Bharatiya Sakshya Adhiniyam 2023: New Evidence Law Guide

What Is the Bharatiya Sakshya Adhiniyam, 2023?

The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023) is India's new law of evidence. It was passed by Parliament on 20 December 2023, received Presidential assent on 25 December 2023, and came into force on 1 July 2024. It is the third part of the criminal law reform trilogy: the Bharatiya Nyaya Sanhita (BNS) replaced the Indian Penal Code for substantive offences, the Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced the Code of Criminal Procedure for procedure, and the BSA replaced the Indian Evidence Act, 1872 for evidence.

The BSA contains 170 sections and one schedule. It applies to all courts in India, including courts-martial under the Army, Navy and Air Force Acts. It does not apply to arbitration proceedings. The statute is drafted in simplified, gender-neutral language, replacing the Victorian English of the 1872 Act.

The BSA is not a wholesale invention. It retains the architecture of the Indian Evidence Act — relevancy, proof, production and examination of witnesses — but modernises it for a country where crimes are increasingly committed, documented and proved through digital records.

Why Did India Replace the Indian Evidence Act?

The Indian Evidence Act, 1872 was drafted in the colonial era. It contained archaic language and assumptions that no longer fit India's constitutional and technological reality. Two problems drove the replacement.

First, the Act did not originally contemplate electronic records. The Information Technology Act, 2000 inserted Sections 65A and 65B into the Evidence Act to deal with electronic evidence. Those provisions generated enormous litigation over the conditions for admissibility. The leading cases are Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1. Courts repeatedly had to interpret whether a certificate was mandatory, who could sign it, and when secondary electronic evidence could be admitted.

Second, the Act's language and structure were out of step with the BNS and BNSS. The three new statutes needed a shared vocabulary — for example, "electronic record", "digital record", "audio-video", and "forensic" — so that the substantive, procedural and evidentiary laws could operate together.

The BSA resolves both problems by integrating electronic records throughout the statute rather than treating them as an add-on.

Key Changes from the Indian Evidence Act to the BSA

The table below summarises the changes that matter most in day-to-day litigation in Kolkata courts.

Electronic Evidence Under Section 63 BSA

Section 63 is the centrepiece of the BSA. It replaces Section 65B of the old Act and sets out when an electronic record may be admitted as evidence.

The provision applies to information contained in an electronic record that is printed on paper, stored, recorded or copied in optical or magnetic media, or transmitted by any means. Such a record is treated as a document if the conditions in Section 63 are satisfied.

The key condition is the certificate. A certificate must accompany the electronic record, signed by the person in charge of the computer or communication device, or by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities. The certificate must identify the electronic record, describe the manner of its production, give particulars of the device, and state that the record was produced by the computer during the period in which it was used regularly to store or process information for the purposes of the activities regularly carried on.

In practice, this means that WhatsApp chats, emails, CCTV footage, call detail records, server logs, cloud-stored documents, and social media screenshots all need a properly drafted Section 63 certificate before a court will admit them. A bare printout or a pen drive without the certificate is vulnerable to objection.

The Supreme Court's earlier jurisprudence on Section 65B — especially Anvar P.V. and Arjun Panditrao — remains instructive on the purpose of the certificate: to ensure the integrity and authenticity of the electronic record and to prevent tampering. The BSA carries that logic forward into a single, clearer section.

Primary and Secondary Evidence of Electronic Records

Under Section 61(2) BSA, primary evidence of an electronic record includes printouts, copies on electronic or magnetic media, and copies made by a mechanical process that ensures the accuracy of the copy. The provision recognises that multiple copies stored simultaneously across servers, devices or cloud platforms can all be treated as primary evidence. This removes the "best evidence" problem that previously made electronic records hard to prove.

Secondary evidence under Section 62 includes certified copies of electronic records. The list is inclusive rather than exhaustive, which gives courts flexibility to admit other reliable forms of secondary evidence when the original is unavailable.

The practical consequence for Kolkata litigants is that preserving the original device and the original electronic record matters more than ever. If the original is lost or tampered with, the certificate and the chain of custody become the battleground.

Expert Evidence Expanded Under Section 39

Section 39 BSA expands the scope of expert opinion. The old Section 45 listed specific fields — foreign law, science, art, handwriting, finger impressions. The BSA adds electronic and digital forensics expressly, and allows expert opinion in "any other field" where the court needs specialised assistance.

This is important for cyber crime cases, financial fraud, forensic accounting, and digital forensics. A Kolkata court can now receive expert evidence from a digital forensic examiner without the argument that the field is not listed in the statute.

