Comparison: BSA vs Indian Evidence Act, 1872

Introduction 

The Indian Evidence Act of 1872 drafted under the guidance of Sir James Fitzjames Stephen, has been the pillar of the justice for more than 160 years clearly explaining the what comes under the domain of the word “evidence”. Although the IEA has emerged as a hardy and constitutive act, its colonial pedigree, archaic nomenclature and its inability to adapt to the socio- technological shifts of contemporary India have long demanded reform. With the shifting social dynamics and advancement of technology the pattern of crime has changed subsequently demanding a change in the way evidence is perceived and admitted. As technology becomes integral to modern life, digital evidence spanning emails, social media content, surveillance data, and blockchain records has gained prominence in criminal and civil litigation. However, its use in courts raises a host of legal challenges concerning authenticity, admissibility, and privacy, all of which demand nuances legal scrutiny within the framework of the new law. The new act, Bharatiya Nyaya Sanhita presents a very progressive stance to address the complexities of digital evidence which is the most integral change among the others.

This article undertakes an exhaustive comparative analysis of the BSA and IEA based on the pivotal, technological, structural, material changes. It points to change in jurisprudence of the law which is more justice oriented rather than punishment oriented. The research also scrutinizes the constitutional validity, enforceability and loopholes or advancements compared to pre independence colonial-era IEA. This work in based on doctrinal study, comparative statutes, judicial scrutiny and empirical observations strives to critically analyse whether BSA is just a symbolic renaming or a justice friendly act equipped to deal with the contemporary problems. 

1.1 Comparison between IEA, 1872 and BSA,2023

The new act aims to remove the redundant obsolete part and make it appropriate for the contemporary world. The new act has aimed to decolonise and at the same time modernise the laws. The aim of the colonial act, IEA, was to punish the offenders and not to dispense justice. It was an attempt to subjugate the Indians and the laws were weighing in favour of the Britishers. All the references in the new law which are obsolete have been removed including commonwealth, provincial act, Her Majesty Government/ Dominions, and references to Parliament of the UK, British Crown, London Gazette, Etc.

Again, in Sections 21, 64, 132, 133, 152, 153 of BSA, the Legislature has replaced the words barrister, attorney, pleader or vakil with advocate. Section 82 of the Evidence Act dealing with presumption about documents admissible in England, has mow been removed. Similarly, all other sections which made the British parliament supreme were removed.

The new law organises and includes laws which is in accordance to the parameters of justice in the contemporary world.  

Even as regards applicability of the law of evidence, as on date by virtue of Section 1 of the Evidence Act, the law did not apply to Court martials under the Army/Navy/Air Force Act, now this exception has been removed in the new law. 

Under section 8, Illustration (f) of Bharatiya Sakshya Adhiniyam, the word man has been replaced with person to make the provision gender neutral.

In various provisions of the IEA the word ‘lunatic’ was used. The new act replaces the word lunatic with ‘person with mental issues.’ This is regarded as a very significant change which takes into consideration that a person may not be lunatic yet his evidence may be tainted on account of some mental illness that he/ she may be going through. 

The BSA has made significant advancement in India’s evidence law, particularly in regard to digital evidence. The increasing reliance on digital platforms for communication, financial transactions, and law enforcement surveillance has led to an exponential rise in digital evidence in court proceedings. 

Under the IEA, 1872, electronic records were recognised as secondary evidence (section 65A and 65B). The BSA, 2023 has expanded the definition of document. Section 2(1)d of the bill has included electronic or digital records under the ambit of the word ‘document’. Furthermore, the term electronic record has also been expanded to include data, emails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence and voice mail messages, CCTV footage and other digital formats. To make it admissible, the new law recognises electronic records as primary evidence under Section 57. BSA has streamlined with the Information Technology Act 2000 by including electronic record as primary evidence.  Under the BSA,2023, it includes evidence as all statement made electronically, additionally the electronic or digital evidence are also characterised as documents. 

