More than 100 years and we were living with the same laws for justice delivery. The “Law of Progressive Change” of forensic science says that everything changes with the passage of time. The criminals, crime, and the crime-scenes also undergo a massive change. Now, a crime scene may be digital, secondary crime scenes can be where the WiFi is installed in a precinct….. Everything undergoes a change. Therefore, a need was felt to amend existing justice delivery machinery. Law of Evidence is paramount in both civil and criminal justice, to prove anything and everything. In the light of the above discussion, Bhartiya Sakshya Adhiniyam, 2023 is an impacting legislative reform which replaces the more than 100 year old Indian Evidence Act, 1872. Let’s scan what the BSA 2023 brings for good.
Background of Evidence Laws in India
Evidence law is neither substantive nor procedural. It defines the methodology through which substantive and procedural laws are set into motion. From the last few decades, probably the 1980s, India has seen a significant shift towards technology. This shift can be seen in the automobile sector, computer sector, education – now everything is digitized. Gone are the days of standing in a long queue. Now everything is online, independent of your location. The Indian evidence Act, 1872 was not coping up with these technological advancements. Crime has changed its shape. The Illustrations appended to the Indian Evidence Act, 1872 also sound obsolete and couldn’t be put across the application of the concerned Section to the law student.
As a result, a Bill was introduced in the Lok Sabha titled “Bhartiya Sakshya Bill, 2023” on August 11, 2023. The Bill was forwarded to the Standing Committee, which after some deliberation gave some recommendations on November 10, 2023 in its report. These recommendations were considered by the Government and which led to withdrawal of the pending bill and incorporation of the changes suggested by the report and introduction of the fresh Bill which has become an Act – the Bharatiya Sakshya Adhiniyam, 2023.
Salient features of Bhartiya Sakshya Adhiniyam, 2023
A lot has changed during the transformation from Act to Adhiniyam. The definition of “Evidence” has been expanded to include any witness, accused, expert, and victims who are appearing through any electronic channels. Any witness, information, or testimony given by them electrically is admissible. Now any electronic or digital record has the same legal effect, validity, and enforceability as any other physical document.
New law also expands the definition of secondary evidence to include:
1) Copies made from the original using mechanical processes,
2) Copies that were made from and checked against the original,
3) Counterparts or duplicate versions of any document even when they were not signed by the parties concerned,
4) Oral accounts of the contents of the document by anyone who has seen it and giving matching hash value of the document, that hash value will be taken as secondary evidence.
New law also seeks to put limits on the admissible facts.
Overview of the Bhartiya Sakshya Adhiniyam, 2023
Short Title
The Bhartiya Sakshya Adhiniyam, 2023
Long Title
An Act to consolidate and to provide for general rules and principles of evidence for fair trial.
Scheme
The Bhartiya Sakshya Adhiniyam, 2023 is divided into four parts and twelve Chapters comprising 170 Sections as follows:
Part I: Preliminary
Chapter I (Sections 1-2) lays down short title, commencement, and important definitions for the interpretation of the Adhiniyam. The Section 2(2) is a reference clause/residuary clause which states that if any word is not defined in the Adhiniyam but defined under the Information Technology Act, 2000, the Bhartiya Nagarik Suraksha Sanhita, 2023, and the Bharatiya Nyaya Sanhita, 2023 will carry the same meaning as given in the respective Act, or Sanhita.
Part II: Relevancy of Facts
Chapter II (Sections 3-50) discusses relevancy of facts. It establishes the principles governing the relevancy of facts in judicial proceedings. It defines which facts may be considered by the court to determine the veracity of the evidence, ensuring that only logically and legally significant facts are admitted as a type of evidence. This chapter refines the rules of relevancy from the Indian Evidence Act, 1872, incorporating provisions suited to modern legal challenges. It covers aspects such as admissions, confessions, expert opinions, character evidence, and facts forming part of the same transaction.
Most important is Section 8 which highlights the common intention of the two or more conspirators during the subsistence of the conspiracy. When for the first time anyone of such conspirators entertained such intention, that intention is the relevant fact in connection to the conspiracy.By outlining clear guidelines on what constitutes relevant evidence, this chapter enhances judicial efficiency and prevents unnecessary delays caused by immaterial or misleading information. Under Section 28, entries in the book of accounts are relevant when kept in electronic form.
Part III: On Proof
Part III starts from Section 51 and extends till Section 103. This Part deals with the most important part of the law of evidence, proof. When evidence proves something to be true is called proof.
