Who Can Certify Digital Evidence? India’s Supreme Court Leaves the Answer Open
A landmark ruling upholding new certification requirements under the Bharatiya Sakshya Adhiniyam exposes an unresolved question that will affect every litigant producing electronic records, from WhatsApp screenshots to leaked audio tapes.
Imagine an ordinary matrimonial dispute in which a spouse wants to produce WhatsApp messages as evidence. Under the Indian Evidence Act, 1872, a certificate under Section 65B would have been sufficient. Under the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the spouse must now also attach a declaration signed by an “expert.” But there is no consensus on who or what constitutes an expert.
This seemingly inconsistent condition, however, has reached the Supreme Court in Pune Bar Association v. Union of India (WP Civil No. 599 of 2026), which closed the matter on May 22, 2026. A three-judge bench disposed of the petition but not before flagging a deeply unresolved tension in the law that will affect thousands of litigants across every court in the country.
From Section 65B IEA to the BSA: What Changed?
Section 65B of the Indian Evidence Act was introduced in 2000 to address the admissibility of electronic records. It required a certificate confirming the identity and integrity of computer output, signed by a “responsible official” broadly interpreted over the years.
The provision has given rise to extensive litigation due to inconsistent judicial interpretation, and the Supreme Court itself has given inconsistent signals between Anvar P.V. v. P.K. Basheer (2014, 10 SCC 473) and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020 SCC OnLine SC 571).
The core issue concerns the framework. Section 65B was designed for the internet age of 2000, which became inadequate as electronic records and digital space no longer remain merely computer printouts. It now includes encrypted messaging, cloud-stored documents, AI-generated content, and deepfakes. It also contains any information created, processed, or stored in a digital format. The old provision had no clear proposal for any of these.
The BSA’s Section 63(4) is Parliament’s answer to this problem. It demands a mandatory certificate requirement but substantially upgrades its contents through a Schedule divided into two parts.
- Part A requires disclosure of the hash value of the electronic record, which was absent under the old law.
- Part B requires a further declaration signed by an expert.
Key Differences Between Section 65B and Section 63(4)
| Aspect | Section 65B (Indian Evidence Act) | Section 63(4) (BSA 2023) |
|---|---|---|
| Purpose | Admissibility of electronic records | Admissibility of electronic records with enhanced authentication |
| Certificate Requirement | Mandatory | Mandatory |
| Hash Value Disclosure | Not required | Required under Part A |
| Expert Declaration | Not required | Required under Part B |
| Focus | Computer output authenticity | Digital integrity and expert verification |
The Hash Value: An Electronic Fingerprint
Just as a fingerprint uniquely identifies each individual, a hash value has a unique digital fingerprint, distinctive to each individual. It is generated by applying a cryptographic algorithm, such as MD5, SHA-1, or SHA-256, which produces a fixed-length string in alphanumeric form.
If the hash value of evidence presented in court matches the original file’s hash, it becomes certain that the record has not been tampered with. But if a single pixel is altered, the hash value changes entirely.
The SC had observed that a hash value is “synonymous with an electronic fingerprint and provides a sure way of identifying and verifying digital data”. The requirement responds directly to growing concerns about AI-based editing tools and deepfakes. The Court rightly found it has a clear rational basis.
How Hash Values Work
| Step | Process |
|---|---|
| 1 | A digital file is processed through a cryptographic algorithm. |
| 2 | The algorithm generates a unique alphanumeric hash value. |
| 3 | The hash value is recorded and preserved. |
| 4 | The same file can later be checked against the original hash. |
| 5 | If both hashes match, the file remains unchanged. |
| 6 | Any alteration changes the hash value completely. |
Practical Challenges for Litigants
That being said, this endorsement ignores a major practical problem, as most litigants and many lawyers have trivial knowledge of how to generate a hash value. Unlike a signature, it requires technical knowledge or software tools.
The Court did not consider whether this requirement will be a barrier to fair access to the legal system.
This problem is not a construct abstract; it previously arose during the hearing of the Manipur Audio Tape case before the apex court.
The Manipur Audio Tapes: A Cautionary Case Study
The Kuki Organisation for Human Rights Trust (KOHUR) approached the Supreme Court in 2024, seeking a court-monitored investigation into leaked audio recordings purportedly of N Biren Singh, the then chief minister of Manipur.
KOHUR, through its counsel, has been seeking to implicate Biren Singh for his alleged role in the ethnic violence in Manipur, which resulted in the killing of over 200 people and thousands of internally displaced persons.
Transcripts of the audio recordings were published by the online news platform The Wire in September 2024 after the judicial commission under the Ministry of Home Affairs received the tape.
Forensic Evidence Integrity Concerns
This case is a cautionary tale for everything the BSA’s certification framework is made to prevent.
The Manipur police submitted truncated and edited segments, not the complete recording, an omission which altered the originality of the hash value, compromising the integrity of the forensic process.
The National Forensic Science University (NFSU), Gandhinagar, found in its October 2025 report that four exhibits showed signs of modification and tampering, and concluded it could not offer any voice-matching opinion.
