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Introduction :

 

The union government of India in August 2023 proposed three bills which plan to change the criminal laws of the country. It also includes the Indian Evidence Act, 1872 which is now likely to be the Bharatiya Sakshya Adhiniyam, 2023.

The new bill introduces the ambit of electronic evidence and secondary evidence in a court of law. The definition of secondary evidence is expanded, including written evidence.

Following are the major changes made in the new bill.

S.NO	Nature	Indian Evidence Act	Bharatia Sakshya Abhiniyam
1	Short title	The Indian Evidence Act, 1972 – S(1)	Bharatiya Sakshya Adhiniyam, 2023 – S(1)
2	Application	Whole of India – S(1)	Applies to all judicial proceedings before any court except cases in front of an arbitrator. – S(1)
3	Documents	S(3) – Means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one means.	The document is inclusive of electronic and digital records. – S(2)(1)
4	Evidence	All statements the court permits including electronic record which is called as documentary evidence – S(3)	Evidence is inclusive of statements or any information given electronically or digitally -Section 2(1)
5	IT Act definitions	Omitted – S(3)	Whatsoever terms used as per the IT act will be referred to the Act itself. – S(2)
6	Confessions	S(28) and S(29) were omitted which spoke about confessions made under coercion or promise of secrecy.	Proviso clause which amalgamated both S(28) and S(29) together – Section 22
7	Relevancy of statements	Colonial references were removed – S(37)	Courts can now form opinions of a public fact based on electronic records or digital information. S(31)
8	Relevancy of statements with respect to any information contained in law books	The law book should be published or printed under the authority of the Government – S(38)	Addition of law books in e-form or digital form which the court can take into consideration. – S(32)
9	Facts of which court must take judicial notice	Colonial references such as acts passed by the Parliament of the UK, Proceedings of the parliament of UK, accession and the sign manual of  the sovereign of UK or Ireland were omitted – S(57)	The court shall take notice of such as law including territorial operation, international treaties, conventions, parliament or state legislatures included – S(52)
10	Primary evidence	Section 62 – The scope of primary evidence was widened	Section 57 : 1. If an electronic or digital record is stored, and multiple copies are made of such files, each such copy would be regarded as primary evidence, provided there is an uniformity with the original document. 2. If electronic evidence is produced through custody, it will be considered as a primary evidence 3. Video recording which is recorded and transmitted is primary evidence 4. Temporary files are primary evidences if they are electronic in nature.
12	Secondary evidence	Certified copies, copies from the original, oral documents were secondary evidence – S(63)	Oral admissions, Written admissions, evidence of a person who has examined a document and is also skilled to examine such documents was added to the already existing scope of secondary evidence – S(58)
13	Admissibility of electronic record or digital signature	N/A	Treats electronic evidence as part of the documentary evidence- they have the same legal effect, validity and enforceability as paper records.
14	Admissibility of electronic record	S(65B)(3) – storage of documents in multiple devices – omitted	1.     Information contained in Semiconductor memory which is produced by a communication device or recorded in any other form was added in Section 65B(1), subsequently renamed as Section 63 2.     The information can be stored in standalone mode, on a computer system or computer network or a computer resource or an intermediary.
15	Public and private documents	Covered under S(74) – Public documents which are publicly available such as records forming the sovereign, tribunals, public officers etc and any other documents are private documents as per S(75)	Public and private documents were covered in one Section – S(74)
16	Gazette publication in electronic form	The court shall presume genuineness of every gazetter publication in electronic form	Included digital record in its scope

Conclusion :

 

The major changes done in the Bill was in the format of the Act itself, such as numbering and clubbing redundant provisions together. Another major change done was the inclusion of digital records, electronic signatures and electronic records under the scope of documents which are admissible.

It is primitive to note that the Bill is in line with the Information Technology Act which presupposes the electronic record as a document itself.

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Written by- Sanjana Ravichandran

References :

 

1. The Bharatiya Sakshya Bill, 2023: An Overview of the changes to Indian Evidence Act, 18721 (3/3) – https://www.lexology.com/library/detail.aspx?g=8ca4eb70-8e3f-4da8-a3a9-61b28e6e2aaa
2. Major Changes Made in the Bharatia Sakshya Act, 2023, as regards Documents – https://indianlawlive.net/2024/01/17/major-changes-made-in-the-bharatia-sakshya-act-1923-as-regards-documents/
3. Bharatiya Sakshya Bill: Implications of Proposed Changes to the Indian Evidence Act, 1872 – https://www.nls.ac.in/blog/bharatiya-sakshya-bill-implications-of-proposed-changes-to-the-indian-evidence-act-1872/