Confessions have long occupied a precarious position within the legal system, seen as both the pinnacle of evidence and a potential source of injustice. A clear and voluntary confession can provide a seemingly irrefutable link between a suspect and a crime. However, confessions extracted through coercion or manipulations are not only unreliable but also violate an individual's fundamental right to remain silent.

This article delves into the recent transformation of the landscape of confessions in India with the introduction of the Bharatiya Sakshya Adhiniyam (BSA), which replaces the long-standing Indian Evidence Act (IEA). Historically, confession laws in India have struggled to balance the need for reliable evidence with the protection of individual rights. Here, we will examine the changes brought about by the BSA in regards to confessions, investigating how the new legislation alters the legal framework for admissibility and safeguards against coerced confessions.

Introduction
The act of confessing carries a heavy weight. It can be a liberating act of taking responsibility or a desperate plea born out of duress. Before examining how the law views confessions, let's unpack the core meaning of the word and the complexities it entails.

According to the Merriam Webster dictionary, Confession can be defined as a disclosure of one's sins in the sacrament of reconciliation.[1]

According to the Britannica dictionary, Confession is a written or spoken statement in which you say that you have done something wrong or committed a crime.[2]

The Cambridge dictionary defines confession as a statement in which you admit that you have done something wrong or illegal.[3]

While the Merriam-Webster dictionary highlights the religious context of confession, where it serves as a spiritual act of seeking forgiveness, the Britannica and Cambridge dictionaries offer more secular definitions. These secular definitions encompass a broader range of situations, from legal contexts where someone admits to a crime to personal situations where someone acknowledges a mistake.

Indian Evidence Act V/S Bharatiya Sakshya Adhiniyam

Both the Indian Evidence Act (IEA) and the Bharatiya Sakshya Adhiniyam (BSA) emphasize the significance of voluntary confessions for criminal proceedings. Let's delve into the similarities and differences in how these legislations treat confessions.

The Battle Against Coerced Confessions: IEA vs. BSA

The IEA and the proposed BSA share a common goal: protecting against unreliable confessions obtained through coercion or undue influence. However, the BSA takes a potentially more robust approach by explicitly mentioning "coercion" in its provisions.

The Existing Framework: The IEA's Approach (Sections 24, 28, 29)

• Section 24: This section deems confessions irrelevant if induced by "threat or promise" from a person in authority, aiming to prevent confessions made in exchange for leniency or to avoid punishment.^[4]
• Section 28: Recognizing the potential for rehabilitation, Section 28 allows a confession initially tainted by coercion to be considered relevant if the court believes the undue pressure has been completely removed.^[5]
• Section 29: This section clarifies that certain factors, such as promises of secrecy or the accused's intoxication, don't automatically negate the admissibility of a confession. However, the core principle remains that the confession must be voluntary and not influenced by undue pressure.^[6]

The BSA: A More Explicit Stance?

The BSA proposes a streamlined approach by combining elements from the IEA into a single provision, which is Section 22.^[7] Here's how it potentially differs:

• Inclusion of "Coercion": A significant change is the explicit mention of "coercion" alongside "inducement, threat, or promise." This potentially broadens the scope of factors that can render a confession inadmissible if the court believes it was obtained through coercion of any kind.
• Reorganization: The BSA incorporates the provisos from Sections 28 and 29 of the IEA within Section 22. This might not be a substantial change in legal effect, but it streamlines the structure of the relevant provisions.

Potential Impact of the BSA

• Heightened Scrutiny: The inclusion of "coercion" could lead to stricter scrutiny of confessions obtained in police custody. Judges might be more likely to exclude confessions if there's any suspicion of coercion being used.
• Clearer Standards: A more explicit definition of "coercion" in the BSA, accompanied by clear guidelines for law enforcement, could provide a more objective standard for courts to evaluate the admissibility of confessions.

Uncertainties and Considerations

• Defining Coercion: The definition and interpretation of "coercion" can be complex. What constitutes coercion might be subjective and open to debate in some cases.
• Burden of Proof: The burden of proving coercion typically falls on the defense, which can be challenging, especially if there's no physical evidence of abuse.

