This article is written by Namrata jana, is a 2nd-year law student at Fakir Mohan University, Balasore, Odisha.
Comparing Bharatiya shakshya Adhiniyam, 2023 and Indian Evidence law 1872
The Bharatiya Sakshya Adhiniyam, 2023(BSA) replaces the Indian Evidence Act of 1872(IEA) and it was approved by both the Lok Sabha and Rajya Sabha on December 20 and December 21, 2023, respectively, before receiving presidential assent on December 25, 2023.The key objective of BSA are to modernize , simplify and streamline how evidence is presented and interpreted inside the courts.
Such modern provisions will make judicial system more technology – enabled ,fair and efficient. Compared to the Indian Evidence Act, BSA is simplified, clearer and visibly addresses challenges like cybercrime and vulnerable groups.The Bharatiya Sakshya Adhiniyam is simplified, streamlined and modernized version of evidence rules, which came into existence by replacing the centurie old Indian Evidence Act of 1872. Though the BSA retains many of the provisions of IEA , but in the revised and modernized form.Besides, BSA also inserted certain new points for the ease of judicial trial and make the system more transparent.
Modifications in 23 sections, 5 repealed sections , and 1newly added section gave birth to the NEWLY BSA , 2023.
For understanding, the following terms/ words may be considered to me: Bharatiya = India/ Indian
Sakshya = Evidence
Adhinyam= Act
Sanhita = Code
The administration of justice is the cornerstone of any democratic society, and evidence law forms the bedrock upon which fair adjudication rests . Evidence law dictates how facts are established, what material can be considered in a court of law and how the credibility of witnesses and documents is evaluated. For over ,150 years, the Indian evidence Act 1872 (IEA) , has played this foundation role, providing a comprehensive legal framework for courts to determine the relevance, admissibility and weight of evidence.
Historical Evolution of Evidence Law in India
The Indian Evidence Act, 1872 , was introduced by Lord Macaulay as a part of the British colonial project to codify and systematize Indian law. Before its enactment, courts in India relied on a mixture of English procedural law, local customs, religious codes and judicial discretion, leading to inconsistencies in the administration of justice. The IEA emerged as a pioneering effort to provide a uniform, clear and comprehensive framework for evaluating evidence across civil and criminal cases.
Key features of IEA, 1872
The IEA is structured around several core concepts:
1. Relevance of facts – Facts are admissible if they help prove or disaprove facts in issue. Section 5 to 55 meticulously define various categories of relevant facts, including circumstances, relationship and character.
2. Classification of Evidence – Evidence is categorised into oral , documentary and later electronic forms .The Act also addresses proof by witnesses, experts and confession statements.
3. Standard of Proof – The IEA distinguishes between civil and criminal cases in terms of the burden of proof. Civil claims require preponderance of evidence, while criminal cases demand proof beyond reasonable doubt
4. Presumption and Estoppel – The Act contains Provisions for presumption of certain facts , such as the legitimacy of documents under official seal or signature, streamlining judicial procedures.
Deciphering the Need for the Reform
Back in the year 1871,Sir James Fitzjames Stephen prepared the draft, which was enacted as Act I of 1872 to define, amend and codify the law dealing with evidence in India and it came into being as The Indian Evidence Act, 1872.
However, since then, the human being, society, its functioning and the means of the existence and operation of all elements, have evolved across all dimensions. The ways to commit and trace the crime, have both changed . A lot of legal provisions and legal terms had become irrelevant or were mere connotation of colonial references and hence were no longer needed. There has been continuous growth in technological advancements and even some remarkable leaps in a few places, since 1872.
All of this cumulative paved the reasons for the changes in the evidence law- which were first significantly brought in by the amendment induced by the Information Technology Act , 2000 and now with an entirely new piece of legislation i.e. Bharatiya Sakshya Adhiniyam, 2023(BSA)
Emergence of Bharatiya Sakshya Adhiniyam, 2023
Recognising the limitations of a 150 – year – old statute, the Indian government introduced the Bharatiya Sakshya Adhiniyam,2023. The BSA is a comprehensive update aimed at modernizing evidence law while preserving the core structure of the IEA.
Rational for Reform
1. Technological Revolution – The rise of digital communication, social media, electronic records and Cybercrime necessitated explicit Provisions for the admissibility of digital evidence.
2. Clarity and Accessibility – The archaic language of the IEA often made it difficult for laypersons and even legal professionals to interpret provisions. The BSA introduces simplified, gender – neutral and inclusive language.
