Primary vs. Secondary Evidence: Unveiling the Truth in Court Under the Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023)

A Comprehensive Guide for Legal Professionals and Litigants

In the dynamic realm of Indian legal reform, the Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023) stands out as a landmark development, formally replacing the Indian Evidence Act, 1872, a colonial-era statute. Coming into force on July 1, 2024, this legislation seeks to revamp the evidentiary process in line with modern realities, especially the rise of digital documentation and electronic records.

In this new legal framework, understanding the difference between primary evidence and secondary evidence has become more important than ever. Whether you’re a legal practitioner, a law student, or a litigant, knowing what evidence holds the most weight—and when exceptions apply—can make all the difference in court.

This in-depth guide explores:

• What qualifies as primary evidence under BSA 2023,
• In what situations secondary evidence can be used,
• And how the updated provisions impact digital records and courtroom practices.

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What is Primary Evidence under the BSA 2023?

Under the Bharatiya Sakshya Adhiniyam, 2023, primary evidence continues to hold the highest evidentiary value. It is considered the most reliable and original form of proof that must be presented to the court directly. Section 57 of the BSA 2023 reaffirms the foundational principle similar to the repealed Section 62 of the Indian Evidence Act, which defined primary evidence.

According to Section 57, primary evidence means:

“The document itself produced for the inspection of the Court.“

In simpler terms, it refers to the original document or thing itself, rather than any copy or substitute.

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✅ Why Primary Evidence is the Most Reliable Form of Proof

1. Authenticity and Accuracy
The original document reduces the risk of manipulation or fabrication. It allows the court to examine the handwriting, signatures, seals, or other marks of genuineness.

2. Highest Probative Value
Since the evidence is direct and original, it carries maximum legal weight, leaving little room for dispute.

3. Direct Examination
Primary evidence doesn’t require corroboration or interpretation through other sources. It speaks for itself in a clear and authoritative manner.

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📌 Key Features and Examples of Primary Evidence under BSA 2023 (Section 57)

The Bharatiya Sakshya Adhiniyam, 2023 has modernized the concept of primary evidence to include digital and electronic records, which were earlier mostly treated as secondary evidence.

Traditional Forms of Primary Evidence:

• Original Contracts and Agreements: The signed contract produced in court.
• Wills and Testaments: The actual document executed by the testator.
• Property Deeds: The original sale or transfer deed.
• Bank Documents (Physical): Hard copy statements issued by the bank.

Expanded Digital Scope under BSA 2023:

The law introduces new Explanations to Section 57 to broaden what qualifies as primary evidence in the electronic age:

• Explanation 3: Documents produced by a uniform process (e.g., printing, lithography, photography) – each copy is considered primary.
• Explanation 4: If an electronic or digital record is created/stored simultaneously or sequentially in multiple files, each file is treated as primary evidence.
• Explanation 5: An electronic or digital record taken from proper custody is considered primary evidence unless specifically challenged for authenticity.
• Explanation 6: In case of video recordings stored and broadcast simultaneously (like CCTV or livestreams), each stored version qualifies as primary evidence.
• Explanation 7: If a digital record exists in multiple locations or storage systems (e.g., backups, auto-saves, temporary folders), each version is treated as a separate primary source.

🔑 Key Characteristics of Primary Evidence under the Bharatiya Sakshya Adhiniyam, 2023

The Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023) reinforces the importance of primary evidence as the most reliable form of proof in judicial proceedings. Whether physical or electronic, primary evidence holds a distinctive status due to its originality and direct nature. Below are the core features that define primary evidence under the new law:

1️⃣ Original Document – Physical or Electronic

The defining attribute of primary evidence is that it refers to the original document or item itself—whether it’s in physical form or an admissible electronic format (as recognized in Section 57 and its explanations). This includes:

• Hard copies like signed contracts, wills, deeds.
• Digital records, such as original emails, e-signed PDFs, or files retrieved from proper electronic custody.

📌 Under BSA 2023, even electronic documents stored simultaneously or sequentially in multiple locations may qualify as primary evidence.

2️⃣ No Mandatory Prior Notice Requirement

One of the procedural advantages of presenting primary evidence is that no advance notice needs to be served to the opposing party before producing it in court. Unlike secondary evidence (which often requires notice when originals are not available), primary evidence is freely admissible without such formal prerequisites.

3️⃣ Presumption of Authenticity

Primary evidence enjoys a presumption of genuineness when submitted before the court. This means the court generally accepts it at face value unless:

• Its authenticity is challenged by the opposing side, or
• Circumstances raise doubts about its origin or integrity.

