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Bharathiya Sakshaya Adhiniyam upsc note

 BSA and its implications for handling electronic evidence

  • The three newly-enacted criminal laws, the Bharatiya Nyay Sanhita (to replace the Indian Penal Code), the Bharatiya Nagarik Suraksha Sanhita (to replace the Code of Criminal Procedure) and the Bharatiya Sakshya Adhiniyam (to replace the Indian Evidence Act) are to come into force on July 1, 2024

  • At the same time, Section 106(2) of the Bharatiya Nayay Sanhita (BNS), which prescribes 10 years imprisonment for fatal accidents if they are not immediately reported to the police, has been put on hold, as notified by the Central government.

  • The Ministry of Home Affairs and State governments are preparing for a smooth transition. 

  • While some changes have been made in the Bharatiya Nagarik Suraksha Sanhita (BNSS) in connection with investigation and police functioning, a few new offences and some changes introduced in the BNS, the contents of the Indian Evidence Act, 1872 have changed little as far as the Bharatiya Sakshya Adhiniyam (BSA) is concerned. 

  • The scope of secondary evidence has been slightly broadened and some changes have been made in the provisions relating to electronic evidence in the BSA.

  • There is some precision in the definitions section

  • An illustration to the definition of “document” (which includes electronic and digital records) says that an electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence (should have used the term information in place of evidence), and voice mail messages stored on digital devices are documents.

  • Similarly, there is clarity in the provision dealing with primary (electronic) evidence (Section 57) in the form of Explanations

  • One of such four explanations says that where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings shall be primary evidence

  • This may help the investigating agencies in fixing culpability of a cyber-criminal even if he destroys his original electronic record to deny the allegations as it may be collected from other sources without its value getting diminished.

  • The law on the admissibility of electronic records is settled. 

  • Though there are some changes in Section 63 of the BSA (which is equivalent to 65-B of the Indian Evidence Act), the ratio of the Supreme Court judgment in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal & Ors. (2020) will still equally apply to the new provisions. 

  • In this case, the Court held that the required certificate under Section 65-B(4) — now Section 63(4) of the BSA — is sine qua non for the admissibility of electronic record

  • The other provisions with regard to admissibility of secondary evidence will not apply to electronic records as Section 65-B of the IE Act starts with a non-obstante clause (i.e., notwithstanding anything contained in this Act) and Section 65-A and Section 65-B are a complete code by themselves. 

  • The non-obstante clause of the Indian Evidence Act is retained in the BSA.


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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: Bharathiya Sakshaya Adhiniyam upsc note
Bharathiya Sakshaya Adhiniyam upsc note
Learnerz IAS | Concept oriented UPSC Classes in Malayalam
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