BSA 2023 vs Indian Evidence Act 1872: Major Changes, Section Mapping and Comparative Analysis

The Bharatiya Sakshya Adhiniyam retains the structure, the doctrine and much of the language of the Indian Evidence Act. The differences between the two statutes are concentrated in four areas: the title and application clause, the definitions, the treatment of electronic and digital records, and the removal of colonial and obsolete provisions. Everything else is renumbering and modernised drafting.

1. Structural Comparison

	Indian Evidence Act, 1872	Bharatiya Sakshya Adhiniyam, 2023
Citation	Act No. 1 of 1872	Act No. 47 of 2023
Assent	15 March 1872	25 December 2023
Commencement	1 September 1872	1 July 2024
Draftsman or origin	Sir James Fitzjames Stephen	Bharatiya Sakshya (Second) Bill, 2023, following Report No. 248 of the Standing Committee on Home Affairs
Sections	167	170
Chapters	11	12
Parts	3 (unnumbered in the enacted text)	4 (expressly designated)
Schedule	None	One — the certificate under Section 63(4)
Preamble or long title	'to consolidate, define and amend the law of Evidence'	'to consolidate and to provide for general rules and principles of evidence for fair trial'

Secondary sources differ on the arithmetic of change. Some record twenty-three sections modified, five repealed and one added; others record twenty-four provisions modified, two new provisions added and six omitted. The variance arises from whether definitions and Explanations are counted as separate provisions. What is not disputed is that the Adhiniyam retains the bulk of the earlier Act, modifies roughly two dozen provisions, omits five, and adds Section 61 together with the Schedule.

2. Title, Preamble and Application

2.1 The long title

The words 'define and amend' have been dropped. The 1872 Act was clearing away eleven fragmentary enactments and establishing a new vocabulary; the Adhiniyam consolidates a body of law that is already coherent. The words 'for fair trial' are new, and no Indian evidence statute had previously placed fair trial in its title. The expression imports the constitutional guarantee of a fair procedure under Article 21 and the protection against testimonial compulsion under Article 20(3) into the interpretive framework of the statute.

2.2 Section 1 — application

Element	IEA, Section 1	BSA, Section 1
Extent	'It extends to the whole of India'; 'India' defined in Section 3(j)	No extent clause; no definition of 'India'
Judicial proceedings	Applies to all judicial proceedings in or before any Court	Unchanged
Courts-martial	Applies 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 applies to all Courts-martial, including those convened under the service Acts
Affidavits	Excluded	Unchanged
Arbitration	Excluded	Unchanged
Commencement	Fixed by the Act itself	Left to notification by the Central Government under Section 1(3)

3. Definitions

The Indian Evidence Act carried its definitions in Section 3, an interpretation clause of long unnumbered paragraphs, with 'may presume', 'shall presume' and 'conclusive proof' placed separately in Section 4. The Adhiniyam consolidates all of them into a lettered Section 2(1)(a) to 2(1)(l), and adds a new Section 2(2).

Section 2(2), BSA — a new provision

Words and expressions used but not defined in the Adhiniyam, but defined in the Information Technology Act, 2000, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Nyaya Sanhita, 2023, shall have the meanings assigned to them in those enactments.

The Indian Evidence Act contained no such incorporating provision. Section 2(2) is what supplies the Adhiniyam with the vocabulary of the digital environment and with the procedural definitions of inquiry, investigation and judicial proceeding.

Definition	IEA	BSA	Change
Court	3, para 1	2(1)(a)	Substantially retained; arbitrators remain excluded
Fact	3, para 2	2(1)(f)	Retained
Facts in issue	3, para 3	2(1)(g)	Retained
Relevant	3, para 4	2(1)(k)	Retained
Document	3, para 5	2(1)(d)	Expanded to include electronic and digital records, with new Illustrations covering e-mails, server logs, files on computers, laptops and smartphones, messages, website content, locational evidence and voice mail messages
Evidence	3, para 6	2(1)(e)	Expanded to include statements given electronically and electronic or digital records
Proved	3, para 7	2(1)(j)	Retained
Disproved	3, para 8	2(1)(c)	Retained
Not proved	3, para 9	2(1)(i)	Retained
India	3(j)	—	Omitted
Conclusive proof	4	2(1)(b)	Relocated into the definitions clause
May presume	4	2(1)(h)	Relocated into the definitions clause
Shall presume	4	2(1)(l)	Relocated into the definitions clause
Incorporation of other statutes	—	2(2)	New

