The term “evidence” derives from the Latin word evidens or evidere, meaning “to show clearly” or “to make certain.” Before the Evidence Act was enacted, courts in India, especially in the presidency towns, followed English law principles regarding evidence. In rural areas, British courts initially applied Mohammedan law on evidence, later introducing various regulations to govern evidence principles. In India, the enactment and adoption of the Indian Evidence Act of 1872 was a groundbreaking development in the criminal justice system, revolutionizing the rules for evidence admissibility in Indian courts. This law came into effect on September 1, 1872, during the British colonial period. The primary goal of the Evidence Act of 1872 was to set stricter standards for evidence admissibility, aiming for greater consistency and accuracy in legal proceedings. The Act’s scope was limited to rules for determining evidence admissibility in issues requiring court judgments. This legislation came into effect on July 1, 1872, during India’s colonial period under British rule.

                  Recently, the three new criminal laws the Bharatiya Sakshya Bill, 2023, the Bharatiya Nyaya Sanhita Bill, 2023, and the Bharatiya Nagarika Suraksha Sanhita Bill, 2023, replaced the Indian Evidence Act of 1872, the Indian Penal Code of 1860, and the Code of Criminal Procedure of 1973, respectively. When introducing the Bharatiya Sakshya Bill 2023 in the Lok Sabha, Union Minister Amit Shah stated that its purpose is to consolidate and establish general rules and principles of evidence to ensure a fair trial.  

Major Changes brought about by the Bharatiya Sakshya Adhiniyam 

1. Elimination of Colonial and Outdated Terms

Mentions of colonial terms such as ‘Parliament of the United Kingdom,’ ‘Provincial Act,’ ‘London Gazette,’ ‘Commonwealth,’ ‘Privy Council,’ ‘Queen’s Printer,’ ‘Her Majesty,’ and colonial proclamations and orders have been removed. Outdated terms like ‘vakil,’ ‘pleader,’ and ‘barrister’ have been updated to ‘advocate.’ Additionally, terms such as ‘lunatic’ have been replaced with more sensitive language, like ‘person of unsound mind.’

• Territorial Scope of the BSA

Previously, Section 1 of the IEA specified that it applied to the entirety of India. In contrast, Section 1 of the BSA does not include this stipulation. This omission is likely intended to facilitate the admissibility of digital evidence produced outside of India.

1. Inclusion of Digital evidence and documents

Section 2 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, revised the definition of a document to encompass electronic and digital records. It specified that “An electronic record includes emails, server logs, documents on computers, laptops, or smartphones, messages, websites, locational evidence, and voicemail messages stored on digital devices as documents.”

• Incorporation of Electronic Evidence

Section 2(1)(e) of the BSA now includes electronically provided statements from witnesses as valid evidence, alongside oral evidence. Electronic and digital records are recognized as documentary evidence. The BSA aims to address challenges associated with requiring physical presence in court for oral testimony, such as the availability of witnesses and related travel expenses. Acknowledging the growing importance of technology, the BSA validates information provided electronically. This is aligned with Section 530 of the BNSS, which allows for the examination of witnesses and complainants in criminal proceedings via electronic communication or audio-video means.

• Relevance of Electronic or Digital Law Books

Section 32 of the BSA now recognizes electronic or digital formats of law books as valid. These must be printed or published under the authority of the respective country’s government. The section also deems reports of court rulings in such electronic or digital books as relevant, provided they claim to be accurate reports of rulings that the Court needs to consider.

• Primary Evidence Now Includes Specific Electronic and Digital Records

-Section 57 of the BSA now explicitly categorizes certain electronic and digital records as primary evidence:

-An electronic or digital record produced from proper custody is regarded as primary evidence unless contested (Elaboration of Explanation 5 to Section 57, BSA).

• Video recordings stored electronically and simultaneously transmitted, broadcast, or transferred to another location are each considered primary evidence (Elaboration of Explanation 6 to Section 57, BSA).
•  Any electronic or digital record stored across multiple storage spaces in a computer resource, including temporary files, is considered primary evidence (Elaboration of Explanation 7 to Section 57, BSA).
• Admissibility of Electronic Evidence

The BSA establishes equal validity and admissibility for electronic and digital records as evidence. Section 61 states that electronic or digital records hold the same legal effect, validity, and enforceability as other documents. Section 62 specifies that electronic records can be proven in accordance with Section 63. Section 63 expands the types of media for storing electronic records, now including semiconductor memory alongside optical or magnetic media, as previously recognized by the IEA. It broadens the scope to cover electronic records produced by any communication device or stored, recorded, or copied in any electronic form, not limited to computers as before. This expansion allows a wider range of devices to be used as sources of electronic or digital evidence.

             Furthermore, Section 63(3) of the BSA states that if information creation, storage, or processing is regularly performed by multiple computers or communication devices over any period, all such devices will be considered a single unit for legal purposes. This includes standalone mode, computer systems, networks, computer resources, or intermediaries. The section ensures that references to a computer or communication device encompass all devices used during that period as a unified entity.Section 63(4) of the BSA introduces a standardized format for a certificate that must accompany electronic evidence whenever it is submitted for admission. Previously, this was accomplished through a simple affidavit. This new format, included as a Schedule to the BSA, aims to enhance clarity and streamline the process for users.While Section 65B of the IEA required the certificate to be signed by “a person occupying a responsible official position” related to the relevant device or activities, Section 63 of the BSA now mandates that the certificate be signed by both “a person in charge of the computer or communication device” and “an expert” in the relevant field.

Inclusion of Digital signatures

When an electronic or digital record is created or stored, and this storage happens simultaneously or sequentially in multiple files, each file is considered primary evidence (Elaboration of Explanation 4 to Section 57, BSA).

Sections 85 and 86 of the BSA address electronic agreements signed with electronic signatures and electronic records, respectively. These sections now explicitly include digital signatures alongside “electronic signature.”

1. Concept of Joint Trial in BSA

The Indian Evidence Act permits joint trials under specific conditions, primarily following the procedural guidelines outlined in the Code of Criminal Procedure (CrPC). This applies to situations where multiple offenses or offenders are related, facilitating a more efficient trial process. The Bharatiya Sakshya Adhiniyam retains the provision for joint trials [Section 24] and adds an explanation that allows joint trials even if some accused individuals have fled or failed to respond to a summons. This approach seeks to streamline legal proceedings and maintain the continuity of trials.

Conclusion 

In the dynamic realm of legal proceedings, the Bharatiya Sakshya Adhiniyam stands as a significant milestone in India’s dedication to justice and fairness. This act meticulously tackles the complex aspects of evidence, paving the way for a more organized, inclusive, and technology-driven legal framework. Its provisions encompass a wide array of topics, from relevance to the admissibility of electronic records. Importantly, the act aims not only to facilitate the acceptance of evidence but also considers the procedural nuances involved in witness examination and the preference for documentary evidence over oral testimony. By addressing critical areas not adequately addressed by the Indian Evidence Act it reinforces its commitment to ensuring fair trials and safeguarding rights while reducing uncertainties in the legal process. With its potential to enhance the evidentiary landscape, the Bharatiya Sakshya Adhiniyam promises to make the Indian legal system more efficient, transparent, and just for all those who seek redress.

Written by: Harsh Shukla,DES’s Shri Navalmal Firodia Law College, Pune, 3rd Year BALLB.