Section 63 of the Bharatiya Sakshya Adhiniyam: the post-Anvar / Arjun architecture, restated for the BSA era

The Indian Evidence Act, 1872 had governed evidence law in India for over a century and a half. Sections 65A and 65B — inserted in 2000 to address electronic records — had developed, over two decades of doctrinal engagement, into the foundational architecture of electronic-evidence practice. The Anvar P.V. (2014) and Arjun Panditrao Khotkar (2020) judgments had settled the substantive doctrine.

On 1 July 2024, the Indian Evidence Act was replaced by the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The framework for electronic evidence has been re-housed in Sections 61, 62 and 63 of the BSA. The question for the practitioner is whether the doctrinal architecture changes — and the practical answer is no. The substantive holdings of Anvar and Arjun Panditrao carry over to the new code without modification. The procedural framework has been modernised at the margins, principally by explicit recognition of hash values and by a two-certificate architecture.

This piece is a consolidator — bringing together the doctrinal architecture under Anvar / Arjun Panditrao with the BSA's specific procedural innovations, for the practitioner's working reference.

What the doctrinal continuity preserves

The Indian Supreme Court's two-decade engagement with Section 65B IEA established three doctrinal propositions that the BSA preserves.

Sections 61–63 BSA form a complete code

The first proposition — established in Anvar and affirmed in Arjun Panditrao — is that the electronic-evidence sections constitute a complete code for adducing electronic records as secondary evidence. The general secondary-evidence framework under the rest of the BSA does not provide an alternative backdoor.

The BSA's Section 61 establishes the proposition; Section 62 addresses the form of electronic records; Section 63 supplies the conditions for admissibility. The three together replace what Sections 65A and 65B IEA had collectively done.

The Section 63(4) certificate is mandatory

The second proposition — the central holding of both Anvar and Arjun Panditrao — is that the certificate required for adducing electronic records as secondary evidence is a condition precedent to admissibility. The BSA preserves this discipline. Section 63(4) BSA, like its IEA predecessor Section 65B(4), requires a certificate to accompany the electronic record being adduced.

The substantive proposition the practitioner should rely on: Anvar and Arjun Panditrao are the controlling doctrine under the BSA. The case law built up around the IEA framework carries over with minor terminological adjustments.

The primary-evidence route is preserved

The third proposition — the Arjun Panditrao clarification — is that where the original electronic device is produced in court and a witness with knowledge testifies, the position is one of primary evidence and the certificate requirement does not engage in the same way. The BSA preserves this distinction.

For the practitioner, the operational implication is the same as under the IEA: small-business records on a single laptop, personal devices, mobile phone records — where the original device is available and a witness with knowledge of it is available — can be brought through the primary-evidence route without the Section 63(4) certificate. The certificate framework is preserved for its intended cases (where electronic records have been copied, transferred, or extracted for adduction).

What the BSA explicitly recognises

The BSA's procedural innovations are concentrated in two areas.

Hash values as integrity verification

The most substantively important new feature is the explicit recognition of hash values in the certificate framework. A hash value — the output of a mathematical function applied to the electronic record — serves as a fingerprint of the record's content. Any modification to the record produces a different hash value; the integrity of the record can, accordingly, be verified by comparing the hash value at the time of adduction with the hash value recorded at the time of collection.

The BSA requires the certificate to identify the hash value of the electronic record being adduced. The framework operationalises what Anvar / Arjun Panditrao had identified analytically — the need for integrity verification — through a specific technical mechanism.

For the practitioner, the operational implication is substantial. Evidence collection must now produce a documented hash value at the point of collection. The certificate adducing the evidence at trial must reproduce that hash value. The court can verify, at the time of adduction, that the record presented is the same record collected.

The two-certificate framework

The second procedural innovation is the requirement that the certificate be signed by:

• The person in charge of the computer or communication device from which the electronic record was produced — who attests to the operational conditions of the device, the production of the record in the ordinary course, and the technical particulars of the record.
• An expert — who provides technical authentication of the record's integrity, including verification of the hash value and other technical particulars.

The two-certificate framework distinguishes the BSA architecture from the IEA framework, where a single certificate from the responsible person had been adequate. The change is operationally significant — the party adducing the evidence must coordinate the involvement of both the responsible person and an appropriate expert at the certification stage.

The schedule to the BSA prescribes the format of the certificate. Practitioners drafting certificates should track the prescribed format precisely; deviations expose the certificate to challenge.

The certificate shall be signed by the person in charge of the computer or communication device and by an expert; it shall state the hash value of the electronic record.

The architecture for evidence collection

For practitioners advising on evidence collection — investigators, forensic teams, civil-side counsel preparing for litigation — the BSA framework requires a specific operational architecture.

At the point of collection

The collection process must produce:

• The electronic record itself — secured, with documented chain of custody.
• The hash value of the record — computed at the time of collection using a documented hashing algorithm (typically SHA-256 or stronger).
• Documentation of the device and its operating conditions — sufficient to support the certificate that will be required at adduction.
• Identification of the responsible person — the person in charge of the device, with confirmation of their availability for subsequent certification.
• Engagement of an expert — for technical authentication of the record's integrity.

