Bharatiya Sakshya Adhiniyam,2023 new changes and addition

Bharatiya Sakshya Adhiniyam New Changes

The Bharatiya Sakshya Adhiniyam, 2023 replaces the Indian Evidence Act, 1872. And a Bill, namely, the Bharatiya Sakshya Bill, 2023 was introduced in Lok Sabha on 11^th August, 2023. It is enacted to new law, by repealing the Indian Evidence Act. This new law modernizes the rules of evidence, specifically recognizing digital and electronic records as primary evidence. It provides that “evidence” includes any information provided electronically, which would permit witnesses, accused, experts and victims by electronic means. Bharatiya Sakshya Adhiniyam new changes, BNSS includes new changes and provisions addition.

It seeks to put limits on the facts which are admissible and their certification as such in the court. The proposed Bill introduces more precise and uniform rules of practice for courts in dealing with the facts and circumstances of a case by means of evidence.

New Provisions and changes

The Bharatiya Sakshya Adhiniyam, 2023 includes several new provisions and changes, which are as follows:

Short title, applications and commencement: - Section 1 of the Bharatiya Sakshya Adhiniyam excludes this provision for ‘whole of India’ territorial extension.

Definitions: - Section 2 of the  Bharatiya Sakshya Adhiniyam (BSA), 2023 excludes the definition of ‘India’ previously given in Section 3 (interpretation clause) of the Indian Evidence Act, 1872.

Disproved: - Section 2(c), the word “in relation to a fact” has been added in place of “A fact is said to be disproved”

Document: - Section 2(d) of the  Bharatiya Sakshya Adhiniyam BSA, 2023, the word “or otherwise record” and or “by any other means” and includes electronic and digital records” have been added.

Evidence: - Section 2(e), the word “including statements given electronically” and “digital” have been added in the  Bharatiya Sakshya Adhiniyam BSA.

Fact: - The word “man” has been replaced by word “person” and in illustrations (e) of the IEA has not been included in Section 2(f) of the Bharatiya Sakshya Adhiniyam, 2023.

Words and expressions: - A new provision has been added in Section 2(2) of the BSA, 2023, the Words and expressions used herein and not defined but defined in the Information Technology Act, 2000 (21 of 2000), the Bharatiya Nagarik Suraksha Sanhita,2023, and the Bharatiya Nyaya Sanhita, 2023, shall have the same meanings as assigned to them in the said Act and Sanhitas.

Facts which are occasions, cause or effect of facts in facts in issue or relevant facts: - The word “relevant facts” have been added to the heading of section 5 of the BSA.

Motive, preparation and previous or subsequent conduct: - Section 6 of the BSA, in illustrations the word “advocates”, “person” and “rape” has been inserted in place of “vakil”, “man” and “ravished”

Fact necessary to explain or introduce fact in issue or relevant facts: - The word “fact in issues” has been added to the heading of section 7 of the BSA.

Things said or done by conspirator in reference to common design: - Section 8 of the BSA, 2023, In Illustrations, the word “Governments of India” has been replaced by the word “State” and the names of the cities are changed from Calcutta to Kolkata, Bombay to Mumbai and Kabul to Singapore.

Admissions in civil cases when relevant: - Sections 21 of the BSA, 2023, the word "barrister, pleader, attorney or vakil" has been replaced by “advocates” 

Confession caused by inducement, threat, coercion or promise, when irrelevant in criminal proceedings: - The word “coercion” and Section 28 and Section 29 of the Indian Evidence Act are inserted as provisos of Sections 22 of the BSA.

Confession to police officer: - Section 23 of the BSA excludes the word “not to proved”, which were given in the Indian Evidence Act,1872 and includes Section 26 of the IEA,1872 as subsection (2) of section 23 of the BSA and Section 27 of the IEA as proviso to the BSA.

The Word "whilst" is replaced by "while" and words "such person" is replaced by "him".

Consideration of proved confession affecting person making it and others jointly under trail for some offence: - A new Explanation (2) has added to Section 24 of the BSA which mentions that a trail of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under Section 84 of the Bharatiya Nagarik  Suraksha  Sanhita, 2023 shall be deemed to be a joint trail for the purpose of this section.

Relevancy of statement as to fact of public nature contained in certain Acts or notifications: - Section 31, the words “any Central Act or State Act or in a Central Government or State Government notification appearing in the respective Official Gazette or in any printed paper or in electronic or digital form purporting to be such Gazette, is a relevant fact" have been added.

Relevancy of statements as to any law contained in law books: - The word “including electronic and digital form” has been added to the heading of section 7 of the BSA.

Relevancy of certain judgments in probate, etc jurisdiction: - The word “Tribunal” is added in subsection (1) section 35 of Bharatiya Sakshya Adhiniyam, 2023.

Opinion of experts: - The word “or any other filed” is added in subsection (1) and Section 45A of the IEA has been inserted as subsection (2) of section 39 of Bharatiya Sakshya Adhiniyam, 2023.

Opinion as to handwriting and signature, when relevant: - The word “and signature” has been added in heading/title of section 41of the Bharatiya Sakshya Adhiniyam, 2023, and Section 47A of the IEA has been inserted as subsection (2) of section 41.

Facts of which Court shall take judicial notice: - Section 52 of the BSA, 2023 includes a new clause (b) international treaty, agreement or convention with country or countries by India, or decisions made by India at international associations or other bodies; and excludes paragraph no. (2), (3), (5) of Indian Evidence Act.

