Author: Divyanshi Hazari Yadav, Indore Institute of law
1. Headline of the Article
From Certificate to Checklist: How Section 63 of the Bharatiya Sakshya Adhiniyam Rewrites the Rules for Proving Electronic Evidence in India
2. To the Point
India’s evidence law changed on 1 July 2024, when the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced the Indian Evidence Act, 1872. For electronic evidence, the provision that matters most is Section 63, which takes over from the old Section 65B.
The big shifts, in short:
• Electronic records now sit firmly inside the definition of “document” (Section 2(1)(e)).
• Section 61 says an electronic record cannot be rejected merely because it is electronic.
• Section 63 still demands a certificate, but now in a prescribed format (the Schedule) with two parts: one by the party, one by an expert.
• The certificate must carry a hash value of the record.
• The law now speaks of a “communication device” and “semiconductor memory”, not just computers.
Put simply, the legislature has answered the Supreme Court’s long-running confusion over when a certificate is needed by handing everyone a standard form. Whether that ends the litigation or merely moves it somewhere else is the real question.
3. Use of Legal Jargon (Key Terms Explained)
4. The Proof (The Statutory Framework)
Here is how the provisions fit together. Section numbers should be verified against the official bare Act before submission.
Section 2(1)(e), “Document”. The definition expressly includes electronic and digital records.
Section 2(1)(d), “Evidence”. Covers statements given electronically, which supports virtual testimony and video-conference evidence.
Section 57, Primary evidence. The Explanations clarify when electronic records count as primary evidence, for example where a record is created or stored in multiple files simultaneously.
Section 61, Equal footing. Nothing in the Act denies admissibility to an electronic or digital record solely because it is electronic. It carries the same legal effect as paper.
Section 62, Contents of electronic records. Contents are proved according to Section 63.
Section 63, Admissibility. Any information in an electronic record, whether printed on paper or stored or copied in optical, magnetic or semiconductor media, is deemed a document and is admissible without the original, if the conditions are satisfied. These conditions mirror the old Section 65B(2): the device was regularly used, information was regularly fed in, the device was working properly, and the output reproduces what was fed in.
Section 63(4), The certificate. It must identify the record, describe how it was produced, give particulars of the device, and be signed by the person in charge of the device or the management of the activity, and by an expert. It follows the format in the Schedule (Part A and Part B) and includes the hash value.
Related procedural law (BNSS, 2023). Section 105 requires audio-video recording of search and seizure, and Section 176(3) requires forensic visits and videography of crime scenes for offences punishable with seven years or more. These feed electronic evidence into trials from the very start of an investigation.
5. Abstract
Electronic evidence is no longer a side issue in Indian trials. It now makes or breaks cases involving cybercrime, financial fraud, corruption, matrimonial disputes and ordinary criminal prosecutions. For over two decades, the law on its admissibility was shaped less by Parliament than by the Supreme Court, which swung between strictness and flexibility. The old Section 65B of the Indian Evidence Act, inserted in 2000, required a certificate for secondary electronic evidence, yet courts disagreed on whether that requirement was truly mandatory.
The Bharatiya Sakshya Adhiniyam, 2023 tries to settle the matter through Section 63, which keeps the certificate requirement but standardises it, adds an expert’s co-signature and introduces hash values. This article traces the legal journey, explains what Section 63 changes, examines the leading judgments that will continue to guide courts, and flags practical difficulties such as access to experts, devices controlled by the other side, and the carry-over of old precedent. It argues that while the new provision brings clarity and better integrity safeguards, it also raises the procedural bar, and that courts will need to balance technical compliance against the pursuit of truth.
6. Case Laws
(i) State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 (Parliament Attack Case)
The Supreme Court allowed call-record printouts to be proved without a Section 65B certificate, holding that secondary evidence could be given under Sections 63 and 65 of the old Act. This view stood for nearly a decade.
(ii) Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473
A three-judge bench overruled Navjot Sandhu on this point. The Court held that Sections 65A and 65B form a complete, special code for electronic evidence, and that a Section 65B(4) certificate is a condition precedent for admissibility of secondary electronic evidence. Oral evidence cannot replace it. This was the turning point.
