DIFFERENCE BETWEEN BHARTIYA SAKSHYA ADHINIYAM AND INDIAN EVIDENCE ACT

INTRODUCTION

Recently, the Indian Government has replaced the decades-old colonial, archaic, outdated, and outmoded criminal laws (namely the Indian Penal Code, 1860; the Indian Evidence Act, 1872; and the Code of Criminal Law, 1973) with recent, modernistic, and contemporary laws so as to meet the needs of contemporary society. The new criminal laws have been named as

• Indian Evidence Act : Bhartiya Sakshaya Adhiniyam (BSA)
• Code of Criminal Procedure: Bhartiya Nagrik Suraksha Sanhita (BNSS)
• Indian Penal Code: Bhartiya Nyaya Sanhita (BNS)

The reason cited by the government to replace the existing laws with the new ones was to eradicate the colonial era and bring Indianness. And accordingly, certain changes have been incorporated. The present article aims to present before the readers the changes that have been brought about by the Bhartiya Sakshya Adhiniyam, or difference between the new and old Indian Evidence Act, and the purpose of bringing about those changes.

WHY HAS BSA BEEN ENACTED? WHY THERE WAS A NEED FOR NEW INDIAN EVIDENCE ACT, 2023?

It is because of the following reasons that the BSA, or the new Evidence Act 2023, has been enacted:

1.Technological requirements: Today’s world is much more advanced, modern, technological, and scientific. It can’t afford to be governed by the laws and enactments that were drafted before the centuries. Today, contemporary courts have been replaced with e-courts. Additionally, from the filing of the case to the presentation of evidence, everything is done online. Therefore, the Evidence Act needed to be amended so as to incorporate these technological changes. For example, Section 61 BSA exclusively recognizes electronic records and evidence.
2.Removing colonial provisions: IEA 1872 included many colonial provisions, like the presumption of genuineness of certain documents that is admissible in England without proof or a seal of signature and the Indian Courts were required to take judicial notice of every Act passed by the British Parliament. The BSA aims to remove all these colonial provisions.
3.Merger and addition of certain provisions: The BSA aims to merge certain provisions of the same kind. For example, instead of dealing with confession under the different sections of the IEA (Sections 24–30), now these have been merged into only two or three provisions.
4.Removal of non-functional provisions: There are certain provisions under the IEA that have become completely non-functional, like Section 113 and Section 166 of the IEA, and the BSA removes these provisions.
5.Changes necessitated on account of changes in IPC and CRPC: The IEA, 1872, contains certain sections wherein reference has been made to the provisions of IPC and CRPC. And since these Acts have been replaced by new Acts, the changes are also required to be made in the BSA so that there remains conformity and harmony in the provisions of the three new criminal bills.
 
List of Changes
1.Change in the definition of evidence Evidence has been defined under Section 2(e) of the BSA. It now explicitly includes statements given electronically as well as documents, including electronic or digital records.
2.Rearrangement of Confessions Provisions: The confession given under Section 24 of the IEA has now been mentioned under Section 22 and the other provisions under the IEA, namely-
1.Section 28: Confession made after removal of threat, inducement, or promise
2.Section 29: Confession otherwise relevant not to become irrelevant because of a promise of secrecy, etc.
These provisions have been added as a proviso to Section 22.
3.Merger of confession provisions under Sections 25, 26, and 27: BSS defines confession under Section 23 and other provisions related to confessions under the IEA, namely-
Section 25: Confession to a Police Officer Not to Be Proved
Section 26: Confession not in police custody not to be proved unless made in the immediate presence of a magistrate
Section 27: How much information received from the accused may be proved
All these provisions have been merged under Section 23 itself.
4.Expert opinion under Section 45 of the IEA now stands modified to specify that the opinion of the examiner of electronic evidence as per Section 79A of the IT Act shall be a relevant fact for information stored digitally. It now stands as Section 39.
5.Deletion of certain facts of which the courts in India shall take judicial notice Section 57 of the IEA has been modified, and now the courts in India are not required to take judicial notice of the following facts:
All public acts to be passed by the Parliament of the United Kingdom
The Course of the Proceedings of the United Kingdom
The accession and signing manual of the sovereign of, for the time being, the United Kingdom of Great Britain and Ireland
All seals of which English courts shall take judicial notice
6.Explanations added to the definition of primary evidence: The earlier definition of primary evidence under Section 61 of the IEA had three explanations; now four more explanations have been added to the definition of primary evidence so as to include recognition of digital and electronic records.
7.Addition of new Section 61 to give explicit recognition to electronic and digital records: The new provision under the BSA makes it clear that no evidence shall be invalid merely on the ground that it has been given in electronic and digital form and would have the same legal enforceability and validity as if it had been otherwise given in an offline manner.
8.Merging of definitions of public and private documents: Now under the BSA, public and private documents have been defined under the same section, which is Section 74.
9.Deletion of the proof of certain documents from Section 78 IEA: The documents that consist of orders and notification of the crown representative, printed by the order of the crown representative, proclamations or orders by her majesty, copies or extracts contained in the London Gazette, or printed by the queen’s printer have been deleted from the BSA.
10.Deletion of certain presumptions under Section 81
Genuineness of any document from the London Gazette
Genuineness of any document of any colony or dependency of the British Crown
 
11.Deletion of Section 82 of the IEA: Section 82 of the IEA talks about certain presumptions as to the genuineness of any document that is admissible in England without proof or a seal of signature. Now it stands deleted.
12.Section 113 of the IEA, which gave conclusive proof regarding the cessation of certain territories to native states, has been removed from the BSA.
13.Removal of Section 166 of the IEA-Section 116, which mentioned the power of the jury and accessors to put questions to the witness directly, has been removed.

CONCLUSION

Though the BSA seeks to replace the present-day Indian Evidence Act, one must notice that changes are subtle and no major changes have been brought about. If one has an earlier clear understanding of the IEA, 1872, the BSA would seem like an exact replica of the same with some required modifications. Additionally, all the laws the court or judge made under the Evidence Act, namely the court’s decisions, shall remain the same and are equally applicable to the BSA.