Introduction
The Bharatiya Sakshya Adhiniyam, 2023 (BSA), passed by Parliament, brought about a substantial modification to the legal structure regulating digital evidence. The present research work is an attempt to explore the legislative changes brought in by the BSA, specifically key provisions-Sections 61, 63, and 65; relevant judicial interpretations; the practical and procedural problems in its application, international standards; and possible recommendations to strengthen the digital justice delivery system of India and this article explains everything about Digital Evidence under BNS.
The Need for Reform: Why the Indian Evidence Act, 1872 Became Outdated:
The Indian Evidence Act of 1872 eventually hit a breaking point where it just didn’t fit the modern world. . Back when lawmakers wrote it, “evidence” basically meant paper files and what people said in court. But now, with everything from business deals to personal disputes happening online, this old law feels out of place. Judges and lawyers keep running into trouble no one’s sure how to handle emails, texts, or digital records. Some cases get messy, and sometimes, the system just gets it wrong.
Section 61 of the BSA: Granting Electronic Records Equal Legal Standing:
Section 61 has now made it official: emails, messages, CCTV records, and server logs will all be treated as documentary evidence in courts of law. This clears up any ambiguity about how the court might consider screenshots in comparison to actual physical contracts. The law does this by giving digital records the same status as any other document in print form, enabling judges to treat them with equal authority.
Section 63 BSA: Presumption of Authenticity for Regularly Maintained Records:
Section 63 goes one step further with its trust in the process. If a company or government organization maintains digital records in keeping with its routine activities such as hospital records, railway CCTV videos, or account records, they trust these records to be genuine under this proposed legislation. The previous rules on digital evidence would require lawyers to prove that every single digital file in those records had not been tampered with; the proposed BSA trusts the process to recognize that if records were properly maintained in the system, they could be presumed to be valid. Of course, if someone could prove that records were fake, then they would be different.
Section 65 BSA: Technical Validation through Metadata, Hashing, and Chain of Custody:
Section 65 is about the admissibility of digital evidence to prove its integrity. It mandates the use of metadata for recording a file’s origin and temporal information, hashing for providing a unique digital signature, and a scrupulously maintained chain of custody record. These stipulations collectively establish a transparent, uninterrupted account of evidence handling, thereby significantly impeding the potential for digital proof to be compromised or contested within a legal context. These provisions furnish judges with a mechanism to ascertain the authenticity of digital files, confirming their unaltered state throughout the investigative process.
Landmark Judicial Precedents on Digital Evidence under BNS
Judicial Benchmarks: Defining the Parameters for Digital Evidence:
· Anvar P.V. v. P.K. Basheer, the Supreme Court expressed that electronic evidence requires a special Section 65B certificate. You’ve got to show what the record is, how it was made, what device it came from, and meet the conditions in Section 63(2) and (3) of the BSA. Someone responsible for the device has to sign off.
· Arjun Panditrao v. Kailash Gorantyal (2020) reaffirmed the requirement for such certification.
- Tomaso Bruno v. State of U.P. (2015) emphasized the value of CCTV footage as evidence.
· • Shafhi Mohammad v. State of H.P. (2018) relaxed the rigid stipulations regarding authentication certificates. This was short-lived, as Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal restored the certificate as a prerequisite in 2020, with certain obvious exclusions where procurement of a certificate is physically impossible.
· State v. Mohd. Afzal (2005): Also accepted digital records without certification, which is no longer applicable.
These cases were instrumental in leading to the move to a more stringent approach to the admissibility of digital evidence, which resulted in the legislative framework of the BSA.
In summary, the BSA reflects a modernization of legal evidence in India, bringing its legal procedure more in line with the needs of a digital era.
Real-World Use of Digital Evidence in Indian Courts
You see the impact in real cases, too. Digital evidence now turns up everywhere, from headline-grabbing trials to regular disputesTake the Sushant Singh Rajput case, in which WhatsApp chats, Google search history, and cloud backups were among the things investigators relied on in piecing together what had taken place.
In India digital evidence is really important for small legal cases. The Sushant Singh Rajput case is an example of this. In this case WhatsApp chats and Google search history were very important for the investigation.
The police even looked at cloud data. This all started after Sushant Singh Rajput died in 2020. The police found some WhatsApp messages on a phone they took from his talent manager, Jaya Saha.
