The Bharatiya Sakshya Adhiniyam, 2023
🏛️ The Bharatiya Sakshya Adhiniyam, 2023
(English: The Indian Evidence Act, 2023)
1. Background and Need for the Law
The Bharatiya Sakshya Adhiniyam, 2023 was enacted to replace the Indian Evidence Act, 1872, which was a colonial-era legislation drafted during British rule. After over 150 years, the Indian legal system required a modern law on evidence to meet contemporary needs, including the rise of digital evidence, cybercrime, and modern investigation techniques.
It is part of a trio of criminal law reforms introduced in 2023, alongside:
Bharatiya Nyaya Sanhita, 2023 (replacing IPC, 1860)
Bharatiya Nagarik Suraksha Sanhita, 2023 (replacing CrPC, 1973)
The BSA, 2023 is designed to:
Modernize evidentiary procedures
Emphasize electronic and digital evidence
Promote fairness and efficiency in the justice system
Align with constitutional rights and due process
2. Scope and Structure
The Bharatiya Sakshya Adhiniyam, 2023 contains 170 sections, expanding upon and modifying the original 167 sections of the Indian Evidence Act, 1872.
It retains much of the core structure of the 1872 Act but adds, updates, or rewords several provisions to reflect technological and legal developments.
3. Key Changes and Provisions
🔹 A. Recognition of Electronic and Digital Evidence
The new law explicitly includes digital records, emails, messages, social media content, server logs, GPS data, etc., as admissible evidence.
Section 2 defines “document” to include electronic records, with equal status as physical documents.
The chain of custody for digital evidence is emphasized (important for proving authenticity and integrity).
✅ Example:
A WhatsApp chat used in a fraud case can be admitted in court if authenticated and if the digital chain is properly preserved.
🔹 B. Presumptions Regarding Electronic Records
The Act introduces or reinforces presumptions for electronic evidence:
Emails sent in the ordinary course of business are presumed authentic unless rebutted.
Electronic signatures are presumed valid if generated using a secure system (e.g., digital signatures under IT Act).
Time-stamping and metadata may support the presumption of genuineness.
🔹 C. Expansion of Secondary Evidence Rules
Photocopies, scanned copies, and digital reproductions can now serve as secondary evidence, subject to conditions.
Includes cloud-stored documents, screen recordings, and data from servers.
🔹 D. Modernization of Witness Examination
Allows remote testimony via video conferencing.
Promotes recording of depositions electronically.
Emphasizes protection of vulnerable witnesses (e.g., children, sexual assault survivors).
🔹 E. Gender-Neutral and Plain Language
Removes archaic language and updates the wording to make it gender-neutral and easier to understand.
🔹 F. Repeal of Outdated Provisions
Provisions that were redundant or in conflict with constitutional rights (e.g., certain presumptions based on caste, character) have been removed or amended.
The focus is more on relevance and reliability rather than rigid formalism.
4. Continuities from Indian Evidence Act, 1872
Despite the overhaul, several foundational principles remain unchanged:
Relevance over irrelevance
Direct vs. circumstantial evidence
Burden of proof remains on the prosecution (in criminal cases)
Estoppel, confession, admissions, expert opinion — these are retained with updates
5. Case Law and Legal Interpretations (Applicable by Analogy)
Since BSA, 2023 is very recent, direct case law under the new Act is limited, but courts will continue to rely on precedents from the Indian Evidence Act, 1872, where language and intent remain similar.
🔸 1. State (NCT of Delhi) vs. Navjot Sandhu (2005) – Parliament Attack Case
Held: Electronic records (like call logs, SIM data) are admissible if proper procedure under the IT Act is followed.
Relevance to BSA: Similar provisions in BSA now explicitly codify such electronic records.
🔸 2. Anvar P.V. vs. P.K. Basheer (2014)
Landmark judgment on electronic evidence.
Supreme Court held that Section 65B certificate is mandatory for admissibility of electronic evidence.
BSA, 2023 reaffirms this by continuing similar requirements under updated provisions.
🔸 3. Tomaso Bruno vs. State of UP (2015)
SC emphasized the importance of using scientific and electronic evidence, including CCTV footage.
Under BSA, such evidence is now directly included and better regulated.
🔸 4. Ram Singh vs. Col. Ram Singh (1985)
Test of admissibility: Whether a tape recording was original, relevant, and not tampered.
These principles guide the admissibility of electronic records under the new Act as well.
6. Constitutional Compatibility
The Act is designed to align with the fundamental rights in the Constitution:
| Right | Compliance |
|---|---|
| Article 14 (Equality before law) | Promotes equal treatment by making evidence rules uniform for digital and physical evidence. |
| Article 21 (Right to fair trial) | Emphasizes fair procedures, video testimony, protection of witnesses. |
| Article 20(3) (Right against self-incrimination) | Confessions must be voluntary; no change to protection from forced evidence. |
7. Importance and Impact
| Impact Area | Explanation |
|---|---|
| Judiciary | Speeds up trials, especially in cyber and digital cases. |
| Law Enforcement | Clear procedures for collecting and presenting digital evidence. |
| Common Litigants | Easier access to justice through simplified evidence rules. |
| Business and Contracts | E-signatures and e-documents now have full evidentiary value. |
8. Challenges Ahead
Training and Capacity: Judges, lawyers, and police need to be trained in digital forensics.
Infrastructure: Courts must have adequate facilities for digital document handling and video conferencing.
Privacy and Data Integrity: The law must be carefully interpreted to balance state powers with individual rights.
✅ Summary Table
| Feature | Bharatiya Sakshya Adhiniyam, 2023 |
|---|---|
| Replaces | Indian Evidence Act, 1872 |
| Key Focus | Digital evidence, modernization |
| No. of Sections | 170 |
| Electronic Evidence | Fully recognized with legal presumptions |
| Video Testimony | Permitted |
| Confession Rules | Largely unchanged |
| Case Law Applicable | Based on precedents under the old Evidence Act |
🧠 Final Thoughts
The Bharatiya Sakshya Adhiniyam, 2023 is a progressive and necessary legal reform aimed at bringing India’s evidentiary laws in sync with the digital age. While it retains the backbone of the original 1872 law, it makes substantial improvements in the areas of digital admissibility, witness protection, and procedural fairness.
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