Understanding E-Evidence Under Bhartiya Sakshya Adhiniyam 2023: Key Provisions And Implications

The Bhartiya Sakshya Adhiniyam 2023 marks a significant shift in the legal landscape of India, particularly with its provisions concerning electronic evidence, commonly referred to as e-evidence. In the digital age, where vast amounts of information are generated, stored, and transmitted electronically, the recognition and regulation of e-evidence have become crucial. This article delves into the key provisions related to e-evidence under the Bhartiya Sakshya Adhiniyam 2023 and explores the implications of these provisions for the Indian legal system.

Key provisions-

1. E-Evidence

The Indian Evidence Act, 1872 (IEA), included provisions for recognizing and admitting 'electronic records' as evidence. Section 65B of the IEA governed the conditions for the admissibility of these electronic records.

Section 65A

Section 65A of the IEA establishes the general admissibility of electronic records. It stipulates that any information contained in an electronic record, whether printed or otherwise, is considered a document and can be admitted as evidence in legal proceedings without requiring further proof.

Section 65B

Section 65B outlines the specific conditions that must be met for electronic evidence to be admissible. The electronic evidence must be accompanied by a certificate in a prescribed format, which identifies the electronic record containing the statement and describes the manner of its production. This certificate is typically issued by someone in a responsible official position related to the operation of the relevant device or the management of the relevant activities.

Bhartiya Sakshya Adhiniyam, 2023 (BSA) - Section 63

Under the Bhartiya Sakshya Adhiniyam, 2023 (BSA), the admissibility of electronic records is specified in Section 63. The requirements for admissibility are almost identical to those in the IEA, with the addition of the phrase 'and an expert.' A notable change in the BSA is the introduction of a specified format for the certificate required under Section 63, detailed in the BSA's Schedule. This certificate is divided into two parts: Part A, which must be completed by the party presenting the electronic records, and Part B, which must be completed by an expert.

2. Admissibility of E-Evidence

Under Section 65A of the Indian Evidence Act, the contents of electronic records must be proven as evidence by the requirements of Section 65B. Both Sections 65A and 65B, added through the Indian Evidence (Amendment) Act, 2000, are part of Chapter V of the Evidence Act, which addresses documentary evidence. The Anvar v. Basheer case clarified that Section 65B, which starts with a non-obstante clause, acts as a comprehensive code for the admissibility of electronic evidence.

Section 65B(1)

Section 65B(1) states that any information contained in an electronic record, stored, recorded, or copied as a computer output, is considered a 'document' and is admissible as evidence without needing further proof or the production of the originals, provided specific conditions are met. Section 65B(2) outlines the criteria that must be satisfied for the information to qualify as a 'computer output.'

Bhartiya Sakshya Adhiniyam, 2023

The Bhartiya Sakshya Adhiniyam 2023 has broadened the definition of e-evidence by including "electronic and digital records" in the definition of "document." Section 61 of the Bhartiya Sakshya Adhiniyam states, "Nothing in this Act shall be used to deny the admissibility of an electronic or digital record as evidence on the basis that it is an electronic or digital record. Such records, subject to Section 63, shall have the same legal effect, validity, and enforceability as other documents." This provision places electronic records on par with documentary evidence, similar to their treatment under the Indian Evidence Act, 1872, as amended by the Information Technology Act.

3. Authentication of E-Evidence

The Indian Evidence Act, through Sections 65A and 65B, outlines the legal framework for the authentication and admissibility of electronic evidence. Introduced by the Indian Evidence (Amendment) Act, 2000, these sections address the increasing use of electronic records.

Section 65A requires that the contents of electronic records be proven according to Section 65B. Section 65B(1) states that any information stored, recorded, or copied in optical or magnetic media produced by a computer is deemed a document and is admissible as evidence if specific conditions are met. Section 65B(2) details these conditions, including the regular use of the computer for lawful activities, regular feeding of information into the computer, proper computer operation, and accurate reproduction of information. Section 65B(4) necessitates a certificate from a responsible official, identifying the electronic record and describing its production process.

