Repealment of Indian Evidence Act, 1872 and its replacement by Bharatiya Sakshya (Second) Bill and the amendments made thereof are going to have a huge impact on our current legal system. With the introduction of technological terms in Bharatiya Sakshya Sanhita a great influence regarding technological involvement is to be resorted to. These changes were much needed as our society has changed a lot in terms of technology in the past decade, from the use of mobile phones to the introduction of internet and rapid growth of the same. Now, technology is not a want or a luxury instead it is the need of the hour, without it one won’t be able to compete in this extremely competitive world. Everything has its perks but at the same time contain some drawbacks too, same goes with this amendment as well. Even though this amendment was needed, the implementation of the same would be a arduous task as with the increase in the horizons of involvement of technology in legal system, there will be increase in the loopholes and ambiguity too, which can lead to injustice to an innocent and acquittal for a guilty person, a very unfortunate thing to happen. This paper attempts to give a panoramic view of Bharatiya Sakshya (Second) Bill and its impact on the current legal system.
Key Words
Bharatiya Sakshya (Second) Bill, Indian Evidence Act, Technology, Electronic records, Digital Records, Communication device
Introduction
A Law or an act is developed when there is an existing social problem or social injustice prevailing in society. It is made by the people, for the people of a society, for the accommodation of justice. The norms of society, the ideologies of it, thinking of its members are ever changing. With these changes the standards of right and wrong and the definition of acceptable and unacceptable also changes. An act which was considered as a crime before might not be seen as the same now (for example, homosexual relationships) on the other hand a completely justifiable act in the past might be seen as an act of disgrace in the present (for example, adultery).
As said before purpose of law is to try to solve society’s problems, hence when the changes occur in our society, our laws are needed to be amended too. Our law makers have always kept this in mind and whenever needed the laws are amended accordingly. The parliament argues that this is the same reason for the repealment of Indian Penal Code (1860), Code of Criminal Procedure (1973) and Indian Evidence Act (1872) and introduction of three new bills to replace the same respectively, namely – Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Sanhita.
To understand the reason for replacement of Indian Evidence Act (1872) to Bharatiya Sakshya (Second) Bill, we have to look upon the history of enactment of Indian Evidence Act. Indian Evidence Act (hereinafter referred to as IEA) came into force on 1st September, 1872, passed by Imperial Legislative Council (British Parliament) during British Raj. It had the provisions made by the Colonial Government and assisted with the actions considered as problems during that time and further this act has been amended time and again, whenever needed. The prominent amendments are-
i) The introduction of Information Technology Act, 2000 led to the amendment of IEA and through this admissibility of electronic records were considered relevant as secondary evidences.
ii) Through The Nirbhaya Case, in 2013 the Supreme court held that the character and sexual history of rape victims are irrelevant and inapt facts and it was also added that the burden to proof that consent was given is on the accused and the same was amended in IEA.
Now the parliament thinks that it is necessary to repeal this act and replace it with Bharatiya Sakshya (Second) Bill (hereinafter referred as BSB2, wherever necessary) because of the technological advancements happening in the society. Even though some electronic devices and records have been added to several provisions in IEA through the amendment made in 2000, parliament felt that there are still some changes that needed to be made. It is of logic only to do this as ever since 2000 there has been prominent changes in the field of technology. During the early 20s the use of computers and internet were not as salient as it is now, especially in India. Introduction of smart phone and touch-screen phone and spread of internet at such a vast level was yet to be made then. But a little after 2005 the advancement of technology took rapid turn, and during and after Covid there is no man, no industry, no institution now that can work without internet, electronic devices and communication devices as it was and is the need of the hour. So, therefore the introduction of new provisions and changes to Indian Evidence Act is prominent and this is now being addressed by the parliament.
On 11 August 2023, Amit Shah, Minister of Home Affairs, introduced the Bharatiya Sakshya Bill, 2023 in Lok Sabha. On 12 December 2023, the Bharatiya Sakshya bill, 2023 was withdrawn. On 12 December 2023, the Bharatiya Sakshya (Second) bill, 2023 was introduced in Lok Sabha.
Key Differences between Indian Evidence Act and Bharatiya Sakshya Bill are –
i. BSB2 has repealed 5 existing provisions of IEA (they are Sections 22(A), 28. 29, 82 and 88)
ii. It modifies 23 provisions of IEA and
iii. Adds 1 new provision. (Section 61 of BSB2)
iv. There were 167 Sections in IEA but in BSB2 there are 170 Sections.
Research Methodology
This paper is of descriptive and analytic nature and the nature of research is doctrinal, done from primary as well as secondary sources.
Review of Literature
The research provided by Dr. ON Ravi is a comprehensive study about the changes that were needed to be made in the existing IEA. The major change that needed to be added, according to him, was related to technology. He forced upon sections (Section 65a, 65b, 22a, 45a and 59 of IEA) that needed provisions related to technology in them. This research paper was all about how the horizons of the said act needed to be extended, keeping in mind to maintain certainty and control the existing ambiguity.
