1. Introduction

The nature of evidence has undergone a fundamental transformation in the digital age. Contemporary disputes—civil, criminal, commercial, and constitutional—are increasingly determined by electronic footprints rather than physical documents. Emails replace letters, WhatsApp chats replace oral conversations, CCTV replaces eyewitnesses, and cloud servers replace paper records.

Recognising this shift, the Bharatiya Sakshya Adhiniyam, 2023 (BSA) has comprehensively incorporated electronic and digital records into the law of evidence, moving beyond the colonial framework of the Indian Evidence Act, 1872. Digital documents are no longer treated as an exception but as a mainstream category of documentary evidence, subject to statutory safeguards.

2. Concept of Digital / Electronic Evidence

2.1 Meaning

Digital or electronic evidence refers to any information that:

• Is created, stored, processed, or transmitted
• Through electronic, magnetic, optical, or digital means
• And is capable of being produced before a court

Such evidence exists intangible form, making its authenticity and integrity central concerns of evidentiary law.

Definition of Digital Documents

Digital documents are records or information that are created, stored, processed, transmitted, or received in electronic or digital form, and are capable of being retrieved, reproduced, and presented before a court or authority for the purpose of proving or disproving a fact in issue.

Under the Bharatiya Sakshya Adhiniyam, 2023, digital documents are legally recognised as “documents” and “documentary evidence”, and include any information expressed or described in electronic form, intended to record or communicate information.

Statutory Definition (Bharatiya Sakshya Adhiniyam, 2023)

• Section 2(1)(d) – Document
  A document includes any matter expressed or described upon any substance, including electronic or digital form, intended to be used for recording information.
• Section 2(1)(e) – Evidence
  Evidence includes documentary evidence, including electronic and digital records.

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Examples of Digital Documents

• Emails and email attachments
• WhatsApp, SMS, Telegram messages
• Audio and video recordings
• CCTV footage
• Call Detail Records (CDRs)
• Digital photographs and screenshots
• E-contracts and digitally signed agreements
• Cloud-stored files and database records

Key Characteristics of Digital Documents

• Exist in intangible electronic form
• Easily copied, altered, or transmitted
• Require special rules for authentication and admissibility
• Admissible in evidence subject to statutory safeguards

3. Statutory Recognition under Bharatiya Sakshya Adhiniyam, 2023

3.1 Digital Evidence Included in “Evidence” – Section 2(1)(e)

Section 2(1)(e) of the BSA defines “evidence” to include:

1. Oral evidence, and
2. Documentary evidence, including electronic and digital records

This provision gives explicit statutory legitimacy to electronic evidence, eliminating earlier ambiguities regarding its evidentiary status.

📌 Impact:
Digital documents now stand on the same legal footing as paper documents, subject to proof requirements.

3.2 Electronic Records as “Documents” – Section 2(1)(d)

The definition of “document” includes any matter:

• Expressed or described
• Upon any substance
• Including electronic or digital form

Thus, a WhatsApp chat, an email, or a PDF file is legally a document under BSA.

4. Classification of Evidence in Relation to Digital Documents

4.1 Primary Evidence – Section 57 BSA

Primary evidence means the document itself produced for inspection.

In digital context, primary evidence includes:

• The original electronic file
• The original storage device (mobile phone, laptop, server)

📌 Practical difficulty:
Due to replication, storage, and cloud architecture, producing the “original” electronic record is often impractical.

4.2 Secondary Evidence – Section 58 BSA

Secondary evidence includes:

• Printouts of electronic records
• Screenshots
• Copies stored on CDs, DVDs, pen drives

Most electronic evidence produced in court is secondary evidence, requiring compliance with special statutory conditions.

5. Admissibility of Digital Evidence – Section 61 BSA

5.1 Section 61: Core Provision

Section 61 of the Bharatiya Sakshya Adhiniyam is the cornerstone provision governing electronic evidence. It corresponds to former Section 65B of the Indian Evidence Act.

It provides that:

• Any information contained in an electronic record
• Which is printed, stored, recorded, or copied
• Shall be deemed to be a document
• If conditions mentioned in the section are satisfied

5.2 Mandatory Certificate Requirement – Section 61(4)

For admissibility, a certificate must accompany the electronic evidence.

The certificate must specify:

1. Identification of the electronic record
2. Manner in which it was produced
3. Details of the device involved
4. Assurance of proper functioning of the device
5. Signature of a responsible person

📌 Legal position:
Without this certificate, secondary electronic evidence is inadmissible.

5.3 Exception: Production of Original Device

If the original device itself is produced before the court:

• Certificate may not be required
• The electronic record becomes primary evidence

This exception is narrow and strictly interpreted.

6. Presumptions Relating to Digital Documents

Presumptions reduce the burden of proof but are rebuttable.

6.1 Presumption as to Electronic Agreements – Section 85 BSA

The court may presume that:

• An electronic agreement was concluded by parties
• Through electronic means

📌 Example:
A digitally signed online contract may be presumed valid unless disproved.

6.2 Presumption as to Electronic Messages – Section 86 BSA

The court may presume:

• That an electronic message was sent by the stated sender
• Through the stated system

However:

• Truth of contents is not presumed

6.3 Presumption as to Digital Signatures – Section 87 BSA

Digital signatures are presumed to be:

• Genuine
• Affixed with intent

unless evidence proves otherwise.

7. Evidentiary Value of Digital Documents

Digital evidence is not inferior evidence. Its probative value depends on:

• Compliance with Section 61
• Integrity of data
• Chain of custody
• Forensic reliability
• Absence of tampering

Courts apply heightened scrutiny due to susceptibility to manipulation.

8. Landmark Judicial Pronouncements

8.1 Anvar P.V. v. P.K. Basheer (2014)

Held:

• Electronic evidence is admissible only if statutory conditions are fulfilled
• Certificate is mandatory
• Oral evidence cannot replace certification

📌 Principle:
Procedural compliance is indispensable for electronic evidence.

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8.2 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

Held:

• Certificate under Section 65B (now Section 61 BSA) is mandatory
• Can be filed later if justice demands
• Shafhi Mohammad diluted view overruled

📌 Continuing relevance:
This judgment governs interpretation of Section 61 BSA.

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8.3 Tomaso Bruno v. State of Uttar Pradesh (2015)

Held:

• Failure to produce best available electronic evidence may lead to adverse inference

📌 Significance:
Encouraged courts to rely on technological evidence.

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8.4 State (NCT of Delhi) v. Navjot Sandhu

Earlier relaxed approach rejected; strict compliance reinstated later.

9. Digital Evidence in Civil and Criminal Proceedings

9.1 Criminal Trials

Used to prove:

• Presence at crime scene (CCTV, GPS)
• Conspiracy (chat records)
• Intention and motive

9.2 Civil Proceedings

Used to establish:

• Contracts and obligations
• Admissions
• Breach of agreement
• Financial transactions

11. Conclusion

Under the Bharatiya Sakshya Adhiniyam, 2023, digital documents are fully admissible and legally recognised evidence, capable of decisively influencing judicial outcomes. However, admissibility is conditional, not automatic. Strict adherence to Section 61 certification, judicial presumptions, and forensic integrity ensures that technology serves justice rather than undermines it.

Digital evidence thus represents the future of adjudication, but one anchored firmly in procedural discipline and constitutional fairness.