The Bharatiya Sakshya Adhiniyam (BSA), 2023

1. Introduction 

The Bharatiya Sakshya Adhiniyam, 2023 replaces India’s colonial – era Indian Evidence Act, 1872, modernizing rules for evidence in judicial proceedings. Enacted in December 2023, it incorporates digital advancements while retaining core principles on relevancy, confessions, and burden of proof.

 2. Objectives of Bharatiya Sakshya Adhiniyam, 2023 

The Bharatiya Sakshya Adhiniyam seeks to provide clear guidelines on evidence admissibility, including electronic formats, to reduce ambiguities and ensure consistent judicial application. It promotes fairness by updating language, expanding evidence scope, and incorporating AI/tools for analysis, ultimately streamlining proceedings for faster justice.

3. Structure of the Bharatiya Sakshya Adhiniyam,2023

 The Bharatiya Sakshya Adhiniyam, 2023 is organized into four parts, twelve chapters, and hundred and seventy sections of which 23 sections are modified, five repealed and one new addition. This structure covers preliminary provisions, relevancy of facts, proof, production of evidence, witnesses, and repeal, using modern language and gender- sensitive terms.

1. Part I: - Preliminary Chapter I (Section 1-2)

 Outlines the short title, application across India (including Jammu and Kashmir), commencement, and definitions. It expands terms like “document” to include electronic records and “evidence” to cover oral, documentary, and electronic statements

2. Part II: - Relevancy of Facts – Chapters II 

Sections 3 – 14: Detail Relevant Facts, including state of mind/ body; Sections 15- 25: Admissions; Sections 26 – 27: Statements by persons who cannot be called as witnesses; Section 28 – 32: Statements made under special circumstances; Section 34 – 38: Judgements of Courts when relevant; Section 39 – 45: Opinions of third person when relevant; Sections 46 – 50: Character when relevant

3. Part III: - Proof - Chapters III to VI

Section 51 – 55: Facts Forming part of the same transactions Sections 56 – 93: Of Documentary Evidence; Sections 94 – 103: Of the Exclusion of Oral Evidence by Documentary Evidence 

4. Part IV: - Production and Effect of Evidence – Chapter VII 

Sections 104 - 120: Burden of Proof; Sections 121 -123: Estoppel; Sections 124 - 139: Witnesses; Sections 140 - 168: Examination of Witnesses; Section 169 – Improper Admission and Rejection of Evidence and Section 170 – Repeal and Savings 

Last Schedule – contains Certificate needed in Section 63(4)(c)- for electronic evidence.    

4. Concept of Evidence Under Bharatiya Sakshya Adhiniyam, 2023 

Section 2(e) put forward the explanation and definition of “evidence” 

Evidence means all statements given electronically which the court permits or requires to be made before it by witnesses in relation to matter of fact under inquiry and such statements are called oral evidence. Also. Evidence includes all documents including electronic or digital records produced for the inspection of the court and such documents are called documentary evidence  

5. Comparison: BSA vs Indian Evidence Act, 1872 

No.	Topic	The Indian Evidence Act, 1872	The Bharatiya Sakshya Adhiniyam, 2023
1.	“Document” Definition	Focused on physical medium (paper, stone)	Includes digital records (emails, server logs, SMS)
2.	Electronic Evidence	Categorized mostly as secondary evidence	Elevated to Primary Evidence
3.	Territorial Scope	Applied to the “whole of India”	Omits the specific territorial clause
4.	Court – Martial	Excluded certain military courts	Explicitly applies to Court – Martial
5.	“India” Definition	Defined specifically in Section 3	Removed: relies on general legal definitions
6.	Terminology	Colonial terms like “Barrister “ or “Pleader”	Modern terms like “Advocate”
7.	List	Certified Copies, mechanical copies, oral accounts	Adds oral/written admissions; skilled expert evidence for numerous documents
8.	Oral Evidence	Statements made    physically in court	Includes statements given electronically
9.	Secondary Evidence	Narrow scope for using copies	Expanded to include cases where genuineness is disputed
10.	Joint Trial (Absconding)	Confessions used only if tried together	Includes trials where an accused has absconded
11.	Discovery of Facts	Standalone Section 27	Merged as a provision to Section 23
12.	Confessions	Fragments in Sections 24, 28, 29	Consolidated into Section 22
13.	Coercion and Confessions	Not explicitly mentioned in Section 24	“Coercion” explicitly added as a ground
14.	Telegraphic Messages	Presumption of telegraphs (Section 88)	Deleted entirely (obsolete technology)
15.	Expert Opinion	Limited Fields (science, art, fingertips)	Expanded to “any other field” (includes forensics)
16.	Examiner of Evidence	Sections 45A (for digital evidence)	Integrated as a sub – section in section 39
17.	Legacy Illustrations	Referenced British cities (London, Lahore)	Updated to Kolkata, Mumbai, Chennai, Leach
18.	Gender Neutrality	Used “Man/his” throughout	Replaced “man” with “person”
19.	Public Documents	Traditional List of Records	Includes electronic public records as equivalent
20.	Witness Protection Philosophy	Witness Blind	Works in tandem with BNSS to ensure the manner of giving evidence is legally recognized.

