SCHOOL OF LEGAL STUDIES

DEPARTMENT OF LAW

COURSE NAME: BHARTIYA SAKSHYA ADHINIYAM | COURSE CODE: IL - C- 902

Admissibility of Electronic Evidence in Indian Courts

Submitted With Regards,

To,

Ms. Kinjal Bagdi

Assistant Professor
Department of Law, School of Legal Studies, Central
University of Kashmir.

Prepared & Submitted By,

Name: Sheikh Mohsin Farooq
Er. No.: 2007CUKmr30
Semester: 9th (Ninth)
Course: BA. LLB (5 Yrs.)
Email: [email protected]
 CONTENTS

I. INTRODUCTION

II. BACKGROUND AND OVERVIEW

III. OBJECTIVES OF THE STUDY

IV. HYPOTHESIS

V. RESEARCH QUESTIONS

VI. SCOPE OF THE STUDY

VII. IMPORTANCE OF ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIAN COURTS

VIII. OVERVIEW OF THE BHARTIYA SAKSHYA ADHINIYAM,2023

IX. EVOLUTION OF ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIAN COURTS

X. CURRENT STATE OF ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIAN COURTS

XI. CHALLENGES IN ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIAN COURTS

XII. RECOMMENDATIONS FOR IMPROVING ADMISSIBILITY OF ELECTRONIC EVIDENCE IN

INDIAN COURTS

XIII. CONCLUSION

XIV. REFERENCES
 INTRODUCTION

The 21st century saw a technological revolution that enthralled India and the world. Computers are
not limited to established organisations or institutions but are available to every individual with a finger
swipe. Information Technology has eased out almost every humanised action. In this age of the cyber world,
as the computer became more popular, there was an expansion in the growth of technology. The evolution of
Information Technology (IT) gave birth to cyberspace, wherein the internet provides equal opportunities for
all people to access information, data storage, analysis, etc., using high technology. This increasing reliance
on electronic means of communication, commerce, and the storage of information in digital form has most
certainly caused a need to transform the law relating to information technology and the rules of admissibility
of electronic evidence in civil and criminal matters in India. The proliferation of computers and the influence
of information technology on society as a whole, coupled with the ability to store and amass information in
digital form, have all necessitated amendments in Indian laws to incorporate the provisions on the
appreciation of digital evidence. The Information Technology Act of 2000 and its amendment are based on
the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic
Commerce. The Information Technology (IT) Act 2000 was amended to allow for the admissibility of digital
evidence. An amendment to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker’s
Book Evidence Act 1891 provides the legislative framework for transactions in the electronic world. With the
change in law, Indian courts developed case law regarding reliance on electronic evidence. Judges have also
demonstrated perceptiveness towards the intrinsic ‘electronic’ nature of evidence, which includes insight
regarding the admissibility of evidence and the interpretation of the law about how electronic evidence can be
brought and filed before the court.1 Digital or electronic evidence is any probative information stored or
transmitted in digital form that a party to a court case may use at trial.
Before accepting digital evidence, the court must ascertain its relevance, integrity, and authenticity
and establish whether the fact is hearsay or if a copy is preferred to the original. Digital Evidence is
“information of probative value stored or transmitted in binary form”. Evidence is not only limited to that
found on computers but may also include evidence on digital devices such as telecommunication or
electronic multimedia devices. The evidence can be found in emails, digital photographs, ATM transaction
logs, word processing, documents, instant message histories, files saved from accounting programs,
spreadsheets, internet browser histories databases, Contents of computer memory, Computer backups,
Computer printouts, Global Positioning System tracks, Logs from a hotel’s electronic door locks, Digital
video or audio files. Digital Evidence tends to be more voluminous, more difficult to destroy, easily
modified, easily duplicated, potentially more expressive and readily available.
The type of evidence we are dealing with has been described as ‘electronic evidence’, ‘digital
evidence’ or ‘computer evidence’. Digital technology is commonly used in computing and electronics,
especially where physical world information is converted to binary numeric form, such as digital audio and
digital photography. Definitions of digital evidence include ‘Information of probative value stored or
transmitted in binary form; and ‘Information transmitted in binary form that may be relied on in court. While
the term ‘digital’ is too wide, as we have seen, ‘binary’ is too restrictive because it only describes one form of
data. Electronic evidence data (comprising the output of analogue devices or data in digital format) that is
manipulated, stored, or communicated by any artificial device, computer or computer system or transmitted
over a communication system that has the potential to make the factual account of either party more probable
or less probable than it would be without the evidence. This definition has three elements. First, it is intended
to include all evidence created and manipulated.

