discovered, whereas similar information is not admissible if it was received
from an accused outside police custody. The BSA retains this distinction.

What Steps Need to be Taken to Make BSA More Effective?

 Report of Standing Committee on Home Affairs: The Standing Committee on
Home Affairs (2023) noted the importance of safeguarding the authenticity and
integrity of electronic and digital records as they are prone to tampering.
 It recommended mandating that all electronic and digital records collected as
evidence during investigation be securely handled and processed through proper
chain of custody.

 Guidelines Framed by Karnataka High Court: In 2021, the Karnataka High

Court introduced guidelines for minimum safeguards during the search and seizure of
electronic records. These include:
 ensuring that a qualified forensic examiner accompanies the search team,
 prohibiting the Investigating Officer from using the seized electronic device
during search and seizure of electronic records,
 seizing any electronic storage device (such as pen drives or hard drives) and
packing them in a Faraday bag.
 Faraday bags block the transmission of electromagnetic signals, which can
disrupt or destroy data stored in the device.

 Incorporating Directive Proposal of EU: In the EU, the Draft Directive Proposal
for a Mutual Admissibility of Evidence and Electronic Evidence in Criminal
Proceedings aims to establish uniform minimum standards for the use of electronic
evidence. Key principles include:
 Mandating the use of electronic evidence only if there is sufficient evidence that
it has not been manipulated or forged,
  Ensuring that evidence is sufficiently secured against manipulation from the time
of production to the chain of custody, and
 Requiring the involvement of IT experts at the request of the accused.

 Recommendations of Law Commission, 2003:

 Facts discovered using any threat, coercion, violence or torture in consequence of
information received from accused in police custody should not be provable.
 Facts should be relevant whether discovered in police custody or outside custody.
 Insert a new provision which states that if a person in police custody is injured, it
is presumed that the police caused the injuries. The burden of proof will be on the
authority.
 Insertion of a new provision relating to the prosecution of a police officer for
causing bodily injury to a person in police custody. The Court will presume that
the officer caused the injury. The Court will consider the following before
drawing a presumption:
 period of the custody
 statements made by the victim about the injury
 examination by a medical practitioner
 any recorded statements by a magistrate.

 Recommendations of Malimath Committee, 2003: To revamp the criminal justice

system, it made recommendations covering various aspects. Some of the key
recommendations were:
 Introducing a new category of offences called ‘social welfare offences’ for minor
violations that can be dealt with by imposing fines or community service.
 Replacing the adversarial system with a ‘mixed system’ that incorporates some
elements of the inquisitorial system such as allowing judges to play an active role
in collecting evidence and examining witnesses.
 Reducing the standard of proof required for conviction from ‘beyond reasonable
doubt’ to ‘clear and convincing evidence’.
 Making confessions made before a senior police officer admissible as evidence.
 NAVIGATING CRIMINAL LAW REFORMS:
PART III - BHARATIYA SAKSHYA ADHINIYAM 2023

This is the third part of our series on criminal law reforms. The first two parts can be
found here (Bharatiya Nyaya Sanhita, 2023 replacing the Indian Penal Code, 1860)
and here (Bharatiya Nagarik Suraksha Sanhita, 2023 replacing the Criminal Procedure Code,
1973).

INTRODUCTION:
The Bharatiya Sakshya Adhinyam, 2023 (“BSA”) repeals and replaces the Indian Evidence
Act, 1872 (“IEA”). The Bharatiya Sakshya Bill, 2023) was introduced in the Lok Sabha on
11 August 2023. Pursuant to the recommendations of the Standing Committee on Home
Affairs, Rajya Sabha (“Standing Committee”), the Bharatiya Sakshya (Second) Bill, 2023
was introduced on 12 December 2023 in the Lok Sabha. The revised bill was passed by the
Lok Sabha and the Rajya Sabha on 20 December 2023 and 21 December 2023 respectively. It
received presidential assent on 25 December 2023. The BSA is yet to be notified and come
into force. The BSA retains most of the provisions of the IEA, flavoured with validity of
electronic evidence.

