Section 86 BSA: Presumption as to Electronic Records and Electronic Signatures

Section 86 BSA explains the presumptions relating to secure electronic records, electronic signatures and their integrity under Indian evidence law.

Introduction

Section 86 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the presumption as to electronic records and electronic signatures. It establishes specific evidentiary presumptions concerning the integrity of secure electronic records and the intention associated with secure electronic signatures.

The provision is particularly relevant to disputes involving digitally signed documents, electronic contracts, online transactions and electronic evidence produced before courts. It helps determine when a court may presume that a secure electronic record has not been altered or that a secure electronic signature was affixed with the intention of signing or approving the record.

Section 86 BSA corresponds to Section 85B of the Indian Evidence Act, 1872. Its application must be understood alongside the Information Technology Act, 2000, which defines secure electronic records and secure electronic signatures.

Section 86 of the Bharatiya Sakshya Adhiniyam, 2023: Bare Act

86. Presumption as to electronic records and electronic signatures.—

(1) In any proceeding involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

(2) In any proceeding, involving secure electronic signature, the Court shall presume unless the contrary is proved that—

(a) the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;

(b) except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.

Explanation of Section 86 BSA

Section 86 contains two principal presumptions. The first concerns the integrity of a secure electronic record, while the second concerns the intention behind a secure electronic signature. Both presumptions can be rebutted by contrary evidence.

1. Presumption that a secure electronic record has not been altered

Under Section 86(1), the court shall presume that a secure electronic record has not been altered since the specific point in time to which its secure status relates, unless the contrary is proved.

This provision addresses the integrity of electronic information. Unlike a physical document, an electronic record may be copied, transferred or modified without necessarily leaving an obvious visible trace. The statutory presumption helps address this evidentiary concern where the record qualifies as secure.

For example, suppose a company maintains an electronically signed agreement using a security procedure that establishes the record’s secure status at a particular point in time. If the agreement is later produced in court, Section 86(1) requires the court to presume that it has not been altered since that relevant point in time, unless evidence establishes otherwise.

The presumption does not establish that the record was truthful from the outset or that every statement contained in it is correct. It concerns whether the secure electronic record has been altered after the point in time to which its secure status relates.

2. Presumption regarding the intention behind a secure electronic signature

Section 86(2)(a) provides that the court shall presume that a secure electronic signature was affixed by the subscriber with the intention of signing or approving the electronic record, unless the contrary is proved.

A subscriber is the person in whose name an electronic signature certificate is issued or the person identified in the applicable statutory framework as the subscriber.

The provision is significant because a signature is commonly relied upon to establish that a person intended to authenticate or approve a document. In electronic transactions, the statutory presumption helps address the evidentiary question of whether a qualifying secure electronic signature was affixed for that purpose.

For example, if a secure electronic signature is used to sign a commercial agreement, the court shall presume that the subscriber affixed the signature intending to sign or approve the agreement, unless contrary evidence rebuts the presumption.

Also Read: Section 102 BSA: Who May Give Evidence of Agreement Varying Terms of Document?

However, the presumption does not automatically establish that every term of the agreement is lawful, that the subscriber had authority to bind another person, or that the agreement is enforceable in every circumstance.

3. No general presumption for every electronic record or signature

Section 86(2)(b) expressly limits the operation of the provision. Except in the case of a secure electronic record or a secure electronic signature, the section does not create a presumption concerning the authenticity and integrity of an electronic record or electronic signature.

This distinction is important. An electronic record is not automatically entitled to the presumptions under Section 86 merely because it exists in digital form.

A screenshot, email, scanned document or ordinary PDF may be relevant evidence, but its authenticity and integrity must be assessed under the applicable evidentiary rules. The fact that a document is electronic does not, by itself, establish that it is secure.

Meaning of a Secure Electronic Record Under the Information Technology Act, 2000

Section 14 of the Information Technology Act, 2000 addresses secure electronic records. It provides that where a security procedure has been applied to an electronic record at a specific point in time, the record is deemed to be a secure electronic record from that point in time until verification.

This provision helps explain the time-based language used in Section 86(1) BSA.

The relevant question is not simply whether the document is stored electronically. It is whether the record qualifies as secure under the applicable statutory framework and the relevant security procedure.

Meaning of a Secure Electronic Signature

Section 15 of the Information Technology Act, 2000 governs secure electronic signatures. An electronic signature qualifies as secure where the signature-creation data, at the time of signing, was under the exclusive control of the signatory and was stored and affixed in the prescribed manner.

