The requirement under the Bharatiya Sakshya Adhiniyam, 2023, for expert certification of electronic records may be satisfied by experts beyond those notified under Section 79A of the Information Technology Act, 2000, through a harmonious interpretation of Section 39 of the BSA.

ORDER

1. Petitioner, Pune Bar Association, contends that Section 63(4) of Bharatiya Sakshya Adhiniyam, 2023, Hereinafter “BSA/the Act” read with the Schedule thereto is unconstitutional as it imposes undue hardship on an ordinary litigant by requiring submission of a certificate prescribed in the Schedule comprising Part A which needs disclosure of the hash value of digital records, and Part B which must be signed by an expert. Ld. Counsel argues imposition of such pre-requisites for admissibility of electronic records is an extremely onerous obligation on a litigant and renders the provision manifestly arbitrary and unjust.

2. With advancement of technology, digital space has encroached on all spheres of human life. Consequently, evidence in the form of electronic record has become commonplace in all litigation. Physical documents are increasingly replaced with digital records like electronic mails, audio-visual clips etc. To address the admissibility of such electronic records, Section 65B was incorporated in the erstwhile Evidence Act, The Indian Evidence Act, 1872 Subsequently, BSA replaced the said provision with Section 63(4) which inter alia provides that electronic records must be accompanied by a certificate as set out in the Schedule to the Act. The certificate so prescribed comprises Part A, which inter alia requires disclosure of hash value of the electronic records in addition to the declaration required under the erstwhile Section 65B of the Evidence Act. Part B of the certificate requires a further declaration signed by an expert.

3. Electronic record is a unique species of evidence which is liable to continuous mutation and modification affecting its authenticity, integrity and intrinsic evidentiary value. Challenges to admissibility and probative value of electronic records are further accentuated with the advent of artificial intelligence and deepfake technology. Such fast and varied transformation in technology necessitated reviewing the erstwhile Evidence Act and the BSA was enacted. Statement of objects and reasons for enacting the BSA inter alia emphasises:

“(ii) it provides for admissibility of an electronic or digital record as evidence having the same legal effect, validity and enforceability as any other document;

(iii) it seeks to expand the scope of secondary evidence to include copies made from original by mechanical processes, copies made from or compared with the original, counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has himself seen it and giving matching hash value of original record will be admissible as proof of evidence in the form of secondary evidence . ”

4. To achieve such objective, Section 63(4) of BSA improved upon the certificate envisaged under the old law by mandating the issuance of a standard-form certificate prescribed in the Schedule which inter alia requires the disclosure of hash value of the electronic/digital record along with a further certification by an expert. Hash value of an electronic data is synonymous with an electronic fingerprint and provides a sure way of identifying and verifying digital data. The necessity of incorporating the hash value of the electronic record in the certificate is thus to ensure its authenticity and integrity, and cannot be said to lack a rational nexus with the object of the Act. Similarly, certification by an expert in Part B provides an additional layer of authenticity to the secondary electronic evidence. For these reasons, we are of the conside