Indeed, the concept of digital evidence came in Indian court procedure after
a sudden advancement of technology. Digital evidence refers to data stored,
transmitted, or received by digital devices in any kind of civil or criminal
cases. Therefore, a changed technology has forced the legal system to update
itself according to the accommodations and regulations of such evidence.
The
current project deals with the admissibility of digital evidence in Indian
courts. It studies the legal framework, judicial interpretation, and challenges
related to the handling and authenticity of digital evidence focusing on
"Sections 65A and 65B of the Indian Evidence Act." The project further evaluates
the use of digital evidence given the judiciary decisions, considering the way
forward for filling existing gaps under the law.
Introduction
Use of evidence in legal proceedings has dramatically changed with rapid
advancement of digital technology, especially relating to the inclusion and
management of digital and electronic evidence. Earlier, "the Indian Evidence Act
of 1872" did not accommodate electronic records; hence, the digital evidence was
nothing but an unreliable hearsay. It therefore became necessary that in the
enforcement of the rules, there should be an upgrading of the legal system to
include paperless records resulting from information technology. The Information
Technology (IT) Act, 2000 gave opportunity to amendments on the Indian Evidence
Act, allowing digital evidence to be admissible in courts.
This update also encompassed "Sections 65A and 65B" of the Indian Evidence Act
that formally accepted electronic records as evidence. Section 65B specifically
specified a few conditions in which the admissibility of electronic records can
be established; that the certificate of establishing origin and integrity was to
be tendered.
These amendments brought into the legal framework of India changes
that authorized the acceptance of a wide range of digital evidence, such as
emails, digital photographs, ATM transaction logs, and files stored on digital
devices, to be considered documentary evidence. The definitions of primary and
secondary digital evidence explain them and modernize the Indian legal framework
by adapting to the increasing dependency on electronic modes of communication
and documentation.
Amendments to the Indian Evidence Act as well as evolving case law have built a
comprehensive framework for handling digital evidence. This allows the judiciary
to step in with times for technologies, while following the fundamentals of
justice, fairness, and appreciation of the evidence presented and puts before
the legal fraternity the vital function of law in ensuring correctness and
reliability of electronic documents in this ever more digital era.
Meaning Of Electronic Evidence
Electronic evidence, or digital evidence, encompasses data in binary form
from both digital and analogue sources. It refers to information created,
stored, or transmitted by computing devices or systems, excluding the human
brain. Key elements include: 1) Evidence from computers and related devices, 2)
Data from devices like analogue outputs, telecommunication networks, and
embedded systems, and 3) Relevance to the case, not the method of collection.
With the rise of e-governance and e-commerce, electronic evidence is crucial in
legal contexts. However, its admissibility poses challenges due to potential
falsification and varied authentication issues across different types of
electronic data.
The Indian Evidence Act, 1872 defined evidence as including oral evidence,
which refers to the testimony of witnesses, and documentary evidence, which
included electronic records presented for court inspection. Section 3 of the Act
was amended to replace the phrase "All documents produced for the inspection of
the Court" with "All documents including electronic records produced for the
inspection of the Court." Furthermore, 'Section 59' addressed the "Content of
documents or electronic records," and "Sections 65A and 65B" were introduced to
address the admissibility of electronic evidence.
Section 3 The definition of evidence as given in the Indian Evidence Act, 1872
covers a) the evidence of witness i.e. oral evidence, and b) documentary
evidence which includes electronic record produced for the inspection of the
court. Section 3 of the Act was amended and the phrase "All documents produced
for the inspection of the Court" was substituted by "All documents including
electronic records produced for the inspection of the Court". Regarding the
documentary evidence, in Section 59, for the words "Content of documents" the
words "Content of documents or electronic records" have been substituted and
Section 65A 65B were inserted to incorporate the admissibility of electronic
evidence.
Bharatiya Sakshya Adhiniyam 2023:
- S.15 Admission Defined: The definition of admission (Section 17 of the Evidence Act) has been changed to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance.
- S. 33. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers:
Where there is, (i) a longer statement, or (ii) a conversation, or (iii) an isolated document, or (iv) a document contained in a book, or (v) a series of letters of papers, the court has discretion to use the relevant portion of the conversation, document, books or series of letters or papers and requires the production of that portion or pages.
