Section 85 BSA: Presumption as to Electronic Agreements

Section 85 BSA explains the legal presumption that an electronically signed agreement was concluded by affixing the parties’ electronic or digital signatures.

Introduction

Section 85 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the presumption as to electronic agreements. It recognises the evidentiary significance of agreements recorded electronically and bearing the electronic or digital signatures of the parties.

The provision is particularly relevant to online contracts, digitally signed loan agreements, electronic commercial transactions and agreements executed through electronic signing platforms. It establishes a presumption concerning the conclusion of a qualifying electronic agreement, while questions of admissibility, authenticity, authority and contractual validity may still require separate consideration.

Section 85 BSA corresponds to Section 85A of the Indian Evidence Act, 1872, which addressed the same subject under the previous evidence law.

Section 85 of the Bharatiya Sakshya Adhiniyam, 2023: Bare Act

85. Presumption as to electronic agreements.—

“The Court shall presume that every electronic record purporting to be an agreement containing the electronic or digital signature of the parties was so concluded by affixing the electronic or digital signature of the parties.”

Explanation of Section 85 BSA

Section 85 directs a court to presume that an electronic agreement was concluded by affixing the electronic or digital signatures of the parties when the requirements of the provision are satisfied.

The rule facilitates the use of electronic agreements as evidence. However, it does not mean that every electronic document, email or online transaction automatically qualifies for the presumption.

1. What is an electronic agreement?

An electronic agreement is an agreement created, communicated, signed or stored in electronic form. Depending on the circumstances and applicable law, examples may include:

• A digitally signed loan agreement.
• An electronically signed employment agreement.
• A commercial contract signed through an electronic signature platform.
• An electronically executed service agreement.
• An agreement stored as a PDF and bearing qualifying electronic or digital signatures.

The legal effect of a particular document depends on its contents, the signatures used, the surrounding circumstances and applicable legal requirements.

2. Meaning of “shall presume”

The words “shall presume” indicate that the court is required to draw the statutory presumption when the necessary conditions are met.

The presumption concerns whether the agreement was concluded by affixing the electronic or digital signatures of the parties. It does not necessarily settle every dispute about the agreement.

A party may challenge the document with relevant evidence, such as evidence of unauthorised use of a signature, fraud, lack of authority or other circumstances inconsistent with the alleged execution.

3. Role of electronic and digital signatures

Section 85 expressly refers to both electronic and digital signatures.

A digital signature is a particular form of electronic signature based on the statutory framework governing digital signatures. Electronic signatures may also be created through other legally recognised methods.

The Information Technology Act, 2000, particularly Sections 3 and 3A, provides the legal framework for digital and other electronic signatures. Whether a particular method qualifies as a legally recognised electronic signature must be assessed under the applicable provisions.

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

The mere appearance of a typed name, an image of a handwritten signature or an email address does not automatically establish that the document contains a qualifying electronic or digital signature for the purposes of Section 85.

4. What does Section 85 presume?

The provision addresses whether the electronic agreement was concluded by affixing the electronic or digital signatures of the parties.

It does not, by itself, establish all of the following:

• That every term of the agreement is lawful.
• That the person signing had the necessary authority to bind another person or company.
• That the agreement was entered into without fraud, coercion or misrepresentation.
• That the agreement is enforceable despite any defect under contract law.
• That the electronic record is admissible without complying with the applicable rules of evidence.
• That the obligations under the agreement have actually been performed.

These issues must be assessed separately under the relevant law and evidence.

Illustration of Section 85 BSA

Suppose a finance company enters into a loan agreement with a borrower through an electronic signing platform. The electronic record identifies the borrower and contains the borrower’s legally recognised electronic signature.

If the agreement satisfies the requirements of Section 85, the court shall presume that the agreement was concluded by affixing the electronic or digital signatures of the parties.

If the borrower subsequently denies entering into the agreement, the court must consider the statutory presumption alongside the available evidence. A bare denial may be insufficient in the circumstances, but the court must still examine any credible evidence challenging the signature, authority or execution.

Important Case Law on Section 85 BSA

1. Desiderata Impact Ventures Pvt. Ltd. v. Rishabh Kumar (2026)

<text color=”secondary” size=”sm”>Judicial Magistrate First Class (NI Act), South Saket, New Delhi, CC NI Act No. 8068/2023, judgment dated 14 September 2026.</text>

In this cheque-dishonour case, the complainant relied on a loan or credit facility agreement executed electronically. The agreement identified the accused as the applicant and contained an Aadhaar-based electronic signature associated with the authorised signatory of the borrower’s business.

The accused disputed the contractual relationship and liability. The court considered Sections 85 and 86 of the Bharatiya Sakshya Adhiniyam in assessing the evidentiary significance of the electronic agreement and signature. In the circumstances of the case, it found that the agreement and the surrounding documentary evidence supported the complainant’s position and that the accused’s unsupported denial did not rebut the applicable presumptions.

Legal principle: A qualifying electronically signed agreement may attract the statutory presumption under Section 85. A party challenging it should raise a substantiated defence supported by the circumstances and available evidence.

Important qualification: This is a trial-court decision, not a Supreme Court precedent. Its conclusion depends on the facts and evidence of that case and should not be treated as establishing that every electronically signed agreement is automatically valid or enforceable.

2. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473

The Supreme Court considered the evidentiary requirements governing electronic records under the Indian Evidence Act, 1872, particularly Section 65B.

The decision is important for understanding that electronic records must satisfy the applicable rules governing admissibility. However, it was not a direct interpretation of the present Section 85 BSA, which concerns the presumption applicable to qualifying electronic agreements.

