Section 190 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Section 190 - Admissibility of Electronic Records
Under Section 190 of the Bharatiya Sakshya Adhiniyam, 2023, electronic records are admissible as evidence in court, provided they meet specific criteria laid down in the statute. This section is a significant step forward in recognizing the growing role of digital documentation in legal proceedings.
Key Provisions of Section 190:
Electronic Records as Evidence:
The section recognizes electronic records (such as emails, text messages, digital documents, etc.) as admissible in courts, subject to certain conditions.
These electronic records can be submitted as evidence in a legal proceeding, similar to how physical records or documents were traditionally used.
Conditions for Admissibility:
The electronic records must be authentic and reliable.
The court must be satisfied that the electronic record presented is a true copy or original and has not been tampered with.
The party presenting the electronic evidence may be required to provide supporting documentation or an electronic certification confirming the integrity and source of the record.
Provisions of Authentication:
Section 190 would also lay down specific procedures for authenticating electronic records. These may include methods like digital signatures, electronic seals, or hash functions to verify the legitimacy of the document.
The records must meet the criteria for authenticity laid down by the relevant authorities, and proper chain of custody must be maintained.
Non-Exclusivity:
Section 190 does not exclude the admissibility of physical documents. Instead, it allows electronic records as complementary evidence. So, digital copies of documents can be presented alongside physical copies in court.
Role of Experts:
In cases where electronic evidence is presented, courts may call upon expert witnesses to help explain how the electronic record was created, maintained, or transmitted, especially in complex cases involving digital data.
Admissibility Based on Consistency with Other Evidence Laws:
Electronic records would still need to comply with other relevant provisions of evidence law, including rules related to hearsay, relevance, and admissibility. Section 190 specifically deals with the form and type of evidence, not its content.
Example in Practice:
If a party in a lawsuit wishes to present a WhatsApp message or email correspondence as evidence, it can be admissible under Section 190, provided the sender/receiver of the message is identified and authenticated as part of the evidence. The court may request additional documentation, like digital signatures or logs from the messaging service, to verify the integrity and authenticity of the communication.
Context and Importance of Section 190
Digital Age Adaptation:
With the increasing role of digital communication, e-commerce, online contracts, and various forms of digital interactions, Section 190 is critical in making the Indian legal system adaptable to modern technological advancements.
It aligns India’s legal framework with international norms like the UNCITRAL Model Law on Electronic Commerce and The Information Technology Act, 2000 (especially Section 65B of the IT Act), which governs the admissibility of electronic records.
Impact on Legal Proceedings:
Efficiency: It streamlines the presentation of evidence, especially in cases involving digital transactions or communications.
Integrity and Authenticity: It emphasizes the importance of ensuring that digital evidence is not tampered with and that proper safeguards are in place for authentication.
Challenges & Issues:
Despite these advancements, the following challenges may arise:
Technical Expertise: Courts might require technical experts to authenticate complex electronic records, adding complexity and delay to proceedings.
Security Concerns: There is a risk that electronic records could be easily manipulated, hacked, or tampered with, and ensuring security through encryption, digital signatures, and verification mechanisms will be critical.
Accessibility & Awareness: Not all legal practitioners and courts may be familiar with the nuances of electronic evidence, and there could be challenges in the consistent application of these provisions.
Conclusion:
Section 190 of the Bharatiya Sakshya Adhiniyam, 2023, marks a significant update in the Indian legal system to keep pace with the digital world. It provides a framework for the admissibility and authentication of electronic records in legal proceedings, reflecting the growing role of digital documentation in everyday life. It ensures that digital evidence can be used in court, provided it meets the necessary standards of authenticity and reliability.
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