KEY CHANGES INTRODUCED IN THE BSA:

1. Removal of colonial and archaic terms
References to colonial terms such as ‘Parliament of the United Kingdom’, ‘Provincial
Act’, ‘London Gazette’, ‘Commonwealth’, ‘Privy Council’, ‘Queen’s Printer’, ‘Her
Majesty’, colonial proclamations and orders 1 have been removed. Archaic terms like
‘vakil’, ‘pleader’, ‘barrister’ have been replaced with ‘advocate’. 2 Terms like ‘lunatic’
have also been replaced with more sensitive terminologies, like ‘person of unsound
kind’.3

2. Territorial Application of the BSA

Earlier, Section 1 of the IEA stipulated that the IEA applied to the whole of India.
Section 1 of the BSA does not contain such a provision. This is presumably to enable
admissibility of digital evidence generated outside India.

3. Addition of Section 2(2) of the BSA

Section 2(2) of the BSA is a new provision which states that words and expressions
used herein and not defined but defined in the Information Technology Act, 2000,
Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) (replacing the Code of Criminal
Procedure, 1973) and Bharatiya Nyaya Sanhita, 2023 (replacing the Indian Penal
Code, 1860) shall have the same meanings as assigned to them in the said Act and
Sanhita.

4. Application to Courts-martial
Section 1 of the IEA clarified that the IEA does not apply to courts-martial convened
under the Army Act, the Naval Discipline Act or the Indian Navy (Disciple) Act or
the Air Force Act. Section 1(2) of the BSA omits the words “convened under the
Army Act, the Naval Discipline Act or the Indian Navy (Disciple) Act or the Air Force
Act”. Thus, the BSA now applies to courts-martial convened under the Army Act, the
Naval Discipline Act or the Indian Navy (Disciple) Act or the Air Force Act.
5. Changes related to electronic and digital records
Definition of “document” now includes electronic and digital records – Section
2(1)(d) of the BSA4, while retaining the earlier definition of “document”, adds
“electronic and digital records” within its ambit. To illustrate this addition, the BSA
adds an illustration “electronic record on emails, server logs, documents on
computers, laptop or smartphone, messages, websites, locational evidence and voice
mail messages stored on digital devices are documents.”

To qualify as a “document” or “documentary evidence” under the BSA, now it is not

necessary that a matter be expressed or described upon any substance by means of
letters, figures or marks only. Any matter which is “otherwise recorded” upon any
substance “by any other means” will also qualify as a document. Thus, video
recordings on mobile phones may also qualify as “documentary evidence”. Electronic
or digital form of Official Gazette is also admissible as evidence.5

6. Definition of “evidence” now includes information given through electronic

means – Section 2(1)(e) of the BSA6 includes statements given electronically by
witnesses are to be treated as evidence as well as oral evidence. Similarly, electronic
and digital records are also included within the definition of documentary evidence.
The BSA attempts to provide feasible solutions for issues related to physical presence
in courts for oral evidence such as availability of witnesses, travel and related
expenses. With the increasing relevance of technology, the BSA recognises the
validity of information provided electronically. Reference may be drawn to Section
530 of the BNSS which provides for examination of witnesses and complainant in
criminal proceedings in electronic mode, by use of electronic communication or use
of audio-video electronic means.

7. Electronic or digital form of law books now relevant – Section 32 of the

BSA7 now deems electronic or digital forms of law books purporting to be printed or
published under the authority of the Government of such country and to contain any
such law, and any report of a ruling of the Courts of such country contained in a book
including in electronic or digital form purporting to be a report of such rulings the law
of which the Court has to form an opinion on, relevant.

