WhatsApp Chats in Court: How BSB 2023 is Changing Digital Evidence Rules

Admissibility of WhatsApp Messages in Indian Courts: Impact of BSB 2023

With the increasing reliance on digital communication, WhatsApp messages have become a key source of evidence in legal disputes. However, their admissibility in Indian courts depends on compliance with laws governing electronic evidence. The introduction of the Bharatiya Sakshya Bill, 2023 (BSB 2023) aims to replace the Indian Evidence Act, 1872, bringing significant changes to the treatment of electronic records, including WhatsApp chats.

Legal Framework Governing WhatsApp Messages in Indian Courts

Before BSB 2023, the admissibility of WhatsApp messages was primarily governed by:

1. Indian Evidence Act, 1872 (Section 65B) – Defined the criteria for electronic evidence.

2. Information Technology Act, 2000 – Recognized electronic communication as legal evidence.

Under Section 65B of the Indian Evidence Act, 1872, electronic records (including WhatsApp chats) were admissible only if accompanied by a Section 65B certificate, confirming that the record was retrieved from a reliable source without tampering.

How BSB 2023 Changes the Rules

The Bharatiya Sakshya Bill, 2023 (BSB 2023), set to replace the Indian Evidence Act, 1872, introduces modernized provisions for digital evidence to reflect advancements in technology. Some key changes include:

1. Recognition of WhatsApp Messages as Primary Evidence

• Under BSB 2023, electronic communication (including WhatsApp messages) is explicitly classified as documentary evidence.

• Courts can accept WhatsApp messages directly, provided their authenticity is established.

2. Easing of Section 65B Requirements

• While earlier laws mandated a certificate under Section 65B, BSB 2023 simplifies the process, allowing WhatsApp chats to be admissible if retrieved from secure sources like cloud backups, official databases, or encrypted logs.

• Courts may use forensic tools to verify authenticity.

3. Emphasis on Forensic Verification

• Unlike before, where screenshots were often submitted, BSB 2023 requires digital evidence to be verified using forensic tools to prevent manipulation.

• Courts may demand server records, metadata, and encryption details to confirm the credibility of messages.

Conditions for WhatsApp Messages to Be Admissible

For WhatsApp chats to be accepted in court, the following must be ensured:

✅ Authenticity & Integrity – The messages must be verified as genuine and unaltered.

✅ Proper Certification – Under BSB 2023, electronic records must still be supported by technical authentication (even if Section 65B is relaxed).

✅ Verification of Sender & Receiver – The identity of both parties must be established using mobile numbers, timestamps, and chat logs.

✅ Unedited & Unmanipulated Data – Courts may request forensic analysis to ensure the messages were not altered.

Challenges in Using WhatsApp Messages as Evidence

Despite these legal provisions, challenges remain:

• Message Forgery & Manipulation – With tools available to edit messages, courts require strong verification measures.

• Deleted Messages – If a user deletes messages, recovering them requires forensic tools, making evidence collection complex.

• Lack of Context – A single message can be misleading without the full chat history.

Judicial Precedents on WhatsApp Chats as Evidence

Indian courts have already ruled on the admissibility of WhatsApp messages:

• In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), the Supreme Court reiterated the importance of Section 65B certification for electronic records.

• In Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP (2020), the Supreme Court held that WhatsApp messages alone cannot be treated as conclusive evidence unless backed by proper authentication.

Conclusion

With the Bharatiya Sakshya Bill, 2023, India is moving toward a more digital-friendly legal framework. While WhatsApp messages are admissible in court, they must meet stringent authentication and verification criteria. The shift from rigid procedural requirements (like Section 65B certification) to a more forensic-based approach under BSB 2023 aims to ensure that digital evidence remains credible, tamper-proof, and legally valid.

As technology evolves, courts, lawyers, and investigators must adapt to these new rules to ensure the fair use of electronic communication as evidence in legal proceedings.