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Bharatiya Sakshya Adhiniyam 2023

GS Paper 2

 Syllabus: Government Policies and Interventions/ Criminal Justice System

 

Source: Th

 Context: The Bharatiya Sakshya Adhiniyam introduces changes in electronic evidence provisions, addressing definitions and admissibility concerns.

 

What is Bharatiya Sakshya Adhiniyam? 

The Bharatiya Sakshya Adhiniyam is a new criminal law in India that replaces the Indian Evidence Act. It introduces changes in provisions relating to electronic evidence, including definitions and admissibility procedures.

It is part of the three new criminal laws, the Bharatiya Nyay Sanhita (replacing IPC), Bharatiya Nagarik Suraksha Sanhita (replacing CrPC), and Bharatiya Sakshya Adhiniyam (replacing IEA), will be enforced from July 1, 2024. The Bharatiya Sakshya Adhiniyam retains much of the Indian Evidence Act’s content, with minor changes in secondary evidence scope and electronic evidence provisions.

Major provisions of BSA 2023 (more detailed)

Provisions Details
Provisions retained from Indian Evidence Acts Admissible Evidence: Parties can present admissible evidence, classified as ‘facts in issue’ or ‘relevant facts’
A Proven Fact: A fact is proven when the Court believes it to exist based on presented evidence.
Police Confessions: Confessions made to police officers or in police custody, unless recorded by a Magistrate
Key Changes Incorporated in BSA, 2023 Documentary evidence includes electronic records
Oral evidence can be given electronically
Admissibility of electronic or digital records as evidence
The precise definition of “document” includes electronic records
Clarity on primary (electronic) evidence, allowing multiple stored recordings to be primary evidence
Synchronization with IT Act, 2000 terms like ‘semiconductor memory’ and ‘any communication device’ for better visibility.

 

Concerns with BSA, 2023

  1. Tampering of Electronic Records: The Supreme Court acknowledges susceptibility to tampering without safeguards, potentially leading to miscarriage of justice.
  2. Ambiguity in Admissibility of e-Records: BSA includes electronic records but lacks clarity on admissibility criteria, potentially affecting trial fairness.
  3. BSA does little to reduce the discrimination faced by Accused Within or Outside Police Custody
  4. Potential for Coercion in Obtaining Information: Concerns regarding the circumstances under which information is obtained from individuals in police custody, with implications for the voluntariness and reliability of such evidence.
  5. Overreliance on Expert Opinions: The requirement for expert opinions to validate electronic evidence may lead to an increased workload for forensic laboratories and potential delays in legal proceedings.

 

 

Steps for Enhancing BSA Effectiveness:

  1. Standing Committee Recommendations: Mandate secure handling of electronic evidence, and ensure proper chain of custody.
  2. Guidelines by Karnataka High Court: Introduce safeguards during search and seizure, including forensic examiner presence and Faraday bag usage.
  3. Law Commission Recommendations: Address coercion-related evidence, and revise custody-related provisions for fairness.
  4. Malimath Committee Recommendations:
    1. Introduction of the ‘social welfare offences’ category for minor violations, allowing fines or community service as penalties.
    2. Adoption of a ‘mixed system’ blending adversarial and inquisitorial elements, empowering judges to actively participate in evidence collection.
    3. Lowering the standard of proof for conviction from ‘beyond reasonable doubt’ to ‘clear and convincing evidence’.

 

International Experience:

The EU is reforming its approach to evidence by proposing a directive for mutual admissibility of electronic evidence in criminal proceedings. This reform aims to establish uniform standards for electronic evidence usage across member states. Key aspects include:

  • Mandating the use of electronic evidence only if its integrity can be verified
  • Ensuring secure handling from production to custody
  • Involving IT experts at the accused’s request for fair evaluation.

 

Insta Links:

 

Mains Links:

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