The Bharatiya Sakshya Adhiniyam: A Comprehensive Overview

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The Bharatiya Sakshya Adhiniyam that has been finally assented by the President of India on 25th of December, 2023, has become a new evidence law by replacing the existing Indian Evidence Act of 1872. It is thoroughly revised and consolidated with the objective to resolve the issues and concerns largely raised because of lengthy and complex features of existing Act and also the issues arose because of the advancement of technology.

What does the Bharatiya Sakshya Adhiniyam Exactly Define?

The Bharatiya Sakshya Adhiniyam (or simply BSA) is now the main procedural as well as substantive law for the administration of evidence law. The Parliament has thoroughly revised and consolidated the existing evidence Act.

Furthermore, the Indian Evidence Act that broadly classifies evidence as documentary and oral, the new Bharatiya Sakhsya Adhiniyam retains the classification and distinction but it added the electronic records in the definition of documents. The Indian Evidence Act has categorized electronic records as secondary evidence, but the BSA classifies it as primary evidence. Besides, it also expands it to include information stored in semiconductor memory or any communication devices such as tab, smartphones, laptops, etc.

The Timeline of Legislation of Bharatiya Sakshya Adhiniyam, 2023 (BSA)

The timeline of legislation of Bharatiya Sakshya Adhiniyam (BSA) can be understood as −

Key Features of Bharatiya Sakshya Adhiniya, (BSA)

Following are the key features of BSA −

Consolidation and Simplification − The BSA attempted to consolidate the evidence law by removing outdated provisions and by simplifying the explanations through different means such as incorporation of electronic records and other such technological advancement.
Modernization and Technology Integration − By considering the inseparable digital technology, the BSA recognizes the digital age by allowing electronic records as primary evidence, paving the way for seamless integration of digital data in legal proceedings.
Providing Clarity and Specificity − The BSA uses clearer and more specific language, reducing ambiguity and enhancing the fairness of the judicial process.
Recognizing Cybercrime and Technology-Based Offences − The BSA recognizing the growing concerns of cybercrime and hence includes provisions for electronic evidence in investigations and trials and also facilitates prosecutions in the digital domain.
Protecting Vulnerable Groups − The BSA strengthens the burden of proof in cases involving vulnerable groups such as women and children. Further, it emphasizes on survivor-centric approaches and combating biases.
Forensic Science Emphasis − The BSA promotes the use of forensic science and evidence especially for the criminal investigations; likewise suggests to rely more on scientifically validated methods and evidence.
Presumptions and Burdens of Proof − The BSA also revises and clarifies presumptions and burdens of proof in specific cases. The objective is to ensure greater fairness and accuracy in judicial outcomes.
Confessions and Admissibility − The BSA inserted stricter regulations on the admissibility of confessions. It safeguards against coerced or unreliable testimony.
Privileged Communication − Some of the professional relations (e.g. client and attorney relationship) are privileged. Such privileged relations are also revised under the BSA to balance individual privacy.

Structure of the Bharatiya Sakshya Adhiniyam, 2023

The Bharatiya Sakshya Adhiniyam, 2023 consists of 170 sections spread over 4 Parts and 12 Chapters. Besides, there is 1 Schedule.

