Section 66 BSA: Proof as to Electronic Signature

Section 66 BSA explains when the authenticity of an electronic signature must be proved in court.

Introduction

Section 66 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the proof of electronic signatures attached to electronic records. It establishes that, except in the case of a secure electronic signature, if an electronic signature is alleged to belong to a particular subscriber, the fact that it is that subscriber’s signature must be proved.

The provision is relevant to electronically signed contracts, business transactions, digital documents and disputes concerning the identity of the person who electronically signed a record.

Section 66 BSA corresponds to Section 67A of the Indian Evidence Act, 1872. The provision has been carried forward substantially unchanged. <text> </text>

Bare Act: Section 66 of the Bharatiya Sakshya Adhiniyam, 2023

66. Proof as to electronic signature.—

Except in the case of a secure electronic signature, if the electronic signature of any subscriber is alleged to have been affixed to an electronic record, the fact that such electronic signature is the electronic signature of the subscriber must be proved.

Meaning of Section 66 BSA

Section 66 addresses the question of whether an electronic signature attached to an electronic record genuinely belongs to the person identified as its subscriber.

For example, A produces an electronically signed agreement and claims that B signed it. If B disputes the electronic signature, A may need to establish that the signature belongs to B, unless the statutory exception for a secure electronic signature applies.

The provision recognises a distinction between an ordinary electronic signature and a secure electronic signature. It does not state that every electronic signature must be proved in the same way, nor does it make every electronic record automatically admissible.

The nature of the signature, the applicable statutory framework and the circumstances of the dispute determine what proof is required.

Essential Elements of Section 66 BSA

1. There must be an electronic record

The provision applies where an electronic signature is alleged to have been affixed to an electronic record. Examples may include electronically signed agreements, digital business documents and electronic applications.

2. The signature must be attributed to a subscriber

The person relying on the record alleges that the electronic signature belongs to a particular subscriber. If that attribution is disputed, the authenticity of the signature becomes an evidentiary question.

3. The identity of the subscriber must be proved, subject to the exception

The general rule requires proof that the electronic signature is that of the subscriber. The express exception concerns a secure electronic signature.

The exception should not be misunderstood as making every electronic signature automatically genuine or conclusive. The applicable statutory requirements and any other disputed issues must still be considered.

What Is an Electronic Signature?

The Information Technology Act, 2000 provides the relevant legal framework for electronic signatures.

Under Section 2(ta) of the Information Technology Act, 2000, an electronic signature is an authentication of an electronic record by a subscriber through an electronic technique specified in the Second Schedule. The statutory framework includes digital signatures and other legally recognised electronic authentication techniques.

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

Examples of electronic signing methods may include a legally recognised digital signature or an electronic authentication method permitted under the Information Technology Act and applicable rules.

A typed name at the end of an email, a scanned image of a handwritten signature and a legally recognised electronic signature should not automatically be treated as legally equivalent. Whether a particular method satisfies the applicable requirements depends on the relevant law and circumstances.

What Is a Secure Electronic Signature?

Section 15 of the Information Technology Act, 2000 explains when an electronic signature is deemed to be secure.

Under that provision, the signature creation data must, at the time of affixing the signature, be under the exclusive control of the signatory and no other person. It must also be stored and affixed in the prescribed manner.

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

The secure-signature exception in Section 66 BSA must be read with this legal framework. A signature does not become secure merely because it appears on a digital document or was applied through software.

Difference Between an Electronic Signature and a Secure Electronic Signature

Basis	Electronic signature	Secure electronic signature
Meaning	An electronic method of authenticating an electronic record recognised by law	An electronic signature satisfying the requirements of Section 15 of the Information Technology Act, 2000
Legal framework	Information Technology Act, 2000, including Sections 2(ta), 3A and 5, as applicable	Section 15 of the Information Technology Act, 2000
Proof under Section 66 BSA	Generally, identity as the subscriber’s signature must be proved when alleged	Expressly excepted from the specific proof requirement stated in Section 66
Automatic validity	Not every electronic signature is automatically accepted as genuine or sufficient	Must satisfy the statutory requirements for secure electronic signatures

Practical Examples of Section 66 BSA

Example 1: Disputed electronic signature on a contract

A company produces an electronically signed service agreement and claims that its customer signed it. The customer denies signing the agreement.

Section 66 becomes relevant to determining whether the electronic signature belongs to the alleged subscriber. The evidence and applicable legal provisions must be examined to resolve the dispute.

Example 2: Secure electronic signature

A party produces an electronic record bearing a signature that qualifies as a secure electronic signature under the applicable law.

The express exception in Section 66 applies to the specific requirement stated in that section. However, other questions concerning the record, the transaction or compliance with applicable legal formalities may still arise.

Example 3: Electronic signature attributed to the wrong person

An electronic document contains a signature attributed to B, but B alleges that another person used the relevant authentication credentials.

The dispute may require examination of the signature method, authentication records and other relevant evidence. Merely displaying B’s name on the document does not, by itself, resolve the question of attribution.

Important Case Laws and the Legal Position

Section 66 BSA carries forward Section 67A of the Indian Evidence Act, 1872. The specific statutory text is concise, and the following authorities and legal provisions help explain its surrounding framework. They should not be mistaken for decisions directly interpreting Section 66 BSA.

