This article was authored by Pushkal Kathpalia, Partner at Kathpalia & Co.

The Bhartiya Sakshay Adhiniyam, 2023 is a landmark legislation in India’s legal landscape, modernizing the evidentiary framework to align with the realities of the digital age. This new law significantly enhances the treatment of electronic evidence, providing clear and detailed guidelines that address the challenges posed by technological advancements. As digital interactions become increasingly prevalent in both personal and professional spheres, the law’s provisions are critical in ensuring that electronic records are handled with the same rigor as traditional forms of evidence.

Section 61 of the BSA, 2023[1] ensures that electronic or digital records cannot be denied admissibility solely because they are electronic. These records have the same legal effect, validity and enforceability as other documents, subject to Section 63 of BSA, 2023.

Background and Evolution of Electronic Evidence in India

Before the enactment of the Bhartiya Sakshay Adhiniyam 2023, the Indian Evidence Act, 1872, along with the amendments introduced by the Information Technology Act, 2000, provided the primary framework for the admissibility of electronic evidence. Section 65A and 65B of the Indian Evidence Act laid down the groundwork for the recognition of electronic records, but these provisions were often criticized for being inadequate in dealing with the complexities of modern digital evidence.

The need for a comprehensive overhaul became evident as courts increasingly dealt with issues related to the admissibility, authenticity, and reliability of electronic evidence. The Bhartiya Sakshay Adhiniyam, 2023 addresses these issues by introducing detailed provisions that reflect the latest developments in technology and legal practice.

Key Provisions of Bhartiya Sakshay Adhiniyam, 2023 on Electronic Evidence

1. Admissibility of Electronic Records (Section 63(1)):

Section 63 of the BSA, 2023[2] reaffirms the principles laid out in the Indian Evidence Act but with enhanced clarity and precision. Under this section, any electronic record can be deemed admissible as evidence provided it meets specific criteria as mentioned under section 63(2):

• The record must be produced by a computer during a period when it was functioning properly.
• The information contained in the record should have been regularly fed into the computer in the ordinary course of business.
• The output (electronic record) must be a reliable representation of the original data.

This section also emphasizes that the authenticity of an electronic record is crucial for its admissibility. It is mandatory for the party presenting the evidence to produce a certificate, commonly known as the Section 63(4) certificate, which must confirm the conditions under which the electronic record was produced and ensure that it has not been altered.

2. Authentication and Certification of Electronic Records (Section 63(4)):

The law introduces stringent requirements for the authentication of electronic records, which must be accompanied by a certificate signed by an individual in a responsible position within the organization that operates the computer system. This certificate must:

• Identify the electronic record and describe the manner in which it was produced.
• Provide details of the device used to produce the record, including the conditions under which the device operated.
• Confirm that the electronic record has been stored, processed, or transmitted without any alteration.

This certification is crucial in establishing the reliability of electronic records, ensuring that they can be admitted as evidence in court.

The law laid down in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors.[3], Section 63 of BSA, 2023 provides provisions relating to admissibility of electronic records. In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors.,Supreme Court held that the certificate required under Section 65(4) (now Section 63(4)of BSA, 2023) is a condition precedent to the admissibility of evidence by way of electronic record. Where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under the provisions of the Evidence Act, CPC or CrPC.

The court also held that the required certificate under Section 65B(4) (now Section 63(4) of BSA,2023) is unnecessary if the original document itself is produced. A two Judge Bench of Supreme Court had referred the question in view of the conflict between Shafhi Mohammad v. State of Himachal Pradesh[4] and Anvar P. V. v. P.K. Basheer[5]. It was held in Shafi Mohammad v. State of Himachal Pradesh (supra) that, a party who is not in possession of device from which the electronic document is produced cannot be required to produce certificate under Section 65(4) (now Section 63(4) of BSA, 2023) of the Evidence Act. In Anvar P.V. v. P.K. Basheer (supra), it was observed that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B (now Section 63(4) of BSA, 2023) are satisfied. The bench overruled the decision in the case of Shafi Mohammad v. State of Himachal Pradesh (supra).

3. Chain of Custody:

The new law while dealing with electronic evidences emphasizes on the concept of the “chain of custody,” which is essential in maintaining the integrity of electronic evidence from the moment it is collected until it is presented in court. The chain of custody refers to the documented and unbroken sequence of custody over the electronic evidence. This includes details of how the evidence was collected, handled, stored, and transferred.

Any break in this chain can lead to questions regarding the authenticity of the evidence, potentially rendering it inadmissible or diminishing its probative value. The law requires detailed documentation at every stage to ensure that the evidence has not been tampered with or altered.