Making headway?
The proposed Bharatiya Sakshya Adhiniyam (BSA) marks a significant shift by explicitly incorporating the term "coercion" in its provisions related to confessions. This stands in contrast to the current Indian Evidence Act (IEA) which focuses on the principle of "voluntariness" but doesn't explicitly mention coercion. Let's delve into how this inclusion might expand the scope of safeguards against unreliable confessions.

The proposed Bharatiya Sakshya Adhiniyam (BSA) marks a potential turning point with its inclusion of the term "coercion" in provisions related to confessions. While this explicit mention strengthens legal safeguards, it's important to recognize that even without it; India's legal framework has established strong protections against coerced confessions.

A prime example is the case of Lalsing Sutarya Pawara vs The State Of Maharashtra[8]. Here, the defence vehemently challenged the prosecution's reliance on an extra-judicial confession made by the accused. The crux of the argument hinged on the allegation that this confession was not freely given, but rather extracted through coercion and pressure exerted by several individuals. This case exemplifies the potential for unreliable confessions if obtained under duress, raising concerns about the truthfulness of such statements.

The perils of coerced confessions are demonstrably real, as illustrated by the case of Sampath vs State Rep.[9] Here; the accused vehemently contested a confession presented by the prosecution, alleging it was obtained through threats and police brutality. The court, recognizing the potential for such coercion to taint the confession's reliability, did not accept the confession as evidence. This case underscores the challenges associated with ensuring confessions are voluntary and not influenced by undue pressure.

The Bharatiya Sakshya Adhiniyam (BSA) takes a crucial step towards addressing these concerns by explicitly including "coercion" as a factor that can render a confession inadmissible. By acknowledging the various forms of pressure that can undermine a confession's voluntariness, the BSA empowers the legal system to more effectively scrutinize confessions and exclude those obtained through coercion. This can prevent unreliable statements from influencing court decisions and potentially leading to wrongful convictions. The inclusion of "coercion" in the BSA signifies a positive development in safeguarding the integrity of the confession-taking process and promoting fairer outcomes in the Indian justice system.

Confessions to Police Officers: A Comparison of the IEA and BNS
Certainly, here's an interpretation of the changes proposed in the Bharatiya Sakshya Adhiniyam (BSA) compared to the existing provisions in the Indian Evidence Act (IEA) regarding confessions made to police officers:

Safeguarding Against Police-Coerced Confes sions: The IEA vs. BSA
Both the Indian Evidence Act (IEA) and the proposed Bharatiya Sakshya Adhiniyam (BSA) aim to safeguard against unreliable confessions obtained by police officers. However, the BSA suggests a potential tightening of these safeguards.

The Current Framework: The IEA's Approach (Sections 25, 26, 27)
The IEA outlines limitations on using confessions made to police officers:

• Section 25: This section categorically states that confessions made directly to a police officer cannot be used as evidence against the accused.[10]
• Section 26: It expands on this principle, stating that confessions made while in police custody (even if not directly to a police officer) are inadmissible unless made in the immediate presence of a magistrate.[11]

The Exception: Discovery Statements (Section 27)
The IEA recognizes a limited exception. Section 27 allows the use of information received from an accused person in police custody, even if it resembles a confession, if this information leads to the discovery of a fact (like a weapon or stolen goods). This is known as the "discovery statement" exception.[12]

The BSA's Proposal: Streamlining and Potential Ambiguity
The BSA proposes combining these provisions into a single section which is Section 23.[13]

Here's how it might differ:

• Streamlining: Merging the sections simplifies the structure.
• Potential Ambiguity: A key concern lies in the placement of the proviso regarding discovery statements (similar to Section 27 of the IEA). In the current draft, the proviso seems attached only to the rule regarding confessions made in police custody (similar to Section 26 of the IEA). This differs from the IEA, where the exception applied to both scenarios (confessions directly to a police officer and those made in custody).

