BHARATIYA SAKSHYA ADHINIYAM, 2023

BACKGROUND

Till date, the Indian Evidence Act, 1872 has served in the criminal justice system with regards to providing for general rules and principles of evidence for the commission of a fair trial, applicable to both; civil as well as criminal proceedings. But given the irrefutability of the fact that technology today is evolving at an insurmountable pace, it would have become increasingly demanding for an act with its roots drenched in the late 19^th century, to keep up with crime today, in spite of the amendments. And thus, the Government of India enacted a new legislation governing the admissibility and general rules of evidence, known as the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as ‘BSA’). BSA shall come into force and replace the Indian Evidence Act, 1872 (hereinafter referred to as ‘IEA’) on the date as the central government would notify. Till then, the IEA will remain in force.

INTRODUCTION

The Bharatiya Sakshya Adhiniyam of 2023 is a procedural law that provides the rules and regulations set in place to govern the relevancy and admissibility of evidence in court proceedings, further removing the ambiguities and helping avoid the probable intricacies that may arise during the admissibility of relevant evidence during said proceedings.

Even though majority of the sections of the IEA have been retained in this new legislation, e.g., the meaning of admissible evidence and the rules applicable with regards to proven facts; the primary changes that have been brought forth are inter alia, with respect to electronic and digital records.

This article shall attempt at exploring the major changes that shall be brought into effect upon the enforcement of the BSA and shall further touch upon some ambiguities that require further clarification for a clearer perspective.

KEY CHANGES

1. Definition: One of the primary changes brought by this Act is in the placement of the definitions of “may presume,” “shall presume,” and “conclusive proof” that had been explained in section 4 of the IEA. The same have been merged into the definition part of section 2 of the BSA.
2. Document: In the earlier Act, the scope of the definition of a document as explained in section 2 of the IEA was narrow, limiting itself to merely containing writing, printed words, a map, plan, inscription and a caricature. Now, the scope of the definition of a document provided under section 2(d) of the BSA has been widened by having included electronic and digital records as part of document. Section 2(d) further accommodates a new illustration defining electronic records, including emails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence, and voicemail messages stored on digital devices.

2. Evidence: One of the more progressive changes introduced in the BSA include the changes in the definition of ‘evidence’, as provided in Section 2(e). Accordingly, electronic evidence is allowed in the form of a statement given by the witness in relation to the matter of establishing credible facts under inquiry. This also means that witnesses can now appear virtually before the court and produce evidence under section 2(e)(i), making the carrying out of justice delivering process a lot more convenient and streamlined.

3. Judicial notice: Section 52 of the BSA (corresponding to section 57 of the IEA) enables the courts to take judicial notice of laws having extra-territorial treaties, agreements, and conventions with countries, decisions made at international associations or other bodies, seals of tribunals, state legislatures, and the territory of India; which its predecessor lacked.
4. Confession: The Section 24 of the IEA elucidated that a confession given by the accused would be considered irrelevant in court proceedings if obtained by threat, inducement, or promise that the accused can gain certain advantages on the charges framed against him. However, the Section 22 of the BSA not only introduces the term ‘coercion’ as part of the grounds given above, but also as per the proviso provided in Section 22, the confession fails to be irrelevant if the court is of the opinion that such had been fully removed at the time the confession was made. Further, if the confession would have otherwise been relevant, mere grounds of it being obtained under the impression of secrecy, deception, intoxication, and lack of compulsion would not render it irrelevant.

