New Delhi: While the Bharatiya Sakshya Bill, 2023, which seeks to replace the Indian Evidence Act, 1872, provides for “any information” that is given electronically as oral evidence, the Parliamentary Standing Committee on Home Affairs, tasked with examining the proposed legislation, has recommended the deletion of these words, saying that this could cause serious complications in its interpretations.
The committee has also cautioned against the tampering of evidence and recommended “safeguarding the authenticity and integrity of electronic and digital records acquired during the course of investigation.”
The Bill, along with the Bharatiya Nyaya Sanhita Bill (which seeks to replace the Indian Penal Code, 1870) and the Bharatiya Nagarik Suraksha Sanhita Bill, 2023, (which seeks to replace the Code of Criminal Procedure, 1973), was referred to the 31-member committee after it was introduced in parliament on August 11 by Union home minister Amit Shah.
The committee adopted its report last week.
In their dissent notes, opposition MPs have criticised these Bills for being “copy-paste” legislations and flagged drafting errors and the haste with which they are being pushed through.
The Wire analyses the main recommendations of the committee report on the Bharatiya Sakshya Bill, 2023.
“Any information” given electronically
The Bill defines evidence as oral and documentary.
Oral evidence includes “statements or any information given electronically which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements or information”, while it defines documentary evidence as documents, “including electronic or digital records produced for the inspection of the court.”
In the Bill, the definition of “documents” has been expanded to include electronic or digital records on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices. The definition of “evidence” has been expanded to include any information given electronically, which will enable the appearance of witnesses, accused, experts and victims through electronic means.
The committee in its report said that it was brought to its attention during deliberations that the inclusion of the words “any information” within the meaning of evidence could cause serious complications in its interpretations, and that the word “information” is different from statements.
The committee has recommended that the words “any information” be deleted.
“The committee opines that inclusion of ‘any information’ along with ‘statement’ in the same line may cause complications in its interpretation. The committee, therefore, recommends that the words ‘any information’ may be deleted in this clause to avoid such complications,” it said.
Safeguarding electronic and digital evidence against tampering
The committee has also recommended the need to safeguard the authenticity of electronic and digital records acquired during investigation against tampering.
It said that Clause 57 provides for treating electronic and digital records produced from proper custody as primary evidence, but does not mention about ensuring proper chain of custody of such digital and electronic records.
“The provision of maintaining proper chain of custody has already been incorporated within the ambit of criminal laws in developed countries such as the United States of America (USA) and the United Kingdom (UK).”
It recommended that that proper chain of custody needs to be maintained to avoid tampering during the handling of evidence.
“The committee is of the opinion that safeguarding the authenticity and integrity of electronic and digital records acquired during the course of investigation is crucial due to the fact that such evidences are prone to tampering,” it said.
“The committee takes into account the suggestion submitted before the committee and recommends that a provision may be inserted to mandate that all electronic and digital records acquired as evidence during the course of investigation are securely handled and processed through proper chain of custody. Appropriate provision in this regard may be made in the Bharatiya Nagarik Suraksha Sanhita, 2023.”
Drafting and cross-referencing errors
In addition, the committee has also noted a number of drafting errors in various clauses and recommended their rectifications.
It also found several cross-referencing errors in different clauses in the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.
“The committee also undertook a detailed examination of the text of each clause and noted that the Bill contains some cross-referencing errors. The committee, therefore, recommends the ministry to rectify such errors,” it said.
The committee concluded that the changes brought in the Bill would “reflect the growing importance of digital evidence” and the need for a more comprehensive legal framework in line with 21st century technological advancements and societal changes.
The recommendations on the other two Bills can be read here and here.
