Expansion of the concept of “document” in the Bharatiya Sakshya Adhiniyam, 2023: A comparative study with the Indian evidence act, 1872 In the context of digital evidence

Abstract

The Indian Evidence Act, 2023 (BSA) has revolutionised the law of documentary evidence in India, replacing the Indian Evidence Act, 1872 (IEA). This paper attempts to examine in detail the development of documentary evidence from the colonial era IEA to the digitally cognisant BSA, while focusing on the greater breadth of the statutory definition of ‘document’ and on the treatment of electronic documents.

The IEA, drawn up by Sir James Fitzjames Stephen for a paper economy, saw 'document' merely as 'physical inscription on material substances' (under Section 3). In the late 1900s, with the advent of digital communication technologies, this structure was found to be deficient. While the Information Technology Act, 2000 alleviated this glaring deficiency somewhat by introducing Sections 65A and 65B into the IEA, which laid down the foundation for a certification based regime for admissibility of electronic records, these aspects created serious procedural complexities and long drawn out judicial debates.

This paper examines how the law on electronic evidence has developed in India through the significant Supreme Court rulings in State (NCT of Delhi) v. Navjot Sandhu (2005), Anvar P.V. v. P.K. Basheer (2014) and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), highlighting the vital role of judicial intervention in bridging the legislative gaps left by the IEA framework. The paper then reviews the BSA's innovative formulation, which brings electronic data into the heart of the statutory framework  under Section 2(1)(d) electronic data is included in the definition of a document and is not an add on to the rules.

The comparative analysis shows that the BSA remedies some of the structural flaws in the IEA, its disarticulated legislative structure, the interpretation load on courts, the rigid framework of the Section 65B certification scheme  and introduces forward-looking, technology neutral impetus that will meet the needs of new forms of digital communication. But several issues are yet to be addressed: authentication requirements in the field of digital forensics, cross-border jurisdictional complications pertaining to data on foreign servers, evidentiary admissibility and the constitutional rights to privacy, guaranteed by the K.S. Puttaswamy v. Union of India (2017) judgement, and the lack of technical capacity of judicial infrastructure.

The paper concludes that, although the BSA is a historic and much-needed legislative change, it will only be effective if supported by other institutional measures such as the creation of a more uniform national system for the management of digital evidence, the regular training of judges in digital forensics, the improvement of international mutual legal assistance arrangements, and the harmonisation of the standards of evidence with the emerging digital Personal Data Protection regime. The BSA offers a more consistent and balanced basis for documentary evidence in the digital era, though it cannot be fulfilled unless there is strict adherence to and uniformity in its application.