In the case of a digital signature, the statutory explanation identifies the private key of the subscriber as the signature-creation data.

This framework is relevant to Section 86(2)(a), because the presumption of intention applies to a secure electronic signature, rather than indiscriminately to every electronic indication of approval.

Illustration of Section 86 BSA

Suppose a company executes a supply agreement using a qualifying secure electronic signature. The agreement is stored as a secure electronic record, and a dispute subsequently arises over whether its terms were altered after signing.

The company produces the electronic record in court.

The court may apply Section 86 in the following manner:

Issue	Presumption under Section 86
Whether the secure electronic record was altered after the relevant point in time	The court shall presume that it was not altered, unless the contrary is proved.
Whether the secure electronic signature was affixed to sign or approve the record	The court shall presume that the subscriber intended to sign or approve it, unless the contrary is proved.
Whether an ordinary, non-secure electronic document is automatically authentic	No such general presumption arises under Section 86.
Whether the agreement is valid and enforceable	This must be determined under the applicable substantive law and the facts of the case.

If the opposing party produces credible evidence of alteration, compromise of signature-creation data or other circumstances undermining the statutory presumption, the court must evaluate that evidence.

Important Case Laws on Section 86 BSA

Section 86 substantially carries forward Section 85B of the Indian Evidence Act, 1872. Decisions interpreting the predecessor provision can therefore assist in understanding the corresponding principle, subject to the applicable statutory framework and facts of the case.

1. The Secretary to Government of Tamil Nadu, Education Department v. X. Roselin Jancy (Madras High Court, 8 November 2017)

The Madurai Bench of the Madras High Court considered evidentiary issues involving electronic records, including the statutory presumption under Section 85B of the Indian Evidence Act, 1872.

The court discussed the presumption applicable to secure electronic records and explained that such records carry a presumption that they have not been modified or changed since the relevant point in time, unless the presumption is rebutted. The judgment also discussed the separate requirements for proving electronic records under the predecessor Evidence Act.

Legal principle: A qualifying secure electronic record may attract the statutory presumption of integrity, but the requirements for admissibility and proof of electronic evidence remain distinct questions.

Also Read: Section 13 of Bharatiya Sakshya Adhiniyam, 2023: Facts Bearing on Whether an Act Was Accidental or Intentional

2. G.N. Saibaba v. State of Maharashtra (Bombay High Court, 5 March 2024)

In proceedings concerning electronic evidence, the Bombay High Court discussed Section 85B of the Indian Evidence Act, 1872, alongside the requirements governing proof of electronic records under Section 65B.

The court explained that Section 85B concerns the presumption applicable to a secure electronic record, while Section 65B addresses the conditions for proving electronic records through the statutory evidentiary framework.

Legal principle: The presumption concerning the integrity of a secure electronic record must not be confused with the separate legal requirements governing the admissibility and proof of electronic evidence.

Important qualification: These decisions interpreted the predecessor Evidence Act, not Section 86 BSA directly. They are relevant to the corresponding legal principle, but their holdings must be applied with regard to the BSA’s text and any relevant transitional rules.

Difference Between Section 85 and Section 86 BSA

Sections 85 and 86 address related but distinct questions concerning electronic records.

Basis	Section 85 BSA	Section 86 BSA
Subject	Presumption as to electronic agreements	Presumption as to electronic records and electronic signatures
Main purpose	Presumes that a qualifying electronic agreement was concluded by affixing the parties’ electronic or digital signatures	Presumes the integrity of secure electronic records and the intention associated with secure electronic signatures
Scope	Electronic records purporting to be agreements and containing the parties’ electronic or digital signatures	Secure electronic records and secure electronic signatures
Principal evidentiary issue	Conclusion of the electronic agreement	Integrity of the record and intention behind the secure signature

Section 85 focuses on the conclusion of an electronic agreement. Section 86 addresses the integrity of secure electronic records and the intention associated with secure electronic signatures.

Difference Between Section 86 and Section 87 BSA

Section 87 BSA concerns the presumption as to Electronic Signature Certificates, while Section 86 concerns secure electronic records and secure electronic signatures.

Basis	Section 86 BSA	Section 87 BSA
Subject	Secure electronic records and electronic signatures	Electronic Signature Certificates
Main focus	Integrity of a secure record and intention associated with a secure signature	Correctness of specified information contained in an Electronic Signature Certificate
Nature of presumption	Applies to the matters expressly stated in Section 86	Applies to certificate information, subject to the statutory exception for unverified subscriber information
Corresponding provision under the former Evidence Act	Section 85B	Section 85C

The provisions are complementary, but neither should be treated as establishing every fact concerning the validity of an electronic transaction.

