Introduction
A WhatsApp chat, a CCTV clip, a call detail record or a GPS location can now decide whether a person walks free or goes to jail. Digital footprints are everywhere, and criminal investigations in India depend on them more than ever. But a file on a phone is not like a knife or a signed letter. It can be copied, edited, deleted or even created from scratch, often without leaving any visible mark. This raises a basic question: can electronic evidence be trusted, and can we use it without harming the accused person’s right to a fair trial? This article looks at how Indian law, especially the Bharatiya Sakshya Adhiniyam, 2023 (BSA), and the Supreme Court have tried to answer it.
Why Digital Evidence Matters
Crime has moved online, and even traditional crimes leave digital traces. In the Mohd. Ajmal Amir Kasab case (2012) 9 SCC 1, arising from the 26/11 Mumbai attacks, CCTV footage, intercepted calls and electronic records helped the prosecution build its case. In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600, the Parliament attack case, call records were central to proving links between the accused.
The strength of such evidence is that it is often objective. A phone tower record does not forget or get nervous in the witness box. Its weakness is that it can be tampered with by anyone with basic technical skills. Courts must therefore balance two things: not ignoring powerful technology-based proof, and not convicting someone on a file that nobody can really verify.
The Legal Framework under the BSA, 2023
The BSA replaced the Indian Evidence Act, 1872 and came into force on 1 July 2024. It gives electronic records a much clearer place in the law. Section 2(1)(e) widens the definition of “document” to include electronic and digital records, and Section 2(1)(d) includes electronically given statements within “evidence”. This means that a court can no longer treat digital material as a second-class kind of proof.
Section 61 states that an electronic or digital record shall not be denied legal effect or admissibility merely because it is in electronic form. Section 62 then clarifies that the contents of electronic records must be proved according to Section 63. Section 63, which replaces Section 65B of the old Act, is the heart of the matter. It allows a computer output, such as a printout or a copy on a pen drive, to be treated as a document if certain conditions are met. The computer must have been regularly used for the relevant activity and must have been working properly during that time.
Section 63 requires a certificate. A notable change is that the BSA gives a prescribed format in its Schedule. Part A is signed by the person in charge of the device and Part B by an expert, and the certificate must also mention hash values, which work like a digital fingerprint of the file. If even one character of the file changes, the hash changes. This is a sensible reform, because it gives the court a technical way to check that the copy produced is the same as the original.
Other provisions help as well. Section 57 deals with primary evidence and explains how electronic records are treated as original in various situations, while Section 58 covers secondary evidence. Section 39 allows the opinion of experts, including digital forensic experts, to be considered by the court. Together these sections create a basic structure of admissibility, authenticity and expert verification.
The Courts’ Journey: Four Landmark Decisions
The Supreme Court’s approach to electronic evidence has not been smooth. In Navjot Sandhu case (2005), the Court allowed printouts of call records even without the Section 65B certificate, saying that other forms of proof could be used. This was a relaxed approach.
That changed in Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473. A three-judge bench overruled Navjot Sandhu on this point and held that the Section 65B certificate was mandatory for secondary electronic evidence such as CDs and printouts. The Court was worried about easy manipulation of electronic data and said that without safeguards the whole trial could be misled.
Then came Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801, where a smaller bench softened the rule. It said that a party who does not have the device cannot be expected to produce a certificate. This created confusion, because it appeared to go against a larger bench.
The confusion was settled in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1. A three-judge bench held that Anvar was correct and Shafhi was wrongly decided. The certificate is a condition for admissibility of secondary electronic evidence. However, the Court added important flexibility. The certificate is not needed if the original device itself is produced in court by its owner, and where the person does not have the device or the certificate holder refuses to give it, the court can use its powers to summon the necessary document. The certificate can also be supplied at a later stage in appropriate cases, so that justice is not defeated by a technical delay.
Two other decisions are useful. In Tomaso Bruno v. State of U.P. (2015) 7 SCC 178, the Supreme Court said that CCTV footage is the best evidence and criticised the prosecution for not producing it, observing that a failure to do so can weaken the case. In Sonu v. State of Haryana (2017) 8 SCC 570, the Court held that an objection about a missing certificate should be raised at the time the evidence is tendered, and cannot be raised for the first time in appeal. This stops parties from using technical objections as an afterthought.
