Definition
Data in electronic form — emails, messages, digital records — admissible as evidence if relevant and accompanied by a certificate.
Electronic records are admissible as documentary evidence with a mandatory authenticity certificate — the Section 63 BSA certificate is indispensable for admissibility.
Statutory Definition
Bharatiya Sakshya Adhiniyam (BSA), 2023, Sections 61-63 (formerly IEA Sections 65A-65B).
Etymology & Origin
From Greek 'elektron' (amber — from which static electricity was first observed by rubbing). 'Electronic' relates to electricity or the movement of electrons. In law, 'electronic evidence' is evidence created, stored, processed, or transmitted in digital (electronic) form — the kind of evidence produced by computers, smartphones, databases, and digital communications. The term reflects the 20th-century expansion of 'document' beyond paper to include any medium of recorded information.
Full Legal Analysis
Electronic evidence encompasses all information stored or transmitted in electronic form — emails, text messages, WhatsApp conversations, call detail records, CCTV footage, computer files, database records, metadata, and electronic financial transactions. As technology permeates all areas of life, electronic evidence has become the most significant form of evidence in commercial, criminal, and civil litigation. Section 61 of the BSA, 2023 (formerly IEA Section 65A) provides that the contents of electronic records may be proved by the production of the electronic record itself (primary evidence) or by a Section 63 BSA certificate (secondary evidence for printed forms).
The Section 63 BSA certificate (formerly Section 65B IEA certificate): this is the foundational requirement for the admissibility of electronic evidence. The certificate must be issued by a responsible official of the organisation that controls the computer/device that produced the electronic record. The certificate must: (1) identify the electronic record; (2) identify the device/computer on which it was produced; (3) certify that the device was functioning properly during the relevant period; (4) confirm that the information was recorded or stored in the ordinary course of activities; and (5) be signed by the responsible official.
The Supreme Court (three-judge bench) definitively held that the Section 65B IEA certificate (now Section 63 BSA certificate) is mandatory — it is not optional, and without it, a printed-out electronic record is inadmissible as evidence. The certificate cannot be substituted by oral testimony of the person who operated the computer. The Court held that if the certificate is not provided at the time the electronic record is tendered in evidence, the court can allow it to be provided later (before the matter is decided) but cannot admit the evidence without any certificate. This ruling applies to all courts in India and has transformed how electronic records are introduced in proceedings. The SIM card data, call records, electronic bank statements, emails, CCTV recordings — all require the Section 63 BSA certificate.
Electronic evidence in criminal proceedings: call detail records (CDRs) — used extensively to establish the accused's location and communication patterns. CCTV footage — requires the certificate of the person responsible for maintaining the CCTV system. WhatsApp messages and emails — printed screenshots require the Section 63 BSA certificate from the mobile service provider or email service provider. In Surat Municipal Corporation v. Oriental Rubber Industries (2012), the Court extended the Section 65B requirement to government and public authority records as well.
For advocates, electronic evidence practice requires: (1) always obtaining the Section 63 BSA certificate at the time of gathering electronic evidence; (2) preserving the hash value (digital fingerprint) of electronic files to prove they have not been tampered with; (3) understanding metadata — when a file was created, modified, accessed; (4) challenging electronic evidence by showing the certificate is defective, the device was not functioning properly, or the record was tampered with; and (5) chain of custody — the electronic record must be shown to have been in proper custody from collection to production in court.
This Term in Indian Statutes
Bharatiya Sakshya Adhiniyam, 2023, 2023
"Certificate for identifying the electronic record produced by a computer, certifying that the computer was operating properly in the period during which the electronic record was produced, and that the information in the electronic record was derived from information fed into the computer in the ordinary course of the activities of the organisation — must be signed by a responsible official."
Arjun Panditrao: Section 63 BSA certificate mandatory — not optional; no certificate = inadmissible; CDRs, CCTV, WhatsApp messages need certificate; hash values for integrity; electronic record primary evidence = data on device; printout = secondary evidence needing certificate
