Digital Evidence in 2026: Admissibility Under Indian Evidence Law

The increasing reliance on digital communication has made electronic records a central category of evidence in both civil and criminal proceedings. From WhatsApp messages and emails to CCTV footage and bank transaction records, electronic evidence now features in virtually every significant piece of litigation. The Bharatiya Sakshya Adhiniyam, 2023 (BSA) — which replaced the Indian Evidence Act, 1872 — has updated the framework for electronic evidence admissibility, while preserving the core principles established by the courts over the preceding decades.

What Are Electronic Records?

Under the BSA, an electronic record includes any data generated, sent, received, or stored in any electronic form — this encompasses emails, WhatsApp and other messaging app conversations, SMS messages, digital photographs and videos, CCTV recordings, computer-generated documents, banking transaction records, website data, and metadata.

The Certificate Requirement

The most important provision governing electronic evidence admissibility is the certificate requirement under Section 63 of the BSA (replacing Section 65B of the Indian Evidence Act). To produce an electronic record as evidence, the party relying on it must produce a certificate that:

• Identifies the electronic record containing the statement
• Describes the manner in which the electronic record was produced
• Gives particulars of the device involved in producing the record
• Confirms that the device was operating properly throughout the relevant period

This certificate must be signed by a person occupying a responsible official position in relation to the operation of the device. For example, for bank records, it would be a bank official; for CCTV footage, it may be a security manager or IT administrator.

Key Supreme Court Rulings

The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) settled a long-standing ambiguity by holding that the Section 65B certificate is a mandatory requirement when the original device is not produced. The certificate cannot be substituted by oral testimony alone.

However, courts have also shown pragmatism — where the electronic record is a public document or where the device itself is produced and demonstrated before the court, the strict certificate requirement may be relaxed.

WhatsApp Messages and Chat Records

WhatsApp messages are among the most frequently tendered categories of electronic evidence. To produce a WhatsApp conversation as evidence, the standard approach involves exporting the chat, producing the phone before the court or an expert, and obtaining the required certificate. Screenshots alone, without the underlying chat export or certificate, face significant challenges to admissibility.

It is also important to note that WhatsApp's end-to-end encryption does not affect admissibility on the Indian side — what matters is whether the record was generated and stored on the device in question in the normal course of its operation.

CCTV Footage

CCTV footage is increasingly significant in criminal prosecutions and civil disputes alike. For footage to be admissible, the chain of custody must be preserved — from the original recording device, through any transfer to a storage medium (CD, DVD, pen drive, hard disk), to production before the court. The certificate from the person responsible for the CCTV system is essential.

Email Evidence

Emails can be produced either by printing them from the email server/client (with certificate) or through the service provider in response to a court order. Metadata — including headers showing routing information and timestamps — is important to establish authenticity and the date and time of communication.

Practical Takeaways

• Preserve digital evidence immediately — data can be overwritten or deleted, particularly from devices and CCTV systems.
• If you anticipate litigation, take steps to obtain proper certification of electronic records before devices are lost or wiped.
• Do not rely solely on screenshots — secure the original data with metadata intact wherever possible.
• Expert witnesses are increasingly relevant in cases where the authenticity of digital evidence is challenged.

This article is for general information only and does not constitute legal advice. For guidance on your specific matter, please consult a qualified advocate.