Section 85 BSA 2023: Presumption as to Electronic Agreements
Section 85 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the evidentiary presumption attached to an electronic record that purports to be an agreement and contains the electronic or digital signatures of the parties. The BSA is Act No. 47 of 2023 and came into force on July 1, 2024.
Text of Section 85
85. Presumption as to electronic agreements. The Court shall presume that every electronic record purporting to be an agreement containing the electronic or digital signature of the parties was so concluded by affixing the electronic or digital signature of the parties.
Meaning and effect of Section 85
Section 85 creates a statutory presumption about the conclusion of an electronic agreement where the electronic record purports to be an agreement and contains the electronic or digital signatures of the parties. The expression "shall presume" is important because Section 2 of the BSA requires the Court to regard the presumed fact as proved unless and until it is disproved.
The provision therefore assists in proving the execution or conclusion of a qualifying electronic agreement. It does not mean that every email, message or digital record automatically becomes an electronic agreement. The record must purport to be an agreement and must contain the electronic or digital signatures contemplated by the provision.
Key requirements
- There must be an electronic record.
- The electronic record must purport to be an agreement.
- The record must contain the electronic or digital signature of the parties.
- When these conditions are met, the Court applies the statutory presumption stated in Section 85, subject to rebuttal in accordance with law.
What is an electronic record?
The Information Technology Act, 2000 defines an "electronic record" in Section 2(1)(t) to include data, records, data generated, images or sound stored, received or sent in electronic form, as well as certain microfilm and computer-generated microfiche records. The BSA also expressly treats electronic and digital records as documents for evidentiary purposes.
Electronic signature and digital signature
Under Section 2(1)(ta) of the Information Technology Act, 2000, an "electronic signature" means authentication of an electronic record by a subscriber through an electronic technique specified in the Second Schedule and includes a digital signature. Digital signatures are dealt with under Section 3 of that Act, while electronic signatures are addressed in Section 3A.
The Information Technology Act also gives legal recognition to electronic signatures under Section 5 and recognises the validity of contracts formed through electronic means under Section 10A. These provisions operate alongside the evidentiary rules in the BSA.
Relationship with other BSA provisions
| Provision | Subject | Relevance |
|---|---|---|
| Section 86 BSA | Presumption as to electronic records and electronic signatures | Deals specifically with presumptions concerning secure electronic records and secure electronic signatures. |
| Section 87 BSA | Electronic Signature Certificates | Creates a presumption concerning specified information in an Electronic Signature Certificate, subject to the statutory conditions. |
| Section 90 BSA | Electronic messages | Contains a separate presumption relating to electronic messages and should not be confused with the presumption for electronically signed agreements under Section 85. |
Admissibility of the electronic record
Section 85 concerns a presumption as to a qualifying electronic agreement. Questions relating to proof and admissibility of electronic or digital records are also governed by the wider scheme of the BSA, including Sections 61, 62 and 63. In a court proceeding, the applicable requirements should therefore be considered together rather than treating Section 85 as a stand-alone rule for every issue concerning electronic evidence.
Practical point
A party relying on an electronic agreement should preserve the original electronic record, its signature or certificate information, and other material relevant to authenticity and admissibility. The presumption under Section 85 may assist with proof of conclusion of the agreement, but disputed questions concerning authenticity, integrity, admissibility, contractual validity or the terms of the agreement can still require consideration of other applicable provisions and evidence.
Official legal sources
For the current statutory text, see the Bharatiya Sakshya Adhiniyam, 2023 on India Code. For electronic signatures, electronic records and electronic contracts, see the Information Technology Act, 2000 on India Code.
Last reviewed: September 13, 2026.