BACKGROUND AND OVERVIEW

1
 The digitalisation of the world has brought fundamental changes in the manner and places of
collection, preservation, and presentation of evidence in legal proceedings. In the Indian context, a shift has
been experienced in the judicial process with the growing reliance on electronic evidence, including but not
limited to digital documents, internet-based communication, audio and video recordings and data from an
electronic device. This was in the context of the Indian legal framework, which has always been sceptical
towards adopting electronic evidence as documents in civil litigation and criminal prosecution. Indian
Evidence Act 1872, the basis of evidence laws in India, could not consider electronic evidence, which is
always present in its complexities. This was required as it dealt with the challenge of electronic records and
was finally achieved through the amendment of the Evidence Act Section 65B through the IT Act of 2000.
This legislative measure provided the legal basis for recognising electronic records in Indian courts by
solving the issues of authenticity, integrity, and reliability of such evidence, allowing its treatment to be equal
to other means of evidence.
However, after these timely reforms, recognition of electronic evidence by the courts in the country
still presents unique challenges.
The issue that stands out among these concerns is the authentication of electronic evidence, given that
digital evidence is prone to being tampered with, erased or modified. There has been a need for courts to
create procedural specifics for validation of the authenticity of such documents, whereby problems such as,
but not limited to, the chain of custody, data retention, and even the necessity of witness-bearing expert
knowledge in cybercrime have all become elements of great importance in the preservation of the evidential
worth of such documents. Also, the problem of the courts lagging has been, to a large extent, a persistent one;
Agnew (2018) explains this in detail, stating that there is a large quantitative growth in the number and
diversity of carriers of electronic evidence: remote access and cloud storage, social networks, encrypted data
files, etc. What further complicates the judicial process is the increase in volume and intricacy of electronic
evidence, as well as the accompanying procedural issues, which include its storage, retrieval, and even
presentation in court. Forensic sciences, particularly digital forensics, are on the front lines of modern
conflict. Forensic specialists engaged in investigative work have the following responsibilities: data
restoration procedures in the event of file deletion, verification of the authenticity of sensitive information,
and ensuring evidence chain reliability. The need for expert witness testimony has also increased to assist
judges in comprehending the technical aspects of electronic evidence.
On its part, the legal aspect was also enhanced with the introduction of the Information Technology
Act in the year 2000, primarily sections 65 A and 65 B of the Indian Evidence Act, but, even today, have had
challenges keeping in sync with the contemporary changes and improvements in technology that have over
time transformed the nature of digital evidence. This lacuna in the legal framework led to the endorsement of
the Bhartiya Sakshya Adhiniyam, 2023: a complete revision aimed at renewing the provisions for applying
rules of electronic evidence in India.
The Bhartiya Sakshya Adhiniyam, 2023 anticipates and protects against the circumvention of law
from technologically advanced tools such as blockchain, cloud storage and AI-generated works. This
legislation aims to provide for the legal validity of digital evidence, making it impossible to alter while
making the certification process convenient and more effective. Instead of limiting what can be deemed
substantiative evidence, the SAF-based reformatting clauses enable the admissibility of such probative
evidence in consideration of the objectives ostensively formulated to facilitate an understanding and
interaction of the Indian Legal System with its modern complexities. Information Technology Act and the
Bahartiya Sakshya Adhiniyam are the strides taken by the Indian legal system in the quest for technological
compliance without subverting the ideals of justice.
All the same, international cross-country factors show that India’s legal regime might not have come
to speed with the other countries addressing privacy concerns, issues to do with data protection and also to do
with the challenges fusing some of the newer evidence collection and evidence technology in general. With
the increasing use of electronic evidence, many concerns come into play, such as the pressure on the fairness
of the judicial process, especially as courts abandon conventional evidence-handling approaches. Along with
the challenges posed by the scale and intricacy of the digital spreadsheets, concerns about errors stemming
from the technologies used, abuse of the technologies, and the risk to the delivery of justice are deepening.
Furthermore, with the rapid expansion of digital evidence, the ability of the judicial apparatus to protect
privacy and confidentiality becomes an acute problem.
However, the increasing complexity of electronic evidence makes the adoption of legal amendments,
which will provide means of its fair and dependable application according to the tenets of the justice system
imperative. It is equally important to look at existing legal provisions and assess their applicability in the face
of new evidential challenges or the need for new environmentally responsive legislation. This research
intends to offer holistic insight, especially in evaluating the dynamics of challenges and changes in law in the
context of production evidence in electronic form in India.
The research aims to enhance the understanding of the complex relationship between digital
developments and legal protection and suggest ways to reconcile the two, in this case, the use of digital
evidence and objectives of law in general and in the context of the Indian administration of justice.

OBJECTIVES OF THE STUDY

The subject matter, which includes the issues relating to the admission of electronic evidence in
Indian courts, can be achieved by first conducting an interpretation of the relevant statutory provisions under
BSA 2023, of the Indian Evidence Act of 1872, and of the Information Technology Act of 2000 concerning
the making and court admission of electronic evidence and its proof. This involves examining the judicial
processes, especially the decisive cases and using Sections 65A and 65B of the Indian Evidence Act. The
objectives extend further to assessing other overriding barriers to admissibility, such as authenticity,
reliability, tampering, etc., and the evidence provided by new media technologies and cloud evidence. This
analysis points out Section 65B certification's importance, its issuance procedure and the effect of lack
thereof. The research investigates new technologies and legal enhancement, including digital forensic
technologies, to ascertain the adequacy of the existing laws in response to the new challenges. The objectives
also seek to present crude suggestions, including educating judicial officers and law enforcement agencies on
the most appropriate means of handling electronic evidence and analysing the policy implications, such as the
right to privacy and the relationship between justice and technological development.

HYPOTHESIS
The admissibility of electronic evidence in Indian courts depends on its authenticity, integrity, and
compliance with Section 65B of the Indian Evidence Act, 1872. However, challenges such as technological
advancements, procedural inconsistencies, and limited judicial expertise often hinder its effective application
in legal proceedings.

