Digital Evidence and the Bhartiya Sakshya Adhiniyam: Moving Towards a New Evidentiary Paradigm

Abstract

The advancement of digital technology is having a dramatic effect on how evidence can be collected, preserved and presented in courts. Digital records are by far the most common types of evidence seen in civil and criminal trials, from encrypted WhatsApp messages, CCTV footage, and metadata, to emails, website references and online communications. The Indian Evidence Act, 1872 was amended to accommodate electronic records, and in some cases included digital records, however the Act created some procedural challenges through its inclusion of a rigid certification process in the electronic records process under section 65B (1)(9)(10). Given the limitations of the colonial laws, our Parliament enacted the Bhartiya Sakshya Adhiniyam, 2023 in the midst of a complete overhaul of criminal law in India (2)(7). This article critically questions whether the new statute provides a definitive shift in the admissibility of evidence and treatment of digital evidence, or if it is simply a rehash of the previous law. The analysis is designed around three core areas: factored where appropriate, the legislative structure; the courts interpretations; its importation from other comparative jurisdictions; and is also acknowledges and discusses the disadvantages and further developments that need to be revised for a future focused evidentiary regime (16)(21)(22).

Introduction 

Since 2012, Indian courts have increasingly embraced digital evidence to resolve higher stake disputes such as those pertaining to cyber fraud, terrorism and family law (3). Extra-judicially, U.S. courts have relied heavily on digital evidence in civil and criminal cases (18). Similarly, Indian Courts have referenced WhatsApp chats, CCTV footage and digital forensics from electronic devices in a number of high-profile cases including proceedings surrounding the Delhi riots and investigations regarding narcotics (3). But with the embrace of electronic records has also come an exposure to the deep fault lines in the law regarding the admissibility of electronic records. The Indian Evidence Act, 1872, which was drafted at a time when digital records were absent from or only in embryonic form in the common law world, had a hard time reconciling the authenticity, reliability and procedural hurdles of electronic records, particularly in light of the judicial pronouncements around the evidentiary admissibility of electronic records, notably Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao that dissect electronic records under Section 65B such as the certificate requirement (5)(6).To address the issues described above, the Government enacted the Bhartiya Sakshya Adhiniyam, 2023 and adopted the Bhartiya Nyaya Sanhita and the Bhartiya Nagarik Suraksha Sanhita which are all intended to form a trilogy of criminal law (2)(7). Where the new statute does demonstrate a clear intention to modernise India’s evidentiary framework is it places digital and electronic records in parity with documentary evidence (12)(13). But the question still stands: does this reform genuinely represent a significant shift in the paradigm that provides solutions to the longstanding and sometimes vexed issues of admissibility and is it legitimate reliability or just an update of old wine in a new bottle (16)? This article will explore that question by examining the substantive law, its judicial interpretation, and its practical application in the way the Bhartiya Sakshya Adhiniyam, 2023 addresses admissibility and reliability. The article will argue that while the Act is a step forward, its success relies on a balanced implementation, focusing on adequate technology capacity, and posing deliberative safeguards (20)(21).

Research Methodology

The research presented in this article employs a doctrinal and analytical research method. It looked at legislative provisions, judicial pronouncements, reformed law commission reports of the past forty years, and secondary literature including journal articles and commentaries (4)(8)(11)(16). Brief comparisons will be made about US approaches and UK practice (18)(19). The analysis is primarily normative and thus considers whether the Bhartiya Sakshya Adhiniyam represents substantive reform or just represents a restatement of existing legal principles (16)(22).

Legal Framework 

The Indian Evidence Act 1872 failed to deal with the realities of digital evidence and the Information Technology Act, 2000 created Sections 65A and 65B to deal specifically with electronic records (9), allowing the parties to produce electronic records, in which case the electronic records must be accompanied by a certificate that included an attestant, which established the facts of provenance and integrity of the record (10). This was to either ensure a record was reliable or to protect an innocent litigant, the requirement of a certificate ultimately became an impediment as litigants simply could not get their electronic service provider or custodian of records to provide a certificate (11), therefore courts would exclude tremendous amounts of relevant evidence which was a denial of substantive justice.

Bhartiya Sakshya Adhiniyam, 2023 –Important Features 

BSA, 2023 which was enacted to do away with the colonial statutes expressly acknowledges both digital and electronic records as a written document (12). Additionally the BSA 2023 broadens the definition of “documents” to encompass emails, server logs, databases, cloud records and includes block chain recorded evidence (13). While the law continues with the requirement of a certificate, it endeavours to simplify the process in recognition in the future that reducing technical barriers should facilitate ease of access (14). It is a balancing act to ensure reliability meets access.

A Change in Legislative Purpose?

The Statement of Objects and Reasons of the BSA emphasizes modernization as the main purpose (15). By including digital evidence in a formal structure, the law can keep pace with contemporary investigative and adjudicative realities. Nevertheless, critics have argued that the retention of large parts of the old regime gives credibility to the scepticism about whether it can be transformative rather than cosmetic (16).

Judicial Construction of Digital Evidence

The Indian judiciary assumes a crucial role in establishing the law of digital evidence. In Anvar P.V. v. P.K. Basheer (2014) the Supreme Court held that oral evidence cannot prove the content of an electronic record without the presence of a Section 65B certificate (5). This rigid stance was frequently the basis for excluding relevant evidence. In Shafhi Mohammad v. State of Himachal Pradesh (2018) the Court modified the conclusion it came to in Anvar P.V. v. P.K. Basheer (2014) where it indicated that the certificate is not necessary if the party making the objection had not possessed the device (17). This pragmatic approach recognised the challenges litigants faced but created doctrinal dissonance.

