Application of the Bharatiya Sakshya Adhiniyam, 2023: Section 1, Judicial Proceedings, Courts, Courts-Martial, Affidavits and Arbitration

Section 1 of the Bharatiya Sakshya Adhiniyam fixes the field within which the entire statute operates. It determines which forums are bound by the rules of relevancy and proof, which are free of them, and from what date those rules took effect. Every question about whether a particular body must follow the law of evidence begins with the language of this section and with the definition of 'Court' in Section 2(1)(a) that it presupposes.

1. The Text of Section 1

Section 1, BSA — Short title, application and commencement

(1) This Adhiniyam may be called the Bharatiya Sakshya Adhiniyam, 2023.

(2) It applies to all judicial proceedings in or before any Court, including Courts-martial, but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

The section performs three distinct functions. Sub-section (1) supplies the short title. Sub-section (2) defines the field of application, positively by reference to judicial proceedings and negatively by two express exclusions. Sub-section (3) leaves commencement to executive notification, and the Ministry of Home Affairs appointed 1 July 2024 as the date on which the Adhiniyam came into force.

1.1 What Section 1 no longer contains

Two elements of Section 1 of the Indian Evidence Act are absent from the Adhiniyam, and each is a change of substance rather than of drafting.

Element	Position under the IEA	Position under the BSA
Extent clause	Section 1 opened with the words 'It extends to the whole of India', and Section 3(j) defined 'India'	No extent clause and no definition of 'India'. Commentators read the omission as removing a textual obstacle to the reception of evidence originating outside the territory
Courts-martial exclusion	The Act applied to Courts-martial other than those convened under the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 and the Air Force Act	The exclusionary words are omitted. The Adhiniyam therefore applies to all Courts-martial, including those convened under the service Acts

2. 'All Judicial Proceedings'

2.1 Meaning of a judicial proceeding

The Adhiniyam does not define the expression. The definition is supplied by Section 2(1)(m) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which by force of Section 2(2) of the Adhiniyam applies to words used but not defined in it.

Section 2(1)(m), BNSS, 2023 — 'Judicial proceeding'

'Judicial proceeding' includes any proceeding in the course of which evidence is or may be legally taken on oath.

The test is therefore functional. A proceeding is judicial if evidence may lawfully be taken on oath in the course of it, irrespective of the label attached to the forum. It follows that the Adhiniyam applies to civil and criminal proceedings alike, and to original, appellate, revisional and execution proceedings, wherever evidence may be recorded.

2.2 Investigation, inquiry and trial

The three stages of a criminal case are treated differently, and the distinction determines the point at which the Adhiniyam begins to operate.

Stage	Definition	Application of the Adhiniyam
Investigation — Section 2(1)(l), BNSS	All proceedings under the Sanhita for the collection of evidence conducted by a police officer, or by a person other than a Magistrate authorised by a Magistrate	Does not apply. Investigation is executive in character. The recording and use of statements to the police is governed by the BNSS, and Section 23 of the Adhiniyam operates only when such a statement is later tendered in court
Inquiry — Section 2(1)(k), BNSS	Every inquiry other than a trial conducted under the Sanhita by a Magistrate or Court	Applies. An inquiry is a judicial proceeding conducted under judicial supervision
Trial	Not defined in the BNSS; the stage commencing on the framing of charge and ending in conviction or acquittal	Applies in full

The practical consequence is that material gathered during investigation is not governed by the rules of relevancy and proof at the time it is gathered. Those rules operate when the material is tendered before the court. A statement recorded by the police, a seizure memo or a forensic report becomes subject to the Adhiniyam only at the stage of proof.

3. 'In or Before Any Court'

Section 2(1)(a), BSA — 'Court'

'Court' includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence.

The definition is inclusive rather than exhaustive, and it is framed by reference to function rather than institutional form. Two elements are decisive: the person must be legally authorised to take evidence, and must not be an arbitrator. A body that satisfies the first condition falls within the definition even if it is not designated a court.

