The Bharatiya Sakshya Adhiniyam, 2023

What it does

The Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023) is the law of evidence. It says what is relevant, what may be proved by what means, how documents and oral testimony are treated, what a court may presume, and where the burden of proof lies. It applies in civil and criminal proceedings alike.

It is one of three statutes that replaced the older criminal and evidence framework together. The Bharatiya Nyaya Sanhita, 2023 replaced the Indian Penal Code, 1860, the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the Code of Criminal Procedure, 1973, and this Adhiniyam replaced the Indian Evidence Act, 1872. The Evidence Act is therefore a repealed instrument, and the firm's notes on the new codes record that the Adhiniyam replaces it from 1 July 2024.

The firm's notes describe the fundamental principles of relevance, admissibility, hearsay and burden of proof as substantially carried forward. The change that matters most to a litigant is the fuller treatment of electronic and digital records.

Who it binds

Courts and the parties before them. It does not bind a private person outside a proceeding, but it decides what that person must keep, and in what form, if a record is later to be proved. A business that generates its records electronically is bound in that practical sense, because the form in which a record is produced decides whether it is admitted.

What moved out of it

Provisions inserted into the Evidence Act by the Information Technology Act, 2000, notably the rule on proof of electronic records by certificate, now sit inside the Adhiniyam itself. The firm's note on criminal litigation records that section 63 carries forward the certificate requirement in a prescribed form. The certificate attests to the record and to the system from which it was taken.

The presumption about powers of attorney moved too. Section 84 of the Adhiniyam is the successor to section 85 of the Evidence Act. A court shall presume that a document purporting to be a power of attorney, and to have been executed before and authenticated by a notary public, a court, a judge, a magistrate, an Indian consul or vice-consul, or a representative of the Central Government, was so executed and authenticated.

What has changed, and when

The Adhiniyam was enacted in December 2023 and came into force on 1 July 2024. A trial that began before that date, or an offence alleged to have been committed before it, raises the question whether the old or the new law of evidence applies. The firm's notes on the new codes treat the transition as one of the first questions to settle in any pending matter, and the answer depends on the procedural provisions the new codes make for cases already under way.

What turns on it in practice

Two practice areas on this site work under the Adhiniyam. White-collar and cyber defence deals with digital evidence in cybercrime and corporate offence proceedings, where the questions are the certificate, the chain of custody and the integrity of the system from which a record was extracted. Authentication of electronic evidence is a recurring point of challenge, because deepfakes and edited material make it harder for a court to be sure a record is genuine.

The second place is property. The firm's note on a power of attorney signed abroad to sell a flat in Bengaluru relies on section 84. The presumption goes to execution and authentication only. It does not say the document is stamped, registered or wide enough in its terms, and it is not settled that a foreign notary's attestation with an apostille attracts it, because the section names a notary public and the Notaries Act, 1952 ties that phrase to a notary entitled to practise under that Act.