Your Digital Rights: How the New BSA Laws Affect WhatsApp Messages and Emails as Evidence in India

In today’s digital world, important conversations often take place through WhatsApp messages, emails, SMS, social media chats, cloud platforms and other electronic systems. These communications may become relevant in criminal investigations, commercial disputes, employment matters, cybercrime complaints, matrimonial proceedings and civil litigation.

With the introduction of the Bharatiya Sakshya Adhiniyam, 2023, commonly known as the BSA, India replaced the Indian Evidence Act, 1872, with a modern evidence framework that expressly addresses electronic and digital records.

The BSA came into force on 1 July 2024. It does not mean that the police can automatically treat every WhatsApp message or email as conclusive proof. Instead, digital material must still be relevant, properly collected, authenticated where required, and assessed in accordance with the law.

This article explains how WhatsApp chats, emails and other electronic records may be examined during an investigation, what the BSA changes, and what individuals should do to protect their digital rights.

What Is the Bharatiya Sakshya Adhiniyam, 2023?

The Bharatiya Sakshya Adhiniyam, 2023 is India’s principal law governing the relevance, admissibility and proof of evidence in judicial proceedings.

It replaced the Indian Evidence Act, 1872, and was introduced as part of the broader criminal-law reform that also included:

• The Bharatiya Nyaya Sanhita, 2023, which replaced the Indian Penal Code.

• The Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the Code of Criminal Procedure.

• The Bharatiya Sakshya Adhiniyam, 2023, which replaced the Indian Evidence Act.

The BSA recognises that evidence may exist in digital form. This includes:

• WhatsApp messages and chat exports.

• Emails and email attachments.

• SMS and instant messages.

• Digital photographs and videos.

• CCTV footage.

• Audio recordings.

• Call records and metadata.

• Cloud-stored documents.

• Computer files and server records.

• Social media posts and direct messages.

• Digital payment records.

• Electronic business and accounting records.

The central point is that a digital record is not automatically reliable merely because it exists on a phone or computer. Its relevance, authenticity, integrity and connection to the dispute or alleged offence must be examined.

How Does the BSA Treat WhatsApp Messages and Emails?

Under the BSA, electronic and digital records can be treated as documentary evidence. This is important because many modern disputes depend on communications that were never printed or physically signed.

For example:

• A WhatsApp conversation may be relevant to an allegation of cheating, criminal intimidation or harassment.

• An email may establish that a contract was discussed or that a warning was issued.

• A digital payment receipt may support a financial-fraud complaint.

• A deleted-message recovery report may become relevant to an investigation.

• A voice note may be examined in connection with a threat or dispute.

• A company email trail may help establish responsibility for a business decision.

However, the existence of a message does not automatically prove that its contents are true. Investigators and courts may need to examine who sent it, who received it, whether it was altered, whether the account or device was compromised, and whether the record is connected to the person against whom it is being used.

What Has Changed from the Earlier Evidence Law?

Under the former Indian Evidence Act, electronic records were commonly addressed through Section 65B, particularly when a party sought to rely on computer-generated evidence.

The BSA now contains corresponding provisions concerning electronic records, including the requirements associated with Section 63.

Although the numbering has changed, the practical importance of authentication and reliability remains.

The change should not be misunderstood as meaning that:

• Every screenshot is automatically accepted.

• Every WhatsApp message is automatically genuine.

• A police officer can rely on an unexplained printout without examining its source.

• A person loses all privacy rights over their phone.

• A digital record becomes conclusive proof simply because it was downloaded or printed.

The legal focus remains on whether the record can be reliably connected to its source and whether the applicable requirements for proving it have been satisfied.

Are WhatsApp Screenshots Automatically Valid Evidence?

No. A screenshot may be relevant, but it is not necessarily sufficient by itself to establish the authenticity or complete context of a conversation.

A screenshot may not show:

• The complete conversation.

• The original sender or recipient details.

• Whether messages were deleted before or after the screenshot.

• Whether the account was accessed by someone else.

• Whether the image was edited.

• The date and time settings of the device.

• The original metadata.

• Whether the conversation was taken out of context.

• Whether the message was forwarded from another account.

A screenshot can still be useful as an initial lead or supporting material. However, investigators or courts may seek additional material such as:

• The original device.

• A properly preserved chat export.

• Relevant account or device information.

• Supporting messages before and after the disputed communication.

• Email headers.

• Server or platform records, where lawfully obtained.

• Forensic extraction reports.

• Hash values or other integrity information.

