O.P JINDAL GLOBAL UNIVERSITY
NIDHI TIWARI
ABSTRACT
The information technology industry has made drastic developments and advancements in the last two decades. In this digital era, our lives are increasingly conducted online thus allowing us to transform how we crate, store and communicate information. We communicate through emails and social media, store our personal and financial data electronically and conduct business transactions and trade over the internet. This digital footprint that we seem to leave behind serves as a rich source of evidence that can be crucial in resolving legal matters. The growing importance of electronic evidence presents many challenges related to substantive rights and obligations, the negative power of manipulating this electronic evidence and the shift from traditional framework that was made in an age which was designed for a paper-based world. Our Indian Courts need to be able to ensure the authenticity and reliability while also ensuring that it has not been manipulated or tampered with. At the same time, they need to be able to admit this evidence in an efficient way that would help the cause of the case.
The primary focus of this research paper is on the process for admission of electronic information as legal evidence which is covered under Section 65B of Evidence Act. The paper describes what constitutes a “document” in terms of electronic information and outlines the various requirements that must be met for a certificate issued under Section 65B(4) for it to be deemed constitutionally authentic and legitimate. This research also scrutinizes at how privacy violations, problems with chain of custody, data manipulations and its tampering has the potential to make the admission for this electronic evidence difficult. Lastly, the paper delves to provide a comprehensive understanding of how the admission of evidence in Indian courts has evolved with time by thoroughly examining the legal framework and its application following the future trends.
KEYWORDS
Evidence Act, IT Act, Evidence, Electronic Evidence, Digital Evidence, Section 65B, Privacy, Mandatory Certification, Navjot Sandhu case, Anvar PV case.
INTRODUCTION
Conventional principles revolving around admission of evidence focused mainly on evidence in a physical form or information that was stored as a document or recorded on paper. However, this was in an era when the Act first came in 1872, a time when social media even as a term did not exist so when electronic media seeped into our society, it also became an integral part of our everyday lives. This boon or perhaps bane came with a lot of uncertainties as this opened gates for execution of crimes in a whole different platform and medium, thereby calling for new legislation or changes in the current one in order to accommodate this innovation. To put into simpler words, any form of legal offence taking place on the internet or digital technology is called cyber crime and any form of document that would serve as a record to help with the legal matter is called electronic evidence.
As we say, law is required for everything, there is nothing that is not governed by law and so with a new addition to the society we needed laws for the same. The laws that have been amended for including the new medium should be effective and should be uniform for all levels of judiciary so that it is easier for judges to make decisions pertaining to their admissibility. This is where another conflict rises as information technology is indeed a medium to reduce a person’s work through its automatic processes, these processes can be easily used by a wrongdoer to their advantage to fool human eyes and break laws. Tools can be used to edit documents, hide facts, tamper with data, manipulate numbers etc. It even allows an individual to go back in date and make changes, which could help in covering tracks of an offence thus questioning its reliability which would not be the case in traditional evidence because it is comparatively more difficult and more time consuming to tamper with documents in physical form. It is sufficicient to say that though a brilliant innovation, technology has given many opportunities for offences, unlike the real world, like phishing, identity theft, child pornography, hacking, etc. Thus, this called for specific law pertaining to these issues in order to curb these crimes.
This paper essentially revolves around understanding what electronic evidence is, its admissibility and to what extent. Can I present screenshots in the court? Are voice recordings, pictures, emails admissible in the court or not? These questions will be taken up throughout the paper and examined using case laws. Further, now that electronic evidence is permissible in courts, is it enough on its own or can it be used only as a secondary source to back a primary evidence, is another important topic to be looked upon.
The paper therefore first traces the history of the admissibility framework for electronic evidence in India. Only a deep analysis of the development of an admissibility framework in India will make it clear that the legislature and the courts, both of which were intrigued by these new technologies, have traditionally viewed these problems as placing the concerns of manipulability above the concerns of electronic evidence exclusion from trials. Thereafter, it focuses on three issues with regard to the legal framework of admissibility of electronic evidence: first, whether there is a need for a special framework for the admissibility of electronic evidence; second, how are we to resolve the issue of the originality and genuinity of the document; lastly, what mediums can be considered as electronic evidence, and whether they can be used only when primary in nature or could they be used as secondary resources?
