Context

• The Parliament has passed The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) which seeks to replace the Indian Evidence Act, 1872. The Act governs the admissibility of evidence in Indian Courts. It applies to all civil and criminal proceedings. 
• BSB2 retains most provisions of the IEA including those on confessions, relevancy of facts, and burden of proof. 

Key changes proposed in the BSB2 include:

Documentary evidence:  

• Under the IEA, a document includes writings, maps, and caricatures.  
• The BSB2 adds that electronic records will also be considered as documents.  
• Documentary evidence includes primary and secondary evidence. Primary evidence refers to the original document, while secondary evidence includes documents that can prove the contents of the original.
• The BSB2 retains this classification. 

Oral evidence: 

• Under the IEA, oral evidence includes statements made before Courts by witnesses in relation to a fact under inquiry. 
• The BSB2 allows oral evidence to be given electronically. This would permit witnesses, accused persons, and victims to testify through electronic means.

Admissibility of electronic or digital records as evidence: 

• Documentary evidence includes information in electronic records that have been printed or stored in optical or magnetic media produced by a computer. 
• The BSB2 provides that electronic or digital records will have the same legal effect as paper records. 
• It expands electronic records to include information stored in semiconductor memory or any communication devices (smartphones, laptops). This will also include records on emails, server logs, smartphones, locational evidence and voice mails. 

Secondary evidence:  

• The BSB2 expands secondary evidence to include: 
  • oral and written admissions, and 
  • the testimony of a person who has examined the document and is skilled to examine the documents.  

Joint trials: 

• A joint trial refers to the trial of more than one person for the same offence. The IEA states that in a joint trial, if a confession made by one of the accused which also affects other accused is proven, it will be treated as a confession against both.  
• The BSB2 adds an explanation to this provision. It states that a trial of multiple persons, where an accused has absconded or has not responded to an arrest warrant, will be treated as a joint trial.

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.  
• 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 removing 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.