The Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023) replaced the Indian Evidence Act, 1872 — a colonial-era statute that had governed Indian courts for over 150 years. For lawyers dealing with electronic evidence, the change is significant. Section 63 of the BSA 2023 replaces the old Section 65B of the Indian Evidence Act, and while the core framework is familiar, the new law introduces requirements that demand updated practices.
This guide covers what's changed, what hasn't, and how modern timestamping technology aligns with the new evidentiary framework.
The Evolution: From Section 65B to Section 63
Section 65B — What We Had
Section 65B of the Indian Evidence Act was introduced by the Information Technology Act, 2000 to address the admissibility of electronic records. It required that electronic evidence be accompanied by a certificate identifying the electronic record, describing the manner in which it was produced, and confirming the device was operating properly.
The section generated enormous litigation — most notably the Supreme Court's decisions in Anvar P.V. vs P.K. Basheer (2014) and Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal (2020), which established that the Section 65B certificate was mandatory (not optional) for electronic evidence admissibility.
Section 63 — What We Have Now
Section 63 of BSA 2023 carries forward the certificate requirement but with modifications that reflect two decades of judicial experience with electronic evidence:
Dual certification. The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities. The law contemplates both the person who managed the device and, where applicable, a technical expert who can speak to the integrity of the data.
Hash value requirement. Section 63 and its associated Schedule explicitly recognise hash values as a means of verifying the integrity of electronic records. The certificate must include the hash value of the electronic record, confirming that the record has not been altered since it was produced or captured. This is a significant development — it codifies what technical experts have long advocated and what courts have increasingly expected.
Specified format. The Schedule to Section 63 prescribes the format for the certificate, including specific fields for identifying the electronic record, the device that produced it, the hash algorithm used, and the hash value itself.
Computer output broadly defined. The BSA 2023 continues to define "computer output" broadly, encompassing any output produced by a computer — documents, images, audio, video, data logs, and any other electronic record.
What This Means in Practice
For Evidence Gathering
Lawyers advising clients on evidence preservation must now ensure that electronic records are accompanied by certificates that meet the Section 63 standard from the moment of collection. Retrospective certification — attempting to certify evidence long after it was collected — is significantly weaker than contemporaneous certification.
Practical implication: If your client has electronically stored information (ESI) that may be relevant to litigation, the time to certify it is now — not when the court asks for it. ProofLegal's timestamping creates a certified record of the document's hash value at the time of creation, which directly satisfies the hash integrity requirement.
For Litigation Strategy
The hash value requirement changes how lawyers approach electronic evidence challenges. Under the old regime, challenging electronic evidence often focused on procedural failures — was the certificate properly executed? Was the certifier authorised? Under the new regime, the hash value provides a technical integrity check that's either satisfied or it isn't.
If you can produce the original electronic record and demonstrate that its hash value matches the hash recorded at the time of certification, the integrity of the evidence is established with mathematical certainty. If the hashes don't match, the record has been altered — and no amount of testimony can overcome that.
For Document Authentication
Business documents, contracts, communications, and corporate records that may be needed as evidence should be hash-certified at the time of creation or receipt. This practice — essentially creating a contemporaneous integrity seal on every important document — dramatically strengthens the evidentiary foundation for any future litigation.
Blockchain Timestamps and Section 63
Blockchain-based timestamps are uniquely well-suited to the BSA 2023 framework for several reasons:
Hash value alignment. Blockchain timestamps operate by recording the SHA-256 hash of a document on a public, immutable ledger. This is precisely the hash integrity mechanism that Section 63 contemplates. The hash recorded on the blockchain can be independently verified by anyone, at any time, without relying on the certifier's testimony.
Temporal proof. Blockchain records include a timestamp — the date and time the hash was recorded. This establishes not just what the document contained, but when it existed in that form. For evidence where timing matters (contracts, communications, prior art, creation dates), this temporal proof is critical.
Immutability. Once recorded on a blockchain, a hash cannot be altered, deleted, or backdated. This immutability satisfies the integrity requirement more robustly than any single-party certification could.
Independent verification. Unlike a certificate that requires trust in the certifier, a blockchain record can be verified by anyone with access to the blockchain. The court itself can independently verify the timestamp without relying on either party's testimony.