• A certificate or other documentation required under the applicable provisions of the BSA.

The evidentiary value of a screenshot depends on the surrounding facts and the way it is produced and proved.

What Is the Importance of Section 63 of the BSA?

Section 63 of the BSA addresses the admissibility of electronic records and the conditions under which such records may be relied upon.

In appropriate cases, the party producing an electronic record may need to provide information concerning:

• The electronic record being produced.

• The manner in which the record was generated or obtained.

• The device or computer system involved.

• The relevant system or process.

• The reliability of the process used to produce the record.

• The person responsible for the relevant device or system.

• Other information required by the statutory format or applicable rules.

The exact requirements may vary depending on the nature of the electronic record and the manner in which it is produced.

For this reason, it is not advisable to assume that an old “65B certificate” label alone is sufficient in every matter. Lawyers and investigators should assess the applicable BSA requirements and the relevant judicial decisions for the particular proceeding.

Can Police Examine WhatsApp Messages During an Investigation?

Police may seek to examine digital communications when they are relevant to an alleged offence and when the investigation is carried out under applicable legal authority and procedure.

Depending on the facts, investigators may:

1. Ask a complainant or witness to produce relevant messages.

2. Examine a suspect’s phone or computer in accordance with applicable procedure.

3. Seize a device when legally authorised.

4. Obtain relevant records from service providers or other custodians through lawful process.

5. Examine email accounts, attachments and communication trails.

6. Seek technical assistance for recovering or preserving digital material.

7. Compare messages with other evidence, such as bank records, CCTV footage or witness statements.

8. Investigate whether a message was fabricated, altered, forwarded or sent by an unauthorised person.

The BSA concerns the use and proof of evidence. The power to search, seize, access or investigate is governed primarily by procedural law, including the BNSS and other applicable legislation.

Therefore, the BSA should not be read in isolation from:

• The Bharatiya Nagarik Suraksha Sanhita, 2023.

• The Information Technology Act, 2000.

• Applicable rules and lawful directions concerning electronic communications.

• Constitutional protections.

• Judicial safeguards relating to privacy, search, seizure and fair procedure.

Does End-to-End Encryption Prevent Police from Using WhatsApp Chats?

End-to-end encryption does not mean that a WhatsApp conversation can never become evidence.

Encryption generally protects the content of messages while they are transmitted between users. However, digital evidence may become available through other sources, depending on the facts and lawful investigative methods.

For example, relevant material may be obtained from:

• A sender’s phone.

• A recipient’s phone.

• A linked computer or other device.

• A voluntarily provided chat export.

• Notifications or backups, where available and lawfully accessed.

• Screenshots or recordings supplied by a participant.

• Other devices on which the communication was stored.

• Related emails, documents or payment records.

• Evidence showing that a person had access to a particular account or device.

At the same time, encryption and device security remain important privacy protections. Investigators must still follow the legal process applicable to the search, seizure, access and use of digital information.

Can Police Demand Access to Your Phone or Email?

The answer depends on the circumstances, the legal authority being relied upon, the nature of the investigation and the procedural safeguards that apply.

A person should not assume that every informal request for a password, device or account access has the same legal status as a properly authorised search or seizure.

If police request access to a phone, laptop or email account, the person should:

• Remain calm and avoid obstructing a lawful investigation.

• Ask, respectfully, under what legal authority the request is being made.

• Seek to understand whether the device is being examined, copied or formally seized.

• Request documentation for any seizure, where applicable.

• Avoid deleting, altering or concealing potentially relevant information.

• Avoid signing documents without understanding their contents.

• Contact a criminal lawyer promptly if the matter involves an FIR, arrest, seizure, cybercrime allegation or serious criminal exposure.

The right to seek legal advice is particularly important where a device contains personal, professional, financial or privileged information.

What Happens When Police Seize a Mobile Phone?

A mobile phone may contain extensive information beyond the subject of an investigation, including:

• Private conversations.

• Photographs and videos.

• Banking applications.

• Medical or personal records.

• Work-related documents.

• Password managers.

• Business communications.

• Communications with lawyers.

• Information belonging to family members or third parties.

The handling of such a device raises important questions about:

• The legal basis for seizure.

• The scope of the investigation.

• Preservation of the original device.

• Forensic extraction.

• Chain of custody.

• Data integrity.

• Access to unrelated personal information.

• Protection of confidential or privileged communications.

• Whether the examination was limited to relevant material.

A lawyer can help assess whether the seizure and subsequent examination appear to comply with applicable law and whether objections, applications or other remedies may be appropriate.

