Abstract
The
Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) is one of the three major
criminal-law reforms introduced in India to replace the colonial-era Indian
Evidence Act, 1872 (“IEA”). The BSA came into force on 1 July 2024 and
is intended to consolidate and provide general rules and principles of evidence
for a fair trial. Section 1 establishes
the operational boundaries, applicability, and commencement of the statute,
whereas, Section 2 serves as the
legislative dictionary, defining the foundational vocabulary necessary to
understand the entire framework of Indian evidence law.
.Sections
1 and 2 may appear introductory, but they answer two fundamental questions:
- Where
and when does the BSA apply?
- What
do the important expressions used throughout the BSA actually mean?
Understanding
these provisions therefore makes it considerably easier to understand the rest
of evidence law.
PART I —
SECTION 1 OF THE BSA, 2023
Section 1(1): Short Title
Section
1(1) provides: “This Act may be called the Bharatiya Sakshya Adhiniyam, 2023.”
Why does the short title matter?
In
legal drafting and judicial decisions, legislation must be capable of being
referred to conveniently and consistently. Thus, instead of repeatedly
describing it as “the law relating to evidence enacted in 2023”, courts and
lawyers can simply refer to the Bharatiya Sakshya Adhiniyam, 2023 or BSA.
Section 1(2): Application of the BSA
Section
1(2) provides that the BSA applies to all judicial proceedings in or before any
Court, including Courts-martial, but excludes:
- affidavits
presented to any Court or officer; and
- proceedings
before an arbitrator.
This
part of Section 1 is particularly important because it establishes the functional
boundary of evidence law.
“All Judicial Proceedings”: The BSA is not intended to govern every proceeding in which somebody collects information or hears statements. Its principal field is the judicial determination of disputes and issues by courts. In simple terms: The BSA tells courts what material can be treated as evidence and how facts are to be established in judicial proceedings.
Example: Suppose A files a civil suit against B alleging that B failed to repay ₹5 lakh. During the trial, A produces:
- the
loan agreement;
- bank
records;
- relevant
messages;
- testimony
of witnesses.
The
court will assess such material under the applicable law of evidence, including
the BSA. However, if a person merely makes an informal complaint to a private organization,
that does not automatically become a “judicial proceeding” governed by the BSA.
Application to Courts-martial: Section 1 expressly includes Courts-martial. This is an important continuity with the earlier Evidence Act. The Indian Evidence Act also applied to judicial proceedings before Courts-martial, subject to the statutory framework governing the armed forces. The Army Act, 1950, for example, separately provided that the Indian Evidence Act applied to proceedings before a Court-martial, subject to the provisions of that Act. The BSA's express reference to Courts-martial therefore makes clear that evidence principles are not confined to ordinary civil and criminal courts.
Exclusion of Affidavits: Section 1(2) specifically states that the BSA does not apply to affidavits presented to any Court or officer. This does not mean that affidavits can never have a role in litigation. Rather, the point is that an affidavit, merely because it is filed, does not automatically become evidence governed by the BSA.
The
principle is consistent with the earlier law. In Smt. Sudha Devi v. M.P.
Narayanan, the Supreme Court explained that affidavits are not included
within the definition of evidence under the Evidence Act and could be used as
evidence where the procedural law permitted it, including through an
appropriate court order.
A later judicial decision under the BSA, Dilip Kumar Mishra v. Deo Kumar Mishra (Patna High Court, 2026), similarly recognized that an affidavit is not automatically evidence merely because it exists in the court record; the procedural circumstances and opportunity for cross-examination remain important.
Exclusion of Arbitration Proceedings: Section 1(2) also excludes proceedings before an arbitrator. This distinction is important because arbitration is adjudicatory but is not the same thing as a judicial proceeding before a court. The earlier Evidence Act contained the same basic exclusion. Judicial discussion of the expression “Court” under the old legislation repeatedly recognized the distinction between courts and arbitrators. In Ramrao v. Narayan, the Supreme Court noted that the definition of “Court” under evidence legislation was specifically designed for that statute and that arbitrators were outside that definition.
Does this mean arbitrators can
ignore evidence principles?
Not
necessarily. The exclusion means that the BSA does not directly govern
arbitration proceedings in the same way that it governs judicial proceedings.
Arbitration is primarily regulated by the Arbitration and Conciliation Act,
1996, together with the applicable procedural framework and principles of natural
justice.
