MODERNIZATION OF EVIDENCE LAW IN INDIA

Introduction

The Indian Evidence Act,1872 was enacted with the view to provide the law relating to evidence which would help the courts to reach the conclusion about the facts of the case and to deliver judgement. The Law of Evidence is not a substantive or procedural law but it comes under the umbrella of “adjective law” that defines the pleading and the methodology by which the substantive or procedure laws are functionalize. But the language of the Act was colonial which needed the update and also the act did not expressly mention the admission of electronic or digital evidences But it was the need of an hour in this technological advancement fir the recognition of digital and electronic records. To curtain all these problems the legislation enacted the updated and amended version of Indian Evidence Act named as the Bharatiya Sakshya Adhiniyam Bill,2023 which was passed by both the Lok Sabha and Rajya Sabha and received presidential assent on December 25,2023. The Bharatiya Sakshya Adhiniyam, 2023 came into effect on 1^st July 2024. This Act brought the technological Advancement and the eliminated the colonial references.

The Bharatiya Sakshya Adhiniyam,2023

The new Act on law of evidence has been named as “Bhartiya Sakshya Adhiniyam (BSA), 2023” which has replaced the Indian Evidence Act, 1872. The Bharatiya Sakshya Adhiniyam Bill, 2023 was introduced to Lok Sabha on 11^th August, 2023. The bill was referred to the Department-related Parliamentary Standing Committee on Home Affairs for its recommendation and report. The committee after its careful observation made its recommendations and submitted its report on 10^th November, 2023. The recommendations made by the Committee have been considered by the Government and it has been decided to draw out the Bill pending in Lok Sabha and introduce a new Bill by the incorporating the recommendations made by the Committee.[1]

The number of sections has been expanded in the Bharatiya Sakshya Adhiniyam,2023 The total sections in the BSA,2023 are 170. In the previous enactment of evidence, the specific mention electronic evidences and digital records were not there but, in this Act, there are specific provision for electronic evidences and digital records .By eliminating the colonial language the Bharatiya Sakshya Adhiniyam,2023 is the updated and modernized version of the Indian Evidence Act,1872.This Act includes technological advancement which was lacked in the Indian Evidence Act, 1872.

The Salient features of Bharatiya Sakshya Adhiniyam, 2023

• Modernized Language:

The words like “Parliament of the United Kingdom”, “Provincial Act”, “Her Majesty”, “The Privy Council”, “Jury”, and so on have been deleted. The words like “Vakil”, “Pleader” and “Barrister” have been replaced with the word “Advocate”.

• Document under BSA, 2023:

The Indian Evidence Act, 1872 provides the definition of Document under Section-3 as – “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter”. The Indian Evidence Act, 1872 did not include electronic and digital records within the definition of documents.

However, The Bharatiya Sakshya Adhiniyam, 2023, expressly recognizes electronic and digital records as Documents. The new act has expanded the definition of document which makes electronic and digital records admissible. Section 2(1)(d) of the Bharatiya Sakshya Adhiniyam, 2023 defines document as “document” means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.[2]

Illustrations:

• A writing is a document.
• Words printed, lithographed or photographed are document.
• A map or plan is a document.
• An inscription on a metal plate or stone is a document.
• A caricature is a document.
• An electronic record on emails, server logs, documents on computers, laptops or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.

Section 2(1)(d) of the Bharatiya Sakshya Adhiniyam broaden the scope of Documents by allowing the electronic evidences and digital records as documents.

The definition of evidence given in the Indian Evidence Act, 1872 has been adopted in this Act, with the two modifications. The revised definition of evidence under the new act is provided under Section 2(1)(e) as “evidence” means and includes— (i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence; (ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence[3]. Under the revised definition, statements made electronically, such statement are called as oral evidence. Additionally, Documentary evidence includes electronic or digital records and are now admissible before the Court. Unlike the Indian Evidence Act, 1872 which was just restricted to the electronic records.

Illustrations: computer printouts, CDs, pen drives, Invoices received via email, scanned paper document etc.

• Insertion of Coercion in Section-22 BSA, 2023

A confession made by an accused in a criminal proceeding with reference to the charges against him, if court finds out that the confession has been obtained through inducement, threat or coercion which could be implied or expressed as one of the acts causing confession to become irrelevant. It safeguards rights of the suspect and the accused the concept of ‘Coercion’ was not included in Section-24 of the Indian Evidence Act, 2023.

• Modifications in the scope of experts under Section-39

The Indian Evidence Act, 1872 formerly allowed the expert opinions only in the five fields- expertise in foreign law, science, art, identification of handwriting, or fingerprints. Section 45 and 45A of the Indian Evidence Act,1872 have been merged as sub-section 1&2 in the section 39 under BSA, 2023. Section-39 expands the scope of an expert by inserting the terminology “any other field” which explains that the court may now obtain the expert opinion in any field.

