An Overview of the Bharatiya Sakshya Adhiniyam 2023

Here's all you need to know about the Bharatiya Sakshya Adhiniyam 2023, which replaced the Indian Evidence Act, 1872.

Introduction

Evidence can be a make-or-break in most cases, especially those in which allegations of offences are placed upon individuals or organisations for offences or crimes. The legal realm of Evidence has seen some changes over time, and the new Bharatiya Sakshya Adhiniyam, 2023 is one of those changes.

As Richard Garth, Chief Justice of Bengal in 1875 once said,

“The law of evidence is not a mere principle governing the process of proof; it also possesses a varied and diversified purpose of governing the rules relating to the process of proof in court proceedings.”

Evidence law and the Right to bring forth evidence before a court of Law also forms a basic aspect of ensuring every citizen a fair trial/hearing i.e. a component of Audi Alteram Partem as a Principle of Natural Justice.

Current Status of Evidence Law in India

The Bharatiya Sakshya Bill, 2023, received clearance from the Lok Sabha on December 20th and from the Rajya Sabha on December 21st. On 25th of December, 2023, the said Bill received assent from the President of India. The Bharatiya Sakshya Adhiniyam, hereinafter referred to as the Act, focuses primarily on the procedural aspect of the law, governing how rights may be enforced before a court of law and seeks to repeal and replace the existing Indian Evidence Act, a colonial legislation passed in the year 1872. Thus implying that the previously existing Indian Evidence Act of 1872 would have a retrospective effect and the current legislation would have a prospective effect.

To bring in a few basic points of differentiation between the two Acts in question, the bare formatting of the Act(s) is the primary difference between the two. The repealed legislation - containing 3 Parts and 11 chapters (Indian Evidence Act, 1872) and a Schedule was replaced by the new legislation; Bharatiya Sakshya Adhiniyam, 2023, containing 4 parts and 12 chapters with the Schedule being replaced as well. In addition to this, the new legislation also contains certain inclusions, omissions and consolidation of provisions within its various sections and parts. The repealed legislation had a total of 167 sections, whereas the new legislation contains 170 sections. These provisions of law deal with numerous matters connected with Evidence.

An Overview of the Bharatiya Sakshya Adhiniyam 2023 

The Act now containing four parts, places the preliminary clauses under Part I of the Act within which is the Short title of the Act and its Defining clause as Chapter 1. This is the only additional Part in the Act, implying that the remaining three parts are the same as before except now differently numbered. Part II is ‘Relevancy of Facts’ - containing Chapter 2. Part III of the Act is ‘On Proof’ - containing Chapters 3, 4, 5 and 6. And finally, Part IV is ‘Production and Effect of Evidence’ containing Chapters 7 to 12.

- Part I of the Act

Amongst a few others, the most noticeable changes that somewhat create a blanket change in Evidence Law are made in the defining clause of the new Act where through amending definitions of important terms such as Document u/s 2(d) and Evidence u/s 2(e), the Act has begun encompassing and recognising electronic evidence and digital records as Evidence.

• Section 2(d) of the Act defines a document as ‘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.’
  
• Section 2(e) of the Act recognises all documents including electronic or digital records produced for the inspection of the Court as documentary evidence which was added to the repealed legislation by the amendment of it in the year 2000, with the introduction of the IT Act.
• Section 8 of the repealed legislation which dealt with facts relating to motive, preparation and conduct of a certain act, is now contained within Section 6(2) of the new Act.

- Part II of the Act

Relating to Relevancy of Facts, this Part of the Act contains the different aspects related to facts (as defined by the Act) such as Closely connected facts, Surrounding facts becoming relevant in an attempt to prove facts in issue or relevant facts (Section 7), Things said or done by a conspirator (Section 8), Facts relevant when right or custom is in question and when facts not otherwise relevant become relevant (Section 9) etc..

• Admission, under the Act, has the same meaning as was given to it by the repealed legislation u/s 15.
  
• Under the new Act, Section 22A - ‘When oral admission as to contents of electronic records is relevant’ of the repealed legislation has been omitted.
• Section 23 of the Act contains a consolidation of provisions from Sections 25, 26 and 27 of the repealed legislation.
• Section 26 now contains provisions relating to ‘Confessions made by a person who is dead or cannot be found, previously contained u/s 32 of the repealed legislation.
• Section 27 of the repealed legislation has now been made a proviso to Section 23 of the new Act.
• Further, the matter of ‘Confessions’ is dealt with, where any confession in a criminal proceeding that is induced by threat, or promise is irrelevant (Section 22). The repealed Act u/s 28 states that if such a confession is made after 24 hours of such threat or promise being eliminated, such a confession becomes relevant, however, it may be noted that such a provision along with Section 29 as well, does not exist in the new Act.
• This portion of the Act also deals with Statements made by persons who are not a witness and Statements made under special circumstances under Sections 26 to 33.
• The title of Section 38 of the repealed Legislation, ‘Relevancy of statements as to any law contained in law books’ now also extends to law books in electronic or digital form, as mentioned in the margin note of Section 32 of the Act.
• Further, Section 45A of the repealed legislation entailing the aspect of ‘Opinion of the Examiner of Evidence’ now falls u/ s 39(2) of the Act.
• Section 41 - relating to the Opinion of handwriting and signature when relevant (1) has also absorbed the amended section 47A of the repealed legislation into 41(2), relating to the opinion of electronic/digital signature.
• Section 46 deals with matters of Character in civil cases and when it is relevant, while Sections 47, 48 and 49 of the new Act deal with the same in Criminal cases.

