PUNE BAR ASSOCIATION Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner, Pune Bar Association, contends that Sec. 63(4) of Bharatiya Sakshya Adhiniyam, 2023 [Hereinafter "BSA/the Act"], read with the Schedule thereto is unconstitutional as it imposes undue hardship on an ordinary litigant by requiring submission of a certificate prescribed in the Schedule comprising Part A which needs disclosure of the hash value of digital records, and Part B which must be signed by an expert. Ld. Counsel argues 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.

(2.) With advancement of technology, digital space has encroached on all spheres of human life. Consequently, evidence in the form of electronic record has become commonplace in all litigation. Physical documents are increasingly replaced with digital records like electronic mails, audio- visual clips etc. To address the admissibility of such electronic records, Sec. 65B was incorporated in the erstwhile Evidence Act [The Indian Evidence Act, 1872]. Subsequently, BSA replaced the said provision with Sec. 63(4) which inter alia provides that electronic records must be accompanied by a certificate as set out in the Schedule to the Act. The certificate so prescribed comprises Part A, which inter alia requires disclosure of hash value of the electronic records in addition to the declaration required under the erstwhile Sec. 65B of the Evidence Act. Part B of the certificate requires a further declaration signed by an expert.

(3.) 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. Statement of objects and reasons for enacting the BSA inter alia emphasises: