Presumptions About Electronic Records and Digital Signatures Under the BSA (2026)
What the Bharatiya Sakshya Adhiniyam, 2023 presumes about electronic agreements, secure electronic records, electronic signatures, electronic messages, and old electronic records, and how these map to the old Evidence Act. Last verified October 2026.
Explainer · Evidence Law · BSA
Much of the evidence in a modern case is digital: an agreement signed online, a secure record, a digital signature certificate, an email. Proving each of these from scratch would slow every trial. So the law lets a court start from a presumption, a fact it takes as true unless the other side shows otherwise. The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced the Indian Evidence Act, 1872 from 1 July 2024, carries a cluster of these presumptions for electronic records and signatures. This explainer sets them out, maps them to the old Evidence Act, and explains how far each one goes. Last verified October 2026.
- What they are: court presumptions about electronic records and signatures, so routine digital evidence is easier to use.
- The sections: electronic agreements (85), secure records and signatures (86), signature certificates (87), electronic messages (90), records five years old (93).
- Old to new: these replace Sections 85A, 85B, 85C, 88A and 90A of the Indian Evidence Act.
- The key limit: the strong presumption is for secure records and signatures, and for an email the court will not presume who sent it.
- Tracking the case: Claw tracks electronic evidence matters across 9,102 courts, benches and forums.
01Why presumptions matter for digital evidence
Electronic evidence is everywhere, but it is also easy to doubt. Was the record changed after it was made. Did the signature really come from the person named. Who sent the message. If a party had to prove each of these points fully, every case would get stuck on the basics.
The law answers this with presumptions. For certain electronic records, the court is allowed to assume a fact is true, which shifts the burden to the person who disputes it. This keeps routine digital evidence usable, while still letting the other side challenge it with proof.
02What a presumption does
A presumption is a starting assumption the court makes about a fact. Some presumptions are mandatory, where the Act says the court "shall presume" and must take the fact as proved unless it is disproved. Others are permissive, where the Act says the court "may presume" and has a choice.
A presumption does not prove the point for good. It decides who has to prove the opposite.
For electronic records, the BSA uses both kinds, depending on the record. The word used in each section, "shall presume" or "may presume", tells you how strong the presumption is.
03The electronic record presumptions
The BSA groups the electronic record presumptions in Chapter V. In plain terms:
- Section 85, electronic agreements: where an electronic record is put forward as an agreement carrying the electronic or digital signatures of the parties, the court shall presume the agreement was concluded by affixing those signatures.
- Section 86, secure electronic records and secure electronic signatures: the court shall presume that a secure electronic record has not been altered since the time its secure status relates to, and that a secure electronic signature was affixed by the subscriber with the intention of signing or approving the record. Outside secure records and signatures, the section creates no presumption of authenticity or integrity.
- Section 87, Electronic Signature Certificates: the court shall presume that the information in such a certificate is correct, except the subscriber information that was not verified, if the subscriber accepted the certificate.
- Section 90, electronic messages: the court may presume that an electronic message forwarded by the originator through a mail server to the addressee matches the message as fed in for transmission, but shall not presume who actually sent it.
- Section 93, electronic records five years old: where an electronic record is five years old and produced from proper custody, the court may presume that the electronic signature was affixed by the person it purports to belong to, or by a person authorised by them.
04Old law to new law
These presumptions are not new. The Information Technology Act, 2000 had added them to the old Evidence Act. The BSA re-enacts them with new section numbers.
| Presumption | Old Evidence Act, 1872 | New BSA, 2023 |
|---|---|---|
| Electronic agreements | Section 85A | Section 85 |
| Secure electronic records and signatures | Section 85B | Section 86 |
| Electronic Signature Certificates | Section 85C | Section 87 |
| Electronic messages | Section 88A | Section 90 |
| Electronic records five years old | Section 90A | Section 93 |
The page title points to Section 90, which is the electronic messages presumption. The wider family of electronic record presumptions runs across Sections 85 to 93 of the BSA. For the companion rule on how electronic records are proved in the first place, see electronic evidence under BSA Section 63. For presumptions about documents generally, see presumptions about documents under the BSA.
