Code: Section 81 – Bharatiya Sakshya Adhiniyam, 2023
The Court shall presume the genuineness of every electronic or digital record
purporting to be the Official Gazette, or purporting to be electronic or digital record directed
by any law to be kept by any person, if such electronic or digital record is kept substantially
in the form required by law and is produced from proper custody.
Explanation.—For the purposes of this section and section 93 electronic records are
said to be in proper custody if they are in the place in which, and looked after by the person
with whom such document is required to be kept; but no custody is improper if it is proved
to have had a legitimate origin, or the circumstances of the particular case are such as to
render that origin probable.
Explanation of Section 81 BSA
Section 81 of the Bharatiya Sakshya Adhiniyam provides that the court shall presume the authenticity of certain electronic or digital records without requiring further proof. This includes:
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Electronic versions of the Official Gazette, and
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Other digital records required by law to be maintained by any person.
The presumption applies only when these records are:
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Maintained in the proper format as required by law, and
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Produced from what is deemed to be “proper custody.”
This provision is crucial in recognizing the legal validity of digital records in modern legal proceedings, aligning with India’s shift toward digital governance and documentation.
What is “Proper Custody” of Digital Records?
According to the explanation under this section (and relevant to Section 93), digital records are considered in proper custody if:
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They are kept in the designated place, and
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Managed by the individual or authority lawfully responsible for them.
Even if not strictly maintained as per the prescribed manner, custody may still be considered proper if the origin is legitimate or if the circumstances reasonably suggest so.
Illustration
Example 1: Electronic Gazette Notification
A government notification is published digitally in the Official Gazette portal. If presented in court, Section 81 allows the court to presume its genuineness without the need for technical verification.
Example 2: Statutory Digital Record
A digital tax register maintained by a company under legal obligations is submitted in a dispute. Since it is maintained as required by law and comes from proper custody, the court shall presume its authenticity.
Common Questions and Answers on Section 81 BSA
1. What types of electronic records are covered under Section 81?
Electronic versions of the Official Gazette and other digital records required by law to be maintained by a person or institution.
2. Does the court require technical evidence to prove authenticity?
No. If the record is in proper form and custody, the court will presume it to be genuine unless challenged by the opposing party.
3. How is “proper custody” of a digital record determined?
Proper custody refers to the record being in its lawful location and under the supervision of the legally responsible party. The presumption remains even if the exact protocol is not followed, as long as the record has a legitimate origin.
4. Can the presumption be rebutted?
Yes. Though the court shall presume authenticity, the opposing party may challenge it with credible contrary evidence.
5. How is Section 81 different from Section 80?
Section 80 deals with physical records like printed Gazettes and newspapers, while Section 81 pertains to electronic or digital equivalents.
Conclusion
Section 81 of the Bharatiya Sakshya Adhiniyam simplifies the evidentiary burden for electronic and digital records by allowing courts to presume their authenticity when produced from proper custody. This provision is essential in today’s digital-first legal environment, ensuring efficiency while upholding procedural fairness.
For structured insights on digital evidence and more, visit ApniLaw.
