Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Electronic Messages [Section 90]

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Electronic Messages [Section 90]
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Section 90 of the Bharatiya Sakshya Adhiniyam, 2023 deals specifically with the presumption relating to electronic messages, recognising the realities of modern digital communication. This provision operates in harmony with the framework of the Information Technology Act, 2000, which identifies three essential participants in electronic communication--the originator, the addressee, and the intermediary (such as an email server or service provider).

Statutory Rule under Section 90Section 90 provides that:

• The Court may presume that an electronic message sent by the originator through an electronic mail server to the addressee to whom it purports to be addressed corresponds with the message as originally fed into the originator’s computer for transmission.

This presumption ensures confidence in the integrity of electronic communication during transit.

Nature and Scope of the Presumption

• The presumption under this section is discretionary, as indicated by the words “may presume”.
• It relates only to the contents of the electronic message, i.e., that the message received by the addressee is the same as the message transmitted by the originator.
• The law assumes that the electronic system has transmitted the message accurately without alteration during the process of communication.

Limitation of the PresumptionA crucial limitation is expressly provided in the section:

• No presumption is made regarding the identity of the sender.
• The Court shall not presume that the electronic message was sent by the person who appears to be the sender.

Thus, while the accuracy of the content may be presumed, authorship or origin must be independently proved by evidence.

Rationale behind the ProvisionElectronic communications are susceptible to misuse, such as impersonation, hacking, spoofing, or unauthorised access. Recognising these risks, Section 90 carefully balances convenience with caution by:

• Presuming technical accuracy of transmission, but
• Requiring strict proof of the sender’s identity.

This approach prevents unjust liability being imposed solely on the basis of apparent electronic origin.

ConclusionSection 90 of the Bharatiya Sakshya Adhiniyam, 2023 facilitates the admissibility and reliability of electronic messages by allowing courts to presume the correctness of their contents during transmission. At the same time, it safeguards against misuse by clearly denying any presumption regarding the person who sent the message. This measured provision reflects a modern and practical approach to electronic evidence in contemporary legal proceedings.