Abstract
The increasing dependence of the nation on electronic communication, online commerce, and the digital preservation of data has necessitated a change in India’s laws pertaining to information and technology, as well as the rules controlling whether electronic evidence can be used in criminal and civil cases. Three new criminal laws—the Bharatiya Nyaya Sanhita (abbreviated “BNS”), the Bharatiya Nagarik Suraksha Sanhita (abbreviated “BNSS”), and the Bharatiya Sakshya Adhiniyam (abbreviated “BSA”)—have superseded the Indian Penal Code of 1860 (abbreviated “IPC”), the Code of Criminal Procedure of 1973 (abbreviated “CrPC”), and the Indian Evidence Act of 1872 (referred to as “IEA”).
The New Criminal Reforms in India has established substantial evidentiary criteria for fair trials, including the admissibility of electronic records and evidences. Electronic data disclosure as well as e-records has received the attention of the Supreme Court of India as well as the Central Government Home Affairs Standing Committee stressing the need to retain tampered electronic data. The paper discusses the development and working rules on the potential of electronic proof and a comparison of the law on admissibility of electronic evidence in the Indian Evidence Act of 1872 and the Indian Evidence Bill of 2023.
Keywords
Electronic records- Evidences- Admissibility – Section 65B-The Bharatiya Sakshya Adhiniyam, 2023- The Indian Evidence Act, 1872
Introduction
In contemporary criminal law, the admissibility of electronic records is crucial. With digital technology’s rise, legal frameworks worldwide have adapted to include electronic evidence as a valid form of proof in criminal cases. Electronic records, such as emails, digital files, and social media content, must meet specific admissibility criteria, including authenticity, integrity, and reliability, to ensure that the evidence presented is genuine and unaltered.
Authentication often involves digital signatures, encryption, and secure storage measures. Maintaining a clear chain of custody is essential in handling electronic evidence to prevent tampering and ensure its credibility. Forensic technology plays a significant role in this process, providing tools for recovering deleted files, tracing digital footprints, and verifying data integrity. In India, the Bharatiya Sakshya Adhiniyam, 2023 represents a landmark development in the legal framework governing electronic evidence. This new legislation reflects the growing recognition of digital data as a crucial component in the criminal justice process. As technology continues to evolve, traditional approaches to evidence collection and presentation must adapt to encompass digital advancements.
The Bharatiya Sakshya Adhiniyam 2023 provides comprehensive guidelines on how electronic evidence should be handled, authenticated, and presented in court. It establishes the standards for ensuring the integrity and reliability of electronic records, addressing the challenges posed by the digital age. This legislation not only outlines the admissibility criteria for electronic evidence but also incorporates technological innovations to streamline the collection process, enhance forensic analysis, and safeguard the rights of individuals.
Research Methodology
The qualitative study to explore the admissibility of electronic evidence is descriptive in nature and a structured research methodology is used. This includes examining academic articles, legal journals and case studies. The Bharatiya Sakshya Adhiniyam,2023, the Information Technology Act, 2000 and the repealed statute The Indian Evidence Act 1872 has also been referred. The provisions related to electronic evidence, which includes the criteria for admissibility of evidence and any specific procedural requirements outlined in the legislation has been analysed in detail. The media, books and the internet websites are the further sources of information that are employed in this research.
Review of Literature
The journal article offers a thorough analysis of the procedure used to decide whether electronic records are admissible as evidence under Indian criminal law. The significance of dealing with electronic evidence has increased dramatically in relation to India’s criminal reforms. Nonetheless, a thorough analysis of the modifications made to the process for electronic record admissibility has been carried out.
The following topics are reviewed:
- The scope and definition of electronic evidences and records.
- Amendments to the Indian Evidence Act, 1872 by the Information Technology Act, 2000 and the judgment delivered by the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. (2020).
- An overview of procedures of admissibility of electronic records mentioned in the Bharatiya Sakshya Sanhita, 2023
- Admissibility of Electronic Records: Indian Evidence Act, 1872 v/s The Bharatiya Sakshya Sanhita, 2023 (a comparative analysis).
What are electronic evidences and records?
