This article is written by Jayita Gupta, Madhusudan Law University.
Keywords: Bharatiya Sakshya Adhiniyam, Digital Evidence, Electronic Records, Section 63 BSA, Admissibility of Electronic Evidence.
Dealing with Indian litigation today, everything runs on digital data, not paper. A cheque bounce trial: it’s all about the server logs from banks. Matrimonial disputes come down to WhatsApp chats, and a murder trial turns on tower-location information and CCTV footage dragged from multiple DVRs. The Indian Evidence Act, 1872, was enacted before the widespread use of digital technology. Although the Information Technology Act, 2000 introduced provisions concerning electronic records, subsequent judicial decisions, particularly those interpreting Section 65B, demonstrated continuing challenges concerning the proof and admissibility of electronic evidence. The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which came into force on 1 July 2024, substantially revises the statutory framework governing electronic and digital evidence.
There are three main claims:
First, a significant change introduced by Section 63(4) and its Schedule is the requirement concerning certification, including disclosure of the hash value and certification by an expert. The Supreme Court has considered the constitutional challenge to these requirements and recognised their connection with ensuring the authenticity and integrity of electronic evidence.
Second, the requirement of certification cannot be understood simply through the shorthand proposition that “no certificate is required where the original device is produced”. Whether Section 63 applies depends upon the manner in which the electronic record is produced and proved before the Court.
Third, despite these developments, practical questions remain concerning cloud-based evidence, encrypted devices, deleted or recovered data, third-party custodians and electronic evidence stored across jurisdictions. The BSA provides a more detailed statutory framework for electronic evidence, but several practical questions concerning access, preservation, authentication and cross-border evidence remain open to further judicial and procedural development.
Statutory Framework for Digital Evidence under the BSA
Expanded Definitions
Section 2(1)(d) defines “document” to include anything recorded on any substance by letters, numbers, marks, specifically covering emails, logs, files on computers, smartphones, whatever. Section 2(1)(e) correspondingly widens “evidence” to cover documentary evidence in electronic form. The approach is deliberate: the BSA doesn’t single out digital records as some weird category needing special rules; it tucks them into the routine definition of “document” and saves proof for Section 63.
In that way, electronic evidence is treated like any other record right from the start. Inclusion in the definitional stage is the most important thing to understand about the Act’s approach to digital evidence, and it explains that Sections 61, 62 and 63 have to be read together and they work as a bundle.
Recognition and Legal Effect Sections 61 and 62:The Non-Discrimination Clause
Section 61 states that an electronic or digital record cannot be denied admissibility just because it’s electronic and that such a record has the same legal impact as any other document, subject to Section 63. Section 62 states that the contents of an electronic record are to be proved in accordance with Section 63. Together, these sections establish that electronic records are just as valuable as paper documents while channeling the technical requirements of proof into Section 63.
Primary Evidence and Electronic Records – Section 57
Section 57 defines primary evidence and expressly incorporates several situations involving electronic and digital records. Its explanations recognise, among other things, circumstances where an electronic or digital record is stored in multiple files, where a record is produced or stored simultaneously or sequentially in multiple electronic files or systems, and where an electronic record is produced from proper custody. The provision also recognises certain automatically stored or transmitted electronic records as primary evidence. These provisions acknowledge that, unlike traditional physical documents, electronic records may legitimately exist in multiple identical or interconnected forms.
Admissibility of Electronic Records – Section 63
Section 63(1) treats any computer output, whether printed, stored, or copied on optical, magnetic, or semiconductor media, as a document, admissible without production of the original, so long as you meet the conditions laid out. Section 63(2) repeats the four conditions from Section 65B(2): regular use of the device, regular feeding of the information in the ordinary course of activity, proper operation of the device and derivation of the output from information fed into the system in the ordinary course.
The Certificate under Section 63(4) and the Schedule
Section 63(4), read with the Schedule, prescribes the form and contents of the certificate accompanying electronic evidence produced through the statutory computer-output mechanism. The certificate requires information identifying the electronic record, describing the manner of its production and providing particulars of the relevant device or system. It is divided into Part A, to be completed by the person in charge of the computer or communication device or the management of the relevant activities, and Part B, to be completed by an expert. The Schedule also requires disclosure of the hash value of the electronic record.
This dual-signature, hash-disclosing format answers a specific weakness of the old Section 65B(4) certificate. Under the old Section 65B(4), the party producing evidence could self-certify authenticity without any independent check. Requiring a second, technically qualified signatory, and requiring that signatory to state a verifiable cryptographic value rather than a bare assertion of integrity, converts the certificate from a formality into something a forensic expert can actually contest in cross-examination. The two-part structure was a considered legislative choice, not an incidental one, as confirmed by the Supreme Court in the case of “Pune Bar Association v. Union of India (2026)”.
