This article is written by Jashleen, 3rd year student of Chandigarh University.
Comparative analysis of Bhartiya Sakshya Adhiniyam vs The Indian Evidence Act 1872
If we look into the meaning of evidence, it simply means the state of being evident or proof or an act or someone doing or not doing something
However, in law, evidence plays a crucial role during the proceedings. Every argument needs to be supported by evidence; otherwise, the argument would be baseless. In India, every day, different evidence is presented during the court proceedings and this evidence is governed by The Evidence Act 1872, which later got transformed into the BHARTIYA SAKSHYA ADHINIYAM,2023.
In India, the evidence law is an important component of the Indian judicial system to ensure that the evidence and proof presented during the court proceedings are genuine and true to their nature. As time evolves, the dynamics and degree of crimes also evolve, and hence call for the evolution of these laws 2023 marks the watershed year when the 151-year-old landmark legislation of the Indian Evidence Act was replaced by the newly enacted Bhartiya Sakshya Adhiniyam 2023, which came into force from July 1, 2023. This was the major step towards the initiative of modernising the Indian judicial system. The transformation was driven by the technological advancements in Indian society and the need to align the legal framework as per modern-day challenges and to reflect India’s independent legal sovereignty.
Through this article, we will critically analyse Bhartiya Sakshiya adhiniyam, 2023 and the Indian Evidence Act, 1872 and the new add-ons in the newly enacted legislation. And the way it aligns with the contemporary world.
INTRODUCTION
Before this act came into existence, there already existed laws that were different for the locals and the Europeans. The Indians were governed by the vernacular laws and norms, whereas the Europeans were governed by the English common law. But in the presidential towns, they implemented common law for everyone. This created an issue of non-uniformity in colonial India.
he Indian Evidence Act of 1872 has distinctly colonial origins, enacted by the British government to standardise and codify the scattered laws of evidence across British India, primarily drawing on English legal principles.
FORMATION OF THE INDIAN EVIDENCE ACT 1872
The eminent Jurist, Sir James Fitzjames Stephen, was allowed to frame evidence laws for India based on English law. He presented the draft for the same in 1871, which was reviewed by the Governor-General’s council, high courts and various other legal reformers before presenting it before the legislature on March 15, 1872, which came into force from September 1, 1872. Sir James Fitzjames Stephen is known as the “founding father” of evidence law in India.
Before this act, there was no uniformity in the legal system; the presidency towns followed the English common law, whereas the courts outside these towns were governed as per the local laws and norms of that particular area. This led to a lot of chaos and confusion for the British officers; hence, the main purpose of enacting this act was to maintain uniformity throughout India and to set up a proper procedure for court trials that were basically lacking in the Indian judicial system of the colonial era. And also tried to establish a rational principle and framework regarding the admissibility and weight of various evidence, ensuring speedy trials.
NEED FOR THE NEW ACT
The Bhartiya Sakshya Adhiniyam,2023, was introduced to replace the old age, colonial-centred evidence laws in India, and to align these laws with the contemporary legal system. It was introduced while keeping in mind the technological advancements, the use of electronic modes of communication and evidence as a step towards modernizing the Indian legal system. Another reason is to consolidate various amendments that were made in the criminal laws over time into a single consolidated framework. This act also aims to remove ambiguity while approaching and handling primary and secondary evidence.
FORMULATION OF THE BHARTIYA SAKSHYA ADHINIYAM 2023
Various reports by the Law Commission reviewed the Indian Evidence Act and suggested changes in the same from 1983 to 2003. Another report was submitted by the National Law University, Delhi, in February 2022, which was the first step towards the introduction of Bhatrtiya Sakshya Adhiniyam, 2023., The act was introduced in Lok Sabha along with two other bills on August 11, 2023 and on the same day was referred to the Standing Committee of Home Affairs for its suggestions. in December 2023, the bill was reintroduced in the Lok Sabha after incorporating the suggestions made by the committee. The bill got its assent from the president on December 23, 2023, finally becoming Bhartiya Sakshya Adhiniyam (Act 47 of 2023). This came into force on July 1, 2024.
KEY STRUCTURE AND CONCEPTUAL CHANGES
The introduction of new criminal laws shows the inclination of the Indian legal system towards modernisation, simplification and a victim-centric approach. Another change is a shift from British colonial-centric language to simpler and more modern language to make the law understandable for everyone.
Now the word “evidence includes electronic evidence as well. The word “Her Majesty’s Dominion” is replaced by a more specific term, i.e India
The BSA, 2023 is consolidated in a better way, having 4 parts12 chapters and 170 sections, than the earlier composition of 3 parts, 11 chapters and 167 sections, consolidating fragmented provisions into a more comprehensive and organised way. Some sections are even renumbered and reorganised, keeping the core principle intact.
Sections are renumbered and reorganised in a way to keep the logical flow of the document, and to maintain internal referencing. The similar provisions that were scattered in the Indian Evidence Act, 1872, are now kept together to maintain the flow of the act. This is to ensure that the act is well structured to align with the modern structure while keeping the old law legacy alive.