(iii) Tomaso Bruno v. State of U.P. (2015) 7 SCC 178
The Court stressed the value of CCTV footage and criticised the prosecution for not producing it, noting that electronic evidence can be a more reliable form of proof. It is a useful case when arguing the importance of electronic evidence.
(iv) Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801
A two-judge bench relaxed the rule, holding that the certificate requirement is procedural and can be waived where a party is not in possession of the device and cannot obtain the certificate.
(v) Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1
A three-judge bench overruled Shafhi Mohammad and reaffirmed Anvar P.V. The Court held that the certificate is mandatory where secondary evidence is produced, but not where the original device itself is produced in court as primary evidence. A party that cannot get the certificate can apply to the court to direct the person in control of the device to produce it. The Court also indicated that the certificate may be produced at a later stage in appropriate cases, subject to the court’s discretion and the demands of justice. This is the most important judgment for this topic.
(vi) Sonu @ Amar v. State of Haryana (2017) 8 SCC 570
The Court held that an objection about the missing certificate must be raised at the time the evidence is marked as an exhibit. Raising it for the first time on appeal is generally too late, since it concerns the mode of proof.
(vii) Ravinder Singh @ Kaku v. State of Punjab (2022) 7 SCC 581
Applying Arjun Panditrao, the Court discussed the stage and manner of producing the certificate and the court’s role in ensuring that a missing certificate does not defeat the course of justice.
Why these still matter. The BSA retains the certificate structure, so courts will likely continue to rely on these principles (mandatory certificate for secondary evidence, exemption for primary evidence, timing of objections) while applying the new Section 63 and the Schedule.
7. Conclusion
Section 63 of the Bharatiya Sakshya Adhiniyam is best described as an evolution, not a revolution. It accepts the central lesson of Anvar P.V. and Arjun Panditrao Khotkar, that electronic evidence is fragile and needs a safeguard, and turns that lesson into a uniform format. The hash value requirement and the expert’s involvement are real improvements: they push the system toward verifiable integrity rather than a bare declaration that “this is true.”
But the reform has a cost. A mandatory expert co-signature can slow down trials, burden small litigants, and create a new technical ground for objections. In criminal cases, a poorly prepared prosecution may lose strong evidence over a defective certificate. In civil and matrimonial disputes, a party who does not control the device may still struggle to comply.
Going forward, three things deserve attention:
1. Judicial guidance on timing and curability. Courts should clarify when a defective or late certificate can be cured, building on Arjun Panditrao.
2. Access to forensic experts. Without accessible, accredited experts, the two-part certificate risks becoming a bottleneck.
3. Training for investigators and lawyers. Hash values, imaging and chain of custody need to become routine knowledge.
The law has moved from confusion to clarity on paper. Its real test lies in how fairly and practically courts apply it.
Q1. What replaced Section 65B of the Indian Evidence Act?
Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, which came into force on 1 July 2024.
Q2. Is a certificate always required for electronic evidence?
No. It is required when you rely on secondary electronic evidence (printouts, copies, extracts). If you produce the original device or primary electronic record in court, a certificate is generally not needed, as explained in Arjun Panditrao Khotkar.
Q3. What is new about the BSA certificate?
It follows a prescribed Schedule format in two parts, must be signed by the party or person in charge and by an expert, and must include a hash value.
Q4. What is a hash value and why does it matter?
It is a unique digital fingerprint of a file. If even one bit of the file changes, the hash changes, so it helps show that the record has not been tampered with.
Q5. Can a missing certificate be submitted later?
Courts have shown some flexibility on timing, but it depends on the facts and the court’s discretion. The safer course is to file it along with the evidence.
Q6. What if the device is with the opposing party?
Under Arjun Panditrao, you may apply to the court to direct the person in control to produce the device or the certificate.
Q7. Does the BSA apply to cases filed before 1 July 2024?
Generally, procedural law applies based on the stage of proceedings and the savings provisions. The transitional clauses and recent rulings on this point should be checked.
Q8. Are WhatsApp chats, emails and CCTV footage covered?
Yes. All are electronic records and fall under Sections 61 to 63.
