From section 65B to section 63
The Bharatiya Sakshya Adhiniyam, 2023, Act No. 47 of 2023, repealed the Indian Evidence Act, 1872. Section 170 of the Adhiniyam provides for the repeal, and it adds that an application, trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force is dealt with under the Evidence Act as if the Adhiniyam had not come into force. The Press Information Bureau states that the Adhiniyam has been in force from 1 July 2024.
Three sections in Chapter V now deal with electronic records. Section 61 provides that nothing in the Adhiniyam denies the admissibility of an electronic or digital record in evidence on the ground that it is an electronic or digital record, and that such a record has, subject to section 63, the same legal effect, validity and enforceability as any other document. Section 62 provides that the contents of electronic records may be proved in accordance with section 63. Section 63 contains the conditions and the certificate, and it is the successor of section 65B.
Section 65B and section 63 side by side
The table compares the two provisions. The words of section 65B are those that the Supreme Court set out in its judgment in Arjun Panditrao Khotkar, and the words of section 63 are those of the Act as published in the Gazette of India.
| Point | Section 65B, Evidence Act | Section 63, BSA |
|---|---|---|
| Records covered | Information in an electronic record printed on paper, or stored, recorded or copied in optical or magnetic media produced by a computer. | Information in an electronic record printed on paper, or stored, recorded or copied in optical or magnetic media or semiconductor memory, produced by a computer or any communication device, or otherwise stored, recorded or copied in any electronic form. |
| Status of the output | Deemed also a document, admissible without further proof or production of the original, if the conditions are satisfied. | The same: deemed also a document, admissible in any proceedings without further proof or production of the original, if the conditions are satisfied. |
| Regular use of the device | Used regularly to store or process information for regular activities. | Used regularly to create, store or process information for regular activities. |
| Several devices | Computers operating in combination or in succession are treated as a single computer. | Devices used standalone, on a computer system, on a computer network, on a computer resource, or through an intermediary are treated as a single device. |
| Who signs the certificate | A person occupying a responsible official position in relation to the operation of the device or the management of the activities. | A person in charge of the device or of the management of the relevant activities, and an expert. |
| What the certificate must do | Identify the electronic record and the manner of its production, give particulars of the device and deal with the conditions of sub-section (2). | The same three things, in the form specified in the Schedule, submitted along with the electronic record at each instance of submission for admission. |
| Form of certificate | The text quoted does not refer to a prescribed form. | A Schedule with Part A, to be filled by the party, and Part B, to be filled by the expert. |
| Hash value | Not mentioned. | Part A and Part B each ask for the hash value of the electronic record and the algorithm, with a hash report enclosed. |
The structure is the same: a computer output is deemed to be a document if conditions are met, and a certificate proves the matters in the conditions. The differences are in scope and in form. Section 63 reaches any communication device and any electronic form, recognises that a record may be produced through a network or an intermediary, asks for an expert as well as a person in charge, and ties the certificate to a prescribed form with a hash value.
The four conditions of section 63(2)
A computer output is a document under section 63 only if four conditions are satisfied in relation to the information and the device in question. The first is that the output was produced by the device during the period in which it was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person who has lawful control over the device. The second is that information of the kind contained in the record, or from which it is derived, was regularly fed into the device in the ordinary course of those activities.
The third is that throughout the material part of that period the device was operating properly or, if it was not, that the interval did not affect the electronic record or the accuracy of its contents. The fourth is that the information in the record reproduces, or is derived from, the information fed into the device in the ordinary course of those activities. Section 63(5) adds that information is taken to be supplied to a device whether directly or, with or without human intervention, through any appropriate equipment, and that an output is taken to have been produced by the device in the same way.