8. Primary evidence now includes certain electronic and digital records –Section 57
of the BSA8 specifically includes the following electronic and digital records as
primary evidence –

o Where an electronic or digital record is created or stored, and such storage

occurs simultaneously or sequentially in multiple files, each such file is
primary evidence. (Explanation 4 to Section 57, BSA)

o Where an electronic or digital record is produced from proper custody, such

electronic and digital record is primary evidence unless it is disputed.
(Explanation 5 to Section 57, BSA)

o Where a video recording is simultaneously stored in electronic form and

transmitted or broadcast or transferred to another, each of the stored
recordings is primary evidence. (Explanation 6 to Section 57, BSA)
 o Where an electronic or digital record is stored in multiple storage spaces in a
computer resource, each such automated storage, including temporary files, is
primary evidence. (Explanation 7 to Section 57, BSA)

9. Admissibility of electronic evidence – The BSA introduces parity in validity and

admissibility of electronic and digital records as evidence. Section 61 of the BSA
provides that electronic or digital records shall have the same legal effect, validity and
enforceability as other document.9 Section 62 of the BSA10 states that the contents of
electronic records may be proved in accordance with Section 63 of the BSA.11

o Section 63 of the BSA now includes electronic records copied in

semiconductor memory in addition to optical or magnetic media as provided
in the IEA.

o It also enlarges the ambit of the provision by covering electronic records

produced by any communication device or otherwise stored, recorded or
copied in any electronic form (and not only a computer, as was the case in the
IEA). Thus, the scope of devices through which electronic or digital records
can be sourced as evidence has been enlarged.

10. Further, Section 63(3) of the BSA now states that “Where over any period, the
function of creating, storing or processing information for the purposes of any activity
regularly carried on over that period as mentioned in clause (a) of sub-section (2)
was regularly performed by means of one or more computers or communication
device, whether—
a. in standalone mode; or
b. on a computer system; or
c. on a computer network; or
d. on a computer resource enabling information creation or providing
information processing and storage; or
e. through an intermediary,

all the computers or communication devices used for that purpose during that period
shall be treated for the purposes of this section as constituting a single computer or
communication device; and references in this section to a computer or
communication device shall be construed accordingly.”12

o Section 63(4) of the BSA now provides a specified format for a certificate to
be submitted along with electronic evidence at each instance it submitted for
admission. Earlier, this was done simply by filing an affidavit. The format of
the certificate is appended as a Schedule to the BSA. This format will bring in
certainty and make the process simpler and user-friendly.

11. Earlier, Section 65B of the IEA required “a person occupying a responsible official
position in relation to the operation of the relevant device or the management of the
relevant activities (whichever is appropriate)” to sign the certificate. Now, Section 63
of the BSA requires a “person in charge of the computer or communication device or
the management of the relevant activities (whichever is appropriate) and an expert”
to sign the certificate.
12. Electronic and Digital Signature – Sections 85 (which speaks about electronic
agreements affixed with electronic signatures of parties) and 86 of the BSA (which
speaks about electronic records and electronic signatures) 13 now
include digital signatures in addition to ‘electronic signature’.

13. Other key changes

1) Facts in issue – Previously, Section 6 of the IEA stated that facts which, though
not in issue, but which are so connected with a fact in issue as to form part of the
same transaction are relevant. Section 4 of the BSA, in addition, states that facts
though not in issue are connected with a relevant fact as to form part of the same
transaction, are relevant.

2) Addition of “coercion” to disqualify a confession from being relevant – Earlier,

Section 24 of the IEA included elements of inducement, threat or promise to deem
a confession irrelevant in a criminal proceeding. Section 22 of the BSA,14 retains
these elements, and adds the element of coercion to render the confession irrelevant
in a criminal proceeding.

3) Joint trial where the accused has absconded or fails to comply with a
proclamation issued under the BNSS – Section 24 of the BSA, while retaining
the text of Section 30 of the IEA, its corresponding provision on joint trials, adds
an explanation which states that a trial of more than one person held in the absence
of the accused who (a) has absconded; or (b) fails to comply with a proclamation
issued under Section 84 of the BNSS, shall be deemed to be a joint trial.

4) Experts – Section 39 of the BSA15 enlarges the fields an expert may give his/her
opinion on by adding “or any other field” to “foreign law, science or art” as
provided under Section 45 of the IEA, such that they are considered relevant facts.

