Section 81A Evidence Act: Presumption as to Gazettes in Electronic Forms
Section 81A of the Indian Evidence Act, 1872 dealt with the presumption of genuineness of electronic Official Gazettes and certain electronic records required by law to be kept. The corresponding provision now appears in Section 81 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which expressly covers electronic or digital records.
Former Section 81A of the Indian Evidence Act, 1872
Heading: Presumption as to Gazettes in electronic forms.
The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.
This provision was inserted by the Information Technology Act, 2000 (Act 21 of 2000), Section 92 and the Second Schedule, with effect from 17 October 2000. It is retained here as the historical statutory reference.
Section 81 of the Bharatiya Sakshya Adhiniyam, 2023
Heading: Presumption as to Gazettes in electronic or digital record.
The Court shall presume the genuineness of every electronic or digital record purporting to be the Official Gazette, or purporting to be electronic or digital record directed by any law to be kept by any person, if such electronic or digital record is kept substantially in the form required by law and is produced from proper custody.
Explanation: For the purposes of this section and section 93 electronic records are said to be in proper custody if they are in the place in which, and looked after by the person with whom such document is required to be kept; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render that origin probable.
Meaning and legal effect of the presumption
"Shall presume" is a statutory evidentiary direction. Under Section 2 of the BSA, where the Court is directed to presume a fact, it must regard that fact as proved unless and until it is disproved. The presumption under Section 81 concerns the genuineness of the specified record; it does not automatically establish the truth of every factual assertion appearing in that record.
Conditions for applying Section 81
- The material purports to be an electronic or digital Official Gazette, or an electronic or digital record that a law requires a person to maintain.
- The record is maintained substantially in the form prescribed by the applicable law.
- The record is produced from proper custody, as explained in Section 81.
- The presumption remains rebuttable by evidence showing that the record is not genuine.
What is proper custody?
Proper custody ordinarily means that the record is kept at the place and under the care of the person legally responsible for it. The statutory explanation also recognises that custody is not improper merely because a record came through another route, where its legitimate origin is proved or the circumstances make that origin probable.
Practical examples
An electronic Gazette notification obtained from an official government publication system may attract the presumption when the statutory requirements are met. A digital record maintained by a public authority under a legal obligation may also qualify. A screenshot, forwarded file or altered copy should not be assumed genuine merely because it resembles an official Gazette; its source, form, custody and authenticity may need examination.
Related rules on electronic evidence
Section 63 of the BSA addresses admissibility of electronic records subject to its conditions, while Sections 85 to 87 provide other presumptions relating to electronic agreements, secure electronic records, electronic signatures and signature certificates. Section 81 should be read alongside those provisions where relevant.
Official legislation and useful references
Read the Bharatiya Sakshya Adhiniyam, 2023 (official India Code PDF) and consult the India Code portal for legislation and updates. See also the related former Section 81 on printed Gazettes and newspapers and the Indian Evidence Act overview.