Evidence is what separates a conviction from an acquittal — and as of 1 July 2024, the rules governing what a court can accept as proof are entirely new. The Bharatiya Sakshya Adhiniyam, 2023 replaced the 152-year-old Indian Evidence Act of 1872, the law Sir James Stephen drafted in the colonial era. Most of the old principles survive, but the headline change matters to every modern case: your WhatsApp chats, CCTV footage, emails, and call records are now treated as full-fledged evidence in their own right — with a new, stricter certification process to get them admitted. This guide explains what the new evidence law keeps, what it changes, and what it means in practice.
Quick answer: The Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced the Indian Evidence Act, 1872 from 1 July 2024. It has 170 sections and applies to all court proceedings (except arbitration). Its biggest change is treating electronic and digital records as primary evidence (Sections 57, 61, 63), with a new dual-signature certificate under Section 63 — signed by both the person in charge of the device and a forensic expert — replacing the old Section 65B certificate. Core principles survive: police confessions stay inadmissible, dying declarations and the hearsay exceptions remain, and the burden-of-proof rules continue.
Why a new evidence law?
The Indian Evidence Act, 1872 served for over 150 years, but it was written for a world of paper documents and oral testimony. Crime — and the trail it leaves — moved online: messages, server logs, location data, digital images. Although the old Act was patched in 2000 to deal with electronic records (the now-famous Section 65B), the framework remained awkward and heavily litigated. The BSA is part of the trio of new criminal laws (alongside the Bharatiya Nyaya Sanhita and the Bharatiya Nagarik Suraksha Sanhita) intended to modernise India's justice system for the digital age, simplify language, and shed colonial-era references.
What "evidence" means and its types
"Evidence" means the material a court uses to decide the facts of a case. It's classified in several overlapping ways:
- Oral evidence — what witnesses say in court.
- Documentary evidence — documents produced for inspection, now expressly including electronic and digital records.
- Primary vs secondary — the original document versus copies or substitutes.
- Direct vs circumstantial — evidence that proves a fact directly versus evidence from which a fact is inferred.
The BSA retains this basic architecture while expanding what counts as a "document."
Oral and documentary evidence
The BSA preserves the foundational rules: oral evidence must be direct (a witness speaks to what they personally perceived), and the contents of documents are generally proved by the document itself (primary evidence) or, where permitted, by secondary evidence. The crucial expansion is in the definition of "document" — it now includes electronic and digital records, so an email or a video file is a document like any paper one.
The big change: electronic and digital records
This is the heart of the BSA, and the part most likely to affect a real case. Three sections work together:
- Section 57 defines "document" to include electronic and digital records, and treats electronic records as capable of being primary evidence.
- Section 61 is the enabling rule: admissibility of an electronic or digital record cannot be denied merely because it is electronic — such records have the same legal effect and validity as other documents (subject to Section 63).
- Section 63 governs the admissibility of electronic records and replaces the old Section 65B.
The practical effect: emails, WhatsApp messages, CCTV footage, server logs, and files on phones and laptops can be produced directly as evidence — and, importantly, the BSA blurs the old, much-litigated line between an "original" electronic record (primary) and a copy (secondary), treating reliable electronic records as primary evidence.
Section 63 and the new certificate
To admit an electronic record, you still need a certificate — but the requirement is now stricter. Under Section 63(4), the certificate must be in the format prescribed in the Schedule to the BSA, in two parts:
- Part A — completed by the person in charge of the device/computer, with details of the device and the hash value (a unique digital fingerprint, e.g., using SHA-256) of the record.
- Part B — completed by an expert (such as an Examiner of Electronic Evidence), providing technical authentication.
This dual-signature requirement — device-controller and expert — is the single biggest practical change for litigators, replacing the single signatory that sufficed under the old Section 65B. The aim is to strengthen the integrity and reliability of digital evidence and reduce tampering disputes.
Confessions and admissions
The BSA retains the strong protections around confessions:
- A confession made to a police officer is inadmissible against the maker.
- A confession made while in police custody is generally inadmissible unless made in the immediate presence of a Magistrate.
- A confession obtained by inducement, threat, coercion, or promise is inadmissible — and the BSA expressly adds "coercion" to the vitiating factors.
Admissions (statements suggesting an inference about a fact in issue) remain relevant but are not conclusive.
Burden of proof and presumptions
The familiar rules continue: the burden of proof lies on the party who asserts a fact, and in criminal cases the prosecution must prove guilt beyond reasonable doubt. The BSA retains the framework of presumptions — facts the court may or must presume (such as the genuineness of certain official documents) — and the rules on estoppel, relevancy of facts, examination of witnesses, and expert opinion (now expressly including electronic-evidence examiners).
What stayed the same
Despite the new name and numbering, much of the substance survived: the hearsay rule and its established exceptions, dying declarations (admissible), res gestae, the inadmissibility of police confessions, the rules on relevancy and character evidence, and the basic burden-of-proof architecture. For practitioners, a large part of the transition is learning the new section numbers for old, familiar rules.
Worked example
In a cheating case, the prosecution wants to rely on a series of WhatsApp messages and a bank's server log. Under the old law, this meant wrestling with the Section 65B certificate and arguments over original vs copy. Under the BSA, the messages and log are documents (Section 57) whose admissibility can't be denied just because they're electronic (Section 61). To get them in, the prosecution files the Section 63 certificate in the prescribed format — Part A by the official in charge of the device/record with the hash value, and Part B by a forensic expert. Properly certified, the digital records go in as evidence; a missing or single-signature certificate is now a fatal gap.
Common mistakes
- Using the old Section 65B certificate. It's replaced by the Section 63 dual-signature certificate.
- Forgetting the expert signature (Part B). A single signatory no longer suffices.
- Omitting the hash value. The certificate format requires it to prove integrity.
- Assuming a police confession is usable. It remains inadmissible against the maker.
- Ignoring chain of custody. Mishandled digital evidence can be challenged and excluded.
Key takeaways
- The BSA replaced the Indian Evidence Act, 1872 from 1 July 2024 (170 sections).
- Electronic and digital records are now documents and can be primary evidence (Sections 57, 61, 63).
- Section 63 requires a two-part certificate signed by the device-controller and an expert, with a hash value.
- Police confessions stay inadmissible; "coercion" is added as a vitiating factor.
- Burden of proof, presumptions, dying declarations, and hearsay exceptions largely survive.
- Much of the transition is learning new section numbers for familiar rules.
Frequently asked questions
What replaced the Indian Evidence Act, 1872? The Bharatiya Sakshya Adhiniyam, 2023, in force from 1 July 2024.
How is electronic evidence treated under the BSA? Electronic and digital records are documents and can be primary evidence; admissibility can't be denied just because they're electronic, subject to the Section 63 certificate.
What is the new Section 63 certificate? A two-part certificate (replacing Section 65B) — Part A by the person in charge of the device and Part B by an expert — including the record's hash value, in the format prescribed in the Schedule.
Are confessions to police admissible under the BSA? No. A confession to a police officer remains inadmissible against the maker; confessions obtained by coercion are also inadmissible.
Did the BSA change the burden of proof? No. The burden lies on the party asserting a fact, and criminal guilt must be proved beyond reasonable doubt.
This article is for legal awareness and education only and is not legal advice. Evidence law is technical and case-specific; consult a qualified advocate, especially for digital-evidence certification.