Fortunately most of the changes that were mentioned by him are implemented in the new Bharatiya Sakshya Sanhita, but the thing about controlling ambiguity not so much.
Now here is a comprehensive study about Bharatiya Sakshya (Second) Bill to understand the changes made –
Significant Changes proposed
After a thorough study of the new bill Bharatiya Sakshya (Second) Bill, the prominent and key changes penetrable are –
i) Oral evidence in electronic form –
Addition of the word “recorded upon”, “includes electronic and digital records” in the definition of Document in section 2(c)(corresponding to section 3(e) of IEA). The following words are added in the definition of document so as to include the electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices as documents.
Section 54 (corresponding to Section 59 of IEA) excludes the word “electronic records” as the previous provision stated that electronic records are exempted from being a proof of fact by oral evidence. Therefore by excluding electronic device from this provision the new bill tries to state that electronic records too are considered as relevant proof of fact by oral evidence.
BSB2 considers oral evidences as to contents of electronic records valid as evidences in a court of law therefore repealing Section 22(A) of IEA which stated that the oral evidence that were stored by electronically recording them was considered irrelevant.
ii) Many of the provisions in BSB2 have been combined into one section. (For instance Sec 25, 26 and 27 of IEA has been coupled in section 23 of BSB2 and Sec 74 and 75 of IEA has been coupled together in Section 74 of BSB2.)
iii) Relevance of electronic or digital law books –
Addition of the words “including in electronic or digital form” in Section 32 (corresponding to Section 38 of IEA). This section states that the law books used for reference in cases will now be accepted in electronic form or in other words its soft copy will also be considered valid for reference.
iv) Primary Evidences :- (actual or original documents provided for the inspection of the court)
Section 57 of BSB2 (corresponding to section 62 of IEA) explains the criteria of primary evidence. Through the addition of 5 more explanations it states that if electronic or digital records are stored in several files, a video recorded and transmitted or broadcasted in several areas, storage of electronic or digital records in different folders of the same computer, even the temporary ones, all will be considered as primary evidences. Through the series of added explanations it is clearly being stated that electronic or digital records are considered as primary evidence according to the BSB2.
v) Secondary Evidences :- (evidence that has been reproduced from an original document or substituted for an original item, in other words, copy of the original document.)
Addition of three sub provisions in Section 58 of BSB2 (corresponding to section 63 of IEA). In this, sub clauses 6, 7 and 8 state the oral and written admission and the statement or opinion of a professional expert or examiner who has examined something as per section 39A are considered valid and apt secondary evidences. This has been done to make the copies of electronic records valid as secondary evidences, if the examiner has examined and stated his opinion in court that the copies are authentic copies of the original record.
vi) Increasing the horizons of admissibility of electronic records –
Introduction of a new provision ,i.e., section 61 in BSB2 which says “Nothing in the Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall have the same legal effect, validity and enforceability as paper records” clearly stating that the admissibility of any electronic record cannot be denied. Electronic records have the full authority to be considered as apt, valid and relevant evidences in the court of law.
Addition of the words “semiconductor memory” and “any communication device or otherwise stored, recorded or copied in any electronic form” in section 63 (corresponding to section 65B of IEA). This is The Most prominent change and a topic of debate. Through this addition the horizons of admissibility of electronic records has been increased to a vast sense. Through the addition of semiconductor memory the inclusion of RAM, ROM, Flash Memory, Cache Memory etc., is also been done as a relevant evidence and by the addition of any communication device the smartphone, laptops, pcs, etc., have also been included as an apt evidence.
Section 63 (2)(a) and (c) have also included communication devices and therefore they are too to be considered as valid evidences in any court of law.
There are several loopholes in this which are discussed further.
As the world is so dependent on electronic devices, it was important to consider all these as documents in legal sense as there have been many cases where this loophole has been used against the victim as the documents for submission as evidence was recorded or stored in electronic means only and therefore justice was denied.
The main and key change in all this was all about the involvement of technology in the current legal system.
Related Cases
- In Praful Desai V. State of Maharashtra, the Supreme Court held that video recorded evidences are admissible in any court of law and the presence of a person under CrPC does not only mean physical presence but includes virtual presence too.
- In Anvar PV Vs. PK Basheer & Ors, the Court held the clear cut and uniform procedure for the admissibility of electronic records under Section 65B of Indian Evidence Act. The procedure for the admissibility of electronic device holds a prominent place to secure both the parties from submission of any fraudulent or corrupt electronic evidence which can be used against the right party.
- In P Gopalkrishnan Vs. State of Kerala & Anr., the Court deliberated on the first issue at length and concluded that the contents of the memory card would qualify as a ‘document’ within the meaning of Section 3 of the IEA.
- In Shafhi Mohamad Vs. State of Himachal Pradesh case the Supreme Court held that according to section 65B of Indian Evidence Act a party who is not in possession of device from which the document has been produced doesn’t need to submit a certificate.
