To modernize the current legal framework and overhaul the current legal system on 11th August 2023 the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB) were introduced in Lok Sabha. The Bharatiya Sakshya Bill, 2023 seeks to replace The Indian Evidence Act 1872 was passed by the Lok Sabha on December 20, 2023. It was approved by the Rajya Sabha on December 21. The bill received President Droupadi Murmu’s assent on December 25, 2023, and thus, the same became an Act which then came to be known as Bharatiya Sakshya Adhiniyam 2023 and is set to be enforced from 1st of July 2024 as per the recent press release by the Union government.
The Indian Evidence Act, of 1872, drafted by James Fitzjames Stephen, is the principal statute aiming at streamlining the trial process at courts as it applies to all judicial proceedings. It governs the proof and adjudication across criminal and civil laws in the country. The statute has undergone various amendments to assimilate provisions mandated by technological advancements electronic documents and records being one of them stands to be replaced by the new Bhartiya Sakshya Adhiniyam 2023. The object of the new enactment is to meet the technological advancement undergone in the country during the last few decades. Let us discuss the similarities and distinctions between Bhartiya Sakshya Adhiniyam 2023 and The Indian Evidence Act 1872.
Changes in Bhartiya Sakshya
Adhiniyam 2023 in comparison with The Indian Evidencen Act 1872
Modification
in Section
23
Repealed
Section
5
Newly
added Section
1
Difference
in framework
INDIAN
EVIDENCE ACT 1872
BHARTIYA
SAKSHA ADHINIYAM 2023
3
PARTS
4
PARTS
167
SECTIONS IN TOTAL
170
SECTIONS IN TOTAL
NO
SCHEDULE
1
SCHEDULE
Summary
of some notable differences in the provisions
Point Of Difference
Indian Evidence Act 1872
Bhartiya Sakshya Adhiniyam 2023
DEFINITIONS
The definitions of ‘conclusive
proof’, ‘may presume’, and ‘shall presume’ have been included in a
consolidated definition clause contained under Section 2.
Evidence has been defined under
Section 2(e) of the BSA. It now explicitly includes statements given
electronically as well as documents, including electronic or digital records.
The Adhiniyam also provides for
the interpretation of words used under the Bill but not specifically defined
under it. Such words are to have the
same meaning for the same words as defined under the Information Technology
Act, 2000, Bharatiya Nagarik Suraksha Sanhita, 2023, and Bharatiya Nyaya
Sanhita, 2023, as the case may be.
Section 3 of The Indian Evidence
Act provides for an interpretation clause. Section 4 of the Act defines the
terms may presume shall presume and conclusive proof.
CLOSELY CONNECTED FACTS
A
new heading is added in Chapter 2 which provides closely connected facts
(which include provisions relevant to facts forming part of the same
transaction, facts being an occasion, cause or effect of facts in issue,
facts showing existence of mind, etc.) identical to equivalent provisions in
the Evidence Act 1872.
There
is no such heading in Chapter 2 of the Indian Evidence Act 1872
ON CONFESSIONS
Two
new provisions have been included which allow for certain types of confessions
to be considered relevant. Sections 25 and 26 of
the Evidence Act pertaining to confession to a police officer and confession
have now been clubbed together while adding a proviso Provisions regarding confession
have been summed up in three Sections, i.e., Sections 22, 23 and 24.
Provisions
regarding confessions are contained in a series of Sections ranging from
Section 24 to 29.
ON
DIGITAL SIGNATURE
Section 45 of the Evidence Act has
been modified, and the new provision specifies that the opinion of the examiner
of electronic evidence as per Section 79A of the IT Act shall be a relevant
fact for information stored digitally. Further, provisions related to
opinions concerning handwriting and digital signature previously contained
under Sections 47 and 47A of the Evidence Act have been clubbed under a single
Section without alteration to wording.
Provisions relating to digital
signatures were contained under Sections 47A, 67A, AND 73A respectively.
FACTS NEED NOT TO BE PROVED
Chapter III of the Bill, dealing with ‘facts which need not be proved’ provides for Section 52 which is
equivalent to Section 57
of the Evidence
Act. The ambit of
the Section has been expanded to include international treaties, agreements, and conventions with
countries by India, apart from decisions made by India at international associations
and other bodies
Section
57 of Chapter 3 provides for facts of which court shall take judicial notice.