The Drafting Ambiguity and its Implications
The current placement of the proviso in the BSA draft could have significant consequences:

• Narrower Interpretation: If interpreted narrowly, the discovery statement exception might only apply to confessions made in police custody, not those made directly to a police officer. This would be a stricter stance compared to the current IEA provisions.
   
• Uncertain Impact: This potential narrowing of the exception could make it more difficult for the prosecution to use information obtained from the accused in police custody, even if it leads to the discovery of relevant evidence.

Shortcomings of the BSA: Unconsidered Recommendations
The Bharatiya Sakshya Adhiniyam (BSA) represents a step forward in safeguarding against unreliable confessions. However, it falls short of addressing some key recommendations proposed by various legal bodies.

The Malimath Committee (2003) advocated for a more drastic measure - the complete repeal of sections dealing with confessions to police officers (IEA Sections 25-29). [14]

Additionally, the Law Commission has made several suggestions not incorporated in the BSA. These include:

• Creating a new provision for prosecuting police officers who inflict bodily injury on detainees, with the court presuming the officer's responsibility based on specific criteria (Law Commission of India, 1983).[15]
• Excluding facts discovered through coercion in police custody (Law Commission, 2003).
• Ensuring the relevance of information on facts regardless of where the statement was given (Law Commission, 2003).[16]
• Presuming police culpability for injuries sustained in custody, with the burden of proof shifting to the authorities (Law Commission of India, 2017).[17]

By failing to address these recommendations, the BSA may not fully achieve its objective of strengthening safeguards against unreliable confessions obtained through coercion.

A Step Forward, But Questions Remain
The proposed Bharatiya Sakshya Adhiniyam (BSA) marks a significant step towards strengthening safeguards against unreliable confessions obtained through coercion. The explicit mention of "coercion" empowers the legal system to more effectively scrutinize confessions and potentially prevent wrongful convictions. However, questions remain regarding the practical implementation of the BSA.

One key concern lies in the potential ambiguity surrounding the "discovery statement" exception. A clear interpretation that aligns with the existing legal framework is crucial to ensure a fair balance between protecting the accused and allowing the use of reliable evidence obtained through confessions. Additionally, the BSA's impact will depend on how courts interpret the new provisions and how law enforcement adapts its practices to comply with them.

Furthermore, the BSA doesn't address the potential role of electronic recordings in confessions. Implementing consistent standards for recording confessions could provide valuable evidence for assessing voluntariness and potentially deterring coercion.

Ultimately, the true impact of the BSA will be revealed through its application in real-world cases. On-going debates and judicial interpretations will refine the BSA's practical significance in safeguarding the integrity of confessions and promoting fairer outcomes in the Indian justice system.

End-Notes:

1. Confession Merriam Webster - URL: https://www.merriam-webster.com/dictionary/confession - accessed 1st June 2024
2. Confession The Britannica Dictionary - URL: https://www.britannica.com/dictionary/confession - accessed 1st June 2024
3. Confession Cambridge Dictionary - URL: https://dictionary.cambridge.org/dictionary/learner-english/confession - accessed 1st June 2024
4. Indian Evidence Act 1872
5. ibid
6. ibid
7. Bharatiya Sakshya Adhiniyam 2023
8. Berger Paints India Limited vs Ashish Chattopadhyay & Others 2011 (1) Mh.L.J.(Cri.) 333
9. Sampath vs State Rep. By The Inspector Of Police (2006), Madras High Court
10. Indian Evidence Act 1872
11. ibid
12. ibid
13. BSA 2023
14. Committee on Reforms of Criminal Justice System: Report: Volume I, 2003, Ministry of Home Affairs.
15. Law Commission of India Report 113 tenth law commission - URL: https://lawcommissionofindia.nic.in/report_tenth/ - accessed 5th June 2024
16. Law Commission of India Report 185 sixteenth law commission - URL: https://lawcommissionofindia.nic.in/report_sixteenth/ - accessed 5th June 2024
17. Law Commission of India Report 273 twenty first law commission - URL: https://lawcommissionofindia.nic.in/report_twentyfirst/ - accessed June 6th 2024