From Section 65B to Section 63: Electronic Evidence Under the Bharatiya Sakshya Adhiniyam

On 1 July 2024 the Indian Evidence Act, 1872 was repealed and replaced by the Bharatiya Sakshya Adhiniyam (BSA), part of the largest rewrite of India's criminal law in four decades. The provision that matters most to anyone handling digital records, Section 65B, came across as Section 63. More than two years later, a great deal of drafting has still not caught up: applications, police final reports, and even the occasional judgment continue to cite the old section. Judges generally know what is meant. But in an adversarial system, small signals about care matter, and citing a repealed statute is an avoidable one.

The core design survived the transition intact. An electronic record remains admissible, and where a party relies on a copy, printout, or output rather than the original device, it must still be accompanied by a certificate identifying the record and describing the manner of its production. The certificate must come from a person in a responsible official position in relation to the device or the activities it supports, and it must speak to the device's regular use and proper operation over the material period. If that sounds familiar, it should: it is the 65B scheme, restated.

The case law you still need to know

The old section produced two decades of litigation about its certificate, and that case law remains the interpretive spine of the new one. Anvar P.V. v. P.K. Basheer (2014) held the certificate mandatory for secondary electronic evidence. Shafhi Mohammad (2018) softened that into a judicial discretion. Arjun Panditrao Khotkar (2020), a three-judge bench, settled it: the certificate is a mandatory pre-condition, full stop. Those decisions construed the old statute, but Section 63 preserves the legislative design they were construing, so the same logic should govern. When the necessity of a certificate is contested in a trial court today, Arjun Panditrao is still the citation that does the work.

What the redraft actually changed

• Terminology was modernised. The new law speaks of electronic and digital records, in line with the IT Act, 2000, instead of drafting around hardware-era definitions.
• The old Section 65A/65B pair was collapsed into a single self-contained section, so the scheme now reads in one place instead of two.
• The description of who may sign the certificate and what it must contain was restated more tightly.
• Cross-references throughout the criminal procedure code were renumbered, which is where much of the day-to-day citation confusion comes from.

The practical friction is mostly at the ground level. Standard application formats, station-house precedents, and forensic science laboratory templates were all drafted for the old numbering, and institutional memory updates slowly. Investigators also face the same preservation race as always: most society and commercial DVRs overwrite within two to three weeks, a WhatsApp export printed months after seizure draws easier challenges, and the person who operated the relevant system may be impossible to find by the time trial approaches. The certificate is easiest to obtain when the evidence is seized. It gets harder every week after that.

A working checklist under Section 63

• Identify the source device or system, and the person in a responsible official position for it, within the first days of the investigation.
• Preserve the record in its produced form. Hash it, and record chain of custody at every transfer.
• Draft the certificate to cover every element: identity of the record, the device, the period of regular use, and proper operation.
• Obtain the signature at seizure time, not on the eve of trial.
• Cite Section 63 of the Bharatiya Sakshya Adhiniyam in every filing, and update your standard formats to match.

The transition years will be messy, and courts will see pleadings citing both statutes for some time. That is normal for a generational change in the law. What separates careful practice from careless is not deep doctrine; it is the unglamorous discipline of citing the statute that actually governs, and collecting the certificate while it is still easy to get.