SECTION 63(4) OF THE BSA: HASH VALUES, EXPERTS, AND THE ROAD AHEAD

I. INTRODUCTION

A three-judge bench of the Hon’ble Supreme Court of India delivered a Judgment dated May 22, 2026, in the case of Pune Bar Association v. Union of India and Others1 (‘Pune Bar Association’). The Hon’ble Court while upholding the constitutionality of the Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 (‘BSA’), which replaced the erstwhile Section 65B of the Indian Evidence Act, 1872 (‘Evidence Act’), clarified on who may qualify as an ‘expert’ for the purposes of signing the Certificate as prescribed in Part B of the Schedule. This note analyses the decision in Pune Bar Association, its impact on the admission of electronic records under the BSA, and the practical significance of the Supreme Court’s clarification on the scope of expert certification.

II. FROM SECTION 65B TO SECTION 63(4):

The legislative journey governing the admissibility of electronic records in India can be traced from Section 65B of the Evidence Act, which mandated, inter alia, a certificate to be issued by a responsible official of the organisation managing the computer or electronic device, attesting to the conditions as laid down under Section 65B (2) to (4) of Evidence Act. The import, application and interpretation of Section 65B of Evidence Act witnessed significant consideration, most notably in the cases of Anvar P .V. v. P .K. Basheer & Ors. 2 , and Shafhi Mohammad v. State of Himachal Pradesh3 , and ultimately was settled in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors. 4 , wherein the Hon’ble Supreme Court affirmed the judgment in Anvar P .V. as the governing law.

Through BSA, the legislature reformed the framework for admissibility of electronic evidence. Section 63(4) of BSA introduces a standardised certificate as stated under Part A & Part B to the Schedule of BSA. Part A inter alia mandates the disclosure of the hash value of the electronic or digital record, in addition to the declarations hitherto required under Section 65B of Evidence Act, and Part B requires a further declaration signed by an expert.

III. THE CONSTITUTIONAL CHALLENGE:

The Petitioner in Pune Bar Association challenged the vires of Sec. 63(4) of BSA on the following grounds: (i) Manifest Arbitrariness: The requirement of a certificate comprising of Part A (hash value disclosure) and Part B (expert certification) was argued to impose an onerous burden on an ordinary litigant, thereby rendering the provision manifestly arbitrary and unjust; and (ii) Practical Illusoriness of Part B: Relying on a judgment of the Madras High Court5 , the Petitioner argued that Part B of the Schedule must be signed by an expert notified under Section 79A of the Information Technology Act, 2000 (“IT Act”). Since only a handful of entities are so notified by the Central or State government, the requirement was argued to effectively render the provision illusory in its implementation as litigants would be unable to obtain the certificate in practice.

IV. FINDINGS OF THE HON’BLE SUPREME COURT:

a. HASH VALUE AS AN ELECTRONIC FINGERPRINT: The Hon’ble Court while rejecting the challenge held that: (i) electronic records constitute a unique species of evidence that is susceptible to continuous mutation and modification, affecting the authenticity, integrity, and intrinsic evidentiary value; (ii) this vulnerability was further exacerbated by the rapid advancement of artificial intelligence and deepfake technology which created novel means to tamper with digital records; (iii) the hash value of an electronic record is synonymous with an electronic fingerprint and provides a reliable and precise mechanism for identifying and verifying digital data; and (iv) incorporating the hash value in the certificate has a clear and rational nexus with the object of the BSA, namely, ensuring the authenticity and integrity of electronic records tendered as evidence.

b. THE COURT’S CLARIFICATION ON EXPERT CERTIFICATION UNDER PART B: In reply to the Petitioner’s challenge to Part B based on a judgment of the Madras High Court, the Hon’ble Supreme Court held that: (i) the said Judgment had considered only sub-section (2) of Section 39 of the BSA, without regard to sub-section (1); (ii) a harmonious reading of Sections 39(1) & 39(2) of BSA would support the view that in addition to entities formally notified as Examiners of Electronic Evidence under Section 79A of the IT Act, any other person may sign Part B of the Schedule as an expert, provided the court is satisfied, on the basis of unimpeachable material, that such person possesses special skill and expertise in computer science and cyber forensics; (iii) Unlike Section 63(4) of the BSA and the erstwhile Section 65B of the Evidence Act, is not prefaced by a non-obstante clause, and therefore, it cannot be read in a manner so as to exclude the operation of Section 39(1) of the BSA from the domain of electronic records; and (iv) the question of whether persons other than experts designated under Section 79A of the IT Act are competent to sign Part B certificate was expressly left open.

V. TAKEAWAY:
The Judgment in Pune Bar Association delivers three significant outcomes:

a. First, it constitutionally validates the enhanced requirements for the certificate under Section 63(4) of the BSA, including the novel hash value requirement in Part A of the Schedule, thereby settling any doubt regarding the reasonableness of the new framework.

b. Second, it gives a wider interpretation of 'expert' qualified to issue Part B Certificate.

c. Third, it has kept open the question of law as to whether persons other than experts designated under Section 79A of the IT Act are competent to sign Part B certificate. From the foregoing, as on date, the certificate under Part B of Schedule to Section 63(4) of BSA need not necessarily be signed by an entity notified under Section 79A of the IT Act, and that a person with demonstrable and unimpeachable expertise in computer science and cyber forensics may qualify as an 'expert' for this purpose, subject to the satisfaction of the court concerned.

[1] Writ Petition (Civil) No. 599 of 2026, order dated May 22, 2026.

[2] (2014) 10 SCC 473.

[3] (2018) 2 SCC 801.

[4] (2020) 7 SCC 1.

[5] R. v. B & Anr., 2024 SCC OnLine Mad 6084.