🧠 This presumption strengthens the credibility of primary evidence in early stages of trial or litigation, although it can still be rebutted with contrary proof.

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📄 The Necessity of Alternatives: When Secondary Evidence Becomes Admissible Under BSA 2023

While primary evidence holds the highest probative value in legal proceedings, there are many instances where the original document is unavailable—it may be lost, destroyed, concealed, or beyond the party’s reach. In such situations, the law provides a remedy through secondary evidence, albeit with strict safeguards.

Under the Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023), which supersedes the Indian Evidence Act, 1872, Section 58 defines what qualifies as secondary evidence, while Section 60 outlines the conditions under which it may be accepted by the court.

📌 What is Secondary Evidence under BSA 2023?

Secondary evidence refers to alternative forms of proof used when the original (primary) document cannot be produced. Unlike primary evidence, which is direct and original, secondary evidence is derivative and thus considered less authoritative. The courts admit it only when a valid justification is provided for the non-production of the original.

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📚 Types of Secondary Evidence under Section 58 of BSA 2023

The BSA 2023 continues with several classic forms of secondary evidence and also introduces new categories reflecting modern needs.

1️⃣ Certified Copies of Public Documents

• Includes documents such as birth certificates, court judgments, land records, etc.
• Must be issued and certified by a competent public authority.
• These remain among the most reliable forms of secondary evidence.

2️⃣ Mechanically Reproduced Copies (If Proven Accurate)

• Includes copies generated by machines or digital means that ensure a high degree of accuracy.
  • Photocopies/Xerox copies (if it’s shown they are true representations of the original).
  • Scanned images of documents (if not qualifying as primary electronic evidence).
  • Photographs (if it’s clear that the subject photographed was the original document).
  • Lithographed or printed copies made from the same master template or block.

3️⃣ Copies Made from or Compared with the Original

• These are handwritten or typed copies that were either:
  • Created from the original, or
  • Compared side-by-side for verification.
• The comparison must be proven through supporting testimony or documentation.

4️⃣ Counterparts of Multi-Party Documents

• In documents executed in multiple counterparts, one counterpart may be secondary evidence against a party who didn’t sign it.
• For example, a co-signed agreement where the party being sued has not signed the copy presented.

5️⃣ Oral Accounts of a Document’s Contents

• A witness who has seen and read the original may testify to its contents.
• This is considered the weakest form of secondary evidence.
• Courts apply strict scrutiny to ensure the accuracy and credibility of the testimony.

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🔁 New Categories Introduced by BSA 2023

The BSA 2023 introduces three new forms of secondary evidence to address practical realities and expert reliance in court proceedings:

6️⃣ Oral Admissions about Document Contents

• Oral statements made by a party admitting the contents of a document.
• These admissions must be reliable and relevant to be accepted.

7️⃣ Written Admissions of Contents

• A party may provide a written acknowledgment of what a document contains.
• This can substitute for the original if the document is lost or not available.

8️⃣ Expert Testimony on Complex Documents

• Applies when a document consists of voluminous records (e.g., ledgers, account books).
• An expert like an accountant or forensic auditor may testify based on their examination of the original.
• This is especially helpful in financial fraud cases, large civil disputes, or business audits.

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📜 Legal Requirement: Admissibility Conditions under Section 60

Before accepting secondary evidence, courts require that:

• There is a valid reason why the original is not produced.
• The copy or substitute must be accurate and trustworthy.
• The method of its creation or source of knowledge must be clearly explained.

Common acceptable reasons include:

• Loss or destruction of the original.
• Withholding by the opposing party despite notice.
• Original held in inaccessible foreign jurisdiction.
• Document is of public nature and certified copy is available.

⚖️ The Crucial Conditions for Admissibility of Secondary Evidence

(Section 60, Bharatiya Sakshya Adhiniyam, 2023)

In the judicial process, secondary evidence plays a vital backup role when the original (primary) document is unavailable. However, courts do not accept secondary evidence automatically—strict conditions must be met.

Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 (which replaces Section 65 of the Indian Evidence Act, 1872) lays down a specific set of situations under which secondary evidence may be lawfully admitted.

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📘 Understanding the Rule

To present secondary evidence, a party must first justify the absence of primary evidence, proving that:

• The original cannot be produced despite reasonable efforts.
• The failure is not due to their own negligence or wrongdoing.

