Introduction
In 2023, a new act named Bharatiya Sakshya Adhiniyam 2023, replaced the Indian Evidence Act of 1872. The act has been the main piece of legislation regulating the law of evidence for, so long. The Indian Evidence Act was drafted during the era of British India by ‘Sir James Fitzjames Stephen’ to fulfill the requirements of British society. Since its enactment it has been an important part of India’s jurisdiction.
But as society evolves, everything changes and so its laws change. As the old act of 1872 failed to cover lots of aspects that have arisen these days like electronic evidence, the Indian Government has replaced it with a new act ‘Bharatiya Sakshya Adhiniyam’ 2023. This blog tries to critically analyze both acts and highlight their similarities and differences while analyzing the significance of the changes brought about by the new act.
Context and Historical Background
The Indian Evidence Act of 1872 was a major law that arranged the principles of admissibility of law in a systematic manner and varied from traditional practices. The legislation established uniform laws across colonial courts, despite being rooted in the realities of 19th century India and favored the interests of the Britishers.
In recent times, with the introduction of various technological developments, societal changes, and crimes like cybercrimes, data thefts, piracy, etc.; various gaps have been exposed in the previous act. To address these inconsistencies, the 2023 Act was introduced. The new act aims to harmonize Indian Evidence laws with modern realities so that it can cater to the needs of modern India.
Comparison
(a) Application and Scope
The 1872 act majorly covered the admissibility of evidence in physical forms like documents, while some amendments were introduced to cover electronic evidence too. In comparison, the 2023 Act has adopted a holistic approach covering electronic evidence and new-age challenges.
(b) Major Changes in Definitions
The 1872 act defined terms like evidence and documents with a focus on physical evidence. The Bharatiya Sakshya Adhiniyam 2023 extended the definitions to cover the electronic evidence, considering the modern-day realities.
For instance, the new act replaced terms such as Vakil, Barrister, and Pleader with the term ‘Advocate’.
(c) Admissibility of Digital and Electronic Evidence
The 1872 Act’s section 65B governed the electronic evidence but was criticized for being outdated and had inconsistencies. The new act of 2023 codifies the provisions and offers more realistic and practical solutions. It covers blockchain-based records and evidence derived from Internet of Things (IoT) devices.
(d) Burden of Proof and Assumptions
While the 1872 act places the burden of proof on the party who is stating a fact, section 104 of the new act has introduced certain variations and assumptions about digital evidence making it easier to prosecute certain offenses. For instance, it contains provisions for shifting the burden in cases of tampering with digital evidence and other data thefts.
(e) Attention to Women, Underrepresented Groups, and Witness Protection
The BSA 2023 contains provisions paying attention to women, underrepresented groups, and the protection of witnesses. The 1872 Act lacked these provisions. Hence the new act has been broad in terms of inclusion of various groups.
Contrasts
(a) Approach and Philosophy
As the 1872 act was drafted during the colonial era, it gives importance to codification and rigorous procedure over the interests of Indian diversity. The new act departs from the previous act as it prioritizes the interests of Indians and reflects Indian philosophy, emphasizing current legal challenges.
(b) Changes in Structure and Procedure
The previous act had very rigid language and structure, while the new act adopted a plain and simple language, making it easy for laymen to study the act. It also contains timelines for submission of evidence, hence promoting efficiency in judicial functions.
(c) Contemporary Legal Challenges
Various contemporary challenges like data thefts and privacy were not there in the previous act. The new act has made these challenges the center of focus. For instance, it contains provisions relating to data collection, digital evidence tampering, etc.
(d) Interpretation and Implementation Simplicity
The BSA 2023 contains provisions covering, contemporary challenges but small courts and some legal professionals may find it difficult to understand them. It necessitates the training of legal professionals.
Critical Analysis
The Bharatiya Sakshya Adhiniyam is a significant step towards modernizing the law of evidence while maintaining the principles of equity and fairness in the justice system. The new act aims to remove the gaps present in the system so as to address the contemporary legal challenges. It has inculcated various news of evidence in its purview including blockchain records, digital evidence, AI-generated evidence, etc, ensuring its relevance to the present world.
Everything has its pros and cons; the act also has some challenges. There is a need to provide adequate training and infrastructure to courts and court professionals to achieve the objectives of the act. Despite the recognition of various forms of evidence, it remains a challenge to ensure proper handling of evidence.
Conclusion
The Bharatiya Sakshya Adhiniyam is a significant step towards modernizing the law of evidence. The Indian Evidence Act 1872 was drafted during the colonial era, hence it was made to benefit the British largely; while the new act has been introduced so as to inculcate inclusivity and fairness in the justice system. There are provisions for the protection of witnesses, underrepresented groups, and digital evidence in the new act.
The new emphasizes fairness and adaptability and has a deep understanding of the contemporary challenges. It has simplified definitions to make it easy for better understanding of the act to the laypersons.
The act has a lot of significant provisions, but there are certain challenges too. The success of the act is possible only if adequate training and infrastructure are provided to the courts and court professionals. In conclusion, it is a significant step towards modernizing the judicial system, there are some challenges but, overall it promises a judicial legal system having the capability of upholding justice.
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