The given table briefly describes all the sections of BSA −

Chapter/Section	Content
PART	I
Chapter I	Preliminary
Section 1	Short title, application and commencement.
Section 2	Definitions
PART	II
Chapter II	Relevancy of Facts
Section 3	Evidence may be given of facts in issue and relevant facts. Closely connected facts
Section 4	Relevancy of facts forming part of same transaction.
Section 5	Facts which are occasion, cause or effect of facts in issue or relevant facts.
Section 6	Motive, preparation and previous or subsequent conduct.
Section 7	Facts necessary to explain or introduce fact in issue or relevant facts.
Section 8	Things said or done by conspirator in reference to common design.
Section 9	When facts not otherwise relevant become relevant.
Section 10	Facts tending to enable Court to determine amount are relevant in suits for damages.
Section 11	Facts relevant when right or custom is in question.
Section 12	Facts showing existence of state of mind, or of body or bodily feeling.
Section 13	Facts bearing on question whether act was accidental or intentional.
Section 14	Existence of course of business when relevant.
	Admissions
Section 15	Admission defined.
Section 16	Admission by party to proceeding or his agent.
Section 17	Admissions by persons whose position must be proved as against party to suit.
Section 18	Admissions by persons expressly referred to by party to suit.
Section 19	Proof of admissions against persons making them, and by or on their behalf.
Section 20	When oral admissions as to contents of documents are relevant.
Section 21	Admissions in civil cases when relevant.
Section 22	Confession caused by inducement, threat, coercion or promise, when irrelevant in criminal proceeding.
Section 23	Confession to police officer.
Section 24	Consideration of proved confession affecting person making it and others jointly under trial for same offence.
Section 25	Admissions not conclusive proof, but may estop.
	Statements by persons who cannot be called as witnesses
Section 26	Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.
Section 27	Relevancy of certain evidence for proving, in subsequent proceeding, truth of facts therein stated.
	Statements made under special circumstances
Section 28	Entries in books of account when relevant.
Section 29	Relevancy of entry in public record or an electronic record made in performance of duty.
Section 30	Relevancy of statements in maps, charts and plans.
Section 31	Relevancy of statement as to fact of public nature contained in certain Acts or notifications.
Section 32	Relevancy of statements as to any law contained in law books including electronic or digital form.
	How much of a statement is to be proved
Section 33	What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers
	Judgments of Courts when relevant
Section 34	Previous judgments relevant to bar a second suit or trial.
Section 35	Relevancy of certain judgments in probate, etc., jurisdiction.
Section 36	Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 35.
Section 37	Judgments, etc., other than those mentioned in sections 34, 35 and 36 when relevant.
Section 38	Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.
	Opinions of third persons when relevant
Section 39	Opinions of experts.
Section 40	Facts bearing upon opinions of experts.
Section 41	Opinion as to handwriting and signature, when relevant.
Section 42	Opinion as to existence of general custom or right, when relevant.
Section 43	Opinion as to usages, tenets, etc., when relevant.
Section 44	Opinion on relationship, when relevant.
Section 45	Grounds of opinion, when relevant
	Character when relevant
Section 46	In civil cases character to prove conduct imputed, irrelevant.
Section 47	In criminal cases previous good character relevant.
Section 48	Evidence of character or previous sexual experience not relevant in certain cases.
Section 49	Previous bad character not relevant, except in reply.
Section 50	Character as affecting damages.
PART III	ON PROOF
Chapter III	Facts Which Need Not Be Proved
Section 51	Fact judicially noticeable need not be proved.
Section 52	Facts of which Court shall take judicial notice.
Section 53	Facts admitted need not be proved.
Chapter IV	Of Oral Evidence
Section 54	Proof of facts by oral evidence.
Section 55	Oral evidence to be direct.
Chapter V	Of Documentary Evidence
Section 56	Proof of contents of documents.
Section 57	Primary evidence.
Section 58	Secondary evidence.
Section 59	Proof of documents by primary evidence.
Section 60	Cases in which secondary evidence relating to documents may be given.
Section 61	Electronic or digital record.
Section 62	Special provisions as to evidence relating to electronic record.
Section 63	Admissibility of electronic records.
Section 64	Rules as to notice to produce.
Section 65	Proof of signature and handwriting of person alleged to have signed or written document produced.
Section 66	Proof as to electronic signature.
Section 67	Proof of execution of document required by law to be attested.
Section 68	Proof where no attesting witness found.
Section 69	Admission of execution by party to attested document.
Section 70	Proof when attesting witness denies execution.
Section 71	Proof of document not required by law to be attested.
Section 72	Comparison of signature, writing or seal with others admitted or proved.
Section 73	Proof as to verification of digital signature
	Public Documents
Section 74	Public and private documents.
Section 75	Certified copies of public documents.
Section 76	Proof of documents by production of certified copies.
Section 77	Proof of other official documents.
	Presumptions as to documents
Section 78	Presumption as to genuineness of certified copies.
Section 79	Presumption as to documents produced as record of evidence, etc.
Section 80	Presumption as to Gazettes, newspapers, and other documents.
Section 81	Presumption as to Gazettes in electronic or digital record.
Section 82	Presumption as to maps or plans made by authority of Government.
Section 83	Presumption as to collections of laws and reports of decisions.
Section 84	Presumption as to powers-of-attorney.
Section 85	Presumption as to electronic agreements.
Section 86	Presumption as to electronic records and electronic signatures.
Section 87	Presumption as to Electronic Signature Certificates.
Section 88	Presumption as to certified copies of foreign judicial records.
Section 89	Presumption as to books, maps and charts.
Section 90	Presumption as to electronic messages.
Section 91	Presumption as to due execution, etc., of documents not produced.
Section 92	Presumption as to documents thirty years old.
Section 93	Presumption as to electronic records five years old.
Chapter VI	Of the Exclusion of Oral Evidence by Documentary Evidence
Section 94	Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.
Section 95	Exclusion of evidence of oral agreement.
Section 96	Exclusion of evidence to explain or amend ambiguous document.
Section 97	Exclusion of evidence against application of document to existing facts.
Section 98	Evidence as to document unmeaning in reference to existing facts.
Section 99	Evidence as to application of language which can apply to one only of several persons.
Section 100	Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies.
Section 101	Evidence as to meaning of illegible characters, etc.
Section 102	Who may give evidence of agreement varying terms of document.
Section 103	Saving of provisions of Indian Succession Act relating to wills.
PART IV	PRODUCTION AND EFFECT OF EVIDENCE
Chapter VII	Of the Burden of Proof
Section 104	Burden of proof.
Section 105	On whom burden of proof lies.
Section 106	Burden of proof as to particular fact.
Section 107	Burden of proving fact to be proved to make evidence admissible.
Section 108	Burden of proving that case of accused comes within exceptions.
Section 109	Burden of proving fact especially within knowledge.
Section 110	Burden of proving death of person known to have been alive within thirty years.
Section 111	Burden of proving that person is alive who has not been heard of for seven years.
Section 112	Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.
Section 113	Burden of proof as to ownership.
Section 114	Proof of good faith in transactions where one party is in relation of active confidence.
Section 115	Presumption as to certain offences.
Section 116	Birth during marriage, conclusive proof of legitimacy.
Section 117	Presumption as to abetment of suicide by a married woman.
Section 118	Presumption as to dowry death.
Section 119	Court may presume existence of certain facts.
Section 120	Presumption as to absence of consent in certain prosecution for rape.
Chapter VIII	Estoppel
Section 121	Estoppel
Section 122	Estoppel of tenant and of licensee of person in possession.
Section 123	Estoppel of acceptor of bill of exchange, bailee or licensee.
Chapter IX	Of Witnesses
Section 124	Who may testify.
Section 125	Witness unable to communicate verbally.
Section 126	Competency of husband and wife as witnesses in certain cases.
Section 127	Judges and Magistrates.
Section 128	Communications during marriage.
Section 129	Evidence as to affairs of State.
Section 130	Official communications.
Section 131	Information as to commission of offences.
Section 132	Professional communications.
Section 133	Privilege not waived by volunteering evidence.
Section 134	Confidential communication with legal advisers.
Section 135	Production of title-deeds of witness not a party.
Section 136	Production of documents or electronic records which another person, having possession, could refuse to produce.
Section 137	Witness not excused from answering on ground that answer will criminate.
Section 138	Accomplice
Section 139	Number of witnesses.
Chapter X	Of Examination of Witnesses
Section 140	Order of production and examination of witnesses.
Section 141	Judge to decide as to admissibility of evidence.
Section 142	Examination of witnesses.
Section 143	Order of examinations.
Section 144	Cross-examination of person called to produce a document.
Section 145	Witnesses to character.
Section 146	Leading questions.
Section 147	Evidence as to matters in writing.
Section 148	Cross-examination as to previous statements in writing.
Section 149	Questions lawful in cross-examination.
Section 150	When witness to be compelled to answer.
Section 151	Court to decide when question shall be asked and when witness compelled to answer.
Section 152	Question not to be asked without reasonable grounds.
Section 153	Procedure of Court in case of question being asked without reasonable grounds.
Section 154	Indecent and scandalous questions.
Section 155	Questions intended to insult or annoy.
Section 156	Exclusion of evidence to contradict answers to questions testing veracity.
Section 157	Question by party to his own witness.
Section 158	Impeaching credit of witness.
Section 159	Questions tending to corroborate evidence of relevant fact, admissible.
Section 160	Former statements of witness may be proved to corroborate later testimony as to same fact.
Section 161	What matters may be proved in connection with proved statement relevant under section 26 or 27.
Section 162	Refreshing memory.
Section 163	Testimony to facts stated in document mentioned in section 162.
Section 164	Right of adverse party as to writing used to refresh memory.
Section 165	Production of documents.
Section 166	Giving, as evidence, of document called for and produced on notice.
Section 167	Using, as evidence, of document production of which was refused on notice.
Section 168	Judge’s power to put questions or order production.
Chapter XI	Of Improper Admission and Rejection of Evidence
Section 169	No new trial for improper admission or rejection of evidence.
Chapter XII	Repeal and Savings
Section 170	Repeal and savings.
Schedule	Certificate (See section 63(4)(c))

