Electronic and Digital Evidence under the Bharatiya Sakshya Adhiniyam, 2023: The Complete Architecture

Electronic evidence is not confined to Sections 61 to 63. It runs through the entire Adhiniyam — in the definitions, in the provisions on admissions and business records, in the rules about how much of a record must be produced, in expert opinion, in the presumptions, and in the treatment of primary evidence. A practitioner who knows only the certificate provision knows perhaps a third of what the statute says about electronic records, and the missing two-thirds decide a good many cases.

1. The Foundation — Definitions

Everything else follows from this. Because an electronic record is a document, the whole apparatus of Part III applies to it — proof of contents, primary and secondary evidence, presumptions, and the rules about how much must be produced. The Adhiniyam did not build a separate regime for electronic evidence; it brought electronic material inside the existing one and adjusted the machinery where the fit was poor.

The expanded illustrations are the most useful drafting change in the definition. Where the Indian Evidence Act illustrated 'document' with a writing, printed words, a map, an inscription and a caricature, the Adhiniyam adds emails, server logs, documents on computers, laptops and smartphones, messages, websites, locational evidence and voice mail. Each of these had been the subject of argument at some point, and the illustrations settle them.

Section 2(1)(e) completes the foundation by including within 'evidence' all statements given electronically which the court permits or requires witnesses to make, and all electronic or digital records produced for inspection. The first limb accommodates evidence given by video link; the second brings electronic records within documentary evidence.

2. Where Electronic Records Appear in Part II

Part II deals with relevancy, and several of its provisions now expressly accommodate electronic material.

Section 15 defines an admission as a statement 'oral or documentary or contained in electronic form'. A message, an email, a recorded call or a post may therefore be an admission, and where it is against the maker's interest it is substantive evidence against him. This is the most frequently used route by which electronic material becomes evidence of the truth of what it says, and it is easy to overlook because the argument is usually conducted about the certificate rather than about relevance.

Section 20 provides that oral admissions as to the contents of a document are not relevant unless the party is entitled to give secondary evidence, or the genuineness of a document produced is in question. Since 'document' includes electronic records, an oral account of what a message said is subject to the same restriction as an oral account of a letter.

Section 26(b) makes relevant a statement made by a person who is dead or unavailable in the ordinary course of business, expressly including an entry or memorandum made in books or electronic records kept in the ordinary course of business or in the discharge of professional duty.

Section 28 makes relevant entries in books of account 'including those maintained in an electronic form', regularly kept in the course of business, subject to the qualification that such entries alone are not sufficient to charge any person with liability.

Section 29 makes relevant an entry in any public or other official book, register or record 'or an electronic record', made by a public servant in the discharge of official duty.

Section 33 requires that where a statement forms part of a longer statement, a conversation, a document, a part of an electronic record, or a connected series of letters or papers, evidence be given of so much as the court considers necessary to a full understanding. This is the provision that governs the extraction of a few messages from a long thread, and it is under-used.

3. Expert Opinion on Electronic Material

Two provisions in the opinion group deal specifically with electronic material, and a third has been widened in a way that matters here.

Section 39(1) now makes relevant the opinion of a person specially skilled in foreign law, science, art, handwriting, finger impressions or in any other field. The residuary words remove the need to argue that cyber forensics is a 'science', and they accommodate every discipline that has emerged since 1872 and every one that will emerge next.

Section 39(2) makes relevant the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000, on any matter relating to information transmitted or stored in a computer resource or other electronic or digital form.

Section 41(2) makes relevant, on a question as to the electronic signature of a person, the opinion of the Certifying Authority which issued the Electronic Signature Certificate. This has no counterpart in the world of pen and paper: it is the opinion of the body that issued the credential rather than of an examiner or of somebody familiar with the signature.

4. Proof — The Central Group

Four provisions govern how an electronic record is proved, and they operate in a sequence that must be followed in order.

4.1 The Explanations to Section 57

These four Explanations are the most consequential addition the Adhiniyam has made in this field, and they have no counterpart in the Indian Evidence Act.

• Explanation 3 — where a record is created or stored and the storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.
• Explanation 4 — where a record is produced from proper custody, it is primary evidence unless it is disputed.
• Explanation 5 — where a video recording is simultaneously stored in electronic form and transmitted, broadcast or transferred, each of the stored recordings is primary evidence.
• Explanation 6 — where a record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

They solve a problem the best evidence rule could not accommodate. An electronic record has no single original; it exists in many places at once, none derived from the others. Rather than forcing courts to identify a notional original, the statute declares each file to be primary evidence.

5. Signatures and Comparison

Three provisions deal with electronic signatures and with comparison, and they mirror the paper equivalents.

Section 66 deals with proof of an electronic signature, requiring proof that it was affixed by the person alleged. It corresponds to Section 67A of the Indian Evidence Act and stands alongside Section 65, which governs proof of ordinary signatures and handwriting.