- Part III of the Act

• Firstly, it is stated u/s 51 of the Act that ‘No fact of which the Court will take judicial notice need be proved.’
• U/s 52, clauses (b), (c), (d) and (e) have been added as extra components of ‘Facts of which Court shall take judicial notice’ essentially meaning that 4 new facts/circumstances are of nature that need not necessarily be proved before the Court. These are:

(b) international treaty, agreement or convention with country or countries by India, or decisions made by India at international associations or other bodies;
(c) the course of proceedings of the Constituent Assembly of India, of Parliament of India and of the State Legislatures;
(d) the seals of all Courts and Tribunals;
(e) the seals of Courts of Admiralty and Maritime Jurisdiction, Notaries Public, and all seals which any person is authorised to use by the Constitution, or by an Act of Parliament or State Legislatures, or Regulations having the force of law in India;

• Section 57 of the new Act which talks about ‘Primary Evidence’ contains 3 new explanations, thus providing readers greater clarity on what would and would not be considered as primary evidence. These are explanation numbers 4, 5, 6 and 7.
• U/s 58 of the Act which talks about ‘Secondary Evidence’, three new components have been added to it, meaning that clauses (vi) (vii) and (viii) talk about 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, respectively, are now recognised as Secondary Evidence.
• Section 61 was newly introduced in the Act which states that ‘Nothing in this Adhiniyam shall apply to deny the admissibility of electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.’
• One of the most important Sections of the new Act i.e. Section 63 - ‘Admissibility of Electronic Records’ is that under Clause (3) of the said section, older terms have been replaced with terms defined by the Information Technology Act, 2000. These include Computer Systems, Computer Networks, Computer Resources and Intermediary.
• Section 65A of the repealed legislation is now contained under Section 62 and Section 65B under section 63. Moreover, Section 65B (5)(b) - of the repealed legislation has been omitted in the new Act.
• Explanations have been added to Sections 80 and 81 of the Act.
• Section 82 of the repealed legislation dealing with the Presumption as to document admissible in England without proof of seal or signature has been removed.
• Section 88 of the new Act is drastically different from its older counterpart Section 86 of the repealed legislation, where the unnecessary reference to Her Majesty's Dominions, United Kingdom etc.. are removed and replaced with more timely and relevant aspects.
• Section 90 of the Act is slightly different from its related provision Section 88 of the repealed legislation where the word ‘telegraphic’ has been replaced with ‘electronic’.
• Section 95 talks about the Exclusion of Oral Evidence in certain cases.
• Another extremely important aspect of this Part of the new Act is that of the Burden of Proof, On whom it lies, the Burden of proving fact to be proved to make evidence admissible, the Burden of proving that the case of the accused comes within exceptions etc.
• Witnesses and other related aspects such as, who may Testify, the order and procedure of examination of witnesses, their cross-examination, examination of own witness, and leading questions are covered by Sections 124 to 139 of the Act.
• Section 126 of the repealed legislation now falls under Section 132(3)
• Sections 141, 142 and 143 of the repealed legislation have been condensed into Section 146 of the Act.

- Part IV of the Act

Under Chapter XII of the Act, Section 170(2) states:

‘Notwithstanding such repeal, if, immediately before the date on which this Adhiniyam comes into force, there is any application, trial, inquiry, investigation, proceeding or appeal pending, then, such application, trial, inquiry, investigation, proceeding or appeal shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement, as if this Adhiniyam had not come into force.’

President's Assent to the Bill 

The said Bill being ordinary requires three stages of reading followed by a voting for/against the bill whereby if a majority of MPs of the pertaining House of the Parliament vote for the passing of a Bill, it is then transferred to the other House whereupon majority of MP’s voting for the passing of the Bill is required. After the said process is complete, the final step in the process is that of the President's Assent. This is one of the primary functions that the President of India discharges as part of its office. President Droupadi Murmu gave her assent to the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Sanhita which replaced the existing colonial-era legislations.

Conclusion

The Bharatiya Sakshya Adhiniyam, 2023 does not entail many conceptual or theoretical changes in comparison to its older counterpart, now repealed. However, the areas of change include making electronic or digital records admissible as evidence, thereby they will have the same legal effect as paper documents, the scope of expansion for secondary evidence to include copies made from the original by mechanical processes, counterparts of documents, and oral accounts of document contents has been made and with its enactment - the government is attempting to ensure uniformity not only in the law but also in the procedure by which the law is applied in cases before any Court.

Click Here to Download the Bharatiya Sakshya Adhiniyam

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