The Bharatiya Sakshya Adhiniyam, 2023 (BSA) is Act No. 47 of 2023. It came into force on 1st July 2024 and replaces the old Indian Evidence Act, 1872. Its stated aim is to consolidate and provide general rules and principles of evidence for fair trial.

Object and purpose

• It is an adjective law — it does not create offences or rights; it tells the Court how facts may be proved.
• It applies the same core principles the old Act had, but is re-organised and updated to deal squarely with electronic and digital records.
• It works hand-in-hand with the BNS, 2023 (offences) and BNSS, 2023 (procedure). Many BSA presumptions point directly to BNS sections.

Three words you must lock in

• Evidence S.2(1)(e) — means and includes oral evidence (statements, including electronic, that the Court permits or requires witnesses to make) and documentary evidence (documents, including electronic/digital records, produced for inspection).
• Facts in issue S.2(1)(g) — facts from which the existence, nature or extent of a right or liability necessarily follows. In a murder trial, ‘A caused B’s death’ is a fact in issue.
• Relevant fact S.2(1)(k) — a fact connected to another in one of the ways the Adhiniyam itself lists (Sections 4–50).

S.1 Short title, application and commencement

• Short title: the Bharatiya Sakshya Adhiniyam, 2023.
• Applies to all judicial proceedings in or before any Court, including Courts-martial.
• Does NOT apply to (i) affidavits presented to a Court or officer, and (ii) proceedings before an arbitrator.
• Came into force on 1 July 2024 by Government notification.

S.2 Key definitions

This is the heart of evidence law and a huge AIBE scoring zone. A fact can only be proved if it is a fact in issue or is made relevant by one of these sections S.3.

Closely connected facts (S.4–14)

• S.4 Same transaction: things said/done so connected with the main fact that they form one transaction — whether same time/place or not.
• S.6 Motive, preparation, conduct: e.g. buying poison before a poisoning (preparation); absconding after the crime (subsequent conduct). Conduct excludes mere statements unless they accompany and explain an act.
• S.8 Conspiracy: once there is reasonable ground to believe a conspiracy exists, anything said/done/written by one conspirator in reference to the common intention is relevant against all.
• S.12 State of mind: intention, knowledge, good faith, ill-will — but it must relate to the particular matter, not general disposition.

Statements by persons who cannot be called (S.26–27)

S.26 makes statements of a person who is dead, cannot be found, has become incapable, or whose attendance is unreasonably delayed/expensive relevant in eight situations — the most important being:

• (a) Dying declaration — statement as to cause of death or the circumstances of the transaction that resulted in death. Expectation of death is NOT required under BSA.
• (b) Statements in the ordinary course of business.
• (c) Statements against the maker’s own pecuniary/proprietary interest.

Judgments (S.34–38)

• S.34 a previous judgment that bars a second suit/trial is relevant.
• S.35 probate, matrimonial, admiralty, insolvency judgments are relevant and act in rem (conclusive proof of legal character).
• S.37 judgments other than those in S.34–36 are generally irrelevant unless their existence is itself a fact in issue.

Expert & other opinions (S.39–45)

• S.39 opinion of a person specially skilled in foreign law, science, art, handwriting or finger impressions is relevant. S.39(2): the opinion of the Examiner of Electronic Evidence (IT Act s.79A) on electronic data is relevant — and the Examiner is an expert.
• S.41 opinion on handwriting/signature; S.41(2) Certifying Authority’s opinion on an electronic signature.

Character (S.46–50)

• S.46 in civil cases character to prove conduct is generally irrelevant.
• S.47 in criminal cases previous good character is relevant.
• S.48 in listed sexual-offence prosecutions, the victim’s character or previous sexual experience is NOT relevant on the issue of consent.
• S.49 previous bad character is irrelevant except in reply (i.e. after good character is pleaded).

• S.51 A fact of which the Court takes judicial notice need not be proved.
• S.52 Lists facts the Court shall take judicial notice of — e.g. all laws in force in India, treaties, seals of courts, the territory of India, the rule of the road, public holidays notified in the Gazette, and the existence/flag of recognised countries. For matters of public history, science, art, etc., the Court may consult reference books.
• S.53 Admitted facts need not be proved — though the Court may still require proof in its discretion.

• S.54 All facts except the contents of documents may be proved by oral evidence.
• S.55 Oral evidence must in all cases be direct: a witness must speak to what they themselves saw, heard or perceived; an opinion must come from the person who holds it. This is how the Act keeps out hearsay.

One of the biggest AIBE blocks. Contents of documents may be proved by primary or secondary evidence S.56.

Primary & secondary evidence (S.57–60)

• S.57 Primary evidence = the document itself. New Explanations make electronic records from proper custody primary unless disputed.
• S.58 Secondary evidence includes certified copies, mechanical copies, compared copies, counterparts, and oral accounts by someone who saw the document.
• S.59 documents shall be proved by primary evidence — except as allowed below.
• S.60 secondary evidence is allowed when, e.g., the original is with the opponent and not produced after notice, is destroyed/lost, is not easily movable, is a public document, or consists of numerous documents inconvenient to examine.
• S.64 before giving secondary evidence under S.60(a), the party must usually give notice to produce.

Proof of signatures, attestation & comparison (S.65–73)

• S.65 signature/handwriting alleged to be a person’s must be proved to be his.
• S.66 proof of an electronic signature (except a secure electronic signature).
• S.67 a document required by law to be attested needs at least one attesting witness called — with a registration proviso (not for wills).
• S.72 the Court may compare a disputed signature/writing/seal with an admitted one; applies to finger impressions too.
• S.73 verification of a digital signature using the public key in the Digital Signature Certificate.

