The Bharatiya Sakshya (Second) Bill 2023

What’s in Today’s Article?

• Why in News?
• About the Three Bills
• About the Indian Evidence Act 1872
• Key Provisions of the Bharatiya Sakshya (Second) Bill 2023
• Key Issues Related to the Bharatiya Sakshya (Second) Bill 2023

Why in News?

• The Union Home Minister introduced 3 revised Bills in the Lok Sabha to replace the existing British-era criminal laws, after withdrawing the previous versions, introduced in August this year.
• In the article below, we will focus only on the Bharatiya Sakshya (Second) Bill, 2023.

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About the Three Bills

• The 3 Bills are set to replace the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872.
• The IPC will be replaced by the Bharatiya Nyaya (Second) Sanhita Bill, 2023; the CrPC will be replaced by the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 whereas the Indian Evidence Act will be replaced by the Bharatiya Sakshya (Second) Bill, 2023.
• Following their introduction in August, they were referred to a 31-member Parliamentary Standing Committee.
• After consulting experts and stakeholders, the panel adopted its report, with Opposition MPs –
  • Pointing out several errors and lack of diversity in the experts consulted,
  • Questioned the haste with which the new laws are being introduced, and
  • Highlighting that they are ‘largely a copy-paste’ of the existing laws.

About the Indian Evidence Act 1872

• It governs the admissibility of evidence in Indian Courts and applies to all civil and criminal proceedings.
• Over the years, the IEA has been amended to align with certain criminal reforms and technological advancements.
  • For example, the IEA was amended in 2000 to provide for the admissibility of electronic records as secondary evidence.
• The Law Commission has examined the IEA on multiple occasions and suggested amendments on matters such as custodial violence, admissibility of police confessions, and cross-examination.

Key Provisions of the Bharatiya Sakshya (Second) Bill 2023

• Admissible evidence: Parties involved in a legal proceeding can only present admissible evidence. Admissible evidence can be classified as either ‘facts in issue’ or relevant facts.
  • The IEA provides for two kinds of evidence – documentary and oral evidence.
• Police confessions: Any confession made to a police officer is inadmissible. Confessions made in police custody are also inadmissible, unless recorded by a Magistrate.
  • However, if a fact is discovered as a result of information received from an accused in custody, that information may be admitted if it distinctly relates to the fact discovered.
• Admissibility of electronic or digital records as evidence: Documentary evidence includes information in electronic records that have been printed or stored in optical or magnetic media produced by a computer. 

Key Issues Related to the Bharatiya Sakshya (Second) Bill 2023

• Experts have flagged that the three revised Bills present a missed opportunity to rectify extensive over-criminalization and wider police powers that aggravate state control.
• The Supreme Court has recognised that electronic records may be tampered with.
  • While the Bill provides for the admissibility of such records, there are no safeguards to prevent the tampering and contamination of such records during the investigation process.
• Currently, electronic records must be authenticated by a certificate to be admissible as documents.
  • The Bill retains these provisions for admissibility and also classifies electronic evidence as documents which may not need certification. This creates a contradiction.
• Under the IEA, a fact discovered due to information received from an accused in police custody may be provable. The Bill retains this provision.
  • Courts and Committees have noted that facts may be discovered in police custody by coercion, without adequate safeguards.
• The Law Commission has made several recommendations, which have not been incorporated.
  • These include the presumption that the police officer caused the injuries if an accused was injured in police custody.

Q1) What is the Law Commission of India?

Law Commission of India is a non-statutory body and is constituted by a notification of the Government of India (Ministry of Law & Justice), with definite terms of reference to carry out research in the field of law.

Q2)

Source: Revised criminal law bills: Key changes explained