This law note provides an overview of the Bharatiya Sakshya Adhiniyam, a transformative legislation introduced in 2023 to amend the Indian Evidence Act of 1872. It outlines key provisions, salient features, and notable changes, as well as highlighting criticisms and the need for careful implementation. The legislative initiative is presented as a landmark step toward aligning the Indian legal system with contemporary needs and technological advancements.
- Introduction
- Transformative Legislation Introduced by Union Home Minister Amit Shah in 2023
- Brief History of the Bharatiya Sakshya Bill, 2023 (BSB) to the Bharatiya Sakshya Adhiniyam, 2023 (BSA)
- Structure of Bharatiya Sakshya Adhiniyam, 2023
- Salient Features / Key Changes / Key Amendments in Bharatiya Sakshya Adhiniyam, 2023
- Criticism
- Conclusion
Introduction
The Indian Evidence Act of 1872, enacted to consolidate laws related to evidence for court proceedings, has been a foundational element in the Indian legal system. However, the evolving landscape of Indian democracy, marked by seven decades of experience, necessitates a thorough reevaluation of criminal laws, including the Indian Evidence Act, aligning them with contemporary needs and societal aspirations.
Recognizing the inadequacies of the existing law to address technological advancements, the proposed legislation, “Bharatiya Sakshya Adhiniyam,” introduces significant amendments.
Noteworthy provisions include:
- Incorporating electronically given information in the definition of evidence.
- Granting electronic or digital records the same legal standing as paper records.
- Expanding the scope of secondary evidence to accommodate modern processes.
- Imposing limits on admissible facts with precise and uniform rules for court practices.
This legislative initiative reflects a forward-looking approach to ensure the efficacy and relevance of evidence laws in the digital age.
Transformative Legislation Introduced by Union Home Minister Amit Shah in 2023
Union Home Minister Amit Shah presented three crucial bills in Parliament on August 11, 2023, signalling a transformative overhaul of India’s criminal justice system. These bills, namely the Bharatiya Nyaya Sanhita Bill, 2023; the Bharatiya Sakshya Bill, 2023; and the Bharatiya Nagrik Suraksha Sanhita Bill, 2023, aim to replace the antiquated British-era Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act.
The proposed changes, meticulously crafted by the Committee for Reforms in Criminal Laws under the Ministry of Home Affairs, target offences related to terrorism, crimes against women, corruption in elections, and acts against the state.
These bills were introduced during the last day of the monsoon session, designed to usher in a paradigm shift, ensuring expeditious justice, bolstering evidence integrity for higher conviction rates, and reducing case pendency. The bills were then forwarded to the Parliamentary Standing Committee for further deliberations, reflecting a commitment to thorough examination and scrutiny.
Brief History of the Bharatiya Sakshya Bill, 2023 (BSB) to the Bharatiya Sakshya Adhiniyam, 2023 (BSA)
The Bharatiya Sakshya Bill, 2023 (BSB) underwent a legislative process, starting with its introduction in August 2023, withdrawal in December 2023, and subsequent replacement by the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which was passed in both houses and received presidential assent on December 25, 2023, aiming to consolidate rules and principles of evidence for fair trial, thereby repealing the Indian Evidence Act, 1872. Here are three small tables presenting these facts.
The Bharatiya Sakshya Bill, 2023 (BSB)
| Topic | Date |
|---|---|
| Introduced in Lok Sabha (House of People) | August 11, 2023 |
| Referred to Standing Committee | August 11, 2023 |
| Report of Standing Committee | November 10, 2023 |
| Withdrawn | December 12, 2023 |
The Bharatiya Sakshya (Second) Bill, 2023
| Topic | Date |
|---|---|
| Introduced in Lok Sabha (House of People) | December 12, 2023 |
| Passed in Lok Sabha | December 20, 2023 |
| Passed in Rajya Sabha | December 21, 2023 |
| Received Assent of President Droupadi Murmu | December 25, 2023 |
The Bharatiya Sakshya Adhiniyam, 2023
| Act Name/ Short Title | The Bharatiya Sakshya Adhiniyam, 2023 |
| Long Title | An Act to consolidate and to provide for general rules and principles of evidence for fair trial. |
| Act No. | 47 |
| Act Year | 2023 |
| Enactment Date | December 25, 2023 |
| Ministry | Ministry of Law and Justice |
| Department | Legislative |
| Enforcement Date | 1 July 2024 |
| Repealed Act | The Indian Evidence Act, 1872 (1 of 1872) |
Structure of Bharatiya Sakshya Adhiniyam, 2023
Total Sections: 170
Total Parts: 4
- Part 1: Preliminary (Sections 1 to 2)
- Part 2: Relevancy (Sections 3 to 50)
- Part 3: On Proof (Sections 51 to 103)
- Part 4: Production and Effect of Evidence (Sections 104 to 170)
Total Chapters: 12
- Chapter 1: Preliminary (Sections 1 to 2)
- Chapter 2: Relevancy of Facts (Sections 3 to 50)
- Chapter 3: Facts Which Need Not Be Proved (Sections 51 to 53)
- Chapter 4: Oral Evidence (Sections 54 to 55)
- Chapter 5: Documentary Evidence (Sections 56 to 93)
- Chapter 6: Exclusion of Oral Evidence By Documentary Evidence (Sections 94 to 103)
- Chapter 7: Burden of Proof (Sections 104 to 120)
- Chapter 8: Estoppel (Sections 121 to 123)
- Chapter 9: Witnesses (Sections 124 to 139)
- Chapter 10: Examination of Witnesses (Sections 140 to 168)
- Chapter 11: Improper Admission and Rejection of Evidence (Section 169)
- Chapter 12: Repeal and Savings (Section 170)
Total Schedule: 1
Salient Features / Key Changes / Key Amendments in Bharatiya Sakshya Adhiniyam, 2023
The new Act introduces significant amendments, including updates to existing sections and marking a comprehensive overhaul of evidence rules in alignment with contemporary legal requirements. Here are the salient features of Bharatiya Sakshya Adhiniyam, 2023:
1. Section Count Increase
The new legislation will comprise 170 sections, marking an increase from the previous 167 sections of the Indian Evidence Act, 1872.