4. Changes in Part II — Relevancy of Facts

Subject	IEA	BSA	Change
Relevancy generally	5	3	Retained
Res gestae	6	4	Retained
Motive, preparation and conduct	8	6	Redrafted into numbered sub-sections; certain expressions of the original, including the reference to the administration of poison in the Illustrations, are not carried forward in the same form
Conspiracy	10	8	Retained
Admissions	17–23	15–21	Renumbered; substance retained
Confession caused by inducement, threat, coercion or promise	24, 28, 29	22	Consolidated and widened. Three sections of the Act are merged into a single section, and the word coercion is added to the grounds of inducement, threat and promise
Confession to a police officer; confession in custody	25, 26	23(1)	Consolidated into one sub-section
Discovery of a fact on information from an accused	27	Proviso to 23(2)	Restructured. What was a free-standing section becomes a proviso, though the substance of the discovery rule is retained
Confession affecting a co-accused in a joint trial	30	24	Explanation added. A trial of more than one person held in the absence of an accused who has absconded or who has failed to comply with a proclamation under Section 84 of the BNSS is deemed to be a joint trial
Dying declaration and statements of persons who cannot be called	32	26	Retained; the eight clauses of the original survive
Judgments when relevant	40–44	34–38	Renumbered
Opinion of experts	45	39(1)	Expanded. The residuary expression 'any other field' is added to the enumerated fields
Opinion of an Examiner of Electronic Evidence	45A	39(2)	Retained and placed in a separate sub-section
Character in civil and criminal cases	52–55	46–50	Renumbered

5. Changes in Part III — On Proof

5.1 Facts which need not be proved

Subject	IEA	BSA	Change
Facts judicially noticeable need not be proved	56	51	Retained
Facts of which the court shall take judicial notice	57	52	Shortened and modernised. The enumerated list is reduced, colonial references are removed, and the list is recast to reflect current constitutional and international arrangements
Facts admitted need not be proved	58	53	Retained

5.2 Oral evidence

Sections 59 and 60 of the Indian Evidence Act become Sections 54 and 55 of the Adhiniyam. The rule that oral evidence must in all cases be direct is retained without material change, as are the provisos relating to the opinion of an expert expressed in a treatise and to the production of material things for the inspection of the court.

5.3 Documentary evidence — the principal reform

Subject	IEA	BSA	Change
Proof of contents of documents	61	56	Retained
Primary evidence	62	57	Substantially expanded. New Explanations deem certain electronic outputs to be primary evidence: where a record is created or stored simultaneously in multiple files, each file is primary evidence; where a record is stored and then copied or transmitted, each copy is primary evidence; and where a record is produced from proper custody, it is primary evidence unless disputed
Secondary evidence	63	58	Expanded. Secondary evidence now expressly includes oral admissions, written admissions, and the evidence of a person who has examined a document consisting of numerous accounts and is skilled in the examination of such documents
Proof of documents by primary evidence	64	59	Retained
Cases in which secondary evidence relating to documents may be given	65	60	Retained
Electronic records not to be denied admissibility	—	61	Wholly new. Admissibility shall not be denied merely because a record is electronic, and such a record shall, subject to Section 63, have the same legal effect, validity and enforceability as any other document
Special provisions as to evidence relating to electronic record	65A	62	Retained in substance
Admissibility of electronic records	65B	63	Restructured. The four conditions are retained, but the certificate under sub-section (4) must now be in the standard form prescribed by the Schedule, requiring disclosure of the hash value in Part A and a declaration signed by an expert in Part B
Proof of signature and handwriting	67	65	Retained
Proof of electronic signature	67A	66	Retained
Public documents	74–78	74–77	Renumbered; colonial references removed
Presumption as to certified copies of foreign judicial records	86	88	Reworded to refer to documents from any country outside India, in place of the reference to the dominions of Great Britain
Presumption as to messages	88, 88A	90	Recast. Section 88 (telegraphic messages) is omitted; Section 88A (electronic messages) is carried forward as Section 90
Presumption as to electronic agreements, records, signatures and certificates	85A to 85C	85 to 87	Retained and renumbered
Presumption as to documents thirty years old	90	92	Retained
Presumption as to electronic records five years old	90A	93	Retained

5.4 Exclusion of oral by documentary evidence

Sections 91 to 100 of the Indian Evidence Act become Sections 94 to 103 of the Adhiniyam. The rule that where the terms of a contract, grant or other disposition of property have been reduced to the form of a document, no evidence may be given in proof of those terms except the document itself, and the six provisos permitting oral evidence of collateral matters, are retained.