05How far each presumption goes
The presumptions are useful, but each has a clear limit. Read the wording closely.
- Secure only: the strong presumption in Section 86 applies only to a "secure" electronic record or a "secure" electronic signature, as the Act defines those terms. An ordinary record does not get it.
- No presumption of the sender: under Section 90, the court may presume the message content is intact, but it will not presume who sent it. The sender must still be proved.
- Permissive where it says may: Sections 90 and 93 use "may presume", so the court has a choice and can decline on the facts.
- Rebuttable: every one of these presumptions can be rebutted by proof to the contrary. They decide who carries the burden, not the final result.
A presumption is not admissibility
Being presumed genuine is not the same as being admitted in evidence. An electronic record still has to clear the admissibility rule in Section 63 of the BSA, including the certificate, before these presumptions come into play.
06Practical points
- Know which section fits your record. An online agreement, a digital signature certificate, and an email each attract a different presumption. Match the record to the right section.
- Prove the certificate first. Clear the admissibility step under Section 63 before you rely on a presumption.
- Do not assume the sender is covered. For an email, plan separate proof of who sent it, because Section 90 will not presume that.
- Preserve custody for old records. The five year presumption in Section 93 needs proper custody, so keep a clean custody trail.
- Be ready to rebut. If the other side relies on a presumption, your job is proof to the contrary, since these presumptions are rebuttable.
07Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
Arguments about these presumptions turn on how courts have read each section. Claw lets an advocate search 30 crore+ judgments in under 5 seconds to find how benches have applied the presumptions on electronic agreements, secure records, signatures and messages, under the BSA and the old Evidence Act, with coverage from the Supreme Court since 1950 and the High Courts since 1990. It also follows cases, orders and hearings across 9,102 courts, benches and forums, so a matter that turns on electronic evidence can be watched by party or advocate name. Claw does not use customer case documents to train AI models.
Claw researches and tracks the matter but does not replace your counsel. Create a free Claw account to search and track these cases by party or advocate name, and start from the case search across Indian courts hub.
08Sources and further reading
- India Code (official text of the BSA, 2023): indiacode.nic.in
- BSA Section 90 (commentary): vidhijudicial.com
- Claw: clawlaw.in
This explainer is general information, not legal advice. The law changes through amendments and judgments, so check the current text and take advice from counsel before you act.
09Frequently asked questions
What does the BSA presume about electronic records?
It lets a court presume certain facts without separate proof: that an electronic agreement was concluded by the signatures on it, that a secure electronic record was not altered, that a secure electronic signature was affixed by the subscriber, that a signature certificate is correct, that an email matches what was sent, and that a five year old record was signed by the person named.
Which old Evidence Act sections do these replace?
BSA Section 85 replaces 85A, Section 86 replaces 85B, Section 87 replaces 85C, Section 90 replaces 88A, and Section 93 replaces 90A of the Indian Evidence Act, 1872. The content carries over with new numbers.
Does the court presume who sent an email?
No. Under Section 90 of the BSA, the court may presume that the message matches what was fed in for transmission, but it will not presume the identity of the sender. The sender still has to be proved.
Are these presumptions final?
No. They are rebuttable. A presumption decides who must prove the opposite, not the final outcome. The other side can displace it with proof to the contrary.
Is a presumption the same as admissibility?
No. An electronic record must first clear the admissibility rule in Section 63 of the BSA, including the certificate, before these presumptions apply. Being presumed genuine is a separate step from being admitted.
Can I track a case about electronic evidence in Claw?
Yes. Claw tracks cases across 9,102 courts, benches and forums by party or advocate name, and lets you search 30 crore+ judgments, from the Supreme Court since 1950 and High Courts since 1990, in under 5 seconds. It tracks and researches, but does not give legal advice.