Emails as Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Relevance, Proof, Headers and Attribution

Email is named expressly in the illustrations to the definition of 'document' in the Adhiniyam, so no question arises whether it is a document. What arises instead are the questions that follow: how the message is proved, what its headers establish, whether the contents are evidence of their truth, and — the question the statute does not answer at all — who actually sent it.

1. An Email Is a Document

The illustration is new. The Indian Evidence Act illustrated 'document' with a writing, printed words, a map, an inscription and a caricature; the Adhiniyam adds emails and server logs by name. The consequence is that the whole of Part III applies — proof of contents, primary and secondary evidence, presumptions and the rules about how much of a record must be produced.

2. Relevance — Why the Email Matters

Before asking how an email is proved, it is necessary to ask what it is being offered to prove, because the answer determines which provisions apply.

As an admission. Section 15 defines an admission as a statement 'oral or documentary or contained in electronic form'. An email by a party containing a statement suggesting an inference against him is an admission, and it is substantive evidence against him. This is much the commonest route by which an email becomes evidence of the truth of what it says.

As a business record. Where an email was generated in the ordinary course of business — an automated confirmation, a despatch advice, a routine internal report — it may fall within Section 28 as an entry in books of account maintained in electronic form, or within Section 26(b) where its maker has died or become unavailable and it was made in the ordinary course of business or in the discharge of professional duty.

As an operative document. Where the email itself has legal effect — an offer, an acceptance, a notice, a demand, a repudiation, a defamatory statement — the words are the fact in issue and no question of hearsay arises. Proving that the email was sent proves the operative act.

As conduct or as showing a state of mind. An email received by a person and affecting his conduct is admissible under Explanation 2 to Section 6(2), and an email showing intention, knowledge or ill-will in reference to the matter in question is relevant under Section 12. In both cases the email is not being offered for the truth of what it says.

3. Proof — Primary or Secondary?

The first question is whether the output tendered is primary evidence, because if it is, no certificate is required.

The Explanations to Section 57 are the governing provisions, and three of them commonly apply to email.

Explanation 3 — where a record is created or stored simultaneously or sequentially in multiple files, each such file is primary evidence. An email exists in the sender's sent items, in the recipient's inbox, and on one or more servers. Each of these is a file storing the record, and each is primary evidence.

Explanation 4 — a record produced from proper custody is primary evidence unless it is disputed. An email produced from the account of the person who sent or received it is from proper custody.

Explanation 6 — a record stored in multiple storage spaces in a computer resource, including temporary files, is primary evidence. This covers cached copies and material recovered from a mail client's local store.

3.1 Where the certificate is required

Where the output is not primary evidence, Section 62 directs that the contents be proved under Section 63, and the four conditions in Section 63(2) must be satisfied — regular use of the device or system, regular feeding of information of that kind in the ordinary course, proper operation, and derivation of the output from what was fed in.

The certificate under Section 63(4) and the Schedule must then accompany the record at each instance of tender, signed by a person in charge and by an expert, with the hash value disclosed in Part A.

For email this presents a recurring practical difficulty. Where the record comes from a corporate mail system, the person in charge of the system can sign Part A. Where it comes from a personal account with a commercial provider, the party himself is the person in charge of his own device and account, and the certificate is signed on that footing to the best of his knowledge and belief, as Section 63(4) permits.

4. Headers and Metadata

The visible part of an email — sender, recipient, subject, date, body — is what a printout ordinarily shows. Behind it lies the header, a block of routing information recording the path the message took, and it is frequently more informative than the message itself.

The header records, among other things, the originating system and its address, each server through which the message passed with the time at which it was received, the message identifier assigned at origin, the authentication results where the receiving system performed them, and the reply-to and return-path addresses, which may differ from the visible sender.

Two consequences follow for practice.

The header should be produced. A printout showing only the visible fields omits the material by which the message can be verified, and where authenticity is in issue the full header is what an examiner will want. Section 33 requires enough of a record to be produced for its meaning to be understood, and a header is part of the record.

The header is examinable. An expert under Section 39(2) can say whether the routing is internally consistent, whether the timestamps make sense, whether the authentication results support the claimed origin, and whether the header bears signs of forgery. This is the principal technical answer to an allegation that an email is fabricated.

What the header cannot do is establish who was operating the account. That is a different problem and is dealt with below.

5. The Presumption under Section 90

Section 90 corresponds to Section 88A of the Indian Evidence Act. Two features of it matter.

