DECODING BHARATIYA SAKSHYA ADHINIYAM, 2023: COMPARATIVE INSIGHTS & STUDY WITH INDIAN EVIDENCE ACT, 1872

March 24, 2025

Introduction

Age-old criminal laws of India were recently replaced and reformed by a new set of three criminal laws in India. The new criminal laws came into effect on July 1, 2024, after receiving the President’s assent on December 25, 2023.

As you scroll along, the blog will deal with a comparative view of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) & The Indian Evidence Act, 1872, the need for the replacement of the old law, along with critical insights into the Bharatiya Sakshya Adhiniyam, 2023, its new provisions, omissions, alterations and legal effects of the changes.

Deciphering the Need for the Reform

Back in the year 1871, Sir James Fitzjames Stephen prepared the draft, which was enacted as Act I of 1872 to define, amend, and codify the law dealing with evidence in India and it came into being as The Indian Evidence Act, 1872.

However, since then, the human being, society, its functioning and the means of the existence and operation of all its elements, have evolved across all dimensions. The ways to commit and trace the crime, have both changed. A lot of legal provisions and legal terms had become irrelevant or were mere connotations of colonial references and hence were no longer needed. There has been continuous growth in technological advancements and even some remarkable leaps in a few places, since 1872.

All of this cumulatively paved the reasons for the changes in the evidence law- which were first significantly brought in by the amendments induced by the Information Technology Act, 2000, and now with an entirely new piece of legislation i.e. Bharatiya Sakshya Adhiniyam, 2023 (BSA).

Understanding The Bharatiya Sakshya Adhiniyam, 2023

Evidence is an important component of the justice system and court cases, as it is evidence i.e. the ‘Sakshya’, the facts and proofs that help to prove or rebut the stance and cases. Amongst many types and circumstances, it can be broadly categorized into the following groups- oral and documentary, direct and indirect, primary and secondary, and another significant type being documents in their traditional sense and digital and electronic evidence.

Bharatiya Sakshya Adhiniyam, 2023 (BSA) is structured with 4 parts, 12 chapters, and 170 sections in total. The Adhiniyam proposes to consolidate and lay down general principles and rules of evidence for the objective of fair trial.

The Bharatiya Sakshya Adhiniyam has adopted modern, simple and contemporary legal terms at requisite places and has removed or replaced obsolete, irrelevant, or old terminologies or language.

The BSA represents and reflects a modern and technologically supported legal landscape, paving a shift towards a modern and digital era. It expands the scope of admissibility at certain places or has made an effort to clarify and simplify certain provisions.

This new legislation aims to aptly structure and simplify the law and procedures of evidence and to align it with modern aspects and developments, aiming towards justice and a fair trial.

Bharatiya Sakshya Adhiniyam at a Glance: Key Features and Comparative Changes

Adjective Law & Lex Fori- Bharatiya Sakshya Adhiniyam (BSA) is the law of the place (Lex Fori) i.e. it is to be applied as per the place where the dispute (i.e. question in the court) arises.
Ambit of General Applicability– The Adhiniyam has widened the scope of the general applicability of the BSA via Section 1(2), as compared to the old Indian Evidence Act, 1872. The Bharatiya Sakshya Adhiniyam now applies to all the judicial proceedings in or before any court including the court martial, but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator. Earlier, The Indian Evidence Act, 1872 excluded the applicability to the Court-martial convened under the Army Act, the Naval Discipline Act or the Indian Navy (Discipline) Act, 1934 or the Air Force Act.
Expanded Scope of Evidence & Documents– Bharatiya Sakshya Adhiniyam (BSA) has significantly expanded the scope of the terms ‘evidence’ and ‘documents’.
Section 2(d) defining the term “document” has significantly increased its ambit by using the term ‘any other means’ as a mode of expression, description or recording. Moreover, by its very definition documents are meant to include electronic and digital records. Illustratively, electronic records on server logs or any documents on your laptop are documents and can be used as evidence.
Section 2(e) of the Bharatiya Sakshya Adhiniyam defines the term “evidence” (the old Section 3 of The Indian Evidence Act, 1872). The new definition includes electronically given statements as oral evidence (e.g. statements by a witness via video conferencing) and electronic or digital records as documentary evidence.

