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DIGITAL EVIDENCE IN CRIMINAL TRIALS: ADMISSIBILITY, AUTHENTICATION AND EVIDENTIARY CHALLENGES UNDER THE BHARATIYA SAKSHYA ADHINIYAM, 2023

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Authored by: ROSHAN GUPTA
Shri. Swami Dayal Bhatnagar Law College,
Chaudhary Charan Singh University
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ABSTRACT

The enactment of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) marks a historic re-engineering of India’s criminal evidentiary paradigm, replacing the antiquated Indian Evidence Act, 1872. With crime shifting exponentially into digital ecosystems, the new legislation directly challenges traditional concepts of physical documentation by elevating electronic records to primary evidence status under Section 61. However, this progressive statutory intent introduces a rigorous matrix of compliance. This paper provides a comprehensive evaluation of the core intersection between the statutory mechanisms of admissibility under Section 63 and the forensic realities of authentication in modern trial practices. Through a meticulous deconstruction of the legacy judicial trajectory, the study expands upon foundational rulings including Anvar P.V., Tomaso Bruno, and Arjun Panditrao Khotkar. It further highlights how the modern dual-certification protocol, cryptographic hash value tracking, and distributed system networks introduce severe implementation bottlenecks under the BSA. It addresses the legal vulnerabilities created by volatile cloud jurisdictions, ephemeral messaging architectures, and the complex threat vector of Generative Artificial Intelligence and deepfakes. Adopting a comparative approach, this paper evaluates the Indian statutory matrix against the United States Federal Rules of Evidence and the United Kingdom’s flexible statutory standard. Finally, the study outlines a future-facing legislative roadmap aimed at balancing robust technological verification with administrative feasibility to prevent judicial paralysis.

KEYWORDS

Bharatiya Sakshya Adhiniyam, 2023, Admissibility, Authentication, Section 63 Certificate, Comparative Digital Law – The United States’s FRE and The United Kingdom’s PACE 1984 Landmark Precedents, Forensic Overload.

INTRODUCTION

The operational spectrum of the twenty-first-century criminal justice system is fundamentally dictated by technological footprints. From encrypted communication logs and geolocation data to enterprise algorithmic databases, the modern criminal investigation is heavily anchored to digital records. Recognizing the complete obsolescence of the colonial-era Indian Evidence Act, 1872 (IEA) in handling these virtual environments, the Parliament enacted the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which officially took effect on July 1, 2024. The primary legislative catalyst behind the BSA was to systematically transition India’s trial mechanisms from paper-centric baselines into a digitized, scientifically optimized paradigm capable of matching modern global electronic standards.[1]

Under the previous statutory framework, the introduction of digital evidence was a perennial zone of procedural confusion. Relegated to secondary evidence status, electronic records were governed by Section 65B of the IEA. For nearly a quarter-century, Indian courts fluctuated between conflicting judicial dictates regarding the mandatory or discretionary requirement of technical certificates, oscillating through landmark decisions before eventually solidifying a highly rigid, formalist rule. The BSA decisively alters this paradigm. Section 61 explicitly establishes that electronic or digital records possess the identical legal validity, enforceability, and status as physical paper documents, treating them as primary evidence if their structural authenticity is sufficiently established.[2]

However, this expansion of primary status has been met with a significantly heightened, highly technical set of requirements for admissibility and authentication under Section 63 of the BSA. The statute replaces the loose conditions of the old law with a dual-bifurcated certification mechanism, requiring distinct validations from the device custodian and an independent digital forensic expert. Furthermore, the statute formally integrates cryptographic standards into law, explicitly requiring the calculation and verification of unique hash values (such as SHA-256 protocols) to definitively secure the untampered chain of custody from field seizure to the court bench.[3]

