In this blog post, Abhiraj Thakur, a student of NALSAR University of Law, Hyderabad writes about the various issues that surround the admissibility of electronic evidence in courts under the Indian legal system. The legislature though has recognized e-evidence but has left certain loopholes unaddressed in the procedures to be implemented in cases where e-evidence is presented.
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Why e-evidence?
The human world today is digitized. Over the course of time, technology has seeped into every aspect of human life. From setting an alarm to wake up in the morning to knowing about the latest government policies, we make use of digital resources available to us. Everything, from communication to processing to documentation has gone digital. Law has not been immune to digitization. In case of India with the ever increasing e-commerce activities and e-governance initiatives from the state, the admissibility of e-evidence in the court of law has become a pertinent issue.
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Indian law has for long, grappled with the issue of admissibility of e-evidence in the court of law. Instead of giving due regard to the increasing use of e-evidence around the world and incorporating it in the legal system, Indian courts have also remained sceptical of e-evidence, considering it to be of such nature that can easily be tampered with. Today, a large variety of e-evidences are presented before courts in India every day, ranging from storage devices such as DVD or Hard Disk to mobile SMS or even a mail or website data.
E-evidence under the Evidence Act, 1872
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Section 3 of the Indian Evidence Act, 1872 talks about what can constitute valid evidence in the court of law. Under clause 2 of the Section, it has been stated as “All documents produced for the inspection of the court.” It did not include an electronic form of evidence. However, witnessing the increase the presentation of electronic records before the court, Section 3 of the Act was amended in 2000. This was done to accommodate electronic records, and now the section reads as “All documents including electronic records produced for the inspection of the court.” Further, Sections 65A and 65B were introduced to make electronic evidence admissible in the court of law. An amendment was also done to Section 92 of the Information Technology Act of 2000.
Legislative Ambiguity
Though Section 3 of the Evidence Act was changed, no changes were made to the provisions under Sections 61 to 65 of the Act. Sections 61 to 65 deal with documentary evidence in the court of law. The provisions deal with documents or content of documents; no change was made to include electronic documents in that. Thus, the question that whether provisions enumerated under Sections 61 to 65 of Evidence Act would apply to electronic records baffled the Indian judiciary for a long time.
In the case of Utkal Contractors v. State of Orissa, this issue as to whether Sections 61 to 65 of the Evidence Act applies to electronic evidence was dealt with by the Supreme Court. The Supreme Court held that the intention of the legislature was clear for this omission to amend the provisions of Sections 61 to 65. It did not want it to be extended to electronic records. As a result, e-evidence is accepted only as a secondary form of evidence and not a primary form in Indian law.
Admissibility under the Evidence Act
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Section 65 elaborately deals with the issue of admissibility of e-evidence. As it is only a secondary form of evidence, there are a few conditions with which e-evidence is accepted as valid evidence in Indian courts. Section 65B(1) states that anything contained in the form of an electronic record if is printed on paper or stored or has been recorded can be accepted as an admissible evidence only when it satisfies certain conditions laid down in subsequent provisions of Section 65B. These conditions can be briefly put in as:
Section 65 elaborately deals with the issue of admissibility of e-evidence. As it is only a secondary form of evidence, there are a few conditions with which e-evidence is accepted as valid evidence in Indian courts. Section 65B(1) states that anything contained in the form of an electronic record if is printed on paper or stored or has been recorded can be accepted as an admissible evidence only when it satisfies certain conditions laid down in subsequent provisions of Section 65B. These conditions can be briefly put in as:
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Reliability of the source of electronic record
Section 65B(2) talks about the circumstances under which the computer from where electronic record has been produced can be deemed a reliable source. The computer needs to be of regular use, the one which was frequently used to store the information on the activity concerned. Also, the information derived from the computer must have been fed into it in the ordinary course of activity. Lastly, the computer must have been operating properly for the relevant period concerned.
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Limiting the source:
When we talk about computers, several questions may arise due to the nature of the machine, such as, when many computers are connected to each other, which one is to be taken as the source of the evidence. Section 65B(3) removes such ambiguities. Among other things, it states that group or combination of computers connected over the period in question shall be considered as a single computer for the purpose of evidence. Also, if one or more computers act in a succession of each other over the period in consideration, they are also to be considered as a single computer.
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Authorisation of the source:
The last condition that an e-evidence needs to satisfy to be admissible in courts is that of authorization or certification. Section 65B(4) states that when in any proceedings the nature of evidence is that of the electronic form, a certificate needs to be issued giving particulars of the device or anything dealing with Sub-section 2 of the Section. The certificate needs to be authorized by a person who holds a responsible official position about the particulars of the device. In most the cases, these people are IT professionals who hold certain expertise in the area of the device concerned.
Thus we see that there are many conditions which need to be fulfilled before an e-evidence can finally be accepted in the court of law. This has its advantages and disadvantages. While minimizing the possibility of falsification of evidence, many a times, it slows down the procedure making it very complex and also acts as an impediment in the course of justice.
Judicial development of e-evidence
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Indian courts have, for a long time, been facing different forms of e-evidences in numerous cases and have tussled with the admissibility of it. High courts of different states have given conflicting judgments on the issue.
In the case of Ankur Chawla v. CBI, deciding on charges of corruption, the trial court had convicted the accused through a video CD, considering it to be valid evidence. However on an appeal, the Delhi high court reversed the judgment and raised suspicions over the admissibility of compact disks (CDs) as evidence in a court of law and considering the high probability of it being tampered with and faked, held it to be inadmissible in Indian courts.
About the validity of emails as evidence, in the case of Abdul Rahman Kunji v. State of West Bengal, the Calcutta High Court held that emails satisfying conditions under Section 65B to be admissible evidence in a court of law. Even intercepted phone calls recorded and presented in a CD were considered as valid evidence in the case of Jagdeo Singh v. State and Others.
Many cases have also dealt with the necessity of such stringent conditions enumerated under clauses of Section 65B of the Evidence Act. In Dharambir v. CBI, the Delhi High Court upheld the necessity of provisions under section 65B, stating them to be for the betterment of law. The court also elaborated upon the contemporary provisions dealing with e-evidence in different countries of the world. In this regard, it is necessary to mention that in England, similar precautionary provisions as in Section 65B existed under Section 69 of The Police and Criminal Act of 1984. However, the Law Commission of England in its report among other things, reviewed Section 69 of the Act and recommended it to be unsubstantial and failing on the very grounds for which it was introduced, which was to improve the infallibility of evidence and promote justice. The Parliament of England took cognizance of the fact and Section 69 was finally repealed in the year 1999 through Section 60 of Youth Justice and Criminal Evidence Act.
The varying views surrounding section 65B of the Evidence Act have finally been settled in a recent judgment by Supreme Court. In 2014, while deciding the case of P.V Anvar v. P.K Basheer and Ors., the Supreme Court, taking a positivist line of approach held that as per the current legal framework at hand, Section 65B is very much mandatory, and the courts need to follow the procedure so enumerated in the Section. If any changes are sought for, it is the Legislature that has to take the initiative and not the courts who just follow the procedure laid down by law.
Conclusion
We thus see that the mere mention of e-evidence in the statute cannot help the cause. The procedural glitches that have been induced with the inclusion of e-evidences need to be dealt at the earliest. With changing times, law too needs to keep pace with improvements in technology. While countries like England have realized and accordingly made changes in their law to improve the efficiency of e-evidences, India still is keeping the current scheme. The courts though, on occasions have dealt with the issue, but it is the Legislature that needs to come forward.
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