Confessions, Coercion and Custodial Statements

Section 22 BSA makes a confession caused by inducement, threat, coercion or promise irrelevant in criminal proceedings. The addition of "coercion" is significant. It gives courts an express ground to exclude statements obtained under pressure, including statements recorded during digital arrest scams or in custodial settings where coercion is alleged.

The BSA retains the rule that confessions to police officers are inadmissible, subject to the exceptions for discovery under Section 27 of the old Act (now reflected in the BNS/BNSS framework). Defence counsel in Kolkata should scrutinise the circumstances in which any statement was recorded, especially where the accused was held incommunicado or threatened.

Accomplice Testimony Now Requires Corroboration

Section 138 BSA changes the law on accomplice testimony. Under the old Section 133, a conviction based on the uncorroborated testimony of an accomplice was not illegal, though courts treated it as a rule of prudence to require corroboration. The BSA elevates that rule to a statutory requirement: a conviction is legal only if the accomplice's testimony is corroborated.

For prosecution and defence alike, this changes trial strategy. Prosecutors must build corroborative evidence; defence counsel can press for acquittal where the case rests solely on an accomplice's word.

What Remains Unchanged

The BSA preserves the fundamental principles of the Indian Evidence Act. Relevancy still controls admissibility — only relevant facts may be proved. The hearsay rule and its exceptions, including dying declarations and res gestae, continue. The burden of proof remains on the party who asserts. The distinction between primary and secondary evidence survives. The rules on examination-in-chief, cross-examination and re-examination are retained. Estoppel, presumptions and privileged communications remain part of the law.

This continuity matters. Lawyers who knew the old Act are not starting from zero. The BSA is a modernisation, not a revolution.

Impact on Cases in Kolkata Courts

The BSA applies to cases registered on or after 1 July 2024. Cases registered before that date continue under the Indian Evidence Act. This transitional rule creates a split in Calcutta High Court and district court practice: the same court may hear one case under the old Act and another under the BSA on the same day.

For litigants and lawyers in Kolkata, the practical implications are:

• Electronic evidence: Section 63 certificates must be drafted and signed correctly. A defective certificate can lead to exclusion of crucial evidence.
• Chain of custody: Original devices, server logs and cloud records must be preserved. Courts will scrutinise how the record was produced and stored.
• Expert witnesses: Digital forensic experts can now be examined under Section 39 without the old field-list objection.
• Confessions: Defence counsel should challenge statements obtained under coercion, especially in cyber crime and digital arrest cases.
• Accomplice cases: Prosecution must corroborate accomplice testimony; defence can seek acquittal where corroboration is absent.
• Transitional cases: Confirm which Act applies before drafting evidence applications or objections.

Practical Checklist for Litigants and Businesses

If you are involved in a case in a Kolkata court, or if you handle electronic records for a business, use this checklist.

1. Identify whether the case was registered before or after 1 July 2024. This determines whether the Indian Evidence Act or the BSA applies.
2. Preserve the original electronic record — the device, the account, the server log or the cloud copy. Do not delete, edit or forward it in a way that breaks the chain of custody.
3. Obtain a Section 63 certificate from the person in charge of the device or the responsible official. The certificate must identify the record and describe how it was produced.
4. For WhatsApp, email or social media evidence, export the chat or message in a verifiable format and retain the metadata.
5. For CCTV or audio-video evidence, preserve the original storage media and document the time, date and location of recording.
6. Engage a qualified digital forensic expert early if the authenticity of the record is likely to be challenged.
7. If you are the accused, examine whether any confession was obtained under inducement, threat or coercion and raise the objection under Section 22 BSA.
8. If the case rests on an accomplice's testimony, verify whether there is independent corroboration as required by Section 138 BSA.
9. Keep a written record of when and how each electronic record was collected, who collected it, and where it has been stored.
10. Consult an advocate experienced in the new criminal law framework before filing or defending a case that relies on digital evidence.

Conclusion

The Bharatiya Sakshya Adhiniyam, 2023 is a significant modernisation of India's law of evidence. It keeps the familiar principles of relevancy, burden of proof and examination of witnesses, but it rewrites the rules for electronic records, expands expert evidence, and tightens the treatment of confessions and accomplice testimony. For anyone involved in litigation in Kolkata, understanding the BSA is no longer optional. The cases filed after 1 July 2024 will be decided on evidence proved under the new Act, and the quality of the Section 63 certificate and the chain of custody will often determine the outcome.

Disclaimer: This article provides general legal information and does not constitute legal advice. For advice on your specific case, consult a qualified advocate.