Introduction 

Section 62 and Section 63 of Bhartiya Sakshya Adhiniyam, 2023 (BSA) lays down rules regarding admissibility of electronic records. 

Section 62 and Section 63 of Bhartiya Sakshya Adhiniyam, 2023 (BSA)

• Section 62 of BSA provides that the contents of electronic records may be proved in accordance with the provisions of section 63. 
• Section 63 of BSA provides for admissibility of electronic records. 
  • Section 63(1) provides that Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible. 
  • Section 63(2) provides that the conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: 
    • the computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device; 
    • during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer or communication device in the ordinary course of the said activities. 
    • throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and 
    • the information contained in the electronic record reproduces or is derived from such information fed into the computer or communication device in the ordinary course of the said activities. 
  • Section 63(3) provides that Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether— 
    • (a) in standalone mode; or  
    • (b) on a computer system; or 
    • (c) on a computer network; or  
    • (d) on a computer resource enabling information creation or providing information processing and storage; or  
    • (e) through an intermediary, 

all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly. 

• Section 63 (4) provides that In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:— 
  • (a)identifying the electronic record containing the statement and describing the manner in which it was produced; 
  • (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3) 
  • (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, 

and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule. 

Comparison between Indian Evidence Act, 1872 (IEA) and Bhartiya Sakshya Adhiniyam, 2023 (BSA) 

Major Changes Introduced by the BSA 

• The BSA has increased the ambit of the definition of the term ‘document’ and provided that “electronic and digital records’ shall fall within the ambit of the term document. (Section 2(d) of BSA) 
• The BSA also made an addition to the definition of evidence which shall include ‘information given electronically’ within oral evidence and ‘or digital records’ within documentary evidence. 
• Section 57 of BSA defines “primary evidence” and carries four other explanations namely Explanation 4,5,6 and 7. 
  • Explanation 4 provides that “Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.” 
  • Explanation 5 provides that “Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.”  
  • Explanation 6 provides that “Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.”  
  • Explanation 7 provides that “Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.”  
• The BSA has introduced Section 61 which provides that nothing in this Act shall be used to deny the admissibility of an electronic or digital record as evidence on the basis that it is an electronic or digital record. Such records, subject to Section 63, shall have the same legal effect, validity, and enforceability as other documents. 
  • This Section treats electronic records at par with documentary evidence as already treated under the IEA as amended by the Information Technology Act, 2000 (IT). 
• Section 63 of BSA expands its reach to electronic records in semiconductor memories, in addition to those on paper and stored/recorded/copied in optical or magnetic media.  
  • Furthermore, the provision extends its applicability to encompass 'any communication device,' broadening its scope. 
  • Subsection (3) of the provision refines the definition of a computer or a communication device, providing it with a more comprehensive interpretation. 
• Section 63(4) of BSA mandates a certification process similar to Section 65B (4) of IEA with added safeguards like producing the electronic record with the certificate. 
• The BSA provides that while producing electronic evidence, the party must produce the certificate mentioned in the Schedule. 
  • The Certificate contained in the Schedule consist of two parts: 
    • Part A which has to be filled by the party; 
    • Part B which has to be filled by the Expert. 

Loopholes in BSA regarding Electronic Evidence 

• The IEA defined “electronic form”, “electronic records” by referring to section 2 (r) and section 2 (t) of the Information Technology Act, 2000 (I.T. Act), respectively. 
  • There is no reference to I.T. Act in the IEA and the BSA also does not define the terms electronic records and electronic form and uses them interchangeably.  

 Conclusion 

The provisions related to electronic evidence in the BSA aim to make the process of production of electronic evidence more efficient. The standardization of process of production of electronic evidence will minimize delays and procedural disputes, contributing to a more efficient judicial system.