SMS and Electronic Messages as Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Section 90, Proof and Attribution

The short message is the one form of electronic communication for which the Adhiniyam supplies a presumption of its own. Section 90 permits the court to presume that a message forwarded through a server corresponds with the message as fed in for transmission, and then instructs the court in terms not to presume who sent it. Those two limbs between them capture almost everything that matters about message evidence: the record can be trusted, the sender cannot be assumed.

1. A Message Is a Document

'Messages' and 'server logs' are both named, and the significance of the second is easily missed. A short message produces a record on the sender's device, a record on the recipient's device, and a record in the network operator's systems — and unlike messaging applications with end-to-end encryption, the operator's record ordinarily contains or can be connected to the content or at least the transmission particulars.

2. Section 90 — The Presumption

Section 90 corresponds to Section 88A of the Indian Evidence Act, inserted by the Information Technology Act, 2000, and is carried forward unchanged.

2.1 The first limb

The presumption addresses transmission integrity. It permits the court to presume that what the addressee received corresponds with what the originator fed in — that is, that the message was not altered in the course of passing through the server.

It is a 'may presume' provision. Under Section 2(1)(h) the court may either regard the fact as proved unless and until it is disproved, or may call for proof of it. The presumption is therefore discretionary and rebuttable, and a party who puts forward material suggesting alteration displaces it.

2.2 The second limb

The words 'but the Court shall not make any presumption as to the person by whom such message was sent' are unusual. A presumption provision ordinarily tells a court what it may assume; this one tells it what it may not.

The instruction is mandatory — 'shall not' — and it is the clearest acknowledgment in the Adhiniyam of the attribution problem. A message displaying a sender's number or name is not, by force of that display, evidence that the person sent it. Whatever is established about the sender must be established by ordinary evidence.

3. Relevance — What the Message Is Offered to Prove

As with every electronic record, the relevance question comes before the proof question and determines what the message can establish.

As an admission. Section 15 includes a statement 'contained in electronic form'. A message by a party suggesting an inference against him is substantive evidence against him.

As an operative communication. Where the message itself has legal effect — a threat, a demand, an offer, an acceptance, a notice, an abusive utterance constituting an offence — the words are the fact in issue. Proving that the message was sent proves the operative act, and no hearsay question arises.

As conduct or as showing a state of mind. A message received and acted upon is relevant under Explanation 2 to Section 6(2); one showing intention, knowledge or ill-will in reference to the matter in question is relevant under Section 12.

As part of the transaction. Messages sent during or immediately after an occurrence may form part of the same transaction under Section 4, and their spontaneity supplies the guarantee.

As a business record. Automated messages generated in the ordinary course — transaction alerts, delivery confirmations, one-time passwords — fall comfortably within Section 28 as entries maintained in electronic form, and are frequently the most reliable message evidence available precisely because no human composed them.

4. Proof

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

The Explanations to Section 57 apply readily to messages. Explanation 3 makes each of several files storing a record primary evidence, and a message exists on the sender's device, the recipient's device and the operator's systems. Explanation 4 makes a record from proper custody primary evidence unless disputed. Explanation 6 makes automated storage, including temporary files and caches, primary evidence.

Where the record is disputed — which in contested litigation it will be — Explanation 4 falls away, and the message must be proved under Section 63: the four conditions in sub-section (2), and the certificate under sub-section (4) in the form of the Schedule, with the hash value in Part A and an expert declaration in Part B.

5. Operator Records

The feature that distinguishes short messages from encrypted messaging is that the network operator holds records, and those records are ordinarily the strongest evidence available.

What an operator can supply falls into three classes. Subscriber information — to whom a number is registered, the identity documents furnished, the date of activation. Transmission records — that a message was sent from one number to another at a stated time, its length, and the cell site through which it passed. Call detail records more generally, which place a device within the coverage of a particular tower at a particular time.

Three features make operator records valuable.

• They are generated automatically in the ordinary course of the operator's business, which satisfies the conditions in Section 63(2) comfortably and brings them within Section 28 as entries maintained in electronic form.
• They come from a third party with no interest in the litigation, so the objection that the party altered them does not arise.
• They can corroborate or contradict a message produced from a device. Where a party produces a message and the operator's records show no transmission between those numbers at that time, the message is in serious difficulty.

Two practical cautions attach. Operator records are retained for limited periods, and a party who intends to seek them must do so early — an application made long afterwards may find nothing left. And the records must themselves be proved: they are electronic records requiring a certificate under Section 63(4), ordinarily furnished by the operator's nodal officer.

Where the operator will not produce voluntarily, the compulsive machinery applies — a 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, or an application in a civil proceeding. On the authority of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, where a party cannot obtain a certificate because the system is in another's control, the court may compel production.

6. Attribution

Section 90 forbids any presumption as to the sender, and message cases are decided on how well the gap is filled.

The material available is an accumulation of circumstances, and the strength of a message case depends on how many of them are established.

