Introduction
Electronic evidence has become the backbone of modern litigation in India. From WhatsApp message threads in matrimonial disputes to CCTV footage in murder trials, from banking transaction records in corruption prosecutions to call data records in organised crime investigations, the authenticity, integrity, and admissibility of electronically stored information are questions that arise in virtually every contemporary courtroom. For over a decade, Section 65B of the Indian Evidence Act, 1872 provided the framework for this determination, generating a body of Supreme Court jurisprudence that was simultaneously significant and contested. The enactment of the Bharatiya Sakshya Adhiniyam (BSA), 2023, replacing the Indian Evidence Act with effect from July 1, 2024, has now fundamentally altered the admissibility framework for electronic records, and an assessment of the implications of this shift is urgently needed.
The old Section 65B framework, as interpreted by the Supreme Court across a sequence of judgments from 2014 to 2020, required the production of a compliance certificate from a responsible official of the organisation producing electronic records, certifying various technical parameters of the computer system and its operation. This certificate requirement became one of the most litigated procedural questions in Indian criminal procedure, with countless prosecutions and civil suits foundering on technical deficiencies in Section 65B certificates. The BSA’s Section 63 has moved away from this rigid certification regime toward a presumption of authenticity, a change that brings significant practical advantages but also raises new concerns about the accused’s ability to challenge electronic evidence.
Legal Framework
Section 65B of the Indian Evidence Act, as inserted by the IT (Amendment) Act, 2000, established a framework for the admissibility of electronic records as secondary evidence. The section required that any computer output sought to be admitted as evidence be accompanied by a certificate issued by a person occupying a responsible official position in relation to the operation of the relevant device, certifying that the computer was in regular use during the relevant period, that the information was regularly fed into the computer in the ordinary course of activities, that the computer was operating properly or that any malfunction did not affect the record, and that the information in the output reproduces the information stored in the computer. The certificate was to be signed and to identify the person making the statement.
The Section 65B certificate requirement was at the heart of a sustained doctrinal development in the Supreme Court. In Anvar P.V. v. P.K. Basheer (2014), a Constitution Bench of the Supreme Court held that Section 65B compliance was mandatory for the admissibility of electronic records and that the certificate requirement could not be bypassed by treating electronic records as primary evidence under Section 62 (oral evidence of content) or Section 65 (secondary evidence of documents). The Court overruled an earlier precedent, Navjot Sandhu (2005), that had allowed flexible approaches to electronic evidence.
The rigidity of the Anvar P.V. ruling created practical problems. In many cases, particularly those involving records of defunct companies, records obtained from third-party service providers, or historical records retrieved from devices no longer in the custody of the original party, obtaining a compliant Section 65B certificate was practically impossible. In Shafhi Mohammad v. State of Himachal Pradesh (2018), a two-judge bench attempted to mitigate these difficulties by holding that the certificate requirement could be relaxed where the device was not within the party’s control, allowing courts to exercise discretion. However, this relaxation was itself constitutionally problematic because a two-judge bench cannot overrule a Constitution Bench ruling.
The conflict was resolved by the Supreme Court’s five-judge Constitution Bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), which reaffirmed the mandatory character of the Section 65B certificate while clarifying several aspects of the regime. The Court held that the certificate is a condition precedent to the admissibility of a computer output, not merely a procedural formality that can be cured by subsequent production. It also clarified that where electronic records are produced from the device itself (as the original rather than a copy), the certificate is not required. Importantly, the Court directed that courts must be vigilant in ensuring proper compliance with Section 65B requirements and should not mechanically admit electronic records without verification.
Section 63 of the BSA 2023 reorganises this framework substantially. While it retains the certificate mechanism for electronic records produced as computer outputs, it introduces a presumption of authenticity for electronic records that meet specified conditions. Section 81A of the BSA (corresponding broadly to Section 85B of the Indian Evidence Act) provides that the court shall presume that a secure electronic record has not been altered since the specific point in time to which the secure status relates. More significantly, the BSA introduces provisions allowing courts to draw inferences from electronic records without mandatory certification in certain specified circumstances, moving toward a more flexible authentication model.
Judicial Developments
The transition from the Indian Evidence Act to the BSA creates an interpretive challenge for courts. The extensive body of Section 65B jurisprudence, built over two decades of Supreme Court decisions, provides the interpretive foundation for understanding what electronic evidence authentication requires, even as the specific statutory provisions have changed. Courts adjudicating cases governed by the BSA will inevitably refer to the reasoning of Anvar P.V. and Arjun Panditrao Khotkar in understanding the policy rationale behind authentication requirements, even if the specific procedural requirements have been modified.
The BSA’s approach to electronic records also interacts with the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which replaced the Code of Criminal Procedure. The BNSS provisions on production of documents and records in criminal proceedings must be read alongside Section 63 BSA to determine the procedural regime for electronic evidence in criminal trials. This interaction has not yet received comprehensive judicial analysis, leaving trial courts to navigate substantial interpretive uncertainty.
A recurring question in electronic evidence litigation that the BSA must address is the chain of custody requirement. Even if electronic evidence is authenticated by certificate or presumption, the prosecution must establish that the evidence was collected from the correct source, preserved without alteration, and transmitted to court without contamination. In India, forensic standards for digital evidence collection and preservation are still developing, and practices at the police investigation stage frequently fall short of the chain of custody requirements that would withstand rigorous defence scrutiny. The BSA’s relaxation of the certificate requirement does not relieve investigators of the obligation to establish chain of custody; if anything, it makes this aspect of electronic evidence law more important.
