Electronic Evidence under Section 63 BSA 2023: The Certificate after Arjun Panditrao, a Comparative Dissertation

Under Section 65B of the Indian Evidence Act, 1872, Anvar P.V. v. P.K. Basheer (2014) held that a certificate under Section 65B(4) is mandatory for secondary electronic evidence; Shafhi Mohammad (2018) relaxed it where a party could not access the device; and a three-judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) restored the certificate as a condition precedent, overruled Shafhi Mohammad, and clarified when a certificate is unnecessary.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA), in force from 1 July 2024, replaced the Evidence Act. Section 63 BSA carries forward the certificate model but adds a prescribed form in the Schedule with Part A (by the party) and Part B (by an expert), including the hash value of the record. In May 2026, the Supreme Court in Pune Bar Association v. Union of India upheld Section 63(4), holding that hash disclosure and expert certification have a rational nexus with authenticity.

This LLM dissertation asks whether Section 63 resolves the problems that Arjun Panditrao identified or creates new ones: who qualifies as an "expert", what happens when no expert or device is available, and whether the primary/secondary distinction still works. It combines doctrinal analysis, a comparative study of the UK, US and Singapore, and a coded content analysis of High Court decisions applying Section 63. It is written for the 1-year LLM dissertation (GEN 110) under the UGC framework.

Abstract

The dissertation examines the admissibility of electronic evidence under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, against the background of Section 65B of the Indian Evidence Act and the Supreme Court's decision in Arjun Panditrao Khotkar (2020). It analyses the two-part certificate in the Schedule, the role of hash values and experts, and the interaction of Sections 57, 61, 62 and 63. A comparative study of the United Kingdom's presumption-based approach, the United States' authentication and self-authentication rules, and Singapore's statutory presumptions informs the evaluation. A content analysis of reported High Court decisions since July 2024 tests how courts apply the new regime in practice. The dissertation proposes interpretive guidance and possible rule-level reforms.

Introduction and background

Electronic records now dominate both civil and criminal litigation: call detail records, CCTV footage, WhatsApp messages, emails, bank logs and cloud documents. Indian law chose a certificate-based route to admissibility in 2000. Courts struggled with mandatory certification when the party relying on evidence did not control the device, with the timing of certificates, and with the distinction between original and copies. The BSA had an opportunity to rethink the approach and chose to strengthen certification.

Literature review and gap

Commentary on Section 65B is extensive, and early commentary on the BSA describes the new Schedule. What is missing is (a) a systematic analysis of how Section 63 relates to Arjun Panditrao's holdings point by point, (b) a comparison with jurisdictions that moved away from certification, and (c) empirical evidence of how High Courts are applying Section 63 after 2024, particularly Part B. The 2026 Supreme Court ruling settles validity but leaves interpretive questions open.

Research questions

1. To what extent does Section 63 BSA codify, modify or depart from the position in Arjun Panditrao?
2. Is the two-part certificate, especially the expert requirement in Part B, workable and consistent with fair-trial guarantees?
3. How have High Courts applied Section 63 since July 2024?
4. What can India learn from the UK, US and Singapore approaches?

Hypothesis

Section 63 retains a certificate-centred admissibility model and adds an expert layer that improves integrity checks but increases cost and delay; without clear rules on who is an expert and on curing defects, the uncertainty that followed Section 65B will persist.

Feasibility

Primary materials are on India Code and court websites; databases are available in the university library; the case-law study is limited to reported decisions and manageable within one semester.

Indian courts spent years resolving whether and when a Section 65B certificate was necessary, with conflicting decisions until Arjun Panditrao in 2020. The BSA replaced Section 65B with Section 63 and a prescribed two-part certificate that requires a party's declaration and an expert's certification with hash values. The Supreme Court has upheld the provision, but practical questions remain: who counts as an expert, whether Part B is needed for every electronic record, what happens when the record is produced from a device the party does not control, whether defects can be cured late in a trial, and how the primary-evidence explanations in Section 57 interact with Section 63. Litigants with fewer resources may find expert certification costly. The dissertation investigates whether Section 63 BSA provides a clear, fair and workable framework for the admissibility of electronic evidence, measured against Arjun Panditrao, comparative models and actual High Court practice.

The dissertation covers admissibility and proof of electronic records under the BSA in civil and criminal proceedings, with reference to the Information Technology Act, 2000 (including Section 79A on Examiners of Electronic Evidence) and the Bharatiya Nagarik Suraksha Sanhita, 2023 where relevant. It does not cover substantive cyber offences, data protection compliance or forensic techniques in technical depth. The case-law study is limited to reported High Court decisions available on major databases up to the cut-off date.

Research design

Doctrinal and comparative legal research, supplemented by a small-scale empirical content analysis of judgments.

Doctrinal component

• Statutes: Indian Evidence Act, 1872 (Sections 3, 59, 62–65, 65A, 65B); Bharatiya Sakshya Adhiniyam, 2023 (Sections 2(1)(d), 57 with explanations, 61, 62, 63 and the Schedule); Information Technology Act, 2000 (Sections 2(1)(t), 4, 79A).
• Leading cases: State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600; Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473; Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801; State of Karnataka v. M.R. Hiremath (2019) 7 SCC 515; Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1; Pune Bar Association v. Union of India (Supreme Court, 22 May 2026).
• Method: close reading, holding-by-holding mapping table (Arjun Panditrao holding → BSA provision → retained / modified / unclear).

Comparative component

Functional comparison on four questions: who bears the burden of showing reliability, what document or testimony is required, how integrity (hashing) is handled, and how defects are cured.

Empirical component (content analysis)

• Population: reported High Court decisions from 1 July 2024 to the cut-off date that cite Section 63 BSA.
• Search: SCC Online and Manupatra with terms "Section 63" AND "Sakshya"; screen for substantive discussion; target about 50–80 decisions.
• Coding sheet: court, date, civil/criminal, stage (bail, framing of charge, trial, appeal), type of record (CDR, CCTV, chat, email, document), whether Part A and Part B were produced, whether hash value was disclosed, how "expert" was understood, whether a defect was allowed to be cured, outcome on admissibility.
• Reliability: double-code 20% of decisions after two weeks; report percentage agreement.
• Analysis: frequencies and cross-tabulations in Excel; illustrative case discussion.

Timeline (24 weeks)