While these inclusions are theoretically sound and designed to prevent tampering, their practical application reveals a massive structural disconnect. The vast majority of first-responding police investigators across India’s thousands of police stations lack basic training in digital forensics, cryptographic preservation, and write-blocking mechanics. Furthermore, modern digital evidence does not exist in isolation on local physical hard drives; it is distributed across global cloud architectures, encrypted messaging platforms, and virtualized enterprise systems. Consequently, the legal fraternity, law enforcement, and the judiciary are now facing a complex implementation chasm. This paper explores these practical challenges, assessing how the heightened technical criteria of the BSA risk creating procedural loopholes that could lead to the acquittal of tech-savvy criminals, or conversely, cause massive systemic delays due to a severe bottleneck in state forensic capacities.[4]

[1] Bharatiya Sakshya Adhiniyam, 2023, § 2(1)(c) & § 61, No. 47 of 2023, Acts of Parliament, 2023 (India). https://www.mha.gov.in/en/commoncontent/new-criminal-laws

[2] Arjun Panditrao Khotkar v. Kailash Kushansrao Gorantyal, (2020) 7 SCC 1 (India); Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 (India).

[3] Bharatiya Sakshya Adhiniyam, 2023, § 63(4) (India).[ https://www.mha.gov.in/en/commoncontent/new-criminal-laws ]

[4] Kumar Anmol, Srishti Aditi & Sharma Danish, An Admissibility of Electronic Evidence in Criminal Proceedings: A Comprehensive Analysis, 5(6) IND. J. INTEGRATED RES. L. 142, 145-148 (2025). [Link: https://ijirl.com/wp-content/uploads/2025/11/AN-ADMISSIBILITY-OF-ELECTRONIC-EVIDENCE-IN-CRIMINAL-PROCEEDINGS-A-COMPREHENSIVE-ANALYSIS.pdf ]

RESEARCH METHODOLOGY

This research utilizes a strict qualitative, doctrinal, and analytical legal research methodology. The scope of study focuses on examining primary legal sources, including the statutory provisions of the Bharatiya Sakshya Adhiniyam, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), historical precedents under the Indian Evidence Act, 1872, Parliamentary Standing Committee reports, and recent notifications from the Ministry of Home Affairs, Government of India. To ground the legal analysis in technical reality, secondary sources encompassing peer-reviewed digital forensics journals, data security guidelines, international cybercrime protocols, and comparative statutory frameworks are systematically analyzed.

REVIEW OF LITERATURE

The body of legal literature surrounding the admissibility of digital evidence in India has historically focused on the procedural shifting under Section 65B of the repealed Indian Evidence Act, 1872. Scholars and practitioners have extensively debated the judicial oscillation between structural compliance and substantial justice. With the introduction of the Bharatiya Sakshya Adhiniyam, 2023, a nascent but rapidly expanding body of literature has begun addressing the statutory realities of Section 63. Early analysts argue that the legislative insertion of terms like ‘hash value’ and ‘cloud computing data’ represents a significant leap forward in legal conceptualization, aligning India with advanced global digital standards. Yet, digital forensic experts sound a note of caution, highlighting the severe lack of technical literacy among field operatives. What remains unaddressed in current legal scholarship—and what this paper specifically explores is the practical synthesis of these issues: how defense lawyers will weaponize these procedural and technical gaps during cross-examination, and what precise, future-oriented safeguards must be deployed to prevent the total paralysis of criminal trials.[5]

[5] Naiya Patel, Electronic Evidence Under Criminal Law: Doctrinal Foundations, 4(2) INT’L J. ADV. LEGAL RES. 1, 3-5 (2026).( https://ijalr.in/wp-content/uploads/2026/05/ARTICLE-NAIYA-PATEL.pdf)

THE EVOLUTION OF ADMISSIBILITY: DECONSTRUCTING LANDMARK PRECEDENTS

To understand the technical design of Section 63 of the BSA, it is essential to trace the dramatic, often contradictory judicial trajectory under Section 65B of the repealed Indian Evidence Act, 1872. For decades, the Indian Supreme Court struggled to balance electronic authentication with substantive criminal justice, a struggle defined by three landmark rulings.

