Presumption as to Electronic Records Five Years Old: Section 90A Evidence Act and Section 93 BSA

Section 93 of the Bharatiya Sakshya Adhiniyam, 2023: Current Law

The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), which came into force on 1 July 2024, contains the corresponding provision in Section 93, titled "Presumption as to electronic records five years old".

Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf.

Explanation: The Explanation to section 81 shall also apply to this section.

In plain language, the court has the discretion to accept that the apparent signatory, or someone authorised by that person, affixed the electronic signature. The age of the record and the circumstances of its custody are essential.

Former Section 90A of the Indian Evidence Act, 1872

Section 90A, introduced by the Information Technology Act, 2000 with effect from 17 October 2000, provided:

Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf.

The former explanation described proper custody as the place and person with whom the electronic record would naturally be found, while recognising a legitimate or probably legitimate origin. It also applied to former Section 81A. The term "digital signature" was replaced with "electronic signature" by the Information Technology (Amendment) Act, 2008, effective 27 October 2009.

For proceedings governed by the new evidence law, consult Section 93 BSA. The BSA contains savings and transitional provisions for proceedings pending when the new Act commenced; the applicable procedural regime must be checked in each case.

Conditions for Invoking the Five-Year Presumption

1. Electronic record: The item must qualify as an electronic record under the applicable law.
2. At least five years old: The record must appear to be, or be proved to be, five years old. An unsupported date typed into a file is not necessarily sufficient.
3. Proper custody: It must come from custody the court considers appropriate in the circumstances.
4. Identifiable electronic signature: The record must purport to bear the electronic signature of a particular person.
5. Judicial discretion: The wording "may presume" allows the court to draw the inference, but does not compel it to do so.

The provision concerns who affixed the signature, including an authorised agent; it does not dispense with every other requirement for proving the record or the underlying transaction.

What Does "Proper Custody" Mean?

Section 81 BSA supplies the explanation applicable to Section 93. An electronic record is in proper custody when it is kept in the place and under the care of the person with whom it is required to be kept. Custody is not necessarily improper merely because it is unusual: a legitimate origin, or circumstances making such an origin probable, can suffice.

Relevant factors may include the identity of the custodian, normal record-retention practices, audit logs, backups, continuity of storage, and evidence of authorised access. These are practical considerations, not additional statutory elements.

What the Presumption Does Not Prove

• Not a presumption of truth: The statements in the electronic record are not automatically accurate merely because the signature is presumed genuine.
• Not automatic: The court may decline the presumption if the record's origin, age or integrity is doubtful.
• Not a substitute for admissibility: Where proof of electronic records is required under Section 63 BSA, the applicable requirements must be separately considered.
• Not a blanket validation: Fraud, lack of authority, alteration, invalid consent and other disputed issues may still require evidence.

Related provisions: Section 61 BSA addresses the legal effect of electronic or digital records; Sections 62 and 63 concern proof of electronic records; Sections 85 to 87 deal with certain presumptions involving electronic agreements, secure electronic records and electronic signature certificates. These provisions address different questions and should not be conflated with Section 93.

Practical Illustrations

Frequently Asked Questions

Which provision replaced Evidence Act Section 90A?

Section 93 of the Bharatiya Sakshya Adhiniyam, 2023 is the corresponding provision.

Is a five-year-old electronic record automatically authentic?

No. The court may presume the electronic signature was affixed by the purported signatory or an authorised person when the statutory conditions are met; the inference is discretionary and limited.

Does the provision cover unsigned emails?

Section 93 specifically concerns an electronic signature on an electronic record. An unsigned email does not gain a signature presumption merely by being five years old.

Does proper custody require possession by the original creator?

Not always. Section 81's explanation, applied through Section 93, allows the court to consider whether the record's origin is legitimate or probably legitimate.

Official Statutory Sources

Read the Bharatiya Sakshya Adhiniyam, 2023 (India Code PDF), particularly Sections 61, 63, 81 and 93, and the India Code official legislation portal for the latest published text. For the earlier law, consult the Indian Evidence Act, 1872 and the Information Technology Act, 2000 through the official portal.

This article explains statutory rules for general information and does not replace advice on the facts of an individual case.