The Evolving Enigma

**Mayank Khichar

The core concern

As digital evidence becomes (more) central to modern litigation, the question is no longer whether it should be admissible, but how we ensure its reliability within the constraints of existing legal and forensic systems. The Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) assumes that such an evidence (admissible under Section 61) becomes reliable through formal certification (only), via hash verification and signatures from (merely) a device controller and an “expert.” This, arguably, rests on the belief that expert validation enhances probative value. But such a model presumes access to both institutional capacity and qualified experts, an assumption that falters due to insufficiency of Indian Forensic Science Laboratories (“FSLs”).

This article argues that while the procedural requirement(s) under the BSA aim to ensure evidentiary reliability, it risks burdening a system already facing personnel shortages and inadequate infrastructure. Hence, it may be maintained that rather than securing evidentiary reliability, the dual certification evidently leads to delay(s), superficial compliance, and exclusion of legitimate evidence. Ironically, a rule meant to ensure reliability may weaken it by straining the very institutions meant to uphold it.

How the law ‘evolved’ from the Indian Evidence Act to the BSA

Tracing from the (erstwhile) Indian Evidence Act, 1872 (“IEA”) to the new BSA, India has made a forward legislative move towards how courts interpret and admit electronic records. For well over a century, IEA guided litigants and courts on the proof of documents and the process of adducing relevant evidence during court proceedings. The IEA originally governed the admissibility of documents and introduced Sections 65A and 65B for electronic records via the Information Technology Act, 2000. Section 65A states, 

“The contents of electronic records may be proved in accordance with the provisions of Section 65B”. 

Further Section 65B(1) provides, 

“Notwithstanding anything contained in this Act, any information contained in an electronic record… shall be deemed to be also a document, if it is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer”. 

Most crucially, Section 65B(4) provides, 

“In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things… shall be evidence of any matter stated in the certificate”.

Due to the increasing usage and prevalence of electronic records in courts and by litigants, Parliament proactively inserted these provisions to establish a uniform framework for managing digital evidence. The significance and requirement of this intervention was noted by the Supreme Court (“SC”) in Anvar P.V. v. P.K. Basheer & Ors., (“Anvar”) where the Court adjudicated on the necessity of a certificate under Section 65B(4) of the IEA. The Court, upon interpretation, held that, “…any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B”. i.e. through a certificate. The Court further clarified that, “The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2)”, namely (a) The computer was used regularly and lawfully for that activity; (b) Data of the same kind was regularly fed into it in the usual course; (c) The computer operated properly, or any malfunction did not affect the record’s accuracy; and (d) The record directly reproduces or derives from the data so fed in the ordinary course. This strict interpretation demonstrates the inherent fragility of bits and bytes, as they can be manipulated without leaving any overt physical traces and hence compromising the reliability of electronic evidence.

Further, in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. (“A. P. Khotkar”), the Supreme Court reaffirmed that despite allowing room for practical considerations, the principle that intangible digital evidence warrants increased scrutiny should remain intact. The Court noted and held that “…the applicability of procedural requirement under Section 65B(4) of the IEA of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate”. The Court further affirmed, “In case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded”.

Ultimately, the entire (older) regime underwent a transformative change when the BSA, came into force, repealing the IEA altogether. Provisions such as Section 57 and Section 61 of the BSA now classify electronic records as “primary evidence”. Section 57 states, 

“Primary evidence means the document itself produced for the inspection of the Court”. 

Hence, any document, be it electronic or digital under Section 61 is not inadmissible by the virtue of it being in just electronic or digital format. In this realm, under Section 63 of BSA, an electronic record that meets specified requirements, is to be treated as a “document” on par with physical evidence and it may be admitted in court without the need to produce the original or provide further proof. Essentially, the law removes any default assumption of digital evidence being “secondary” and recognises that, once these conditions are satisfied, the electronic record carries the same probative weight as any tangible document. 

Procedural Rigour with Practical Challenges

Furthermore, with respect to the certification requirement(s) under Section 63(4), the (amended) law provides for a two-tiered structure, where the validity of an electronic record or computer output must be attested by both (a) the person operating the device and (b) an certifying “expert”,  who, according to the interpretation of SC in State of Himachal Pradesh v. Jai Lal (“Jai Lal”), is “an individual having made a special study of the subject or acquired special experience therein or in other words he is skilled and has adequate knowledge of the subject”, thereby testifying w.r.t the integrity of the system. In this regard, Section 79A of the Information Technology Act, (“IT Act”) 2000 also enables the Central Government to notify an examiner of electronic evidence, which may be any department, body or agency of the Central Government or a State Government to help court establish the authenticity of such document (Section 2(1)(d) BSA), which may be maintained as a check on arbitrary admissibility of such evidence (more prominently on privately certified ‘expert’ evidence, referred elsewhere in this piece). This shift towards a two-tiered requirement,  though prima facie a well-intentioned attempt to enhance the evidentiary reliability in digital records, in practice, however, arguably risks doing more harm than good. 

