By Divyanshi Singh Choudhary ~ Symbiosis Law School, Hyderabad
It is a well-settled fact that the 21st century saw a technological insurrection which not only affected the whole world but also enraptured the Indian domain as well. As known, the use of computers is not limited to any particular organization; it is readily available at the doorstep of every individual in the contemporary era. The author recognizes the fact the Information Technology has eased the human efforts at large and has played a very crucial role in the evolution of humankind. This modern age saw an increase in the use and availability of computers, which eventually led to the growth in the technology sector per se. The advancement of the IT sector created a wide cyberspace wherein an individual could have equal opportunities in regards to access to data through the usage of high ended technology in place. The increase in the application, dependency, and use of technology has undoubtedly become one of the pertinent reasons to reform the legislations related to Information Technology and also transform the rules of admissibility of the said electronic evidence, in both, civil and criminal matters in the Indian nation1. The significant influence of the technology on the society as a whole has practically compelled the Indian lawmakers to amend the laws related to this and it is the need of the hour to address some pertinent issues related to cyberspace. At the same time, also an appreciation of digital evidence is highly demanded. The Information Technology Act 2000, and the alterations made therein are based upon the United Nations Commission on International Trade Law (UNCITRAL). The legislation in question was amended mainly to allow the admissibility of the digital evidence as we speak of.
As the changes have been incorporated, the Indian courts have started to adopt the electronic evidence more and are starting to set some case laws for the same. Judges have also begun to accept this form of evidence and are beginning to develop a perspective regarding the admissibility of such electronic pieces of evidence2. It is the utmost duty of the court of law to establish the authenticity and the relevance of the said electronic document with the case and hand, before actually producing it before the court of law. Digital evidence or electronic evidence has certain incentives and drawbacks, but the author believes that the incentives work out the limitations. The said form of evidence can’t easily be fabricated and tampered with. It is more eloquent and commodious.
Meaning of the term Electronic Evidence
The type of evidence that we are mainly dealing with is ‘electronic evidence’ or ‘digital evidence’ and even sometimes also known as ‘computer evidence’. The term digital is widely used in electronics, and its definition is inclusive of the information which is saved and dispatched in the duple form that may be further deposed in a court of law. While the term digital is too wide to have a definite meaning, the term electronic evidence comprises of the data so collected in a digital form that can be transmitted or imparted by a computer or a computer system for that matter, that too over a conveyance system, that holds power to either make or break a case in the court by the production of the evidence3. The definition in question mainly requires three elements that need to be fulfilled for the said purpose.
Firstly, the intent being that all forms of pieces of evidence are inclusive here, that can be generated or produced in a product that can be taken as a computer, even in the broadest sense possible, and not including the human brain for the moment. Secondly, the definition demand various forms of devices that are available or any form of device as a computer as we may understand, for instance, mobile phones or wireless communications would suffice the requirement. Lastly, the data must be relevant to the case in question and should be of primary importance to one of the parties of the case. The last measure is, however, restrictive to the definition in the sense that it uses relevance as the criteria and not the admissibility of the said evidence per se.
Due to the expansive broadening in e-governance throughout the various sectors, the concept of electronic evidence has advanced as a rudimentary pillar of communication and corroboration. The Government is introducing various reforms in almost all the sectors so that more and more regulation is made by electronic means. The Indian judicial system is also adapting themselves to various forms and nature of electronic evidence4 that are prevalent in the contemporary era. For instance, when the case is being taken to trial, the judges are often asked to rule on the admissibility criteria, which not only considerably changes the outcome of a civil lawsuit but also plays a decisive role in the acquittal or conviction of the accused in the case. The courts continue to struggle with the new form of evidence to some extent, and India has a long way to go for the same.