Can Electronic Evidence Really Be Trusted?
The honest answer is that it can be trusted only when it is handled properly. Digital evidence has four main weak points.
- First, tampering. Photos can be edited, audio can be spliced and screenshots can be fabricated. Deepfake technology has made this even more worrying, since a convincing fake video can be made by a person with a laptop.
- Second, chain of custody. If a seized phone passes through many hands without proper records, nobody can say what was done to it.
- Third, quality of forensic work. Many investigating agencies, particularly at the district level, do not have trained cyber experts or well-equipped labs, and delays at forensic laboratories are common.
- Fourth, context. A message may be real but misleading if it is shown without the rest of the conversation.
The Supreme Court has applied similar caution to voice evidence. In Ram Singh v. Col. Ram Singh (1985) Supp SCC 611, the Court laid down that a tape-recorded statement is admissible only if the voice is identified, the recording is accurate and not tampered with, and the subject matter is relevant. These ideas remain relevant to every digital recording today.
So the answer is neither a blind yes nor a blanket no. The record is only as reliable as the process used to collect, store and prove it.
Fair Trial Rights at Stake
A fair trial is part of the right to life and personal liberty under Article 21 of the Constitution. In Zahira Habibulla Sheikh v. State of Gujarat (2004) 4 SCC 158, the Court described a fair trial as one where neither the accused nor the victim is treated unjustly. Electronic evidence can affect this right in several ways.
The first is the right to see and challenge the evidence. If the prosecution relies on a hard disk or a large data dump, the accused must get a proper copy and enough time to examine it. Section 230 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) requires the court to supply police reports and documents to the accused, and this must include electronic material. A defence that cannot read or analyse the data is a defence in name only.
The second is the privilege against self-incrimination under Article 20(3). In Selvi v. State of Karnataka (2010) 7 SCC 263, the Court held that narco-analysis, polygraph and brain-mapping tests cannot be forced on a person. Questions arise today about forced fingerprint or face unlocking of phones and compelling passwords, because these may reveal personal thoughts and not just physical features. The law on this is still developing. In Ritesh Sinha v. State of U.P. (2019) 8 SCC 1, the Court allowed compelled voice samples for investigation, treating them like fingerprints, but the debate around passwords continues.
The third is privacy. In Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, a nine-judge bench recognised privacy as a fundamental right. A phone holds a person’s entire life, including messages, photos, health data and location history. Searching it without any limits is a serious intrusion. Any seizure or surveillance must therefore be lawful, necessary and proportionate. Illegally obtained evidence is not automatically thrown out in India, as courts focus mainly on relevance, but the manner of collection will affect how much weight a court gives to it.
The BNSS has added some protections. Section 105 requires audio-video recording of search and seizure, and Section 176(3) requires forensic experts to visit and videograph the scene of serious offences, those punishable with seven years or more. Section 530 allows trials and the recording of evidence through electronic means. If followed in practice, these provisions make the investigation itself more transparent and easier to verify.
The Way Forward
India has a good legal base, but its working on the ground needs improvement. A few steps would help. Police and forensic bodies need regular training and modern laboratories, with clear time limits for reports. Seizure of devices should follow a standard written procedure with sealed storage and proper logs, so that the chain of custody can be proved easily. Courts and lawyers should learn to read hash values and forensic reports, as the BSA certificate is only useful if it is understood and not treated as a mere formality.
The accused should have an equal chance to appoint a private forensic expert and to get a mirror image of the data. The law also needs to deal with newer problems like AI-generated content and deepfakes, where a certificate alone may not be enough. Finally, data protection rules must ensure that private information unrelated to the case is not exposed in open court.
Conclusion
Electronic evidence is neither a miracle nor a menace. It is a powerful tool, and it becomes dangerous only when it is accepted without checking. The BSA, 2023, with its certificate and hash-value requirements, together with decisions like Anvar, Arjun Panditrao and Puttaswamy, shows that Indian law is trying to find a middle path. Digital proof should be welcomed, but only after it passes tests of authenticity, proper handling and fair disclosure to the accused. In a criminal trial, where liberty is at stake, the question is not just whether a record exists, but whether it can be shown to be true. A justice system that insists on this will be able to use technology without losing its fairness.
