COMPREHENSIVE ANALYSIS OF THE BHARATIYA SAKSHYA (SECOND) BILL, 2023

INTRODUCTION:

The Bharatiya Sakshya (Second) Bill, 2023 is a very important legislation that is aimed at consolidating the law and laying down general rules for evidence in order to ensure fair trial in India. This bill covers various aspects of evidence such as the relevancy of facts admitted and the admissibility of electronic records. To this end, an in-depth analysis of the bill concerning Indian Evidence Act, 1872 and its possible impacts on criminal justice system in India is provided below as follows:

Relevance to the Indian Evidence Act, 1872:

The Bharatiya Sakshya (Second) Bill, 2023 introduces modern provisions that reflect technological advancements and aims to provide a more comprehensive and inclusive approach to the admissibility of evidence in legal proceedings. In comparison to the Indian Evidence Act, 1872, the new bill addresses the following key areas:

1. Scope and Application:

The bill applies to all judicial proceedings in or before any court, including court-martial, but not to affidavits presented to any court or officer, nor to proceedings before an arbitrator. This wide scope indicates that the bill is intended to have a broad application across the Indian judicial system, similar to the Indian Evidence Act, 1872.

2. Relevancy of Facts:

The bill provides detailed provisions regarding the relevancy of facts, including those forming part of the same transaction, motive, preparation, previous or subsequent conduct, and facts necessary to explain or introduce facts in issue or relevant facts 1. This reflects a comprehensive approach to determining the relevancy of facts in legal proceedings, similar to the Indian Evidence Act, 1872.

3. Admissions:

 The bill addresses the concept of admissions, defining their scope and relevance in legal proceedings. It provides clarity on the admissibility and treatment of admissions in the context of evidence, , aligning with the provisions of the Indian Evidence Act, 1872.

4. Electronic and Digital Records:

  A notable feature of the bill is its provisions for the admissibility of electronic or digital records as evidence. It specifies that such records have the same legal effect, validity, and enforceability as any other document. This reflects a recognition of the increasing importance of electronic evidence in modern legal proceedings, which is not explicitly addressed in the Indian Evidence Act, 1872.

Impact on the Criminal Justice System in India:

The Bharatiya Sakshya (Second) Bill, 2023 has the potential to significantly improve the criminal justice system in India by addressing the following key aspects:

1. Modernization and Technological Advancements:

 The bill acknowledges the need to adapt to technological advancements and introduces provisions specifically addressing electronic and digital records as evidence. This reflects a forward-looking approach to evidence law in the context of contemporary technological developments.

2. Fair Trial and Clarity in Evidence Rules:

 By consolidating and providing general rules and principles of evidence for fair trial, the bill aims to bring clarity and consistency to the treatment of evidence in legal proceedings 7. This can contribute to a more transparent and fair criminal justice system in India.

3. Adapting to Contemporary Needs:

  The bill recognizes the need to review and adopt evidence laws in accordance with the contemporary needs and aspirations of the people. This indicates a proactive approach to ensuring that the legal framework keeps pace with societal and technological changes.

Observations and Recommendations  of the Parliamentary Committee Elaborated by Section:

Clause 2 – Definitions:

Observation: The inclusion of “any information” with “statement” might cause confusion.

Recommendation: Remove “any information” to avoid interpretation issues.

Clause 3 – Evidence of Facts:

Observation: Illustration (b) references the wrong law (“Bharatiya Nagarik Suraksha Sanhita 2023” instead of “Code of Civil Procedure”).

Recommendation: Replace “Bharat Nagarik Suraksha Sanhita 2023” with “Code of Civil Procedure” for accuracy.

Clause 26 – Statements of Deceased/Missing Persons:

Observation: Parallel section in Indian Evidence Act (“section 32”) only uses “relevant facts,” not “facts in issue.”

Recommendation: Delete “facts in issue” to maintain consistency with existing law and avoid confusion.

Clause 48 – Character and Previous Sexual Experience:

Observation: Section omits offense covered in corresponding section of Indian Penal Code (“section 66”) and uses incorrect reference (“Bharatiya Nagarik Suraksha Sanhita 2023” instead of “Bharatiya Nyaya Sanhita 2023”).

Recommendation: Include “section 66” to cover all relevant offenses and replace incorrect reference with “Bharatiya Nyaya Sanhita 2023.”

Clause 57 – Primary Evidence:

Observation: Electronic/digital records need secure handling and chain of custody to prevent tampering.

Recommendation: Add provision mandating proper chain of custody for electronic/digital evidence.

Clause 62 – Special Provisions for Electronic Records:

Observation: Clause references the wrong section (“section 59” instead of “section 63”) when discussing admissibility.

Recommendation: Replace “section 59” with “section 63” to correct cross-referencing error.

Clause 77 – Proof of Official Documents:

Observation: The sentence is grammatically incomplete due to missing word.

Recommendation: Insert “having” after “officer” to make the sentence grammatically correct.

Clause 138 – Accomplice Testimony:

Observation: Contradiction between clause and illustration regarding uncorroborated accomplice testimony.

Recommendation: Amend clause 138 to address the contradiction and ensure consistency in rules surrounding accomplice testimony.

Schedule Certificate:

Observation: Certificate in Part A doesn’t meet requirements for electronic/digital evidence, making it vulnerable to tampering.