3. Procedural Relevance – Courts required updated rules to address procedural challenges such as electronic authentication, chain – of – custody and modern witness protection needs.
Goals of BSA 2023
• Harmonize traditional principles with technological advancements
• Recognize electronic and digital evidence as primary evidence.
• Modernize terminology and remove colonial – era refrences.
• Expand the scope of relevant facts to encompass modern scenarios. • Ensures inclusivity and Accessibility in language and application.
Challenges in the Implementation of Bharatiya Sakshya Adhiniyam
The new law in evidence i. e. Bharatiya Sakshya Adhiniyam may be confronted with certain impediments or challenges in its application and effect-
– Secondary evidence as for electronic evidence and digital records are now supposed to be accompanied by a certificate of an expert as well.
However, the Adhiniyam is silent as to who will be these examiners or experts or their eligibility or qualification for validating the authenticity of the electronic evidence via this certificate. Along with this is the process of examination of authenticity by the examiner and how would the examiner be engaged by the private parties and the question of time and infrastructure to be involved in it.
– Another question that can be considered is – if any electronic evidence or digital records were submitted to the court prior to the enactment of the new law, but either a certificate under Section 65B of the Indian Evidence Act, 1872 was not provided, or the one submitted was defective. Should the
certificate now be allowed at a later stage or the BSA , given that the trial is still ongoing? One of the possible explanation lies with Section 170 where such a situation would fall within the ambit of being a pending trial.
– However, it may still come as a question before the courts to decide, considering the pendency of the certificate itself.
– Another question or point of concern may be the lack of infrastructure and technological know-how , to deal with the electronic evidence and digital with them. Hence, there is an assertive need to update and develop the
infrastructure and human knowledge or resources to align with the changes brought in by the Bharatiya Sakshya Adhiniyam,2023.
Comparative Analysis:IEA 1872 vs BSA 2023
A detailed comparison highlights both continuity and innovation in the BSA :
1. Defination and Terminology
• IEA 1872- Contains outdated terms like “Vakil”, “ Barrister” and reference to the “Crown”
• BSA 2023- Replaces archaic terms with contemporary ones such as “Advocate”, and removes colonial – era refrences, ensuring that the law speaks to modern India. Defination of documents Include digital forms. 2. Digital and Electronic Evidence
• IEA 1872- Electronic records were largely considered secondary evidence, with procedural ambiguities Limiting their admissibility
• BSA 2023 – Digital records , electronic statements, emails, and online transactions are recognized as primary evidence. The law provides guidelines for authentication, digital signature and verification, simplifying Court proceedings.
3. Burden and Admissibility Rules
• IEA 1872- Burden of proof rules were uniform but didn’t adequately address modern digital contexts.
• BSA 2023-Provides clear guidance on the burden of proof for electronic evidence, including metadata and digital signature. Admissibility is more flexible, reflecting contemporary Judicial needs.
4. Language Modernization and Inclusivity
• IEA 1872- Predominantly gendered and colonial in tone.
• BSA 2023- Introduces gender – neutral language, modern examples and culturally neutral terminology. The law is more accessible to citizens and legal practitioners alike.
5. Structural and Procedural Changes
• IEA 1872: Contained 167 sections, organized for the judicial practices of the 19th century.
• BSA 2023: Contains 170 sections, with new chapters on electronic evidence, procedural guidelines for digital records, and handling vulnerable witnesses. Outdated sections have been repealed or consolidated.
6. Repealed or Revised Sections
The BSA omits several sections that were obsolete or redundant. For example, procedural references specific to colonial administration have been removed, and certain Defination have been broadened to accommodate modern legal practices, such as those involving cyber law, electronic contracts and international evidence exchange
The following provisions from IEA have been deleted from BSA :
1. Section 3(j) : India
2. Section 82 : Presumption as to document admissible in England without proof of seal or signature.
3. Section 88 : Presumption as to telegraphic messages.
4. Section 113 : Proof of cession of territory.
5. Section 166 : Power of jury or assessors to put questions.
Impact of BSA2023 on Legal Practice
The BSA has profound implications for s , lawyers and litigants:
1. Handling Digital Evidence – Courts can now treat electronic evidence as primary, streamlining trials in Cybercrime, online fraud and digital contract disputes. 2. Transitional Challenges – Legacy case law under the IEA may need reinterpretation in light of the new Provisions. Lawyers and judges must familiarize themselves with procedural updates to ensure compliance.
3. Enhanced Procedural Clarity – By codifying rules for authentication, chail of custody , and electronic record handling, the BSA reduces ambiguity in trial proceedings.
