SC Upholds Section 63(4) as Hash Value Requirement Ensures Authenticity of Electronic Evidence

Pune Bar Association Vs Union of India and Others (Supreme Court of India)

The Supreme Court considered a petition filed by the Pune Bar Association challenging the constitutional validity of Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), read with the Schedule thereto. The petitioner contended that the provision imposed undue hardship on litigants by requiring a certificate containing disclosure of the hash value of electronic records in Part A and certification by an expert in Part B as preconditions for admissibility of electronic evidence. It was argued that such requirements were onerous, arbitrary, and unjust.

The Court observed that with technological advancement, electronic records such as emails and audiovisual clips had become commonplace in litigation, replacing physical documents. To address admissibility of such records, Section 65B had earlier been incorporated in the Indian Evidence Act, 1872, which was subsequently replaced by Section 63(4) of the BSA. The Court noted that the Statement of Objects and Reasons of the BSA emphasised admissibility of electronic records and recognition of matching hash values as proof of evidence in the form of secondary evidence.

The Court held that electronic records are susceptible to mutation and modification, affecting authenticity and evidentiary value, particularly in light of artificial intelligence and deepfake technology. It observed that the requirement of disclosure of hash value in the certificate ensured authenticity and integrity of electronic records and had a rational nexus with the object of the law. The Court further held that certification by an expert under Part B provided an additional layer of authenticity to secondary electronic evidence. Accordingly, the Court concluded that Section 63(4) could not be said to be arbitrary or unreasonable.

The petitioner also relied upon a Madras High Court judgment which had interpreted Part B of the Schedule to mean that certification must be issued 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 such entities had been notified, making compliance difficult.

The Supreme Court examined Sections 39(1) and 39(2) of the BSA and held that if both provisions were read harmoniously, in addition to persons notified under Section 79A of the IT Act, any other person possessing special skill and expertise in computer science and cyber forensics could also be treated as an expert if the Court was satisfied on the basis of unimpeachable material. The Court observed that Section 39(2) was not prefaced by a non-obstante clause excluding the operation of Section 39(1). Accordingly, the Court clarified that the Madras High Court’s finding that Part B must necessarily be filled by an expert notified under Section 79A of the IT Act would not be treated as a binding precedent.

The Supreme Court declined to admit the matter or issue notice to the Union of India and refrained from expressing any conclusive opinion on the issue relating to experts under Section 79A. The question of law was kept open, and the petition was disposed of with the above clarification.

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

FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER

1. Petitioner, Pune Bar Association, contends that Section 63(4) of Bharatiya Sakshya Adhiniyam, 2023¹, read with the Schedule thereto is unconstitutional as it imposes undue hardship on an ordinary litigant by requiring submission of a certificate prescribed in the Schedule comprising Part A which needs disclosure of the hash value of digital records, and Part B which must be signed by an expert. Ld. Counsel argues imposition of such pre-requisites for admissibility of electronic records is an extremely onerous obligation on a litigant and renders the provision manifestly arbitrary and unjust.

2. With advancement of technology, digital space has encroached on all spheres of human life. Consequently, evidence in the form of electronic record has become commonplace in all litigation. Physical documents are increasingly replaced with digital records like electronic mails, audio­visual clips etc. To address the admissibility of such electronic records, Section 65B was incorporated in the erstwhile Evidence Act². Subsequently, BSA replaced the said provision with Section 63(4) which inter alia provides that electronic records must be accompanied by a certificate as set out in the Schedule to the Act. The certificate so prescribed comprises Part A, which inter alia requires disclosure of hash value of the electronic records in addition to the declaration required under the erstwhile Section 65B of the Evidence Act. Part B of the certificate requires a further declaration signed by an expert.