• Registration of the number. Subscriber information from the operator establishing that the number is the person's.
• Exclusive possession of the device. That he alone used the handset and the SIM, and that nobody else had access.
• Location records. Cell site data placing the device where the person was at the material time, or contradicting an alternative account.
• Contents known to him alone. References to matters within his knowledge, in his idiom.
• Continuity of exchange. A sequence of messages in which the person is addressed by name and responds is far harder to attribute elsewhere than a single message.
• Conduct afterwards. That he acted on the message, referred to it, or was confronted and did not deny it.
• Admission. The strongest route, and the reason a party's own messages are the easiest to use.

The corresponding defences are familiar: that the handset or SIM was used by another, that the number had been reassigned, that the sender identifier was spoofed, or that the message was fabricated on the receiving device.

6.1 Sender identifier spoofing

Where a message displays an alphabetic sender name rather than a number — the form used for transactional and promotional messaging — the display is generated by the sending platform and is not a technical guarantee of origin. Such identifiers can be misused, and a message purporting to come from a bank or an institution should not be taken at face value where its genuineness matters.

The answer is the operator record. Where the operator can show that a message was transmitted from a registered sender identifier at the stated time, the display is corroborated; where it cannot, the display proves very little.

7. Particular Kinds of Message

7.1 Transaction alerts and one-time passwords

Automated messages generated by a bank, a payment system or a service provider are among the most reliable electronic records in ordinary litigation. They are generated without human intervention, in the ordinary course of a regularly carried on activity, from information regularly fed into the system — which is condition (a), (b) and (d) of Section 63(2) satisfied on the face of it.

Their evidentiary use is usually indirect. An alert establishes that a transaction occurred at a stated time; a one-time password message establishes that an authentication was requested for a particular account at a particular moment. Neither establishes who conducted the transaction, and the same attribution problem arises.

7.2 Messages in matrimonial and harassment proceedings

Messages are the commonest evidence in this class of case, and two features recur. The messages are ordinarily produced from the recipient's device, which raises no chain-of-custody difficulty about the source but leaves the sender to be established. And they are ordinarily produced selectively, which engages Section 33: enough of the exchange must be produced for the court to understand the nature and effect of the statement and the circumstances in which it was made.

A party who produces twenty messages from an exchange of two thousand and resists production of the rest may be required to produce the context under Section 33, and may face the presumption under Illustration (g) to Section 119 that what is withheld would have been unfavourable.

7.3 Bulk and promotional messages

Where the question is whether a particular message reached a particular person — a notice, an intimation, a demand — a message record showing transmission is relevant, but the operator's delivery record is what establishes transmission. A record on the sender's system showing that a message was submitted for transmission is not evidence that it was delivered, and the distinction matters where service is in issue.

8. Completeness

A message exchange is both a conversation and an electronic record, so the section applies on both footings. Its second limb — the circumstances in which the statement was made — is the operative one, because a message read without what preceded it can convey the opposite of what was said.

The objection is worth taking wherever messages are produced in extract. It is answered by producing the exchange, and a party who resists faces both the direction under Section 33 and the adverse inference under Illustration (g) to Section 119.

9. A Practical Checklist

1. Preserve and hash early. Export the messages from the device and compute the digest at the moment of preservation, not when the certificate is drawn.
2. Export rather than screenshot, and where authenticity will be contested, obtain a forensic extraction.
3. Apply to the operator early for subscriber information, transmission records and call detail records, before retention periods expire.
4. Obtain the certificate under Section 63(4) for both the device record and the operator record, and identify the nodal officer who will sign for the operator.
5. Produce the whole exchange, not a selection, because Section 33 requires it.
6. Plan the attribution case separately — registration, exclusive possession, location records, contents, continuity, conduct, admission.
7. Do not treat a displayed sender identifier as proof of origin, and corroborate it from the operator's record where it matters.
8. Keep the handset and the SIM where possible, since they are the source and may have to be produced.

10. The Position Stated Shortly

1. Messages and server logs are named in the illustrations to Section 2(1)(d), and 'communication device' appears throughout Section 63.
2. Section 90 permits a presumption of transmission integrity — that the message received corresponds with the message fed in for transmission.
3. Section 90 expressly forbids any presumption as to the sender, and this is the clearest statutory acknowledgment of the attribution problem.
4. Section 88 of the Indian Evidence Act, on telegraphic messages, has been dropped, and 88A is carried forward as Section 90, not Section 89.
5. Relevance comes first — admission, operative words, conduct, state of mind, res gestae, or business record.
6. Operator records are the strongest evidence available, being automatic, third-party and corroborative, but they are retained for limited periods.
7. A displayed sender identifier is not proof of origin, and alphabetic identifiers in particular can be misused.
8. Section 33 requires the whole exchange, and selective production invites an adverse inference under Illustration (g) to Section 119.

11. Related Topics and Provisions