5) Judicial notice – Section 52(1)(a) of the BSA states that the Court shall take
judicial notice of all laws in force in the territory of India, including laws having
extra-territorial operation. This provision was absent in the corresponding
provision in the IEA. Section 57 of the IEA simply referred to “all laws in force in
the territory of India”. Section 52(1)(b) of the BSA states that the Court shall take
judicial notice of international treaty, agreement or convention with country or
countries by India, or decisions made by India at international association or other
bodies, and seals of Tribunals in additions to seals of courts.

6) Secondary evidence – Section 58 of the BSA16 adds oral admissions, written

admissions and evidence of a person who has examined a document, the original of
which consists of numerous accounts or other documents which cannot
conveniently be examined in Court, and who is skilled in the examination of such
documents, as being secondary evidence.

7) Earlier, “oral admissions as to the contents of a document” were permissible

where: (1) a party can show that he is entitled to give secondary evidence under
Section 65 of the IEA; (2) the genuineness of a document is under
challenge.18 Similarly, a “written admission” was admissible “when the existence,
condition or contents of the original have been proved to be admitted in writing by
the person against whom it is proved or by his representative in interest”.19 None
 of these were categorized as secondary evidence under Section 63 of the IEA.
Now, the inclusion of oral and written admissions in Section 63 of the BSA has
addressed categorically that they are deemed as secondary evidence. The qualifiers
of when oral and written admissions are admissible are still retained.20

8) Proper Custody – Section 80 of the BSA21 states that “The Court shall presume
the genuineness of every document purporting to be the Official Gazette, or to be a
newspaper or journal, and of every document purporting to be a document directed
by any law to be kept by any person, if such document is kept substantially in the
form required by law and is produced from proper custody.”

o Section 81 of the IEA did not specify what “proper custody” meant. An
Explanation added to Section 80 of the BSA does precisely that. It clarifies
that for the purposes of Sections 80 and 92 (Presumption as to documents
thirty years old) of the BSA, a document is said to be in proper custody if it
is in the place in which, and looked after by the person with whom such
document is required to be kept; but no custody is improper if it is proved
to have had a legitimate origin, or if the circumstances of the particular case
are such as to render that origin improbable.22

o This definition of “proper custody” won’t be applicable to Explanation 5

to Section 57 of the BSA, presumably leaving it to the courts to decide
what it shall mean in the context of the Section 57, BSA.

9) Accomplice – Under the IEA, there was a conflict between illustration (b) of
Section 114 which read – “that an accomplice is unworthy of credit, unless he is
corroborated in material particulars”, and Section 133, which read – “An
accomplice shall be a competent witness against an accused person; and a
conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice.”

o Thus, while Section 133 of the IEA made admissible the uncorroborated
testimony of an accomplice, illustration (b), Section 114 of the IEA deemed it
unworthy of credit unless corroborated with material particulars.

o This conflict is resolved in the BSA. Section 138 of the BSA23 now reads as
“An accomplice shall be a competent witness against an accused person; and
a conviction is not illegal if it proceeds upon the corroborated testimony of
anaccomplice.”23
THE BHARATIYA SAKSHYA BILL, 2023: AN OVERVIEW OF THE CHANGES TO
INDIAN EVIDENCE ACT, 18721 (3/3)

Introduction
1. The Bharatiya Sakshya Bill, 2023 was introduced in the Lok Sabha on August 11,
2023 with the aim to repeal and replace the existing Indian Evidence Act, 1872
(“Evidence Act”) along with two other Bills intended to replace the Indian Penal
Code, 1860 (“IPC”) and the Code of Criminal Procedure, 1973 (“CrPC”). The
Bharatiya Sakshya Bill, 2023 was withdrawn on December 12, 2023, and the
Bharatiya Sakshya (Second) Bill (“Bill/Evidence Bill”) was introduced in its stead,
with the same aim. The Bill was passed by the Lok Sabha on December 20, 2023, and
by the Rajya Sabha on 21 December 2023. It received presidential assent on
December 25, 2023. Once notified, it will be called the ‘Bharatiya Sakshya
Adhiniyam, 2023’.

