Published On: March 13th 2026
Authored By: Akshat Dadhich
Amity University Kolkata
ABSTRACT
The increasing use of electronic communication has significantly influenced the type of evidence presented in court in present legal proceedings, electronic evidence such as emails, call logs, and messages from instant messaging apps such as WhatsApp and Facebook have become central to both civil and criminal cases. Among all these electronic evidence, WhatsApp conversations have particularly gained interest given their widespread use for personal and business communication.
The Bharatiya Sakshya Adhiniyam, 2023 seek to modernize evidence law by replacing 65B with Section 63 which pertains to the admissibility of electronic records. While the BSA retains the certification requirement, it retains a more adaptable and technologically proficient stance by allowing court to evaluate the credibility, integrity, and creation process of electronic evidence.
In this article, we will discuss whether Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 strikes a balance between ease of admissibility and reliability, and whether it provides sufficient safeguards to the Constitution, especially in the context of WhatsApp messages. This article critically analyzes the legal provisions, judicial trends, and practical difficulties involved in making WhatsApp messages admissible as evidence.
INTRODUCTION
Electronic evidence refers to any probative information that has been stored or transmitted digitally as an evidence during the trial. Courts permit the use of electronic evidence including mails, digital images, word processing documents, spreadsheets, databases, secure electronic records, secure electronic signatures, digital videos or audios etc.
“Electronic form of evidence” is defined under Sec. 79A of the IT Act, 2000 as any information of probative value that is either transferred or maintained in electronic form, including computer evidence, digital audio, digital video, cell phones, digital fax machine. It also provides that for the purpose of offering an expert opinion on electronic evidence before a court or other body, the Central Government may notify in the official Gazette, any division, organization, or agency of the federal or State Governments as an Electronic Evidence Examiner.[1]
The admissibility of electronic evidence has been defined in Sec. 63 of the Bharatiya Sakshya Adhiniyam, 2023. According to this section, all data in an electronic record that is printed on paper, stored, recorded or duplicated in semiconductor memory or optical or magnetic medium is created by a computer or other communication device and saved, recorded, or duplicated in any electronic format, which is referred to as the computer output, will also be considered a document. Such an electronic record is admissible in any proceedings, without the need for additional proof or the production of the original as evidence of the original’s contents or of any truth expressed therein that, if the requirements outlined in section 63 are met, would be admitted as direct evidence.
EVOLUTION OF ELECTRONIC EVIDENCE IN INDIA
The Indian Evidence Act, 1872 was first passed with only the physical world in mind, but it was later appropriately amended to incorporate the idea of electronic evidence through the IT Act, 2000. The IT Act, 2000 allows for changes in the Indian. These modifications can be found in Schedule II of the Evidence Act, 1872. “All documents produced for the inspection of the Court” was replaced with “All documents including electronic records produced for the inspection of the Court” in Section 3 of the Indian Evidence Act, 1872. Regarding the documentary evidence, Sections 65A and 65B were added to include the admission of electronic evidence, and the words “Content of documents” in Section 59 were replaced with “Content of documents or electronic records.” Section 65B of the Indian Evidence Act, 1872 corresponds to Section 63 of the Bharatiya Sakshya Adhiniyam, 2023.[2]
The main change is that Section 63 is now couched in more contemporary and modernized language, using terms such as “electronic or digital record,” which is more in line with the realities of the present technological age. In terms of structure, Section 63 is also more simplified and less technically complex as compared to Section 65B of the Indian Evidence Act, 1872. Although both sections require a certificate for admissibility of secondary electronic evidence, the Hon’ble Supreme Court made the certification under Section 65B mandatory in Anvar P.V. v. P.K. Basheer.[3] Subsequently, in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, a three judge constitutional bench upheld necessary certification but permitted post-filing production in extraordinary circumstances.[4] Section 63 of BSA specifically provides for the use of hash values or other digital identifiers as a method of proving the integrity and authenticity of electronic or digital records. This is a technological update that ensures the electronic evidence produced is tamper-proof.
Although Section 63 does not deviate from the well-established authority of the Courts regarding the mandatory requirement of certification, the recognition of hash values as well as improved drafting of the section signify a progressive legislative approach to update evidentiary law with modern digital reality and increase the aunthenticity of electronic evidence.
