Key Changes from the Indian Evidence Act 1872 to the Bharatiya Sakshya Adhiniyam 2023

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Introduction

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced the Indian Evidence Act, 1872 (IEA) as India’s law of evidence, coming into force alongside the Bharatiya Nyaya Sanhita, 2023 (BNS) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Where the BNSS restructured criminal procedure, the BSA restructures the rules of proof — what counts as evidence, how it is classified, and how it is admitted before a court.

The IEA comprised 167 Sections in 11 Chapters. The BSA comprises 170 Sections in 12 Chapters, arranged across four Parts. Much of the substance of the IEA is retained — the BSA does not discard the settled framework of relevancy, burden of proof, and admissibility built up over 150 years of interpretation. The changes are concentrated in a few areas: the treatment of electronic and digital records, the classification of primary and secondary evidence, and refinements to provisions such as confessions in a joint trial. This article sets out the verified section-by-section changes on the evidence side, as a companion to this website’s earlier explainer on the shift from the CrPC to the BNSS.

1. Expanded Definition of “Document” and “Evidence”

IEA (Section 3): The interpretation clause defined “document” as any matter expressed or described upon any substance by means of letters, figures, or marks, intended to be used for recording that matter. It did not expressly refer to electronic or digital records; their status was worked out through later judicial interpretation and the special provision at Section 65B.

BSA (Section 2(1)(d)): The definition of “document” is retained in substance but now expressly includes electronic and digital records within its text. The definitions clause also provides that words used in the BSA but not defined there, if defined in the Information Technology Act, 2000, the BNSS, or the BNS, carry the meaning assigned in those enactments.

This is not a cosmetic change. It moves electronic records from being treated as a special, separately-regulated category of evidence to being documents in the ordinary sense from the outset, with the specific admissibility mechanics addressed later in the Act.

2. Admissibility of Electronic Records

IEA (Section 65B): Permitted a “computer output” to be admitted as evidence of the contents of the original, without producing the computer itself, subject to conditions about the regularity of the computer’s operation and a certificate identifying the record and describing how it was produced. The certificate had to be signed by a person occupying a responsible position in relation to the computer.

BSA (Section 63): Carries forward the same core framework but with two notable refinements:

The scope is widened from “computer” to “computer or communication device”, expressly bringing smartphones and similar devices within the section, and multiple devices used at different stages of processing are treated as a single unit for this purpose.
Section 63(4) now requires the certificate to address the same conditions as before, and commentary on the provision notes that the certificate is to follow a prescribed format set out in the Schedule to the BSA, in two parts — one completed by the party producing the record, and one by a person with the relevant technical expertise — together with a hash value of the electronic record. This is a more structured certification regime than the open-form certificate contemplated under the old Section 65B(4).

The underlying principle is unchanged: electronic evidence produced without meeting the certification requirement is ordinarily inadmissible, a position the Supreme Court has held to be mandatory rather than directory.

3. Electronic Records Recognised as Primary Evidence

IEA (Section 62): Primary evidence meant “the document itself produced for the inspection of the Court,” with explanations addressing documents executed in several parts or produced by a uniform process such as printing.

BSA (Section 57): Retains the identical core definition — “the document itself produced for the inspection of the Court” — but adds four new explanations addressing electronic and digital records specifically:

Where an electronic or digital record is stored simultaneously or sequentially in multiple files, each file is primary evidence.
Where such a record is produced from proper custody, it is primary evidence unless disputed.
Where a video recording is simultaneously stored and also transmitted or transferred, each stored version is primary evidence.
Where a record is stored across multiple storage spaces, including temporary files created automatically, each such stored copy is primary evidence.

Under the IEA, electronic material was typically routed through the secondary-evidence mechanism of Section 65B. The BSA’s explanations to Section 57 instead recognise properly-custodied electronic and digital records as primary evidence in their own right — a structural shift, not merely a renumbering.

4. Secondary Evidence — Expanded Categories

IEA (Section 63): Listed five categories of secondary evidence — certified copies, copies made by a mechanical process that ensures accuracy, copies made from or compared with the original, counterparts as against non-executing parties, and oral accounts of a document’s contents given by a person who has seen it.

BSA (Section 58): Retains all five categories and adds three more: oral admissions as to the contents of a document, written admissions, and the evidence of a person skilled in examining documents who has examined an original consisting of numerous accounts or other documents that cannot conveniently be examined in court. The corresponding provision on the circumstances in which secondary evidence may be given — Section 65 of the IEA — is carried forward as Section 60 of the BSA.

The practical effect is a wider gateway for proving the contents of a document where the original cannot be produced, without disturbing the underlying rule that secondary evidence is admissible only in the circumstances the Act specifies.

5. Confessions and Joint Trials

IEA (Section 30): Where two or more persons were tried jointly for the same offence, and a confession made by one of them implicated both the maker and a co-accused, the court could take that confession into consideration against the co-accused as well as the maker — though settled case law treats such a confession as, at most, corroborative and not sufficient by itself to sustain a conviction.

BSA (Section 24): Reproduces the operative text of Section 30 word for word, including the explanation that “offence” includes an attempt to commit or abetment of the offence. It adds a new explanation: a trial held in the absence of an accused who has absconded and could not be served despite a proclamation under the BNSS is deemed to be a joint trial for the purposes of this section. This aligns the confession-against-co-accused rule with the BNSS provisions permitting trial in absentia of a proclaimed offender, so that a confession by one jointly-tried accused can still be reckoned against an absconding co-accused whose case is being tried in his absence.

Practical Points

Certification is not optional. Electronic evidence — WhatsApp chats, CCTV footage, call detail records, emails — offered without the Section 63 certificate (or without falling within a recognised exception) risks being treated as inadmissible, regardless of how relevant it appears.
Primary vs secondary still matters. The BSA’s recognition of properly-custodied electronic records as primary evidence under Section 57 does not remove the certification requirement of Section 63 for computer output; the two provisions operate together.
Retained interpretation. Because the BSA largely restates the IEA’s substantive rules on relevancy, burden of proof, and confessions, the existing body of Supreme Court and High Court precedent interpreting the corresponding IEA provisions continues to guide how the renumbered BSA sections are read, subject to the specific textual changes noted above.
Cross-check the section number. Given the wholesale renumbering, any petition, application, or submission should cite the BSA section that actually corresponds to the point being made, rather than assuming the old IEA number still applies.

Takeaway

The Bharatiya Sakshya Adhiniyam, 2023 does not rewrite the architecture of Indian evidence law; it retains the IEA’s core distinctions between primary and secondary evidence, its treatment of confessions, and most of its scheme of relevancy. The substantive changes are concentrated on electronic and digital evidence — a broadened definition of “document,” a more structured certification regime for computer and communication-device output under Section 63, and an explicit recognition of properly-custodied digital records as primary evidence under Section 57 — together with a targeted expansion of secondary evidence categories under Section 58 and a joint-trial clarification under Section 24. For anyone relying on a specific provision, the safest course is to verify the current BSA section number and text rather than carry over a familiar IEA citation.

Useful Resources

Disclaimer: The information provided on this website is for general legal awareness and educational purposes only. It does not constitute legal advice, advertisement, or solicitation. No reader should act or refrain from acting based on this information without seeking professional legal counsel. Advocate Akhil Singh and this website are not liable for any actions taken based on the content provided herein.