It is of extreme importance that the authenticity of the documents is to be maintained, The BSA, 2023, has maintained strict provisions regarding the 

In Sections 21, 64, 132, 133, 152, and 153 of the Bharatiya Sakshya Adhiniyam (BSA), the Legislature has substituted the words ‘barrister’, ‘attorney’, ‘pleader’, or ‘vakil’ with the term ‘advocate’. Section 82 of the Evidence Act, which previously dealt with the presumption regarding the admissibility of documents in England, has now been removed. Similarly, all other sections that conferred supremacy upon the British Parliament have been repealed.

The new law has restructured and incorporated laws that align with current standards of justice in the modern world.

In relation to the application of the law of evidence, as per Section 1 of the Evidence Act, the law previously did not apply to court martials under the Army, Navy, or Air Force Acts. However, this exception has been eliminated under the new law.

Under Section 8, Illustration (f) of the Bharatiya Sakshya Adhiniyam, the word ‘man’ has been replaced with ‘person’ to make the provision gender-neutral.

In several provisions of the Indian Evidence Act, 1872, the term ‘lunatic’ was used. The new law has replaced this term with ‘person with mental issues’. This change is considered significant as it acknowledges that a person may not be classified as a lunatic but may still have evidence that is affected by a mental illness.

The BSA has made major progress in the field of evidence law in India, especially with regard to digital evidence. The growing reliance on digital platforms for communication, financial transactions, and law enforcement surveillance has led to an increase in the use of digital evidence in court proceedings.

Under the Indian Evidence Act, 1872, electronic records were classified as secondary evidence (Section 65A and 65B).

The BSA, 2023, has broadened the definition of a document. Section 2(1)(d) of the bill includes electronic or digital records within the scope of the term ‘document’. The term ‘electronic record’ has also been expanded to encompass data, emails, server logs, documents stored on computers, laptops, or smartphones, messages, websites, locational data, voice mail messages, CCTV footage, and other digital formats. To make these records admissible, the new law treats electronic records as primary evidence under Section 57. The BSA, 2023, has harmonized with the Information Technology Act, 2000, by recognizing electronic records as primary evidence. Under the BSA, 2023, evidence includes all statements made electronically, and electronic or digital evidence are also categorized as documents. It is of paramount importance to ensure the authenticity of documents. The BSA, 2023, has maintained strict provision regarding admissibility of electronic evidences, including a mandatory ‘certificate of authentication’ to accompany the evidence, just like its predecessor to ensure fair practices and to avoid inconsistencies. Despite such robust legal frameworks, the practical challenges still persist. The digital files may be tampered with or it can be compromised under various conditions. Further it passes the responsibility to the party presenting the evidence to prove its authenticity, thereby effectuating additional burden on the party and also highlights the judicial dependence on technical expertise.

It is also pertinent to highlight that the BSA has omitted references to its territorial extent, under section 1, possibly in order to overcome admissibility related challenges pertaining to evidence generated outside India (especially digital evidence) 

Additionally, there are multiple small but significant changes brought in the new act. There has been variation in the meaning of accomplice where conviction is now legal upon the corroborated testimony of the accomplice, earlier conviction was possible upon the uncorroborated testimony of an accomplice.

‘Coercion’ has been added as another factor among threat or inducement that will vitiate the confession and will render it ineffective. 

A new provision has been added which provided that no court can require production before it of any communication between the ministers and the President of India. No such provision was present in IEA. The SC in the case of People’s union for Civil Liberties v Union of India (2004)  established that the privilege against disclosure is strictly confined to unpublished official records concerning affairs of State, provided that production would be demonstrably prejudicial to the public interest. The enactment of an absolute, carte blanche immunity risks insulating administrative conduct from judicial oversight, thereby facilitating a potential abuse of power through the erosion of judicial review.

1.2 Framework

The Indian Evidence Act of 1872 became a law on 15 March 1872. It came into force on 1 September 1872. Working in line with the report of the Law Commission of India Sir James Fitzjames Stephen made this law. The Indian Evidence Act of 1872 was a set of rules for what can be used as evidence in court. It did not apply to military courts.

