COMPARATIVE STUDY OF BHARTIYA SAKSHYA ADHINIYAM, 2023 AND INDIAN EVIDENCE ACT, 1872

This article has been written by Sanju Jha, pursuing Ba. Llb from Rnb Global University, Bikaner.

Table of Contents Toggle ABSTRACT Bharatiya Sakshya Adhiniyam, 2023, is a path-breaking legislation effecting massive changes in the law of evidence within the country by seeking to update the Indian Evidence Act, 1872, and the preceding Indian Evidence Act to address the challenges of the digital age. This paper undertakes a comparative analysis between the BSA and its predecessor, the Indian Evidence Act, 1872. This article will illustrate how BSA forms a sine qua non in contemporary legal practice by inquiring into the evolution of key definitions, admissibility of electronic evidence, treatment of digital documents, and burden of proof. It brought out how BSA helps in rendering the evidence more relevant and reliable in any legal proceeding before the court and thus makes the judiciary of India much better prepared to deal with the myriad challenges that this rapidly developing cyber world poses.

INTRODUCTION

The Bharatiya Sakshya Adhiniyam, 2023, is a milestone in the history of Indian evidence law. Indian Evidence Act, 1872, backbone to most of the legal proceedings in India for decades, essentially remained of colonial origin and had no concept of any complications that will arise with the advent of modern technology. The BSA, on the other hand, is a law designed to close these loopholes in consideration of the changing challenges presented by digital evidence, while maintaining the core principles of justice and fairness. This paper attempts to do an analysis of the dissimilarity and similarities between the BSA and the IEA, and in what ways the new legislation embodies the present society’s needs.

HISTORICAL BACKGROUND AND PURPOSES

Indian Evidence Act, 1872[1]

Section 1—The Indian Evidence Act, 1872, came into force to unify the law of evidence concerning different laws operating at the material time in most parts of India, which were guided by the government of the British colony. One of the things that the Indian Evidence Act aims at is to provide consistency in the manner through which evidence is admissible in court, and in so doing, consistency in legal procedures. The main objective of the Act was to explain the general principles of proof and rules relating to production and effect of evidence. It applied to all Courts in British India.

Bharatiya Sakshya Adhiniyam, 202[2]3

As the digital age has shown, evidence is dynamic in nature and ceaselessly transforms; hence, to keep a pace with the same, the Bharatiya Sakshya Adhiniyam came into being in the year, 2023. But where IEA had emphasized physical evidence and documents, BSA is an endeavor to introduce a long array of the digital and electronic evidence into the frame of Law. The purpose was to make a revision and update of the Indian system of evidence in general and to fill up lacunae of the IEA with respect to electronic record, digital signature, integrity of data, etc. Such a process of modernizing is really a necessity just so the legal system can be kept abreast of the times—it would be relevant and prescient in a fast-evolving technological environment.

DEFINITIONS AND SCOPE

Definition of “Document”

The Indian Evidence Act, 1872: The term document was defined in Section. 3 and it would mean any matter expressed or described upon any substance by means of letters, figures, or other signs, including recording that matter for the purpose of its being so expressed or described. This probably was good for that old time, but at a point became pretty insufficient with the development of digital technology.

Bharatiya Sakshya Adhiniyam, 2023: The BSA extends the definition of “document” so as to include explicitly electronic- and digital-based records. It is defined under Section 2(d). In view of the modern typology of documents, which has emerged after technological progress, like emails, digital contracts, blockchain record, etc., it becomes imperative that the legal validity of these types of documents should be recognized. This, therefore, brings the legal status of these records at par with traditional paper documents through virtue of being included in this definition, so that the law can be made reactive to the realities of contemporary evidence.

Definition of “Fact”

Evidence, Indian Evidence Act, 1872: Under the IEA, defined under Section 3, a fact is defined as anything, state of things or relation of anything that is capable of being perceived by the senses, including any mental condition which any person is conscious of.

Evidence under Bharatiya Sakshya Adhiniyam, 2023: BSA remains the same as outlined in the definition of “fact” under IEA but is extended to include facts gathered with the help of digital and electronic means. It is defined under Section 2(f). This makes sure that the forms or evidence, such as Metadata and digital footprints, that are created with the help of digital data are also recognized under the law. By doing this, BSA recognizes that the major importance of digital data today is in the process of the law.

All the definition which was previously explained in the interpretation clause, Section 3 of Indian Evidence Act 1872 is now defined under Section 2 of The Bharatiya Sakshya Adhiniyam, 2023 in alphabetical sequence. The definition under BSA, 2023 is defined below:-

2. (1) In this Adhiniyam, unless the context otherwise requires,—
3. “Court” includes all Judges and Magistrates, and all persons, except

arbitrators, legally authorised to take evidence;

1. “conclusive proof” means when one fact is declared by this Adhiniyam to

be conclusive proof of another, the Court shall, on proof of the one fact, regard the

Other as proved, and shall not allow evidence to be given for the purpose of disproving

it;

1. “disproved” in relation to a fact, means when, after considering the matters

before it, the Court either believes that it does not exist, or considers its non-existence

so probable that a prudent man ought, under the circumstances of the particular case,

to act upon the supposition that it does not exist;

1. “document” means any matter expressed or described or otherwise recorded

upon any substance by means of letters, figures or marks or any other means or by

more than one of those means, intended to be used, or which may be used, for the

purpose of recording that matter and includes electronic and digital records.

