Silence After The Sanhita: Primary Evidence, Encrypted Data, And Article 20(3) Under The Bharatiya Sakshya Adhiniyam, 2023
- IJLLR Journal
- Jul 5
- 1 min read
Sunkireddy Suryaprakash Reddy, Research Scholar, School of Law, Mahindra University, Hyderabad
Dr Mandeep Kaur, Associate Professor of Law, School of Law, Mahindra University, Hyderabad
ABSTRACT
The Bharatiya Sakshya Adhiniyam, 2023 recasts the law of evidence in India while preserving the conceptual scaffolding of its colonial predecessor. By assimilating electronic and digital records into the category of documents and treating them, when produced for inspection, as primary evidence, the new statute generates an unexamined tension with the constitutional privilege against self-incrimination under Article 20(3). This article isolates a precise problem: where an accused holds the decryption key to a device whose contents constitute primary evidence, does the State’s demand for that key compel the accused to be a witness against himself? Drawing on the testimonial-physical distinction articulated in Kathi Kalu Oghad and refined in Selvi v. State of Karnataka, and engaging the comparative act-of- production jurisprudence of the United States, the article argues that compelled decryption occupies a doctrinal space the Sakshya Adhiniyam leaves silent. It proposes a calibrated, proportionality-anchored reading that distinguishes the compelled surrender of a memorized passcode from the seizure of a stored biometric, and locates the constitutional limit in the testimonial content of the act rather than in the data sought.
Keywords: Bharatiya Sakshya Adhiniyam; primary evidence; encryption; Article 20(3); self-incrimination; digital evidence.