6. Changes in Part IV — Production and Effect of Evidence

Subject	IEA	BSA	Change
Burden of proof	101	104	Retained
On whom burden of proof lies	102	105	Retained
Burden of proof as to a particular fact	103	106	Retained
Burden of proving fact especially within knowledge	106	109	Retained
Presumption of death after seven years	107, 108	110, 111	Retained
Burden of proving good faith in a fiduciary relation	111	114	Retained
Presumption as to abetment of suicide by a married woman	113A	117	Retained
Presumption as to dowry death	113B	118	Retained
Court may presume existence of certain facts	114	119	Retained
Presumption as to absence of consent in certain prosecutions	114A	120	Retained
Estoppel	115	121	Retained
Estoppel of tenant and of licensee	116	122	Retained
Estoppel of acceptor of a bill and of bailee	117	123	Retained
Competency of witnesses	118	124	Retained; the expression 'lunatic' is replaced
Witness unable to communicate verbally	119	125	Retained
Privilege relating to judges and magistrates	121	127	Retained
Communications during marriage	122	128	Retained
Professional communications	126	132	Retained
Number of witnesses	134	139	Retained
Order of examination	138	143	Retained
Leading questions	141–143	146	Consolidated. The three sections defining leading questions and stating when they may and may not be asked are merged into a single section with sub-sections
Cross-examination as to previous statements in writing	145	148	Retained
Evidence as to matters in writing	144	147	Retained
Questions in cross-examination of a prosecutrix	146 proviso	149 proviso	Retained
Hostile witness	154	157	Retained
Refreshing memory	159	162	Retained
Judge's power to put questions	165	168	Retained
Power of jury or assessors to put questions	166	—	Omitted
Improper admission or rejection of evidence	167	169	Retained
Repeal and savings	—	170	New

7. Provisions Omitted

IEA provision	Subject matter	Reason
Section 3(j)	Definition of 'India'	Consequential upon the redrafting of Section 1, which contains no extent clause
Section 82	Presumption as to a document admissible in England without proof of seal or signature	Colonial in character; without application in a sovereign republic
Section 88	Presumption as to telegraphic messages	Technologically obsolete. The presumption as to electronic messages, formerly Section 88A, is carried forward as Section 90
Section 113	Proof of cession of territory	A spent provision relating to territories ceded by the British Crown
Section 166	Power of jury or assessors to put questions	Trial by jury was discontinued in India well before the Code of Criminal Procedure, 1973

8. Provisions Added

Section 61 — electronic or digital records not to be denied admissibility. The only wholly new operative section, with no ancestor in the Indian Evidence Act. Its opening words remove the objection that a record is inadmissible merely because it is electronic; the words 'subject to section 63' preserve the certificate requirement where the record is tendered as secondary evidence.
Section 2(2) — incorporation of definitions from the Information Technology Act, 2000, the BNSS and the BNS.
Section 170 — repeal and savings, together with the new Chapter XII in which it sits.
The Schedule — the standard-form certificate under Section 63(4), in two Parts.
The Explanations to Section 57 deeming specified electronic outputs to be primary evidence, and the Explanation to Section 24 on joint trial in the absence of an absconding accused.

Section 61, BSA

Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.

9. The Certificate under Section 63(4) and the Schedule

Section 65B(4) of the Indian Evidence Act required a certificate identifying the electronic record, describing the manner of its production, giving particulars of the device and signed by a person occupying a responsible official position in relation to the operation of the device. The form of the certificate was left to the parties.

	Section 65B(4), IEA	Section 63(4) and the Schedule, BSA
Form	Not prescribed	Standard form prescribed by the Schedule
Signatories	One — a person occupying a responsible official position	Two — the custodian of the device in Part A, and an expert in Part B
Hash value	Not required	Required in Part A
Expert declaration	Not required	Required in Part B
Mandatory character	Held mandatory in Anvar P.V. and Arjun Panditrao	Retained; upheld against constitutional challenge in Pune Bar Assn.