Objective to force upon each wording in law
Each and every word mentioned in a legal book is of utmost importance. Every single word holds meaning. This is the reason simple words like ‘relevant’, ‘court’, ‘fact’ are also properly defined. The wordings used can actually work as a win or lose for the lawyers. In the above mentioned cases too, the importance of wordings can be observed clearly.
The words that can be seen numerous times in this paper are electronic and communication devices and records. Addition of these words has changed the whole meaning of documents. With the use of just these words whole of technology has been, in a way, added to the BSB2. Wordings in law is all about being precise as well as brief, elucidating something with as less word as possible but still maintaining least scope of ambiguity so that the legal system can be pinpoint and just. But in this act, our law makers failed to avoid ambiguity. By addition of electronic records as primary evidence but still retaining the provision of admissibility of secondary evidence have made the criteria for the admissibility of electronic records ambiguous and uncertain. This is needed to be clear by clear cut use of words later on while giving judgments or making amendments regarding the same.
Mere use of words hold great importance in the field of law and hence the wordings in this field by anyone (lawyers, judges, law makers, acts) has to be done with thorough thinking.
Key Issues and Analysis
Major issues or loopholes or topic of debate in the current BSB2 are as follows :-
1) Tampering of Electronic Records
Any communication or electronic device and its record can be easily tampered if not stored or handled properly. It is hard for a layman with zero knowledge on the topic to maintain a secure space for his/her documents to be safeguarded. Even the original copy of an electronic data can be tampered in some or the other way and with the introduction of the same in our legal system, it is now going to be very hard to protect oneself from being a victim of the same as false tampered evidences can be used against the one on the right side. There can be increase in injustice if the situation is not being handled with caution. And as the saying goes “Let hundred guilty be acquitted but one innocent should not be convicted.”
As electronic evidences are now considered as primary evidence and if so happens that a case is wholly based on the electronic evidences only, it may lead to travesty of justice.
This can be proved as a huge issue for our justice system and necessary safeguards for the same are needed to be addressed, not only by law professionals but to the general public too, so that they themselves can safeguards there data as much as possible.
2) Ambiguity
Even though BSB2 has included electronic evidence and communication devices as primary evidences (until and unless it comes under the provision of secondary evidences), it still retains the provision (section 63) of providing certification for the admissibility of electronic evidences. The BSB2 specifies that electronic records have to be proven by primary evidence but at the same time it also retains and pursues the provision of admissibility of electronic records by certificate authentication.
These changes can result in ambiguity regarding submission of electronic evidences, leading in delay in procedure, uncertainty of facts or even misguidance to the court of law.
3) Political Influence
Was there really the need for repealing a whole act, while the amendments made in them could have been done in the existing act itself or was it a mere act of politics. The first argument against these amendments by many people was on this very topic. Many critics have argued that the change of name was a political stunt to promote the word “Bharat” as there have been controversies about the same in the past. Many argue that this was done to change the influence of British era, the parliament wanted to get rid of any wordings related to Victorian era. Maybe both the points are valid in some or the other way.
Suggestions
In 2021, the Karnataka High Court provided some guidelines through the case of Virendra Khanna Vs. State of Karnataka. These include : (a) Only a qualified forensic examiner should accompany the search team; no officer, even the investigating officer, should be allowed to seize the electronic record during seize and seizure; (b) Use of faraday bag should be a must while handling electronic storage devices (like pen drives or hard drives) [Faraday bags are ingenious tools that offer a simple and effective solution for protecting electronic devices from external electromagnetic interference and unauthorized access], this would protect the electronic devices from being tampered or disrupted by any signal or electromagnetic interference; (c) Involvement of professionals in IT sector for examination and also to provide guidelines to the accused or the victim, as per their request, on how to safeguard their electronic data.
The act has given some leniency or scope to the judiciary in some of the provisions by stating “court considers reasonable under the circumstances of the case”. This has given the power to the judges and while providing a judgment they must exercise this properly. Through these judgments, the ambiguity which is now present regarding submission of electronic evidences or admissibility of electronic records might be decreased and there could be a dab of clear picture regarding the same.
Through my research I came to know that there was actually no need for repealment of Indian Evidence Act as the changes could have been through amendment in the same act. I am absolutely in favour of the said amendments but I don’t see a reason to introduce a whole new act just to modify few provisions. Justification for the same is a little ambiguous and uncertain for me.
Conclusion
There is still a long road to be covered before the proper implementation of BSB2. Implementation of a whole new bill with loopholes and ambiguousness is a tedious task and is to be done with proper regulations and framework. There needs to be work done on some areas lacking certainty then only the amendments made in this can be of use otherwise it will only bring more confusion to our legal system.
As much as the introduction of technological aspects in our legal system is important, the use of it for the right of people and for providing justice holds the same importance. A step has been taken towards the development of technological advancement, next has to be taken with double circumspection.
Author: Tashu Chauhan
Bharati Vidyapeeth, New Law College