Author: Jatin Tiwari, Vivekananda Global University
To The Point
I. The Governing Statutory Provision
The question of whether the Bharatiya Sakshya Adhiniyam, 2023 (BSA) applies to trials pending as on its commencement date is answered directly by the Act itself. The BSA was enacted on December 25, 2023 and came into force on July 1, 2024.
Section 170 of the BSA contains an explicit savings clause that governs this question entirely. The provision states:
“No trial, application, inquiry, investigation, proceeding or appeal pending on the date of commencement of this Act shall be disposed of under this Act. Such matters shall be disposed of in accordance with the provisions of the Indian Evidence Act, 1872.”
This is a clear, unambiguous legislative mandate. The BSA carries no retrospective effect whatsoever in respect of pending proceedings.
II. The Bright-Line Rule: July 1, 2024 as the Operative Date
The practical consequence of Section 170 BSA is a clean temporal bifurcation:
1. Proceedings pending on or before June 30, 2024 — Governed entirely by the Indian Evidence Act, 1872 (IEA) [2] until final disposal, regardless of how long they continue after July 1, 2024.
2. Fresh proceedings commenced on or after July 1, 2024 — Governed by the BSA, 2023 [1], including its provisions on electronic evidence under Sections 62 and 63.
This rule applies uniformly to trials, applications, inquiries, investigations, and appeals. There is no partial or phased applicability of the BSA to pending matters.
Use Of Legal
• Retrospective Application
• Savings Clause
• Pending Proceedings
• Electronic Evidence
• Admissibility
• Section 65B Certificate
• Section 63 Certificate
• Hash Value
• Beneficent Construction
• Evidentiary Rule
• Judicial Proceedings
• Statutory Interpretation
• Electronic Record
• Cyber Forensics Expert
• Non- Retrospectivity
The Proof
I. Electronic Evidence: The Practical Consequence of the Savings Clause
The most significant practical impact of Section 170 BSA arises in the context of electronic evidence, where the IEA and BSA differ in material respects.
A. Pending Trials: Section 65B IEA Continues to Apply
For all trials pending as on July 1, 2024, the admissibility of electronic records continues to be governed by Sections 65A and 65B of the Indian Evidence Act, 1872 [2] jurisprudence under Section 65B remains fully operative for such proceedings.
[3]. The settled The foundational principle, established in AnvarP.V. v. P.K. Basheer, (2014) 10 SCC 473 [4], is that secondary electronic evidence is strictly inadmissible without a mandatory certificate under Section 65B(4). The Court held that Sections 65A and 65B form a complete code, overriding the general secondary evidence provisions under Sections 63 and 65 of the IEA. Oral evidence cannot substitute the written certificate.
This position was conclusively reaffirmed by the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 [5], which: – Upheld Anvar P.V. and confirmed the Section 65B(4) certificate as a sine qua non for admissibility of secondary electronic records. – Overruled the relaxation introduced in Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801, which had permitted the certificate to be bypassed. – Carved out a narrow exception: the certificate is not absolutely mandatory where the party seeking to produce the evidence cannot access the device (e.g., data held by a third party or opposing party), provided the record’s provenance is otherwise convincingly established. – Clarified that trial courts may direct production of the certificate at any stage before the trial hearing concludes, provided the party can reasonably obtain it.
For pending trials, therefore, the absence of a Section 65B(4) certificate renders secondary electronic evidence inadmissible, subject only to the narrow Arjun Panditrao Khotkar exception.
B. Fresh Trials: Section 63 BSA Applies
For proceedings commenced on or after July 1, 2024, the governing provision is Section 63 of the Bharatiya SakshyaAdhiniyam, 2023 [6], which replaces Section 65B IEA. The structural framework is preserved — secondary electronic output is treated as a document admissible without producing the original device, provided statutory conditions are met.
Under Section 63(4) BSA, a certificate remains a mandatory prerequisite. The certificate must: Identify the electronic record and describe its manner of production [6]. – Provide device particulars showing it was produced by a computer or communication device. – Certify the device’s integrity and the unaltered state of the content. – Disclose the hash value of the record — a requirement that is now statutory under the Schedule to the BSA, unlike under the old IEA where hash verification was a forensic best practice without explicit statutory force.
The Supreme Court, in Pune Bar Association v. Union of India & Ors. [2026] SCC On Line SC 123, upheld the constitutional validity of Section 63(4) BSA and clarified that the “expert” required to sign the certificate under Part B of the Schedule is not restricted to Government notified Examiners under Section 79A of the IT Act, 2000 — any person possessing special skill and expertise in computer science and cyber forensics qualifies. This ruling supersedes the earlier Madras High Court position that had restricted certification to notified examiners.