Section 72 permits the court to compare a disputed signature, writing or seal with one admitted or proved to be genuine, and to direct a person present in court to write for that purpose. The section applies to finger impressions with necessary modifications.

Section 73 deals with proof as to the verification of a digital signature, corresponding to Section 73A of the Indian Evidence Act, and permits the court to direct the person by whom the signature purports to have been affixed, or the Controller or the Certifying Authority, to produce the Electronic Signature Certificate and to take such other steps as may be necessary to verify the signature.

6. Presumptions

The presumption group in Sections 78 to 93 contains several provisions addressed to electronic material, and three deserve particular note.

Section 81 provides for the presumption as to the Gazette in electronic form, corresponding to Section 81A of the Indian Evidence Act.

Section 90 provides for the presumption as to electronic messages. It corresponds to Section 88A of the Indian Evidence Act — the provision about electronic messages forwarded through a message server — and it permits the court to presume that a message forwarded by the originator through such a server corresponds with the message as fed into his computer for transmission, while making clear that the court shall not make any presumption as to the person by whom the message was sent.

Section 93 provides for the presumption as to electronic records five years old, corresponding to Section 90A of the Indian Evidence Act. It permits the court, where an electronic record purporting or proved to be five years old is produced from proper custody, to presume that the electronic signature affixed to it was so affixed by the person by whom or on whose behalf it purports to have been affixed. It stands alongside Section 92, the thirty-year presumption for ordinary documents, and the difference in period reflects the different rate at which the two kinds of record become unprovable by ordinary means.

Sections 85 to 87 deal with the presumptions relating to electronic agreements, secure electronic records and secure electronic signatures, and Electronic Signature Certificates, corresponding to Sections 85A to 85C of the Indian Evidence Act.

7. The Interface with the BNSS

The Bharatiya Nagarik Suraksha Sanhita, 2023 generates a great deal of the electronic material that comes before criminal courts, and three provisions matter.

Section 105 requires the audio-video recording of search and seizure. Where a search is recorded, the circumstances in which an article was found become verifiable, and the familiar dispute about whether a recovery was genuine is placed on a different footing.

Section 176(3) requires, for offences punishable with seven years or more, that a forensic expert visit the scene of crime to collect forensic evidence and that the process be videographed. This converts investigative discretion into a statutory duty and produces a contemporaneous visual record of the collection.

Section 183 permits a Magistrate to record confessions and statements by audio-video electronic means in the presence of the advocate of the accused, and permits any Magistrate of the district in which the information was registered to do so whether or not he has jurisdiction in the case.

Each of these produces an electronic record, and each such record must be proved under Sections 57, 61 and 63 of the Adhiniyam. A recording that cannot be proved is worse than no recording, because its absence from the record invites the inference that it was unhelpful.

8. The Line of Authority

The statutory scheme is the product of a long judicial sequence, and knowing the sequence explains why the requirements take the form they do.

9. What the Statute Still Does Not Address

Three gaps remain, and each decides cases.

Chain of custody. The Standing Committee on Home Affairs observed, when examining the Bharatiya Sakshya Bill, that it contained no provision securing the chain of custody of material and digital records collected during investigation. That observation remains accurate. The Adhiniyam makes records admissible; it says nothing about how their integrity between seizure and production is to be established, and the gap is filled only in part by the recording requirements in the BNSS and by the hash-value disclosure in Part A of the Schedule.

Attribution. No provision connects a record to a person. Section 63 establishes that the output corresponds to what was in the device; Section 90 expressly declines to presume who sent a message. That a message was sent from a particular account is one thing; who was operating the account is another, and it must be established by ordinary evidence. This remains the largest gap in electronic evidence cases.

Records held abroad. A great deal of electronic material is held on servers outside India by service providers not subject to Indian process. The Adhiniyam contains no express extent clause in Section 1, which commentators read as removing a textual obstacle to receiving evidence originating outside India; but removing an obstacle to admissibility does nothing about the practical difficulty of obtaining the record and the certificate.

10. The Architecture in Summary

1. Definitions — Sections 2(1)(d) and 2(1)(e) bring electronic records within 'document' and 'evidence', with expanded illustrations.
2. Relevancy — Sections 15, 20, 26(b), 28, 29 and 33 accommodate electronic material within the ordinary heads.
3. Opinion — Sections 39(1), 39(2) and 41(2) supply expert opinion, the Examiner of Electronic Evidence, and the Certifying Authority.
4. Primary evidence — Explanations 3 to 6 to Section 57 deem multiple files, records from proper custody, simultaneous video recordings and automated storage to be primary.
5. Admissibility — Sections 61, 62 and 63 with the Schedule, upheld in Pune Bar Assn.
6. Signatures — Sections 66, 72 and 73 deal with proof, comparison and verification.
7. Presumptions — Sections 81, 85 to 87, 90 and 93 cover Gazettes, agreements, secure records, messages and records five years old.
8. Interface — Sections 105, 176(3) and 183 of the BNSS generate records that must be proved under this Adhiniyam.

11. Related Topics and Provisions