Bharatiya Sakshya Adhiniyam, 2023 (BSA): Introduction, Meaning, Salient Features and BSA vs Indian Evidence Act, 1872

On 1 July 2024 the Indian Evidence Act, 1872 stood repealed and was replaced by the Bharatiya Sakshya Adhiniyam, 2023. The Adhiniyam governs what may be proved in an Indian court, how it must be proved, and upon whom the burden of proof rests. It retains the greater part of the 1872 Act in substance while renumbering its provisions, modernising its language, removing colonial residue, and substantially rewriting the law relating to electronic and digital records.

1. Nomenclature

The three statutes enacted in 2023 do not share a common suffix, and the suffix indicates the character of each enactment.

The Indian Penal Code and the Code of Criminal Procedure were Codes, and their successors are accordingly styled Sanhita. The Indian Evidence Act was an Act, and its successor is styled Adhiniyam. The correct title is therefore the Bharatiya Sakshya Adhiniyam, 2023, and not the 'Bharatiya Sakshya Sanhita'. The statute is cited as Act No. 47 of 2023.

2. The Meaning of 'Evidence'

The English word 'evidence' derives from the Latin evidens or evidere, meaning to show clearly or to make plain. The Sanskrit-derived 'Sakshya' carries a corresponding sense: that which a sakshi, or witness, brings before the court. In both traditions evidence is not truth itself but the medium through which a court is invited to arrive at the truth.

2.1 Classical definitions

• Jeremy Bentham described evidence as any matter of fact the effect, tendency or design of which is to produce in the mind a persuasion concerning the existence of some other matter of fact, whether affirmative or disaffirmative.
• Sir James Fitzjames Stephen, the draftsman of the 1872 Act, treated evidence as comprising the words uttered and things exhibited before a court, together with the facts proved to exist by those words and things, from which inferences are to be drawn.
• Taylor defined the law of evidence as all legal rules regulating the means by which any fact may be proved in a court of law, in civil and criminal proceedings alike.
• Phipson described evidence as the testimony, whether oral, documentary or real, which may legally be received in order to prove or disprove a fact in dispute.

2.2 The statutory definition

Two expansions distinguish this from Section 3 of the Indian Evidence Act. Oral evidence now expressly includes statements given electronically, supplying a statutory foundation for depositions by video conference and for remote expert testimony. Documentary evidence now expressly includes electronic or digital records. Under the 1872 Act the same result had to be reached indirectly, through the definition of 'document' read with Section 65B and the other provisions inserted by the Information Technology Act, 2000.

3. The Criminal Law Trilogy of 2023

The Adhiniyam is one of three statutes that came into force together on 1 July 2024 and that operate as a single scheme.

The three operate as a chain. The BNS establishes that an act is an offence. The BNSS governs its investigation and trial. The BSA determines what material the trial court may look at, in what form it must be brought before the court, and how the burden of persuasion is allocated.

4. Nature and Character of the Law of Evidence

4.1 Adjectival law

Law is conventionally divided into substantive law, which creates rights and liabilities, and adjectival or procedural law, which supplies the machinery for enforcing them. The law of evidence belongs to the second category, though it occupies an unusual position within it: procedural in form, it is frequently decisive in substance. A well-founded right fails if the plaintiff cannot prove it, and a guilty accused is acquitted if the prosecution's proof is inadmissible.

Being procedural, the law of evidence is lex fori, the law of the forum. An Indian court applies Indian rules of evidence even to a transaction governed by foreign substantive law. The competence of a witness, the mode of proving a document and the incidence of the burden of proof are determined by the law of the place of trial rather than the place where the cause of action arose.

4.2 Consequences of the procedural character

1. Procedural statutes generally operate retrospectively, in the sense that they govern proceedings pending on the date of commencement, because no litigant has a vested right in a particular mode of procedure.
2. Rules of evidence neither create nor extinguish substantive rights; they regulate only the proof of those rights.
3. A rule of evidence is applied by the court of trial, irrespective of the location of the parties or of the transaction.
4. The Adhiniyam does not govern every fact-finding body. Its application is limited by Section 1, considered separately in the topic on object, scope and scheme.

5. Principles Underlying the Statute

The Adhiniyam, like the Act it replaces, rests on a small number of governing principles from which most of its individual provisions can be derived.

6. Definitions — Section 2, BSA

The Indian Evidence Act carried its definitions in Section 3, an interpretation clause consisting of long unnumbered paragraphs, with 'may presume', 'shall presume' and 'conclusive proof' placed separately in Section 4. The Adhiniyam reorganises them into a lettered Section 2(1)(a) to 2(1)(l), with Section 2(2) applying the definitions contained in the Information Technology Act, 2000 and the Bharatiya Nagarik Suraksha Sanhita, 2023.

The Adhiniyam contains no definition of 'India' corresponding to Section 3(j) of the Indian Evidence Act, and Section 1 of the BSA carries no express extent clause corresponding to Section 1 of the IEA. Commentators have read the omission as deliberate, an evidentiary statute framed for circumstances in which records, custodians and witnesses may be located outside the territory. The competing reading is that the omission is merely consequential drafting, since the Adhiniyam operates upon Indian courts in any event.