1. “evidence” means and includes—

(i) all statements including statements given electronically which the

Court permits or requires to be made before it by witnesses in relation to matters

of fact under inquiry and such statements are called oral evidence;

(ii) all documents including electronic or digital records produced for the

inspection of the Court and such documents are called documentary evidence;

1. “fact” means and includes—

(i) anything, state of things, or relation of things, capable of being

perceived by the senses;

(ii) any mental condition of which any person is conscious.

1. “facts in issue” means and includes any fact from which, either by itself or

in connection with other facts, the existence, non-existence, nature or extent of any

right, liability or disability, asserted or denied in any suit or proceeding, necessarily

follows.

1. “may presume”.—When this Adhiniyam provides that the Court

may presume a fact, it may either may treat such fact as proved, unless and until it is

disproved or may call for proof of it;

1. “not proved”.—A fact is said to be not proved when it is neither proved nor

disproved;

1. “proved”.—A fact is said to be proved when, after considering the matters

before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists;

1. “relevant”.—A fact is said to be relevant to another when it is connected with the other in any of the ways referred to in the provisions of this Adhiniyam relating to the relevancy of facts;
2. “shall presume”.—When this Adhiniyam directs that the

Court shall presume a fact, it shall regard such fact as proved, unless and until it is

disproved.

2(2) Words and expressions used herein and not defined but defined in the Information

Whereby being the Technology Act, 2000; Bharatiya Nagarik Suraksha Sanhita, 2023; and the Bharatiya. Unless the context otherwise requires, words and expressions used herein and defined in the Nyaya Sanhita, 2023 shall have the same meanings as assigned to them in the said Act and Sanhitas.

THE PRINCIPLES ON RELEVANCY

Indian Evidence Act, 1872: The IEA provides for the admission of relevant facts connected with the facts in issue. Sections 6 to 9 of the IEA enumerate the various circumstances where facts are held to be relevant—for example, as constituting part of the same transaction or as necessary to explain or introduce relevant facts.

Bharatiya Sakshya Adhiniyam, 2023: The principles on relevancy that are continued from the IEA to the BSA now extend to digital evidence. For example, electronic logs, time-stamps, and other kinds of digital data that pertain directly to the facts in issue are considered relevant. The admissibility of algorithmic evidence and data analytics is also provided, both of which become of increasing importance in a legal context.

ADMISSIBILITY OF ELECTRONIC EVIDENCE

Indian Evidence Act, 1872: In fact, Section 65B was incorporated into the IEA for the admissibility of the electronic record, and it lay down that an electronic record could be admitted as evidence provided it meets some stipulations. However, these requirements under the section, especially that of certificate for authenticating the electronic record, have been found to be too cumbersome and stringent to be fulfilled.

Bharatiya Sakshya Adhiniyam 2023: This act simplifies the shambolic procedure for the admissibility of electronic records by discarding some very strict mandates that are dictated by Section 63. This law allows the use of hash values to determine and confirm the integrity of electronic records. An electronic document is admissible in court without a certificate if it passes some reliability test. This amendment has been proposed with the intention to allow ease in admissibility of evidence in the court, which demonstrates is the objective to update the act with already changing scenario where reliance on digital form of record-keeping has proved its importance and necessity in the modern times.

TREATMENT OF ELECTRONIC AND DIGITAL EVIDENCE

Electronic Records

The Indian Evidence Act, 1872: This act was explicitly not designed to consider electronic records based on the very reason that the Indian Evidence Act was evolved much before the era of the digital world. Section 65B was added to reduce the vacuum, but even the provisions under Section 65B were cumbersome.

Bharatiya Sakshya Adhiniyam, 2023: The BSA richly provides for the treatment of electronic and digital evidence as it constitutes a legal framework by providing clear guidelines on how they shall be admissible. This act treats electronic records such as emails and digital contracts, among others, as important documents and accordingly provides for the handling of such documents with similar scrutiny to traditional evidence. The BSA also emphasizes the chain of custody for digital evidence and draws attention to the need to present and display evidence in a manner in which it still retains its integrity.

Digital Signatures, and Authentication

Indian Evidence Act, 1872: The IEA does not mention anything specifically in relation to digital signatures or authentication of electronic records, as these concepts were not prevalent when the law was enacted. Provisions of a digital signature are included in the Information Technology Act of 2000.

Bharatiya Sakshya Adhiniyam, 2023: The BSA incorporates the recognition and authentication of digital signatures directly into the law of evidence. This inclusion ensures that digitally signed documents are afforded the same legal status as those signed manually. By recognizing digital signatures, the BSA aligns with global practices in electronic commerce and communication, providing a robust legal framework for the verification of electronic documents.

