B S A - 2023

This is the third part of our series on criminal law reforms. The first
two parts can be found (Bharatiya Nyaya Sanhita, 2023 replacing the
Indian Penal Code, 1860) and (Bharatiya Nagarik Suraksha Sanhita, 2023
replacing the Criminal Procedure Code, 1973).

The Bharatiya Sakshya Adhinyam, 2023 (“BSA”) repeals and

replaces the Indian Evidence Act, 1872 (“IEA”). The Bharatiya Sakshya
Bill, 2023) was introduced in the Lok Sabha on 11 August 2023. Pursuant
to the recommendations of the Standing Committee on Home Affairs,
Rajya Sabha (“Standing Committee”), the Bharatiya Sakshya (Second)
Bill, 2023 was introduced on 12 December 2023 in the Lok Sabha. The
revised bill was passed by the Lok Sabha and the Rajya Sabha on 20
December 2023 and 21 December 2023 respectively. It received
presidential assent on 25 December 2023. The BSA is yet to be notified
and come into force. The BSA retains most of the provisions of the IEA,
flavoured with validity of electronic evidence.

KEY CHANGES INTRODUCED IN THE BSA

Removal of colonial and archaic terms

 References to colonial terms such as ‘Parliament of the United

Kingdom’, ‘Provincial Act’, ‘London Gazette’, ‘Commonwealth’,
‘Privy Council’, ‘Queen’s Printer’, ‘Her Majesty’, colonial
proclamations and orders1 have been removed. Archaic terms like
‘vakil’, ‘pleader’, ‘barrister’ have been replaced with
‘advocate’.2 Terms like ‘lunatic’ have also been replaced with
more sensitive terminologies, like ‘person of unsound kind’

Territorial Application of the BSA

 Earlier, Section 1 of the IEA stipulated that the IEA applied to the
whole of India. Section 1 of the BSA does not contain such a
provision. This is presumably to enable admissibility of digital
evidence generated outside India.

Addition of Section 2(2) of the BSA

 Section 2(2) of the BSA is a new provision which states that

words and expressions used herein and not defined but defined
in the Information Technology Act, 2000, Bharatiya Nagarik
Suraksha Sanhita, 2023 (“BNSS”) (replacing the Code of Criminal
Procedure, 1973) and Bharatiya Nyaya Sanhita, 2023 (replacing
the Indian Penal Code, 1860) shall have the same meanings as
assigned to them in the said Act and Sanhita.

Application to Courts-martial
  Section 1 of the IEA clarified that the IEA does not apply to
courts-martial convened under the Army Act, the Naval Discipline
Act or the Indian Navy (Disciple) Act or the Air Force Act. Section
1(2) of the BSA omits the words “convened under the Army Act,
the Naval Discipline Act or the Indian Navy (Disciple) Act or the
Air Force Act”. Thus, the BSA now applies to courts-martial
convened under the Army Act, the Naval Discipline Act or the
Indian Navy (Disciple) Act or the Air Force Act.

Changes related to electronic and digital records

 Definition of “document” now includes electronic and digital

records – Section 2(1)(d) of the BSA 4, while retaining the earlier
definition of “document”, adds “electronic and digital records”
within its ambit. To illustrate this addition, the BSA adds an
illustration “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.”

To qualify as a “document” or “documentary evidence” under the

BSA, now it is not necessary that a matter be expressed or described upon
any substance by means of letters, figures or marks only. Any matter
which is “otherwise recorded” upon any substance “by any other means”
will also qualify as a document. Thus, video recordings on mobile phones
may also qualify as “documentary evidence”. Electronic or digital form of
Official Gazette is also admissible as evidence.
 Definition of “evidence” now includes information given
through electronic means – Section 2(1)(e) of the BSA6 includes
statements given electronically by witnesses are to be treated as
evidence as well as oral evidence. Similarly, electronic and digital
records are also included within the definition of documentary
evidence. The BSA attempts to provide feasible solutions for issues
related to physical presence in courts for oral evidence such as
availability of witnesses, travel and related expenses. With the
increasing relevance of technology, the BSA recognises the validity
of information provided electronically. Reference may be drawn to
Section 530 of the BNSS which provides for examination of
witnesses and complainant in criminal proceedings in electronic
mode, by use of electronic communication or use of audio-video
electronic means.

