Major Differences Between the Indian Evidence Act, 1872 & the Bharatiya Sakshya Adhiniyam, 2023
Introduction
- For over 150 years, the Indian Evidence Act, 1872, has served as the backbone of legal proceedings related to the admissibility of evidence in Indian courts. But with the shift in how information is created, stored, and communicated, especially as digital and electronic records become the norm, it may be time for a change.
- The Bharatiya Sakshya Adhiniyam, 2023 steps in as a modern, tech-sensitive, and simplified legal framework that reflects today’s real world.
- Structure and Organization: The Indian Evidence Act consisted of 167 sections divided into three parts and 11 chapters. In contrast to the IEA, the Bharatiya Sakshya Adhiniyam comprises 170 Sections across four parts, with a more organized flow.
- Part 1 is preliminary (Section1-2)
- Part 2 is the relevance of facts (Section 3-50)
- Part 3 is on proof (Section 51-103)
- Part 4 is production and effect of evidence (Section 104-170)
- Easy Definitions with Modern Relevance: Definitions in the IEA were limited and placed under Section 3, under the heading' interpretation clause'. The BSA has shifted them to Section 2 and significantly expanded their scope. Key legal terms like “document”, “evidence”, and “court” now include electronic and digital records.
- Primary and Secondary Evidence: Digital Takes Center Stage
- Applicability Clause: A provision in the Indian Evidence Act stated that it applied to the entirety of India; however, the Bharatiya Sakshya Adhiniyam no longer has this territorial scope. While the Indian Evidence Act did not apply to the court-martial proceedings, the recently enacted Bharatiya Sakshya Adhiniyam law does.
- Digital Records: In the IEA, digital records are admissible only if supported by a certificate under Section 65B, but they are not considered as direct evidence, which often causes technical loopholes in the evidence. Although under the BSA, electronic evidence must be produced in accordance with Section 63, Section 57 changes this, recognizing electronic records as primary evidence, simplifying the admission process, and reducing unnecessary hurdles. It says primary evidence covers electronic or digital documents. Sections 61 and 63 of the BSA further lay out how digital records are to be presented, including technical data, file history, and verification parameters. These changes reflect a shift toward being open to digital data as a legitimate, valuable form of evidence.
- More Flexible Definition of Document: The primary difference between the definitions in the Bharatiya Sakshya Adhiniyam, 2023, and the Indian Evidence Act, 1872 lies in the explicit inclusion of electronic and digital records in the BSA. In comparison, the IEA definition did not clearly mention electronic or digital records. It primarily includes materials such as written papers, printed documents, or marked objects; on the other hand, the BSA modernizes this definition to encompass the technological realities of today’s world.
- Confessions and Accomplice Evidence are Reframed for Clarity: Section 22 of the BSA defines a valid confession as voluntary and not obtained by coercion or threat. This clarity was lacking under 'Coercion,' which is newly added here. In addition to that, section 138 makes accomplice evidence admissible, even without independent corroboration, if the court finds it credible. It has added flexibility, especially in complex cases with multiple accused.
- Expert Opinion with Widened Scope: The IEA’s Section 45 allowed for expert opinions in a few categories, which were explicitly mentioned there, but the BSA under Section 39 broadens this significantly. Now, expert input can come from fields such as foreign law, science, handwriting, fingerprints, and any other field. It aligns better with modern investigation methods and evolving forms of evidence.
- Certificates and Presumptions Regarding Electronic Evidence: The BSA continues to use certificates for digital evidence under Section 63, but with more defined procedures.
- Public and Private Documents with Digital Format Acknowledged: The Indian Evidence Act (IEA) separated public and private documents into two different sections (Sections 74 and 75), while the Bharatiya Sakshya Adhiniyam (BSA) merges both into a single provision, Section 74, where sub-section (2) defines private documents.
- Presidential and Ministerial Communication is Protected: Another new feature in BSA is Section 165, which bars the disclosure of confidential communication between the President and Ministers. This kind of communication wasn’t explicitly addressed under Section 162 of the IEA, indicating an evolution in the protection of constitutional offices.
- Miscellaneous: Apart from these changes, a few more have been made, such as some words in the illustration parts being changed. Carriages to Cars, Bombay to Mumbai, Coin to Currency, Lahore to Ladakh, Kabul to Singapore, Ravished to Rape, and Vakils to Advocates.
Conclusion
To be precise, BSA is a Law That Speaks the Language of Today. The transition from the IEA to the BSA isn’t just about adding more sections or using modern language; it’s about a shift in mindset. Evidence today exists more in the digital world and online than in ink and paper. Recognizing digital footprints, respecting online data, and introducing accountability are all signs that the law is becoming more dynamic. The Bharatiya Sakshya Adhiniyam is not just a replacement; in fact, it’s a refresh. A cleaner, faster, and more reliable way of handling evidence, crafted for a society that now lives online as much as it does offline. To know more, contact us.
