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KembaraXtra – Bharatiya Sakshya Adhiniyam (BSA) – Cases where the Act is Not Applicable
IntroductionAlthough the Bharatiya Sakshya Adhiniyam lays down the rules regarding relevancy and admissibility of evidence, its application is not universal. Certain proceedings and materials fall outside the strict operation of the Act. Important exceptions include affidavits and proceedings before arbitrators or certain tribunals.
(a) Affidavits
The Bharatiya Sakshya Adhiniyam generally does not apply to affidavits. Under Section 2(1)(e), evidence consists only of oral evidence and documentary evidence. An affidavit does not strictly fall within either category and therefore cannot ordinarily be treated as evidence.
An affidavit is a written declaration or affirmation made before a person authorised to administer an oath. It contains assertions made by the deponent based on personal knowledge. Since the statements are not tested through cross-examination, affidavits are generally not regarded as evidence under the BSA.
However, there are important statutory exceptions where affidavits may be used as evidence:
It must also be remembered that an affidavit acquires evidentiary value only when the deponent is available for cross-examination.
(b) Proceedings before an Arbitrator
The Bharatiya Sakshya Adhiniyam does not strictly apply to arbitration proceedings. The purpose of arbitration is to avoid the technicalities and elaborate procedures of regular courts.
Arbitrators are excluded from the definition of “Court” under Section 2(1)(a). Arbitration proceedings are governed by the Arbitration and Conciliation Act, 1996, which mainly requires adherence to the principles of natural justice rather than strict rules of evidence.
An arbitrator is often described as:
Application to Tribunals
Certain tribunals are also not strictly bound by the technical rules of evidence under the BSA.
Examples include:
In Commissioner of Income Tax v. East Coast Commercial Company Limited, it was held that the Income Tax Tribunal is not strictly bound by procedural rules.
Similarly, Family Courts established under the Family Courts Act, 1984 function as quasi-judicial tribunals and are not strictly governed by the BSA.
However, where a statute specifically provides for application of the BSA, the Act becomes applicable. For example:
Extra-Territorial Application of the BSA
Section 1 of the old Indian Evidence Act, 1872 specifically stated that the Act extended to the whole of India. However, this expression has been omitted in the Bharatiya Sakshya Adhiniyam.
This omission is significant because it facilitates the admissibility of digital and electronic evidence originating from outside India. The modern approach recognises that electronic records and digital communications frequently transcend territorial boundaries.
Commencement of the Act
Section 1(3) provides that the Act shall come into force on such date as notified by the Central Government in the Official Gazette.
Accordingly, the Bharatiya Sakshya Adhiniyam came into force on 1 July 2024, marking a significant reform in Indian evidence law.
Important Points
Affidavits
Conclusion
The Bharatiya Sakshya Adhiniyam does not apply uniformly to all proceedings. Affidavits, arbitration proceedings, and many quasi-judicial tribunals operate outside the strict framework of the Act unless a statute specifically provides otherwise. These exceptions aim to ensure procedural flexibility and speedy justice while still maintaining fairness through the principles of natural justice.
IntroductionAlthough the Bharatiya Sakshya Adhiniyam lays down the rules regarding relevancy and admissibility of evidence, its application is not universal. Certain proceedings and materials fall outside the strict operation of the Act. Important exceptions include affidavits and proceedings before arbitrators or certain tribunals.
(a) Affidavits
The Bharatiya Sakshya Adhiniyam generally does not apply to affidavits. Under Section 2(1)(e), evidence consists only of oral evidence and documentary evidence. An affidavit does not strictly fall within either category and therefore cannot ordinarily be treated as evidence.
An affidavit is a written declaration or affirmation made before a person authorised to administer an oath. It contains assertions made by the deponent based on personal knowledge. Since the statements are not tested through cross-examination, affidavits are generally not regarded as evidence under the BSA.
However, there are important statutory exceptions where affidavits may be used as evidence:
- Under Order XVIII Rule 4 and Order XIX of the Code of Civil Procedure, 1908, affidavits may be received as evidence.
- Sections 331 and 332 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) permit affidavits in certain criminal proceedings.
- Section 51 of the Divorce Act, 1869 also recognises affidavits as a mode of proof.
It must also be remembered that an affidavit acquires evidentiary value only when the deponent is available for cross-examination.
(b) Proceedings before an Arbitrator
The Bharatiya Sakshya Adhiniyam does not strictly apply to arbitration proceedings. The purpose of arbitration is to avoid the technicalities and elaborate procedures of regular courts.
Arbitrators are excluded from the definition of “Court” under Section 2(1)(a). Arbitration proceedings are governed by the Arbitration and Conciliation Act, 1996, which mainly requires adherence to the principles of natural justice rather than strict rules of evidence.
An arbitrator is often described as:
- A court of justice,
- But not a court of law.
Application to Tribunals
Certain tribunals are also not strictly bound by the technical rules of evidence under the BSA.
Examples include:
- Income Tax Tribunals
- Rent Controller Tribunals
- Industrial Tribunals
- Family Courts
In Commissioner of Income Tax v. East Coast Commercial Company Limited, it was held that the Income Tax Tribunal is not strictly bound by procedural rules.
Similarly, Family Courts established under the Family Courts Act, 1984 function as quasi-judicial tribunals and are not strictly governed by the BSA.
However, where a statute specifically provides for application of the BSA, the Act becomes applicable. For example:
- Armed Forces Tribunal (AFT) proceedings apply the BSA because the governing statute specifically provides for it.
Extra-Territorial Application of the BSA
Section 1 of the old Indian Evidence Act, 1872 specifically stated that the Act extended to the whole of India. However, this expression has been omitted in the Bharatiya Sakshya Adhiniyam.
This omission is significant because it facilitates the admissibility of digital and electronic evidence originating from outside India. The modern approach recognises that electronic records and digital communications frequently transcend territorial boundaries.
Commencement of the Act
Section 1(3) provides that the Act shall come into force on such date as notified by the Central Government in the Official Gazette.
Accordingly, the Bharatiya Sakshya Adhiniyam came into force on 1 July 2024, marking a significant reform in Indian evidence law.
Important Points
Affidavits
- Generally not evidence under BSA.
- Affidavit = written declaration on oath.
- Not oral or documentary evidence in strict sense.
- Becomes evidence only when statute permits it.
- Deponent should be available for cross-examination.
- BSA not strictly applicable.
- Arbitrators excluded from definition of court.
- Governed by Arbitration and Conciliation Act, 1996.
- Principles of natural justice apply.
- Technical rules of evidence avoided.
- Quasi-judicial tribunals usually not bound by BSA.
- Flexible procedure followed.
- Applicability depends upon governing statute.
- AFT applies BSA because statute specifically provides so.
Conclusion
The Bharatiya Sakshya Adhiniyam does not apply uniformly to all proceedings. Affidavits, arbitration proceedings, and many quasi-judicial tribunals operate outside the strict framework of the Act unless a statute specifically provides otherwise. These exceptions aim to ensure procedural flexibility and speedy justice while still maintaining fairness through the principles of natural justice.
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