A. Anvar PV v. PK Basheer & Ors (2014 10 SCC 473) – The Rule of Absolute Mandatory Certification

The three-judge bench decision in Anvar P.V. v. P.K. Basheer completely overhauled the jurisprudence of electronic evidence in India by overruling the loose parameters set nearly a decade earlier in State (NCT of Delhi) v. Navjot Sandhu. In Navjot Sandhu, the Supreme Court had erroneously held that even if an electronic record lacked a technical certificate under Section 65B, it could still be admitted as secondary evidence under Sections 63 and 65 of the IEA. Recognizing that this created a dangerous systemic vulnerability where tampered or fabricated electronic printouts could easily bypass legal vetting, the court in Anvar P.V. declared Section 65B to be a complete, self-contained code.[6]

The court ruled that any electronic record seeking the status of secondary evidence must strictly and mandatory comply with the certification process outlined under Section 65B(4). The judgment established a foundational legal maxim: general provisions of an act must yield to specific, technical provisions governing a special subject (generalia specialibus non derogant). Under Anvar P.V., the failure to produce a valid electronic certificate at the time of presenting evidence was treated as a fatal procedural defect, rendering the target digital log automatically inadmissible. This absolute approach was intended to act as a shield against police manipulation, but it inadvertently created an immense burden for trial courts when dealing with minor procedural omissions in otherwise flawless investigations.

B. Tomaso Bruno v. State of Uttar Pradesh (2015) 7 SCC 178 – The Discretionary and Alternative Pathway Conflict

Merely a few months after the rigid parameters of Anvar P.V. were laid down, a separate three-judge bench of the Supreme Court introduced severe doctrinal confusion in Tomaso Bruno v. State of Uttar Pradesh. In this case, which involved critical CCTV footage relevant to a criminal homicide investigation, the prosecution failed to produce both the digital video recording and its accompanying Section 65B certificate. Instead of summarily excluding the electronic evidence as mandated by Anvar P.V., the Supreme Court took a significantly more flexible, substantial-justice-driven stance.[7]

The court in Tomaso Bruno held that electronic evidence could be proved via secondary means under regular provisions if the original device itself was unavailable, suggesting that the strict mandate of Section 65B could be bypassed under certain equitable circumstances. The bench noted that the technological advancement of the criminal justice system required a flexible approach to discovering the truth, emphasizing that scientific proof should not be completely paralyzed by formalistic text blocks. While celebrated by prosecutors, Tomaso Bruno created an intense judicial conflict, splitting trial courts across India into two factions: those enforcing the strict mandatory rule of Anvar P.V., and those exercising wide judicial discretion under the Tomaso Bruno exception.

C. Arjun Panditrao Khotkar v. Kailash Kushansrao Gorantyal (2020) 7 SCC 1 – The Definitive Settlement

Recognizing the severe operational disruptions caused by the Anvar-Tomaso split, a reference was made to a larger three-judge bench in Arjun Panditrao Khotkar v. Kailash Kushansrao Gorantyal. The Supreme Court decisively resolved the conflict by upholding the strict mandatory character of Anvar P.V. while effectively overruling the alternative interpretations of Tomaso Bruno. The court clarified that a Section 65B(4) certificate is an absolute condition precedent for the admissibility of any electronic record where the original physical source device cannot be brought directly into the courtroom.[8]

However, the court introduced a vital procedural safeguard to prevent the formalist rule from becoming an instrument of injustice. It recognized that an investigator or private litigant might fully intend to secure a certificate but face total non-cooperation from a third-party device administrator or hostile corporation. To resolve this, Arjun Panditrao established that a party can formally move the trial judge under provisions of the Code of Criminal Procedure, 1973 (and now the BNSS) to legally issue summons and compel the custodian to sign and deliver the necessary technical certificate. This landmark ruling forms the exact architectural blueprint for Section 63 of the BSA, embedding mandatory certification into the statutory text while assuming that the state will actively assist in compelling technical compliance.

[6] Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 (India).

[7] Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178 (India).

[8] Arjun Panditrao Khotkar v. Kailash Kushansrao Gorantyal, (2020) 7 SCC 1 (India).