TEXT AND REQUIREMENTS OF SECTION 63 BSA
Section 63(1) of BSA states that regardless of anything in this Adhiniyam, any data in an electronic record that is written on paper, stored, recorded, or duplicated in optical or magnetic media, or semiconductor memory that is generated by a computer or if the requirements listed in this section are met with regard to the information and computer in question, any communication device or otherwise stored, recorded, or copied in any electronic form (henceforth referred to as the computer output) will be considered a document as well. It will be admissible in any proceedings, without additional proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.[5]
Section 63(2) of BSA states four conditions which are referred to in the sub-section (1), these are –
(a) that the computer output was generated by the computer or device during the time that it was regularly used by the person with legal control over the use of the computer or communication device to create, store, or process information for the purposes of any activity regularly carried out over that period;
(b) that information contained in the electronic record so derived was regularly fed into the computer or device during the said period in the regular course of the said activities;
(c) That the computer or device was functioning correctly for the most of the specified period; if it was malfunctioning or not functioning at all, that portion of the period was not significant enough to have an impact on the electronic record or the correctness of its contents; and
(d) that the data in the electronic record replicates or is derived from data provided into the computer or device during the regular course of the aforementioned activities.[6]
Section 63(3) of BSA states that When one or more computers or communication devices were frequently used to create, store, or analyse information for any activity regularly conducted during that time, whether in all computers or communication devices used for that purpose during that time will be treated as a single computer or communication device, whether they are operating in standalone mode (a device or system can operate without being connected to anything else), on a computer system, on a computer network, on a computer resource, or through an intermediary.[7]
Section 63(4) of BSA states that a certificate must be submitted with the electronic record in any civil or criminal proceedings.
(a) identifying the electronic record that contains the statement and explaining how it was created;
(b) providing particulars about any device used in the creation of that electronic record in order to demonstrate that a computer or other device produced the electronic record,
(c) Addressing any of the topics covered by the requirements listed in subsection (2), and it must be signed by the person in charge of the computer or device or the administration of the pertinent activities to the best of the knowledge and convictions of the individual making the statement on the certificate.[8]
Section 63(5) of BSA states that:
- a computer or device is considered to have received information if it is delivered to it in any suitable manner, whether directly, through human intervention, or through the use of suitable equipment; and
- a computer output is considered to have been created by a computer or device, regardless of whether it was created directly by the computer, with or without human assistance, or using any necessary equipment.[9]
In short, Section 63 of BSA states that:
- Electronic records can be proved by primary or secondary evidence.
- A certificate in respect of the electronic record must be included in the secondary evidence.
- Courts may look at the reliability of the system, the method of creation, and the integrity of the record.
Although these requirements are intended to ensure the authenticity of electronic evidence, its practical application can be difficult as the evidence is from a personal device and service application such as WhatsApp, which is end to end encrypted, and it is not always possible to gain access to the original device or a system administrator, sometimes these may be accessed through illegal means.
ADMISSIBILITY OF WHATSAPP CHATS AS ELECTRONIC EVIDENCE
Section 63 of BSA, 2023 which replaced Section 65B of IEA, 1872 governs the admissibility of electronic records. WhatsApp chats are recognized as electronic records evidence under the Indian law. WhatsApp chats are only admissible in courts if they meet all the essential requirements mentioned in Section 63 of BSA, 2023. WhatsApp chats are considered as a part of computer output and for it to be made admissible before the Court, the conditions stated in Section 63(2) of BSA, 2023 must be fulfilled. According to Section 63(4) of BSA, 2023, a certification of admissibility must be included with the printout or copy of the WhatsApp communications in order to confirm their legitimacy. The certificate reveals that the data and electronic record created by a functional communication equipment have not been altered. Additionally, name the electronic document that contains the statement and provide more details about how it was created. Finally, as stated in BSA, 2023 Section 63(4), the certificate must be signed by the relevant authorities. According to the certificate, 63(4) is crucial to the admission of WhatsApp conversations as proof. A person who is in charge of the equipment may issue the certificate. Finally, if the Section 63(4) certificate and the WhatsApp discussions are ready, they can be used as supplemental evidence in court. WhatsApp chats can be submitted digitally or physically with a required 63(4) certificate.[10]
The Bombay High Court, in SBI Cards & Payment Services Pvt. Ltd. v. Rohit Jadhav (2018), held that the WhatsApp messages could be used as evidence if it comes within the Section 65B certificate (corresponding to Section 63 of BSA, 2023), the Hon’ble also mentioned that the “blue tick” on WhatsApp reflects that the message was received and read by other persons.[11] Again in M/S. Karuna Abhushan Pvt. Ltd. v. Shri Achal Kedia (2020), the Hon’ble Delhi High Court held that WhatsApp and Facebook chats are valid legal evidence with a blue tick indicating that the message was read.[12]
The judicial resort to indicators such as “blue ticks” indicates an effort to apply the traditional evidentiary reasoning to online messaging platforms. Nevertheless, the technological developments that have been brought about by WhatsApp, such as the option to turn off read receipts, tend to undermine the reliability of such indicators. It highlights the risk of courts resorting to features that are subjected to constant changes on online platform. This option of disabling read receipts goes against the decisions of Hon’ble Bombay High Court and Hon’ble Delhi High Court as even if the blue tick doesn’t show up, the message might have been read. The defence may state that they have not seen or read the chat even if they had seen or read that particular chat.
