Impact of new criminal laws on the digital world (Part III) – BSA

Since last couple of articles, I have been talking about India’s cyberlaws and the impact of the new criminal laws on the cyber space and last week in specific I talked about the changes introduced in Bharatiya Nagarik Suraksha Sanhita (BNSS). You can read them at my blog www.cybermithra.in. In this week’s article, I am going to talk about the changes introduced in the Bharatiya Sakshya Adhiniyam (BSA), 2023 which will have a impact on the cyber or digital world. Bharatiya Sakshya Adhiniyam (BSA), 2023 is the new evidence act and replaces Indian Evidence Act, 1872. These laws came into effect from July 1st, 2024 and is applicable on all the new criminal cases registered from that date. Object of BSA is to consolidate and to provide for General Rules and Principles of Evidence for Fair Trial.
The contents of the Indian Evidence Act (IEA), 1872 have changed little as far as the Bharatiya Sakshya Adhiniyam (BSA), 2023 is concerned. The scope of secondary evidence has been slightly broadened and some changes have been made in the provisions relating to electronic evidence in the BSA. It expands such records to include information stored in semiconductor memory or any communication devices (smartphones, laptops). The BSA aims to improve the efficiency and accuracy of legal proceedings by providing clearer rules for evidence admissibility. It also facilitates the use of relevant electronic evidence in the digital age.

Key changes in BSA which impacts digital or cyber space :

• Definition clause : Definition of “document” now includes electronic and digital records and Definition of “evidence” now includes information given through electronic means.
• Enhanced Role for Electronic Records : Under the IEA, electronic records are categorized as secondary evidence. The BSA classifies electronic records as primary evidence, granting them primary evidence classification alongside traditional paper documents. This aligns with the increasing reliance on electronic communication and storage in modern society.
• Inclusion of statements given electronically as evidence : The ambit of ‘evidence’ has been broadened to include statements given through electronic mediums. This will enable the appearance of witnesses, accused persons, experts and victims to depose via electronic means in the usual course. This is a welcome change aimed at mitigating logistical challenges for various stakeholders in terms of costs, time and resources.
• Certificate of authentication : In IEA, section 65A and 65B used to cover the process to be followed to issue certificate of authentication to any electronic evidence, where as in BSB, it is now sections 62 and 63 which defines the process for issuing certificate of authentication and it includes significant changes to make the process simple and practical like inclusion of semiconductor storage like USB pen drive or hard disk apart from CD.
• Electronic or digital form of law books now relevant : electronic or digital forms of law books purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book including in electronic or digital form purporting to be a report of such rulings the law of which the Court has to form an opinion on, relevant.
• Electronic and Digital Signature : Sections 85 (which speaks about electronic agreements affixed with electronic signatures of parties) and 86 of the BSA (which speaks about electronic records and electronic signatures)13 now include digital signatures in addition to ‘electronic signature’.

In the next part of this series, I will be talking about what are the best changes introduced in all the three new criminal laws and what else could have been added or modified to make it better as per my understanding.