This article is written by Priyam Pratik, Faculty of Law, University of Allahabad. This article examines the principal ways in which the BSA reshapes legal drafting and litigation practice in India.
Keywords: Bharatiya Sakshya Adhiniyam 2023, Electronic Evidence, Legal Drafting, Litigation Practice, Evidence Law Reform
Introduction
The legal landscape of evidence in India witnessed a foundational transformation when the Bharatiya Sakshya Adhiniyam 2023 (hereinafter “BSA”) received Presidential assent on 25 December 2023 and came into force on 1 July 2024, replacing the Indian Evidence Act 1872.
For legal practitioners, the BSA brings with it substantive changes to the manner in which evidence may be produced, certified, and relied upon in courtrooms across the country. For litigators and drafters alike, the new law demands a recalibration of conventional habits. Pleadings must now anticipate evidentiary thresholds that were not always expressly articulated under the older regime. Written submissions, plaints, and criminal complaints must be structured with an awareness of the freshly consolidated provisions governing electronic records, documentary evidence, and the admissibility of secondary sources.
The Legislative Shift: From the Indian Evidence Act to the BSA
The Indian Evidence Act 1872 was drafted under the direction of Sir James Fitzjames Stephen, serving colonial administrative ends and was not designed to accommodate the evidentiary challenges of a digitised economy. Despite the insertion of Section 65B through the Information Technology Act 2000 and several judicial efforts to adapt its provisions, the statute grew increasingly unwieldy. The Supreme Court in Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal acknowledged the widespread confusion surrounding the certification requirements for electronic evidence and attempted to lay down a definitive interpretation, yet inconsistencies persisted at the trial court level.
The BSA addresses this by consolidating and restating the law of evidence in a single cohesive framework preserving much of the structural architecture of the IEA but rewriting the provisions on electronic evidence calibrated towards contemporary technology.
Electronic Evidence: Drafting And Procedural Implications
Expanded Definition of Document
The BSA has explicitly included electronic records within the statutory definition of “document.” Under the IEA, courts frequently grappled with whether specific digital artefacts such as emails, server logs, and metadata fell within the term. The BSA removes this ambiguity, and drafters of pleadings and applications must now treat electronic records as documents in the primary sense rather than as a secondary or ancillary category requiring special pleading.
Reformulated Admissibility Conditions
The BSA reorganises the law relating to electronic records and their admissibility through a revised statutory framework, replacing the earlier provisions contained in Sections 65A and 65B of the Indian Evidence Act. The BSA replaces this with a custodian certificate mechanism, designed to be more accessible while retaining sufficient safeguards against fabrication.
In Tomaso Bruno v. State of Uttar Pradesh, the Supreme Court highlighted the growing importance of electronic evidence and recognised that modern criminal investigations increasingly rely on technological records such as CCTV footage.
Impact On Civil Legal Drafting
In civil practice, the BSA refines the provisions on admissions and documents that form part of public records. Practitioners drafting contracts and commercial agreements must be alive to the fact that the evidentiary value accorded to various classes of written instruments has been re-examined. The drafting of discovery applications and requests for interrogatories also requires revision. Since the definition of “document” under the BSA encompasses electronic records at the definitional level, an application seeking discovery of “all documents” relevant to a dispute will now prima facie extend to ESI (electronically stored information) unless the application expressly limits its scope. Conversely, an application that intends to secure electronic records must no longer plead them under a separate or exceptional category.
Statements made in documents forming part of public records have also been addressed under Section 39 of the BSA, and draftspersons preparing writ petitions or civil revision applications that seek to rely on government or statutory records must ensure that the record in question falls within the parameters of the provision, particularly where the record is maintained electronically by a public authority.
Case Laws
In Shafhi Mohammad v State of Himachal Pradesh, a coordinate bench had held that the certificate requirement under Section 65B was directory rather than mandatory in cases where the electronic device was in the custody of the accused or a third party beyond the control of the party tendering the evidence. The conflict between Shafhi Mohammad and earlier decisions was resolved by the 3-judges bench in Khotkar, which held the requirement to be mandatory. The BSA’s custodian-certificate mechanism must be read against this backdrop.
