Author: AYUSH SHUKLA, LLB SAVITRIBAI PHULE PUNE UNIVERSITY
Abstract-
The three recently-sanctioned criminal laws, the Bharatiya Nyaya Sanhita (which is to replace the Indian Penal Code-IPC 1860), the Bharatiya Nagarik Suraksha Sanhita (which is to replace the Code of Criminal Procedure- CrPC) and the Bharatiya Sakshya Adhiniyam (which is to replace the Indian Evidence Act, 1872) have came into force from July 1, 2024. The content and narrative of the Indian Evidence Act (IEA), 1872 have changed little as far as the Bharatiya Sakshya Adhiniyam (BSA) is concerned. The purview of secondary evidence has been slightly broadened and some alterations have been made in the provisions linked to electronic evidence in the BSA. The Bhartiya Sakshya Adhiniyam 2023 represents a noteworthy modernization of the original Indian Evidence Act, 1872. This extensive report examines the key reforms introduced in 2023, focusing on the Act’s response to challenges posed by technological advancements, the inclusion of digital evidence, and its impact on the Indian judicial process. It reconnoitre the progression of evidence law in India and underlining the current legal landscape, incorporating the balance between privacy, admissibility of electronic records, and emerging challenges in artificial intelligence (AI) and cyber security. It prospects the Bill’s provisions on related or interconnected facts, digital signatures, judicial notices, confessions, primary and secondary sources of evidence, and electronic evidence, culminating the challenges and opportunities presented by the digital age. The report stresses the importance of balancing tradition and progress in evidentiary practices and emphasises the need to protect individual rights while promoting justice. It draws to a close by endorsing a thorough review of the Bill to ensure adherence with established legal principles and effective implementation. The report concludes with recommendations for further improvements to ensure the Act meets contemporary legal demands.
Keywords: Bharatiya Sakshya Bill, 2023, evidential practices, legal framework, digital age, confessions, digital signatures, electronic evidence, judicial notice, primary evidence, secondary evidence, Indian law, legal evolution, individual rights, justice, implementation challenges
Evolution of Criminal Justice System:
All through India’s history, different criminal justice systems have advanced and procured prominence in different regions under different rulers. Throughout British rule, criminal laws were codified in India, which prevailed largely unchanged until recently. IPC is the official criminal code of India which was drafted in 1860 in the wake of the first law commission established in 1834 under the Charter Act of 1833, and became effective from January 1st, 1862. The Indian Evidence Act, originally passed in India by the Imperial Legislative Council in 1872, during the British Raj, provides a set of rules and allied issues governing admissibility of evidence in the Indian courts of law. In line, CrPC provides procedures for meting out criminal law in India. It was validated in 1973 and became operative from 1st April 1974. The Parliament, in December 2023, passed three pivotal Bills: Bharatiya Nyaya Sanhita, 2023; Bharatiya Nagarik Suraksha Sanhita, 2023; and Bharatiya Sakshya Adhiniyam Bill, 2023 to recondition the criminal justice system.
Introduction
The Bhartiya Sakshya Adhiniyam, originally enacted in 1872, has been the cornerstone of India’s legal system, governing the rules of admissibility, relevancy, and burden of proof in legal proceedings. Over the years, amendments have been made to accommodate societal and technological changes. The 2023 amendments aim to address contemporary issues such as digital evidence, cybercrimes, and technological innovations, which have transformed the way evidence is collected and presented in courts. The Bharatiya Sakshya Bill 2023 is a consequential legislative proposal composed to transform the foundations of evidential practices in India’s progressing legal landscape. This study thoroughly investigates the Bill’s multitudinous features, aiming to replace obsolete statutes such as the venerable Indian Evidence Act of 1872. The proposed revisions are more than just adjustments; they represent a radical shift in how evidence is conceptualised, presented, and adjudicated in the Indian legal system.This report begin by scrutinizing the historical setting before delving into the chronological progression of legal systems in India. The Bharatiya Sakshya Bill has its roots in the rich tapestry of legal mends that have marked India’s transition from colonial influences to contemporary societal norms. Apprehending this historical continuum is essential for understanding the imperatives driving the push for such drastic legislative reforms. A critical pillar of our inquiry is a contrast with worldwide legal frameworks. This article has insights into the uniqueness and effectiveness of the Bharatiya Sakshya Bill by drawing comparisons and distinctions with legal systems that have undergone similar reforms. Comparative analysis contextualises the suggested changes and enriches the conversation with worldwide best practices and prospective problems. The narrative incorporates public and stakeholder viewpoints, creating a tapestry of varied opinions from legal practitioners, researchers, advocacy groups, and the general public. This part goes beyond legal theory by addressing the experiences and longings of individuals directly affected by the proposed legislative changes. Incorporating public perspectives improves the research, transforming it from a sterile legal analysis to a nuanced inquiry. As we traverse the Bill’s technological ramifications and obstacles, we are confronted with the changing character of legal practises in the digital era. Cybersecurity, digital forensics, and data protection have become central to our investigation. The forthcoming of the Bharatiya Sakshya Bill to these technological issues and probable implementation challenges become focus points, emphasising the necessity for a legislative framework that reflects the intricacies of the digital ecosystem.
