Admissibility of Electronic Evidence in Indian Courts

Admissibility of Electronic Evidence in Indian Courts

Introduction

In the digital age, electronic evidence has become an integral part of legal proceedings worldwide, including in India. The rise of technology and digital communication has necessitated the inclusion of electronic records as admissible evidence in courts. Indian legal framework has evolved to address this need, incorporating provisions that govern the admissibility, relevance, and reliability of electronic evidence. The Indian Evidence Act, 1872, was amended to include electronic records under Section 65B, which outlines the criteria for their admissibility. This provision, along with various judicial pronouncements, has shaped the landscape of how electronic evidence is treated in Indian courts. The evolving nature of technology, however, continues to present challenges in terms of authentication, preservation, and interpretation of electronic data, making it a dynamic and critical area of legal practice and jurisprudence.

Meaning of Electronic Evidence in Indian Law

Electronic evidence, also known as digital evidence, refers to any information that is created, stored, transmitted, or retrieved in digital form. In the context of Indian law, electronic evidence encompasses a wide range of data, including emails, digital documents, social media posts, computer-generated records, and other forms of digital communications.

The Indian legal system recognizes electronic evidence under the Information Technology Act, 2000, and the Indian Evidence Act, 1872. Specifically, Section 2(1)(t) of the Information Technology Act defines “electronic record” as data, record, or data generated, image or sound stored, received, or sent in an electronic form or microfilm or computer-generated microfiche.

Meaning of Electronic Evidence as per Bharatiya Sakshya Adhiniyam (BSA) 2023

Electronic evidence under the Bharatiya Sakshya Adhiniyam (BSA) 2023 refers to any information that is generated, stored, transmitted, or received in digital form. This can include emails, digital documents, social media interactions, server logs, and other forms of digital data. The BSA updates and expands the definitions and rules concerning the admissibility and handling of electronic evidence in Indian courts.

The key provisions regarding electronic evidence in the BSA 2023 include:

1. Increased Scope of Secondary Evidence: The BSA broadens the definition of secondary evidence to include a wider range of digital documents and records. This ensures that various forms of electronic evidence are more easily admissible in court.
2. Section 61: This section guarantees that electronic or digital records cannot be excluded from evidence solely because they are in electronic form. This provision ensures that electronic records are treated with the same legal validity as traditional paper documents.
3. Section 65B: The provisions under this section have been updated to simplify the process of admitting electronic records. It includes the requirement for a certificate to accompany electronic records to authenticate their validity. This certificate must detail the process by which the electronic evidence was produced, ensuring its integrity and authenticity.
4. Hash Value Certification: A new requirement mandates that the hash value of electronic records be certified. The hash value is a unique identifier that helps verify that the digital evidence has not been tampered with. This adds an extra layer of security and credibility to the electronic evidence.
5. Detailed Disclosure Format: The BSA introduces a detailed disclosure format for electronic records, moving beyond mere affidavits. This format requires comprehensive details about the electronic record, including its source, the method of production, and any relevant metadata.

These changes are designed to ensure that electronic evidence is treated with the same rigor and scrutiny as other types of evidence, while also acknowledging the unique challenges posed by digital data. The updates aim to streamline legal procedures and make the handling of electronic evidence more robust and reliable in the Indian judicial system.

Application of Electronic Evidence: Old Law vs. New Law

Old Law: Indian Evidence Act, 1872 (Amended by Information Technology Act, 2000)

1. Admissibility under Section 65B:

• Requirement of a Certificate: Electronic records were admissible under Section 65B, provided they were accompanied by a certificate. This certificate needed to attest to the authenticity of the electronic record and confirm that the computer from which the data was derived was functioning properly during the relevant period.
• Scope and Limitations: This section specifically addressed the admissibility of electronic records but had stringent requirements that often complicated the process of submitting digital evidence. The certificate had to be provided by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities.
• Judicial Interpretations: The Supreme Court, in cases like Anvar P.V. v. P.K. Basheer (2014), clarified that the requirements under Section 65B were mandatory for the admissibility of electronic evidence. This ruling emphasized that without the requisite certificate, electronic evidence could not be admitted in court.

2. Primary and Secondary Evidence:

• Definitions: Electronic records were primarily treated as secondary evidence unless they could be directly produced from the primary source (such as the original hard drive or device).

3. Challenges:

• Complexity: The process was often criticized for being cumbersome due to the stringent requirements for certificates and the technical nature of the evidence.
• Authenticity Concerns: Ensuring the authenticity and integrity of electronic records posed significant challenges, as there were fewer established standards for verification.

New Law: Bharatiya Sakshya Adhiniyam (BSA) 2023

1. Admissibility and Scope under Section 61 and 65B:

• Simplified Admissibility: The new BSA ensures that electronic or digital records cannot be denied admissibility solely on the grounds of their digital nature. Section 61 explicitly states that electronic records have the same legal effect and enforceability as other documents.
• Detailed Certification Requirements: Section 65B has been expanded to provide a detailed format for the certificates that must accompany electronic evidence. This includes information about the hash value of the records, which is a unique identifier ensuring that the data has not been tampered with.
• Improved Clarity and Procedure: The BSA introduces a more structured and detailed approach to handling electronic evidence, making the process more transparent and reliable.

