Section 93 BSA: Presumption as to Electronic Records Five Years Old

Section 93 BSA explains when courts may presume that an electronic signature on a five-year-old electronic record was affixed by the identified person or someone authorised by them.

Introduction

Section 93 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the presumption as to electronic records five years old. It permits courts to presume that an electronic signature appearing to be that of a particular person was affixed by that person or someone authorised by them, provided the electronic record satisfies the statutory requirements relating to age and proper custody.

The provision is relevant to disputes involving archived electronic agreements, old digitally signed records, electronic transactions and other digital documents produced in legal proceedings. It recognises that proving the origin of older electronic records may be difficult while retaining safeguards concerning the record’s age and custody.

Section 93 BSA corresponds to Section 90A of the Indian Evidence Act, 1872. The BSA expressly incorporates the Explanation to Section 81, which provides the applicable rule concerning proper custody of electronic records.

Section 93 of the Bharatiya Sakshya Adhiniyam, 2023: Bare Act

93. Presumption as to electronic records five years old.—

“Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf.

Explanation.—The Explanation to section 81 shall also apply to this section.”

Explanation of Section 93 BSA

Section 93 creates a limited, discretionary presumption concerning the electronic signature on an old electronic record. Three essential conditions must be considered:

1. The electronic record must purport to be or be proved to be five years old.
2. The record must be produced from custody that the court considers proper.
3. The court must decide whether to exercise its discretion to draw the presumption.

When these conditions are satisfied, the court may presume that the electronic signature purporting to belong to a particular person was affixed by that person or someone authorised by them.

1. The electronic record must be five years old

The record must purport to be five years old or its age must be proved.

This requirement distinguishes Section 93 from provisions that concern electronic records generally. The provision is specifically concerned with older electronic records whose age and custody may support a presumption about the signature.

For example, suppose a company produces an electronically signed agreement created six years earlier. If the agreement’s age is established and the custody is considered proper, the court may consider applying Section 93.

However, a document does not qualify merely because a party describes it as old. The court must consider whether the statutory requirement is satisfied.

2. The electronic record must come from proper custody

Age alone is insufficient. The record must also be produced from custody that the court considers proper in the circumstances.

The Explanation to Section 81 BSA applies to Section 93. It provides that electronic records are in proper custody when they are in the place where, and looked after by the person with whom, they are required to be kept. However, custody is not improper if the record is proved to have had a legitimate origin or the circumstances make that origin probable.

For example, an electronic agreement maintained in a company’s established document-management system may have a credible custody history. The court must nevertheless examine the circumstances of the particular case rather than automatically treating any archived file as properly kept.

Proper custody is therefore a contextual requirement, not simply a question of which person currently possesses a copy.

3. Presumption regarding the electronic signature

Section 93 permits the court to presume that the electronic signature purporting to be that of a particular person was affixed by that person or someone authorised by them.

This is the central evidentiary effect of the provision.

Also Read: Section 92 BSA: Presumption as to 30-Year-Old Documents

For instance, an old electronic agreement may contain an electronic signature attributed to a company’s authorised representative. If the record satisfies the requirements of Section 93, the court may presume that the signature was affixed by that representative or a person authorised by them.

The presumption concerns the attribution of the electronic signature. It does not automatically establish that every statement in the record is true, that the signatory had authority to bind another person in every respect, or that the underlying agreement is legally enforceable.

4. Meaning of “may presume”

Section 93 uses the words “may presume”. Under Section 2 of the BSA, this gives the court discretion to regard the relevant fact as proved unless and until it is disproved, or to require further proof.

The presumption is therefore discretionary and rebuttable, not mandatory or conclusive.

The court may consider the age of the record, its custody, the circumstances of its creation and any contrary evidence before deciding whether to draw the presumption.

What Is Proper Custody of an Electronic Record?

Proper custody is particularly important because electronic records can be copied, transferred, altered or stored across multiple systems.

Section 93 incorporates the Explanation to Section 81 BSA, which provides the relevant standard for determining proper custody.