RESEARCH METHODOLOGY
The present paper is of a descriptive nature, and the research is based on secondary sources for analyzing the admissibility of electronic evidence and its extent in Indian Courts. To conduct this research, reliance has been placed on doctrinal research and on secondary sources of information in the form of blogs, articles, journals, and websites.
REVIEW OF LITERATURE
- Mahek Mantri,”Validity for WhatsApp Messages as Evidence“(2024): The author in her article raises a very timely issue with regard to the evidentiary value that WhatsApp messages enjoy within the Indian courts. The development postulated by this is held in high regard by everybody because this happens to be a principal channel for communications nowadays. Case laws from this article have also been used for further understanding.
- Swaraj Paul Barooah,“Where Do We Stand on ‘Secondary Electronic Evidence’”( 2014): The author brings into the limelight certain critical questions related to the admissibility of “secondary electronic evidence” like screenshots or printouts of any digital document. The debate on the subject has been going on since the evidentiary value could be disputed without the original electronic record.
- Aradhya Sethia, “Rethinking Admissibility of Electronic Evidence In India“ (2016): The author in her paper argues that the contemporary evidentiary admissibility in India does not appear to have been fully equipped to really deal with the complexities of the digital age. The Indian Evidence Act, 1872 was framed well before the proliferation of electronic communication and storage. Sethia opines that this very act would be better re-evaluated if it has to be useful in situations when data authentication, best practices of digital forensics, and the overall changing nature of electronic evidence is concerned. Legal discussions or amendments by way of legislation or a combination of both may be necessary in this regard. Further, cases from this article have been used further been used to assert the same.
- A. Venkateswara Rao, “The Admissibility of Electronic Evidence” (2020): The Principal Junior Civil Judge in his webinar gave practical insight into the current legal standards. In view of today’s amalgamation of electronic evidence into court proceedings, understanding its parameters is very important for its effective use.
ELECTRONIC EVIDENCE
Section 79A of the IT Act explains electronic evidence as any information of probative value that is either stored or transmitted in electronic form, including computer evidence, digital audio or video, cell phones, and digital fax machines. This means that Central government for purpose of providing evidence make use of digital evidence in form of emails, internet history, computer backup, voice recordings, digital video recordings as well as photographs, digital signatures etc during the course of trials of a legal case.
Whereas Section 3 of the Indian Evidence Act defines the term “document” as including “any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Further, “evidence” has been defined in Section 3 of the Indian Evidence Act also means and includes—_all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; all documents including electronic records produced for the inspection of the Court; such documents are called “documentary evidence.” Thus, concluding from this interpretation clause, evidence that is of electronic in nature can also be referred to as a document and can be used for purpose of recording which will be used in courts because as per Chapter 5 of the Indian Evidence Act, 1872, documentary evidence has a significant role in a trial serving as the main piece of evidence.
AMENDMENTS MADE TO EVIDENCE ACT POST 2000
Section 65B along with 65A was added into the Evidence Act as an attempt to modernize and update rules in order to be inclusive of the technological developments and in order to attract companies with technologically advanced regulations. It is important to understand the context in which this amendment was made which was essentially keeping in mind the growing e-commerce and protection against crimes In this kind of trade. However, it applies to other cases as well including criminal evidence. Further, Section 65 B(2) reads out the conditions for admissibility of evidence which specifies conditions on basis of it will be ascertained whether a computer input will be admitted or not. In addition to these conditions, Section 65B (4) requires a certificate to be issued for the court to admit this evidence. This mandatory certification leads to a lot of debates which is discussed further.
AMENDMENTS MADE FOLLOWING CHANGES TO THE INDIAN EVIDENCE ACT
Evidence that can be admitted to the court can be of two kinds namely oral or testamentary and documentary as defined in Section 3 of Indian Evidence Act. However, post amendments in 2000, oral evidence can be given except when used to prove the contents of documents including electronic data under Section 59 of the Indian Evidence Act. Oral statements in form of opinion on Electronic evidence was further accommodated in Section 22A of the Act stating that oral statements on contents of electronic records is only relevant and admissible when the authenticity of the recorded document (of the electronic information) is in doubt.