Finally, in Arjun Panditrao Khotkar v. Kailash Kushanrao (2020) a Constitution Bench resolved the inconsistency by restating the mandatory nature of the Section 65B certificate but stated that if the parties could not get such a certificate, courts could summons such a certificate. The BSA (Bill of Sale Act), 2023 builds upon this case law but does not constitute a serious departure from the requirement of certification.

Comparative Perspectives

Other jurisdictions offer helpful lessons. In the United States, the Federal Rules of Evidence emphasize authentication under Rule 901. This rule permits the admission of electronic documents if sufficient evidence shows the records were reliable (18). In the United Kingdom, the Police and Criminal Evidence Act, 1984, in conjunction with rules established by the courts, establishes quite flexible standards for general admissibility. The Act tends to focus more on the criteria of relevance and reliability, and it seems to have lost the finer grain of procedural certification. In contrast to the examples above, India seems to overly rigid on its require certification (1)(9)(10).

Challenges and Issue Areas

Despite its modern language and intent, the BSA still faces practical challenges. First, as noted above, the requirement of producing a certificate can create a bottleneck for litigants who lack access to the original server or device (20). Second, the Act appears not to adequately address issues of data privacy and chain of custody (21). Third, the Act does not examine developments in technology that could include AI generated evidence, deepfakes, or cross-border data stored on foreign servers (22). These gaps may hinder the BSA’s ability to meet the incluence needs of support for to achieve justice in the digital age.

Reform proposals

For a real shift in paradigm India must:

1. Use flexible admissibility standards, similar to Rule 901 of the U.S. Federal Rules of Evidence (18).
2. Promote mechanisms that can help preserve the chain of custody of digital evidence (21).
3. Develop specific provisions for emerging technologies of importance such as, AI and blockchain (22).
4. Develop judicial and forensic capacity to deal with increasinglycomplex digital forensics.

Such reforms will also increase the confidence into the reliability of evidence while preventing dishonesty through excessive procedural burdens (8)(11). 

Conclusion 

The Bhartiya Sakshya Adhiniyam, 2023 represents an important step towards modernization of India’s evidentiary framework, explicitly anchoring the centrality of digital evidence in contemporary legal proceedings (2)(12)(13). Recognising that information is being created and stored digitally as well as exchanged digitally, demonstrates that the law is now appreciating that the paradigms for how courts might evaluate evidence have been fundamentally transformed for civil as well as criminal categories of evidence. The Adhiniyam has consolidated several of the principles around evidence relative to digital forms, bringing Indian law into contemporary consideration of “evidence” in conjunction with changing notions of digital evidence and frames the Indian legal system to evolve accordingly in relation to the changing nature of digital evidence. In saying that, while the Adhiniyam represents considerable movement forward, there are also fixed aspects to the previous framework, including the certification requirement, which while a necessary measure for ensuring intended reliability, lacks the flexibility required in engaging with emerging types of and complexity associated with digital evidence. The interplay between contemporary acknowledgment and procedural constraints indicates the difficulty of truly shifting the law of evidence. The Adhiniyam is an important progressive step, although it may not lead to a transformation of the law as traditional formalities still prevail. To create an alternative evidence trajectory, Indian law must embrace both flexibility and adaptability. It includes adopting some emerging understandings from international practices, allowing for innovative approaches by the courts, and engaging with various emerging technologies in developing an evidentiary approach attuned to change. Digital evidence is less stable than traditional forms of evidence, as it is often part of a continuously evolving cycle driven by technological advances. In terms of evidence, the law must evolve to take account of changes like blockchain records, artificial intelligence generated records, and complex transactions with multiple layers of metadata (22). 

In conclusion, the Bhartiya Sakshya Adhiniyam, 2023 should be seen as a starting point rather than an end point. We do not yet know its potential, and it may not be a solution at all. The outcomes of the Adhiniyam depend on the modernization of India’s law of evidence, and for India’s law of evidence to flourish it must be representative of the realities of a digital society. The only way that India will secure an evidence regime that meets the challenges of justice in a digital world is through a process of evolution that will require ongoing reform, adaptive interpretation, and an integration with technology (2)(22). 

Reference(S):

1. Sec 65B of Indian Evidence Act, 1872.
2. Bhartiya Sakshya Adhiniyam
3. Various judgement on Delhi Riots Trials (2020).
4. 185th Report (2003) of Law Commission of India.
5. Anvar P.V. versus P.K. Basheer, (2014) 10 SCC 473.
6. Arjun Panditrao Khotkar versus Kailash Kushanrao, (2020) 7 SCC 1.
7. Statement of Objects and Reasons, Bhartiya Sakshya Adhiniyam, Bill No. 104 of 2023.
8. Vepa P. Sarathi, Law of Evidence (Eastern Book Company.
9. Information Technology Act, 2000, Sections 65A–65B.
10. Ibid.
11. Prashant Reddy, Electronic Evidence in India: A Case for Reconsidering Section 65B, NUJS Law Review
12. Bhartiya Sakshya Adhiniyam, 2023, Section 2(1)(d).
13. Ibid., Section 2(1)(f).
14. Ibid., Section 63.
15. Statement of Objects and Reasons, supra note 7.
16. Constitutionalism and Criminal Law Reforms: A Critique of the New Criminal Codes, NLSIR, Aparna Chandra
17. Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801.
18. Federal Rules of Evidence, Rule 901 (U.S.).
19. Police and Criminal Evidence Act,(U.K.).
20. Evidence Law in the Digital Age, Indian Express, Arghya Sengupta
21. Data Privacy and Digital Evidence: Unresolved Tensions, EPW, Vrinda Bhandari
22. Responsible AI for All Report, NITI Aayog,