Module 3
I. Introduction to the Paradigm Shift in Evidence Law
The Bharatiya Sakshya Adhiniyam, 2023 (BSA), represents a significant legislative overhaul of
the law governing evidence in India, replacing the Indian Evidence Act, 1872 (IEA) [1]. Module
III of the BSA, encompassing Chapters IV and V, formalizes the rules regarding Oral,
Documentary, and crucially, Electronic evidence. This module is structured to address
traditional forms of evidence while simultaneously embedding digital records directly into the
framework of proof.
1.1. Context and Foundational Definitions
The BSA introduces explicit definitions that reflect the digital age, a major enhancement over
the IEA.
The definition of a "document" under BSA Section 2(d) is expanded beyond traditional paper,
figures, or inscriptions to explicitly include electronic and digital records [1, 2]. The
Adhiniyam lists specific examples such as electronic records on emails, server logs,
documents on computers, messages, websites, locational evidence, and voice mail messages
as documents [1, 2]. This statutory integration of digital data into the concept of a document
fundamentally shifts the legal perception of electronic records, normalizing their status
alongside physical evidence.
Correspondingly, "evidence" (BSA Section 2(e)) is defined to include:
1. Oral evidence: All statements, including those given electronically, which the Court
permits or requires to be made by witnesses [1, 2].
2. Documentary evidence: All documents, including electronic or digital records,
produced for the inspection of the Court [1, 2].
By classifying electronic records definitively as "documents," the BSA eliminates the prior
ambiguity under the IEA, where these records often existed as a statutory exception requiring
complex proofs separate from general documentary rules [3]. This clarification is instrumental
for improving judicial efficiency, as digital data is now treated conceptually on par with
conventional forms of recording information. While the path to admission remains governed
by stringent rules concerning authenticity (BSA 63), this definitional change removes the
foundational barrier that previously hindered the straightforward introduction of digital proof.
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II. Oral Evidence: Nature, Rules, and Admissibility
(Sections 54–55)
The BSA maintains the classical common law tenets regarding oral testimony, ensuring its
reliability by preserving the rule against hearsay.
2.1. BSA Section 54: Proof of Facts by Oral Evidence
BSA Section 54 states that all facts, with the express exception of the contents of documents,
may be proved by oral evidence [1, 4]. This provision reinforces the "Best Evidence Rule" by
mandating that whenever a fact is reduced to writing or recording (i.e., a document), the
document itself must be produced to prove its contents, reserving oral evidence for other
sensory perceptions.
2.2. BSA Section 55: Oral Evidence to be Direct
The cardinal rule of evidence, requiring direct testimony, is retained in BSA Section 55. Oral
evidence must, in all cases, be direct, meaning the witness must have perceived the fact
personally. This structure is intended to uphold the quality of evidence by requiring the
original source of knowledge to testify [1, 4]. The specific requirements for direct evidence
are:
1. Fact Seen: The evidence must be of a witness who says he saw it.
2. Fact Heard: The evidence must be of a witness who says he heard it.
3. Fact Perceived: The evidence must be of a witness who says he perceived the fact by
that sense or in that manner.
4. Opinion: It must be the evidence of the person who holds that opinion on those grounds
[1].
The BSA allows for exceptions to the strict requirement of direct testimony through provisos:
● Expert Treatises: The opinions of experts contained in treatises commonly sold may be
proven by production of the treatise if the author is dead, cannot be found, or if calling
them as a witness would involve unreasonable delay or expense [1].
● Material Things: The Court retains the discretion to require the production of any
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material thing (other than a document) for inspection if the oral evidence refers to its
existence or condition [1].
The legislative retention of this strict rule against indirect testimony, despite the
accommodation of electronic witness statements (BSA 2(e)(i)), confirms that procedural
modernization does not undermine the judicial preference for unadulterated, first-hand
accounts of facts.
III. Documentary Evidence: Primary and Secondary
Proof (Sections 56–60)
The BSA dedicates Chapter V to documentary evidence, defining the two categories of
proof—primary and secondary—and setting the conditions for their admissibility.
