Proving WhatsApp Chats, Emails and Screenshots in Court: Section 65B Evidence Act vs Sections 61-63 BSA

Under Indian law, a WhatsApp chat, email or screenshot offered in evidence is governed by Sections 61 to 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced Sections 65A and 65B of the Indian Evidence Act, 1872. Section 61 BSA provides that nothing in the Act applies to deny admissibility to a record on the ground that it is electronic or digital; Section 63 BSA — like Section 65B before it — requires a certificate for records offered without producing the original, but now that certificate must be signed by both the device's custodian and an expert, using the Schedule's Part A/Part B format with a mandatory hash value.

The situation

A person wants to produce a WhatsApp conversation, an email thread, or a screenshot of either, as evidence in a civil or criminal proceeding in India. They have the messages on their own phone, or only a printout or forwarded copy, and need to know what the law requires before a court will treat that material as proof of what it appears to show.

Old law vs new law at a glance

What the law requires now, step by step

Step 1 — Start from the non-discrimination rule

Section 61 BSA states:

"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."

Neither Section 65A nor Section 65B of the Evidence Act contained a comparable statement. The rule is explicitly "subject to section 63" — so this does not remove the certificate requirement where Section 63 applies; it only removes a blanket objection that a record is inadmissible merely because it is electronic.

Step 2 — Check whether the record needs Section 63 at all

Section 62 BSA states: "The contents of electronic records may be proved in accordance with the provisions of section 63." Sections 57-58 BSA separately classify documents as primary or secondary evidence — Explanation 5 to Section 57 makes an electronic or digital record produced from proper custody primary evidence unless it is disputed. The statutory text does not itself state whether a record offered as primary evidence under Section 57 also needs a Section 63 certificate; this guide does not answer that question.

Step 3 — Where Section 63 applies, meet the four conditions

Section 63(1) BSA states the deeming rule: information contained in an electronic record "printed on paper, 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" is deemed to be a document and is admissible without producing the original, if the section's conditions are satisfied.

Section 63(2) BSA lists those conditions: (a) the output was produced by the computer or communication device during a period it was regularly used for the relevant activity; (b) information of that kind was regularly fed into it during that period; (c) it was operating properly throughout the material part of that period, or any malfunction did not affect the record's accuracy; and (d) the information in the record reproduces or is derived from what was fed into the device in the ordinary course of that activity. This text tracks Section 65B(2) Evidence Act closely, extending it to "communication device" wherever the Evidence Act said only "computer", and adding "create" to "store or process" in clause (a).

Step 4 — Prepare the certificate: two signatories, not one

Section 63(4) BSA requires "a certificate doing any of the following things" to be submitted along with the electronic record at each instance where it is being submitted for admission — (a) identifying the record and describing how it was produced, (b) giving particulars of any device involved, or (c) dealing with any of the Section 63(2) conditions — and the sub-section requires it to be "purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities... and an expert." Section 65B(4) of the Evidence Act, by contrast, required only one signatory: "a person occupying a responsible official position in relation to the operation of the relevant device."

Step 5 — Fill the Schedule certificate: Part A and Part B

The closing words of Section 63(4) BSA refer to "the certificate specified in the Schedule." The Schedule to the Act, headed "CERTIFICATE" under the cross-reference "[See section 63(4)(c)]," is in two parts:

Part A (to be filled by the party) requires the producing party to identify the source device (computer/storage media, DVR, mobile, flash drive, CD/DVD, server, cloud, or other), its make, model, colour, serial number and IMEI/UIN/UID/MAC/Cloud ID as applicable, a statement that the device was under lawful control and operating properly during the relevant period, and:

"I state that the HASH value/s of the electronic/digital record/s is , obtained through the following algorithm:— SHA1: SHA256: MD5: Other_ (Legally acceptable standard)"

Part B (to be filled by the expert) restates the same device-identification particulars and requires the expert to state the hash value of the record obtained through the same set of named algorithms, with the hash report to be enclosed with the certificate.

No equivalent Schedule, and no hash-value requirement of any kind, exists under Section 65B of the Evidence Act.

What changed — and what did not

• New provision: Section 61 BSA's non-discrimination rule has no counterpart in Sections 65A-65B Evidence Act.
• Carried forward with additions: the deeming mechanism and its four conditions (Section 63(1)-(2) BSA) track Section 65B(1)-(2) Evidence Act closely, with "communication device", "semiconductor memory", "or otherwise stored, recorded or copied in any electronic form" and (in clause (a)) "create" added.
• Modified: the single-computer rule (Section 63(3) BSA) replaces the Evidence Act's list of combined or successive computers (Section 65B(3)) with standalone mode, a computer system, a computer network, a computer resource, or an intermediary.
• Modified: the certificate signatory requirement moves from one person (Section 65B(4)) to two — the device custodian and an expert (Section 63(4)).
• New requirement: the Schedule's Part A/Part B format and its mandatory hash value (SHA1, SHA256, MD5 or another legally acceptable standard) exist only under the BSA; Section 65B(4) Evidence Act required a certificate but prescribed no standard format and no hash value.
• Renumbered, same substance: Section 65A's cross-reference to the certificate section becomes Section 62 BSA's cross-reference to Section 63.

