What's New in Indian Evidence Law? A Look at BSA, 2023

The Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as the “BSA”) replaces the Indian Evidence Act, 1872 (hereinafter referred to as the “IEA”), which has long been the primary legislation concerning law related to evidence in all proceedings before the Court. This article explores some of the significant changes introduced by the BSA. To ensure better clarity, the authors have included a comparative chart contrasting the provisions of the IEA with those of the BSA, highlighting all the changes made.

Key Additions and Alterations

Definition of Experts

Opinions of experts on the topics as mentioned in Section 45 of the IEA have been getting increasingly relevant with the passage of time due to the development of modern sciences and its deep integration with the entire process of dispensation of justice.[1] Even though expert evidence is not considered conclusive proof in itself, its importance is substantial in proceedings, and it assists the Court in the formation of conclusions, provided that they are in conformity with other direct evidence.[2] Due to its importance, the BSA reproduces the provision regarding the opinion of experts exactly under Section 39, with the addition of the words “or any other field”.

This is a significant change in the literature of expert opinions as now Courts may rely upon expert opinions on any field that requires or necessitates, or is better served with the opinion of an expert, and not just the limited fields that were previously mentioned under Section 45 of the IEA, pertaining to handwriting, science, art, foreign law or finger impressions.

Removal of Archaic and Use of Inclusive Language

The BSA also resolves to alter archaic legal language prevalent in the IEA to replace it with modern[3], acceptable and inclusive words and phrases. One of the examples of this change is Section 124 of the BSA, which replaces Section 118 of the IEA, pertaining to the provision of a competent witness. In the IEA, the explanation of the Section used the word “lunatic” to explain the position with regards to the competency to testify of persons of unsound mind. The BSA has replaced the word with the words “a person of unsound mind”.

Various opinions highlight that the use of words like “lunatic” or “idiot” have a negative impact on how society perceives individuals with mental illnesses, creating a sense of polarisation among them from a functional society.[4] Therefore, the removal of such terms from legislations and thereby from judicial discourse is a positive step expected to foster better integration and acceptance of persons with mental illnesses into society.

Various words and phrases which were linked to India’s colonial past, present in the IEA by virtue of it being drafted by Sir James F. Stephen, have been completely removed and the Sections of the BSA now include language that aptly replaces them. For example, the words “of Her Majesty’s Dominions”, used in Section 86 of the IEA, in the context of the presumption of copies of foreign judicial records, have been removed and are now replaced with the words “of any country beyond India”, under Section 88(1) of the BSA.

Taking Cognizance of the Role of Technology

The advent of technology and its role in all of the major sectors and institutions of the country, including the operation of Courts[5] and other judicial offices is a remarkable and inevitable shift. Various Courts have the facility of a virtual hearing now, and it has smoothly integrated with the regular functioning of such Courts. Keeping this change in mind, the BSA has added “electronic and digital records” within the purview of the definition of “document” under Section 2(d).

Furthermore, even the definition of evidence under Section 2(e) of the BSA has been altered and the words “statements given electronically” have been added, increasing the purview of evidence that can be given in conformity with the fact a lot of exchanges of communication take place digitally, making it only natural to bring those into the fold of the definition of evidence. In line with these changes, the entire BSA includes words such as “digital” in order to include electronic records in the realm of applicability of other provisions.

To bolster the admissibility of electronic evidence, the BSA introduced Section 61, which provides that electronic evidence cannot be declared inadmissible solely by virtue of being in an electronic form.

Other Relevant Changes

The substantive provision of estoppel as given under the IEA from Sections 115-117 has been amended, in particular the provision regarding the prohibition of denial of landlord’s title by the tenant. Under the provision of Section 122 of the BSA, no tenant shall be able to deny that the landlord had a title to the property at the beginning of the tenancy, even after the expiry of the tenancy as well; the estoppel applies not only during the continuance of the tenancy but also at “any time thereafter”.

The provision of facts of which the Courts must take judicial notice, which was given under Section 57 of the IEA, has a new sub-section under Section 52 of the BSA, which provides for international treaties and agreements prevalent in the global diaspora, as well as decisions taken by India at international associations.

The scope of “secondary evidence” under Section 58 of the BSA has been expanded to include oral and written admissions as well, and the evidence of a person who is specifically skilled in examining particular documents.

Other notable provisions include the proviso to Section 165, which prevents Courts from requiring any communication between the Ministers and the President of India to be produced before it; the conspicuous omission of the ‘extent’ or territory (in Section 1) to which the BSA extends; and incorporation of ‘coercion’ in the list of acts under Section 22 that renders an accused person’s confession irrelevant in a criminal proceeding.

Conclusion

The BSA has incorporated significant changes to crucial definitions pertaining to the law of evidence, some of which were much-needed given the dynamics of the changing legal framework of the country. A lot of the alterations and additions have kept in mind the social landscape of the country as well, also ensuring that the country’s colonial past is put behind. A majority of the provisions remain unchanged in their language and application, and the evaluation of the changes made will be better understood with subsequent judicial decisions pertaining to them.

Here is a color-coded table of the changes made:

References:

[1] Meena Ketan Sahu, Importance of Expert Opinion in Criminal Justice System in India with special reference to determination of paternity: A Legal Analysis, RESEARCHGATE (Jun. 5, 2024, 11:26 AM), available here.

[2] S. Gopal Reddy v. State of A.P., (1966) 4 SCC 596.

[3] SANSAD, available here (last visited Jun. 05, 2024).

[4] Kathryn A. LaFortune, Eliminating offensive legal language, 49 MONITOR ON PSYCHOLOGY, 29 (2018).

[5] Brandon Moss, The importance of modernised technology in court proceedings, THOMSON REUTERS (Jun. 05, 2024, 11:38 AM), available here.

Image Credits:

Photo by John Blottman on Canva

The BSA has incorporated significant changes to crucial definitions pertaining to the law of evidence, some of which were much-needed given the dynamics of the changing legal framework of the country. A lot of the alterations and additions have kept in mind the social landscape of the country as well, also ensuring that the country’s colonial past is put behind. A majority of the provisions remain unchanged in their language and application, and the evaluation of the changes made will be better understood with subsequent judicial decisions pertaining to them.

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