CALL NOW +91 – 8800110989 The Indian legal system underwent a major overhaul in the year 2023, and went on to replace the old Evidence Act, 1872 with Bharatiya Sakshya Act (BSA). The BSA is more apt and has been drafted according to the modern day needs, it rightly fills in the gap left by the century old Evidence Act, 1872 which was started during the colonial era. The BSA not only focuses on the modern day needs but also focuses on simplicity and fair trial, it aims to streamline the legal process, enhance the admissibility of electronic evidence. In this article we will examine key features and provisions of The Bharatiya Sakshya Act 2023.
Understanding the Legacy of the Evidence Act, 1872
The Indian Evidence Act, 1872 was enacted during the colonial era, and for more than 150 years it has been used as a legal framework for presenting evidence in court. The act governed the rules of admissibility of an evidence be it a document or an oral evidence. However, the modern era where most of the things have gone digital faced challenges, as there was not enough provision for addressing digital proofs. Moreover with fast globalization some of its provisions became outdated and inadequate and also the language used was far from simplicity.
Why There Was A Need for Change Felt for Indian Evidence Act?
A greater need to change the Indian Evidence Act was felt as it has become outdated and some of its provisions were not adequate to cater the demand of modern day needs.
Growing Use of Technology: The IEA was drafted way back in 1872 during the colonial era and had no adequate provisions to address the modern needs which are largely driven by the use of technology and science. In contemporary world courts have accommodated technology by allowing online hearing, filing the case online, even the presentation of evidence is allowed online. The Evidence Act, Bharatiya Sakshya Act 2023 incorporates technology to accommodate these changes and its section 61 recognizes electronic records as admissible evidence.
Outdated Colonial Provisions: The Indian Evidence Act 1872, was enacted during the colonial era and many of the provisions under this act have become outdated and irrelevant. For example; (a) Specific documents which are accepted in England without requiring proof or a seal of signature is presumed to be authentic. (b) The mandate for Indian Courts to recognize every Act passed by the British Parliament, will be removed under the BSA.
Merger & Simplification: The new evidence act aims to simplify things, hence, to make it simple and comprehensive it is merging some provisions. For Example under Indian Evidence Act 1872, confession is dealt under multiple sections (24-30), however, the BSA takes a more simplified approach by merging them under two or three provisions.
Removal of Provisions That are Out of Order: There are certain provisions under IEA which are completely out of order for example: Section 113, this section deals with proving that a territory was given up (ceded) by the British government and section 166:Trials with a jury or assessors (people who assist the judge) both these provisions have been removed from BSA.
Incorporating Changes As Per New Legislative Reform: Since IEA was enacted during the colonial era some of the reference it makes to IPC and CRPC, hence, in order to ensure conformity with the new legislative framework changes were required. The BSA has conformity with the new criminal laws.
The Bharatiya Sakshya Act: Key Characteristics and Its Contribution to Addressing Contemporary Requirements
The new BNS act aims to address the gaps left by IEA and provide a modern and contemporary act, though it retains most provisions of the IEA including those on confessions, relevancy of facts, and burden of proof. Here are some of the key feature and objectives of BSA
Continuity with Established Precedents: For making an easy and smooth transition for IEA to BSA, it has maintained most of the established precedents followed in IEA for example burden of proof, relevance and confession. This makes transition easy for legal professionals.
Enhanced Role of Electronic Evidence: The BSA recognizes the growing use of electronic records in the modern world. The BSA provides for admissibility of an electronic or digital record as evidence having the same legal effect, validity and enforceability as any other document. It further elevates electronic records as primary evidence, which was considered as secondary evidence in IEA requiring additional verification to be fully admissible.
Clarity Regarding Primary Electronic Evidence: According to BSA video recording is both stored electronically and transmitted, broadcasted, or transferred elsewhere, each stored recording holds significant evidential value. This will help investigating agencies in establishing cybercrime, even if the criminal attempts to destroy their original electronic record in order to escape punishment. Other sources can still provide this evidence, maintaining its integrity and relevance.
Focus on Fair Trials: The primary focus of BSA is on ensuring a fair trial for all the parties involved. It provides for general rules and principles of evidence for fair trial and also, aims to protect witnesses from harassment and empowers the judiciary with greater discretion in admitting or excluding evidence to prevent prejudice.
Clarity In Guidelines: This legislation establishes a clear and set of well-defined and uniform rules for evidence presentation during trials to modernize the way evidence is handled in court.
Key Differences Between Indian Evidence Act 1872 & Bharatiya Sakshya Act 2023
Below are some of the key differences between IEA and BAS
Parts & Chapter: The IEA has III part and 11 chapters under which it operates through 167 sections. BSA has IV parts and 12 chapters under which it operates through 170 sections.
Relevancy: The Indian Evidence Act dates back to 1872, and has some sections and provisions which are not relevant or adequate as per the need of modern times. BSA on the other hand is a contemporary act and has been drafted keeping in modern day need and practice, hence, it aims to fill the gap.
Admissibility of Evidence: Under the IEA primary evidence is classified as documentary, and oral evidence, it recognizes digital evidence as secondary evidence which is not relevant in the current digital age. The BSA, being the modern legislative act, recognizes the importance of digital records and classifies them as primary evidence.
Consideration of Electronic Records: Though the IEA recognizes electronic records, it gives it limited importance. However, BSA on the other hand not only recognizes electronic records but puts substantial focus on admissibility and acceptance of these records.
Confession In Joint Trials: When it comes to confession in joint trials (where more than one person is accused of the same offense) the IEA considers the confession of an accused as confession against others during the joint trials. Although BSA doesn’t differ from this, it adds explanation to the situation by supplementing it with clarification, in cases where one accused has fled or failed to respond to an arrest warrant, the trial of the remaining individuals will still be considered a joint trial.
Overhaul of regulations: The certain provisions under the IEA due to their old-fashioned explanation creates confusion and complication when utilized in court, however, BSA has revised these provisions in a simplified approach to avoid any confusion and complication. For example provisions like confession, relevancy of facts, burden of proof (especially in case of vulnerable groups i.e. children and women), etc.
Conclusion:
Bharatiya Sakshya Act 2023 is a result of major legal reform in India, it is a significant step towards modernizing the legal framework for the submission of evidence in India. The act looks to fill the gaps left by IEA by acknowledging the digital age and emphasizing fair trials. BSA has the potential to enhance the efficiency and fairness of the Indian legal system.
Frequently Asked Questions About Bharatiya Sakshya Act (BSA) 2023
What is the Bharatiya Sakshya Act (BSA) 2023?
The Indian legal system underwent a major overhaul in the year 2023, and went on to replace the old Evidence Act, 1872 with Bharatiya Sakshya Act (BSA). The BSA has been drafted according to the modern day needs and fills in the gap left by the century old Evidence Act, 1872.
Why was the Indian Evidence Act 1872 (IEA) replaced?
The Indian Evidence Act, 1872 was enacted during the colonial era, and for more than 150 years it has been used as a legal framework for presenting evidence in court, it was replaced as it became outdated as per the demand of the modern era.
How does the BSA differ from the Evidence Act 1872?
The BSA makes electronic records primary evidence, whereas the IEA considered them secondary. The BSA also has a stronger focus on ensuring fair trials.
