The Bharatiya Sakshya (Second) Bill, 2023: A Transformation in Indian Evidence Law

 

The Bharatiya Sakshya (Second) Bill, 2023 (BSB) marks a significant overhaul of the Indian Evidence Act (IEA) of 1872. While retaining some core principles, it introduces key changes to adapt to the modern digital landscape and enhance the efficiency and relevance of evidence in court proceedings. Here are some highlights of the BSB:

1. Recognition of digital evidence:

• Primary vs. secondary evidence: The BSB elevates electronic records to the status of primary evidence, removing the previous categorisation as secondary evidence under the IEA. This grants them equal footing with documents like paper records, simplifying their admissibility and reducing reliance on cumbersome authentication procedures.
• Expanded definition: The BSB expands the definition of electronic records to include data stored in various forms, including emails, server logs, smartphone data, and even voicemails. This ensures comprehensive coverage of the digital age.

2. Streamlined admissibility of evidence:

• Certificate authentication: While maintaining the option for authentication through certificates, the BSB emphasizes direct production of electronic records from proper custody as the preferred method. This simplifies the process and reduces dependence on third-party verification.
• Admissibility of secondary evidence: While primary evidence is prioritized, the BSB allows for secondary evidence in specific cases, such as when the original record is unavailable or its genuineness is disputed. This provides flexibility for judges and accommodates situations where electronic records might be vulnerable to manipulation.

3. Witness protection and cross-examination:

• Safeguards for vulnerable witnesses: The BNS recognizes the potential vulnerability of witnesses in sensitive cases, particularly with digital evidence. It empowers judges to adopt measures like video conferencing or screen partitions to protect witness identities and prevent intimidation.
• Flexibility in cross-examination: The BNS acknowledges the challenges of cross-examining witnesses on complex digital evidence. It allows judges to modify the usual procedures to ensure a fair and effective examination, such as using visual aids or expert assistance.

4. Additional noteworthy changes:

• Burden of proof: The BSB clarifies the burden of proof and presumption of innocence, emphasizing fair proceedings and ensuring that accused individuals are not unfairly disadvantaged.
• Forensic evidence: The BSB recognizes the crucial role of forensic evidence in modern investigations and encourages its utilization while establishing safeguards against potential misuse.
• Technological advancements: The BSB acknowledges the need for continuous adaptation to keep pace with evolving technologies. It includes provisions for incorporating future advancements in evidence gathering and presentation within the legal framework.

The BSB is a significant step forward in modernizing Indian evidence law. It recognizes the ever-increasing role of digital evidence and aims to create a more efficient and reliable system for presenting and evaluating evidence in court. However, the effective implementation of this new law will require training for judges, lawyers, and law enforcement officials, as well as the development of robust infrastructure and procedures for handling and preserving digital evidence.

Whether the BSB successfully achieves its goals remains to be seen, but it undoubtedly sets a new benchmark for evidence law in India, paving the way for a more just and informed judicial system.

For further insights, you can explore these resources:

• PRS Legislative Research: The Bharatiya Sakshya (Second) Bill, 2023: https://prsindia.org/files/bills_acts/bills_parliament/2023/BHARATIYA_SAKSHYA_BILL,%202023.pdf
• The Economic Times: Bharatiya Nagarik & Sakshya Bill replacing CrPC & Evidence Act passed in Lok Sabha: https://m.economictimes.com/news/politics-and-nation/lok-sabha-discusses-bills-seeking-to-replace-existing-criminal-laws/articleshow/106134430.cms
• The Hindu: Bill to overhaul evidence law passed in Lok Sabha: https://www.cnbctv18.com/politics/all-about-bharatiya-sakshya-bill-which-will-replace-indian-evidence-act-17509681.htm

These resources offer detailed analysis of the bill's provisions, potential challenges, and anticipated impact on the Indian legal system. 

(With input from news agency language)
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