2. Primary and Secondary Evidence:

• Expanded Definitions: The BSA broadens the definitions of primary and secondary evidence to include a wider array of electronic records. It recognizes multiple copies and automated storage as primary evidence under certain conditions, making it easier to present electronic evidence in court.

3. Enhanced Reliability and Authentication:

• Hash Value Certification: The requirement for hash value certification adds a robust layer of security, ensuring the integrity and authenticity of electronic evidence.
• Forensic Investigation: The BSA mandates forensic investigation for serious offences, which includes the collection and authentication of electronic evidence by forensic experts.

4. Practical Impact:

• Streamlined Process: By providing clear guidelines and reducing the complexity of submitting electronic evidence, the BSA aims to streamline the judicial process.
• Better Infrastructure and Training: The new law highlights the need for improved infrastructure and training to handle electronic evidence, ensuring that the legal system can effectively manage the increasing volume of digital data in legal proceedings.

Overall, the transition from the old law to the new BSA represents a significant shift towards modernizing the legal framework to better accommodate and manage electronic evidence in the Indian judicial system. The new provisions aim to enhance the reliability, authenticity, and ease of admissibility of electronic evidence, reflecting the growing importance of digital data in legal contexts.

Case Laws on Admissibility of Electronic Evidence in Indian Courts

1. Anvar P.V. v. P.K. Basheer (2014)

• Citation: (2014) 10 SCC 473
• Key Point: The Supreme Court of India held that the requirements under Section 65B of the Indian Evidence Act are mandatory for the admissibility of electronic evidence. The court clarified that electronic records must be accompanied by a certificate as per Section 65B(4) to be admissible.
• Impact: This judgment emphasized the necessity of compliance with Section 65B, making it clear that without the requisite certificate, electronic evidence could not be admitted in court.

2. Tomaso Bruno and Another v. State of Uttar Pradesh (2015)

• Citation: (2015) 7 SCC 178
• Key Point: The Supreme Court underscored the importance of electronic evidence and its role in modern legal proceedings. The court highlighted that with technological advancements, electronic records are crucial and should be given due importance.
• Impact: This case reinforced the significance of electronic evidence in the justice system and supported its admissibility when properly authenticated.

3. State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005)

• Citation: (2005) 11 SCC 600
• Key Point: Commonly known as the Parliament Attack Case, the Supreme Court discussed the admissibility of telephone records and other electronic evidence. The court admitted electronic records as evidence even though the certificate under Section 65B was not produced, considering the context and relevance of the evidence.
• Impact: Although the court admitted electronic evidence without strict adherence to Section 65B, this case was later revisited and critiqued in subsequent judgments like Anvar P.V. v. P.K. Basheer, which mandated strict compliance with Section 65B.

Case Laws Under BSA 2023

There are no reported case laws directly addressing electronic evidence under the Bharatiya Sakshya Adhiniyam (BSA) 2023 as of now. However, the principles and case laws developed under the Indian Evidence Act, 1872, particularly Section 65B, remain highly relevant and influential.

A landmark case under the old law is Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), where the Supreme Court of India elaborated on the mandatory requirements for electronic evidence admissibility, emphasizing the necessity of a certificate under Section 65B.

Under the new Bharatiya Sakshya Adhiniyam, 2023:

• Section 63 corresponds to the old Section 65B, introducing some changes and additional requirements, such as a HASH certificate, to prove the authenticity of electronic records.
• Section 61 ensures that electronic records are not denied admissibility simply because they are digital.

While the principles of proving electronic evidence have been maintained, the new law has aimed at simplifying and broadening the scope of admissibility, including treating multiple digital copies as primary evidence.

Conclusion

The transition from the Indian Evidence Act, of 1872, to the Bharatiya Sakshya Adhiniyam (BSA) 2023 marks a significant step in modernizing the legal framework surrounding electronic evidence in India. The BSA addresses the challenges posed by digital data and aims to streamline its admissibility process.

Under the old law, Section 65B of the Indian Evidence Act, 1872, required electronic evidence to be accompanied by a certificate verifying its authenticity. This process, while necessary, was often seen as cumbersome and restrictive, as highlighted in landmark cases such as Anvar P.V. v. P.K. Basheer (2014) and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020). These cases underscored the importance of strict compliance with the certification requirements to ensure the integrity and reliability of electronic evidence.

The BSA 2023, while retaining the essence of these requirements, introduces provisions that simplify and broaden the scope of admissibility. Key updates include:

• Ensuring electronic records are not denied admissibility merely due to their digital nature.
• Introducing detailed certification requirements, including hash value verification, to enhance the security and authenticity of electronic evidence.
• Providing a more structured approach to handling electronic evidence, making the process more transparent and efficient.

As Indian courts begin to interpret and apply the BSA 2023, it is expected that the principles established under the old law will continue to guide the admissibility of electronic evidence. However, the new provisions are designed to better accommodate the complexities of digital data, reflecting the evolving technological landscape.

Overall, the BSA 2023 aims to ensure that electronic evidence is treated with the same rigor and reliability as traditional forms of evidence, thereby strengthening the integrity of the judicial process in the digital age. The impact of these changes will become clearer as new case laws emerge and the legal community adapts to the updated framework.

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