 Electronic or digital form of law books now relevant – Section

32 of the BSA7 now deems electronic or digital forms of law books
purporting to be printed or published under the authority of the
Government of such country and to contain any such law, and any
report of a ruling of the Courts of such country contained in a book
including in electronic or digital form purporting to be a report of
such rulings the law of which the Court has to form an opinion on,
relevant.
 Primary evidence now includes certain electronic and digital
records –Section 57 of the BSA8 specifically includes the following
electronic and digital records as primary evidence

1. Where an electronic or digital record is created or stored, and

such storage occurs simultaneously or sequentially in multiple
files, each such file is primary evidence. (Explanation 4 to
Section 57, BSA)

2. Where an electronic or digital record is produced from proper

custody, such electronic and digital record is primary evidence
unless it is disputed. (Explanation 5 to Section 57, BSA)

3. Where a video recording is simultaneously stored in electronic

form and transmitted or broadcast or transferred to another,
each of the stored recordings is primary evidence.
(Explanation 6 to Section 57, BSA)

4. Where an electronic or digital record is stored in multiple

storage spaces in a computer resource, each such automated
storage, including temporary files, is primary evidence.
(Explanation 7 to Section 57, BSA)

 Admissibility of electronic evidence – The BSA introduces parity

in validity and admissibility of electronic and digital records as
evidence. Section 61 of the BSA provides that electronic or digital
records shall have the same legal effect, validity and enforceability
as other document.9 Section 62 of the BSA10 states that the contents
of electronic records may be proved in accordance with Section 63
of the BSA.

1. Section 63 of the BSA now includes electronic records copied

in semiconductor memory in addition to optical or magnetic
media as provided in the IEA.

2. It also enlarges the ambit of the provision by covering

electronic records produced by any communication device or
otherwise stored, recorded or copied in any electronic form
(and not only a computer, as was the case in the IEA). Thus,
the scope of devices through which electronic or digital
records can be sourced as evidence has been enlarged.

3. Further, Section 63(3) of the BSA now states that “Where over
any period, the function of creating, storing or processing
information for the purposes of any activity regularly carried
on over that period as mentioned in clause (a) of sub-section
(2) was regularly performed by means of one or more
computers or communication device, whether

(a) in standalone mode; or

(b) on a computer system; or

 (c) on a computer network; or

(d) on a computer resource enabling information creation or

providing
information processing and storage; or

(e) through an intermediary,

all the computers or communication devices used for that purpose

during that period shall be treated for the purposes of this section as
constituting a single computer or communication device; and
references in this section to a computer or communication device shall
be construed accordingly.”
4. Section 63(4) of the BSA now provides a specified format for a
certificate to be submitted along with electronic evidence at each
instance it submitted for admission. Earlier, this was done simply by
filing an affidavit. The format of the certificate is appended as a
Schedule to the BSA. This format will bring in certainty and make
the process simpler and user-friendly

5. Earlier, Section 65B of the IEA required “a person occupying

a responsible official position in relation to the operation of the
relevant device or the management of the relevant activities
(whichever is appropriate)” to sign the certificate. Now, Section 63
of the BSA requires a “person in charge of the computer or
communication device or the management of the relevant activities
(whichever is appropriate) and an expert” to sign the certificate.

 Electronic and Digital Signature – Sections 85 (which speaks

about electronic agreements affixed with electronic signatures of
parties) and 86 of the BSA (which speaks about electronic records
and electronic signatures)13 now include digital signatures in
addition to ‘electronic signature’.

Other key changes

 Facts in issue – Previously, Section 6 of the IEA stated that facts

which, though not in issue, but which are so connected with a
fact in issue as to form part of the same transaction are relevant.
Section 4 of the BSA, in addition, states that facts though not in
issue are connected with a relevant fact as to form part of the
same transaction, are relevant.

 Addition of “coercion” to disqualify a confession from

being relevant – Earlier, Section 24 of the IEA included
elements of inducement, threat or promise to deem a confession
irrelevant in a criminal proceeding. Section 22 of the
BSA,14 retains these elements, and adds the element of coercion
to render the confession irrelevant in a criminal proceeding.

