Advocate Akshika Sharma
Sayak De
Abstract
In a country where law is often felt like a distinct language, this article brings Bharatiya Shakshya Adhiniyam, BSA, closer to people. Ignorance of the law is no excuse. By using absolutely simple language, free from any legal technicalities, the study urges laymen to know the law of the land. We have deliberately departed from using section numbers, case citations, and heavy legalese to offer a lucid explanation of our legal foundations. Whether you are a law student, a practicing advocate, or a curious citizen, this article will stay relevant by redefining what ‘truth’ looks like in courtrooms. It examines the BSA’s departure from colonial frameworks, emphasizing its potential to democratize evidentiary processes. It is not just an overview — it is a conversation.
The Bharatiya Sakshya Adhiniyam,2023 repealed The Evidence Act, 1872. BSA was enforced on July 1, 2024. The Evidence Act, 1872 was passed by the British Parliament, whereas BSA is passed by the ‘Bharatiya Sansad’. The Bharatiya Sakshya Adhiniyam is a codified law in India. The basic need to repeal IEA was to form rules and regulations, principles, and amendments according to the Bharat System and end British diversity from the State. In the modernizing world it is required to modernize the county as well to provide new aspects, resources to the people which can make their lives and country updated and easy.
In the legal system, as we see, hear or read, there are endless matters which need to be resolved. For that it is required to form rules which can make court-work easy, consume less time to come up with a decision, and make the right order for the parties. With the changing facet of time, the form and nature of evidence are also shifting. BSA reflected a forward-looking legislative intent by incorporating electronic and digital records into it. These new principles have been added to the BSA so it can be easy for both the court and parties to prove and make decisions.
Bharatiya Sakshya Adhiniyam, 2023, is a procedural or adjective law, not substantive law. It indicates the process of applying rules, which does not include the punishments for crime. It operates prospectively, meaning it applies to new cases and situations that arise after it comes into effect. Procedural laws must be simple, swift, and cost-effective for the effective application of substantive laws. The BSA strives for this ideal by incorporating recent developments in the Apex Court and updating the outdated illustrations to better fit the changed Indian context.
The meaning of ‘The Bharatiya Sakshya Adhiniyam’ as follows – Bharatiya: Bharat or India, Sakshya: Evidence or Proof, Adhiniyam: Act, Legislation or Statute. BSA is the constellation of the judicially-identified and legislatively-approved practices; practices which are often used to identify facts, admissions, witnesses, proofs, documents, and several other forms of evidence.
As BSA comes into role in the legal framework, the cases in the courts of India will follow the principles of BSA to identify the admissibility of evidence in any dispute. Evidence is a species in the case proceedings in court where law provides rules which need to be followed by the court and parties to proceed with the case, and evidence is to be put in court for inspection.
The court is the battlefield where the rights and liabilities of both parties are to be determined. Every battle is censored by rules, and the court is no exception. We have BSA. We uphold principles of natural justice, preserve the interests of both parties, and also manage the time of the court. The scope to litigate is allowed, but under the watchful eyes of the laws of evidence. Thus, while presumptions and conclusive proof manage to save time in the court, opportunity is given to prove the assumptions otherwise, forming a balanced approach.
Courtroom movies both thrill and inspire us. How the advocates in black robes mesmerise the person in the witness box and extract information from their belly is the most breathtaking moment that we ponder time and again. These scenes from movies are an integral part of evidence-taking.
What is a fact?
A fact can be anything in this world, which shows existence or non-existence, directly or indirectly connected to other things. The mental condition of a person’s consciousness is also a fact, or anything that can be perceived by any sense is also a fact. In a situation where a driver collided with the sideways of a highway can be due to his different state of mind, such as negligence, rashness, or that he had no other option, and took that side of the path in good faith to avoid greater harm of colliding with a school bus approaching from the opposite side. These are all facts. Additionally, the bodily feelings, such as illness of the witness for which he could not attend the court, can also be considered as fact.
What is an evidence?
Evidence is any thing which provides an idea of existence or non existence to resolve or deal with the facts in issues in the court. Types of evidence – oral, document or electronic. Hearsay evidence- hearsay evidence is not defined in BSA, it is not an evidence by itself.
