Even though the essence and majority of the provisions of the Indian Evidence Act, 1872 are kept as para materia in the new Bhartiya Sakshya Adhiniyam, 2023, alterations like inclusion of Electronic Records, broadened scope of admissibility of confession in custody and admission of oral examination through electronic means brings a substantive impact not only on the provisional orientation but also transition in ripple effect on the Indian litigation in limine. Anticipated affects of the said legislation involve :
A. Admission of electronic records
The significant change in the BSA, 2023 is the incorporations of provisions of electronic records into evidence, formerly even though through amendments electronic records were somehow a part of the IEA,1872, it failed to provide thorough procedure and provision s relating to admission, categorization for their admissibility and as an active part of judicial proceedings. With commencement of the new legislation, the feasibility to bring electronic records will come in place on a much larger level with and meet the need of the eleventh hour. This shall not only reduce documentation/paperwork of electronic media (Absence of Sec. 65B) and applications accompanying electronic records but also provide a larger set of means for furnishing evidence in this very era of technology.
This has also given discretion on the adjudicating bodies to determine in case there is risk of tampering of electronic evidence with experts and from sources through which the subjected electronic document was revived in the first place.
B. Oral examination through electronic means/portal
The provision allowing admission of oral examination and admission of statements through electronic means and virtually will definitely will prevent the postponement of stages of evidence and examination and create efficient conclusion of judicial procedure and reduce the perpetual reruns faced by advocates and litigants.
C. Structured Legislation
The BSA, 2023 for obvious reasons has evolved the structural deficiencies present in the Act of 1872, this includes exploring the provision of joint trials in case of absconded accuse, inclusion of international treaties and conventions which within the ambit of facts which are to be considered by Court and removal of archaic terms prior independence which were still present in active legislation of the state.
D. Exclusion of Executive from Judicial Proceedings
Although the new provisions of the said Adhiniyam have tried to establish a modern statute, a contrasting transition is witnessed in the proviso of production of documents, excluding productions and removal of Court’s authority to call upon the communication between the ministers and the Head of the State, reflecting a conservative approach for a democratic state like ours. This shall also safeguard illicit actions of executive members from being under check of judiciary and restrict through investigation in matters against the state authorities.
E. Admissibility of confession in custody
Instead of restricting consideration of confession taken within judicial/police custody in order to avoid torture/harassment and misuse of the due process of law, the Aadhiniyam has broadened the scope of admission of confessions which are taken into police custody.
Even though the law does not include the confession/statement given under coercion/duress or intimidation, it has allowed admissibility of confession taken under deception. It is pertinent to note, that in practical view, it shall give undue advantage to the investigating officers to eventually coerce and deceive the alleged personal. In culmination of the abovesaid, the new statute although made an attempt to meet the need of the current times, it still has preserved an essence of archaic legislative intent. Nevertheless, the subsequent effects can only be determined and analyzed after it has undergone a through prospective trajectory.
In culmination of the abovesaid, the new statute although made an attempt to meet the need of the current times, it still has preserved an essence of archaic legislative intent. Nevertheless, the subsequent effects can only be determined and analyzed after it has undergone a through prospective trajectory.
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