Section 84 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Introduction to the Bharatiya Sakshya Adhiniyam (BSA), 2023:
The Bharatiya Sakshya Adhiniyam (BSA), 2023, is the Indian Evidence Act 2023, which replaced the older Indian Evidence Act of 1872. The new law seeks to modernize the rules of evidence to align with contemporary legal needs and technologies. Section 84 of the BSA, 2023, deals with the presumption of documents as genuine under certain conditions.
Text of Section 84 BSA, 2023:
Section 84: Presumption as to documents produced by electronic means
A document produced by electronic means shall be presumed to be genuine unless the contrary is shown, and it shall be presumed that the document is not altered, tampered with, or forged unless proven otherwise.
Key Concepts in Section 84 BSA, 2023:
Document Produced by Electronic Means:
The term “document” here refers to any piece of written or recorded information, including digital documents, emails, texts, or any record created or stored electronically. This provision recognizes the growing role of digital evidence in judicial proceedings.
The use of electronic means refers to documents that have been created, stored, or transmitted digitally, such as email records, e-documents, e-signatures, and other forms of electronic records (e.g., audio or video recordings).
Presumption of Genuineness:
Presumption of authenticity: Under this section, a document produced through electronic means will be presumed to be genuine unless proven otherwise. This presumption is crucial because it facilitates the acceptance of digital evidence without the need for initial proof of authenticity in every case.
The presumption applies automatically to any document produced by electronic means unless a party challenges its authenticity.
Non-Alteration:
Section 84 further presumes that the electronic document has not been altered, tampered with, or forged. This presumption stands unless the opposing party produces evidence proving that the document has been changed or forged. The challenge here lies in demonstrating alterations, especially given the difficulty in detecting tampered digital evidence without forensic expertise.
Contrary Evidence:
The party challenging the authenticity of the document must provide evidence to prove that the document is not genuine, or that it has been tampered with or forged. This provision effectively shifts the burden of proof to the party disputing the document’s authenticity, making it easier for digital evidence to be accepted in court.
Importance of Section 84 BSA, 2023:
Evidentiary Shift Toward Digital Evidence:
In today’s digital age, much of the information in legal proceedings comes from electronic sources, such as emails, text messages, and electronic contracts. This section acknowledges the role of electronic documentation in legal matters.
The presumption of genuineness allows courts to more efficiently handle digital documents without requiring additional proof of authenticity for each piece of digital evidence presented.
Efficient Legal Proceedings:
The provision streamlines legal processes, especially in complex cases involving digital evidence. By reducing the procedural burden of proving the authenticity of electronic records, it saves time and resources, and ensures that courts are not bogged down by unnecessary challenges to basic electronic documents.
Encouragement of Use of Digital Documents:
The law encourages the use of digital records and documentation, which are easier to manage, store, and retrieve, as opposed to paper documents. It also supports the adoption of e-filing systems, making the judicial process more accessible and transparent.
Case Law – Judicial Interpretation of Electronic Evidence (IPC Precedent & Similar Provisions)
Since Section 84 BSA, 2023 is a part of the new Evidence Act, there are no direct cases under this section yet (as of 2024). However, earlier case law regarding electronic evidence and presumptions under the Indian Evidence Act, 1872 can offer insights into how courts are likely to approach Section 84 under BSA, 2023.
Below are relevant case law precedents from the previous Evidence Act (IPC) that help interpret provisions dealing with electronic records:
State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600:
In this landmark case, the Supreme Court of India dealt with the admissibility of digital evidence (in this case, a CD recording). The Court held that electronic records are admissible as evidence if they meet certain criteria, including the authentication of the electronic record.
The case laid down that Section 65B of the Indian Evidence Act, 1872, which deals with certificates for electronic documents, needs to be satisfied for admitting electronic records into evidence.
The principles laid out in this case will likely influence the interpretation of Section 84 BSA, 2023, particularly with regard to presumption of authenticity for electronic records.
Anwar P.V. v. P.K. Basheer (2014) 10 SCC 473:
This case reiterated the need for proper certification and admissibility of electronic records as per Section 65B of the Indian Evidence Act. It also highlighted that while digital evidence can be presumed to be genuine, a certificate under Section 65B (of the previous Evidence Act) is required to authenticate such documents.
Although Section 84 BSA, 2023, doesn’t explicitly require this certificate, it’s important to note that certification and authenticity checks are still crucial for ensuring the credibility of digital documents.
Shafi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 476:
The Supreme Court, while dealing with a case involving electronic evidence in the form of WhatsApp messages, stated that electronic communications are admissible if they meet the criteria of Section 65B of the Indian Evidence Act, 1872.
The case clarified that although digital messages could be presumed genuine, courts still require the necessary certification to validate the chain of custody of the electronic records.
This case is important because it aligns with Section 84 BSA’s presumption of authenticity, yet emphasizes the need for judicial scrutiny and verification.
Implications and Practical Applications of Section 84 BSA, 2023
Ease of Admitting Electronic Evidence:
This section allows electronic records (emails, text messages, digital contracts, etc.) to be easily admitted in court. Given the presumption that such records are genuine unless proven otherwise, it simplifies the process of presenting digital evidence.
Dispute over Authenticity:
The burden of proof shifts to the party challenging the document’s authenticity. This will help expedite proceedings, especially in cases where one party claims a document is forged or tampered with.
To successfully challenge the authenticity, the opposing party will need to provide solid evidence of tampering (such as digital forensics or expert testimony). This can be difficult, especially in cases where digital documents have been created with the intention to deceive.
Challenges in Proving Tampering or Forgery:
While the presumption of genuineness is helpful, it does place a significant responsibility on the party disputing the document. Proving that a document has been tampered with or forged in the digital realm often requires sophisticated technical expertise and forensic analysis.
This can be a limitation in cases where tampering is subtle or difficult to detect without high-tech investigation tools.
Relationship with Other Sections of the BSA:
Section 84 works in harmony with other provisions that deal with electronic records, digital signatures, and certification of documents. It simplifies the process of proving the authenticity of digital evidence and reduces the likelihood of unnecessary challenges to such records.
It also integrates well with Section 65B BSA, which deals with the admissibility of electronic records, further emphasizing the importance of technology in modern legal proceedings.
Conclusion
Section 84 of the Bharatiya Sakshya Adhiniyam (BSA), 2023 plays a pivotal role in the modern legal framework by simplifying the acceptance of electronic documents as genuine unless proven otherwise. By shifting the burden of proof to the party challenging the document, it aims to facilitate smoother legal proceedings in an age dominated by digital communication and records.
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