Admissibility of Digital Evidence under the Bharatiya Sakshya Adhiniyam 2023

India’s evidentiary law has entered a new era with the enactment of the Bharatiya Sakshya Adhiniyam, 2023. Replacing the 150-year-old Indian Evidence Act, 1872, the new statute modernises the rules of proof to reflect today’s digital reality where emails, WhatsApp chats, CCTV footage, server logs, and cloud data routinely decide cases.

Enforced from 1 July 2024, the Act forms part of the new criminal law framework alongside the Bharatiya Nyaya Sanhita, 2023 (BNS) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Together, they establish a technology-aligned justice system.

This comprehensive guide explains the admissibility of digital evidence under the Bharatiya Sakshya Adhiniyam, 2023, including structure, certification rules, compliance requirements, judicial interpretation, and practical impact.

Legislative Background & Constitutional Foundation

Parliament enacted the Bharatiya Sakshya Adhiniyam, 2023 (BSA) to:

• Replace colonial-era evidentiary rules
• Recognise electronic records as mainstream documentary evidence
• Align trial procedures with Articles 14, 20, and 21 of the Constitution (fair trial and due process)
• Integrate digital forensics into criminal justice

The Act came into force via Official Gazette notification on July 1, 2024.

It now governs all judicial proceedings in India civil, criminal, and quasi-judicial (except arbitration proceedings governed separately).

Structure of the Bharatiya Sakshya Adhiniyam 2023

The Act contains:

• 12 Chapters
• 170 Sections

Key structural highlights:

• Section 2 – Definitions (expands “document” and “evidence” to include electronic records)
• Chapters on relevancy, admissions, confessions
• Dedicated provisions governing documentary and electronic evidence
• Schedule prescribing certificate format for digital records

Unlike regulatory statutes, the BSA does not create a separate authority. Courts enforce compliance within existing procedural systems under the BNSS.

Digital Evidence under the Bharatiya Sakshya Adhiniyam 2023

Electronic Records as Documentary Evidence

Under Section 2, “document” explicitly includes:

• Emails
• Text messages & WhatsApp chats
• CCTV footage
• Call detail records
• Cloud-stored data
• Server logs
• Electronic contracts
• Social media posts
• GPS records

Section 57 recognises electronic records as documentary evidence on par with paper documents.

This eliminates the earlier uncertainty under Section 65B of the old Act.

Section 61 – Proof & Certificate Requirement

Section 61 is the cornerstone provision governing admissibility of digital evidence.

An electronic record is admissible if:

1. It is accompanied by a certificate
2. The certificate is issued by a person in a “responsible official position”
3. It identifies:
   • The device
   • The manner of production
   • Proper functioning of the system
   • Integrity of the data

This provision codifies principles laid down in:

• Anvar P.V. v. P.K. Basheer (2014)
• Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

The certificate is generally mandatory when producing secondary electronic evidence.

Section 62 – Relaxation in Exceptional Circumstances

A significant reform.

If obtaining the certificate is not reasonably practicable, courts may admit electronic records without it, subject to judicial satisfaction.

This provides limited flexibility where:

• Data is controlled by foreign platforms
• Service providers refuse cooperation
• Systems are defunct

The discretion rests strictly with the court.

Section 63 – Presumption of Integrity

Courts may presume that:

• A secure electronic record
• Digitally signed document
• Government-issued electronic certificate

has not been altered since its creation.

This presumption is rebuttable.

Primary vs Secondary Electronic Evidence

The BSA clarifies:

Primary Evidence refers to the original electronic source itself, such as the actual mobile phone, computer, server, hard drive, or the original digital file stored in its native format.

Secondary Evidence refers to copies or reproductions of the original electronic record, including printouts, screenshots, scanned copies, or extracted files, which require proper authentication and certification for admissibility.

Screenshots and printouts require authentication under Section 61.

Integration with BNSS & BNS

Under the BNSS, 2023:

• Section 105 – Production of electronic records during investigation
• Section 176 – Mandatory forensic examination in serious offences
• Electronic seizure must follow chain-of-custody procedures
• Videography of search and seizure enhances transparency

Under the BNS, 2023:

Digital offences include:

• Forgery of electronic records (Sections 336–340)
• Giving false evidence (Section 229)
• Cheating, impersonation, cyber fraud

Producing a false digital certificate may attract criminal liability.

Duties & Compliance Requirements

For Individuals

• WhatsApp screenshots require Section 61 certificate
• Deleted messages must be recovered via forensic process
• Metadata and hash values strengthen authenticity

For Businesses

Companies must:

• Maintain secure log management systems
• Preserve CCTV footage
• Retain transaction logs
• Designate authorised officials to issue certificates
• Ensure SHA-256 / MD5 hash values for forensic integrity

Failure may render evidence inadmissible.

For Investigating Agencies

• Maintain chain of custody
• Conduct forensic imaging
• Provide valid Section 61 certificate at filing stage

Important Judicial Principles (Transition Phase)

Though BSA-specific precedents remain limited (as of 2026), courts rely on earlier Supreme Court rulings:

1. Anvar P.V. v. P.K. Basheer (2014)

Electronic evidence requires certification.

2. Arjun Panditrao (2020)

A certificate is mandatory for secondary electronic evidence.

3. Shafhi Mohammad (2018)

Limited flexibility is now partly reflected in Section 62.

These remain persuasive for interpreting Sections 61–63.

Common Misconceptions

• A screenshot or printout is not automatically admissible in court. It must be properly authenticated and supported by a valid certificate under Section 61 of the Bharatiya Sakshya Adhiniyam, 2023.
• Digital evidence is not limited to cybercrime cases. It is relevant in all types of proceedings, including murder trials, matrimonial disputes, employment litigation, financial fraud, contractual disputes, and property matters.
• The certificate for electronic evidence cannot be issued by just any employee. It must be signed by a person occupying a responsible official position who has lawful control over the device or system that generated or stored the data.
• Judicial precedents under the Indian Evidence Act, especially Supreme Court rulings on Section 65B, continue to guide courts. These principles remain highly persuasive when interpreting Sections 61 to 63 of the Bharatiya Sakshya Adhiniyam, 2023.

Practical Impact of the BSA

On Individuals

Digital communications can both protect and incriminate. Responsible digital conduct is critical.

On Businesses

Corporate litigation now heavily depends on data retention compliance.

On Government

Supports Digital India and e-governance legitimacy.

Emerging Concerns

• Deepfakes
• AI-generated content
• Encrypted platforms
• Cross-border cloud data

Courts may face new challenges beyond current statutory language.

FAQs

Legal Significance

The Bharatiya Sakshya Adhiniyam, 2023 establishes a Digital-First evidentiary framework in India.

It:

• Elevates electronic records to mainstream documentary evidence
• Codifies certificate safeguards
• Introduces limited judicial flexibility
• Aligns with modern forensic standards
• Supports efficient prosecution of digital crimes

Compliance is no longer optional. It is foundational to admissibility.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Please consult a qualified legal professional for specific guidance.

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