Electronic Evidence under the Bharatiya Sakshya Adhiniyam, 2023 Compared with the Indian Evidence Act, 1872: What Changed

The Indian Evidence Act acquired its electronic-evidence provisions by amendment in 2000 and 2008, bolted onto a statute drafted when the telegraph was the newest thing in communications. The Adhiniyam rewrote them. Most of the substance was carried forward, but four changes are material, two provisions are entirely new, one has been dropped, and the renumbering has produced a trap that appears in a great deal of secondary material.

1. The Correspondence

2. What Is Entirely New

2.1 Section 61

The Indian Evidence Act contained nothing of this kind. Section 61 removes an objection rather than conferring admissibility, and its function is declaratory: an electronic record stands on the same footing as any other document, and a party objecting must find a ground other than its electronic character.

2.2 Explanations 3 to 6 of Section 57

These are the most consequential addition the Adhiniyam has made in this field, and they have no counterpart at all in Section 62 of the earlier Act.

• Explanation 3 — a record stored simultaneously or sequentially in multiple files is primary evidence in each file.
• Explanation 4 — a record produced from proper custody is primary evidence unless it is disputed.
• Explanation 5 — a video recording simultaneously stored and transmitted or broadcast is primary evidence in each stored copy.
• Explanation 6 — a record in multiple storage spaces, including temporary files, is primary evidence in each automated storage.

They solve a problem the earlier Act could not accommodate. The best evidence rule assumes a physical original from which copies are made; an electronic record has no such original, existing in many places at once with none derived from the others. Rather than requiring courts to identify a notional original, the Adhiniyam declares each file to be primary evidence.

3. The Four Changes to Section 63

3.1 Communication devices and semiconductor memory

Section 65B(1) spoke of a computer and of information copied in optical or magnetic media. Section 63(1) adds 'or any communication device' and 'semiconductor memory', and the addition of communication device runs through the whole section.

Both changes settle arguments that were genuinely run. Whether a mobile phone was a 'computer' within the earlier provision was contested; whether flash memory and solid-state storage fell within 'optical or magnetic media' was contested. Neither is arguable now.

3.2 Section 63(3) and intermediaries

Section 65B(3) spoke of computers used in succession, in different combinations, or in any other manner involving the successive operation of one or more computers.

Section 63(3) replaces that with an enumeration: standalone mode, a computer system, a computer network, a computer resource enabling information creation, storage, processing and communication, or through an intermediary. All such devices are treated as a single computer or communication device.

The addition of intermediaries is the significant one. Modern records pass through service providers, hosting platforms, payment gateways and messaging services, and under the earlier language it was arguable that such a chain fell outside a provision framed around successive operation.

3.3 The expert signature and the Schedule

Section 65B(4) required the certificate to be signed by 'a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities'. One signature, and no prescribed form.

Section 63(4) requires signature by a person in charge and an expert, and requires the certificate to be in the form specified in the Schedule. The Schedule divides it into Part A, completed by the party or the person in charge and disclosing the hash value, and Part B, carrying the expert's declaration.

Both requirements are new, and both were challenged as making electronic evidence practically unavailable to ordinary litigants.

3.4 At each instance

Section 63(4) requires the certificate to be submitted with the record 'at each instance where it is being submitted for admission'. The earlier provision said nothing about timing, and a question had arisen whether one certificate served for all purposes. It is now settled that it does not.

4. What Was Dropped

Section 88 of the Indian Evidence Act, the presumption as to telegraphic messages, has no counterpart in the Adhiniyam. The provision permitted the court to presume that a message forwarded from a telegraph office corresponded with the message delivered for transmission, while declining to presume who sent it.

Its omission reflects the disappearance of the medium. What survives is the electronic-message presumption formerly in Section 88A, which is carried forward — and the renumbering is where the trap lies.

Section 82 of the Indian Evidence Act, the presumption as to a document admissible in England without proof of seal or signature, has also been omitted, being a relic of the colonial arrangement. It is not an electronic-evidence provision but is part of the same tidying.

The Explanation to Section 65B, which defined 'computer' broadly for the purposes of that section, is not reproduced. The Adhiniyam relies instead on Section 2(2), which incorporates the definitions in the Information Technology Act, 2000 for expressions used but not defined.

5. The Judicial Line, Absorbed

The provisions of the Adhiniyam are best understood as the statutory settlement of a judicial argument that ran for fifteen years.

Two observations are worth drawing from this. The Adhiniyam adopted Anvar P.V. and Arjun Panditrao rather than departing from them — the certificate remains mandatory for secondary evidence, and production of the device remains an answer. And the Explanations to Section 57 go considerably further than Arjun Panditrao, addressing by statute the difficulty that Shafhi Mohammad had tried and failed to address by relaxation.

6. What Did Not Change

It is as important to know what was carried forward unaltered, because the case law on those provisions applies without qualification.

• The four conditions for admissibility of computer output — regular use, regular feeding, proper operation, derivation — are the same as in Section 65B(2).
• The complete-code reasoning in Anvar P.V. applies to Sections 62 and 63 as it did to Sections 65A and 65B.
• The presumptions as to electronic agreements, secure records and signatures, and certificates are unchanged in substance.
• Proof of an electronic signature under Section 66 and verification of a digital signature under Section 73 are unchanged.
• The conditions governing recordings — laid down in Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611 — voice identification, accuracy, absence of tampering, relevance, custody, audibility — are undisplaced and operate alongside the statutory requirements.
• The attribution gap is untouched. No provision connects a record to a person, and Section 90 continues to forbid any presumption as to who sent an electronic message.

7. What Was Not Addressed

Two gaps identified before the Adhiniyam was passed remain.

Chain of custody. The Standing Committee on Home Affairs, examining the Bharatiya Sakshya Bill, observed that it contained no provision securing the chain of custody of material and digital records collected during investigation. No such provision was added. The hash requirement in Part A of the Schedule addresses part of the problem; the recording obligations in Sections 105 and 176(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 address another part; the rest is left to ordinary evidence.

Attribution. No provision connects an electronic record to a person, and Section 90 says in terms that the court shall not presume who sent a message. Every electronic evidence case therefore requires an attribution case built from ordinary material — exclusive control, contents, conduct, corroborative records and admission.

A third point is worth noting. Section 1 of the Adhiniyam contains no express extent clause of the kind found in Section 1 of the Indian Evidence Act. Commentators read this as removing a textual obstacle to receiving evidence originating outside India, which is of some significance given how much electronic material is held abroad — but it does nothing about obtaining such material.

8. The Changes in Summary

1. Section 61 is entirely new and removes the objection that a record is inadmissible because it is electronic.
2. Explanations 3 to 6 of Section 57 are entirely new, and they remove a large body of material from the certificate requirement altogether.
3. Section 63 adds communication device and semiconductor memory, settling two arguments that were genuinely run.
4. Section 63(3) now covers networks, computer resources and intermediaries by name.
5. Section 63(4) requires an expert signature and a prescribed form with a hash value, both upheld in Pune Bar Assn.
6. The certificate is required at each instance of tender, which the earlier provision did not say.
7. Section 88 on telegraphic messages is dropped, and 88A is carried forward as Section 90, not Section 89.
8. The four conditions, the presumptions, and the attribution gap are unchanged, and the case law on them applies without qualification.

9. Related Topics and Provisions