ABSTRACT
The Bharatiya Sakshya Adhiniyam, 2023 (BSA) is the novel legislation that replaces the Indian Evidence Act of 1872 from the colonial rule regarding electronic evidence within the legal landscape of India. It points to the enhanced reliance on such certificates as authentication, technological safeguards beyond these and presumed mechanisms thereof in this new statute. The study investigates the handling of technical barriers and also vagueness with the key Supreme Court and High Court judgments in light of BSA. This proposition is intended to improve the implementation of electronic evidence provisions by legislative and institutional refinements in the digital justice era. The generation and presentation of evidence in a court changed rapidly a few years ago, thanks to the advancement of technology. Now, e-evidence in the form of emails, CCTV images, call records, WhatsApp chats, and computer files are coming to play a premier role in almost every civil and criminal case. The paper focuses on the concept of electronic evidence and its admissibility in India and assesses judicial approach to such evidence. It thoroughly looks into the legal setup established in India under the Indian Evidence Act, 1872, the Information Technology Act, 2000, some of the landmark judgments, their practical hurdles, and a comparison with the US and the UK legal systems. The paper proposes to act as a conference for the presentation of the issue in its simplest terms and in a way that enhances the discourse by making suggestions for better adoption and practice of digital evidence to ensure fair and just legal outcomes in our digital age.
INTRODUCTION
The electronic record, which at one time served as only means of communication, is now information and evidence primary sources, both in civil and criminal legal proceedings from mails and instant messages to financial records, and beyond.
It has had quite a marked effect on the administration of justice. The admission, authentication, as well as assessment of such types of evidence has become one of the growing challenges faced by legal systems all over the world, including the Indian system. This is because increasingly commercial disputes, matrimonial litigation, prosecutions for cybercrime, and, to some extent, constitutional challenges have become and are becoming more electronic-based. Within regulatory compliance domains, the evidence shift has also taken on quite similar intensity because electronic records are increasingly being searched for in terms of financial, environmental, and corporate governance standards. Over the past few years, technology has turned out to be an integral part in every other aspect of our lives-from mobile to computers,
KEYWORDS: Bharatiya Sakshya Adhiniyam, Electronic Evidence, Digital Evidence, Admissibility, Forensic Evidence.
environmental, and corporate governance standards. Over the past few years, technology has turned out to be an integral part in every other aspect of our lives-from mobile to computers, from social networking to banking, almost every single activity leaves digital footprints. That is the reason why, electronic or digital evidence, has great significance in court proceedings. It refers to data of any kind that is stored or transmitted electronically. Some of the types in which it can be stored are emails, CCTV footage, social media messages, websites, digital contracts, and call logs, even though it could extend to many other forms.
Such electronic evidence can render suit across various types of matters, such as murder trials to divorce cases, cybercrimes, fraud investigations, and even property disputes. Mobile phone location data, for instance, can prove that a person was actually present at the scene of the crime. Likewise, emails between the parties can establish a contract.
However, unlike the traditional paper documents or physical items, electronic evidence can easily be altered, erased, or fabricated. In this context, the law needs to have framed rules under which such evidence can be produced in or accepted by a court. Digital records and documents were brought through amendments to the Indian Evidence Act of 1872 by the year 2000. The Information Technology Act, 2000 similarly defines electronic records and gives them legal recognition.
MEANING AND SCOPE OF ELECTRONIC EVIDENCE.
Electronic evidence refers to that information which is created, recorded, or transmitted in a digital format, and which is intended to be made available for use in legal proceedings. This includes:
Emails, instant messages such as WhatsApp and Telegram
Sound and Video recording
Digital photographs
Data on Computers and Mobile Phones
Social Media Updates
Server Log information
GPS
Call detail records (CDRs)
Digital contracts with e-signatures.
It is clear that the scope of evidence in electronic form has grown in leaps and bounds with the number of acts that humans perform online or digitally. It could lead to an accused being present at the crime scene in case of an offence. Its manifestation could include an indication of the terms of a contract in civil matters. In family law, it could include showing cruelty or misconduct
by its usage. As such, it is very pertinent to understand how the courts perceive electronic evidence.
