Bharatiya Sakshya Adhiniyam 2023: Mandatory Expert Certification for Electronic Evidence Sparks Debate

The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which came into force on a date notified by the Central Government, replaces the Indian Evidence Act, 1872. Among its most debated provisions is the mandatory expert certification required for admitting electronic evidence as secondary evidence. Legal practitioners and analysts warn that the requirement, while intended to bolster reliability, imposes significant financial and procedural hurdles on litigants.

Under Section 63(4) of the BSA , parties seeking to rely on electronic records must submit a certificate in the form prescribed by the Schedule. Part A of the certificate requires the party to disclose the hash value of the electronic record and declare that the device was operating properly. Part B mandates a certificate signed by an expert — such as an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000 . The statute states that the certificate shall be signed by "a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert."

A recent analysis by Mayank Makhija and Naman Sharma highlights the practical difficulties. They note that only a limited number of forensic laboratories have been notified, making access difficult for litigants in smaller towns and rural areas. The cost of forensic examination can be substantial, particularly for individual litigants who lack the institutional resources available to state agencies. The authors argue that "a procedural requirement that is formally neutral may operate unequally in practice."

The analysis traces the evolution of electronic evidence law in India. The Supreme Court's liberal approach in State (NCT of Delhi) v. Navjot Sandhu was later tightened in Anvar P.V. v. P.K. Basheer , which held that secondary electronic evidence could not be admitted without a certificate under Section 65-B of the Indian Evidence Act. The position was reaffirmed in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal . Most recently, in Pune Bar Association v. Union of India , the Supreme Court reiterated that the certificate requirement under Section 63 of the BSA remains mandatory and cannot be substituted through oral evidence.

Drawing a comparative lesson, the article notes that the United Kingdom repealed similar technology-specific certification requirements after recognizing them as outdated. The UK's Regina v Shepherd demonstrated that reliability could be established through oral evidence, without mandatory certification.

The authors propose a more balanced approach: allow parties to file a sworn affidavit affirming the authenticity of the electronic record, and reserve expert opinion for cases where genuineness is specifically disputed under Section 39 of the BSA . They conclude that "a safeguard cannot be permitted to become a barrier" to justice.

The BSA's provisions on electronic evidence mark a significant shift from the earlier regime, but questions remain about their practical implementation. As courts begin to interpret the new law, the balance between evidentiary integrity and access to justice will be closely watched.