The certificate in the Schedule
Section 63(4) requires a certificate to be submitted along with the electronic record at each instance where it is submitted for admission. The certificate identifies the record and the manner of its production, gives particulars of the device, and deals with the conditions. It is signed by a person in charge of the device or the management of the relevant activities and by an expert, and a matter may be stated to the best of the knowledge and belief of the person stating it, in the form that the Schedule specifies.
| Part | What the form asks for |
|---|---|
| Part A, the party | Name and particulars of the person; the device or source of the record (computer or storage media, DVR, mobile, flash drive, CD or DVD, server, cloud or other); make and model, colour and serial number; the IMEI, UIN, UID, MAC or cloud ID where applicable; a statement that the device was under lawful control for regular use and working properly, and whether it is owned, maintained, managed or operated by the person; the hash value and algorithm (SHA1, SHA256, MD5 or another legally acceptable standard) with the hash report enclosed; signature, date in DD/MM/YYYY, time in IST in 24-hour format and place. |
| Part B, the expert | Name and particulars of the expert; the device or source from which the record was obtained, with the same make, model, serial number and identifier details; the hash value and algorithm with the hash report enclosed; name, designation and signature; date, time in IST and place. |
The form is the only place in the Act where a hash value appears. A hash is a fixed-length value computed from the contents of a file, and the Schedule asks for the value and the algorithm that produced it, with the hash report enclosed. Because the form asks for it, a person who prepares electronic evidence for a case will need a hash report for each record at the time the record is collected. The steps of collecting and verifying a copy are described on the page on computer forensics.
What the Supreme Court held on section 65B
Two judgments of the Supreme Court explain the old section. In Anvar P.V. v. P.K. Basheer, [2014] 11 S.C.R. 399, the Court held that the certificate under section 65B is mandatory for electronic evidence of this kind, and that oral evidence cannot take its place. In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, [2020] 7 S.C.R. 180, a bench of three judges held that the certificate under section 65B(4) is a condition for admissibility of the evidence, that Anvar is the law on section 65B, and that a certificate is not needed where the original itself is produced. The Court relieved a party who had done everything possible to obtain a certificate from the person who was bound to give it. Both are summarised on the page on cyber law cases.
Those judgments were decided on section 65B. Section 63 keeps the conditions and the certificate, which is why they are the natural starting point. How courts apply them to section 63(4), including the new requirement of an expert and the form with the hash value, is a matter for the courts, and this page does not rely on any decision under section 63.
How this fits with the criminal law
The provisions on electronic evidence apply alongside the offences described in the Bharatiya Nyaya Sanhita and the Information Technology Act 2000. The offences and their new numbers are listed on the page on IPC to BNS, and the way to report an offence is on the page on reporting a cyber crime online.
Frequently asked questions
What replaced section 65B of the Indian Evidence Act?
Section 63 of the Bharatiya Sakshya Adhiniyam, 2023. Section 170 of the Adhiniyam repeals the Indian Evidence Act, 1872, and the Adhiniyam has been in force since 1 July 2024. Section 62 says that the contents of electronic records may be proved in accordance with section 63.
Is a certificate required for every electronic record?
Section 63(4) provides that where a statement is to be given in evidence by virtue of section 63, a certificate shall be submitted along with the electronic record at each instance where it is submitted for admission. Section 61 separately provides that a record is not denied admissibility only because it is electronic, subject to section 63.
Who signs the certificate under section 63 of the BSA?
A person in charge of the computer or communication device or of the management of the relevant activities, and an expert. The form in the Schedule has a Part A for the party and a Part B for the expert.
Does the BSA certificate need a hash value?
The form in the Schedule asks for it. Both Part A and Part B call for the hash value of the electronic record, the algorithm used (SHA1, SHA256, MD5 or another legally acceptable standard) and a hash report enclosed with the certificate.
Do the Anvar and Arjun Panditrao Khotkar judgments still matter?
They were decided on section 65B of the Evidence Act. Section 63 keeps the conditions and the certificate, so the reasoning is a natural starting point, but how courts apply it to section 63(4) is for the courts, and no judgment on section 63 is relied on here.