Abstract
The enactment of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) marks a significant reform in India’s law of evidence, replacing the Indian Evidence Act, 1872. However, an important legal question arises regarding whether the new legislation applies to proceedings that were already pending before its commencement on 1 July 2024. This article examines the statutory framework governing the retrospective applicability of the BSA and analyzes the legal consequences arising from its transitional provisions. Particular emphasis is placed on Section 170 of the Act, which contains a savings clause preserving the application of the Indian Evidence Act, 1872 to all pending trials, inquiries, investigations, proceedings, and appeals.
The article further explores the practical implications of this legislative transition, especially in relation to electronic evidence. It compares the evidentiary requirements under Section 65B of the Indian Evidence Act, 1872 and Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, highlighting changes relating to certification requirements, hash value disclosure, and expert authentication. The study also examines key judicial precedents that continue to govern pending proceedings and discusses the limited exception allowing retrospective application of beneficial provisions in certain circumstances.
By analyzing statutory provisions, judicial interpretations, and practical challenges faced by legal practitioners, the article clarifies the temporal scope of the BSA and provides guidance on determining the applicable evidentiary regime. It concludes that the commencement date of a proceeding remains the decisive factor in determining whether the Indian Evidence Act, 1872 or the Bharatiya Sakshya Adhiniyam, 2023 applies, thereby ensuring legal certainty and procedural consistency in the administration of justice.
Case Laws
1. Anvar P.V. v. P.K. Basheer
This landmark judgment transformed the law relating to electronic evidence in India. The dispute concerned the admissibility of electronic records in an election petition. The Supreme Court held that electronic records can be admitted as evidence only in accordance with Sections 65A and 65B of the Indian Evidence Act, 1872. The Court clarified that a certificate under Section 65B(4) is mandatory when secondary electronic evidence is produced before a court. It further ruled that oral evidence cannot substitute the statutory certificate requirement. The judgment established that Sections 65A and 65B constitute a complete code governing electronic evidence and override the general provisions relating to secondary evidence. This case continues to govern electronic evidence in proceedings that commenced before 1 July 2024.
2. Arjun Panditrao Khotkar v. Kailash KushanraoGorantyal
In this case, the Supreme Court revisited the law laid down in Anvar P.V. and resolved conflicting judicial opinions regarding electronic evidence. The Court reaffirmed that the Section 65B(4) certificate is a mandatory prerequisite for the admissibility of secondary electronic records. It overruled the earlier decision in Shafhi Mohammad v. State of Himachal Pradesh, which had relaxed the certificate requirement. The Court also recognized a limited exception where the person relying on the electronic record does not have possession or control of the device from which the record originates. The judgment strengthened the evidentiary framework for digital evidence and remains the leading authority for pending proceedings governed by the Indian Evidence Act, 1872.
3. Pune Bar Association v. Union of India
This case addressed the constitutional validity and interpretation of Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023. The Supreme Court upheld the validity of the provision and clarified the qualifications required for a person certifying electronic evidence. The Court held that the expert signing the certificate need not be a Government-notified examiner under Section 79A of the Information Technology Act, 2000. Any individual possessing specialized knowledge and expertise in computer science, cyber forensics, or digital evidence may issue the certificate. The judgment significantly broadened the category of experts authorized to certify electronic records and provided practical guidance for the implementation of Section 63 BSA.
4. Ratan Lal v. State of Punjab
This landmark case established the principle of beneficent or beneficial construction in criminal law. The Supreme Court held that where a subsequent law is more beneficial to an accused person, courts may apply the beneficial provision retrospectively even if the offence was committed before the enactment of the new law. The principle aims to ensure fairness and justice in criminal proceedings. In the context of the Bharatiya SakshyaAdhiniyam, 2023, this decision forms the basis for arguments that beneficial provisions of the new legislation may, in limited circumstances, be extended to pending proceedings despite the general rule contained in Section 170.
5. Manpreet Kaur v. State of Punjab
The Punjab and Haryana High Court considered the transition from the old criminal laws to the generally continue under the law that was applicable when they commenced. However, it also acknowledged the principle that beneficial provisions of a new law may be applied where they operate in favour of the accused. The judgment provides contemporary judicial support for the limited exception to the rule against retrospective application and illustrates how courts may approach transitional issues arising from the implementation of the Bharatiya SakshyaAdhiniyam, 2023 and related legislation.
Main Discussion
I. The Ameliorative Exception: Beneficial Provisions
Section 170 BSA establishes the general rule of non-retrospectivity. However, Indian courts have consistently recognised a well-settled exception rooted in the principle of beneficent construction: where a new law introduces a provision that is beneficial or ameliorative to the accused — such as a reduction in punishment or a more favourable evidentiary rule — courts may apply it retrospectively to pending proceedings.
This principle, traceable to Ratan Lal v. State of Punjab, has been applied in the context of the new criminal laws by several High Courts, including the Rajasthan High Court and the Punjab and Haryana High Court [7], which have held that pending proceedings continue under the old law but beneficial provisions of the new law may be extended to the accused.
