THE NEWLY MINTED BHARATIYA SAKSHYA BILL, 2023: OBSTACLES AND PROSPECTS IN THE TRANSITION FROM LEGISLATION TO LITIGATION
"In the courtroom, it's not what you know; it's what you can prove."
Denzel Washington in the movie
Riya Singh,
Army Law College, Pune
ABSTRACT
The Bharatiya Sakshya Bill, 2023 was recently introduced by the union home minister. The Indian Evidence Act of 1872 would be repealed by the Bharatiya Sakshya Bill. Important clauses by allowing electronic or digital records to be used as evidence, the measure gives them the same legal standing as paper records. It amends 23 provisions of the Evidence Act, repeals five of the current sections, and introduces one new provision. The law broadens the definition of secondary evidence to include mechanical copies made from the original, counterparts of documents, and oral descriptions of document contents.
The government hopes to establish clear and consistent guidelines for handling evidence during case trials through the bill. Due to its shortcomings, the Indian Evidence Act was repealed. Because it does not “address the technological advancement undergone in the country during the last few decades,” the Indian Evidence Act has been repealed. The new measure attempts to make legislation more in line with peoples’ needs and aspirations today. Introduction “Consolidate and provide for general rules and principles of evidence for fair trials,” is its stated goal.
INTRODUCTION
The crucial cornerstone of the complex web that is our country's judicial system is criminal law. The supreme importance of criminal law has continually been emphasised by eminent judicial authorities. Recently, the union home minister announced a trio of laws that will fundamentally alter how the criminal justice system is perceived and operates.
The Bharatiya Sakshya Bill, 2023, which aims to replace the Indian Evidence Act, 1872, is one of them. Indian history is influenced by the colonial past, which is shown in the antiquated Indian Evidence Act, 1872. By implementing fresh and new measures, the administration is attempting to shed such hues. Furthermore, this was not the only justification for introducing the new bill into Parliament. The Indian legal system requires a revamp as a result of the introduction of mind-boggling technologies, which was also one of the reasons this bill was introduced. Through these bills, the criminal justice system is intended to be rebalanced. The Bharatiya Sakshya Bill, 2023, in all its complexity, will be examined in this article, along with its contents, obstacles and hurdles to be overcome, and opportunities it will bring. In order to give practitioners, litigants, and the whole structure of Indian justice a sophisticated knowledge of this important legal change, we shall also go into its core.
KEY PROVISIONS OF THE BILL
The Bharatiya Sakshya Bill, 2023 is covered with new clauses, amendments, and adjustments.[i] It amends 23 provisions of the Evidence Act, repeals five of the current sections, and introduces one new provision. The bill has 170 sections in total and 23 Sections are up for change.[ii]
Electronic and digital document as evidence:
The BS Bill very clearly states that electronic records may be used as evidence in court if they have received legal authentication. Primary and secondary evidence are the two different categories of evidence. In order to better reflect the developments in technology in the twenty-first century, the Indian Evidence Act was revised in 2000. The Supreme Court ruled that printouts and other computer outputs are now admissible in court as evidence in Arjun Panditrao v. Kailash Kushanrao. With this ruling, the Indian government aims to narrow the scope of evidences in the new bill. This bill makes electronic or digital records admissible as evidence, thereby they will have the same legal effect as paper documents.
Streamlining procedures to gather data from many sources:
The Bharatiya Sakshya Bill aims to create uniform procedures for evidence collection across India. This will make it easier to gather evidence of the offence in a fair, just, and reasonable manner from anywhere on Indian territory. This will make the process of gathering evidence simple.
Expansion of Secondary Evidence's Scope:
There are two categories of evidence, primary evidence and secondary evidence, as was previously discussed. Legal processes are supported by primary evidence. Secondary evidences are intended to augment primary evidence and are more like an addendum to your answer booklet.
Eyewitness testimony, original paperwork, and tangible objects are instances of primary evidence, whereas books, articles, and hearsay are examples of secondary evidence. The law, which we will discuss now, broadens the definition of secondary evidence by allowing the use of mechanically generated copies, document counterparts, and verbal descriptions of document contents.
Oral admissions, written admissions, and evidence of a person looking over a document fall under the new definition of secondary evidence, which has been added to Section 58 of the Bill, which contains provisions for "secondary evidence" (corresponding to Section 63 of the Evidence Act).
