I. From Navjot Sandhu to Section 63 BSA, 2023: Evolution of Electronic Evidence Law

The law governing electronic evidence in India has evolved through judicial correction rather than clear legislative design, particularly under the framework now consolidated in the Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023). When Sections 65A and 65B were introduced into the Evidence Act by the Information Technology Act, 2000, courts initially struggled to apply traditional evidentiary principles to digital records, which do not fit the concept of a single “original.”

In State (NCT of Delhi) v. Navjot Sandhu, the Supreme Court treated Section 65B as optional, allowing electronic evidence to be proved through general secondary evidence rules. This approach overlooked the unique nature of digital data and created doctrinal inconsistency.

The position was decisively corrected in Anvar P.V. v. P.K. Basheer, where the Court held that Section 65B is a complete code and that a certificate is mandatory for admissibility of secondary electronic records. This marked a shift towards a stricter and more technically grounded framework.

After a brief phase of conflicting rulings, clarity was restored in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, which reaffirmed the mandatory nature of the certificate, recognised limited procedural flexibility, and clarified key aspects such as delayed filing and court-assisted procurement.

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 builds on this settled position. It largely re-enacts the Section 65B framework, preserving the conditions for admissibility and the centrality of the certificate, while introducing a significant change through a dual-signature requirement.

Thus, the evolution from Navjot Sandhu to Section 63 reflects a transition from uncertainty to a structured regime, where electronic evidence admissibility is governed by a clear but technically demanding legal standard.

II. Mandatory Certificate Doctrine under Section 63(4): Binding Position

Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 preserves the core framework of Section 65B, meaning the law laid down in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal continues to govern electronic evidence admissibility in India. The certificate requirement remains a condition precedent to admissibility, not merely a matter of evidentiary weight.

This position originates from Anvar P.V. v. P.K. Basheer, where the Supreme Court held that the statutory framework for electronic records is a complete code, excluding the application of general secondary evidence rules. Section 63 adopts the same structure, making compliance with its certificate requirement the only legally recognised method for proving secondary electronic records.

However, this requirement operates within defined limits. A certificate is not required where the original electronic device is produced before the court, as such evidence is treated as primary and falls outside the scope of Section 63. Similarly, where a party is genuinely unable to obtain the certificate, courts may intervene to summon the appropriate certifying authority, provided sufficient effort has been demonstrated.

The distinction between defective and absent certificates also remains important. Minor defects may be cured through subsequent compliance, but failure to meet essential requirements—particularly under the revised BSA framework, including the expert component—can render the evidence inadmissible until corrected.

Overall, Section 63(4) reinforces a strict but structured rule: electronic evidence must satisfy statutory certification requirements to be admissible, subject only to limited and controlled procedural flexibility.

III. Dual-Signature Certificate under Section 63 BSA: Expert Requirement Explained

A key development in electronic evidence under the Bharatiya Sakshya Adhiniyam, 2023 is the introduction of a dual-signature certificate under Section 63. Unlike the earlier Section 65B framework, which required certification only by a person responsible for the device, the new Schedule mandates two signatories: the device operator (Part A) and an expert (Part B). This change directly impacts how electronic evidence admissibility in India is determined.

The “expert” requirement is best understood in light of the Information Technology Act, 2000, particularly the mechanism for notified Examiners of Electronic Evidence under Section 79A. This means certification now goes beyond procedural compliance and includes technical validation of electronic records, such as data integrity and authenticity checks.

This structural shift significantly raises the standard for Section 63 certificate requirements. The certificate now performs a dual function: it confirms the source and manner of production of the electronic record while also ensuring its integrity through forensic verification. As a result, reliance solely on an investigating officer or device operator—common under the earlier regime—is no longer sufficient.

The absence of the expert signature creates a critical issue in electronic evidence admissibility. A strict interpretation would render the certificate incomplete and the evidence inadmissible, consistent with the principles laid down in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal. However, given the Court’s acceptance of delayed certificate filing, courts may allow the defect to be cured if justified. At the same time, the requirement of separate signatories is substantive. If the same individual performs both roles, it may be challenged for defeating the purpose of independent verification.

Overall, the dual-signature model strengthens the reliability of electronic evidence under Section 63 BSA, but it also increases the compliance burden, especially in cases involving digital forensics or large-scale data.

IV. Stage of Production, Curative Powers, and Procedure under Section 63 BSA

A recurring issue in electronic evidence under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 is the stage at which the certificate must be produced. The statute, like its predecessor, is silent on timing. This silence has been filled by judicial interpretation, most authoritatively in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal.

The position is that the Section 63 certificate is required at the stage of admissibility, not necessarily at the time of filing. In practical terms, this means the certificate must exist when the electronic record is formally sought to be exhibited in evidence. However, it need not accompany the document at the initial filing stage. Courts have recognised that insisting on filing-stage compliance would unnecessarily exclude otherwise reliable electronic evidence in India.

