Legal Note on Section 63 of the Bharatiya Sakshya Adhiniyam, 2023

Introduction 

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), sets a pivotal standard for the admissibility of electronic records in Indian courts. It addresses the growing reliance on digital technology and ensures that electronic records can serve as credible evidence, provided they adhere to prescribed conditions. By emphasizing the importance of procedural integrity and certification, Section 63 reinforces the evidentiary value of digital documents while safeguarding against manipulation or misuse.

This note examines the provisions of Section 63, its implications, and the practical challenges it poses, particularly in terms of hash value protocols and intermediary processing.

Detailed Analysis of Section 63 

Sub-section (1): Definition and Admissibility of “Computer Output”

Text of Sub-section (1):

Sub-section (1) defines “Computer Output” and establishes its admissibility as evidence without requiring the original record. It includes electronic records printed on paper or stored in optical, magnetic, or semiconductor media. Once the conditions specified in this section are satisfied, such outputs are deemed equivalent to original documents.

Key Observations:

1. Scope of ‘Computer Output’: The term broadly encompasses various forms of electronic records, such as printouts, stored files, and digital copies. This aligns with the provisions of the Information Technology Act, 2000 (ITA 2000), which recognizes computer-processed and printed documents as valid electronic records.

2. Mandatory Admissibility: Courts are bound to admit electronic records produced under this sub-section, provided the certification is compliant. This removes judicial discretion in rejecting compliant evidence but makes the certification process critical.

3. Hash Value Considerations: A hash value—a unique digital fingerprint of a file—plays a critical role in verifying the authenticity and integrity of electronic records. Although Sub-section (1) does not explicitly mention hash values, their use ensures that the data presented matches the original document. For printed outputs, the absence of hash values may lead to disputes. To mitigate this:

• The electronic version of the record should be saved and hashed before printing.
• Alternatively, the hash value of a scanned version of the printed document can be used.

4. Significance in Litigation:

The provision will frequently feature in disputes involving allegations of tampering or procedural lapses. Courts must strike a balance between procedural compliance and the substantive integrity of electronic evidence.

Sub-section (2): Conditions for Admissibility

Text of Sub-section (2):

This provision specifies the conditions under which a “Computer Output” is admissible, focusing on the regularity of the device’s use, the reliability of processes, and the integrity of stored or processed information.

Key Conditions:

• The device must have been regularly used for creating, storing, or processing information.
• The information must have been regularly fed into the device in the ordinary course of activities.
• The device must have been operating properly, or any malfunction must not have materially affected the record’s accuracy.
• The information must be derived from regular data inputs.

Commentary and Interpretation:

1. Inclusion of Communication Devices: By explicitly including “communication devices,” this sub-section brings mobile phones and other portable devices within its ambit, ensuring clarity in legal proceedings.

2. Relevance of Hash Values: While the sub-section focuses on device functionality, hash values are crucial in verifying the integrity of records. A device malfunction might not directly affect the content but could impact its traceability. Hash values provide an additional layer of assurance, confirming that the data remains unaltered.  

3. Scope of Certification: The certification should focus on the device producing the evidence rather than upstream devices or servers. For instance, in generating a bank statement covering ten years, it suffices to certify the device’s functionality at the time of producing the statement, not during the entire decade.

Sub-section (3): Processing Through Intermediaries 

Text of Sub-section (3):

This sub-section addresses situations where electronic records are processed using multiple systems or intermediaries. It deems all such systems as a single unit for admissibility purposes, provided the output meets the conditions of Sub-section (2).

Implications and Challenges: 

1. Role of Intermediaries: When intermediaries process electronic records, ensuring data integrity becomes crucial. Certifications from intermediaries confirming that the evidentiary value of data remains intact may be required.

2. Hash Value Application: Hash values can provide a robust mechanism to verify data integrity across intermediaries. For example:

• Document D1 is hashed before being sent to an intermediary.
• The intermediary processes and converts it to D2, maintaining the original hash as part of metadata.
• The final output, D2, is hashed again and presented with both hash values for verification.

3. Judicial Approach: Courts may require intermediaries to testify or provide certificates. However, this increases the procedural burden on litigants and intermediaries, necessitating streamlined protocols.

Sub-section (4): Certification Requirements 

Text of Sub-section (4):

This sub-section outlines the certification process for admitting electronic records. The certificate must:

• Identify the record and describe how it was produced.
• Provide details of the devices involved.
• Be signed by the person in charge of the computer and an expert.

Analysis: 

1. Dual Certification: The requirement for signatures from both the person in charge of the computer and an expert ensures accountability. Hash values, while not explicitly mentioned, should form part of the certification to validate data integrity.

2. Practical Challenges: When intermediaries are involved, dual certification may become complex. Courts may interpret this requirement flexibly to avoid unnecessary procedural hurdles.

3. Hash Value and Certification: For printed records, the certification should:

• Include the hash value of the electronic record before printing.
• Mention the methodology used to generate the hash value and any subsequent conversions (e.g., from an electronic file to a printed document).

4. Interpretation of ‘An Expert’: The phrase “an expert” allows for flexibility in appointing certifiers, avoiding the bottleneck of relying exclusively on Section 79A experts under ITA 2000.

Sub-section (5): Data Inputs and Outputs 

Text of Sub-section (5):

This sub-section acknowledges that electronic records may be generated using data inputs from other systems. It allows for such records to be admissible, focusing on the final output presented in court rather than upstream processing.

Key Observations:

1. Streamlining Admissibility: By focusing on the final output, the provision eliminates the need for upstream processors to issue certificates, simplifying compliance.

2. Hash Value Usage: Hash values ensure continuity and integrity, even when multiple systems are involved. For instance:

• The original file (D1) is hashed before transmission.
• Any intermediary processing retains this hash as metadata.
• The final document (D2) is hashed anew, and both hashes are presented for verification.

3. Evidentiary Integrity: If Document D1 is converted to D2 by an intermediary, the presenting party must demonstrate, through hash values or certifications, that the conversion did not affect the document’s evidentiary value.

Practical Implications and Recommendations

1. Mandatory Use of Hash Values: Introducing hash values at every stage of document processing ensures data integrity and reduces disputes. Standardized tools for hash generation should be used, and courts should adopt consistent protocols for their acceptance.

2. Certification Clarity: Certification templates should explicitly include details about hash values, devices, and processing methods. Standardized formats can streamline judicial scrutiny.

3. Judicial Flexibility: Courts must adopt a pragmatic approach to interpreting Section 63, particularly in cases involving intermediaries. While ensuring evidentiary integrity, they should minimize procedural burdens. 

4. Legislative Amendments: Future amendments could explicitly incorporate hash values into the text of Section 63, providing statutory recognition for this vital aspect of data integrity.

Conclusion

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, is a comprehensive framework for integrating electronic records into legal proceedings. By addressing admissibility, conditions for acceptance, and intermediary processing, it ensures that digital evidence can be relied upon without compromising its integrity.

However, practical challenges remain, particularly regarding hash value protocols and intermediary certifications. Stakeholders must prioritize procedural compliance and leverage technology to streamline processes. As technology evolves, Section 63 will undoubtedly shape the future of digital evidence in Indian jurisprudence.

Contributed by – Smita Paliwal

King Stubb & Kasiva,
Advocates & Attorneys

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