Understanding The Bharatiya Sakshya Act, 2023

Overview: The Bharatiya Sakshya Act, 2023 (BSA) takes over the role of the Indian Evidence Act, 1872 (IEA) and maintains the majority of its provisions, encompassing matters like confessions, the relevance of facts, and the burden of proof.

The IEA recognizes two types of evidence: documentary and oral. Documentary evidence is further divided into primary (original documents) and secondary (evidence that validates the contents of the original). The BSA preserves this distinction and expands it to incorporate electronic records within the definition of documents.

While the IEA classifies electronic records as secondary evidence, the BSA reclassifies them as primary evidence. Additionally, it broadens the scope of such records to encompass information stored in semiconductor memory or any communication devices, such as smartphones and laptops.

Under the IEA, secondary evidence may be necessitated under various circumstances, such as when the original document is in the possession of the person against whom the document is intended to be proven or if it has been destroyed. The BSA introduces an additional condition where secondary evidence may be required when there are doubts regarding the genuineness of the document itself.

Key Concerns and Analysis

Several critical issues and observations arise from the Bharatiya Sakshya Act, 2023 (BSA):

1. Lack of Safeguards for Electronic Records: While the BSA addresses the admissibility of electronic records, it does not establish safeguards to prevent tampering or contamination of such records during the investigation process. This omission raises concerns about the integrity and authenticity of electronic evidence.

2. Contradictory Provisions on Electronic Evidence: The BSA retains provisions for the admissibility of electronic records, including the requirement for authentication certificates. However, it also classifies electronic evidence as documents, potentially creating a contradiction in the treatment of electronic records.

3. Admissibility of Statements from Accused in Police Custody: The BSA maintains the provision that allows facts discovered due to information received from an accused in police custody to be provable. Concerns have been raised regarding the potential coercion and lack of safeguards when obtaining such information during police custody.

4. Distinction Between Police Custody and Custody Outside: The IEA (and consequently the BSA) allows information obtained from an accused in police custody to be admissible, but not if the accused was outside custody. This distinction has been criticized, and the Law Commission recommended its removal.

5. Non-Incorporation of Law Commission Recommendations: The Law Commission has put forth several recommendations, some of which have not been incorporated into the BSA. These recommendations include the presumption that a police officer caused injuries if an accused was injured in police custody.

These concerns and observations underscore the need for further examination and deliberation to ensure that the BSA aligns with principles of fairness, reliability, and transparency in the handling of electronic evidence and information obtained during police custody.

Key Features

The Bharatiya Sakshya Act, 2023 (BSA) primarily upholds the core provisions of the Indian Evidence Act, 1872 (IEA), including:

1. Admissible Evidence: Legal proceedings allow only admissible evidence to be presented. Admissible evidence is categorized into "facts in issue," which determine the rights, liabilities, or disabilities claimed or denied, and "relevant facts" pertinent to a case. The IEA recognizes two types of evidence: documentary and oral.

2. Proved Facts: A fact is considered proven when the Court, based on the evidence presented, believes it either exists or that its existence is highly likely, given the circumstances of the case.

3. Police Confessions: Any confession made to a police officer is inadmissible, and confessions made in police custody are also inadmissible unless recorded by a Magistrate. However, information obtained from an accused in custody that leads to the discovery of a related fact may be admitted if it distinctly relates to the fact discovered.

Key Changes Proposed in the BSA Include:

1. Documentary Evidence: The BSA extends the definition of documents to encompass electronic records alongside traditional forms like writing, maps, and caricatures. Documentary evidence comprises primary evidence, which includes original documents and their electronic counterparts, and secondary evidence, which encompasses documents and oral accounts that can substantiate the contents of the original.
2. Oral Evidence: While the IEA defines oral evidence as statements made before Courts by witnesses in relation to a fact under inquiry, the BSA allows oral evidence to be given electronically, enabling witnesses, accused persons, and victims to testify through electronic means.
3. Admissibility of Electronic or Digital Records as Evidence: The BSA enhances the scope of electronic records by stating that they will have the same legal standing as paper records. Additionally, it expands electronic records to include data stored in semiconductor memory or any communication devices such as smartphones and laptops, covering records like emails, server logs, locational evidence, and voice mails.
4. Secondary Evidence: Secondary evidence is broadened by the BSA to include oral and written admissions and the testimony of a person skilled in examining documents. Furthermore, it stipulates that secondary evidence may be required not only when the original is in the possession of the opposing party or has been destroyed but also when the genuineness of the document itself is in question.
5. Joint Trials: In the context of joint trials involving multiple accused, the BSA introduces an explanation, specifying that trials where an accused has absconded or not responded to an arrest warrant will be treated as joint trials.

Key Issues and Analysis (Part B):

The main issue revolves around the admissibility of electronic records as evidence. The IEA classifies documentary evidence into primary and secondary evidence, with secondary evidence being admissible under certain conditions. The BSA introduces electronic records into the definition of documents, making them subject to the same rules.

Furthermore, the BSA clarifies that electronic records from proper custody are considered primary evidence unless contested. It also expands the scope of electronic records to include information stored in semiconductor memory or smartphones, encompassing various digital records like emails, location data, and voice messages. This expansion raises questions about the authentication and admissibility of electronic evidence in legal proceedings.

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