Author’s Note
As the world transitioned into an era of digital communication—where obligations and agreements often crystallize over emails, chats, and messages—the law had to evolve to address the evidentiary value of such electronic records. The Information Technology Act, 2000 introduced Sections 65A and 65B into the Indian Evidence Act, 1872 (IEA), formally recognizing electronic evidence.
The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaces the IEA, was expected to resolve long-standing ambiguities surrounding the admissibility and proof of electronic evidence. However, instead of clarifying the legal position, the BSA has created fresh confusion on how electronic records are to be classified, certified, and proved in court.
This article critically examines the journey of electronic evidence jurisprudence in India and the structural inconsistencies in the new law.
1. The Judicial Evolution: From “Navjot Sandhu” to “Arjun Panditrao”
The interpretation of Section 65B of the IEA has witnessed a turbulent judicial journey:
- In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600, the Supreme Court held that electronic records such as call data were admissible even without the certificate required under Section 65B(4).
- In Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473, a three-judge bench overruled Navjot Sandhu, holding that Sections 65A and 65B are a complete code for electronic evidence, and certification is mandatory.
- In Tomaso Bruno v. State of U.P. (2015) 7 SCC 178, the Court reverted, allowing proof under Section 65 of the IEA, thereby reopening the controversy.
- Later, in Sonu v. State of Haryana (2017) 8 SCC 570, the Court termed Section 65B’s certification a procedural requirement, waivable if not objected to during trial.
- Then, Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 allowed courts to relax the certification requirement in the “interest of justice.”
Finally, the uncertainty was settled in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1, where a three-judge bench overruled Shafhi Mohammad and reaffirmed that a certificate under Section 65B(4) is mandatory whenever the original electronic record is not produced.
This decision restored coherence and reaffirmed procedural integrity. Unfortunately, the Bharatiya Sakshya Adhiniyam, 2023 does little to build upon that clarity.
2. The Bharatiya Sakshya Adhiniyam (BSA), 2023 — A Missed Opportunity
The BSA, intended to modernize the law of evidence, fails to meaningfully clarify the rules for electronic evidence. Instead, it introduces overlapping definitions and procedural ambiguities that blur the distinction between primary and secondary electronic evidence.
3. Confusion in Definition: Document vs. Computer Output
The BSA now defines a “document” to include electronic and digital records, supplemented by Illustration (vi) to Clause 2(c), which lists examples such as emails, SMS, and CCTV recordings.
However, this definition conflicts with Clause 63(1), which defines “computer output” using a non-obstante clause. Because Clause 63(1) overrides all other provisions, it effectively ousts the broader definition of electronic records under Clause 2(c). Consequently, electronic records are narrowly treated as “computer outputs” under Clause 63, creating inconsistency between clauses intended to work harmoniously.
Moreover, unlike the IEA, the BSA does not reference the Information Technology Act, 2000 for definitions of “electronic form” or “electronic record,” leaving key terms undefined and used interchangeably.
4. The Certificate Conundrum: Primary vs. Secondary Evidence
Clause 56 of the BSA provides that the contents of documents may be proved by primary or secondary evidence, and by extension, electronic records too. Clauses 57 and 62 further state that digital data and video recordings may be produced for court inspection as primary evidence — a progressive inclusion that recognizes the reality of modern technology.
However, Clause 63 reintroduces the requirement of a certificate, similar to Section 65B(2) and (4) of the IEA. This clause mandates certification for all “information contained in an electronic record,” treating it as a “document” only when accompanied by a certificate.
The result is a legislative paradox:
- While one part of the BSA allows electronic evidence as primary evidence,
- Another part (Clause 63) nullifies that freedom, making certification mandatory even when the original source is directly accessible.
This inconsistency renders Clauses 56, 57, and 62 effectively redundant.
5. The Phrase “Each Instance” — A New Layer of Confusion
Clause 63(4) introduces the phrase “each instance”, suggesting that every piece of electronic evidence may require a separate certificate. This would impose an unnecessary procedural burden — imagine multiple certificates for a single chain of emails or chat conversations. Such rigidity runs contrary to judicial efficiency and technological practicality.
6. The Path Forward — Clarity, Categorization, and Caution
Given the rapid evolution of technology and the advent of artificial intelligence, deepfakes, and manipulated data, the law must balance authenticity with accessibility. The following reforms are necessary:
(a) Definitional Clarity
The terms electronic record and electronic document should be redefined and harmonized, ideally by cross-referencing the Information Technology Act, 2000.
(b) Categorization of Electronic Evidence
The law should distinguish between:
- Primary Electronic Evidence — such as original emails, text messages, or chats that can be directly displayed in court on electronic devices. These should not require certification.
- Secondary Electronic Evidence — such as copies, printouts, or data retrieved from servers or third-party storage, which should require a certificate or affidavit of authenticity.
(c) Affidavit for Secondary Evidence
Instead of the rigid certificate system, a sworn affidavit by the person producing the evidence should suffice, stating the source, method of extraction, and reasons for non-production of the original.
This affidavit-based model aligns with global practices — notably the U.S. Federal Rules of Evidence (Rules 901 & 902) — where authenticity is verified through procedure, not rigid formalism.
7. Conclusion: Modern Law, Outdated Logic
The Bharatiya Sakshya Adhiniyam, 2023 was an opportunity to modernize evidentiary law for the digital age. Instead, it replicates old ambiguities and adds new complexities. By conflating “document” and “computer output,” and insisting on a universal certification requirement, it risks stifling the admissibility of genuine digital evidence.
A forward-looking evidentiary regime must be flexible enough to adapt to evolving technology while safeguarding authenticity. The BSA, in its current form, falls short of that benchmark. Legislative refinement, guided by technological understanding and comparative jurisprudence, is essential to ensure that truth, not technicality, governs digital evidence.
Disclaimer
The views and opinions expressed in this article are solely those of the author, R.K. Samyal, Advocate, based on his independent study and interpretation of the Bharatiya Sakshya Adhiniyam, 2023. They do not necessarily represent the views of any institution or forum with which the author is associated. This article is intended purely for educational and analytical purposes and should not be construed as legal advice.