This is, firstly, because FSLs in India are already overburdened, with multiple vacancies, delays, and inadequate technical resources. Secondly, the increasing reliance on ‘experts’, especially the ones privately appointed, for the certification of electronic evidence risks enabling arbitrariness, and undermines the judicial fact-finding function envisioned under the BSA, more prominently in the absence of statutory standards governing their qualifications, roles, and the certification process itself.

In light of the above, if cryptographic scrutiny and dual-authentication certificates become routine requirements, FSLs and cyber units would essentially face additional pressure, delaying investigations and prosecutions. This increased dependence on highly trained experts, few of whom are available in public infrastructure, exposes the system to risks of procedural stagnation, which leads to violation of crucial fundamental rights, such as that of ‘right to speedy trial’ under Article 21 and 22(2) of the accused (detainee).

Further compounding the tension, Section 330 of the Bharatiya Nagarik Suraksha Sanhita (“BNSS”), 2023 provides that an expert witness is (only) required to appear in court, if their report is formally contested by the opposite party at the trial. As a consequence, ‘expert’ certificates that remain undisputed are, arguably, exempt from adversarial scrutiny, insulating potentially flawed or arbitrary analyses from judicial assessment. This statutory regime, in combination with persistent under‑resourcing of legal aid, where defense counsel (representing the indigent accused) frequently lacks the financial means and technical expertise to challenge such reports, which further promotes impunity, where economically equipped parties may forge multiple private ‘expert’ certificates, whereas indigent accused persons are unable to contest such ‘expert’ opinions.

Hence, the severe practical ramifications of creating such a two-tiered structure arise, where on one hand, uncontested ‘expert’ reports are accepted without critical evaluation and on the other, contested ones are deployed selectively and tactically to generate case delays, thereby increasing judicial backlogs, and undermining both the fairness of judicial fact‑finding and the fundamental rights of accused detainees.

Fragility of Digital Evidence and Presumptive Risks

Moreover, at another level, the very nature of digital evidence adds complexity as data can be altered subtly without the metadata manipulation being made visible, and hence the integrity of the same being compromised. These issues are arguably such that no certificate (requirement) alone can remedy. By mandating a rigid two-tiered system without parallel investment in forensic readiness, BSA becomes more prone to bottlenecks than breakthroughs. And to remedy the same, therefore, our legal reforms must reflect not just what should be done in principle, but what can be sustained in practice.

In light of the abovementioned complexities, the invisible nature of digital evidence poses continuing challenges, as emails, chat transcripts, and video footage carry no self-evident mark of tampering. Hash values (digital “fingerprints” for files that change if even one digit of the file changes) and chain-of-custody logs (written records that show exactly who handled the evidence and when) help mitigate risk by exposing even minute alterations, yet advanced technologies are already capable of creating deepfakes with seamless metadata. Ephemeral messaging further complicates the situation as it deletes records automatically, making some evidence to disappear.

What does BSA offer?

Under the BSA, the electronic evidence now holds “primary” legal status, but only if it meets strict certification standards. This change essentially shifts the burden of proof onto those challenging such evidence, for the most part individuals or small entities who generally lack the resources to dispute a formally “valid” certificate. Accordingly, it can reasonably be claimed that there is a growing risk that courts begin to ‘presume’ the authenticity of such evidence by default, even when its reliability has not been truly established. This unintended effect, arguably, raises serious concerns about fairness and access to justice in trials involving digital evidence.

Furthermore, Section 170 of the BSA clarifies regarding carryover of cases, stating, 

“Repeal and savings.—(1) The Indian Evidence Act, 1872 (1 of 1872) is hereby repealed. (2) Notwithstanding such repeal, if, immediately before the date on which this Adhiniyam comes into force, there is any application, trial, inquiry, investigation, proceeding or appeal pending, then, such application, trial, inquiry, investigation, proceeding or appeal shall be dealt with under the provisions of the Indian Evidence Act, 1872 (1 of 1872), as in force immediately before such commencement, as if this Adhiniyam had not come into force”.

