Author : Swayamsi Swain, KIIT School of Law
TO THE POINT
The enactment of the Bhartiya Sakshya Adhiniyam, 2023 (BSA) represents a groundbreaking development in India’s evidence law, especially with regard to digital evidence. With our world going more and more digital—from banking transactions to online criminal conspiracies—the necessity for a holistic, technology-responsive legal framework to regulate digital evidence became unavoidable. The BSA not only updates archaic evidentiary standards of the colonial-era Indian Evidence Act, 1872, but also brings India’s judicial practice at par with international best practices and norms. The Act addresses directly concerns regarding the authenticity, integrity, admissibility, preservation, and production of electronic records, thus creating a more reliable, efficient, and future-proof legal environment for courts, investigators, and litigants dealing with the intricacies of digital-age litigation and criminal prosecution.
USE OF LEGAL TERMINOLOGY
The Bhartiya Sakshya Adhiniyam, 2023 brings about a statutory definition of electronic records and related technical terms, a transition from analog to digital evidentiary regimes. Prominent legal terms like “hash value,” “metadata,” “digital signature,” and “secure electronic record” are pivotal concepts in the understanding of admissibility, probative value, and reliability of digital content. A hash value, for instance, is a cryptographic fingerprint of a digital file which ensures it remains unchanged, tamper-proof, and verifiable during the course of the legal process. In Sections 63 and 65, a Section 65B certificate (adapted and borrowed from the Indian Evidence Act, 1872) becomes a sine qua non in establishing that the digital material was created, stored, or retrieved from an operational, tamper-evident electronic device in the regular course of business. These sections highlight the need to have a chain of custody, maintain data integrity, and apply digital forensic instruments to verify the contents. This strengthened framework not only renders digital evidence more reliable and effective but also protects against tampering, destruction, or manipulation of evidence during civil and criminal cases.
THE PROOF
In order to make the courts accept solely authentic and unchanged digital evidence, Section 63 of the Bhartiya Sakshya Adhiniyam, 2023 specifies stringent procedural requirements. Where electronic evidence is generated, it has to be accompanied by a Section 65B certificate that details the technical specifications and procedural steps of the data, such as the device used, the method of generation or access, and checking of data integrity using hash functions such as MD5 or SHA-256. These hash values serve as electronic fingerprints and guarantee that the file produced in court is a precise duplicate of the original and tamper-free. The one issuing the certificate needs to be an individual holding a “responsible official position” with respect to the operation or management of the device, assuring accountability. This rigorous procedural protection encourages authenticity, dependability, credibility, and transparency in the treatment of electronic records. In addition, Section 65(3) officially authorizes secondary electronic evidence in the form of printouts, screenshots, CD/DVD/USB copies, and other data kept digitally, on condition that they are supported by proper certification and pass the test of authenticity and admissibility as set out in the Act. This assists courts in addressing practical realities without diminishing the integrity of the evidence.
ABSTRACT
The integration of digital evidence into a legislative framework in the Bhartiya Sakshya Adhiniyam, 2023 is a groundbreaking and momentous reform in Indian legal history. As crimes, commercial transactions, and private communication are increasingly taking place on digital media, the necessity of a trustworthy, consistent, and technology-aware mechanism to accept electronic records in judicial processes became imminent and inescapable. The BSA resolves these issues by offering a codified, technology-savvy, and procedurally compliant framework that acknowledges the probative value, validity, and reliability of digital evidence. Whether in the context of a criminal proceeding over CCTV footage, intercepted communications, or a commercial case over emails, digital contracts, or e-signatures, the BSA now offers a definitive map for admissibility, authentication, preservation, and probative value of the same. The legislation supports judicial certainty, procedural fairness and due process, and supports India’s vision of being a digitally empowered, globally connected legal system that can deal with 21st-century problems.
CASE LAWS
1. Anvar P.V. v. P.K. Basheer (2014)
In this path-breaking judgment, the Supreme Court ruled that electronic evidence will not be accepted unless coupled with a certificate under Section 65B of the Indian Evidence Act. This case highlighted that the contents of an electronic document can only be established in line with the procedure adopted for digital documents, and that secondary evidence like CDs or DVDs should be accompanied by technical certification. The Court highlighted that the certificate should state the device, detail the process of generation and replication, and verify that the computer was operating properly. Anvar’s case set the precedent for procedural discipline in dealing with digital evidence and finds direct continuation in the new BSA paradigm, emphasizing the legal sanctity of authenticated digital documents.
2. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)
Here, the Supreme Court reiterated the compulsoriness of the Section 65B certificate by holding that electronic evidence in the absence of the certificate is not admissible, except when the original device is brought to court. The ruling also clarified that oral evidence or affidavits cannot be used as a replacement for the statutory certificate, enhancing the authenticity of electronic records. The Court also noted that the certificate is not required to be produced at the outset, but has to be produced when the electronic record is tendered formally. This decision reached a balance between technical compliance and practical accessibility and established procedural safeguards for both the sides and promoting greater consistency in digital evidence jurisprudence under the Bhartiya Sakshya Adhiniyam, 2023.
3. Tomaso Bruno v. State of U.P. (2015)
The case highlighted the significance of presenting CCTV footage and other digital evidence in criminal proceedings. The Court held that a failure to present digitally accessible evidence can result in an inference against the prosecution, particularly when such evidence can establish the guilt or innocence of the accused. It established that courts should require digital records inasmuch as possible, and failure to produce such evidence must be satisfactorily explained in order to dispel judicial suspicion. The ruling emphasized the initiative role of investigation agencies in maintaining electronic data, particularly in high-profile criminal cases, and captures the present focus on the probative value of digital evidence under the BSA, 2023.
4. State v. Mohd. Afzal (2003) – Parliament Attack Case
In this publicized case, email, call detail records (CDRs), and overheard conversations were rigorously utilized to prove conspiracy and coordination among the defendants. The court accepted this electronic evidence without the benefit of a statutory framework based on expert testimony and manual verification. The case attested to the need for a safe and secure means of keeping, retrieving, and verifying digital records, which were pivotal to the prosecutor’s case. Although ruled prior to the BSA, its procedural hurdles and legal lacunae it revealed caused far-reaching jurisprudential advancements, several of which are now enshrined in the Bhartiya Sakshya Adhiniyam, 2023 to provide future evidentiary certainty.
CONCLUSION
The Bhartiya Sakshya Adhiniyam, 2023 is a revolutionary shift in Indian courts’ handling of evidence, particularly in the age of digitization. It shows an in-depth appreciation of the conditions of contemporary communication, cybercrime, e-banking, and e-commerce, where information is created, kept, and passed electronically at historic levels. The law dispels archaic conceptualization stemming from the colonial framework and gives a strong, formalized framework for electronic records admissibility, with strict procedures for verification, certification, and chain of custody preservation. By integrating technological protection measures such as hash values, metadata, digital signatures, and forensic verification, it enhances the evidentiary quality and trustworthiness of digital evidence substantially. Despite that, issues like the paucity of trained digital forensic examiners, absence of standardization in electronic data processing, judicial officers’ training, and cyber-infrastructure updation need to be addressed on an urgent basis for the law to be uniformly and effectively enforced. The BSA is a landmark bill and a milestone towards India’s progress towards a transparent, tech-aware, and digitally literate justice delivery system.
FAQS
Q1. What constitutes “digital evidence” under the Bhartiya Sakshya Adhiniyam, 2023?
Digital evidence is any piece of information or data in digital form that can be utilized in a court of law. It encompasses emails, CCTV footage, computer files, social media messages, call records, metadata, blockchain records, etc. The BSA formally recognizes such evidence and lays down norms for it to be admissible.
Q2. Is a Section 65B certificate still required under the new law?
Yes, the Section 65B certificate is still required. It is a statutory requirement and acts as a verification by a competent person, affirming the source, authenticity, and mode of extraction of the digital evidence. In the absence of this certificate, electronic evidence will be deemed inadmissible unless the original device is produced in court physically.
Q3. What safeguards does the new law provide for the authenticity of electronic records?
The BSA maintains authenticity by means such as verification of the hash value, analysis of metadata, identification of devices, and safe certification. The hash value will assist in validating that the digital material has not been manipulated. The Section 65B certificate is designed to avoid tampering and ensures that the evidence was drawn from a safe and operational system.
Q4. Is secondary digital evidence admissible in court?
Yes, secondary digital evidence like CDs, USBs, printed-out emails, and screen shots can be admissible if it fulfills the criteria of Section 65(3). Such evidence must be shown by the party who is relying on it to be a true reproduction of the original and provide the required certificate. This provision finds its greatest utility when the original equipment is damaged or not available.
Q5. What is the effect of this legislation on criminal investigations of cybercrime?
The act significantly empowers the investigations of cybercrime cases by making electronic traces like IP logs, server records, digital contracts, and chat histories admissible evidence under law. Investigating agencies are now able to present stronger cases on the basis of virtual trails, and courts are able to rely on such information with confidence, subject to procedural conditions like certification and verification.
