BSA S.63 is the cornerstone provision for admissibility of electronic records. It requires a certificate under S.63(4) identifying the electronic record and certifying the conditions under which it was produced. This certificate transforms the electronic record into primary evidence. The Supreme Court in Anvar PV v PK Basheer (2014) held that the certificate requirement is mandatory and cannot be bypassed by resorting to general provisions on secondary evidence.
BSA S.63 = IEA S.65B (admissibility of electronic records). BSA S.79 = IEA S.85A (presumption as to electronic agreements). BSA S.80 = IEA S.85B (presumption as to electronic records). BSA S.81 = IEA S.85C (presumption as to digital signatures). BSA S.82 = IEA S.88A (presumption as to electronic messages). The BSA text is substantially similar but expressly classifies the certified record as primary evidence. Confidence: high.
S.63: Admissibility of Electronic Records
The Four Conditions (S.63(1))
An electronic record is admissible if the following conditions are satisfied with respect to the computer output containing the information:
| Condition | Requirement |
|---|---|
| (a) Regular use | The computer was regularly used to store or process information during the relevant period |
| (b) Regular feeding | Information of the kind in the electronic record was regularly fed into the computer in the ordinary course of activities |
| (c) Proper operation | The computer was operating properly during the relevant period (or any malfunction did not affect the accuracy) |
| (d) Reproduction | The information is derived from information fed into the computer in the ordinary course |
S.63(4): The Certificate
The certificate must:
- Identify the electronic record and describe the manner of its production.
- Give particulars of the device involved.
- Deal with the conditions in S.63(1)(a) to (d).
- Be signed by a person occupying a responsible official position in relation to the operation of the device or management of the relevant activities.
Effect of the Certificate
Under the BSA, an electronic record accompanied by the S.63(4) certificate is primary evidence. This is a departure from the IEA position where electronic records were treated as secondary evidence.
The Anvar Principle
Facts: In an election dispute, the appellant relied on CD recordings of speeches. No certificate under S.65B(4) IEA was produced. The appellant argued that the recordings were admissible as primary evidence under S.62 or secondary evidence under S.63/S.65 of the IEA.
Issue: Whether electronic evidence is admissible without a S.65B(4) certificate by resorting to other provisions.
Held: S.65B IEA (now S.63 BSA) is a complete code for admissibility of electronic records. It is a special provision that overrides the general provisions on primary and secondary evidence. Without the S.65B(4) certificate, electronic evidence is inadmissible. The general provisions (S.62, S.63, S.65 IEA) cannot be used to bypass S.65B.
Relevance: The definitive authority on the mandatory nature of the certificate requirement. Overruled the earlier view in Navjot Sandhu (2005) that treated the certificate as directory.
Facts: A three-judge bench was constituted to resolve the conflict between Anvar PV (certificate mandatory) and Shafhi Mohammad (2018) (certificate may be relaxed).
Issue: Whether the requirement of a S.65B(4) certificate is mandatory or can be relaxed.
Held: Confirmed Anvar PV: the certificate is mandatory. However, clarified that when the electronic device is in the possession of the adverse party or a third party, the party can apply to the court for an order directing production of the certificate. The court may also summon the person who can provide it.
Relevance: Settled the law conclusively. Certificate is mandatory; but the court has procedural powers to obtain it if the device is not in the party's possession.
Presumptions: S.79 to S.82
| Section | Presumption | Content |
|---|---|---|
| S.79 | Electronic agreements | Court shall presume that every electronic record purporting to be an agreement and authenticated by digital signature was concluded by the parties |
| S.80 | Electronic records (5 years) | Court shall presume that an electronic record maintained in the regular course of business for 5 years or more was produced by the person stated |
| S.81 | Digital signatures | Court shall presume that a digital signature affixed was affixed with the intention of approving the document |
| S.82 | Electronic messages | Court may presume that an electronic message forwarded by the originator through an electronic mail server was sent by the originator |
Important: "Shall presume" vs "May presume"
- S.79, S.80, S.81: "Shall presume" (mandatory presumption, rebuttable).
- S.82: "May presume" (discretionary presumption, rebuttable).
Social Media and Messaging Evidence
Under the BSA framework:
- WhatsApp messages, emails, Facebook posts, and similar content are electronic records.
- They require a S.63(4) certificate for admissibility.
- The certificate must come from a person in a responsible position relating to the device that stored/produced the record.
- Screenshots without a certificate are inadmissible under Anvar PV.
- S.82 creates a presumption about electronic messages sent from a mail server.
Recall Check
- What are the four conditions for admissibility under S.63(1)?
- What must a S.63(4) certificate contain?
- What did Anvar PV hold about the certificate?
- How does the BSA differ from the IEA on classification of electronic evidence?
Key Cases
Anvar PV v PK Basheer (2014) Anvar PV v PK Basheer 2014
Issue: Whether electronic evidence is admissible without a S.65B(4) certificate.
Rule: S.65B is a complete code; the certificate is mandatory; general provisions cannot bypass it.
Held: CDs without certificate inadmissible.
