TL;DR
The Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaced the Indian Evidence Act (IEA), 1872 on 1 July 2024, makes foundational changes to how electronic and digital evidence is treated. Electronic records stored in semiconductor memory are now explicitly included alongside optical and magnetic media. Section 57 BSA recognizes electronic records as primary evidence when produced from proper custody, resolving a longstanding ambiguity. The certificate requirement under Section 63(4) BSA (replacing Section 65B(4) IEA) now mandates a two-part certificate signed by both the device custodian (Part A) and an expert (Part B). These changes codify and expand upon the Supreme Court's ruling in Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal (2020).
Overview of Changes
| Old Section (IEA) | Provision | New Section (BSA) | Change Type | Brief Note |
|---|---|---|---|---|
| Section 3 (definition of "document") | Includes electronic records | Section 2(1)(d) | Expanded | Explicitly includes digital and electronic records |
| Section 22A | Oral admissions of electronic records | Section 23 | Retained | Substantively unchanged |
| Section 45A | Expert opinion on electronic evidence | Section 39 | Retained | Expert opinion on electronic form |
| Section 47A | Opinion on digital signature | Section 42 | Retained | Substantively unchanged |
| Section 65A | Special provisions for electronic evidence | — | Merged | Subsumed into Section 61 BSA |
| Section 65B | Admissibility of electronic records | Section 63 | Substantially modified | Two-part certificate; expanded scope |
| — | Non-exclusion of electronic records | Section 61 | New | Electronic records cannot be denied admissibility solely on electronic nature |
| — | Primary evidence includes electronic records | Section 57 (Explanation 5) | New | Electronic records from proper custody are primary evidence |
| Section 67A | Proof of digital signature | Section 73 | Retained | Substantively unchanged |
| Section 73A | Proof of digital signature by CERTIFYING authority | Section 79 | Retained | Substantively unchanged |
| Section 85A | Presumption as to electronic agreements | Section 85 | Retained | Substantively unchanged |
| Section 85B | Presumption as to electronic records | Section 86 | Retained | Substantively unchanged |
| Section 85C | Presumption as to Digital Signature Certificates | Section 87 | Retained | Substantively unchanged |
| Section 88A | Presumption as to electronic messages | Section 90 | Retained | Substantively unchanged |
| Section 90A | Presumption as to electronic records 5 years old | Section 93 | Retained | Substantively unchanged |
Detailed Comparison
The Foundation: What Qualifies as Electronic Evidence
What the old law said: Under the IEA, Section 3 defined "document" to include any matter expressed by means of electronic record. Section 65A provided that the contents of electronic records could be proved in accordance with Section 65B. The framework treated electronic records primarily as secondary evidence requiring certification.
What the new law says: The BSA takes a fundamentally different approach:
- Section 2(1)(d) expands the definition of "document" to explicitly include electronic and digital records, encompassing data stored in semiconductor memories in addition to optical and magnetic media.
- Section 61 establishes that nothing in the BSA shall deny admissibility of an electronic or digital record solely because it is electronic. Such records have the same legal effect, validity, and enforceability as other documents.
- Section 57, Explanation 5 provides that electronic or digital records produced from proper custody constitute primary evidence unless disputed. This is a fundamental shift — under the IEA, electronic records were generally treated as secondary evidence.
What specifically changed: The paradigm shift from treating electronic records as inherently secondary evidence requiring certification to recognizing them as primary evidence when produced from proper custody. The "electronic or digital record" formulation is broader than the IEA's "electronic record," explicitly capturing modern digital formats.
Practical impact: The recognition of electronic records as primary evidence significantly reduces the evidentiary burden in cases where the original device is available. A party producing a laptop, phone, or server with the original electronic record can now argue it is primary evidence, bypassing the certificate requirement entirely.
The Certificate Requirement (Section 65B(4) IEA vs Section 63(4) BSA)
What the old law said: Section 65B(4) IEA required a certificate identifying the electronic record, describing its production, and giving particulars of the device. This certificate was to be signed by a person occupying a responsible official position in relation to the operation of the device. The Supreme Court in Arjun Panditrao Khotkar (2020) held that this certificate was mandatory for secondary electronic evidence but not required when the original electronic device was produced (primary evidence).
What the new law says: Section 63(4) BSA restructures the certificate into two parts:
- Part A: To be completed by the party producing the electronic record — identifying the record, its source, the manner of production, and the device involved.
- Part B: To be completed by an expert — certifying the integrity and authenticity of the electronic record, the proper functioning of the device, and that the record accurately reproduces the original.
What specifically changed: Three key changes:
- Two-party certification: The old law required one signature (responsible officer). The new law requires two — the device custodian/party (Part A) and an expert (Part B). This adds a layer of technical verification.
- Expanded device scope: Section 63 explicitly covers semiconductor memory, communication devices, and telephonic/social media records.
