The Bharatiya Sakshya Adhiniyam 2023, hereinafter referred to as the Act, has been enacted to replace the Indian Evidence Act (IEA) 1872, one of the British-era criminal laws. The Bharatiya Sakshya Bill, 2023 was first introduced in the Lok Sabha on August 11, 2023. It was then assessed by the Standing Committee on Home Affairs, which gave its recommendations. So, the bill was withdrawn, and a new bill, named the Bharatiya Sakshya (Second) Bill (BSB2), 2023 was introduced after integrating those recommendations. Most provisions of the IEA have been retained in the BSB2, such as the provisions related to confessions, burden of proof, and relevance of facts. This bill got approved from the Lok Sabha on December 20, 2023 and from the Rajya Sabha on December 21, 2023. Finally, the bill became an act after receiving the presidential assent on December 25, 2023.
The Indian Evidence Act, 1872
The Indian Evidence Act, 1872 had been passed by the British Parliament to administer the evidence and its acceptability in Indian courts. The repealed act was applicable to all civil and criminal proceedings. With time, various amendments were made to the IEA to make it comply with criminal reforms and technological advancements. For instance, in the year 2000, the IEA was amended to allow the use of electronic records as secondary evidence in criminal cases. Besides, the Law Commission kept on analysing the IEA at regular intervals, giving recommendations on different matters, including cross-examination, custodial violence, and admissibility of police confessions.
Some Retained Provisions of the IEA
Some provisions of the IEA that have been retained in the Bharatiya Sakshya Act, 2023 are as follows:
- Acceptable evidence Only acceptable evidence can be presented by the parties concerned in a legal proceeding. Such evidence may include ‘relevant facts’ or ‘facts in issue’. Relevant facts refer to the facts related to a given case, while facts in issue include the facts that define the nature, existence, or extent of any liability, right or disability denied or claimed in a legal proceeding. As per the IEA, there are two types of evidence, i.e., documentary and oral evidence.
Types of Documentary Evidence
The IEA states that documentary evidence consists of primary and secondary evidence. Primary evidence encompasses the original document and its components, i.e., video recordings and electronic records. Secondary evidence includes documents and oral accounts, using which the contents of the original can be proven.
- A proven fact Depending on the evidence presented, a fact is regarded as proven if the court believes that
- it exists and
- its existence is probable just like a wise man who believes that it exists under normal circumstances.
- Confessions to police If confessions are made to a police officer, they are unacceptable as per the IEA. Even those confessions are unacceptable that are made in the police custody. But if such confessions are noted down by a Magistrate, they are allowed. Besides, if some information, given by an accused in the police custody, reveals a fact, that information may be considered acceptable if the fact and the information are closely interrelated.
Major Recommendations Suggested
- Oral evidence As per the IEA, oral evidence refers to the statements given by witnesses related to the inquiry in the courts. According to this act, oral evidence given via electronic means is allowed. Owing to this, accused persons, witnesses, and victims can be testified electronically.
- Documentary evidence As per the IEA, maps, written texts, and caricatures are regarded as documents. This act states that documents will also include electronic records. Documentary evidence encompasses electronic information that is either printed or stored in optical or magnetic media, which can be later produced by a computer. As per this act, electronic or digital records and paper records will be considered legal. It adds that electronic records may encompass any information recorded in a smartphone, laptop or semiconductor memory as well as the information stored in emails, voice mails, server logs, and locational evidence.
- Secondary evidence This act adds the following provisions to the secondary evidence: (i) both written and oral admissions and (ii) the evidence of a person who has been trained to analyse the documents and who has analysed them.
- Joint trial It is the trial of two or more individuals for the same offence. As per the IEA, if a confession made by one of the accused is proven and applies to other accused individuals as well, such a confession would be applicable against all the accused. This act adds that if an accused flees away or does not respond to an arrest warrant in case of a trial of multiple persons, this will be considered as a joint trial.
Issues and Critical Analysis
- The acceptability of information from the accused in custody As per this act, any information received from the accused while he is in police custody will be acceptable. But if he is outside, such information would not be considered acceptable. As per the recommendation of the Law Commission, this provision must be re-drafted so that the relevancy of such information can be ensured, regardless of the fact whether it was obtained inside or outside the police custody.
- Unincorporated Law Commission’s recommendations This act does not incorporate certain recommendations made by the Law Commission even though they are significant. For instance, holding the police responsible for the injuries in case the accused is injured while in the police custody.
- Tampering of electronic records As per the Supreme Court, electronic records are likely to be tampered with. The court recommended that such records must be handled carefully via a proper chain of custody. Nevertheless, as per this act, such records will be deemed acceptable, with no adequate safeguards to ensure the authenticity and integrity of electronic records at the time of search or seizure. So, contamination and tampering of such records can be easily done during the investigation.
- Ambiguity caused due to acceptability of electronic records As per the IEA, electronic records will be acceptable as documents only if they are accompanied by an authentication certificate. This act has retained this provision while simultaneously classifying electronic records as documents that may not require any certification. This causes ambiguity.
- Provability of information received in the police custody using coercion As per the IEA, information may be proven if received from an accused in the police custody. This act has retained this provision. However, it is observed by the court and committees that such information may be obtained by coercion in the police custody, in the absence of any proper safeguards.
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