Section 63(4) BSA: Supreme Court Clarifies That Part B Is Not Confined to Section 79A Examiners

 

The Supreme Court has now given an important ruling on the validity of Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023, in Pune Bar Association v. Union of India, decided on 22 May 2026. The decision is significant for every judge and lawyer dealing with electronic evidence, because it examines whether the new statutory requirement of hash value disclosure and expert certification is unconstitutional or merely a necessary safeguard in the digital age.

Background

The Pune Bar Association challenged Section 63(4) BSA and the Schedule appended to it on the ground that the provision creates undue hardship for ordinary litigants. The grievance was directed particularly against Part A, which requires disclosure of the hash value of the electronic record, and Part B, which requires the signature of an expert. It was argued that these preconditions make admissibility of electronic evidence too burdensome and therefore manifestly arbitrary.

Court’s reasoning

The Supreme Court rejected the constitutional challenge and held that the provision has a rational nexus with the object of the law. The Court noted that electronic records are susceptible to continuous alteration and manipulation, and that concerns about authenticity and integrity have become more serious with the rise of artificial intelligence and deepfake technology. In that backdrop, the Court held that hash value acts like an electronic fingerprint, while expert certification adds an additional layer of assurance to secondary electronic evidence.

The Section 79A controversy

A major issue raised before the Court was whether Part B of the certificate can be signed only by an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000. The argument was based on a Madras High Court ruling which had taken the view that such notified experts alone could sign Part B, creating concern that the provision may become impractical because only a limited number of such experts are available. This practical difficulty formed the heart of the petitioner’s objection to the working of Section 63(4).

Important clarification

The Supreme Court did not finally decide that Part B can never be restricted to Section 79A examiners, but it made a very important clarification. Reading Section 39(1) and Section 39(2) of the BSA harmoniously, the Court observed that apart from notified examiners, another person having special skill and expertise in computer science or cyber forensics may also be treated as an expert if the court is satisfied on the basis of unimpeachable material. The Court further held that the Madras High Court’s view that only a Section 79A notified expert can sign Part B should not be treated as a binding precedent, while expressly keeping the larger question of law open.

Practical significance

This ruling strengthens the legislative framework for proving electronic records under the BSA and shows that the Supreme Court is not inclined to dilute statutory safeguards merely because they demand greater technical compliance. At the same time, the order offers practical relief by indicating that the field of eligible experts may not be confined only to notified Section 79A examiners in every case. For the legal fraternity, the message is clear: electronic evidence must now be tendered with greater care, better technical preparation, and a sharper focus on authenticity, integrity, and expert support.

Print Page