Each and every case comes up when there is a dispute between two or more persons which is known as fact in issue, where one party agrees to the fact and other denies that fact. It can be seen as the bone of the matter. Parties given a chance to prove facts with relevant evidences. Though any fact not in issue but becomes relevant is known as relevancy of fact, these facts are so closely connected to the fact in issue or relevant fact forming part of the same transaction becomes relevant itself. (also known as doctrine of res gestae). There are some facts which are inconsistent with the fact in issue or relevant fact, becomes relevant, the amount of existence of that fact is highly probable or improbable in the fact in issue or relevant fact these types of fact known as (plea of alibi) which means elsewhere it come into force as defense. Simply, a plea of alibi means I was somewhere else and not at the place where the act was performed.
Any person can be a witness who can understand the question and give a rational answer to the question put on him in the courtroom. Even if a person of unsound mind can be a witness in the case but if the person making a witness suffering from any disease, old age, body or mind or cause of any same kind in the eyes of the court cannot understand the question can be prevented from being a witness. If a person cannot communicate verbally he can be witness as she/he uses signs, gestures to communicate or if any interpreter or special educator is required court shall provide such educator and all shall be videographed.
The witness box may also have a child witness. They are feeble ones, alarmed, and their thoughts are scattered. So, we need to handle them with care. Inspire them with your approach, voice, and friendly manner. Child witnesses are vital because they seldom lie. The complexities of the world are yet to prejudice their soul. The transition from playroom to courtroom can be a lifesaver.
The evidence taking of a witness can be said to be completed only when court fulfils all these three stages. First, the party which calls that person as a witness examines him, which is known as Examination-in-Chief. Then, the opposite party cross-examines that same witness by asking different types of leading questions to counter his credibility. And if any additional point arises, again, the party which has originally called the witness can re-examine and prove their points. The whole process is to clarify and establish your side of the story in front of the court. The worst and the least to be resisted is an enemy in the disguise of a friend. We call it a hostile witness. Hostile witness is not defined under BSA. A hostile witness can be countered by self-leading questions.
Does the character of an accused person matter in the case?
In civil matters the previous character of an accused person is irrelevant in the court unless it affects the damages and the court has to decide how much damage as compensation to be provided to the party (victim). Whereas in the criminal proceedings the previous good character of an accused person is relevant in the court unless the character of an accused person itself is in fact in issue. When the issue of consent on sexual experience or the quality of consent occurs the character of the woman (victim) on the previous sexual experience is irrelevant.
Sometimes, the judges also need to ask questions to the witnesses and compel them to answer certain points, to have a better understanding while deciding the case. Yet, the court must control any kind of harassment or humiliation of a witness. BSA comes to the rescue. You can not ask about the previous sexual experience of a woman victim. Also, there are certain safeguards given in cases of professional communications between a person and his legal advisors or advocates. So, the rules of evidence in BSA enforce the much-needed balance to make the court proceedings safer and convenient for the parties.
When after the examination of the witnesses and statements of the witnesses is recorded and yet court has not given judgement and court thinks to examine of witness to be done again court
shall order to call the witnesses and when court question him, and such witness not able to recall his previous statement or certain situation after the permission of the court witness can see recorded statements and recall all these, is considered as refreshing memory. Afterwards the opposite party pleader can see the same statements and get the right to cross examine the witness.
Evidence
Evidence is anything which provides a path to reach on decisions in matter related to disputed facts in the courts. The evidence can be in the form of oral, digital, document.
Oral Evidence
The witness makes a statement in the court about the disputed fact and tells he saw, heard, perceived though sense or any same kind, it is direct evidence (in courtroom in front of judge) by the witnesses.
If a person is deceased, not found, unable to be a witness or far from the jurisdiction, and court believes it will fall expensive and delay in judgement, such person’s previous statement can be used as oral evidence.
Document Evidence
Anything which is described on the substance in form of letters, marks or figures for the purpose of recording such letters, marks or figures is used or known as a document. Documentary evidence types- there are two types – primary and secondary. In all cases where fact in issue to be proved by the document shall be made by primary evidence.
Primary Evidence
The original document itself, which is bought in the court for the inspection, If any two people decide to form a business for which they made a contract of partnership in two counterparts, afterwards they have a dispute on loss or gain, the one party files a suit and in evidence brings the contract for the inspection. It is a document and primary evidence.
Secondary Evidence
It is the copy of the primary document. It is not valid generally but with the leave of the court and after proving the fact why it got required to prove the fact with secondary evidence court. Also if court delivers the notice to the party to produce the primary document in the court but such party does not obey the court then the other party can produce the secondary evidence of it and it becomes part of the record of the case and the other party would not be allowed afterwards to produce the same evidence in its favour. Where the primary document is lost without the mistake or fault of the parties in such circumstances the court can give permission to bring a secondary document as evidence.