Chapter III (Sections 51-53)
It starts with Section 51 that sets out the facts whose judicial notice has been taken by court need not be proved. It means when the Court takes the judicial notice of anything then the Court would have considered some points before taking it in its notice, then such a fact is true in the eyes of the Court. Section 52 says that the Court can take judicial notice of the following:
a) All laws with territorial and extra-territorial operations in force within the territory of India.
b) International treaty, agreement, or conventions.
c) Proceeding of the Constituent Assembly of India, Parliament of India and the State Legislatures.
d) Seals of all Courts and tribunals.
e) All seals which a person is authorised to by the Constitution, for example, Notary Public.
f) Appointments, names, titles, functions, and signature of public officials, if notified in the Official Gazette
g) the existence, title and national flag of every country or sovereign recognised by the Government of India.
h) the divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette.
i) The Territory of India.
j) Hostility between India and any other country or group.
k) the names of the members and officers of the Court, their deputies, subordinate officers, assistants, advocates and other persons authorised by law to appear or act before it;
l) The rules regarding land, laws, and sea.
Under the Section 53(2) it has been clarified that to take the judicial notice of the above and of the public history, literature, science, or art the Court can take help of the appropriate books or documents of reference.
Also, if the Court is called upon by some other person, supposedly a public interest litigation, the court can refuse unless the person shows his research by way of a book or any other reliable document.
Chapter IV (Sections 54-55)
It comprises two Sections regarding oral evidence. Section 54 says that the content of a written document cannot be proved by the oral evidence. But all other facts can be proved by the oral evidence.
Oral evidence must always be direct, it means it should be witnessed or perceived by the narrator as follows:
1) If it is about something seen, the witness must say they saw it.
2) If it is about something heard, the witness must say they heard it.
3) If it is about something sensed differently (like smell, touch, or taste), the witness must say they perceived it in that way. It means if they say that the glass smelled like a flower, they would have smelled that glass.
4) It should not be like it was heard from anyone else.
5) If it is about an opinion, the witness must be the person who holds that opinion.
Proviso to Section 55 says that the expert opinions in published books can be used as evidence if the author is dead, missing, incapable, or too costly or delayed to call as a witness.
If oral evidence is about the existence or condition of any material (not a document), the Court may ask to see the material itself for inspection.
Chapter V: Sections 56-93
This Chapter deals with documentary evidence. Let’s go through the highlights of this Chapter:
- Section 56 says that the content of a document can be proved by the primary or secondary evidence.
- Section 57 says that the primary document is the document itself. Which means the original document.
- Section 58 discusses the secondary evidence. This includes copies of original, oral and written submissions. Section 59 says that the documents shall be proved by primary evidence except in cases given under Section 60.Admissibility of an electronic or digital record in the evidence shall not be denied. Also, they have the same legal effect, validity and enforceability as other documents subject to Section 63. Section 74 discusses the public documents. Action 78 talks about presumptions concerning the genuineness of the certified copies. Under Section 80, the Court shall presume the genuineness of every document purporting Official Gazette, or to be a newspaper or journal, and of every document purporting to be a document directed by any law to be kept by any person. Likewise, under Section 81 the Court shall presume the genuineness of every electronic or digital record purporting to be the Official Gazette, or purporting to be electronic or digital record directed by any law to be kept by any person.
Chapter VI: Sections 94-103
Chapter VI deals with the exclusion of the oral evidence by documentary evidence. It ranges from Section 94 to Section 103.
Part IV: Production and Effect of Evidence
Part IV discusses production and effect of evidence.
Chapter VII: Sections 104-120
Chapter VII discusses the burden of proof under various circumstances. Let’s highlight a few such circumstantial evidence.
- Section 104 states that whoever brought a case before the court to solve, the burden of proof lies on that person. Section 105 adds more to the burden of proof with respect to a particular fact/evidence then the burden of proof lies on him, otherwise his case would fail if he or the other party does not produce any evidence.
- Section 106 brings legal intervention to the burden of proof. It states that if there is a law that this person has a burden of proof then only that person has a burden of proof. Section 107 deals with evidence of the existence of a fact, like a lost document. Then in order to give evidence by secondary evidence, he has to prove that the original document has been lost. Section 108 says that the General Exceptions under the Bhartiya Sakshya Sanhita, 2023 are complete defence. So, the burden of proof lies on the person who brings the case. Court shall presume no such circumstances exist. Section 109 says if a fact is in the special knowledge of a person then the burden of proof lies on him.
Also explore value of circumstantial evidence for conviction
Chapter VIII: Sections 121-123
Chapter VIII contains three Sections which deal with the doctrine of Estoppel. It means that if I make a statement, I cannot back out. It means I cannot say I haven’t said this. A person cannot deny something they previously made another person believe to be true if that belief led to action.
The doctrine of Estoppel is guided by “allegans contraria non est audiendus”, which translates to one who alleges contradiction is not to be heard. A person who makes contradictory claims or statements cannot be trusted or given legal standing in a dispute.
