INTRODUCTION
When there is a social crisis or social injustice that affects society, a law or act is produced. It is created through individuals for the benefit of the people in a society, to accommodate justice. Society’s conventions, beliefs, and people’ ways of thinking are always evolving. The parameters of what is acceptable and unacceptable as well as what is right and wrong shift as a result of these developments. On the other hand, an action that was entirely justified in the past but is now viewed as a source of shame (adultery, for example) may not be viewed the same way now as it was in the past. Since the goal of law is, as previously said, to attempt to solve societal issues, changes in our society necessitate amendments to our laws as well. This has always been on the minds of our legislators, and as needed, the laws have been updated accordingly. The Indian Penal Code (1860), the Code of Criminal Procedure (1973), and the Indian Evidence Act (1872) have all been repealed, and three new acts, the BNS, BNSS, and BSA, have been introduced in their place. “The Indian Evidence Act, 1872” (“IEA”) is repealed and replaced by the Bharatiya Sakshya Adhiniyam (“BSA”). With an emphasis on the legitimacy of electronic evidence, the BSA keeps the majority of the IEA’s rules. In order to further eliminate ambiguities and prevent the likely complexities that could occur throughout the admissibility of relevant proof during said proceedings, the power source BSA of 2023 has become a procedural statute that lays out the rules and regulations that regulate the relevancy as well as the legality of evidence in court proceedings. While most of the IEA’s provisions—such as what constitutes valid proof and the standards that apply to established facts—have been carried over into this new law, the main adjustments that have been made have to do, among other things, with regard to electronic as well as digital records.
EVIDENCE LAW’S DEVELOPMENT AND THE DEMAND FOR REFORM
For more than a century, IEA of 1872 acted as the cornerstone of evidence law. But as technology has advanced and cybercrime has increased, its shortcomings have become apparent. Modern life’s mainstay, electronic records, was reduced to secondary evidence and needed a paper counterpart to be admitted. This impeded prosecutions and investigations that mostly relied on digital data. The search for of justice was further impeded by vague witness testimony and the rejection of some forms of evidence. The goal of the BSA 2023 is to address these deficiencies.
Evidence: The Basis for Just Trials : The adversarial concept is upheld by the Indian legal system, in which disputing parties appear before the court with their arguments and supporting documentation. The objective component is evidence, which gives each side’s assertions a factual foundation. In the absence of reliable proof, a judge is left with no basis for decision-making. Imagine a wild courtroom scene where allegations are tossed around, no papers are given, and no witnesses are summoned. The entire legal system would be worthless in such a chaotic setting. The Significance of Acceptability of Evidence in case by Courts:- Not every piece of evidence is made equal. Specific guidelines for admissibility are outlined in the Indian Evidence Act. By doing this, the court is guaranteed to receive only pertinent, trustworthy, and lawfully obtained evidence. For instance, a confession obtained under duress is not admissible since it may not accurately represent the circumstances. In a similar vein, hearsay evidence—information related by a party who was not there at the scene—is normally not admissible absent certain circumstances. These guidelines guard against misleading the court and guarantee the credibility of the evidence that is given.
ESSENTIAL POINTS OUT IN EVIDENCE
A. Classification of Electronic recordings: By virtue of this clause, electronic recordings are now considered the main evidence. This simplifies the procedure and could speed up trials because they can be brought up in court directly. This is an important shift for cybercrime investigations since digital evidence is frequently the most important part of the case. On the other hand, there are worries about the possibility of electronic record manipulation. Ensuring the authenticity of such evidence will need the use of robust digital forensics procedures.
B. Acceptance of Confessions: The measure keeps the current structure in place regarding confessions, which typically prohibits police confessions from being used in court. This clause continues to be debated. Advocates contend that it protects those who have been accused of coercion when being questioned.
C. Witness Testimony: Inaccuracies as well as loopholes in witness testimony are addressed by the bill’s proposed amendments. It enables judges to take corroborated information into consideration in order to bolster a witness’s testimony, such as call logs or CCTV video. This can be especially useful in situations when witnesses are untrustworthy or have memory problems. There must be precise rules for judges to follow when evaluating this kind of evidence.
D. Relaxing the Hearsay Rule: The measure carefully amends the hearsay rule, permitting the introduction of specified hearsay evidence types under limited circumstances. This may involve testamentary statements, corporate documents, and professional judgements. The purpose of this modification is to enhance the information flow in court, especially when direct witnesses are not accessible. Establishing the requirements for admissibility of testimony based on hearsay will be essential to avoiding the improper use of untrustworthy hearsay.