RESEARCH QUESTIONS
When it comes to the considerations of the admissibility and validity of electronic evidence in the
courts of Indian Justice, there is, as would be expected, a variety of interrelated critical research questions
that are designed to cover the relevant legal issues, barriers and emerging practices globally regarding the
electronic evidence.
One of the primary research questions addresses the legal frameworks within which the admissibility
of electronic evidence is situated in India. Specifically, it seeks to explore the relevant provisions of the
Indian Evidence Act of 1872 and the Information Technology Act of 2000 about how these statutes regulate
the reception and use of electronic evidence in courts. As such, it is important to know how these laws are
adhered to to ensure that digital records are not treated with the laxity associated with records that do not
observe law.
 Another key question pertains to the authentication of electronic evidence in the Indian legal system.
This inquiry investigates the processes, procedures, and issues concerning establishing the authenticity of
digital records, as introduced in the evidence. It addresses the legal standards for establishing the credibility
of the evidence, which is relevant in determining justice. Moreover, it is imperative to ascertain whether the
Indian courts have the necessary systems to investigate the originality and authenticity of electronic records
in the face of technological advances.
The third research question addresses the extent to which the judicial processes are integrated with
technological advances for authentication and admissibility of electronic evidence. This question looks at
whether the Indian courts have kept up with technological advancement and have implemented adequate
systems to deal with new forms of evidence- the digital. This includes assessing how the existing norms can
ensure that electronic documents can be authentic, consistent, and verified.
Also, the research looks at the procedural problems relating to the admission of electronic evidence in
Indian courts. This round takes respondents into the practical difficulties that lawyers, law enforcement, and
judges encounter in ensuring compliance with the required legal standards for electronic records. Here, one
of the major issues is how to manage large-scale electronic evidence and comply with the requirements for
handling such evidence. Another issue of concern in this part of the research is how the existing legal regime
in India tackles the issues of originality and integrity of electronic evidence. This round goes into the areas of
the preservation of evidence: what is currently being done to stop even minimal alterations of the digital
record or the evidence, and what legal evidence exists to protect the information. One more area that this
study searches is the extent to which the legal frameworks required to govern the conduct of digital forensics
in the context of chain of custody, including the presence of essential evidence in court.
Another major area of concern is the role of digital forensics and expert testimony towards
establishing and admitting electronic evidence.
The following question focuses on the necessity of the professional approach while assessing the
authenticity and credibility of digital records, as well as employing forensic science techniques to retrieve
and demonstrate evidence that may not be easily substantiated. The examination extends to evaluating the
international best practices in this line regarding the management of tele-evidence by comparing India’s
legislation on the matter. Are the Indian courts prepared properly for the challenges presented by the
electronic evidence in the exact sense of the term for global practices? This comparison and contrast will
assist in examining if India is among the countries that set best practices for the evidence in practice or if its
practice of law has some unique challenges.
There is also the popular question of how the use of electronic evidence affects the fairness of the
judicial process in India. This question assesses whether there has been an improvement or decline in the
fairness of legal proceedings with the increased use of electronic evidence. It also investigates whether
integrated technology creates the impression of law without principles of due process and fairness. The study
will also examine how Indian courts uphold the secrecy and confidentiality of electronic evidence. Due to the
presence of private personal or financial details within digital records, it is essential to appreciate the
provisions of law that are in place to safeguard against any abuse or wrongful access while obtaining,
creating or presenting electronic evidence in court. Eventually, the research touches on the question of
whether the Indian legal system needs any changes to make the use of electronic evidence more effective in
the future. This question seeks to fill gaps in the current legal system by proposing useful legal or procedural
changes that focus on using and accepting electronic evidence in the courts of Indian jurisdictions. The
above-said research questions offer an integrated understanding of the context within which electronic
evidence is admissible in Indian courts of law and the legal procedures around its usage. They seek to
discover aspects that may require changes to the legal system to accommodate emerging technologies
without compromising the justice delivery system.
 SCOPE OF THE STUDY
This study examines the acceptance and use of electronic evidence in Indian courts from three
techniques: legal, procedural and technological perspectives. Further, it observes the important pieces of
legislation within its context, the Indian Evidence Act 1872 and the Information Technology Act 2000,
regarding how these laws control the acceptance and application of electronic evidence in court. This study
also examines the authentication mechanisms of electronic documents and whether the systems are adequate
in today's world, especially with continuous technological advances. Additionally, this study also looks at the
modernisation of the judicial system with the question of whether the Indian courts are prepared to accept
and embrace new technologies of digital evidence. This study has also covered some other procedural
difficulties, including the challenges concerning the quantity of electronic evidence produced, its
management and security, and the digital forensics component. It also contextualises the governance of
electronic evidence within the global perspective, looking at how it compares with international frameworks.
This study also deals with the issue of electronic evidence and its effect on the fairness and integrity of the
simple decision-making process.
To conclude, the paper discusses the emerging concerns surrounding privacy and non-disclosure
concerning digital evidence. It examines the current status of the Indian legal framework about electronic
evidence and whether changes should be made. The interest of the research concentrates on addressing the
general issues posed by the subject matter while identifying weaknesses and the need for changes in the
managerial strategies, policy, and legal frameworks that would maintain the relevance of the justice system in
the era of technology.

IMPORTANCE OF ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIAN COURTS

In India, the courts face the challenges of electronic data, which has become very important in the
21st digital era and enhances data communication, transaction, and storage during civil and criminal law
cases. Electronic evidence like emails, SMS, voice and video recordings, social networks, data from gadgets,
and any possible electronic records have played an important role in present-day court systems. Recent
developments in Indian law make this point: the Information Technology Act 2000 and the Bhartiya Sakshya
Adhiniyam 2023 have established standards for the admissibility of electronic evidence and have tried to
solve problems concerning its authenticity and integrity.

Legislative Framework: Indian Evidence Act, 1872 and the Information Technology Act, 2000
According to the Indian Evidence Act of 1872, only material evidence such as documents, testimonies
or things were accepted in the courts. However, there was a change in the law when the world went digital. It
came with the barriers of how to deal with the digital evidence. This led to the enforcement of the
Information Technology Act of 2000, the IT Act that made amendments to the Indian Evidence Act and
changed sections 65A and 65B.
Section 65A of the Indian Evidence Act recognises that electronic records can be availed in court
proceedings.
With this development, there was a kind of a breakthrough where electronic documents such as
emails or digital contracts could be considered equivalent to papers filed in courts as exhibits to proceedings.
65B is a rather specific and far more important part. This is the condition of admissibility of such electronic
records into court, and its affidavit is required to prove the existence of electronic records. This certificate
should be able to come from the person in command of the computer system or the apparatus from which the
data was derived. The subsection deals with the problem concerning the question of originality or the
completeness of electronic records. It makes it possible that only avouched and trustworthy data can come
out as evidence.
 These provisions were intended to show that the courts can accept electronic evidence and are not
concerned with the risk that such digital information may be easily modified, erased, or tampered with. Such
a legal structure provided the base for accepting electronic evidence in India. It assisted the judicial sector in
catching up with the pace of development in the world of electronics.
The Bhartiya Sakshya Adhiniyam, 2023, however, can be considered a big milestone in updating and
modernising the laws of evidence in India to make themselves relevant to the ever-changing technology and
the challenges posed by digital evidence.
The legal framework broadens the reach of electronic evidence other than the provisions under the
Information Technology Act and the Indian Evidence Act by including modern-day technologies like
blockchain, cloud storage, AI Text generator, etc. Blockchain, in particular, is emphasised for its ability to
create an unchangeable record, which is important in legal approaches that require data balances. The
Bhartiya Sakshya Adhiniyam easily allows electronic recording and provides clarity, scope and flexibility in
the procedure to certify and preserve the facts and quality. This is very important because of the increasing
rate of changes in the volume and nature of digital information. Quite alarmingly, the law deals with legal
issues and ensures that new forms of digital evidence introduced in court do not affect the principles of
justice and the privacy of individuals. By tackling these technical issues, the Bhartiya Sakshya Adhiniyam
strengthens the position of electronic evidence, especially in Indian courts, allowing the authorities
appropriate arguments against the challenges of new digital data.

