BSA 2023 and Digital Evidence: What Every Indian Creator Must Know

On July 1, 2024, India's evidence law changed. The Indian Evidence Act of 1872 — a law older than the telephone — was replaced by the Bharatiya Sakshya Adhiniyam 2023 (BSA). And buried in its provisions is something that should matter to every creator in the country.

Section 63 of the BSA fundamentally reshapes how digital evidence is treated in Indian courts. If you're a screenwriter, musician, author, or any kind of creative professional, understanding this section isn't optional — it's the difference between evidence that gets admitted and evidence that gets thrown out.

What Changed from the Old Law

Under the Indian Evidence Act, Section 65B governed electronic evidence. It was groundbreaking when introduced via the IT Act amendment in 2000, but it was also vague, inconsistently applied, and the subject of contradictory Supreme Court rulings.

The BSA's Section 63 keeps the core framework but makes several critical upgrades:

Communication devices are now explicitly included. The old law spoke primarily of "computers." Section 63 adds "communication devices" — meaning evidence from mobile phones, tablets, and messaging apps is now clearly within scope. For creators who share work via WhatsApp, email, or cloud platforms, this is significant.

Dual certification is now mandatory. This is the biggest change. Under the old Section 65B, a certificate from the person in charge of the computer was sufficient. Under BSA Section 63(4), you now need two certificates: one from the person in charge of the device, AND one from an expert. This dual requirement adds credibility but also adds a procedural step that many creators will miss.

Hash values are now part of the formal requirements. The Schedule to BSA 2023 specifies that certificates must include the hash value of the electronic record and the algorithm used to generate it. This is a direct nod to cryptographic verification — and it's exactly what blockchain timestamping produces.

Semiconductor memory is explicitly covered. The old law mentioned optical and magnetic media. The BSA adds semiconductor memory, covering everything from SSDs to USB drives to phone storage.

Section 63: What It Actually Says (In Plain English)

Here's what Section 63 establishes, stripped of legal jargon:

Any electronic record — printed, stored, or copied — counts as a document if certain conditions are met. This means your blockchain timestamp certificate, your TSA certificate, your email records, and your cloud storage logs can all serve as evidence.

The conditions for admissibility are:

1. 1The device producing the record was regularly used for creating, storing, or processing information
2. 2The information was regularly fed into the device in the ordinary course of activities
3. 3The device was working properly (or any malfunction didn't affect the record's accuracy)
4. 4The information in the record comes from data regularly fed into the device

A certificate must accompany the electronic record every time it's submitted. The certificate must identify the record, describe how it was produced, provide details of the device, and be signed by both the person in charge and an expert.

The certificate, once properly submitted, "shall be evidence" — meaning courts must admit it. They don't have discretion to reject properly certified electronic evidence.

Why This Matters for Creative Disputes

In a typical creative theft case — say, a screenwriter alleging that a production house stole their script — the central question is timing. Who had the idea first? Who can prove it?

Under BSA 2023, here's what actually gets your evidence through the door:

You need dated electronic records. Not "I remember when I wrote this" — actual records with verifiable dates. A blockchain transaction with a timestamp. A TSA certificate with a date. An email with server headers.

Those records need proper certification. You can't just wave a printout at a judge. You need a certificate that follows BSA's prescribed format, includes hash values, describes the device, and carries dual signatures.

The hash value requirement favours cryptographic timestamps. When BSA specifically asks for "the hash value of the electronic/digital record and the algorithm through which it is obtained," it's essentially describing what services like ProofChain generate automatically. SHA-256 hashing is the recommended standard, and it's exactly what blockchain timestamping uses.

The Certification Problem (And How to Solve It)

Here's where most creators will stumble. Getting a certificate right under BSA 2023 requires:

1. 1A certificate from you (the party). This covers device details — make, model, serial number, IMEI — and states that the device was working properly and used regularly.
2. 2A certificate from an expert. This provides technical authentication of the digital record. The expert confirms the hash value, verifies the algorithm, and attests to the record's integrity.
3. 3Both certificates must follow the format prescribed in the BSA Schedule. This isn't freestyle — there's a specific structure that courts expect.

For an individual creator, getting all this right is daunting. You'd need to know your device's serial number, understand hash algorithms, find a qualified expert, and ensure the format matches the Schedule.

This is precisely why ProofChain builds BSA-compliant certification into the timestamping process. When you timestamp a work, the system automatically generates records that include all the elements Section 63 requires — the hash, the algorithm, the timestamp from independent authorities, and the verification chain.

What Courts Have Said About Electronic Evidence

Indian courts have been gradually building jurisprudence around electronic evidence. A few key principles have emerged:

Anvar P.V. vs P.K. Basheer (2014): The Supreme Court ruled that electronic evidence without a proper Section 65B certificate (now Section 63 under BSA) is inadmissible. This was a watershed moment — it made certification mandatory, not optional.

Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal (2020): The Supreme Court softened the earlier ruling slightly, clarifying that courts could grant additional time to produce certificates, but ultimately reaffirmed that certification is essential.

These rulings established a clear principle: no certificate, no admissibility. Under BSA 2023, this principle is even more firmly codified with the added requirement of expert certification.

Practical Steps for Creators

If you're a creator who wants your work to be protected by evidence that Indian courts will actually accept, here's what you need to do:

Timestamp everything at the point of creation. Don't wait until you suspect theft. Timestamp your first draft, your revisions, your final version. The earlier your timestamp, the stronger your position.

Use SHA-256 hashing. BSA 2023's Schedule specifically references hash values and recommends SHA-256 as the standard algorithm. Any timestamping service you use should employ SHA-256.

Get independent verification. Self-generated records ("I saved this file on my computer on this date") are weak. You need third-party verification from an authority that can be independently audited — a blockchain, a TSA, or both.

Keep your devices in order. If your evidence is ever challenged, you may need to provide details about the device used. Keep records of your computer, phone, and other devices you use for creative work.

Don't modify original files. Once a file is timestamped, any modification changes the hash. Keep your originals untouched. If you need to make changes, save a new version and timestamp that separately.

The Bottom Line

BSA 2023 isn't just a legal update — it's a signal. The Indian legal system is acknowledging that the future of evidence is digital, and it's setting standards for how that evidence must be prepared, certified, and presented.

For creators, this is both a challenge and an opportunity. The challenge is that the requirements are more rigorous than ever. The opportunity is that, for the first time, the law explicitly supports the kind of cryptographic, hash-based, independently verified proof that blockchain timestamping provides.

The creators who understand BSA 2023 will be the ones who can protect their work. The ones who don't will be the ones who learn about it the hard way — in a courtroom, without admissible evidence.