Summary of Bharatiya Sakshya Adiniyam
ACT NO. 47 OF 2023
[25th December, 2023.]
भारतीय साक्ष्य अधिनियम, 2023
THE BHARATIYA SAKSHYA ADHINIYAM, 2023
An Act Sponsored by the Ministry of Home Affairs, Department of Internal Security to consolidate and provide for general rules and principles of evidence for fair trial. It has 172 Sections, under 12 Chapters divided into 4 Parts.
The Influence of the Indian Thought Process and the System of Evidence
India’s historical past, including the colonial era, has undoubtedly influenced the Indian thought process. While the Western Hegelian dialectic and Aristotelian duality of Cause and Effect have left their mark, it is important to acknowledge the unique contributions of Indian mathematical and philosophical foundations.
The theories proposed by Archimedes, particularly the concept of a triangle always totaling 180 degrees and a circle consistently measuring 360 degrees, reflect the rigor and precision of Indian mathematical thought. The all-inclusive and conclusive nature of numbers, encompassing factors such as 0 and the 1, 2, 3……… etc positive integers, has been a focal point of Indian mathematical exploration. While the Western perspective (Mathematical proof) has delved into positive integers (1, 2, 3.. / known), the Indian intellectual tradition has delved into the profound mystery of zero (0 or unknown) and its implications. This unique exploration has contributed to a distinctive thought process, shaping the Indian system of evidence and its philosophical underpinnings. It is Indians who can prove the existence of zero.
The term “Bharatiya” signifies the interconnection of Tarka with Praman (Means) and Prameya (Object), with Pramans including Pratyaksha, Anuman, Upaman, and Sabda. Vedic injunctions are considered Apouruseya, indicating a connection between “Creation” and a corresponding “Manual.” Pratyaksha (प्रत्यक्ष्य) constitutes Drasta, Drishya, and Drishti.
“Sakshya” the Sanskrit word, emphasizes the role of the soul (Atman is compared with ‘0’) as the ultimate witness, guided by consciousness (चैतन्य) and truthfulness (सत्), recognizing that the evidence presented must be truthful as it is ultimately witnessed by the Paramatman, the Purusha. This spiritual and ethical dimension underscores the Indian perspective on evidence, reflecting the pattern of the Indian Evidence system based on the system of Yagnavalka and the logic of Mathematician Bodhyan.
The Indian thought process and the system of evidence reflect the holistic nature of Indian intellectual traditions, encompassing diverse influences and unique perspectives that contribute to the rich tapestry of human intellectual exploration. This intricate interplay between philosophical and mathematical principles underscores the depth and variety of insights across different civilizations, shaping the Indian system of evidence as a reflection of holistic intellectual traditions.
Short title, extent, and commencement:
- This Act may be called the Bharatiya Sakshya Adhiniyam, 2023.
- It applies to all judicial proceedings in or before any Court, including Courts-martial, but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator.
- It shall come into force on the 1st of July, 2024, as the Central Government may, by notification in the Official Gazette, appoint.
The machinery called Evidence
In the Bharatiya Sakshya Adhiniyam, 2023, the term “Court” encompasses all Judges and Magistrates, as well as all individuals, excluding arbitrators, who are lawfully empowered to receive evidence. The term “conclusive proof” denotes a situation in which one fact is declared by this Adhiniyam to be conclusive proof of another. In such cases, upon proof of the first fact, the Court must consider the other fact as proven and may not allow evidence to be presented to disprove it. When a fact is “disproved” in relation to a certain matter, it implies that, after examining the relevant evidence, the Court either believes that the fact does not exist, or regards its non-existence as so probable that a cautious person should, under the circumstances of the particular case, act on the assumption of its non-existence.
The term “document” encompasses any information expressed, described, or recorded on any medium using letters, figures, marks, or any other method (or a combination thereof) intended for recording purposes. This includes electronic and digital records. Furthermore, “evidence” comprises all statements, including electronically provided statements, permitted or mandated by the Court to be made before it by witnesses regarding matters of fact under investigation. Such statements are referred to as oral evidence. Additionally, it encompasses all documents, including electronic or digital records, presented for the Court’s examination, known as documentary evidence.
Facts serve as the fundamental units of evidence. The term “fact” encompasses any entity, state of affairs, or relation capable of being perceived by the senses, as well as any mental condition of which a person is aware. Facts that are pertinent to the issue must be accepted as evidence. “Facts in issue” encompass any fact from which, either independently or in conjunction with other facts, the existence, non-existence, nature, or scope of any right, liability, or disability asserted or denied in any legal action or proceeding necessarily follows.
