​KembaraXtra – Bharatiya Sakshya Adhiniyam (BSA) – Issues and Challenges in the Implementation of the BSA, 2023

Introduction
​The primary objective of the Bharatiya Sakshya Adhiniyam, 2023 is to modernize Indian evidence law and adapt it to technological advancements, particularly with respect to electronic and digital evidence. Although the Act introduces significant reforms regarding e-evidence, its implementation presents several practical, legal, and infrastructural challenges.

(i) Lack of Awareness and Infrastructure Readiness
The BSA, 2023 gives substantial importance to electronic evidence and introduces several provisions relating to its production and admissibility. However, one major challenge is the lack of awareness among stakeholders such as lawyers, judges, police officers, and litigants regarding the technical and procedural requirements of e-evidence.
In addition, many courts, police stations, and forensic institutions lack adequate digital infrastructure, technological resources, and trained personnel necessary for handling electronic evidence effectively.

(ii) Requirement of Expert Certification
Section 63 of the BSA requires production of a Hash Certificate for admissibility of electronic evidence.
Part A of the Certificate

• Must identify the electronic record,
• Mention details of the device used to create it, and
• Be signed by the person in charge of the computer or device.

Part B of the Certificate

• Must be signed by an expert, and
• Must mention the hash value of the electronic or digital record.

The requirement of expert certification creates practical difficulties because:

• Hash value calculation is a technical process,
• There may not be sufficient cyber experts available, and
• Existing experts may require specialised training for compliance with the new law.

Thus, adapting to this new evidentiary framework may take considerable time.

(iii) Increased Workload on Cyber Laboratories
The implementation of the BSA is likely to substantially increase the workload on cyber forensic laboratories.
Many laboratories currently suffer from:

• Lack of infrastructure,
• Shortage of trained experts, and
• Absence of statutory authorization to issue expert opinions regarding electronic records.

For example, in some States such as Chhattisgarh, cyber laboratories may not be adequately equipped for this purpose.
This may result in delays in investigation and trial.

(iv) Tampering of Electronic Records
Electronic evidence is highly vulnerable to tampering, alteration, deletion, and manipulation.
In 2014, the Supreme Court recognised that electronic records are susceptible to modification and therefore require strict safeguards to ensure authenticity and reliability.
The Court observed that if criminal trials are based solely on electronic evidence without adequate safeguards, it may lead to miscarriage of justice.
Thus, ensuring integrity and authenticity of electronic records remains a major challenge under the BSA.

(v) Ambiguity in Admissibility of Electronic Records
The BSA recognises electronic records as documents and provides for their admissibility. Courts may also seek expert opinion from an Examiner of Electronic Evidence.
However, certain ambiguities continue regarding:

• Classification of electronic records as primary or secondary evidence,
• Standards for admissibility, and
• Technical procedures for verification.

The Act retains the earlier principle that documents are generally admissible as primary evidence unless they fall within exceptions permitting secondary evidence.
This may create interpretational challenges in practical application.

(vi) Information Obtained in Police Custody
The BSA retains the earlier rule that information received from an accused in police custody may become admissible if it distinctly relates to a fact discovered.
However, concerns continue regarding:

• Custodial torture,
• Coercion, and
• Forced disclosures by accused persons.

Various Law Commission Reports and Supreme Court judgments have highlighted the danger that discoveries in police custody may result from duress rather than voluntary disclosure.
Therefore, balancing investigation requirements with protection of fundamental rights remains a significant challenge.

(vii) Discrimination Between Accused Inside and Outside Police Custody
Under the existing legal framework retained by the BSA:

• Information given by an accused in police custody may become admissible if it leads to discovery of a fact.
• Similar information given by an accused outside police custody is generally not admissible.

This distinction has been criticised as discriminatory because admissibility depends upon the custody status of the accused rather than the reliability of the information itself.
The BSA continues this distinction, which may remain a subject of legal debate and constitutional scrutiny.

Important Points
Major Challenges under BSA

• Lack of awareness and digital infrastructure.
• Requirement of technical Hash Certificates.
• Shortage of trained cyber experts.
• Increased burden on cyber forensic labs.
• Risk of tampering with electronic evidence.
• Ambiguity regarding admissibility of e-records.
• Concerns regarding police custody disclosures.
• Continued distinction between custodial and non-custodial statements.

Conclusion
The Bharatiya Sakshya Adhiniyam, 2023 represents a major shift toward technologically advanced evidence law in India. However, effective implementation requires substantial infrastructural development, technical expertise, judicial clarity, and procedural safeguards. Addressing these challenges through training, investment in cyber infrastructure, legal reforms, and judicial oversight will be essential to ensure that the objectives of the BSA are successfully achieved while protecting fairness and justice in the legal system.