The amendment of the Evidence Act also included Section 45A which states that the Examiner of Electronic Evidence’s opinion will be taken into consideration when the Court must make a decision on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form. Lastly, not all or any form of electronic evidence can be simply admitted, they must be legally recognized on basis of Section 4 of the IT Act and then further it must fulfill the conditions as per Section 65 B(2). Section 4 of the IT Act pertains to legal recognition of electronic records. It has two requirements: if a law requires that information or any other matter shall be in writing, typewritten, or in print, then, despite what the law says, that requirement shall be considered as satisfied if the information or matter either is: a. rendered or made available in an electronic form; and b. accessible enough to be used for a future reference.
KINDS OF ELECTRONIC RECORDS TO BE ADMITTED
Courts in India consider a broad spectrum of electronic records to be admitted as potential evidence. This includes digital formats like emails, text messages and social media. The key to the admissibility of such records lies on adhering to the guidelines established in the Evidence Act and the IT Act. Further we look into cases revolving around admissibility of different electronic records.
Digital Camera Photograph: As per section 2(t), a photograph clicked from a digital camera is an electronic record, which can be proved by virtue of Section 65B of the Indian Evidence Act.
In the case of Laxmipat Choraria v. State of Maharashtra, the Court held that, at the discretion of the court, a photograph is admissible as evidence if the court believed that there was no tampering done with the imaging and if it was free from suspicion. It is always admissible to prove the contents of the document, but this is subject to the listed precautions to show the authorship of the document. Detection and proof of the crime will not only become difficult but almost impossible as the conspirators started exchanging letters through pictures in place of the originals.
As a result, quite of a few of such conspiracies will remain unproven, as the most usual way is to interpret a letter, photograph it, and transmit that image. However, photographs as best evidence of writing or handwriting are only admissible when the original cannot be recovered and the photographic reproduction is accurate—not a forgery or a false copy. In the present case, there is no such offer, but the originals could not be available because of the suppression by the accused but since the judges did not wish the victims to be deprived of justice merely because they could not produce pertinent and convincing evidence, they allowed its admittance. Thus, image may be shown in court in India as it fulfilled the requirements of Section 65 B of the Indian Evidence Act.
Video/Audio Tape Recordings: In the case of Jagjit Singh v State of Haryana, the Apex court dealing with the issue referred to the admissibility of digital evidence in the shape of transcripts of the interviews telecast by television news channels. The court held it to be admissible evidence and upheld the stand placed by the speaker. The Supreme Court could not find any infirmity in the Speaker’s reliance on digital evidence reached to the conclusion that the voice of people on record of the ones taking the action. Comments of the case clearly bring out how the Indian judges were coming around to recognise and accept the validity and worth of electronic media as evidence in prosecutions. Indeed, even prior to the IT Act itself the Court had begun to admit some electronic records. In the case of Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra and Others, the court allowed for tape recordings thereby ruling that they are no different that photographs and are considered as ‘document’ only as per Section 3 of the Indian Evidence Act.
Call Records : In the case of Rakesh Kumar and Ors. Vs. State, it was observed by the Delhi High Court, while appreciating the reliance placed by the prosecution upon the call records, “Computer generated electronic records is evidence and is admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act.”
Whatsapp Messages : It has been established that electronic records could be admitted but can third party applications like Whatsapp and their content also be admissible? In State of Delhi v. Mohd. Afzal and Ors, also referred to as the Afzal Guru case, the Supreme Court of India ruled that electronic evidence is admissible in court. It has been held in the case of Ambalal Sarabhai Enterprise ltd.v KS Infraspace LLP Limited and Another, that virtual verbal communications like WhatsApp messages can be proved during trial by chief witness and cross-examination for its meaning and contents of the messages. This proved that Indian courts do recognize Whastapp messages, but their case of conflict is their authenticity and weighing related relevance of the chats against probable violation of an individual’s right to privacy.
