​KembaraXtra – Bharatiya Sakshya Adhiniyam (BSA) – Opinions of Experts [Section 39 BSA / Section 45 IEA]
Introduction
​Section 39 of the Bharatiya Sakshya Adhiniyam, 2023 corresponds to Section 45 of the Indian Evidence Act, 1872. Both provisions deal with the admissibility and relevance of expert opinions in matters requiring specialized knowledge beyond the understanding of ordinary persons.
Courts often encounter issues involving technical, scientific, or professional subjects. In such situations, the opinion of a qualified expert becomes relevant and may assist the Court in arriving at a just conclusion.
The BSA retains the traditional categories of expert evidence while significantly expanding the provision to expressly include electronic and digital evidence.

Meaning of Expert Opinion
An expert is a person who possesses:

• Special knowledge,
• Skill,
• Training,
• Experience,
• Professional expertise,

in a particular field.
When the Court has to form an opinion upon matters requiring such specialized knowledge, the opinion of an expert becomes a relevant fact.

Matters on which Expert Opinion is Relevant
Under Section 39 BSA, expert opinions are relevant regarding:

• Foreign law;
• Science;
• Art;
• Identity of handwriting;
• Identity of fingerprints;
• Other specialized fields requiring expert knowledge.

The Court may rely upon expert testimony to understand technical matters beyond ordinary human experience.

Electronic and Digital Evidence – Major Change under the BSA
One of the most significant additions under Section 39 BSA is the express recognition of expert opinion relating to electronic and digital evidence.
The section provides that where the Court has to form an opinion regarding:

• Information transmitted through a computer resource;
• Information stored in electronic form;
• Digital records;
• Electronic communications;
• Computer-generated data;

the opinion of an Examiner of Electronic Evidence referred to under Section 79A of the Information Technology Act, 2000 is a relevant fact.

Examiner of Electronic Evidence as an Expert
The BSA expressly clarifies that:
An Examiner of Electronic Evidence shall be deemed to be an expert.
This explanation removes ambiguity regarding the status of such examiners and grants statutory recognition to their opinions.
Their expertise may be sought in matters involving:

• Digital documents,
• Electronic records,
• Cybercrime investigations,
• Computer forensics,
• Data recovery,
• Authentication of electronic evidence.

Importance of E-Evidence under Section 39
The express recognition of electronic evidence reflects the growing importance of:

• Digital transactions,
• Electronic communication,
• Online business activities,
• Cybersecurity,
• Information technology.

Modern disputes increasingly involve:

• Emails,
• WhatsApp messages,
• Social media communications,
• Server logs,
• CCTV footage,
• Digital records.

Expert assistance is often necessary to determine their authenticity and reliability.

Difference between Section 39 BSA and Section 45 IEA
Section 39 BSA

• Retains traditional categories of expert evidence.
• Expressly recognizes electronic and digital evidence.
• Recognizes Examiner of Electronic Evidence as an expert.
• Adapts evidence law to technological advancements.
• Broader and more modern in scope.

Section 45 IEA

• Focused primarily on:
  • Foreign law,
  • Science,
  • Art,
  • Handwriting,
  • Fingerprints.
• Did not expressly recognize electronic evidence experts.
• Was framed before the digital era.

Purpose of the Provision
The provision aims to:

• Assist Courts in understanding technical matters.
• Improve accuracy in judicial decision-making.
• Facilitate admissibility and evaluation of electronic evidence.
• Ensure that technological developments are effectively accommodated within the legal system.

Illustration
Suppose a dispute arises regarding the authenticity of an email or a computer-generated record. The Court may seek the opinion of an Examiner of Electronic Evidence to determine:

• Whether the record is genuine,
• Whether it has been altered,
• Whether it originated from a particular device or system.

Such opinion becomes a relevant fact under Section 39 BSA.

Important Points (Note Form)

• Section 39 BSA corresponds to Section 45 IEA.
• Deals with relevance of expert opinions.
• Expert opinion relevant regarding:
  • Foreign law,
  • Science,
  • Art,
  • Handwriting,
  • Fingerprints.
• BSA expressly includes electronic and digital evidence.
• Opinion of Examiner of Electronic Evidence is relevant.
• Examiner of Electronic Evidence is deemed an expert.
• Reflects modernization and technological advancement.
• Supports admissibility and authentication of e-evidence.

Conclusion
Section 39 of the Bharatiya Sakshya Adhiniyam, 2023 modernizes the law relating to expert evidence by expressly recognizing electronic and digital evidence and granting statutory recognition to Examiners of Electronic Evidence as experts. While preserving the traditional framework of Section 45 of the Indian Evidence Act, 1872, the BSA expands its scope to address the realities of the digital age, ensuring that courts are equipped to deal effectively with technologically complex disputes and electronic records.