The Bhartiya Sakshya Adhiniyam 2023 builds on the Indian Evidence Act with updated provisions to address the current digital landscape.

Section 61 ensures that electronic or digital records cannot be denied admissibility solely because they are electronic. These records have the same legal effect, validity, and enforceability as other documents, subject to Section 63.

The Adhiniyam emphasizes robust authentication methods, including digital signatures and hash values for verifying the origin and integrity of electronic records, a documented chain of custody to maintain evidence integrity, and expert testimony to explain technical aspects and validate the evidence collection and preservation process.

Additionally, the Adhiniyam mandates a certification process similar to Section 65B(4) of the Indian Evidence Act, with added safeguards and criteria to address cybersecurity concerns and technological advancements.

Implications for the legal system

1. Enhanced Efficiency in Legal Proceedings

The explicit recognition and regulation of e-evidence under the Bhartiya Sakshya Adhiniyam 2023 streamline the legal process by providing clear guidelines on its admissibility and authentication. This reduces ambiguity and ensures that digital evidence is treated with the same rigor as traditional forms of evidence, leading to more efficient and timely legal proceedings. The standardization of procedures for handling e-evidence minimizes delays and procedural disputes, contributing to a more efficient judicial system.

2. Increased Reliance on Digital Forensics

With the growing importance of e-evidence, there will be an increased reliance on digital forensics and forensic experts. This necessitates investment in training and resources to build capacity among law enforcement agencies and legal professionals to handle digital evidence effectively. The demand for skilled digital forensic experts will rise, requiring educational institutions and training programs to expand their offerings in this field. Additionally, legal professionals will need to familiarize themselves with the technical aspects of e-evidence to effectively argue cases involving digital data

3. Challenges of Implementation

Despite the clear provisions of the Bhartiya Sakshya Adhiniyam 2023, the practical implementation of e-evidence regulations poses challenges. Ensuring the integrity of digital evidence, preventing tampering, and maintaining a reliable chain of custody requires robust technical infrastructure and expertise. Law enforcement agencies and the judiciary must invest in advanced technologies and cybersecurity measures to protect electronic records. Furthermore, the rapidly evolving nature of technology demands continuous updates to legal frameworks and practices. Keeping the legal system in sync with technological advancements will be an ongoing challenge.

4. Balancing Privacy and Legal Requirements

The Act's provisions must balance the need for digital evidence in legal proceedings with the protection of individual privacy rights. This requires careful consideration to prevent misuse of digital evidence and to ensure that privacy concerns are adequately addressed. Legislators and policymakers must craft regulations that protect personal data while allowing relevant digital evidence to be admissible in court. Data protection laws and privacy policies will need to be harmonized with the requirements of the Bhartiya Sakshya Adhiniyam 2023 to ensure a fair and just legal process.

The Bhartiya Sakshya Adhiniyam 2023 advances India's legal framework by recognizing and regulating e-evidence, transforming judicial processes. Clear guidelines on admissibility and authentication ensure digital evidence is treated with the same rigour as traditional forms, streamlining legal proceedings and reducing disputes, thus enhancing efficiency and trust in the judicial system.

However, this shift requires significant investment in digital forensics and expert training. Law enforcement and judiciary must build capacity to manage and analyze digital evidence, including expanding educational programs. Legal professionals need technical proficiency to handle digital evidence effectively.

Implementing the Act presents challenges like ensuring the integrity of digital evidence, preventing tampering, and maintaining a reliable chain of custody, demanding advanced infrastructure and expertise. Continuous legal updates are essential to keep pace with technological advancements.

Balancing digital evidence needs with privacy protection is crucial. Legislators must create regulations safeguarding personal data while allowing relevant digital evidence in court, ensuring a fair and just legal process.[i]