INDIA Trends and Developments Contributed by: Sidharth Luthra, Aayushi Sharma Khazanchi and Sheezan Hashmi, Chambers of Sidharth Luthra
ed and interpreted in India. The Indian Evidence Act, 1872 was drafted by Sir James Fitzjames Stephens, who was a British legal historian, Anglo-Indian administrator, judge and author, to adapt English common law rules of evidence to India and codify the law of evidence. An intuitive understanding of the working of the Indian Evidence Act developed over 150 years. The increasing demand to update the statute in order to keep up with crime and technology has led to a reorganisation so that the 167 Sections, three Parts and 11 Chapters of Indian Evidence Act, 1872 are replaced with the 170 Sections, four Parts, 12 Chapters and a Schedule of the BSA 2023. Prominent changes brought about by the BSA 2023 • The BSA 2023 retains most of the provisions of the Indian Evidence Act, 1872 but has been introduced in a revised and modern- ised form. It seeks to address challenges like cybercrime and the protection of vulnerable groups. • The following provisions in the Indian Evi- dence Act, 1872 have been deleted: (a) Section 82 – presumption as to docu- ments admissible in England without proof of seal or signature; (b) Section 88 – presumption as to tel- egraphic messages; (c) Section 113 – proof of cession of territory; and (d) Section 166 – power of jury or assessors to put questions. • The new Act removes references to the colonial origins of the repealed Act. Colonial proclamations and orders (as in Section 77 of the BSA 2023, which corresponds to Section 78 of the Indian Evidence Act, 1872, and in Section 79 of the BSA 2023, corresponding to
Section 80 of the Indian Evidence Act, 1872) have been eliminated. Some important provisions • Section 1(2) of the BSA 2023 is applicable to all proceedings, including courts martial. However, the Act falls short of applying to arbitral proceedings. • The definition of “document” under Section 2(1)(d) has been expanded to include elec- tronic and digital records, reflecting the con- temporary reality of information storage and communication. To qualify as a “document” or “documentary evidence”, it is necessary for a matter to be expressed or described upon any substance by means of letters, figures or marks only. • The definition of “evidence” under Section 2(1) has been expanded to include state- ments given electronically as oral evidence, alongside traditional oral testimony. • Under Section 2(2), words and expressions used in the BSA 2023 and not defined therein but defined in the Information Technology Act, 2000, the BNSS 2023 and the BNS 2023 shall have the same meanings as assigned to them in said laws. • Section 4 has introduced the concept of the relevancy of facts forming part of the same transaction. Facts that, though not in issue, are so connected with a fact in issue or a rel- evant fact as to form part of the same trans- action are relevant, whether they occurred at the same time and place or at different times and places. The Indian Evidence Act only mentions facts connected to a fact at issue, whereas the new provision includes facts connected to both a fact in the issue and any relevant fact. This allows for a more comprehensive consideration of facts in legal proceedings, ensuring that all information is taken into account, regardless of whether or
617 CHAMBERS.COM
Powered by FlippingBook