These WhatsApp messages led to the Narcotics Control Bureau talking to some Bollywood actors. The digital evidence in the Sushant Singh Rajput case was very important WhatsApp chats, Google search history, and other forms of digital evidence have increasingly been used in cases in India. But the unprecedented raid brought serious legal and technical questions of admissibility and authenticity to the fore. While the security of encrypted platforms is very strong, messages stored on seized devices or in backups can be retrieved through forensic methods.
Additionally, this also necessitated a scrutiny in the context of forming a chain of custody, authenticating the documents, and striking a delicate balance between individual privacy and the need for investigation. The Bharatiya Sakshya Adhiniyam, 2023, provides the legal framework for such digital documents, not with standing compliance with the procedure as contemplated by sections 61, 63, and 65.
The Sushant Singh Rajput case serves as a compelling example of the necessity for evidence to be both lawfully obtained and meticulously verified to withstand judicial scrutiny.
The prevalence of digital evidence is also evident in financial crimes such as the loan app scams between 2021 and 2023. These fraudulent schemes utilized unregulated mobile applications to offer instant credit, subsequently subjecting borrowers to extortion and public shaming.
Some victims, unfortunately, suffered profound psychological harm, with a few even taking their own lives. The investigations into these scams leaned heavily on electronic evidence: call logs, payment details, and app metadata were all crucial. Many of the apps involved were run by foreigncompanies, which meant they were beyond India’s regulatory reach. The use of illegal bans and rule toughening in the digital lending process was thus a reaction from both the RBI and MeitY. The entire process of events demonstrated an imperative requirement to address issues of greater digital literacy, law enforcement, and data protection within the changing face of financial technology in India. Furthermore, cases of honey-trapping and Sextortion have also seen the use of process recordings for spyware data. In essence, all these examples demonstrate the importance of electronic records in ensuring criminal investigations in the country.
Moreover, in cases involving honeytrapping and sextortion, digital screen recording evidence and spyware have become increasingly essential. The above cases illustrate, therefore, the vital utility of electronic records to any criminal investigation.
Cybercrime Trends and the Rising Role of Electronic Evidence
Cybercrime has exploded across India in the past few years. The National Crime Records Bureau’s 2023 report says cybercrime jumped by 12% from the year before. Honestly, it’s no surprise. As India’s digital world keeps growing, so do the risks.
Online banking fraud is everywhere. Scammers set up fake payment sites, steal credentials with malicious apps, and break into people’s digital wallets or bank accounts. The fallout? People lose serious money, and trust in India’s push for a cashless economy takes a big hit.
Phishing and identity theft are climbing too. Criminals use clever tricks social engineering, they call it to grab Aadhaar numbers, PAN details, bank logins, OTPs, you name it. They don’t stop there, either. A lot of this stolen info ends up for sale on shady websites, wrecking people’s finances and reputations.
There’s more. The NCRB keeps getting more reports about cyberbullying and online harassment. Women, kids, and public figures are especially at risk think online stalking, impersonation, and sharing private photos without consent. The damage isn’t just about privacy. It can leave deep psychological scars.
All of this is why electronic evidence now sits at the heart of investigations and court cases in India. Police and lawyers rely on digital clues IP addresses, call logs, payment screenshots, email headers, device data to piece together what happened, figure out who’s behind it, and help courts convict the guilty. The new Bharatiya Sakshya Adhiniyam, 2023 (which replaced the old Indian Evidence Act) makes sure this digital evidence has full legal status.
Take online fraud. Investigators will also probe into the history of the transactions and IPs to identify where the fraud actually initiated. If it was a phishing case or identity theft, investigators may want to check the browser history, emails, and do an in-depth investigation into the devices to link all the evidence and identify the offenders. For cyberstalking and cyber harassment, it may be an easy case if one has images and app reports on hand.
Nevertheless, not all is rosy. There is consistently a doubt about whether digital evidence is authentic and whether it has been properly handled. This issue is being addressed under the Bharatiya Sakshya Adhiniyam, which provides guidelines on legitimate evidence and its handling.
Police forces are getting smarter about this stuff, too. Cyber Police Stations, special investigation cells, and cyber forensics labs have popped up all over. The Indian Cyber Crime Coordination Centre (I4C) helps tie everything together nationwide and keeps the evidence safe.
