SC Clarifies Scope of “Expert” Under Section 63(4) BSA While Upholding Digital Evidence Safeguards

Supreme Court Clarifies Scope of “Expert” Under Section 63(4) BSA While Upholding Digital Evidence Safeguards

Pune Bar Association v. Union of India & Ors. (Supreme Court); Writ Petition (Civil) No. 599 of 2026 ; Order dated 22.05.2026

Introduction

In an important ruling concerning admissibility of electronic evidence under the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”), the Supreme Court in Pune Bar Association v. Union of India clarified that the expression “expert” under Section 63(4) cannot be restrictively confined only to government-notified Examiners of Electronic Evidence under Section 79A of the Information Technology Act, 2000.

The judgment assumes considerable significance in modern litigation where electronic records increasingly form the foundation of disputes involving:

• emails,
• WhatsApp chats,
• CCTV footage,
• hard disk extraction reports,
• cloud-based records,
• digital invoices,
• mobile phone data,
• and other electronically stored information.

The Court recognized that while electronic evidence requires robust safeguards to ensure integrity and authenticity, the evidentiary framework cannot be interpreted in a manner that renders practical access to justice impossible.

Background of the Dispute

The Pune Bar Association approached the Supreme Court contending that the mandatory certificate prescribed under Section 63(4) of the BSA imposed severe practical difficulties upon litigants.

Under the prescribed statutory format:

• Part A requires disclosure of particulars relating to the electronic record including its hash value;
• while Part B requires certification by an “expert”.

The petitioner particularly relied upon a judgment of the Madras High Court in R. v. B & Anr., where it was observed that Part B must be signed only by an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000.

It was argued that:

• only a limited number of government forensic laboratories are notified under Section 79A;
• access to such facilities is extremely limited;
• and insisting exclusively upon such certification would make implementation of Section 63(4) practically unworkable for ordinary litigants.

Supreme Court’s Observations on Electronic Evidence

The Supreme Court noted that electronic records constitute a distinct category of evidence because:

• digital data is susceptible to continuous alteration and manipulation;
• electronic records can be modified without visible traces;
• and developments in artificial intelligence and deepfake technology have further complicated evidentiary reliability.

The Court observed that:

• hash values act as digital fingerprints of electronic data;
• and expert certification provides an additional layer of authenticity to secondary electronic evidence.

The Court therefore recognized the legislative intent behind incorporating stricter procedural safeguards for electronic records under the BSA.

The Real Issue Before the Supreme Court

Who Can Sign Part B of the Certificate?

The central controversy before the Court was:

whether only Section 79A notified Examiners of Electronic Evidence could sign Part B of the statutory certificate.

The Madras High Court had earlier interpreted the provision restrictively by linking Part B certification exclusively to Section 79A notified entities.

The Supreme Court, however, clarified that such interpretation could not be treated as binding precedent.

Harmonious Interpretation of Section 39 BSA and Section 79A IT Act

The Supreme Court closely examined Section 39 of the BSA which deals with admissibility of expert opinions.

The Court observed that:

• Section 39(1) broadly recognizes opinions of persons specially skilled in science, art or any other field;
• whereas Section 39(2) specifically recognizes opinions of Examiners of Electronic Evidence under Section 79A of the IT Act.

The Court held that these provisions must be read harmoniously.

Accordingly, the Court clarified that:

apart from Section 79A notified entities, any person possessing special skill and expertise in computer science or cyber forensics may also qualify as an expert for purposes of signing Part B of the certificate, provided the Court is satisfied regarding such expertise on the basis of unimpeachable material.

This clarification significantly widens the practical scope of admissible expert certification under Section 63(4).

Important Legal Reasoning Adopted by Supreme Court

A very important aspect of the judgment is the Court’s observation that:

• Section 39(2) is not prefaced by a non-obstante clause;
• therefore it cannot exclude operation of the broader category of experts recognized under Section 39(1).

The Court thus rejected an interpretation that would confine electronic evidence certification exclusively to government-notified laboratories.

Harmonious Interpretation Adopted by Supreme Court

Significant Practical Impact of the Judgment

The ruling is likely to have major implications across multiple areas of litigation including:

• GST investigations,
• DGGI proceedings,
• white collar crime matters,
• arbitration,
• cyber fraud litigation,
• commercial disputes,
• and criminal trials involving digital records.

In modern tax investigations particularly:

• WhatsApp chats,
• Excel sheets,
• laptop extraction reports,
• cloud backups,
• and electronic communications
  frequently constitute core evidentiary material.

The judgment therefore provides much-needed practical flexibility in authentication of such evidence.

Important Litigation Implications

This ruling is likely to influence future disputes involving:

• admissibility of electronic evidence,
• Section 63(4) compliance,
• digital forensic standards,
• evidentiary integrity,
• chain of custody disputes,
• and cyber forensic authentication.

At the same time, the judgment also reinforces the growing importance of:

• proper electronic record preservation,
• hash value documentation,
• forensic extraction procedures,
• and evidentiary compliance while relying upon digital material.

Supreme Court Keeps Larger Question Open

An important nuance in the judgment is that while the Supreme Court clarified that the Madras High Court view shall not be treated as binding precedent, it refrained from giving any final or conclusive determination on the larger legal issue.

The Court specifically observed that:

the question of law is kept open.

Accordingly, future litigation may further develop jurisprudence regarding:

• scope of expert certification,
• admissibility standards,
• and evidentiary treatment of electronic records under the BSA.

Conclusion

The Supreme Court’s decision represents an important attempt to balance:

• integrity of electronic evidence,
  with
• practical accessibility of the justice delivery system.

The Court recognized that while electronic records require stronger safeguards because of their vulnerability to manipulation, such safeguards cannot be interpreted so rigidly that ordinary litigants become dependent exclusively upon a handful of government forensic laboratories.

By harmoniously reading Section 39(1), Section 39(2) and Section 79A of the IT Act, the Court ensured that the electronic evidence framework under the Bharatiya Sakshya Adhiniyam remains both:

• technologically credible,
  and
• practically workable.

Relevant Statutory Provisions

Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023

In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.

Section 39 of the Bharatiya Sakshya Adhiniyam, 2023

Section 39(1)

When the Court has to form an opinion upon a point of foreign law or of science or art, or any other field, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or any other field, or in questions as to identity of handwriting or finger impressions are relevant facts and such persons are called experts.

Section 39(2)

When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 is a relevant fact.

Section 79A of the Information Technology Act, 2000

The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.

Explanation.—For the purposes of this section, ‘electronic form evidence’ means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.