Bharatiya Sakshya Bill was introduced in Lok Sabha on 11 August 2023 amongst the three other Bills, namely, Bharatiya Nyaya Sanhita Bill, 2023 and Bharatiya Nagarik Suraksha Sanhita Bill, 2023 with a promise to protect the rights of all Indian citizens. The Bharatiya Sakshya Bill would abolish the current Indian Evidence Act of 1872 whereas Bharatiya Nyaya Sanhita Bill would replace the Indian Penal Code, 1860 and Bharatiya Nagarik Surasha Sanhita Bill would replace Code of Criminal Procedure 1973.
The Bharatiya Sakshya bill aims to consolidate and provide general rules and principles of evidence for fair trial. The current Indian Evidence Act is archaic and outdated, as the colonial British government introduced it, and does not sit on par with the recent technological and societal advancements of India. Bharatiya Sakshya Bill attempts to align the Indian Judiciary with the current technological progress and accommodates the diverse, dynamic society.
The new Bill does retain several parts of the Act. It comprises 11 chapters, including 170 clauses. Currently, the three Bills have been referred to the Parliamentary standing committee for recommended changes.
One of the most notable changes in the present Bill is the admissibility of electronic media as evidence in the trial. The electronic evidence will be considered in the form of oral and documentary evidence. According to Section 59 of The Indian Evidence Act of 1872, the contents of electronic records cannot be proved by oral evidence. However, the new Bill includes any information provided electronically as Oral evidence. An electronic record of emails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence and voice mail messages stored on digital devices will be considered as documents.
Certain colonial references have been removed from the Bill in light of keeping the Bill well within the changes brought after independence, According to the Press release by the Ministry of Home Affairs the three old laws were a sign of slavery and were implemented by the British for their benefit rather than promoting justice.
The idea behind the new Bill is to strengthen and protect the rights of the citizens by bringing justice rather than punishment. The new Bill rectifies this problem and makes it more suitable for the Indian Justice system. It will also address the new emerging challenges in jurisprudence that were not present in the 19th century, e.g., the use of technology in the criminal justice system.
Primary and secondary evidence: The Bill expands the scope of primary and secondary evidence. Primary evidence includes the original document and its part, under which electronic or digital records and video recordings will be included in the Bill.
Secondary evidence contains documents that can prove the contents of the original or its copies. Secondary evidence includes certain copies of the original documents and oral accounts of the document’s content. The Bill further expands secondary evidence to include:
(i) oral and written admissions, and (ii) the testimony of a person who has examined the document and is skilled in the examination of documents
Joint Trials: A joint trial is a trial in which two or more accused persons are tried for the same offence at the same time with the same evidence. Under the act, the confession made by one of the accused will affect the other accused as well, treating it as a confession against both parties. The Bill further adds to this provision by stating that a trial of multiple persons, where an accused has not responded to an arrest warrant, will be treated as a joint trial.
- The language problem
The three new bills have been named in Hindi, changing the names of the Acts from English. The Sanskritised nature of the names violates the diversity of India, by dismissing the fact that more than half of them do not know Hindi. This poses a question to the very nature of the bills as it promises to sit at par with the diversity and advancement of modern India, at the same time limiting the very scope of it being named in Hindi. Most of the legal system in India functions in English, so naming the Bill in a language spoken by 43.63% of the population (According to the 2011 census) does not make sense.
- Problem with the admissibility of electronic evidence
Before pushing the trials towards electronic mode, we must ask this question- Are we well equipped to store confidential information like examination/statements of accused and witnesses, evidence, investigation, and trial records? The infrastructure has to be strong and magnificent in order to protect the citizens, especially the parties involved, from getting it stolen, leaked, breached, or tampered with. If any of the above happens, it would be tantamount to a violation of the Right to Privacy of the parties, which is intrinsic.
Though opinions on the bills have been divided, it is undeniable that the antiquated Indian criminal laws that have been in place since the colonial era needed to be changed. This is because modern crime, criminal psychology, and technological advancements have all undergone significant changes. It is therefore expected that the recently introduced bills will guarantee a criminal justice system that both effectively serves societal needs and upholds the rule of law.
- The Bharatiya Sakshya Bill, 2023
2. THE BHARATIYA SAKSHYA BILL, 2023
3. PIB Press Release
4. Annotated Comparison of Bharatiya Sakshya Bill, 2023 and the Indian Evidence Act, 1872
About the Author
Prakriti Kandwal is a research intern at IMPRI.
Acknowledgement: The author would like to thank Mansi Garg and Tanu Paliwal for their kind comments and suggestions to improve the article
Disclaimer: All views expressed in the article belong solely to the author and not necessarily to the organisation.