- Codification of Arjun Panditrao: The distinction between primary and secondary electronic evidence, established judicially, is now embedded in the statute through Section 57.
Practical impact: The dual-signature requirement means parties must engage forensic experts for secondary electronic evidence. This adds cost and complexity but enhances reliability. Defence counsel can challenge certificates where the expert's qualifications are inadequate or Part B is incomplete.
Impact of *Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal* (2020)
The Supreme Court's three-judge bench decision remains the foundational case for electronic evidence admissibility. Key holdings that influenced the BSA:
Certificate mandatory for secondary evidence: Section 65B(4) certificate is a condition precedent for admissibility of secondary electronic evidence. This principle continues under Section 63(4) BSA.
Primary evidence exception: When the original electronic device is produced in court, it constitutes primary evidence and the certificate requirement does not apply. The BSA codifies this through Section 57, Explanation 5.
Court's power to direct production: If the original device is in the possession of a third party, the court can direct its production. The BSA retains this through general production powers.
The BSA goes further than Arjun Panditrao by introducing the expert certification requirement (Part B), which the court did not mandate but recommended as good practice.
Admissibility of Specific Digital Evidence Types
WhatsApp Messages and Chat Records:
Under both old and new law, WhatsApp messages are admissible as electronic evidence. Under BSA, if the phone containing the original messages is produced, they constitute primary evidence under Section 57. If only screenshots or backups are available, a Section 63(4) certificate (Parts A and B) is required.
CCTV Footage:
CCTV footage stored on digital video recorders is now explicitly covered by BSA's expanded device definition (semiconductor memory). If the DVR is produced, the footage is primary evidence. Copies require the two-part certificate.
Email Communications:
Emails retrieved from the original account on the original device can be primary evidence. Printouts or server copies require the Section 63(4) certificate.
Social Media Posts:
Posts on Facebook, Instagram, Twitter (X), and other platforms are admissible but typically require the certificate route since the original records reside on third-party servers outside the party's control.
Presumptions Relating to Electronic Evidence
The BSA retains all presumptions from the IEA with minor language updates:
| IEA Presumption | BSA Section | Subject |
|---|---|---|
| Section 85A | Section 85 | Electronic agreements — presumed genuine if properly signed |
| Section 85B | Section 86 | Electronic records — presumed secure unless shown otherwise |
| Section 85C | Section 87 | Digital Signature Certificates — presumed accurate |
| Section 88A | Section 90 | Electronic messages — presumed sent by originator |
| Section 90A | Section 93 | Electronic records 5 years old — presumed genuine |
New Provisions with No Old Equivalent
| Section | Provision | Details |
|---|---|---|
| Section 61 | Non-exclusion of electronic records | Establishes that electronic records cannot be denied admissibility solely because of their electronic nature. Foundational provision with no IEA equivalent. |
| Section 57, Explanation 5 | Electronic records as primary evidence | Electronic records produced from proper custody are primary evidence unless disputed. Reverses the default assumption under IEA. |
| Section 63(4) Part B | Expert certification | Requires expert sign-off on electronic evidence certificate, in addition to the party's certification. New layer of technical verification. |
Abolished Provisions
Section 65A IEA has been removed as a standalone provision. Its function — establishing that electronic record contents may be proved in accordance with the certification provisions — has been subsumed into Section 61 BSA, which takes a broader approach by declaring that electronic records have full legal effect and validity.
Practical Checklist for Practitioners
- Identify whether electronic evidence in your case qualifies as primary evidence (original device available) or secondary evidence (copy/printout) under Section 57 BSA
- For primary electronic evidence, produce the original device with a witness who can testify to its custody chain — no certificate required
- For secondary electronic evidence, prepare a two-part certificate under Section 63(4) — engage a qualified forensic expert for Part B
- When challenging electronic evidence, examine both Part A (party's certification) and Part B (expert's certification) for deficiencies
- For social media evidence, secure certified copies from the platform where possible, supplemented by the Section 63(4) certificate
- Note that presumptions under Sections 85-93 BSA (electronic agreements, digital signatures, electronic messages) remain operative
- For CCTV footage, determine whether the DVR can be produced — if yes, argue primary evidence status under Section 57
- Review pending matters where Section 65B certificates were challenged — the new two-part requirement may affect ongoing evidentiary disputes
- Consider the cost implications of mandatory expert certification — budget for forensic expert fees in case preparation
Recent judicial developments (post-July 2024)
The following cases from the Veritect Legal Intelligence database illustrate how courts are applying the electronic evidence framework under BSA and its predecessor provisions:
State (NCT) of Delhi v. Karan Singh Yadav (6 May 2024)
Court: Delhi High Court | Judge: Vikas Mahajan | Result: Discharge set aside; remanded for fresh consideration
A sting operation by Aaj Tak captured sales-tax officials allegedly accepting bribes. The Special Judge discharged all 33 accused, holding the CD/video recordings inadmissible for lack of a Section 65B certificate. The Delhi High Court reversed this, holding that a Section 65B certificate may be produced at any stage before trial concludes and that a delayed or defective certificate is curable if no irreversible prejudice is caused. The Court clarified that the certificate is a condition precedent for admissibility but its production is not confined to the charge-sheet stage.
