The rules deciding what a court can accept as proof changed entirely on 1 July 2024. Most of the old principles survive under new numbers, but one change reaches every modern case: your WhatsApp chats, CCTV footage, emails and call records are now evidence in their own right — and the certificate needed to get them in has grown a second signature.
The Bharatiya Sakshya Adhiniyam, 2023 replaced the Indian Evidence Act, 1872 from 1 July 2024, treating electronic and digital records as primary evidence and requiring a two-part Section 63 certificate signed by both the person in charge of the device and an expert.
The bottom line
What changed most: electronic and digital records are documents and can be primary evidence, under Sections 57, 61 and 63.
The practical trap: the old Section 65B certificate is gone. Section 63 requires a two-part certificate, Part A from the device-controller with a hash value, Part B from an expert.
What survived: police confessions remain inadmissible, dying declarations and the hearsay exceptions stand, and the burden of proof rules are unchanged.
Why a new evidence law
The 1872 Act served for over 150 years, and it was written for a world of paper documents and oral testimony.
Crime, and the trail it leaves, moved online — messages, server logs, location data, digital images. The old Act was patched in 2000 to deal with electronic records through the much-litigated Section 65B, and the framework stayed awkward.
The BSA is one of the three new criminal laws, alongside the Bharatiya Nyaya Sanhita and the Bharatiya Nagarik Suraksha Sanhita. It has 170 sections and applies to all court proceedings except arbitration.
What evidence means, and its types
Evidence is the material a court uses to decide the facts. It is classified in several overlapping ways.
- Oral evidence — what witnesses say in court.
- Documentary evidence — documents produced for inspection, now expressly including electronic and digital records.
- Primary and secondary — the original document against copies or substitutes.
- Direct and circumstantial — evidence proving a fact directly, against evidence from which a fact is inferred.
The BSA keeps this architecture and expands what counts as a document.
Oral and documentary evidence
The foundational rules survive. Oral evidence must be direct, meaning a witness speaks to what they personally perceived. The contents of documents are generally proved by the document itself, or where permitted by secondary evidence.
The expansion is in the definition of "document", which now includes electronic and digital records. An email or a video file is a document exactly as a sheet of paper is.
The change that matters: electronic records
Three sections work together, and they are worth knowing by number.
Section 57 defines "document" to include electronic and digital records, and treats electronic records as capable of being primary evidence.
Section 61 is the enabling rule: admissibility cannot be denied merely because a record is electronic. Such records have the same legal effect and validity as any other document, subject to Section 63.
Section 63 governs admissibility of electronic records and replaces the old Section 65B.
The practical effect is that emails, WhatsApp messages, CCTV footage, server logs and files on phones and laptops can be produced directly as evidence. The BSA also blurs the old, heavily litigated line between an original electronic record and a copy, treating reliable electronic records as primary evidence.
The new certificate
You still need a certificate, and the requirement is now stricter.
Under Section 63(4), the certificate must follow the format prescribed in the Schedule to the BSA, in two parts.
Part A is completed by the person in charge of the device or computer, with details of the device and the hash value of the record — a unique digital fingerprint, generated with something like SHA-256.
Part B is completed by an expert, such as an Examiner of Electronic Evidence, providing technical authentication.
That dual signature — device-controller and expert — is the single biggest practical change for anyone litigating, because a single signatory sufficed under the old Section 65B. The aim is to strengthen the integrity of digital evidence and reduce tampering disputes, and the cost of getting it wrong is that the evidence does not go in at all.
Confessions and admissions
The protections around confessions survive intact.
A confession made to a police officer is inadmissible against the maker. A confession made in police custody is generally inadmissible unless made in the immediate presence of a Magistrate. And a confession obtained by inducement, threat, coercion or promise is inadmissible — with the BSA expressly adding coercion to that list.
Admissions, meaning statements suggesting an inference about a fact in issue, remain relevant without being conclusive.
Burden of proof and presumptions
The familiar rules continue. The burden lies on the party asserting a fact, and in criminal cases the prosecution must prove guilt beyond reasonable doubt.
The framework of presumptions survives — facts a court may or must presume, such as the genuineness of certain official documents — along with the rules on estoppel, relevancy, examination of witnesses, and expert opinion, which now expressly includes examiners of electronic evidence.
What stayed the same
Despite the new name and numbering, most of the substance carried over: the hearsay rule and its exceptions, dying declarations, res gestae, the inadmissibility of police confessions, the rules on relevancy and character evidence, and the burden of proof architecture.
For practitioners a large part of the transition is simply learning new section numbers for old rules — which is tedious rather than difficult, and worth doing before a hearing rather than during one.
A worked example
In a cheating case the prosecution wants to rely on a series of WhatsApp messages and a bank's server log.
Under the old law that meant wrestling with the Section 65B certificate and arguments about original against copy. Under the BSA the messages and the log are documents under Section 57, and their admissibility cannot be denied for being electronic under Section 61.
To get them in, the prosecution files the Section 63 certificate in the prescribed format: Part A from the official in charge of the device with the hash value, Part B from a forensic expert.
Properly certified, the records go in. A missing or single-signature certificate is now a fatal gap rather than a curable irregularity.
Common mistakes
- Using the old Section 65B certificate, which has been replaced.
- Forgetting the expert signature in Part B. A single signatory no longer suffices.
- Omitting the hash value, which the prescribed format requires to prove integrity.
- Assuming a confession to police is usable. It remains inadmissible against the maker.
- Ignoring chain of custody. Mishandled digital evidence gets challenged and excluded.
Frequently asked questions
What replaced the Indian Evidence Act, 1872? The Bharatiya Sakshya Adhiniyam, 2023, in force from 1 July 2024.
How is electronic evidence treated? Electronic and digital records are documents and can be primary evidence. Admissibility cannot be denied merely because they are electronic, subject to the Section 63 certificate.
What is the new Section 63 certificate? A two-part certificate replacing Section 65B: Part A by the person in charge of the device, Part B by an expert, including the record's hash value, in the format prescribed in the Schedule.
Are confessions to police admissible? No. A confession to a police officer remains inadmissible against the maker, and one obtained by coercion is inadmissible too.
Did the burden of proof change? No. It lies on the party asserting a fact, and criminal guilt must be proved beyond reasonable doubt.
Do the old cases still apply? Offences committed before 1 July 2024 continue under the old law, and much of the reasoning on relevancy and hearsay carries across in any event, under new section numbers.