PROBLEMS WITH MANDATORY CERTIFICATION
The first major decision of the Supreme Court relating to the interpretation of section 65B has arisen in the context of one of the most popular trials of India—Navjot Sandhu. In State (NCT of Delhi) v. Navjot Sandhu while adjudicating the case of storming the Parliament House complex and causing casualties, the printouts of call records were produced as evidence. Further, the Apex Court considered ‘auditory and spectrographic analysis’ of voice samples by expert opinion. However, the printouts were not prepared along with the mandatory certificate envisaged under section 65B(4), which arose a question whether without the conditions, the printouts could be relied upon? The Court held in affirmation and decided that even if no certificate was produced, the evidence is admissible, if it has satisfied the conditions of Sections 63 and 65 of the Indian Evidence Act.
Furthermore, this was overturned in the case of Anvar PV v PK Basheer. There was a certain CD that was used to play audios during the time of the election, copied into the computer and then into another CD. Afterwards, it was submitted in court as evidence without a certificate. The Court held that electronic records can never be admitted unless all the conditions mentioned under Section 65A and 65B are fulfilled, and other provisions cannot be invoked to introduce a secondary electronic evidence referring to the invoking of Section 63 and 65.The judgement of the Anvar case raised numerous debates. It was termed as a bad interpretation of law and further opened questions as to whether can conditions for establishing admissibility of evidence be done by way of means other than a certificate like oral evidence as per Section 63 of the Indian Evidence Act. The conditions as mentioned in Section 65B were very hard to prove. P.V. Basheer judgment has made electronic evidence very strict. It holds that even the slightest deviation under Section 65B may render the evidence inadmissible. The problem is that the law of evidence of India applies to all cases and not only to the electronic commerce. Like in some exceptional cases, such as cybercrime, it may be impossible to comply with all the requirements. For example, a cybercrime may be a one-time occurrence and not a regular activity on the computer. This strictness could render electronic evidence virtually useless in cases such as cybercrime, election fraud, or intellectual property theft. In most of these instances, regular use of computers cannot be implicated. The best the law can be seen to apply to in its present form is the area of e-commerce, where computers are engaged in continuous use for certain specified ends.
This would result in many victims being deprived of justice solely because of a lack of a certificate, such was the case in Om Prakash v State where the SC held that it is surprising that the trial Court had overlooked the above answers given by this witness completely and had rejected the entire evidence produced in this regard even though certified copies of the CDR was produced. While considering the CDRs, the Trial Court should not have been deterred by the fact that the certificate under Section 65B of the Indian Evidence Act did not accompany the same, as the witness himself was not in a position to deny the making of the above calls from his mobile phone. “Not once in his cross-examination did he suggest that the CDR was fabricated.” Further, a certificate is also no assurance as to the correctness and reliability of the contents of the business record so certified, eg where there is a manifest error evident on the face of the record. In such a case, the courts will not be able to call for additional evidence.” It was further held that in the subsequent judgment by a two-judge bench in Shafhi Mohammad vs The State Of Himachal Pradesh, the requirement under Section 65B (4) for a certificate is not always necessary. This disparity in judgments regarding the admissibility of electronic evidence and its compulsory certification was going to make it quite impossible for any future judge to take precedence in order to render judgment on the future cases.
The matter was then decided by a a Three-Judge Bench of the Hon‘ble Apex Court in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors which upheld the law laid in Anvar PV‘s case and helped in resolving the dichotomy between primary and secondary evidence and its certification. Paragraph No.72 (b) contains the relevant observations that original electronic documents don’t need a certificate (Section 65B(4)) if the owner proves they made it. For complex systems, electronic records with certificates are needed for admission in court. This clarifies a previous ruling made in the Anvar case. In a webinar by Principal Junior Civil Judge, A.Venkateswara Rao, opinionated with reference to this case that this judgment, in a manner, ended these conflicts arising from the different judgments and provided a guideline as to the practices being followed in Trial Courts regarding the admissibility of Electronic Evidences. It is a legal interpretation by the Court of the following Sections 22A, 45A, 59, 65A & 65B of the Evidence Act, which has confirmed that stored data in CD/DVD/Pen Drive is not admissible without a certificate u/s 65 B(4) of Evidence Act, and clarified that in the absence of such a certificate, one cannot avail the oral evidence to prove the existence of such electronic evidence and the expert view under section 45A Evidence Act to prove its authenticity.