OBJECTIVES OF ELECTRONIC EVIDENCE.
To understand the interpretation and import of electronic evidence.
- To survey the Indian Evidence Act provisions with respect to electronic records.
- To stipulate the conditions for acceptance of electronic evidence.
- To survey the judicial approach toward electronic evidence before and after the enactment of the BSA.
- To outline some of the problems encountered in dispensing justice with respect to digital evidence.
- To contrast the approach followed by the Indian legal system with that of the global standards.
- To suggest some measures for the efficient handling of electronic evidence.
COMPARISON BETWEEN IEA AND BSA
Position under the Indian Evidence Act, 1872
It was Section 65B of the Indian Evidence Act as brought in through the IT Act, 2000, which governed the admissibility of electronic records. This section is provided for:
- A certificate in terms of Section 65B (4)
- Conditions to be complied with
- Interpretation in several judgments (Anvar P.V. v. P.K. Basheer, Arjun Panditrao Khotkar)
Need for Reform: Some of the criticisms against Section 65B include:
- Unpardonable formalism
- Strict certification
- Technological illiteracy in enforcement agencies
- Exclusion of relevant evidence due to procedural improprieties
Newly amended laws in BSA 2023
The Bharatiya Sakshya Adhiniyam retains almost the entire old structure of the Evidence Act:
- The definition of electronic records is now broader Section 61 (instead of Section 65B) simplifies the admissibility of digital records.
- Introduces “digital signature,” “electronic communication” and “computer resource” in the Adhiniyam.
- Clarifies secondary evidence and metadata more clearly.
LITERATURE REVIEW
The year 2023 has ushered in a paradigm shift in the area of treatment of electronic evidence in Indian jurisprudence and has sought to address the long-standing ambiguities based on the Indian Evidence Act of 1872. Section 65A and 65B were the erstwhile governing sections for the admissibility of electronic records, under which provision for admissibility in the form of a certificate was laid down in Section 65B(4).
SECTION 2(d): It defines documents like oral and documentary evidences which also includes digital and electronic records.
However, safeguarding conditions as to how such evidentiary certificates came into play was construed by Courts in such a way so as to build in considerable judicial confusion as to its mandatory nature and under what circumstances it might have been dispensed with.
BSA 2023 seeks to address these issues by bringing together and clarifying provisions on electronic evidence. This gives clearer definitions to terms such as electronic record, computer output, etc., which get much closer to the IT Act, 2000. Presently, electronic records enjoy admissibility on the basis of provisions that allow for the assumption of inherent reliability of the digital data unless the medium of the record can prove that the record was not tampered with through hash value or digital certificate. The phraseology is also more accommodating with respect to the cases where such certification is just impracticable, as was the rule laid down by Section 65B(4) of IEA.
ADMISSIBILITY OF ELECTRONIC EVIDENCE
However, the conceptual and practical problems of distinguishing primary evidence from secondary evidence in the electronic medium remain. The BSA also does not make a complete break from this traditional division but rather places it in the digital milieu. Primary electronic evidence is the original device or medium on which the data is stored, while copies like printouts, screenshots or forwarded messages are secondary. This is never the case, however: what was classed as primary evidence is now viewed as blurry when it is replicated and made secondary. Full consideration must now accord screenshots, emails, and WhatsApp chats evidential significance in Indian courts. There has been some lack of clarity that still hangs over these issues.
One major aspect that BSA, 2023 clarifies relates to statutory presumptions concerning electronic records which can assist in shifting the burden of proof. These are all facilitative mechanisms through the Indian Evidence Act, 1872 under Sections 85A to 90A, which base the presumptions on secure digital signatures as well as regularity in records kept under proper custody. These presumptions are rebuttable: thus, while they lessen the initial threshold to reliance on electronic record by the parties as to the burden of proof of authenticity, liability for rebuttal lies on the other side in most presumptions. Most part of presumptions are rebuttable, and their reputability strikes a balance between technological convenience and the fundamental principles of fairness of trial. In addition, none of the presumptions created by the BSA are absolute, thus leaving room for judicial discretion to the point of needing an evaluation of each electronic evidence in context.
Essential Admissibility Conditions:
- There should be a record of the computer being in operation continually.