What it presumes is correspondence between the message as received and the message as fed in for transmission. It addresses the risk that a message was altered in transit, and it says that the court may presume it was not.

What it expressly refuses to presume is the identity of the sender. The second limb is unusual in a presumption provision — it is a statutory instruction not to presume something — and it is the clearest acknowledgment in the Adhiniyam of the attribution problem.

Section 93 supplies a further presumption for older material: where an electronic record purporting or proved to be five years old is produced from proper custody, the court may 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. This is the electronic counterpart of the thirty-year presumption in Section 92, and the shorter period reflects the different rate at which electronic material becomes unprovable by ordinary means.

6. Attribution — The Real Problem

Everything in the statutory scheme addresses the record. Nothing addresses the person, and this is where email cases are actually decided.

A certificate under Section 63 establishes that the output corresponds to what was in the system. A header examination establishes that the message originated where it appears to have originated. Section 90 permits a presumption that the message was not altered in transit. None of these establishes that a particular individual composed and sent the message, and Section 90 says in terms that the court shall not presume it.

Attribution must therefore be built from ordinary evidence, and the material available includes the following.

• Exclusive control of the account — evidence that the account was the person's, that he alone had the password, and that it was not shared.
• Contents known only to the sender — references to matters within his knowledge, in his idiom, consistent with his other correspondence.
• Conduct following the message — that the sender acted on it, referred to it, or was confronted with it and did not deny it.
• Admission — the most straightforward route, and the reason a party's own emails are ordinarily easier to use than a stranger's.
• Corroborative records — login records showing access from a device or location associated with the person at the material time.
• Reply in the ordinary course — the correspondence route in the Explanation to Section 41(1), applied by analogy: a reply to a message sent to a person's account tends to show that he received and answered it.

The defence to an email case is correspondingly familiar: that the account was accessible to others, that the address was spoofed, that the message was fabricated, or that the person named did not compose it. Each of these is answered by evidence rather than by the certificate.

7. Obtaining Emails from a Third Party

A party frequently needs a record held by somebody else — the opposing party, an employer, or a service provider. Three routes exist.

Notice to produce under Section 64 of the Adhiniyam, where the original is with the opposite party or a person out of reach. Where the notice is not complied with, ground (a) of Section 60 permits secondary evidence of the contents.

Summons to produce a document under Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to Section 91 of the Code of Criminal Procedure, 1973, in a criminal proceeding; and the ordinary machinery for discovery and production in a civil suit.

An application to compel production where the certificate cannot be obtained because the system is in another's control. On the authority of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, the court may compel production in such a case, and a party genuinely unable to obtain a certificate is not left without a remedy.

A practical point about service providers deserves note. Records held by a commercial email provider are ordinarily retained for limited periods, and a party who intends to seek them should do so early. An application made two years after the event may find that the record no longer exists.

8. Practical Checklist

1. Preserve the record early, and compute a hash at the moment of preservation rather than at the stage of filing.
2. Export rather than screenshot. An export in a standard format retains the headers and metadata; a screenshot retains almost nothing.
3. Produce the full header, not merely the visible fields.
4. Produce the whole thread where the message is part of an exchange, as Section 33 requires.
5. Obtain the certificate under Section 63(4) even where Explanation 4 to Section 57 appears to apply, because the classification depends on the opponent's pleading.
6. Identify the person in charge for Part A and the expert for Part B, and prepare the expert's credentials in advance.
7. Plan the attribution case separately — exclusive control, contents, conduct, admission, login records — because no provision supplies it.
8. Seek third-party records early, before retention periods expire.

9. The Position Stated Shortly

1. An email is a document and is named expressly in the illustrations to Section 2(1)(d).
2. Relevance comes first. An email is evidence of its contents' truth only as an admission under Section 15, as a business record under Sections 26(b), 28 or 29, or where the words themselves are operative.
3. The Explanations to Section 57 frequently make an email printout primary evidence, but Explanation 4 fails the moment the record is disputed.
4. Where the certificate is required, the four conditions in Section 63(2) and the Schedule apply, with the hash value in Part A and an expert signature in Part B.
5. Headers are part of the record and should be produced, both because Section 33 requires completeness and because they are the technical answer to an allegation of fabrication.
6. Section 90 permits a presumption that the message was not altered in transit, and expressly forbids any presumption as to who sent it.
7. Attribution must be built from ordinary evidence — exclusive control, contents, conduct, admission, login records.
8. Third-party records should be sought early, before retention periods expire, and the court may compel production.

10. Related Topics and Provisions