Role of Electronic Evidence in Indian Court Cases

The role of electronic evidence in Indian courts is self-explanatory due to the evolved cases whereby courts
have invoked electronic evidence to resolve complicated issues of law. Some case laws have been brought to
the fore that have demonstrated the use of electronic evidence as a factor:

State (NCT of Delhi) v. Navjot Sandhu (2005): This was a case heard before the Supreme Court of India
in which the importance of electronic records, particularly call records, was made in the evidence as helping
establish the sequence of events that led to the committing of a criminal act.
The case emphasised the importance of examining the telephone and other electronic communications, such
as texts, in criminal cases.
Anvar P.V. v. P.K. Basheer (2014): This landmark case became significant to the Supreme Court in
determining the boundaries of the section of the Indian Evidence Act that allows the admission of electronic
evidence. The Section 65B Certificate corroborates that an electronic record is admissible. This judgment
further stressed that it would be essential for a party tendering the record to the court to ensure that this
certificate is available.
In Shahid Khan v. State of Rajasthan (2019), the Rajasthan High Court attempted to determine whether
WhatsApp messages can be treated as electronic evidence. The Court reasoned that they are electronic
records enough to authenticate social media postings, provided they met the requirements specified under the
65B of the Indian Evidence Act.
The above cases highlight the trends of accepting more electronic evidence, especially in criminal law
and civil disputes, where the need for efficient solutions to cases which involve financial fraud, cybercrime,
communication, and transactions has become a key factor.
Rather, the enactment of Bhartiya Sakshya Adhiniyam 2023 and the landmark decisions in cases like Anvar
P.V v. P.K. Basheer and Navjot Sandhu have indicated a positive shift in the trend of Indian evidence to
accommodate electronic documents.
This flexibility demonstrates the role of electronic information in today’s judicial system and ensures that
justice is effectively administered in the era of technology.
 OVERVIEW OF THE BHARTIYA SAKSHYA ADHINIYAM,2023
In such cases, Bhartiya Sakshya Adhiniyam, 2023 (BSA) has provided electronic record guidance in Sections 62 and
63. Two questions are being addressed in these sections. One is about recognising the electronic data as evidence in
itself, and the other is about the assumptions that may be made about the documents used as evidence in court.
According to the BSA, trust section 62 makes it possible to trust section 63, which may be considered supporting
documents. Electronic documents contain dates and metadata which regard their validity. Subsection (1) establishes
that electronic records, including optical and magnetic media or semiconductor memory, will be considered documents.
As evidence, this electronic record does not need to be proven further or originally displayed. Repeated Assurances of
electronic records should also be required by Section 63 (2), which is the good practice of using information-creating
and processing devices during the relevant period.
The Explanatory Notes provides a data compression strategy to reduce the number of computers or communication
devices used to create, store, or process information over a specified period to a single computer or device. The Clauses
further provide for a certificate to accompany electronic records that specify the manner of producing the record, the
particulars of the device used and the conditions appropriate at the time of production. Therefore, This certificate is
evidence of the electronic record's authenticity and must be signed by the persons in charge of the record.
The provisions contained in Section 65B of the Indian Evidence Act, 1872 and Section 63 of the Bhartiya Sakshya
Adhiniyam, 2023, are very similar, especially regarding the admissibility of electronic records. Both sections
acknowledge electronic records, be it in optical, magnetic or semiconductor mediums, as valid documents provided
certain conditions are satisfied. Section 65B of the IEA provides specific provisions for electronic records generated by
Computers. Section 63 of the BSA incorporates records made using communication devices to expand the definition of
electronic records. The certifications on both sections of the evidence act are to ensure the correctness of all materials
presented as evidence. It is worth mentioning that BSA created new terminology for a wider range of electronic devices
and means of communication used for storing and processing information.
SIGNIFICANT MODIFICATIONS BROUGHT BY THE BSA
The Bhartiya Sakshya Adhiniyam, 2023, comes in with many major amendments, particularly aimed at
widening the scope of electronic records under Indian law. The definition of the term document has been expanded. It
now includes electronic and digital records (Section 2(d) of the BSA), bringing electronic records within the purview
of conventional documentary materials. The statute further provides for electronic information as oral evidence and
digital information as documentary evidence. Section 57 of the BSA defines a new term called "primary evidence"
concerning electronic records. More explanation has been provided, such as how videos and several file versions must
be regarded as primary evidence. Section 61 ensures that electronic records are not entertained only because they are in
electronic form and maintain their legal effect, validity, and enforceability.
Section 63 of the BSA increases its scope by adding semiconductor memories to optical and magnetic media
memories, and it now applies to any communication device. In addition, there is now a more expansive definition of
computers and communication devices, considering the rapid evolution of technology.

MAJOR CHANGES INTRODUCED BY THE BSA

The Bhartiya Sakshya Adhiniyam, 2023 was gazetted, a law providing some major alterations to augment the
applicability of electronic records in the Indian legal framework. The scope of the term “document” has been extended
to facilitate the usage of electronic and digital records (Section 2(d) of the BSA), effectively bringing electronic records
into the category of traditional documentary evidence. In addition, the law includes electronic information offered
during oral testimony and the provision of digital evidence as part of the evidence documentation. What is particularly
significant is that Section 57 of the BSA establishes the meaning of an electronic document in the resolutive sense of
primary and copies with the numerous particulars concerning the treatment of electronic documents such as video
recordings and several versions of the same document as primary linked to the original. Section 61 will safeguard the
interests of electronic records to be countered inadmissibility because they are in digital format. Such records are
considered to have legal effects, social recognition, and enforcement. Section 63 of the BSA extends its range of
coverage by including semiconductor memories and optical and magnetic media, and it also broadened the range to be
any communication device. In addition, the definition of computers and communication devices is expanding to keep
pace with the advancing throes of technology.
 Section 63(4) preserves the certification rules of the IEA for the proceeding under Section 65B. Still, it
increases the requirements by including the description of the device and its details on how it should function properly.
The BSA goes ahead to explain the conferring of the expert and further goes ahead in introducing a format for the
certificate, which has two parts; the first is to be completed by the party and the second one by an expert.
BSA GAPS ABOUT PROCEEDINGS WITH EVIDENCE OF ELECTRONIC FORM
There are attempts within the Bhartiya Sakshya Adhiniyam, 2023 to clear the obstacles in the admission of
electronic evidence, but some aspects remain to be explained. The Indian Evidence Act (IEA) forwards definitions such
as “form of technology” and "electronic records" to the Information Technology Act of 2000 (IT Act) based on self-
definition. However, such terms were not defined in either criminal's or BSA's textual and legal documents. Thus, the
answer to the question posed through these words is rather very well-qualified Temple to the West.

