Electronic evidence and arbitration under Bharatiya Sakshya Adhiniyam, 2023

Arbitration in India stands at a pivotal point. It is undergoing a rapid transformation as commercial engagements increasingly shift online, compelling arbitral tribunals to handle new forms of evidence such as emails, WhatsApp messages, digital photographs, and server logs as exhibits. The Bharatiya Sakshya Adhiniyam, 2023 ("BSA"), which replaced the Indian Evidence Act, 1872, ushers in a modern evidentiary regime for courts and redefines the treatment of electronic evidence, while underscoring arbitration’s procedural autonomy.

The BSA recognizes that “documents” today are no longer confined to parchment or paper:

• Section 2(1)(e)(i) classifies "electronic or digital records" as documents, placing them on equal footing with conventional paper documents.

• Section 61 of the Act ensures that electronic or digital records cannot be denied admissibility solely because they are electronic.

• Section 63 establishes prerequisites for admitting electronic records, including the submission of a certificate that authenticates the integrity and origin of the digital information.

Together, these provisions offer courts a modernised evidentiary toolkit. Yet, the Act draws a clear boundary when it comes to arbitral proceedings.

Section 1(2) of the BSA expressly excludes arbitral proceedings from its scope. The Act applies to judicial proceedings but “not to proceedings before an Arbitrator” under the Arbitration and Conciliation Act, 1996.

This statutory carve-out reflects a deeper principle of lex voluntatis—the “law of the will.” Parties to arbitration enjoy broad autonomy to design their own procedural and evidentiary rules. While arbitrators may voluntarily adopt court-like standards, they are under no obligation to do so.

Indian courts have consistently reinforced arbitration’s evidentiary independence. In Millennium School v. Pawan Dawar, O.M.P. (COMM) 107/2021, decided on May 10, 2022, the Court observed:

“Section 65-B of the Indian Evidence Act is not applicable to Arbitral proceedings … The Arbitral Tribunal has disregarded the entire evidence led by the petitioner solely on the ground that the certificate under Section 65-B was defective.”

This case draws a bright line; while courts may require compliance with the Bharatiya Sakshya Adhiniyam, 2023, for admissibility, arbitral tribunals must focus on relevance, materiality, and probative value rather than technical admissibility hurdles. 

The Delhi International Arbitration Centre (DIAC) Arbitration Proceedings Rules, 2023, reinforce the autonomy of arbitral tribunals concerning evidence:

Rule 25.2: The tribunal, while determining the admissibility, relevance, materiality, and weight of any evidence, shall not be bound by the Indian Evidence Act, 1872, or the Code of Civil Procedure, 1908, or by any strict rules of evidence.

This provision empowers arbitrators to adopt a more flexible approach, potentially dispensing with the stringent requirements of the Bharatiya Sakshya Adhiniyam, 2023.

The approach to electronic evidence in Indian arbitration exemplifies a nuanced balance. While the Bharatiya Sakshya Adhiniyam, 2023, provides a structured framework for the admissibility of electronic records in traditional courts, its applicability in arbitration is not mandatory. Judicial pronouncements and institutional rules underscore the discretionary power of arbitral tribunals to determine the admissibility and weight of electronic evidence without strict adherence to these provisions. This flexibility ensures that arbitration remains a viable and efficient alternative to litigation, adapting to the evolving nature of evidence in the digital age.

By embracing flexibility, arbitration continues to uphold the principles of justice, ensuring that the quest for truth is not hindered by rigid procedural constraints.

About the author: Sidharth Borah is a Partner at Gurinder & Partners.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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