In short: The Bharatiya Sakshya Adhiniyam electronic evidence framework, in force from 1 July 2024, replaces the Indian Evidence Act 1872. It broadens what counts as an electronic record, simplifies the certificate requirement for admissibility, and aligns the rules with how courts, businesses, and individuals actually communicate today.
Key points
- The Bharatiya Sakshya Adhiniyam 2023 (BSA) replaced the Indian Evidence Act 1872 on 1 July 2024 as part of a three-law criminal justice overhaul alongside the BNS and BNSS.
- Electronic records — including emails, WhatsApp messages, server logs, and digital documents — are expressly recognised as primary evidence in certain circumstances, not merely secondary copies.
- The old Section 65B certificate procedure (which courts had interpreted inconsistently) is replaced by a clearer certification requirement under the BSA, though a certificate is still needed to authenticate most electronic records.
- The definition of “electronic record” now explicitly covers data stored on servers, cloud systems, and devices outside India, which was a grey area under the 1872 Act.
- Courts may call an expert examiner to verify electronic records, and the party relying on them must be prepared to explain the process by which the record was created and stored.
- The BSA works alongside the Information Technology Act 2000 and, going forward, the Digital Personal Data Protection Act 2023 and its 2025 Rules — practitioners must read all three together.
Why did India need a new evidence law?
The Indian Evidence Act 1872 was drafted for a paper-based world. By the time smartphones became universal, courts were wrestling with rules written for letters, ledgers, and oral testimony.
Section 65B of the 1872 Act tried to plug the gap for electronic records, but litigation over what the certificate must say, who must sign it, and when it was mandatory produced a long line of conflicting decisions. The BSA attempts to resolve that uncertainty.
What is the Bharatiya Sakshya Adhiniyam 2023?
The BSA is one of three laws enacted in 2023 to replace colonial-era codes. The Indian Penal Code 1860 became the Bharatiya Nyaya Sanhita (BNS), the Code of Criminal Procedure 1973 became the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Indian Evidence Act 1872 became the BSA.
All three came into force on 1 July 2024. For students and practitioners, the practical starting point is the bare Act available on India Code (link in Primary Sources below).
How does the BSA define an electronic record?
The BSA adopts the definition from the Information Technology Act 2000: data, record, or information generated, sent, received, or stored in electronic form. The BSA explicitly extends this to records on cloud servers and devices located abroad — which matters enormously for cross-border business disputes and cybercrime cases.
Everyday examples include emails, instant messages (WhatsApp, Signal, Telegram), CCTV footage, GPS logs, banking transaction data, and digitally signed contracts.
How does Bharatiya Sakshya Adhiniyam electronic evidence get admitted in court?
This is the question most practitioners care about. Admissibility turns on two things: whether the record is relevant, and whether it is authentic.
When is an electronic record treated as primary evidence?
Under the BSA, an electronic record stored in a device and produced directly from that device in its original form can be treated as primary evidence. Think of playing a voice recording directly from the phone on which it was made.
A printout or copy of an electronic record, however, is secondary evidence and requires the certificate procedure described below.
The certificate requirement — what changed?
Under the old Section 65B of the 1872 Act, courts debated endlessly whether the certificate was a condition of admissibility or merely went to weight, and who was qualified to give it. The Supreme Court addressed this in several decisions, creating some clarity — but trial courts continued to face difficulties.
The BSA retains the requirement for a certificate when a party relies on an electronic record as secondary evidence. The certificate must identify the electronic record, describe the device or process that produced it, and be signed by a responsible official who managed or operated the relevant system.
