Exploring the Impact of the Bharatiya Sakshya Bill, 2023 on Admissibility of Electronic Evidence

Among the three bills presented in the Lok Sabha namely, the Bharatiya Nyaya Sanhita Bill, the Bharatiya Nagarik Suraksha Sanhita Bill, and the Bharatiya Sakshya Bill, the Bharatiya Sakshya Bill, 2023 (hereinreferred to as the “BSB“) emerged as a significant legislative proposal aimed at replacing the antiquated Indian Evidence Act of 1872 (hereinafter referred to as the “Evidence Act“). The BSB introduces a notable alteration in the admissibility of electronic evidence within the judicial system by encompassing “electronic and digital records” under the definition of “Document”¹. This broadened definition now incorporates a diverse array of electronic records, such as emails, server logs, files stored on computers, laptops, or smartphones, text messages, website content, location data, voice mails, and messages stored on digital devices. While this change may appear as a progressive leap in an era dominated by information technology, the differing provisions of the BSB regarding the admissibility of electronic evidence has unveiled several ambiguities and potential adverse consequences.

Section 65B of the Evidence Act

The interpretation of Section 65B of the Evidence Act, dealing with electronic evidence, has witnessed a long and polarizing evolution in judicial decisions. In the case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru², the Supreme Court ruled that electronic evidence may be admissible before a court through the provisions on documentary evidence outlined in Sections 59 to 65 of the Evidence Act. This judgment effectively created a loophole for the admissibility of electronic evidence under Section 65(d) of the Evidence Act, even without satisfying the prerequisites of Section 65B. Section 65(d) allows for the admission of secondary evidence when the original evidence is inherently immovable, such as in the case of data stored on servers.

However, the case of Anvar P.V. v. P.K. Basheer³ marked a turning point when the Apex Court overruled the Navjot Sandhu decision. The Court declared that the phrase “notwithstanding anything contained in this Act” in Section 65B negated the applicability of any other sections, asserting that the procedural steps laid out in Section 65B were mandatory, even for the production of electronic evidence⁴. This precedent was reinforced by the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal⁵.

As a result, the current legal position regarding the admissibility of electronic evidence under the Evidence Act is that the specific conditions and obligations laid out in Section 65B of the Evidence Act need to be fulfilled for electronic records to be considered as documents for the purpose of admissibility before a court. If these conditions are satisfied, the information becomes admissible in any legal proceedings without the need to produce the original. Moreover, for a statement to be admissible under Section 65B(4) of the Evidence Act, a certificate identifying the electronic information and specifying the device used in its production is required to be produced signed by a person occupying a responsible official position in relation to the operation of the relevant device.

The BSB on Electronic Evidence

Clause 61 of the BSB unequivocally states, “Nothing in the Andhiniyam shall apply to deny the admissibility of an electronic or digital record in evidence on the grounds of its digital nature. Such records shall possess the same legal validity and enforceability as traditional paper records.” Furthermore, Clause 62 clarifies that the contents of electronic records may be substantiated under the provisions of Clause 59, which pertain to the procedure for the admission of documentary evidence. Thus, Clauses 61 and 62 align with the Supreme Court’s stance in the Navjot Sandhu case. The use of the word “nothing” in Clause 61 implies that no provision in the BSB can hinder the admission of electronic evidence, emphasizing that such information must be treated on par with any other documentary evidence.

On the contrary, Clause 63 of the BSB sets forth the same conditions and obligations as prescribed in Section 65(2) of the Evidence Act for any information stored in electronic form to be admissible in court. This mirrors the approach taken in the Arjun Panditrao case, which overturned the Navjot Sandhu precedent. Remarkably, similar to the Evidence Act, Clause 63 of the BSB also begins with a non-obstante clause, thereby overriding the previous Clauses 61 and 62 of the BSB.

Hence, while the definition of “Document” and Clauses 61 and 62 of the BSB may suggest a more convenient and efficient process for presenting electronic evidence before a tribunal, Clause 63 effectively nullifies this reform.

Conclusion

The current stance of the BSB regarding the admissibility of electronic records as primary evidence remains ambiguous. In contrast to the Evidence Act, where Section 65B’s non-obstante clause unequivocally superseded all other provisions regarding the admissibility of electronic evidence, the BSB introduces uncertainty by including non-obstante clauses in both Clauses 61 and 63, leaving the issue of electronic evidence production open and unresolved.

Ultimately, the onus will be on the legislators to address this disparity regarding admissibility of electronic evidence under the new BSB. It will certainly be interesting to see how the legislators clarify this discrepancy and whether they affirm the principle laid down in Arjun Panditrao or go back to the earlier precedent of Navjot Sandhu.

­­­¹ Clause 2(c) of the Bharatiya Sakshya Bill, 2023.

² (2005) 11 SCC 600.

³ (2014) 10 SCC 473.

⁴ (2014) 10 SCC 473.

⁵ (2020) 7 SCC 1.