Section 86 BSA: Presumption as to electronic records and electronic signatures

Bharatiya Sakshya Adhiniyam, 2023

Section 86 BSA at a Glance

Section 86 BSA deals with presumption as to electronic records and electronic signatures. It replaced Section 85B IEA on 1 July 2024.

Was IEA

Section 85B →

Section 86 BSA Bare Act Text

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.

Source: Section 86, Bharatiya Sakshya Adhiniyam, 2023

Section 86 BSA in Simple Words

Section 86 of the Bharatiya Sakshya Adhiniyam, 2023 tells a court what to presume (take as true) about secure electronic records and signatures. Each presumption applies in a proceeding unless a party proves the contrary (the opposite).

Section 86(1) BSA covers any proceeding that involves a secure electronic record. The court must presume that the record was not altered after the specific time when its secure status applied. Section 86(2) BSA covers any proceeding that involves a secure electronic signature. The court must presume that the subscriber affixed (attached) the secure electronic signature intending to sign or approve the record.

These presumptions apply only when the electronic record or electronic signature is secure. Otherwise, the Adhiniyam creates no presumption about the authenticity (genuineness) or integrity (unaltered state) of any electronic record or signature.

When Section 86 BSA Applies

  • A proceeding before a court involves a secure electronic record.
  • Unless the opposite is proved, the court must presume that the secure record was not changed after the specific time when its secure status applied.
  • A proceeding before a court involves a secure electronic signature.
  • Unless the opposite is proved, the court must presume that the subscriber attached the secure electronic signature intending to sign or approve the record.

Example of Section 86 BSA

In September 2024, Ramesh produces a secure electronic contract with a secure electronic signature in a court proceeding in Indore. Priya claims that the contract was changed and was signed without approval, but presents no proof. Under Section 86 BSA, because the contrary is not proved, the court must presume that the subscriber affixed the secure electronic signature intending to approve the record. Under the same rule, the court must also presume that the secure electronic contract was not altered after the time when its secure status applied.

When Section 86 BSA Does Not Apply

  • The section creates no presumption about the authenticity or integrity of any electronic record or electronic signature that is not secure.
  • The presumptions under sub-sections (1) and (2) do not apply when the opposite is proved in court.

Section 86 BSA in the IEA (Previous Law)

Section 86 BSA replaces Section 85B IEA from the old criminal code.

Section 85B of the Indian Evidence Act, 1872 became Section 86 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. Sub-section (2) reads "secure electronic signature" for "secure digital signature". Otherwise the same.

FAQs on Section 86 BSA

What is Section 86 BSA?▼

Section 86 of the Bharatiya Sakshya Adhiniyam, 2023 sets presumptions for secure electronic records and secure electronic signatures in legal proceedings. Unless the contrary is proved, the court must presume that a secure electronic record is unaltered and that a secure electronic signature was attached with the intention to sign or approve the record.

Can a party disprove a presumption made under Section 86 BSA?▼

Yes. Under both parts of Section 86 BSA, the court makes the presumption only unless the contrary is proved.

Does Section 86 BSA create a presumption for an electronic record or signature that is not secure?▼

No. Under Section 86(2)(b) BSA, the Adhiniyam creates no presumption about authenticity or integrity unless the electronic record or electronic signature is secure.

What is Section 86 BSA in IEA?▼

Section 85B IEA was the corresponding provision before 1 July 2024. In Section 86 BSA, sub-section (2) reads secure electronic signature in place of secure digital signature, and the rest of the rule is the same.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·