2. This note summarizes the most notable changes to the Evidence Act which have been
proposed in the Bill. The ‘Clauses’ as referred to in the Bill are referred to as
‘Sections’ in this note for ease of reference. The most significant changes in this Bill
pertain to consolidation of sections and removal of references from the colonial era,
while maintaining a construct largely similar to that of the existing Evidence Act.

Definitions
In terms of notable changes, the definitions under Section 4 of the Evidence Act which
defined ‘conclusive proof’, ‘may presume’ and ‘shall presume’ have been included in a
consolidated definition clause. The Bill also provides for interpretation of words used under
the Bill but not specifically defined under it. Such words are to have the same meaning for
the same words as defined under Information Technology Act, 2000, Bharatiya Nagarik
Suraksha Sanhita, 2023 and Bharatiya Nyaya Sanhita, 2023, as the case may be.

Closely Connected Facts

1. The provisions of Chapter II of the Bill, concerning ‘Closely Connected Facts’
(which include provisions on evidence of facts in issue and relevant facts, relevancy
of facts forming part of the same transaction, facts being occasion, cause or effect of
facts in issue, facts showing existence of mind, etc.) are identical to equivalent
provisions in the Evidence Act. The language of Section 12 of the Evidence Act
(which discussed the relevance of facts which enable the court to determine damages)
has been modified slightly while remaining same in substance.
2. Similarly, provisions concerning ‘Admissions’ (including illustrations) have been
retained, with a few changes.10 For instance, ‘Admission by party to proceeding or
his agent’ as discussed in Section 18 of the Act, setting out admissions made by suitor
in representative character is structured differently but remains identical in
substance.11
3. Section 22A of the Evidence Act dealing with oral evidence as to contents of
electronic records has now been excluded from the Bill.

On confessions
Notably, in relation to the provisions pertaining to confession, a significant change has been
made with respect to Section 24 of the Evidence Act (which provides that any confession
made by an accused person if caused by inducement, threat or promise, is irrelevant). Two
new provisos have been included which allow for certain types of confessions to be
considered relevant.

1. 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.

2. 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 practiced 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 the right against self-incrimination is not
affected.

Sections 25 and 26 of the Evidence Act pertaining confession to a police officer and
confession have now been clubbed together, while adding a proviso. As per this new proviso,
whenever information is deposed to as discovered in consequence of information received
from a person accused of any offence, in the custody of police, such information as it relates
to the fact discovered, whether it amounts to a confession or not, may be proved. Simply put,
by virtue of this provision, information received in custody may be used further for the
purpose of investigation or corroboration of other evidence against such information.

On digital signatures
Section 45 of the Evidence Act has been modified, and the new provision14 specifies that the
opinion of examiner of electronic evidence as per Section 79A of the IT Act shall be a
relevant fact for information stored digitally. Further, provisions related to opinions
concerning handwriting and digital signature previously contained under Sections 47 and
47A of the Evidence Act have been clubbed under a single section without alteration to
wording. Consequentially, it may be now open for courts to consider the opinion of persons
acquainted with someone’s handwriting as well as their digital signature.

Facts which need not be proved

Chapter III of the Bill, dealing with ‘facts which need not be proved’ includes amends
Section 57 of the Evidence Act. The Section corresponding to Section 57(1) of the Evidence
Act has included in its ambit all laws in force in India having extraterritorial operation.
Further, the ambit of the section has been expanded to include international treaties,
agreements and conventions with countries by India, apart from decisions made by India at
international associations and other bodies. Notably, the modified section excludes references
to seals, proceedings, sovereign concerning the United Kingdom and limits the scope to
similar authorities of India. This brings treaties and other authorities concerning India at an
international level at par, without regard to similar references from the United Kingdom.
Primary evidence
The provisions of Section 61 of the Evidence Act have been modified, and the new section
includes additional explanations recognizing that –
1) where documents made using a uniform process such as printing, lithography or
photography where each is primary evidence of the contents of the rest; but where
they are copies of a common original, they are not primary evidence of the contents of
the original,

2) where electronic or digital records are recorded or stored, each file is a primary
evidence, where electronic or digital record is produced from proper custody, such
record is primary evidence unless disputed,

3) where a video recording is stored in electronic form or transmitted, each of the stored
recording is primary evidence, and

4) where an electronic record is stored in multiple storage spaces in a computer resource,

each such automated storage including temporary files is primary evidence.

