Bhartiya Sakshya Adhiniyam (BSA) 2023
Some Frequently Asked Questions
Mohd Aasif*
What’s new in the Bhartiya Sakshya Adhiniyam (BSA) 2023?
The admissibility of electronic and digital records is a new addition to the Bhartiya Sakshya Adhiniyam (BSA) 2023, which was introduced to replace the Indian Evidence Act 1872. BSA, by including modernworld technology such as electronic records on emails, server logs, computer documents, laptops or smartphones, messages, websites, locational evidence and voice mail messages stored on digital devices, semi-conductor memory and communication devices, has broadened the definition of documents. BSA emphasises that digital and electronic records will have the same legal effect, validity and enforceability as other documents.
Though the Home Minister claimed to free IEA from colonial attributes, only its name seems to have been Indianised. This also attracted criticism of Hindi hegemony from the speakers of India’s other scheduled languages.
What are the challenges to the admissibility of digital records?
Digital or electronic evidence can easily be tampered with. This fact has been recognised by the Supreme Court of India in Anvar PV v. PK Basheer and Others case1 . BSA fails to provide any safeguards to prevent tampering during the search, seizure and investigation of such evidence despite the guidelines laid down by the Karnataka High Court in 2021.
How does BSA affect the power of the judiciary?
BSA restricts the courts’ demand for privileged communication between the ministers and the President of India to be produced before it. This can have a bearing on the transparency of the judicial process.
What is the main criticism of BSA?
BSA attracted criticism for being almost completely borrowed from the Indian Evidence Act (IEA) of 1872, with minuscule changes to the original text. The amendments that include digital media as part of evidence are already part of the Information Technology Act of 2000. Though the Home Minister claimed to free IEA from colonial attributes, only its name seems to have been Indianised. This also attracted criticism of Hindi hegemony from the speakers of India’s other scheduled languages.
BSA fails to provide any safeguards to prevent tampering during the search, seizure and investigation of such evidence despite the guidelines laid down by the Karnataka High Court in 2021.
What has been repealed from the BSA?
It removes provisions related to telegraphic messages.
References
- Anvar PV v PK Basheer [2014] 10 SCC 473
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