Facts and Just Decision in Bharatiya Sakshya Adhiniyam, 2023
According to the Bharatiya Sakshya Adhiniyam, 2023, a “relevant fact” is connected to another fact in ways specified in the provisions of the Adhiniyam relating to the relevancy of facts.
The Adhiniyam allows for the presumption of a fact in circumstances where direct evidence is unavailable and there is a need to construct evidence.
The usage of “may” is considered discretionary, while “shall” is interpreted as mandatory. When the Adhiniyam states that the Court “may presume” a fact, it means the Court may either regard such fact as proved until disproved or call for proof of it. On the other hand, if the Adhiniyam directs that the Court “shall presume” a fact, the Court must regard such fact as proved until disproved.
Before a judgment is made, evidence needs to be proved. A judgment is given based on either the evidence of proved facts or unproved facts. For example, when determining the existence of something like a “ghost,” if it is not proved, it cannot be disproved based solely on positive or negative facts.
In the context of the Adhiniyam, “not proved” means a fact is neither proved nor disproved, while “proved” means a fact is considered to exist or its existence is so probable that a prudent person ought to act upon the supposition that it exists.
Facts serve as the basis of evidence, originating from human agency in the form of testament, matter, or mind. Events form the chain that preserves the time and space of the factors involved in the process of evidence, ultimately contributing to the just decision-making process.
Relevancy of Facts in Bharatiya Sakshya Adhiniyam, 2023
Part Two of the Bharatiya Sakshya Adhiniyam, 2023 deals with the relevancy of facts for the purpose of evidence. It outlines the criteria for determining the relevance of facts and their admissibility in judicial proceedings. The following categories are included in this part:
- Closely connected facts
- Admissions
- Statements by persons who cannot be called as witnesses
- Statements made under special circumstances
- Determination of how much of a statement is to be proved
- Relevance of judgments of courts
- Opinions of third persons when relevant
- Relevance of character
According to the Adhiniyam, only relevant facts are to be considered for proof in judicial proceedings. If the facts are not relevant to the circumstances, they would not be taken into consideration for judicial decision-making. This ensures that only pertinent and significant facts contribute to the process of evidence and the due process of justice.
Section 141 refers to the procedure for the admission of evidence under the Bharatiya Sakshya Adhiniyam, 2023. It outlines the Judge’s role in assessing the relevance of proposed evidence and the interdependence of certain alleged facts. The Judge has the discretion to inquire about the proposed evidence’s relevance and may admit it if deeming it relevant. Additionally, if the admissibility of one alleged fact is contingent on the proof of another, the Judge may decide the order in which evidence for each fact is presented. This process ensures that the evidence presented aligns with the relevant facts and their interdependencies as per the provisions of the Bharatiya Sakshya Adhiniyam, 2023.
Proof Provisions in Bharatiya Sakshya Adhiniyam, 2023
Part Three of the Bharatiya Sakshya Adhiniyam, 2023 addresses the requirements for proof in judicial proceedings. It mandates the consideration of only relevant facts for proving an issue and recognizes self-evident facts that do not require proof.
The Act specifies two main categories for means of proof: Oral and Documentary proof. Oral methods involve living witnesses, unless documentation is legally required, in which case a valid document must be produced. Additionally, benefit of presumptions is available for old documents.
Valid documents are classified as either public or privately created. When a physical document is produced, it is considered primary evidence, while a copied or duplicated document is deemed secondary evidence. Primary documents hold precedence over secondary documents. No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
The Act also acknowledges the significance of digital documents, considering any information contained in an electronic record to be a document if specific conditions are satisfied. Such digital evidence is deemed admissible in proceedings without further proof or production of the original. (Sec-63.1)
This comprehensive approach ensures the due process of evidence through oral and documentary methods, encompassing both physical and digital documents and prioritizing the admissibility of primary evidence over secondary evidence.
Proof of Contents of Documents and Electronic Records
The contents of documents, whether primary or secondary, may be proven through primary or secondary evidence. Electronic records’ contents may be proven in accordance with the provisions of section 63.
A computer output is considered to have been produced by a computer or communication device, regardless of whether it was produced directly by it, with or without human intervention, using appropriate equipment, or by other electronic means as referenced in clauses (a) to (e) of sub-section (3) of section 63.