Secondary Evidence
Section 63 of the Evidence Act, concerning ‘secondary evidence’, has been amended and
expanded, and the equivalent section contains additional categories including oral
admissions, written admissions, and evidence of a person examining a document within
the meaning of secondary evidence.

The Bill therefore has a broader scope as opposed to secondary evidence under the Evidence
Act, as it now includes oral admissions, written admissions and evidence taken by a
skilled person from an original document which cannot be examined by the court. To
apply and to qualify as secondary evidence however, oral evidence must relate to the original
and not a copy thereof. Such additional categories of secondary evidence are expected to
assist courts in determining admissibility of documents.

Electronic Evidence
The contents of Section 65B of the Evidence Act have been simplified and provides for the
admissibility of electronic or digital records, and states that the same shall have the same
legal effect, validity and enforceability as paper records. The admissibility of electronic or
digital records is subject to fulfilment of certain conditions.

Public documents
Sections 74 and 75 of the Evidence Act have been combined in the Bill, to cover descriptions
of both public and private documents, the new provision remains identical in substance to
the provisions in the Evidence Act.

Presumptions as to documents
Section 81A of the Evidence Act has been expanded in the new provision, and deals with
presumptions as to gazettes in electronic or digital form, and contains an additional
explanation of ‘proper custody’.

Section 82 of the Evidence Act dealing with presumption about documents admissible in
England, has now been excluded from the Bill. Section 86 of the Evidence Act which dealt
with presumption as to certified copies of foreign judicial records has been modified in the
new section to exclude reference to dominions of Great Britain and adopts a nomenclature to
indicate documents from any country beyond India. Further, the provisions of Section 88 of
the Evidence Act have been altered, and the new section replaces the phrase ‘telegraphic
messages’ with ‘electronic messages’.

Examination of witnesses
The section pertaining to examination of witnesses is identical in substance to Section 137 of
the Evidence Act, though structured differently. Further, with respect to leading questions,
the new section modifies Section 141 of the Evidence Act, which was generic and relied on
‘suggestive’ character of questions to include specific circumstances as leading questions.
The section on refreshing of memory is a verbatim adoption of Section 159 of the Evidence
Act, albeit with an alteration of structure. The section concerning production of documents
has modified Section 162 of the Evidence Act to impose certain restrictions on what
documents can be produced by adopting a proviso which bars the production of any
privileged communication between ministers and President of India.
Introduction
In a move aimed at contemporising the justice delivery system in India, the Bharatiya
Sakshya Adhiniyam, 2023 (BSA) has been introduced to replace the Indian Evidence Act,
1872 (IEA). While the BSA was published in the Official Gazette on 25 December 2023, due
to administrative and logistical reasons, the said enactment is expected to come into force
only later in 2024.

In Part III of this ERGO series, we outline some of the significant changes introduced by the
BSA which seeks to consolidate rules and principles governing evidence for conduct of fair
trials:

Inclusion of statements given electronically as evidence:

The ambit of ‘evidence’ has been broadened to include statements given through
electronic mediums. This will enable the appearance of witnesses, accused persons,
experts and victims to depose via electronic means in the usual course. This is a
welcome change aimed at mitigating logistical challenges for various stakeholders in
terms of costs, time and resources.

Electronic records as documentary evidence:

In order to keep pace with the digital era, electronic and digital records have been
specifically brought under the ambit of ‘documentary evidence’ in the BSA. This
includes electronic records on emails, server logs, documents on computers, laptops or
smartphones, messages, websites, locational evidence, and voice mail messages stored
on digital devices. The BSA provides that such records will have the same legal effect,
validity, and enforceability as any other document.