CONFESSIONS AND COERCION

Confessions

Indian Evidence Act, 1872: Evidence Act Section 24 states, “A confession made under any inducement, threat, or promise is irrelevant if it was made in inducement, threat, or promise.” It further directed that it should have been protected that an accused person from those kinds of confessions which did not emanate from his free will.

Bharatiya Sakshya Adhiniyam, 2023: BSA keeps this provision intact but extends the fact by saying that any evidence of confessional statements under coercion will be technologically protected relative to the technological manipulation of digital means, because today, in this present world full of digital ways, any person may be put into some nuances to make them confess something. BSA shall leave these provisions to ensure that no confessional statement under types of exactly noted influence, whether physical or digital, would affect people’s rights in the digital period.

BURDEN OF PROOF AND PRESUMPTIONS

Burden of Proof

Indian Evidence Act, 1872:  the IEA, as indicated herein before clearly lays down general rules relating to the burden of proof, which otherwise rests usually on the party asserting the existence of a fact (Section 101). This principle lies down that the party who makes an assertion has to prove it.

Bharatiya Sakshya Adhiniyam, 2023: The BSA maintains the system of the burden of proof under the IEA but sets out rules in regard to electronic evidence, including the quantum of proof. For instance, the BSA shifts to a person offering the digital documents into evidence the burden to prove that they are authentic. Furthermore, it states that courts shall take notice of an electronic record held by the court as being accurate, thus placing the burden of showing inaccuracy on the opposing party. By doing so, this provision recognizes court records as accurate and the burden of proof is shifted to the party wishing to show inaccuracy in the court’s records.

JUDICIAL NOTICE

Judicial Notice of Facts

The Indian Evidence Act, 1872, Section 57: According to Section 57 of the IEA, the Judges shall take judicial notice of certain facts, whereby the Courts shall take judicial notice of an Act of Parliament, such laws of this country, and the acts of the relevant legislative bodies. Hence, the courts are not enjoined to call for formal proof on the part of the plaintiff when the relevant facts are publicly known and are in the knowledge of everyone.

Bharatiya Sakshya Adhiniyam, 2023, Section 52: The BSA increases the ambit of judicial notice to admit facts that have firmly established in the digital domain, including standards for electronic communications and the recognized practices in cyber-security. The centrality that digital knowledge assumes makes this need particularly imperative in a world in which knowledge about digital material becomes more and more relevant to legal matters at hand. By admitting judicial notice of these facts, the courts would be in a better position to dispose of the proceedings expeditiously and get down to the real issues confronting them.

PRESUMPTIONS REGARDING ELECTRONIC AND DIGITAL EVIDENCE

Presumptions as to the Admissibility of Evidence

The Indian Evidence Act, 1872: The IEA has several presumptions with respect to documents including a presumption of a document over twenty years old is genuine and the burden of proof of showing contrary shifts to the opposing party These were primarily enacted to ensure that the process of law intents to avail of the latitude permitted by such evidence without the necessity for long proof.

The Bharatiya Sakshya Adhiniyam, 2023, has brought a new level of presumptions concerning electronic evidence. For example, this law allows a presumption of an electronic contract’s truthfulness under any legally recognizable electronic means, unless proved otherwise. The act also includes presumptions related to the integrity of block-chain records and other forms of decentralized digital evidence. These presumptions reflect the growing dependence on digital records related to legal and commercial business, outlining a context for one’s admissibility in the court.

CONCLUSION

Similarly, Bharatiya Sakshya Adhiniyam, 2023, is a reflection of the enormous modernization of Indian evidence laws in light of the current challenges posed by the digital revolution. It builds upon fundamental principles laid down by the Indian Evidence Act, 1872, through a system that brings critical reforms for relevancy and reliability of evidence in contemporary legal proceedings. By widening the definitions, simplifying admissibility with respect to electronic evidence, and introduction of new presumptions, the BSA provides robust mechanistic infrastructure to deal with the complexities of modern society.

As India continues to develop, the BSA shall take the lead in reshaping the horizon of its legal landscape to ensure that the law of evidence is robust, relevant, and just. The comparative juxtaposition at the individual level, which can be seen throughout this paper, emphasizes the need for change in the legal framework to ensure that amidst all the rapid changes in the world, the core ideas that propel towards justice are not lost.

References:-

• Indian Evidence Act, 1872.
• Bharatiya Sakshya Adhiniyam, 2023.
• Information Technology Act, 2000.
• Law Commission of India. (2023).
• Report on the Bharatiya Sakshya Adhiniyam, 2023.
• Digital Evidence in Indian Law: An Analysis of the Bharatiya Sakshya Adhiniyam, 2023. Journal of Legal Studies, 48(2), 135-160.

[1] THE INDIAN EVIDENCE ACT, 1872 ACT NO. 1 OF 1872

[2] THE BHARATIYA SAKSHYA ADHINIYAM, 2023 NO. 47 OF 2023