ELECTRONIC EVIDENCE UNDER BHARATIYA SAKSHYA ADHINIYAM

Amritanshu Rath, Student, National Law University Odisha

Introduction

The rapid digitalization of society has transformed how evidence is created, stored, and presented in courts. From emails and server logs to smartphone messages and blockchain records, electronic evidence has become a crucial part of modern legal proceedings. To make sure we are up to date with the changing trends and are not left behind, the Bharatiya Sakshya Adhiniyam (BSA) was introduced as the successor to the Indian Evidence Act, 1872. The BSA aims to address the complexities of electronic evidence and is an attempt to modernise the statute governing evidence in this country considering the fact that its predecessor was enacted in the mid-19th century and the world has changed a lot since then.

Understanding Electronic Evidence

As the name itself suggests, electronic evidence includes all information generated, stored, or transmitted electronically. Under Section 2(e) of the BSA, it includes:

“(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;

(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;”

The term “document” under Section 2(d) is covers everything, whether recorded electronically or not. This harmonizes with the IT Act, 2000, where “electronic records” under Section 2(t) are defined as “data generated, received, or stored electronically”. For example, digital contracts executed via e-signatures fall under this category.

The broad definitions under the BSA aim to ensure that the law keeps pace with technological advancements. Illustrations provided in Section 2(d) explicitly recognize digital communications, making it clear that the scope of electronic evidence extends to social media messages, geolocation data, and even blockchain records.

Legal Framework Governing Admissibility and Judicial Interpretation

The admissibility of electronic evidence under the Bharatiya Sakshya Adhiniyam (BSA) is governed by Section 63, which provides a “detailed statutory framework to ensure that electronic evidence is treated with the same sanctity as traditional evidence”. This section can be presented as the updated version of the erstwhile Section 65B of the Indian Evidence Act, offering a newer approach to electronic evidence.

Section 63 introduces a nuanced approach to electronic evidence, recognizing its unique nature while emphasizing its probative value. Electronic records, including those printed on paper, stored in “optical or magnetic media”, or in “semiconductor memory”, are deemed to be “documents” if they meet the conditions prescribed under Section 63. This equivalence ensures that electronic evidence is admissible in the same manner as physical documents. Once the conditions of Section 63 are fulfilled, electronic records are admissible in proceedings “without requiring the production of the original record”. This is a significant shift from the traditional requirement of primary evidence, simplifying the use of digital records in court.

For an electronic record to be admissible, it must satisfy the following conditions under Section 63(2):

  1. The electronic record must have been generated by a computer or communication device that was regularly “used to create, store, or process information during the relevant period”. For instance, a company’s financial transactions recorded in a regularly used accounting software meet this criterion.
  2. The information must have been fed into the device as part of routine activities, ensuring that the data was not created specifically for litigation. For example, CCTV footage recorded during regular business hours qualifies under this condition.
  3. The computer or device must have been operating properly during the material time. If the device experienced malfunctions, it must be shown that such malfunctions did not affect the accuracy of the electronic record.
  4. The record must accurately reproduce or derive information fed into the device in the ordinary course of activities, maintaining its integrity.

Section 63(3) introduces the concept of treating interconnected devices as a single unit for the purpose of admissibility. This addresses the complexity of modern computing systems, where data is often processed across multiple devices, networks, or intermediaries. Whether operating as a single unit on a computer network or through cloud resources all such devices are collectively treated as one system ensuring a seamless integration of digital evidence.

Section 63(4) mandates the submission of a certificate to authenticate electronic evidence. The certificate must:

  1. Identify the electronic record and describe the manner of its production.
  2. Provide details of the devices involved in generating the record.
  3. Address the statutory conditions mentioned in Section 63(2), ensuring compliance with reliability and integrity standards.

This certificate should be certified by a person in charge of the device/management/expert and may be certified on the basis of the best of the knowledge and belief of the certifying person. 

Section 63(5) of section clarifies some of the important aspects of electronic evidence. Any form of entry of data to a computer or a device is deemed as supplied to it. Outputs that originate as electronic are deemed as computer produced regardless the involvement of a human. This makes certain that when dealing with complex data coming from other preprogrammed systems like IoT devices or an AI-based equipment, then the evidence will count. 

