Authored By: Gunjan Ukey
Kalinga University
INTRODUCTION
Background and Context
The era of digital change has altered the evolution of communication and improving business practices or addressing conflicts. The evidence that used to be oral or physically tangible records are now often in the form of digital formats such as e-mails, social media applications, text messages and others. Due to the altercations the evidence that earlier use to be come of the products needs to be updated. India‘s Indian Evidence Act of 1872 governed the rules of evidence for three centuries and more. Despite the fact that the IT Act of 2000 brought about amendments to include records the fundamental rules remained centered on hence old ideals. The introduction of Section 65B to the Indian Evidence through the Indian Evidence (Amendment) Act 2000 was the attempts at establishing a scheme for electronic records. The BSA (Bharatiya Sakshya Adhiniyam) 2023 that came into force on 1 July 2024 is an attempt made by Parliament to upgrade the conventions regarding evidence. The BSA replaces the Indian Evidence Act in its entirety and provides a systematization of rules that impact electronic records.
Research Objectives
This paper aims to:
Observe the change of the law on electronic records, from Section 65B of the Indian Evidence act to the applicable provisions of the BSA.
Examine the new definition of primary evidence in the context of Section 57 of the BSA and its implications for digital evidence.
Assess the continued importance of important court decisions related to electronic evidence 4. Places where the BSA falls down, particularly with cloud computing, encrypted messages, AI generated content, and digital forensics.
BSA comparision – rules in USA and UK and EU. 6. Propose enhancements to the system used by the BSA for managing digital evidence by revision of the legal framework.
Research Methodology
This study is doctrinal research drawing primarily on a range of sources including the text of the BSA, the Indian Evidence Act, the Information Technology Act, but also parliamentary debates and judicial decisions of the Supreme Court and High Courts. Secondary sources such as journal articles, reports by the law commission and international legal treaties have also been consulted. A comparative approach in law has been adopted when comparing the BSA to international treaties.
HISTORICAL EVOLUTION OF ELECTRONIC EVIDENCE LAW IN INDIA
The Pre Digital Era Indian Evidence Act 1872
Back in 1872, a man named Sir James Fitzjames Stephen shaped the Indian Evidence Act. That piece of law started taking form under his guidance. Its framework came together through careful thought at that time. The act stands today because he laid its roots long ago.
Back then, folks relied on written pages, speech, things you could hold. Into that world came a law splitting proof into two kinds – what people say (parts 59-60), what’s written down (parts 61-90). A document? Something real, marked with ink or print. Original meant the one true copy, straight from source; copies or duplicates counted as lesser forms. Truth lived in objects you could touch, single versions believed above all. But when screens lit up, networks spread, messages flew through wires during the 90s, the old rules started creaking. Faced with files born online, stored nowhere solid, the system showed its age. What once made sense now stumbled, unready for bits instead of paper.
The Information Technology Act, 2000: First Legislative Response
Later on came the Information Technology Act, 2000 – India’s first big step into laws for online business and digital messages. Legal weight for electronic records showed up in Section 4. Then Section 5 stepped in to accept e-signatures as valid. Updates slipped into the Indian Evidence Act too, bringing new rules along
What once stood in Section 65A – about proving electronic records under Section 65B – is now gone.
For electronic records to count as evidence, Section 65B put in place a unique method. A person holding a key role connected to the device – or its operation – had to supply a certificate under this rule.
The Section 65B Certificate: The Most Litigated Aspect
Nowhere else did a rule stir more debate than Section 65B’s demand for certification in India’s electronic evidence cases.
Three clear phases mark how courts evolved over time :
Phase 1 The Liberal Approach – Navjot Sandhu 2005
Later on, the Supreme Court showed some leniency in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600. Trustworthiness alone could allow electronic evidence to stand – no Section 65B certificate required. The ruling opened room for exceptions when proof seemed reliable through other means.
Phase 2 Strict Method Anvar P V 2014
One bench of India’s top court decided, back in 2014 through the case Anvar P.V. versus P.K. Basheer, that electronic records need Section 65B’s certificate before they can be accepted as evidence. Rules laid out under this section stand alone – no extra steps needed.
Without that certificate, evidence got rejected outright. Still, the court made clear Navjot Sandhu’s earlier take held no legal force. On top of that, Sections 63 and 65 of the Indian Evidence Act didn’t cover electronic records at all. Right then, serious hurdles popped up across courts everywhere.
Phase 3 The Pragmatic Approach Shafhi Mohammad and Arjun Panditrao 2018–2020
Justice sometimes stumbles when rules get too tight, the Supreme Court noted in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 5 SCC 311. While reviewing Anvar P.V.’s rigid standards, judges questioned whether fairness could survive. Mobile recordings made on the fly – say, during a sudden crime – might not meet those strict steps. What happens then? Evidence captured without warning may fail to qualify. Rules meant to protect accuracy risk blocking truth instead. Unexpected moments rarely follow procedure. Still, they matter just as much.
