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How to Handle Electronic Records as Evidence under Bharatiya Sakshya Adhiniyam (BSA)

Updated: Jan 24

The Bharatiya Sakshya Adhiniyam (BSA), 2023, heralds a transformative era for evidence law in India, reflecting the rapid technological advancements of the digital age. With electronic records becoming integral to legal proceedings, understanding their management under this new framework is vital for practitioners aiming to build robust cases. Let’s delve into the nuances of electronic records as evidence under the BSA and explore how it reshapes evidentiary standards. 


What Constitutes Electronic Records under BSA? 


Under Section 2(d) of the BSA, the term "document" encompasses electronic and digital records. These include emails, server logs, computer files, instant messages, websites, locational data, and voicemail messages stored on digital devices. This broad definition ensures that all forms of electronically stored information (ESI) are recognized as potential evidence, paving the way for their inclusion in judicial processes.  


Key Provisions Governing Electronic Records  


1. Primary Evidence of Electronic Records (Section 57, Explanation 4-7): 

The BSA establishes that electronic records stored simultaneously in multiple locations (e.g., servers, cloud storage) or transmitted electronically are considered primary evidence. Each instance of storage or transmission is treated as an original, provided it comes from proper custody and remains undisputed. 


2. Admissibility Requirements (Section 65B): 

To ensure admissibility, Section 65B outlines procedural prerequisites for electronic records: 

  • The record must be produced from a computer regularly used for lawful activities. 

  • The computer must have been operational at the time of record creation. 

  • The integrity of the electronic record must be maintained without alteration. 


A certificate, signed by a person responsible for managing the system, is mandatory to validate these conditions. This ensures reliability and authenticity, safeguarding the evidentiary value of electronic records. 


3. Expert Opinions (Section 39(2)): 

The opinions of the Examiner of Electronic Evidence, as designated under Section 79A of the Information Technology Act, 2000, are now recognized as expert opinions. This provision ensures that technical assessments of electronic evidence are backed by certified professionals.  


Provisos and Exceptions to Admissibility 


To strike a balance between admissibility and safeguards against misuse, the BSA includes critical provisos: 

  • Confessions via Electronic Means: Confessions made through electronic communication, such as WhatsApp messages or emails, are admissible if corroborated by additional evidence. 

  • Secondary Evidence: Secondary evidence of electronic records is permitted only if the primary record is unavailable for valid reasons, such as destruction or inaccessibility. 

  • Authentication: Any dispute over the authenticity of electronic records requires expert testimony or digital forensics. 


The Interplay of Legal Principles and Technology  


The legal framework for electronic evidence in India stems from the interplay of the BSA, the Information Technology Act, 2000, and landmark judicial precedents. The BSA codifies key principles established by judgments like Anvar P.V. vs. P.K. Basheer (2014), which mandated strict adherence to Section 65B certification for admissibility. By explicitly incorporating the requirements for electronic evidence, the BSA eliminates earlier uncertainties, ensuring that digital data is treated on par with traditional evidence. 


Understanding the Relevance and Authenticity of Digital Evidence 


a) How Digital Records Support Case Facts 

The relevancy of electronic records is determined by their connection to the facts in issue. For example, server logs or location data can establish the presence or absence of a person at a particular time and place, making them relevant to the matter under consideration. 

The BSA’s expansive definition of “documents” ensures that even metadata—such as timestamps and geotags—can be treated as relevant facts, provided they are authenticated appropriately. 


b) Digital Data as Direct Evidence 

One of the significant advancements under the BSA is treating electronic records as primary evidence. Unlike the Indian Evidence Act, which allowed ambiguities in interpreting digital evidence, the BSA explicitly states that records stored or transmitted electronically qualify as primary evidence, provided they originate from proper custody. Examples include emails directly retrieved from a secure server or CCTV footage stored on an unaltered hard drive. 


Unique Perspectives for Better Case Strategies 


1. Uncovering Insights from Metadata 

Metadata, often overlooked, can play a critical role in cases involving electronic records. For instance, file creation dates, modification timestamps, and access logs can provide vital information about the authenticity of a record. Lawyers should prioritize examining metadata during discovery. 


2. Emerging Impact of AI in Digital Evidence 

With the advent of AI, tools for analyzing digital evidence have become more sophisticated. For example, AI-based tools can authenticate video footage by analyzing frame-by-frame anomalies. Understanding these tools and their application can be a game-changer for legal professionals. 


3. Handling Jurisdictional Complexities in Digital Cases 

As digital evidence often transcends borders, lawyers must navigate issues related to jurisdiction, data privacy laws, and international treaties. Familiarity with global standards like GDPR and e-evidence frameworks in other jurisdictions can help Indian lawyers handle cross-border disputes effectively. 


4. E-Discovery in Multi-Party Litigations 

E-discovery—the process of identifying and collecting electronic evidence—is still underutilized in India. Emphasizing the need for structured e-discovery processes, especially in multi-party litigation or class-action suits, can strengthen case preparation. 


Conclusion 


BSA signifies a progressive leap in the treatment of electronic evidence, aligning legal practice with the realities of a digital world. By adhering to the procedural safeguards and leveraging the provisions effectively, legal practitioners can navigate evidentiary challenges with confidence. A sound understanding of the BSA’s framework empowers lawyers to handle digital evidence strategically, ensuring justice in an increasingly tech-driven society. 


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