Section 1(3): Commencement
Section
1(3) provides that the BSA shall come into force on a date appointed by the
Central Government through notification in the Official Gazette. That date was
subsequently notified as 1 July 2024 through Notification No. S.O.
849(E), dated 23 February 2024.
Why is commencement important?
A
law may be enacted on one date but brought into operation on another.
In
the case of the BSA:
- Presidential
assent:
25 December 2023
- Commencement: 1 July 2024
This
distinction is important when determining which evidentiary regime governs a
particular proceeding.
PART II — SECTION 2 OF THE BSA, 2023
Section 2: Definitions
Section 2 is the definition clause of the BSA. It begins with the familiar statutory phrase: “In this Adhiniyam, unless the context otherwise requires…” Section 2(1) defines key legal terms that dictate how evidence is gathered, tested, and appreciated. Section 2(2) further clarifies that expressions not defined in the BSA - but found in sister statutes like the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), Bharatiya Nyaya Sanhita, 2023 (BNS), or the Information Technology Act, 2000 will carry the same meanings.
Section 2(1) (a): “Court”
The
BSA provides that “Court” includes all Judges and Magistrates, and all
persons, except arbitrators, legally authorized to take evidence. This is
an inclusive definition. It is deliberately wider than merely saying
“civil court” or “criminal court”.
In
Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66, the Supreme Court discussed
the nature of a “Court” and emphasized the judicial character of the body
exercising the relevant jurisdiction. The decision has continued to be
important in understanding the distinction between a true court and other
authorities or tribunals.
Section 2(1) (b): “Conclusive Proof”
“Conclusive
proof” represents the strongest statutory form of presumption. Where the BSA
declares one fact to be conclusive proof of another, once the foundational fact
is established, the court must treat the other fact as proved and cannot
permit evidence to disprove it.
Example: Suppose the law says that once Fact A is legally established, Fact B must be treated as proved. The court cannot then permit a party to produce evidence merely to establish that Fact B is actually false. This is different from an ordinary presumption.
Section 2(1) (c): “Disproved”
A
fact is disproved when, after considering the material before it, the
Court:
- believes
that the fact does not exist; or
- considers
its non-existence so probable that a prudent person would act on the
assumption that it does not exist.
Notice
that “disproved” is not merely the opposite of “proved” in a mathematical
sense. The court evaluates the material as a whole.
Example: A claims that B was present in Delhi at 8 p.m. B produces reliable CCTV footage showing that B was in Mumbai at the same time, supported by travel records and other independent material. If the court accepts this material, B's presence in Delhi at that time may be treated as disproved.
Section 2(1) (d): “Document”
One
of the most significant modernizations under the BSA appears in the definition
of “document.” The provision covers material:
- expressed;
- described;
- otherwise
recorded;
upon
a substance through letters, figures, marks, other means, or combinations of
these, and expressly includes electronic and digital records.
The
statutory illustrations include:
- writings;
- printed
or photographed words;
- maps
and plans;
- inscriptions
on metal or stone;
- caricatures;
and
- electronic
records such as emails, server logs, computer or smartphone records,
messages, websites, location evidence and voicemail stored on digital
devices.
Example: Suppose
A sends B an email confirming: “I agree to purchase the machinery for ₹20
lakh.” The email can fall within the statutory concept of a document. Similarly,
a relevant message stored on a smartphone can qualify as a document.
Important caution: Calling
something a “document” does not automatically mean that it has been proved
or is admissible in every circumstance.
Electronic Evidence and Earlier Judicial Principles
The
BSA's express recognition of electronic and digital records is particularly
significant when viewed against earlier Supreme Court jurisprudence.
In
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, the Supreme Court
developed important principles concerning electronic records under the IEA.
The
Court later revisited the subject comprehensively in Arjun Panditrao Khotkar
v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, explaining the relationship
between primary electronic evidence and the statutory requirements governing
electronic records.
Section 2(1)(e): “Evidence”
Section
2(1)(e) provides that “evidence” includes two broad categories:
(i) Oral evidence - This consists of statements,
including statements given electronically, which the Court permits or requires
witnesses to make concerning matters of fact under inquiry.
(ii) Documentary evidence - This consists of documents,
including electronic or digital records, produced for the inspection of the
Court.
This
is an important development because the BSA expressly recognizes statements
given electronically within the definition of oral evidence.