3.1 The distinction between a court and a tribunal

Not every authority that receives evidence is a court. The Supreme Court has developed a settled test, and the decisions below, though rendered in other statutory contexts, supply the criteria.

📖 Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66

Facts: Whether a Commissioner appointed under the Public Servants (Inquiries) Act, 1850 was a 'court' for the purposes of the Contempt of Courts Act, 1926.

Held: A tribunal is a court only if it has power to give a definitive judgment which has finality and authoritativeness, and which is binding as an adjudication of the rights of the parties. A body that merely enquires and reports, its findings being advisory, is not a court.

Ratio: The essential characteristic of a court is the power to render a binding and final determination of rights.

📖 Virindar Kumar Satyawadi v. State of Punjab, AIR 1956 SC 153

Held: In distinguishing a court from a quasi-judicial tribunal, the test is whether the authority has power to determine questions of legal right by the application of legal rules, after hearing evidence and argument, and whether its determination is binding. A body which is required to act judicially in the sense of observing fair procedure does not thereby become a court.

Ratio: The manner of proceeding is not decisive; the nature and effect of the determination is.

📖 Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669

Held: A tribunal exercising judicial power of the State, deciding a lis between parties on evidence and by the application of law, discharges functions of a judicial character. The distinguishing feature of a court in the strict sense is that it forms part of the ordinary hierarchy of courts of civil judicature and is bound by the ordinary rules of procedure and evidence.

Ratio: Bodies exercising judicial power are not necessarily courts within the meaning of the law of evidence.

A tribunal which is not a court within Section 2(1)(a) is nevertheless required to observe the principles of natural justice and to found its conclusions on material of probative value. The obligations are of a different order, but they are not absent.

4. Courts-Martial

Section 1 of the Indian Evidence Act applied the Act to Courts-martial generally, but expressly excluded Courts-martial convened under the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 and the Air Force Act. Those proceedings were governed by the evidentiary provisions of the service legislation and the rules made under it.

Section 1(2) of the Adhiniyam retains the words 'including Courts-martial' but omits the exclusionary words. The Adhiniyam therefore applies to Courts-martial convened under the service Acts as well. This is one of the few instances in which the Adhiniyam has widened, rather than merely restated, the field of application of the law of evidence.

⚠ Interaction with the service legislation

The service Acts and the rules made under them continue to contain their own provisions relating to evidence in Courts-martial. Where a special law makes specific provision, the ordinary rule is that the special law prevails to the extent of inconsistency. The precise interaction between those provisions and the Adhiniyam has not yet been the subject of authoritative decision.

5. Affidavits

5.1 The exclusion

Section 1(2) excludes affidavits presented to any Court or officer. The reason is that an affidavit is a written assertion made out of court and not tested by cross-examination, whereas the architecture of the law of evidence presupposes that testimony is exposed to cross-examination. An affidavit is accordingly not evidence within the meaning of the Adhiniyam, and cannot ordinarily be read as substantive evidence at a trial.

📖 Sudha Devi v. M.P. Narayanan, (1988) 3 SCC 366

Held: Affidavits are not included in the definition of 'evidence' and can be used as evidence only if, for sufficient reason, the court passes an order under Order XIX Rules 1 or 2 of the Code of Civil Procedure. In the absence of such an order, statements on affidavit cannot be relied upon as proof of the facts asserted.

Ratio: An affidavit becomes evidence only by force of an enabling statutory provision or a judicial order, not of its own accord.

📖 Khandesh Spg. & Wvg. Mills Co. Ltd. v. Rashtriya Girni Kamgar Sangh, AIR 1960 SC 571

Held: Where a tribunal relies upon affidavits, the party against whom they are used must be given an opportunity to test the assertions, ordinarily by cross-examination of the deponent. Reliance upon untested affidavits, where the facts are disputed, is contrary to the requirements of a fair hearing.

Ratio: Even where affidavit evidence is permissible, disputed assertions must be capable of being tested.