METHOD : THE ADMISSIBILITY, AUTHENTICATION, AND EVIDENTIARY MATRIX UNDER THE BSA

A. The Statutory Mechanics of Admissibility Under Section 61 and 62

The foundational bedrock of digital evidence admissibility under the BSA is established through the dramatic recalibration of primary and secondary evidence categories. Section 61 introduces a statutory equalization doctrine, explicitly postulating that an electronic or digital record cannot be denied admissibility simply because of its virtual format. Under Section 62, if an electronic record is produced directly from its original storage medium such as an original flash drive, local hard disk, or local server block, it scales directly to the status of primary evidence. This represents a significant doctrinal expansion from the IEA, where physical constraints naturally relegated electronic copies to secondary treatment.

B. The Authentication Framework and Dual-Certification Under Section 63(4)

The technical core of the authentication mandate is found under Section 63(4) of the BSA, which splits the old certification pattern into a mandatory, two-part authentication certificate. Under the previous regime of Section 65B(4) of the IEA, a single certificate was deemed sufficient. The BSA breaks from this unified approach by separating the authentication process into a dual-layered requirement: First, the certificate must be signed by the person in lawful command or operation of the device and second, it must be accompanied by an independent certificate signed by an expert, technical director, or designated cyber-forensic specialist.[9] [10]

C. Cryptographic Hash Values and Chain of Custody Realities

For the first time in Indian statutory history, the text of Schedule and Section 63 forms of the BSA explicitly incorporates the term ‘hash value’ as a mandatory marker of evidentiary integrity. When an investigating officer clones a mobile phone hard drive, they must immediately compute and record the cryptographic hash value (such as SHA-256) within the official seizure memo. If the two values match perfectly upon court submission, mathematical integrity is proven. If they diverge in the slightest, the evidence has been altered, and under a strict reading of Section 63, it becomes inadmissible.[11]

D. Cloud Jurisdictions, Distributed Networks, and Ephemeral Evidentiary Friction

Section 63(3) of the BSA seeks to address the complex reality of modern data architectures by explicitly stating that where a continuous sequence of data is stored across a distributed network of computer systems, the entire interconnected network shall be legally treated as a single unified system. While conceptually sound, this provision runs into immediate jurisdictional and logistical hurdles when data is dynamically sharded and encrypted across global data centers managed by MNCs in foreign jurisdictions.[12]

E. The Generative AI Threat Vector: Deepfakes and Authenticity Challenges

Perhaps the most daunting future-oriented challenge facing the implementation of the BSA is the explosive proliferation of Generative Artificial Intelligence, hyper-realistic audio cloning, and deepfake video synthesis. Today, a bad actor can easily generate a deepfake video or a synthesized voice note that is visually and audibly indistinguishable from authentic footage to the untrained eye or ear, creating a severe analytical burden for the Trial Court.

[9] S. R. Salkute, Trial Court as Guardian of Electronic & Digital Record Under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023: A Modern Approach – [Part IV], 7(1) ALL INDIA J. FORENSIC RES. 3496, 3508 (2026). [Link: https://www.aijfr.com/papers/2026/1/3496.pdf ]

[10] Kanishka & Nikita Sharma. Electronic Evidence Under Bharatiya Sakshya Adhiniyam: A Critical Analysis, 7(6) Indian Journal of Law and Legal Research 1 (2025). [Link: https://www.ijllr.com/post/electronic-evidence-under-bharatiya-sakshya-adhiniyam-a-critical-analysis ]

[11] Eoghan Casey, Digital Evidence and Computer Crime: Forensic Science, Computers and the Internet 112-115 (3rd ed. 2011).

[12] Orin S. Kerr, Computer Crime Law 345-350 (4th ed. 2018).

COMPARATIVE LAW PERSPECTIVES: A GLOBAL BENCHMARK

To evaluate whether the BSA’s rigid, dual-certification structure is an optimal global approach, India’s new statutory regime must be juxtaposed against the digital evidence standards utilized in the United States and the United Kingdom.

