Bharatiya Sakshya Adhiniyam, 2023: India’s New Criminal Code

The Bharatiya Sakshya Adhiniyam, 2023, represents a significant overhaul of India’s evidentiary laws, reflecting the country’s commitment to modernizing its legal framework in alignment with technological advancements and societal changes. This landmark legislation, which replaces the Indian Evidence Act of 1872, introduces comprehensive amendments to adapt to the digital age and address the complexities of contemporary evidence in judicial proceedings.

Overview and Key Changes

The Bharatiya Sakshya Adhiniyam, 2023, encompasses 170 sections, modifying 23 sections, repealing 5, and adding one new section compared to its predecessor. One of the most pivotal updates is the broadened definition of “document” to include electronic and digital records, recognizing the evolving nature of how information is stored and communicated in the modern world. This redefinition allows for emails, server logs, messages, websites, and even voice mail messages stored on digital devices to be treated as documents within the legal system​​.

Embracing Digital Evidence

A significant aspect of the new act is its focus on electronic evidence, acknowledging the increasing reliance on digital records in both personal and professional contexts. The Act amends definitions and provisions to ensure electronic and digital records are considered documentary evidence. This includes the admissibility of electronic records as primary evidence, with specific conditions for when secondary evidence, such as oral admissions or written submissions, can be utilized​​​​.

Procedural Changes and Safeguards

The Bharatiya Sakshya Adhiniyam, 2023, addresses the procedural handling of electronic evidence, incorporating safeguards similar to those observed internationally. For example, during the search and seizure of electronic records, it endorses the presence of a qualified forensic examiner and mandates the use of Faraday bags to prevent data on seized electronic storage devices from being tampered with or destroyed​​.

Challenges and Ambiguities

Despite its progressive stance, the Act has not been without criticism. The inclusion of electronic records in the definition of documents, while retaining the requirement for certificate authentication for their admissibility, has raised concerns about potential ambiguities in the admissibility of electronic records. Additionally, the Act’s retention of provisions allowing for facts discovered in police custody under duress to be admissible has been a point of contention, highlighting the delicate balance between efficient law enforcement and the protection of individual rights​​.

Conclusion

The Bharatiya Sakshya Adhiniyam, 2023, signifies India’s forward-looking approach to evidence law, aiming to equip the legal system to handle the challenges of the digital age effectively. By recognizing electronic records as legitimate evidence and introducing updated procedures and safeguards, the Act endeavors to align India’s judicial processes with international standards. However, the implementation of these changes and their impact on the justice system will likely be an area of keen observation and ongoing discourse in the years to come​​​​​​.