Contemporary Issues and Analysis
The practical significance of the BSA’s modified approach to electronic evidence admissibility can hardly be overstated. In criminal trials, electronic evidence in the form of call data records (CDRs), cell tower location data, banking transaction histories, social media records, WhatsApp communications, and CCTV footage is now routinely central to both prosecution and defence cases. The rigidity of the old Section 65B certificate requirement meant that technically sound investigations could fail at trial because of certificate deficiencies that had nothing to do with the authenticity of the underlying evidence.
At the same time, the certificate requirement served an important function: it created a formal accountability mechanism that required a responsible person to attest to the integrity of the computer system from which the evidence was derived. In a digital environment characterised by the ease of manipulation and fabrication, this formal check had genuine protective value. The BSA’s presumption-based approach reduces this formal protection while increasing admissibility, a trade-off whose implications for wrongful conviction risks have not been adequately debated.
The concern about manufactured evidence is not hypothetical in India. Multiple documented cases of fabricated call data records, doctored WhatsApp message screenshots, and manipulated CCTV footage presented in civil and criminal proceedings have come to judicial notice. The Section 65B certificate requirement at least required that the integrity of the computer system be attested by a responsible official, providing some forensic accountability. The BSA’s more permissive regime may make the fabrication and admission of manufactured electronic evidence easier.
The right of the accused to challenge electronic evidence is a constitutionally protected component of the right to a fair trial under Article 21 and the right to cross-examine witnesses under the general principles of criminal procedure. As electronic evidence becomes more central to criminal prosecutions and its admissibility standards become more permissive, ensuring that accused persons and their counsel have the technical resources, the forensic expertise, and the procedural tools to mount effective challenges becomes correspondingly more important.
Comparative and International Perspective
The United States Federal Rules of Evidence provide an instructive comparative model. Rule 901 requires authentication as a condition of admissibility, providing a general standard of “evidence sufficient to support a finding that the item is what the proponent claims it is.” Rules 902(13) and 902(14), added in 2017, allow for self-authentication of electronic records generated by an electronic process or system and records stored in an electronic medium, through a certification by a qualified person stating that the records meet specified technical conditions. This framework is similar in purpose to Section 65B but allows for self-authentication declarations without requiring court production of the certifying official.
The UK’s approach under the Police and Criminal Evidence Act 1984 and the Electronic Communications Act 2000 relies on a combination of statutory presumptions and judicial discretion. The UK courts have developed nuanced jurisprudence on when electronic evidence should be excluded on grounds of unreliability, recognising that the formal authentication question and the substantive reliability question are distinct. The Law Commission of England and Wales has recommended reforms to the electronic evidence framework, including clearer guidance on reliability standards for AI-assisted evidence analysis.
Practical and Policy Implications
For prosecutors, the BSA’s modified framework should, over time, reduce the incidence of acquittals based purely on technical certificate deficiencies unrelated to the authenticity of the underlying evidence. For defence counsel, the challenge is to develop technical forensic expertise to contest the reliability and integrity of electronic evidence through substantive challenge rather than relying on procedural certificate defects. For trial courts, the burden of assessing the reliability of electronic evidence in the absence of formal certificate attestation requires judicial capacity building in digital forensics.
Investigative agencies must develop and uniformly implement forensic standards for digital evidence collection that will withstand substantive reliability challenge under the new BSA framework. The Bureau of Police Research and Development, in collaboration with forensic science laboratories and the National Investigation Agency, should develop standardised protocols for the collection, preservation, and transfer of digital evidence that can serve as the foundation for a reliable electronic evidence ecosystem.
Suggestions and Reforms
A comprehensive digital evidence reform agenda for India should include several elements. First, the BSA should be supplemented by detailed procedural rules specifying the forensic standards for digital evidence collection and preservation, modelled on the ACPO Good Practice Guide for Digital Evidence developed in the UK. Second, the law should establish an independent Digital Forensic Accreditation Board to certify forensic laboratories and individual examiners, ensuring that the technical opinions presented to courts are based on standardised, validated methodologies. Third, legal aid provision for accused persons facing electronic evidence-heavy prosecutions should include access to qualified digital forensics experts who can review prosecution exhibits and identify potential integrity issues.
Fourth, courts should be empowered to order independent technical examination of electronic evidence in contested cases, similar to the power to appoint court-appointed experts in medical and scientific cases. The adversarial system’s reliance on party-produced expert opinion is particularly inadequate for electronic evidence disputes, where the technical complexity of the underlying forensic analysis may exceed the capacity of either party’s expert to present intelligibly to a generalist judge.
Conclusion
The shift from Section 65B of the Indian Evidence Act to Section 63 of the BSA 2023 represents a pragmatic acknowledgement that the rigid certificate requirement was producing unjust outcomes without necessarily guaranteeing the reliability of electronic evidence. The new framework is more flexible, but flexibility without robust substantive reliability standards is not an adequate response to the challenge of electronic evidence in Indian litigation. The real work of building a trustworthy electronic evidence ecosystem lies not in statutory drafting but in forensic capacity building, judicial education, defence legal aid, and the development of courts’ technical competence to assess reliability arguments with the rigour that the significance of electronic evidence in contemporary trials demands.