A private agency, Truth Labs, had separately claimed with 93% probability that one of the audio recordings matched the former Chief Minister’s voice.
The Supreme Court said it was “little disturbed” after KOHUR’s November 2025 affidavit revealed only selective clips had been examined.
In January 2026, the Court ordered the entire 48-minute recording along with admitted voice samples to be sent to the NFSU, and specifically demanded the “first-generation copy,” underscoring the importance of original-quality evidence and unbroken chain of custody.
Key Lessons for the BSA Framework
This case points out three lessons for the BSA framework.
| Lesson | Key Observation | Implication |
|---|---|---|
| Hash Values | Hash values are not box-ticking. | They help verify whether files remain unchanged throughout custody. |
| Expert Bottleneck | NFSU took more than a year to reach usable results. | Ordinary litigants may face significant delays under restrictive interpretations. |
| Private-Public Expert Divide | Private forensic reports may face admissibility issues. | Legitimate evidence may become difficult to rely upon in court. |
- If the audio files carried hash values from the point of custody, it would have been easier to determine if the clips sent to the lab were the same ones leaked to the judicial commission.
- This would have cleared up the NFSU’s tampering claims much earlier.
- If the NFSU, a notified institution in the country, took more than a year to reach usable results, the ordinary litigant who seeks the Part B certification could face more severe constraints under the restrictive interpretation.
- If Truth Labs, a private agency, cannot sign a Part B certificate, a litigant with a legitimate private forensic report may be left without admissible evidence.
The Part B Problem: Who Is an Expert?
The Pune Bar Association stated that Part B effectively restricts certification to persons notified as Examiners of Electronic Evidence, under Section 79A of the IT Act.
This argument was supported by the Madras High Court’s ruling in R. v. B & Anr (2024 SCC OnLine Mad 6084).
The court pointed out that the shortage of notified institutions, which were mostly government-run forensic labs, severely limits litigants’ capacity and geographic accessibility across the country.
Madras High Court Interpretation
The Madras High Court rested its conclusion on Section 39(2) of the BSA, which states that in proceedings involving electronic evidence, the opinion of a Section 79A-notified examiner “shall be treated to be that of an expert.”
The High Court read this as an exclusive definition where only notified examiners can qualify as experts for Part B purposes.
Supreme Court Observations
But when the case came up in the Supreme Court for hearing, the apex court identified a critical flaw: that the High Court considered Section 39(2) in isolation, ignoring Section 39(1), which provides opinion of any person with “special skill” in a relevant field is admissible as expert testimony, without limitation to any particular category of person.
Crucially, Section 39(2) carries no non-obstante clause.
Had Parliament intended Section 79A-notified examiners to be the only permissible experts, it would have said so expressly.
Doctrine of Harmonious Construction
By the Doctrine of harmonious construction, Section 39(2) creates a presumptive category; a notified examiner’s opinion is automatically treated as expert opinion without the court needing to assess credentials independently.
But this does not prevent a court, under Section 39(1), from accepting any other person as an expert if they possess “special skill and expertise in computer science and cyber forensics.”
- Section 39(1) recognizes expert opinion based on special skill.
- Section 39(2) grants automatic expert status to notified examiners.
- Section 39(2) does not contain a non-obstante clause.
- Both provisions can operate together through harmonious construction.
- Courts may still evaluate other qualified experts on their credentials and expertise.
What the Court Held — and What It Did Not
The Supreme Court gave careful and deliberate limits in its disposition. Three things flow from the order.
| Key Point | Court’s Position |
|---|---|
| Constitutionality of Section 63(4) | Section 63(4) is made constitutional; the hash value requirement and Part B expert certification requirements both have a rational nexus with the Act’s objectives and are not arbitrary. |
| Madras High Court Finding | The Madras HC’s finding that Part B must be signed only by a Section 79A notified examiner “shall not be treated as a binding precedent.” |
| Who Can Sign Part B? | The Court does not give a concrete answer as to whether persons other than Section 79A notified examiners can sign Part B. |
Section 63(4) Upheld as Constitutional
First, Section 63(4) is made constitutional; the hash value requirement and Part B expert certification requirements both have a rational nexus with the Act’s objectives and are not arbitrary.
Madras High Court Ruling Not Binding
Secondly, the Madras HC’s finding that Part B must be signed only by a Section 79A notified examiner “shall not be treated as a binding precedent.” This is a significant signal.
The Court did not formally overrule the judgment nor was it inclined to admit the petition, but it strips the ruling of any precedential authority that lower courts might otherwise have relied upon.
Part B Signatory Question Remains Open
Thirdly, it does not give a concrete answer as to whether persons other than Section 79A notified examiners can sign Part B. Until it is resolved, it depends on the trial courts and High Courts through applying their own understanding of who qualifies as an expert.
The Way Forward
Resolving this question requires action on multiple fronts.
- Judicially: This must be resolved via a larger bench or suo motu review as digital evidence arises in litigation in every field.
- Legislatively: Under Section 79A, there is a need for expansion of the notified examiner list and an amendment or Schedule clarification to allow certification.
- Practically: The legal profession must master digital evidence literacy such as the concept of hash values, chain of custody protocols, and basic forensic concepts, to serve clients in an increasingly digital evidentiary landscape.