When the function of creating, storing, or processing information for the regular conduct of an activity over a period was regularly performed by means of one or more computers or communication devices, all the computers or communication devices used for that purpose during that period are to be treated as constituting a single computer or communication device for the purposes of this section. References to a computer or communication device in this section shall be construed accordingly, encompassing standalone mode, computer systems, computer networks, computer resources enabling information creation or providing information processing and storage, as well as intermediaries.
Section 65 of the Bharatiya Sakshya Adhiniyam, 2023 specifies the requirements for proving signatures or handwriting in a document.
- For electronic signatures, the electronic signature of a subscriber must be proven if it is alleged to have been affixed to an electronic record. If an attesting witness cannot be found, it must be proved that the attestation of at least one witness is in their handwriting, and the signature of the person executing the document is in their handwriting.
- If the attesting witness denies or does not remember the execution of the document, its execution may be proved by other evidence.
- The court has the authority to direct the person, the Controller, or the Certifying Authority to produce the Digital Signature Certificate to verify a digital signature.
This section provides detailed guidelines for the proof and verification of signatures, handwriting, and digital signatures in judicial proceedings under the Bharatiya Sakshya Adhiniyam, 2023.
PRODUCTION AND EFFECT OF EVIDENCE, OF THE BURDEN OF PROOF, ESTOPPEL, OF WITNESSES, OF EXAMINATION OF WITNESSES, OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE
In the context of PART Four of the Bharatiya Sakshya Adhiniyam, 2023, human agency plays a fundamental role in the production and effect of evidence. Whether from the side of the prosecution, which submits the complaint before the Court, or the defense, which presents a statement in retaliation of the complaint, evidence can be produced through the engagement of human agency.
The duty of the judge is to frame issues for trial, allowing the parties of the judicial proceeding to either prove or disprove the issues by leading oral or documentary evidence. This evidence/s consists of facts-in-issue, which need to be examined by the parties after being admitted by the judge. Improper admission or rejection of evidence can be challenged in appeal, ensuring the integrity of the judicial process and the safeguarding of the parties’ rights within the framework of the Bharatiya Sakshya Adhiniyam, 2023.
The burden of proof in a legal context is fundamentally important in determining the responsibility of proving the existence of certain facts or circumstances. This burden lies upon the party who would fail if no evidence at all were given on either side. In a suit or proceeding, the burden of proof is on the person who asserts the existence of certain facts essential to establishing a legal right or liability.
According to the Bharatiya Nyaya Sanhita, 2023 and other relevant laws, the burden of proof as to any particular fact lies on the person who aims to convince the Court of its existence unless specified otherwise by law. Additionally, the burden of proving any fact necessary to enable a person to give evidence of any other fact rests on the person wishing to provide such evidence.
Furthermore, when a fact is within the special knowledge of a person, the burden of proving that fact falls upon that individual. Similarly, in cases where relationships or ownership are in question, the burden of proof lies on the party affirming a particular status or circumstance.
In criminal cases, the burden of proving circumstances that bring the case within any General Exceptions or special provisions in the Bharatiya Nyaya Sanhita, 2023, or in any other relevant laws defining the offence, rests upon the accused. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice. The Court is obligated to presume the absence of such circumstances in the absence of evidence presented by the accused. This comprehensive system ensures the fair and just determination of legal rights and liabilities in judicial proceedings.
Examination of Witnesses under Bharatiya Sakshya Adhiniyam, 2023
- Competence to Testify: All individuals are considered competent to testify unless the Court determines that they are unable to grasp the questions or provide rational answers due to factors such as tender years, extreme old age, disease of body or mind, or any similar cause. It’s important to note that a person of unsound mind is not automatically considered incompetent to testify unless their condition prevents them from understanding and answering questions coherently. In case a witness is unable to speak, they may convey their evidence through alternative means, such as writing or signs, in the open Court. Such non-verbal evidence is considered oral evidence, and if verbal communication is not possible, the Court is required to involve an interpreter or a special educator for recording the statement, which must also be videographed.
- Compelling Testimony: A witness cannot refuse to answer relevant questions in a suit or proceeding based on the grounds that the answers may incriminate them or lead to penalties or forfeitures. However, any compelled answer cannot be used against the witness in a criminal proceeding, except in a prosecution for giving false evidence through that answer.
This provision ensures the competency and obligation of witnesses to provide testimony, while also safeguarding their rights against self-incrimination and ensuring fair treatment in legal proceedings under the Bharatiya Sakshya Adhiniyam, 2023.