In other words, the evidence shall be given of only explanatory or qualifying part of the statement, document, book etc. Same is applicable to electronic record under the section. The statements made in books cannot be relied on unless supported by contemporaneous records. What evidence is to be given and to be taken is total discretion of the judge. His discretion is always guided by principles of justice, conscience and convenience.
- S. 39(2). Opinion of Examiner of Electronic Evidence: When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79 A of the Information Technology Act, 2000, is a relevant fact.
- S.61. Electronic or digital record: Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.
- Section 63 of the Bharatiya Sakshya Adhiniyam (Indian Evidence Act): Primarily addresses the admissibility of electronic records, which includes both audio and video evidence, provided certain conditions are met.
- Relevance to Audio and Video Evidence:
- Definition of Electronic Records: Section 63(1) specifies that any information contained in an electronic record (such as audio or video files) which is printed on paper, stored, recorded, or copied in optical, magnetic, or semiconductor memory produced by a computer or communication device is considered a document. Therefore, audio and video recordings produced by such means are included under this definition and can be admissible as evidence.
- Conditions for Admissibility: Section 63(2) outlines conditions that must be satisfied for electronic records to be admissible:
- The electronic record (e.g., audio or video) must have been produced during a period when the computer or device was used regularly to create, store, or process information.
- Information of the kind contained in the electronic record must have been regularly fed into the device during the relevant period.
- The computer or device must have been operating properly throughout the relevant period, or any malfunctions should not have affected the accuracy of the record.
- The electronic record must reproduce or be derived from information regularly fed into the device.
Multiple Devices:
Section 63(3) states that if multiple computers or communication devices were
used to create, store, or process information, they are treated as a single
device for the purpose of this section. This means that for audio and video
evidence, if multiple devices were involved in producing or handling the
evidence, they are collectively considered as one device in terms of satisfying
the conditions for admissibility.
Certification Requirements:
Section 63(4) requires that a certificate be submitted along with the electronic
record to prove its authenticity. This certificate should identify the
electronic record, describe how it was produced, provide details about the
device used, and address the conditions mentioned in Section 63(2). For audio
and video evidence, this would include details about the recording device and
any processing involved.
Definition of Information and Output:
Section 63(5) clarifies that information is considered supplied to a computer or
device if it is entered in any appropriate form, and a computer output is deemed
produced whether directly or through appropriate equipment. This includes audio
and video outputs produced by such devices."
The Principles Of Digital Forensics In Handling Digital Evidence
Handling digital evidence necessitates adherence to specific standards to ensure
its admissibility in court. This is due to its unique nature, as emphasized by
Olivier Leroux, who asserts that digital evidence must meet the same legal
requirements as conventional evidence, despite its electronic origin.
Moussa,
after examining various international best practices, including those outlined
by the Council of Europe, identified two core principles for handling digital
evidence: first, that such evidence must be legally obtained with appropriate
authorization; and second, that its validity must be verified by experts in
computer science and information technology. These principles are categorized
under two key concepts: authenticity and accountability.
Authenticity: Authentic gathering of digital evidence involves collection in
such a manner that the data cannot be altered or contaminated. First, all
unencrypted files are copied from the computer system and only these copies are
examined to ensure that the integrity of the original data is preserved.
Information deleted from the computer is recovered and stored securely outside
of the computer.
There are special software which also use discoveries of hidden
files and decryption of protected files for reviewing otherwise inaccessible
portions of the computers storage in order to find potentially important data.
Through all these processes, the access of the original digital evidence is
strictly kept to those qualified professionals who preserve the authenticity and
prevent tampering with it.
Another principle is Accountability, which goes about proper documentation of
every event that occurs in the collection, seizure, storage, and transfer of
digital evidence. Every step of the way is documented and available for
inspection to ensure transparency. Ideally, such a procedure would normally be
supported by a technical report, and it would be possible to explain in court
what happened in the handling of the evidence.
Because the report is
substantiated by expert testimony, it helps evaluate evidence while allowing
cross-examination so that the court understands why such findings are rendered.
This means that this "chain of custody" ensures that evidence would have been
handled responsibly by those who could be legally held accountable so that it is
secured in integrity throughout the judicial process.
Indian Supreme Court And The Electronic Evidence
The growth of electronic evidence in Indian judicial proceedings, encompassing
audio and video recordings, mirrors the growing role of technology in modern
litigation. The Indian courts had cautiously admitted audio and video evidence,
prior to formal integration with such safeguards that ensured authenticity and
relevance.
