Bharatiya Sakshya Bill 2023: Evidence Act Transformation

Indian Evidence Act, 1872 (IEA)

Purpose: Governs how evidence is presented in Indian courts.

Scope: Applies to all civil and criminal cases.

Key Amendments:

2000: Included electronic records as secondary evidence.

2013: Focused on consent in rape cases, placing the burden of proof on the accused and disregarding the victim's past sexual history for consent determination.

Bharatiya Sakshya Bill, 2023 (BSB)

Goal: Proposed to replace the IEA.

Intention: To modernize and simplify evidence laws.

The Bharatiya Sakshya Bill, 2023

Highlights of the Bill

Replacement of Indian Evidence Act: The Bharatiya Sakshya Bill (BSB) updates the Indian Evidence Act, 1872 (IEA), preserving most provisions about confessions, fact relevancy, and burden of proof.

Evidence Types: Continues the IEA's distinction between documentary (including original documents and proofs of original content) and oral evidence.

Electronic Records as Primary Evidence: BSB redefines electronic records, such as data in semiconductor memory or communication devices, as primary evidence.

Expansion of Secondary Evidence: Enlarges the scope to include oral and written admissions, and testimonies from experts in document examination.

Key Issues and Analysis

Tampering of Electronic Records: The Supreme Court highlighted the risk of tampering with electronic records. BSB allows their admissibility but lacks measures to prevent tampering or contamination during investigations. Contradiction in Admissibility: BSB retains the need for electronic records' certification for admissibility, yet also classifies them as documents, which may not require certification, creating a potential contradiction.

Information from Police Custody: Maintains the admissibility of facts discovered from an accused in custody. Concerns remain about coercion and the absence of adequate safeguards.

Distinction in Custody Information: Despite suggestions from the Law Commission to remove the distinction in information obtained from an accused in or out of police custody, BSB does not incorporate this change.

Injuries in Police Custody: The Law Commission's recommendation to presume police liability for injuries to an accused in custody is not included in BSB.