Electronic Evidence under the Indian Evidence Act, 1872
The definition of evidence under the Indian Evidence Act, 1872 primarily covers oral evidence which is the evidence of the witness, and also documentary evidence which is inclusive of electronic records to produce it before the court for the sake of inspection. Section 3 of the said legislation was duly amended from; ‘All documents produced for the inspection of the court’ was replaced with ‘All documents including electronic evidence produced for the inspection of the court.’ In section 59 which talks about documentary evidence the phrase was changed from ‘Content of documents’ to ‘content of documents or electronic records’ and Section 65A and 65B was incorporated that dealt with the c, the instant topic, the admissibility of electronic evidence.
Conventionally, the foundational rule of evidence being that the direct oral evidence may be used to prove all the concrete facts, excluding the documents. It is a well-established fact that primary evidence of the said document is the document in itself; hence it was eventually realized that there might be circumstances wherein primary evidence will not be available5. Thus, keeping this situation in mind secondary evidence in the form of certified copies was allowed under section 63 of the Indian Evidence Act.
Thus, the provision of producing secondary evidence in a court of law dilutes the criteria of the hearsay rule and is an apparent cut attempt to bridge the difficulties of producing the primary document, the original of which is not feasible and available. Hence, section 65 of the current legislation offers a unique situation when secondary evidence can be produced in place of primary evidence of the document, in case of its unavailability. The above said situation arises when the original document is disoriented or when the said document cannot be easily moved.
Interpretation of Electronic Document
As stated before, the production of secondary evidence under special conditions was permitted, but with the increase in digitization, more and more cases are being electronically gathered. In the case of Anvar P. K. vs. P.K Basheer &Ors6, the Hon’ble Supreme Court reiterated that there is a prescribed manner in which evidence is produced before the court of law. In India before the advent of the 2000 amendment, electronic information that was stored was simply treated as a document, and secondary evidence of such documents was specified through certain transcripts. This provision required an esteemed signatory to review the originality of the said documents. The same signatory would avail himself in a court of law for cross-examination. The conditions enlisted under sections 63 and 65 of the evidence act were duly met after following this simple procedure. Over the period, as the technology advanced and the storage of electronic documents expanded over time, the law had to be changed as per the requirements. Since the term electronic documents were not added to the phrase under Section 61 to 65 of the act, the intent of the legislature can be understood. It is the fundamental rule of interpretation that if the legislature decides to omit any word, it must be taken as an intentional act since the legislature is very keen while making the selection of words. This principle was reiterated in the case of Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa7 the Apex court was of the view that the Parliament does not make unnecessary omissions. If it uses a particular term, there is a rationale behind the same. The same applies to the case of making legislation; it does not make laws just
for the sake of it. Thus the legislature cannot be assumed to have done something when it is very cautious regarding every step it takes.
Section 65A of the Indian Evidence Act creates some special laws for electronic evidence, it states, and the author quotes, ‘the content of the said electronic records must be following the provisions of section 65B.’
The section 65B (2) of the instant legislation, lists some special provisions and also lay down some technological parameters upon which the copy may be used, stated herein:
- At the time of the creation of the electronic record, the computer that produced it must have been in regular use,
- The kind of information contained in the electronic record must have been regularly and ordinarily fed into the computer,
- The computer was operating properly; and,
- The duplicate copy must be a reproduction of the original electronic record8.
Section 65B (3) further states the following computers shall constitute a single computer:
- By a combination of computers operating over that period; or
- By different computers operating in succession over that period; or
- By different combinations of computers operating in succession over that period; or
- In any other manner involving the successive operation over that period, in whatever order, of one or more
- In any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers9.
