Impact of IT Act Amendments on the Indian Evidence Act, 1872

The Indian Evidence Act, 1872 was drafted in the colonial era – long before emails, CCTV footage, WhatsApp messages, or cloud storage existed. For over a century, courts in India relied on paper documents and oral testimony. But as digital technology reshaped how people communicate, transact, and store information, the law had to keep pace. The enactment of the Information Technology Act, 2000 (IT Act) triggered a set of important amendments to the Indian Evidence Act, 1872, giving Indian courts a legal basis to deal with electronic records as valid, admissible evidence. Understanding these amendments is essential for anyone studying law or working within a legal framework in the digital age.

Why the Evidence Act needed to change 🔗

Before 2000, Indian courts treated electronically stored information as documents and relied on printed reproductions or transcripts certified by a competent signatory. As the pace and proliferation of technology expanded and the creation and storage of electronic information grew more complex, this simple workaround became increasingly inadequate. The old provisions under Sections 61 to 65 of the Evidence Act referred only to “documents” – a term that did not cover electronic records. Emails, digital contracts, computer-generated logs, and database entries had no clear footing in law. The IT Act, 2000 – itself modelled on the UNCITRAL Model Law on Electronic Commerce – stepped in to fill this gap by amending multiple provisions of the Evidence Act through its Second Schedule.

Key amendments introduced to the Evidence Act 🔗

Redefining “evidence” and “document” under Section 3 🔗

The most foundational change was to Section 3, which defines the term “evidence.” The original phrase “all documents produced for the inspection of the Court” was substituted with “all documents including electronic records produced for the inspection of the Court.” This single change embedded electronic records within the mainstream definition of documentary evidence, ensuring they would be treated on the same footing as paper documents rather than as a separate or lesser category. The section was also amended to include “electronic signature” within the definition of a document – critical for validating digitally signed contracts and legal instruments. Expressions such as “electronic form,” “electronic records,” “electronic signature,” and “subscriber” now carry the same meaning as assigned by the IT Act, 2000.

Section 22A – oral admissions about electronic records 🔗

A new Section 22A was inserted specifically to address oral admissions relating to electronic records. It provides that oral admissions about the contents of an electronic record are not relevant unless the genuineness of the electronic record itself is in question. This provision reinforces that when an electronic record is available, oral testimony about its contents is not admissible unless there is a live dispute about the record’s authenticity. In practical terms, this discourages parties from trying to introduce verbal accounts of what a document “said” when the digital record itself can be produced.

Sections 34 and 35 – electronic entries in business and public records 🔗

Section 34, which deals with entries in books of account, was expanded to explicitly include records maintained in electronic form. Entries in books of account, including those maintained electronically, are now relevant as evidence of the facts they contain, provided they are made in the ordinary course of business. This is especially significant for businesses using digital accounting software. Similarly, Section 35 was amended to include electronic records made by public servants in the discharge of official duty, extending the evidentiary relevance of government-maintained digital records.

Section 59 – proof of contents 🔗

In Section 59, the phrase “contents of documents” was replaced with “contents of documents or electronic records.” This amendment ensures that facts contained in electronic records must now be proved through appropriate means – not merely through oral evidence – aligning electronic records with the same evidentiary standards as paper documents.

The heart of the reform: Sections 65A and 65B 🔗

The most significant and detailed amendments came in the form of two entirely new sections – 65A and 65B – inserted into the Evidence Act. These sections collectively form a complete, self-contained code for the admissibility of electronic evidence.

Section 65A – the gateway provision 🔗

Section 65A establishes that the contents of electronic records may be proved in accordance with the provisions of Section 65B. It acts as the gateway, directing any attempt to prove electronic evidence through the specific mechanism set up under 65B. Crucially, both sections start with a non-obstante clause – meaning they override other provisions of the Evidence Act that deal with documentary evidence generally.

Section 65B – conditions for admissibility of computer output 🔗

Section 65B(1) provides that any information contained in an electronic record – whether printed on paper, stored, recorded, or copied in optical or magnetic media – is deemed to be a document and is admissible in any proceedings without further proof or production of the original, if the specified conditions are met. Those conditions, listed in Section 65B(2), are four in number: the computer must have been in regular use for lawful activity during the relevant period; information of the kind in question was regularly fed into it in the ordinary course of activity; the computer was operating properly during that period (or any malfunction did not affect the record’s accuracy); and the information is a reproduction or derivation from data fed into the computer in the ordinary course.

To produce electronic evidence as secondary evidence in court, a party must also file a certificate under Section 65B(4). This certificate must identify the electronic record, describe the manner in which it was produced, furnish particulars of the device involved, deal with the applicable conditions under Section 65B(2), and be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

New presumptions introduced for electronic evidence 🔗

The amendments also inserted several new presumption clauses, which ease the burden of proof in certain situations. Where an electronic record is five years old and produced from custody that the Court considers proper, the Court may presume that the electronic signature purporting to be of a particular person was indeed affixed by that person or someone authorized by them. Section 85A was added to recognize the presumption as to electronic agreements – treating them as valid and binding. Sections 85B and 85C deal with presumptions relating to electronic records and electronic signature certificates respectively, while Sections 88A and 90A address electronic messages and five-year-old electronic records. These presumptions collectively reduce the procedural hurdles in proving digital documents, especially in commercial disputes.