EVOLUTION OF ADMISSIBILITY OF ELECTRONIC EVIDENCE

IN
INDIAN COURTS
The admissibility of electronic evidence in Indian courts presents a dynamic and evolving intersection of law
and technology. With the pervasive integration of digital technologies into daily life, the Indian legal system has
encountered the imperative to adapt to the challenges posed by electronic records, traditionally viewed as unreliable or
inadmissible. Legislative reforms, landmark judicial decisions, and technological advancements have significantly
influenced this progression. Ranging from the foundational Indian Evidence Act of 1872 (IEA) to the recent Bhartiya
Sakshya Adhiniyam, 2023 (BSA), the development of electronic evidence in Indian jurisprudence reflects a delicate
balance between ensuring the trustworthiness of digital information and meeting the requirements of contemporary
legal proceedings.
CHALLENGES IN THE PRE-DIGITAL ERA:
Before the digital era, the Indian Evidence Act of 1872 established the fundamental framework for
admissibility in Indian courts, assuming that evidence would predominantly manifest in physical forms such as
documents, oral testimony, and tangible objects. The concept of \electronic evidence\ was not contemplated during this
period, with documentary evidence confined to physical entities like paper documents, photographs, and executed
contracts. Consequently, any evidence lacking tangible attributes, such as digital data, was met with suspicion and
generally deemed inadmissible in legal proceedings.
EMERGENCE OF DIGITAL EVIDENCE AND THE NEED FOR REFORM:
The rapid proliferation of digital technology in the late 20th and early 21st centuries triggered a profound
transformation in how information was generated, stored, and transmitted. Personal computers, mobile devices, email
communication, and internet usage swiftly became indispensable in various spheres, prompting a surge in the volume
and significance of digital records like emails, electronic agreements, and server-stored data. This escalating reliance
on digital records underscored significant inquiries regarding their legal standing in judicial contexts. Conventional
evidentiary norms tailored to physical documentation proved inadequate in addressing these novel forms of evidence,
compelling the judiciary to urgently establish a comprehensive framework governing the admissibility of electronic
records.
THE INFORMATION TECHNOLOGY ACT, 2000:
In recognition of the challenges posed by digital technologies, India introduced the Information Technology
Act, 2000 (IT Act), designed to furnish a legal framework for electronic governance and commercial transactions.
Section 4 of the IT Act conferred legal stature upon electronic records, essentially validating their equivalence to paper-
based records within the legal domain. Nevertheless, despite bolstering the legal recognition of electronic records
pertinent to e-commerce and cybercrime, the IT Act lacked a specific provision addressing their admittance as evidence
in court proceedings, accentuating the requisite for a distinct legal framework concerning the admissibility of digital
records.

CURRENT STATE OF ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIAN COURTS

The acceptance of electronic evidence in Indian courts has undergone a noteworthy evolution recently in
response to the increasing dependence on digital technology. Once hesitant towards digital records, the legal system has
progressively adopted electronic evidence, integrating it into the judicial process with stringent requirements for
authenticity and reliability. This transformation mirrors the digital era's evolving landscape of communication,
documentation, and data storage. The current status of admitting electronic evidence in India is predominantly
governed by the Indian Evidence Act of 1872, the Information Technology Act of 2000, and the Bhartiya Sakshya
Adhiniyam, 2023, in addition to significant judicial precedents that have influenced the treatment of digital evidence.
Section 65B of the Act establishes specific criteria for admitting electronic records, including the necessity of a
certificate of authenticity, aligning with the provisions of the Information Technology Act of 2000, which confers legal
recognition on electronic records and digital signatures, thus validating digital evidence.
The Bhartiya Sakshya Adhiniyam, 2023, has updated these frameworks to encompass newer technologies like
blockchain and AI-generated content, streamlining the certification process and addressing emerging forms of digital
evidence.
Varieties of Electronic Evidence Acknowledged
The range of electronic evidence now deemed admissible in Indian courts includes:
Emails and electronic communications: Correspondence via email, text messages, and other digital communications
can serve as evidence if their authenticity is verified through a certificate under Section 65B.
Computer-generated documents and records: Information from computers, servers, and electronic devices, such as
business records, spreadsheets, and transaction logs, can be accepted as evidence if they meet the stipulations outlined
in Section 65B.
Video recordings and audio tapes: Digital audio and video recordings, like CCTV footage, can be utilised as
evidence, subject to the verification of their authenticity.
Social media content: Increasingly, social media content such as posts, comments, and messages is being introduced
as evidence, especially in cases related to defamation, cybercrime, and online harassment.
Blockchain and cryptocurrency data: Given the surge in blockchain technology and cryptocurrency transactions, the
Bhartiya Sakshya Adhiniyam, 2023, now explicitly addresses the admissibility of blockchain data, recognising it as a
secure and trustworthy form of digital evidence.
The present state of admitting electronic evidence in Indian courts signifies a legal system that has adaptively
progressed to address the demands of the digital era. Through legislative reforms like Section 65B of the Indian
Evidence Act, 1872, and the Bhartiya Sakshya Adhiniyam, 2023, in conjunction with judicial interpretations, the legal
framework for electronic evidence is now more robust and comprehensive. Nonetheless, challenges persist in ensuring
the authenticity and reliability of digital records, particularly with the emergence of new technologies. As the legal
system grapples with these challenges, it is evident that the admissibility of electronic evidence will continue to be a
pivotal and evolving facet of Indian jurisprudence.