Lastly the question still remains whether the certification was mandatory or not and the Court in Sun Pharmaceutical Industries Ltd v Mukesh Kumar P held that the Court, in Anvar, even if it was concerned with the susceptibility to manipulation of electronic records, could have stopped at holding that the conditions under section 65B(2) have to be mandatorily satisfied, without extending it to a mandatory requirement of certificate. It is, therefore, submitted that the requirement of a valid certificate, both textually as well as for policy purposes, should be ‘sufficient’ but ‘not a necessary requirement to prove the requirements of Section 65B(2). Interpreting this, we can say that a certificate in itself is a requirement to prove the authenticity of electronic evidence but it is not mandated.
ETHICAL CONCERNS
Throughout the paper until now we have largely only discussed implications of the textual provision in regards to admission of electronic records as evidence. However the rise of electronic evidence in Indian Courts presents other ethical dilemmas too. Key concerns include ensuring authenticity, scope for privacy breach and manipulation of data. Unlike conventional physical evidence, digital evidence has the scope to be manipulated with or forged which can lead to misuse of evidence, thereby resulting in an innocent individual being penalised or the guilty being acquitted, thereby increasing uncertainty of their validity. Also, collection of electronic evidence calls for privacy breach especially when it concerns personal communications such as social media or browsing history. Mediums like electronic mail, social networking posts and even private messages may not be relevant to a case and it makes the court add more procedures in order to admit them. This may raise questions about freedom of speech and privacy of an individual. However, legal systems still struggle with a trade-off between making use of electronic evidence for legal purposes while at the same time maintaining an individual’s privacy intact. These would therefore call for clear rules that will ensure one’s rights are safeguarded as well as guarantee authenticity.
SUGGESTIONS
The legislative amendments introduced through Sections 65A and 65B of the Indian Evidence Act have established a framework for admitting electronic evidence. However, our system was so focused on ascertaining authenticity of the document for its admissibility on basis of original or secondary when instead it could’ve focused on addressing the concerns of best evidence rule and moving towards a more flexible approach which realizes the challenges of electronic evidence and the realities of the digital age. Further clear guidelines for collection of data considering the scope of human error also should be made in order to protect an individual’s privacy and right to justice. Mere error while collection of data can cause in rejection of admittance of evidence that could result in ruining the victim’s case or penalizing the victim itself.
There is a balance that must be struck between evidentiary reliability and streamlined procedures. In this regard, to ensure that the potential of electronic evidence being utilized to its fullest is not lost, a delicate balance between these two ideals must be struck in the future. There are some areas which are of key consideration for the future:
• Certificate procedure streamlining: This could be a review of alternative procedures for establishing authenticity, presumably due to the application of either digital signatures or blockchain technology.
• Clarity on specific types of electronic evidence: Detailing clear guidelines on new emerging areas, for example, social media content and digital currency transactions.
• Capacity building for Law Enforcement and Judiciary: providing technical expertise necessary for the legal professionals to handle and analyse the electronic evidence in an effective manner.
By doing so, India will be able to ensure that the legal system remains resilient and responsive to the demands of a firmly enriched digital era while upholding justice in a predominantly electronic world.
CONCLUSION
Over the last few decades, our society has been speedily moving towards a life that entirely revolves around information technology whether direct or indirect. Thus, as technology continues to advance by the day, the Indian legal system must remain progressive in its approach to e-evidence to ensure a fair and just trial process in the digital era may it be streamlining our procedures or enabling our legal professionals to be well-versed in making decisions themselves whether a particular electronic evidence can be admitted or not. To sum it up, our main aim is to keep the development an ongoing process because the way our legal system addresses electronic evidence will inevitably affect trials conducted and hence, the larger process of delivery of justice.