Electronic Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Admissibility, Authenticity and Challenges in Criminal Trials

Author

Manudev Patidar

Abstract

 A modern criminal trial rarely proceeds without a phone record, a chat, a CCTV clip or a forensic image of a seized device. The Bharatiya Sakshya Adhiniyam, 2023 (BSA), in force since 1 July 2024, replaced the Indian Evidence Act, 1872 and gave electronic and digital records an express place in the definitions of "document" and "evidence", a clearer rule on primary evidence, and a restructured certificate requirement in section 63 that corresponds to the old section 65B. This paper examines how far the new law resolves the questions that troubled courts for two decades: when an electronic record is admissible, how its authenticity is proved, and what happens when the prescribed certificate is missing or defective. It traces the line from Anvar P.V. to Arjun Panditrao Khotkar, analyses the changes made by the BSA and its Schedule (including the requirement of a hash value and an expert's co-signature), and considers chain of custody, expert opinion, presumptions and the constitutional limits of privacy and self-incrimination. It argues that the BSA improves clarity on admissibility but leaves authenticity, the harder problem, to forensic practice and judicial scrutiny, and that deepfakes, cloud data and uneven forensic capacity now strain a framework built around the certificate. The paper concludes with proposals for reform.

Keywords

Bharatiya Sakshya Adhiniyam; electronic evidence; section 63 certificate; authenticity; chain of custody; digital forensics; criminal trial.

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References

Statutes and constitutional provisions. Bharatiya Sakshya Adhiniyam, 2023, sections 2(1)(d), 2(1)(e), 39, 57, 61, 62, 63, 85 to 90, 93 and the Schedule. Indian Evidence Act, 1872, sections 22A, 45A, 62, 65A, 65B, 85A to 85C, 88A and 90A. Bharatiya Nagarik Suraksha Sanhita, 2023, sections 94, 105, 106, 176, 349 and 530. Information Technology Act, 2000, section 79A. Constitution of India, Articles 20(3) and 21.

Cases cited.

Secondary sources consulted for recent developments.

• Hash value is an electronic fingerprint; Section 63(4) BSA certificate requirement is valid: Supreme Court(SCC Online Blog, 8 July 2026)
• Supreme Court Rejects Challenge To S.63(4) BSA Mandating Hash Value Disclosure For Electronic Evidence(LiveLaw, 2026 LiveLaw (SC) 551)
• Expert in computer science and cyber forensics competent to sign Section 63(4) BSA certificate(Verdictum, 28 May 2026)
• Supreme Court of India clarifies scope of expert certification under Section 63(4) BSA(JSA Prism, June 2026)
• Section 63(4) BSA: Supreme Court clarifies that Part B is not confined to Section 79A examiners(LawWeb, 28 May 2026)
• Pune Bar Association v. Union of India, order of 22 May 2026
• Unseen Burden of Electronic Evidence(LiveLaw)
• How to fulfill requirements of admissibility of electronic evidence under the BSA(LiveLaw)

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