April 16, 2024

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Bhartiya Sakhshya Bill: an attempt to overhaul the British.

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Introduction

The Indian Evidence Act is a piece of legislation that oversees the rules and processes governing the admissibility and appraisal of evidence in Indian court proceedings. It was enacted in 1872 during British colonial authority and is regarded as one of India’s oldest and most important laws.

The original Indian Evidence Act established the criteria and principles for presenting and evaluating evidence in civil and criminal proceedings. It specifies what kinds of evidence are acceptable in court, how evidence should be presented, and how witnesses’ credibility should be judged.

The Act establishes a formal framework for the admission, exclusion, and evaluation of evidence in court processes, assuring justice and dependability.

What are the new changes to the new Evidence Act or Bhartiya Sakhshya Bill?

In the original bill i.e. Indian Evidence Act it contained around 167 sections which was divided into three parts namely being :

  • Relevancy of facts
  • Proof
  • Production and effect of Evidence

The most notable modifications in this Bill are section consolidation and the removal of references from the colonial era, while preserving a structure that is generally identical to that of the existing Evidence Act.

The Bhartiya Sakhshya Bill repeals five current Evidence Act sections, proposes changes to 23 others, and adds one new provision. It has a total of 170 sections.

Some key provisions of the New Bhartiya Sakhshya Bill:

The provisions outlined in Chapter II of the Bill pertain to ‘Closely Connected Facts‘. This chapter encompasses various aspects including evidence of facts under consideration and pertinent facts, the significance of facts intertwined within the same transaction, facts that are catalysts, origins, or consequences of the facts in question, and facts that serve as indicators of cognitive states. It’s notable that these provisions closely mirror those found in the existing Evidence Act.

Nevertheless, a subtle modification is observed in the phrasing of Section 10 of the Bill, which addresses the relevance of facts facilitating the court’s determination of damages. This modification, although retaining the core essence of Section 12 in the Evidence Act, presents a more refined language structure in Section 10 of the Bill.

Confession made by an accused person if caused by inducement, threat or promise, is irrelevant which was previously given in section 24 of Evidence Act. While Section 22 of the Bill retains the previous Section, two additional provisos have been added that allow specific types of confessions to be considered relevant.

a. According to the first proviso, a confession can be regarded relevant if the court judges that any inducement, threat, compulsion, or promise linked with it has been totally eradicated.

b. Furthermore, a confession remains relevant even if certain conditions are met:

(i) If made with a promise of secrecy,

(ii) If obtained by deceiving the accused,

(iii) If obtained while the accused was intoxicated,

(iv) If given in response to questions the accused was not obligated to answer, regardless of the form of the question, and

(v) If the accused was not informed of their right to avoid making the confession. To protect the right, these provisions may need to be clarified further to safeguard the right against self-incrimination. 

Also the confessions made to the police which were before given under Section 25 and 26 have been clubbed together under Section 23 of the new Bill with a proviso. This new condition completely overthrows the previous rule, ‘that any confession made in police custody cannot be upheld in the court of law’, but as for now “the information received in custody can be used to investigate or support other evidence related to what was discovered based on that information”.

Primary evidence and Secondary Evidence in the new Bill

In Section 57 of Chapter V of the Bill, related to primary evidence (comparable to Section 61 of the Evidence Act), new explanations have been included:

  1. When documents are created using methods like printing or photography, each document is considered primary evidence for the content of the others. However, if they are copies of an original, they aren’t primary evidence for the original’s content.
  2. Electronic or digital records are treated as primary evidence, and each file is considered primary evidence.
  3. If an electronic or digital record is produced from proper custody and not contested, it’s considered primary evidence.
  4. For video recordings stored or transmitted electronically, each stored recording is primary evidence.
  5. When an electronic record is stored across various spaces in a computer, each storage space, including temporary files, is considered primary evidence.

These additions clarify how various types of electronic records and their sources can be treated as primary evidence in a case in the court of law.

While in the secondary evidences

In comparison to the Evidence Act, Section 58 of the Bill broadens the scope of secondary evidence. It now includes oral and written admissions, as well as evidence derived from an original document that the court is unable to examine. Oral or written evidence must refer to the original, not a copy, to qualify as secondary evidence. These new categories of secondary evidence assist courts in deciding whether to allow documents.

Furthermore, clause (h) has been added to Section 60 of the Bill, which deals with when supplementary evidence of documents can be offered. When the legitimacy of the document itself is in doubt, this phrase provides for secondary proof. However, because the Bill does not already explain this aspect, this addition may require further elaboration.

Examination of Witness under the new proposed Bill

Section 142 of the Bill, which deals with witness examination, is analogous to Section 137 of the Evidence Act. Despite their differences in structure, they have the same core content.

Section 146 of the Bill, which deals with ‘leading inquiries,’ on the other hand, has been changed to describe specific instances in which queries are considered leading. This is in contrast to Section 141 of the Evidence Act, which was more generic and depended on suggestive’ questioning.

In addition, Section 165 of the Bill, which deals with document production, has been amended to include a clause that limits the presentation of confidential communications between ministers and the President of India.

Conclusion

The proposed amendments of the justice system [IPC,CRPC, Indian Evidence Act] in India aim to rectify specific deficiencies and introduce inventive approaches to the criminal justice system and they represent a significant step toward constructing a more equitable and effective legal structure. The key goals are to expedite the administration of justice, to reinforce accountability, and to protect individual rights. Though the efficiency depends on the implementation and correct interpretation of these changes.

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