Bharatiya Sakshya Adhiniyam 2023: Fresh chapter in Indian Evidence Law

Pallab Bhattacharyya

(Pallab Bhattacharyya is a former director-general of police, Special Branch and erstwhile Chairman, APSC. Views expressed by him is personal. He can be reached at pallab1959@hotmail.com)

On December 25th, 2023, the Indian Parliament passed the Bharatiya Sakshya Adhiniyam (BSA), signifying a momentous shift in the country’s evidence law. Replacing the colonial-era Indian Evidence Act (IEA) of 1872, the BSA aims to modernize and streamline the evidentiary framework, addressing the limitations and evolving realities of the 21st century. While this transition promises positive advancements, it is crucial to delve into both the merits and potential drawbacks of this transformative legislation. As Indian democracy has matured over the course of seven decades, there is a growing consensus that the legal system must be brought in line with contemporary needs and aspirations. Unlike substantive or procedural laws, the law of evidence falls within the realm of “adjective law,” defining the processes and methods through which substantive or procedural laws are executed. “This bill repeals five old provisions, amends 23 existing provisions, and introduces a new provision, leading to a total of 170 sections in the revised Act. These changes hold great importance in ensuring a fair justice delivery system, aligning with the goal of equitable justice through legal modifications,” said Supreme Court lawyer Vineet Jindal.

However, a Public Interest Litigation (PIL) has been filed before the Supreme Court by Advocate Vishal Tiwari, challenging the three new criminal laws and seeking, inter inter alia, a stay on the implementation of the three new criminal laws, as well as a direction for the immediate constitution of an expert committee under the chairmanship of a former judge of the Supreme Court to examine the viability of the laws. Drawing attention to an occasion when former Chief Justice of India NV Ramana raised a concern in 2021 w.r.t. the enactment of laws without proper parliamentary debates: “Parliamentary debate is a fundamental part of democratic law-making... Debates and discussions are helpful to make necessary adjustments and amendments to a bill so that it can effectively fulfil its purpose. These can be helpful in courts while interpreting laws,” says the plea.

Positive aspects of the BSA:

n Enhanced Relevancy of Evidence: The BSA broadens the scope of admissible evidence, recognising the importance of electronic records, expert opinions, and character evidence in specific circumstances. This expands the tools available to courts, potentially leading to more comprehensive and informed judgements.

n Addressing Contemporary Challenges: The Act specifically addresses modern concerns like cybercrime and forensic science, acknowledging their burgeoning role in legal proceedings. This ensures the evidentiary framework adapts to technological advancements, enhancing its efficacy in contemporary legal scenarios.

n Strengthened Witness Protection: The BSA prioritises witness protection by introducing provisions for vulnerable witnesses, including children and victims of sensitive crimes. This promotes safer participation in legal proceedings and potentially reduces intimidation and manipulation.

n Presumption of Innocence: The Act strengthens the presumption of innocence by placing the burden of proof in certain cases more explicitly on the prosecution. This bolsters safeguards against wrongful convictions and upholds the fundamental principle of a fair trial.

Points of Concern:

n Potential for Misuse: The broader scope of admissible evidence, while beneficial in principle, could be misused by unscrupulous parties. Vague criteria for expert opinions and character evidence, for instance, might open doors to manipulation and bias. Robust guidelines and judicial discretion are crucial to mitigating these risks.

n Challenges in Implementation: Adapting to a new evidentiary framework will require considerable training for legal professionals and law enforcement agencies. Ensuring consistent application and interpretation of the BSA across various courts is essential to preventing confusion and inconsistencies.

n Accessibility and Transparency: The language of the Act, while comprehensive, might present accessibility challenges for non-legal professionals and ordinary citizens. Clear communication and educational initiatives are crucial to ensuring transparency and public understanding of the new evidentiary framework.

n There were certain provisions that were not properly scrutinised in BSA-1. Though this has been corrected subsequently, there is a lurking fear that there might still be such an error in BSA-2, and this gives credence to the concerns raised in the PIL referred to above.

Differences between BSA and IEA:

n Electronic Records: The BSA elevates electronic records to primary evidence, unlike the IEA, which considers them secondary. This reflects the ubiquity of digital information in modern life and its critical role in legal proceedings.

n Presumptions: The BSA introduces new presumptions in specific cases, like dowry death (S 118) and marital rape (S 120, S 26 Illustration (a), S 6 Illustration (j), to shift the burden of proof in situations where proving intent can be challenging. This contrasts with the IEA’s more limited use of presumptions.

n Witness Protection: Section 398 of the BNSS states as follows: Every state government shall prepare and notify a Witness Protection Scheme for the state with a view to ensuring the protection of the witnesses. This highlights an increased focus on safeguarding vulnerable individuals involved in legal processes. The IEA lacked such comprehensive provisions.

Conclusion:

The Bharatiya Sakshya Adhiniyam marks a significant step forward in India’s legal landscape. It addresses the limitations of the antiquated IEA and offers a framework better suited to the complexities of contemporary legal scenarios. While concerns regarding potential misuse and implementation challenges necessitate vigilance, the Act’s positive aspects offer the promise of fairer, more transparent, and more efficient legal proceedings. Continuous refinement through judicial interpretation, practical application, and public discourse will be key to ensuring that the BSA effectively fulfils its potential and serves as a robust pillar of India’s CJS, echoing the famous quote by the French philosopher Michael Foucault: “Justice must always question itself, just as society can exist by means of the work it does on itself and on its institutions.”