 The Indian Evidence Act of 1872 explained what the Indian Evidence Act of 1872 means by "evidence”, in Section 3 of the Indian Evidence Act of 1872. The Act is made up of three parts. The first part is about which facts are relevant. This is covered in Sections (5 to 55). The second part is about proof. You can find this in Sections (56 to 100) The third part is about producing evidence. What effect it has. The Act talks about this in Sections (101 to 167). The major sections of the Act are relevancy (Sections 5-11), admissions and confessions (Sections 17-31), with safeguards under Sections (24-27), oral and documentary evidence (Sections 59-73), primary and secondary evidence (Sections 62-65), burden of proof and presumptions (Sections 101-114A), and examination of witnesses (Sections 118-134). The Indian Evidence Act is really important because it made things simple and clear, for courts. The Indian Evidence Act brought order to courts. The Indian Evidence Act has been the foundation of how evidences used in Indian courts for a very long time about 150 years. 

The Bharatiya Sakshya Adhiniyam, 2023 makes law regarding evidence more streamlined with the modern world. The main law now includes things that were first introduced by the Information Technology Act of 2000. This includes the idea that electronic records can be used as evidence. The Information Technology Act of 2000 had rules about this, which were connected to Sections 65A and 65B of the 1872 Act.

The BSA also makes sure the rules of evidence are in line with what the constitution says in Articles 14, 20 and 21. These articles are about being fair. They are also about following the process and making sure evidence is reliable. The Information Technology Act of 2000 and the BSA are important, for the rules of evidence. The Indian Evidence Act of 1872 and the Bharatiya Sakshya Adhiniyam of 2023 show us how the law of evidence in India has changed over time.

The Indian Evidence Act was the foundation of the law of evidence in India The Bharatiya Sakshya Adhiniyam of 2023 builds on this foundation by fixing the problems from the era and dealing with the realities of technology. This transition represents a move from colonial codification to a modern, constitutionally compliant, and technology-responsive regime of evidence to ensure the continued relevance of the administration of justice.

1.3 Judicial Precedents

Judicial interpretation plays a major role in shaping the law , similarly judicial rulings have played a significant role in shaping law of evidence, 1872, and further the BSA, 2023, 

The colonial period law – IEA, was forced to adapt to the contemporary ideas and interest to dispense justice, later this significantly influenced the drafting and orientation of the Bharatiya Sakshya Adhiniyam, 2023.

One of the most authoritative judgements in this regard is Anvar P.V. v. P.K. Basheer, 2014. It holds immense importance in today’s world where technology has changed dynamics. It is a notable case decided on the admissibility of electronic evidence in a court of law. The court interpreted the application of provisions 63,65 and 65B of IEA, 1872. In this case, SC overruled its earlier judgement made in the case of State (NCT of Delhi) v. Navjot Sandhu (2005), commonly known as the Parliament attack case. It observed that an electronic record as a shred of secondary evidence shall not be admissible before the court as evidence unless the requisite laid under Section 65B are fulfilled. 

Therefore, it was held in this case that electronic evidence is admissible in a court of law only if the mandatory requisites of Section 65B of Indian Evidence Act are abided by.  

Another pertinent case in relation to Section 65B was Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) where the strict approach adopted in Anvar P.V. was revisited. A three-judge bench reaffirmed the need for mandatory nature of Section 65b certification but alleviated the problem by allowing to produce certificate at a later stage in certain cases. 

In relation to confessions and criminal evidence, one of the most significant cases is State (NCT) of Delhi) v Navjot Sandhu (Parliament Attack Case) 2005.  Herein the court made an exception by allowing the admissibility of electronic evidence even without strict compliance with Section 65B, instead relying on general principles of proof. Later the decision was overruled in Anvar P.V., where the prominence of Section 65B requisites was mentioned. This case underscored the necessity of a clearer statutory framework, the BSA attempts to cover such statutory lapses in IEA. 

Another case which highlighted the importance of digital evidence is Tomaso Bruno v. State of Uttar Pradesh (2015) . In this case SC highlighted the importance of presence of definitive evidence. In this case prosecution’s case was predominantly relying on circumstantial evidence on the absence of CCTV footage. The Court emphasized the necessity for circumstantial evidence to form a complete and unbroken chain pointing conclusively to the accused’s guilt. 

