A Comparative Legal Analysis of The Indian Evidence Act, 1872 vs. Bharatiya Sakshya Adhiniyam, 2023

Author Details:-

Rudra Mahendra Lad
2^nd year LL.B
University of Mumbai.

Provisions related to electronic evidence

Abstract

In the given article, first understand what is the meaning of the Bharatiya Sakshya Adhiniyam, Bharatiya = Indian, Sakshya = Evidence, Adhiniyam = Act. We are going to discuss the provisions related to electronic evidence in the Indian Evidence Act and the amendments in Bharatiya Sakhya Adhiniyam, 2023. Electronic evidence has evolved so much in the legal landscape. Increased use of digital platforms, data storage, electronic communications, and submission of electronic evidence are needed in this era. Therefore, in India, the Indian Evidence Act, of 1872 had some inadequacy in electronic evidence provisions in some aspects. Therefore, the amendment is helpful in court proceedings while submitting electronic evidence. BSA introduces contemporary provisions to a better digital era. There were various sections of electronic evidence in IEA, 1872 such as sec 65A- admissibility of electronic records, sec 65B- admissibility of electronic evidence, sec 67A- digital signature, sec 85B, 88A- presumptions of electronic records and 90A- presumptions of time stamps.

The findings of NSA, 2023 are more flexible with streamlined validation of electronic evidence in court. These new provisions of BSA, 2023 bridge the gap between traditional submission, validity, and admissibility of electronic evidence. We will also discuss landmark judgments and how It is related to the old and new evidence Acts, such as the Indian Evidence Act,1872 vs. Bharatiya Sakhya Adhiniyam,2023.

Introduction

The main provisions of electronic evidence in IEA,1872 are sec 65A and 65B. There were only these foundational provisions. These provisions were more challenging but often resulted in bottlenecks due to rigid certification requirements that were limited to Indian courts. Indian Evidence Act, of 1872 had some inadequate facts which weren’t relying on today’s era of filled technology.

In BSA,2023 enacted ton technology advancements in electronic evidence presentation. The amendments are in sections such as sec 32 of IEA,1872 is now in BSA,2023 sec 32 which explains the relevancy of statements as to any law contained in law books including electronic or digital form.

Here in this Article of comparison between the IEA and BSA, we are going to discuss all the small important provisions and the changes related to them pertaining to the new Act that is Bharatiya Sakshya Adhiniyam, 2023. The provisions we are going to discuss are as follows :

Definitions, geographical scope, some legal terms, handwritten opinions, digital signatures, primary and secondary evidence, admissibility of evidence, proper custody of properly certified documents, etc.

Let’s discuss the primary changed provisions in relation to the Indian Evidence Act, 1872, and the inclusion in Bharatiya Sakshya Adhiniyam, 2023:

Sections in IEA,1872	Sections in BSA,2023	Amended Provision of BSA,2023
sec 38	sec 32	which explains the relevancy of statements as to any law contained in law books including electronic or digital form.
Sec 62	Sec 57	The explanations are added. Explanations 5 and 6 have as the primary evidence are digital records and video recording which was secondary evidence in IEA,1872.
Sec 47 and 47a	Sec 41	Opinion as handwriting and signature provisions of IEA,1872 has combined in sec 41 in BSA,2023.
Sec 88	Repealed	Provision regarding telegraphic messages has been repealed.
Sec 65b	Sec 63	Subsections (a) to (e) have been included.
Sec 81a	Sec 81	Provision regarding proper custody of electronic documents added.

The above-mentioned sections are some filtered-out sections which has the primary change in both the statutes and these provisions make a substantial impact in the court proceedings.

Background and Legislative Intent-

The Indian Evidence Act, of 1872 is the legislation from the British-ruled India, at that time the Act primarily addressed physical forms of evidence such as docs, witness testimony, material evidence, and digital technology were not in much practice. Over the years, amendments such as sec 65A and 65B- came from the IT ACT of 2000 to make electronic records admissible in a court of law. Sections like 65A and 65B had rigid certifications and procedures for digital evidence from social media, cloud storage, or encrypted messages.

To bridge this technology gap BSA,2023 is enacted, and indeed in this Act there are so many changes have been made to survive in the digital era and it has provided a strong medium to present all the digital evidence in the court of law. BSA,2023 focuses on the authentication, admissibility, and validity of all the digital evidence in the court of law. Here the proper certifications are required for making electronic evidence more efficient. Conclusively, the legislative intent is just to bridge the gap between the traditional evidence laws and the modern evidence law complexities allowing Indian courts to effectively utilize the evidence in judicial proceedings.

Comparative Analysis

Section 3 Definition of Evidence:
The Indian Evidence Act, of 1872 does not include the proper definition of electronic evidence, expansion of secondary evidence, addition of explanations of provision, primary evidence, and digital records which is now included in Bharatiya Sakhya Adhiniyam,2023.

Sec 86 of IEA,1872 vs. sec 88 of BSA,2023:
Geographical scope in BSA applies to judicial records of anywhere in India but in IEA, applies to judicial records, not like sec 86 of IEA. Sec 86 also shows the political agents for territories or places.

Sec 118 of IEA,1872 vs. sec 124 of BSA,2023:
In sec 118 there is a word lunatic and to add more respect in it in sec 124 of BSA, the word person of unsound mind is added.

Sec 38 of IEA vs. sec 32 of BSA,2023:

Indian Evidence Act, 1872
The IEA, 1872 was only limited to a narrow path with respect to the traditional provisions found in the law books. This section lacked in modern admissibility of digital records, legal databases, and legal references.

