SECTION 1. Short title, application and commencement
Section 1 of the Bharatiya Sakshya Adhiniyam, 2023 delineates the preliminary parameters of short title, territorial and procedural applicability, and statutory commencement.
Sub-section (1) establishes the official nomenclature of the statute as the Bharatiya Sakshya Adhiniyam, 2023.
Under sub-section (2), the procedural scope of the Act extends comprehensively to all judicial proceedings conducted in or before any Court, specifically encompassing military tribunals and Courts-martial.
However, the provision explicitly carves out statutory exceptions by excluding affidavits presented to any Court or officer as well as non-judicial proceedings conducted before an arbitrator.
Finally, sub-section (3) provides that the operational enforcement date of the Adhiniyam shall be formally appointed by the Central Government through notification published in the Official Gazette.
Comments
Judicial Proceedings
The Bharatiya Sakshya Adhiniyam, 2023 governs all judicial proceedings while explicitly excluding non-judicial matters regardless of their civil or criminal nature.
A proceeding is jurisprudentially classified as judicial if its purpose is to establish a jural relation between individuals, groups, or society, meaning a judge acting without such determinative intent does not act judicially.
Under Section 2(1)(m) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, judicial proceedings are formally defined to include any proceeding wherein evidence is or may be legally taken on oath.
Consequently, the recording of evidence under the Sakshya Adhiniyam applies to recognized judicial proceedings including maintenance matters under Chapter X of BNSS (formerly Chapter IX CrPC), execution proceedings, magisterial inquiries into formal petition allegations, statutory inquiries under BNSS Sections 100, 164, and 379 (formerly CrPC Sections 97, 145, and 340), and industrial dispute adjudications before an Industrial Tribunal.
Within this evidentiary framework, the term “Court” encompasses all individuals and authorities legally authorized to take evidence on oath.
Non-Judicial Proceedings
Under evidentiary jurisprudence, non-judicial or administrative proceedings are defined as inquiries into factual matters where an officer acts out of duty to execute a specific task without exercising judicial discretion or forming a binding legal judgment.
Consequently, because they lack the essential elements of judicial adjudication, the strict rules of evidence prescribed under the Bharatiya Sakshya Adhiniyam, 2023 do not apply to them.
Specific non-judicial proceedings excluded from the scope of the Adhiniyam include land compensation inquiries conducted by a Collector under the Land Acquisition Act, departmental or disciplinary inquiries held under the Bombay Land Revenue Code or by police officials, administrative orders issued by a First Class Magistrate under Sections 498(3) or 500 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and summary contempt proceedings.
Disciplinary Proceedings
In State of Haryana v. Ratan Singh, the Supreme Court affirmed that the technical rules of the Indian Evidence Act (now Bharatiya Sakshya Adhiniyam, 2023) do not apply to departmental or disciplinary inquiries.
Upholding the termination of a bus conductor based on passenger statements recorded by a checking inspector without calling those passengers as formal witnesses, the Court established that internal disciplinary bodies are not bound by formal evidentiary constraints.
This non-applicability of technical evidence rules extends equally to constitutional inquiries conducted under Article 311 of the Constitution regarding civil servants.
However, because disciplinary proceedings carry penal implications for employment akin to criminal actions rather than routine civil matters, the commentary emphasizes that the standard of proof required to establish charges against an employee in such proceedings must satisfy a threshold of proof beyond reasonable doubt.
Courts-Martial
Under the evidentiary scheme of the Bharatiya Sakshya Adhiniyam, 2023, while Courts-martial are generally brought within the ambit of judicial proceedings, the Adhiniyam explicitly carves out statutory exceptions for military tribunals convened under specialized defence legislations.
Specifically, the provisions of the Bharatiya Sakshya Adhiniyam do not apply to Courts-martial convened under the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934, and the Air Force Act.
However, the general rules of evidence under this Adhiniyam remain fully applicable to native Courts-martial and proceedings conducted before the Indian Marine Act.
Affidavits
Under Section 2(1)(e) of the Bharatiya Sakshya Adhiniyam, 2023, an affidavit does not fall within the statutory definition of “evidence,” and the general provisions of the Adhiniyam do not apply to affidavits submitted before a Court or public officer.
Procedurally governed by Order XIX of the Code of Civil Procedure and Sections 331 to 333 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), an affidavit serves primarily as a mode of proof rather than substantive evidence, allowing a court to take uncontroverted allegations in an affidavit into account if no counter-affidavit is filed.