• Primary Evidence under BSA, 2023

Section- 57 of the Bharatiya Sakshya Adhiniyam, 2023[4] dealing with primary evidence, added the new explanations to it which include:

• an electronic or digital record which is created or stored, either simultaneously or sequentially in multiple files, then each such file is an original.
• an electronic or digital record is produced from proper custody, it is sufficient to prove its contents unless it is disputed.
• A video recording is simultaneously stored in multiple in electronic form and transmitted or broadcast to another, each of the stored recordings is an original.
• An electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is an original.

This section modernized the procedure for validating and verifying electronic content.

Illustration: A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

This section of BSA has broaden the scope of primary evidence by allowing the admission of electronic evidence and the digital records and it has also provided the eligibility of the electronic evidence and the digital record to qualify as the ‘Primary Evidence’ under section 57 of the BSA,2023.

• Secondary Evidence under BSA, 2023

The Indian Evidence Act, 1872 under Section 63 provides that the secondary evidence includes certified copies, copies made from the original document through mechanical means, counterparts of documents as against the parties who did not execute them, oral accounts of the contents of a document given by some person who has himself seen it.

Section 60. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely: — (a) when the original is shown or appears to be in the possession or power— (i) of the person against whom the document is sought to be proved; or (ii) of any person out of reach of, or not subject to, the process of the Court; or (iii) of any person legally bound to produce it, and when, after the notice mentioned in section 64 such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.[5]

The Bharatiya Sakshya Adhiniyam, 2023 expanded the scope of the secondary evidence under section 58. It now also includes oral admissions, written admissions, and evidence provided by a person who is skilled in examining certain documents, which being technical or voluminous cannot be conveniently examined.

• Electronic and Digital Records

The Bharatiya Sakshya Adhiniyam, 2023 fulfills the lack of technology and advancement of Indian Evidence Act, 1872. The Indian Evidence Act, 1872 did not expressly recognized the admission of digital records as evidence it was restricted to just electronic records as evidence. The new act makes the electronic or digital records admissible as documentary evidence before the court.

Section 2(t) of the Information Technology Act, 2000 defines electronic record as

“electronic record‖ means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”.

Digital record could be defined as a record maintained in coded numeric format which could be converted to the text or image through a computer system, or data stored or transferred digitally such as scanned documents files on computers, or invoice received via email etc.

Admissibility of Electronic records

Sections 62 and 63 of the Bharatiya Sakshya Evidence, 2023, lay down the procedure for the admission of electronic records. Section 62 provides the contents of electronic records with accordance with the provision of Section 63.

Section 63 This clause relates to the admissibility of electronic records. It requires the certificate to be submitted with the electronic to prove its authenticity. The sign of the person in charge of computer or communication device on such a certificate is required. If there is any specific statement in the certificate which has to be approved by the expert, the separate certificate has to be produced duly signed by the expert. The signed certificate holds the evidentiary value before the court.

Case law: Ravinder Singh alias Kaku v State of Punjab (2022)

Electronic evidence produced before Court should be in compliance with the certificate requirement and in accordance with the statute, for it to be admissible in the court.

Key comparison between Bharatiya Sakshya Adhiniyam,2023 and Indian Evidence Act,1872

• The Indian Evidence Act,1872 was only extended to India but the Bharatiya Sakshya Adhiniyam , 2023 is beyond the territory  and also recognizes the evidences generated outside the India.
• The Indian Evidence Act was having the colonial references such as ‘Vakil’, ‘Barrister’, But in the Bharatiya Sakshya Adhiniyam,2023 all these terms have been replaced by the term ‘advocate’.
• The term ‘lunatic’ has been replaced by the term ‘person of unsound mind’.
• The 167 sections of Indian Evidence Act,1872 have been expanded to 170 sections with the modification and the amendentments.
• In Indian Evidence Act,1872 the admission of electronic or digital evidence was not expressly mentioned but  the Bharatiya Sakshya Adhiniyam,1872 expressly mentions the admissibility of the digital and electronic evidences.

Conclusion

The Bharatiya Sakshya Adhiniyam, 2023, is an advanced piece of legislation that deals with the laws relating to evidence. The word advance has been used because the previous legislation on the law of evidence was from the time of British era and due to the evolving world and technology, the dynamic society needed some advancement and changes. One of the primary and essential objectives of Bharatiya Sakshya Adhiniyam, 2023, was to modernize the process of evidence by allowing the admission of electronic or digital records as evidence under the purview of this act.

References

[1] Bharatiya Sakshya Adhiniyam, No. 47 of 2023, Gazette of India, Extraordinary, pt. II, sec. 1 (Dec. 25, 2023) (India).

[2] Bharatiya Sakshya Adhiniyam 2023 § 2 (1) (d)

[3] Bharatiya Sakshya Adhiniyam 2023 § 2 (1) (e)

[4] Bharatiya Sakshya Adhiniyam 2023 § 57

[5] Bharatiya Sakshya Adhiniyam 2023 § 58