It is practically not feasible to issue several originals of a particular document. So, generally, a government department produces only one original, which is eventually treated as primary evidence. And the public officer, upon deposit of charges and stamps, produces certified copies of that original one, which is properly authorized by that department. Certified copies are secondary evidence holding almost the same weight when submitted before the court.
Best Evidence Rule
It means exclude the oral evidence by documentary evidence. According to the concept the terms of any contract, grant or disposition of property to be reduced in writing shall be proved by that document itself. Any oral evidence is not granted to prove the document, the secondary evidence is only allowed with the leave of the court.
Also there are exceptions where oral evidence is valid but it must be other than contract, grant, disposition of property which law has provided to be reduced in document. Suppose A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible.
There are more types of documents which are not evidence but used or kept by the government as records and it is known as a public document. Other remaining documents are private documents because they are made between individuals for personal purposes.
The legal reality of electronic records is that they are given equal legal status to traditional documents. It is in tune with the present time of technological advancement. Most of our communication these days is carried out via e-mail, WhatsApp, and other platforms. Cell phone technology has undergone drastic changes. After COVID-19, we have surpassed the traditional payment system and shifted to online payments in our daily chores. Nowadays, we are mostly accustomed to terms like Sender, Receiver, Digital Signature, WhatsApp Bluetick etc., and the Indian Courts too have accepted them as relevant while deciding the fate of a dispute. BSA includes all the basic structures upon which we can depend. The IT Act, 2000 supplements it.
BSA lays down the specific conditions for the admissibility of electronic records in court. A key procedural requirement is the production of a certificate whenever an electronic record is submitted as evidence. This certificate must identify the record, explain how it was produced, provide details of the device involved, and be signed by the person in charge or an expert.
Hearsay evidence
Hearsay evidence is no evidence generally. It is not a direct evidence like oral and document. A person collects the information and knowledge of the act from the first hand person. It is not valid in nature as it cannot be cross examined or a person giving or coming as the witness has not the surety like the other witnesses in the case. There are some exceptions where court allows hearsay evidence like in case of dying declaration, confession, admission, opinion of expert, evidence given in former proceeding.
A, an expert of foreign language, he interprets the document and provides his report in the court, here he is hearsay witness because he is not the party or direct witness.
No one can be omniscient. Judges are well-versed in law. They might have experience in some other fields too, but not in all the cases. So, at times, the court need to form an opinion upon a point of foreign law, science, art, forensic, or any other field. A person who has particular standing or skill can form an opinion on it, which is also known as expert opinion, but it’s merely an opinion, which is unsafe without support of other evidences (corroboration). His opinion is taken in order to help the judge to form his decision and only the latter stands as final.
The decision of a court is formed by the conjugation of different types of evidences. Apart from expert opinion, a person can accept that he himself did it.When a person accepts the guilt which he committed directly by stating circumstances of the act/omission, it is called confession. It is to be made in front of a judicial authority, but confession done in front of police is not a confession, but any statement made by the person and due to that something new is discovered by the police that is admissible. It is a very strong type of evidence. Because it is the human nature that no one is inclined to give evidence against himself. For that very reason, a confession must be voluntarily done, and it should be true as well as trustworthy.
If there is any kind of threat, inducement, promise, or coercion, then the confession will be irrelevant. For that same reason, A confession by a co-accused must be accepted only with the support of other independent evidences. When there are co- accused in the crime and one of them wants to be a witness against the other accused in the court, is known as an accomplice. Accomplice is a competent witness, but as he is not trustworthy the court may corroborate with the other testimony. For a person once committed a crime has the tendency of not being so dependable.
To get the case decided in one’s favor, every party has to bring on certain facts and assert them before the court of law. The party who is essentially asserting the fact before the court has the responsibility or burden to prove it also. It is called burden of proof. It is a settled criminal jurisprudence that the prosecution has to prove the case in its favour even if the defendant cannot prove his own innocence. One who wishes the court to believe upon a particular fact, he has the burden to prove that fact. In law, it is easier to prove positive facts than negative facts. So the burden of proof plays a very important role here. As to specifying which party holds the responsibility to prove it, burden of proof does not shift. On the other hand, onus of proof continuously shifts as the case further proceeds. The burden of proof in a civil case is on the plaintiff. It does not shift on the defendant.