CHALLENGES IN THE ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIAN COURTS

The validity of electronic evidence in Indian courts has developed over time with the existence of the
Indian Evidence Act, the Information Technology Act 2000, and the Bhartiya Sakshya Adhiniyam 2023
(BSA) being implemented. Native hurdles remain in practice and application of these legislations. Such
challenges have, in one way or another, affected the efficacy of managing electronic, human evidence that the
BSA and the IT encode and underscore the limitations and intricacies surrounding the legislation. This
discourse will highlight the challenges of the admissibility of electronic evidence and the challenges in
operationalising the legislation mentioned above.
1. Inconsistency in Terminology
Arguments have been set forth regarding the fact that an impediment that limits parties from making claims
and obtaining relief from the judicial system is the lack of clear definitions for the terms “electronic records”
or “electronic form .” What the ITA articulates and what BSA 2023 intends to include does not specifically
resolve several questions today. There is no remedy for the Mercy Oder for Social Evidence Act simply
because these definitions are determined by other rules of law governing institutions. The loose regulation of
definitions leads to misinterpretation of the terms, which leads to difficulties in providing digital evidence in
court.
Example: Such general technology and any AI content or a registered Centre with total storage technology
like the cloud can be called electronic records and forms. However, their legal recognition and positioning as
proof in court are not specified, which may trigger strife over their acceptance.
2. The Issues Relating to Reliability and Authenticity of Digital Evidence
The integrity of electronic evidence also demands the proof of the authors, which is the requirement of sheer
authenticity. Indian Evidence Act 1872 Section 65B provides for issuing a certificate of authenticity, a
protective mechanism for the electronic records adduced in courts. However, there are problems regarding
the protection of the non-repudiation of such evidence or its verification, especially in instances of technical
complexity and or when the data is geographically dispersed.
Challenge: Radically dispersed electronic records generated or even created beyond the confines of Indian
geography, together with those located within cloud systems, raise problems relating to where the records lie
regarding jurisdictional competence for Indian record authorities to authenticate. It is more confusing that the
scope of jurisdictional authority in-laws is as clear as where legal evidence has been generated or located,
especially in cyberspace.
Solution: BSA’s introduction of a more refined process of certifying such evidence is fashioned for
addressing such issues, although it is subject to strict enforcement and compliance by both the adjudicating
authorities and the presenting parties.
3. Absence of Technological Skills in the Judiciary Legislators
The raised threshold for proof in digital evidence, such as mobile phones, telephone calls made through
social networks, transactions within blockchain technology, and the IoT incidence, calls for a knowledgeable
court. This is essentially the case in the wake of the rapid rise in digitalisation across all sectors of the
economy, where information technology cuts across the entirety of industry not to create services but for how
services will be created.
Nonetheless, Indian courts struggle to understand the paradigm, the context of such evidence, and its
relevance in the case. This problem is aggravated by the shortage of skilled digital forensic experts who can
assist courts in tackling complicated technological evidence.
Challenge: Judges and lawyers may also have difficulty trying to make sense of electronically produced
records even when they have such e-documents under their jurisdiction. Such issues may cause legal
practitioners to make bad decisions or rely on evidence that should not have been considered.
Solution: Even though they may seek to address such issues, the BSA has not been very successful in doing
so. There is a serious lack of training and education for judicial and legal authorities in electronic and
technological evidence fundamentals. Proper law implementation is needed to ensure that there is no gap in
the advocacy of the courthouse about the necessary mechanisms needed to respond to Canadian laws.
At law’s diverse scope.
The IT Act and BSA have all faced similar issues in the Indian courts. On the contrary, those based in huge
cities are better positioned to manage e-evidence as they have appropriate infrastructure and resources. In
contrast, their smaller cousins, especially those based in rural areas, lack the necessary tools, expertise and
knowledge to implement the said laws.
Challenge: People from different levels of the judiciary have no formal documents/systems on how
electronic evidence should be managed, making it very difficult for judges and juries to have uniformity
concerning such evidence.
This disparity in handling digital devices and investigative techniques adversely affects the range of possible
outcomes in legal proceedings.
Here’s a solution: A significant improvement in the uniformity and reliability of mass digital evidence would
be derived from training judges, clerks of courts, and police officers, as well as equipping courts with
appropriate information units.
5. Cyber Security and Data Protection Challenges or Issues
With the growing number of digital mass evidence tendered in courts in India, cyber security, as well as the
protection of data, has been on the rise. The fact that digital mass evidence can be worked on or accessed
without permission scores high on the digital risk ladder, especially within the perimeters of mobile devices,
social networks, or cloud-based storage systems.
There is a continuous descent into the challenge: With much effort placed on the subpoenas, the integrity of
digital mass evidence collection, storage, and presentation will still be worrying. Data that is raw evidence
always has serious ramifications of being altered despite all legal measures being set, and there is complete
dependence on evidence that can be ruled out.
However, there is a solution: Though the BSA and IT Act provide some level of protection for mass
data, no national cybersecurity standards should ever be ignored to preserve mass electronic evidence.
Cybersecurity specialists may incorporate blockchain to protect and uphold the consistency of mass digital
accounts to be constant and workable at all times.
6. Complexity of Jurisdictional and Cross-Border Data Issues.
The jurisdiction and availability of cross-border data are yet another challenge when handling electronic
evidence because the mass data is usually hosted on cloud-based servers in foreign countries.
Indian courts may be constrained in ensuring the admissibility of such evidence, especially those records
outside the country's partition with different laws concerning data protection.
Challenge: The BSA and IT Act fails to guide on more sophisticated issues such as international data flows
and the legal barriers encountered in retrieving the stored and verifying the overseas digital evidence. This
bottleneck is characteristic of the judicial process, where time is consumed and complexity added.
Solution: The Indian government could seek to enter into multilateral or international agreements or
protocols to facilitate data movement across borders and make electronic evidence admissible in Indian
courts.
7. Difficulties in Interaction with New Forms of Technology
As Baidu, bitcoin, and Ahrefs, at a low cost, become advanced technologies and IoT or AI take centre stage,
collecting, authenticating, and presenting evidence will be a whole new task. These processes will involve
massive volumes of data, requiring experts to handle, process and even authenticate the data. However, the
BSA and IT Act have not addressed the challenges of dealing with evidence related to or from these modern
technologies.
Challenge: The lack of specific standards related to the evidentiary value of AI systems or blockchain tools
also hinders the legal appreciation of this evidence. Apart from that, this technology has a different structure,
and evaluation can only be done by people conversing with that particular technology.
Solution: Changes in the BSA and IT Act may need to be made to have effective and robust legislation that
deals specifically with the evidentiary admissibility of emerging technologies.
As mentioned earlier, the reforms will help define and guarantee that the legal system is always in touch with
emergent areas of technology.

