Q.
Discuss the key features of the Bharatiya Shakshya
Adhiniyam, 2023.
ANS. 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.
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.
Key Features of Bharatiya Sakshya Adhiniyam (BSA)
❖Provisions of the IEA retained in BSA
1)Admissible evidence
● Parties involved in a legal proceeding can only present
admissible evidence.
● Admissible evidence can be classified as ‘facts in issue’ or
‘relevant facts’.
★Facts in issue refer to any fact determining 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 two kinds of evidence –
documentary and oral evidence.
2)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 due to information received
from an accused in custody, that information may be admitted if
it distinctly relates to the fact discovered.
★ Key changes
1)Documentary Evidence
Under the Indian Evidence Act (IEA), documents include writing, maps,
and caricatures. The Bharatiya Sakshya Adhiniyam (BSA) expands this
definition to include electronic records. Documentary evidence is
classified into primary and secondary evidence, where primary evidence
involves original documents, including electronic records and video
recordings. Secondary evidence encompasses documents and oral
accounts proving the contents of the original, a classification retained by
the BSA.
2) Oral Evidence
While the Indian Evidence Act confines oral evidence to statements
made before courts, the Bharatiya Sakshya Adhiniyam of 2023
introduces the possibility of giving oral evidence electronically. This
innovation allows witnesses, accused persons, and victims to testify
electronically.
3) Admissibility of Electronic or Digital Records
Documentary evidence, according to the Bharatiya Sakshya Adhiniyam,
now includes information in electronic records stored in various media,
expanding to semiconductor memory and communication devices like
smartphones and laptops. The Bharatiya Sakshya Adhiniyam asserts
that electronic or digital records will hold the same legal weight as paper
records, encompassing emails, server logs, locational evidence, and
voicemails.
4) 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.
★ Other features
1)Section Count Increase
The new legislation will comprise 170 sections, marking an increase
from the previous 167 sections of the Indian Evidence Act, 1872.
2) Section Updates
Notably, 23 sections from the existing law (The Indian Evidence Act,
1872) will undergo updates, reflecting a comprehensive revision to align
with contemporary legal needs.
3) Addition of New Section
The Bharatiya Sakshya Adhiniyam introduces a new section,
emphasizing the dynamic nature of the legal framework and the need for
specificity in certain areas.
4) Section Deletions
Five sections have been removed from the old law (The Indian Evidence
Act, 1872), streamlining the legal content and potentially eliminating
obsolete or redundant provisions.
5) Removal of Specific Terms
The new law omits certain terms such as “Her Majesty Queen,”
“Parliament of UK,” “London Gazette,” “Commonwealth,” “Court of
Justice in England,” and “British Crown,” signalling a departure from
references that may no longer be relevant.
6) Expansion of Secondary Evidence
The Bharatiya Sakshya Adhiniyam broadens secondary evidence to
include oral and written admissions and testimony from a person skilled
in document examination. Additionally, it specifies that secondary
evidence may be required not only when the original is inaccessible or
destroyed but also when the genuineness of the document is in
question.
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.
1)Lack of Public Consultation
The absence of extensive public consultations or open discussions on
the proposed changes raises questions about the inclusivity of the
legislative process. Public input is crucial for laws that profoundly impact
society and justice systems.
2)Lack of Focus on Victim Rights
● Critics argue that the Act is more focused on protecting the rights of
the accused rather than ensuring justice for victims.
● The rules of evidence sometimes make it difficult for victims,
especially in cases of sexual assault or domestic violence, to present
their case effectively.
3. Colonial Legacy and Outdated Provisions
● The Indian Evidence Act, 1872, is a colonial-era law, and many of its
provisions are seen as outdated and not in sync with modern
technological and societal advancements.
● Critics argue that the Act retains a rigid, formalistic approach that
may not adequately address contemporary issues like digital
evidence, cybercrime, and advancements in forensic science.
Conclusion
The Bharatiya Sakshya Adhiniyam, 2023, emerges as a landmark
legislation, steering the Indian legal system into the digital age with
comprehensive amendments to the Indian Evidence Act of 1872.
The new Act, enacted on December 25, 2023, not only increases
section count but also signifies a meticulous process of updates,
deletions, and additions, aiming to align the legal framework with
contemporary needs.
