​KembaraXtra – Bharatiya Sakshya Adhiniyam (BSA) – Territorial Application of the BSA [Section 1 BSA]
​IntroductionSection 1 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the short title, application, and commencement of the Act. Unlike the Indian Evidence Act, 1872, the BSA does not expressly state that it extends to the whole of India. Instead, it defines its applicability based on the nature of proceedings rather than territorial limits.
This change reflects a modern approach aimed at accommodating technological advancements and facilitating the admissibility of electronic and digital evidence, including evidence originating from outside India.

Territorial Application under the Indian Evidence Act, 1872
Section 1 of the Indian Evidence Act, 1872 expressly provided that:

• The Act extended to the whole of India.

The emphasis was therefore on the territorial applicability of the legislation.

Territorial Application under the BSA
Section 1 of the Bharatiya Sakshya Adhiniyam, 2023 does not contain any provision stating that it extends to the whole of India.
Instead, Section 1(2) provides that the Adhiniyam applies to:

• All judicial proceedings in or before any Court;
• Including Courts-martial.

However, it does not apply to:

• Affidavits presented to any Court or officer; and
• Proceedings before an arbitrator.

Thus, the focus of the BSA is on the nature of proceedings rather than territorial boundaries.

Significance of the Omission
One of the notable changes under the BSA is the omission of the phrase:
"extends to the whole of India."
This omission is considered significant because it reflects the realities of modern digital communication and cross-border electronic transactions.
It is likely intended to facilitate the admissibility of:

• Electronic records,
• Digital documents,
• Online communications,
• Electronic evidence,

originating from locations outside India.

Purpose of the Amendment
The omission serves several practical purposes:

• Adapts evidence law to the digital era.
• Recognizes the global nature of electronic communications.
• Facilitates admission of cross-border digital evidence.
• Removes unnecessary territorial limitations in relation to electronic records.
• Supports international commercial and technological transactions.

Application of the BSA
The BSA applies to:

• Judicial proceedings before civil courts.
• Criminal courts.
• Revenue courts.
• Courts-martial.

It does not apply to:

• Affidavits (except where specifically permitted by law).
• Arbitration proceedings, which are governed by the Arbitration and Conciliation Act, 1996.

Difference between Section 1 BSA and Section 1 IEA
Section 1 BSA

• Does not expressly extend to the whole of India.
• Applies based on the nature of judicial proceedings.
• Facilitates admissibility of electronic and digital evidence originating outside India.
• Reflects modernization and technological advancement.

Section 1 IEA

• Expressly extended to the whole of India.
• Focused on territorial applicability.
• Framed before the era of digital communication and cross-border electronic records.

Importance in the Digital Era
Modern legal disputes frequently involve:

• Emails sent from foreign countries.
• Cloud-based documents.
• International business transactions.
• Cross-border electronic communications.
• Digital records stored on overseas servers.

By omitting a rigid territorial limitation, the BSA provides greater flexibility in dealing with such evidence.

Important Points

• Section 1 BSA deals with short title, application, and commencement.
• Unlike the IEA, BSA does not state that it extends to the whole of India.
• Applies to all judicial proceedings before Courts, including Courts-martial.
• Does not apply to:
  • Affidavits,
  • Proceedings before arbitrators.
• Focus shifts from territorial application to applicability based on judicial proceedings.
• Facilitates admissibility of electronic and digital evidence originating outside India.
• Reflects modernization and globalization of evidence law.

Conclusion
Section 1 of the Bharatiya Sakshya Adhiniyam, 2023 marks a significant shift from the territorial approach adopted by the Indian Evidence Act, 1872. By omitting the express reference to the Act extending to the whole of India and instead focusing on its application to judicial proceedings, the BSA accommodates the realities of the digital age. This change is particularly important for the admissibility of electronic and digital evidence originating beyond India's borders, making the law more adaptable to technological advancements and international legal interactions.