Section 90 BSA 2023: Presumption as to Electronic Messages

Section 90 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the evidentiary presumption that may arise when an electronic message is forwarded through an electronic mail server. The provision is limited: it concerns the correspondence between the message transmitted and the message fed into the computer for transmission, but it does not permit the Court to presume the identity of the sender.

Law	Bharatiya Sakshya Adhiniyam, 2023
Act number	Act No. 47 of 2023
Section	Section 90
Subject	Presumption as to electronic messages
Commencement	1 July 2024
Nature of presumption	Discretionary: the Court "may presume"

Text of Section 90

90. Presumption as to electronic messages. The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

Meaning and scope of Section 90

Section 90 permits the Court, where the circumstances justify it, to presume that an electronic message received through an electronic mail server corresponds with the message that was entered into the originator's computer for transmission. The statutory presumption therefore relates to the correspondence or integrity of the transmitted message in the limited manner stated in the section.

The section contains an important safeguard. Even where the Court draws the permitted presumption about the message, it cannot use Section 90 itself to presume who actually sent that message. The identity or authorship of the sender must therefore be established through other admissible evidence where that fact is in dispute.

What does "may presume" mean?

Section 2(1)(h) of the Bharatiya Sakshya Adhiniyam defines the expression "may presume". Where the Adhiniyam states that the Court may presume a fact, the Court may either regard that fact as proved unless and until it is disproved, or it may call for proof of that fact.

Practical effect: Section 90 does not create an automatic or conclusive presumption. The Court retains discretion and may require proof depending on the facts and circumstances of the case.

Electronic messages and electronic evidence

The Bharatiya Sakshya Adhiniyam expressly recognizes electronic and digital records as documents. Questions concerning the admissibility and proof of electronic records must also be considered with the provisions dealing with electronic or digital records, including Sections 61, 62 and 63, wherever applicable.

Accordingly, Section 90 should not be read as a complete substitute for the statutory requirements governing proof and admissibility of electronic records. Its function is narrower: it creates a specific evidentiary presumption concerning electronic messages while excluding any presumption about the person who sent the message.

Key points to remember

Section 90 is part of the Bharatiya Sakshya Adhiniyam, 2023.
The BSA came into force on 1 July 2024.
The provision uses the words "may presume", so the presumption is discretionary.
The presumption concerns correspondence between the transmitted electronic message and the message fed into the computer for transmission.
No presumption can be made under Section 90 regarding the identity of the person who sent the message.
Where admissibility or proof of an electronic record is in issue, the other relevant BSA provisions on electronic evidence must also be considered.

Official legal sources

For the authoritative statutory text and commencement notification, refer to the official Government sources:

This page is intended as a statutory reference and general legal information. For a specific dispute involving electronic evidence, the facts, mode of proof and applicable procedural requirements should be examined separately.