30 July 2024 – The Hindu

Provisions of the Bharatiya Sakshya Adhiniyam

• As of July 1, 2024, three new criminal laws will go into effect: the Bharatiya Nyay Sanhita (which will replace the Indian Penal Code, or IPC); the Bharatiya Nagarik Suraksha Sanhita (which will replace the Code of Criminal Procedure, or CrPC); and the Bharatiya Sakshya Adhiniyam (which will replace the Indian Evidence Act, 1872).
• In terms of the Bharatiya Sakshya Adhiniyam (BSA), not much has changed with regard to the provisions of the Indian Evidence Act (IEA), 1872. The BSA’s regulations pertaining to electronic evidence have undergone modifications, and the parameters governing secondary evidence have been marginally expanded.

The Criminal Justice System’s Evolution:

• Different criminal justice systems have developed over India’s history and been well-known in various areas under various rulers.
• India’s criminal laws were created during British control, and they have essentially stayed the same up until recently.
• The Indian Penal Code (IPC) was drafted in 1860 as a follow-up to the first law commission, which was constituted in 1834 under the Charter Act of 1833. It came into effect on January 1st, 1862.
• A collection of guidelines and related matters governing the admissibility of evidence in Indian courts of law are provided by the Imperial Legislative Act (IEA), which was first passed in India by the Imperial Legislative Council in 1872, during the British Raj.
• Complying with this, the CrPC outlines the processes for enforcing criminal law in India. It was passed into law in 1973 and went into force on April 1st, 1974.
• Three crucial bills to revamp the criminal justice system were passed by the Parliament in December 2023: Bharatiya Nyaya (Second) Sanhita, 2023; Bharatiya Nagarik Suraksha (Second) Sanhita, 2023; and Bharatiya Sakshya (Second) Bill, 2023.

What Are the Different BSA, 2023 Provisions?

• Most of the IEA, 1872’s provisions are still in place in the BSA, 2023. Among them are:
• Only acceptable evidence may be presented by the parties to a legal procedure. One can categorise admissible evidence as “relevant facts” or “facts in issue.”
• Any truth that establishes the existence, kind, or scope of any right, liability, or disability asserted or refuted in a court of law is referred to as a fact in issue.
• Facts that are relevant to a particular case are known as relevant facts. Oral and documentary evidence are the two types of evidence accepted by the IEA.
• A Proven Fact: According to the evidence offered, a fact is deemed proven when the court determines that it either (i) exists or (ii) has a high enough probability of existing under the particular circumstances of the case for a wise man to act accordingly.
• Confessions to Police: Any information disclosed to a police officer is not admissible. Unless certified by a magistrate, confessions made while under police custody are likewise not admissible.
• On the other hand, if information obtained from an accused person in prison leads to the discovery of a fact, that information can be accepted provided it has a clear connection to the fact that was found.
• Important Modifications Added to BSA, 2023:
• Documentary Evidence: Writings, maps, and caricatures are all considered documents for the purposes of the IEA. Electronic records will likewise be regarded as documents, according to the BSA. Primary and secondary evidence are both included in documentary evidence.
• The original document and its components, such as computerised records and video recordings, are considered primary evidence.
• Oral testimony and written records that substantiate the original’s contents are considered secondary evidence.
• The BSA broadens the definition of secondary evidence to include: (i) written and verbal admissions; and (ii) the testimony of an individual who has reviewed the document and is qualified to review it.
• Oral Evidence: As defined by the IEA, statements made by witnesses in court regarding a fact that is being investigated are considered oral evidence. Oral evidence may be presented electronically under the BSA.
• This would allow victims, accused parties, and witnesses to testify electronically.
• Acceptability of Digital or Electronic Records as Evidence: Information from digital or electronic records that has been printed or saved on computer-produced optical or magnetic media is admissible as documentary evidence.
• Such data could have been processed or stored by several computers working together or separately.
• Joint Trials: When multiple people are tried for the same offence, this is referred to as a joint trial. According to the IEA, in a joint trial, if a confession from one accused party that also impacts the other accused party is confirmed, it will be interpreted as a confession against both of them.
• The BSA supplements this clause with an explanation. It says that a multi-person trial in which one of the accused has escaped or not answered to an arrest warrant will be handled as a joint trial.
• What Important Changes Have Been Introduced in BSA, 2023?
• Precise Definition of “Document”: An example of the definition of “document,” which encompasses digital and electronic records, states that voice mail messages saved on digital devices, electronic records on emails, server logs, documents on computers, laptops, or smartphones, messages, websites, and locational evidence are all considered documents.
• Clarity Regarding Primary (Electronic) Evidence: It states that each stored video recording that is concurrently transmitted, aired, or transferred to another electronic format is considered primary evidence.
• Investigating agencies could find evidence of a cybercriminal’s guilt even if he destroys his original electronic record to refute the accusations because it can be retrieved from other sources without losing value.
• Harmonisation with the Information Technology Act of 2000: For enhanced clarity, phrases like “semiconductor memory” and “any communication device” are included in Section 63, which addresses the admission of electronic records.
• This does not, however, alter the significance of the provision because information created, transferred, received, or stored in “computer memory” is included in the IT Act, 2000’s definition of “electronic form.”