Self-serving sworn affidavits cannot independently establish a fact situation unless the Court explicitly issues a prior order permitting proof by affidavit on sufficient grounds under Order XIX Rules 1 and 2 of the CPC, or the deponent submits to cross-examination by the adverse party pursuant to Order XVIII Rules 4 and 5 CPC.
Consequently, where a court has not directed proof by affidavit, the document carries zero evidentiary value under the Sakshya Adhiniyam, rendering any decree founded solely upon an unapproved affidavit a legal nullity for lack of legal evidence.
Nirmala v. Hari Singh
In Nirmala v. Hari Singh, the Delhi High Court affirmed that affidavits do not fall within the statutory definition of “evidence” under Section 3 of the Indian Evidence Act (now Section 2(1)(e) of the Bharatiya Sakshya Adhiniyam, 2023).
The Court held that an affidavit cannot be received as substantive evidence unless a specific statutory provision explicitly authorizes certain matters to be proved by affidavit.
Grounding its holding in fundamental principles of procedural fairness, the Court reasoned that statements made in an affidavit lack evidentiary credibility because the deponent is not automatically subjected to cross-examination by the adverse party regarding the declarations made therein.
Arbitrators
Under Section 1(2) of the Bharatiya Sakshya Adhiniyam, 2023, proceedings conducted before an arbitrator are explicitly excluded from the statutory ambit of evidence law.
Arbitrators are not bound by the strict or technical rules of evidence that govern formal judicial proceedings in a Court of law, as the legislative objective of arbitration is to bypass the elaborate, time-consuming procedures of a regular trial.
Because an arbitrator remains unfettered by technical evidentiary rules, an arbitral award cannot be validly challenged or set aside on the sole ground that the arbitrator did not act in strict conformity with the rules of evidence prescribed under the Adhiniyam.
Tribunals
Under statutory commentary on evidence law, the provisions of the Bharatiya Sakshya Adhiniyam, 2023 do not apply to proceedings before Tribunals.
Designed as quasi-judicial forums to ensure expedited and specialized dispute resolution, Tribunals are exempted from the technical and rigid evidentiary mandates of formal courts of law, functioning instead under the broader principles of natural justice and their specific governing statutory rules.
Lex Fory
The law of evidence is universally recognized as lex fory—the law of the forum or place of the legal action—which mandates that procedural and evidentiary questions are governed exclusively by the laws of the jurisdiction where the court sits and where the remedy is sought.
Under this principle, the competence of witnesses, the requirement of documentary proof over oral testimony, and the ultimate probative value or sufficiency of evidence are determined according to the law of the country where the judicial proceeding is pending.
Consequently, even where evidence is recorded in a foreign jurisdiction via an ordinary commission or with the assistance of local foreign courts in aid of a pending suit, the applicable law governing the admissibility and evaluation of such evidence remains the lex fory—the law prevailing in the country where the principal proceeding is being conducted.
SECTION 2. Definitions.
Section 2 of the Bharatiya Sakshya Adhiniyam, 2023 establishes the statutory definitions, evidentiary standards, and modern interpretation clauses governing evidence law in India.
Under sub-section (1), “Court” includes judges, magistrates, and authorities legally authorized to take evidence, explicitly excluding arbitrators.
“Fact” encompasses both physical phenomena capable of sensory perception and psychological mental conditions of which a person is conscious, while “facts in issue” are the primary assertions or denials upon which legal rights, liabilities, or disabilities depend.
The definition of “document” and “evidence” has been expanded to encompass electronic and digital records—including emails, server logs, smartphone messages, locational data, and electronic oral statements.
The section delineates three tiers of judicial evaluation: “proved” and “disproved” based on the prudent man standard, alongside “not proved”; and categorizes judicial inferences into “may presume” (discretionary), “shall presume” (mandatory unless disproved), and “conclusive proof” (rebuttal evidence barred).
Finally, sub-section (2) provides that undefined expressions inherit their statutory meanings from the Information Technology Act, 2000, the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Bharatiya Nyaya Sanhita, 2023.
Comments
Under Section 2(1)(a) of the Bharatiya Sakshya Adhiniyam, 2023, the definition of “Court” is non-exhaustive and specifically framed to govern the applicability of evidentiary rules, preventing its extension beyond its legitimate statutory scope.
