Digital Evidence — Old Evidence Act vs New BSA Comparison

In India, electronic evidence has been governed since 1 July 2024 by the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced the Indian Evidence Act, 1872 (IEA). Section 63 BSA replaces Section 65B IEA and requires a certificate signed by a person in charge and an expert, recording hash values; Section 57 treats records from proper custody as primary evidence unless disputed.

At a glance

Definitions: what counts as a document and as evidence

""document" means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records." — BSA s.2(1)(d)

The IEA definition of "document" in Section 3 did not mention electronic records; since 2000 the definition of "evidence" had included "all documents including electronic records produced for the inspection of the Court". The BSA writes electronic and digital records into "document" itself, adds the words "or otherwise recorded" and "or any other means", and adds Illustration (vi): "An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents". Section 2(1)(e) adds statements "given electronically" to oral evidence and "electronic or digital records" to documentary evidence.

Section 2(2) BSA gives undefined words the meaning they carry in the Information Technology Act, 2000 (IT Act) and the two Sanhitas. The IEA did this for a closed list of expressions ("Certifying Authority", "electronic signature", "electronic records", "secure electronic record", "subscriber" and others); the BSA's version is open-ended.

Primary and secondary evidence: Sections 57 and 58

Section 57 keeps the rule that primary evidence "means the document itself produced for the inspection of the Court", renumbers the IEA Explanations on parts, counterparts and uniform processes as Explanations 1 to 3, and adds four New Explanations:

"Explanation 5.—Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed." — BSA s.57, Explanation 5

• Explanation 4: where a record is stored "simultaneously or sequentially in multiple files, each such file is primary evidence".
• Explanation 6: where a video recording is stored and also "transmitted or broadcast or transferred", each stored recording is primary evidence.
• Explanation 7: where a record is stored in multiple storage spaces in a computer resource, "each such automated storage, including temporary files, is primary evidence".

Section 57 does not define "proper custody". The only BSA definition of proper custody for electronic records is the Explanation to Section 81, stated to apply "for the purposes of this section and section 93"; whether it also informs Section 57 is a reading, not something the text says. Nor does Explanation 5 say what follows when the record "is disputed".

Section 58 (secondary evidence) adds three New clauses: "(vi) oral admissions; (vii) written admissions;" and (viii) evidence of a person skilled in examining numerous accounts or documents that cannot conveniently be examined in Court (which the IEA dealt with inside Section 65). Section 58(ii) corrects "insure" to "ensure".

Admissibility: Sections 61 and 62

Section 61 is New:

"Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document." — BSA s.61 (the enacted text reads "other document", singular)

Section 62 repeats Section 65A IEA ("The contents of electronic records may be proved in accordance with the provisions of section 63"), with the cross-reference changed from Section 65B. Read together, Section 61 removes any objection based only on the electronic form, while the words "subject to section 63" keep the Section 63 conditions in place for computer output.

The Section 63 certificate — what changed

Section 63 follows the architecture of Section 65B: a non-obstante clause, a deeming of "computer output" as a document, four conditions in sub-section (2), a certificate in sub-section (4). The changes:

• Expanded — s.63(1) covers information "stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form". Section 65B(1) covered optical or magnetic media produced by a computer.
• Expanded — s.63(2)(a) conditions refer to a device used regularly "to create, store or process information" (IEA: "store or process") and apply to communication devices as well as computers.
• Modified — s.63(3) treats devices used "in standalone mode", "on a computer system", "on a computer network", "on a computer resource" or "through an intermediary" as a single computer or communication device; Section 65B(3) spoke of combinations of computers operating over a period.
• Modified — the certificate must be "submitted along with the electronic record at each instance where it is being submitted for admission".
• Modified — the signatory is "a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert"; Section 65B(4) required "a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities".
• New — the certificate is the one "specified in the Schedule".
• Omitted — Section 65B(5)(b) (information supplied in the course of official activities) and the Explanation that information "derived from" other information means derived "by calculation, comparison or any other process".