Bottom line: Cybercrime isn’t slowing down, and the way we handle electronic evidence needs to keep up. Judges, investigators, and lawyers have to stay sharp and up-to-date with tech and the law if they want justice to mean anything in the digital age. In almost every cybercrime case now, electronic records IP logs, payment screenshots, device data are at the centre of it all.
Implementation Challenges in Digital Evidence Handling
Despite the legislative developments, digital evidence in practicality poses major obstacles in India:
Lack of Training: Most police personnel and even judges in trial courts are not sufficiently cyber-literate to understand the concept of digital evidence and its use.
Inadequate Infrastructure: There is a general shortage in the number of accredited digital forensic labs, which is inhibiting the verification and analysis of the evidence.
Inadequate Infrastructures: There is a scarcity of accredited digital forensic labs in the country to verify and analyze the content of the electronic materials.
Deep fakes and AI Forgeries: With the rise of AI, sophisticated content created using this technology challenges the current legal setup in terms of authenticating these. Persistence of these issues undermines the reliability of digital evidence and increases the risk of wrongful judicial outcomes if left unaddressed.
Policy Recommendations for Effective Utilization of Digital Evidence
In order that the effectiveness of Bharatiya Sakshya Adhiniyam is enhanced, and the idea of digital justice becomes strong, the following could be suggested:
Certified State-wise Cyber Laboratories: Offer ISO 17025 accreditation to labs for conducting forensic investigations.
Comprehensive Training Programs: Continuing education and training for police forces, prosecutors, judges, etc., would be expanded to include cyber law and cybersecurity training. Operating procedures are standardized nationally – Chain of Custody: Design a standard process for Chain of Custody that is consistent throughout all jurisdictions for digital evidence.
Integration of Block chain: Block chain technology can be used to store data to ensure tamper-proof time stamping.
Public Legal Literacy Programs: The citizens have to be empowered to know how to report, preserve, and present digital evidence. The implementation of these recommendations is essential to the development of a robust digital justice system in India, ready to face the future.
Conclusion: Way Ahead for Digital Justice in India
The Bharatiya Sakshya Adhiniyam, 2023, shows the commitment of India to address the challenges thrown up by the digital era. The enactment also has the aim of facilitating a technologically informed legal system that ensures justice is delivered without delays because of outdated ways of handling evidence.
While the basic chapters such as 61, 63, and 65 are highly laudable steps forward, a lot more needs to be achieved than the mere legislative changes contemplated. To paraphrase, training, upgrading infrastructure, standardization, and raising awareness need to be effectively undertaken in a concerted manner.
With the increasing centrality of digital information in the pursuit of the truth, this is the clear next step for India to ensure legal literacy as well as digital literacy, so that justice does not lag behind the technology.
About Author
Bhagvati Vasava is a student at The Maharaja Sayajirao University of Baroda, Gujarat, Faculty of Law, and a dedicated legal researcher and academic with experience working with both international and national research journals, as well as reputed think tanks, including the International Institute of SDGs and Policy Research. She has completed internships across all levels of the judicial hierarchy, including District Courts, High Courts, and the Supreme Court of India, gaining comprehensive practical exposure to the legal system. She holds a strong command over legal academics and research methodology and actively engages in scholarly writing. Her research focuses on critical human rights and contemporary legal issues such as honour killing and ecocide. Through rigorous research and dedication, her work has been published in international-level journals, contributing to legal awareness and policy-oriented discourse and Committed to continuing her journey in the legal field, she strives to use research, writing, and advocacy as tools to promote justice, awareness, and progressive legal reform.
References:
- Bharatiya Sakshya Adhiniyam, 2023 — Full Text (Ministry of Home Affairs)
PDF download of the BSA, 2023 (Ministry of Home Affairs) - Analysis of BSA vs Indian Evidence Act (Brief Comparison)
BPR&D summary comparing BSA with IEA (BPRD) - Detailed Law Firm Analysis: “A Dynamic Shift to the Digital Era”
ELP Law Firm article on BSA’s modernization (Economic Laws Practice)
- Academic Paper on Digital Evidence under BSA
Dr. Anju Sinha’s analysis on electronic evidence framework (veterinaria.org) - SSRN Study: Evidentiary Value of Electronic Records
Dr. John Varghese’s SSRN paper on Section 61 and beyond (SSRN)