Admissibility Of Electronic Evidence Under Bharatiya Sakshya Adhiniyam (New Evidence Act)

The Bharatiya Sakshya Adhiniyam 2023(BSB) includes "electronic and digital records" in the definition of "Document". This definition now covers a diverse range of electronic records, including emails, server logs, files stored on computers, laptops, or smartphones, text messages, website content, location data, voice mails, and messages stored on digital devices.

Let's understand the changes introduced on the admissibility of electronic or digital evidence under BSB: -

1. Treating Electronic Evidence at par with Primary Evidence:  Section 61 of BSB states that, “Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”

This Section treats electronic records at par with documentary evidence, as already treated under the Indian Evidence Act, 1872 as amended by the Information Technology Act, 2000. 

The BSB under Section 57 defines “primary evidence” and carries four other explanations named 4, 5, 6 and 7, in addition to the three explanations mentioned in IEA. According to the BSB provisions, electronic or digital records would be treated as primary evidence in the following four circumstances: -

a. Explanation 4 states that “Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.”

b. Explanation 5 states that “Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.”

c. Explanation 6 states that “Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.”

d. Explanation 7 states that “Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.”

2. Addition to the Definition of “Document” and “Evidence”: BSB now defines document as “document means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.” Thus, the new law considers electronic and digital records under the definition of document, which was not a part under IEA. Further, new illustration (vi) added to the definition of documents to account for electronic records – “An electronic record on emails, server logs, documents on computers, laptop, or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.”

Similarly, BSB made an addition to the definition of evidence which shall include 'information given electronically´ within oral evidence and 'or digital records' within documentary evidence, as not provided under the IEA.

3. Expanding the reach of “electronic evidence”: The BSB introduces significant modifications in the realm of electronic evidence, bringing about substantive changes alongside primary/secondary evidence considerations. Section 63 of BSB expands its reach to electronic records in semiconductor memories, in addition to those on paper and stored/recorded/copied in optical or magnetic media. Furthermore, the provision extends its applicability to encompass 'any communication device,' broadening its scope. Subsection (3) of the provision refines the definition of a computer or a communication device, providing it with a more comprehensive interpretation.

4. Condition of Mandatory Production of Certificate Retained but requires an approval from an expert too: It is important to note that the sub-section (4) of the BSB Section 63 maintains the mandatory requirement of a certificate as specified under Section 65B (4) of the IEA but specifies that the certificate must be submitted along with the electronic record each time electronic evidence is presented before a court. Additionally, the revised provision clarifies that the certificate can be provided by any person 'in charge of the computer or communication device and an expert (whichever is appropriate),' replacing the previous requirement for a person 'occupying a responsible official position.'

5. Introduction of Format of Production of Certificate for production of electronic or digital records: While the IEA did not specify the form of the certificate to be produced for the proof of the secondary evidence, and is often presented as an affidavit in practice, however, the Section 63(4)(c) of BSB2 introduces a Schedule A and B for this purpose. Part A needs to be filled by the Party producing the electronic record/output of the digital record, and Part B needs to be filled by an expert to submit that the HASH value/s of the electronic/digital record/ is produced from the given algorithms in the form itself.

It is worthwhile to mention that the report of the Parliamentary Committee on Home Affairs addressed concerns over admission of electronic records as primary evidence produced from proper custody, as it might lead to a tempering of evidence as the new law has no mention about ensuring the maintenance of a proper chain of custody of digital and electronic records acquired during investigations. The relevant excerpt of the report is produced below:

“4.7.2 The Committee is of the opinion that safeguarding the authenticity and integrity of electronic and digital records acquired during the course of investigation is crucial due to the fact that such evidences are prone to tampering. The Committee takes into account the suggestion submitted before the Committee and recommends that a provision may be inserted to mandate that all electronic and digital records acquired as evidence during the course of investigation are securely handled and processed through proper chain of custody. Appropriate provision in this regard may be made in the Bharatiya Nagarik Suraksha Sanhita, 2023.”

Click here to read the Bharatiya Nyaya Sanhita 2023 (new IPC)

Click here to read the Bharatiya Nagarik Suraksha Sanhita 2023 (new CrPC)

Click here read the Bharatiya Sakshya Bll 2023 (new Evidence Act)