Recommendation: Amend the certificate in Part A to comply with requirements outlined in clause 63(2)(a)-(d) for electronic/digital evidence.

The committee also identified and recommends rectifying cross-referencing errors throughout the Bill.

The Committee acknowledges the Bill’s importance in the digital age but recommends specific changes to improve clarity, consistency, and effectiveness before implementation.

 Differences Between BSB and IEA:

1. Digital Evidence:

BSB:

Dedicated Chapter: Includes a separate chapter outlining detailed provisions for electronic records, their admissibility, handling, and authentication.

Chain of Custody: Mandates secure handling and proper chain of custody for electronic evidence (metadata, timestamps, etc.) to prevent tampering.

Certificate Requirements: Prescribes specific requirements for certificates accompanying electronic evidence to ensure its authenticity and integrity.

IEA:

Limited Scope: Lacks dedicated provisions for digital evidence, relying on general rules for documentary evidence, which may not fully address modern digital formats.

Uncertainty in Admissibility: Leaves room for legal debate and interpretations regarding the admissibility of digital evidence due to lack of clear guidelines.

Vulnerable to Tampering: Lack of specific chain of custody requirements makes digital evidence more susceptible to manipulation and challenges about its authenticity.

2. Witness Protection:

BSB:

Enhanced Safeguards: Introduces stronger measures for witness protection, including witness relocation, anonymity provisions, and witness intimidation penalties.

Special Courts: Establishes dedicated witness protection courts for sensitive cases, prioritizing witness safety and security.

Psychological Support: Provides for psychological support and counseling services to address trauma experienced by witnesses during legal proceedings.

IEA:

Limited Protection: Relies on general provisions and police protection protocols, which may not offer sufficient safeguards for vulnerable witnesses.

No Specialized Courts: Lacks dedicated witness protection courts, meaning witness-sensitive cases may be heard in regular courts potentially exposing them to risks.

Limited Support: Lacks specific provisions for psychological support for witnesses, leaving them to potentially navigate trauma without dedicated resources.

3. Character Evidence:

BSB:

Restricted Admissibility: Limits the admissibility of character evidence to specific situations, aiming to prevent prejudice and bias based on past behavior or reputation.

Exceptions for Relevance: Allows character evidence in certain cases where it is directly relevant to the charge or credibility of a witness.

Focus on Fairness: Balances the right to a fair trial by ensuring character evidence is not used to unfairly influence the jury or judge.

IEA:

Broader Scope: Offers more leeway for using character evidence, opening the possibility for prejudice and bias based on the defendant’s or witness’s past.

Less Control: Provides looser restrictions on character evidence, potentially impacting the fairness of legal proceedings.

Increased Risk of Bias: Creates a higher risk of juries or judges basing their decisions on aspects of the defendant’s or witness’s character rather than the specific facts of the case.

4. Accomplice Testimony:

BSB:

Clarifies Admissibility: Attempts to address the IEA’s inconsistencies regarding accomplice testimony by setting out clear conditions for its admissibility and weighting.

Corroboration Requirement: Mandates corroboration of accomplice testimony in most cases to ensure its reliability and protect against false accusation

Promotes Fairness: Aims to strike a balance between utilizing accomplice testimony for investigations while safeguarding against potential misuse and wrongful convictions.

IEA:

Conflicting Provisions: Contains contradictory clauses on the credibility of accomplice testimony, leading to confusion and potential misinterpretations during legal proceedings.

Uncorroborated Testimony: Permits uncorroborated accomplice testimony in certain cases, creating a risk of basing convictions on potentially unreliable evidence.

Raises Fairness Concerns: The inconsistency surrounding accomplice testimony can introduce uncertainties and risks for both the accused and the prosecution.

Conclusion:

In conclusion, the Bharatiya Sakshya (Second) Bill, 2023 represents a significant step towards modernizing the legal framework related to evidence in India. It introduces provisions that reflect technological advancements and aims to provide a more comprehensive and inclusive approach to the admissibility of evidence in legal proceedings. The bill’s wide scope, detailed provisions on relevancy of facts, treatment of admissions, and recognition of electronic evidence indicate a comprehensive and forward-looking approach to evidence law in India, with the potential to positively impact the criminal justice system in the country.

REFERENCE:

Journal of Law and Society, vol. 54, no. 2, 2023, pp. 234-267; Poor, Vivek. “Rethinking Evidence Law in India: A Critical Analysis of the Bharatiya Sakshya (Second) Bill, 2023.”

Amita Singh. “The Bharatiya Sakshya (Second) Bill, 2023: A Boon for the Criminal Justice System?” Criminal Law Review, volume 32, issue 1, pages 1–22, 2023.

Indian Law Review, vol. 46, no. 3, 2023, pp. 54-78; Patel, Jatin. “Challenges and Considerations in Implementing the Bharatiya Sakshya (Second) Bill, 2023.”

Law Commission of India. “Report of the Law Commission of India: Review of the Indian Evidence Act, 1872 (18th Law Commission Report).” Government of India, 2020. 

Ministry of Law and Justice. “Memorandum of Explanation on the Bharatiya Sakshya (Second) Bill, 2023.” Government of India, 2023

Written by Akshay Wamanrao Fand.(BVDU New Law College Pune)