Navigating the transition: Implications of the Bhartiya Sakshya Adhiniyam on digital evidence in ongoing trials

Last Saturday, a Delhi court issued directives to the Delhi Police to ensure adherence with the new legislation governing the submission of digital evidence.

Additional Sessions Judge Pulastaya Parmachala, while delivering an order in the 2020 Delhi riots case, noted that despite the repeal of the Indian Evidence Act, 1872, certificates for validating the authenticity of digital evidence were still being submitted under the now-defunct Section 65B of the 1872 Act.

In the present case, the prosecution had summoned the nodal officer of a telecommunications company to produce certified copies of call data records, and the nodal officer of the Emergency Response Support System (ERSS) to provide certified copies of emergency 112/100 calls made during the 2020 riots. Initially, these witnesses presented certificates under Section 65B of the 1872 Act, and later produced certificates under Section 63 of the Bhartiya Sakshya Adhiniyam, 2023 (BSA) which were found to be incorrect as they did not conform to the prescribed format outlined in the Adhiniyam's Schedule.

Section 65B of the 1872 Act was introduced to facilitate the admission of electronic evidence - whether printed, stored, or copied on optical or magnetic media - without the need for further proof or production of the original source. This was contingent on the certification by the individual tendering such evidence that it had not been altered and was a true reproduction of the original source. The Supreme Court in Anvar PV v. PK Basheer elucidated the purpose of Section 65B and established the criteria for the introduction and validation of electronic evidence, which include:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

However, recent legislative changes introduced additional requirements for the submission of electronic evidence under the BSA, 2023. Section 63(4) stipulates that a certificate to verify the authenticity of electronic evidence must be signed by both the person in charge of the computer or communication device and ‘an expert’, with the certificate adhering to the format prescribed in the Adhiniyam’s Schedule. Furthermore, the form specified in the Schedule requires that electronic evidence be accompanied by a 'hash value'. This hash value serves as a digital signature ensuring the document's authenticity; any alteration to the document will result in a change in its hash value.

The challenge arising from this provision is the absence of a clear definition regarding who qualifies as an expert capable of validating the authenticity of electronic evidence. Section 39(2) of the BSA, 2023 mirrors Section 45A of the Evidence Act, which permits the court to seek the opinion of an examiner of electronic evidence as detailed in Section 79A of the Information Technology Act, 2000. This examiner, deemed an expert, can provide authoritative opinions on the legitimacy of electronic records.

Therefore, if these provisions are used to define 'expert' under Section 63 of the BSA, the new legislation introduces an additional layer of scrutiny for presenting electronic evidence in court. This could be a positive development, enhancing the robustness of evidentiary rules and ensuring the authenticity and reliability of evidence.

Nonetheless, this approach requires further deliberation as it must align with the demographics of the nation and the individuals it aims to protect. Stringent compliance for electronic evidence submission might handicap many individuals who lack technological proficiency to generate and produce 'hash value reports’. While compliance for the State in criminal matters might be comparatively simpler, the real challenge arises in the adjudication of civil or other disputes between private parties. Additionally, if the new provision necessitates evaluation by experts such as the examiner of electronic evidence, it could lead to considerable delays in trials and adjudication of disputes, given the current inadequacies in infrastructure.

At present, the Ministry of Electronics and Information Technology has notified 15 examiners of electronic evidence, which, given the expansive scope of the new law, is woefully inadequate to support the vast scale of litigation in the country. The limited number of experts further exacerbates concerns regarding delays in trials and the effective implementation of the legal provisions governing digital evidence.

Another pertinent question that warrants careful consideration arises in situations where electronic evidence was submitted to the court prior to the enactment of the new law, but either a certificate under Section 65B of the Evidence Act was not provided, or the one submitted was defective. Should the certificate now be tendered in accordance with the Evidence Act or the BSA, given that the trial is still ongoing?

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the Supreme Court observed that Section 65B of the 1872 Act does not specify at what stage the certificate under this provision must be submitted. The Court opined that in criminal trials, it is preferable for the certificate to be filed along with the chargesheet and provided to the accused before the trial begins. However, in the event that this is not done, or if the certificate is found to be defective, the trial court may permit the prosecution to furnish a fresh certificate, provided that it does not prejudice the rights of the accused.

Thus, the key question that emerges is whether a certificate filed after July 1, 2024, in a trial that commenced before the notification of the new laws, should be submitted in accordance with the erstwhile Evidence Act or the BSA. In this context, it would be pertinent to examine Section 170 of the BSA, which reads as follows:

"(1) The Indian Evidence Act, 1872 is hereby repealed.

(2) Notwithstanding such repeal, if, immediately before the date on which this Adhiniyam comes into force, there is any application, trial, inquiry, investigation, proceeding or appeal pending, then, such application, trial, inquiry, investigation, proceeding or appeal shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement, as if this Adhiniyam had not come into force."

The aforesaid provision clearly stipulates that the provisions of the BSA shall not be applicable to trials or proceedings which commenced before the date when the new legislation was brought into force.

Therefore, if electronic evidence was submitted before the effective date, either without a certificate under Section 65B of the 1872 Act or with a defective certificate, any new certificate provided during the trial must be filed as per the Evidence Act and not the BSA. During the trial, the new certificate ought to be as per the provisions of the Code and not the BSA. This interpretation is further reinforced by the fact that the BSA requires the submission of a hash value report and certification by an expert. Therefore, if a certificate were to be filed under the BSA, the electronic evidence would need to be re-transmitted or transferred afresh in the presence of an expert who could authenticate its integrity and ensure compliance with the new requirements. Consequently, the prosecution would have to re-submit the electronic evidence, as the previously filed evidence would no longer serve any purpose since it could not be properly proven.

The above article seeks to underscore the glaring gaps and ambiguities in the interpretation and application of the newly enacted evidence law. It intends to highlight how these deficiencies could significantly impact and influence the litigation landscape. By examining the discrepancies between the old and new legal frameworks, the article highlights the practical challenges faced by legal practitioners and the judiciary.

The transition from the Indian Evidence Act, 1872 to the Bhartiya Sakshya Adhiniyam, 2023 is accompanied with complexities and varied interpretations; thus, there is a need for further judicial clarification. As courts grapple with the application of the new law, their rulings will be crucial in resolving these ambiguities and providing guidance on the proper procedures for evidence submission under the updated legal framework.

Daksh Sachdeva is an advocate practicing before the courts of Delhi NCR. Views expressed are personal.