1. Anvar P.V. v. P.K. Basheer (2014)

Citation: (2014) 10 SCC 473.

Court: Supreme Court of India.

Legal principle: The Supreme Court addressed the statutory requirements for proving electronic records under Section 65B of the Indian Evidence Act, 1872.

Also Read: Section 87 BSA: Presumption as to Electronic Signature Certificates

Relevance: The judgment is important for understanding the evidentiary treatment of electronic records under the predecessor law. However, it principally concerns the admissibility and proof of electronic records, not the specific rule on proving an electronic signature under Section 67A.

Section 66 BSA concerns electronic-signature attribution, while Section 63 BSA addresses the admissibility of specified electronic or digital records and the related certificate requirements. These issues should not be conflated.

2. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

Citation: (2020) 7 SCC 1.

Court: Supreme Court of India.

Legal principle: The Supreme Court clarified the importance of compliance with Section 65B of the Indian Evidence Act, 1872 for the admissibility of electronic records covered by that provision.

Relevance: The judgment is useful when studying electronic evidence under the predecessor Act. It does not directly decide the meaning of the secure-electronic-signature exception in Section 66 BSA.

For current proceedings governed by the BSA, the applicable provisions, including Section 63 and its Schedule where relevant, must be examined rather than mechanically substituting old statutory section numbers.

Difference Between Section 66 BSA and Section 67A of the Indian Evidence Act, 1872

Basis	Section 66 BSA	Section 67A Indian Evidence Act
Subject	Proof as to electronic signature	Proof as to electronic signature
General rule	Attribution of an electronic signature to the subscriber must be proved	Substantially the same rule
Exception	Secure electronic signature	Secure electronic signature
Statutory status	Current provision under the BSA	Predecessor provision, repealed with effect from 1 July 2024, subject to applicable savings and transitional provisions

The BSA came into force on 1 July 2024. The predecessor provision remains relevant when determining the applicable law in matters covered by the savings and transitional provisions.

Related Provisions of the Bharatiya Sakshya Adhiniyam, 2023

• Section 61: Deals with electronic or digital records and their legal effect in the context of documentary evidence.
• Section 62: Contains special provisions concerning evidence relating to electronic records.
• Section 63: Deals with the admissibility of electronic records and the associated statutory conditions and certificate requirements.
• Section 65: Addresses proof of signatures and handwriting attributed to a person in a document.
• Section 72: Provides for comparison of signatures, writing or seals with those admitted or proved.

The Information Technology Act, 2000 is also important, particularly its provisions on electronic signatures, digital signatures and secure electronic signatures.

Important Points for Law Students and Judiciary Aspirants

• Section 66 BSA deals with proof as to electronic signatures.
• It corresponds to Section 67A of the Indian Evidence Act, 1872.
• The general rule requires proof that an alleged electronic signature belongs to the subscriber.
• A secure electronic signature is expressly excepted from the specific proof requirement stated in Section 66.
• Section 15 of the Information Technology Act, 2000 explains the requirements for a secure electronic signature.
• An electronic signature and a secure electronic signature are not interchangeable terms.
• Section 63 BSA concerns admissibility of electronic records; it should not be confused with Section 66’s rule on attribution of electronic signatures.
• Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal concern electronic-record evidence under the predecessor Evidence Act and should not be described as direct rulings on Section 66 BSA.

Frequently Asked Questions (FAQs)

1. What is Section 66 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 66 deals with proof as to electronic signatures. It provides that, except in the case of a secure electronic signature, an alleged electronic signature must be proved to be the signature of the subscriber to whom it is attributed.

2. Which section of the Indian Evidence Act corresponds to Section 66 BSA?

Section 66 BSA corresponds to Section 67A of the Indian Evidence Act, 1872.

3. What is the exception under Section 66 BSA?

The exception concerns a secure electronic signature. Section 15 of the Information Technology Act, 2000 sets out the requirements for an electronic signature to be deemed secure.

4. Does Section 66 BSA apply to every electronic document?

It applies when an electronic signature is alleged to have been affixed to an electronic record and the question arises whether it is the signature of the subscriber. Other provisions may govern the admissibility and proof of the electronic record itself.

5. Is a typed name or scanned signature automatically a secure electronic signature?

No. A typed name or scanned image is not automatically a secure electronic signature under Section 15 of the Information Technology Act, 2000. Its legal status depends on the applicable statutory requirements and circumstances.

6. What is the difference between Section 63 and Section 66 BSA?

Section 63 addresses the admissibility of specified electronic or digital records and associated certificate requirements. Section 66 deals specifically with proof that an electronic signature belongs to the subscriber, subject to the secure-signature exception.

Conclusion

Section 66 of the Bharatiya Sakshya Adhiniyam, 2023 establishes a focused rule for proving the identity of a person whose electronic signature is alleged to appear on an electronic record. Its secure-electronic-signature exception must be understood alongside Section 15 of the Information Technology Act, 2000. For examinations and practical legal work, the essential distinction is between proving the identity of the subscriber, establishing the admissibility of an electronic record and satisfying any other legal requirements applicable to the underlying transaction.

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