A. The United States Approach – The Federal Rules of Evidence (FRE)

In the United States federal court system, the admissibility and authentication of electronic data are governed primarily by the Federal Rules of Evidence (FRE), specifically Rules 901 and 902. Unlike the rigid statutory preconditions of India’s Section 63, the American framework relies heavily on a flexible judicial gatekeeping model. Under FRE 901, a proponent of digital evidence must simply present a prima facie showing of authenticity sufficient evidence to support a rational finding that the matter in question is what the proponent claims it to be.[13]

To streamline trials and avoid the continuous need for live expert testimonies, the US amended FRE 902(13) and 902(14) to introduce the concept of ‘self-authenticating’ electronic records. Under these provisions, digital data generated by an electronic process or system, or copies of data verified by an un-tampered cryptographic hash check, are automatically deemed authentic without requiring a formal, separate statutory certificate, provided they are accompanied by a qualified certification from a certified data custodian or forensic operator. This framework prioritizes forensic validation while avoiding the procedural deadlock seen under the Indian dual-signature requirement.

B. The United Kingdom Approach – The Police and Criminal Evidence Act 1984 (PACE)

The United Kingdom has moved even further away from rigid statutory conditions for digital evidence. Historically, Section 69 of the Police and Criminal Evidence Act 1984 (PACE) required prosecutors to prove that a computer system was operating correctly before its outputs could be admitted into evidence, a provision highly analogous to Section 65B of the IEA and Section 63 of the BSA. However, recognizing that this requirement was structurally unworkable and continually disrupted standard criminal trials as technology advanced, the UK Parliament completely repealed Section 69 via the Youth Justice and Criminal Evidence Act 1999.[14]

Currently, English law operates under a powerful common-law presumption: in the absence of explicit, credible evidence to the contrary, a computer or digital system is presumed to have been operating correctly at all material times. The burden shifts entirely to the challenging party to present concrete proof of system failure or data corruption. This pragmatic presumption allows British courts to seamlessly admit digital data, from local text logs to vast enterprise cloud databases, without forcing investigators to secure complex third-party signatures or struggle with minor technical administrative omissions.

[13] Fed. R. Evid. 901 & 902 (United States). [Link: https://www.uscourts.gov/sites/default/files/2025-02/federal-rules-of-evidence-dec-1-2024_0.pdf]

[14] Youth Justice and Criminal Evidence Act 1999, c. 23, S.60 (United Kingdom). https://www.legislation.gov.uk/ukpga/1999/23/section/60

SUGGESTIONS

To bridge the widening chasm between rigorous statutory mandates of BSA and ground-level technical realities of criminal litigation, the following multi-layered structural and policy interventions are urgently proposed:

  1. Mandate the Standardization and Ubiquitous Deployment of Digital Write-Blockers and Faraday Enclosures at the Thana Level:

The Ministry of Home Affairs must issue an unyielding, nationwide Standard Operating Procedure (SOP) mandating that no investigating officer shall power on, interact with, or extract data from a seized electronic device without utilizing a hardware or software write-blocker. Every police vehicle and station house must be equipped with specialized RF-shielded Faraday bags. Upon seizure, the mobile device must be immediately placed into the Faraday enclosure to instantly sever all cellular, Wi-Fi, and Bluetooth connections, effectively preventing background data contamination, remote wiping, or automated metadata modification. This will ensure that the primary cryptographic hash value computed during field seizure remains identical to the secondary hash generated during formal laboratory analysis.

  • Formulate a Tiered Admissibility and Relevance Framework via Judicial Amendment:

The Supreme Court of India should utilize its constitutional guidance powers to clarify that minor, technical discrepancies in hash values, specifically those caused by automated system updates or background metadata changes should not result in the total, automatic exclusion of electronic evidence under Section 63. Instead, courts should adopt a balanced, tiered approach: if the prosecution can conclusively demonstrate through a verified forensic audit trail that the core substance of the digital record (such as the actual text of a message, or the exact pixels of a video) remains uncorrupted and untampered with, the technical discrepancy should merely affect the evidentiary ‘weight’ assigned by the judge, rather than rendering the entire document completely inadmissible. This will prevent highly technical loopholes from derailing substantive criminal justice.