5.2 Where affidavits are nevertheless received

Order XIX, Code of Civil Procedure, 1908. The court may order that any particular fact be proved by affidavit, and may order the attendance of the deponent for cross-examination where the opposing party bona fide desires his production.
Order XVIII Rule 4, Code of Civil Procedure, 1908. The examination-in-chief of a witness shall be on affidavit, with cross-examination and re-examination taken before the court or a commissioner. Affidavit evidence is thus the ordinary mode of examination-in-chief in civil suits, subject to testing on cross-examination.
Interlocutory and summary proceedings. Applications for injunction, attachment, stay and similar interlocutory relief are ordinarily decided on affidavit, since no final adjudication of rights takes place.
Evidence of a formal character. The criminal procedure legislation permits evidence of a formal character to be given on affidavit, subject to the power of the court to summon the deponent for examination.
Writ proceedings. Proceedings under Articles 32 and 226 of the Constitution are ordinarily conducted on affidavit, disputed questions of fact being generally unsuitable for determination in that jurisdiction.

6. Arbitration

Section 1(2) excludes proceedings before an arbitrator, and the exclusion is reinforced by Section 2(1)(a), which expressly removes arbitrators from the definition of 'Court'. The position is confirmed by the arbitration legislation itself.

Section 19, Arbitration and Conciliation Act, 1996

(1) An arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.

(2) Subject to Part I, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.

(3) Failing any agreement, the arbitral tribunal may conduct the proceedings in the manner it considers appropriate.

(4) The power of the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

The reference in Section 19(1) to the Indian Evidence Act, 1872 is to be read, following the repeal, as a reference to the Bharatiya Sakshya Adhiniyam, 2023, by force of Section 8 of the General Clauses Act, 1897.

The freedom conferred by Section 19 is not unlimited. Section 18 of the Arbitration and Conciliation Act requires that the parties be treated with equality and that each be given a full opportunity to present his case, and an award made in disregard of that requirement is liable to be set aside under Section 34. An arbitral tribunal is therefore free from the technical rules of evidence but not from the obligation to act fairly and to found its award on material of probative value.

7. Bodies Outside the Adhiniyam

Proceeding or body	Position	Source
Affidavits	Excluded by Section 1(2)	Section 1(2), BSA
Arbitration proceedings	Excluded by Section 1(2) and by the definition of 'Court'	Sections 1(2) and 2(1)(a), BSA; Section 19(1), Arbitration and Conciliation Act, 1996
Departmental and domestic enquiries	Not applicable; the principles of natural justice apply and a finding must rest on some legal evidence	Union of India v. T.R. Varma, AIR 1957 SC 882
Disciplinary proceedings before enquiry officers	Not applicable; technical rules do not bind, but a finding cannot rest on no evidence	State of Haryana v. Rattan Singh, (1977) 2 SCC 491
Industrial and labour tribunals	Not bound, but required to observe the principles underlying the law of evidence	Bareilly Electricity Supply Co. Ltd. v. Workmen, (1971) 2 SCC 617
Commissions of Inquiry	Not applicable; the Commissions of Inquiry Act, 1952 supplies its own procedure, and the findings are recommendatory	Commissions of Inquiry Act, 1952
Income-tax, customs and excise adjudication	Not applicable; the adjudicating authority acts under the special statute, subject to natural justice and to the statutory rules on evidence contained in that statute	Special statutes; for customs, Section 138C of the Customs Act, 1962
Revenue and administrative authorities	Not applicable unless legally authorised to take evidence, in which case they fall within Section 2(1)(a)	Section 2(1)(a), BSA
Proceedings under the Family Courts Act, 1984	Section 14 relaxes the application of the law of evidence, permitting receipt of any report, statement or document that in the opinion of the court assists in effectively dealing with the dispute	Section 14, Family Courts Act, 1984

📖 Union of India v. T.R. Varma, AIR 1957 SC 882

Facts: A departmental enquiry against a government servant was challenged for non-compliance with the rules of evidence.

Held: The Evidence Act has no application to enquiries conducted by tribunals or domestic bodies. The principles of natural justice must nevertheless be observed: the party must be permitted to adduce his own evidence and to cross-examine the witnesses against him, and no material may be used against him without an opportunity to explain it.

