Grammatically and Contextually, the Non Obstante Clause in Section 63(1) BSA is Confined to the Deeming Fiction and Does Not Override the Entire Law Relating to Electronic Evidence

Saji Koduvath, Advocate, Kottayam

S.  63, Bharatiya Sakshya Adhiniyam

Section 63, Bharatiya Sakshya Adhiniyam, 2023 reads as under:

• “63. Admissibility of electronic records.   (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

What exactly does the Non obstante Clause Override?

Grammatically and contextually the non obstante clause is confined to and overrides the deeming provision. Because –

• the opening words, “Notwithstanding anything contained in this Act,” in Section 63(1) are directed only to the statutory fiction that a computer output shall be deemed to be a document (the legal consequence is that it is treated as the original documentary record). The non obstante clause is confined to this deeming provision.
• It should not be construed as overriding every provision of the Act relating to the proof or admissibility of electronic evidence including Sections 58 and 60 (relates to secondary evidence). That is, they can also be invoked.
• Its function is to support the legal fiction created by Section 63(1), not to govern the admissibility of electronic evidence generally.

Settled Principles Governing Non Obstante Clauses

The following are the settled principles governing non obstante clauses –

• A non obstante clause overrides only to the extent of inconsistency.
• It should not be given a wider operation than the legislative purpose requires.Once Parliament creates a legal fiction, courts must give full effect to it, but not extend it beyond its purpose.
  • See: East End Dwellings Co., Ltd. v. Finsbury Borough Council L.R. (1952) A.C. 109; (1951) 2 All.E.R 587.
  • Referred to in: Raja Shatrunji VS Mohammad Azmat Azim Khan, 2026 INSC 579 ; 2026 KLT(Online) 4261 ; 2026 KHC(Online) 6425 (J.B. Pardiwala, K. V. Viswanathan, JJ.)
  • Canara Bank v. D.R.P. Sundharam, 2016-1 Scale 525 ; 2016-1 SCT 803 ; 2016 KHC 6932, (Ranjan Gogoi, Arun Mishra, Prafulla C. Pant, JJ.).

Why the non obstante clause in Section 63(1)

Under the ordinary law of evidence, a computer output represents a copy or reproduction of information. Section 63(1) creates a legal fiction by treating such a computer output as a document for evidentiary purposes. The opening non obstante clause ensures that this statutory fiction prevails notwithstanding any inconsistent provision of the Act.

• Section 63(1) elevates that copy to the status of an electronic record (original). The non obstante clause ensures that this legal transformation prevails.
• The non obstante clause enables the statutory fiction to operate notwithstanding anything elsewhere in the Act. It does not dispense with the ordinary requirements relating to relevance, authenticity, reliability or proof except to the extent necessary to give full effect to the legal fiction.

Arjun Panditrao  Khotkar v. Kailash Kushanrao Gorantyal,

The Supreme Court decision in  Arjun Panditrao  Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908,  had established a strict interpretation. It laid down that the proof by the certificate under Section 65B (Section 63, Adhiniyam) was mandatory for admitting a computer output (copy) in evidence.

S. 61 BSA is to Override Arjun Panditrao

The above interpretation is reinforced by Section 61. If Section 63 already constituted a complete overriding code governing the admissibility of all electronic evidence, there would have been little necessity for Parliament to enact Section 61. The existence of Section 61 indicates that Section 63 performs a narrower function. 

• It is plain — Section 61 is a provision intended to ensure alternative routes for admitting computer outputs (copies of electronic records), that is, otherwise than through the certificate contemplated under Section 63. It is the harmonious interpretation. If Section 61 is not read as stated above, it becomes redundant.
• Section 61 of the BSA, was not in the Indian Evidence Act, 1872. Section 61, Adhiniyam reads as under:
  • “61.  Electronic or digital record.  Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall,  subject to section 63, have the same legal effect, validity and enforceability as other document.”

Drastic Legislative Change to  Arjun Panditrao

Section 61, Adhiniyam made a drastic legislative change to the deliberation placed by  Arjun Panditrao  Khotkar. By virtue of Section 61, a computer output (i.e., a copy of an electronic record) is capable of being proved by any mode of proof recognised under the Adhiniyam, and is not restricted to proof solely through the certificate.

• In any event, Section 61 is worded with a view that it must be understood as a provision intended to secure alternative routes for admitting computer outputs (copies of electronic records); that is, otherwise than through the certificate contemplated under Section 63.

Section 63(4) – One Mode of Proving the Computer Output

• Sub-section (4) of Section 63 prescribes only one mode of proving the computer output (that is, ‘statements’; and not photographs and videos). In any case, Section 63(4) is not the exclusive route for proving all computer outputs.

Conclusion

The opening words “Notwithstanding anything contained in this Act” do not create a general overriding code for electronic evidence. They merely ensure that, despite anything elsewhere in the Act, the statutory fiction created by Section 63(1) operates fully, namely that the specified computer output (copy) is treated as an electronic record (a document). Beyond giving full effect to that statutory fiction, the non obstante clause has no independent overriding operation.