What Are the Various Issues Regarding the BSA, 2023 Provisions?

Problems with Electronic Documents:

Electronic record tampering:

• The Supreme Court acknowledged in 2014 that electronic documents are vulnerable to manipulation and tampering. It said that if the entire trial is predicated on the evidence of electronic records without sufficient safeguards, it could result in a mockery of justice.

Ambiguity Regarding e-Records’ Admissibility:

• The BSA permits the Court to contact an Examiner of Electronic Evidence in order to establish an opinion regarding such evidence, and it also permits the admissibility of electronic records.
• Electronic records are included in the BSA’s definition of documents. It keeps the IEA’s requirement that all papers be admitted as primary evidence unless they meet the criteria for secondary evidence (original has to be shown against the person it is meant to prove, or has been destroyed).
• Information acquired from an Accused in Police Custody May Be Provable: The IEA stipulates that information acquired from an accused in police custody may be admissible if it clearly pertains to a fact that is discovered as a result of that information. This clause is still in the BSA.
• Throughout the years, the Law Commission and the Supreme Court have both noted that it’s possible that information was uncovered when the accused was being tortured and under duress.
• Discrimination Between Accused Within and Outside Police Custody: Information pertaining to a fact discovered obtained from an accused person in police custody is admissible under the IEA, while information of a similar nature obtained from an accused person outside police custody is not admissible. This distinction remains with the BSA.

What Actions Are Required to Increase the Effectiveness of BSA?

• Report of the Standing Committee on Home Affairs: Given that digital and electronic records are vulnerable to manipulation, the Standing Committee on Home Affairs (2023) stressed the significance of protecting their integrity and authenticity.
• It suggested requiring the safe handling and processing of all digital and electronic records gathered as evidence during an inquiry through an appropriate chain of custody.
• Karnataka High Court recommendations: In 2021, the Karnataka High Court issued recommendations outlining the minimal protections to be taken when searching for and seizing electronic records.

Among them are:

• making certain that the search crew is accompanied by a certified forensic examiner,
• preventing the use of the confiscated electronic device by the investigating officer in the course of the search and acquisition of electronic records,
• grabbing and placing in a Faraday bag any electronic storage item (hard discs, pen drives, etc.).
• Faraday bags prevent electromagnetic impulses from being transmitted, which could damage or corrupt data that is stored in the device.
• Including EU Directive Proposal: To create consistent minimum requirements for the use of electronic evidence in criminal proceedings, the EU has proposed a Draft Directive for a Mutual Admissibility of Evidence and Electronic Evidence in Criminal Proceedings. Important ideas consist of:
• requiring the use of electronic evidence only in cases where there is enough proof that it hasn’t been falsified or altered,
• ensuring that the chain of custody and the point of production of the evidence are adequately protected against tampering, and
• requiring IT specialists to be involved at the accused’s request.

The Law Commission’s 2003 recommendations:

• Information obtained from suspects in police custody through any sort of coercion, torture, or threat should not be able to be proven.
• Whether uncovered while under police custody or not, information should be pertinent.
• Add a new clause stating that it is assumed that the police are to blame for any injuries sustained by someone who is being held by the police. The authority will bear the burden of proof.
• addition of a new clause about the prosecution of a police officer who harms a person while they are under police custody.

The officer will be assumed to be at fault by the court for the injuries. Prior to making an assumption, the Court will take into account the following:

• (i) the custody duration
• (ii) remarks the injured party made concerning their condition
• (iii) a medical professional’s examination
• (iv) any statements that a magistrate has recorded.

• The Malimath Committee of 2003 issued a number of suggestions aimed at revamping the criminal justice system. Among the principal suggestions were:
• establishing a new classification of infractions for small infractions known as “social welfare offences,” which will be punished with community service or fines.
• a “mixed system” that includes aspects of the inquisitorial system, such as letting judges actively participate in gathering evidence and questioning witnesses, in place of the adversarial system.
• lowering the “beyond reasonable doubt” standard of proof to “clear and convincing evidence” in order to secure a conviction.
• admitting confessions made in front of a senior police officer as proof.
• The definition and admissibility of electronic records are made clearer by the Bharatiya Sakshya Adhiniyam, which also highlights the significance of expert certification and hash algorithms for the safe usage of electronic media. However, since there will likely be a significant rise in workload, this could present difficulties for cyber laboratories.
• Before the rules take effect, enforcement agencies must make sure the infrastructure is in place and spread knowledge about encryption techniques. All things considered, these modifications show a dedication to updating India’s criminal code to meet new issues arising from the digital era.