The Schedule form. The Schedule, headed "[See section 63(4)(c)]", has two Parts:

• Part A — "To be filled by the Party": the device or source (Computer/Storage Media, DVR, Mobile, Flash Drive, CD/DVD, Server, Cloud, Other), make and model, colour, serial number and "IMEI/UIN/UID/MAC/Cloud ID"; a statement that the device was under lawful control, working properly and regularly fed with information; whether it is owned, maintained, managed or operated by the signatory; and "the HASH value/s of the electronic/digital record/s" with the algorithm (SHA1, SHA256, MD5 or another "Legally acceptable standard"), "Hash report to be enclosed".
• Part B — "To be filled by the Expert": the device or source particulars and, again, the hash value(s) and algorithm, with the hash report enclosed, signed with name and designation.

Both Parts record date, time (IST, 24-hour) and place. The BSA does not define "expert" for this purpose, and the texts read do not say who may act as one.

How it works — proving a chat by computer output.

1. Identify the route. If the phone itself is produced from proper custody, Section 57, Explanation 5 treats the record as primary evidence unless disputed. If a printout, screenshot, export or copy is relied on, it is "computer output" under Section 63(1).
2. Meet the Section 63(2) conditions — regular use of the device, regular feeding of information, proper operation, and reproduction of information fed in the ordinary course.
3. Prepare Part A (the party, or a person in charge of the device) with the device particulars and hash value.
4. Prepare Part B (the expert) with the same particulars and hash value, and enclose hash reports.
5. File the certificate with the record at each instance it is submitted for admission.

Worked example. B alleges that A sent threatening messages. B's lawyer prints the chat from B's phone. The printout is computer output; to rely on it by virtue of Section 63, a certificate under Section 63(4) must accompany it, with Part A completed by B (who operates the phone) and Part B by an expert, each recording the hash value of the exported chat. Alternatively, B can produce the phone itself, which is primary evidence under Explanation 5 unless A disputes it. Either way, Section 90 gives no presumption that A was the sender; that must be proved.

Experts, signatures and presumptions

• Section 39(2) (was IEA s.45A): the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the IT Act "is a relevant fact"; the Explanation still makes the Examiner an expert.
• Section 41(2) (was s.47A): the Certifying Authority's opinion on an electronic signature is relevant.
• Section 66 (was s.67A): except for a secure electronic signature, the fact that an electronic signature is the subscriber's "must be proved".
• Section 73 (was s.73A): the Court may direct production of the Digital Signature Certificate or verification with the public key; the IEA Explanation defining "Controller" is omitted.
• Section 85 (was s.85A): the Court "shall presume" an electronic agreement containing the parties' "electronic or digital signature" was so concluded.
• Section 86 (was s.85B): a secure electronic record is presumed unaltered since the specific point of time to which the secure status relates, and a secure electronic signature is presumed affixed with the intention of signing, unless the contrary is proved; otherwise no presumption of authenticity or integrity arises.
• Section 87 (was s.85C): information in an Electronic Signature Certificate accepted by the subscriber is presumed correct, except unverified subscriber information.
• Section 90 (was s.88A): the Court "may presume" an email corresponds with the message as fed into the originator's computer, "but the Court shall not make any presumption as to the person by whom such message was sent". The IEA Explanation importing the IT Act meanings of "addressee" and "originator" is omitted; on a reading, Section 2(2) now supplies them.
• Section 93 (was s.90A): for an electronic record five years old from proper custody, the Court may presume the electronic signature was affixed by the person or someone authorised. Proper custody now means the place in which, and by the person with whom, the record "is required to be kept" (s.81, Explanation); the IEA Explanation to Section 90A spoke of where records "naturally be".
• Section 81 (was s.81A): genuineness of electronic or digital Gazettes and records kept under law is presumed if produced from proper custody.