Electronic evidences generally refer to data or information stored in digital form, such as e-mails, text messages, digital records, and other forms of electronic communication. Before accepting digital evidence, the court is required to assess its relevance, reliability and authenticity. In addition, they must assess whether the information is hearsay and whether the duplicate is preferable to the original. Electronic records are defined as “information of tangible value that is stored or transmitted in binary form”. The definition of electronic records includes three components. Initially, it is envisaged that all forms of evidence that are created, modified or stored in a device that can be broadly categorized as a computer will be included; however, the human brain is not currently considered in this context. Furthermore, the definition aims to include all kinds of devices capable of storing or transmitting data, which also includes analog devices that produce an output. Ideally, this definition should extend to all types of devices, including those we currently identify as computers, telephone systems, wireless networks and telecommunications infrastructures such as the Internet, as well as computer systems embedded in devices such as smart cards, mobile phones and navigation. . systems. The third element limits data to data that is relevant to the process by which the arbitrator resolves the dispute, regardless of the nature of the conflict and the format or scope of the decision. This part of the definition deals with only one aspect of admissibility and relevance, deliberately omitting “admissibility” as a separate criterion, since certain evidence may be considered admissible but excluded by the judge on his authority or for reasons unrelated to the intrinsic characteristics of the evidence, such as the method of their collection. However, the last criterion limits the definition of electronic evidence to materials submitted by the parties at the fact-finding stage. In addition, judges demonstrated a good understanding of the inherently “electronic” nature of evidence. This includes understanding the admissibility of such evidence, along with a legal analysis of procedures for presenting and presenting electronic evidence in the courtroom. Digital evidence, often referred to as electronic evidence, is defined as any relevant information that is recorded or transmitted in a digital format and can be used by a party during legal proceedings.
Amendments to the Indian Evidence Act, 1872 by Information Technology Act, 2000
In accordance with the Information Technology Act of 2000, certain provisions pertaining to electronic evidence in the Indian Evidence Act of 1872 were revised. Electronic records were to be recognized as documentary evidence in accordance with Section 3 and a special procedure were provided under Section 65A & 65B for its admissibility. The Supreme Court in its decision in Tomaso Bruno & Anr vs State of U.P. it was determined that electronic evidence plays a vital role in ensuring due process during investigations and significantly contributes to the resolution of cases.
The case of State (NCT of Delhi) v. Navjot Sandhu (Afsan Guru) initiated the application of Section 65B of the Indian Evidence Act, 1872. In cases concerning digital evidence, the Supreme Court disregarded the non-obstante provision, which explicitly affirmed the superiority of Section 65B in relation to other sections. This section was invoked to assert that printouts could serve as secondary evidence due to the impracticality of transporting original servers. Additionally, Section 63 was referenced to support the notion that printouts are mechanical reproductions and thus qualify as supplementary evidence. The Supreme Court employed these two provisions, originally intended for paper documents, while circumventing the comprehensive special procedures outlined in Sections 65A and 65B, rendering them optional. There have been conflicting court decisions regarding the appropriate method of admissibility of electronic records. On the one hand, the courts have held that Articles 65A and 65B of the IEA are merely clarifying provisions and do not prevent the general requirements, namely Articles 63 and 65 of the IEA, from being applied to electronic data when producing documentary evidence. On the other hand, the Court in Anvar P.K v. P.K Basheer & Ors. (2014) overruled the decision held in State (NCT Delhi) v. Navjot Sandhu (2005) by redefining the evidentiary admissibility of electronic evidence considering it as a complete code and its adherence with the application procedure in section 65B as necessary. This conflict in judicial opinion was resolved by the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. (2020) in favour of the latter interpretation. In the case the Court was required to hear an election petition challenging the election of Mr. Arjun Panditrao Khotkar from Jalna Legislative Assembly Constituency-101 which was based on the allegation that the nomination papers were submitted after the due date. The aim of the respondents was to submit a video recording to support their claim that the candidate filed the nomination after the stipulated time. In accordance with the order of the High Court, the Election Commission has supplied a CD with the relevant video footage. However, the Electoral Commission did not deliver the necessary certificates according to Section 65B (4), despite several requests from the Petitioner. The Court held that the primary electronic record refers to the computer utilized by the Election Commission for the initial storage of the video footage. CDs on which copies of video footage are stored are categorized as secondary copies of electronic footage. It has been held that a certificate under Section 65(4) is necessary only when such secondary copies are produced before the Court.