Example: Suppose
a witness is permitted by the applicable procedural law to give testimony
through an electronic/audio-video mode. The statement made by that witness can
fall within the statutory concept of oral evidence. On the other hand, a CCTV
recording of an incident is documentary evidence in the broader statutory sense
because it is an electronic record produced before the court.
A
useful distinction
Witness speaks electronically → oral evidence.
Digital recording/document is produced before the Court →
documentary evidence.
The
distinction concerns the nature of the material, not merely whether technology
is involved.
Section 2(1)(f): “Fact”
The
BSA defines a “fact” broadly. It includes:
- anything,
state of things or relation of things capable of being perceived by the
senses; and
- any
mental condition of which a person is conscious.
Thus,
facts are not restricted to physical objects.
Physical fact - “A red car was parked outside the
house.” This
is capable of being perceived through the senses.
Mental fact - “A intended to kill B.” The intention exists in A's mind, but it is nevertheless
capable of becoming a legally relevant fact if proved through permissible
evidence.
Section 2(1) (g): “Facts in Issue”
“Facts
in issue” are the facts from which, independently or together with other facts,
the existence, non-existence, nature or extent of a right, liability or
disability asserted or denied in a proceeding necessarily follows.
In
simple language: Facts in issue are the central disputed facts that the
court actually has to decide.
Example: If
A is accused of murdering B, possible facts in issue include:
- whether
A caused B's death;
- whether
A intended to cause B's death;
- whether
A received grave and sudden provocation;
- whether
A was incapable of understanding the nature of the act because of
unsoundness of mind.
These
are not merely background facts. They go directly to the legal determination.
Facts in issue versus relevant facts
This
distinction is fundamental.
Suppose
A is accused of murdering B.
Fact in issue: A caused B's death.
Relevant fact: A purchased a weapon shortly before the incident. The purchase of the weapon
may be relevant to the question of whether A caused the death or had the
necessary intention, but it is not itself necessarily the ultimate issue that
the court must determine.
Section 2(1) (h): “May Presume”
When
the BSA states that the Court may presume a fact, the Court has a
choice. It may:
- regard
the fact as proved unless disproved; or
- call
for proof of the fact.
Example: Imagine
that the law permits a court to presume a certain fact from surrounding
circumstances. The court is not compelled to accept the presumption. It can ask
the party relying on it to provide additional proof.
Therefore: “May presume” = discretion.
Section 2(1) (i): “Not Proved”
A
fact is not proved when it is neither proved nor disproved. Law does not
operate only in two boxes:
- true;
or
- false.
Sometimes
the evidence is simply insufficient to reach either conclusion.
Example: A
claims that B gave him ₹5 lakh in cash. A produces no receipt, no bank record
and no independent witness. B denies receiving the money. If the court cannot
confidently accept either version, the fact may be not proved.
The
concept is therefore a reminder that failure to establish a fact is not always
the same as positively proving that the fact did not occur.
Section 2(1) (j): “Proved”
Important caution: Calling something a “document” does not automatically mean that it has been proved or is admissible in every circumstance.
Electronic Evidence and Earlier Judicial Principles
The
BSA's express recognition of electronic and digital records is particularly
significant when viewed against earlier Supreme Court jurisprudence.
In
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, the Supreme Court
developed important principles concerning electronic records under the IEA.
The
Court later revisited the subject comprehensively in Arjun Panditrao Khotkar
v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, explaining the relationship
between primary electronic evidence and the statutory requirements governing
electronic records.
Section 2(1)(e): “Evidence”
Section
2(1)(e) provides that “evidence” includes two broad categories:
(i) Oral evidence - This consists of statements,
including statements given electronically, which the Court permits or requires
witnesses to make concerning matters of fact under inquiry.
(ii) Documentary evidence - This consists of documents,
including electronic or digital records, produced for the inspection of the
Court.
This
is an important development because the BSA expressly recognizes statements
given electronically within the definition of oral evidence.
Example: Suppose
a witness is permitted by the applicable procedural law to give testimony
through an electronic/audio-video mode. The statement made by that witness can
fall within the statutory concept of oral evidence. On the other hand, a CCTV
recording of an incident is documentary evidence in the broader statutory sense
because it is an electronic record produced before the court.
A
useful distinction
Witness speaks electronically → oral evidence.
Digital recording/document is produced before the Court →
documentary evidence.