At the point of adduction

The adduction process must produce:

• The two certificates — from the responsible person and the expert.
• Verification of the hash value — confirming the integrity of the record between collection and adduction.
• The original electronic record — in the form preserved through the chain of custody.
• Supporting witnesses — the responsible person (if examination is required) and the expert (if cross-examination is required).

Coordination through the litigation cycle

The framework requires coordination between investigators and litigators across the matter's lifecycle. Evidence collected without the procedural infrastructure for adduction is exposed to challenge; certification at the adduction stage cannot retroactively cure failures at the collection stage.

For the practitioner, this means:

• Building the certification architecture into investigation protocols.
• Ensuring the responsible person and the expert are identified at the point of collection.
• Maintaining the chain of custody such that hash-value verification at adduction is supported.

How specific contexts engage the framework

The framework operates differently across the substantive contexts in which electronic evidence is adduced.

Criminal investigation

The framework's most demanding application is in criminal investigation. Electronic records — call detail records, social-media content, digital forensic extraction, CCTV footage, digital communications, financial-transaction records — are increasingly central to criminal prosecutions. The BSA framework requires that each of these be supported by the appropriate certification.

For the investigating agency, this means:

• Standard operating procedures for evidence collection must integrate the certification framework.
• Training for investigators on hash-value documentation and expert engagement.
• Institutional infrastructure for the expert role — typically through forensic laboratories or designated technical officers.

Commercial litigation

Commercial litigation increasingly engages electronic records — contracts and amendments executed digitally, financial records, communications between parties, board resolutions and meeting records in digital form. The framework's application is operationally simpler than in criminal investigation (the responsible person is typically available; the expert role can be supplied by IT staff or external technical consultants).

For commercial-side practitioners, the operational guidance:

• Engagement letters with clients should address the procedure for handling electronic records in the litigation.
• Standard document-management protocols should include hash-value documentation.
• The certificate framework should be built into the documentary architecture of the case.

Section 138 NI Act practice

The cheque-bounce jurisdiction — Section 138 of the Negotiable Instruments Act — generates very high volume electronic-evidence work. Bank statements, SMS notifications, email correspondence, are routinely adduced. The framework operates as it would in commercial litigation but at high volume.

For Section 138 practice, the implications:

• Standard pleading templates should integrate the certification framework.
• Bank statements should be adduced with certification from the bank (the responsible person) and expert technical authentication.
• The primary-evidence route may be available where original devices are produced.

What the framework does not change

It is worth being precise about what the BSA does not modify.

• The substantive admissibility framework under Anvar / Arjun Panditrao remains unchanged. Certificate mandatory; primary-evidence route preserved; no general secondary-evidence backdoor.
• The Section 27 IEA recovery framework — now §BSA Section 23 — operates alongside the electronic-evidence framework. Where information from cognitive techniques (under Selvi) leads to recovery of electronic evidence, the framework continues to operate.
• The constitutional architecture — particularly the Article 20(3) self-incrimination framework — continues to govern. Where electronic evidence has been obtained in ways that engage the constitutional protection, the framework's challenges remain available.

Continuing engagement with the IEA case law

For the practitioner, the IEA-era case law continues to be relevant under the BSA. The substantive principles — what counts as primary versus secondary electronic evidence, what defects in the certificate are exposed to challenge, what the procedural remedies are where the certificate is unavailable — were developed in the IEA framework but carry over to the BSA.

Three lines of IEA-era case law deserve specific attention:

• The Anvar / Arjun Panditrao line on the substantive certificate requirement.
• The pre-2014 State v. Navjot Sandhu line — overruled in Anvar, but useful for understanding why the doctrinal architecture is structured as it is.
• The high-court line on procedural remedies where the certificate is genuinely unavailable — applications to the court, subpoenas to third parties holding the device, and similar procedural infrastructure.

What practitioners should do now

Three operational guides.

Update the evidence-collection protocol. Investigation protocols — for criminal and civil contexts — should integrate hash-value documentation at the point of collection. The responsible person and the expert should be identified at the same stage. Without this, certification at the adduction stage is exposed to challenge.

Update the certificate template. The Section 63(4) certificate should be drafted in the form prescribed in the BSA schedule. The two-certificate framework requires coordination between the responsible person and the expert; the template should support this coordination.

Train operational staff. The framework requires operational staff — investigators, IT teams, forensic specialists — to understand the certification requirements at a working level. Training should be integrated into institutional practice.

The bottom line

Section 63 of the Bharatiya Sakshya Adhiniyam carries forward the Anvar / Arjun Panditrao doctrinal architecture without modification. Certificate mandatory; primary-evidence route preserved; the IEA-era case law continues to govern. What is new is the explicit recognition of hash values and the two-certificate framework — modernisations that operationalise the integrity-verification requirement the IEA doctrine had identified analytically. For the practitioner, the BSA framework is a procedural modernisation of a substantive doctrine that remains intact. The collection-and-adduction architecture must be calibrated to the new procedural infrastructure; the substantive defences and engagement remain as developed under the IEA framework. The bar's operational practice should now be aligned with the BSA framework, while continuing to engage the IEA-era case law as the doctrinal foundation.

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Verify against the BSA, 2023 and the schedule prescribing the certificate format. The IEA-era case law continues to be persuasive under the BSA on substantive doctrinal questions; track subsequent BSA-era dispositions for any refinements at the margins.