Iea V Bsa : Admissibility Of Electronic Records

In an historic and revolutionary transformation of its criminal justice system, India ushered in the enactment of 3 groundbreaking laws on 1st July, 2024: The Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) replacing the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Indian Evidence Act (IEA) respectively. These legislations are designed to modernize and streamline India’s legal framework into the 21st century, incorporating contemporary issues like digital crimes, organized crime, and gender-neutral sexual offenses by championing technological integration, forensic science, and victim-centric justice to enhance justice delivery and societal safety. 

IEA PROVISION

• Definition: 

“Electronic record” is defined as ‘data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche’ under the Information Technology Act of 2000. 

• Admissibility:

Section 65B(1) provides that any information contained in electronic record, which is printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer, is deemed to be a document and admissible in evidence. 
Section 65B(2) lays down the conditions for admitting electronic records and recognized as secondary evidence.

• Certification Requirements:

Section 65B(4) requires a certificate to accompany electronic records. 
Section 81A provides that electronic records accompanied by the required certificates are presumed genuine which aids in streamlining the acceptance of electronic evidence in courts. 

CRITICISM

• Insufficient safeguards to deter tampering: The Apex Court, in 2014, observed that the Evidence Act lacked safeguards against tampering and alteration of electronic records during investigation & seizure, potentially leading to fabricated evidence being presented in court.
• Ambiguity in admissibility criteria: Section 65B(4) mandates that the electronic evidence be accompanied by certificate which creates uncertainty about admissibility requirements by conflicting Supreme Court rulings.
• Lack of rigorous custody monitoring: No secure, documented chain of custody for electronic evidence from the time of seizure to presentation in court.
• Inadequate IT expert Involvement: IEA does not require any involvement of IT experts to verify authenticity at the request of the accused. 

BSA COUNTERPART

• Definition: ‘Electronic records’ is included in the definition of ‘evidence’ u/s 3 of BSA, recognized as a form of documentary evidence. However, BSA expands its definition to include data stored in semiconductor memory, communication devices like smartphones, laptops, and various digital formats such as emails, server logs, locational evidence, & voice mails.
• Classification: In contrast with IEA, BSA recognizes electronic evidence as primary evidence, aligning its legal status with traditional paper.
• Admissibility: While it retains mist of the conditions in IEA, BSA underscores the equivalence of electronic records to paper records, making them explicitly admissible as primary evidence.
• Certification requirements: BSA mandates that electronic records be submitted with a certificate signed by the person in charge of the computer/device and an expert, identifying it and describing its production. But the certificate must address the conditions in Section 63(2) of BSA. 

The Bharatiya Sakshya Adhiniyam (BSA) represents a substantial update to the Indian Evidence Act (IEA) regarding electronic records. One of the key changes is the reclassification of electronic records as primary evidence, aligning them with traditional paper documents. This reflects the increasing reliance on digital information in today’s world and aims to facilitate its acceptance in legal proceedings. The expanded scope of electronic records ensures that various forms of electronic evidence are recognized and admissible in court. 
Despite these advancements, both IEA & BSA face criticism regarding the management of electronic evidence. The ambiguous requirements for admissibility and inadequate safeguards against tampering, has sparked controversy which the BSA aims to tackle these issues by retaining certification requirements while emphasizing its integrity.