7. Salient Features

7.1 Provisions retained

The Adhiniyam retains the overwhelming majority of the Indian Evidence Act, in many instances word for word. The doctrine of relevancy, res gestae, motive and conduct, conspiracy, admissions and confessions, dying declarations, expert opinion, character evidence, judicial notice, presumptions, burden of proof, estoppel, competence and compellability of witnesses, examination-in-chief and cross-examination, hostile witnesses and the judge's power to put questions all survive, subject to renumbering and modernised drafting. The Standing Committee on Home Affairs recorded that the Bill retained most of the provisions of the Indian Evidence Act.

7.2 Substantive innovations

1. Electronic and digital records as primary evidence [Section 57]. The Explanations to Section 57 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.
2. Non-discrimination clause for electronic records [Section 61]. A provision with no equivalent in the Indian Evidence Act. Admissibility of an electronic or digital record shall not be denied merely because it is electronic, and such a record shall, subject to Section 63, have the same legal effect, validity and enforceability as any other document.
3. Restructured Section 63, formerly Section 65B, with a statutory certificate in the Schedule. For the first time the form of the certificate is prescribed by statute rather than left to the parties. Part A is completed by the person in charge of the device and requires disclosure of the hash value of the record. Part B requires a declaration signed by an expert.
4. Expanded expert opinion [Section 39]. Section 45 of the Indian Evidence Act listed specific fields of expertise. Section 39(1) of the Adhiniyam adds the residuary expression 'any other field', and Section 39(2) deals separately with the opinion of an Examiner of Electronic Evidence under Section 79A of the Information Technology Act, 2000.
5. Widened secondary evidence [Section 58]. 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.
6. Joint trial explanation [Section 24]. The Explanation clarifies that a trial of more persons than one, held in the absence of an accused who has absconded or who has failed to comply with a proclamation issued under Section 84 of the BNSS, shall be deemed to be a joint trial.
7. Consolidation of the confession provisions. Sections 24, 28 and 29 of the Indian Evidence Act are consolidated into Section 22 of the Adhiniyam; Sections 25 and 26 become Section 23; and the discovery provision formerly contained in Section 27 survives as the proviso to Section 23(2).
8. Modernised and gender-neutral terminology. Archaic and colonial expressions, including 'lunatic', 'vakil', 'pleader' and 'barrister', and references to the Crown, to Her Majesty's dominions, to the Commonwealth and to the Parliament of the United Kingdom, have been removed or replaced.
9. Electronic messages replace telegraphic messages [Section 90]. The presumption formerly attaching to telegraphic messages under Section 88 of the Indian Evidence Act is omitted, and the presumption as to electronic messages formerly in Section 88A is carried forward as Section 90.
10. Structural reorganisation into Parts. The twelve chapters of the Adhiniyam are grouped into four Parts, giving the statute an explicit logical structure that the Indian Evidence Act lacked.

8. Provisions Omitted

Five provisions of the Indian Evidence Act have been omitted altogether, each being either colonial in character or obsolete in operation.

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 in dispute is that the Adhiniyam retains the bulk of the Indian Evidence Act, modifies roughly two dozen provisions, omits the five listed above, and adds Section 61 together with a new Schedule.

9. Correspondence Between the IEA and the BSA

The repeal of the Indian Evidence Act did not displace the case law decided under it. Where a provision of the Adhiniyam reproduces a provision of the Act in substance, the precedents on the earlier provision continue to govern. Section 8 of the General Clauses Act, 1897 supports this position, directing that a reference to a repealed enactment be construed as a reference to the corresponding provision of the re-enacting statute.

10. Leading Cases on Electronic Evidence

11. Criticism

The Adhiniyam has attracted substantial criticism. The Parliamentary Standing Committee on Home Affairs, chaired by Shri Brij Lal, submitted Report No. 248 on the Bharatiya Sakshya Bill, 2023 on 10 November 2023, and eight members of the Committee filed dissent notes.

• Continuity rather than reform. It is argued that renaming and renumbering a statute retained substantially intact imposes a heavy transition cost upon the bar, the bench and the investigating agencies without commensurate substantive gain.
• Chain of custody. The Standing Committee observed that the Bill contained no provision securing the chain of custody of digital and electronic records collected during investigation, which is the stage at which such records are most vulnerable to tampering.
• Custodial confessions. The 69th and 185th Reports of the Law Commission and the Malimath Committee had each engaged with the admissibility of custodial statements. The Adhiniyam leaves Sections 25 to 27 of the Indian Evidence Act substantially undisturbed in Section 23, so the question remains where it stood.
• Practical burden of Section 63(4). The dual-signature and hash-value requirements were said to render electronic evidence practically unavailable to ordinary litigants. This was the substance of the challenge in Pune Bar Assn., and although the provision was upheld, the Court's construction of 'expert' was a significant practical relaxation.
• Displacement of accumulated commentary. A century and a half of reported decisions, digests and section-wise commentary is indexed to a numbering scheme that now stands repealed.

12. Related Topics and Provisions