Section 90 BSA: Presumption as to Electronic Messages

Section 90 BSA explains the presumption concerning electronic messages and why message content does not automatically prove the sender’s identity.

Introduction

Section 90 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the presumption as to electronic messages. It permits courts to presume that an electronic message forwarded through an electronic mail server corresponds with the message entered into the sender’s computer for transmission. However, it expressly prohibits the court from presuming who sent the message.

This provision is relevant to disputes involving emails, electronic communications and messages relied upon as evidence in civil and criminal proceedings. It draws an important distinction between the correspondence of a transmitted message and the identity of the person who actually sent it.

Section 90 BSA corresponds to Section 88A of the Indian Evidence Act, 1872. The essential rule remains substantially unchanged.

Section 90 of the Bharatiya Sakshya Adhiniyam, 2023: Bare Act

90. Presumption as to electronic messages.—

“The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.”

Explanation of Section 90 BSA

Section 90 establishes a limited evidentiary presumption relating to electronic messages. Its wording contains two important parts:

1. The court may presume that the message received corresponds with the message entered into the computer for transmission.
2. The court shall not presume the identity of the person who sent the message.

Both parts must be understood together.

1. Presumption that the message corresponds with the message entered for transmission

The first part permits the court to presume that an electronic message forwarded through an electronic mail server corresponds with the message as entered into the sender’s computer for transmission.

The provision addresses the relationship between the message entered for transmission and the message received by the addressee. It may reduce the need to independently establish that correspondence in every case.

For example, suppose an email is entered into a computer and transmitted through an electronic mail server to the intended recipient. If the email is later produced in court, the court may presume that the received message corresponds with the message entered for transmission, subject to the facts and applicable law.

The presumption is discretionary. The court may decline to draw it or require further proof where appropriate.

2. No presumption regarding the sender’s identity

The second part of Section 90 expressly states that the court shall not make any presumption as to the person by whom the message was sent.

This is the most important limitation of the provision.

An electronic message may identify an email account, username or other apparent source. However, that information does not automatically establish which individual actually operated the device or account and sent the message.

For example, an email may be sent from an account registered in a person’s name. Section 90 does not permit the court to presume, merely from the message, that the account holder personally sent it.

The identity of the sender may need to be established through other admissible evidence, such as relevant account records, device evidence, authentication information, witness testimony or other reliable material, depending on the circumstances.

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

3. Meaning of “may presume”

Section 90 uses the expression “may presume”. Under Section 2 of the BSA, this gives the court discretion to treat the relevant fact as proved unless and until it is disproved, or to require proof of that fact.

The court must consider the nature of the electronic message, the circumstances in which it was transmitted and any evidence challenging the suggested correspondence.

The presumption is therefore not automatic or conclusive. More importantly, the discretionary presumption concerning the correspondence of a message cannot be extended to the identity of its sender, because the provision expressly excludes that inference.

4. Meaning of “originator” and “addressee”

Section 90 uses the terms “originator” and “addressee” in describing the transmission of an electronic message.

Under the Information Technology Act, 2000:

• Originator: Under Section 2(1)(za), this generally refers to a person who sends, generates, stores or transmits an electronic message, or causes it to be sent, generated, stored or transmitted, subject to the statutory definition and its exclusions.
• Addressee: Under Section 2(1)(b), this generally refers to the person intended by the originator to receive the electronic record, excluding an intermediary.

These definitions help explain the statutory language. They do not remove the express restriction in Section 90 against presuming the identity of the person who sent the message.

Illustration of Section 90 BSA

Suppose a company receives an email containing a proposed business arrangement. The email is later produced in court during a dispute between the company and a supplier.

The court may presume that the email corresponds with the message entered into the sender’s computer for transmission through the electronic mail server.

However, if the email address appears to belong to a particular employee, the court cannot automatically presume that the employee personally sent the email. The company or the opposing party may need to establish the sender’s identity through other relevant evidence.

The distinction is important because the integrity of the transmitted message and the identity of its author are separate evidentiary questions.

Does Section 90 Apply to WhatsApp Messages and Social Media?

Section 90 expressly describes an electronic message forwarded by an originator through an electronic mail server to the intended addressee. Its wording should not automatically be extended to every form of electronic communication.

WhatsApp messages, social-media direct messages, posts on online platforms and communications through other applications may raise separate questions concerning their authenticity, authorship, integrity and admissibility.

Such communications may still be relevant electronic evidence, but the party relying on them must establish the applicable evidentiary foundation. Section 90 should not be treated as automatically proving the contents or authorship of every message exchanged through a digital platform.

Difference Between Section 90 BSA and Section 63 BSA

Section 90 and Section 63 address different evidentiary questions.

Basis	Section 90 BSA	Section 63 BSA
Subject	Presumption as to electronic messages	Admissibility of electronic records
Main purpose	Permits a limited presumption concerning correspondence between a transmitted message and the message entered for transmission	Sets out conditions for admitting qualifying electronic records and computer outputs
Sender identity	Expressly prohibits presuming who sent the message	Does not independently establish the identity of the sender
Nature	Evidentiary presumption	Rules governing admissibility
Relationship	May be relevant to a qualifying electronic message	May be relevant when the message is produced as electronic evidence

A party relying on an electronic message may need to address both provisions, depending on the form of the evidence and the circumstances of the case. Section 90 does not automatically remove the applicable requirements for proving electronic records under Section 63.