The submission of the original electronic record does not necessitate a certificate. It can be presented directly as evidence, provided that the individual who possesses the computer, tablet, or mobile phone testifies to and verifies their ownership or use of the device where the information was originally stored.
The Court thus elucidated that:
1.The special procedure provided in Section 65B must necessarily be followed for the admissibility and validation of electronic records.
2.Section 65B (1) distinguishes original documents and the copies made therefrom.
3.This differentiation considers original documents as primary evidence which would be admissible without satisfying any procedure mentioned in section 65B. Whereas the copies of original documents considering as secondary evidence must satisfy the conditions under section 65B.
Admissibility of Electronic Records under Bharatiya Sakshya Sanhita,2023 (Section 63)
Electronic evidences can be referred to as the data or information stored in digital form, such as e-mails, text messages, digital records, and other forms of electronic communication. Under the Bharatiya Sakshya Sanhita, 2023 electronic records are recognised as valid evidences. Digital evidence is given equal importance and consideration just like traditional forms of evidence. A thorough framework for the submission, assessment, and authentication of electronic evidence in India is provided by this act. Section 63 of the Bharatiya Suraksha Sanhita, 2023 defines the admissibility of electronic records.
Whatever may be stated in this act notwithstanding, any data found in an electronic record that is printed on paper, saved, recorded, or duplicated in optical, magnetic, or semiconductor memory generated by a computer or any communication device, or otherwise stored, recorded, or replicated in any electronic format (hereafter referred to as computer output) will be considered a document, as long as the criteria outlined in this section are satisfied concerning the information and the computer involved. This means that any proceedings may be held without the need for additional evidence to be produced, regardless of the original document’s contents or any fact stated in it that would allow direct testimony.
The following criteria must be met for the admissibility of the information:
1. The computer output that contains the information must have been generated by the computer or communication device during a time when it was routinely utilized to create, store, or process information for activities regularly conducted by the individual with legal authority over the device.
2. Throughout this timeframe, information similar to that found in the electronic record, or from which the information is derived, must have been consistently input into the computer or communication device as part of the aforementioned activities.
3. The computer or communication device must have been functioning correctly for the majority of the relevant period; if it was not, any malfunction or downtime must not have significantly impacted the electronic record or the accuracy of its contents.
4. The information contained in the electronic record must either replicate or be derived from the information that was regularly input into the computer or communication device during the specified activities.
Additionally, when, during any specified timeframe, one or more computers or communication devices, whether:
(a) operating in standalone mode;
(b) integrated within a computer system;
(c) connected to a network of computers;
(d) utilizing a computer resource that enables the creation, processing, or storage of information; or
(e) accessed through an intermediary, are consistently employed to create, store, or process information for activities regularly conducted during that timeframe as outlined in clause (a), all such computers or communication devices will be considered as a single entity for the purposes of this section. References to computers or communication devices within this section will be interpreted accordingly.
Furthermore, it is stipulated that for the purpose of providing a statement as evidence in any legal proceeding, a certificate must be presented that identifies the electronic record containing the statement, detailing how it was produced, or providing relevant information about any device utilized in the creation of that electronic record. This certificate must be signed by the individual responsible for the computer or communication device or the management overseeing the relevant activities, as appropriate.
