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Seeks NAlSA Response on Free Forensic Experts for Legal Aid Under BSA
The Delhni High COurt has issued notices to the and the regarding a Public Interest Litigation (PIL) seeking free forensic assistance for legal-aid beneficiaries who cannot afford the expert certification requirements mandated by the (BSA). A Divison Bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia expressed a primna facie opinion that the inability of disadvantaged persons to comply with Section 63 of the BSA could fundamentally impinge upon their right to access justice.
The PIL, filed by advocates and , challenges the practical barriers created by the new evidentiary regime for electronic records. Under Section 63 of the BSA, electronic evidence—including emails, messages, digital documents, and data stored on devices—must be proven through a certificate issued by an expert or a person occupying a responsible official position. This certificate essentially confirms the integrity and authenticity of the electronic record, a procedure that often requires technical examination and may involve costs for hiring a forensic expert.
Background: The Technical Hurdle for the Disadvantaged
The petitioners argued that while financially capable litigants can easily engage private forensic experts to comply with the Section 63 certificate requirement, individuals dependent on free legal aid—often from the poorest and most marginalized sections of society—lack the resources to do so. They submitted that such a disparity creates an unequal playing field in court proceedings, where electronic evidence is increasingly central to criminal and civil disputes.
The Bench acknowledged the gravity of the issue. In its order, the Court observed: “We are of the opinion that in case any person of the disadvantaged society is unable to adduce evidence in terms of that impinges upon his right to seek access to justice.”
Court’s Direction: A Scheme Under Consideration
Consequently, the Court did not merely issue notice; it actively directed NALSA to consider the possibility of formulating a structured scheme to provide forensic assistance to eligible legal-aid beneficiaries. “We require the NALSA to consider the aforesaid aspect of the matter and apprise the court of a possible scheme which can be applied to redress the grievances raised in the PIL,” the Bench stated.
This proactive approach signals the court’s concern that the procedural requirement of Section 63 should not become a substantive barrier to justice. The court has given NALSA and the time to file their responses, and the matter will be heard further.
Legal Implicatios: Access to Justice in the Digital Age
The PIL highlights a critical tension between modern evidence law and the constitutional guarantee of access to justice. Section 63 BSA replaced the earlier requirements under the , with a more rigid certification process for electronic records. While the law aims to curb tampered or fabricated digital evidence, its implementation risks marginalizing those who cannot afford expert assistance.
Legal experts point out that electronic evidence now forms the backbone of many cases—from cybercrime to matrimonial disputes. If a litigant cannot produce a valid Section 63 certificate, the electronic evidence may be rendered inadmissible, potentially derailing their case entirely. For a poor defendant or a complainant relying on legal aid, this could mean losing a meritorious claim or defense simply due to lack of funds for a forensic expert.
The Delhni High Court’s observation that such inability “impinges upon his right to seek access to justice” aligns with precedents that have repeatedly read (right to life and personal liberty) to include the right to fair trial and effective legal representation. The court seems to be signaling that procedural law must adapt to ensure substantive equality.
Potetial Impact on Legal Practice
If NALSA devises a scheme for free forensic assistance, it could become a model for other states and legal services authorities across India. Legal practitioners handling cases involving digital evidence for legal-aid clients may soon be able to refer their clients to empaneled forensic experts funded by NALSA. This would level the playing field and uphold the principle that justice should not be a commodity available only to the wealthy.
More broadly, the case raises questions about the design of procedural laws in an era of expanding technology. The BSA replaced the Evidence Act of 1872, but its electronic evidence provisions have drawn criticism for being overly technical and burdensome. The Delhni High Court’s intervention could prompt a legislative or policy review to strike a better balance between evidentiary reliability and litigant accessibility.
Concluson
The has taken a significant step by rasing a systemic issue concerning legal-aid beneficiaries and the new electronic evidence regime. By seeking a concrete scheme from NALSA, the court is not merely reacting to a petition but attempting to forge a structural remedy. The response from NALSA and the Centre will be crucial in shaping whether India’s justice system can truly be inclusive in the digital age. As the matter proceeds, all eyes will be on the scheme that emerges—and whether it ensures that no litigant is left behind merely because they cannot pay for a forensic expert.
The next hearing is awaited, but the court’s primna faci opinion has already sent a strong message: access to justice cannot be sacrificed at the altar of evidentiary formalities.