Difference Between Section 86 BSA and Section 63 BSA

Section 63 BSA deals with the admissibility of electronic records, whereas Section 86 deals with specified presumptions concerning secure electronic records and signatures.

Basis	Section 63 BSA	Section 86 BSA
Primary purpose	Governs the admissibility of qualifying electronic records or computer outputs	Establishes specified presumptions for secure electronic records and electronic signatures
Main question	Does the record satisfy the applicable conditions for admissibility?	Is the secure record presumed unaltered, and is the secure signature presumed to have been affixed with the intention of signing or approving?
Scope	Electronic records and computer outputs covered by the provision	Secure electronic records and secure electronic signatures
Relationship	Relevant to proving electronic evidence	Addresses particular presumptions once the relevant statutory conditions are satisfied

A party relying on a secure electronic record may need to address both the admissibility requirements and the applicable presumptions. Section 86 does not automatically eliminate the need to comply with Section 63 or other relevant evidentiary provisions.

Key Points for Law Students and Judiciary Aspirants

• Section 86 of the Bharatiya Sakshya Adhiniyam, 2023 deals with presumptions as to electronic records and electronic signatures.
• It corresponds to Section 85B of the Indian Evidence Act, 1872.
• Under Section 86(1), a secure electronic record is presumed not to have been altered since the specific point in time to which its secure status relates, unless the contrary is proved.
• Under Section 86(2)(a), a secure electronic signature is presumed to have been affixed by the subscriber with the intention of signing or approving the record, unless the contrary is proved.
• Section 86(2)(b) makes clear that the provision creates no general presumption of authenticity or integrity for ordinary, non-secure electronic records or signatures.
• Sections 14 and 15 of the Information Technology Act, 2000 are relevant to understanding secure electronic records and secure electronic signatures.
• Section 86 must be distinguished from Section 63 BSA, which governs the admissibility of electronic records.
• The Secretary to Government of Tamil Nadu v. X. Roselin Jancy is a relevant Madras High Court decision interpreting the predecessor provision.

Frequently Asked Questions (FAQs)

1. What is Section 86 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 86 establishes presumptions concerning the integrity of secure electronic records and the intention associated with secure electronic signatures. The presumptions apply subject to the conditions and limitations stated in the provision.

2. Which section of the Indian Evidence Act corresponds to Section 86 BSA?

Section 86 BSA corresponds to Section 85B of the Indian Evidence Act, 1872.

3. Does Section 86 presume that every electronic record is genuine?

No. Section 86(2)(b) expressly provides that the section creates no general presumption concerning the authenticity and integrity of an electronic record or electronic signature except in the case of a secure electronic record or a secure electronic signature.

4. What is the presumption concerning a secure electronic signature?

Under Section 86(2)(a), the court shall presume, unless the contrary is proved, that the secure electronic signature was affixed by the subscriber with the intention of signing or approving the electronic record.

5. Can the presumption under Section 86 be rebutted?

Yes. Both principal presumptions operate unless the contrary is proved. Relevant evidence may be considered to determine whether the presumption has been rebutted.

6. What is the difference between a secure electronic record and an ordinary electronic record?

A secure electronic record satisfies the applicable statutory requirements relating to a security procedure. Under Section 14 of the Information Technology Act, 2000, a record to which a security procedure has been applied at a specific point in time is deemed secure from that point until verification. An ordinary electronic record does not automatically qualify for the presumptions under Section 86.

7. Does Section 86 establish that the contents of an electronic record are true?

No. The provision concerns the integrity of secure electronic records and the intention associated with secure electronic signatures. It does not independently establish the truth of every statement contained in the record.

Conclusion

Section 86 of the Bharatiya Sakshya Adhiniyam, 2023 provides an important evidentiary framework for secure electronic records and electronic signatures. It requires courts to presume that a secure electronic record has not been altered since the relevant point in time and that a secure electronic signature was affixed with the intention of signing or approving the record, unless the contrary is proved.

The provision also establishes a clear limitation: ordinary electronic records and signatures do not automatically receive a general presumption of authenticity or integrity under this section. For proper application, Section 86 must be read alongside Sections 63, 85 and 87 of the BSA and Sections 14 and 15 of the Information Technology Act, 2000.

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