State (NCT of Delhi) v Navjot Sandhu addressed the admissibility of mobile phone call records as evidence in a criminal trial. The court held that computer printouts and call records could be admitted as secondary evidence under Section 65 of the IEA even without strict compliance with Section 65B, provided the authenticity of the records could be established by other means. While the Khotkar decision subsequently modified this position, this remains instructive on the judicial approach to the reliability and probative value of electronic records in serious criminal cases.
P. Yuvaprakash v State represented by Inspector of Police, is a more recent decision in which the Supreme Court reiterated that electronic records presented in evidence without proper authentication under Section 65B of the IEA would render the evidence inadmissible. This decision reinforces the importance of pre-trial checklist compliance for litigators operating under the BSA. Counsel must ensure that custodian certificates are obtained and filed before or along with the charge-sheet or plaint to avoid adverse consequences at trial.
Impact On Criminal Litigation and Trial Practice
In criminal proceedings, the BSA introduces important clarifications on the admissibility of evidence before a court. The judge retains the authority to decide preliminary questions of admissibility, and this has direct implications for the way in which defence counsel must frame pre-trial objections. It is now prudent for defence counsel to raise admissibility objections at the stage of charge-framing where the deficiency in the custodian certificate is apparent on the face of the record.
The BSA also interacts closely with the Bharatiya Nagarik Suraksha Sanhita 2023 in the context of trials conducted through audio-visual electronic means. Criminal lawyers must ensure that statements recorded via such means are accompanied by the appropriate documentation confirming the integrity of the recording. Failure to do so could result in the exclusion of the recording or in challenges to its probative value during cross-examination.
Conclusion
The Bharatiya Sakshya Adhiniyam 2023 represents a considered legislative attempt to bring the law of evidence in India into alignment with the demands of a digitally integrated society and a globally informed legal practice.
The most pressing change is in the field of electronic evidence, where the new custodian-certificate mechanism replaces the often-contentious Section 65B regime. Pleadings and applications must be drafted with an awareness of this mechanism from the very outset of a matter. Commercial agreements, government contracts, and private instruments that are stored or transmitted electronically must be treated as documents in the primary sense, and discovery applications must be drafted accordingly.
The BSA also consolidates and clarifies several other areas of the law of evidence that routinely arise in practice, from the relevancy of admissions in joint trials to the proof of public records and the admissibility of expert opinions. Practitioners who engage with these provisions in the spirit of the new statutory framework, guided by the robust body of Supreme Court jurisprudence that preceded the BSA, will be well placed to serve their clients effectively in the evolving landscape of Indian litigation.
Frequently Asked Questions
1. When did the Bharatiya Sakshya Adhiniyam 2023 come into force?
The BSA received Presidential assent on 25 December 2023 and came into force on 1 July 2024, replacing the Indian Evidence Act 1872 in its entirety.
2. What is the key change introduced by the BSA regarding electronic evidence?
The BSA reorganises and modernises the framework governing electronic evidence while continuing to require certification and authentication of electronic records. The objective is to facilitate the admissibility of digital evidence while preserving safeguards against tampering and fabrication.
3. Does the Arjun Panditrao Khotkar judgment still apply under the BSA regime?
While the BSA has superseded the IEA, the principles articulated in Khotkar regarding the mandatory nature of authentication and chain of custody continue to inform the interpretation of the new custodian-certificate requirement.
4. How should civil draftspersons revise discovery applications under the BSA?
Since the BSA’s expanded definition of “document” covers electronic records at the definitional level, discovery applications seeking “all documents” will now prima facie capture electronically stored information. Practitioners should precisely define the scope of discovery sought, specifying whether it extends to electronic records, metadata, server logs, or other digital artefacts.
5. What practical steps should criminal defence counsel take in light of the BSA?
Defence counsel should scrutinise the custodian certificate accompanying electronic evidence at the stage of charge-framing and raise admissibility objections promptly. Where trials are conducted through audio-visual means under the BNSS 2023, counsel must verify that the integrity documentation for recorded statements is in order before those statements are tendered in evidence.
