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

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) marks a significant shift in India’s evidentiary law, replacing the Indian Evidence Act, 1872 (IEA). This new legislation is designed to address the evolving needs of the judicial system, integrating modern technological advancements and reflecting a more inclusive approach. Below, we explore the key changes introduced by the BSA, comparing them with the corresponding provisions of the IEA.

1. Definition of Experts

• IEA (Section 45):
  The IEA recognized expert opinions in limited fields such as handwriting, science, art, foreign law, or finger impressions.
• BSA (Section 39):
  The BSA broadens this scope by allowing courts to rely on expert opinions in any field where expert analysis is required. This change acknowledges the growing relevance of expert testimony across various disciplines due to advancements in modern science.

2. Inclusive and Updated Language

• IEA (Section 118):
  The IEA used terms like “lunatic” to describe individuals of unsound mind, reflecting the language norms of the colonial era.
• BSA (Section 124):
  The BSA replaces such archaic terms with more modern and inclusive language, such as “a person of unsound mind.” This shift aims to reduce stigma and promote a more respectful discourse concerning mental health in the legal context.

3. Recognition of Technology in Evidence

• IEA:
  The original Act did not adequately account for the role of technology in legal proceedings, particularly regarding the definition of “documents” and “evidence.”
• BSA (Sections 2(d) & 2(e)):
  The BSA includes “electronic and digital records” within the definition of “document” and expands the definition of “evidence” to cover “statements given electronically.” This inclusion reflects the growing prevalence of digital communication and its importance in legal contexts.

4. Admissibility of Electronic Evidence

• IEA:
  Electronic evidence faced significant challenges in being admitted as evidence due to stringent requirements and the lack of clear guidelines.
• BSA (Section 61):
  The BSA explicitly states that electronic evidence cannot be deemed inadmissible merely because it is in electronic form, thereby facilitating the use of digital evidence in court proceedings.

5. Estoppel Provisions

• IEA (Sections 115-117):
  The doctrine of estoppel, particularly concerning the denial of a landlord’s title by a tenant, was limited to the duration of the tenancy.
• BSA (Section 122):
  The BSA extends this estoppel to any time after the tenancy, preventing tenants from denying the landlord’s title even after the tenancy has ended.

6. Judicial Notice of International Treaties

• IEA (Section 57):
  The Act required courts to take judicial notice of facts without explicit reference to international treaties.
• BSA (Section 52):
  The BSA introduces a new provision mandating judicial notice of international treaties, agreements, and decisions made by India in global forums, reflecting the increased importance of international law in domestic proceedings.

7. Expansion of Secondary Evidence

• IEA:
  The scope of secondary evidence was limited, often excluding oral and written admissions as well as expert examination of documents.
• BSA (Section 58):
  The BSA expands secondary evidence to include these forms, allowing for a broader range of evidentiary submissions in court.

8. Protection of Ministerial Communications

• IEA:
  The Act did not specifically address the confidentiality of communications between Ministers and the President of India.
• BSA (Section 165 – Proviso):
  The BSA introduces a safeguard, preventing courts from compelling the production of such communications, thus maintaining the confidentiality of high-level governmental discussions.

Conclusion

The Bharatiya Sakshya Adhiniyam, 2023, represents a significant modernization of India’s evidentiary laws. By incorporating technology, promoting inclusive language, and expanding the scope of evidence admissibility, the BSA seeks to align the legal framework with contemporary realities while also shedding remnants of colonial influence. While many provisions remain unchanged, the true impact of these revisions will unfold as courts interpret and apply the new law in future cases.

Comparison Table

Topic	Indian Evidence Act, 1872	Bharatiya Sakshya Adhiniyam, 2023
Expert Opinion	Limited to specific fields (Section 45)	Expanded to any field requiring expert analysis (Section 39)
Language Use	Archaic terms like “lunatic” (Section 118)	Modern, inclusive terms like “a person of unsound mind” (Section 124)
Definition of Documents	Did not include digital records	Includes “electronic and digital records” (Section 2(d))
Definition of Evidence	Limited scope	Expanded to include “statements given electronically” (Section 2(e))
Electronic Evidence Admissibility	Lacked clear guidelines	Explicitly admissible (Section 61)
Estoppel Provisions	Estoppel limited to the duration of tenancy	Extended to post-tenancy period (Section 122)
Judicial Notice	No specific provision for international treaties	Judicial notice of international treaties and agreements (Section 52)
Secondary Evidence	Narrowly defined	Expanded to include oral and written admissions (Section 58)
Ministerial Communications	No specific protection	Protected from court production (Section 165 – Proviso)

This comparative chart provides a clear overview of the changes, highlighting how the BSA modernizes and enhances the legal framework for evidence in India.

Related Posts

1.  A Comparative Analysis: The Bharatiya Nagarik Suraksha Sanhita, 2023 vs. The Code of Criminal Procedure, 1973
2. Understanding Jerome Hall’s General Principles of Criminal Law: A Cornerstone of Modern Legal Theory
3. The Bhartiya Nyaya Sanhita, 2023 vs. The Indian Penal Code: A Comparative Analysis