All the cases pertain to electronic evidence and its authentication and admissibility. BNS has taken into consideration the importance of electronic evidence in this technology driven world and has incorporated sections and changes regarding the provisions for proper dispense of justice.  

1.5. Conclusion 

The transition from IEA, 1872, to BSA, 2023, has not been smooth but certainly impactful. While the BSA retains the majority of the provisions present in IEA, 1872 the addition of electronic evidence is on of the most significant change alongside other changes such as omitting colonial era laws and change in the definitions of few terms to streamline it with the contemporary world. The BSA, 2023, marks a significant milestone in the evolution of Indias’s evidence law, particularly in its treatment of digital media. There are still certain procedural lapses which needs attention and strong legal framework. 

Therefore, India must adopt clear procedural knowledge, enhanced judicial oversight and technological safeguard to strengthen the legal and procedural framework of BSA, 2023.

Frequently Asked Questions (FAQ)

1. Does the Bharatiya Sakshya Adhiniyam, 2023 fundamentally change the law of evidence, or does it simply restate the Indian Evidence Act, 1872?  

The BSA does not dismantle the foundational principles of evidence law established under the Indian Evidence Act, 1872. Instead, it maintains doctrinal continuity while bringing about structural and contextual reform. Key concepts like relevancy of facts, admissibility, burden of proof, presumptions, and rules related to admissions and confessions remain mostly unchanged. However, the BSA removes obsolete colonial era terminology and provisions, tailored sections according to the requirements of the contemporary society, and clearly includes electronic and digital evidence within the main legal framework. This marks a real modernization, not just a superficial renaming.  

2. How has the admissibility of electronic and digital evidence changed under the BSA?  

Under the Indian Evidence Act, electronic records were considered secondary evidence, mainly governed by Sections 65A and 65B, as interpreted in cases like  Anvar P.V. v. P.K. Basheer (2014) and reaffirmed in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020). The BSA significantly improves this position by broadening the definition of “document” to include electronic and digital records and by recognizing these records as primary evidence, subject to legal safeguards. This shift shows legislative recognition of the importance of digital evidence in modern litigation while maintaining the need for authenticity and reliability.  

3.Does the BSA eliminate the need for authentication or certification for electronic evidence?  

No. While the BSA gives higher evidentiary status to electronic records, it does not lessen the requirement for authenticity. The burden still falls on the party using electronic evidence to prove its integrity, source, and reliability. The focus on certification or authentication reflects ongoing judicial concerns seen in cases like Anvar P.V. It ensures that the probative value of digital evidence remains intact despite potential risks of tampering or manipulation.  

4. What are the significant decolonizing changes introduced by the BSA from a legal standpoint?  

The BSA removes provisions and references historically linked to British legal dominance, such as presumptions related to documents acceptable in England and mentions of British institutions. Terminology has been updated, replacing terms like “barrister,” “vakil,” or “pleader” with “advocate” and using constitutionally aware language instead of outdated or stigmatizing terms. These changes are not just about wording; they reflect a move towards a local, constitutionally aligned evidentiary framework consistent with Articles 14, 20, and 21 of the Constitution.  

5. What is the practical impact of the BSA on trial courts and legal practitioners?  

For trial courts and practitioners, the BSA requires more involvement with digital forensics, technical authentication, and managing electronic records. While it simplifies admissibility by integrating electronic evidence into the main statute, it also increases the responsibility for litigants and lawyers to meet technical and procedural requirements. In practice, this may lead to greater dependence on expert testimony and closer judicial examination of digital evidence. Ultimately, it improves evidentiary accuracy and aligns trial processes with current methods of communication and crime.  

Disclaimer: The content shared in this blog is intended solely for general informational and educational purposes. It provides only a basic understanding of the subject and should not be considered as professional legal advice. For specific guidance or in-depth legal assistance, readers are strongly advised to consult a qualified legal professional.