PRIMARY
EVIDENCE
5
new explanations are added to the
definition of primary evidence under
the Section 57 recognizing (i) where documents made using a uniform process such as printing, lithography, or photography where each is primary evidence of the contents of the rest; but where they are copies of a common original, they are not primary
evidence of the contents of the
original, (ii) where electronic or
digital records are recorded or stored, each file is a primary evidence, (iii) where electronic or digital record is produced from proper custody, such record is primary evidence unless disputed, (iv) where a video recording is stored in electronic form or transmitted, each of the stored recording is primary evidence, and finally (v) where an electronic record is stored in multiple storage spaces in a computer resource, each such automated storage
including temporary files is
primary evidence.
Section
62 of the act provides for the definition of primary evidence. Only two
explanations are there.
ON SECONDARY EVIDENCE
The
definition of secondary evidence has been amended; the equivalent Section contains
additional categories including oral admissions, written admissions, and
evidence of a person examining a document within the meaning of secondary evidence.
Section
63 of the Indian Evidence Act 1872 provides
for the definition of secondary
evidence.
ELECTRONIC EVIDENCE
The
provisions regarding electronic evidence have been simplified and Section 63
provides for the admissibility of electronic or digital records and as per Section
61 the same shall have the same legal effect, validity, and enforceability as
paper records. The admissibility of electronic or digital records is subject
to the fulfillment of certain conditions
Section
65 B of the Indian Evidence Act 1872 provides for the admissibility of electronic records.
PUBLIC DOCUMENTS
Sections
74 and 75 of the Evidence Act have been combined in the Act, to cover descriptions
of both public and private documents; the new provision remains identical in
substance to the provisions in the Evidence Act.
Section
74 of the act provides for the definition of public documents and Section 75
provides for the definition of private documents.
Apart
from the above significant distinctions, several other modest changes have been
made to the existing Evidence Act to seek the objective of the dispensation of
a fair trial process.
Conclusion
The majority of the Evidence Act’s provisions are carried over into the Sakshya Adhiniyam without alteration. The conceptual definitions of terms like “fact” and “evidence,” as well as the scheme of legal relevance, have remained the same except for the addition of electronic evidence. The main goal of The Bhartiya Sakshya Adhiniyam 2023 seems to be to combine provisions addressing various facets of the same topic under one comprehensive section, such as grouping various provisions about admissions before police and in custody. However, the new enactment won’t significantly impair the operation of evidence law. Therefore, in most cases, courts will continue as usual, only needing to substitute the provision number to reflect the change.
JURISEDGE
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To modernize the current legal framework and overhaul the current legal system on 11th August 2023 the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB) were introduced in Lok Sabha. The Bharatiya Sakshya Bill, 2023 seeks to replace The Indian Evidence Act 1872 was passed by the Lok Sabha on December 20, 2023. It was approved by the Rajya Sabha on December 21. The bill received President Droupadi Murmu’s assent on December 25, 2023, and thus, the same became an Act which then came to be known as Bharatiya Sakshya Adhiniyam 2023 and is set to be enforced from 1st of July 2024 as per the recent press release by the Union government.
Also read Comparing Indian Penal Code and Bharatiya Nyaya Sanhita
The Indian Evidence Act, of 1872, drafted by James Fitzjames Stephen, is the principal statute aiming at streamlining the trial process at courts as it applies to all judicial proceedings. It governs the proof and adjudication across criminal and civil laws in the country. The statute has undergone various amendments to assimilate provisions mandated by technological advancements electronic documents and records being one of them stands to be replaced by the new Bhartiya Sakshya Adhiniyam 2023. The object of the new enactment is to meet the technological advancement undergone in the country during the last few decades. Let us discuss the similarities and distinctions between Bhartiya Sakshya Adhiniyam 2023 and The Indian Evidence Act 1872.
Changes in Bhartiya Sakshya Adhiniyam 2023 in comparison with The Indian Evidencen Act 1872
Difference in framework
Summary of some notable differences in the provisions
Apart from the above significant distinctions, several other modest changes have been made to the existing Evidence Act to seek the objective of the dispensation of a fair trial process.
Conclusion
The majority of the Evidence Act’s provisions are carried over into the Sakshya Adhiniyam without alteration. The conceptual definitions of terms like “fact” and “evidence,” as well as the scheme of legal relevance, have remained the same except for the addition of electronic evidence. The main goal of The Bhartiya Sakshya Adhiniyam 2023 seems to be to combine provisions addressing various facets of the same topic under one comprehensive section, such as grouping various provisions about admissions before police and in custody. However, the new enactment won’t significantly impair the operation of evidence law. Therefore, in most cases, courts will continue as usual, only needing to substitute the provision number to reflect the change.
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