Expanded ambit of proof- Bharatiya Sakshya Adhiniyam (BSA), has made a few changes- increasing the scope of proof via documents or electronic or digital records.
As for the proof of documents via primary evidence, four new explanations have been added to Section 57 (Explanations 4 to 7) –”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. Note*- This works on account of the authenticity of a document in proper custody and hence is treated as primary evidence by virtue of this explanation.

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.”

Section 58- providing for a list of secondary evidence, now includes- oral admissions, written admissions and evidence by a person (skilled in examination) who has examined the document in dispute, where the original of the said document consists of numerous accounts or other documents which cannot be easily examined in the court (i.e. three new sub-clauses have been added). Moreover, the term ‘means and includes’ (under old Section 63) has been substituted with ‘includes’ under the new provision i.e. Section 58- which by interpretation provides an inclusive list instead of a limited and exhaustive list that was earlier provided in the old provision.

Section 61 brings electronic evidence and digital records at par with any other documents, subject to fulfilment of other legal requisites. It mentions that nothing in Adhiniyam would as such deny the admissibility of the electronic or digital record in evidence on the ground that it is an electronic or digital record and subject to the requisites of Section 63 regarding its admissibility, it would have the same legal effect, validity and enforceability, like any other document.

Electronic Evidence– The Adhiniyam doesn’t specifically define it. However, Section 2 (2) of BSA – expressly states that reference can be made to the Information & Technology Act for such terms which have not been defined here.
Explanation to Section 79A of the IT Act, 2000, defines the term -‘electronic form of evidence’ -to mean any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.

Joint Trial & Confession of Co-Accused- Section 24 deals with the confessions of a co-accused, who are being jointly tried for the same offence. Explanation II to Section 24 is a new addition (as compared to the old provision)- It deals with situations of Trial –In – Absentia- and the question of it being a joint trial in such circumstances for the relevancy of the confession of a co-accused. It states that- ‘A trial 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 trial for this purpose.’

BNSS and BSA– The addition of words “including statements given electronically” under Section 2(e)(i) is also in line with changes brought about in BNSS, which now permits all trials, inquiries and proceedings to be held in electronic mode, by use of electronic communication or use of audio-video electronic means. (Specifically provided via legal provisions and no more a discretion).
Authentic & Genuine Chain of Custody– Section 57 of BSA, now provides that an electronic or digital record produced from proper custody shall be primary evidence. In addition, Section 80 of BSA states that “The Court shall presume the genuineness of every document purporting to be the Official Gazette, or to be a newspaper or journal, and of every document purporting to be a document directed by any law to be kept by any person -if such document is kept substantially in the form required by law and is produced from proper custody.” Explanation attached to Section 80 speifically mentions as to what can be duly considered as a proper custody (i.e. A document is said to be in proper custody if it is in the place in which, and looked after by the person with whom such document is required to be kept; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render that origin probable).
Specific Certificates– The Bharatiya Sakshya Adhiniyam, provides specific formats for the certificates needed to prove electronic evidences, provided in the schedule i.e A certificate signed by the ‘person in charge’ and ‘an expert’ and the certificate has to mandatorily follow the annexed format.
By adding in the legal pre-requisite and obligation of certification by experts under sub-section 4 of Section 63, BSA now builds an extra layer of accountability and credibility for the admissibility of statements made electronically in evidence (through audio/video mode).

Coercion- Section 22- This provision deals with a confession by the accused caused by inducement, threat, coercion or promise. Here, ‘coercion’ has been added as a new term and such confessions lose legal effect and are inadmissible.
Section 39- This provides for the opinion of experts and its relevance under the Adhiniyam. The Adhiniyam provides that the court can seek the opinion of the expert of the field on- ‘any other field’ amongst the others specifically listed in the provision. Hence, the scope of cases or issues where courts can call for an expert opinion has been substantially increased.
Section 138- Accomplice-Previously, the law addressed convictions not being illegal if solely based on an accomplice’s uncorroborated testimony. However this position has changed with the new provision (i.e. Section 138) according to which such a conviction is not illegal (and hence is legal and acceptable), if it is rather based on the corroborated testimony of the accomplice in question. So, the old rule of prudence has been expressly included in the new provision, whereby a valid conviction on the basis of accomplice’s testimony is possible only if it is backed by corroborative evidence.
Section 165- It imposes a legal obligation on the witness called on by the court to produce a document, to present the document to the court.
As for the change compared to the old evidence law- it adds a proviso to the provision- which exempts any communication between the Ministers and the President, from the obligation of production before the court.

