Admissibility of Electronic Records under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023: Practical Challenges before Trial Courts.

The rapid digitisation of communication, commerce, governance and personal activity has changed the form and the nature of evidence adduced before Indian courts.. Emails, call-detail records, closed-circuit television footage, mobile-phone extractions, social-media messages, cloud data, server logs and electronic contracts now feature regularly in civil and criminal proceedings. The Bharatiya Sakshya Adhiniyam, 2023 (“BSA”), was enacted on 25th December 2023 and was brought into force on 1st July 2024, updates India’s law of evidence by explicitly acknowledging the existence of electronic and digital records, and by replacing the framework provided by sections 65A and 65B of the Indian Evidence Act, 1872 (“IEA”) with new provisions (sections 61–63 of the BSA). Section 63 is the key provision regarding the admissibility of electronic records produced as computer output. While largely retaining the basic principles of section 65B of the IEA, it contains significant modifications, including an acknowledgment of the role of intermediaries, a reference to communication devices and a certificate-based formulation incorporating both the person responsible for the relevant device or activity and an expert. Whilst many of these developments are designed to serve reliability, they have introduced practical challenges to trial courts. Conflicts arise over the difference between primary and secondary electronic evidence, certification requirements, identification of the proper certifier, retention of metadata, possession, cloud storage, third-party possession of devices and production of certificates late. This paper analyses the statutory regime provided by section 63, the continued applicability of Supreme Court decisions under section 65B of the IEA and the practical difficulties confronting trial courts. It argues that the language used in section 63 should be interpreted as a reliability based provision, not just a simple exclusionary statement of reliability. Courts hearing charges need to adopt a structured approach to evidence in order to preserve the protective evidentiary rights and avoid procedural irregularities which could frustrate the introduction of reliable electronic record items. The paper then concludes with a series of recommendations in relation to judicial case management, standardisation of certificates, forensic preservation protocols and other guidance in relation to expert participants.