- Data was input to the computer while the usual work was in progress.
- The computer was in operation at the time in question.
- The record is an accurate and complete reproduction.
Certificate Needed:
The certificate required under Section 61(4) must be presented.
The certificate should contain:
- The description of the electronic device.
- The manner in which the record was produced.
- A statement about whether the device worked properly.
- Signature by a responsible person.
When Original is Altered:
A certificate is not required to produce before the court an original electronic device, for example, a mobile phone, or hard disk.
Legal Validity of E-signatures: Section 63
This section lays down that, wherever the signatures meet with the requisite formality under the Information Technology Act, 2000, the electronic signatures will have equal legal effect as that of hand signatures.
Presumptions under BSA
The BSA creates certain presumptions in regard to certain categories of electronic records.
For instance, it presumes an electronic agreement to be genuine unless proved otherwise if it bears a digital signature.
For secure digital signatures, the court may presume legitimacy of the document from which the signature is derived.
Section 88: Presumption of Authenticity – It presumes that the electronic record was generated by the computer in the ordinary course of activities. A sending electronic message must have reached the addressee.
Section 90: Presumptions as to Electronic Agreements – If a digital agreement is digitally signed and dated, the presumption stands by virtue of establishing a rebuttable mechanism for the presumption.
Section 92: Electronic Signature- The presumptions support the authenticity of secure electronic signatures but may be rebutted by evidence of fraudulent behavior or tampering.
These presumptions alleviate the burden of proof and facilitate the reliance on digital evidence.
Certificate Under Section 61
The certificate under section 61(4) is a technical requirement for the verification of electronic evidence.
The certificate is confirmation that a record is generated from an operational Live System under the effective supervision of a responsible person.
The certificate can either be printed or in electronic form.
It must be signed by a person having lawful dominion over the device or the data.
In the absence of these certificates, secondary electronic evidence (for instance, a copy of files) cannot be admitted for purposes of the court.
This requirement is to safeguard and protect against manipulation and assure the maintainability of truth concerning digital records.
JUDICIAL PRECEDENTS
STATE (NCT OF DELHI) V. NAVJOT SANDHU (2005 11 SCC 600)
On the same note, it could be a case of attack on Parliament. The Supreme Court accepted electronic records, such as call records, without a section 65B certificate by virtue of being admissible under the other provisions of the Evidence Act.
ANVAR P.V. V. P.K. BASHEER (2014 10 SCC 473)
This would invalidate Navjot Sandhu. Moreover, the secondary electronic evidence is confined before accepting such exception under section 65B.
SHAFHI MOHAMMAD V. STATE OF HIMACHAL PRADESH (2018 5 SCC 311)
It also said that if one party does not have access to a gadget, this party should not be denied from tendering electronic evidence without such certificate. However, some ambiguity.
ARJUN PANDITRAO KHOTKAR V. KAILASH KUSHANRAO GORANTYAL (AIR 2020 SC 4908)
This is the right ruling on this subject. A Bench of 3 Judges of the Supreme Court reiterated the concept of electronic evidence as it paved a path to the new development in the field of law and justice. Certain pointers given under this case are:
Section 65B of IEA; certification is a must for secondary electronic evidence.
Original device is produced; no certificate is required.
In case the party is unable to produce the device (that is, CCTV is with a third party), the party can request the custodian to obtain the certificate.
This judgment cleared out the uncertainties raised by the previous judgments.
RESEARCH METHODOLOGY
It means it should really be about your use of electronic evidence under the laws of admissibility when talking about how they got, retained, and produced, for example, e-mails, text messages, WhatsApp, audio and video conferencing and even CCTV cameras, as well as computer logs, etc. In India, they mainly fall under the provisions of admissibility under the Indian Evidence Act of 1872, particularly sections 65A and 65B, as amended by the Information Technology Act, 2000 and sections 61-73 of newly introduced BSA.
1. Section 65A – Special provisions
Section 65A states that what can be proved from electronic records has to be done in accordance with what Section 65B provides. It overrides the general rule of secondary evidence with respect to electronic records, special law.