For example, if a person falsely claims ownership of land and convinces someone to buy it, they cannot later deny ownership to cancel the sale. This rule prevents unfairness and ensures that people are held accountable for their words and actions.
- Section 121 talks about estoppel simply. Section 122 says that tenants cannot deny the ownership of the landlord during tenancy. Section 123 says that the Acceptor of a bill of exchange shall not be permitted to deny that the drawer had the authority to draw such a bill or to endorse it. Also, any bailee or licensee shall not be permitted to deny the authority of his bailor or licensor
Chapter IX: Sections 124-139
Chapter IX talks about witnesses. It starts from Section 124 and run till Section 139. Let’s highlight the most important provisions. Section 124 discusses grounds which render any one not competent to become a witness. According to this Section, everyone is competent to testify as a witness. But it also enumerates following grounds which are exception to this general rule:
a) If someone was prevented from understanding the question
b) If someone was prevented from giving rational answers to the questions
c) If someone is of tender age
d) If someone is of extremely old age
e) If someone has disease of mind, or body
f) Any other cause of same kind as mentioned above
- Section 125 says that when a witness is unable to speak then anything presented through signs and gestures shall be deemed as oral evidence, but it must be videographed. Court may require an interpreter or special educator.
- Section 128 talks about privileged communication during the subsistence of marriage. A person during his marriage, shall not be compelled to disclose any communication made to him during marriage with his spouse. He or she is not allowed to disclose this communication unless the spouse or its representative gives their consent. But if the matter is between the married couple then this rule is not applicable. Examples: domestic violence, divorce on fault ground, cruelty, dowry, etc.
- Section 130 A public officer shall not be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. It means if the public officer like Indian Administrative Services think that such disclosure amy not be good for public reasons he can choose to stay silent or confidential.
- Section 132 entails professional communication with an advocate. An advocate shall not be permitted to reveal any information shared by a client during legal representation unless the client gives consent. This includes spoken or written communications, documents the advocate has seen, and any legal advice given.
However, this rule does not apply in the following cases:
(a) If the client communicated something to further an illegal act.
(b) If the advocate discovers a crime or fraud that happened after they started representing the client.
- Section 132(2) says that it doesn’t matter whether the client directly pointed out these facts or not. Also, this duty of confidentiality remains even after the services offered by the advocate are over.
- Section 134 says that a witness shall not be compelled to disclose to the Court any confidential communication which has taken place between him and his legal adviser. This communication can be disclosed only if it may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.
Most important Section is, Section 137 which discusses that a witness shall not be excused from answering on ground that answer will criminate himself. This Section is in line with the Canadian vision of right against self-incrimination. It narrows down the scope of fundamental rights granted under Article 20(3) of the Constitution. This Section does not excuse any witness from answering any question posed by the investigation agency which can potentially implicate the witness in the case itself. However, it creates a balance by adding further that answers rendered by the witness will not be used against him for arrest and prosecution in the case regarding which the investigation is being conducted. But if the answer is wrong or misleading then he can be charged with the offence of giving false evidence.
Chapter X: Sections 140-168
Chapter X deals with the examination of witnesses. Section 140 says that order of production and examination of the witnesses is different in civil and criminal procedure respectively. It shall be regulated by the law time being in force. If such law is absent then the court at its discretion can decide the order of production and examination.
- Section 142 throws light on three types of examination as follows:
- Section 142(1) – The examination of a witness by the party who calls him shall be called his examination-in-chief.
- Section 142(2) – The examination of a witness by the adverse party shall be called his cross-examination.
- Section 142(3) – The examination of a witness, subsequent to the cross-examination, by the party who called him, shall be called his re-examination. It means the lawyer of the party itself will ask some questions to create a doubt.
- Under Section 144 a person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness.
- Under Section 145, witnesses who testify the character of someone,may be cross-examined and re-examined.
- Section 146 discusses the most important concept of leading questions.
- Section 146(1) defines leading question as a question that suggests the expected answer.
- Section 146(2) says that leading questions can be objected to during the examination-in-chief or re-examination, unless the court allows them. It is like “objection sustained”, “objection overruled”.
- Section 146(3) says that the court may allow leading questions for basic facts, undisputed matters, or things already proven.
- Section 146(4) says that the leading questions can be asked during cross-examination.
Chapter XI:
Chapter XI has only one Section. Section 169 which says that the improper admission or rejection of evidence shall not be grounds for a new trial or reversal of any decision in any case. The Court will check that it does not make any change in the ruling if there is enough evidence to support even without that evidence. Even if the rejected evidence had been received, it ought not to have changed the decision.