The moment of clarity arrived through Arjun Panditrao Khotkar versus Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, when judges at the highest court weighed in -Re affirmed that the Section 65B(4)certificate is mandatory, not just a procedural formality.
Should the device belong to someone on the opposing side or another person, strict certificate rules might not apply. The court holds power to step in with tailored directions then. Instructions can shift based on who actually controls the gadget at hand.
The Legislative Response: Bharatiya Sakshya Adhiniyam, 2023
Because courts faced unclear rules, India brought in a new law called the Bharatiya Sakshya Adhiniyam. This change came during shaky times for legal decisions. The update goes by another name too – the Indian Evidence (Amendment) Act, 2023. It arrived as a reaction to growing doubts in how justice is handled.
On 25 December 2023, the President gave approval to the BSA. Created to modernize India’s evidence law for current times. Its Statement of Objects and Reasons pointed directly at problems tied to digital proof. Effect began six months later, starting 1 July 2024.
III. THE BSA FRAMEWORK FOR ELECTRONIC EVIDENCE
A Detailed Analysis
Whatever holds written, drawn, or marked details counts as a document under the BSA. Information stamped using letters, numbers, or symbols makes the list if someone meant to record it. The form does not matter – paper, screen, or anything else works fine. Marks must carry intent, not just random scratches. A mix of signs, figures, or characters qualifies when used on purpose. Recording thought is what matters most here.
Electronic records cover both digital files and electronic formats. Besides this, Section 2(1)(b) explains what counts as an “electronic record” by pointing to Section 2(1)(t) of the Information Technology Act, 2000. That part says such a record can be data, pictures, or audio kept, received, or sent using electronics, microfilm, or printed computer film. Because of this link, the BSA stays consistent with the rules in the IT Act.
Primary Evidence
Section57: The Most Significant Reform
What stands out in the BSA isn’t always obvious – yet Section 57 carries more weight than any other piece. Its influence quietly shapes how the entire law functions.
It broadens the definition of primary evidence to include:
Across different locations, electronic records sit saved all at once – each version stands equal, none more original than another.
Video recordings in electronic form,including those on devices like mobile phones, computers or cloud storage.
Printouts or copies of electronic records stored on optical or magnetic media,created by a computer, which are considered documents and primary evidence.
The impact of this provision is significant.
Right off the bat, old thinking about what counts as original versus copy gets tossed aside – this distinction used to demand a Section 65B certificate. These days, digital files live on servers, backup drives, or cloud platforms; each version matches the next down to the last bit. So now, the law sees all those versions as firsthand proof. What changed after Shafhi Mohammad? Video clips shot on phones stay right where they were recorded, treated as solid evidence without extra paperwork. Another shift: printouts made by machines can stand in court just like originals, skipping past layers of prior steps.
Secondary Evidence
Section63:Retained but Re calibrated
Secondary Evidence Under Section 63 Of The BSA
Copies made from the original using mechanical methods that ensure accuracy.
Copies made directly from the original or compared with it.
Someone tells you what they saw on a page after looking at it themselves.
Electronicrecordsproducedfrompropercustody,providedthedevicewasregularlyused, the information was normally entered, and the device was functioning correctly.
The requirement for a certificate under Section63 is still in place but applies to a narrower scope compared to thepreviousSection65B.
When it comes to digital files, a certain belief is accepted by default under Rule 93
Most times, courts accept digital records showing electronic signatures as real. That idea follows from earlier rules found in Section 85A of the old Indian Evidence Act. Today, it lives again inside Section 93 of the BSA. The current law carries forward what used to be written before. Appearance of a signed deal online often counts enough at face value.
Proof of Electronic Records:Section61
What’s inside a document might show up in court using original proof, yet sometimes backup evidence steps in instead.
One copy alone might do the job when it comes to showing electronic records across devices, thanks to how Section 57 plays into things – no certificate required, nor any added hoops to jump through.
Fifth, specialists can share what they know about digital files under Rule 45
Section45 of the BSAkeepstheprovisionforexpertopinions,includingthose fromspecialistsinelectronicevidenceanddigitalforensics.
Thisbecomesespeciallyimportantincasesinvolvingclaimsoftampering,deepfaketechnology, orchangesin metadata, where thecourtmayneedexperthelptoassessthereliabilityof anelectronicrecord.
CRITICAL ASSESSMENT OF THE BSA FRAMEWORK
Strengths
Whether there is a single location or dozens, digital records now equal the primary evidence. The old gap between original and duplicate is obsolete; the BSA recognizes this when it states: “Old nomenclature only resulted in confusion; when evidence was stored in hundreds of disparate files, it held no more weight, yet the breach was just as serious. The trend is validated by the very way in which data is now stored.”
Less Procedural Burden: By expanding the description of primary evidence, the BSA eliminates the need for certificates in most cases to use electronices evidence in legal proceedings
Acknowledgement ofVideorecordings: In cases where videorecordings werenot used as the primary evidence, it is a significant issue that made it difficult to use them in criminal cases.