2. Section 65B- Admissibility of Electronic Records
This section contains a peculiar prescription of conditions for the admissibility of electronic evidence. The conditions under section 65B(2):
- Computer had been regularly used;
- Input of information was in the ordinary course of activities;
- Computer was operating-at the time.
3. Section 61: Electronic Evidences
It denotes about that how an electronic evidence is admissible in the courts including video- audio conferencing in order to ensure free and fair trial and also focuses on having the same legal effects, validity and enforcement as of other documents in order to be admissible under doc. Evidences under BSA.
4. Section 63: Admissibilty of electronic evidences.
Those evidences are only admissible which comply to the provisions mentioned under other sections in order to be admissible in court of law.
CHALLENGES IN ADMITTING ELECTRONIC EVIDENCES.
The evidentiary needs experienced by electronic evidence on aging:
Technological Complexity
Judges and lawyers remain so technically illiterate concerning the functions of digital systems that comprehension fails about how data was created or stored.
Tampering and Authenticity
Digital evidence is subject to editing and manipulation. The much harder problem is establishing whether or not it was really original, showing just evidence whether it was tampered with or altered.
Lack of Awareness
Many police officers and investigators lack the knowledge and training required to handle electronic evidence properly and may hence make mistakes.
Getting certificates is difficult.
It is either very difficult or almost impossible to get a section 65B certificate from any of the third parties, especially telecom companies, banks, or social media.
Storage and Preservation
Storage of large electronic domains with surety against corruption or loss is extremely demanding from an infrastructural standpoint.
COMPARISON WITH INTERNATIONAL LAWS.
United States Of America
The rules governing electronic evidence in the U.S. come chiefly from the Federal Rules of Evidence (FRE). The chief points are:
- Relevant
- Authentic
- Exceptions to hearsay Courts admitted the digital evidence readily where the foundation of reliability has been laid. They laid greater importance on the expert witnesses than on formal certificates.
United Kingdom
The United Kingdom follows the Civil Evidence Act, 1995. Such documents, if shown to be relevant and to have been tampered with, are admissible in evidence. There is no requirement like Section 61, but courts generally look at the reliability of the systems used to create the evidence.
India could consider a reliability-based approach instead of rigid certificate requirements in its lessons. Expert verification and system audit trails could be relied upon a lot more.
SUGGESTIONS
Comply with the provisions of Section 61 of the Bhartiya Sakshya Adhinyam.
- The electronic record must also be accompanied by a valid certificate.
- Preserve Chain of Custody.
- Use Certified Forensic Tools.
- Ensure Integrity of Data.
- Training of Law Enforcement and Legal Professionals.
- Judicial awareness and flexibility.
- Legislative reforms.
- Simplification of certificate procedure.
CONCLUSION
The BSA 2023 is thus a momentous point in Indian evidential law, particularly regarding electronic evidence’s admissibility and probative value. Whilst the statute attempts to codify and streamline principles that have evolved through a rather fractured system of judicial discourse, it continues to find itself grappling with the ever-present tension between technological developments and procedural rigor. One can see that instead of functioning as a facilitator for the admissibility of digital evidence to protect its authenticity and integrity certificate requirements often work as a technical obstruction. Bharatiya Sakshya Adhiniyam, considered prefarable legislation given that electronic evidence will be the basis of modern litigation, was enacted in January 2016. While maintaining most of the broad principles of the Indian Evidence Act, it exercises boldness in modernizing the area of digital admissibility. There exist, however, barriers in implementation and procedural rigidity, as well as infrastructural deficiencies. A flexible interpretational model that evolves with technological progress, organized training, and firm procedural safeguards may ensure the intricate nature of digital technology does not derail justice.
REFERENCE
STATE (NCT OF DELHI) V. NAVJOT SANDHU (2005 11 SCC 600)
ARJUN PANDITRAO KHOTKAR V. KAILASH KUSHANRAO GORANTYAL (AIR 2020 SC 4908)
SHAFHI MOHAMMAD V. STATE OF HIMACHAL PRADESH (2018 5 SCC 311)
ANVAR P.V. V. P.K. BASHEER (2014 10 SCC 473)
ANJALI GOEL
GITARATTAN INTERNATIONAL BUSINESS SCHOOL
BA LLB [3RD YEAR]