Section 73A – opinion on electronic signatures 🔗

A new Section 73A was inserted providing that in order to ascertain whether a digital signature is that of a person, the Court may direct that person to produce the electronic signature for comparison. Additionally, Section 67A (later amended by the IT (Amendment) Act, 2008) stipulates that where a digital signature is alleged to have been affixed to an electronic record, the fact that the signature belongs to the alleged subscriber must be proved – with Section 65B being applicable to this as well.

How courts have interpreted these amendments 🔗

The amendments, while groundbreaking, generated significant judicial debate – particularly around the mandatory nature of the Section 65B(4) certificate. The Supreme Court’s landmark judgment in Anvar P.V. v. P.K. Basheer (2014) settled that Sections 65A and 65B form a complete code and that secondary evidence of electronic records cannot be admitted without a certificate under Section 65B(4). It also held that Sections 63 and 65, which deal with secondary evidence of paper documents, have no application to electronic records. A later bench in Shafhi Mohammad v. State of Himachal Pradesh took the view that the certificate requirement could be relaxed in the interest of justice – a position that created confusion in trial courts.

The matter was conclusively resolved by a three-judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020). The Court held that the Section 65B(4) certificate is a condition precedent to the admissibility of electronic evidence by way of secondary evidence. However, it also clarified that if the original electronic device itself is produced in court – say, the actual mobile phone on which a message was stored – the certificate is not required, since the device owner can step into the witness box and authenticate it directly. The Shafhi Mohammad and Tomaso Bruno judgments were overruled as being per incuriam.

Impact of the IT (Amendment) Act, 2008 on evidence law 🔗

The IT Act was further amended in 2008, with some of those changes flowing into the Evidence Act as well. Most notably, the term “digital signature” used in the original 2000 amendments was replaced throughout with “electronic signature” – a broader concept that encompasses various forms of electronic authentication beyond just cryptographic digital signatures. Section 85A deals with the presumption as to electronic agreements, recognizing them as valid and binding – an important update for businesses engaging in e-commerce, online contracts, and digital financial transactions.

Significance for businesses and cooperative institutions 🔗

For businesses, cooperative societies, and financial institutions operating in today’s digital environment, these amendments carry direct practical importance. Electronic accounting records, digitally signed agreements, email correspondence, and server logs can all be produced as evidence in court – provided the procedural requirements are followed. The increasing reliance on electronic means of communications, e-commerce, and storage of information in digital form necessitated these amendments in Indian law to incorporate provisions on the appreciation of digital evidence. A cooperative society maintaining its accounts electronically, or entering into agreements via email, needs to ensure that its digital records are maintained systematically and that appropriate personnel are in a position to issue Section 65B certificates when needed.

The reform of the Indian Evidence Act through the IT Act, 2000 and its subsequent amendments represents a foundational shift in how the Indian legal system recognizes and values digital information. By amending Section 3, inserting Sections 22A, 65A, and 65B, and adding new presumption clauses, the legislature ensured that courts could deal with the realities of a digital economy without being hamstrung by a Victorian-era framework. Judicial interpretation, particularly the trilogy of Anvar, Shafhi Mohammad, and Arjun Panditrao, has further refined how these provisions operate in practice.

What do you think? In an era where even everyday business transactions leave a digital trail, should India consider a standalone, comprehensive legislation for electronic evidence – rather than relying on amendments to a 150-year-old Act? And given the strict requirements of Section 65B, how practical is it for small businesses or cooperative institutions to ensure their digital records are always court-ready?

References

1. https://www.indiacode.nic.in/handle/123456789/1999
2. https://medcraveonline.com/FRCIJ/admissibility-of-electronic-evidence-an-indian-perspective.html
3. https://uncitral.un.org/en/texts/ecommerce/modellaw/electronic_commerce
4. https://www.drishtijudiciary.com/to-the-point/bharatiya-sakshya-adhiniyam-&-indian-evidence-act/impact-of-information-technology-act-on-indian-evidence-act
5. https://theleaflet.in/why-is-admissibility-and-authenticity-of-electronic-evidence-complicated/
6. https://indiankanoon.org/doc/187283766/
7. https://corporate.cyrilamarchandblogs.com/2020/07/section-65b-of-the-indian-evidence-act-1872-requirements-for-admissibility-of-electronic-evidence-revisited-by-the-supreme-court/
8. https://www.mondaq.com/india/privacy-protection/1470308/the-complete-guide-to-electronic-records-evidence-in-indian-law