Which law applies to your case

If the application, trial, inquiry, investigation, proceeding or appeal in which the record is tendered was pending immediately before the BSA came into force on 1 July 2024, Section 170(2) BSA provides that it shall be dealt with under the Indian Evidence Act as in force immediately before that commencement — so the Section 65B framework, not Sections 61-63 BSA, governs that proceeding. The full rule on what "pending" means for this purpose is set out in Which Law Applies to an Offence Before 1 July 2024; this article does not restate the transition rule beyond that reference.

Practical checklist

For the person producing the evidence:

• Establish first whether the original device can be produced in court, or whether the record is produced from proper custody and undisputed (Explanation 5 to Section 57 BSA) — and note that the statutory text does not itself say whether a Section 63 certificate is then dispensed with.
• If a certificate is required, arrange for both signatories: the person in charge of the device or the management of the relevant activities, and an expert.
• Compute the hash value of the record using one of the algorithms named in the Schedule (SHA1, SHA256 or MD5) before finalising the certificate, and keep the hash report to enclose with it.
• Complete both Part A and Part B of the Schedule certificate in full, including device make, model, serial number and IMEI/UIN/UID/MAC/Cloud ID as applicable.

For the advocate:

• Do not assume Section 61 BSA removes the certificate requirement — it is expressly "subject to section 63."
• Verify that the certificate names both signatories required by Section 63(4) BSA; a certificate signed by only one person does not meet the current text.
• Cross-check the hash value stated in Part A against the hash value stated in Part B before relying on the certificate.
• For a record tendered in a proceeding pending before 1 July 2024, check whether Section 170(2) BSA keeps the old Section 65B framework applicable instead.

Frequently asked questions

Do I still need a certificate to produce a WhatsApp chat in court under the BSA?

Where a printout, screenshot or exported copy is offered as computer output under Section 63(1) BSA — admissible without further proof or production of the original — Section 63(4) requires a certificate to be submitted with the electronic record each time it is submitted for admission. Separately, Explanation 5 to Section 57 BSA makes an electronic or digital record produced from proper custody primary evidence unless it is disputed. The statutory text does not itself say whether a Section 63 certificate is needed when a record is offered as primary evidence under Section 57; this guide does not answer that question, which the text leaves open.

What is the difference between the old Section 65B certificate and the new Section 63 BSA certificate?

Section 65B(4) of the Evidence Act required one certificate, signed by a person occupying a responsible official position, describing the record and the device. Section 63(4) BSA requires the certificate to be signed both by the person in charge of the computer or communication device and by an expert, and the certificate specified in the Schedule (headed "[See section 63(4)(c)]") requires a hash value of the record — a requirement Section 65B never contained.

What is Part A and Part B of the BSA Schedule certificate?

The Schedule to the BSA, headed "[See section 63(4)(c)]", sets out a two-part certificate. Part A is filled and signed by the party producing the electronic record, stating the device or source, its make, model and serial number, and the hash value of the record. Part B is filled and signed by an expert, identifying the same device details and stating the hash value obtained through an algorithm such as SHA1, SHA256 or MD5.

Can a court reject WhatsApp or email evidence just because it is electronic?

No. Section 61 BSA states that nothing in the Act 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 that such a record shall, subject to Section 63, have the same legal effect as other documents. There is no equivalent statement in Sections 65A or 65B of the Evidence Act.

Does an email count as an electronic record under the BSA the same way a WhatsApp chat does?

Illustration (vi) to the definition of "document" in Section 2(1)(d) BSA states that 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. Sections 61-63 BSA do not distinguish between messaging platforms and other computer-produced records. Whether either is primary or secondary evidence depends on Sections 57 and 58 BSA, not on which app or service produced it.

What algorithms does the BSA Schedule certificate accept for the hash value?

The Schedule's Part A and Part B both list SHA1, SHA256 and MD5 as named options, with an additional line reading "Other__________________ (Legally acceptable standard)", as read from the Gazette text of the Act.

Related on Veritect

• Which Law Applies to an Offence Before 1 July 2024
• Admissibility of Electronic Records — Sections 65A-65B Evidence Act
• Section 65A-65B Evidence Act vs Section 57-63 BSA — New Comprehensive Electronic Evidence Framework
• Only a Photocopy: Proving Documents and Secondary Evidence — BSA vs Evidence Act
• Evidence Act to BSA: Complete Section Mapping
• Section 311A — Audio-Video Evidence

Statutory sources

• Indian Evidence Act, 1872 — Sections 65A, 65B(1)-(5) (read from Evidence_Act_1872.md)
• Bharatiya Sakshya Adhiniyam, 2023 — Sections 61, 62, 63(1)-(5) (read from BSA_2023.md)
• Bharatiya Sakshya Adhiniyam, 2023 — The Schedule [See section 63(4)(c)], Parts A and B (read from the Gazette text, CG-DL-E-25122023-250882)

This guide explains the statutory text of the BNS, BNSS and BSA as enacted. It is not legal advice; for a specific case, consult an advocate.