Significance: Establishes procedural flexibility for producing electronic evidence certificates, relevant to the transition from Section 65B IEA to Section 63(4) BSA. Practitioners challenging electronic evidence should note that defective or late certificates can be cured during trial.
Veritect reference: DLHC013017682015_1_2024-05-06
Moin Akhtar Qureshi v. Central Bureau of Investigation (24 December 2025)
Court: Delhi High Court | Judge: Neena Bansal Krishna | Result: Petition dismissed; voice sampling order upheld
The petitioner challenged an order directing him to provide voice samples for comparison with intercepted phone recordings. The Court upheld the order, holding that voice samples are "material evidence" for comparison and not self-incriminatory under Article 20(3). Critically, the Court explicitly recognised Section 349 of BNSS 2023, which now provides statutory authority for Magistrates to order voice samples — a power that was previously filled only by the Supreme Court's invocation of Article 142 in Ritesh Sinha v. State of U.P. (2019). The Court also held that the admissibility question under Section 65B arises at trial, not at the investigation stage.
Significance: Confirms that Section 349 BNSS has resolved the legislative gap identified by the Supreme Court in Ritesh Sinha. The expanded forensic sampling power is now on firm statutory footing, and courts are treating it as settled law.
Veritect reference: DLHC010350622021_1_2025-12-24
Manoj Rana @ Tinku v. The State (8 August 2024)
Court: Delhi High Court | Judge: Anoop Kumar Mendiratta | Result: Petition allowed; accused permitted to lead electronic evidence
In a POCSO case, the trial court refused to allow the accused to produce WhatsApp messages from a mobile phone as defence evidence, citing absence of a Section 65B certificate. The High Court reversed this, holding that under Section 136 of the Evidence Act, evidence must be admitted if it is relevant, and that the owner of the original device can produce electronic records directly without a separate Section 65B certificate, citing Arjun Panditrao Khotkar. The Court restored the accused's right to lead electronic evidence in defence.
Significance: Reinforces the primary-evidence exception under the BSA framework — when the original device is produced, the certificate requirement under Section 63(4) BSA does not apply. This is particularly relevant for defence evidence in criminal trials.
Veritect reference: DLHC010179692024_1_2024-08-08
Emerging patterns
Based on available post-July 2024 court orders from the Veritect database:
- Primary evidence exception gaining traction: Courts are consistently holding that production of the original electronic device bypasses the certificate requirement, aligning with Section 57 Explanation 5 of BSA.
- Procedural flexibility on certificates: The trend favours allowing Section 65B/63(4) certificates to be produced or cured at any stage before trial concludes, rather than requiring contemporaneous filing with the charge-sheet.
- Section 349 BNSS is operational: Courts are recognising the expanded forensic sampling powers (voice, blood, DNA) under Section 349 BNSS as settled statutory authority, moving beyond the Ritesh Sinha Article 142 framework.
- Defence evidence inclusion: The right of accused persons to produce electronic evidence in their defence is being actively protected, with courts treating technological evidence as crucial for fair trial rights.
Frequently Asked Questions
Is the Section 65B certificate still required under BSA?
The certificate requirement continues under Section 63(4) BSA but applies only to secondary electronic evidence. When the original electronic device is produced from proper custody, the record is primary evidence under Section 57 and no certificate is needed. This codifies the Arjun Panditrao Khotkar distinction.
What is the new two-part certificate under Section 63(4)?
Section 63(4) BSA requires a certificate in two parts: Part A, completed by the party producing the record (identifying the record, device, and production process), and Part B, completed by an expert (certifying integrity, device functionality, and accuracy). Both signatures are mandatory for secondary electronic evidence.
Can WhatsApp messages be used as evidence under BSA?
Yes. If the original phone with the messages is produced in court, the messages are primary evidence. If only screenshots, backups, or printouts are offered, a Section 63(4) certificate with expert certification is required.
How does the BSA address deepfakes and AI-generated content?
The BSA does not specifically address deepfakes or AI-generated content. However, the expert certification requirement under Section 63(4) Part B provides a mechanism for challenging the authenticity of digital evidence, including AI-manipulated content. The expert can be cross-examined on whether the record is an unaltered original.
What happens to Section 65B certificates filed under the old law?
Certificates filed under Section 65B IEA in proceedings commenced before 1 July 2024 remain valid. For proceedings initiated after that date, the new two-part certificate format under Section 63(4) BSA applies.