Proof of facts by oral evidence: - Section 54 of the BSA excludes the word “or electronic records” previously given in Section 59 of the Indian Evidence Act, 1872.

Primary Evidence: - Section 57 of the Bharatiya  Sakshya Adhiniyam BSA, 2023, there are 4 new explanations are added, includes:

Explanation 4: - Where an electronic or digital record is created or stored and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.

Explanation 5. -  Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.

Explanation 6.-Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.

Explanation 7.-Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

Secondary Evidence: - Section 57 of the  Bharatiya  Sakshya Adhiniyam (BSA), 4 new clauses are added, includes:

(vi) oral admissions;

(vii) written admissions;

(viii) evidence of a person who has examined a document, the original of which consists of  numerous accounts or other documents which cannot conveniently by examined in Court, and who is skilled in the examination of such documents.

Electronic and digital records: -Section 61 of the BSA, newly added, 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.

Admissibility of electronic records: -  Section 63 of the Bharatiya Sakshya Adhiniyam Words "or semiconductor memory" "or any communication device or otherwise stored, recorded, or copied in any electronic form" is added in subsection (1). Words "communication device", "create" are added in subsection (2). In subsection (3), the word "computer" is replaced by "by means of one or more computers or communication devices," and new clauses (a) to (e) are added newly. In subsection (4), the words "that is to say" are replaced by "shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:". The words "or a communication device referred to in clauses (a) to (e) of sub-section (3)" are added to clause (b) of subsection (4), and in clause (c), the words "person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities" are replaced by "person in charge of the computer or communication device or the management of the relevant activities". The words "and an expert" and "in the certificate specified in the schedule" are added. Clause (b) of subsection (5) of IEA is excluded and now (c) corresponds to (b), where words "communication device" and "or by other electronic means as referred to in clauses (a) to (e) of sub- section (3)" are added.

Proof where no attesting witness found: - Section 68 of the Bharatiya Sakshya Adhiniyam excludes the word "or if the document purports to have been executed in the United Kingdom." 

 Public and private documents: - Section 74(1),The words "and private" are added in the heading and the words "any part of" and "or of the commonwealth" are excluded.

The words "or Union territory" and "except the documents referred to in sub-section (1)" are added. And Section 75 of the IEA has been inserted as subsection (2) of section 74 of Bharatiya Sakshya Adhiniyam, 2023.

Presumption as to Gazettes in electronic or digital record: - Section 81 of the Bharatiya Sakshya Adhiniyam, 2023, a new explanation is added regarding proper custody of electronic document, and deals with presumptions as to gazettes in electronic or digital form.

Repeal and saving: - Section 170 of the of Bharatiya Sakshya Adhiniyam (BSA) deals with the repeal of the Indian Evidence Act (IEA). 

FAQs:

 1. What are the changes in Bharatiya Sakshya Adhiniyam?

The Bharatiya Sakshya Bill, 2023 (BSB) replaces the Indian Evidence Act, 1872 (IEA). It retains most provisions of the IEA including those on confessions, relevancy of facts, and burden of proof. The IEA provides for two kinds of evidence - documentary and oral.

2. What is the aim and new in the Bharatiya Sakshya Adhiniyam, 2023 and how does it differ from the Indian Evidence Act, 1872?

The Bharatiya Sakshya Adhiniyam, 2023 is a new law that replaces the Indian Evidence Act, 1872. It modernizes the rules of evidence, specifically recognizing digital and electronic records as primary evidence.

3. What are the new provisions in the Bharatiya Sakshya Adhiniyam, 2023?

The new provisions include changes in definitions, documents, evidence, facts, admissions, confessions, expert opinions, and more.

4. How does the Bharatiya Sakshya Adhiniyam, 2023 address electronic and digital records?

The law includes provisions that clarify the admissibility and validity of electronic and digital records as evidence in court proceedings.

5. What is the significance of the changes in definitions in the Bharatiya Sakshya Adhiniyam, 2023?

The changes in definitions broaden the scope of evidence that can be presented in court, including statements given electronically and digital records.

6. How does the Bharatiya Sakshya Adhiniyam, 2023 handle confessions and admissions in criminal cases?

The law specifies when confessions are relevant and admissible in court, and it sets limits on how inducement, threat, coercion, or promise can affect the validity of a confession.

7. What are the new provisions related to expert opinions in the Bharatiya Sakshya Adhiniyam, 2023?

The law includes guidelines for the admissibility of expert opinions and the qualifications of experts who can provide testimony in court.

8. How does the Bharatiya Sakshya Adhiniyam, 2023 address the use of electronic devices and communication devices as evidence?

The law outlines procedures for admitting evidence from electronic devices and communication devices, ensuring that it is handled properly and submitted with necessary certifications.

9. What is the impact of the Bharatiya Sakshya Adhiniyam, 2023 on the admissibility of public and private documents?

The law establishes guidelines for determining the authenticity and admissibility of public and private documents in court proceedings.

10. How does the Bharatiya Sakshya Adhiniyam, 2023 address the repeal of the Indian Evidence Act, 1872?

The law includes provisions for the repeal of the Indian Evidence Act and the transition to the new rules and regulations outlined in the Bharatiya Sakshya Adhiniyam.

11. Can electronic or digital records be used as primary evidence under the Bharatiya Sakshya Adhiniyam, 2023?

Yes, the law specifically recognizes electronic and digital records as primary evidence, subject to certain conditions and certifications.

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