4. Inclusive legal Framework – Modern language, gender – neutral terminology and broader definition ensure that the law is accessible and equitable.
Case Scenarios and Practical Examples
To illustrate the significance of the BSA:
1. Digital Contract Disputes – Under the IEA , proving the authenticity of an email or digital agreement might have required extensive secondary evidence. The BSA allows the same email, property verified, to serve as primary evidence.
2. Social Media Evidence in Criminal cases – Previously , social media messages could be contested for authenticity.BSA provides guidelines for digital verification, ensuring admissibility while maintaining fairness.
3. Cybercrime Investigations: Metadata, logs, and electronic trials can now be admitted with procedural clarity, strengthening the prosecution and safeguarding judicial efficiency
Conclusion
The evolution from the Indian Evidence Act, 1872, to the Bharatiya Sakshya Adhiniyam, 2023, represents a significant milestone in India’s legal history.
Society and human functioning have evolved with time and technology and hence the Evidence law needed an update to synchronize itself with these changes and technological advancement . However, adaptation to the new law, its process and the machinery included with its functioning will take its own time and is bound to be confronted with certain glitches. The courts have to be conscious of maintaining a balance between the Evidence via the new technological shifts and the concerns of data privacy. Adding to it, the courts have to stringent ly observe that the authenticity of the electronic and digital evidence is maintained and is not compromised by any means, as technology is prone to glitches and tampering.
Frequent Asked Questions
What does the BSA replace?
Answer: The BSA, 2023 replaces the Indian Evidence Act, 1872 to modernise rules of evidence, especially for electronic and digital proof.
Why was the Indian Evidence Act replaced?
Answer: Because the IEA was colonial-era legislation and did not adequately address modern technological advancements like electronic records, digital signatures, and cyber evidence
What is the main difference in the definition of “Evidence”?
Answer:IEA: Evidence included oral and documentary evidence.
BSA: Includes oral, documentary, and electronic evidence explicitly, making digital records central to the definition.
How does BSA treat electronic evidence differently?
Answer:BSA provides clearer rules for admissibility, requiring an Electronic Record Integrity Certificate and recognizing electronic records as primary evidence.
Is the structure of BSA different from IEA?
Answer:Yes.
IEA: 167 sections.
BSA: 170 sections (renumbered, reorganized, and modernized).
What is the change in confessions?
Answer:Confessions to police remain inadmissible, but BSA expands safeguards and clarity on confessions before Magistrates and electronic recording of confessions.
How is secondary evidence treated differently?
Answer:The BSA enlarges the scope of secondary evidence, especially for digital backups and electronic reproductions, unlike the IEA which focused on paper-based records.
How is the change in the classification of documents?
Answer:BSA explicitly includes electronic and digital documents; IEA only implied them indirectly under documentary evidence.
Does BSA introduce new presumptions?
Answer:Yes.
It introduces presumptions for electronic communications, electronic agreements, and digital signature authenticity.
What remains the same between BSA and IEA?
Answer:Basic principles such as relevancy of facts, burden of proof, admissibility rules, res gestae, expert opinion, and the nature of primary/secondary evidence remain fundamentally unchanged.
Has the BSA changed the rules of estoppel?
Answer:No major changes. The concept and application of estoppel remain similar to the IEA 13. What is a notable addition in BSA regarding digital evidence?
Answer:The BSA explicitly recognises meta-data, logs, and digital timestamps as valid evidence.
Has BSA changed the rules of expert evidence?
Answer:Expert categories now include digital forensics experts, which were not explicitly mentioned under the IE
Does BSA change the admissibility of dying declarations?
Answer:No substantive change; dying declarations remain admissible. BSA clarifies that electronic dying declarations are valid.
How are statements of persons who cannot be called as witnesses treated?
Answer:Provisions are similar, but BSA modernises language and includes digital statements where applicable.
What is the approach of BSA towards police-recorded statements?
Answer:The prohibition on admissibility remains, but BSA ensures additional safeguards relating to digital audio-video recording.
Why is BSA considered future-ready?
Answer:Because it integrates digital evidence, anticipates cyber-crimes, and aligns with global standards of electronic evidence.
Is the content of both Acts mostly similar?
Answer:Yes. Over 80% of the content is similar, but the BSA reorganises and updates terminology, especially around technology.
What is the overall comparative conclusion?
Answer:The IEA provided a strong foundation but was outdated. The BSA retains core principles but modernises structure, language, and admissibility rules to address digital-era challenges.evidence, especially for electronic and digital proof.
