Who can sign certificate against electronic evidence other than notified expert?

Who can sign certificate u/s 63 BSA against electronic evidence other than notified expert?  

Authenticity and integrity of electronic evidence: audio-video recordings etc -Section 79 A information Technology Act, Section 63 (4), 39(1), 39(2) BSA,

Any individual possessing special skills and expertise in computer science and cyber forensics can validly sign Part B of the standard-form certificate under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), provided the Court is satisfied with their credentials on the basis of unimpeachable material

Expert In Computer Science & Cyber Forensics Competent To Sign Section 63(4) BSA Certificate: Supreme Court 

The Apex Court upheld constitutionality of Section 63(4) of BSA, which replaced Section 65B of the Evidence Act. 

The Supreme Court clarified that any individual possessing special skills and expertise in computer science and cyber forensics can validly sign Part B of the standard-form certificate under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), provided the Court is satisfied with their credentials on the basis of unimpeachable material. 

The Court made these observations while disposing of a petition filed by the Pune Bar Association, which challenged the constitutionality of Section 63(4) of the BSA and its accompanying Schedule. The petitioner had argued that the dual requirements of disclosing a digital record's hash value under Part A and obtaining a signature from a government-notified expert under Part B imposed an extremely onerous obligation on ordinary litigants, rendering the provision manifestly arbitrary and unjust. 

The Bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul M Pancholi observed:

"If the two sub-sections are read harmoniously, it is possible to hold, in addition to entities notified as Examiner of Electronic Evidence under Section 79A, if the Court is satisfied, on the basis of unimpeachable material, that any other person has special skill and expertise in computer science and cyber forensics, opinion of such person may be held relevant as an expert with regard to electronic/digital record and such person may sign Part B of the Schedule as an expert." 

AOR Tank Dhruv Ketan appeared for the Association. It said that, "We are further fortified to make such observation as sub-section (2) of Section 39 (unlike 63(4) and erstwhile 65B) is not prefaced by a non-obstante clause so as to exclude the operation of sub-section (1) from the arena of electronic records. 

The High Court had deferred adjudication of such issue and directed the State to notify adequate number of persons under Section 79A. 

"Under these circumstances, we hold that the finding of the High Court that Part B must be filled up by an expert notified under Section 79A of the IT Act shall not be treated as a binding precedent." 

The Pune Bar Association contended that Section 63(4) of Bharatiya Sakshya Adhiniyam, 20231, read with the Schedule thereto, was unconstitutional as it imposed undue hardship on an ordinary litigant by requiring submission of a certificate prescribed in the Schedule comprising Part A, which needed disclosure of the hash value of digital records, and Part B, which must be signed by an expert.

 It was argued that the imposition of such pre-requisites for admissibility of electronic records is an extremely onerous obligation on a litigant and renders the provision manifestly arbitrary and unjust.

 The Court observed that with the rapid advancement of technology, the digital space encroached upon all spheres of human life, and consequently, evidence in the form of electronic records became commonplace in all forms of litigation. 

 "Electronic record is a unique species of evidence which is liable to continuous mutation and modification affecting its authenticity, integrity and intrinsic evidentiary value. 

Challenges to admissibility and probative value of electronic records are further accentuated with the advent of artificial intelligence and deepfake technology. 

Such fast and varied transformation in technology necessitated reviewing the erstwhile Evidence Act and the BSA was enacted", the Court said. 

The Court pointed out that such fast and varied transformations in technology necessitated a review of the erstwhile Evidence Act, which ultimately led to the enactment of the Bharatiya Sakshya Adhiniyam (BSA). 

It observed that Section 63(4) of the BSA improved upon the certification envisaged under the old law by mandating a standard-form certificate prescribed in the Schedule. 

The Court highlighted that the hash value of electronic data was synonymous with an electronic fingerprint and provided a sure way of identifying and verifying digital data. 

Therefore, it observed that the necessity of incorporating the hash value in Part A of the certificate was intended to ensure the authenticity and integrity of the electronic record, and could not be said to lack a rational nexus with the object of the Act. 

Similarly, the Court observed that the requirement of a certification by an expert in Part B provided an additional layer of authenticity to secondary electronic evidence. 

It held the view that the new provision possessed a clear and rational nexus with the object of the law, and could not be termed as arbitrary or unreasonable so as to suffer from the vice of manifest arbitrariness. 

In analyzing the judgment of the Madras High Court, the Court observed that the High Court merely referred to sub-section (2) of Section 39 of the BSA while omitting sub-section (1). It noted that Section 39(2), unlike Section 63(4) or the erstwhile Section 65B, was not prefaced by a non-obstante clause so as to exclude the operation of sub-section (1) from the arena of electronic records. 

The Court observed that if sub-sections (1) and (2) of Section 39 were read harmoniously, it was possible to hold that in addition to the entities notified under Section 79A of the Information Technology Act, any other person possessing special skill and expertise in computer science and cyber forensics could be treated as an expert.

 It noted that if the Court was satisfied on the basis of unimpeachable material regarding such expertise, the opinion of such a person would be relevant and they could validly sign Part B of the Schedule.

 Consequently, the Court observed that the finding of the High Court mandating that Part B must only be filled up by an expert notified under Section 79A of the IT Act should not be treated as a binding precedent. 

Division Bench:

Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul M Pancholi

Cause Title: 

Pune Bar Association v. Union of India & Ors. [Writ Petition(s)(Civil) No(s). 599/2026] 

Appearances: 

Petitioner: Advocate on Record Tank Dhruv Ketan, Advocate Abhay Anil Anturkar, Advocate Dhruv Tank, Advocate Sarthak Mehrotra, Advocate Surbhi Kapoor, Advocate Bhavya Pande, Advocate Subhi Pastor, Advocate Uday Gautam, Advocate Aradhya Srivastava.