The practical application of this exception to the BSA requires a case-by-case assessment: – If a specific provision of the BSA is more favourable to the accused than its IEA counterpart, an argument for its application to pending trials may be advanced. – However, this exception doesnot apply to procedural or evidentiary provisions that are neutral or more onerous — such as the hash value requirement under Section 63 BSA Schedule, which imposes an additional statutory burden not present under Section 65B IEA.
II. Applicability of the BSA: Section 1 Scope Section 1 of the Bharatiya Sakshya Adhiniyam, 2023 [1] provides that the Act applies to all judicial proceedings in or before any Court, including Courts-martial, but explicitly excludes affidavits and proceedings before an arbitrator. This scope provision, read with Section 170, confirms that the BSA’s reach — while broad — is temporally limited to proceedings commenced after its commencement date.
III. Summary: Governing Law Matrix Proceeding Type Commenced Before July 1, 2024 Commenced On/After July 1, 2024 Criminal Trial Indian Evidence Act, 1872 BharatiyaSakshya Adhiniyam, 2023 Electronic Evidence Certificate Section 65B IEA Section 63 BSA Hash Value Requirem entForensic best practice (not statutory) Statutory — Schedule to BSA Expert for Certificate Responsible official per S.65B(4) Any qualified cyber forensics expert per S.63(4) BSAGoverning Precedent Anvar P.V Arjun Panditrao Khotkar Pune Bar Association v. UOI (2026).
Conclusion
I. Practical Guidance for Practitioners
1. Identify the commencement date of the proceeding — this is the single determinative factor. The date of the offence is irrelevant; what matters is when the trial/proceeding was initiated
. 2. For pending trials (pre-July 1, 2024): Continue to rely on Section 65B IEA Arjun Panditrao Khotkar [2] [3] and the [5] framework. Challenge electronic evidence on the basis of absence of a Section 65B(4) certificate where applicable.
3. For fresh trials (post-July 1, 2024): Apply Section 63 BSA [6]. Note that the hash value disclosure is now a statutory requirement, not merely a best practice. Ensure the certificate is obtained from a qualified expert — the restriction to Section 79A IT Act notified examiners has been overruled.
4. Do not conflate the two regimes. Citing Section 63 BSA in a pending trial, or Section 65B IEA in a fresh trial, is a fundamental procedural error that will be rejected by the court.
5. On the ameliorative exception: If a provision of the BSA is genuinely more favourable to your client in a pending trial, advance the argument for its application with reference to the principle of beneficent construction, but be prepared for the court to apply Section 170 BSA strictly.
FAQS
1. What is the Bharatiya Sakshya Adhiniyam, 2023 (BSA)?
The Bharatiya Sakshya Adhiniyam, 2023 is India’s new evidence law that replaced the Indian Evidence Act, 1872 and came into force on 1 July 2024.
2. Does the BSA apply to trials pending before 1 July 2024?
No. Section 170 of the BSA expressly provides that all trials, inquiries, investigations, proceedings, and appeals pending before 1 July 2024 will continue to be governed by the Indian Evidence Act, 1872.
3. What is the significance of Section 170 of the BSA?
Section 170 acts as a savings clause and establishes that the BSA has no retrospective application to pending proceedings.
4. Which law governs electronic evidence in pending trials?
For proceedings pending on or before 30 June 2024, electronic evidence continues to be governed by Sections 65A and 65B of the Indian Evidence Act, 1872.
5. Which provision governs electronic evidence in fresh proceedings after 1 July 2024?
Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 governs the admissibility of electronic records in proceedings commenced on or after 1 July 2024.
6. Is a certificate required for the admissibility of electronic evidence under the BSA?
Yes. Section 63(4) of the BSA requires a certificate identifying the electronic record, the device used, and the integrity of the data.
7. What is the role of hash values under the BSA?
Unlike the Indian Evidence Act, the BSA makes disclosure of the hash value a statutory requirement to ensure the authenticity and integrity of electronic records.
8. Can beneficial provisions of the BSA apply to pending trials?
In limited circumstances, courts may apply provisions that are beneficial to the accused based on the principle of beneficent construction, though Section 170 generally mandates application of the old law to pending proceedings.
9. Which landmark cases govern electronic evidence under the Indian Evidence Act?
The leading cases are Anvar P.V. v. P.K. Basheer and ArjunPanditrao Khotkar v. Kailash Kushanrao Gorantyal, which established and reaffirmed the requirement of a Section 65B certificate for electronic evidence.
10. What is the most important factor in determining whether the IEA or BSA applies?
The decisive factor is the date on which the proceeding commenced. Proceedings initiated before 1 July 2024 are governed by the Indian Evidence Act, 1872, while those initiated on or after that date are governed by the BharatiyaSakshya Adhiniyam, 2023.