4. Treatment of Metadata:

The courts should explicitly recognize the importance of metadata in the context of electronic evidence. Metadata includes information about the creation, modification, and access history of an electronic document. This data is critical in verifying the authenticity and reliability of electronic records.

Courts can now demand the presentation of metadata to establish the credibility of electronic evidence. This includes examining timestamps, user information, and access logs that can reveal whether a document has been tampered with or modified after its creation.

5. Digital Signatures and Electronic Contracts:

The law validates the use of digital signatures and electronic contracts, provided they comply with the standards set out in the Information Technology Act, 2000[6]. Digital signatures are treated as a secure and reliable means of authentication for electronic documents. Section 41(2) provides that when that when the court has to form an opinion as to the electronic  signature of any person; the opinion of the Certifying Authority which has issued the digital signature certificate is a relevant fact.

This provision is particularly significant in commercial disputes where electronically executed contracts are frequently used. The law ensures that such contracts are given the same legal standing as their paper-based counterparts, provided they meet the required standards for authenticity and security.

Section 61 of the BSA, 2023 ensures that electronic or digital records cannot be denied admissibility solely because they are electronic. These records have the same legal effect, validity and enforceability as other documents, subject to Section 63 of BSA, 2023.

6. Expert Testimony (Section 41)[7]:

The Bhartiya Sakshay Adhiniyam 2023 recognizes the complexity of electronic evidence and allows for expert testimony to interpret and explain such evidence. Section 41 enables the court to rely on the opinions of experts, such as forensic analysts, IT professionals, or cybersecurity specialists, who can provide insights into the nature and implications of the electronic evidence presented.

Experts may be called upon to analyze encrypted data, examine digital logs, or identify anomalies in electronic records. Their testimony can be crucial in helping the court understand the technical aspects of electronic evidence and in determining its relevance and reliability.

Section 41(2) provides that when that when the court has to form an opinion as to the electronic  signature of any person; the opinion of the Certifying Authority which has issued the digital signature certificate is a relevant fact.

7. Preservation and Production of Electronic Evidence:

The law mandates the preservation of electronic records that are relevant to legal proceedings. This section requires parties to take reasonable steps to ensure that electronic evidence is preserved in its original form and is not destroyed or altered.

Failure to preserve electronic evidence can lead to adverse inferences being drawn by the court, potentially weakening a party’s case. The law also provides guidelines for the production of electronic evidence, including the use of digital storage devices and secure transmission methods to maintain the integrity of the evidence.

8. Presumption as to Electronic Messages (Section 90):

Section 90[8] provides that the court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the court shall not make any presumption as to the person by whom such message was sent.

Section 90 of BSA, 2023 corresponds to Section 88A of IEA. The explanation of Section 88A of IEA which provides for definition of ‘addressee’ and ‘originator’ has been omitted.

Practical Implications for Legal Practitioners

The Bhartiya Sakshay Adhiniyam, 2023 presents both challenges and opportunities for legal practitioners. Lawyers must now possess a deeper understanding of technology and digital processes to effectively navigate cases involving electronic evidence. This includes familiarity with concepts such as data encryption, digital signatures, metadata, and cybersecurity.

Legal teams must also work closely with IT professionals and forensic experts to ensure that electronic evidence is collected, preserved, and presented in a manner that meets the stringent requirements of the new law. Any lapses in the chain of custody or failures in authentication can lead to critical evidence being dismissed, which could have significant implications for the outcome of a case.

Moreover, the law’s emphasis on expert testimony underscores the importance of engaging qualified experts who can provide credible and persuasive analysis of electronic evidence. This is particularly important in cases involving complex digital data or where the authenticity of electronic records is contested.

Conclusion

The Bhartiya Sakshay Adhiniyam, 2023 marks a significant step forward in the evolution of India’s legal system, bringing the treatment of electronic evidence in line with international standards. By providing clear and detailed guidelines for the admissibility, authentication, and preservation of electronic records, the law ensures that the judiciary can effectively handle the challenges posed by digital evidence.

For legal practitioners, this new framework demands a higher level of technical competence and a proactive approach to managing electronic evidence. As technology continues to evolve, the Bhartiya Sakshay Adhiniyam, 2023 will play a crucial role in ensuring that the legal system remains responsive to the needs of justice in the digital age.

[1] Section 61 of BSA, 2023

[2] Section 63 of BSA, 2023

[3] (2020) 7 SCC 1

[4] (2018) 2 SCC 801

[5] (2014) 10 SCC 474

[6] Information and Technology Act, 2000

[7] Section 41 of BSA, 2023

[8] Section 90 of BSA, 2023