Difference Between Section 90 BSA and Section 86 BSA

Both provisions concern electronic evidence, but their scope differs.

Basis	Section 86 BSA	Section 90 BSA
Subject	Presumption as to electronic records and electronic signatures	Presumption as to electronic messages
Main focus	Integrity of secure electronic records and intention associated with secure electronic signatures	Correspondence between a transmitted electronic message and the message entered for transmission
Sender identity	Does not generally establish who authored an electronic message	Expressly prohibits a presumption as to the person who sent the message
Nature	Applies specified presumptions to secure electronic records and signatures	Creates a limited, discretionary presumption concerning electronic messages

Section 86 focuses on secure electronic records and signatures, while Section 90 addresses a particular aspect of message transmission.

Corresponding Provision Under the Indian Evidence Act, 1872

Section 90 BSA corresponds to Section 88A of the Indian Evidence Act, 1872, which dealt with the presumption as to electronic messages.

Also Read: Section 88 BSA: Presumption as to Certified Copies of Foreign Judicial Records

The former provision similarly permitted a court to presume that an electronic message forwarded through an electronic mail server corresponded with the message entered for transmission, while prohibiting a presumption about who sent it.

The BSA retained the essential rule. Section 88 of the former Evidence Act, which concerned telegraphic messages, was a separate provision and should not be confused with Section 88A.

Important Case Law and Judicial Interpretation

The statutory rule under Section 90 is clear, but a judgment should not be described as directly interpreting this section unless it actually addresses the provision or its predecessor, Section 88A of the Indian Evidence Act.

Two Supreme Court decisions are useful for understanding the separate requirements governing electronic evidence. They are not direct interpretations of Section 90.

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

The Supreme Court considered the admissibility of electronic records under Section 65B of the Indian Evidence Act, 1872. It emphasised the statutory requirements applicable to proving electronic records produced as computer outputs.

Relevance: The decision helps distinguish the admissibility of electronic evidence from the limited presumption concerning electronic messages. It does not establish that the person identified by an email address must be the actual sender.

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

The Supreme Court clarified the requirements for admitting electronic records under Section 65B of the former Evidence Act, including the role of the prescribed certificate for computer outputs.

Relevance: The decision is important when an electronic message is produced as evidence. However, admissibility and sender identification are distinct issues, and the case should not be cited as if it directly interpreted Section 90 BSA.

Both decisions arose under the predecessor legislation. Their principles concerning electronic evidence must be applied in light of the BSA’s own provisions, including Section 63.

Key Points for Law Students and Judiciary Aspirants

• Section 90 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the presumption as to electronic messages.
• It corresponds to Section 88A of the Indian Evidence Act, 1872.
• The court may presume that a qualifying electronic message corresponds with the message entered into the sender’s computer for transmission.
• The expression “may presume” makes the presumption discretionary.
• The court shall not presume the identity of the person who sent the message.
• The apparent ownership of an email account does not, by itself, establish who personally sent a message.
• Section 90 does not automatically prove the authorship of every WhatsApp message, social-media post or application-based communication.
• The admissibility of electronic evidence must be considered separately under the applicable provisions, including Section 63 BSA where relevant.

Frequently Asked Questions (FAQs)

1. What is Section 90 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 90 permits a court to presume that a qualifying electronic message forwarded through an electronic mail server corresponds with the message entered into the sender’s computer for transmission. It expressly prohibits a presumption about the identity of the sender.

2. Which section of the Indian Evidence Act corresponds to Section 90 BSA?

Section 90 BSA corresponds to Section 88A of the Indian Evidence Act, 1872.

3. Does Section 90 prove who sent an email?

No. The provision expressly states that the court shall not make any presumption as to the person by whom the message was sent. Sender identity must be established through other relevant evidence where it is disputed.

4. Is the presumption under Section 90 mandatory?

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

5. Does Section 90 automatically apply to WhatsApp messages?

Not automatically. The section specifically refers to a message forwarded through an electronic mail server. The admissibility, authenticity and authorship of WhatsApp messages must be assessed under the applicable evidentiary rules and the facts of the case.

6. Does Section 90 replace Section 63 BSA?

No. Section 90 concerns a limited presumption relating to electronic messages, while Section 63 governs the admissibility of qualifying electronic records. The provisions address different questions and may both be relevant in a particular case.

7. Can an electronic message be relevant evidence even if its sender is disputed?

Yes. A disputed sender identity does not necessarily make the message irrelevant. The court must consider the applicable rules of admissibility and the available evidence concerning authenticity, authorship and the circumstances of transmission.

Conclusion

Section 90 of the Bharatiya Sakshya Adhiniyam, 2023 establishes a limited evidentiary presumption concerning electronic messages transmitted through an electronic mail server. It allows a court to presume that the message corresponds with what was entered for transmission, while expressly prohibiting the court from presuming who sent it.

The central distinction is between the correspondence of the transmitted message and the identity of its sender. Section 90 does not automatically establish authorship, authenticity or admissibility in every electronic communication dispute. It must be read alongside Section 63 BSA and the other applicable rules governing electronic evidence.

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