Why do I need a certificate to produce WhatsApp chats or CCTV footage as evidence?

Question

I want to rely on WhatsApp messages and CCTV footage in my case, but I have been told I need a special certificate for this. What is required? I would like to understand which provision governs this, what it entitles me to, and how long I have before the remedy lapses. I also want to know whether I need a lawyer for this or can do it myself.

MyVakeel Legal Desk · Accepted Answer

In India, the answer to "Why do I need a certificate to produce WhatsApp chats or CCTV footage as evidence?" turns on Bharatiya Sakshya Adhiniyam 2023, Section 63, Bharatiya Sakshya Adhiniyam 2023, Section 61 and Bharatiya Sakshya Adhiniyam 2023, Section 62. The points below set out the position and then what to do about it, in the order it should be done.

BSA s.63 (which replaces the earlier Evidence Act s.65B) makes electronic records such as call recordings, WhatsApp chats, CCTV footage and emails admissible only if accompanied by a certificate identifying the device, describing how the record was produced, and confirming it was functioning properly.

The certificate must be signed by a person occupying a responsible official position in relation to the device or the management of the relevant activity, and it can now be given for records produced from multiple devices as clarified under the Schedule to the BSA.

Without this certificate, secondary electronic evidence like a printout or a copy is inadmissible even if it appears genuine, following the Supreme Court's ruling in Arjun Panditrao Khotkar (2020), whose principle continues under the BSA.

Section 61 clarifies that electronic and digital records have the same legal effect as paper records for admissibility purposes, provided the conditions of authenticity in s.63 are met.

Where the original device itself is produced and proved through the person who owns or operated it, a certificate under s.63 may not be strictly necessary, since the primary evidence rule under s.62 can apply instead.

In practice, in this order: 1) Identify the device or system that generated the electronic record you wish to rely on; 2) Obtain a signed certificate under BSA s.63 from the responsible person managing that device or system; 3) File the certificate along with the record when you produce it before the investigating officer or court; 4) If possible, also preserve and be ready to produce the original device as primary evidence.

Timing matters here: Bharatiya Sakshya Adhiniyam 2023, Section 63 works on limitation periods, so a section 63 bsa claim that is right on the merits can still fail if it is brought late. You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in criminal law.