The
distinction concerns the nature of the material, not merely whether technology
is involved.
Section 2(1)(f): “Fact”
The
BSA defines a “fact” broadly. It includes:
- anything,
state of things or relation of things capable of being perceived by the
senses; and
- any
mental condition of which a person is conscious.
Thus,
facts are not restricted to physical objects.
Physical fact - “A red car was parked outside the
house.” This
is capable of being perceived through the senses.
Mental fact - “A intended to kill B.” The intention exists in A's mind, but it is nevertheless
capable of becoming a legally relevant fact if proved through permissible
evidence.
Section 2(1) (g): “Facts in Issue”
“Facts
in issue” are the facts from which, independently or together with other facts,
the existence, non-existence, nature or extent of a right, liability or
disability asserted or denied in a proceeding necessarily follows.
In
simple language: Facts in issue are the central disputed facts that the
court actually has to decide.
Example: If
A is accused of murdering B, possible facts in issue include:
- whether
A caused B's death;
- whether
A intended to cause B's death;
- whether
A received grave and sudden provocation;
- whether
A was incapable of understanding the nature of the act because of
unsoundness of mind.
These
are not merely background facts. They go directly to the legal determination.
Facts in issue versus relevant facts
This
distinction is fundamental.
Suppose
A is accused of murdering B.
Fact in issue: A caused B's death.
Relevant fact: A purchased a weapon shortly before the incident. The purchase of the weapon
may be relevant to the question of whether A caused the death or had the
necessary intention, but it is not itself necessarily the ultimate issue that
the court must determine.
Section 2(1)(e): “Evidence”
Section
2(1)(e) provides that “evidence” includes two broad categories:
(i) Oral evidence - This consists of statements,
including statements given electronically, which the Court permits or requires
witnesses to make concerning matters of fact under inquiry.
(ii) Documentary evidence - This consists of documents,
including electronic or digital records, produced for the inspection of the
Court.
This
is an important development because the BSA expressly recognizes statements
given electronically within the definition of oral evidence.
Example: Suppose a witness is permitted by the applicable procedural law to give testimony through an electronic/audio-video mode. The statement made by that witness can fall within the statutory concept of oral evidence. On the other hand, a CCTV recording of an incident is documentary evidence in the broader statutory sense because it is an electronic record produced before the court.
A
useful distinction
Witness speaks electronically → oral evidence.
Digital recording/document is produced before the Court →
documentary evidence.
The
distinction concerns the nature of the material, not merely whether technology
is involved.
The
BSA defines a “fact” broadly. It includes:
- anything,
state of things or relation of things capable of being perceived by the
senses; and
- any
mental condition of which a person is conscious.
Thus,
facts are not restricted to physical objects.
Physical fact - “A red car was parked outside the house.” This is capable of being perceived through the senses.
Mental fact - “A intended to kill B.” The intention exists in A's mind, but it is nevertheless
capable of becoming a legally relevant fact if proved through permissible
evidence.
Section 2(1) (g): “Facts in Issue”
“Facts
in issue” are the facts from which, independently or together with other facts,
the existence, non-existence, nature or extent of a right, liability or
disability asserted or denied in a proceeding necessarily follows.
In
simple language: Facts in issue are the central disputed facts that the
court actually has to decide.
Example: If A is accused of murdering B, possible facts in issue include:
- whether
A caused B's death;
- whether
A intended to cause B's death;
- whether
A received grave and sudden provocation;
- whether
A was incapable of understanding the nature of the act because of
unsoundness of mind.
These
are not merely background facts. They go directly to the legal determination.
Facts in issue versus relevant facts
This
distinction is fundamental.
Suppose
A is accused of murdering B.
Fact in issue: A caused B's death.
Relevant fact: A purchased a weapon shortly before the incident. The purchase of the weapon
may be relevant to the question of whether A caused the death or had the
necessary intention, but it is not itself necessarily the ultimate issue that
the court must determine.
Section 2(1) (h): “May Presume”
When
the BSA states that the Court may presume a fact, the Court has a
choice. It may:
- regard
the fact as proved unless disproved; or
- call
for proof of the fact.
Example: Imagine that the law permits a court to presume a certain fact from surrounding circumstances. The court is not compelled to accept the presumption. It can ask the party relying on it to provide additional proof.
Therefore: “May presume” = discretion.