The key practical improvement is that the BSA states the certification conditions more precisely, reducing the room for satellite litigation about whether the certificate is technically compliant.
| Aspect | Indian Evidence Act 1872 (old) | Bharatiya Sakshya Adhiniyam 2023 (new) |
|---|---|---|
| Governing provision | Section 65B | Corresponding provision in BSA (verify section number in the bare Act) |
| Definition of electronic record | Based on IT Act 2000; cloud/foreign servers unclear | Explicitly includes cloud storage and servers outside India |
| Primary vs secondary evidence | Electronic records generally treated as secondary | Direct device output can be primary evidence |
| Certificate requirement | Required; conditions debated by courts | Required; conditions stated more precisely in the Act |
| Who signs the certificate | Person in “responsible official position” — scope debated | Person who managed or operated the relevant system |
| Expert examination | Court could call expert; practice inconsistent | Court may direct expert examination; process clarified |
What does this mean for lawyers in practice?
If you are filing or opposing a case that relies on electronic records, here are the practical steps to keep in mind.
Preserve the original device or access credentials. Because direct device output can now be treated as primary evidence, preserving the original is more valuable than ever. Do not rely solely on screenshots.
Obtain the certificate early. Waiting until trial to secure the certificate from a responsible official — especially when the record is on a third-party server — creates real risk. Approach the custodian before filing.
Read the BSA alongside the IT Act 2000. Authenticity of electronic records under the BSA interacts with provisions on digital signatures and electronic authentication under the IT Act. Neither statute operates in isolation.
Watch the DPDP Act 2023 and 2025 Rules. When you seek electronic records held by a data fiduciary (a company storing personal data), data protection obligations may affect what they can produce and how quickly. The Rules notified in 2025 flesh out the compliance framework — a factor in disclosure and discovery strategy going forward.
For broader guidance on how Indian law protects individuals in everyday legal situations, see the Law for You guides on The Courtroom — they cover topics from consumer rights to digital disputes in plain language.
What about civil cases?
The BSA applies to both civil and criminal proceedings. In commercial litigation, electronic contracts, emails confirming terms, and digital payment records are routinely relied upon. The certification requirement applies equally — commercial litigants cannot sidestep it by framing their suit as a civil matter.
Common mistakes to avoid
Relying on a screenshot without tracing it to the original source is the most common error. A screenshot is secondary evidence at best; without a proper certificate, it may be excluded entirely.
Assuming that WhatsApp messages automatically carry evidential weight is another mistake. They are electronic records like any other and must satisfy the same admissibility conditions.
Finally, do not confuse authenticity with relevance. An electronically authenticated record still has to be relevant to the facts in issue — authentication alone does not make evidence useful.
Frequently asked questions
Is a WhatsApp chat admissible as evidence under the Bharatiya Sakshya Adhiniyam?
Yes, a WhatsApp chat is an electronic record and can be admitted under the BSA, but it must satisfy the authentication requirements. If you are producing a printout or export of the chat (secondary evidence), you need a certificate from a responsible official or from the person who controlled the device. Producing the original device and demonstrating the messages directly from it gives the record stronger evidentiary standing as primary evidence. Courts will also consider whether the record has been tampered with, so preserve metadata where possible.
What is the difference between primary and secondary electronic evidence under the BSA?
Primary evidence is the original record itself — for example, data read directly from the device on which it was created or stored. Secondary evidence is a copy, printout, or export. The BSA now expressly allows electronic records produced directly from the source device to be treated as primary evidence. Secondary electronic evidence requires a certificate meeting the conditions in the Act. The distinction matters because secondary evidence without a proper certificate risks being excluded.
Does the BSA change how courts handle electronic evidence in criminal trials?
Yes. The BSA — read with the BNSS, which governs criminal procedure — provides a clearer framework for admitting electronic records in criminal cases. Investigation agencies collecting digital evidence must follow chain-of-custody protocols, and the prosecution bears the burden of producing a proper certificate when relying on secondary electronic evidence. Defence lawyers can challenge admissibility if the certificate is absent or does not meet the prescribed conditions. Always verify the current judicial position, as courts continue to interpret the new provisions.
This article is for general information only and is not legal advice. Laws change; verify against the primary sources cited and consult a qualified advocate for your situation.