Admissibility of Electronic Records: Indian Evidence Act, 1872 v/s Bharatiya Sakshya Sanhita, 2023
| Basis of amendments made | Indian Evidence Act, 1872 | Bharatiya Sakshya Sanhita, 2023 |
| 1.Section mentioned | Section 65A &65B | Section 63 |
| 2.Definition of document | Section 3 para 5 a document is characterized as any content articulated or represented on any material through the use of letters, numbers, symbols, or a combination of these methods. | Section 2(1)(d) adds the word “electronic and digital records” to the definition of document. |
| 3.Expands the definition of electronic records | Section 65B (1) Electronic records are characterized as any information that is printed on paper or stored, recorded, or replicated on optical or magnetic media generated by a computer. | Section 63 in its definition for electronic records includes a semi-conductor memory and it must be generated by a computer or any form of communication device.. |
| 4.Refined definition for one or more computers or communication device | Section 65B (3) defines the procedure when multiple computers or devices over a period or network are involved for the same purpose. | Section 63 of the BSA, 2023 offers a broader interpretation by incorporating devices in the following contexts: (a) in standalone mode, (b) within a computer system, (c) across a computer network, (d) on a computer resource that enables the generation of information or provides capabilities for processing and storing information, or (e) via an intermediary. |
| 5.Elaborate concept of secondary evidence | Section 63 of the Indian Evidence Act, 1872 outlines the parameters of secondary evidence. | Section 58 in BSA, 2023 widens the scope of secondary evidence by including oral admissions, written admissions, and evidence from persons skilled in examining complex documents. |
| 6.Electronic records treated as paper records | No special provision is mentioned in the IEA, 1872 which gives electronic records the same legal effect as other documents. | The BSA, 2023 has incorporated Section 61 which states the admissibility of electronic evidence is equivalent in legal effect, validity, and enforceability to that of other documents governed by section 63. |
| 7.Detailed explanation for treatment of primary evidence | Section 62 of IEA, 1872 defines the primary evidence along with two explanations where a document will be treated as primary evidence. | The BSA expands the definition of primary evidence by introducing four additional clarifications. These provisions include: 1. When an electronic or digital record is created or stored, and this process occurs either concurrently or sequentially across multiple files, each of these files is recognized as primary evidence. 2. An electronic or digital record generated from proper custody is classified as primary evidence unless there is a challenge to its authenticity. 3. In cases where a video recording is stored in electronic format while being simultaneously transmitted, broadcast, or transferred to another party, each instance of the stored recording is considered primary evidence. 4. When an electronic or digital record is saved in various storage locations within a computer system, every automated storage unit, including temporary files, is regarded as primary evidence. |
| 8.Alterations made for the submission of certificate | Section 65B (4) defines the provisions regarding the submission of certificate when electronic records are to be provided as statement in evidence. | Section 63(4) reinforces the mandatory stipulation for a certificate as specified in Section 65B (4) of the IEA. Moreover, this certificate is required to accompany the electronic record whenever electronic evidence is presented to a court. Additionally, the revised provision clarifies that the certificate may be issued by any person in charge of the computer or communication device, or by an expert, depending on the circumstances. |
Suggestions
However certain uncertainties can be pointed out. Electronic records are susceptible to infringement and alteration as the Act has not provided any safeguards to protect the electronic records as evidence. There is a high chance of the misuse of electronic records which are produced as evidence during the search and seizure and investigation process either through unintended artefacts or even manual intervention. Moreover, proper guidelines must be assigned to the authorities handling the evidence through proper chain of custody during investigation. The Home Affairs Standing Committee (2023) emphasized the significance of guaranteeing the authenticity and dependability of electronic and digital documents arises from their vulnerability to alteration. It is advisable that all electronic and digital evidence collected during an investigation be handled and processed securely, adhering to established chain of custody protocols.
The Bharatiya Sakshya Sanhita retains the provisions of distinction of evidences from primary and secondary (unless the original document has been destroyed or is held by the individual against whom the document is to be established) and the certificate authentication required for the admissibility of such electronic evidences. This creates ambiguity as it seems to override the other provisions concerning the admissibility of electronic records.
Conclusions
In the context of criminal reforms in India, addressing electronic evidence has become increasingly critical. The swift progress of technology and the widespread availability of digital devices have significantly altered the realm of criminal activity and the methods of evidence collection. The main goals of incorporating electronic evidence into criminal justice reforms are to improve the capacity of law enforcement agencies to efficiently collect, preserve, and present digital evidence in judicial proceedings.
However, the Bharatiya Sakshya Adhiniyam has marked the beginning of a new phase of clarity and comprehension concerning the acceptance of electronic evidence within Indian courts. As technology advances, it is imperative for the Indian legal system to adapt and respond effectively, integrating electronic evidence while maintaining the core principles of fairness and justice within its courtrooms.
Meghana Teresa Joji
Bharata Mata School of Legal Studies, Kerala