What are the Presumptions under the Bharatiya Sakshya Adhiniyam, 2023 (BSA)?

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) introduces several presumptions concerning documents, significantly updating and expanding provisions for electronic and digital records, while also maintaining certain established presumptions for traditional documents. Presumptions under the Bharatiya Sakshya Adhiniyam, which defines what the courts shall or may presume to be true about the genuineness and execution of documents unless proven otherwise

Presumptions in Cases Involving Documents (General)

The BSA categorizes presumptions into:

• “Shall presume” – mandatory, rebuttable presumptions of law.
  
• “May presume” – discretionary, rebuttable presumptions of fact.
  

“Shall Presume” (Mandatory Presumptions)

The court is obligated to presume these facts unless and until they are disproved.

1. Genuineness of Certified Copies and Certificates (Section 78)

The court shall presume the genuineness of any document, such as a certificate or certified copy, that is declared by law to be admissible evidence of a particular fact, provided it is duly certified by an officer of the Central or State Government and is substantially in the form and manner directed by law. The court will also presume that the signing or certifying officer held the official character they claimed at the time.

2. Documents Produced as Records of Evidence (Section 79)

If a document purports to be a record or memorandum of evidence given by a witness in a judicial proceeding, or a statement/confession by a prisoner or accused, taken in accordance with law and signed by a Judge, Magistrate, or authorised officer, the court shall presume that the document is genuine, that any statements about the circumstances under which it was taken are true, and that the evidence, statement, or confession was duly taken.

3. Official Gazettes, Newspapers, and Other Mandated Documents (Section 80)

The court shall presume the genuineness of any document purporting to be the Official Gazette, a newspaper, or journal, and any document directed by law to be kept by a person, if it is kept substantially in the form required by law and is produced from proper custody.

4. Maps or Plans Made by Government Authority (Section 82)

The court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate. However, maps or plans made for the purposes of a specific cause must still be proven accurate.

5. Collections of Laws and Reports of Decisions (Section 83)

The court shall presume the genuineness of any book purporting to be printed or published under the authority of any country’s government and containing its laws, or any book containing reports of court decisions from that country.

6. Powers-of-Attorney (Section 84)

The court shall presume that any document purporting to be a power-of-attorney, executed and authenticated before a Notary Public, Court, Judge, Magistrate, Indian Consul or Vice-Consul, or a Central Government representative, was indeed so executed and authenticated.

7. Due Execution of Documents Not Produced (Section 91)

The court shall presume that any document called for and not produced after notice to produce was attested, stamped, and executed in the manner required by law.

“May Presume” (Discretionary Presumptions)

The court may either regard such a fact as proved unless disproved, or it may call for proof of it.

1. Certified Copies of Foreign Judicial Records (Section 88)

The court may presume that any document purporting to be a certified copy of a judicial record from a country outside India is genuine and accurate, if certified in a manner commonly used in that country for such copies, as attested by a Central Government representative.

2. Books, Maps, and Charts of Public Interest (Section 89)

The court may presume that any book it refers to for information on public or general interest, and any published map or chart with relevant statements produced for inspection, was written and published by the person and at the time and place it purports to have been. However, this presumption does not extend to the accuracy of the information.

Presumption About Registered Documents

While the BSA does not introduce a specific new presumption of genuineness for registered documents simply by virtue of their registration, it does offer a procedural relief concerning them:

Proof of Attested Registered Documents (Section 67)

If a document (not being a will) is required by law to be attested and has been registered according to the Indian Registration Act, 1908, it is not necessary to call an attesting witness to prove its execution, unless its execution is specifically denied by the person it purports to have been executed by.

30-Year-Old Documents (and the 20-Year Query)

It is important to clarify that according to the provided sources, the BSA maintains the presumption for 30-year-old documents, not 20 years.

Presumption for 30-Year-Old Documents (Section 92)

The court may presume that the signature and every other part of a document purporting or proved to be thirty years old, which appears to be in a particular person’s handwriting, is indeed in that person’s handwriting. In the case of an executed or attested document, the court may also presume it was duly executed and attested by the persons it purports to be executed and attested by. This presumption applies if the document is produced from proper custody.

Limitation: Mere production of a certified copy of a 30-year-old document is not sufficient to raise a presumption regarding its genuineness or execution under this section, though the copy can prove its contents.

ALSO READ : Section 51 : What Is Judicial Notice ?

Who is a Competent Witness under the Bharatiya Sakshya Adhiniyam, 2023?

Digital Documents and Blockchain

The BSA significantly modernises the law of evidence by explicitly addressing electronic and digital records, their admissibility, and specific presumptions.

General Admissibility of Electronic Records (Section 61)

The BSA explicitly states that the admissibility of an electronic or digital record cannot be denied solely because of its electronic or digital form. Such records are given the same legal effect, validity, and enforceability as other documents, subject to the conditions laid out in Section 63.

Expanded Definitions

The definition of “document” now explicitly includes “electronic and digital records”. The definition of “evidence” has been amended to include “statements given electronically” as oral evidence and “electronic or digital records” as documentary evidence.

Conditions for Admissibility (Section 63)

For information in an electronic record (termed “computer output”) to be admissible, specific conditions must be met. These include that the record was produced by a “computer or any communication device” during its regular use for storing or processing information, that information was regularly fed into it, and that the device was operating properly, or any malfunction did not affect the record’s accuracy.

Mandatory Certificate for Electronic Records (Section 63(4))

A critical change is the mandatory requirement for a certificate to be submitted with the electronic record at each instance it is presented for admission. This certificate must:

• Identify the electronic record and describe its production.
  