Case Laws
Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473
This landmark decision of the Supreme Court overruled the earlier liberal approach taken in State (NCT of Delhi) v. Navjot Sandhu, held that a certificate under Section 65B(4) is a condition precedent to the admissibility of secondary electronic evidence; oral evidence cannot substitute for it. The judgment’s reasoning rests on the susceptibility of electronic records to undetectable alteration, which is precisely the concern Section 63(4)’s hash-value requirement is designed to address more rigorously than Anvar’s framework could, since Anvar required only a certificate, not a verifiable cryptographic value.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1
A three-judge bench reaffirmed Anvar, held that Sections 65A and 65B constitute a complete code, excluding the general provisions governing secondary proof as evidence, and clarified that a certificate may be obtained and produced at a later stage of the proceedings where a party demonstrates that it was not possible to do so. The bench also supplied the primary evidence qualification discussed above that production of the original device dispenses with the certificate only where the record is being proved through the device itself, not through a derivative copy. Both holdings continue, without modification, to govern Section 63.
Tomaso Bruno v. State of Uttar Pradesh and Shafhi Mohammad v. State of Himachal Pradesh
In Tomaso Bruno v. State of Uttar Pradesh (2015) 7 SCC 1788, the Court held that the available CCTV footage can draw an adverse inference against the prosecution. In Shafhi Mohammad v State of Himachal Pradesh (2018) 2 SCC 801, a two-judge bench attempted to relax the certificate requirement where the device belonged to a third party outside the producing party’s control. Arjun Panditrao subsequently confined Shafhi Mohammad sharply, holding that the certificate requirement cannot be waived merely on grounds of practical difficulty, though a party genuinely unable to obtain a certificate may seek the court’s directions to secure one.
Practical Implications and Emerging Evidentiary Challenges
Finally, under the Bharatiya Sakhsya Adhiniyam (BSA), electronic material counts as a document. But, honestly, the toughest questions have popped up in recent years, and the statute can’t handle them:
Cloud-stored data: A large share of evidence relevant to Indian proceedings- email, WhatsApp backups, enterprise records is now stored on servers operated by platforms with no physical presence or “person in charge” answerable to an Indian court under the Section 63(4) contemplation.
Encrypted devices: Section 63 assumes the electronic record can be extracted and hashed. Strong encryption means you may not be able to get anything without the user’s help, and Indian law doesn’t have a clear way to force decryption. The constitutional protection against self-incrimination under Article 20(3) has not yet been authoritatively applied to the specific question.
Deleted and recovered data: Forensic recovery of deleted files raises a hash-value problem the Schedule does not anticipate: the hash of a file as recovered from unallocated disk space will typically differ from the hash of that file as it existed before deletion, since recovery tools reconstruct data rather than retrieve an untouched original.
Third-party and intermediary certificates: Sometimes the “person in charge” is a bank, telecom operator, or social media company. These folks have no stake in the outcome and no duty to come to court. So, their signature for Part A might be impossible to cross-examine unless they’re formally summoned. The certificate presumes an adversarial party will produce its own signatory, but that’s not how third-party custodians work.
Conclusion
The Bharatiya Sakshya Adhiniyam, 2023 represents more than a renumbering of the earlier provisions governing electronic evidence. Section 63 replaces the earlier Section 65B framework and introduces a prescribed certification mechanism, including disclosure of hash values and expert certification. Section 57 also expressly recognises several forms of electronic records as primary evidence. These changes provide a more detailed statutory framework for addressing the evidentiary characteristics of digital records.
It has not really accounted for cloud storage, encryption, and recovery of deleted data or cases where the custodian is not a party or when requests cross borders. The Pune case sorted the constitutional side cleanly enough. It does not and really could not fix these other operational questions. Those will need future amendments or forensic standards and some judicial work in the meantime.
Frequently Asked Questions
1. Is a Section 63 certificate mandatory for every electronic record?
No. It is required for secondary electronic evidence. Where the original device is produced, and the party proves its contents through the device itself rather than a derivative copy, the certificate is not required; however, the underlying chain of custody must still be independently established, and the exemption applies more narrowly than practitioner shorthand often suggests (see the discussion above).
2. Who must sign the Section 63 certificate?
Two persons: the person in charge of the device or of the relevant management activity (Part A), and an expert (Part B), who discloses the record’s hash value. Following Pune Bar Association, an expert need not necessarily be a Section 79A-notified Examiner of Electronic Evidence; however, the trial court must be satisfied of the signatory’s genuine expertise based on unimpeachable material.
3. Do Anvar P.V. and Arjun Panditrao still apply after the BSA?
Yes. Both judgments interpreted Section 65B, but their core holdings that the certificate is a condition precedent for secondary electronic evidence, and that production of the original device (not a derivative copy) is what dispenses with it continue to govern Section 63.
4. Can WhatsApp chats and CCTV footage be admitted under the BSA?
Yes, as secondary evidence governed by Section 63, subject to the certificate and hash-value requirements; however, where the custodian is a third-party platform or intermediary, obtaining a compliant Part A signatory can be difficult, as discussed above.
5. What did the Supreme Court decide in Pune Bar Association v. Union of India (2026)?
It upheld the constitutional validity of Section 63(4) and the Schedule against a challenge that the dual-certificate, hash-disclosure requirement was arbitrary, and explained without laying down a binding rule that persons with demonstrated expertise in computer science and cyber forensics, not only Section 79A notified examiners, may sign Part B of the certificate.