RECOMMENDATIONS FOR IMPROVING THE ADMISSIBILITY OF ELECTRONIC EVIDENCE

IN
 INDIAN COURTS

The admissibility of electronic evidence in Indian courts is subject to various legislative frameworks,
including the Indian Evidence Act of 1872, the Information Technology Act of 2000 (IT Act), and the
Bhartiya Sakshya Adhiniyam, 2023 (BSA). Despite efforts to accommodate digital evidence, challenges
persist.
To enhance the utilisation of electronic evidence in the Indian judiciary, the following recommendations are
proposed:
1. Enhance Clarity in Legal Definitions:
A significant challenge lies in the ambiguous definitions of terms like \electronic records,\ \electronic form,\
and \digital signatures\ To alleviate this ambiguity and ensure consistent interpretation, it is recommended
that detailed definitions covering emerging technologies such as blockchain, artificial intelligence (AI), and
the Internet of Things (IoT) be incorporated into the Indian Evidence Act and the BSA. These definitions
should guarantee the admissibility of electronic evidence from various sources, including cloud storage, AI-
generated content, and digital communications, fostering uniformity in treatment.
Impact: This step would eradicate uncertainties in legal processes, offering clarity to legal professionals and
the judiciary, thereby streamlining the presentation and assessment of electronic evidence.
2. Strengthen Authentication and Certification Methods:
Verification of the authenticity of electronic records is crucial for their admissibility in court. Although
Section 65B of the Indian Evidence Act mandates a certificate of authenticity, obstacles persist, especially
concerning intricate digital technologies and cross-border data storage
Recommendation: The BSA should enhance the authentication process by integrating modern tools to verify
the authenticity of digital records, particularly those stemming from cutting-edge technologies like AI or
blockchain. Consideration could be given to leveraging blockchain technology for timestamping and
ensuring the integrity of digital records upon creation.
• Impact: Such a situation would help end the conflict of interests in legal matters and make it easier for the
representatives in the case and the courts to present and examine electronic evidence without interference.
3. Developing and Training the Capacity of Judicial Authorities
One of the most important barriers to the admission of electronic evidence into court is the lack of relevant
knowledge by the judges and other judicial officers. This, in turn, may result in mistakes in understanding
complex digital information.
• Recommendation: Develop and implement elaborate training and sensitisation programs for judges,
advocates, and law enforcement officers on the best practices for dealing with digital evidence issues.
Judges' rehabilitation should also include digitalising physical evidence collections, learning the
basics of blockchain technology, using AI systems, or identifying ways to authenticate and secure digital
evidence effectively. Further, there are calls for the formation of dedicated digital evidence units in courts to
help with the tech understanding of electronic evidence by the judges.
• Impact: If implemented, it would significantly improve the knowledge of the judges concerning the
handling of digital evidence and how it is appreciated in courts so that the same will enhance the legitimacy
of legal processes where the electronic records are involved in the former.
4. Cybersecurity Standards and Data Privacy Protection
First, the most important of all is the security of digital evidence. Second, there is an urgent need to address
the increasing data breach concerns and vulnerability to tampering and access to sensitive information
without authorisation.
• Recommendation: Stricter measures must be implemented to secure any digital Evidence during
collection, preservation and presentation in court. Courts should adopt clear guidelines for the secure
transmission of electronic records with necessary controls such as encryption and restricted access levels.
Also, there is a need for the BSA and IT Act to have more stringent guidelines on data privacy with an
emphasis on digital evidence containing personal information.
• Impact: In this way, they would improve how databases are maintained and accessed, reducing the
conformity of such sample evidence and making it valid in court.
5. Lower Court Protocols And Procedures
It, therefore, follows that the gap in the information dissemination regarding electronic evidence has left a
disparity in the competencies of the courts within different jurisdictions.
Courts in metropolitan areas are more sophisticated in using digital evidence than their counterparts in rural
areas or small towns, thanks to better resourcing.
• Recommendation: Formulating standard protocols and rules for lower courts regarding the admissibility of
electronic evidence is very important. This includes basic infrastructure, like secure submission systems for
submitting digital evidence and instructions on authenticating and bringing in digital files.
• Impact: Standardization regarding the acceptance of various types of digital evidence would ensure
uniformity in the level of operation of all the courts, regardless of being high or low. All the courts, regardless
of their size or locality, could handle electronic records efficiently.
6. Collaboration with International Jurisdictions for Cross-Border Data Access
With new technologies came a new set of problems, most importantly jurisdictional challenges. Electronic
records are rarely only kept on the Indian subcontinent. As a result, jurisdictional issues regarding cross-
border access to and submission of electronic systems have been problematic.
• Recommendation: Hence, India, along with various other countries that desire such evidence, should
actively engage in creating collective agreements and frameworks that would support cross-national
assistance concerning electronic evidence. India might use the opportunity to become a part of several
treaties or multilateral agreements that allow inter-agreement between nations that exchange and certify
records in electronic form. Such agreements may cover jurisdiction, data privacy issues and even mutual
recognition of standards regarding electronic evidence.
• Impact: To enhance the efficiency of legal proceedings, obtaining and certifying information in digital
format stored within foreign jurisdictions should be easy and time-consuming procedures made unnecessary
through international collaboration.
7. Authority of the Judiciary and Help of the Specialist.
The nature of electronic evidence, especially in the case of new technologies, is difficult as it requires
specific skill and knowledge. Courts usually are not able to assess this evidence efficiently without expert
help.
• Recommendation: The courts should have digital forensic professionals and other specialised experts who
help provide technical supporting information during litigation matters. These specialists should help deal
with intricate information incidents and provide evidence of the integrity, significance and technological
details relevant to the information placed before the court.
• Impact: Availability of expert evidence will enhance judicial evaluation of electronic evidence, thus
increasing the credibility of evidence in cases.
8. Introducing new technologies (AI, blockchain, IoT) in existing legislation
Technologies such as AI, blockchain and IoT are growing in scope and creating new types of data pertinent to
a court case. However, the existing framework, such as the BSA and IT Act, fails to address the specific
issues these technologies brought about adequately.
• Recommendation: The BSA and IT Act should be revised to stipulate provisions on emerging technologies
with indicators on establishing AI systems, blockchain networks, and IoT devices, as well as related evidence
and its collection and authentication processes.
It will enable evidence from these technologies to be handled consistently and equitably throughout the legal
processes.
• Impact: This would create a legal structure which would govern the use of modern digital forms of
evidence. Courtesy Systems would be able to deal effectively with the issues related to new technologies.