Perhaps the first was
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra,
wherein the Supreme Court regarded tape-recorded speeches as "documents" under
"Section 3 of the Indian Evidence Act". This was the case where the Court
accepted such recordings as long as they were relevant to the matter before
them, which indicated an initial acceptance of electronic evidence in legal
procedures, provided that they adhered to the general rules for documentary
evidence.
In
R.M. Malkani v. State of Maharashtra, the Supreme Court of India set
parameters upon determining such taped conversations as being admissible as
evidence if certain key conditions are met. Holding further that, before that
evidence becomes admissible in court, it must satisfy three requirements: first,
there should be direct relevance between the recorded conversation and the
matter in contention, hence directly related to legal issues involved. In
addition, the voices should be able to be clearly identified to connect the
conversation with the persons involved.
Furthermore, the authenticity of that
recording must be proved by ridding it from any possibilities of tampering,
erasure or manipulation. This is exactly what the Court had asserted that
tape-recorded conversations are a relevant fact under "Section 7 of the Indian
Evidence Act, 1872", whereby facts that explain a series of connected events are
allowed to be admitted. This case underlines how judicature has been cautious
about this new electronic evidence so that stringent criteria for authenticity
and reliability are maintained.
The admissibility of video recordings as evidence was significantly reinforced
in "Jagjit Singh v. State of Haryana", where the Supreme Court validated the use
of interview transcripts from various television channels to disqualify a
Haryana Legislative Assembly member for defection. The Court ruled that the
evidence was in the electronic form in CDs of the recorded interviews-a genuine
exercise since digital recordings could play a crucial role in the
substantiation of claims in judicial proceedings. It established that Indian
courts were learning about and appreciating digital evidence, especially if it
was relevant and trustworthy, to help legal decisions.
Although these developments were noted, courts found themselves struggling with
the legality and authenticity of recordings primarily when they were acquired
illegally. For instance, in "S. Pratap Singh v. The State of Punjab", the
Supreme Court accepted a tape-recorded conversation, although it was acquired
illegally. The court felt that the conversation was central to the case, and the
judiciary has always shown a willingness to admit otherwise dubious evidence if
it was central to the conviction process. This decision also reflected the
flexibility that Indian courts have exhibited in balancing the need for justice
with procedural technicalities, especially in cases wherein the evidence, though
illegally obtained, played a pivotal role in the outcome.
But the question of authenticity even more came to the forefront in the landmark
case of "Ratan Tata v. The Union of India & Ors," where telephone conversations
between Nira Radia and a few people who were involved in the scandal of the 2G
spectrum scam came under question regarding their admissibility in court. The
conversations, recorded during the government-authorized investigation, cast
legal questions of possible rights of privacy against public interest.
Although
there were enough reasons for questioning the circumstances of their creation,
the Supreme Court accepted them and counted them as evidence once it determined
that since they have been authorized, they are thus lawful and pertinent to the
case at hand. It was the case that showcased the increasing conflict of private
interests versus the interest of the state in carrying out its investigation,
and the recording of electronic evidence goes directly in the middle of these
conflicting rights.
Arjun v. Kailash added further clarity on the admissibility of electronic
evidence under legal law. The central issue here was regarding the admissibility
of video footage in an election petition. This case contested a candidates
election after it was alleged that his nomination papers were submitted beyond
the deadline stipulated under the law. In its evidence, it relied on video
recordings from the Election Commission.
Even without affixing the certificate
under "Section 65B(4) of the Evidence Act," the High Court accepted the video
recording based on the deposition of the Election Commission officer who
attested that the records were genuine. This move sparked controversy as it
revolved around the interpretation of "Section 65B(4)," wherein a certificate
must accompany the electronic evidence if it is to be considered sound and
valid.
This judgment of the Supreme Court by Justice Nariman further defined an
important distinction between the original electronic record and its secondary
copies. A certificate under "Section 65B(4)" would be relevant only when
secondary copies - such as printouts or CDs were in question. Appellants
contention that the secondary electronic evidence would be inadmissible if no
certificate was issued under Section 65B of the Act, has been clarified by the
law, in that if the original electronic record, like this video recorded on the
Election Commission computer, is available and authenticated by the person
responsible for the storage, no certificate is required and hence, is admissible
under Section 65B.
