Admissibility Of Electronic Record And The Dual-Certification Regime Under BSA, 2023
- IJLLR Journal
- 2 hours ago
- 2 min read
Mridul Bhatt, LL.M. (Cyber and Security Law), ICFAI University Dehradun, Uttarakhand, India
ABSTRACT
The Bharatiya Sakshya Adhiniyam, 2023 marks a foundational shift in the law of electronic evidence in India by elevating admissibility from a question of mere relevance to one of demonstrable process integrity. Under Section 63(2), the legislature has substantially retained the four-fold conditions established under the earlier Section 65B of the Indian Evidence Act, namely, regular use of the device, feeding of information in the ordinary course, proper functioning of the system during the material period, and faithful reproduction of the original record. These conditions are not procedural ornaments; they are substantive filters designed to ensure that what enters the judicial record as a digital output is, in fact, a reliable representation of an underlying truth. Section 63(4) reinforces this framework by mandating a certificate as a condition precedent to admissibility. The Supreme Court's reasoning in Anvar P.V. v. P.K. Basheer and the further clarification in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal established that certification cannot be treated as an optional or dispensable formality. The BSA deepens this requirement through the Schedule, which bifurcates the certificate into Part A, to be furnished by the party in possession of the device or data, and Part B, to be endorsed by a qualified expert. This dual-certification model reflects a deliberate legislative choice to strengthen the authentication chain.
However, the architecture creates a jurisprudential tension between formal compliance and substantive justice. Where delayed expert endorsement or cloud-based storage makes strict compliance difficult without prejudice, courts must adopt a purposive construction, treating incurable absence of the certificate as fatal while permitting curable delays on demonstrable and recorded grounds, so that process integrity and fair trial are protected simultaneously.
Keywords: Electronic records; Section 63, BSA 2023; Admissibility of digital evidence; Mandatory certificate; Dual-certification regime; Forensic authentication
