“CLICK TO CONVICT? A CRITICAL EXAMINATION OF THE ADMISSIBILITY AND RELIABILITY OF ELECTRONIC EVIDENCE UNDER THE BHARATIYA SAKSHYA ADHINIYAM, 2023”

By: -        Natasha Rocha is a 4th year BBA LLB Law student, studying at  ISBR Law College affiliated to Karnataka State Law University.

-        Critically examining the admissibility and reliability of electronic evidence under the Bharatiya Sakshya Adhiniyam, 2023.

Introduction

In today’s digital era, electronic evidence forms the cornerstone of modern litigation and criminal investigations. From WhatsApp chats and CCTV footage to emails and digital signatures, courts increasingly rely on such data to ascertain facts. With the enactment of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaces the colonial Indian Evidence Act, 1872, India has taken a significant step in modernising its evidentiary framework. A key area of transformation lies in the legal treatment of electronic evidence. But while the legislation expands the scope of digital proof, it also raises critical questions about authenticity, manipulation, privacy, and procedural safeguards.

This blog critically examines the admissibility and reliability of electronic evidence under the BSA, 2023, unpacking its implications for justice in a tech-driven society.

Legislative Background: The Need for Change

The Indian Evidence Act of 1872, though pioneering for its time, was ill-equipped to deal with the explosion of digital technologies. Courts had to interpret outdated provisions to accommodate emails, CDs, cloud storage, and encrypted data. Although Section 65B (inserted via the IT Act, 2000) offered a framework for admitting electronic records, it faced criticism for being cumbersome and ambiguous.

Recognising these limitations, the BSA 2023 was introduced to align evidentiary rules with contemporary technological realities. The law brings much-needed clarity and comprehensiveness to electronic records, redefining them, specifying admissibility norms, and enhancing evidentiary value.

What Is Electronic Evidence under the BSA, 2023?

Under Section 2(1)(d) of the Bharatiya Sakshya Adhiniyam, 2023, “electronic record” has been broadly defined to include data, messages, documents, images, or sound produced, stored, or transmitted in electronic form, including computers, cloud storage, smartphones, and more.

Section 61 of the BSA explicitly recognizes electronic records as documents. Section 62 further affirms that such documents can be proved in court by producing the original or through secondary electronic evidence, subject to certain conditions.

Admissibility: Certificate Still Required?

Yes and No. The most debated provision under the old Act, Section 65B(4), required a certificate for the admissibility of electronic evidence.

The Supreme Court in “Anvar P.V. v. P.K. Basheer (2014)” and “Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)”

-        Reiterated its mandatory nature.

-        The certificate was to vouch for the integrity of the data and device.

Under BSA, 2023, Section 63 mirrors this concept by requiring a certificate in prescribed format for the admissibility of secondary electronic records. This certificate must:

• Identify the electronic record

• Describe the manner of its production

• Provide device details

• Be signed by a responsible official

Criticism:

• Rigidity: It continues the same inflexible approach, even when the party has no access to the source device (e.g., CCTV footage held by third party).

• Delays: Gathering such a certificate can be time-consuming and affect speedy justice.

• Evidentiary Paradox: In some cases, the content is widely accepted (like viral videos), but courts still reject it for lack of proper certification.

Positives:

• Enhances authenticity and prevents doctored or tampered evidence.

• Brings uniformity in process and avoids judicial confusion.

Reliability: Can We Trust Electronic Evidence?

Electronic evidence can be easily “manipulated, deleted, altered, or forged”. Questions often arise regarding:

• Metadata tampering

• Deepfakes and AI-generated content

• Spoofing and hacking

• Device integrity

The BSA attempts to counter this by allowing courts to:

• Require hash values and digital signatures

• Examine the digital chain of custody

• Call for expert opinions under Section 45

• Instruct forensic examinations by certified laboratories

However, the reliability still hinges heavily on technical expertise, proper data preservation, and timely collection.

Judicial Attitudes and Case Law Trends

While the BSA is new, courts are likely to lean on precedents from the IEA era for interpretation.

Some guiding cases:

1.    Anvar P.V. (2014)

-        Clarified need for certification and ruled out oral admission of electronic records without proper format.

2.    Arjun Panditrao (2020)

-        Held that in some cases, certificate can be produced later or waived if original device is before the court.

3.    State of Delhi v. Mohd. Afzal (Parliament Attack case)

-        Emphasised the need for strict scrutiny due to ease of tampering.

Future jurisprudence under BSA will likely explore balancing procedural rigour with practical flexibility, especially as digital technologies evolve.

Challenges in Implementation

1. Lack of technical awareness among police, lawyers, and lower judiciary.

2. Non-standardisation of digital forensics in India.

3. Private tech giants (e.g., WhatsApp, Google) may refuse to cooperate fully or delay responses to requests.

4. Absence of clear retention policies for service providers.

Privacy and Constitutional Concerns

Admissibility of electronic evidence also interacts with Right to Privacy (Article 21).

• Illegally obtained evidence (e.g., phone tapping without warrant) raises constitutional concerns.

• BSA does not explicitly bar such evidence, but courts may apply the “balancing test” of public interest vs. individual rights.

• The “Puttaswamy” judgment (2017) underlines the need for procedural safeguards.

Comparative Insight: How Other Countries Handle It

• UK: No mandatory certificate; courts rely on reliability and context.

• USA: Admissibility governed by Federal Rules of Evidence (FRE), with focus on authenticity and chain of custody.

• Singapore: Requires electronic records to satisfy reliability criteria, but certificate is not the sole condition.

India’s insistence on certification can be seen as both a strength (rigour) and a weakness (inflexibility).

Way Forward

1. Amend certificate requirements to allow exceptions where necessary.

2. Standardise digital forensic protocols.

3. Train judicial officers in understanding digital evidence.

4. Establish special cyber-evidence benches or expert panels.

5. Ensure stronger coordination between investigating agencies and tech platforms.

Conclusion

The Bharatiya Sakshya Adhiniyam, 2023 is a bold attempt to modernise India’s evidentiary laws. Its recognition and regulation of electronic evidence are timely and progressive. However, admissibility alone does not guarantee justice. As we move toward a digital-first society, courts must tread carefully—upholding both the reliability of evidence and the rights of the accused. A balance between technological adaptability and legal safeguards is essential to ensure that justice is not only done but also seen to be done—even in a world ruled by data.

Date: 01st August 2025.