Public documents & certified copies (S.74–77)

Presumptions as to documents (S.78–93)

• S.78 Court shall presume genuineness of certified copies.
• S.80–81 presumption as to Gazettes/newspapers — and the same for Gazettes in electronic form.
• S.85 presumption as to electronic agreements; S.86 as to secure electronic records & signatures; S.87 as to Electronic Signature Certificates.
• S.92 documents thirty years old from proper custody — Court may presume due execution. S.93 electronic records five years old — may presume the electronic signature.

Exclusion of oral by documentary evidence (S.94–103)

• S.94 when contract/grant/disposition is reduced to writing, only the document (or admissible secondary evidence) proves its terms.
• S.95 no oral evidence to contradict, vary, add to or subtract from the written terms — subject to listed provisos (fraud, want of execution, separate oral agreement on a silent matter, condition precedent, subsequent rescission, usage, etc.).
• S.96–101 how the Court handles ambiguous / plain / unmeaning language.

This is the single most important new theme in BSA. Expect direct questions.

• S.61 An electronic/digital record cannot be denied admissibility merely because it is electronic; subject to S.63 it has the same legal effect and validity as any other document.
• S.62 Contents of electronic records are proved in accordance with S.63.
• S.63 Admissibility of electronic records. ‘Computer output’ (printout / stored / copied) is deemed a document and is admissible without producing the original if the S.63(2) conditions are met (regular use, regular feeding of data, proper working, accurate reproduction). S.63(4) requires a certificate — in the form in the Schedule — signed by the person in charge and an expert, submitted each time the record is produced.
• S.66 proof of an electronic signature (except a secure one).
• S.73 verification of a digital signature via the public key in the Digital Signature Certificate.
• S.81 presumption of genuineness of an electronic Gazette.
• S.85 presumption that an electronic agreement was concluded by the parties’ electronic/digital signatures.
• S.86 for a secure electronic record — presumed unaltered; for a secure electronic signature — presumed affixed with intent. (No such presumption for ordinary, non-secure records.)
• S.87 presumption that information in an Electronic Signature Certificate is correct (if accepted by the subscriber).
• S.90 presumption about an electronic message matching what was fed for transmission — but no presumption about who sent it.
• S.93 electronic records 5 years old from proper custody — may presume the electronic signature.

Burden of proof tells you who loses if nothing is proved. Pair it with the presumption verbs from S.2.

• S.121 Estoppel: if by declaration, act or omission you intentionally make another believe a thing is true and he acts on it, you cannot later deny that thing in a suit between you.
• S.122 Tenant/licensee estoppel: a tenant (or one claiming through him) cannot deny that the landlord had title at the start of the tenancy; a licensee cannot deny the licensor’s title at the time the licence was given.
• S.123 Acceptor / bailee / licensee: an acceptor of a bill of exchange cannot deny the drawer’s authority; a bailee/licensee cannot deny the bailor’s/licensor’s authority.

• S.124 All persons are competent to testify unless prevented from understanding/answering by tender years, old age, disease or the like. Unsound mind is not automatically incompetent.
• S.125 A witness unable to speak may testify by writing/signs in open court (treated as oral evidence); if unable to communicate verbally, the Court takes help of an interpreter/special educator and the statement is videographed.
• S.126 Spouses are competent witnesses in civil and criminal cases.
• S.128 Communications during marriage are privileged — not to be disclosed without consent (exceptions: suits between the spouses, or prosecution of one for a crime against the other).
• S.129–131 privileges for affairs of State, official communications, and information about offences.
• S.132 Professional communications with an advocate are privileged — except communications made to further an illegal purpose, or facts showing a crime/fraud since the engagement. Extends to interpreters and clerks.
• S.137 A witness is not excused from answering merely because the answer may incriminate — but such compelled answers cannot be used to prosecute him (except for false evidence).
• S.138 An accomplice is a competent witness; a conviction on corroborated accomplice testimony is not illegal.
• S.139 No particular number of witnesses is required to prove any fact.

Another heavy AIBE block. Learn the three stages and the rules on leading questions, contradiction and the judge’s powers.

• S.140 order of producing witnesses follows civil/criminal procedure, else the Court’s discretion.
• S.146 a leading question suggests its own answer; not allowed in examination-in-chief or re-examination if objected, but freely allowed in cross-examination.
• S.149 cross may test veracity, identity, or shake credit — but in listed sexual offences, questions about the victim’s general character or previous sexual experience to prove consent are barred.
• S.158 credit may be impeached by showing the witness is unworthy of credit, was bribed, or made prior inconsistent statements.
• S.160 former statements may be proved to corroborate later testimony.
• S.168 the Judge may ask any question in any form at any time and order production — but judgment must rest on relevant, duly-proved facts, and the Judge cannot override the privileges in S.127–136.

• S.169 The improper admission or rejection of evidence is not by itself a ground for a new trial or reversal, if the Court finds that — setting aside the wrongly admitted evidence — there was still enough evidence to justify the decision, or that the rejected evidence would not have changed it.

• S.170(1) The Indian Evidence Act, 1872 is repealed.
• S.170(2) But anything pending immediately before BSA came into force (application, trial, inquiry, investigation, proceeding or appeal) continues under the old 1872 Act, as if BSA had not come into force.