Conclusion

The Bharatiya Sakshya Adhiniyam that has become an active evidence law by replacing the Indian Evidence Act of 1872, is a modern evidence law, which has been legislated not only in Indian context but also in the technological advance context. Therefore, it is the law that enacted with the objective to simplify the criminal legal system and make it more transparent and approachable.

However, to fully implement the BSA, is a big challenge and it requires greater level of efforts. Secondly, the major concern of new provisions is “misuse.” But hopefully with better and managed approach, it can be regulated.

Frequently Asked Questions

What's the main goal of the Bharatiya Sakshya Adhiniyam?

Ans. The main objective of BSA is to modernize and streamline India's approach to evidence in legal proceedings. The Adhiniyam makes evidence law more technology-enabled, fair, and efficient.

How does Bharatiya Sakshya Adhiniyam differ from the existing IEA?

Ans. The BSA is more advance, consolidated, simplified, easy approachable. The inclusion of modern systems and technology strengthens witness protection, clarifies presumptions and burdens of proof, and introduces stricter regulations on confession admissibility.

How does Bharatiya Sakshya Adhiniyam handle technology?

Ans. As per BSA, electronic evidence became crucial and paves the way for digital data in investigations and trials. But still concerns lie in ensuring its authenticity and preventing misuse.

Does Bharatiya Sakshya Adhiniyam address vulnerable groups?

Ans. The BSA addresses vulnerable groups (such as women and children) by strengthening the burden of proof in cases involving women and children with objective to have more survivor-centric approach.

What happens to confessions under the Bharatiya Sakshya Adhiniyam?

Ans. The BSA makes them harder to admit and hence it requires stricter protocols to prevent coerced or unreliable testimonies.

Mukesh Kumar

Updated on: 29-Dec-2023

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