The Bharatiya Sakshya Bill, 2023

INTRODUCTION

The Bhartiya Sakshya Bill, 2023 was introduced in Lok Sabha on August 11, 2023.  After being enforced, it will repeal the Indian Evidence Act, 1872. The Act provides rules for the admissibility of evidence in legal proceedings. This Bill enhances the concept of electronic records admissible as evidence, and removes provisions related to telegraphic messages. 

As per this Bill, the main aim is to consolidate and to provide for general rules and principles of evidence for a fair trial. The main reason for introducing this Bill is that the Indian Evidence Act, 1872 did not keep up with the social changes and advancements in technology in recent years.

IMPORTANT CHANGES IN THE BILL

The following are the key changes which are proposed in the Bill:-

1. There are two types of evidence known as documentary evidence and oral evidence. Documentary Evidence has included electronic records which have been printed or stored in a computer. The Bill provides that electronic or digital records will have the same legal effect as paper records. The concept of electronic records includes information stored in semiconductor memory or any smartphone or laptops. Electronic records will include records on emails, smartphones, voice mails server logs etc. As per this Bill, the information may have been created on or stored in or processed by one or more computers. Under the Act, oral evidence includes statements made before Courts by witnesses in relation to a fact under inquiry.  The Bill adds any information given electronically to be considered as oral evidence.

2. This Bill repeals five existing provisions from the Act, alters 23 provisions and adds one new provision.

3. Secondary Evidence include copies made from the original by mechanical processes, counterparts of documents, and oral accounts of document contents has been done. Secondary Evidence is allowed only under the following circumstances:-

a. when the original is in the possession of the person against whom the document is sought to be proved, or

b. when the original has been destroyed.

The Bill expands secondary evidence to include: 

a. oral and written admissions, and 

b. the testimony of a person who has examined the document and is skilled in the examination of documents.

4. The Act talks about production of documents. If a witness is called upon to produce a document then they must bring it to Court notwithstanding any objection to its production or admissibility. The Court will check the document's validity. The Bill adds that no Court will require any privileged communication between the Ministers and the President to be produced before it.

5. There also has been a provision regarding joint trials in this Bill. A joint trial is a trial of more than one person for the same offence. The Act states that in a joint trial, if a confession made by one of the accused also affects the other accused and is proven then it will be treated as a confession against both the accused. The Bill states that a trial of multiple people wherein an accused has absconded or does not respond to an arrest warrant then it will be treated as a joint trial.

ADVANTAGES OF THIS BILL

1. Addresses the admissibility of electronic evidence- The old Act did not talk about electronic evidence but this Bill explicitly allows electronic evidence also broadens the scope of secondary evidence by including copies of original documents.

2. Sensitive to mental illness- The word 'lunatic' which was predominantly used in the old Act has now been removed and replaced with the phrase 'person suffering from mental illness'. 

3. Old Act has become outdated- Many sections in the old Act are related to British Crown, British Queen, Commonwealth etc. but as time passed and India gained freedom and parts of India were merged to form Union of States. It is irrelevant to mention British Queen or British Crown etc.

DISADVANTAGES OF THIS BILL

1. Electronic Records can easily be meddled with- Electronic records can be easily tampered as nothing is impossible with the advent of advanced technology. So, the evidence given by digital means may not be 100% true all the time.

2. Privacy Breach- Since people are dependent on using electronic items, it can lead to infringement of privacy of people. Where there is electronic data, there is always a risk of hacking and cybercrime.

3. Lots of law practitioners are not tech-savvy – A major part of Indian still remains digitally challenged. Old Advocates or judges may not have clear understanding of digital evidence or digital record. There may be errors regarding this as well.

CONCLUSION

Though the Bill has its own disadvantages, the introduction of this Bill is for the greater good. The Bill if passed will provide electronic data to be used as evidence and this step is really important since India has become digitised.