TSA Certificates as Supplementary Proof
Trusted Stamp Authority (TSA) certificates, compliant with RFC 3161, provide an additional layer of temporal proof from a recognised certification authority. The combination of blockchain immutability and TSA certification creates dual-layer evidence that satisfies both the technical integrity requirements of Section 63 and the institutional credibility expectations of Indian courts.
Key Judicial Precedents Still Relevant Under BSA 2023
Anvar P.V. vs P.K. Basheer (2014)
The Supreme Court held that electronic evidence without a Section 65B certificate was inadmissible — period. This overruled earlier decisions that had treated the certificate as optional. Under BSA 2023, this principle continues: Section 63 certification is mandatory for electronic evidence.
Current relevance: The certification requirement isn't going away. Lawyers who present electronic evidence without proper certification risk having it excluded entirely.
Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal (2020)
The Supreme Court clarified that Section 65B(4) certificates are mandatory but can be produced at any stage of proceedings, and that the court can direct the production of such certificates. It also held that the requirement of a certificate can be relaxed by the court if the original document is produced.
Current relevance: While BSA 2023's Section 63 maintains the certification requirement, the flexibility around timing and production that the Supreme Court established in Arjun Panditrao likely continues to apply.
Shafhi Mohammad vs State of Himachal Pradesh (2018)
This decision introduced practical flexibility, recognising that in some cases (particularly involving mobile phone evidence), strict compliance with certification requirements could be relaxed.
Current relevance: BSA 2023 may be interpreted similarly for evidence from personal devices, but relying on judicial flexibility is inherently risky. Better practice: certify everything properly and never rely on the court's discretion to excuse non-compliance.
Practical Recommendations for Lawyers
Advise Clients on Proactive Certification
Don't wait for litigation. Advise clients — particularly corporate clients — to implement hash certification for all significant electronic records at the time of creation. Employment contracts, board resolutions, financial records, correspondence, and any document that might become evidence should be timestamped.
Build Evidence Packages with Hash Integrity
When assembling evidence for court, create a complete package for each electronic record: the original file, its SHA-256 hash value, the blockchain record confirming that hash, the TSA certificate, and a Section 63-compliant certificate tying everything together.
Challenge Opponent's Electronic Evidence Technically
The hash value requirement cuts both ways. If opposing counsel presents electronic evidence, demand the hash value and certification. If they can't produce it, challenge admissibility. If they can produce it but the hash doesn't match the document, the evidence is compromised.
Educate Courts Where Necessary
Many judges are still developing their understanding of hash functions, blockchain technology, and cryptographic proof. Be prepared to explain these concepts clearly and simply. A well-prepared technical primer — perhaps as part of written submissions — can help the court appreciate the reliability of your evidence.
Maintain Chain of Custody Documentation
Hash certification proves integrity but not chain of custody. Who collected the evidence? How was it stored? Who had access? Combine hash certification with documented chain of custody for the strongest possible evidentiary position.
The Intersection with Other Laws
Information Technology Act, 2000
The IT Act provides the foundational legal recognition of electronic records and digital signatures. Section 63 of BSA 2023 builds on this foundation. Lawyers should be familiar with both statutes when dealing with electronic evidence.
Indian Contract Act
For contract disputes involving electronic agreements, Section 63 certification of the contract's hash value at the time of execution creates powerful evidence of the contract's contents and timing. This is particularly relevant for disputes where one party claims the contract was modified after execution.
Intellectual Property Laws
In copyright, patent, and trademark disputes, establishing the date of creation or first use is often decisive. Blockchain timestamps provide the kind of dated, integrity-verified evidence that IP disputes demand, now with explicit statutory support through BSA 2023's hash value recognition.
The Bottom Line
BSA 2023 has brought Indian evidence law into alignment with modern digital reality. The explicit recognition of hash values, the structured certification requirements, and the continuation of mandatory certification create a framework where blockchain timestamps and TSA certificates aren't just useful — they're the most natural way to satisfy the law's requirements.
For lawyers, the message is clear: electronic evidence without proper hash certification is a liability. With it, it's among the strongest evidence a court can receive.