Digital Evidence and Its Admissibility under the Bharatiya Sakshya Adhiniyam

inbatv Articles, Education, India, International, Legal, News, Top Stories
  1. INTRODUCTION

The world is getting increasingly digitised. From everyday chats to sophisticated business negotiations, most communications happen through digital/ electronic media.  Cybercrimes are skyrocketing, with 1,01,928 cases registered in 2024 alone.[1] This implies that the nature of evidence available is also changing swiftly. There are transactions (say, e-commerce fraud) for which only digital evidence can be presented, and traditional evidence (for instance, paper records) has become largely irrelevant. In this context, courts are required to deal with an overflowing volume of digital evidence. Oftentimes, there are doubts about the admissibility and legal weight of such digital evidence in the courts. This essay aims to delineate the legal framework under the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as ‘BSA’) with respect to digital or electronic evidence. It discusses the classification of digital evidence under the BSA, its admissibility and the procedure to submit such evidence in court. Additionally, this essay explores the difference between the Evidence Act and the BSA vis-à-vis their treatment of digital evidence and the practical challenges in dealing with such evidence.

  1. THE STATUTORY FRAMEWORK WITH RESPECT TO DIGITAL/ELECTRONIC EVIDENCE

II. 1.  DEFINITION AND CLASSIFICATION

Section 2(d) of the BSA defines “document”. The definition clearly includes “electronic and digital records” within the ambit of the term “document”. Section 2(e) defines “evidence” and includes electronically given statements and electronic and digital records within the definition. This means the BSA treats electronic and digital evidence at par with documentary evidence. Furthermore, Section 57 classifies digital records as “primary evidence”.  Primary evidence has higher evidentiary value. This implies that digital evidence has significant legal weight.

II. 2.  ADMISSIBILITY OF DIGITAL/ELECTRONIC EVIDENCE  

Section 61 recognises the admissibility of digital or electronic records as evidence and further provides that they will have the same legal effect, validity and enforceability as other documentary evidence. The admissibility of such evidence is subject to the provisions of Section 63. Section 63, firstly, delineates which electronic records will be deemed to be documents. Among these are: records stored, recorded or copied in optical or magnetic media and semiconductor memory. The digital records can be produced by a computer or any communication device. Secondly, this Section provides that electronic records are admissible in all proceedings without any further proof. Thirdly, this Section mentions the conditions that a computer output (information stored, recorded or copied in optical or magnetic media and semiconductor memory and produced by a computer or any other communication device) has to meet for it to be admissible. The computer output should be produced during the period over which the device was in regular use in the ordinary course of the activity of creating, storing or processing the information.

II.3. PROCEDURE TO SUBMIT DIGITAL/ELECTRONIC EVIDENCE IN COURT

According to Section 63(4), whenever digital or electronic evidence is submitted for admission, a certificate along with the electronic record should be submitted. The certificate has to certify that all conditions under Section 63 have been met, and it has to be signed by a person who is in charge of or in management of the device. Furthermore, the certificate should be signed by an expert who shall be evidence of anything stated in the certificate. As per the schedule, the certificate should have two parts: part A to be filled by the party and part B to be filled by the expert.

  1. DIFFERENCE BETWEEN THE EVIDENCE ACT, 1872 AND BSA IN THEIR TREATMENT OF DIGITAL/ELECTRONIC EVIDENCE

The Evidence Act did not have any provisions for digital/electronic evidence until 2000, when it was amended due to the enactment of the Information Technology Act. It treated digital evidence as secondary evidence and as per Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, itcould not be admissible without the certificate. To the contrary, the BSA clearly treats digital/electronic evidence as primary evidence. The certification requirement has been maintained under the BSA, but more as a safeguard ensuring authenticity, as it requires the signature of an expert; the expert’s signature requirement was absent in the Evidence Act. The BSA also includes semiconductor memory as a medium for storing, recording and copying information. The Evidence Act did not include semiconductor memory. Apart from computers, the BSA also recognises other communication devices as admissible.

  1. PRACTICAL CHALLENGES IN DEALING WITH DIGITAL/ELECTRONIC EVIDENCE

Firstly, the courts in India, especially in rural areas, lack the infrastructure for proper treatment of digital/electronic evidence. Secondly, some lawyers and judges are not equipped with the necessary technological know-how of digital records. Thirdly, with the increasing use of Generative AI to generate deepfakes, the need for lawyers and judges to have basic technological skills is paramount for the proper evaluation of digital evidence.  

  • CONCLUSION

In a nutshell, the significance of digital/evidence is at an all-time high. India has a clear statutory framework under the BSA to deal with such evidence. The BSA attaches more importance to digital evidence than the Evidence Act by classifying it as primary evidence. However, there are practical challenges in terms of infrastructural deficiencies.

[1] National Crime Records Bureau, Ministry of Home Affairs, Crime in India 2024.

By Sanskriti Pathak