(This is a guest post by Mohamed Thahir Sulaiman)
The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal sought to clarify the legal position on the admissibility of electronic evidence by reverting to the interpretation adopted in Anvar P.V. v. P.K. Basheer, thereby reiterating the certificate mandated under Section 65B(4) as being sine qua non for its admissibility. However, despite its intention to restore clarity and consistency, this decision was criticized on inception, particularly on the court’s omission to clarify an issue hovering since its Sonu v. State of Haryana decision: Whether the production of certificate is an issue of mode of proof, or an issue of inherent inadmissibility. This issue is brought back into the limelight by a recent decision of the Kerala High Court in Alukas Jewelerry v. Anil (17.07.2025), where the court reiterated that the absence of certification is “only a curable defect,” and that an objection to its absence “relates only to a mode of proof issue.”
In this context, this post argues that introduction of expert certificate in the Bharatiya Sakshya Adhiniyam (BSA), 2023, further compounds this existing ambiguity surrounding the nature of certificate, forcing us to revisit the question: Whether the mandatory requirement of certificate as per Khotkar is still justified? I first highlight the internal tension within the post-Khotkar framework regarding the legal nature of the 65B certificate; secondly, I analyse the addition of expert certification under Section 63(4) of the BSA; and thirdly, highlight how this addition compounds the existing tension regarding the nature of the certificate.
Ambiguity in Jurisprudence
To understand the tension regarding the nature of the certificate requirement for electronic evidence, it is necessary to trace its origins in the decision of Sonu v. State of Haryana.
While the Court had unambiguously held in Anvar P.V. that a certificate under Section 65B(4) of the IEA was mandatory for the admission of electronic records, this position was soon critiqued as being overly rigid and impractical, considering the procedural burdens already facing trial courts. As a result, subsequent decisions in Tomaso Bruno v. State of U.P. and Shafhi Mohammad v. State of Himachal Pradesh diluted the certificate requirement, departing from Anvar’s strict standard.
It was in this context that the Court in Sonu, while holding that the certificate was not necessary in the interests of justice for trials concluded prior to the Anvar ruling, drew a categorical distinction between mode of proof and inherent inadmissibility as objections to any evidence, observing that the requirement of the certificate pertained solely to the issue of mode of proof in respect of the underlying electronic evidence which was sought to be proved. This observation is significant as while the Court in Anvar, though not articulated in this language, held that the electronic evidence is in itself inadmissible without the certificate, the Court in Sonu took the position that the electronic evidence is admissible, and that a certificate should be treated merely as a procedural requirement relating to its mode of proof, rather than a substantive condition for admissibility of the underlying electronic evidence.
Given this context, even while the Court in Khotkar reaffirmed the mandatory requirement of the certificate, expressly overruling its previous decisions in Tomaso Bruno and Shafhi Mohammad, its decision was criticized for not explicitly overruling Sonu, nor clarifying as what is the nature of the certificate. While it could be argued that Khotkar, a three-judge bench, had implicitly overruled the division bench decision in Sonu, this interpretation was negated due to the three-judge bench decision Sundar @ Sundar v. State, which upheld Sonu as good law and reiterated its holding that the certificate is a matter of mode of proof, not of inherent admissibility.
As a result, the current judicial position on the admissibility of electronic evidence consists of two contradictory positions, held by two co-equal benches; While Khotkar maintains that a certificate is a sine qua non, making electronic evidence in itself inadmissible by its absence, Sundar upholds the view that electronic evidence is admissible, treating the 65-B certificate merely as a procedural requirement of mode of proof.
By failing to address this ambiguity in Khotkar, this tension has persisted and is evident even five years later in the Kerala High Court’s decision. While this tension may appear subtle, its true implications become clear with the introduction of the BSA in 2023.
Here Comes the BSA
Section 63 of the BSA has altered the law on electronic evidence, with a major change being found in the newly added schedule, which prescribes the format of the certificate. While this is largely a positive development, considering that there was lack of clarity as to what a certificate must contain under Section 65B(4) IEA, this change also complicates the law on admissibility with Section 63(4) BSA requiring the certificate to be filled both by the Party and an ‘Expert’ as provided in Part B of the certificate.
This addition raises two critical questions: Firstly, who exactly constitutes the "expert" as found in Section 63(4)? Neither Section 63 nor the accompanying Schedule defines who is an ‘expert’ forfilling the certificate, nor is there any clarification found in the new provisions elsewhere in the BSA.
When reading the BSA collectively, however, it is seen that the only reference to an expert in the context of electronic evidence appears in Section 39(2), the Explanation to which states that the "Examiner of Electronic Evidence" notified under Section 79A of the Information Technology Act (IT Act), 2000, shall be deemed to be an expert.
Using this as an aid in interpreting the definition of “expert” in Section 63 BSA, two readings become possible. The first suggests that the Examiner of Electronic Evidence is one among several “experts” who can fill the certificate, and that other individuals are not precluded from doing so. However, this reading would be inconsistent with the larger scheme of Section 39, where sub-section (2) has specifically defined who would qualify to be an expert for electronic evidence, unlike in sub-section (1), where the term “expert” is remained undefined for general cases. This leads us to the second reading, which construes “expert” in Section 63 as referring exclusively to the Examiner of Electronic Evidence.