COMPARATIVE ANALYSIS
Admissibility of electronic evidence
The Indian Evidence Act, 1872, had limited powers under section 65B with respect to the electronic documents, and they were also treated as a secondary form of evidence and also required a strict procedure while dealing with them.
However, the BSA, 2023 created a fresh framework for the admissibility of the electronic documents under section 63, requiring strict expert verification and scrutiny, and electronic documents are also included under the definition of document in this act. The electronic evidences, like audio, video and e-documents, are described as primary evidence.
Confessions and Admissions
The Indian Evidence Act excluded words like threat, fraud, coercion, which have become the grounds for inadmissibility under the BSA, 2023, protecting the accused. This is to protect the standards of voluntary confessions and to ensure fair trials and uphold the principle of “innocent until proven guilty”.
Expert opinion
The BSA 2023 has broadened the power and scope of expert opinion beyond the limits of technical fields, making it helpful during court proceedings. Under the BSA, 2023, the scope of corroborative evidence has become more logical and statement-related, and it cannot be based solely on hearsay, thereby broadening the approach to corroborative evidence.
Omissions and Additions
The BSA 2023 has expanded the scope of the document, including electronic documents and considers the electronic evidence as primary evidence
The BSA reformed the colonial-centric terms like “her majesty’s dominion” and “lunatic” to simpler terms like “India” and the latter to “a person of unsound mind”.
The BSA has also consolidated scattered sections covering similar topics into an organised form in a proper logical flow to maintain the momentum of the act
The BSA has also increased the section from 167 to 170, showcasing expansion and refinement
CRITICAL ANALYSIS
The BSA 2023 aims to modernise the year-old British-centric laws with the new technological, simpler and contemporary laws, strengthening the digital transformation that took place over time. Replacing the colonial changes and the addition of new terms like coercion and preventing custodial injustice. It also aims at strengthening the scope of expert opinion and corroborative evidence, and the admissibility of electronic evidence with proper certifications.
Completely changing the years-old laws that were still in force has somehow affected the ongoing cases, especially in the resource-affected poor areas, and it also affects the ambiguity of the case and creates confusion among the legal advisors, advocates, and the common people. It also hampers the privacy concerns in this digital era. Bharatiya Sakshiya Adhiniyam has broadened the scope of the Indian Evidence Act of 1872. The core principles of both acts remain the same, requiring judicial adaptation for full effectiveness
CONCLUSION
The Bhartiya Sakshya Adhiniyam aims to modernise the framework established by the year-old landmark legislation of the Indian Evidence Act by incorporating the concept of digital evidence with respect to its laws and the Bhartiya Nyaya Sanhita. This has also increased the scope of evidence, expert opinion, efficient judicial proceedings, and protected the principle of the presumption of truth. However, while doing all this, it poses a threat to data privacy, and challenges remain in judicial interpretation. Overall, BSA represents a progressive step towards modernising the Indian legal system.
FAQs
How does the definition of evidence differ in BSA, 2023?
The definition of the evidence in BSA is much more wider than that in the IEA, 1872 by including electronically given statement as a form of oral evidence, recognizing digital records as documentary evidences and much more.
What were the core principles of IEA,1872? Are they still the same in Bhartiya Sakshiya Adhiniyamn, 2023?
The core principle of IEA, 1872, is the admissibility and relevance of evidence, the oral and documentary evidence and the “readmissibility of police confessions” and the principle of “innocent until proven guilty” remain the same in the newly enacted Bhartiya Sakshiya Adhiniyam, 2023. The BSA 2023 modernises the already existing laws in order to fit in the contemporary legal system.
Who initially suggested the reforms in the Indian Criminal Laws?
Reforms were not initiated by a single committee. Various committees suggested the reforms. The law commission of 1958 was the first one to suggest, followed by the National Police Commission 1977-1988, the Vohra committee 1993, Justice VS Malimath Committee 2003and lastly by Madhav Menon Committee in 2007.
Which committee was set up to reform the Indian Evidence Act 1872
The Malimath Committee, Justice Verma Panel, and Ranbir Singh Committee were formed in the year 2003, 2013, and 2020 to bring reforms in the criminal laws in Indian. Their suggestions were clubbed together, which took the form of Bhartiya Nyaya Sanhita, Bhartiya Sakshiya Adhiniyam, Bhartiya Nagarik Suraksha Sanhita, 2023.
Are there any new terms added in the BSA,2023?
The term “coercion” and few other terms related to digital records has been newly added in the BSA, 2023.
References:
- Comprehensive amendments to criminal laws by PIB (https://www.pib.gov.in/PressReleasePage.aspx?PRID=2001862)
- Evolution of evidence law in India by iPleaders (https://blog.ipleaders.in/indian-evidence-act-1872-an-exhaustive-overview/ )
- The book Bhartiya Sakshiya Adhiniyam by Ratanlal & Dheerajlal
