Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption of the Authenticity of Secure Electronic Records and Secure Electronic Signatures [Section 86]

Section 86 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the presumption relating to the authenticity and integrity of secure electronic records and secure electronic signatures. This provision is closely aligned with the scheme of the Information Technology Act, 2000, as amended in 2008, which accords legal recognition to electronic records and electronic signatures.

Legal Recognition of Electronic Records and Signatures
The Information Technology Act, 2000 recognises electronic records and electronic signatures as legally valid. Building upon this recognition, Section 86 of the Bharatiya Sakshya Adhiniyam lays down specific rules of presumption to facilitate proof and reliability of such electronic evidence in judicial proceedings.

Presumption Regarding Secure Electronic Records
Under Section 86(1), when a proceeding involves a secure electronic record, the Court is required to presume, unless the contrary is proved, that:

• The secure electronic record has not been altered since the point of time to which its secure status relates.

This presumption safeguards the integrity of secure electronic records and relieves the party relying on such records from proving that the record remained untampered.

Presumption Regarding Secure Electronic Signatures
Section 86 further provides a presumption with respect to secure electronic signatures. It states that:

• In any proceeding involving a secure electronic signature, the Court shall presume, unless the contrary is proved, that the signature was affixed by the subscriber, and
• That it was affixed with the intention of signing or approving the electronic record.

This presumption establishes both the authorship and intent behind the use of a secure electronic signature.

Exclusion of Presumption for Unsecured Records
Section 86(2)(b) clearly limits the scope of these presumptions. It provides that:

• No presumption shall be made regarding the authenticity or integrity of an unsecured electronic record, or
• An unsecured electronic signature.

Thus, the benefit of presumption is confined strictly to secure electronic records and secure electronic signatures, as defined under the Information Technology Act.

Nature and Scope of Presumption

• The presumptions under Section 86 are rebuttable presumptions of law.
• The opposing party may disprove the integrity, authenticity, or authorship of the electronic record or signature by leading appropriate evidence.
• Until such rebuttal is made, the Court is bound to presume authenticity in favour of secure electronic records and signatures.

Conclusion
Section 86 of the Bharatiya Sakshya Adhiniyam, 2023 plays a crucial role in strengthening the evidentiary value of electronic records by drawing a clear distinction between secure and unsecured electronic evidence. By mandating presumptions in favour of secure electronic records and signatures, the provision promotes trust, certainty, and efficiency in the adjudication of disputes arising in the digital environment, while ensuring that such presumptions remain open to challenge through proof to the contrary