3.1. General Principles of Documentary Proof (BSA 56, 59, and 60)
BSA Section 56 establishes that the contents of documents may be proved by either primary
or secondary evidence [1]. Section 59 then mandates the general rule: documents shall be
proved by primary evidence, except in the specific cases outlined in Section 60 [1].
Secondary evidence is permitted under Section 60 when the primary evidence is inaccessible,
including situations where: the original is in the possession of the adverse party who fails to
produce it after notice; the original has been lost or destroyed; the document is non-movable;
or the original is a public document [1]. Notably, for public documents (BSA 60(e) or (f)), the
only admissible form of secondary evidence is a certified copy [1].
3.2. BSA Section 57: Primary Evidence and the Digital Ecosystem
Primary evidence is defined as the document itself produced for inspection [1, 5]. The BSA
significantly expands the scope of primary evidence through its explanations, specifically to
reflect the reality of digital information storage.
While traditional examples include each part of a document executed in several parts
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(Explanation 1) or documents produced by a uniform mechanical process like printing
(Explanation 3), the critical addition lies in the electronic extensions:
● Simultaneous/Sequential Storage (Explanation 4): Where an electronic record is
created or stored simultaneously or sequentially in multiple files, each such file
constitutes primary evidence [1, 5].
● Proper Custody (Explanation 5): An electronic or digital record produced from proper
custody is deemed primary evidence, provided its authenticity is not disputed [1].
● Simultaneous Broadcast (Explanation 6): For video recordings simultaneously stored
and transmitted/broadcast, each stored recording is primary evidence [1].
● Automated Storage (Explanation 7): Automated storage in multiple storage spaces,
including temporary files, is considered primary evidence [1].
These provisions acknowledge the ubiquitous nature of automated digital replication—such as
cloud syncing or server mirroring—where the concept of a single 'original' is functionally
obsolete. By designating system-inherent copies as primary evidence, the law provides a clear
pathway that largely codifies prior judicial interpretations, particularly the ruling in Arjun
Panditrao Khotkar v. Kailash Khushanrao Gorantyal [6, 7]. This ruling established that if the
original electronic record itself is produced, the strict certification requirement necessary for
secondary evidence is obviated. The BSA's expanded definition of primary electronic evidence
leverages this principle, avoiding the procedural burden imposed by Section 63 for records
generated and kept routinely by the system.
3.3. BSA Section 58: Secondary Evidence Enumerated
Secondary evidence encompasses permissible substitutes for the primary document and is
exhaustively defined in eight categories [1, 5]:
1. Certified copies.
2. Copies made by mechanical processes which ensure accuracy, and copies compared
with such mechanical copies.
3. Copies made from or compared with the original.
4. Counterparts of documents as against the parties who did not execute them.
5. Oral accounts of the contents of a document given by a person who personally saw it.
6. Oral admissions.
7. Written admissions.
8. Evidence of a person skilled in examining voluminous documents where the originals
consist of numerous accounts that cannot be conveniently examined in Court [1].
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3.4. BSA Section 64: Notice to Produce
Before secondary evidence can be admitted under the condition specified in Section 60(a)
(original in adverse party's possession), the party seeking to introduce the evidence must
provide prior notice to produce the original document [1]. This notice requirement can be
waived only in specific circumstances, such as when the document to be proved is itself a
notice, the adverse party knows production will be required, the adverse party obtained the
original through fraud or force, or the original is already in Court [1].
IV. Proof of Execution of Documents (Sections 65–73)
The BSA outlines precise procedures for proving the authenticity of signatures, handwriting,
and execution, encompassing both traditional paper documents and modern electronic
records.
4.1. Proving Attested Documents (BSA 67–71)
For documents required by law to be attested (such as Wills), Section 67 mandates that the
document shall not be used as evidence until at least one attesting witness has been called to
prove its execution, provided that witness is alive and subject to the process of the Court [1].
● Registered Documents Exception: A crucial proviso exists: it is not necessary to call an
attesting witness to prove a registered document (excluding a Will), unless its execution is
specifically denied by the person purporting to have executed it [1, 8].
● Unavailable Witness: If an attesting witness cannot be found, proof must be given that
the attestation of at least one witness is in his handwriting, along with proof of the
signatory's handwriting [1].
● Admission: Under Section 69, a party's admission of execution of an attested document
is sufficient proof against that party [1].
