Crossing Into Chapter V
This article moves this project's backward progression through the Bharatiya Sakshya Adhiniyam, 2023 (BSA) out of Chapter VI and into the tail end of Chapter V, "Documentary Evidence" - a much longer chapter running from Section 56 to Section 93. Section 93, its final provision, deals with a problem the original 1872 drafters could never have anticipated: how does a court presume the genuineness of an electronic record old enough that the person who created it may be impossible to trace?
93. 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.
Section 93 corresponds to Section 90A of the Indian Evidence Act, 1872 — a provision that did not exist in the original 1872 Act at all. It was inserted by the Information Technology Act, 2000 as India's electronic evidence framework developed, and the BSA carries it forward without further change, confirmed against two independent bare-act sources.
The Physical-Document Rule, Adapted for Electronic Records
Section 93 is the digital counterpart to Section 92 BSA, covered in this project's next article, which lets a court presume a physical document thirty years old is genuine if produced from proper custody. The underlying problem is the same in both cases: the longer a document or record has existed, the less realistic it becomes to expect a party to call the original signatory or drafter as a live witness to prove authenticity from scratch. Section 92 solves this for paper; Section 93 solves it for electronic records, with two adjustments that reflect how digital records actually work.
| Aspect | Section 92 BSA (Physical Documents) | Section 93 BSA (Electronic Records) |
|---|---|---|
| Age threshold | Thirty years | Five years |
| What is presumed | Handwriting, and due execution/attestation | That the electronic signature was affixed by the person it purports to be, or someone they authorised |
| "Proper custody" defined by | Explanation to Section 80 BSA | Explanation to Section 81 BSA |
The gap between thirty years and five years is deliberate, not arbitrary. Physical documents can remain in stable, verifiable custody for generations with little risk of undetected alteration once basic safeguards are in place. Electronic records exist in a technological environment that shifts far faster — storage formats, signature standards, and platforms can all become obsolete or migrate within a handful of years — so the legislature set a much shorter threshold before the presumption of authenticity becomes available.
What "Proper Custody" Means Here
Section 93's own Explanation borrows its definition of proper custody from Section 81 BSA — the provision governing presumptions for electronic Gazettes and records a law directs to be kept by a particular person. Under that definition, an electronic record is in proper custody if it is kept in the place, and looked after by the person, with whom such a record is required to be kept — but custody is not rendered improper merely because that exact arrangement was not followed, so long as the record can be shown to have had a legitimate origin, or the circumstances make that origin probable. A company's own archived server logs, or records held by a government department in its ordinary electronic recordkeeping system, would typically satisfy this test even without a perfectly unbroken chain of formal custody.
Why the Five-Year Presumption Matters in Practice
Consider a commercial dispute where a party relies on a digitally signed vendor agreement executed six years earlier, and the original signatory has since left the company and cannot be traced. Without Section 93, the party relying on the agreement would face real difficulty proving who actually affixed the electronic signature. With it, once the record is shown to be at least five years old and produced from proper custody — the company's own contract management system, for instance — the court may presume the signature was genuinely affixed by the person it names, shifting the practical burden onto anyone disputing that fact to come forward with evidence to the contrary.
Key Takeaways
- Section 93 BSA carries forward Section 90A IEA — a provision inserted by the Information Technology Act, 2000, not part of the original 1872 Act — unchanged, confirmed against two independent sources.
- It lets a court presume an electronic record's signature was affixed by the person it purports to be, once the record is five years old and produced from proper custody.
- It is the direct digital counterpart to Section 92 BSA's thirty-year presumption for physical documents, with a far shorter threshold reflecting how quickly digital storage environments change.
- "Proper custody" for this section is defined by cross-reference to Section 81 BSA, covering electronic Gazettes and records a law requires to be kept.
- The presumption only addresses authorship of the signature, not the record's admissibility — that separate question is governed by Section 63 BSA and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
Conclusion
Section 93 fills a gap the original Evidence Act never had to consider: what happens to a digital signature's authenticity once the person behind it becomes practically untraceable. By setting a proportionate five-year threshold and borrowing its custody test from the Act's own electronic Gazette provisions, it lets ageing electronic records carry the same practical weight physical documents have long enjoyed under Section 92 — provided a party has already cleared the separate hurdle of getting that record admitted in the first place.