Introduction
There has been a trend away from conventional ways of communication, like face-to-face chats and handwritten letters; WhatsApp is one of the most commonly used messaging apps in the world. Above mentioned conventional ways of communication have given away, which have changed the way people communicate with the innovation of WhatsApp as it is now the major form of communication for both personal and professional contacts by fact that it has billion of users.
However, this led to an increase in the number of legal procedures to use WhatsApp conversations as evidence in courts, but proving it is necessary to navigate the intricate legal criteria and technical procedures to prove the WhatsApp conversations in court.
Laws Governing Electronic Evidence
Here, “Electronic Evidence” refers to the data and information that is transmitted or received in electronic form, including emails, digital documents, text messages, social media posts, and more. The Indian Judicial System considers E-evidence as admissible and valid when certain criteria and situations are fulfilled.
The two main statutes that control the admissibility of electronic evidence in Indian Courts are: Information Technology Act, 2000 and Bharatiya Sakshya Adhiniyam 2023.
Section 63 of The Bharatiya Sakshya Adhiniyam Act 2023
This section was introduced to handle the acceptability of electronic documents as evidence.
The Information Technology Act, 2000 – Section 2(1)(t)
This section defines an electronic record as “data, record or data generated, image or sound saved, received, or communicated in an electronic form”.2
Court Admissibility of WhatsApp Messages
Recognition of WhatsApp Messages as Electronic Records
Under Indian Law, WhatsApp messages qualify as electronic records. Therefore, they come within the purview of The Bharatiya Sakshya Adhiniyam, 2023, Section 63.3 The messages must meet the specified conditions as outlined in the above sections in order to be accepted in court.
The Bharatiya Sakshya Adhiniyam’s Section 63:
Sec 63(1): A printout or a copy of a WhatsApp message can also be considered as a document under this section because it defines a document as any information that is an electronic document that is stored, recorded, printed, saved, or replicated in a magnetic medium created by a computer.
Sec 63(2): This section defines the criteria by which a computer output, including a WhatsApp message, is acceptable or admissible:
- The computer producing the output must be routinely utilized for processing or storing.
- The data or information must have been routinely input into the computer during its operation.
- The computer has to be operated correctly during the pertinent period.
- The results have to appropriately reflect the original data.
Sec 63(4): As per this section, to verify the admissibility of the electronic document, the certificate must accompany the electronic record. This certificate should:
- Point out the electronic record with the necessary details.
- Explain how the electronic record was created.
- Provide details of the device involved in the generation of the record.
- Certify that a correctly operating computer created the electronic record and that the data has not been changed.
Steps Involved In Proving WhatsApp Messages in Court:
Preservation and Collection of Evidence
The very first important step that is involved in proving the WhatsApp messages in court is to collect and preserve evidence while maintaining its integrity and validity.
- Screen Capture: It is one of the most common methods of preserving the WhatsApp chat, but screenshots alone might not be enough or sufficient unless accompanied with appropriate verification, as they can be readily altered.
- Exporting Chats: Users of WhatsApp can export their chat history to be preserved as a text file or email. Provided it is correctly verified, this data may serve as proof.
- Forensic Image: Forensic specialists can produce an exact forensic image of the mobile device containing WhatsApp messages, while this method ensures that data exists in its original form and can be forensically examined if needed.
Acquiring a Section 63(4) Certificate
It is the next very important step to obtain a Section 63(4) Certificate, which is a must for the admissibility of WhatsApp messages as evidence.
- Who can issue the Certificate: A person in charge of the operation of the equipment from which the WhatsApp messages were generated, or a person with authority over the computer or device that can issue a certificate.
- Certificate Contents: The certificate must clearly state that the data was generated by the computer during normal activity, that the device is operating correctly, and that the data has not been altered.
- Timing of Certificate: It should ideally be obtained at the time the evidence is collected. Delays in getting the certificate can raise some questions about the authenticity of the evidence.
Court Evidence Submission
The next step is to provide the WhatsApp chats and the Section 63(4) certificate to the court as evidence whenever they are available.
- Physical Submission: The court might get the printouts of the WhatsApp messages together with the Sec 63(4) certificate. Printouts should be readable, displaying all pertinent information, including timestamps, sender, and recipient details.
- Electronic or Digital Submission: In certain situations, the court could let the Section 63(4) certificate accompany digital copies of the WhatsApp chats submitted. This can involve sending the data on other digital media, like a USB disk.
Verification and Cross–Examination
During the trial, the WhatsApp communication can be questioned by the opposing side. Hence, the side providing the evidence has to be ready to prove its validity.
- Witness Cross-Examination: The one who issued the Section 63(4) certificate or who participated in gathering the evidence could be asked to testify. Their techniques for gathering, preserving, and generating the WhatsApp communications may be cross-examined.
