Understanding E-Evidence Under Bhartiya Sakshya Adhiniyam 2023: Key Provisions And Implications

The three new criminal laws, the “Bhartiya Nyaya Sanhita,” the “Bhartiya Nagarik Suraksha Sanhita,” and the “Bhartiya Sakshya Adhiniyam,” have replaced the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act respectively, effective from 1 July 2024. The Bhartiya Sakshya Adhiniyam 2023 marks a significant shift in the legal landscape of India, particularly with its provisions concerning electronic evidence, commonly referred to as e-evidence. In the digital age, where vast amounts of information are generated, stored, and transmitted electronically, the recognition and regulation of e-evidence have become crucial. This article delves into the key provisions related to e-evidence under the Bhartiya Sakshya Adhiniyam 2023 and explores the implications of these provisions for the Indian legal system. Key provisions- E-Evidence The Indian Evidence Act, 1872 (IEA), included provisions for recognizing and admitting 'electronic records' as evidence. Section 65B of the IEA governed the conditions for the admissibility of these electronic records. Section 65A Section 65A of the IEA establishes the general admissibility of electronic records. It stipulates that any information contained in an electronic record, whether printed or otherwise, is considered a document and can be admitted as evidence in legal proceedings without requiring further proof. Section 65B Section 65B outlines the specific conditions that must be met for electronic evidence to be admissible. The electronic evidence must be accompanied by a certificate in a prescribed format, which identifies the electronic record containing the statement and describes the manner of its production. This certificate is typically issued by someone in a responsible official position related to the operation of the relevant device or the management of the relevant activities. Bhartiya Sakshya Adhiniyam, 2023 (BSA) - Section 63 Under the Bhartiya Sakshya Adhiniyam, 2023 (BSA), the admissibility of electronic records is specified in Section 63. The requirements for admissibility are almost identical to those in the IEA, with the addition of the phrase 'and an expert.' A notable change in the BSA is the introduction of a specified format for the certificate required under Section 63, detailed in the BSA's Schedule. This certificate is divided into two parts: Part A, which must be completed by the party presenting the electronic records, and Part B, which must be completed by an expert. Admissibility of E-Evidence Under Section 65A of the Indian Evidence Act, the contents of electronic records must be proven as evidence by the requirements of Section 65B. Both Sections 65A and 65B, added through the Indian Evidence (Amendment) Act, 2000, are part of Chapter V of the Evidence Act, which addresses documentary evidence. The Anvar v. Basheer case clarified that Section 65B, which starts with a non-obstante clause, acts as a comprehensive code for the admissibility of electronic evidence. Section 65B(1) Section 65B(1) states that any information contained in an electronic record, stored, recorded, or copied as a computer output, is considered a 'document' and is admissible as evidence without needing further proof or the production of the originals, provided specific conditions are met. Section 65B(2) outlines the criteria that must be satisfied for the information to qualify as a 'computer output.' Bhartiya Sakshya Adhiniyam, 2023 The Bhartiya Sakshya Adhiniyam 2023 has broadened the definition of e-evidence by including "electronic and digital records" in the definition of "document." Section 61 of the Bhartiya Sakshya Adhiniyam states, "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 provision places electronic records on par with documentary evidence, similar to their treatment under the Indian Evidence Act, 1872, as amended by the Information Technology Act. Authentication of E-Evidence The Indian Evidence Act, through Sections 65A and 65B, outlines the legal framework for the authentication and admissibility of electronic evidence. Introduced by the Indian Evidence (Amendment) Act, 2000, these sections address the increasing use of electronic records. Section 65A requires that the contents of electronic records be proven according to Section 65B. Section 65B(1) states that any information stored, recorded, or copied in optical or magnetic media produced by a computer is deemed a document and is admissible as evidence if specific conditions are met. Section 65B(2) details these conditions, including the regular use of the computer for lawful activities, regular feeding of ...

Understanding E-Evidence Under Bhartiya Sakshya Adhiniyam 2023: Key Provisions And Implications

Anurag Mishra & Satyam Singh

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