Bharatiya Sakshya Adhiniyam, admissibility of electronic records and the Schedule certificate

Section 61 provides that nothing in the Adhiniyam applies to deny the admissibility of an electronic or digital record in evidence on the ground that it is an electronic or digital record, and that such a record has, subject to section 63, the same legal effect, validity and enforceability as other documents. Section 62 provides that the contents of electronic records may be proved in accordance with the provisions of section 63.

Section 63(1) deems information contained in an electronic record that is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device, or otherwise stored, recorded or copied in any electronic form, to be also a document, called the computer output, if the conditions mentioned in section 63 are satisfied in relation to the information and the computer in question.

A computer output that meets those conditions is admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated in it of which direct evidence would be admissible.

The conditions in section 63(2) are that the computer output was produced during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of an activity regularly carried on over that period by the person having lawful control over its use, that information of that kind was regularly fed into it in the ordinary course of those activities, that throughout the material part of that period it was operating properly or, if not, that any period of improper operation or of being out of operation did not affect the electronic record or the accuracy of its contents, and that the information in the electronic record reproduces or is derived from information so fed into it in the ordinary course of those activities.

Under section 63(3), where the function of creating, storing or processing that information over the period was regularly performed by means of one or more computers or communication devices, in standalone mode, on a computer system, on a computer network, on a computer resource enabling information creation or providing information processing and storage, or through an intermediary, all of them are treated as a single computer or communication device.

Under section 63(4), in any proceeding where a statement is to be given in evidence by virtue of section 63, a certificate must be submitted along with the electronic record at each instance where it is submitted for admission, identifying the electronic record and describing the manner in which it was produced, giving particulars of any device involved in its production, and dealing with the matters to which the section 63(2) conditions relate.

A certificate that purports to be signed by a person in charge of the computer or communication device or the management of the relevant activities, whichever is appropriate, and an expert is evidence of any matter stated in it, and it is sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.

The Schedule sets out that certificate in two parts, Part A to be filled by the party and Part B to be filled by the expert. Part A states that the digital device or the digital record source was under lawful control for regularly creating, storing or processing information, was working properly and was regularly fed the relevant information, and is owned, maintained, managed or operated by the party.

Part A states the hash value of the electronic or digital record and the algorithm, marked as SHA1, SHA256, MD5 or Other as a legally acceptable standard, with the hash report to be enclosed with the certificate, and is signed with name and signature. Part B, to be filled by the expert, states the device or digital record source from which the produced electronic record or output was obtained.

Part B states the hash value of the electronic or digital record and the algorithm in the same terms, with the hash report to be enclosed with the certificate, and is signed with name, designation and signature.

Section 63(5) provides that information is taken to be supplied to a computer or communication device if it is supplied in any appropriate form, directly or with or without human intervention by means of any appropriate equipment, and that a computer output is taken to have been produced by it whether directly or with or without human intervention. Section 1(3) leaves commencement to a date the Central Government appoints by notification in the Official Gazette.

The Central Government appointed the 1st day of July, 2024 as the date on which the provisions of the Adhiniyam come into force, by a notification dated 23-2-2024. Section 170 repeals the Indian Evidence Act, 1872, and an application, trial, inquiry, investigation, proceeding or appeal pending immediately before commencement is dealt with under the Indian Evidence Act, 1872 as in force immediately before commencement.