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From Legislation to Litigation: Hurdles and Prospects in the Freshly Minted Bharatiya Sakshya Bill, 2023

"In the courtroom, it's not what you know; it's what you can prove." - Denzel Washington in the movie "Training Day"

Criminal law stands as the pivotal cornerstone within the intricate tapestry of our nation's judicial system. Eminent judicial authorities have consistently underscored the paramount significance of criminal law. Recently, the union Home minister has introduced a triumvirate of bills that are completely going to transform the way criminal justice system is seen and works.

One of them is the Bharatiya Sakshya Bill, 2023 which seeks to supplant the Indian Evidence Act, 1872. The archaic Indian Evidence Act, 1872 is currently seen as a manifestation of the colonial past that Indian history is colored with.

The government is seeking to shed those colors by bring in new reforms. Moreover, this was not the only reason that the new bill was tabled in the Parliament. With the advent of mind-boggling technologies, the Indian justice system needs an overhaul and this was also one of the reasons why this bill was introduced. The criminal justice system is sought to be recalibrated through these bills.

This article will delve into the intricacies of the Bharatiya Sakshya Bill, 2023, its provisions and the challenges and opportunities that this bill is going to bring home with it. We will also delve into the heart of this pivotal legal reform, seeking to provide a nuanced understanding of its implications for practitioners, litigants, and the broader fabric of Indian justice.

Key Provisions of the Bill
The Bharatiya Sakshya Bill, 2023 is draped with new provisions, modifications and changes. It repeals five existing provisions of the Evidence Act, modifies 23 provisions, and adds one new provision. The bill also proposes amendments to 23 Sections and contains 170 Sections in total.

Let us take a look at the most important provisions of the bill with the help of some pointers:

Admissibility of Electronic or digital documents as evidence:

The BS Bill very articulately lays down that electronic records are admissible in court as evidence, provided that they have been legally authenticated. There are 2 types of evidences: primary and secondary evidences. The Indian Evidence Act was amended in 2000 to make the ambit of evidences under the act more malleable with the technological changes of the 21st century.

Henceforth in Arjun Panditrao v. Kailash Kushanrao, the Supreme Court held that print-outs and other computer outputs are admissible in the courts as evidences. The Indian Government seeks to streamline the ambit of evidences in the new bill with this judgement.

Streamlining regulations to accumulate evidence from different places:

The Bharatiya Sakshya Bill seeks to establish consistent guidelines for gathering evidence throughout India. What this will do is help in extracting evidence of the crime in a fair, just and reasonable manner regardless of the place throughout the territory of India. This will provide for a hassle-free evidence collection process.

Expansion of the Scope of Secondary Evidences:

As discussed earlier, there are 2 types of evidences: primary evidence and secondary evidence. Primary evidence is used to support legal proceedings. Secondary evidences are more like a supplementary sheet to your answer booklet which means that they are mean to support the primary evidence.

Examples of primary evidence include eyewitness testimony, original documents, and physical objects, while examples of secondary evidence include books, articles, and hearsay. Now coming to the bill, it expands the boundaries of secondary evidence by enabling the use of mechanically made copies, document counterparts, and oral accounts of document contents.

Section 58 of the Bill, containing provisions for `secondary evidence' (corresponding to Section 63 of the Evidence Act) has been amended and expanded to include additional categories such as oral admissions, written admissions and evidence of a person examining a document within the meaning of secondary evidence.

The introduction of new presumptions:

This is also an interesting change, the impact of which remains to be seen. Presumptions are very crucial when it comes proving your burden. If a presumption lies in your favor, you are deemed to have a little bit of an edge over the opposing party. Now the new Bharatiya Sakshya Bill, 2023 seeks to introduce new presumptions in place.

Section 81 of the Bill has adopted a broader version of Section 81A of the Evidence Act dealing with presumption of Gazette in electronic form with the addition of a new explanation by which the purport of `proper custody is explained'. In a layman's terms, the BS Bill establishes a presumption that electronic documents made in the normal course of business are legitimate.

