The Bharatiya Sakshya Adhiniyam 2023 (BSA, Act 47 of 2023) replaces the Indian Evidence Act 1872 (IEA) with effect from 1 July 2024. It is Part III of the criminal law reform trilogy (BNS for substantive criminal law, BNSS for procedure, BSA for evidence). The BSA retains the IEA's fundamental architecture but modernises it for the digital age.
The BSA has 170 sections compared to the IEA's 167. Section numbering is entirely different. BSA S.1 = IEA S.1. BSA S.2 = IEA S.3 (interpretation clause). BSA S.3 = IEA S.5. BSA S.4 = IEA S.6 (res gestae). BSA S.14 = IEA S.17 (admission). BSA S.18 = IEA S.24 (confession by inducement). BSA S.24 = IEA S.32 (dying declaration). BSA S.57 = IEA S.59 (oral evidence). BSA S.61 = IEA S.62 (primary evidence). BSA S.63 = IEA S.65B (electronic records). BSA S.101 = IEA S.101 (burden of proof). A concordance table should be consulted for every section cited.
Structure of the BSA
| Part | Content | BSA Sections | IEA Equivalent |
|---|---|---|---|
| Part I | Preliminary (short title, definitions) | S.1 to S.2 | S.1 to S.4 |
| Part II | Relevancy of Facts | S.3 to S.50 | S.5 to S.55 |
| Part III | Proof | S.51 to S.100 | S.56 to S.100 |
| Part IV | Production and Effect of Evidence | S.101 to S.131 | S.101 to S.131 |
| Part V | Witnesses | S.132 to S.170 | S.132 to S.167 |
Key Changes from the IEA
| Feature | IEA 1872 | BSA 2023 |
|---|---|---|
| Document definition | Written instruments, inscriptions | Includes electronic and digital records throughout (S.2(1)(d)) |
| Electronic evidence | S.65B (inserted 2000, interpreted restrictively in Anvar PV) | S.63: comprehensive standalone provision for electronic records with certificate requirement |
| Primary evidence of electronic record | Not clearly defined | S.61(2): printout/data copied on electronic/magnetic media with certificate under S.63(4) |
| Secondary evidence | S.63 IEA (copies, counterparts) | S.62 BSA (includes certified copies of electronic records) |
| Expert evidence | S.45 IEA (general) | S.39 BSA: expanded, includes electronic and digital forensics expressly |
| Joint trial confession admissibility | S.30 IEA | S.21 BSA (same substance) |
| Examination of witnesses | S.135 to S.166 IEA | S.136 to S.170 BSA (expanded, includes video-conferencing provisions) |
| Presumption as to electronic records | S.85A to S.85C IEA | S.79 to S.82 BSA (integrated, clearer) |
| DNA and forensic evidence | Not expressly mentioned | S.39 BSA mentions electronic forensics; DNA remains under special statutes |
| Social media | Not mentioned | BSA S.63 Explanation recognises electronic communication; syllabus includes social media relevance |
The Interpretation Clause (S.2)
| Term | Definition | IEA Equivalent |
|---|---|---|
| Document | Includes electronic record and digital record (S.2(1)(d)) | IEA S.3 (expanded) |
| Evidence | Includes electronic evidence and statements of witnesses (S.2(1)(e)) | IEA S.3 |
| May presume | The court may regard a fact as proved unless disproved (S.2(2)) | IEA S.4 |
| Shall presume | The court shall regard a fact as proved unless disproved (S.2(3)) | IEA S.4 |
| Conclusive proof | The court must regard the fact as proved and shall not allow evidence to be given for the purpose of disproving it (S.2(4)) | IEA S.4 |
Electronic Evidence: S.63 (The Most Important New Provision)
S.63(1)
"Any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory produced by a computer or communication device or otherwise stored, recorded or copied in any electronic form shall be deemed to be a document and shall be admissible in evidence without further proof or production of the original, if the conditions mentioned in sub-section (2) are satisfied."
S.63(2): Conditions
The electronic record must have been produced by a computer during the period the computer was used regularly to process information for the purpose of any regularly conducted activity, and the information was fed into the computer in the ordinary course of that activity.
S.63(4): Certificate
A certificate identifying the electronic record, describing the manner of its production, and giving particulars of the device involved, signed by a person occupying a responsible official position in relation to the operation of the relevant device, is required.
Facts: Electronic evidence (call records and CDs) was produced without the certificate required under IEA S.65B(4).
Issue: Whether electronic evidence is admissible without the S.65B(4) certificate.
Held: Electronic evidence is inadmissible without compliance with S.65B(4). The certificate is a mandatory condition, not a mere procedural formality. Oral evidence cannot substitute for the certificate.
Relevance: The leading authority on the mandatory nature of the certificate requirement. BSA S.63(4) codifies this position.
What Remains Unchanged
The BSA preserves the fundamental principles of the IEA:
- Relevancy controls admissibility (only relevant facts may be proved)
- The hearsay rule and its exceptions (dying declarations, res gestae, etc.)
- Burden of proof on the party who asserts
- Distinction between primary and secondary evidence
- Rules on examination of witnesses (chief, cross, re-examination)
- Estoppel and presumptions
- Privileged communications
Recall Check
- When did the BSA come into force?
- What is the most important change regarding electronic evidence?