A hash value is a cryptographic digest of a file. Any alteration, however small, produces an entirely different hash, so that disclosure of the hash permits verification at any later stage that the record produced is identical to the record originally seized. Current forensic practice uses algorithms such as SHA-256.

📖 Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473

Held: Electronic records form a special class of evidence. Sections 65A and 65B together constitute a complete code, and compliance with Section 65B(4) is mandatory for the admission of secondary electronic evidence. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, which had permitted proof under Sections 63 and 65 without a certificate, was overruled to that extent.

📖 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

Held: A three-Judge Bench restored and clarified Anvar P.V. The certificate is mandatory where secondary electronic evidence is relied upon, but is not required where the original device is itself produced by its owner. Where a party cannot obtain the certificate because the device is in the control of another, the court may compel its production. Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 was held not to be good law, and Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 was declared per incuriam.

Effect on the BSA: These holdings are reflected in Sections 57 and 63 of the Adhiniyam.

📖 Pune Bar Assn. v. Union of India, 2026 SCC OnLine SC 1297 (decided 22 May 2026)

Held: A three-Judge Bench (Surya Kant, CJI, Joymalya Bagchi and Vipul M. Pancholi, JJ.) upheld the constitutional validity of Section 63(4) and the Schedule against a challenge of manifest arbitrariness. The requirements of hash-value disclosure and expert certification bear a rational nexus with the object of preserving the authenticity and integrity of electronic records. Reading Sections 39(1) and 39(2) harmoniously, the Court held that the expert who signs Part B is not confined to an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000; any person possessing special skill and expertise in computer science or cyber forensics may sign, subject to the satisfaction of the court on unimpeachable material. The contrary view of the Madras High Court in R. v. B. was held not to operate as binding precedent.

10. Terminology

Indian Evidence Act, 1872	Bharatiya Sakshya Adhiniyam, 2023
Vakil, pleader, barrister	Advocate
Lunatic	Person of unsound mind
Parliament of the United Kingdom	Omitted
Her Majesty's dominions; the Crown	Omitted or replaced by neutral expressions
Provincial Act; Provincial Government	Replaced by references to State legislation and State Government
London Gazette	Omitted
Commonwealth	Omitted
Telegraphic message	Electronic message
Jury; assessors	Omitted

11. Assessment

The architecture is unchanged. Stephen's scheme, in which an exhaustive positive list of relevant facts replaces the untidy exclusionary rules of English law, is reproduced without alteration. Relevancy, proof and production remain the three organising ideas.
The reform is concentrated in one chapter. Sections 57, 58, 61 and 63, read with the Schedule, contain almost the whole of what is substantively new. Outside the law of electronic and digital records the Adhiniyam is a restatement.
The decolonisation is partly expressive. The removal of references to England, the Crown and the jury, and the adoption of a Sanskrit-derived title, are real changes but largely symbolic. The rules on custodial confessions, framed on assumptions formed in colonial India, are retained in Section 23 substantially as they stood.
Unaddressed recommendations. The Standing Committee on Home Affairs observed that the Bill contained no provision securing the chain of custody of digital and electronic records collected during investigation. The 69th and 185th Reports of the Law Commission and the Malimath Committee had each engaged with the admissibility of custodial statements, and those recommendations were not taken up.

12. Related Topics and Provisions

Topic or provision	Connection
Introduction to the BSA, 2023	The salient features and the meaning of 'evidence' under Section 2(1)(e)
History and Evolution of the Law of Evidence in India	The reform reports and the judicial line of authority that produced these changes
Application of the BSA — Section 1	The application clause and the omission of the Courts-martial exclusion, treated in detail
Sections 57, 61 and 63 and the Schedule, BSA	The provisions in which the substantive reform is concentrated
Sections 22 to 24, BSA	The consolidated confession provisions and the joint trial Explanation
Section 79A, Information Technology Act, 2000	Examiner of Electronic Evidence, referred to in Section 39(2)
Section 8, General Clauses Act, 1897	Carries IEA precedent into the corresponding provisions of the Adhiniyam