What this means in practice

• For the party relying on a chat, email or CCTV clip: preserve the original device and its custody record; if copies must be used, arrange the Section 63(4) certificate with an expert before filing, and compute and record hash values at the point of extraction.
• For the opposing advocate: check that Part A and Part B identify the same device and the same hash value, that the certificate accompanies the record at each instance of submission, and whether the primary-evidence status under Explanation 5 is "disputed".
• For the investigating officer: seized devices should be kept so that "proper custody" can be shown; the Supreme Court has already directed CCTV footage to be produced with a Section 63 certificate (see Suda Suresh below).
• For the court: a certificate may still be called for during trial (see Arjun Panditrao Khotkar below), but oral evidence does not replace it.

Judgments that still matter

Anvar P.V. v. P.K. Basheer & Ors., [2014] 11 S.C.R. 399 (2014 INSC 645), decided 18 September 2014. A three-judge bench (R.M. Lodha C.J.I., Kurian Joseph and R.F. Nariman JJ.; judgment by Kurian Joseph J.) held that Sections 65A and 65B govern secondary evidence of electronic records to the exclusion of Sections 63 and 65: "An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied" (para 22). The Evidence Act "does not contemplate or permit the proof of an electronic record by oral evidence" if Section 65B is not complied with (para 17). Where the record is used as primary evidence, it is admissible without those conditions (para 24). Why it matters now: Section 63 BSA carries the same structure, and Section 57, Explanation 5 now states the primary-evidence route in the text.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors., [2020] 7 S.C.R. 180 (2020 INSC 453), decided 14 July 2020. For a three-judge bench, R.F. Nariman J. held that "the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced", for example by the owner of a laptop or mobile phone stepping into the witness box (para 32); that "the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record" and oral evidence cannot replace it (para 59); and that, so long as the hearing in a trial is not over, the certificate can be directed to be produced at any stage, subject to the caveats in paras 50 and 54 (para 57). Shafhi Mohammad was overruled and Tomaso Bruno held per incuriam (para 72(a)). Why it matters now: Section 63(4) keeps the certificate and adds a requirement to submit it "at each instance", which on a reading must be applied alongside the para 57 holding.

Pooranmal v. State of Rajasthan & Anr., [2026] 3 S.C.R. 314 (2026 INSC 217), decided 10 March 2026. A three-judge bench (Vikram Nath, Sandeep Mehta and N.V. Anjaria JJ.; judgment by Mehta J.), reading Section 65B with Section 63 BSA in brackets, held that call detail records "become inadmissible in evidence and cannot be relied upon" where the certificate "was not proved by the prosecution" (para 52), and, the murder charge resting on circumstantial evidence, acquitted the appellant (paras 53–55). Why it matters now: the Court treated the two provisions as parallel, and call records are the typical computer output that Section 63 governs.

State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju (2026 INSC 744), decided 27 July 2026. Vikram Nath and Sandeep Mehta JJ. (judgment by Mehta J.), in a custodial-death investigation, retained the requirement that custodial interrogation be recorded on CCTV or video (paras 25 and 27(iv)) and directed that a copy of the CCTV footage and videographic recording, "in its original form without deletion, overwriting, editing or tampering", be produced before the Magistrate "together with a certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023" (para 27(vii)). Why it matters now: it is a Supreme Court direction applying Section 63 BSA, rather than Section 65B, to CCTV footage and video recordings of custodial interrogation.

Which law applies to your case

Section 170(2) BSA provides that an application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement, as if this Adhiniyam had not come into force". On a reading of that text, Section 65B and its single-signatory certificate continue to govern electronic evidence in matters pending on 30 June 2024, and Section 63 with the Schedule form governs proceedings begun on or after 1 July 2024. See which law applies to an offence before 1 July 2024.

Frequently Asked Questions

Is the Section 65B certificate still required under the BSA?

Its successor is. Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 requires a certificate, in the form in the Schedule, to be submitted with the electronic record at each instance it is submitted for admission, whenever a statement is given in evidence by virtue of Section 63. In Arjun Panditrao Khotkar (2020) the Supreme Court held the Section 65B(4) certificate to be a condition precedent for such evidence and unnecessary when the original device is produced.

Who must sign the Section 63(4) BSA certificate?

Section 63(4) BSA requires the certificate to purport to be signed by a person in charge of the computer or communication device or the management of the relevant activities, and an expert. The Schedule splits it into Part A, filled by the party, and Part B, filled by the expert. Section 65B(4) of the Evidence Act required only a person occupying a responsible official position.

What is a hash value and why does the BSA certificate ask for one?

The Schedule to the BSA requires both Part A and Part B of the certificate to state the hash value of the electronic or digital record and the algorithm used to obtain it (SHA1, SHA256, MD5 or another legally acceptable standard), with a hash report enclosed. The Evidence Act certificate under Section 65B(4) contained no such field. Recording the value in both Parts gives a fixed reference against which the record later produced can be compared.

When is an electronic record primary evidence under the BSA?

Section 57, Explanation 5 BSA provides that an electronic or digital record produced from proper custody is primary evidence unless it is disputed. Explanations 4, 6 and 7 add that each file of a record stored in multiple files, each stored copy of a video that is also transmitted, and each automated storage in a computer resource, including temporary files, is primary evidence. Section 62 of the Evidence Act had no such Explanations.

Are WhatsApp messages and emails documents under the BSA?

Yes. Section 2(1)(d) BSA defines document to include electronic and digital records, and its Illustration (vi) lists electronic records on emails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence and voice mail messages stored on digital devices. How they are proved depends on whether the device itself is produced or a computer output is relied on under Section 63.

Does the court presume who sent an email under the BSA?

No. Section 90 BSA lets the Court presume that an electronic message forwarded through an electronic mail server corresponds with the message as fed into the originator's computer, but the Court shall not make any presumption as to the person by whom the message was sent. The sender must be proved by other evidence.

What changed about expert opinion on electronic evidence?

Nothing of substance. Section 45A of the Evidence Act, which made the opinion of the Examiner of Electronic Evidence under Section 79A of the Information Technology Act, 2000 relevant, is now Section 39(2) BSA. Section 47A, on the Certifying Authority's opinion as to an electronic signature, is now Section 41(2).

Which law applies to electronic evidence in a case pending on 1 July 2024?

Section 170(2) BSA provides that an application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as if the BSA had not come into force. On a reading of that text, Section 65B governs electronic evidence in such pending matters, and Section 63 BSA applies to proceedings begun on or after 1 July 2024.

Related

• Sections 65A-65B Evidence Act vs Sections 62-63 BSA: admissibility of electronic records
• Sections 62-65B Evidence Act vs Sections 57-63 BSA: electronic evidence framework
• Proving WhatsApp chats, emails and screenshots in court
• Section 45 Evidence Act vs Section 39 BSA: expert opinion
• Only a photocopy: proving documents and secondary evidence
• Offence before 1 July 2024: which law applies
• Section 91 CrPC vs Section 94 BNSS — Summons to Produce Documents

Sources

• Acts and sections read: BSA 2023 ss.2(1)(d)–(e), 2(2), 20, 39, 41, 56–63, 66, 73, 80, 81, 85–87, 90, 93, 170 and the Schedule (Gazette CG-DL-E-25122023-250882); Indian Evidence Act 1872 ss.3, 22, 22A, 45A, 47A, 62, 63, 65A, 65B, 67A, 73A, 81A, 85A–85C, 88A, 90A with footnotes (original India Code text).
• Judgments read (Veritect judgment corpus, full text): Anvar P.V. v. P.K. Basheer (2014_11_399_427_EN.md); Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020_7_180_282_EN.md); Pooranmal v. State of Rajasthan (2026_3_314_334_EN.md); State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju (Diary_40501-2026_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.