• Provide particulars of any device involved.
  
• Address the conditions mentioned in Section 63(2).
  
• Be signed by “a person in charge of the computer or communication device or the management of the relevant activities and an expert.”
  
• Include specific information detailed in the BSA’s Schedule, such as hash values and algorithms.
  

This provision makes the requirements for admitting electronic evidence more stringent than previous interpretations under the Indian Evidence Act, 1872, where courts sometimes allowed exceptions to the certificate requirement (e.g., State (NCT of Delhi) v Navjot Sandhu, though this was later overruled).

Presumptions for Electronic and Digital Records

“Shall Presume” (Mandatory Presumptions)

1. Electronic and Digital Gazettes (Section 81)

The court shall presume the genuineness of electronic or digital records purporting to be the Official Gazette or electronic/digital records directed by law to be kept by any person, if kept in the required form and produced from proper custody.

2. Electronic Agreements (Section 85)

The court shall presume that any electronic record purporting to be an agreement containing the electronic or digital signature of the parties was concluded by affixing those signatures.

3. Secure Electronic Records and Electronic Signatures (Section 86)

In proceedings involving a secure electronic record, the court shall presume, unless the contrary is proved, that it has not been altered since the specific point in time its secure status relates to. For secure electronic signatures, the court shall presume, unless disproved, that the signature was affixed by the subscriber with the intention of signing or approving the electronic record. However, this section explicitly states that it does not create any presumption regarding the authenticity and integrity of ordinary electronic records or electronic signatures.

4. Electronic Signature Certificates (Section 87)

The court shall presume, unless the contrary is proved, that the information listed in an Electronic Signature Certificate is correct, with the exception of unverified subscriber information.

“May Presume” (Discretionary Presumptions)

1. Electronic Messages (Section 90)

The court may presume that an electronic message forwarded by an originator through an electronic mail server to an addressee corresponds with the message as entered into the sender’s computer for transmission. However, the court shall not make any presumption as to the person who sent the message.

2. Five-Year-Old Electronic Records (Section 93)

Where an electronic record purporting or proved to be five years old is produced from proper custody, the court may presume that the electronic signature on it was affixed by the signatory or a person authorised by them.

Blockchain

Though it is not explicitly mention anywhere but “blockchain” or presumptions related to it. While the expanded definitions and provisions for electronic/digital records might indirectly apply to data stored on a blockchain, the sources do not offer specific guidance on its treatment.

Frequently Asked Questions (FAQs)

Q1. What are presumptions under the Bharatiya Sakshya Adhiniyam, 2023?
Ans. Presumptions under the BSA are legal inferences the court is allowed or required to make about a document’s genuineness or execution, unless proved otherwise. These are categorised as “shall presume” (mandatory) and “may presume” (discretionary).

Q2. What is the difference between “shall presume” and “may presume” in BSA?
Ans.

• “Shall presume” means the court must presume the fact is true unless disproved (mandatory and rebuttable).
  
• “May presume” means the court has discretion to either presume the fact or require further proof (discretionary and rebuttable).
  

Q3. Does registration of a document automatically prove its genuineness under BSA?
Ans. No. Registration under the Registration Act, 1908, does not automatically establish the genuineness or execution of a document. However, if such a registered document (not being a will) is attested, its execution need not be proved by calling an attesting witness unless specifically denied (Section 67, BSA).

Q4. What is the presumption for 30-year-old documents under the Bharatiya Sakshya Adhiniyam?
Ans. As per Section 92 of the BSA, if a document is 30 years old and produced from proper custody, the court may presume it was duly signed, executed, and attested by the persons it purports to be. This helps in proving old documents where direct evidence may no longer be available.

Q5. Is there any presumption for 20-year-old documents under the BSA?
Ans. No. The BSA retains the 30-year rule for presuming genuineness of old documents. There is no presumption for 20-year-old documents.

Q6. Is electronic evidence admissible under the Bharatiya Sakshya Adhiniyam?
Ans. Yes. Section 61 of the BSA provides that electronic or digital records are admissible and shall not be denied admission solely because of their form. They are treated as valid as physical documents, subject to the conditions laid down in Section 63.

Q7. What certificate is required for admissibility of electronic evidence under BSA?
Ans. Section 63(4) of the BSA mandates a certificate at every instance electronic evidence is presented. This certificate must identify the record, device, compliance with conditions in Section 63(2), be signed by the responsible person and expert, and include technical details such as hash values and algorithms.

Q8. What is the presumption for five-year-old electronic records under BSA?
Ans. Section 93 allows the court to presume that an electronic signature on a five-year-old electronic record from proper custody was affixed by the signatory or their authorised person.

Q9. Are emails and electronic messages presumed to be genuine under BSA?
Ans. Under Section 90, the court may presume the content of the electronic message corresponds with what was entered for transmission. However, no presumption is made about the identity of the sender.

Q10. Does the BSA mention anything about blockchain evidence?
Ans. No specific reference to blockchain is made in the BSA. However, the general provisions for electronic records may be interpreted to apply to blockchain data if proper custody and certification requirements are fulfilled.

Q11. Are there presumptions for government documents under BSA?
Ans. Yes. Sections 78 to 83 provide that the court shall presume the genuineness of certified government documents, official gazettes, court records, maps, and legal publications if they meet legal requirements and come from proper custody.

Q12. What is “proper custody” as per the BSA?
Ans. “Proper custody” refers to a place and person where the document would naturally be kept. This could be an official record room or a person legally responsible for its safekeeping, depending on the type of document.