Section 2(1) (i): “Not Proved”
A
fact is not proved when it is neither proved nor disproved. Law does not
operate only in two boxes:
- true;
or
- false.
Sometimes
the evidence is simply insufficient to reach either conclusion.
Example: A claims that B gave him ₹5 lakh in cash. A produces no receipt, no bank record and no independent witness. B denies receiving the money. If the court cannot confidently accept either version, the fact may be not proved.
The
concept is therefore a reminder that failure to establish a fact is not always
the same as positively proving that the fact did not occur.
A fact is proved when, after considering the material before it, the Court:
- believes
that the fact exists; or
- considers
its existence so probable that a prudent person would act on the
assumption that it exists.
This
definition retains the traditional “prudent person” test of Indian
evidence law.
In Suman Devi v. Mahesh Arora, while discussing the corresponding provision of the IEA, the Delhi High Court explained that evidence and proof are not synonymous and that proof concerns the degree of belief or probability reached by the court after evaluating the material before it.
Standard of
Proof: Civil and Criminal Proceedings
Section
2(1) (j) itself does not prescribe separate phrases such as “preponderance of
probabilities” and “beyond reasonable doubt.” Those standards have largely
developed through judicial precedent.
Civil cases - The usual standard is preponderance
of probabilities.
The court asks: Which version is more probable?
Criminal cases - The prosecution generally has to
establish guilt beyond reasonable doubt. This does not mean absolute or mathematical certainty. It
means that the evidence must cross the high threshold required before a person
can be convicted of a crime.
Thus,
the same basic statutory concept of “proved” operates within different
evidentiary standards developed by judicial precedent.
Section 2(1) (k): “Relevant”
A
fact is relevant to another fact when it is connected with that fact in any of
the ways specified by the provisions of the BSA dealing with the relevancy of
facts.
Example: A is accused of poisoning B. Evidence that A purchased poison shortly before B became ill may be relevant, depending upon the circumstances and the applicable provisions. But relevance does not automatically mean that the evidence is sufficient to establish guilt.
This distinction is essential: Relevant evidence may assist the court, but relevant evidence is not necessarily conclusive evidence.
Relevance, Admissibility and Proof — Three Different
Ideas
Relevance: Does the fact have a legally recognized
connection with the matter being decided?
Admissibility: Does the law permit the court to
receive and consider that material?
Proof: After considering admissible
material, has the fact been established to the required standard?
Example: Suppose CCTV footage appears to show A near the scene of a crime.
- The
footage may be relevant.
- It
must satisfy the applicable rules for admission and proof.
- Even
if admitted, it may not by itself prove that A committed the crime.
This
three-stage understanding prevents many common mistakes in evidence analysis.
Section 2(1) (l): “Shall Presume”
Where the BSA provides that the Court shall presume a fact, the Court must regard that fact as proved unless and until it is disproved.
Therefore:
“Shall presume” creates a mandatory rebuttable presumption.
Example: If the statute says that upon proof
of Fact A, the Court shall presume Fact B, the court cannot simply refuse to
draw the presumption. However, the opposing party may ordinarily attempt to
rebut it if the relevant provision permits rebuttal.
|
Concept |
Effect |
|
May
presume |
Court
has discretion |
|
Shall
presume |
Court
must presume unless rebutted |
|
Conclusive
proof |
Court
must treat the fact as proved and cannot allow evidence to disprove it |
Section 2(2): Definitions from Other Laws
Section
2(2) contains an important interpretative rule.
Where
a word or expression is:
- used
in the BSA,
- not
defined in the BSA,
but
is defined in the:
- Information
Technology Act, 2000;
- Bharatiya
Nagarik Suraksha Sanhita, 2023; or
- Bharatiya
Nyaya Sanhita, 2023,
it
carries the meaning assigned to it in the relevant legislation, unless the
context requires otherwise.
Example: Suppose a term used in the BSA is not defined there but has a defined meaning under the Information Technology Act, 2000. That statutory meaning can be used when interpreting the BSA, subject to context.
Conclusion
Sections
1 and 2 of the Bharatiya Sakshya Adhiniyam, 2023 provide the foundation upon
which the rest of Indian evidence law now operates. The BSA therefore
represents both continuity and transition. Its foundational concepts
remain deeply connected with the jurisprudence developed under the Indian
Evidence Act, 1872, while its explicit treatment of electronic and digital
records reflects the realities of twenty-first-century litigation.