Special legislations must remain confined to their specific subjects, and while the term “Court” broadly encompasses judges, magistrates, and authorities legally empowered to administer oaths and examine witnesses (such as statutory tribunal authorities under the M.P. Madhyasthan Adhikaran Adhiniyam), it explicitly excludes arbitrators notwithstanding their legal authorization to take evidence.
Persons Legally Authorised to Take Evidence.
Under Section 2(1)(a) of the Bharatiya Sakshya Adhiniyam, 2023, the term “Court” encompasses all judges, magistrates, and persons legally authorized to receive evidence, excluding arbitrators.
The authority to take evidence is not an inherent feature of an Appellate Court, which can only receive additional evidence when expressly empowered by statutory provisions such as Section 432 of the Bharatiya Nagarik Suraksha Sanhita, 2023, or Order XLI, Rule 27 of the Code of Civil Procedure.
Furthermore, executive or administrative officers—such as a District Magistrate hearing appeals under Section 163 of the Municipalities Act, a Sub-Divisional Officer hearing election petitions under the Panchayat Raj Act, an Income Tax Officer conducting revenue proceedings, or an Industrial Tribunal under the Industrial Disputes Act—do not constitute a “Court” in the technical statutory sense under evidence law.
Finally, because the Adhiniyam’s definition of “Court” is strictly purpose-specific, authority to take evidence does not universally confer status as a Court under other statutes like the Contempt of Courts Act, though specialized bodies like a Commissioner appointed under the Public Servant Act are explicitly recognized as a Court for contempt jurisdiction.
Administrative Tribunals
Articles 323-A and 323-B in Part XIV-A of the Constitution of India empower Parliament to establish Administrative Tribunals for resolving service disputes of government servants and other specialized matters, respectively.
Pursuant to Article 323-A, Parliament enacted the Administrative Tribunals Act, 1985, creating a dedicated quasi-judicial statutory framework for adjudicating public employment controversies.
Functions within this framework are governed by the 1985 Act and the rules promulgated by the Central Government, granting the Tribunal procedural autonomy to regulate its own proceedings rather than adhering strictly to formal evidence statutes.
Crucially, this procedural discretion is limited by the mandatory adherence to the principles of natural justice, ensuring that no rule or procedure formulated by the Tribunal can operate in contravention of fundamental fairness.
Inquiry Commission
Under Section 8 of the Commission of Inquiry Act, 1952, an Inquiry Commission is statutorily authorized to regulate its own procedure subject to rules framed by the appropriate Government.
In State of Jammu and Kashmir v. Bakshi Ghulam Mohammad, the Supreme Court affirmed that while conducting inquiries into individual conduct or allegations, the Commission is bound to observe the principles of natural justice within the framework of the Act and its rules.
Jurisprudentially, the findings and recommendations of a statutory inquiry commission are not enforceable proprio vigore—that is, by their own legal force—nor do they operate as judicial determinations.
Furthermore, statements recorded before such a commission are expressly rendered inadmissible as substantive evidence in any subsequent civil or criminal proceedings, guaranteeing protection to witnesses and preserving the distinct non-judicial nature of fact-finding commissions.
Means and Includes
In statutory construction and interpretation under evidence law, the legislative phrase “means and includes” signifies a hard, fast, and exhaustive definition that leaves no scope for judicial expansion.
Where the legislature employs “means and includes” within a statutory definition, no alternative or extraneous meaning beyond the explicit terms of the provision can be assigned to the expression.
This dual expression establishes a complete and closed explanation of the statutory term, creating an unyielding requirement that the defined meaning must invariably attach to the word or expression for all purposes under the Bharatiya Sakshya Adhiniyam, 2023.
Document Section 2(1)(d)
Under Section 2(1)(a) and Section 2(1)(d) of the Bharatiya Sakshya Adhiniyam, 2023, the definition of “document” extends far beyond ordinary paper writings, establishing a expansive legal framework where any matter recorded upon any physical or electronic substance by letters, marks, or symbols constitutes a document.
Departing from common parlance, the statutory scope encompasses unconventional physical recordings—including notched tallies, inscribed rings or banners, musical scores, tattoos containing intelligible marks, and forester mark carvings on trees—provided they are intended or used for recording matter.
In the digital domain, electronic and digital records are explicitly integrated: physical media such as pen drives or memory cards serve as the recording “substance,” while their stored contents represent the recorded “matter,” rendering all such digital storage media and their embedded data legal documents under the Adhiniyam.
