What the Bharatiya Sakshya Bill, 2023 proposes for electronic records

The Bharatiya Sakshya Bill, 2023, recently introduced in Parliament, aims to replace the long-standing Indian Evidence Act. This move has sparked discussions and debates across various circles, and one of the key changes is that the Bill allows for evidence of digital records (such as email) to be given in court.

A perusal of the Bill reveals that for the most part, the existing position of electronic evidence has been reiterated. Some of the modifications that have been made further codify the current position as laid down by case law to make it clearer, while some other changes demand closer scrutiny.

Reiteration of existing position and positive changes

As far as admissibility of electronic records is concerned, the position has not undergone much change. The existing Indian Evidence Act was amended in the year 2000 to incorporate provisions for electronic evidence. For the most part, these have been carried forward in the current Bill as well. Even prior to 2000, electronic records could have been presented in evidence using the device which produced the electronic record (eg. the laptop on which a document is stored). Post-2000, other computer outputs made from such device – which would otherwise be secondary evidence – were made admissible by bringing it to the same level as primary evidence. Thus, a print-out becomes admissible without having to bring the computer in evidence. The Supreme Court of India in Arjun Panditrao v. Kailash Kushanrao had also clarified this position.

The Bill has codified the principles that were settled in the Arjun Panditrao case. The definition of ‘primary evidence’ in Clause 57 (corresponding to the existing Section 62) has been retained from the existing Act, but four more Explanations have been added. The Explanations clarify what all is to be considered ‘primary evidence’ when dealing with electronic record. Clause 61 further clarifies:

“Nothing in the Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall have the same legal effect, validity and enforceability as paper records.”

Secondary evidence for electronic records – Potential complications

The changes made in this respect require greater attention. The clause has been modified to include information produced by or stored in communication devices as well. Information created through intermediaries has also been included, which is a positive step. A format of the certificate required under this Section has also been prescribed in the Schedule of the Bill. This too is a positive development. In the experience of the authors, most litigants often remain confused about the details to be included in the certificate, and many certificates filed by the Delhi Police with their chargesheets are grossly deficient. A prescribed format would certainly prevent embarrassments at trial stemming from technical mistakes.

Strangely, however, the certificate provided in the Schedule itself does not meet the requirements prescribed in sub-clause 2. This sub-clause requires that the certificate to be submitted needs to specify that the device was under the lawful control of the person, that the computer was operating properly, etc. Sub-clause 4(c) requires these statements to be present in the certificate. Yet, they are missing in the format prescribed itself. Whether this is oversight or a fundamental failure to understand the scheme of the legislation by the drafters itself, is an interesting thought.

The clause also adds certain complications. Along with a certificate to given by the operator of the computer, it also requires a certificate to be given by an expert. Strangely, instead of mentioning that the certificate has to be of an Examiner of Electronic Evidence (which is an expert notified under Section 79A of the Information Technology Act), the clause says “expert (whichever is applicable)”. It is unclear why it has been worded so.

Even otherwise, it is puzzling as to why an expert’s certificate is required at the stage of admissibility of evidence itself. As per the Schedule as also the clause, the expert is only supposed to certify that the computer output has been derived from the respective computer device. Thus, a person intending to give electronic evidence would be required to first contact an expert, hand over the computer device and request them to generate the computer output and take a certificate.

This is obviously absurd and would cause undue hardships for no understandable reason. If a person is required to take the computer device to an expert to get the output, why would they not simply take the device to court as primary evidence? The ease of producing digital evidence which was intended by this clause goes completely missing because of the requirement of the expert’s certificate.

An expert may be required to analyse certain electronic evidence (such as a video or an audio file) to opine whether it has been tampered with. But then, that question is much different than that of admissibility of the document itself and the certificate required is related to such matters.

A confusing exercise

It is puzzling as to why these changes have been attempted in the clause, which was otherwise sufficient to cover secondary evidence for electronic records. True, certain clarifications were required to be codified for certain provisions. But it does not appear that there was any pressing need to require an expert’s certificate for every computer output intended to be brought into evidence. Further, Justice V Ramasubramanian, in his concurring opinion in Arjun Panditrao case, had compared the provisions for electronic evidence in various jurisdictions and had called for a relook at Section 65-B. It does not appear that these suggestions have been taken into consideration while drafting the Bill.

It is hoped that sufficient debate would take place before any draft for the Bill is settled upon. A very important exercise for any such debate would be to find out as to why such changes have been made in the first place, if they add nothing of value and merely make the admissibility of electronic records more difficult. As of present, the answer remains unknown.

Abhimanyu Kampani is a Partner at Luthra & Luthra Law offices.

Nipun Arora is an advocate practicing in Delhi.