The Bharatiya Sakshya Adhiniyam 2023 and Social Media Data as Electronic Evidence: A Progression or Regression?

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) is a major legislative development in India marking India’s departure from the colonial era laws. The Act aims to modernize the evidentiary standards in India, especially e-evidence. Jurisdictions worldwide have adopted laws that can streamline the admissibility of electronic evidence (e-evidence). In the era of rapid global expansion of social media, its role as a primary e-evidence source has intensified. Legal issues like jurisdiction pose formidable challenges for domestic courts when attempting to use e-evidence due to the cross-border nature of these platforms. The formulation of BSA was an opportunity for the Indian legislators to simplify and adopt modern procedures for admitting e-evidence such as social media data, that would align with the more advanced countries in the world. However, a closer examination of this legislation reveals an inherent paradox where on one hand the Act brings progressive reforms such as amendment of the definition of the word “document” to include e-evidence. However, on the other hand, it has retained the same archaic requirements of S.65B of The Indian Evidence Act, 1872 (IEA). Such an approach on the part of the legislature raises some serious questions about whether the Act has genuinely advanced or was a missed opportunity on the part of the legislators to reform the provisions related to e-evidence in line with global standards. This paper seeks to delve into the provisions of BSA concerning e-evidence in the context of global practices to identify the pitfalls. It shall also delve into some jurisdictional and ethical issues as they are an inseparable part of e-evidence given its global nature. It shall highlight the immediate need for legislation that balances technological developments with judicial prudence.