MAJOR CHANGES IN EVIDENCE ACT WHICH IS SEEN IN BSA 2023:-
I. Meaning/ definition:- Notable modifications include the inclusion of the concepts of “conclusive proof,” “may presume,” and “shall presume” according to Section 4 under the Evidence Act’s provisions in a unified definition clause. Additionally, the Bill allows for the interpretation of terms that are used but not defined under it. According to the Information Technology Act, BNSS of 2023, and BNS of 2023, where applicable, these terms must signify the same thing.
II. Computerised oral testimony:- The explanation of the Document in Section 2(c) now includes the phrase “recorded upon,” which “includes electronic and digital records” (equivalent to section 3(e) of IEA). The definition of “document” has been expanded to encompass electronic records found in email messages, service logs, documents kept on computers, laptops, or smartphones, communications, websites, voice mail messages saved on digital devices, and locational evidence. The term “electronic records” is excluded from Section 54 (which is equivalent to Section 59 of the IEA), as the preceding clause clarified that electronic documents are not considered proof of fact when presented orally. Therefore, the proposed law attempts to establish that electronic records are also regarded as significant proof of truth by oral evidence by omitting electronic devices from this section. Section 22(A) of the IEA, which declared that oral evidence saved by electronically recording it was deemed irrelevant, is repealed by BSA, which views oral testimony on the contents of electronic recordings as legitimate evidence in a court of law.
III. A large number of BSB2’s provisions have been consolidated into a single section. (For example, Sections 74 and 75 of the IEA have been combined jointly within Section 74 of BSB2, while Sections 25, 26, and 27 of the IEA have been combined under Section 23 of BSB2.)
IV. Importance of electronic as well as digital law books: Section 32 (which corresponds to Section 38 of the IEA) now includes the phrase “including in electronically or digital form.” According to this provision, legal books that are used as case references will henceforth be recognized in electronic format, or, to put it another way, soft copies of the books will be accepted as acceptable references.
V. Primary/ Main Proofs:- The requirements for primary evidence are outlined in Section 57 of BSB2, which is equivalent to Section 62 of the IEA. It is stated by means of the addition of five more explanations that the following scenarios will be regarded as primary evidence: digital or electronic records stored in multiple files; videos recorded and broadcast in multiple locations; and the storage of digital or electronic records in various folders on the exact same computer, even temporary ones. It is made abundantly evident by the further explanations that, in accordance with the BSA, digital or electronic recordings are regarded as the main evidence.
VI. Corresponding Proofs:- Three new subsections have been added to Section 58 of BSA, which corresponds to Section 63 of the IEA. Subclauses 6, 7, and 8 of this specify that the written and oral admissions, as well as the declaration or assessment of an authorised specialist or expert who has conducted an examination in accordance with section 39A, are acceptable and legitimate secondary sources of evidence. This has been done in order to validate the electronic record copies as secondary evidence, provided that the examiner has verified via examination and testified before the court whether the copies are true copies of the original document.
VII. Extending the parameters for electronic records’ admissibility :- Section 61 of the (BSA) has been introduced. It states unequivocally that no provision in the Bill can be used to deny the legality of any electronic record in testimony on the grounds that it constitutes an electronic as well as digital record, and that the record will have the identical legal effect, validity, as well as enforceability as paper records. In a court of law, electronic records are fully admissible as appropriate, reliable, and pertinent evidence. The terms “any device for communication or otherwise stored, recorded, or duplicated in any electronic form” and “semiconductor memory” have been added to section 63 (which corresponds to section 65B of the IEA). It is the most notable modification and a contentious issue. The scope of electronic records’ acceptability has been greatly expanded with this update. Semiconductor memory, such as ROM, RAM, Flash Memory, Cache Memory, etc., has also been added as pertinent evidence, and any communication device, such as smartphones, laptops, PCs, etc., has been added as appropriate evidence.