CONCLUSION
The advancement of legal technology has been so phenomenal that electronic evidence is now seen as
a mainstay of modern legal practices. Usually, any event or transaction emanates some electronic evidence,
which can also be electronic. There are some benefits and disadvantages that come with this kind of
evidence. For example, such event records are trustworthy and lessen the chances of redundant work:
investigating suspicious transactions and events becomes much more efficient and straightforward. One of
the major drawbacks, however, which all cast too long a shadow, is the potential for such evidence to be
altered or completely forged and the implications for its need for legal certification. Judges of Indian courts
have dealt with electronic evidence issues, which are often perceived as complex areas, constructively,
according to legal requirements. However, at the same time, there are facilities where complications arise -
the first related to the qualifications. Legal qualification is an official process that helps control access to
illegal evidence. As a result, the Law overcomes the Various doubts related to Electronic Evidence and
strengthens its position as reliable proof.
The Indian government, being aware of technological changes, has and continues to make the
necessary amendments towards relevant legislation from time to time. They take a proactive stance, ensuring
the law keeps pace with technological developments. For instance, there have been amendments to the
Information Technology Act of 2000 and further amendments which have strengthened the legal framework
regarding the use and authentication of electronic data. These legislative measures are an indication of the
gradual transformation of the law in a bid to tackle new frontiers in technology.
Nevertheless, it is not only the lawmakers responsible for establishing electronic evidence's correct
validation and admissibility. Authorities responsible for the examination, certification and presentation of
such electronic evidence shoulder many responsibilities. These authorities should be aware of the latest
technology and the current trends in evidence-gathering techniques. To maintain the fairness of the legal
process, it is important to have capacity building, resources, and creation of forensic science units capable of
examining electronic evidence. Given the importance of electronic evidence in litigation today, there is a
need for a legal regime that specifically focuses on this issue. A more detailed law would define several
issues, including certification standards, verification procedures, and penalties for misusing and tampering
with electronic documents.
Such a law would improve the reliability and credibility of electronic evidence and deter potential
abusers or forgers.
To sum up, using electronic evidence in the law system is a step forward in law. Still, the importance
of adopting its potential and minimising its threats tends to be practical. It is important to formulate concrete
legal policies to cover the gaps and problems arising from using electronic evidence. In this way, the legal
system could better use the opportunities brought about by technological advancements while minimising, if
not eliminating, the threats posed to the ordered society, equity, and justice.
 BIBLIOGRAPHY

1. Books and Acts

o Indian Evidence Act, 1872.
o Information Technology Act, 2000.
o Bhartiya Sakshya Adhiniyam, 2023.
2. Judicial Pronouncements
o State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600.
o Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473.
o Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801.
3. Journal Articles and Research Papers
o Jain, R. (2019). "Evidentiary Value of Electronic Records under the Indian Legal
System." Indian Journal of Law and Technology, 15(2), pp. 45-62.
o Mehta, A. (2022). "Admissibility of Digital Evidence: Challenges and
Opportunities." Journal of Information Law, 8(1), pp. 23-41.
4. Reports and Guidelines
o Law Commission of India. (2000). 185th Report on Evidence Law Amendments.
Government of India.
o Ministry of Electronics and Information Technology (MeitY). (2019). Guidelines
on Data Protection and Digital Evidence Management.
5. Online Resources
o National Judicial Academy. (2021). "Digital Evidence and its Role in Legal Adjudication."
Retrieved from https://nja.nic.in.
o Supreme Court E-Committee. (2020). "Handbook on Handling Electronic Evidence."
Retrieved from https://www.ecommittee.gov.in.
o ADMISSIBILITY OF DIGITAL EVIDENCE FOR CYBERCRIME
INVESTIGATION/PROSECUTION - The Amikus Qriae. https://theamikusqriae.com/admissibility-of-
digital-evidence-for-cybercrime-investigation-prosecution/
o Madagascar Adopts Electronic Transactions and Electronic Signature Law Based on
UNCITRAL Texts. https://unis.unvienna.org/unis/en/pressrels/2015/unisl212.html
o Hardik Gautam. https://www.barandbench.com/author/hardik-gautam
o ADMISSIBILITY OF DIGITAL EVIDENCE FOR CYBERCRIME
INVESTIGATION/PROSECUTION - The Amikus Qriae.
https://theamikusqriae.com/admissibility-of-digital-evidence-for-cybercrime-investigation-
prosecution/
o The Complete Guide to Electronic Records & Evidence in Indian Law.
https://www.centurylawfirm.in/blog/the-complete-guide-to-electronic-records-evidence-in-
indian-law/
6. Other Sources
o Singh, M. (2023). "Modernizing Evidence Law in India: The Bhartiya Sakshya Adhiniyam."
The Hindu. Retrieved from https://www.thehindu.com.
o Srivastava, P. (2020). Forensics in Indian Courts: An Analysis of Digital Evidence Practices.
New Delhi: Universal Law Publishing.