Justice Narimans judgment in Arjun v. Kailash came in the same line of
reasoning as that in the earlier judgment in
Anvar v. Basheer, which really
changed the face of electronic evidence treatment in India. In Anvar, the Court
held that Section 65B, introduced by the Information Technology Act of 2000,
amounts to a complete code regarding the admissibility of electronic evidence.
Section 65B accordingly made compliance absolutely necessary, and other general
provisions such as Sections 63 and 65 of the Evidence Act-the sections which
governed secondary evidence generally-could not be relied upon to circumvent
compliance. This brought the principle that electronic evidence requires special
safeguards to ensure its integrity as electronic records are inherently
vulnerable to manipulation and falsification.
Justice Nariman further pointed out that Section 65B places procedural
compulsions on electronic evidence, and oral evidence as to the contents of the
electronic record is not permissible unless the strict provisions of Section 65B
are satisfied. This is necessary lest tampered or altered evidence creeps into
the judicial records by saying that a digital record, including video and audio
recordings, cannot be called for strict scrutiny. The judgment also introduces a
layer of protection by admitting the oral evidence of the authenticity of the
original electronic record once admitted properly, under Section 22A of the
Evidence Act.
Video and audio recordings have emerged as a strong form of evidence in Indian
courts with both the judiciary recognizing their potential and their risks. The
cases of Jagjit Singh, Arjun v. Kailash, and Anvar v. Basheer reflect a
judiciary that is increasingly accommodating digital evidence but insisting on
rigorous safeguards to ensure fairness and reliability.
The inclusion of
"Sections 65A and 65B of the Indian Evidence Act" is indeed a significant step
forward as regards the legal treatment afforded to electronic records and audio
and video evidence in particular, wherein such material would be admissible only
under conditions of ensuring authenticity. Such provisions further go in with
the rationale of ensuring that the advancement of technology had to be balanced
with legal safeguards in order to protect the integrity of judicial proceedings
from breaches in the digital age.
Challenges To Authenticity Of Electronic Evidence
Authenticating electronic evidence presents several challenges that impact its
reliability and admissibility in court. Key issues include the potential
alteration or manipulation of records between their creation and court
presentation, and the reliability of the software that generated them.
Identifying the author of digital documents like emails or SMS can be difficult,
especially without clear links to the individual. Social media evidence further
complicates matters, as authorship can be ambiguous. Access control issues arise
when multiple individuals use the same device or network, complicating the
attribution of actions or communications. Additionally, cloud computing
introduces challenges with data storage across jurisdictions and ensuring
point-in-time accuracy.
Effects Of Considering Electronic Evidence As Primary Evidence Or Direct
The admissibility of electronic evidence under "Sections 65A and 65B of the
Indian Evidence Act" has also blurred the traditional distinction between
primary and secondary evidence. While such distinctions still apply to physical
documents, electronic evidence, due to its digital nature, is treated as primary
evidence despite being reproducible only through printouts or CDs. This shift
has proven particularly beneficial in criminal prosecutions, where electronic
evidence, such as transcripts of internet transactions, plays a pivotal role, as
seen in high-profile cases like "State (NCT of Delhi) v. Navjot Sandhu" and the
"Ajmal Kasab case."
However, the risk of manipulation of electronic records remains a concern,
though advances in computer forensics provide tools to detect tampering. The
broad scope of "Section 65A and 65B", potentially encompassing any device with a
computer chip, has opened the possibility for a vast range of evidence to be
admitted, raising practical and ethical concerns. The Supreme Court, for
instance, has ruled against the admissibility of narco-analysis results, citing
their violation of "Article 20(3) of the Constitution". Each new form of
technology used to produce evidence must, therefore, be carefully examined for
its constitutional and legal implications before being permitted in court
proceedings.
Critical Analyses
In civil or criminal proceedings before the Indian courts, parties applying to
advert to emails, websites, or any electronic record before the Indian Courts
have to strictly comply with "Section 65B of the Indian Evidence Act." The
Indian Supreme Courts stand tries to safeguard the reliability and evidentiary
value of electronic documents, which are more easily tampered with and
manipulated. Judge Kurian in a judgment has observed that even electronic
data-based trials would commit errors if appropriate measures are not provided.
