Sections 1 and 2 of the Bharatiya Sakshya Adhiniyam, 2023

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:

1. Where and when does the BSA apply?
2. 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:

1. affidavits presented to any Court or officer; and
2. 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:

1. anything, state of things or relation of things capable of being perceived by the senses; and
2. 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”

 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.

REFERENCES

• Ø  https://indiankanoon.org/doc/70224818
• Ø  https://www.barandbench.com/law-firms/view-point/electronic-evidence-and-arbitration-under-bharatiya-sakshya-adhiniyam-2023

• Ø  https://cytrain.ncrb.gov.in/staticpage/web_pages/IndexBSA.html
• Ø  https://constitutionofindia.in/chapter-1-of-the-bharatiya-sakshya-adhiniyam/#content