The bill on confessions and character evidences:

This is a harsh truth that sometimes in order to just get rid of a case, the accused is threatened or coerced to give a confession against himself even if it is not true. While the Indian laws seek to prevent these incidents, some huge gaping loopholes were there and henceforth, a significant change has been made with respect to Section 24 of the Evidence Act (which provides that any confession made by an accused person if caused by inducement, threat or promise, is irrelevant).

In Section 22 of the new Bill, while retaining the earlier Section, two new provisos have been included which allow for certain types of confessions to be considered relevant. The Bharatiya Sakshya Bill, 2023 modifies the requirements for confessional admission. This is done to guarantee that confessions are trustworthy and voluntary which basically means they are free of any coercion or a threat.

Coming to character evidences, The Bharatiya Sakshya Bill, 2023 modifies the character evidence admissibility rules. Character evidences will now face difficulties to be accepted as evidence which means more reliability and fairness.

Virtues and vices of the new bill
Virtues of the Bill:
Expedition in prosecution: The Bharatiya Sakshya Bill holds the potential to enhance the efficiency and equitability of the Indian criminal justice apparatus, as it facilitates the prosecution of cases and the attainment of convictions.

Harmonization with technology: Through the incorporation of electronic or digital recordings as admissible evidence and the adoption of uniform standards for the collection of evidence, the BS Bill has the capacity to harmonize the Indian criminal justice system with the technological strides of the twenty-first century.

Rationalizing the route for victims: By streamlining the path for victims to attain judicial redress, the BS Bill could contribute significantly to the safeguarding of the rights and interests of individuals who have suffered from criminal acts.

Vices of the bill:
Exacerbating Defendants' Legal Dilemmas: The BS Bill, by heightening the hurdles for defendants in their courtroom defense, could conceivably serve as a means to stifle opposition or single out marginalized communities.

Predisposing Unjust Condemnations: The BS Bill's provisions may inadvertently facilitate the unjust condemnation of individuals who may be innocent, as it eases the burden on prosecutors to introduce potentially dubious evidence.

Posing a Formidable Cognitive Challenge for Laypersons: The complexity inherent in the BS Bill might render it inscrutable for the average citizen, thus impeding their ability to grasp its intricate legal nuances.

Comprehensive Suggestions:
Taking the stakeholders into consideration: Address the concerns and apprehensions of various stakeholders and build consensus and support for these bills. Since there are many laypersons which are not aware about intricacies of the legal system , it becomes imperative for the government to recognize the need of enhanced awareness.

Passing of the bill: Ensure that the bill is passed by both houses of Parliament without any dilution or delay since there are law students, lawyers and other practitioners of law which may be affected by the confusion that is stirred due to different legislations on the same area, the new bills and the old Indian Penal Code, Crpc and The Indian Evidence Act, 1872. If the bills are passed timely, then this will help save a substantial amount of loss to these stakeholders.

Time period for enforcement: Ensure that the three bills are notified and enforced in a phased and time-bound manner across the country. This will again help reduce the confusion that will be caused to lawyers while addressing the concerns of their clients. The lawyers will be able to avoid the dilemma that they will most probably face now between the old and new criminal codes.

Enhanced monitoring systems: Ensure that all the three bills are monitored and evaluated periodically and that any gaps or glitches are rectified promptly since this will help prevent the difficulties that certain provisions of this bill bring home.

Concluding Thoughts

The criminal justice system stands as the linchpin of any thriving democracy, its equitable, nimble, and people-centric disposition being paramount. The unveiling of the three bills presents a watershed moment, affording an unprecedented chance to realize this ambition.

Nevertheless, it is incumbent upon us to meticulously scrutinize and subject to rigorous examination the impact of specific clauses, notably those pertaining to confessions, due to the profound shift they portend. The Bharatiya Sakshya Bill,2023 shall inaugurate a nascent epoch of metamorphosis within India's criminal justice paradigm, poised to set a precedent for emulation by nations worldwide.

List of References:
Written By: Diya Saraswat, 3rd year BA-LLB (Hons) Student at Vivekananda Institute of Professional Studies, Pitampura

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