- Forensic Study: The court may mandate a forensic study of the device or data if the authenticity of messages is disputed. This examination can confirm whether the messages were changed or tampered with.
Judicial Interpretations and Case Laws:
The Indian Judiciary has examined the admissibility of electronic evidence, such as WhatsApp conversations, in several landmark cases. These cases offer significant insights into the judicial perspective on such evidence.
State (NCT of Delhi) v. Navjot Sandhu (2005)
The Supreme Court first permitted the admission of electronic records in this instance under The Indian Evidence Act, 1872 Section 65B’s criteria (which is now mentioned under Section 63(4) of Bharatiya Sakshya Adhiniyam, 2023, as it repealed and replaced The Indian Evidence Act, 1872) without rigorous following. The court held that the printouts of electronic records could be allowed as evidence7, if a competent witness is familiar with the operation of computers and testified to their accuracy.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)
In this judgement, the Supreme Court confirmed the required character of the Section 65B certificate (Now mentioned under Section 63(4) of Bharatiya Sakshya Adhiniyam 2023) for the acceptance of electronic records.8 The Court further noted that the certificate might not be necessary if the original record is produced in the court; however, for the secondary proof, the certificate is absolutely needed.
Other Pertinent Cases:
B.I Card and Payment Services Pvt. Ltd v. Rohidas Jadhav (2018)
Bombay High Court in its judgment laid down that the WhatsApp messages accompanied by a Section 65B certificate could be admitted as evidence. The court observed that the “Blue Tick” can be considered as evidence in case that the recipient has read and received the message.10
Vikas Garg v. State of Haryana (2017)
In this case, the Punjab and Haryana High Court in its judgment relied on WhatsApp messages to convict the accused for the rape and other offences. In its order, the High Court noted that the chats served as crucial evidence for the accused’s actions.11
Proving WhatsApp Messages in Court Presents Many Difficulties:
- Technical Complexities: Collecting, maintaining, and creating electronic evidence has some complexities, and it’s essential to make sure that the evidence is not changed.
- Raised Privacy Issues: WhatsApp messages often contain private and sensitive information, and producing them before the court raises privacy concerns.
- Legal Obstacles: Obtaining a Section 63(4) certificate and meeting its requirements for admissibility in court can create obstacles.
Proving WhatsApp Messages: Best Practices
- Early collection of evidence
- Use of forensic experts
- Prepare for cross-examination
- Obtain Section 63(4) certificate promptly
Conclusion:
Establishing or proving WhatsApp messages in court is a difficult process which requires close attention to both legal and technical details. Section 63 of the Bharatiya Sakshya Adhiniyam 2023 offers the Indian legal system a clear specified path for the acceptance of such evidence. However, the process involves significant challenges including possible manipulation, technical complexity, and privacy issues.
References:
- India code, “Bharatiya Sakshya Adhiniyam, 2023” (India code, January 1, 2023) <https://www.indiacode.nic.in/handle/123456789/20063> accessed May 5, 2025
- Information Technology Act, 2000 s2(1)(t)
- Pranav Sethi, “Admissibility of CCTV Recordings as Evidence in Courts” (iPleaders, May 29, 2021) <https://blog.ipleaders.in/admissibility-cctv-recordings-evidence-courts/?noamp=mobile> accessed May 5, 2025
- Sneha Mahawar, “E-Contracts” (iPleaders, July 3, 2022) <https://blog.ipleaders.in/e-contracts/> accessed May 5, 2025
- Xperts Legal, “Admissibility of WhatsApp Chats and Emails in Court” (Xperts Legal, September 2, 2023) <https://xpertslegal.com/blog/admissibility-of-whatsapp-chats-and-emails-in-court/> accessed May 6, 2025
- State (NCT of Delhi) v Navjot Sandhu (2005) 11 SCC 600
- Dhruv Acharya, “The Rise Of Digital Evidence: Admissibility And Challenges In Indian Courts” (Lawyersarc, March 20, 2025) <https://lawyersarc.in/digital-evidence-admissibility-and-challenges/> accessed May 6, 2025
- Amritha Priya, “How Can You Prevent the Other Side from Arguing That They Did Not Receive a Notice under the Contract?” (iPleaders, June 16, 2020) <https://blog.ipleaders.in/prevent-other-side-arguing-receive-notice-contract/?amp=1> accessed May 6, 2025
- SBI Cards And Payments Services Pvt Ltd v Rohidas Jadhav (2018) 3 RCR Civil 406
- Vikas Garg v State of Haryana (2017) Cr.M. No. 23962 of 2017
- Pranav Sethi, “Admissibility of CCTV Recordings as Evidence in Courts” (iPleaders, May 29, 2021) <https://blog.ipleaders.in/admissibility-cctv-recordings-evidence-courts/?noamp=mobile> accessed May 7, 2025
