Admissibility And Authentication Of Electronic Evidence Under The Bharatiya Sakshya Adhiniyam, 2023: Legal Framework And Emerging Challenges

Admissibility and Authentication of Electronic Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Legal Framework and Emerging Challenges

Introduction

The rapid proliferation of digital technologies has fundamentally transformed the nature of evidence presented before Indian courts. Electronic records, ranging from emails, messages, CCTV footage, and call detail records to complex data extracted from devices and cloud platforms, now constitute a substantial portion of evidence in both civil and criminal proceedings. The legal framework governing the admissibility of such evidence has undergone significant evolution, culminating in the Bharatiya Sakshya Adhiniyam, 2023, which replaced the Indian Evidence Act, 1872.

The new legislation, while retaining several foundational principles, introduces important clarifications and additional safeguards, particularly concerning the authentication of electronic records. Recent judicial pronouncements, including the judgment of the Supreme Court in Pune Bar Association v. Union of India (May 2026), have further reinforced the necessity of robust procedural mechanisms to ensure the integrity and reliability of digital evidence. This article examines the current legal framework, the procedural requirements for admissibility, and the emerging challenges in the authentication of electronic evidence.

Statutory Framework under the Bharatiya Sakshya Adhiniyam, 2023

The Bharatiya Sakshya Adhiniyam, 2023 introduces a dedicated chapter on electronic records. Section 63 of the Act deals with the admissibility of electronic records and lays down specific conditions that must be satisfied. Sub-section (4) of Section 63, which has been the subject of recent judicial scrutiny, mandates that for an electronic record to be admissible, it must be accompanied by a certificate identifying the electronic record and describing the manner of its production, along with particulars of the device involved in the production of the record.

A significant development in the new law, as interpreted by the Supreme Court, is the emphasis on the disclosure of the hash value of the electronic record. The hash value functions as a unique digital fingerprint of the data. Any alteration, however minor, in the electronic record will result in a different hash value, thereby enabling the court to verify whether the record has been tampered with since it was first generated or extracted. This requirement addresses the inherent vulnerability of electronic evidence to manipulation, cloning, and fabrication, including through sophisticated AI-generated deepfakes.

Judicial Approach to Authentication of Electronic Evidence

Indian courts have consistently held that electronic evidence must meet a higher threshold of scrutiny compared to traditional documentary evidence due to its susceptibility to tampering. In Anvar P.V. v. P.K. Basheer (2014), the Supreme Court laid down strict requirements for the admissibility of electronic records under the erstwhile Section 65B of the Indian Evidence Act. Subsequent judgments, including Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), clarified the scope and applicability of the certificate requirement.

The 2026 judgment in Pune Bar Association v. Union of India has further strengthened this jurisprudence. The Supreme Court upheld the constitutional validity of Section 63(4) of the Bharatiya Sakshya Adhiniyam and emphasised that the disclosure of hash value is not a mere technical formality but a substantive safeguard essential for establishing the authenticity and integrity of electronic evidence. The Court observed that in an era where digital evidence can be easily altered or fabricated using advanced technology, procedural safeguards such as hash value verification and expert certification assume critical importance.

Procedural Requirements and Practical Challenges

The practical implementation of these legal requirements presents several challenges for investigators, forensic experts, and legal practitioners. First, the process of generating and preserving the hash value of electronic evidence must be documented meticulously from the stage of seizure or extraction. Any break in the chain of custody or failure to maintain proper documentation can render the evidence vulnerable to challenge on grounds of tampering or contamination.

Second, the requirement of a certificate under Section 63(4) often creates difficulties in cases where the electronic record is generated by automated systems or where the person responsible for operating the device is not available or unwilling to issue the certificate. Courts have, in certain circumstances, permitted the examination of witnesses or experts to prove the authenticity of electronic records even in the absence of a formal certificate, but the scope of such exceptions remains fact-specific and uncertain.

Third, the increasing use of cloud storage, encrypted communication platforms, and blockchain-based records raises complex questions regarding the identification of the relevant device, the manner of production of the record, and the applicability of traditional notions of custody and control. These technological developments necessitate continuous updating of forensic protocols and judicial understanding.

Role of Expert Evidence and Section 79A of the IT Act

The Bharatiya Sakshya Adhiniyam and the Information Technology Act, 2000 together provide for the examination of experts in cases involving electronic evidence. Section 79A of the IT Act empowers the Central Government to notify certain persons as Examiners of Electronic Evidence. However, the Supreme Court in the Pune Bar Association case has clarified that experts notified under Section 79A are not the only competent persons who can examine electronic evidence. Courts retain the discretion to rely on the testimony of other qualified experts, provided their expertise and the methodology adopted by them withstand judicial scrutiny.

This clarification provides much-needed flexibility, particularly in cases involving emerging technologies where notified experts may not possess the requisite specialised knowledge. At the same time, it places a greater onus on courts to evaluate the credentials and methodology of experts rigorously.

Conclusion and Way Forward

The legal framework governing electronic evidence in India has evolved significantly with the enactment of the Bharatiya Sakshya Adhiniyam, 2023 and its judicial interpretation in cases such as Pune Bar Association v. Union of India. The emphasis on hash value disclosure, certificate requirements, and expert examination reflects a recognition of the unique vulnerabilities of digital evidence and the need for robust authentication mechanisms.

However, the effective implementation of these safeguards requires sustained efforts on multiple fronts. Investigators and forensic laboratories must adopt standardised protocols for the extraction, preservation, and documentation of electronic evidence. Legal practitioners must develop greater technical literacy to effectively examine and cross-examine witnesses on digital evidence issues. Courts must strike a careful balance between ensuring procedural compliance and avoiding hyper-technical approaches that may result in the exclusion of otherwise reliable evidence. Continuous dialogue between the judiciary, the legal profession, law enforcement agencies, and technology experts will be essential to address emerging challenges and to ensure that the legal framework keeps pace with technological advancements.

References

1. Pune Bar Association v. Union of India, Writ Petition (Civil) No. 599 of 2026.
2. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
3. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
4. Bharatiya Sakshya Adhiniyam, 2023, No. 47 of 2023, India Code (2023), §§ 2(1)(d), 57, 61–65.
5. The Indian Evidence Act, 1872, Act No. 1 of 1872, § 65B.
6. Information Technology Act, 2000, No. 21 of 2000, India Code (2000), § 79A.
7. Ministry of Electronics and Information Technology, Government of India, Notification of Examiners of Electronic Evidence under Section 79A of the Information Technology Act, 2000, https://www.meity.gov.in.
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14. Law Commission of India, 185th Report on Review of the Indian Evidence Act, 1872 (2003), https://lawcommissionofindia.nic.in.
15. Ministry of Home Affairs, Government of India, Manual on Cyber Forensics and Digital Evidence Collection, https://www.mha.gov.in.
16. Organisation for Economic Co-operation and Development (OECD), Artificial Intelligence, Deepfakes and Synthetic Media: Challenges for Trust and Authenticity in Digital Information, https://www.oecd.org.
17. United Nations Commission on International Trade Law (UNCITRAL), Model Law on Electronic Commerce, https://uncitral.un.org/en/texts/ecommerce/modellaw/electronic_commerce.
18. Stephen Mason & Daniel Seng (eds.), Electronic Evidence and Electronic Signatures (Institute of Advanced Legal Studies, University of London, latest ed.), https://ials.sas.ac.uk.
19. International Organization on Computer Evidence (IOCE), Principles and Guidelines for Digital Evidence, https://www.ioce.org.
20. Scientific Working Group on Digital Evidence (SWGDE), Best Practices for Computer Forensics, https://www.swgde.org.

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