 Joint trial where the accused has absconded or fails to

comply with a proclamation issued under the BNSS –
 Section 24 of the BSA, while retaining the text of Section 30 of
the IEA, its corresponding provision on joint trials, adds an
explanation which states that a trial of more than one person
held in the absence of the accused who (a) has absconded; or (b)
fails to comply with a proclamation issued under Section 84 of
the BNSS, shall be deemed to be a joint trial.

 Experts – Section 39 of the BSA 15 enlarges the fields an expert

may give his/her opinion on by adding “or any other field” to
“foreign law, science or art” as provided under Section 45 of the
IEA, such that they are considered relevant facts.

 Judicial notice – Section 52(1)(a) of the BSA states that the

Court shall take judicial notice of all laws in force in the territory
of India, including laws having extra-territorial operation. This
provision was absent in the corresponding provision in the IEA.
Section 57 of the IEA simply referred to “all laws in force in the
territory of India”. Section 52(1)(b) of the BSA states that the
Court shall take judicial notice of international treaty, agreement
or convention with country or countries by India, or decisions
made by India at international association or other bodies, and
seals of Tribunals in additions to seals of courts.

 Secondary evidence – Section 58 of the BSA16 adds 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, and who is skilled in the
examination of such documents, as being secondary evidence.

Earlier, “oral admissions as to the contents of a document” were

permissible where: (1) a party can show that he is entitled to give
secondary evidence under Section 65 of the IEA; (2) the genuineness of a
document is under challenge.18 Similarly, a “written admission” was
admissible “when the existence, condition or contents of the original have
been proved to be admitted in writing by the person against whom it is
proved or by his representative in interest”.19 None of these were
categorized as secondary evidence under Section 63 of the IEA. Now, the
inclusion of oral and written admissions in Section 63 of the BSA has
addressed categorically that they are deemed as secondary evidence. The
qualifiers of when oral and written admissions are admissible are still
retained.
 Proper Custody – Section 80 of the BSA21 states that “The Court
shall presume the genuineness of every document purporting to be
the 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, if such document is kept substantially in the
form required by law and is produced from proper custody.”

Section 81 of the IEA did not specify what “proper custody” meant.
An Explanation added to Section 80 of the BSA does precisely that. It
clarifies that for the purposes of Sections 80 and 92 (Presumption as to
documents thirty years old) of the BSA, a document is said to be in proper
custody if it is in the place in which, and looked after by the person with
whom such document is required to be kept; but no custody is improper if
it is proved to have had a legitimate origin, or if the circumstances of the
particular case are such as to render that origin improbable.
This definition of “proper custody” won’t be applicable to
Explanation 5 to Section 57 of the BSA, presumably leaving it to the courts
to decide what it shall mean in the context of the Section 57, BSA.

 Accomplice – Under the IEA, there was a conflict between

illustration (b) of Section 114 which read – “that an accomplice is
unworthy of credit, unless he is corroborated in material
particulars”, and Section 133, which read – “An accomplice shall
be a competent witness against an accused person; and a
conviction is not illegal merely because it proceeds upon
the uncorroborated testimony of an accomplice.”

Thus, while Section 133 of the IEA made admissible the uncorroborated
testimony of an accomplice, illustration (b), Section 114 of the IEA
deemed it unworthy of credit unless corroborated with material
particulars.

This conflict is resolved in the BSA. Section 138 of the BSA 23 now reads
as “An accomplice shall be a competent witness against an accused
person and a conviction is not illegal if it proceeds upon
the corroborated testimony of anaccomplice.”23
The BSA primarily seeks to broaden the IEA and address the
admissibility of digital evidence to keep pace with the contemporary
world. The Standing Committee while terming such changes as “forward
looking” had, however, expressed concern about the possibility of
tampering of electronic evidence when being channeled through the
proper chain of custody during the course of investigation. 25 This is
especially so in light of Section 57, Explanation 5 of the BSA which states
that where an electronic or digital record is produced from proper custody,
such electronic and digital record is primary evidence unless it is disputed.
The Standing Committee recommended adding suitable safeguards in the
BNSS to ensure authenticity and genuineness of such electronic or digital
records in the BNSS. Except these modifications, most changes made by
the BSA do not seem to be very substantial. Changes made by the BSA
are in consonance with those made by the BNS and BNSS and will
complement each other. These changes will accelerate the trial process
resulting in speedy justice dispensation.