New Presumption Provisions:
This new interesting change, whose effects are yet to be determined. When times comes to prove your burden then presumptions play a very crucial role, you are thought to have a slight advantage over the opposition. In the present, the Bharatiya Sakshya Bill, 2023, seeks to establish new presumptions.[iii]
In Section 81 of the Bill, which deals with the presumption of Gazette in electronic form, Section 81A of the Evidence Act has been expanded, and a new explanation is added that clarifies the intent of "proper custody is explained." The BS Bill creates a presumption that electronic papers created in the regular course of business are legal, to put it simply.
New bill on character and confession evidence:
It's a harsh reality that the accused is occasionally be coerced or pressured for making a wrong or false confession in order to close the case.[iv] Section 24 of evidence act(which states that any confession made by an accused person if caused by inducement, threat, or promise is irrelevant) has made some relevant changes to prevent these incidents.
Two additional provisions that permit specific types of confessions to be considered relevant have been added to Section 22 of the new Bill, which retains the former Section. The conditions for admittance to confessional ceremonies are modified under the Bharatiya Sakshya Bill, 2023. This is done to ensure that confessions are reliable and voluntarily made, which essentially implies they are unaffected by threats or compulsion.
Character evidence admission criteria are modified by the Bharatiya Sakshya Bill, 2023, in this regard. Character evidence will now have a harder time being believed as proof, increasing dependability and fairness.[v]
BENEFITS OF THE BILL
Prosecution with diligence: Given that it makes it easier to prosecute cases and get convictions, the Bharatiya Sakshya Bill has the potential to improve the effectiveness and equity of the Indian criminal justice system.
Harmonisation with technology: The BS Bill has the potential to bring the Indian criminal justice system into line with the technological advancements of the twenty-first century by including electronic or digital recordings as admissible evidence and by adopting uniform standards for the collection of evidence.
The BS Bill could considerably contribute to the protection of people whose rights and interests have been violated by criminal activities by expediting the road for victims to obtain judicial redress.
DRAWBACKS OF THE BILL
Making defendants' legal predicaments worse The BS Bill might theoretically be used as a tool to silence resistance or target marginalised communities by raising the bar for defendants in their legal defence.
Predisposing to Unjust Condemnations: Since the BS Bill makes it easier for prosecutors to present potentially questionable evidence, it may unintentionally encourage the unjust condemnation of people who may be innocent.
Posing an Extremely Difficult Cognitive Challenge to Laypersons The BS Bill's inherent complexity may make it unintelligible to the common public, preventing them from understanding its complicated legal intricacies.
WAY AHEAD
Construct consensus and support for these laws by addressing the worries and apprehensions of various stakeholders.
Make certain that the bills are swiftly and unequivocally approved by both chambers of Parliament.
Make sure that the laws are announced nationwide and are implemented in a phased and timely manner.
Make sure that the bills are regularly examined, reviewed for gaps or errors, and corrected as necessary.
CONCLUSION
The foundation of any healthy democracy is the criminal justice system, which must be fair, quick, and people-focused. The three measures taken by the parliament will marks a turning point and offers an unheard-of opportunity to achieve this goal.
However, because of the significant shift they herald, it is our duty to carefully consider and put under close scrutiny the effects of particular phrases, particularly those dealing to confessions. The Bharatiya Sakshya Bill, 2023, would usher in a new era of metamorphosis in India's criminal justice system and is expected to serve as a model for other countries to follow.
REFERENCES
[i] Daily current affairs (no date) Civil Services Examination | Best IAS coaching - NEXT IAS. https://www.nextias.com/current-affairs/12-08-2023 (Accessed: 30 August 2023).
[ii] Kampani, A. (no date) What the bharatiya sakshya bill, 2023 proposes for Electronic Records, Bar and Bench – Indian Legal news. Available at: https://www.barandbench.com/columns/what-the-new-evidence-bill-proposes-for-electronic-records (Accessed: 30 August 2023).
[iii] Gyan, I. (no date) Home minister presented Bharatiya Nyaya Sanhita bill 2023 UPSC, IAS Gyan. Available at: https://www.iasgyan.in/daily-current-affairs/overhaul-of-british-era-criminal-laws (Accessed: 30 August 2023).
[iv] Bureau, T.H. (2023a) IPC, CRPC, evidence act amendments to indianise criminal justice mechanism: Law minister, The Hindu. Available at: https://www.thehindu.com/news/national/ipc-crpc-evidence-act-amendments-to-indianise-criminal-justice-mechanism-law-minister/article67235533.ece (Accessed: 30 August 2023).
[v] From legislation to litigation: Hurdles and prospects in the freshly minted Bharatiya Sakshya Bill, 2023 (no date) Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-13185-from-legislation-to-litigation-hurdles-and-prospects-in-the-freshly-minted-bharatiya-sakshya-bill-2023.html (Accessed: 30 August 2023).