2. Section Updates
Notably, 23 sections from the existing law (The Indian Evidence Act, 1872) will undergo updates, reflecting a comprehensive revision to align with contemporary legal needs.
3. Addition of New Section
The Bharatiya Sakshya Adniniyam introduces a new section, emphasizing the dynamic nature of the legal framework and the need for specificity in certain areas.
4. Section Deletions
Five sections have been removed from the old law (The Indian Evidence Act, 1872), streamlining the legal content and potentially eliminating obsolete or redundant provisions.
5. Removal of Specific Terms
The new law omits certain terms such as “Her Majesty Queen,” “Parliament of UK,” “London Gazette,” “Commonwealth,” “Court of Justice in England,” and “British Crown,” signalling a departure from references that may no longer be relevant.
6. Documentary Evidence
Under the Indian Evidence Act (IEA), documents include writing, maps, and caricatures. The Bharatiya Sakshya Adhiniyam (BSA) expands this definition to include electronic records. Documentary evidence is classified into primary and secondary evidence, where primary evidence involves original documents, including electronic records and video recordings. Secondary evidence encompasses documents and oral accounts proving the contents of the original, a classification retained by the BSA.
7. Oral Evidence
While the Indian Evidence Act confines oral evidence to statements made before courts, the Bharatiya Sakshya Adhiniyam of 2023 introduces the possibility of giving oral evidence electronically. This innovation allows witnesses, accused persons, and victims to testify electronically.
8. Admissibility of Electronic or Digital Records
Documentary evidence, according to the Bharatiya Sakshya Adhiniyam, now includes information in electronic records stored in various media, expanding to semiconductor memory and communication devices like smartphones and laptops. The Bharatiya Sakshya Adhiniyam asserts that electronic or digital records will hold the same legal weight as paper records, encompassing emails, server logs, locational evidence, and voice mails.
9. Expansion of Secondary Evidence
The Bharatiya Sakshya Adhiniyam broadens secondary evidence to include oral and written admissions and testimony from a person skilled in document examination. Additionally, it specifies that secondary evidence may be required not only when the original is inaccessible or destroyed but also when the genuineness of the document is in question.
10. Joint Trials
Addressing joint trials, the Bharatiya Sakshya Adhiniyam clarifies the treatment of a trial involving multiple persons when an accused has absconded or not responded to an arrest warrant. It explains that such a situation will be considered a joint trial, clarifying the Indian Evidence Act’s provisions on confessions affecting multiple accused parties.
Criticism
While the Bharatiya Sakshya Adhiniyam, 2023, reflects a commendable effort to modernize the Indian Evidence Act of 1872 and adapt it to contemporary needs, a few aspects warrant critical consideration. Here are four such examples.
1. Rapid Legislative Process
The introduction, passage, and enactment of the legislation within a short timeframe may raise concerns about the thoroughness of the deliberative process. This significant overhaul requires comprehensive scrutiny and stakeholder input to ensure well-informed decisions.
2. Lack of Public Consultation
The absence of extensive public consultations or open discussions on the proposed changes raises questions about the inclusivity of the legislative process. Public input is crucial for laws that profoundly impact society and justice systems.
3. Rapid Technological Integration
While acknowledging the need to incorporate electronic evidence, the pace of technological integration in legal proceedings should be managed cautiously to avoid potential challenges related to access, security, and understanding for all stakeholders.
4. Paradigm Shift Impact
The ambitious goal of bringing about a paradigm shift in the justice system, though laudable, necessitates careful implementation and monitoring to gauge its impact on expeditious justice, evidence integrity, and case pendency.
Conclusion
The Bharatiya Sakshya Adhiniyam, 2023, emerges as a landmark legislation, steering the Indian legal system into the digital age with comprehensive amendments to the Indian Evidence Act of 1872.
The new Act, enacted on December 25, 2023, not only increases section count but also signifies a meticulous process of updates, deletions, and additions, aiming to align the legal framework with contemporary needs.
The removal of specific terms and the embrace of electronic evidence underscore the legislature’s recognition of technological advancements.
Salient features, such as expanding secondary evidence and clarifications on joint trials, reflect a commitment to precision and fairness in legal proceedings. This legislative initiative encapsulates a forward-looking approach, emphasizing the adaptability of the legal system to societal and technological transformations for a fair and effective administration of justice.
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