Chapter XII
Chapter XII is of repeals and savings. Under Section 170(1) it repeals the Indian Evidence Act, 1872.
In Section 170(2) if any proceeding, investigation, or appeal is pending it will be carried under the old evidence law. Hence, this law has no retrospective effect.
Definitions under Bharatiya Sakshya Adhiniyam
Following are the relevant definitions under Section 2:
- Section 2(a), “Court” includes all the judges and magistrates which can lawfully admit evidence. But it excludes arbitrators. Arbitrators are not legally authorised to take evidence.
- Section 2(b), “Conclusive proof” means if one fact is proven or established then any corresponding fact is also proved. Court cannot allow any evidence to further disregard it.
- Section 2(c) – “Disproved” means when the court has declared a fact to be non-existent, it means it is non-existent for any prudent man. Any other person from the court will also assume it to be non-existent.
- Section 2(d), “Document” means any matter expressed by way of letters, figures, or marks or any other means (like electronic means) or more than any of these means to record that matter. Document includes electronic and digital records.
- Section 2(e), “evidence” means all statements or documents including electronic or digital records are evidence. Spoken statements are oral evidence and recorded versions are documentary evidence.
- Section 2(f), “facts” includes physical or mental facts. Facts that can be seen, touched, heard, smelled or tasted are physical. Mental facts are emotions, opinion, intention to commit crime which the person is aware of.
- Section 2(g), “facts in issue” means those important facts which require to be proved or disproved so that the existence of other facts can be ascertained. Proof or disproof of such facts directly affects the liability, rights, or claim of the parties.
- Section 2(h), “may presume” means when a court “may presume” a fact then it can accept the fact as true unless someone proves something else. Second, the Court can ask for evidence before deciding the fact to be true.
- Section 2(i), “not proved” means when there is not enough evidence to call a fact true (proved) or false (not proved).
- Section 2(j) “proved” means after examining the evidence, the court either:
- Believes the fact to be true, or
- believes it so likely to be true that a prudent(intellectual) person would act as if it exists in that situation.
- Section 2(k), “relevant”, relevant means connected. When one fact is related or connected to under Chapter II.
- Section 2(l), “Shall presume”, Whenever it is directed by this Adhiniyam that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. It is the mandatory presumption by the court that the fact is proved(true).
In the latter part, there is a reference of other legislations like the Information Technology Act, 2000 , the Bhartiya Nagarika Suraksha Sanhita, 2023, and Bhartiya Nyaya Sanhita 2023 that if any word expressions which have not been defined here, but defined there, their same meaning will be inferred for the purposes of this Adhiniyam.
Conclusion
The new law is crafted to address and redress the challenges of the 21st Century which were beyond the reach of the colonial Evidence act, 1872. The enactment of the Bhartiya Sakshya Adhiniyam, 2023 signifies a significant step towards a more robust, technology compliant, ready to tackle global challenges legal system. Over time forms of crime have shifted, so contemporary forms of evidence require a technology oriented evidence law. It is helpful in handling modern day cases thereby ensuring fair trial and justice delivery. Adhiniyam addresses modern age legal challenges. It is optimum for digital forensics, modern tools and forensic techniques. It refines the rules of evidence to ensure the legal system stays relevant and enhances the efficiency of courts. Adhiniyam updates definitions to encompass digital and electronic documents to reduce any ambiguity for physical evidence or technological evidence.
Frequently Asked Questions on BSA 2023
1. Why is Evidence law required?
Evidence law is required to govern transactions related to the collection, handling, production of evidence. It is also required to ensure the genuineness of experts, evidence, witnesses, chain of custody to secure the ends of justice, and fair trial.
2. What is a document in a practical sense?
A document is anything written, sketched, printed, or shown. Any medium which carries it is not a document, only the matter. This article is a document but the webpage or the link carrying it is not a document.
In a nutshell, a paper carrying a written text and a web page carrying a blog, a dongle carrying a podcast are not documents, only the information they are carrying is a document.
3. What can be an electronic document?
As per the illustration (iv) appended to the Section 2(d) an electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.
Emails can be proof of communication between two parties. Voice mails help in verifying the spoken words during a contract or dispute. Whichever the form of data is, if it is stored on a device for the purpose of securing it for future use then it is a document. Device carrying the matter is not a document.
4. What are “facts in issue”?
“Facts in issue” are those facts that are good to focus on by the Court to decide the case. For example, A is accused of theft. This is the case. Whether A has stolen the item? This is a fact in issue.
The various provisions of Bharatiya Sakshya Adhiniyam have been compiled and simplified by by Ms. Priyanka Jain, a Legal Intern at Lawgical Shots. Priyanka is bringing value through legal blogs for our readers.