Key Reforms Needed
| Area | Required Action |
|---|---|
| Judiciary | Resolution through a larger bench or suo motu review. |
| Legislation | Expansion of Section 79A notified examiners and clarification of certification requirements. |
| Legal Practice | Improved understanding of digital evidence, hash values, forensic principles, and chain of custody. |
Conclusion
The Supreme Court’s order in Pune Bar Association v. Union of India is both reassuring and unfinished.
- Reassuring, because the Court upheld Section 63(4) as constitutionally sound and offered a sensible interpretive path out of the expert bottleneck problem.
- Unfinished, because the most consequential question who can sign Part B remains intentionally open.
The BSA was enacted to transform India’s evidence law suited for the 21st century. But for a law to be fair, it must not only be sound in principle but also be workable and consistent in practice.
Cases like the Manipur audio tapes show that the consequences of getting electronic evidence law wrong are not confined to trivial disputes; they can determine whether the victims of mass violence ever see accountability.
The question of who can sign Part B, a government-notified examiner or any qualified professional, remains alive for determination. The answer will shape digital evidence law for a generation or more.
Why This Matters for India’s Digital Evidence Framework
The Supreme Court has cleared the path and opened the door to establish the framework for the Government to walk through it. The need of the hour is to address the expert shortage.
Key Takeaways
- India’s Digital Evidence Law Has Changed Significantly: The Bharatiya Sakshya Adhiniyam (BSA), 2023 replaces the traditional Section 65B framework with a more robust system requiring both a hash value and expert certification for electronic records.
- Hash Values Are Now Central to Digital Evidence: A hash value acts as a unique digital fingerprint that helps courts verify whether electronic evidence has been altered, making it crucial in cases involving WhatsApp chats, emails, audio recordings, videos, and digital documents.
- Supreme Court Upholds Section 63(4) of the BSA: In Pune Bar Association v. Union of India (2026), the Supreme Court confirmed that the new certification requirements for electronic evidence are constitutional and have a legitimate objective of ensuring authenticity and integrity.
- Who Can Certify Digital Evidence Remains Unresolved: While the Court upheld the law, it deliberately left open the critical question of who qualifies as an “expert” for Part B certification, creating uncertainty for litigants and legal practitioners.
- Section 79A Experts May Not Be the Only Option: The Supreme Court indicated that courts may recognize individuals with specialized skills in computer science and cyber forensics as experts, rather than limiting certification exclusively to government-notified examiners.
- Madras High Court’s Restrictive Interpretation Loses Precedential Value: The Supreme Court clarified that the Madras High Court’s view restricting certification to Section 79A-notified examiners should not be treated as binding precedent.
- The Manipur Audio Tape Case Demonstrates the Importance of Digital Integrity: Allegations of edited recordings, tampered files, and incomplete forensic examination highlighted why chain of custody, original recordings, and hash values are essential in modern evidence law.
- Digital Evidence Authentication Is Becoming More Important Due to AI and Deepfakes: The BSA’s enhanced verification framework directly addresses growing concerns over manipulated media, AI-generated content, and deepfake technology.
- Practical Challenges Remain for Ordinary Litigants: Generating hash values and obtaining expert certifications can be technically complex, potentially increasing costs, delays, and accessibility concerns in litigation.
- Shortage of Certified Digital Forensic Experts Is a Major Concern: Limited availability of notified forensic institutions could create bottlenecks, especially if courts adopt narrow interpretations of expert eligibility.
- Legal Professionals Must Develop Digital Evidence Literacy: Lawyers and litigants increasingly need to understand concepts such as hash values, cyber forensics, metadata, and chain of custody to effectively handle electronic evidence.
- Future Reforms Are Essential: Expansion of Section 79A-notified examiners, legislative clarification, and judicial guidance will be necessary to make India’s digital evidence framework both effective and accessible.
Digital Evidence Law: Quick Summary Table
| Key Area | Main Development |
|---|---|
| Legal Framework | Bharatiya Sakshya Adhiniyam (BSA), 2023 replaces the traditional Section 65B framework. |
| Evidence Verification | Hash values and expert certification are required for electronic records. |
| Supreme Court Position | Section 63(4) of the BSA has been upheld as constitutional. |
| Expert Certification | The scope of who qualifies as an expert remains unresolved. |
| Section 79A Examiners | May not be the only individuals eligible to certify digital evidence. |
| Precedent Status | Madras High Court’s restrictive interpretation is not binding. |
| Digital Integrity | Chain of custody, original recordings, and hash values are increasingly important. |
| AI & Deepfake Risks | Enhanced verification standards address manipulated and AI-generated content. |
| Litigation Challenges | Costs, delays, and technical complexity may affect accessibility. |
| Expert Availability | Shortage of certified forensic experts may create bottlenecks. |
| Professional Skills | Lawyers must understand cyber forensics, metadata, and digital authentication. |
| Future Reforms | Legislative and institutional reforms remain necessary. |
Written By: Thanggoulen Haokip, LLM Candidate, Jamia Hamdard University, New Delhi