At the same time, the requirement is not open-ended. The certificate must be produced “as soon as possible”, and any delay must be justified. Trial courts retain discretion to permit late filing of the Section 63 certificate, particularly where the delay is bona fide and does not prejudice the opposing party. This reflects a balance between procedural discipline and substantive justice.

Where the party is unable to obtain the certificate, the correct course is not to bypass the requirement but to seek the court’s assistance. Courts have the power to summon the person responsible for issuing the certificate, provided the party demonstrates genuine efforts to procure it. Mere assertion of difficulty is insufficient; the inability must be substantiated.

An equally important procedural rule concerns objections. In Sonu @ Amar v. State of Haryana, the Supreme Court held that objections to the mode of proof—such as absence or defect in a certificate—must be raised at the earliest stage. If an electronic record is admitted without objection, the opposing party may lose the right to challenge its admissibility later. This principle continues to apply to Section 63 certificate compliance.

The interaction between these doctrines creates a clear procedural framework. The party relying on electronic evidence is given flexibility to comply with certificate requirements, but the opposing party is expected to act promptly in raising objections. This ensures that defects can be cured at the trial stage rather than becoming grounds for appeal.

Unresolved questions remain, particularly under the BSA framework. One such issue is whether a missing expert signature under the Schedule can be supplied at a later stage as a curative step. While existing precedent suggests flexibility, the precise contours of such curative powers under Section 63 BSA are yet to be definitively settled.

In effect, the procedural law governing electronic evidence admissibility in India under Section 63 is flexible but disciplined: compliance is mandatory, timing is adaptable, and objections must be timely.

V. Section 63 BSA: Cloud, Third-Party & Cross-Border Evidence

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 faces practical limits when applied to modern cloud-based and third-party electronic evidence. The provision assumes a single identifiable device, whereas digital data today is often stored across platforms and jurisdictions.

In practice, courts have accepted certification based on the user’s device (such as phones or laptops), as it reflects the record as accessed by the user. However, this only establishes what is visible on that device and does not fully address the integrity of the data across the transmission chain.

Where data is stored with service providers or cloud systems, obtaining a compliant certificate becomes more complex. Certification from the service provider is more reliable but often difficult, especially when the entity is located outside India.

The difficulty is most evident in cross-border electronic evidence, where foreign platforms are not legally bound to issue certificates under Indian law. In such cases, strict compliance with Section 63 may not always be possible.

Courts are therefore likely to adopt a practical approach, allowing flexibility where genuine impossibility is shown, consistent with the principles in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal. The expert certification requirement under the BSA may also assist, as a notified expert can verify the integrity of the data as produced, even if the original source cannot certify it.

Conclusion

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 largely continues the framework established under Section 65B, with the principles laid down in Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal remaining central to electronic evidence admissibility in India. The certificate requirement is still mandatory, though procedural flexibility exists in its timing and production.

The key shift lies in the dual-signature certificate, which strengthens authenticity by introducing expert validation but also increases compliance requirements. At the same time, practical challenges—especially involving cloud data and cross-border platforms—mean that courts will continue to play a crucial role in ensuring that strict technical rules do not defeat substantive justice.

In essence, Section 63 represents continuity with controlled evolution: the law remains strict on admissibility, but adaptable in application to modern digital realities.

FAQs on Electronic Evidence under Section 63 BSA

1. Is a certificate mandatory under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023?
Yes. A certificate is mandatory for admissibility of secondary electronic evidence, as reaffirmed in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal.

2. When is a certificate not required?
A certificate is not required when the original device itself is produced before the court, as the evidence is treated as primary.

3. Can the Section 63 certificate be filed later?
Yes. Courts allow delayed filing if done as soon as possible and with valid justification.

4. What is new in Section 63 compared to Section 65B?
The key change is the dual-signature requirement, including certification by an expert in addition to the device operator.

5. Who qualifies as an “expert” under Section 63?
An expert is generally understood as a notified Examiner under the Information Technology Act, 2000 framework.

6. What happens if the certificate is defective or incomplete?
Minor defects may be cured, but absence of essential requirements—such as proper certification—can make the evidence inadmissible until corrected.

7. Can electronic evidence from WhatsApp or email be admitted?
Yes, if it complies with Section 63 requirements. In practice, courts often accept certification based on the user’s device, subject to challenge.

8. What if the certificate cannot be obtained?
The party must show genuine effort and may request the court to summon the person responsible for issuing the certificate.

9. How are foreign or cloud-based electronic records treated?
Courts may adopt a practical approach where strict compliance is not possible, ensuring relevant evidence is not excluded solely due to technical barriers.

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