India was ruled by British before its independence and continues to be ruled by British-made laws.
The fact that most of the laws that are in force now are made during the colonial period is not unknown to us. The Indian Contract Act 1872, Indian Partnership Act 1932, Indian Penal Code 1860, Indian Evidence Act, 1872 etc. are all glorious examples of how still, India follows the colonial rules and regulations. Keeping this background, the Home Minister Sri. Amit Shah ji, introduced three bills – Bharatiya Sakshya Sanhita, 2023 (which will replace Indian Evidence Act, 1872), Bharatiya Nagarik Suraksha Sanhita, 2023 (which will replace CrPC) and Bharatiya Nyaya Sanhita, 2023 (which will replace IPC) that, if accepted, will mark the new era of Indian sovereignty by reforming Criminal Law in India.
Colonial Criminal law was made hundreds of years ago and only with the view to safeguard the British Rule in India. Amit Shah while introducing those three bills remarked, “ From 1860 to 2023, the country’s criminal justice system functioned as per the laws made by the British. I can assure the House that these bills will transform our criminal justice system. The aim will not be to provide justice.” He further added, “I assure the House that these three laws will have an Indian Spirit and Ethos, and will bring a big change in our criminal justice system. To summarize, the new bills will have more humanitarian and Indian ethical values instilled in them.
Bharatiya Sakshya Sanhita, 2023
‘Sakshya’ means evidence or witness. Bharatiya Sakshya Sanhita, 2023 if accepted, shall replace the Indian Evidence Act, 1872. The old Act was not able to address the problems that came with time and technology. Thus, this Bill was proposed so as to deal with new problems and the developments of technology. The objective of the Act is to consolidate and to provide for general rules and principles of evidence for fair trial.
The new Bill consists of 170 sections as compared to the old 168 sections. It provides for 23 amended sections, 1 new section and repeal of 5 sections.
What shall change if the Bill is accepted?
1.Changes in Definition Clause:
- There shall be only one definition clause in the Act that will be under Sec. 2 (1) (a) to (m) and 2(2) of the Proposed Bill. Previously, definition clause extended from sections 3 to 4.
- The proposed bill under Sec. 2(1)(c) proposes to accept electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices as documents and thereby as evidence under the Sec. 2(e)(ii). This can be seen as an important step considering how India has become more digitised.
- The new Bill has also removed the definition of a fact “disproved” and of “India”. However, it provides that the words used here, but not defined shall carry the same meaning as given under IT Act, 2000, Bharatiya Nagarik Suraksha Sanhita, 2023 and Bharatiya Nyaya Sanhita,
2.Changes in the law relating to facts in issue and relevancy of facts
- Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding (Sec. 24 of the Old Act) has undergone some changes in the New Bill. Under Sec. 22 of the New Bill, New Proviso Clauses have been added that specify that if the confession is made after such inducement, etc. has been fully removed is relevant (S.28 of the Old Act). Such confession does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it or if it made in a condition where the person was drunk (S.29 of the Old Act).
- The new Bil merges the old sections 25 and 26 relating to confession to police-officer need to be proved and that confession made while being in police custody is invalid, unless made before a Magistrate. This has been included in the form of 23(1) and (2).
- Under Sec. 32 of the new Bill, e-books or any other electronic form of books is considered is relevant.
- The old S.45A. Opinion of Examiner of Electronic Evidence which was a separate section then, has now been included under 39(2) of the Bill.
- Changes in Proof
- Previously 57(6) included all the Courts and Tribunals, Courts of Admiralty etc. by Courts to take Judicial Notice. In the new Bill, these have been included in separate sub-sections (d) and (e) of Sec. 52.
- Changes relating to evidence
- Section 57 of the New Bill that provides the definition of Primary evidence, now includes more explanations as compared to the old Act. The new provisions include explanation regarding admission of electronic or digital data or video recording as primary evidence.
- Secondary evidences mentioned in Sec. 58 of the Bill, now provides for oral admissions, written admissions and also evidence of a person who has examined a document, which weren’t mentioned in the old Act.
- Changes in Presumptions
- The old Section 88 Which dealt with the presumption as to telegraphic messages, has now been replaced by the new bill under Sec. 90 as electronic messages sent through e-mails. This can be seen as an improvement and an approach to adapt with the change of technology through time.
- The old Section 113 that dealt with the Presumption as to cession of territory, has been repealed completely.
- Changes in evidence relating to Witnesses
- It is also very interesting to note that in sec.124 of the Bill which relates to the testification by witness, the term “person with mental illness” has been used as against the old “lunatic.” It can be seen as a woke approach to address the issue of mental illness amongst the people that make them unfit to testify as witnesses.
The new Bill has certain plus points as compared to the old Act.
- Addresses issues of admissibility of evidences in electronic form – The old Act was not this open to e-evidences. The Bill also widens the scope of secondary evidence by including evidences in electronic form and such copies (soft copy) made thereof.
- It has more Indian-ness in it: The Bill has more Indian-ness than the Act, it must be noted that all the words that relate to the Crown, British Queen, General Gazette etc. are all replaced by words like “India”, “President”, Official Gazette etc.
- More sensitive to mental illnesses – In the above-mentioned section, the word ‘lunatic’ has been replaced by ‘person suffering from mental illnesses.’ This is indeed, an advancement of the society. For so long, it has been a taboo-ed topic in India. However, the question that if mental illnesses include panic disorder or Depression or such other issues are included or not, cannot be known as yet.
- The old Act had become obsolete – Many sections in the old Act unnecessarily related to British Crown, British Queen, Common wealth, cession of territory etc. As the time passed by, there have changes since those Acts; we gained freedom and we merged parts of India to form this Union of States. It is now quite irrelevant to have mention of British queen or presumption as to cession of territories etc.
- By repealing the British laws, India can truly emphasise its sovereignty
- Digital record can be easily tampered: Digital records such as video recordings, photos or even documents can easily be edited; with the advent of AI nothing seems impossible nowadays. So, the evidence given by digital means may not be 100% true all the time.
- Breach of privacy: Since there is a lot of pressure on use of electronic means in these Bills, it can lead to infringement of Privacy Rights of the people. Where there is electronic data, there is always a risk of hacking and cybercrime.
- Lots of law practitioners are not tech-savvy – Although India has become digitised, a huge part of India still remains technically challenged. Old Advocates or judges may not have clear understanding of digital evidence or digital record. There may be errors regarding this as well.
- Yet to be accepted: As it has been said, it is only a Bill that is yet to be passed. It will become the law only after it is finally signed by the President. So, currently, it is ne of the challenges.
Although the Bill has its own disadvantages and the reform of Criminal Law in India is a huge step, it is for the greater good. The Bill, if accepted, shall provide e-data, e-evidences etc. and it is important since India has now become digitised.
When even schools and colleges have moved online, our law lagged behind in the race of development. This step will take us forward in the long-run. This is the true “Indian” Evidence Act or the Bharatiya Sakshya Adhiniyam.
The Bill is yet to be accepted, it has only been introduced by Amit Shah. It still has to be accepted by both the Houses and then finally by the President; only then can it become the Act.
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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law