Bharatiya Sakshya Adhiniyam (BSA) 2023: New Evidence Law and Its Impact on Business Disputes

India’s New Law of Evidence

The Bharatiya Sakshya Adhiniyam (BSA), 2023 replaces the Indian Evidence Act, 1872, as the law governing the admissibility, relevance, and weight of evidence in Indian courts. Coming into effect on July 1, 2024, the BSA modernizes the evidentiary framework to address contemporary challenges, particularly in the areas of digital and electronic evidence.

Key Changes for Business and Commercial Matters

The BSA significantly expands the scope and treatment of electronic evidence. Section 63 of BSA (replacing Section 65B of the Indian Evidence Act) provides a more comprehensive framework for the admissibility of electronic records, including electronic communications, digital documents, CCTV footage, and data retrieved from servers and cloud storage.

The authentication requirements for electronic evidence have been streamlined. While a certificate from the person responsible for the electronic device or system remains important, the BSA provides greater flexibility in establishing the authenticity of electronic records through various means including metadata analysis and expert testimony.

Documentary Evidence in Commercial Disputes

For businesses, the treatment of documentary evidence under the BSA has important implications. Business records maintained in electronic form, including accounting software data, ERP system records, and email communications, are now explicitly recognized as admissible evidence, subject to proper authentication.

The BSA also clarifies the evidentiary value of agreements signed through electronic signatures, documents exchanged through email, WhatsApp and other digital platforms, bank statements and transaction records in electronic form, and GPS and location data. These provisions are particularly relevant in debt recovery, commercial disputes, and cheque bounce cases where electronic communications often form the backbone of evidence.

Practical Implications

Businesses must ensure that their document management, communication archival, and data retention practices comply with the evidentiary requirements of the BSA. This includes maintaining proper chain of custody for electronic records, implementing retention policies that preserve potentially relevant evidence, ensuring that electronic systems generate proper audit trails and logs, and training relevant personnel on evidence preservation protocols.

For ongoing and future litigation, understanding the BSA’s evidence requirements is essential for building strong cases and avoiding the inadmissibility of critical evidence.