Supreme Court Rejects Challenge To S.63(4) BSA Mandating Hash Value Disclosure For Electronic Evidence

The Supreme Court has upheld the constitutional validity of Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), rejecting a challenge mounted by the Pune Bar Association against the stricter admissibility framework for electronic evidence. While refusing to interfere with the provision, the Court also clarified that a Madras High Court view suggesting that only government-notified electronic evidence examiners can certify such records should not be treated as binding precedent.A Bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul M. Pancholi passed the order on May 22 in a writ petition filed under Article 32 of the Constitution.The petitioner Bar association had challenged Section 63(4) of the BSA, read with the Schedule appended to the Act, contending that the provision imposes unreasonable and impractical obligations on litigants seeking to rely on electronic records as evidence.Under Section 63(4), electronic records submitted as secondary evidence must be accompanied by a certificate in the prescribed format. The Schedule requires, in Part A, details including the hash value of the electronic record, and in Part B, certification by an expert.The petitioner argued that these requirements place an onerous burden on ordinary litigants, particularly because compliance may require technical expertise that is not easily accessible. According to the petitioner, the provision makes admissibility of electronic evidence excessively difficult and therefore suffers from manifest arbitrariness.Court on Need for Stricter Safeguards for Digital EvidenceRejecting the challenge, the Supreme Court underscored the fundamentally different nature of electronic evidence and the risks associated with its manipulation.The Bench observed that with the rapid digitisation of modern life, electronic records such as emails, audio-visual files and other digital documents have become commonplace in litigation, increasingly replacing conventional paper records.However, unlike physical documents, electronic records are susceptible to continuous alteration or mutation, directly affecting their authenticity, integrity and evidentiary worth, the Court said.The Court also took note of emerging technological threats such as artificial intelligence and deepfake tools, observing that these developments have significantly intensified concerns about the reliability of digital evidence.In this context, the Bench noted that Parliament consciously introduced a more robust evidentiary framework under the BSA, replacing the earlier Section 65B regime under the Indian Evidence Act, 1872.Referring to the Statement of Objects and Reasons of the BSA, the Court noted that the new law sought to modernise evidentiary standards by expressly recognising electronic and digital records and by requiring “matching hash value” to support admissibility of secondary evidence.Explaining the rationale, the Court observed that a hash value functions as a digital fingerprint that enables identification and verification of electronic data.“Hash value of an electronic data is synonymous with an electronic fingerprint and provides a sure way of identifying and verifying digital data,” the Court observed.The Bench held that the requirement of disclosing hash values directly serves the legitimate objective of ensuring authenticity and integrity of electronic evidence and therefore bears a clear rational nexus with the object of the legislation.Similarly, the requirement of expert certification in Part B was held to provide an additional layer of authenticity to secondary electronic evidence.“For these reasons, we are of the considered view that the new provision has a clear and rational nexus with the object of the law and cannot be said to be either arbitrary or unreasonable so as to suffer from the vice of manifest arbitrariness,” the Court held.SC Clarifies Madras HC ViewA major concern raised by the petitioner related to who could validly sign Part B of the certificate.The petitioner relied on a Madras High Court ruling in R v B to argue that only Examiners of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000 could sign the expert certificate.It was argued that because only a limited number of such experts are officially notified, the requirement creates serious practical barriers and renders implementation of Section 63(4) illusory.The Supreme Court examined the Madras High Court judgment and observed that the issue had not been conclusively decided there either.The apex court noted that the High Court, while interpreting the BSA, had primarily referred to Section 39(2), which recognises the opinion of an Examiner of Electronic Evidence under Section 79A of the IT Act as expert opinion.However, the Supreme Court said this approach overlooked Section 39(1), which broadly permits courts to rely on the opinions of persons possessing special skill in relevant scientific or technical...

Supreme Court Rejects Challenge To S.63(4) BSA Mandating Hash Value Disclosure For Electronic Evidence

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The Court however held that the Madras HC ruling that only Govt-notified experts can give a certificate under S.63(4) is not a binding precedent.

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Supreme Court Rejects Challenge To S.63(4) BSA Mandating Hash Value Disclosure For Electronic Evidence

LIVELAW NEWS NETWORK

The Court however held that the Madras HC ruling that only Govt-notified experts can give a certificate under S.63(4) is not a binding precedent.

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INR 1099+GST

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