- Is the certificate under S.63(4) mandatory or discretionary?
- What does "document" include under BSA S.2?
Key Cases
Anvar PV v PK Basheer (2014) Anvar PV v PK Basheer 2014
Issue: Whether electronic evidence is admissible without the S.65B(4) certificate.
Rule: The certificate is mandatory. No oral evidence can substitute.
Held: Electronic evidence without the certificate is inadmissible.
Distinctions
| Basis | IEA 1872 | BSA 2023 |
|---|---|---|
| Sections | 167 | 170 |
| In force | 1 Sept 1872 to 30 June 2024 | 1 July 2024 onwards |
| Electronic records | Addressed only through IT Act amendments (S.65A/65B, inserted 2000) | Integrated throughout; S.63 is comprehensive |
| Document definition | Does not include electronic record in the original text | Expressly includes electronic and digital record |
| Social media | Not addressed | Syllabus recognises relevance; S.63 covers electronic communication |
| Structure | Three Parts | Five Parts |
| Core principles | Relevancy, proof, production, witnesses | Same (unchanged in substance) |
| Basis | S.63 BSA (Electronic Records) | S.61 BSA (Primary Evidence) |
|---|---|---|
| What it covers | Admissibility of electronic records with certificate | What constitutes primary evidence (including electronic printouts with certificate) |
| Certificate | Required under S.63(4) | Cross-referenced to S.63(4) |
| Relationship | S.63 is the gateway for electronic evidence | S.61(2) makes a certified printout primary evidence |
| Oral evidence | Cannot substitute for the certificate (Anvar PV) | Same principle |
Flashcards
When did the BSA 2023 come into force?
1 July 2024.
What does "document" include under BSA S.2(1)(d)?
Electronic record and digital record, in addition to written instruments and inscriptions.
Is the certificate under S.63(4) mandatory?
Yes. Anvar PV v PK Basheer (2014) held the certificate is mandatory and oral evidence cannot substitute. BSA S.63(4) codifies this.
What are the three levels of presumption under S.2?
"May presume" (court may regard as proved unless disproved); "shall presume" (court shall regard as proved unless disproved); "conclusive proof" (must regard as proved, no contrary evidence allowed).
Name three key changes the BSA makes over the IEA.
(1) Document definition expanded to include electronic/digital records; (2) S.63 provides a comprehensive framework for electronic evidence with mandatory certificate; (3) Expert evidence expressly includes electronic and digital forensics.
What remains unchanged from the IEA?
Fundamental principles: relevancy controls admissibility, hearsay rule and exceptions, burden of proof, primary/secondary evidence distinction, examination of witnesses rules, estoppel, presumptions, privileged communications.
Exam Scenario
Problem: In a murder trial, the prosecution seeks to produce (a) CCTV footage from a shopping mall stored on a hard drive, and (b) WhatsApp messages between the accused and the deceased retrieved from the accused's phone. The defence objects that no certificate under S.63(4) has been produced for either. The prosecution argues that the investigating officer who seized the phone can give oral testimony about the messages. Advise on admissibility.
Step 1: Classify the evidence
| Item | Nature |
|---|---|
| CCTV footage on hard drive | Electronic record stored in a computer/device |
| WhatsApp messages from phone | Electronic record (communication device data) |
Both are electronic records within BSA S.63(1).
Step 2: Apply S.63(4) certificate requirement
Under S.63(4), a certificate is required for each electronic record, identifying it, describing the manner of production, and giving particulars of the device. Apply Anvar PV v PK Basheer (2014): the certificate is mandatory.
| Item | Certificate produced? | Admissible? |
|---|---|---|
| CCTV footage | No | Inadmissible without the certificate |
| WhatsApp messages | No | Inadmissible without the certificate |
Step 3: Reject the oral evidence argument
The prosecution argues the investigating officer can testify about the WhatsApp messages orally.
Apply Anvar PV: oral evidence cannot substitute for the S.63(4) certificate. The certificate is the condition of admissibility of the electronic record itself. An officer's oral account of what the messages said is hearsay as to the content of the electronic record and is inadmissible for that purpose.
Step 4: Advise the prosecution on cure
The prosecution may still:
- Obtain the certificate from the person occupying a responsible official position in relation to the device (for CCTV: the mall's IT manager; for the phone: the forensic examiner who imaged it).
- Re-tender the evidence with the certificate.
- If the original device is produced and proved, it may be primary evidence under S.61, but the certificate under S.63(4) is still needed for copies/printouts.
Oral testimony is not a substitute for the certificate. This is the central holding of Anvar PV and is now codified in S.63(4). Many prosecutors wrongly assume that the seizing officer's testimony suffices.
Both items need separate certificates. Each electronic record from a different device needs its own certificate from the person responsible for that device. A single certificate from the IO does not cover both the mall CCTV and the accused's phone.
Conclusion. Both items are inadmissible without the S.63(4) certificate. The investigating officer's oral testimony cannot cure the deficiency.
See Also
- Meaning and Kinds of Evidence : the classification of evidence into oral and documentary (electronic records are documentary).
- Electronic Records and Digital Evidence : the detailed treatment of S.63 and electronic evidence rules.
- Primary and Secondary Evidence : how S.61 and S.62 interact with S.63 for electronic records.