The following examples illustrate how the requirement may be assessed:

Situation	Relevance to proper custody
An old electronic agreement is preserved in the company’s established records system	The storage history and circumstances may support proper custody.
An electronic record is maintained by the person or organisation ordinarily responsible for keeping it	This may support the requirement, depending on the circumstances.
A record is produced by a third party who explains how it was legitimately obtained	The court may consider the explanation when assessing custody.
A file is produced by an unknown person with no credible explanation of its origin	The lack of a reliable custody history may weigh against drawing the presumption.
A record has been copied or transferred between storage devices	The court must consider its provenance and custody; copying alone does not automatically establish or defeat proper custody.

These are illustrative examples, not automatic legal conclusions. The court must determine whether the statutory standard is met in the particular case.

Illustration of Section 93 BSA

Suppose a business dispute arises over a digitally signed supply agreement created six years earlier. The company produces the electronic record from its established contract-management system and provides evidence explaining how the agreement has been maintained.

The agreement contains an electronic signature purporting to belong to a particular representative.

If the record purports or is proved to be five years old and the court considers its custody proper, the court may presume that the electronic signature was affixed by that representative or someone authorised by them.

However, the court must still consider any contrary evidence. The presumption does not independently establish the truth of every contractual term, the legal authority of the signatory for every purpose, or the enforceability of the agreement.

Important Case Laws on Section 93 BSA

Section 93 carries forward Section 90A of the Indian Evidence Act, 1872. Decisions interpreting the predecessor provision may assist in understanding the corresponding rule, but they should not be presented as judgments directly interpreting Section 93 BSA.

1. Shakti Singh Patel v. Veer Singh, decided on 6 May 2022

In this decision, the court considered Section 90A of the Indian Evidence Act, 1872, concerning electronic records five years old, alongside the provisions governing old documents.

The judgment discussed the relationship between the presumption for electronic records under Section 90A and the separate presumption for older documents under Section 90 of the former Evidence Act. It referred to the principle that the provisions operate in different fields.

Legal principle: The presumption concerning five-year-old electronic records must be assessed under its own statutory conditions and should not be confused with the separate presumption applicable to documents thirty years old.

Important qualification: This decision interpreted the predecessor legislation. Its relevance to Section 93 BSA is limited to the corresponding statutory principle.

2. Manjoor Ali v. Kishmat Ali, AIR 2004 Allahabad 395

This Allahabad High Court decision was discussed in the later Shakti Singh Patel v. Veer Singh judgment in connection with the relationship between Sections 90 and 90A of the former Evidence Act.

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

The discussion concerned the distinction between the presumptions applicable to old documents and electronic records. It illustrates why each provision must be applied according to its own scope and conditions.

Legal principle: A presumption applicable to one category of document should not automatically be treated as governing another category. The applicable statutory provision and its specific requirements must be examined.

Important qualification: This is a decision under the former Evidence Act, not a direct interpretation of Section 93 BSA.

The research did not establish a sufficiently verified Supreme Court decision directly interpreting Section 93 BSA or comprehensively defining proper custody under this specific provision. It is therefore preferable to explain the current statutory text accurately rather than attribute broader propositions to unrelated electronic-evidence cases.

Difference Between Section 92 and Section 93 BSA

Sections 92 and 93 concern different types of records and different presumptions.

Basis	Section 92 BSA	Section 93 BSA
Subject	Presumption as to documents thirty years old	Presumption as to electronic records five years old
Age requirement	Thirty years	Five years
Custody	The court must consider the custody proper	The court must consider the custody proper
Main presumption	Handwriting, signature and due execution or attestation, where applicable	Attribution of the electronic signature to the identified person or someone authorised by them
Nature	Discretionary	Discretionary
Corresponding provision under the former Evidence Act	Section 90	Section 90A

Section 92 deals with old documents generally, while Section 93 addresses the specific question of an electronic signature on an older electronic record.

Difference Between Section 93 BSA and Section 86 BSA

Section 86 concerns secure electronic records and electronic signatures, whereas Section 93 concerns the age and custody of electronic records.

