Understanding the Mandatory Certificate Requirement Under Section 63 of the Bharatiya Sakshya Adhiniyam 2023

The legal landscape surrounding the admissibility of digital and electronic evidence in India has undergone a significant transformation with the enactment of the Bharatiya Sakshya Adhiniyam (BSA), 2023. Central to this transformation is the interpretation of Section 63 of the BSA, 2023, which governs the production and proof of secondary evidence. For legal practitioners and litigants, the requirement of a certificate under this section has become a critical focal point, often determining whether crucial digital evidence will be admitted into the court record or excluded entirely.

The question of what this section says and how it applies to modern digital evidence is not merely academic; it is a procedural imperative that, if missed, can derail the presentation of a party's case.

Defining Secondary Evidence Under Section 63

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, serves as the successor to Section 63 of the Indian Evidence Act, 1872. Fundamentally, it classifies what qualifies as secondary evidence. This includes:

• Certified copies provided under the provisions of the Act.
• Copies made from the original through mechanical processes that ensure accuracy.
• Copies compared with such copies.
• Counterparts of documents as against the parties who did not execute them.
• Oral accounts of the contents of a document given by a person who has personally seen or inspected it.

However, when we discuss the Certificate under Section 63, we are almost exclusively referring to the procedural safeguard required for electronic records. While Section 63 defines secondary evidence, the judicial interpretation of this provision—heavily influenced by the legacy of Section 65B of the repealed Indian Evidence Act—establishes that electronic records are subject to a specific, mandatory complete code of admissibility 2020 4 Supreme 405.

The Complete Code Doctrine and Electronic Records

The Supreme Court has consistently held that provisions governing electronic records are a special law that overrides general provisions regarding secondary evidence. In the landmark judgment of Anvar P.V. v. P.K. Basheer, the court established that an electronic record cannot be admitted as secondary evidence unless the specific requirements for certification are satisfied 2020 4 Supreme 405.

This principle has been reinforced in subsequent rulings, such as Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, where the courts reiterated that compliance with the certificate requirement is essential for the admissibility of digital files, such as CDs, VCDs, or chip-based data 2023 2 Supreme 671. Without this certificate, the electronic record is typically deemed inadmissible, as the court treats the certification requirement as a substantive procedural hurdle rather than a mere technicality 2026 Supreme(Online)(HP) 3216.

Practical Hurdles and the Timing of Production

A frequent challenge in litigation involves the timing of when this certificate is produced. Courts have faced numerous applications where a party seeks to introduce the certificate after the evidence has already been marked or at a late stage in the trial.

The judiciary has adopted a pragmatic but careful approach. Some courts have noted that the requirement to produce a certificate under Section 63 is not necessarily a one-time, now-or-never opportunity that, if missed, forever bars the evidence. There is judicial precedent suggesting that a certificate can be brought on record at any stage prior to the conclusion of the trial, provided it does not prejudice the other party or violate the principles of natural justice 2026 Supreme(Online)(Chh) 16163.

Furthermore, if a certificate is initially found to be defective or is missing, the trial court may possess the discretion to summon the person responsible for the device or the data to provide the necessary certification during the trial process itself 2015 0 Supreme(SC) 277. However, parties should not rely on this as a strategy; failing to provide the certificate at the time of production creates significant, unnecessary risks that may lead to the rejection of vital evidence 2026 Supreme(Online)(Raj) 13184.

Constitutional Challenges and the Definition of an Expert

The strict application of the certificate requirement has prompted legal challenges. For instance, the Pune Bar Association challenged the constitutionality of Section 63(4) of the BSA, 2023, arguing that the onerous burden of providing hash values and expert certification imposes undue hardship on ordinary litigants 2026 Supreme(Online)(SC) 1752.

A pivotal issue in these discussions is who qualifies as an expert capable of providing the necessary certification. While there has been debate over whether only an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000, can issue such certificates, courts have signaled a more flexible interpretation. Some judicial findings suggest that Section 39 of the BSA should be read harmoniously, allowing the court to acknowledge individuals with specialized skills in computer science and cyber forensics as experts, even if they are not specifically notified under Section 79A 2026 Supreme(Online)(SC) 1752.

When Is the Certificate Not Required?

It is important to distinguish between primary and secondary evidence. The strict certification requirements under Section 63 and the associated procedural codes apply when the electronic record is being presented as secondary evidence.

If the electronic record is being presented as primary evidence under the corresponding provisions of the BSA, the necessity for the Section 63 certificate may be bypassed, as the document itself is the original data source 2020 4 Supreme 405. Additionally, in certain specific contexts—such as where a party is not in possession of the electronic device—courts have occasionally clarified that the requirement to force a party to produce a certificate they cannot access is not mandatory, and the general rules of evidence apply instead 2018 2 Supreme 545.

Conclusion and Best Practices

Navigating the requirements of Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, requires careful preparation. The law dictates that for most electronic records, a certificate is a non-negotiable component of admissibility. Litigants should:

1. Prepare Early: Ensure that any digital evidence intended to be filed is accompanied by a compliant certificate from the outset of the proceedings 2025 Supreme(Online)(MAD) 10507 and 2026 Supreme(Online)(Del) 6776.
2. Verify Compliance: Ensure the certificate addresses the integrity and source of the digital file, as courts strictly evaluate these documents.
3. Address Defects Promptly: If a certificate is found to be defective or missing, seek judicial intervention early to summon the necessary technical personnel, rather than waiting until the final stages of the trial.

While the legal interpretation of these provisions continues to evolve through judicial precedent, the current standard remains strict. Compliance with the statute is generally considered the safest path to ensuring that digital evidence is heard and considered by the court. As always, specific procedural steps should be discussed with qualified legal counsel, as the application of these rules can vary based on the specific facts and the nature of the electronic evidence being presented.