However, this reading is deeply problematic for two reasons. First, it may not necessarily reflect legislative intent, given that Section 39(2) of the BSA is a verbatim reproduction of Section 45A of the IEA, and it is known that the BSA’s replication of earlier IEA provisions is has not always been made consistent with the changes relating to electronic evidence (for instance, Section 15 of the BSA reproduces Section 17 of the IEA verbatim, failing to acknowledge BSA’s inclusion of electronic evidence within the definition of ‘document’). Second, the Examiner of Electronic Evidence is to be notified by the central government individually as per Section 79A of the IT Act, as can be seen by past notifications, and it is simply impossible for every electronic evidence to be certified exclusively by such government-notified experts.
Despite these problems, a plain reading of BSA, absent any judicial or legislative clarifications to the contrary, clearly provides that Section 63 certificate must be filled by an Examiner of Electronic Evidence. The fact that such interpretation seems consistent with larger statutory language, regardless of whether it was intended or how illogical it may be, highlights a crucial drafting error in the BSA. Thus, when assuming thus question to be answered according to the second reading, we see that the BSA introduces a significant procedural barrier that hampers admission of electronic evidence.
The second question that now arises is: What is the purpose of the expert certificate in the first place? The rationale behind relying on expert opinion in Section 39 is to aid the court in forming an informed, independent assessment on technical matters. However, in the 63 BSA certificate and its format given in the Schedule to the Act, Part A (to be filled by the party) and Part B (to be filled by the expert) contain the same set of information. It is thus unclear how Part B adds anything of value, when all the expert certificate does is merely replicate the information already provided in Part A. As a result, addition of Part B seems more like a procedural formality, rather than anything adding substantive value.
Additionally, if an expert certificate is already to be provided during admission stage itself, does this not make Section 39(2) itself redundant—why would the court need to refer to expert opinion on electronic evidence when the same is already certified in Part B of the certificate?
Adding to the Ambiguity
Given this development, one must now reconsider the nature of the Section 63(4) certificate given that it is now to be filled by both the party and an expert.
Intuitively, this additional requirement may appear to reaffirm the Khotkar position: by rendering the expert certificate mandatory, it seems to strengthen the stringent requirement for a certificate as a precondition for the admission of electronic evidence. Such reading would thus align with the Anvar–Khotkar line of reasoning that courts must establish the evidence to be original and unaltered, with Part B of the certificate serving merely as an added safeguard. As per this interpretation, the certificate continues to be a sine qua non for admissibility.
On the other hand, one must remember that the entire point of expert opinion under the IEA had been a mode of proof issue; the opinion of experts under Section 45A of IEA was not mandatory for admission of electronic evidence and was simply to aid the court in assessing its admissibility when doubt arises. Thus, if this conventional purpose of requiring expert opinion still prevails, the expert opinion should also be deemed to be merely a mode of proof issue. This reading then relates back to the Sonu-Sundar line of interpretation.
These competing interpretations just go to show how the BSA has again complicated the issue of the nature of certificate even further. As discussed earlier, while this ambiguity had been lingering even in the post-Khotkar period, the law on electronic evidence was still settled to the extent that a certificate was absolutely mandatory. Such legislative additions, without addressing these pre-existing concerns, have aggravated this underlying tension, resulting in a new set of questions that courts must now resolve: What is the precise legal nature of the expert certificate under the BSA? Is it logically sustainable for Part A to be necessary for admission, while Part B is not? And more broadly, when the statutory content and structure of the certificate have been substantively altered, can the pre-BSA jurisprudence mandating its production for admissibility still validly apply?
Resolving these questions can now no longer be deemed to be a mere academic exercise, as it existed after Khotkar. If Part B of the certificate is interpreted as a mandatory precondition for admissibility, the requirement may significantly hinder the conduct of trials, delaying proceedings and obstructing access to justice. A more balanced approach, treating the certificate, particularly the expert portion, as a matter of mode of proof, would align better with principles of procedural fairness. However, as matters currently stands, there is still no clarity either from the judiciary or legislature regarding this ambiguity.
Moving Forward
When one sees how much confusion a legislative action, such as the addition of just two words to a provision, can cause, one cannot help but recall Justice Ramasubramanian’s concurring opinion in Khotkar. As he rightly observes, while other jurisdictions in the world have adapted to the technological developments and “fine-tuned their legislations” accordingly, India’s ambiguous legislative drafting has led to considerable “judicial turmoil.”
Given that this understanding was eloquently articulated in 2020, the enactment of BSA served as a golden opportunity for the government to undertake meaningful reform in order to align the law governing electronic evidence with other jurisdictions. Rather, the government strangely, has reproduced the same IEA provisions with the addition of the vaguely defined requirement of an ‘expert’ certificate.
Considering how the ambiguity introduced by the 2000 amendment led to extreme swings in judicial interpretations, from Navjot Sandhu to Anvar, it is reasonable to foresee a similar judicial turmoil ensuing in the coming years from the simple addition of “and expert” in Section 63(4).
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