Why Is Chain of Custody Important for Digital Evidence?

Chain of custody refers to the documented history of how evidence was collected, handled, transferred, stored and examined.

For digital evidence, chain of custody may involve recording:

• When and where the device was obtained.

• Who seized or received it.

• The condition of the device.

• Whether it was switched on or off.

• How it was secured.

• Who conducted the forensic extraction.

• What tools or methods were used.

• Where the extracted data was stored.

• Whether the data was altered or copied.

• Who accessed the extracted material.

• Whether integrity checks were performed.

A break or unexplained gap in the chain of custody may create questions about the reliability or integrity of the evidence.

This does not mean that every procedural irregularity automatically destroys a case. The effect of a defect depends on the circumstances, the applicable law and the overall evidence.

Can Deleted WhatsApp Messages or Emails Be Recovered?

Sometimes, deleted digital material may be recoverable, but recovery is not guaranteed.

The possibility of recovery depends on factors such as:

• The type of device.

• The operating system.

• The time elapsed since deletion.

• Whether the data was overwritten.

• Whether backups exist.

• Whether the account was synchronised with another device.

• The nature of the application.

• The security settings.

• The forensic tools used.

• Whether the device has been reset or damaged.

Deleted data should not be assumed to have disappeared permanently. At the same time, a recovery report must still be examined carefully. A recovered fragment may not establish the complete context, sender identity or authenticity of the original communication.

Anyone involved in a dispute or investigation should avoid attempting to manipulate, destroy or selectively alter digital records.

What About Emails and Email Headers?

Emails may contain more information than the visible message displayed in an inbox.

Depending on the email system, relevant information may include:

• Sender and recipient addresses.

• Date and time.

• Subject line.

• Message body.

• Attachments.

• Routing information.

• Message identifiers.

• Header details.

• Server-related information.

• Forwarding history.

• Reply chains.

• Authentication results.

Email headers may assist in examining whether an email was actually sent from a particular account or whether the visible sender information was spoofed or manipulated.

However, an email address alone may not conclusively establish the identity of the person who typed or sent a message. Investigators may need to consider:

• Account access.

• Password compromise.

• Shared devices.

• Delegated access.

• Malware.

• Spoofing.

• Forwarding.

• Business email systems.

• Other corroborating evidence.

Preserving the original email, including relevant headers and attachments, is generally more useful than relying only on a screenshot or copied text.

Can a Person Challenge the Authenticity of WhatsApp or Email Evidence?

Yes. The authenticity, completeness, relevance and reliability of electronic evidence may be questioned where there are legitimate grounds.

Possible issues may include:

1. The message was fabricated

The alleged message may never have been sent, or the screenshot may have been created or edited.

2. The account was compromised

Someone else may have accessed the account or device.

3. The sender’s identity is disputed

The account may have been shared, impersonated or accessed by another person.

4. The conversation is incomplete

Messages before or after the relied-upon text may change its meaning.

5. The record was obtained improperly

The method used to obtain the record may raise legal or procedural objections.

6. The record lacks necessary supporting material

The producing party may not have supplied the information required to establish the electronic record under the applicable law.

7. The record is irrelevant

Even a genuine message may not be relevant to the particular allegation or dispute.

8. The record lacks context

A forwarded message, joke, quotation, translation or sarcastic statement may be misunderstood if examined in isolation.

A lawyer can help determine whether the appropriate response involves cross-examination, a forensic examination, an objection to admissibility, an application concerning the device or another legal remedy.

What Should You Do If Your WhatsApp Messages Are Being Used Against You?

If you discover that your messages or emails are being relied upon in a complaint, notice, FIR or court proceeding, consider the following steps:

Preserve your own records

Keep the relevant conversation, email chain, attachments and surrounding context safely preserved.

Do not delete or alter material

Deleting messages after learning of a dispute or investigation may create additional legal complications.

Preserve the complete conversation

Do not rely only on selected screenshots. Preserve messages before and after the disputed communication where relevant.

Record the context

Make a note of the date, participants, purpose of the conversation and any explanation that may be important.

Preserve original files

Keep original emails, attachments, documents, audio files and videos rather than only compressed copies.

Avoid forwarding sensitive material unnecessarily

Uncontrolled forwarding may create additional privacy and confidentiality concerns.

Seek legal advice early

A lawyer can assess whether the material raises issues concerning authenticity, privacy, procedure, privilege, relevance or admissibility.

Do not contact the complainant aggressively

Threatening, pressuring or intimidating a person because they have produced digital evidence may worsen the situation and could create separate legal exposure.