Evidence Section 2(1)(e)
Under Section 2(1)(e) of the Bharatiya Sakshya Adhiniyam, 2023, the term “evidence” signifies exclusively the formal instruments of proof recognized by law—namely, witnesses and documents.
The statutory scheme establishes a rigid binary classification dividing evidence into two fundamental branches: (1) oral evidence, comprising statements made before the court by witnesses (including electronic testimony), and (2) documentary evidence, encompassing all physical documents along with electronic and digital records produced for judicial inspection.
Oral Evidence
Under Section 2(1)(e)(i) of the Bharatiya Sakshya Adhiniyam, 2023, oral evidence refers specifically to statements made by a witness directly before a Court concerning matters of fact undergoing inquiry.
The essence of oral evidence lies in its direct presentation to the judicial forum, encompassing all verbal testimony and electronic statements permitted or required by the Court to establish or disprove facts in issue.
Documentary Evidence.
Documentary evidence comprises any document or electronic record formally produced by a party for the inspection of the Court to substantiate its case.
By virtue of statutory integration with the Information Technology Act, 2000, electronic and digital records submitted for judicial examination are explicitly recognized as documentary evidence.
The essential criterion conferring the status of evidence upon a document is that it must be produced for the Court’s inspection; consequently, specimen handwriting or signatures obtained from an accused by order of the Court solely for comparative analysis do not constitute documentary evidence, as they are not documents produced for judicial inspection to prove their contents.
Definition defective.
The definition of “evidence” under Section 2(1)(e) of the Bharatiya Sakshya Adhiniyam, 2023 is jurisprudentially incomplete and defective because it restricts evidence solely to statements of witnesses and produced documents, excluding vital material elements evaluated by courts during adjudication.
This narrow framework omits statements and confessions made by the accused during judicial examination, the observed demeanour of witnesses, official judicial site inspection memoranda, judicial notice of facts, statutory presumptions, and party conduct.
Furthermore, preliminary investigative records such as First Information Reports (FIRs) do not constitute substantive evidence and serve exclusively to corroborate or contradict the informant’s court testimony.
Crucially, a judge cannot substitute personal knowledge, unadmitted reference works, or subjective visual observations for legal evidence; allowing judicial observations—such as a judge personally assessing the fit of physical evidence on an accused—unlawfully transforms the judge into an un-cross-examined witness, violating procedural fairness and the requirement that cases be decided solely upon legally admitted evidence tested by cross-examination.
Statement of accused if evidence.
The evidentiary status of an accused’s statement made during judicial examination—under Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 313, CrPC)—presents a classic jurisprudential tension between literal statutory definition and judicial application.
In Hari Singh Bhagat Singh v. State of Madhya Pradesh, the Supreme Court held that statements recorded from the accused during court examination must be received and treated as evidence.
Conversely, the Calcutta High Court took a literal approach, ruling that answers given by an accused do not fall within the statutory definition of “evidence” under the Evidence Act (now Bharatiya Sakshya Adhiniyam).
Reconciling these views, strictly speaking, while an accused’s statement may fall outside the literal definition of evidence under the BSA, it constitutes a vital “matter before the Court” that may be evaluated alongside the prosecution’s evidence to lend strength or clarity to the prosecution case.
Nevertheless, as a fundamental rule of criminal jurisprudence, no conviction can be sustained solely on the statement of the accused in the absence of substantive corroborative evidence.
Recording of evidence through video conferencing.
In State of Maharashtra v. Dr. Prafulla B. Desai, the Supreme Court authoritatively sanctioned the recording of evidence via video conferencing in judicial proceedings, establishing that electronic presence satisfies the statutory mandate under Section 273 of the CrPC [Section 308, BNSS] and Section 12 of the Bharatiya Sakshya Adhiniyam, 2023.
Rejection of the defense’s argument that video transmission constitutes “virtual reality” in violation of Article 21, the Court clarified that video conferencing reflects actual, real-time reality enabling visual, auditory, and cross-examination observation.
Rejecting the application of contemporanea expositio to procedural codes, the Court ruled that “presence” does not mandate physical proximity and can be satisfied constructively alongside counsel.
To preserve procedural integrity, the Supreme Court laid down strict operational guidelines: allowing defense counsel studio access with relevant documents, ensuring continuous trial proceedings without undue adjournments, recording formal memoranda if witnesses refuse to answer questions, and observing judicial prudence by limiting international video-examination to jurisdictions maintaining extradition treaties with India to enforce perjury and contempt laws.