THE DISTINCTION BETWEEN BHARATIYA SAKSHYA ADHINIYAM 2023 AND THE INDIAN EVIDENCE ACT 1872

INTRODUCTION

To meet the needs of modern society, the Indian Parliament recently replaced decades-old colonial, archaic, outdated, and outmoded criminal laws (namely the Indian Penal Code, 1860; the Indian Evidence Act, 1872; and the Code of Criminal Law, 1973) with recent, modernistic,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. The new criminal laws are known as

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

The government mentioned eliminating the colonial era and bringing Indianness as the rationale for replacing old laws with new ones. As a result, certain changes have been implemented. The purpose of this article is to present to the readers the changes brought about by the Bharatiya Sakshya Adhiniyam (Bharatiya Sakshya Sanhita 2023 )or the difference between the new and old Indian Evidence Act, and the reason for those changes.

WHY WAS THE BSA PASSED? WHY WAS BHARATIYA SAKSHYA ACT, 2023 REQUIRED?

The BSA, also known as the new Evidence Act 2023, was enacted for the following reasons:

Technological requirements: The world we live in now is far more advanced, modern, technological, and scientific. It cannot afford to be ruled by laws and enactments drafted prior to the centuries. E-courts have mostly supplanted traditional courts in recent years. Furthermore, everything is documented, from the filing of the case to the presentation of evidence. As a result, the Evidence Act has to be updated to reflect these technical advancements. Section 61 BSA, for example, only acknowledges electronic records and proof.

Removing colonial provisions: The Indian Act of 1872 included many colonial provisions, such as the presumption of genuineness of certain documents 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 intends to repeal all colonial provisions.

Combination and addition of specific provisions: The BSA intends to combine several similar clauses. For example, instead of dealing with confession in separate sections of the IEA (Sections 24-30), this has now been consolidated into only two or three provisions.

Changes needed by changes in the IPC and CRPC: The IEA, 1872, contains parts that make reference to the provisions of the IPC and CRPC. And, because these Acts have been replaced by other Acts, adjustments to the BSA are also required in order to maintain compliance and harmony in the provisions of the three new criminal laws.

List of Modifications

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-
3. Section 28: Confession made after removal of threat, inducement, or promise
4. 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.

• 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.

• 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.
• 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
• 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.
• 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.
• 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.
• 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.
• 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
• 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.
• Section 113 of the IEA, which gave conclusive proof regarding the cessation of certain territories to native states, has been removed from the BSA.
• 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.

These were the list of changes that were brought by the Bharatiya Sakshya Adhiniyam 2023. Readers are advised to refer to the Bharatiya Sakshya Adhiniyam 2023 Pdf (Bharatiya Sakshya Sanhita 2023 pdf) so as to properly notice the changed section numbers.

CONCLUSION

Though the BSA intends to replace the current Indian Evidence Act, it is important to note that the modifications are modest and no major changes have occurred. If one has a clear grasp of the IEA, 1872, the BSA appears to be an exact clone of the same, with some necessary alterations. Furthermore, any legislation made by the court or judge under the Evidence Act, especially the court’s decisions, shall remain unchanged and are equally applicable to the BSA.