Re-evaluating the Presumption of Authenticity of Digital Evidence – Indian Judicial Practice

Abstract

The increasing digitisation of communication has transformed the nature of evidence. Digital evidence in India — including WhatsApp chats, call records, CCTV footage, emails, and other electronic data — has evolved in step with this transformation, creating a practical need to presume its authenticity. However, digital evidence is inherently vulnerable: it can be manipulated with relative ease, and its authenticity is therefore never certain. The emergence of artificial intelligence-generated fabrications, deepfakes, and other forms of technological misuse has further complicated the authentication of digital evidence. This paper examines the existing legal framework, evaluates current safeguards and judicial approaches to authenticating digital evidence, and argues that the prevailing presumption of authenticity must be critically re-evaluated.

Introduction

Digital evidence refers to information that is sent, received, or stored on electronic devices and is used as evidence in criminal and technology-related cases. Courts increasingly rely on such evidence to decide cases — making it essential to confirm its authenticity, since digital evidence can be easily tampered with or altered. The rapid advancement of artificial intelligence makes this need all the more urgent. It is therefore necessary to re-evaluate the presumption of authenticity of digital evidence, particularly in the current technological era. In India, the admissibility of digital evidence is governed by Sections 61 and 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). This article examines the statutory framework, reviews key judicial decisions, identifies current challenges, and advocates for a more robust and technology-responsive authentication framework.

Legal Framework

Section 65B of the Indian Evidence Act, 1872 (IEA), which governed the admissibility of electronic records, has been replaced by Sections 61 and 63 of the Bharatiya Sakshya Adhiniyam, 2023. These provisions recognise electronic records as primary evidence and establish the process by which digital evidence must be authenticated to be admissible in court.

Under the BSA, electronic records are treated as primary evidence when the original electronic device is produced directly before the court. However, for secondary evidence — such as printouts or digital copies — a certificate signed by a competent officer is required, along with the inclusion of a “hash value” in that certificate. The hash value functions as a digital fingerprint, assuring the court that the evidence has not been tampered with or altered.

Additionally, Sections 79A and 85B of the Information Technology Act, 2000 govern the legal status of electronic evidence. Section 79A enables expert examination by designated Examiners of Electronic Evidence, while Section 85B creates a presumption in favour of the authenticity of electronic records in certain circumstances — together providing a complementary framework for establishing the reliability of digital evidence.

Judicial Interpretation

Indian courts have progressively tightened the standards for admitting digital evidence. The following three Supreme Court decisions chart the evolution of judicial standards, moving from an era of broad presumption toward a regime of mandatory certification and verification.

State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

Decided in the context of the 2001 Parliament attack case, this case relied heavily on digital records as primary evidence. At the time, the legal provisions governing the admissibility of digital evidence were unclear, and the court presumed the evidence to be authentic without any standardised verification process. While the decision resolved the immediate controversy, it also exposed a significant weakness: without a mandatory authentication requirement, the risk of tampered or fabricated evidence entering the record remained unchecked. This weakness was subsequently addressed by the Supreme Court.

Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473

In this landmark ruling, the Supreme Court clarified that digital evidence is admissible only when prescribed procedural safeguards are followed. Where the original device containing the evidence is produced before the court, it constitutes primary evidence. Where the evidence exists only in secondary form — as a copy or printout of an electronic record — it is admissible only upon the production of a certificate confirming that the evidence has not been altered or tampered with. This decision marked a decisive shift away from the earlier, more permissive approach endorsed in Navjot Sandhu.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

The Supreme Court in this case reaffirmed and strengthened the mandatory certification requirement. It held that digital evidence — including CDs, videos, emails, and other electronic files — can only be tendered in court if accompanied by a certificate under the erstwhile Section 65B of the Indian Evidence Act, 1872 (now corresponding to Section 63 of the BSA). The court emphasised that, given the ease with which digital files can be altered, strict compliance with the certification rules is non-negotiable. Evidence lacking the requisite certificate cannot be treated as authentic.

Challenges

Despite this evolving framework, significant technical and practical obstacles continue to undermine the effective authentication of digital evidence in India:

• Ease of tampering: Electronic data remains susceptible to alteration or fabrication, and detecting such manipulation often requires specialised forensic expertise.
• Certification difficulties: Obtaining a properly executed authentication certificate can be procedurally burdensome, particularly in cases involving large volumes of electronic records.
• Privacy concerns: Accessing electronic records for evidentiary purposes raises significant privacy issues, especially in the context of the Supreme Court’s recognition of the right to privacy as a fundamental right.
• Cloud-based and cross-border data: Retrieving evidence stored on cloud platforms or held by foreign service providers involves complex jurisdictional and regulatory barriers.
• Reliability of internet-sourced evidence: Information drawn from the internet is particularly prone to fabrication and manipulation, risking the misdirection of investigations.
• AI-generated content and deepfakes: The proliferation of artificial intelligence tools capable of generating realistic fake images, audio, and video poses a new and largely unaddressed threat to the integrity of digital evidence.

These challenges collectively underscore the need to rethink the existing authentication approach and develop a balanced, technology-responsive framework suited to modern evidentiary demands.

Conclusion

Digital evidence has become indispensable to the modern Indian judicial system, often decisive in both criminal and civil proceedings. However, the legal framework governing its authentication is still maturing. While the Bharatiya Sakshya Adhiniyam, 2023 and the line of Supreme Court decisions from Anvar P.V. to Khotkar represent significant progress, further legislative and institutional reform is necessary.

India must strike a principled balance between ensuring the authenticity of digital evidence and protecting individual data privacy. A bare presumption of authenticity, unsupported by rigorous verification, risks enabling unfair trials. Strengthening this balance will require improved e-governance infrastructure, regular training of investigating officers in digital forensics, access to updated forensic technology, greater public awareness of digital rights, and the cultivation of a skilled technical workforce committed to a stronger Digital India.

Ultimately, the Indian judiciary must develop and consistently apply a clear, coherent, and effective authentication framework for digital evidence. As technology continues to evolve and evidence increasingly takes electronic form, the need for specific, robust, and adaptable legal provisions — capable of withstanding the challenges posed by artificial intelligence and emerging technologies — has never been more urgent.

Reference(S):

• SCC Online, SC clarifies law on admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872, scconline.com (2020).
• Advocate Prithwish Ganguli, Admissibility of Digital Evidence under Bharatiya Sakshya Adhiniyam: A Comparative Study with the Indian Evidence Act, SSRN Paper No. 4977238.
• Law Article, Admissibility of Electronic Evidence in Indian Courts, lawarticle.in.
• SCC Online, Ruling of Navjot Sandhu case to the extent of admissibility of electronic evidence as secondary evidence overruled, scconline.com (2014).
• Geethapriya S. & Tvisha G., Challenges of Electronic Evidence and its Admissibility in Court, IJRTI.
• Aquib Husain & Dr. Eakramuddin, Issues and Challenges of Admissibility of Digital Evidence: A Study, International Journal for Novel Research and Development, IJNRD Paper.
• The Legal Quorum, Digital Evidence and Cybercrime: Admissibility and Challenges under Indian Law, thelegalquorum.com.