Though the new criminal laws are mostly dismissed as a mere renaming of colonial statute in indigenous nomenclature , the Bharatiya Sakshya Adhiniyam, 2023 (BSA), has significantly altered how the “certificate” that authenticates an electronic record is considered in the field of electronic evidence. Section 63 of the BSA, which has replaced the highly contentious section 65B of the Indian Evidence Act, 1872 (IEA), preserves the structure of the old law while tightening nearly every bolt within it. Since the certificate now serves as the pivot point for the admissibility of electronic evidence, it is necessary to analyse it in order to comprehend how the BSA has altered the area.

Controversy around the Certificate

The certificate requirement has a long history shaped by almost two decades of judicial disagreements. In Sate (NCT of Delhi) v. Navjot Sandhu (2005), the Supreme Court permitted electronic records to be proved by secondary means even without a certificate. That position was overruled in Anvar P.V. v. P.K. Basheer (2014), where a three-judge bench held the certificate under Section 65B(4) is a condition precedent for admissibility of secondary electronic evidence. Things became unclear once again in 2018, when Shafhi Mohammad v. State of Himachal Pradesh carved out an exception for a party not in possession of the device generating the record. Finally, in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), a three-judge bench restored the rule in Anvar, confirmed that the certificate is mandatory, and clarified both who may issue it and when its non-production may be excused. The BSA was drafted with this uneven record in mind, which is why Parliament chose to spell things out and leave judges far less room to fill the gaps on their own.

Section 63 and the New Certificate Regime

The first and most immediate change the BSA makes is to the wording of the section. Section 65B(4) of the IEA used the word “may”, which the courts interpreted as a mandatory requirement. Section 63(4) of the BSA instead provides that the certificate “shall” be submitted, removing the interpretive gap at a stroke. The rule that Anvar and Arjun Panditrao achieved through years of litigation is now written plainly into the text.

The second change has to do with when the certificate must be filed. The old provision prescribed no specific stage for filing the certificate, and the courts adopted a generous attitude, permitting filing of the certificate at later stages of the trial. The BSA requires the certificate to be submitted along with the electronic record at each instance it is tendered for admission, mandating contemporaneous filing and settling a question that had consumed disproportionate judicial energy.

The third change is the standardisation of form. Where Section 65B(4) prescribed no format, allowing courts to adapt requirements case by case, the BSA prescribes a detailed template in its Schedule. A certificate is no longer something for a lawyer to draft creatively; it is now a statutory form with specific fields to fill in. This may be one of the less talked-about reforms in the Adhiniyam, but the discipline it brings is significant.

A fourth, and more far-reaching, shift concerns the very reach of the requirement. The jurisprudence under the IEA had distinguished between the original electronic record produced before the court and a computer output produced before the court. The original computer could be admitted without ta certificate, but for treating computer output as evidence, a certificate was held to be mandatory. At first sight the BSA appears to relax this position, for an electronic record satisfying Explanations IV to VII of Section 57 is treated as primary evidence which could be filed as primary evidence needing no requirement of a certificate. That relaxation, however, is counterbalanced by Section 61 a provision with no analogue in the old Act which provides that an electronic or digital record shall, “subject to section 63,” have the same legal effect, validity and enforceability as any other document. By routing the legal effect of every electronic record through Section 63, the BSA makes the certificate a mandatory condition in every case, whether or not the device producing the record is itself produced in its original form. The consequence is striking: the concession in Arjun Panditrao Khotkar, which had permitted an original electronic record to be admitted without a certificate, does not survive under the BSA. Every electronic record, whether tendered as original or as output, must now carry a valid Section 63 certificate, a stricter regime than the IEA ever imposed.

Dual Certification and the Turn to Forensic Rigour

The most ambitious change of the BSA is the shift from single-signatory certificate to a dual certification. Under the IEA, it was legally sufficient that the certificate was signed by a person occupying a responsible official position in relation to the device produced as electronic evidence. The BSA's Schedule splits the certificate into two parts: Part A, completed by the party or person in charge of the device, and Part B, completed by an expert. Two signatures are now required where one previously served, and the expert's involvement is no longer optional.

This structural change is accompanied by an infusion of forensic science into the statutory form. Part B requires the expert to record the hash value of the electronic record, expressly recognising the standard algorithms — MD5, SHA-1 and SHA-256. Part A demands detailed device particulars, including unique identifiers such as the IMEI of a phone, the MAC address of a networked device, a UID or UIN, or a Cloud ID as appropriate.

A pressing question left unanswered under the BSA is who qualifies as the "expert" contemplated by Part B of the Schedule and Section 63(4). Section 39(2) of the BSA deems the Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000, to be an expert, and it is tempting to read the certificate as demanding the signature of such an Examiner. Only a handful of bodies have, however, been notified under Section 79A, and to route every certificate through them would occasion considerable delay in already congested trials. In my humble opinion the better view is that "expert" in Section 63(4) should be understood through Section 39(1) of the BSA, which asks only that a person be "specially skilled" in the relevant field, prescribing no particular qualification, degree or formal training. The courts have long taken this practical view, where experts were described as those who have devoted time and study to a special branch of learning. In certain cases a local goldsmith has been accepted as an expert on the purity of gold, and an excise inspector of twenty-one years' standing on the quality of liquor. On this understanding, a person experienced in computer networks, or even a local mobile-phone engineer, ought to be competent to certify under Section 63(4).

How the Field Has Changed

These reforms push the law firmly toward legal certainty. Making the certificate a mandatory condition for all electronic evidence, coupled with the hash-value requirement and expert verification, the practical standard of authentication has risen appreciably, making the tampered or fabricated record easier to detect and exclude.

Yet the same reforms have raised the procedural burden. A contemporaneous, dual-signed, expert-verified certificate is a demanding instrument, and the requirement bears most heavily on the party who does not control the device that produced the record, precisely the access-to-justice concern that Shafhi Mohammad had sought. The framework also assumes a level of technical competence that legal practitioners, certifying agencies and judicial officers may not uniformly possess.

The BSA's treatment of the certificate is evolutionary rather than revolutionary. It codifies two decades of contested jurisprudence, tightens the language, standardises the form, and embeds forensic rigour through dual certification and mandatory hashing. The change that BSA wants to achieve will ultimately depend on investment in the people and the infrastructure that must give it effect. A requirement under BSA presupposes a bench, a bar and an investigating machinery fluent in the language of digital forensics. The promise of Section 63 therefore rests on reforms that lie outside the Adhiniyam itself: structured and continuing training for judges, prosecutors and advocates; the accreditation and expansion of forensic expertise beyond a handful of notified bodies; and the modernisation of court and laboratory infrastructure so that electronic evidence can be received, preserved and appreciated as the law now requires.

Author is an Advocate practicing at Lucknow District Courts and Allahabad High Court. Views are personal.