This transition means some ongoing cases continue under the earlier regime of IEA, including the old Section 65B certificate requirement. Consequently, if we retroactively align existing evidence with the stricter standards of the BSA, new suspicions arise over tampering and rehashing data. Even though the Supreme Court in A. P. Khotkar allowed delayed submission of certificates, but allowing intangible digital proof across these dual frameworks could lead to fresh litigation.

Therefore, whether the BSA achieves the intended harmonisation of the evidentiary framework with the realities of a digitised world will depend partly on how courts interpret its demanding certification provisions and partly on the capacity of domestic forensic institutions (FSLs).

Insights from other Legal Systems

Globally, jurisdictions confronting similar challenges of digital admissibility have adopted varied approaches. In the United States, FRE Rule 901 demands only that “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is,” which in turn leaves the substantial authenticity challenges to the adversarial disputation. The UK Civil Evidence Act, (“CEA”) 1995, on similar lines, streamlines admissibility by refusing to exclude evidence merely because it is hearsay, prioritising reliability over certification.

Further, the Canadian Evidence Act (“Act”) 1985, more importantly, under Section 31.1 provides for direct burden of proof on the person seeking to admit such electronic evidence and under Section 31.5 provides room for admissibility standards for such an evidence as it permits, but does not require, reference to compliance with recognised standards such as CGSB‑72.34. This, favorably, shifts focus on the integrity of the electronic system rather than formal certification of individual records. Additionally, Section 31.2 of the Act clarifies that compliance with the ‘best evidence rule’ (also applicable in India) is satisfied merely through proof of system reliability, thereby shifting the focus from document-specific authenticity to soundness of the system itself. Notably, Section 31.3 further supports this by establishing three presumptions of integrity i.e. (a) proper system operation, (b) origin from an adverse party, and (c) creation in the ordinary course by a neutral third party, all of which are considered equally valid in the absence of contrary evidence. This model, arguably, avoids rigid proceduralism in a conscious manner and offers a technologically neutral, context-sensitive alternative to traditional evidentiary thresholds, thus providing a more functional application of the ‘best evidence rule’ in the digital era.

By contrast to the above, BSA mandates a certificate specifying a hash value and bearing two signatures (as already discussed elsewhere) one from the device controller and an undefined “expert.” While this may (seem to) reinforce evidence in a system long troubled by uncertainty over digital evidence, but it risks burdening already strained FSLs and practitioners forced to handle time-intensive cryptographic checks, potentially weakening the very integrity it aims to protect.

Conclusion

Therefore, the shift towards designating electronic records as “primary evidence” under Section 57 read with Section 61 of the BSA represents a substantive addition to the statutory regime, yet the insistence on formal certification, under Section 63(4), through dual attestation by a “device controller” and an undefined “expert” threatens to make rigid a procedure meant to uphold substantive reliability. This shift, as argued above, essentially externalises probative judgment to technically produced (forged) documents, especially where Section 330 of the BNSS permits expert reports to bypass cross-examination unless formally contested. This makes it nearly impossible for indigent accused persons lacking access to such technical expertise or legal aid.These statutory ramifications are further compounded by infrastructural inadequacy, where current FSLs remain under-resourced, and the uncertainty surrounding who qualifies as an “expert”, though attempted to be clarified in Jai Lal, invites for potential abuse. Further, by presuming evidentiary validity through a hash and signature, the current regime understates the potential pliability of digital data, a concern which repeatedly surfaced in Anvar P.V. and A. P. Khotkar. These rulings accentuate the need for taking a dynamic and fact-sensitive approach, especially when the certificate(s) is/are unavailable or unsuitable. In this light, the comparative models further help us understand and embrace how important the functionality of evidence over form, through a rational choice towards admitting electronic evidence is.

**Mayank Khichar is a third-year B.A. LL.B. (Hons.) student at NALSAR University of Law, Hyderabad, with a keen interest in comparative constitutional law, intellectual property, and criminal law. His work explores the intersection of legal systems with emerging technologies, political ethics, and social justice. He has interned with senior advocates and high courts, contributing to complex litigation and policy research. His writing spans AI ethics, gender justice, and global regulatory frameworks, with multiple publications to his name. As an editor of the Indian Journal of Constitutional Law and a finalist at the NLIU International Mediation Tournament, he brings analytical rigor and advocacy to the forefront. Beyond the law, Mayank finds balance through meditation, calisthenics, and philosophy—pursuits that shape his thoughtful approach to both life and legal reasoning while seeking to continuously learn from various avenues.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.