- Electronic Records Admissibility: Section 61 deems electronic records admissible like other documents, subject to Section 63, mandates HASH certificates in a schedule for integrity, plus device details. Overrides prior rulings requiring only sec 65B Certificates

- Accomplice Testimony (BSA – Section 138): Now requires corroboration for conviction, codifying prudence rule.

6. Practical Impact of BSA on Trials 

1. Admissibility of Electronic Evidence

Change: Previously, electronic records were treated as “secondary” evidence requiring a complex, often contested certificate. The Bharatiya Sakshya Adhiniyam changes the default setting. While the certificate is still required for admissibility, the format is now standardized in a schedule attached to the Act. The Bharatiya Sakshya Adhiniyam emphasizes ”HASH Values” to prove integrity.

Impact: Lawyers no longer need to produce the physical hard drive or server to prove a document’s existence. If you have the file and it comes from “proper custody”, the court treats it with the same weight as an original paper contract.

The new schedule requires the certificate to be signed by two people- a person in charge of the device/system and an expert. This makes the certificate harder to fabricate but arguably more burdensome to obtain for private litigants

Prosecution agencies must now record the HASH Values of a seized mobile/laptop immediately. If the HASH Value at the trial stage doesn’t match seizure stage, the defence can easily claim tampering.

2. Witness Examination & Appearance

Change: The requirements for physical presence has been relaxed to prevent trial delays caused by travel or distance. Witness including experts, police officers, and even the accused, can now depose electronically.

Impact: A forensic expert from Hyderabad no longer needs to fly to a Delhi court for a 10- minute confirmation of a report. They can testify via video link. Victims of sensitive crimes can testify from a “safe zone” without facing the accused physically, reducing the trauma and intimidation.

3. Expansion of “Expert Opinion”

Change: The Indian Evidence Act limited experts to “foreign law, science, art, and handwriting”. The Bharatiya Sakshya Adhiniyam broadens this scope. “Any other field” the text now includes experts on any other fields. Combined with new Criminal procedure code, the Bharatiya Sakshya Adhiniyam places heavier reliance on forensic reports.

Impact: Courts can now legally admit opinion evidence from niche fields like crypto – currency analysis, voice modulation forensics, crash analytics, and ethical hacking without needing to stretch the definition of science.

In rape and murder trials, the Forensic Science Lab(FSL) report effectively becomes the “star witness”. 

4. Joint Trials & Absconders

Change: The Indian Evidence Act allowed co – accused’s confession to be used only if they were “jointly tried”. If one accused ran away, the trial split , and the confession became useless against them. The Bharatiya Sakshya Adhiniyam states that if an accused is absconding(proclaimed offender), the trial is deemed to be a joint trial

Impact: If the “Kingpin” is hiding abroad but the “henchman” are caught, the henchmen’s confessions can now be used as evidence against Kingpin even if he isn’t physically in dock, it  closes a massive loophole used by organized crime syndicates.

5. Police & Discovery of Facts

The controversial section 27 of the Indian Evidence Act (recovery of weapon based on accused’s statement) is now a proviso to Section 23 of the Bharatiya Sakshya Adhiniyam.

Change: their logic remains same, the BSA read with BNSS  and seizure lists must be video graphed.

Impact: A police officer cannot  just “claim” that accused told them where the knife was hidden. The knife must be supported by digital evidence (video), or the statement may be rendered weak or inadmissible.

6. Some other changes

7. Prosecutor: Can expedite trials by using Remote  Testimony for formal witnesses.

8. Civil Litigant: Easier to prove Email/ WhatsApp  Contracts; the “primary evidence” rule reduces the headache of the bringing server experts

9. Judge: Has more power to stop “Fishing inquiries” and can demand a standardized certificate to admit digital records instantly.

7. Conclusion 

In conclusion, the Bharatiya Sakshya Adhiniyam (BSA), 2023, marks a significant evolution in India's evidentiary law, transitioning from the colonial  Evidence Act of 1872 to a modern, tech-savvy framework. Introduced as part of comprehensive criminal justice reforms, BSA seeks to decolonise legal practices and adapt to digital realities. Its structure comprises 11 chapters and 170 sections, offering a clear, adaptable guide covering fact admissibility, confessions, and digital evidence handling.

Bharatiya Sakshya Adhiniyam’s objectives focus on boosting judicial efficiency, ensuring fairness, and incorporating electronic records and digital signatures as primary evidence, minimising past ambiguities. Compared to the Indian Evidence Act, BSA preserves essentials like relevance and proof burden but innovates extensively. For example, it upgrades electronic evidence to primary under Section 63, bypassing the old Act's certification burdens and aligning with international norms. BSA also widens confessions (Section 22), adds tamper-proof digital safeguards, and expands expert opinions, resolving issues that prolonged trials and disputes.

Practically, Bharatiya Sakshya Adhiniyam transforms trials by enforcing evidence timelines and allowing audio-visual exams (Section 176), accelerating resolutions, reducing backlogs, and equipping authorities against cybercrimes. It enhances judicial trust by curbing evidence tampering. Yet, hurdles like training needs and infrastructure gaps, especially in rural areas with low digital literacy, must be addressed.

Overall, Bharatiya Sakshya Adhiniyam is a profound reform blending heritage with progress, readying India's evidence system for societal changes. It fosters equitable, accessible justice in the digital age, with ongoing refinements essential for success. This heralds a fresh era in Indian law.

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.