Section 63 Certificate: How Electronic Evidence Is Actually Proved in Indian Courts

Summary: The article explains the admissibility of electronic records under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, which replaced Section 65B of the Indian Evidence Act, 1872 from 1 July 2024. It states that electronic records such as WhatsApp chats, emails and CCTV footage may be admitted without producing the original device when the statutory conditions are satisfied, including the certificate requirement under Section 63(4). The article refers to State (NCT of Delhi) v. Navjot Sandhu, where certification was treated as one method of proving electronic records, and to Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, which held that certification is mandatory for copies of electronic records. It further discusses Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, which reaffirmed the mandatory certificate requirement for secondary electronic evidence while recognising a remedy where a party is genuinely unable to obtain the certificate despite best efforts. The article states that Section 63(4) introduces a two-part certificate signed by the person responsible for the device and an expert, and outlines practical requirements and common mistakes concerning electronic evidence.

Introduction

A company relies on a WhatsApp exchange to prove that a vendor confirmed a delivery date. The chat is genuine, the messages are relevant, and nobody disputes that the conversation took place. Yet when the matter reaches trial, the other side objects, and the court refuses to look at the chat at all. Not because the messages are false, but because no certificate was filed along with them. This surprises many litigants and even some professionals, because the law does not require electronic evidence to be doubted. It requires it to be certified.

This article explains what that certificate is, why Indian law insists on it, and what businesses need to do to avoid losing the benefit of genuine electronic records.

What Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 Actually Says

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 governs the admissibility of electronic records in Indian courts. It provides that information contained in an electronic record, whether printed on paper, stored on a computer, or copied onto optical or magnetic media, is deemed to be a document and can be admitted as evidence without producing the original device, provided the conditions set out in the section are satisfied.

This provision is the direct successor to Section 65B of the Indian Evidence Act, 1872. The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024 and replaced the Evidence Act in its entirety, but the underlying logic of Section 63 remains close to what Section 65B required.

The reasoning behind the section is straightforward. A screenshot, an email printout, or a WhatsApp export is not the original event. It is a copy generated by a device, and devices can misrepresent data through corruption, tampering, or simple technical error. Rather than asking a judge to take a party’s word that a printout is accurate, the law asks for a formal, signed statement confirming how the record was produced and that the device was functioning properly at the relevant time.

Why the Certificate Exists

Before this framework existed in a settled form, courts struggled with how to treat electronic copies. In State (NCT of Delhi) v. Navjot Sandhu, the Supreme Court took the view that a certificate was one way of proving electronic records but not the only way, allowing such evidence to be proved through general rules of secondary evidence instead.

That position created inconsistency, because it meant electronic evidence could sometimes be let in through the back door without any verification of the device or the process that produced it. The Supreme Court corrected this in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, holding that where a party relies on a copy of an electronic record rather than the original device, the certificate is not optional. Without it, the copy simply cannot be admitted.

The Court revisited the point again in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, which remains the leading judgment on the subject. The Court reaffirmed that the certificate requirement is mandatory wherever secondary electronic evidence is produced, while also clarifying that a party who is genuinely unable to obtain the certificate despite best efforts is not left without any remedy, since the court retains the power to summon the necessary information under its general powers.

Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 continues to reflect this settled position, which means the certificate requirement is not a technicality that Indian courts are likely to relax. It is the backbone of how digital evidence gets accepted at all.

What Changed From Section 65B: The Dual Certificate

One meaningful change under the Bharatiya Sakshya Adhiniyam, 2023 is the introduction of a two-part certificate requirement. Under the old Section 65B framework, a certificate from the person in charge of the relevant device or system was generally sufficient. Under Section 63(4), the certificate must now be signed both by the person responsible for the device and by an expert.

In practical terms, this means a business relying on server logs, CCTV footage, or a company email account cannot simply have an IT manager sign off on the record. An independent technical expert also needs to certify the process, often including a hash value confirming that the record has not been altered since it was extracted.

How This Applies in Practice

WhatsApp Chats

For a WhatsApp chat, the certificate generally needs to specify which device the chat was extracted from, the method of extraction, and that the phone was operating normally at the time in question.

Emails

For an email, the certificate needs to identify the mail server or account, describe how the email was retrieved or printed, and confirm the integrity of the record between the time it was sent and the time it was extracted for use in court.

CCTV Footage

For CCTV footage, given that footage often passes through a recording device, a storage system, and sometimes cloud backup, the certificate needs to account for each stage the data has moved through, which is where the expert signature becomes particularly important.

Common Mistakes Businesses Make

Several recurring errors reduce or destroy the value of otherwise genuine electronic evidence.

• Filing the electronic record without any certificate at the time of filing, and attempting to produce the certificate later.
• Treating a plain printout as self-proving, without addressing how it was generated.
• Relying only on the device custodian’s signature and skipping the expert certification now required under Section 63(4).
• Failing to record the hash value at the point of extraction, so the integrity of the record cannot later be demonstrated.
• Assuming that because the content of a message is not disputed, the certificate requirement does not apply.

None of these are matters of bad faith. They usually happen because a business assumes an authentic record speaks for itself. Under Indian law, it does not.

Practical Steps for Businesses and Litigants

• Identify at the outset which electronic records are likely to matter in a dispute, and preserve the original device or system wherever possible.
• Extract records early, and record the hash value at the time of extraction rather than after a dispute has already begun.
• Engage a qualified expert for the certification of technically complex records such as server data or CCTV footage.
• Prepare the certificate alongside the record itself, rather than as an afterthought once litigation has started.
• Keep a clear internal log of who accessed, extracted, or handled the electronic record, since this supports the certificate and reduces room for challenge.

Conclusion

Electronic records have become the nucleus of communication and contracting in business**,** and Indian courts have not lagged behind in giving them statutory recognition. But recognition comes at a cost. A WhatsApp chat, an email, or a piece of CCTV footage does not prove itself. It needs a certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, prepared correctly and filed at the right stage, before a court will treat it as reliable evidence. Businesses that build this into their documentation practice, rather than scrambling for it once a dispute has already begun, put themselves in a far stronger position when the underlying record actually matters.

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Disclaimer: This article is intended for general legal awareness and should not be construed as legal advice. The admissibility of electronic evidence depends on the facts of each case and the applicable law.