As a result of such a classification, electronic or digital records are now categorised

as ‘primary evidence’ under Section 57 of the BSA. Under the IEA, primary
evidence referred to original records, whereas secondary evidence referred to records
that can prove the original records' contents. This clearly acknowledges the shift from
traditional paper-based systems to contemporary electronic communication and data
storage forms. However, despite electronic records being primary evidence under the
BSA, a ‘certificate of authentication’ (similar to the certificate contemplated under
Section 65B of the IEA) is still required to be issued as per the Schedule to the BSA.
While such a requirement may be with the aim of preventing tampering, this still raises
questions as to the effectiveness of classifying the same as primary evidence.

It is also pertinent to highlight that the BSA has omitted references to its territorial
extent, possibly in order to overcome admissibility related challenges pertaining to
evidence generated outside India (especially digital evidence).

Judicial notice of international treaties, agreements and conventions:

The BSA requires Courts to take judicial notice of international treaties, agreements or
conventions with countries by India, or decisions made by India at international
associations or other bodies. This is a positive step, especially for international
businesses and individuals with foreign dealings, as this will result in the automatic
recognition of international principles by Courts which can go a long way in creating a
sense of comity and certainty.
 Variation in the meaning of “accomplice”:
The IEA provides that an accomplice shall be a competent witness against an accused
person, and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. On the other hand, while clarifying that an
accomplice shall be a competent witness against an accused person, the BSA states
that a conviction is not illegal if it proceeds on the corroborated testimony of the
accomplice.

Addition of ‘coercion’ as an act causing a confession to become irrelevant:

Under the IEA, inducement, threat or promise by a person in authority, were
recognised as acts that could lead to rendering a confession by an accused person
irrelevant. However, the BSA also adds ‘coercion’ as an act causing the invalidation of
a confession by an accused. This affords greater protection to accused persons by
ensuring that no undue pressure is applied by persons in authority to elicit confessions.

Non-production of documents containing communication between Ministers and the

President of India:
The BSA provides that no Court can require production before it of any
communication between Ministers and the President of India. This is opposed to the
IEA, wherein no similar provision was present. The Supreme Court in People’s Union
for Civil Liberties v. Union of India (2004) had stated that the only immunity from
disclosure was of unpublished State documents that pertain to affairs of the State, and
where disclosure of the same is against public interest. The introduction of such a carte
blanche provision could lead to abuse of power since administrative actions can go
unchecked in the absence of judicial review.

Deletion of terms relating to India’s colonial past:

References to terms such as ‘public Acts passed by the Parliament of the United
Kingdom’, ‘her Majesty’s Government’, etc. have been removed in the BSA. These
omissions are an attempt to remove any traces of colonial remains from India’s legal
system. Further, outdated words like ‘Vakil’, ‘Pleader’ and ‘Barrister’ have been
deleted as they are no longer relevant and are replaced with ‘Advocate’.

Conclusion
Most of the core principles that formed a part of India’s evidence jurisprudence under the
130+ year old IEA, e.g., burden of proof, admissions, relevancy of facts, etc. remain constant
under the BSA. Nevertheless, with significant emphasis being accorded to electronic records
and their treatment, the enactment of the BSA is certainly a significant step towards aligning
India’s legal system to contemporary technological advances. What remains to be seen is as
to how quickly and efficiently stakeholders such as Courts, lawyers, litigants and
investigating agencies embrace such changes to render the legal system truly contemporary at
the ground level. Also, while concerns remain regarding the possible abuse of power on
account of the absolute bar on production of communications between Ministers and the
President, the judicial recognition of international conventions, inclusion of the term
‘coercion’ in the context of barred admissions and deletion of long redundant colonial terms
are definitely welcome changes under the BSA.

Ganesh Prasad (Partner), Ganapathy Subbiah (Partner), Trimurthi B S (Principal Associate),

Insaf Ahamad T K (Associate) and Aditya Pattanayak (Associate).