Bharatiya Sakshya Adhiniyam 2023: How Electronic Evidence Rules Have Changed in India

The Bharatiya Sakshya Adhiniyam 2023 (BSA), which replaced the Indian Evidence Act 1872 with effect from 1 July 2024, represents the most significant overhaul of India's evidence law in over 150 years. Among its most consequential changes are the provisions governing electronic evidence. In an era where digital records form the backbone of commercial transactions, communications, and dispute resolution, the BSA's revised framework for electronic evidence has far-reaching implications for litigants, lawyers, corporate compliance teams, and technology professionals. This article examines the key changes introduced by the BSA to the admissibility, classification, and authentication of electronic evidence.

Electronic Records Now Classified as Primary Evidence

Under the Indian Evidence Act 1872, electronic records were treated as secondary evidence. This classification created practical difficulties, as parties seeking to rely on electronic records had to satisfy the stricter foundation requirements applicable to secondary evidence, including explaining why the original was unavailable. The BSA fundamentally changes this position. Electronic and digital records are now classified as primary evidence under the new statute. Section 2(d) of the BSA defines the term "document" using the expansive phrase "any other means" as a mode of expression, ensuring that electronic and digital records fall squarely within the definition. This reclassification means that an electronic record, such as an email, a database entry, or a digital contract, can be tendered directly as primary evidence without the procedural hurdles that previously applied. The expanded definition also covers information stored in semiconductor memory and communication devices such as smartphones, laptops, tablets, and cloud servers.

Expanded Scope of What Constitutes Electronic Evidence

The BSA significantly broadens the categories of material that qualify as electronic evidence. Emails, server logs, documents stored on computers, laptops, or smartphones, text messages, website content, and voicemail messages stored on digital devices are all expressly recognised as documents under the Act. Beyond documentary evidence, the BSA also brings electronically given statements within the scope of oral evidence. For instance, testimony provided by a witness via video conferencing is now explicitly treated as oral evidence under the statute. This dual recognition, covering both documentary and oral electronic evidence, reflects the reality of modern legal proceedings where remote hearings, electronic discovery, and digital documentation have become standard practice. The BSA also clarifies that no court may refuse to admit an electronic or digital record solely on the ground that it is electronic in nature. Section 61 of the BSA provides that nothing in the 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.

The New Certificate Requirement Under Section 63

While the BSA makes it easier to classify electronic records as primary evidence, it introduces a more rigorous authentication framework. Sections 62 and 63 of the BSA lay down the rules for admissibility of electronic records. Under Section 63(4), a certificate must accompany any electronic evidence sought to be adduced. This certificate requirement existed under the old law as well, under Section 65B of the Indian Evidence Act, but the BSA introduces a structured two-part format specified in the Schedule to the Act. Part A of the certificate must be completed by the party presenting the electronic records. It requires details about the device from which the record was produced, the manner in which the record was generated, and the chain of custody. Part B must be completed by an expert. The expert is required to state the hash value of the electronic or digital record and identify the algorithm through which the hash value was obtained. A hash value is a unique numeric identifier generated from the contents of a file, and any alteration to the file changes the hash value. This mechanism provides a verifiable method to confirm that the electronic record has not been tampered with between the time of its creation and its production in court.

Implications for Litigation and Corporate Compliance

The BSA's electronic evidence framework has practical consequences across multiple domains. In commercial litigation, the reclassification of electronic records as primary evidence removes a significant procedural barrier that previously complicated cases involving digital contracts, electronic communications, and database records. Litigants can now present these records directly without first establishing the unavailability of a physical original. However, the enhanced certificate requirement means that parties must plan their evidence strategy carefully. Engaging a qualified expert to complete Part B of the certificate is now a necessary step in any case relying on electronic evidence. For corporate compliance teams, the BSA creates a stronger incentive to maintain robust data retention and integrity policies. The hash value requirement means that organisations must be able to demonstrate that their electronic records have not been altered. This has implications for document management systems, email archiving solutions, and data governance frameworks. Companies that cannot produce a verifiable chain of custody for their digital records may find their evidence challenged on authentication grounds. In arbitration proceedings, the BSA's provisions apply to the extent that the arbitral tribunal adopts the Indian law of evidence, and parties should be prepared to comply with the certificate requirements even in private dispute resolution settings.

Practical Takeaways

The Bharatiya Sakshya Adhiniyam 2023 modernises India's evidence law by treating electronic records as primary evidence, eliminating the outdated distinction that treated digital records as inherently inferior to physical documents. The expanded definition of "document" and the explicit recognition of video conferencing testimony as oral evidence bring the law in line with contemporary practice. However, the structured two-part certificate requirement under Section 63, particularly the mandatory expert certification with hash values, imposes a higher standard of authentication than the previous regime. Lawyers should ensure that the Section 63 certificate is prepared well in advance of trial, as last-minute compliance is likely to result in objections. Corporate entities should review their data retention policies to ensure that electronic records can be authenticated with hash values when required. Technology teams should implement systems that generate and preserve hash values at the point of record creation. For judges and tribunals, the BSA provides a clearer statutory basis for admitting electronic evidence, but the authentication requirements must be strictly enforced to maintain the integrity of digital proof. The transition from the Indian Evidence Act to the BSA represents a significant shift, and stakeholders across the legal system must adapt their practices accordingly.