Digital Evidence Under BSA 2023: How Electronic Records Are Treated in Indian Courts

The Growing Importance of Digital Evidence

In an increasingly digital economy, electronic records have become the primary evidence in a vast majority of commercial disputes, fraud cases, and criminal proceedings. The Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaced the Indian Evidence Act, 1872, provides a modernized framework for the admissibility and treatment of digital evidence in Indian courts.

What Constitutes Electronic Evidence Under BSA

The BSA broadly defines electronic records to include data, records, or data generated by any electronic device including computers, smartphones, servers, cloud storage platforms, IoT devices, and other digital systems. This encompasses emails, text messages and WhatsApp conversations, social media posts and interactions, digital photographs and videos, bank and financial transaction records, GPS and location data, CCTV footage, website and application logs, ERP and accounting software data, and blockchain and cryptocurrency transaction records.

Admissibility Requirements Under Section 63 BSA

Section 63 of the BSA (corresponding to the former Section 65B of the Indian Evidence Act) provides the framework for admissibility of electronic records. Key requirements include that the electronic record must be accompanied by a certificate from a person occupying a responsible official position in relation to the relevant electronic device or system. The certificate must identify the electronic record and describe the manner of its production. It must provide details of the device or system that produced the record and state that the record was produced during the period when the device was operating properly.

Practical Guidelines for Businesses

To ensure that electronic evidence is admissible and carries evidentiary weight, businesses should implement systematic data retention and archival policies, maintain chain of custody documentation for electronic records, use tamper-proof storage and backup systems, train employees on evidence preservation protocols, and engage digital forensic experts when necessary for evidence collection and authentication.

The Anvar P.V. Principle and BSA

The landmark Supreme Court judgment in Anvar P.V. v. P.K. Basheer (2014), which established that electronic evidence must comply with Section 65B certification requirements, continues to be relevant under the BSA framework. The BSA has refined and expanded upon these principles while maintaining the core requirement of proper authentication for electronic evidence.