● Witness Denial: If a witness denies or does not recollect execution, Section 70 allows
execution to be proved by "other evidence" [1].
4.2. Handwriting and Signature Authentication (BSA 65, 72, 73)
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For non-attested documents, Section 65 requires proof of the signature or handwriting of the
person alleged to have signed or written the document [1].
Section 72 grants the Court the power to compare a disputed signature, writing, or seal with
one that is admitted or proved. Furthermore, the Court may direct any person present to write
words or figures for comparison purposes. This section also applies, with necessary
modifications, to finger impressions [1].
The authentication rules are extended to the digital realm:
● Electronic Signatures (BSA 66): Unless the signature is designated as a 'secure
electronic signature,' its identity must be specifically proved when alleged to have been
affixed to an electronic record [1].
● Digital Signature Verification (BSA 73): To verify a digital signature, the Court may
direct the signatory, the Controller, or the Certifying Authority to produce the Digital
Signature Certificate (DSC) or apply the public key listed in the DSC to verify the
signature [1].
V. Public and Private Documents; Certified Copies
(Sections 74–77)
The distinction between public and private documents is crucial as it determines the mode of
proof and the necessity of producing the original document.
5.1. BSA Section 74: Definition
Public documents (BSA 74(1)) include documents forming the acts, or records of the acts, of:
● Sovereign authority.
● Official bodies and tribunals.
● Public officers (legislative, judicial, and executive) of India or a foreign country [1, 9].
● Public records kept in any State or Union territory of private documents [1].
Private documents (BSA 74(2)) comprise all documents that do not fall under the specific
categories listed in sub-section (1) [1].
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5.2. BSA Sections 75 and 76: Certified Copies
The law establishes a mechanism for using substitutes for public records due to their inherent
reliability and the logistical difficulty of producing originals frequently.
BSA Section 75 mandates that every public officer having custody of a public document which
a person has a right to inspect must provide a copy upon request and payment of legal fees.
This copy must be accompanied by a certificate affirming it as a true copy, dated and
subscribed with the officer's name, official title, and seal [1, 9]. These are termed certified
copies.
Under BSA Section 76, these certified copies may be produced in proof of the contents of the
public documents [1, 10]. This specialized treatment is an exception to the strict Best
Evidence Rule, based on the presumption that documents held in governmental custody and
verified by a public officer possess adequate reliability and accuracy. This framework
promotes administrative efficiency by eliminating the need to summon original official records
or custodian witnesses in every proceeding [10].
5.3. BSA Section 77: Proof of Other Official Documents
Section 77 details the specific methods for proving various official records, such as Acts,
orders, or notifications of the Central or State Governments (proved by department records
certified by the head or printed documents), parliamentary proceedings (by journals or
published acts), and foreign official documents (by certified copies under the seal of a Notary
Public or Consul) [1].
VI. Electronic Evidence: Admissibility and Procedural
Compliance (Sections 61–63)
The BSA provides robust and detailed procedural safeguards for establishing the authenticity
and integrity of electronic evidence (e-records), given their malleability and potential for
tampering.
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6.1. BSA Section 61: Legal Equivalence
BSA Section 61 affirms the principle of technological neutrality: the admissibility of an
electronic or digital record cannot be denied solely because it is in electronic form. However,
this admissibility is explicitly made subject to Section 63 [1, 11]. This means that while
e-records are formally documents, their reliance in court hinges entirely upon strict
adherence to the procedural mechanism laid down for verifying digital integrity.
6.2. BSA Section 63: Admissibility of Electronic Records
Section 63 is the cornerstone governing the admissibility of electronic records produced as
"computer output"—that is, secondary evidence derived from a primary digital source (e.g., a
printout of an email or a copy of a server log) [1, 12].
6.2.1. BSA 63(2): Mandatory Conditions for System Integrity
Admissibility is conditional upon satisfying four cumulative criteria concerning the operation
and control of the computer or communication device that generated the record. These
conditions ensure the record was created in a non-litigious, reliable context:
Table II: Mandatory Conditions for Electronic Records Admissibility (BSA Section 63(2))
Condition (BSA 63(2)) Description Evidentiary Rationale
Regular Use (a) Device/system was Establishes reliability by
regularly used to create, showing the record was
store, or process generated in a
information for regular non-litigious, routine
activity purposes [1, 13]. context.