Legal principle: The evidentiary admissibility of an electronic record is a distinct issue from the presumption concerning the conclusion of an electronic agreement.

3. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

The Supreme Court clarified important requirements for admitting electronic records under Section 65B of the Indian Evidence Act, 1872, including the role of the prescribed certificate when a party seeks to prove a computer output.

This decision remains important background for understanding electronic evidence under the former law. Its principles must be considered in light of the BSA’s own provisions, including Section 63 and its accompanying requirements.

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

Legal principle: The admissibility and proof of an electronic record must be considered separately from the statutory presumption under Section 85 concerning an electronic agreement.

Difference Between Section 85 and Section 86 BSA

Sections 85 and 86 address related but distinct evidentiary issues.

Basis	Section 85 BSA	Section 86 BSA
Subject	Presumption as to electronic agreements	Presumption as to electronic records and electronic signatures
Main focus	Whether a qualifying electronic agreement was concluded by affixing the parties’ electronic or digital signatures	Integrity of secure electronic records and intention associated with secure electronic signatures
Scope	Electronic records purporting to be agreements and containing the parties’ electronic or digital signatures	Specifically addresses secure electronic records and secure electronic signatures
Effect	Creates a presumption concerning conclusion of the agreement by the signatures	Provides specified presumptions for secure records and signatures, subject to the section’s terms

Section 86 also makes clear that it does not create a general presumption of authenticity and integrity for every electronic record or electronic signature.

Difference Between Section 85 BSA and Section 63 BSA

Section 85 should not be confused with Section 63, which deals with the admissibility of electronic records.

Basis	Section 85 BSA	Section 63 BSA
Primary purpose	Presumption concerning the conclusion of an electronic agreement	Admissibility of qualifying electronic records or computer outputs
Main question	Was the agreement concluded by affixing the parties’ electronic or digital signatures?	Does the electronic record satisfy the applicable conditions for admissibility?
Nature	Presumption relating to an electronic agreement	Rules governing admissibility of electronic evidence
Relationship	May be relevant when an electronic agreement is relied upon	May be relevant when proving the electronic record in court

An electronic agreement may raise issues under both provisions. The presumption under Section 85 should not be treated as eliminating the need to comply with the applicable requirements for proving and admitting electronic evidence.

Relationship Between Section 85 BSA and the Indian Contract Act, 1872

Section 85 is an evidentiary provision. It does not independently determine whether every electronic agreement forms a valid contract.

The Indian Contract Act, 1872, continues to govern the relevant requirements for a valid contract, including competent parties, free consent, lawful consideration and lawful object, where applicable.

Electronic contracting is also addressed by the Information Technology Act, 2000. Section 10A of that Act provides that a contract is not to be considered unenforceable solely because electronic means or electronic records were used in its formation.

Accordingly, a qualifying electronic agreement may attract the presumption under Section 85, but its enforceability must still be assessed under the applicable substantive law.

Key Points for Law Students and Judiciary Aspirants

• Section 85 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the presumption as to electronic agreements.
• It corresponds to Section 85A of the Indian Evidence Act, 1872.
• The provision concerns electronic records purporting to be agreements and containing the electronic or digital signatures of the parties.
• The court shall presume that the agreement was concluded by affixing those signatures when the statutory requirements are met.
• The presumption does not automatically establish every aspect of the agreement’s validity or enforceability.
• Section 85 must be distinguished from Section 63 BSA, which governs the admissibility of electronic records.
• Section 86 BSA separately addresses secure electronic records and secure electronic signatures.
• Desiderata Impact Ventures Pvt. Ltd. v. Rishabh Kumar (2026) is a recent trial-court illustration of Section 85 being considered in relation to an electronically signed loan agreement.

Frequently Asked Questions (FAQs)

1. What is Section 85 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 85 provides that the court shall presume that an electronic record purporting to be an agreement and containing the parties’ electronic or digital signatures was concluded by affixing those signatures.

2. Which section of the Indian Evidence Act corresponds to Section 85 BSA?

Section 85 BSA corresponds to Section 85A of the Indian Evidence Act, 1872, which dealt with the presumption as to electronic agreements.

3. Does Section 85 apply to digitally signed contracts?

Yes. Section 85 expressly covers electronic records purporting to be agreements and containing the electronic or digital signatures of the parties, provided the statutory requirements are met.

4. Does Section 85 make every electronic agreement legally enforceable?

No. The provision creates an evidentiary presumption concerning the conclusion of a qualifying electronic agreement. Contractual validity and enforceability depend on the applicable law and the circumstances of the case.

5. Is a Section 63 certificate always unnecessary if Section 85 applies?

No. Section 85 does not, by itself, dispense with the applicable requirements for proving the electronic record. The admissibility of the record must be considered separately under Section 63 and any other relevant provisions.

6. What is the difference between Sections 85 and 86 BSA?

Section 85 concerns the presumption that a qualifying electronic agreement was concluded by affixing the parties’ electronic or digital signatures. Section 86 addresses specified presumptions relating to secure electronic records and secure electronic signatures.

Conclusion

Section 85 of the Bharatiya Sakshya Adhiniyam, 2023 recognises the evidentiary significance of electronically signed agreements by requiring courts to presume that qualifying agreements were concluded through the parties’ electronic or digital signatures.

The provision supports electronic contracting and reduces the need to independently establish the act of signing in every case. However, it does not remove the need to prove electronic records in accordance with the applicable evidentiary rules or establish that every agreement is valid and enforceable. Its proper application requires Section 85 to be read alongside Sections 63 and 86 of the BSA, the Information Technology Act, 2000, and the Indian Contract Act, 1872.

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