Supreme Court of India on Electronic Evidences
In the case of Som Prakash v. State of Delhi10, the Hon’ble Apex court was of the view that in this contemporary era nothing can be worse than denying discoveries and not making use of the recent developments to prove to the guilt of the accused. Resorting to the conventional methods simply discourages the use of efficient scientific aid. In another case of SIL Import, USA v vs. Exim Aides Exporters, Bangalore11 the court contended that technological advancements, like the knowledge of the internet and e-mail, existed even before the amendment took place in the year 2000. Thus, making one point clear that Parliament was quite aware of the advancement in this field. In State vs. Mohd. Afzal and Ors12 the respected court said that electronic evidence is admissible in the court of law if they are proved to be related to the case and also meet the requirements given under Section 65B of the Indian Evidence Act 1872. In Amar Singh v. Union of India13, Section 65B of the act was ignored and it was held that the authenticity and authorization could not be questioned. In another case of Avnish Bajaj vs. State14 the question that was pertinently raised here was about how to draw a demarcation between the Content Provider and Internet Service Provider. Furthermore, in the case of Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke 15 the court relied upon the principle that without a credible source, there is no authenticity involved. For one to produce electronic evidence, source and authenticity are the two most important factors involved. Jagdeo Singh vs. the State and Ors16 the verdict was given by the Hon’ble High court of Delhi. The matter was about the admissibility of an intercepted phone call in a CD, which was alleged without a certificate under Section 65B of the evidence act, and hence the court held that the same was inadmissible as the criteria weren’t duly met.
Thus, to sum up, all the contentions raised by the author submits the arguments advanced. The Supreme Court mandated that the electronic evidence that has to be produced in a trial, either civil or criminal have to comply with Section 65B of the Indian Evidence Act. This step is taken to ensure the credibility and authenticity of such electronic evidence since their admissibility is questioned because they can get tampered easily. It is high time the courts take cognizance of the fact that Section 65B does not address some issues for instance, when an e-mail is sent out the sender can edit the whole mail and such things are generally not detectable.
It is a well-known fact that lots of malpractices take place in the digital world, the author is of the view that the Government should set up special investigate teams for such purposes so that the authenticity is established and it becomes admissible in the court of law17.
India, as a nation, has a long way to go before fully achieving the desired goal since it still is behind in regards to technological advancements. The admission of such evidence is a bit complex than it seems. Therefore, it is for the courts to decide whether all the requirements are fulfilled or not, originality and integrity being two of them. After reading all the cases mentioned before, the author believes that Indian courts will adopt a permanent and consistent approach in dealing with matters of admissibility of electronic evidence and will be more open to the idea of having digital evidence in the court of law.
- 1 Vivek Dubey, Admissibility of Electronic Evidence: An Indian Perspective, 4 Forensic pieces of research & Criminology International Journal (2017).
- 2 Prof LK Verma Prof LK Verma, Interpretation of Legislation and Need For Carrying Out Reforms in Judicial System, 4 Indian Journal of Applied Research, 363-365 (2011).
- 3 Daniel Latifi, Reform in Judicial System, 31 Indian Journal of Public Administration, 835-839 (1985).
- 4 Megha Nagpal, Admissibility of Electronic Evidence under Indian Law, 2 Forensic kinds of research & Criminology International Journal (2016).
- 5 Fred Gellar, The admissibility of electronic evidence in court, 3 Digital Evidence and Electronic Signature Law Review (2014).
- 6 Anvar P. K. vs. P.K Basheer &Ors. (2014) 10 SCC 473.
- 7 Utkal Contractors & Joinery Pvt. Ltd. v. the State of Orissa, AIR 1987 SC 1454.
- 8 Section 65B (2) of the Indian Evidence Act, 1872.
- 9 Section 65B (3) of the Indian Evidence Act, 1872.
- 10 Som Prakash vs. State of Delhi AIR 1974 SC 989, 1974 Cri. LJ 784, MANU/SC/0213/1974.
- 11 SIL Import, USA v vs. Exim Aides Exporters, Bangalore MANU/SC/0312/1999, (1999) 4 SCC 567.
- 12 State vs. Mohd. Afzal and Ors (2003) DLT 385, 2003(71) DRJ 17.
- 13 Amar Singh v. Union of India (2011) 7 SCC 69.
- 14 Avnish Bajaj vs. State 2008(105) DRJ 721 MANU/DE/0851/2008.
- 15 Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke MANU/SC/0040/2015.
- 16 Jagdeo Singh vs. the State and Ors. MANU/DE/0376/2015.
- 17 A.A. Venediktov and Venediktova, Court determination of the Admissibility of the Evidence obtained during investigative actions, 5 juridical scientific and electronic journals, 283-285 (2019).