Difference Between Indian Evidence Act, 1872 (IEA) Vs Bharatiya Sakshya Adhiniyam, 2023 (BSA)

Indian Evidence Act, 1872 (IEA) Vs Bharatiya Sakshya Adhiniyam, 2023 (BSA)

Differences Between IEA & BSA

Aspect	Indian Evidence Act, 1872 (IEA)	Bharatiya Sakshya Adhiniyam, 2023 (BSA)
Total Sections	167 Sections	170 Sections
Focus	Evidence rules for 19th–20th century	Evidence rules updated for 21st century (digital & electronic age)
Electronic Evidence	Recognised only after 2000 IT Act amendments; limited clarity	Explicitly recognised throughout; “electronic records” equated with “documents”
Secondary Evidence	Narrow definition	Expanded → includes copies of documents, images, digital records, server/cloud data
Admissibility of Electronic Records	Section 65B certificate mandatory	Section 61 (BSA) simplifies process, certificate still needed but procedures clarified
Expert Evidence	Traditional experts (doctors, handwriting experts, etc.)	Broader → includes digital & forensic experts
Relevancy Rules	Focused on oral & documentary evidence	Broadened to cover SMS, emails, WhatsApp chats, metadata, digital forensics
Presumption of Documents	Limited (official records, newspapers, etc.)	Wider presumptions → electronic gazettes, blockchain-like secure records
Language & Style	Old colonial English	Simplified, modern drafting, easier for Indian judiciary & public
Gender Neutrality	Not gender neutral in all provisions	Uses gender-neutral terms
Objective	Prove facts in court	Prove facts in court + address cybercrime, digital transactions, new-age frauds

Restructured and Renumbered

BSA Section	IEA Section	Comments
1	1	No change in title; BSA removes “extends to whole of India” clause (legallyin.com, The Legal Lock).
2 (definitions)	3 & 4 (definitions)	Sections merged and reorganized; includes expanded definitions. (Legal Auctor, SNS Legal Aid)
3–21	5–23	Shifted by –2. (Legal Auctor)
22	24 + provisos from 28 & 29	Confession-related provisions consolidated here. (Legal Auctor, jyotijudiciary.com)
23	25, 26, 27	Confessions to police, in custody, discovery rules merged. (Legal Auctor, jyotijudiciary.com)
24–38	30–44	Shift by –6 in numbering. (Legal Auctor)
39–47	45–53	Expert opinion sections combined. (Legal Auctor, LegalOnus)
48	53A	Direct mapping. (Legal Auctor)
49–60	54–65	Shift by –5 due to new sections. (Legal Auctor)
61	—	Brand-new provision—no IEA counterpart. (Legal Auctor)
62–63	65A, 65B	Digital evidence and authentication clarity. (Legal Auctor, legallyin.com, LegalOnus)
64–65	66–67	Shift by –2. (Legal Auctor)
66	67A	Shift by –1. (Legal Auctor)
67–84	68–85	Shift by –1. (Legal Auctor)
85–87	85A–85C	New numbering due to added sections. (Legal Auctor)
88–92	86–90	Shift by +2. (Legal Auctor)
93	90A	Shift applied. (Legal Auctor)
94–114	91–111	Shift by +3. (Legal Auctor)
115	111A	Direct mapping. (Legal Auctor)
116–119	112–114	Shift by +4. (Legal Auctor)
120	114A	New numbering. (Legal Auctor)
121–131	115–125	Shift by +6. (Legal Auctor)
132	116–117	Split sections. (Legal Auctor)
133–145	128–140	Shift by +5. (Legal Auctor)
146 (1–4)	141–143	Continuous mapping. (Legal Auctor)
147–168	144–165	Shift by +3. (Legal Auctor)
169	167	Shift by +2. (Legal Auctor)
170	—	New “Repeals & Savings” provision. (Legal Auctor, legallyin.com)

Kapil Sibal’s Concerns on IEA → BSA and Related Criminal Law Reforms

1. Warnings Against Authoritarianism

Sibal voiced strong worries that the new criminal laws—including the BSA—risk enabling dictatorial tendencies, granting sweeping powers to the police and the state:

• He accused the government of aiming to “bring dictatorship in the country through laws.” The Economic TimesHindustan Times

• He warned that these laws might allow action against judges, the Auditor General, and civil servants, threatening institutional independence. The Economic Times

2. Unconstitutional and Dangerous

He labeled the bills—including the BSA—as “completely unconstitutional” and dangerous:

• "It is completely unconstitutional… strikes at the root of the independence of the judiciary." The Economic TimesHindustan Times

• He urged judges to stay vigilant, warning that these laws could imperil the nation's future. Hindustan Times

3. Lack of Democratic Process

Sibal criticized the process used to pass these laws:

• He pointed out that the bills were propelled through Parliament when hundreds of opposition MPs were suspended, undercutting democratic debate. The Times of IndiaThePrint

• He also said that although the laws claimed to be “Indian-ising” the legal system, they were "90% the same" as the colonial-era versions and lacked any genuine “Indian-ness.” The Times of India

4. Totalitarian Shift & Federalism Threat

In a public lecture, Sibal described the new laws as a totalitarian shift, undermining federal values:

• He warned that the new provisions allowing FIRs and investigations from anywhere in the country could be misused to target opposition or dissent. "Rest The Case"

• He also criticized the extended police custody period (60–90 days) as extreme and oppressive—comparing it unfavorably to liberal democracies, where suspects are ordinarily produced before a magistrate within 24 hours. "Rest The Case"

5. Draconian Laws and Opacity

Sibal echoed concerns raised by the legal community and bar associations:

• He labeled the new laws as draconian, passed without sufficient pre-legislative consultation, despite opposition from several senior lawyers and jurists. ThePrintThe Wire

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