The proposed Bharatiya Sakshya (BS) Bill that seeks to replace the Indian Evidence Act of 1872 “bars the courts from inquiring into any privileged communication between Ministers and the President of India”.
Although Article 74(2) of the Constitution states this, the Union government seeks to give it legal backing by making it part of the evidence book. The government, however, has not clearly defined what constitutes “privileged communication”, leaving the provision open to interpretation.
G.S Bajpai, Vice-Chancellor, National Law University, Delhi, who was part of the government-appointed Committee for Reforms in Criminal Law that laid the framework for the three criminal codes, told The Hindu that the definition of privileged communication had to be ascertained first.
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“The Constitution is not a regular law; it must be enforced through laws. Though the provision [of courts being barred from inquiring into privileged communication] exists in the Constitution, it has been done so directly and emphatically now through the Bharatiya Sakshya Bill. But it will still be open to interpretation by courts as the government has not defined what is privileged communication,” Prof. Bajpai said.
P.D.T. Achary, former Secretary General of the Lok Sabha, concurred that the provision (that advice given by the Council of Ministers to the President of India could not be inquired into by the courts) exists in the Constitution.
The Bill adds the proviso to Section 165, which pertains to the “production of documents” on the orders of a court. “A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility......, Provided that no Court shall require any privilege communication between the Ministers and the President of India to be produced before it,” the Bill states.
The Bill, along with two other criminal codes — the Bharatiya Nyaya Sanhita Bill, 2023 and the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 — will replace the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1898, respectively. They are expected to be tabled in the winter session of Parliament beginning December 4.
The Bills were introduced on August 11 in Parliament and were referred to the Parliamentary Standing Committee on Home Affairs for examination. According to the report finalised by the committee in November, the Bill has omitted four Sections of the Indian Evidence Act, 1872, which contain colonial references and other outdated procedures.
The Union Home Secretary highlighted the major changes that have been introduced in the Bill vis-à-vis the Indian Evidence Act, including the deletion of British legacy references.
The words ‘Vakil’, ‘Pleader’ and ‘Barrister’ have been replaced with the word ‘Advocate’, and Section 166 relating to the power of the jury to put forward questions, etc., has been deleted as the jury system has already been abolished in India.
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“Words like ‘Parliament of the United Kingdom’, ‘Provincial Act’, ‘notification by the Crown Representative’, ‘London Gazette’, ‘any Dominion, colony or possession of his Majesty’, ‘Jury’, ‘Lahore’, ‘United Kingdom of Great Britain and Ireland’, ‘Commonwealth’, ‘Her Majesty or by the Privy Council’, ‘Her Majesty’s Government’, ‘copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s Printer’, ‘possession of the British Crown’, ‘Court of Justice in England’, ‘Her Majesty’s Dominions’, ‘Barrister’ have been deleted. The terms like lunatic, unsound mind, etc. have been brought in line with the modern terms,” the report said.
In the proposed Bill, the definition of “documents” has been expanded to include electronic or digital records on emails, server logs, documents on computers, laptops or smartphones, messages, websites, and locational evidence and voice mail messages stored on digital devices. The definition of “evidence” has been expanded to include any information given electronically that will enable the appearance of witnesses, accused, experts, and victims through electronic means.