Ratio: Non-applicability of the law of evidence does not dispense with the obligation of a fair hearing.

📖 State of Haryana v. Rattan Singh, (1977) 2 SCC 491

Held: In a domestic enquiry the strict and sophisticated rules of evidence do not apply, and all material which is logically probative for a prudent mind is permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. A finding cannot, however, rest on suspicion or on no evidence at all.

Ratio: The governing standard is logical probative value, subject to the rule against a finding on no evidence.

📖 Bareilly Electricity Supply Co. Ltd. v. Workmen, (1971) 2 SCC 617

Held: A tribunal not bound by the technical rules of the Evidence Act cannot on that account ignore the basic principles of the law of evidence. A document produced without proof and without an opportunity to test it does not become evidence merely because the tribunal is not bound by the Act; the mere production of a balance sheet does not prove its contents.

Ratio: Freedom from the Act is freedom from technicality, not from the requirement of proof.

8. Commencement and Application to Pending Proceedings

Section 1(3) provides for commencement by notification, and the Ministry of Home Affairs appointed 1 July 2024. Section 170 of the Adhiniyam repeals the Indian Evidence Act, 1872 with effect from that date.

8.1 The governing principles

Procedural statutes operate retrospectively in the sense that they govern proceedings pending on the date of commencement, no litigant having a vested right in a particular mode of procedure.
Section 6 of the General Clauses Act, 1897 preserves, on the repeal of an enactment, any right, privilege, obligation or liability acquired or incurred under it, and any legal proceeding or remedy in respect of such right, unless a different intention appears.
Section 8 of the General Clauses Act, 1897 directs that a reference to a repealed enactment be construed as a reference to the corresponding provision of the re-enacting statute. This is what carries the case law decided under the Indian Evidence Act into the corresponding provisions of the Adhiniyam.
Section 531(2) of the BNSS expressly saves appeals, applications, trials, inquiries and investigations pending on 1 July 2024, which continue under the Code of Criminal Procedure. The Adhiniyam contains no comparable express saving.

8.2 The working position

The approach followed in practice is that the applicable law of evidence is the law in force at the time the evidence is tendered and recorded, and not the law in force when the cause of action arose or the proceeding was instituted. In a trial commenced under the Indian Evidence Act in which evidence continues to be recorded after 1 July 2024, courts have generally applied the Adhiniyam to the recording of that evidence while preserving the validity of everything lawfully done earlier.

In relation to electronic records, High Courts have observed that Section 63 of the Adhiniyam governs proceedings initiated after 1 July 2024, while the framework laid down in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 continues to inform both regimes, Section 63 being a substantial re-enactment of Section 65B.

⚠ The position is not finally settled

There is at present no binding pronouncement of the Supreme Court on the transitional operation of the Adhiniyam as a whole. The position stated above rests on the general principle governing procedural statutes, on Sections 6 and 8 of the General Clauses Act, 1897, on Section 170 of the Adhiniyam, and on the contrast with Section 531(2) of the BNSS.

9. Related Topics and Provisions

Topic or provision	Connection
Object, Scope and Scheme of the BSA, 2023	The four Parts and twelve chapters within which Section 1 sits
BSA 2023 vs Indian Evidence Act, 1872 — Major Changes	The omission of the extent clause and of the Courts-martial exclusion, treated as part of the wider comparison
Section 2(1)(a) and 2(2), BSA	The definition of 'Court' and the incorporation of definitions from the IT Act, 2000 and the BNSS, 2023
Section 2(1)(k), (l) and (m), BNSS, 2023	Inquiry, investigation and judicial proceeding
Section 170, BSA	Repeal and savings
Sections 18, 19 and 34, Arbitration and Conciliation Act, 1996	Procedure before an arbitral tribunal and the consequences of an unfair hearing
Order XVIII Rule 4 and Order XIX, Code of Civil Procedure, 1908	The circumstances in which affidavit evidence is received
Sections 6 and 8, General Clauses Act, 1897	The effect of repeal and the survival of precedent