Definitions align with the IT Act: lesser ambiguity The BSA has correlations with wording, lessening the potential for ambiguity where the text relaxes on certain terms. Parallel phrasing creates consistency in the flow of ideas. Where the meaning is disconnected it sinks into ambiguity. Parallel wording reduces inconsistency.
Weaknesses and Gaps
No requirements on checking hash values: Hash values are unique identifiers generated by computer to check the integrity of data. National standards(NIST in USA and ACPO in UK) mandates the checking of these values while given handouts digital evidence. BSA do not.
No Certificate Framework: WhatsApp, Signal, Telegram, etc., all make use of encryption, so they have no way (or they do not divulge how to)certify the legitimacy of the message they have delivered. Plus, even if screenshots are used, they can easily be manipulated, and the BSA state no mandatory policy that the courts should follow.
Deepfakes and synthesis: AI can use speaking and acting video footage to convincingly synthesize an individual saying and doing new things. An individual could essentially fabricate a video of a political opponent making offensive comments, or re-synthesise someone‘s voice from a telephone call. The BSA does not mention this.
Cloud computing and jurisdictional issues: data stored in cloud can be stored across countries. BSA considers evidence stored at multiple locations to be primary, but it doesn‘t address the jurisdictional issues that would result when the server which has the data from a Location outside India.
No requirement for Chain of Custody Procedures. A chain of custody records the persons who have ever had possession of the evidence, and when and how each person had the evidence. The BSA does not require a chain of custody.
Lack of standards governing digital forensic laboratories: BSA fails to impose standards for digital forensic laboratories and the human expertise carrying out digital forensics. Some countries, e.g., USA & UK have come up with set criteria governing digital forensic laboratories and experts, e.g., SWGDE, Forensic Science Regulator.
V.COMPARATIVE ANALYSIS
United States of America
The federal system in the States provides was adopted by the Federal Rules of Evidence (FRE).
Key rules include:
Rule 901(b)(9): Electronic evidence may be presented if there is evidence around the source of the evidence and that it is authentic.
Rule 902 (13) and 902 (14): These rules permit the electronic records to be self-authenticating if they are certified by a qualified individual and demonstrates the record was produced by a system.
The US approach is different from the BSA in a few key ways:
A couple of examples of how hash values are verified are: 1) Hash Values Checks- the courts in US have asked to verify digital evidence and one example is Lorraine v. Markel American Insurance Co., where the court provided a definitive guideline for digital verification includinghash values.
Daubert Standard: Upon being admitted, digital experts would need to adhere to daubertstandard, where their pieces of evidence should be alleged on sound facts and confirmative.
Stored Communications Act This law enables law enforcement to access stored electronic communications and includes provisions about storage of data and disclosure thereof.
CONCLUSION
The Bharatiya Sakshya Adhiniyam, 2023 is an important and necessary improvement to India‘s evidence laws.
The BSA makes editorial changes such as to allow electronic records from various locations to be treated as primary evidence, allow video recordings as primary evidence, changes the rules relating to certificates. These changes help align the laws of evidence with the realities of the technological scenario. The BSA also solves some of the shortcomings of the earlier rules under Section 65B and provides a pragmatic approach to digital evidence submission. However, the BSA still has certain major shortcomings, for example, no rules for verification of hash values, no procedures for handling encrypted messages, lack of mention of AI generated content or deepfakes, no standards set for digital forensics and no requirement for a strict chain of custody to be maintained for digital evidence. All of these deficiencies could undermine the integrity of digital evidence in Indian Courts. Laws of evidence should be flexible enough to stay in pace with rapid rates of change in technology.
The recommendations I put forward in this paper, whether it is the amendments to the laws, improvements to the institutions or the collaboration with other countries, are meant to strengthen the BSA and equip Indian courts tackle the transition into the digital age. It remains now for Parliament, the courts and the legal fraternity to develop a new law of their own.
VII. REFERENCE
Legislation
Bharatiya Sakshya Adhiniyam 2023.
Indian Evidence Act 1872.
Information Technology Act 2000.
Indian Evidence (Amendment) Act 2000.
Rules for court evidence in the U.S. federal system.
Stored Communications Act 1986 (United States).
Cases
Anvar PV v. PK Basheer 2014, SCC 473.
Shafhi Mohammad v State of Himachal Pradesh (2018) 5 SCC 311 (SC).
Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal (2020) 7 SCC 1 (SC).
Back in two thousand seven, a federal court sitting in Maryland decided Lorraine against Markel American Insurance Company, case number two forty one F R D five three four.
Books
Avtar Singh 2022
Vepa P Sarathi, Law of Evidence (Eastern Book Company 2019).
Reports and Other Sources
Report number 185 Law Commission of India 2003.
Law Commission of India, Report on Electronic Evidence(relevantextracts).
Scientific Working Group on Digital Evidence (SWGDE)