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🔍 Grounds for Admissibility of Secondary Evidence Under Section 60, BSA 2023

🔹 1. Original in Possession of the Adverse Party or an Unreachable Third Party

(Section 60(a))
Secondary evidence is permitted when:

• The original is with the opposing party.
• The person holding the original is beyond the court’s jurisdiction or refuses to comply.
• The person is legally obligated to produce the original (as per Section 64 BSA 2023, replacing Sec. 66 of IEA), but fails to do so even after being served notice.

📌 Example: You request your opponent to produce the original property deed. They refuse. You can then submit a verified copy as secondary evidence.

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🔹 2. Admission by the Opposing Party

(Section 60(b))
If the other party (or their legal representative) admits in writing the existence, contents, or condition of the original document, secondary evidence becomes admissible.

📌 Example: The defendant admits in their written reply that the agreement existed and contained certain terms.

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🔹 3. Loss or Destruction of the Original

(Section 60(c))
If the original document is:

• Lost or destroyed, or
• Cannot be produced for reasons not due to any fault of the party,
  the court may allow secondary evidence.

📌 Example: The original will was destroyed in a fire. If you can prove the incident and efforts to retrieve it, a copy may be accepted.

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🔹 4. Original Document Not Easily Movable

(Section 60(d))
When the original is physically immovable or impractical to bring to court (like wall engravings or monuments), then a photograph, sketch, or descriptive evidence may be used instead.

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🔹 5. Original is a Public Document

(Section 60(e))
If the original is a public document under Section 74 BSA 2023 (e.g., court judgments, FIRs, land records), then certified copies can be admitted as secondary evidence.

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🔹 6. Certified Copy Permitted by Law

(Section 60(f))
If the law—either BSA 2023 or any other prevailing law—permits the use of certified copies, those are admissible even if the original is available.

📌 Common Example: Certified registration copies of sale deeds under the Registration Act.

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🔹 7. Voluminous Documents – General Result

(Section 60(g))
When dealing with a large volume of accounts or documents (such as company ledgers), a summary or general result presented by an expert (e.g., a chartered accountant) is admissible.

📌 Example: A CA testifies after reviewing 5 years of complex financial records that cannot be brought in full to court.

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📎 Important Considerations Before Submitting Secondary Evidence

✅ 1. Prove the Unavailability of the Original

Before the court can consider the secondary version, you must show:

• Loss, destruction, or legal obstacles to accessing the original.
• You made honest and diligent efforts to retrieve it.

✅ 2. Ensure Accuracy

• The copy or version submitted must be faithfully reproduced.
• If electronic, it must meet the conditions under BSA 2023 for secondary admissibility (especially when not qualifying as primary under Section 57).

✅ 3. Notice to Produce (Section 64 BSA 2023)

If the original is with the other party, a notice to produce must be issued. If they fail to comply, you can proceed with secondary evidence.

✅ 4. Judicial Discretion

The judge has the final say. The court evaluates:

• The credibility of your explanation,
• The reliability of the secondary evidence, and
• The surrounding circumstances of non-production.

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🎯 Why the Distinction Between Primary and Secondary Evidence Matters

📌 Strategic Value in Legal Practice

Understanding the admissibility rules of secondary evidence is critical because:

• 🔒 Primary evidence carries more weight—especially under the updated rules that elevate certain electronic records.
• 🧾 Secondary evidence faces stricter scrutiny, and its success depends on careful groundwork and strong justification.
• ⚠️ Opposing counsel may object to secondary evidence aggressively, especially in cases involving digital records, photocopies, or oral admissions.
• 🕒 Failure to follow procedures can cause delays or rejection of key evidence, weakening your case.

✅ Conclusion: Advancing Truth Through Reformed Evidentiary Law Under BSA 2023

The Bharatiya Sakshya Adhiniyam, 2023 marks a progressive shift in India’s legal landscape by modernizing the framework of evidence law, especially regarding primary and secondary evidence. With technology now deeply embedded in both personal and professional life, the recognition of electronic records as primary evidence reflects a timely and necessary legal adaptation.

While original documents continue to hold the highest evidentiary value, the law wisely provides for the use of secondary evidence in genuine cases of unavailability—ensuring that justice is not derailed by technical limitations. However, the admissibility of such secondary evidence comes with strict conditions, placing a greater responsibility on legal practitioners to prepare and justify their use diligently.

For lawyers, litigants, and law students, mastering the updated provisions of the BSA 2023 is now essential. A well-prepared case that adheres to these evidentiary standards not only strengthens courtroom arguments but also reinforces the integrity of the judicial process.

By embracing this legal reform, the system moves closer to its core objective—uncovering the truth through fair, reliable, and admissible evidence. The future of evidence law in India is not just more efficient—it’s also more aligned with the realities of the digital age.