3. Electronic record is a unique species of evidence which is liable to continuous mutation and modification affecting its authenticity, integrity and intrinsic evidentiary value. Challenges to admissibility and probative value of electronic records are further accentuated with the advent of artificial intelligence and deepfake technology. Such fast and varied transformation in technology necessitated reviewing the erstwhile Evidence Act and the BSA was enacted. Statement of objects and reasons for enacting the BSA inter alia emphasises:

“(ii) it provides for admissibility of an electronic or digital record as evidence having the same legal effect, validity and enforceability as any other document;

(iii) it seeks to expand the scope of secondary evidence to include copies made from original by mechanical processes, copies made from or compared with the original, counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has himself seen it and giving matching hash value of original record will be admissible as proof of evidence in the form of secondary evidence .”

4. To achieve such objective, Section 63(4) of BSA improved upon the certificate envisaged under the old law by mandating the issuance of a standard-form certificate prescribed in the Schedule which inter alia requires the disclosure of hash value of the electronic/digital record along with a further certification by an expert. Hash value of an electronic data is synonymous with an electronic fingerprint and provides a sure way of identifying and verifying digital data. The necessity of incorporating the hash value of the electronic record in the certificate is thus to ensure its authenticity and integrity, and cannot be said to lack a rational nexus with the object of the Act. Similarly, certification by an expert in Part B provides an additional layer of authenticity to the secondary electronic evidence. For these reasons, we are of the considered view that the new provision has a clear and rational nexus with the object of the law and cannot be said to be either arbitrary or unreasonable so as to suffer from the vice of manifest arbitrariness.

5. At this juncture, referring to a judgement of the Madras High Court³, Ld. Counsel submits Part B must be filled up by an expert notified under Section 79A of the Information Technology Act, 2000⁴. He contends that only a handful of entities are authorized by the Central/State government to examine electronic evidence under the said provision, thereby causing undue hardship and rendering its implementation illusory.

6. We have perused the cited judgment, wherein the Madras High Court, in a matrimonial case instituted in 2019 inter alia held that the same would be governed by the erstwhile Evidence Act. Thereafter, it proceeded to analyse Part B of the Schedule in Section 63(4) to hold that the certificate by an expert therein must be by an Examiner of Electronic Evidence under Section 79A of the IT Act. In doing so, the High Court merely referred to Section 39(2) of the BSA and not sub-section (1). Section 39 deals with admissibility of opinions of experts. Sub-section (1) states when the Court has to form an opinion on a point of foreign law, science or art or any other field, or as to identity of handwriting or finger impressions, the opinion on that point of persons having special skill in such domain namely foreign law, science or art, or any other field, or in respect of identity of handwriting or finger impressions becomes a relevant fact. Sub­section (2) provides when in a proceeding, the Court has to form an opinion on any matter relating to information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence under Section 79A of the IT Act shall be treated to be that of an expert and be admissible as a relevant fact.

7. If the two sub-sections are read harmoniously, it is possible to hold, in addition to entities notified as Examiner of Electronic Evidence under Section 79A, if the Court is satisfied, on the basis of unimpeachable material, that any other person has special skill and expertise in computer science and cyber forensics, opinion of such person may be held relevant as an expert with regard to electronic/digital record and such person may sign Part B of the Schedule as an expert. We are further fortified to make such observation as sub-section (2) of Section 39 (unlike 63(4) and erstwhile 65B) is not prefaced by a non-obstante clause so as to exclude the operation of sub-section (1) from the arena of electronic records. The High Court had deferred adjudication of such issue and directed the State to notify adequate number of persons under Section 79A. Under these circumstances, we hold that the finding of the High Court that Part B must be filled up by an expert notified under Section 79A of the IT Act shall not be treated as a binding precedent. As we are not inclined to admit the matter and issue notice upon the Union of India, we refrain from giving any conclusive opinion on this issue and keep the question of law open. With this clarification, the petition stands disposed of.

The petition stands disposed of in terms of the signed order.

Pending application(s), if any, shall stand closed.

Notes:

1Hereinafter “BSA/the Act”

2 The Indian Evidence Act, 1872

2 v. B & Anr, 2024 SCC OnLine Mad 6084, Paras 5 to 6

4 Hereinafter “IT Act”