Not every electronic record gets the law's benefit of the doubt. Section 86 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) reserves its strongest presumptions for a specific, technically defined category — "secure" electronic records and "secure" electronic signatures — and pointedly refuses to extend the same trust to anything outside that category, no matter how convincing it otherwise looks.
86. Presumption as to electronic records and electronic signatures. (1) In any proceeding involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
(2) In any proceeding involving secure electronic signature, the Court shall presume unless the contrary is proved that— (a) the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record; (b) except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.
Section 86 corresponds to Section 85B of the Indian Evidence Act, 1872 — an Information Technology Act, 2000 insertion with no equivalent in the original 1872 text, and later renamed from "digital signatures" to "electronic signatures" by the 2008 amendment. The BSA carries the text forward without change, confirmed against two independent sources, latestlaws.com and writinglaw.com, cross-checked against the BSA-to-IEA correspondence table.
Two Presumptions, One Deliberate Boundary
Subsection (1) protects the integrity of a secure electronic record — the court shall presume, unless disproved, that it has not been altered since the moment its secure status attached. Subsection (2)(a) protects something different: not the record's content, but the subscriber's state of mind, presuming that a secure electronic signature was affixed with the intention of signing or approving the record it appears on. Clause (b) then closes the door the rest of the section might otherwise seem to leave open — outside these two secure categories, the section creates no presumption whatsoever about authenticity or integrity, for any electronic record or signature, however routine or plausible it looks.
| Category | Presumption Under Section 86 |
|---|---|
| Secure electronic record | Presumed unaltered since its secure status attached, unless disproved |
| Secure electronic signature | Presumed affixed by the subscriber with intent to sign or approve, unless disproved |
| Any ordinary (non-secure) electronic record or signature | No presumption at all — full proof required |
What Makes a Record or Signature "Secure" in the First Place
Section 86 does not itself define "secure" — that work is done upstream, in the Information Technology Act, 2000. Under that Act, an electronic record becomes "secure" only if, at the relevant time, a security procedure agreed to by the parties (or prescribed by the Central Government) had been applied to it, and an electronic signature is "secure" only if it satisfies a comparable, verifiably rigorous authentication procedure. This is a deliberately high bar. It is not enough that a document was sent electronically, or that a signature block appears at the bottom of a PDF with a name typed into it — Section 86's presumption is reserved for records and signatures that have actually gone through a defined, provable security procedure, not merely for anything that happens to exist in digital form.
Why the Act Refuses to Generalise This Presumption
The logic behind clause (b)'s explicit carve-out is straightforward once the underlying risk is considered. An ordinary, unsecured electronic file can be edited, copied, and redistributed with no reliable trace of the change — metadata can be stripped, timestamps altered, and content modified without leaving evidence detectable by the recipient. A secure electronic record, by contrast, is designed so that any post-securing alteration is technically detectable, which is precisely what justifies shifting the burden onto whoever challenges it. Extending Section 86's presumption to ordinary electronic files would reward the format itself rather than the actual reliability the security procedure is meant to guarantee — which is exactly what clause (b) prevents.
A Practical Illustration
Two companies execute a supply agreement using a platform that applies a Central-Government-recognised security procedure to lock the document and log every signing action cryptographically. Months later, one party disputes the agreed price term, suggesting the figure was altered after signing. Because the record is "secure" within the meaning of the IT Act, Section 86(1) lets the court presume it has not been altered since the platform's security procedure attached — placing the burden on the party alleging tampering to actually prove it, rather than requiring the party relying on the document to independently establish its integrity from scratch. Had the same agreement instead been exchanged as an ordinary email attachment with no such security procedure applied, Section 86 would offer no presumption either way, and integrity would need to be proved through other evidence entirely.
Key Takeaways
- Section 86 BSA carries forward Section 85B IEA (an Information Technology Act, 2000 insertion, renamed by the 2008 amendment) unchanged, confirmed against two independent sources.
- Subsection (1) presumes a secure electronic record has not been altered since its secure status attached; subsection (2)(a) presumes a secure electronic signature was affixed with intent to sign or approve.
- Clause (b) expressly excludes any presumption for non-secure electronic records or signatures — the protection does not extend by analogy to ordinary digital documents.
- "Secure" status depends on satisfying a defined security procedure under the Information Technology Act, 2000 — not on the mere fact that something exists in electronic form.
- Section 86's presumption is separate from, and comes after, the threshold admissibility requirements under Section 63 BSA and the certification rule confirmed in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
Conclusion
Section 86 rewards genuine technical security with a genuine evidentiary advantage, and offers nothing to records or signatures that fall short of that bar — a calibration that keeps the presumption meaningful rather than automatic. It sets up the certificate-level presumption examined in Section 87 of this Act, covered earlier in this run, and stands in contrast to the lighter, non-security-dependent presumption for ordinary electronic agreements in Section 85, covered next.