6. Deemed Joint Trial: a joint trial refers to a trial wherein, two or more accused persons facing accusation in the same case are tried together. The Section 24 of the BSA deals with consideration of proved confessions and the effects thereof against the accused in joint trials. The explanation II of this section has been an efficient addition in the same, addressing a situation wherein an absconded accused or an accused who fails to comply with a written proclamation of summons by the Court issued under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023, has been dealt with. Accordingly, such a trial of more than one person, following the situation provided in Explanation II shall be deemed to be a joint trail.
7. Scope of ‘Expert’: the ambit of the term ‘Expert’ has been expanded to include persons especially skilled in ‘any other field’ under section 39 of the BSA, so as to help the Courts to form relevant opinions.
8. Parity in admissibility of electronic evidence: in legal context, parity is said to exist when two things are equal to one another. Section 61 of the BSA seeks to establish parity between electronic or digital records and other documents by establishing that said parity shall not be denied on sole ground of the former being electronic or digital record, and further calls upon such records for being provided with the same legal effect, validity and enforceability as given to other documents.
9. Primary Evidence: i.e., the original documents produced for the inspection to be done by the Court, provided in the Section 62 of the IEA and in the section 57 of the BSA, has been further enhanced to support four new explanations about electronic and digital evidence. i.e.,
   1. Creation and storage in multiple files;
   2. Production from proper custody;
   3. Video recordings storage and simultaneous transmission, broadcast or transfer to another;
   4. Multiple storage spaces and temporary files.
10. Secondary Evidence: the ambit of secondary evidence has been widened under section 58 of the BSA Act by including oral evidence, written submissions, and evidence given by experts after examining the document.
11. Privileged communications: Article 165 relates to the production of documents in the Court, upon being summoned to do so. However, the proviso inserted in the BSA lies down that no Court shall require any communication between the Ministers and the President of India to be produced before it.
12. Certificate: Section 63(4)(c) of BSA requires for a certificate which is to deal with the admissibility of electronic records so as to ascertain the identification of the said record and the manner in which it was produced, among other things. Concurrently, a Certificate has been annexed in the Schedule provided in the Adhiniyam. The certificate further aims to carry out the authentication and verification of contents of electronic records, acting in accordance with the conditions laid down in Section 63(2) of the BSA.

CRITICISMS

1. Lack of proper safeguards: The BSA Act has allowed electronic records to be used as primary evidence, which harbours a possibility that electronic records can be tampered with during the process of adjudicating the matter, commencing from investigation and ending on either conviction or acquittal of the accused, unless specific safeguards are put in place to put a check against the same. In Anvar P.V. v P.K. Basheer[1], it was acknowledged by the Hon’ble Supreme Court and stated that “Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.”Further, a similar recommendation was proposed by the Parliamentary Standing Committee on Home Affairs in its Report No. 248[2]; “The Committee is of the opinion that safeguarding the authenticity and integrity of electronic and digital records acquired during the course of investigation is crucial due to the fact that such evidences are prone to tampering.” It was suggested that the insertion of a provision to mandate the secure handling of all electronic and digital records acquired and further processing through proper chain of custody be made as well.

2. Concerns regarding digital ignorance: when it comes to computers and similar devices, concerns over hacking and cybercrime cannot be brushed off. In the age of artificial intelligence, it is easier than ever to tamper with electronic gadgets, especially since a majority of the Indian population is still to a large extent technologically uninformed and thus ignorant. In such circumstances, the probability of electronic evidences and electronic records being unethically handled or ignorantly mismanaged elevates; calling for an implied necessity of digital education being imparted to all component authorities in charge of handling such records as well as to the people falling under the purview of this act.
3. Privacy concerns: The inclusion of electronic evidence in the BSA raises privacy concerns due to the potential for misuse of vast personal data contained within digital information. Without strict regulations, this poses risks of surveillance, unauthorized access, and manipulation, undermining individuals’ privacy rights and trust in the justice system.

CONCLUSION

21^st century continues to flabbergast with its technological developments and scientific discoveries taking place at an exponential rate. The rapid evolution of technology, particularly Artificial Intelligence, has made crime harder to trace and prosecute, creating a demand for updated laws. The BSA, 2023 marks a significant advancement in India’s criminal justice system by prioritizing technology. It introduces procedures for handling digital evidence, virtual court appearances, and expands the scope of admissible evidence, while also recognizing international agreements. This legislation aims to streamline the delivery of justice, leveraging technological advancements without overhauling existing systems. However, implementation may still face challenges, albeit mitigated by the legislation’s focus on continuity and efficiency. As with any law, the implementation is what sets theory apart from the ground reality. De facto, there ought to be certain inconsistencies that prima facie, hidden, will have to be dealt with once the enforcement of BSA takes place but as of right now, save certain ambiguities, the BSA, 2023 sets itself apart as a dynamic legislation.

AUTHOR- Ms. Anamika Dinkar, student at National University of Study and Research in Law, Ranchi and Ms. Archi Jain, student at Amity University Madhya Pradesh.

[1] Anvar P.V. v P.K. Basheer, AIR 2015 SC 180

[2] 248_2023_11_16.pdf (sansad.in)