Regular Input (b) Information was regularly Assures the source data
fed into the device in the stream is consistent and
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ordinary course of said trustworthy.
activities [1, 13].
Proper Operation (c) Device was operating Guards against technical
properly, or any errors or data corruption
malfunction did not affect impacting truthfulness.
the record's accuracy [1,
13].
Derivation (d) Information reproduces or Ensures traceability and
is derived from such linkage between raw data
information fed in the input and the 'computer
ordinary course of output' presented as
activities [1]. evidence.
6.2.2. BSA 63(3): Complex Digital Systems
Recognizing modern networked environments, BSA 63(3) introduces a legal fiction. If the
activity of processing information was regularly performed by means of one or more devices
(whether stand-alone, on a network, or through an intermediary like the cloud), all those
devices shall be treated as constituting a single computer or communication device for the
purpose of assessing the conditions in BSA 63(2) [1]. This provision simplifies proof in
situations involving complex, distributed digital environments.
6.2.3. BSA 63(4) and The Schedule: The Dual Certification Mandate
Section 63(4) enforces the mandatory procedural requirement for admitting secondary
electronic records: a certificate addressing the BSA 63(2) conditions must be submitted along
with the electronic record at each instance it is presented [1, 7].
The BSA significantly heightens the standard of authentication by demanding dual
certification. The certificate must be signed by (1) a person in charge of the computer or
the management of the relevant activities (Part A of the Schedule) and (2) an expert (Part
B of the Schedule) [1, 14, 15]. The expert referred to here is generally the Examiner of
Electronic Evidence, recognized under BSA Section 39(2) [12].
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The certification goes beyond simple managerial confirmation; it introduces a hard technical
standard for verification. Both Part A and Part B of the certificate mandate the inclusion of the
HASH value(s) of the electronic/digital record, specifying the legally acceptable algorithm
used (e.g., SHA1, SHA256, or MD5), with the corresponding hash report enclosed [1, 14]. This
requirement elevates the certificate to a formal digital forensic report, guaranteeing that
verifiable cryptographic proof of data integrity is presented to the court. The mandatory
declaration of the hash value ensures that the data's integrity and non-tampering status are
established using recognized digital forensic standards, a pivotal step in combating digital
fraud and tampering [16].
Table III: The BSA 63(4) Certification Protocol (Schedule Parts A & B)
Certifying Authority Statutory Requirement Key Data Points to
(BSA 63(4) & Schedule) Provide
Part A: Party in Identifies the record, Device Make/Model, Serial
Charge/Management describes production, Number, ID
confirms compliance with (IMEI/MAC/Cloud ID),
BSA 63(2) conditions, and Confirmation of 63(2)
verifies lawful control [1, compliance (use, input,
15]. operation) [1].
Part B: Expert Provides technical Device Make/Model, Serial
authentication of the digital Number, ID, HASH
record [1, 14]. value(s), and Algorithm
used (SHA1, SHA256, MD5)
[1, 14].
VII. Comparative Analysis: BSA (61-63) vs. Indian
Evidence Act (65A-65B) and Key Case Law
The provisions of the BSA relating to electronic evidence directly respond to the complexities
and judicial interpretations arising from Sections 65A and 65B of the repealed IEA [17].
7.1. Judicial Evolution under IEA Section 65B
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The IEA used Sections 65A and 65B as special provisions. Section 65A stated that electronic
records must be proved according to the procedure laid down in 65B [17, 18]. Section 65B
specified the conditions for admissibility of secondary evidence derived from a computer
output [19].
Key Supreme Court pronouncements under the IEA dictated the procedural approach:
● Anvar P.V. v. P.K. Basheer (2014): This landmark ruling established that IEA 65B
constituted a mandatory and exhaustive code for the admissibility of electronic records
when produced as secondary evidence. The certificate required under 65B(4) was
essential and had to be produced alongside the electronic record when first submitted
[20, 21].
● Arjun Panditrao Khotkar v. Kailash Khushanrao Gorantyal (2020): This decision
affirmed the mandatory nature of the certificate for secondary electronic evidence.