On the contrary, there may be another situation where the person has seen the chat but might not have read it. This becomes difficult to interpret what was the situation did the person have seen and read the chat or did the person left the chat on seen and have not read it properly. WhatsApp chats thus become difficult to support as an evidence.
CRITICAL ANALYSIS: STRENGTH AND WEAKNESS
A clear shift from the rigidity and certification-focused viewpoint seen in Section 65B of the Indian Evidence Act, 1872 is reflected in Section 63 of the Bharatiya Sakshya Adhiniyam, 2023. The greatest strength of Section 63 of BSA, 2023 is its recognition of court receptivity to the idea that in present time where digital communication, such as WhatsApp message exchanges, dominates human and business connection, procedural strictness should never impede real justice. In fact, Section 63 allows the Judiciary to do a realistic contextual analysis of electronic evidence that goes beyond a review of the system’s dependability, integrity, and method of creation.
However, this flexibility raises new questions about WhatsApp conversations. In general, modified chats (where the message could be edited within a span of time), selective deletion, account cloning, and the usage of third-party apps are all ways that WhatsApp chats might be compromised. Judges have a lot of flexibility in these cases because Section 63 does not specify any technological or conventional requirements for authentication. In the context of the trial stage, inconsistent court rulings and the introduction of fake evidence are both potential outcomes as stated earlier that turning off read receipts and difference between ‘seen’ and ‘read’ could undermine the outcome.
Another matter to think about is on individual liberty which is in question. A suspect’s right to privacy may be compromised if they are forced to turn over their personal cell phone in order to verify a WhatsApp discussion. This may also result in a suspect’s self-incrimination in criminal proceedings which would violate Art. 20(3) of the Indian Constitution. Nevertheless, Section 63 offers no precise instructions on how to balance these constitutional goals with a suspect’s right to privacy.
Thus, while Section 63 of BSA,2023 marks a step towards a progressive departure from overly strict definition of procedural formulation, its effectiveness ultimately depends on judicial restraint and the development of reliable authentication standards. Otherwise, the more lenient process might have the unintended effect of allowing unreliable electronic evidence to influence court rulings.
CONCLUSION
Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 updates the Indian evidentiary laws with the latest technological advancements. With the replacement of the rigid provisions of Section 65B of the Indian Evidence Act, it appears that the legislature has attempted to ensure that genuine electronic evidence is not rejected on technical grounds. This is particularly relevant in the context of WhatsApp chats, which have become an integral part of modern communication.
However, the issue of admissibility of WhatsApp messages has also raised serious concerns about authenticity, tampering, and constitutional rights. The ease with which digital messages can be edited, deleted, or accessed selectively calls for a prudent judicial approach. Furthermore, the production of private devices may also give rise to concerns under the right to privacy and the right against self-incrimination.
While Section 63 is a progressive and necessary reform, its success is dependent on the judicial interpretation of the section, the development of standard forensic practices, and a balanced approach that protects individual rights while ensuring evidentiary reliability. Only then can electronic evidence be used for the cause of justice without compromising the ideals of justice.
REFERENCES
[1] The Information Technology Act, 2000, s. 79A.
[2] J. Sake Jyothi, “ELECTRONIC EVIDENCE-AN OVERVIEW”, 2024, p. 1
[3] Anvar PV v. PK Basheer & Ors., (2014) 10 SCC 473.
[4] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCR 180.
[5] The Bharatiya Sakshya Adhiniyam, 2023, s. 63(1).
[6] The Bharatiya Sakshya Adhiniyam, 2023, s. 63(2).
[7] The Bharatiya Sakshya Adhiniyam, 2023, s. 63(3).
[8] The Bharatiya Sakshya Adhiniyam, 2023, s. 63(4).
[9] The Bharatiya Sakshya Adhiniyam, 2023, s. 63(5).
[10] Divyadarshan Panigrahi & Sushree Swapna Mishra, “Judging Chats: The Legal Maze of Whatsapp Evidence in India”, Live Law (2025).
[11] SBI Cards & Payment Services Pvt. Ltd. v. Rohit Jadhav, (2018) SCC Online Bom 1262.
[12] M/S Karuna Abhushan Pvt. Ltd. v. Shri Achal Kedia (2020) CS (Comm) No. 327/19.
