Bharitya Sakshya Adhiniyam (BSA) & Information Technology Act: Challenges for Digital Records of Evidence
Indian Evidence Act & BSA Until recently, the Indian Evidence Act, 1872 (IEA) was the primary legislation governing the admissibility and evaluation of evidence in both criminal and civil cases in India. However, with effect from 01.07.2024, this landmark legislation has been superseded by the Bharatiya Sakshya Adhiniyam, 2023 (BSA), marking a significant shift in the country’s evidentiary framework. The BSA aims to establish a comprehensive legal framework for electronic records, tackling the intricacies of digital evidence in India. This entails introducing novel definitions, benchmarks, and protocols to validate and confirm the authenticity of electronic records, thereby rendering them trustworthy evidence in judicial proceedings. Key Changes The IEA’s territorial application was explicitly limited to India (Section 1), whereas the BSA’s Section 1 omits this geographical restriction. This omission appears to be a deliberate move to facilitate the admission of digital evidence originating from outside India, potentially broadening the Act’s scope to accommodate international digital evidence. Document – Section 2(d), BSA (Sec 3(e) IEA): The BSA broadens the definition of documentary evidence to explicitly include digital and electronic records. The term ‘document’ has been redefined to encompass modern forms of data storage and communication. Notably, an illustration has been added to clarify that ‘electronic records on emails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence, and voice mail messages stored on digital devices are documents.’ This expansion is further supported by changes in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Challenges in Ensuring Data Integrity Inclusion of Electronic and Digital Records: The revised definition of a document now explicitly encompasses electronic and digital records, expanding its scope to include any information conveyed, described, or stored electronically through devices like computers, smartphones, or other digital tools. Expansion of Means of Recording: The revised definition takes a more comprehensive approach, acknowledging that information can be recorded in various forms beyond traditional written symbols, numbers, or marks. It now includes any method of capturing information, such as audio or video recordings, or other innovative means of documentation. Intended Use: Both definitions emphasize the purpose of a document is to record information, but the newer definition explicitly includes electronic and digital formats as intended uses. Evidence: The revised definition of ‘evidence’ broadens its scope to encompass electronic oral statements and explicitly includes digital records as documentary evidence, acknowledging the modern shift towards digital information storage and communication in contrast to the old framework, which mainly focused on traditional oral testimony and physical documents, potentially restricting its relevance in today’s digital landscape. Section 57 of the BSA significantly expanded the definition of ‘primary evidence’ to include various forms of electronic and digital records, providing clarity on what constitutes primary evidence in the context of electronic or digital records, addressing a significant gap in the previous legal framework. Interplay of BSA & IT Act Conflicting Definition and Scope of Electronic Records: The BSA introduces a broader definition of electronic records compared to the IT Act. Under the BSA, electronic records now include information stored in semiconductor memory, communication devices, and various digital formats. In contrast, the IT Act defines electronic records more narrowly as “data, record or data generated, image or sound stores, received or sent in an electronic form or microfilm or computer-generated micro fiche.” The BSA broadens the definition of electronic records, potentially creating legal ambiguities with the IT Act’s narrower definition. This discrepancy may lead to inconsistent court applications in cases involving new technologies or digital formats not explicitly covered by the IT Act. Conclusion Admissibility Procedures & Evidentiary Standards: The BSA’s electronic evidence admissibility approach conflicts with IT Act procedures, potentially causing confusion and inconsistencies due to differing requirements and authentication processes. The BSA treats electronic records as primary evidence while simultaneously retaining provisions for certificate authentication. This dual approach may create confusion in court proceedings. Authentication and Integrity of Digital Evidence: The IT Act provides a robust framework for verifying the integrity of certain types of electronic records, whereas the BSA acknowledges the significance of integrity but adopts a more expansive approach, enabling courts to seek expert opinions from Examiners of Electronic Evidence and accepting electronic records from ‘proper custody.’ However, the BSA lacks clear technical guidelines for maintaining the integrity of digital evidence throughout the collection and storage processes, leading to potential risks concerning chain of custody and tampering. The BSA’s modernization efforts, despite initial challenges, will pave the way for a more efficient and effective justice system, as jurisprudence adapts to electronic and digital records.