Historical Groundwork –
The essence of ‘Closely Connected Facts’ is its analogy to the provisions of the 1872 Evidence Act. It carries on the tradition of addressing the relevance of facts in an issue, the interconnectedness of significant facts, and the complexities of cause and effect within a legal environment. Section 10 of the Bill modifies Section 12 of the Evidence Act, which historically determined the relevance of facts leading to calculating damages. This change is not a break with history but a refinement, a recalibration to accommodate nuances that may have emerged through time.
Key Provisions and Reforms in Bhartiya Sakshya Adhiniyam 2023
- Digital and Electronic Evidence
The 2023 Act enhances the role of Section 65B, which deals with the admissibility of electronic records in court. Key reforms include:
- Streamlining Electronic Evidence: Provisions for the secure collection, preservation, and authentication of electronic data. This includes blockchain records, AI-generated data, and evidence sourced from IoT devices.
- E-Signatures and Encryption: Reforms introduced clear guidelines for using electronic signatures, encryption techniques, and ensuring the integrity of digitally signed documents in legal proceedings.
2. AI and Machine-Generated Evidence
A major challenge of modern times is the use of AI-generated evidence, such as predictive algorithms in criminal investigations, or AI-powered tools for forensic analysis. The new provisions under the 2023 Act address:
- AI and Accountability: The Act introduces new guidelines to determine liability and accountability when evidence is generated by AI systems.
- Ethical Considerations: Ensuring that AI-generated evidence does not violate ethical standards or privacy rights.
3. Revisions on Privacy and Surveillance
In light of the Supreme Court’s landmark Puttaswamy judgment (2017), which demonstrated the right to privacy as a fundamental right, the 2023 amendments include new safeguards:
- Limits on Government Surveillance: The Act balances the need for evidence collection (such as from phone tapping or internet surveillance) with the individual’s right to privacy.
- Admissibility of Surveillance Data: The use of data obtained through surveillance must adhere to strict protocols to avoid misuse or violation of fundamental rights.
4. Strengthening Cybercrime Provisions
As cybercrimes like hacking, phishing, and identity theft grow in complexity, the 2023 Act introduces enhanced legal frameworks for the treatment of cyber-related evidence:
- Admissibility of Cybercrime Evidence: New sections focus on how digital trails, IP addresses, and metadata can be authenticated and presented in courts.
- Collaboration with Cyber Forensics: Legal provisions now allow better integration between law enforcement and cyber forensic experts for collecting digital evidence.
5. Joint Trials:
A joint trial alludes to to the trial of more than one person for the corresponding offence.The Indian Evidence Act states that in a joint trial, if a confession made by one of the accused which also influence other accused is proven, it will be treated as a confession against both.
- The BSA adds an elucidation to this provision. It divulges that a trial of multiple persons, where an accused has absconded or has not made acknowledgement to an arrest warrant, will be treated as a joint trial.
6. Oral Evidence:
Under the Indian Evidence Act, oral evidence encompasses statements made before Courts by witnesses in association to a fact under inquiry. The BSA allows oral evidence to be given electronically.
Challenges and Opportunities in Implementing the 2023 Reforms
1. Implementation Challenges
Inspite of the notable advances in Bhartiya Sakshya Adhiniyam 2023, several challenges remain:
- Training Law Enforcement and Judiciary: Law enforcement agencies and the judiciary need specialized training to effectively interpret and apply the new provisions, particularly when dealing with advanced technologies like blockchain and AI.
- Infrastructure: The collection and preservation of digital evidence require modern technological infrastructure, which is still lacking in many parts of India.
- Cybersecurity: With an increased focus on digital evidence, the need for robust cybersecurity protocols becomes essential to ensure that digital evidence remains untampered.
- Opportunities for Improvement
The 2023 amendments also present opportunities for further modernization:
- Global Cooperation: As cybercrimes are often cross-border, the Act can be strengthened by enhancing international collaboration on evidence sharing and legal proceedings.
- Blockchain-Based Evidence: The rising use of blockchain for recording transactions and legal contracts presents an opportunity to create more secure and transparent evidence-collection mechanisms.
Conclusion
The Bhartiya Sakshya Adhiniyam 2023 represents a significant step forward in adapting India’s legal system to the realities of the digital age. By focusing on digital evidence, AI-generated data, and privacy rights, the Act ensures that India’s judiciary is equipped to handle modern legal challenges. However, its effective implementation will depend on training, infrastructure improvements, and a commitment to continuous reform. As technology evolves, the need for flexible, forward-thinking legal frameworks becomes crucial in maintaining a fair and just legal system. While accepting the desire for uniformity in standards application, the conclusion emphasises the necessity for thorough inspection, particularly regarding confessional clauses. It recommends a balanced approach to ensure that the measure fits with recognised legal principles while addressing potential implementation issues. This research aims to provide a complete knowledge of the Bharatiya Sakshya Bill 2023, providing significant insights into its motivations, complexities, and prospective influence on the Indian legal landscape.
References
- The Indian Evidence Act, 1872
- Bhartiya Sakshya Adhiniyam 2023: Government of India Amendments
- Supreme Court of India: Justice K.S. Puttaswam vs Union of India (2017)
- Comparative study: Digital Evidence in Indian Law vs. Global Standards
- AI and Blockchain in Legal Systems: A Legal and Ethical Review
