Bharatiya Sakshya Adhiniyam (BSA) 2023: Replacing the Indian Evidence Act

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Introduction

The **Indian Evidence Act, 1872** -- one of the oldest and most foundational pieces of legislation in India's legal framework -- was replaced on **July 1, 2024** by the **Bharatiya Sakshya Adhiniyam, 2023 (BSA)**. This replacement was part of the simultaneous overhaul of India's three core criminal law statutes, alongside the replacement of the Indian Penal Code by the Bharatiya Nyaya Sanhita (BNS) and the Code of Criminal Procedure by the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The BSA was passed by Parliament on **December 20, 2023**, received Presidential assent on **December 25, 2023**, and came into force on **July 1, 2024**. The new evidence law retains much of the substantive framework of the Indian Evidence Act -- the foundational principles of relevancy, admissibility, and burden of proof remain largely intact -- but introduces critical updates to address the digital age, modernise the treatment of electronic evidence, and incorporate judicial developments from over 150 years of jurisprudence.

This article provides a comprehensive educational overview of the Bharatiya Sakshya Adhiniyam, 2023 -- its structure, key changes from the Indian Evidence Act, the new framework for electronic evidence, changes in oral evidence and expert opinion, and a section mapping for important provisions.

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Why Was the Indian Evidence Act Replaced?

The Indian Evidence Act was drafted by **Sir James Fitzjames Stephen** and enacted in **1872** during British colonial rule. It governed the admissibility and relevancy of evidence in all judicial proceedings (civil and criminal) for over 152 years. The primary reasons for its replacement included:

1. **Colonial origin and archaic language**: The Act used Victorian-era English and reflected colonial assumptions about Indian society, including provisions regarding accomplice testimony and certain presumptions.

2. **Inadequate treatment of electronic evidence**: The Information Technology Act, 2000 had introduced **Section 65A and Section 65B** into the Evidence Act to deal with electronic records. However, these provisions proved insufficient and generated enormous litigation over the conditions for admissibility of electronic evidence, as witnessed in cases like **Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473** and **Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1**.

3. **Advances in forensic science**: DNA profiling, digital forensics, audio-visual recordings, and other scientific evidence had become central to modern litigation, but the Evidence Act did not comprehensively address their admissibility and evidentiary value.

4. **Judicial developments**: Over 150 years, the Supreme Court and High Courts had significantly developed evidence law through interpretive judgments that needed legislative codification.

5. **Need for simplification**: The Evidence Act's structure, while logically sound, used archaic terminology and could benefit from modernisation and clearer drafting.

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Structure of the BSA

The BSA comprises **170 sections** organised into parts and chapters, compared to the Indian Evidence Act's **167 sections**. The basic structure of the law of evidence is retained:

- **Part I**: Relevancy of facts (which facts may be proved)

- **Part II**: On proof (documentary evidence, oral evidence, electronic evidence)

- **Part III**: Production and effect of evidence (burden of proof, estoppel, presumptions)

The BSA retains the core evidentiary principles established by the Indian Evidence Act while integrating technology-related provisions throughout the statute rather than treating them as addendums.

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Key Changes Introduced by the BSA

1. Electronic Evidence -- Section 63 (Replacing Section 65B)

The most significant change in the BSA is the comprehensive overhaul of the framework for **electronic evidence**. **Section 63 of the BSA** replaces the controversial **Section 65B of the Indian Evidence Act** and provides a unified, clearer framework for the admissibility of electronic records.

Under the Indian Evidence Act, **Section 65B** required a **certificate** from a person who had control over the computer or electronic device, certifying certain conditions about the electronic record. This provision generated extensive litigation and conflicting judicial interpretations:

- In **Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473**, the Supreme Court held that electronic evidence could only be proved through a certificate under Section 65B(4) and that secondary evidence provisions (Sections 63 and 65) could not be used as an alternative.

- In **Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801**, the Court appeared to relax this strict requirement for cases where the electronic device was in the possession of the opposing party or a third party.

