The Bharatiya Sakshya (Second) Bill, 2023

The Buuharatiya Sakshya (Second) Bill, 2023

Reference: https://prsindia.org/billtrack/the-bharatiya-sakshya-second-bill-2023 

The Bharatiya Sakshya (Second) Bill, 2023, is a legislative proposal aimed at overhauling the evidentiary framework within the Indian legal system. This bill seeks to modernize and improve the rules of evidence, making them more aligned with contemporary legal practices and technological advancements. Here’s an overview of the key aspects and objectives of the Bharatiya Sakshya (Second) Bill, 2023:

Objectives:

1. Modernization: Updating the evidentiary rules to reflect current technological and social developments.
2. Efficiency: Streamlining the process of presenting and evaluating evidence in legal proceedings.
3. Clarity: Providing clearer guidelines on what constitutes admissible evidence.
4. Fairness: Ensuring a fair trial by balancing the rights of the prosecution and the defense.
5. Integrity: Enhancing the reliability and integrity of evidence presented in court.

Key Provisions:

1. Digital Evidence: Introducing comprehensive rules for the admissibility and handling of digital evidence, including emails, electronic records, and data from digital devices.
2. Witness Testimonies: Revising rules related to the admissibility of witness testimonies, including guidelines for dealing with hostile witnesses and witnesses under protection.
3. Forensic Evidence: Establishing standards for the admissibility of forensic evidence, such as DNA analysis, fingerprints, and other scientific methods.
4. Documentary Evidence: Clarifying the rules for admitting documentary evidence, both physical and electronic, in legal proceedings.
5. Hearsay Rule: Defining the exceptions to the hearsay rule more clearly to ensure that reliable second-hand information can be considered under certain circumstances.
6. Expert Testimonies: Setting guidelines for the admissibility and evaluation of expert testimonies, ensuring that only qualified individuals provide expert opinions.
7. Chain of Custody: Emphasizing the importance of maintaining a clear chain of custody for evidence to ensure its integrity and reliability.
8. Protection of Evidence: Implementing measures to prevent tampering with or destruction of evidence, including penalties for such actions.

Implementation Mechanisms:

1. Judicial Training: Providing specialized training for judges and legal practitioners on the new evidentiary rules and their application.
2. Technological Integration: Investing in technology and infrastructure to manage and present digital evidence effectively in courtrooms.
3. Public Awareness: Conducting awareness programs to educate the public, legal professionals, and law enforcement agencies about the new evidentiary standards.
4. Regulatory Framework: Establishing regulatory bodies to oversee the implementation and adherence to the new rules of evidence.

Impact:

1. Legal Certainty: Providing clearer guidelines on evidence will enhance legal certainty and predictability in court rulings.
2. Judicial Efficiency: Streamlined evidentiary procedures will contribute to more efficient court proceedings and faster resolution of cases.
3. Fair Trials: Better-defined rules for evidence will help ensure fair trials by safeguarding the rights of all parties involved.
4. Enhanced Integrity: Strengthening the rules around evidence integrity and reliability will enhance the overall trust in the judicial system.
5. Technological Adaptation: Modern rules for digital and forensic evidence will allow the legal system to keep pace with technological advancements.

Challenges:

1. Implementation Costs: The need for technological upgrades and training programs may require significant investment.
2. Adaptation Period: Legal professionals and law enforcement may require time to fully adapt to the new rules and procedures.
3. Resistance to Change: There may be resistance from traditionalist segments within the legal community who are accustomed to the old evidentiary rules.
4. Privacy Concerns: Handling digital evidence must be balanced with privacy rights, requiring careful consideration of data protection laws.

Conclusion:

The Bharatiya Sakshya (Second) Bill, 2023, represents a significant step towards modernizing India’s legal framework for evidence. By addressing contemporary challenges and integrating advancements in technology, this bill aims to ensure that the process of presenting and evaluating evidence in court is fair, efficient, and reliable. Successful implementation will hinge on effective training, resource allocation, and collaboration among all stakeholders in the legal system.

Highlights of the Bill

• The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) replaces the Indian Evidence Act, 1872 (IEA).  It retains most provisions of the IEA including those on confessions, relevancy of facts, and burden of proof.
• The IEA provides for two kinds of evidence - documentary and oral.  Documentary evidence includes primary (original documents) and secondary (that proves the contents of the original).  The BSB2 retains the distinction.  It classifies electronic records as documents.
• Under the IEA, electronic records are categorised as secondary evidence.  The BSB2 classifies electronic records as primary evidence.  It expands such records to include information stored in semiconductor memory or any communication devices (smartphones, laptops). 
• The BSB2 expands secondary evidence to include: (i) oral and written admissions, and (ii) the testimony of a person who has examined the document and is skilled in the examination of documents.

Key Issues and Analysis

• The Supreme Court has recognised that electronic records may be tampered with.  While the BSB2 provides for the admissibility of such records, there are no safeguards to prevent the tampering and contamination of such records during the investigation process.  
• Currently, electronic records must be authenticated by a certificate to be admissible as documents.  The BSB2 retains these provisions for admissibility.  The BSB2 also classifies electronic evidence as documents (which may not need certification).  This creates a contradiction.
• Under the IEA, a fact discovered due to information received from an accused in police custody may be provable.  The BSB2 retains this provision.   Courts and Committees have noted that facts may be discovered in police custody by coercion, without adequate safeguards.
• The IEA (and the BSB2) allows such information to be admissible if it was obtained when the accused was in police custody, but not if he was outside.  The Law Commission recommended to remove this distinction.
• The Law Commission has made several recommendations, which have not been incorporated.  These include the presumption that the police officer caused the injuries if an accused was injured in police custody.