Highlighting an operational disparity within India’s modernized criminal justice framework, the Delhi High Court has issued notices to the National Legal Services Authority (NALSA) and the Union Ministries of Law and Justice and Home Affairs. The order comes in response to a Public Interest Litigation (PIL) advocating for free digital forensic expert assistance for legal-aid beneficiaries struggling to comply with electronic evidence certification rules under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
A Division Bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia sought formal responses from the key government stakeholders, acknowledging the potential legal hurdles faced by indigent litigants when handling digital records in court.
The Technical Divide under Section 63 BSA
The petition, filed by Zeeshan Ekhlaque and Aman Bhide through Advocate Md Imran Ahmad in the case Zeeshan Ekhlaque & Anr v. National Legal Services Authority & Ors., centers on the operational mechanics of Section 63 of the BSA, which replaced Section 65B of the legacy Indian Evidence Act, 1872.
Under the statutory framework governing the admissibility of electronic records, the prescribed compliance certificate contains two distinct procedural components. Part A requires a declaration completed by the individual having lawful control or operational custody over the target device or electronic record. Part B requires a technical evaluation report featuring detailed examination of the physical hardware and stored digital media by a qualified forensic expert.
While financially capable litigants can privately retain accredited digital forensic experts to satisfy or challenge the technical criteria under Part B, economically disadvantaged individuals relying on state-provided legal aid face significant financial barriers.
Equality of Arms and Constitutional Mandates
The petitioners contend that the absence of a dedicated institutional mechanism within legal-aid institutions to subsidize or provide forensic expert services severely handicaps poorer litigants during trials dominated by digital evidence, such as mobile messaging logs, surveillance video clips, and cloud backups.
Without state-backed forensic support, legal aid recipients are effectively precluded from fulfilling mandatory certification parameters or conducting rigorous cross-examinations of prosecution evidence. The plea argues that this structural gap directly violates the guarantee of equal access to justice enshrined under Article 39A and the right to a fair trial under Article 21 of the Constitution of India.
To resolve the inequality, the PIL requests the establishment of a uniform national policy across all state and district legal services authorities. The framework would allow eligible legal-aid recipients to access empanelled digital forensic laboratories and certified experts without bearing private out-of-pocket costs, ensuring equal representation as courts increasingly process digital records.