- In **Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1**, a three-judge bench of the Supreme Court definitively held that the **Section 65B(4) certificate is mandatory** for admissibility of electronic evidence, with the only exception being when the original electronic device itself is produced before the court.

**Section 63 of the BSA** addresses these issues by:

- Providing that the **contents of electronic records** may be proved by any person who has knowledge of the electronic record or who can speak to its contents

- Requiring a **certificate** identifying the electronic record and describing the manner of its production, but with a more streamlined certification process

- Allowing the court to **presume** the genuineness of electronic records in certain circumstances

- Treating **electronic records as documents** (both primary and secondary evidence provisions apply)

- Providing for the admissibility of **computer output** including printouts, data stored on electronic media, and copies of electronic records

2. Expanded Definition of "Document" -- Section 2(1)(d)

**Section 2(1)(d) of the BSA** expands the definition of "document" to expressly include **electronic and digital records**. The definition now covers:

- Any matter expressed or described upon any substance by means of letters, figures, or marks

- **Electronic records** as defined in the Information Technology Act, 2000

- **Emails, server logs, documents on computers, laptop, smartphone**

- Data stored on **electronic media**, including hard disks, memory cards, and cloud storage

- **Messages, websites, locational evidence, voice mail messages**

This is a significant improvement over the Evidence Act, where the definition of "document" in Section 3 did not expressly include electronic records, and the IT Act amendments had to be read in conjunction.

3. Oral Evidence -- Section 22

**Section 22 of the BSA** (corresponding to Section 59 of the Evidence Act) provides that oral evidence must be **direct**. The BSA retains this fundamental principle but adds an important clarification:

- If oral evidence refers to a fact which could be **seen**, it must be the evidence of a witness who says they saw it

- If it refers to a fact which could be **heard**, it must be the evidence of a witness who says they heard it

- If it refers to a fact which could be **perceived by any other sense** or in any other manner, it must be the evidence of a witness who says they perceived it in that manner

- If it refers to an **opinion or the grounds of that opinion**, it must be the evidence of the person who holds that opinion

The BSA also clarifies that if oral evidence refers to the **contents of a document or an electronic record**, the best evidence rule requires the production of the document or electronic record itself.

4. Expert Opinion and DNA Evidence -- Sections 39 and 46

The BSA significantly strengthens the provisions relating to **expert opinion**:

**Section 39** (corresponding to Section 45 of the Evidence Act) expands the categories of expert evidence to expressly include:

- Foreign law

- Science or art

- **Handwriting and finger impressions**

- **Electronic evidence and digital forensics**

- **DNA profiling and analysis**

**Section 46 of the BSA** is a new provision that expressly deals with **opinions as to electronic and digital records**. When the court has to form an opinion on any matter relating to electronic records, the opinion of a person specially skilled in the field of **information technology, electronic communication, data analytics, or digital forensics** is a relevant fact.

Regarding **DNA evidence**, the BSA does not create a standalone section for DNA but strengthens its treatment through:

- Express inclusion of DNA profiling under expert opinion (Section 39)

- Recognition of DNA evidence as a form of scientific evidence admissible under the general provisions

- The ability of courts to order DNA tests as part of the investigation

The Supreme Court in **Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women (2010) 8 SCC 633** had already upheld the power of courts to direct DNA testing, and the BSA provides a clearer statutory basis for this.

5. Admissibility of Electronic Records as Primary Evidence -- Section 57

**Section 57 of the BSA** provides that the following shall be deemed as **primary evidence**:

- The original document itself

- Where a document is executed in several parts, each part is primary evidence

- Where a document is executed in counterpart, each counterpart is primary evidence against the party executing it

- **Where an electronic or digital record is created simultaneously or stored in multiple devices, each copy is primary evidence**

This is a crucial change. Under the Evidence Act, there was significant confusion about whether a copy of an electronic record (e.g., a backup of an email) was primary or secondary evidence. The BSA clarifies that where electronic records are stored across multiple devices simultaneously (as is the nature of digital data), each such copy is **primary evidence**.