VIII. The goal of imposing every term in the legislation :- A legal book contains words that are extremely important. Every word has a purpose. For this reason, even seemingly basic terms like “relevant,” “court,” and “fact” have appropriate definitions. The attorneys may really win or lose depending on how the language is worded. It is evident how important wordings are in the examples stated above as well. The terms “electronic and electronic devices for communication and records” appear often in this work. The entire meaning of papers has altered due to the addition of these terms. In a sense, the entire field of science and technology has been added to the BSA with the mere mention of these terms. The key to writing clearly and succinctly in law is to explain concepts in the fewest feasible words while avoiding any room for interpretation. This allows the legal system to be just and exact. However, our legislators did not escape uncertainty in this measure. The standards for the admissible of electronic records have become unclear and confusing due to the incorporation of electronic records being primary evidence while maintaining the provision of admission of secondary evidence. This needs to be made explicit later on when making decisions or amending the same through the use of precise language.
IX. Witness interrogation:- Although it is organised differently, the part on witness examination is substantively the same as part 137 within the Evidence Act. Furthermore, the new provision amends provision 141 concerning the Evidence Act, whose scope was general and depended on the “suggestive” nature of inquiries, to include queries about specific situations as leading questions. With minor structural changes, the section on memory refreshment is an exact replication of Evidence Act Section 159. The Evidence Act’s Section 162 has been amended to include a proviso that prohibits the obtaining of any privileged correspondence between the President of India and ministers, among other limits on the types of documents that can be provided.
OBSTACLES AND OPPORTUNITIES FOR CHANGE
The Indian judicial system has difficulties when it comes to evidence, despite its significance. Despite being a cornerstone, the IEA was passed in 1872 and might not adequately handle the challenges of the digital era. For example, the Act requires an actual paper path for verification and classifies electronic documents as secondary evidence. Investigations into cybercrimes when digital evidence is central to the case may be hampered by this strategy. Witness tampering, the possibility of manipulating electronic evidence, and drawn-out judicial proceedings that might cause memory loss are further difficulties.
These problems show how evidence law has to be continuously reformatted and include:
I. Modernising the Evidence Act: It is imperative that the Indian Evidence Act be reviewed and updated to take into account new developments in fields like computer forensics, communication applications, and social media evidence.
II. Witness Protection Measures: By putting in place more robust programmes, people will feel more comfortable coming forward with important testimony without worrying about being intimidated.
III. Boosting Forensic Capabilities: To guarantee the accuracy and integrity of evidence analysis, it is crucial to invest in a strong forensic infrastructure that includes skilled staff and cutting-edge technology.
IV. Possible Advantages:- It is anticipated that the measure would facilitate the prosecution of offences using electronic evidence, such as cybercrimes. The measure may also contribute to increased trial efficiency by simplifying the admission of evidence procedure. The measure may contribute to a decrease in the number of appeals based on evidentiary disputes by making the requirements of evidence more clear.
V. Possible Negative Effects:- The bill’s detractors contend that it falls short of fully modernising the statutes of evidence. Others are concerned that the law may give electronic evidence—which is more readily manipulated than conventional paper evidence—too much weight.There are worries that the law would make it harder for the defence to refute the prosecution’s evidence.
CONCLUSION
To summaries, the main goal of this Evidence Law, along with some of the previously mentioned modifications, seems to be to combine various provisions addressing various facets of the same topic under a single, comprehensive section. An example of this would be the grouping of various provisions pertaining to admissions before law enforcement and in custody. However, given the scope of the anticipated change, a more thorough examination and testing of the effects of certain provisions—particularly those pertaining to confessions and the production of documents—is necessary. A complicated piece of law, the BSA 2023 might have a big influence on the Indian judicial system. We may learn more about the law and its possible effects by looking at the above-mentioned topics in more detail. An important step in updating the IEA is the BSA 2023. Through an examination of the law’s provisions, possible effects, and areas requiring more investigation, a more thorough comprehension of the measure is revealed. The scientific and technical advancements of the twenty-first century are happening at an exponential rate, leaving us in awe. New regulations are needed because of how quickly technology is developing, especially artificial intelligence, which has made it more difficult to find and convict criminals. By giving technology first priority, the BSA, 2023 represents a substantial improvement in the country’s criminal justice system. In addition to acknowledging international agreements, it sets protocols for managing digital evidence, permits online court appearances, and broadens the definition of acceptable evidence. By utilising technological innovations, this law seeks to expedite the administration of justice without completely replacing current frameworks.
AUTHORED BY:-
SHIWANI ANAND
ASSOCIATE, H.K. LAW OFFICES
BIBLIOGRAPHY
1. https://www.livelaw.in/pdf_upload/bharatiya-sakshya-bill-511326.pdf
3. https://nishithdesai.com/NewsDetails/14926
4. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4677357
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