Basis	Section 86 BSA	Section 93 BSA
Subject	Presumption as to electronic records and electronic signatures	Presumption as to electronic records five years old
Main requirement	The record or signature must qualify as secure under the applicable provision	The record must be at least five years old and produced from custody the court considers proper
Main presumption	Integrity of a secure electronic record and intention associated with a secure electronic signature	The electronic signature was affixed by the identified person or someone authorised by them
Nature	Presumptions specific to secure records and signatures	Discretionary presumption based on age and custody

The provisions address distinct evidentiary questions. A party should not assume that satisfying one provision automatically satisfies the other.

Difference Between Section 93 BSA and Section 63 BSA

Section 93 and Section 63 serve different evidentiary purposes.

Basis	Section 93 BSA	Section 63 BSA
Subject	Presumption as to electronic records five years old	Admissibility of electronic records
Primary purpose	Permits a presumption about attribution of an electronic signature on a qualifying old record	Establishes conditions for admitting qualifying electronic records and computer outputs
Main issue	Whether the signature may be presumed to have been affixed by the identified person or an authorised person	Whether the electronic record satisfies the applicable admissibility requirements
Nature	Discretionary evidentiary presumption	Rules governing admissibility

Section 93 does not automatically remove the need to satisfy the applicable rules for proving electronic evidence. The court must consider admissibility and the statutory presumption as separate questions where relevant.

Key Points for Law Students and Judiciary Aspirants

• Section 93 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the presumption as to electronic records five years old.
• It corresponds to Section 90A of the Indian Evidence Act, 1872.
• The electronic record must purport or be proved to be five years old.
• The record must be produced from custody that the court considers proper.
• The court may presume that the electronic signature was affixed by the identified person or someone authorised by them.
• The words “may presume” make the presumption discretionary and rebuttable.
• The Explanation to Section 81 BSA applies to Section 93 and governs proper custody.
• Section 93 does not automatically establish the truth of the record’s contents or the enforceability of an underlying agreement.
• Section 93 must be distinguished from Section 63 BSA, which deals with admissibility of electronic records.

Frequently Asked Questions (FAQs)

1. What is Section 93 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 93 permits a court to presume that an electronic signature on an electronic record five years old was affixed by the person whose signature it purports to be, or by someone authorised by that person, provided the record is produced from custody the court considers proper.

2. Which section of the Indian Evidence Act corresponds to Section 93 BSA?

Section 93 BSA corresponds to Section 90A of the Indian Evidence Act, 1872.

3. Is the presumption under Section 93 mandatory?

No. The expression “may presume” gives the court discretion to draw the presumption or require further proof.

4. What is proper custody under Section 93 BSA?

The Explanation to Section 81 BSA applies. It generally concerns the place where, and the person with whom, the electronic record is required to be kept, while recognising that other custody may be proper if the record has a legitimate origin or the circumstances make that origin probable.

5. Does Section 93 presume that every five-year-old electronic record is genuine?

No. The record must satisfy the statutory age requirement and come from custody that the court considers proper. Even then, the presumption is discretionary and limited to attribution of the electronic signature.

6. Does Section 93 establish that the contents of an electronic record are true?

No. It concerns whether the electronic signature was affixed by the identified person or someone authorised by them. The truth of the contents and the legal effect of the record must be assessed separately.

7. What is the difference between Sections 92 and 93 BSA?

Section 92 concerns documents thirty years old and permits presumptions regarding handwriting, signatures and due execution or attestation. Section 93 concerns electronic records five years old and permits a presumption about who affixed the electronic signature.

Conclusion

Section 93 of the Bharatiya Sakshya Adhiniyam, 2023 provides a discretionary evidentiary presumption for electronic records that are five years old and produced from proper custody. Where its requirements are satisfied, the court may presume that the electronic signature was affixed by the person it purports to identify or by someone authorised by them.

The presumption is limited and rebuttable. It does not independently establish the truth of every statement in an electronic record, guarantee the authenticity of every file, or remove the applicable requirements for admitting electronic evidence. Its proper application requires careful attention to the record’s age, custody and the distinction between attribution of a signature and proof of the record’s contents.

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