6. Secondary Evidence of Electronic Records -- Section 58

**Section 58 of the BSA** (corresponding to Section 63 of the Evidence Act) has been updated to include:

- Copies of documents including those made from the original by **electronic or mechanical processes** which ensure the accuracy of the copy

- Copies of **electronic records** as defined in the IT Act

- **Oral accounts of the contents** of a document or electronic record by a person who has seen or perceived it

7. Presumptions Regarding Electronic Records -- Section 83

**Section 83 of the BSA** (corresponding to Section 85A-85C of the Evidence Act) provides for presumptions regarding electronic records:

- The court **may presume** that any electronic record purporting to be an **electronic signature** was affixed by the person by whom it purports to have been affixed

- The court may presume that electronic records produced from **proper custody** are genuine

- The court may presume that an **electronic message forwarded** by the originator through an electronic mail server was sent by the originator

8. Admissions in Electronic Form -- Section 18

**Section 18 of the BSA** (corresponding to Section 17 of the Evidence Act) now expressly provides that an **admission** includes a statement in **oral, documentary, or electronic form** that suggests an inference about a relevant fact.

9. Joint Trials -- Electronic Evidence in Multi-Party Cases

The BSA clarifies the use of electronic evidence in cases involving multiple parties by providing that electronic records are admissible against all parties to the proceedings if the conditions of admissibility are satisfied, and not merely against the party who produced or generated them.

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Indian Evidence Act to BSA Section Mapping (Key Provisions)

| Subject | Evidence Act Section | BSA Section |

|---|---|---|

| **Definitions** | 3 | 2 |

| **Relevancy** | 5-16 | 4-16 |

| **Admission** | 17-23 | 18-23 |

| **Confession** | 24-30 | 24-28 |

| **Dying declaration** | 32 | 26 |

| **Relevancy of judgment** | 40-44 | 35-38 |

| **Expert opinion** | 45-51 | 39-46 |

| **Character evidence** | 52-55 | 47-50 |

| **Oral evidence (direct)** | 59-60 | 22-23 |

| **Documentary evidence** | 61-66 | 57-63 |

| **Electronic records** | 65A-65B | 63 |

| **Public documents** | 74-78 | 68-72 |

| **Presumptions regarding documents** | 79-90A | 73-83 |

| **Exclusion of evidence** | 91-100 | 84-93 |

| **Burden of proof** | 101-114A | 104-118 |

| **Estoppel** | 115-117 | 119-121 |

| **Witness competency** | 118-134 | 122-137 |

| **Examination of witnesses** | 135-166 | 138-170 |

| **Improper admission/rejection** | 167 | 170 |

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Comparison: Indian Evidence Act vs. BSA

| Feature | Indian Evidence Act 1872 | BSA 2023 |

|---|---|---|

| **Total sections** | 167 | 170 |

| **Electronic evidence framework** | Sections 65A-65B (added by IT Act) | Comprehensive (Section 63 and throughout) |

| **Definition of document** | Did not expressly include electronic records | Expressly includes emails, server logs, digital data |

| **Primary evidence of e-records** | Ambiguous | Each copy on multiple devices is primary (Section 57) |

| **DNA evidence** | Not expressly addressed | Included under expert opinion (Section 39) |

| **Digital forensic experts** | Not expressly included | Expressly recognised (Section 46) |

| **Certificate for e-evidence** | Section 65B(4) -- strict, caused litigation | Section 63 -- streamlined process |

| **Presumption for e-records** | Limited (Sections 85A-85C) | Enhanced (Section 83) |

| **Admission in electronic form** | Not express | Expressly included (Section 18) |

| **Language** | Victorian-era English | Modern, simplified language |

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Practical Implications

For Litigants and Advocates

1. **Preserving electronic evidence**: With electronic records now squarely within the evidentiary framework, parties must ensure proper preservation and documentation of electronic evidence from the earliest stage.

2. **Certification process**: While the BSA simplifies the certification requirement, a certificate under Section 63 remains essential for the admissibility of electronic records. Advocates must ensure compliance.

