Abstract
The Bhartiya Sakshya Adhiniyam, 2023 (BSA) has repealed and replaced the colonial Indian Evidence Act, 1872, bringing with it a restructured and modernized framework of evidentiary law. Among the doctrines retained, the burden of proof stands as a cardinal principle in both civil and criminal adjudication. This article critically examines whether the BSA introduces substantive change in the doctrine of burden of proof or whether it largely continues the settled law with cosmetic and structural improvements. It highlights that while the essential principles remain intact, the Act adapts the doctrine to the needs of the digital age through emphasis on electronic records, gender-neutral language, and reorganized provisions.
Introduction
Evidence law forms the backbone of judicial decision-making. It lays down the principles that govern what facts may be proved, how they may be proved, and who must prove them. Within this framework, the doctrine of burden of proof is central, as it determines the allocation of responsibility between the parties in litigation.
The Indian Evidence Act, 1872 contained elaborate provisions on this subject under Sections 101 to 114. The Bhartiya Sakshya Adhiniyam, 2023, which came into force alongside the Bhartiya Nyaya Sanhita and Bhartiya Nagarik Suraksha Sanhita, replaces the colonial enactment with an updated version. But does it transform the doctrine of burden of proof, or merely repackage it in a modern form?
This article answers that question by analysing the continuity, change, and practical implications of the doctrine under the BSA.
The Concept of Burden of Proof
The burden of proof is not a single concept but a twofold responsibility:
1.Legal Burden (Persuasive Burden): The obligation on a party to prove its case to the required standard. In criminal cases, this lies on the prosecution, while in civil cases, it usually lies on the plaintiff.
2. Evidentiary Burden (Onus of Proof): The responsibility to produce sufficient evidence to make an issue triable. This burden may shift during the course of a trial depending on how evidence is presented.
The distinction was famously articulated in Woolmington v. DPP (1935 AC 462), where the House of Lords held that the prosecution must prove the accused’s guilt beyond reasonable doubt, while the defence only carries a lighter evidentiary burden. Indian courts, such as in Kali Ram v. State of Himachal Pradesh (AIR 1973 SC 2773), have repeatedly reaffirmed this principle.
Continuity with the Indian Evidence Act, 1872
1. General Rule of Proof
The foundational rule of Section 101 of the 1872 Act—that the party who asserts must prove—has been carried forward into the BSA without substantive change. The plaintiff or prosecution must establish their case, while the defendant’s role is largely responsive.
2. Presumption of Innocence in Criminal Cases
The presumption of innocence, considered a human right under Article 21, remains intact. The prosecution must establish guilt beyond reasonable doubt. The BSA does not dilute this safeguard, maintaining continuity with the earlier law.
3. Presumptions and Illustrations
Presumptions such as legitimacy of children, possession of stolen property, or dowry death continue under the BSA. They are reorganized, but their substantive effect remains identical.
4. Judicial Discretion
The court’s power to draw presumptions from facts and circumstances is retained, ensuring consistency in judicial practice.
Change and Modernization under the BSA
1. Structural Reorganization
The provisions on burden of proof have been restructured and condensed into fewer sections, arranged thematically. This enhances accessibility but does not change the doctrine itself.
2. Integration of Digital Evidence
One of the most significant reforms is the explicit recognition of electronic records. Under the Evidence Act, electronic records were included through later amendments (e.g., Section 65B). The BSA now fully integrates them, imposing a burden on parties to prove authenticity, reliability, and integrity of digital evidence.
3. Gender-Neutral and Simplified Language
The BSA eliminates colonial and gendered terminology. Words like “man” or “he” have been replaced by neutral terms, making the law inclusive. This change, while linguistic, aids better interpretation.
4. Expanded Presumptions for Technology
The Act empowers courts to presume genuineness of certain electronic communications and digital signatures once statutory conditions are satisfied. This subtly shifts the evidentiary burden onto the party challenging such records.
Burden of Proof in Civil Cases under the BSA
In civil disputes, the general principle is that the plaintiff must prove their case. The defendant need not prove anything until the plaintiff establishes a prima facie case.
• Example: In a suit for recovery of money, the plaintiff must prove the existence of debt. Once done, the evidentiary burden may shift to the defendant to show repayment or discharge.
This principle is unchanged under the BSA, preserving continuity with Section 101 of the 1872 Act.
Burden of Proof in Criminal Cases under the BSA
Criminal jurisprudence places a heavier standard of proof on the prosecution.
• The prosecution must prove guilt beyond reasonable doubt.
• The accused is presumed innocent unless the law specifically provides otherwise.
• Certain statutes (NDPS Act, Dowry Prohibition Act) impose a reverse burden on the accused, but these are exceptional.
The BSA does not introduce any radical departure. Instead, it reinforces settled law by reorganizing it into a clearer structure.
Reverse Burden of Proof: Continuity and Debate
Reverse burden provisions—where the accused must disprove a presumption—remain an exception under the BSA.
• Example: In cases of dowry death, once it is shown that a woman died under unnatural circumstances within seven years of marriage and faced cruelty for dowry, the burden shifts to the husband or relatives.
• Courts, however, maintain that even reverse burden statutes must be read in light of the presumption of innocence (State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254).
Thus, while reverse burdens continue, the BSA does not expand them beyond existing limits.
Digital Evidence and New Burdens
Perhaps the most practical change introduced by the BSA is in relation to electronic evidence.
• Parties producing electronic records must prove their authenticity and compliance with statutory requirements.
• Courts may presume the genuineness of digital signatures and electronic agreements, unless challenged.
• This represents a modern shift in evidentiary practice, making the burden of proof more technical in digital disputes.
Judicial Interpretation: Likely Trends
Given that the substantive law remains the same, courts are likely to continue applying established precedents on burden of proof. However, in cases involving cyber evidence, digital contracts, and electronic communications, judicial interpretation will evolve, gradually shaping the contours of the new law.
Conclusion
The Bhartiya Sakshya Adhiniyam, 2023 represents continuity with modernization. The core doctrine of burden of proof—that the party who asserts must prove, and that the prosecution must prove guilt beyond reasonable doubt—remains unchanged.
At the same time, the Act introduces structural clarity, linguistic simplification, and technological adaptation, especially concerning electronic evidence. These changes are evolutionary, not revolutionary. The result is a statute that maintains the stability of long-settled doctrines while equipping the law of evidence for the digital age.
References
1. The Bhartiya Sakshya Adhiniyam, 2023.
2. The Indian Evidence Act, 1872.
3. Woolmington v. DPP, 1935 AC 462 (HL).
4. Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773.
5. State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254.
6. Ratanlal & Dhirajlal, Law of Evidence.
7. Law Commission of India Reports on Evidence Law.
FAQs
Q1. Has the doctrine of burden of proof changed under the BSA?
No, the basic rule that the party asserting must prove remains the same.
Q2. What is the biggest practical change?
The integration of digital evidence and the requirement to prove its authenticity is the most significant update.
Q3. Does the prosecution still bear the burden in criminal trials?
Yes, the prosecution must prove guilt beyond reasonable doubt, and the presumption of innocence continues.
Q4. Are reverse burden provisions expanded?
No, they remain confined to specific statutes and situations, as under the earlier law.
Q5. Is the BSA a change or continuity?
It is best described as continuity with modernization—retaining settled doctrines while adapting to present-day realities.
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