Bharatiya Sakshya Adhiniyam, 2023
Section 32 of BSA,2023 contained both electronic and digital formats. Now, the traditional evidence found in law books and digital evidence is equally admissible in the court of law today after adhering to this Act.

Amendment of this section created modernization, which is used in practice treated on par with physical copies. This amendment enhances the scope of relevancy of digital records:

Sec 47 and 47a of IEA, 1872 vs. sec 41 of BSA, 2023:

Indian Evidence Act, 1872
Sec 47 and 47a were only separate sections about handwritten opinions and digital signatures.

Bharatiya Sakshya Adhiniyam, 2023
Both sections are included now in sec 41 of BSA,2023, the opinion regarding the handwriting and digital signature as both individual provisions. These sections are only combined in section 41 of IEA,2023. Merger only denotes and avoids the bifurcated approach which was previously mentioned in IEA,1872.
Consolidation of both the sections, in a single provision simplifies the approach regarding handwritten opinions and digital records.

Sec 62 of IEA,1872 vs. sec 57 of BSA,2023:

Indian Evidence Act, 1872
Here in these given sections, section 62 has physical documents only, and digital documents were excluded from primary evidence. Therefore, the classification of them as secondary evidence required additional certifications to submit in court.

Bharatiya Sakshya Adhiniyam, 2023
In section 57 of BSA,2023, the video recording and digital records are now will be considered as primary evidence respectively in explanations of this section in explanations 5 and 6. This explanation is aimed to suggest that the digital records are in the original form of documents thus, bypassing the previous Indian Evidence Act, of 1872.
By converting the secondary evidence into primary evidence, the procedural part is performing less, and it facilitates more easier and direct submission of the electronic evidence in the court of law. Especially, in this digital era where everyone is concerned with digital documentation and these documents stay in their original form by original devices.

Sec 65b of IEA,1872 vs. sec 63 of BSA,2023:

Indian Evidence Act, 1872
This section indicates the admissibility of the electronic records. Requirement of certification by a responsible person for particular admission. Some often times, the certification was restricted.

Bharatiya Sakshya Adhiniyam, 2023
In this amended Act, BSA revised the provision and included it in section 63 adding the subsections from (a) to (e) these subsections provided conditions of admission of electronic record. In remembering electronic evidence strict certification and losing that, the additional subsections included time of creation and addressing the integrity of the system.

Here the change in the provision in crux is that the court should rely on the integrity of evidence rather than on the certifications solely. This amendment reflects the BSA’s stance on digital evidence and it is making the court proceedings easier.

Sec 81a of IEA,1872 vs. sec 81 of BSA,2023:

Indian Evidence Act, 1872
Section 81a of IEA,1872 tells the proper custody of the properly certified document copies in the proper hands of people and their admissibility. This was valid for physical documents rather than online documents. For the electronic record’s custody, it is more fragile than the physical one. The reason is the security must be a tamper-proof custody.

Bharatiya Sakshya Adhiniyam, 2023
Section 81 of BSA,2023 states addresses the proper custody of electronic documents as unaltered and secure to present in the court.
So, the overall impact is, that sec 81 acknowledges to include the proper evidence in proper hands without any fabrication and tampering of it. It builds trust in electronic evidence handling in court proceedings.

Challenges in real-life court proceedings

In the case of Anvar P.V.v.P.K, this is a landmark judgment- undermining the procedure of sec 65b for electronic records, BSA responded by tressing over procedural technicalities that need to be fulfilled, and it’s only possible by adhering to BSA,2023 amended provisions.
In the case of Navjot Sandhu (2005), which is a known parliament attack case, the Supreme Court gave the decision that, printouts of call records obtained from a computer system can be admissible without a 65b certificate as per the case requirement.

The impact was if we see as per the BSA,2023, the electronic evidence also be admitted without rigid and stringent procedural requirements.

This decision of the Supreme Court was later overruled in the Anver P.V. v. Basheer case.

In Arjun Panditrao Khotkar, the Supreme Court observed, at which certain stage the certificate should be produced? Along with chargesheet or how? Provided that it does not prejudice the rights of the deprived. The primary question is whether the certificate filed after July 1, 2024, is pertinent to examine in this context, section 170 of BSA,2024: IEA,1872 hereby repealed.

In recent cases, the application of the BSA,2023, states how Indian courts are adopting flexibility to adopt electronic evidence and digital records effectively. Effectively in the context of digital formats highlighting electronic records as primary evidence under custody requisites.

Conclusion

In this new Act, that is Bharatiya Sakhya Adhiniyam, 2023, The definition of an electronic record as well as the digital record was not in the old evidence Act but was mentioned in BSA,2023 explicitly. This means, any information, expressed, described, or recorded electronically, such as through computers, smartphones, or other digital services, falls under the definition of a document. Other changes regarding electronic evidence, are minor and verbose instead of material changes in provisions. Thus BSA,2023 adds on significant change over IEA,1872. Some certain provisions related to electronic evidence and making the proper custody of electronic records, make it more practical to resemble the law with contemporary practices with digital documentation. The BSA,2023 is a more progressed law that has transformative steps in the legal framework, ensuring the Evidence Law always stays in regard to technological advancements and is robust. This electronic evidence presentation is not limited to traditional aspects but cryptographic standards, blockchain for evidence collection, and AI’s role. As per above mentioned sections, the comparison of the Indian Evidence Act, 1872 vs. Bharatiya Sakshya Adhiniyam,2023 has a lot of changes and these changes are more bent to the progress in today’s generation. In this, the simple and short words are also replaced and the outdated provisions such as telegraphic messages are repealed. These are some of the important changes in the new Act that is BSA,2023. The parliament and the administration have fully devoted all the possibilities to make the laws applicable to all the new technical aspects and their submission in the court.