3. **Expert witnesses**: The express recognition of digital forensic experts means parties should consider engaging such experts when electronic evidence is central to their case.

4. **Chain of custody**: The BSA's emphasis on electronic evidence makes the chain of custody (ensuring the evidence has not been tampered with) critically important.

For Courts

1. Courts now have a clearer statutory framework for dealing with electronic evidence, reducing the need for interpretive gymnastics.

2. The presumptions regarding electronic records (Section 83) provide a pragmatic approach, recognising the ubiquity of electronic communication.

3. The treatment of multiple copies as primary evidence (Section 57) reflects the technical reality of how digital data is stored and transmitted.

For Law Enforcement

1. Investigation agencies must develop capacity in digital forensics and electronic evidence collection.

2. The mandatory forensic evidence collection under the BNSS (for offences of 7+ years) must be complemented by proper evidence preservation procedures under the BSA.

3. Statements and confessions recorded electronically must comply with BSA requirements to be admissible.

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Frequently Asked Questions

When did the BSA come into effect?

The Bharatiya Sakshya Adhiniyam, 2023 came into effect on **July 1, 2024**, simultaneously with the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Does the BSA apply to both civil and criminal cases?

Yes. Like the Indian Evidence Act before it, the BSA applies to **all judicial proceedings** before courts, including both civil and criminal cases. However, it does not apply to proceedings before arbitrators or affidavits.

What is Section 63 of the BSA?

**Section 63 of the BSA** replaces the erstwhile **Section 65B** of the Indian Evidence Act and provides a comprehensive framework for the admissibility of electronic records. It addresses the certification process, the conditions for admissibility, and the evidentiary value of electronic records.

Is a certificate still required for electronic evidence?

Yes. **Section 63** of the BSA retains the requirement for a certificate for the admissibility of electronic records, but the process has been streamlined compared to the requirements under Section 65B of the Evidence Act.

Can WhatsApp messages be used as evidence?

WhatsApp messages, emails, and other electronic communications are admissible as evidence under the BSA, provided the requirements of **Section 63** are satisfied. The party relying on such evidence must produce a certificate and comply with the conditions for admissibility of electronic records.

How does the BSA treat DNA evidence?

The BSA includes DNA profiling under the category of expert opinion in **Section 39**. DNA evidence is admissible as scientific evidence, and the opinion of a qualified expert on DNA analysis is a relevant fact that the court may consider.

What is the difference between primary and secondary electronic evidence under BSA?

Under **Section 57**, where an electronic record exists simultaneously on multiple devices (e.g., an email stored on a server and a recipient's device), each copy is treated as **primary evidence**. **Secondary evidence** under Section 58 includes copies made through electronic processes and oral accounts of electronic records.

Does the BSA change the rules on confession?

The fundamental rules regarding confessions remain largely the same. Confessions to police officers remain inadmissible under **Section 24** (corresponding to Section 25 of the Evidence Act). Confessions made in police custody remain inadmissible unless made in the immediate presence of a Magistrate under **Section 25** (corresponding to Section 26 of the Evidence Act).

What happens to evidence collected under the old Evidence Act?

Evidence that was lawfully collected and admitted before July 1, 2024 under the Indian Evidence Act continues to be valid. The transition provisions ensure that proceedings pending before the commencement of the BSA are not prejudiced.

How does the BSA affect expert testimony?

The BSA expressly recognises **digital forensic experts** and **electronic evidence specialists** under Section 46, in addition to the traditional categories of experts under Section 39. This provides a clearer legal basis for courts to rely on expert opinion in matters involving electronic records and digital data.

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*Disclaimer: This article is published for educational and informational purposes only. It does not constitute legal advice, a solicitation, or an advertisement. The information provided is based on Indian laws as of the date of publication and may be subject to change through legislative amendments, judicial pronouncements, or executive notifications. The Evidence Act-to-BSA section mapping provided is for general reference and may not capture all nuances of the new provisions. No reader should act or refrain from acting based on this article without seeking professional legal advice tailored to their specific facts and circumstances. For personalised guidance, please consult a qualified advocate.*