List of Omissions

Following is the list of the provisions of The Indian Evidence Act, 1872 that have been omitted from The Bharatiya Sakshya Ahiniyam, 2023-

Section 3 (j) – India.
Section 82: Presumption as to document admissible in England without proof of seal /signature.
Section 88: Presumption regarding telegraphic messages.
Section 113: Proof of cession of territory.
Section 166: Power of Jury or assessors to put questions.

Challenges in the Implementation of Bharatiya Sakshya Adhiniyam

The new law on evidence i.e. Bharatiya Sakshya Adhiniyam may be confronted with certain impediments or challenges in its application and effect-

Secondary evidence as for electronic evidence and digital records are now supposed to be accompanied by a certificate of an expert as well. However, the Adhiniyam is silent as to who will be these examiners or experts or their eligibility or qualification for validating the authenticity of the electronic evidence via this certificate. Along with this is the process of examination of authenticity by the examiner and how would the examiner be engaged by the private parties and the question of time and infrastructure to be involved in it.
Another question that can be considered is- if any electronic evidence or digital records were submitted to the court prior to the enactment of the new law, but either a certificate under Section 65B of the Indian Evidence Act, 1872 was not provided, or the one submitted was defective. Should the certificate now be tendered in accordance with the Indian Evidence Act, 1872 and hence be allowed at a later stage or the BSA, given that the trial is still ongoing? One of the possible explanations lies with Section 170 – where such a situation would fall within the ambit of being a pending trial. However, it may still come as a question before the courts to decide, considering the pendency of the certificate itself.
Another question or point of concern may be the lack of infrastructure and technological know-how, to deal with the electronic evidence and digital records and the entire cycle of dealing with them. Hence, there is an assertive need to update and develop the infrastructure and human knowledge or resources to align with the changes brought in by the Bharatiya Sakshya Adhiniyam, 2023.

In conclusion, society and human functioning have evolved with time and technology and hence the evidence law needed an update to synchronize itself with these changes and technological advancements. However, adaptation to the new law, its process, and the machinery included with its functioning will take its own time and is bound to be confronted with certain glitches. The courts have to be conscious of maintaining a balance between the evidence via the new technological shifts and the concerns of data privacy. Adding to it, the courts have to stringently observe that the authenticity of the electronic and digital evidence is maintained and is not compromised by any means, as technology is prone to glitches and tampering.

The wise formula will be to adapt and adopt, along with time and judicial reasoning. For detailed reference and insights refer to-

Recommended Books:

Bare Act of Bharatiya Sakshya Adhiniyam–The Bare Act is a basic and essential requisite for academicians, students, researchers, professionals and judicial officers alike.
Ratanlal & Dhirajlal: The Bharatiya Sakshya Adhiniyam, 2023–
It is one of the most trusted and classic reference for criminal law and hence the new Bharatiya Sakshya Adhiniyam. The commentary is a detailed, section-wise book on the Adhiniyam that critically examines the new provisions introduced by the Adhiniyam and highlights the changes introduced in the provisions of the Indian Evidence Act, 1872.
Textbook on The Bharatiya Sakshya Adhiniyam, 2023 by Chief Justice M Monir-
Insightful commentary that intricately deals with the new law and highlights the changes. An authoritative reference of all times, in its new edition- provides a comparative outlook along with landmark judgments.
The Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) & The Indian Evidence Act, 1872 (1 of 1872): A Comparison by Bharat P. Maheshwari-The commentary provides insights into the changes brought in by The Bharatiya Sakshya Adhiniyam. It comes with comparative charts highlighting amendments and changes.
Electronic Evidence in the Courtroom: A Lawyer’s Manual by Yuvraj P Narvankar-
This authoritative guide within its arc covers the entire aspect of electronic evidence
from the stage of obtaining it to the judicial examination of the evidence, backed by
practical insights and significant case laws.
Covers and deals with-
Important formats
Forensic tools
SC & HC Judgments
Three new criminal laws & other allied laws
Pictorial explanations for technical procedures of electronic evidence

The commentary is a trusted and enriched resource for lawyers, judicial officers,
police officers and academicians.
Concise Commentary on The Bharatiya Sakshya Adhiniyam, 2023 by Sharath Chandran-

The concise commentary has been concisely structured in a format between a Bare Act and a Commentary. Hence, it aids in an easy transition and reference towards the new provisions. It comes with commentary and landmark judgments, along with the table of cases and subject index.