  • Establish Decentralized, Accelerated Cyber-Forensic Desks and Certifying Authorities:

To break the severe structural bottleneck paralyzing State Forensic Science Laboratories, the government must rapidly establish mini cyber-forensic verification desks across all district headquarters. These localized desks must be staffed by certified digital forensic experts who are statutory empowered to quickly generate the independent expert certificates mandated under Section 63(4). By shifting the administrative burden away from centralized state labs, the state can compress the turnaround time for digital evidence processing from several months down to a few days, ensuring compliance with the strict procedural timelines established under the BNSS.

  • Establish Specialized Generative-AI Verification Units and Protocols:

In light of the escalating threat posed by deepfakes and audio cloning, specialized AI verification units must be integrated within the Central Forensic Science Laboratories (CFSL). When a defense counsel presents a plausible claim of digital manipulation or generative fabrication, the burden of verification must be routed to these specialized centers equipped with advanced deep-learning detection algorithms, source-camera attribution tooling, and localized metadata forensic suites. Furthermore, judges must undergo continuous, comprehensive training programs to familiarize themselves with the technical nuances of generative media, ensuring they can intelligently weigh conflicting expert testimonies without falling prey to the ‘CSI effect’

  • Optimize International Cloud Data Retrieval through Streamlined Cloud Act Agreements and MLAT Reforms:

The Government of India must proactively negotiate bilateral technology-sharing frameworks and access agreements, similar to the United States’ CLOUD (Clarifying Lawful Overseas Use of Data Act) Act 2018. This will allow Indian law enforcement agencies to directly serve verified judicial warrants on foreign-based technology conglomerates for the immediate retrieval of electronic records stored on distributed international networks. Concurrently, the domestic nodal agencies overseeing MLAT requests must be completely digitized and modernized, replacing sluggish paper-based bureaucratic workflows with encrypted, secure digital transmission portals to drastically accelerate cross-border evidence acquisition

CONCLUSION AND POLICY-ORIENTED ROADMAP

The enactment of the Bharatiya Sakshya Adhiniyam, 2023, represents a bold legislative attempt to completely break away from colonial evidentiary standards and propel India’s criminal justice system into the digital age. By elevating electronic records to the status of primary evidence and incorporating precise cryptographic concepts like hash values into the text of the statute, the legislature has created a robust framework designed to ensure absolute data integrity. However, the practical implementation of this advanced legal framework reveals a deep, troubling chasm between legislative ideals and ground-level operational realities. The strict, unyielding demands of Section 63 stand in sharp contrast to the stark realities of an under-trained police force and a severely overburdened forensic infrastructure.

To prevent the BSA from inadvertently causing judicial paralysis, India must immediately shift its focus from purely statutory mandates to long-term structural policy reforms. First, the state must implement a continuous, institutionalized training curriculum across all state police academies, transforming digital forensic collection from a specialized task into a standard, foundational capability for every first responder. Second, the judiciary must move away from rigid, formalist exclusions and adopt a nuanced ‘substantial compliance’ standard for electronic records, ensuring that minor technical omissions do not override the discovery of substantive truth. Finally, India must actively champion modern international data sharing agreements, acknowledging that digital proof in a globalized era cannot be bound by static physical borders.

Ultimately, the BSA must not be treated as a static textual block, but as a dynamic, evolving legal ecosystem. Its success will depend entirely on building a robust, well-funded administrative framework capable of supporting its high technological bars. Through progressive legislation with real forensic capacity and pragmatic judicial interpretation can India build a criminal justice system where scientific proof effectively serves the cause of substantive justice.

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REFERENCES / BIBLIOGRAPHY

Domestic Legislation & Statutes

International Legislation & Court Rules

Judicial Precedents

  • Anvar P.V. v. P.K. Basheer, (2014) 10 S.C.C. 473 (India).
  • Arjun Panditrao Khotkar v. Kailash Kushansrao Gorantyal, (2020) 7 S.C.C. 1 (India).
  • Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 S.C.C. 178 (India).

Books & Treatises

  • Casey, Eoghan. Digital Evidence and Computer Crime: Forensic Science, Computers and the Internet. 3rd ed. Academic Press, 2011.
  • Kerr, Orin S. Computer Crime Law. 4th ed. West Academic Publishing, 2018.

Law Reviews & Academic Journals

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