Crucially, the Court clarified the distinction between primary and secondary electronic
evidence. It ruled that if the "original document" (i.e., the primary source, such as the
actual device containing the information) is produced in court, the mandatory certificate
under 65B is unnecessary [6, 7].
7.2. Codification and Key Differences under the BSA
The BSA strategically utilizes the definition of primary evidence (BSA 57) and the strict
procedural rules of Section 63 to codify the ratio of these critical Supreme Court judgments
while simultaneously raising the standard of digital proof.
The expansion of Primary Electronic Evidence under BSA 57 (Explanations 4-7), which
includes automated and system-inherent copies, directly incorporates the primary evidence
exception articulated in Arjun Panditrao Khotkar [5]. This legislative move ensures that original
digital information, even if replicated across multiple files or storage spaces, is easily
recognized and admitted without the procedural burden of a Section 63 certificate.
Conversely, for electronic records requiring secondary proof (computer output), BSA Section
63 strengthens the mandatory certification requirement established in Anvar P.V. by imposing
higher forensic thresholds, as demonstrated in the table below:
Table I: Admissibility of Electronic Records: IEA vs. BSA (Statutory Comparison)
Feature IEA, 1872 BSA, 2023 Significance
(Sections 65A & (Sections 57,
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65B) 61-63)
Document Electronic records Explicitly included Normalizes digital
Definition Status treated as special in definition of data and
category (often "document" (BSA streamlines general
deemed 2(d)) [1]. proof rules.
secondary) [3].
Primary Limited; production Vastly expanded Codifies Arjun
E-Evidence Scope of the original (BSA 57 Panditrao
device often Explanations 4-7): judgment; reduces
mandated to avoid Includes certificate
65B certificate [6]. automated, dependency for
simultaneous, inherent system
sequential, and copies.
proper custody
digital copies [1, 5].
Secondary IEA Section 65B BSA Section 63 Maintains strict
E-Evidence (Self-contained (Detailed procedural filter
Provision code for conditions for due to digital
admissibility) [18]. computer output, malleability.
subject to BSA 61)
[1].
Certification Single certificate Dual Certificate Increases
Requirement (IEA 65B(4)) [17]. (BSA 63(4)): accountability and
Party/Manager forensic rigor for
(Part A) + Expert authentication.
(Part B) [1, 15].
Forensic No explicit Mandatory HASH Ensures
Specificity technical forensic value and cryptographic
parameters. Algorithm integrity testing is
declaration in the integrated into the
Schedule statutory
(SHA1/SHA256/MD5 framework.
) [1, 14].
A further notable difference is the introduction of a specialized presumption for aging
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electronic evidence. While the IEA provided a presumption for documents thirty years old, the
BSA introduces Section 93, which provides a permissive presumption that an electronic
signature affixed to an electronic record proved to be five years old and produced from
proper custody was so affixed by the purported signatory [1, 12]. This change accounts for the
rapid obsolescence and shorter lifespan of digital media compared to paper documents.
VIII. Conclusion
Module III of the Bharatiya Sakshya Adhiniyam, 2023, systematically modernizes the Indian law
of evidence by rigorously integrating electronic records into the traditional structure of proof.
In oral evidence, the foundational requirement of direct testimony is preserved (BSA 55),
ensuring testimonial integrity remains paramount. For documentary evidence, the BSA retains
classical rules for proving contents and execution (BSA 56-60, 65-73), while the special
provisions for public documents (BSA 74-77) promote efficiency based on the presumption of
reliability inherent in official custody.
The most profound statutory development lies in electronic evidence. The BSA normalizes the
definition of a document to explicitly include digital records (BSA 2(d)) but counters the
inherent risk of digital manipulation by imposing one of the most stringent admissibility
procedures globally. Through the expansion of primary electronic evidence (BSA 57), the Act
provides a pragmatic path for admitting system-inherent data. For all other derived electronic
evidence (secondary evidence), the mandatory dual certification and hash value requirement
of BSA 63 introduce a statutory burden of forensic integrity, demanding technical validation
from both the custodian and a certified expert. This dual strategy ensures that the
modernization of evidence law is coupled with robust mechanisms for safeguarding the
authenticity and reliability of digital proof in judicial proceedings.