Highlights of the Bill
The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) replaces the Indian
Evidence Act, 1872 (IEA). It retains most provisions of the IEA
including those on confessions, relevancy of facts, and burden of proof.
The IEA provides for two kinds of evidence - documentary and oral.
Documentary evidence includes primary (original documents) and
secondary (that proves the contents of the original). The BSB2 retains
the distinction. It classifies electronic records as documents.
Under the IEA, electronic records are categorised as secondary evidence.
The BSB2 classifies electronic records as primary evidence. It expands
such records to include information stored in semiconductor memory or
any communication devices (smartphones, laptops).
The BSB2 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 in the examination of documents.
Key Issues and Analysis
The Supreme Court has recognised that electronic records may be
tampered with. While the BSB2 provides for the admissibility of such
records, there are no safeguards to prevent the tampering and
contamination of such records during the investigation process.
Currently, electronic records must be authenticated by a certificate to be
admissible as documents. The BSB2 retains these provisions for
admissibility. The BSB2 also classifies electronic evidence as documents
(which may not need certification). This creates a contradiction.
Under the IEA, a fact discovered due to information received from an
accused in police custody may be provable. The BSB2 retains this
provision. Courts and Committees have noted that facts may be
discovered in police custody by coercion, without adequate safeguards.
The IEA (and the BSB2) allows such information to be admissible if it
was obtained when the accused was in police custody, but not if he was
outside. The Law Commission recommended to remove this distinction.
The Law Commission has made several recommendations, which have
not been incorporated. These include the presumption that the police
officer caused the injuries if an accused was injured in police custody.
PART A: HIGHLIGHTS OF THE BILL
Context
The Indian Evidence Act, 1872 (IEA) governs the admissibility of evidence in
Indian Courts. It applies to all civil and criminal proceedings. Over the years,
the IEA has been amended to align with certain criminal reforms and
technological advancements. In 2000, the IEA was amended to provide for the
admissibility of electronic records as secondary evidence. In 2013, it was
amended to add provisions related to consent in cases of rape. It shifted the
onus on the accused to prove that consent was given, and added that the
character of the victim and her sexual history will not be relevant when
determining consent.
The Law Commission has examined the IEA on multiple occasions and
suggested amendments on matters such as custodial violence, admissibility of
police confessions, and cross-examination. For more details on key
recommendations made by the Law Commission, The Bharatiya Sakshya Bill,
2023 (BSB) was introduced in Lok Sabha on August 11, 2023. It seeks to
replace the IEA. The Standing Committee on Home Affairs examined the
Bill. The Bharatiya Sakshya (Second) Bill, 2023 was introduced on December
12, 2023 after the earlier Bill was withdrawn. It incorporates most of the
suggestions made by the Standing Committee on Home Affairs.
Key Features
The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) retains most of the
provisions of the IEA. 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 proved 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 proposed in the BSB2 include:
Documentary evidence: Under the IEA, a document includes writings,
maps, and caricatures. The BSB2 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 BSB2 retains this classification.
Oral evidence: Under the IEA, oral evidence includes statements made
before Courts by witnesses in relation to a fact under inquiry. The BSB2
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. The
BSB2 provides that electronic or digital records will have the same legal
effect as paper records. It expands electronic records to include
information stored in semiconductor memory or any communication
devices (smartphones, laptops). This will also include records on
emails, server logs, smartphones, locational evidence and voice mails.
Secondary evidence: The BSB2 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.
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 BSB2 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.
PART B: KEY ISSUES AND ANALYSIS
The admissibility of electronic records as evidence
Under the IEA, documentary evidence can be classified as primary or
secondary evidence. Primary evidence refers to the original document, while
secondary evidence includes documents that can prove the contents of the
original. Secondary evidence may be required under various conditions, such as
when the original has been destroyed, or is with the person against whom the
document must be proved. Documents include writings, maps, and caricatures.
The BSB2 retains these provisions and adds electronic records to the definition
of documents.
The IEA allows electronic records to be admitted as secondary evidence and
specifies the procedure to admit such evidence. The BSB2 amends this to
clarify that electronic records produced from proper custody will be considered
primary evidence, unless disputed. If electronic records are stored in multiple
files, each file will be considered as primary evidence. It also expands the
definition of electronic records to include information stored in semiconductor
memory or smartphones (including emails, location and voice mails).
Admitting electronic records as primary evidence raises two issues. We discuss
them below.
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.5 The BSB2 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. However, no safeguards have been provided
to ensure that electronic records are not tampered with during the search and
seizure or investigation process. 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.4 It recommended
mandating that all electronic and digital records collected as evidence during
investigation be securely handled and processed through proper chain of
custody.
In 2021, the Karnataka High Court introduced guidelines for minimum
safeguards during the search and seizure of electronic records. These include:
(i) ensuring that a qualified forensic examiner accompanies the search team, (ii)
prohibiting the Investigating Officer from using the seized electronic device
during search and seizure of electronic records, and (iii) seizing any electronic
storage device (such as pen drives or hard drives) and packing them in a
Faraday bag.6 Faraday bags block the transmission of electromagnetic signals,
which can disrupt or destroy data stored in the device.
In the European Union, 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: (i) mandating the use of electronic evidence only if there is sufficient
evidence that it has not been manipulated or forged, (ii) ensuring that evidence
is sufficiently secured against manipulation from the time of production to the
chain of custody, and (iii) requiring the involvement of IT experts at the request
of the accused. In the United States, the proponent must provide sufficient
evidence to prove the authenticity of the record. In case of records generated by
an electronic process or system, and data copied from such process or system,
the record or data must be certified by a qualified individual.
The admissibility of electronic records may be ambiguous
The BSB2 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). However, it
also retains the provision that requires a certificate authentication of all
electronic records be admissible as documents. This has overriding effects over
other provisions. These changes may raise an ambiguity regarding the
admissibility of electronic records.
