Let me start with a scene you have probably lived through. A complainant walks in with her phone and shows you a WhatsApp chat, a Slack thread, and a screenshot of a Google Meet transcript. She has a Gmail export saved somewhere, and a video that she says was played on the office notice-board screen for half an hour. As the Presiding Officer, you have to decide what to do with all of this. You are running an inquiry, not a criminal trial, but you know the respondent will appeal under Section 18 and the record will end up in front of a judge. Everything you accept today must survive that reading tomorrow.
This is the practical shape of the digital-evidence problem in POSH in 2026. It is not new. What is new is the legal framework you now have to run it through. On the 1st of July 2024, the Indian Evidence Act 1872 was replaced in its entirety by the Bharatiya Sakshya Adhiniyam 2023. The old Section 65B, which every practitioner had spent twenty-four years learning, is gone [L1-C1]. In its place we have Section 63 of the BSA, and Section 63 is stricter [L1-C2].
Why the IC has to care about the Evidence Act at all
You will sometimes hear people say that the Evidence Act does not strictly bind an Internal Committee. Rule 7 of the POSH Rules 2013 says the inquiry is conducted according to the principles of natural justice, not the strict rules of evidence. That is technically correct. It is also practically misleading.
Here is why. Your report under Section 13 will be forwarded to the employer for action under Section 13(3) within sixty days. The aggrieved party or the respondent has ninety days to appeal under Section 18. If the appellate authority is a labour court or industrial tribunal, they read the record with a strict evidentiary eye. If the matter travels further, to a writ court, the record is read against fairness standards that pull heavily from the Evidence Act. The moment your finding turns on a digital exhibit that the IC accepted without authenticating, the appellate court has a clean handle to send the report back.
So the honest position is this. An IC is not bound by Section 63 the way a criminal court is. But an IC that runs its digital evidence workflow as if Section 63 does bind it will survive on appeal. An IC that treats digital exhibits casually will not. Every senior practitioner I know runs the strict framework.
What changed on the 1st of July 2024
Take a breath and internalise this. When you next open a POSH judgment written in 2024 or later that references "Section 65B", you are looking at a historical anchor [L1-C1]. It is still meaningful for incidents that occurred before the 1st of July 2024, under the transitional provisions of the BSA. For everything that happened after that date, you are working with Section 63 of the Bharatiya Sakshya Adhiniyam [L1-C2].
Section 63 keeps the core idea of the old 65B. Secondary evidence of an electronic record is admissible if it is accompanied by a proper certificate. What changes is the certificate itself. Under the old law, one signature by a responsible person in charge of the computer was enough. Under the new Section 63(4), the certificate has two parts. Part A is signed by the person in charge of the device. Part B is signed by an expert. And the certificate must disclose the hash value of the electronic record, computed under SHA-1, SHA-256 or MD5 [L1-C3].
This is not a cosmetic change. The old regime allowed an HR head to sign a certificate saying "this is the WhatsApp export from Ms X's phone, taken by me on such-and-such date". Under the new regime, that certificate is only Part A. You still need Part B from an expert who can attest that the export has not been tampered with, and both parts together must carry the hash value that anyone can recompute and verify.
The two Supreme Court rulings you must know
The transition from Section 65B to Section 63 has already been tested in the Supreme Court, and you should be comfortable with both cases as a senior practitioner.
The first is Kailash S/o Bajirao Pawar v. State of Maharashtra, decided in 2025 [L1-C4]. The Court held that a compact disc is admissible under Section 63 once its requirements are satisfied. Two nuances matter for us. First, when the electronic record is proved through the special statutory mode under Section 63, the certificate is mandatory. Second, when the record is proved through oral evidence, for example by examining the person who created or holds the record, the certificate may be treated as directory rather than mandatory. The Court also said, in a line that every IC member should memorise, that the hash value of an electronic record is synonymous with an "electronic fingerprint" and provides a sure way of identifying and verifying digital data.
The second is Pune Bar Association v. Union of India, decided by a three-judge Bench on the 22nd of May, 2026 [L1-C5]. The Pune Bar Association had challenged Section 63(4) as unconstitutional on the ground that the dual-certification and hash-value requirements imposed undue hardship on ordinary litigants, and that the "expert" for Part B was undefined. The Supreme Court dismissed the challenge. It held that the requirement is constitutional and has a legitimate objective. On the "who is an expert" question, the Court gave us the working answer. The expert who signs Part B is not confined to examiners notified under Section 79A of the Information Technology Act. Any individual possessing special skills and expertise in computer science and cyber forensics can validly sign Part B, provided the Court trying the case is satisfied on the expert's credentials on the facts.
Read those two sentences again. As a senior practitioner, they should shape your entire evidence strategy. You do not need to route every WhatsApp export through a Section 79A notified examiner. You can build a bench of credible private experts, provided the credentials are documented and can be defended.
The one live question the Supreme Court has not answered
Section 61 of the BSA classifies electronic records within the ordinary evidence framework and says such records have the same legal effect, validity and enforceability as any other document, subject to Section 63 [L1-C6]. Some commentators have argued that Section 61 opens the door to oral proof of electronic records, notwithstanding the "certificate is condition precedent" holding of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [L1-C7]. The Supreme Court has not yet ruled on this. My advice as a practitioner is not to bet the case on Section 61. Run the Section 63(4) certificate route as your primary strategy. Keep the oral-proof-of-authorship route as a backup, only where the certificate is genuinely unavailable and you can call the person who created the record.
How this changes your first-hearing checklist
By the end of the first hearing on a POSH complaint that has digital exhibits, you should have done four things. One, you should have identified every digital exhibit the complainant wants to rely on, and put it in your evidence log. Two, you should have decided how each exhibit will be authenticated. If the complainant produced it, is she going to depose to its origin herself, or is a Section 63(4) certificate the safer route? Three, you should have identified who will sign Part A and who will sign Part B for each exhibit. Four, you should have started the preservation clock. Slack retention rules, WhatsApp storage limits, and CCTV overwrite schedules do not wait for your inquiry to finish.
The remaining four lessons in this module walk you through each of these decisions. Lesson 2 handles the choice between screenshots, device exports and platform data dumps. Lesson 3 goes deep on the Section 63(4) certificate mechanics and the chain of custody. Lesson 4 handles the deepfake and AI-manipulated media problem, which now has its own regulatory regime under the IT Amendment Rules 2026 [L1-C8]. Lesson 5 covers how you present the digital evidence in the hearing without breaking Section 16 confidentiality [L1-C9].
By the end of the module you should feel that if a complaint arrives tomorrow with a phone full of exhibits, you know exactly what to do on day one.