Arjun Panditrao v Kailash Kushanrao (2020) Arjun Panditrao v Kailash Kushanrao 2020
Issue: Whether the S.65B(4) certificate requirement can be relaxed.
Rule: Certificate is mandatory; but court can direct its production if device is with the adverse party.
Held: Confirmed Anvar PV; overruled Shafhi Mohammad to the extent of any relaxation.
Distinctions
| Basis | Electronic Record with Certificate | Electronic Record without Certificate |
|---|---|---|
| Admissibility | Admissible as primary evidence | Inadmissible (Anvar PV) |
| Treatment | Primary evidence (BSA S.63) | Cannot be received in evidence at all |
| Challenge | Opponent may challenge authenticity, but record is in evidence | Record is not in evidence; court cannot look at it |
| Example | Hard disk printout + certificate from IT manager | Screenshot of WhatsApp without certificate |
| Basis | BSA S.63 (Electronic records) | BSA S.62 (Secondary evidence) |
|---|---|---|
| Applies to | Electronic records only | Physical documents |
| Relationship | Special provision (overrides general) | General provision |
| Certificate | S.63(4) mandatory | Not applicable |
| Classification | Primary evidence (with certificate) | Secondary evidence |
| Can S.62 bypass S.63? | No (Anvar PV) | N/A |
Flashcards
What does BSA S.63 require for admissibility of electronic records?
A certificate under S.63(4) identifying the record, describing the manner of production, giving device particulars, and signed by a person in a responsible position.
What did *Anvar PV v PK Basheer* hold?
S.65B (now S.63) is a complete code for electronic records. The certificate is mandatory. General provisions on primary/secondary evidence cannot bypass it.
How does the BSA treat a certified electronic record?
As primary evidence (unlike the IEA which treated S.65B records as secondary evidence).
What presumption does S.82 create?
The court MAY presume that an electronic message forwarded through an electronic mail server was sent by the originator.
What happens if the device is with the adverse party?
Per Arjun Panditrao, the court can direct the adverse party to produce the certificate or summon the relevant person.
Exam Scenario
Problem: In a defamation suit, Plaintiff P relies on (a) printouts of WhatsApp messages from Defendant D's number containing defamatory statements, and (b) a screenshot of D's Facebook post. P's lawyer attaches a certificate signed by P himself stating "these are true copies from my phone." D objects to both. Advise.
Step 1: Identify the nature of the evidence
Both WhatsApp printouts and Facebook screenshots are electronic records within S.63. They are computer output containing information stored in electronic form.
Step 2: Apply S.63(4) certificate requirements
| Requirement | P's certificate | Compliant? |
|---|---|---|
| Identify the electronic record | Yes (WhatsApp messages, Facebook post) | Partial |
| Describe manner of production | Not described | No |
| Give particulars of device | Not specified | No |
| Deal with conditions (a) to (d) | Not addressed | No |
| Signed by person in responsible official position relating to the device | Signed by P (the phone owner) | Possibly sufficient for his own phone |
Step 3: Assess the WhatsApp printouts
P's phone is the device from which the printouts were taken. P is the person in a responsible position relating to his own device. However, the certificate is deficient because it does not:
- Describe the manner of production (how the printout was taken)
- Give device particulars (phone model, OS)
- Address whether the phone was operating properly
The certificate in its current form is inadequate. P must file a proper certificate addressing all S.63(4) requirements.
Step 4: Assess the Facebook screenshot
The Facebook post originates from D's account on Facebook's servers. P has no control over Facebook's servers. The certificate must come from a person in a responsible position relating to the device that stored or produced the record.
| Option | Feasibility |
|---|---|
| Certificate from Facebook (Meta) | Practically very difficult |
| Certificate from P's phone (where screenshot is stored) | Certifies only that the screenshot exists on P's phone, not that the content is authentic |
| Court order under Arjun Panditrao | P may apply to court to direct Facebook or D to produce certificate |
Step 5: Apply Anvar PV
Without a compliant S.63(4) certificate, both records are inadmissible. P cannot bypass S.63 by relying on general provisions (S.61 or S.62). Anvar PV is clear: S.63 is a complete code.
"True copy" is not a S.63(4) certificate. A bare statement that something is a "true copy" does not satisfy the detailed requirements of S.63(4). The certificate must address the four conditions, describe the device, and explain the manner of production.
Third-party platforms complicate certification. For social media content hosted on external servers, the certifying person must relate to the device that produced/stored the record. This often requires the platform's cooperation or a court order.
Conclusion. Both the WhatsApp printouts and Facebook screenshot are inadmissible in their current form. P must file a proper S.63(4) certificate for the WhatsApp messages (from his own phone, addressing all four conditions). For the Facebook post, P should seek a court order under Arjun Panditrao directing production of a proper certificate, or obtain one from the platform.
See Also
- Primary and Secondary Evidence : the general framework that S.63 overrides for electronic records.
- Oral and Documentary Evidence : the basic distinction; electronic records are classified as documents.
- Presumptions as to Documents : S.79 to S.82 presumptions applicable to electronic records.