What Should You Do If Someone Has Misused Your Digital Communications?

If someone has manipulated, circulated, threatened to publish or misused your WhatsApp messages, emails, photographs or other digital material, the appropriate legal response depends on the facts.

Potential concerns may include:

• Cyberstalking.

• Criminal intimidation.

• Harassment.

• Cheating or fraud.

• Identity theft.

• Impersonation.

• Unauthorised access.

• Defamation.

• Privacy violations.

• Extortion.

• Misuse of confidential business information.

• Publication of private or sensitive material.

• Forgery or fabrication of digital records.

You should preserve:

• Screenshots.

• Original messages.

• Profile details.

• Phone numbers or email addresses.

• URLs.

• Dates and times.

• Call logs.

• Payment records.

• Threats or demands.

• Details of witnesses.

• Any complaint already made to the platform or authorities.

Do not edit the original evidence. If you need to highlight a portion, keep the original version separately.

Depending on the situation, you may consider reporting the incident through the appropriate cybercrime reporting channel, approaching the police, issuing a legal notice or seeking appropriate relief before a competent court.

How Can a Criminal or Cybercrime Lawyer Help?

A lawyer experienced in criminal and cybercrime matters may assist with:

Reviewing digital evidence

Examining whether the messages, emails, screenshots or recordings are relevant, complete and reliable.

Assessing legal procedure

Reviewing the circumstances in which a device or account was searched, seized or examined.

Advising on statements

Helping a person understand the legal implications of statements made during an investigation.

Preserving defence evidence

Identifying relevant messages, documents, location records, payment records and other material that may support the defence.

Coordinating with forensic professionals

Where necessary, seeking assistance in examining device data, metadata, deleted records or digital integrity.

Challenging unreliable material

Raising appropriate objections where digital records appear fabricated, incomplete, unauthenticated or improperly obtained.

Responding to cybercrime complaints

Assisting complainants, accused persons, businesses and other affected parties in understanding their legal options.

Protecting business and personal information

Addressing the risks associated with confidential emails, employee communications, customer information and proprietary digital records.

Common Mistakes to Avoid

People often make avoidable mistakes when digital evidence becomes part of a dispute.

Avoid:

• Deleting the complete chat.

• Editing screenshots.

• Forwarding private messages widely.

• Resetting a device without taking legal advice.

• Giving false explanations about account access.

• Threatening the person who produced the messages.

• Sharing passwords casually.

• Assuming that encryption makes all evidence unusable.

• Assuming that a screenshot automatically proves everything.

• Ignoring a police notice or court summons.

• Posting details of an ongoing investigation on social media.

• Attempting unauthorised access to another person’s account.

Digital evidence can be fragile, but attempts to manipulate it may create more serious problems than the original dispute.

Frequently Asked Questions

1. Are WhatsApp messages admissible in Indian courts under the BSA?

Yes, WhatsApp messages may be admissible as electronic evidence if they are relevant and the applicable requirements for proving the electronic record are satisfied. Their evidentiary value depends on authenticity, source, integrity, context and other circumstances.

2. Is a WhatsApp screenshot enough to prove a criminal allegation?

Not necessarily. A screenshot may be relevant supporting material, but additional evidence may be required to establish who sent the message, whether it was altered and what the complete context was.

3. Has Section 65B of the Evidence Act been replaced?

The BSA replaced the Indian Evidence Act, 1872. The corresponding framework for electronic records is now found under the BSA, including Section 63. The appropriate requirements should be assessed under the law applicable to the proceeding.

4. Can police seize my phone during an investigation?

A device may be seized where the applicable law authorises such action and the procedural requirements are followed. The circumstances of the seizure, documentation, scope of examination and handling of the device may be legally significant.

5. Can deleted WhatsApp messages be recovered?

Recovery may be possible in some circumstances, depending on the device, backups, time elapsed, security settings and forensic methods. Recovery is not guaranteed.

6. Can I refuse to provide my phone password?

The legal position may depend on the circumstances, the nature of the request, the applicable procedural law and the person’s status in the investigation. It is advisable to obtain prompt legal advice rather than making an uninformed decision.

Need Legal Assistance?

If your WhatsApp messages, emails or other digital records are involved in a police inquiry, cybercrime complaint, criminal case or legal dispute, professional legal guidance may help you understand the evidence, preserve relevant records and identify the appropriate legal response.

Contact Advocate Upadhye & Associates for assistance with criminal law, cybercrime, digital evidence and related legal matters.