For an example, if a person is travelling without a ticket, and upon being questioned by the ticket checker, he takes the plea that he had the ticket when he boarded the train. So, the burden of proof that he actually bought a ticket, which eventually got misplaced, is upon that person, not upon the ticket checker.
Presumption of Law and Presumption of Fact
Where in law something is obliged to be followed or mandatory by principles is presumption of law. On the other hand, something which is connected to the sense that shows existence or non-existence of thing is presumption of fact. Suppose: A child born during the marriage is presumed to be the child of the husband. Presumption is based upon : May Presume, Shall Presume and Conclusive Proof. ‘May Presume’ is where the court presume the fact is proved until it is disproved by the other party by giving the evidence against it or the court may order to prove the fact. It is rebuttable in nature. ‘Shall Presume’ is where the court considers the existence of the fact as it is provided in the law unless it is disproved that such fact is not in existence by the other party. It is rebuttable in nature. ‘Conclusive Proof’ is mandatory when one fact is connected to the other fact and one part is proved the other part is considered to be proved. The court cannot give order to disprove it, hence it is irrebuttable in nature.
Any statement made by the person in the form of oral, written or in electronic form which suggests any kind of assumption to the fact in issue or relevant fact is known as admission. Admission is used under civil disputes where a party or representative makes a statement; it is not confession like in criminal cases. It is to be proved by the other party, the person who makes admission cannot prove it and no admission is relevant where the court believes that parties themselves already agreed not to give evidence on such point/dispute or the parties before expressed the condition for not upcome on evidence.
It is not a conclusive proof but works as an estoppel on the parties. There are two types of admission – judicial and extra judicial admission: judicial admission is a formal statement made in court and part of formal records, when any fact is admitted it is considered as settled fact the latter party cannot raise it. Whereas extra judicial admission is made outside the court to anyone and it is not part of formal records and it can be used as evidence but it does not directly prove the fact admitted.
Estoppel
It is the legal context that bars the person from refusing anything which they have before confirmed through their words, writings or directions. It is used to promote even-handedness and equity to the parties in the case. It is part of both civil law and criminal law. The basic rule of estoppel is to stop the party from modifying or revising their side once they encourage the other person to act or perform in the specific way. In simple note, estoppel is to avert the person from reverting on their word once somebody else has stood on it. Estoppel cannot be apply on Quasi-criminal cases against points of law, against statutes, against the minor, fraud or negligence existing on the side of the party who is pleading for estoppel, also in cases of illegal property transfers or where both parties are well-known with true facts.
The Indian and UK law have few differences as we see in like in dying declaration in India person dying no need of endying statement required for completing it. If a person survives the statement is not rejected, whereas in UK dying Declaration is completed when a person is sure he will die. End statement is required if the person survives the statement is rejected. Next in Hearsay Evidence in India it is not declared or defined and generally not in use, whereas in the UK Hearsay Evidence is defined and comes in use with cross- examination. Moreover in case of hostile Witness, in India, it is not defined in acts but the statement given in favor of the parties is not rejected wholly and such statement becomes part of the records. In the UK it is defined and declared that if a witness becomes hostile the statement given by him is wholly rejected, no favour is provided to parties like the Indian System.
India, being the most populous country and having a vast and diverse demographic profile, faces unique challenges and opportunities in maintaining law and order. Though modeled upon the civilized nations’ common law traditions, India possesses some key procedural differences, especially how cases are conducted and evidence are handled. BSA-2023 takes the vigor out of the existing IEA-1872 and regurgitates it with the demand of time. While Bharatiya Shaksha Adhiniyam retains the adversarial spirit, it deviates from Anglo-American systems in critical areas like dying declaration, confession, and digital admissibility. India’s procedural approach is more codified, safeguard-driven. The court acts as a stoic umpire, not as an investigator. The role of collecting evidences and proving it in one’s favor is of the parties. India prioritizes procedural safeguards over flexibility, reflecting a preventive rather than curative philosophy of evidence law.
Reference
- Bare Act – The Bharatiya Sakshya, 2023 (47 of 2023)
- The Information Technology Act, 2000 (Act 21 of 2000)
- Repealed Bare Act- The Indian Evidence Act, 1872 (1 of 1872)
- Saxena & Dogra, (2010) Makeup Your Mind for Cross Examination (Civil), PAL Publishing House- Delhi
- Das Mohua (2025), ‘As child witnesses shape verdicts, Indian justice system is slowly changing’, Times of India, 3rd May
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