Section 63 enhances the admissibility of electronic evidence, mainly because various difficulties are often encountered as to the authenticity and reliability of the substance offered in the trial. It provides a structured framework for making it easier to tender electronic records as evidence before court, maintaining Technology Driven Parity between Technology and Evidentiary Standards and protecting the law from being outdated by new technologies like Blockchain and AI to mention a few.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the Hon’ble Supreme Court held that production of certificate under S65-B(4) of the erstwhile Indian Evidence Act, 1872, “is mandatory but only in the case of secondary evidence i.e. where primary evidence is not lead/original”. It also held that the required certificate under the said section is unnecessary if the “original document itself is produced and this can be done by the owner of a laptop or computer by stepping into the witness box and proving the device concerned on which the original information is first stored, is owned or operated by him”. To arrive on this position the Hon’ble court placed reliance on judgements like Banwarilal Agarwalla v. State of Bihar, Om Parkash v. Union of India, and Chief Inspector of Mines v. Lala Karam Chand Thapar, It also held that if despite all the efforts made by the respondents, they are still unable to furnish the certificate then the 2 latin maxims should be followed. The first is “lex non cogit ad impossibilia” i.e. “the law does not demand the impossible”, and “impotentia excusat legem” i.e. “when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused”. The Hon’ble court also clarified and followed on the precedent established in Anvar P.V. v. P.K. Basheer, with the clarification being qua deletion of the expression “under S62 of the Evidence Act”.

This case is also very significant, because it overruled the previous standing of the Hon’ble court in the Shafi Mohammad case, where it was held that the requirement of the certificate was “procedural” and that it can be relaxed by the court wherever interest of justice so justifies.

Authentication Through Electronic Signatures

Electronic signatures play a pivotal role in verifying the authenticity of electronic evidence. Under Section 66 of the BSA (earlier Section 67A of the Indian Evidence Act), the fact that an electronic signature belongs to a specific individual must be proved, except in cases of secure electronic signatures.

A secure electronic signature, as defined under Sections 14 and 15 of the IT Act, must:

  1. Be under the exclusive control of the signer during affixation.
  2. Be capable of detecting post-affixation alterations.
  3. Comply with cryptographic standards, ensuring data integrity.

For example, digital signatures based on asymmetric cryptography use a private-public key pair to authenticate records. These are supported by Digital Signature Certificates issued under Section 35 of the IT Act.

In Mamata Bhowmik v. Union of India, it was held in para 17  of the judgement that
“Reading the provisions of the authentication of digital signature and electronic signature under the Act of 2000 and the provision of section 5 of the Act of 2000, the requirement of section 65B(4) of the Evidence Act of 1872 requiring that a document having the information contained in an electronic record is required to be signed by a person occupying a responsible official position in relation to the operation of the relevant device, would also be satisfied if such document contains the digital signature or the electronic signature of the person having a responsible official position in relation of the operation of the relevant device.” This reaffirmed the position laid u/s 35 of the IT Act.

In Tamil Nadu Organic (P) Ltd. v. SBI, it was held that an e-auction procedure cannot be stalled on the account of unfamiliarity with digital signatures. This was a crucial step in regularising the use of digital signatures and putting them on the same level as manual signatures. 

Challenges in Handling Electronic Evidence

Despite a robust legal framework, electronic evidence poses unique challenges that require attention. The integrity of the digital records must be verified in order to assure the consistency and authoritativeness of the record for use in multiple locations. Technology advances at a much faster rate than the law. Thus, it is crucial for the government to always be on its toes and keep up with upcoming tech. In a world where electronic communication can happen across borders seamlessly, the laws governing the very data transmitted in that communication may vary from each other.  It is very crucial to protect electronic evidence from tampering via cyber-attacks. 

Conclusion

The Bharatiya Sakshya Adhiniyam is a testament to India’s commitment to modernizing its legal system. By addressing the complicated nature of electronic evidence, it ensures that the judiciary is able to handle the complexities of a digital world. While challenges continue to exist, the BSA’s comprehensive framework hopes to pave the way for a more efficient and transparent justice delivery system. As the law continues to evolve, it must remain rooted in principles of fairness, reliability, and adaptability to uphold the integrity of electronic evidence in the years to come.

Scroll to Top