Electronic documents tamper, alter, transpose and even excise much more easily
while taking the flow into consideration. Consequently, courts must not rely
purely on documents created from computers as they may be sensitive to such
alterations. By making an assumption that electronic evidence created in the
normal course of events by an individual not a part and parcel of the
proceedings and beyond the control of the proponent bears prima facie
authenticity, an amendment to the Indian Evidence Act can help lessen such
dangers.
It would go a long way toward reducing the risk of manipulation if digital
records were made by a party whose interests are adverse to those of the record
proposer and if the record were used against the adverse party. As a matter of
fact, it is said that if an uninterested party knew the record had been tampered
with, it would not certify it as authentic.
The law must also imaginatively address the proponents duty of testifying about
the documents authorship, whether it was changed after it was created, the
dependability of the software used to create it, and its completeness. Further,
courts need to be aware that data can easily be falsified or changed and that
"Section 65B" does not fully account for those possibilities.
For instance, the sender may change the contents of a forwarded e-mail and the
recipient may even be unaware of that. Hence, third-party certificate cannot
ensure document authenticity every time. However, the digital age has raised
some issues of great importance that have raised questions about the
truthfulness of electronic evidence, such as information forgery and masquerade.
This casts doubt over the creation and communication of electronic messages and,
in particular over anyones ability to assume the name of the author. A prudent
course of action might be for the government or the courts to put together a
panel of experts in digital evidence whose task would be to assist the courts in
establishing whether such electronic documents are authentic.
India is way behind the rest of the world in terms of this development and has
substantial challenges concerning the admission as well as scrutiny of
electronic evidence. Even though the burden on the individuals who favour
electronic records has decreased following amendments, still the amendments are
far from being flawless. India still does not have a proper mechanism to ensure
authentication of electronic records and still remains vulnerable to tampering
by other hands, that may get access to their servers or storerooms.
Though electronic evidence offers several advantages, its admissibility remains
a complex issue. The courts have to determine whether such evidence is
admissible under the three fundamental legal requirements of integrity,
reliability, and authenticity. In the wake of the Supreme Court ruling in "Anvar
v. Basheer," it is expected that Indian courts will take a uniform stance,
laying down the required protections for the admission and assessment of such
evidence, clearly laying down guidelines on principles governing the
admissibility of electronic evidence.
However, there is a good-sized chink in Indian law. It remains ambiguous on when
to start investigating based on some digital content produced-chats or
pictures-without even determining relevance or genuineness of evidence to prima
facie make a criminal case. The recent Delhi Boys Locker Room case where the
police have arrested the alleged culprits before the forensic report has come
out is an example of this lacuna.
It was later verified that the one responsible for the incident was the
complainant herself. That would mean verification from the experts of digital
evidence should also be done before presenting it to the law enforcement
agencies, whether in criminal or civil cases. In civil cases, such as consumer
protection or digital contracts, there should be verification from the experts
about authenticity and relevance of electronic evidence before allowing it in
court.
In the opinion of the author, independent authentication and verification by an
independent authority regarding electronic and digital evidence are absolutely
necessary. Such a body will offer detailed reports, which would hold opinions on
whether the evidence brought before them is original or it has been physically
created or engineered using sound mixers or Photoshop manipulation. The
credibility and reliability of electronic evidence in Indian courts of law will
substantially improve if such a system were in place.
Recommendations
The safeguarding of electronic evidence can only be effective if several main
steps are as follows:
First, use write-blocking devices during data collection to prevent any changes.
Thereafter, record everything very carefully and ensure that all steps involved
in the process are adequately documented and recorded, including chain of
custody. Store the evidence securely; apply tamper-evident seals where necessary
and maintain a controlled environment to prevent unauthorized access. Access
shall be strictly limited to authorized personnel, with strong authentication
methods, and it should also be periodically checked to verify compliance.
All data should be encrypted in transit, as well as at rest, with encryption
keys stored separately. Copies of evidence should be made regularly so that
evidence is not lost due to hardware failure or accidental deletion, and
accepted digital forensic tools should be used in the manipulation and analysis
of data in such a way that it would least alter evidence.
Evidence should be handled as little as necessary, while ensuring that personnel
involved have thorough training on the handling of evidence, kept abreast of the
latest techniques and technologies. Establish and enforce standard operating
procedures for handling evidence, regularly updating these processes for new
technologies and legal standards. Use qualified digital forensics professionals
and best practices, and invest in ongoing training from these experts for
especially complex cases. This ensures adherence to best practices and these
experts are consulted on the specific needs of a case in respect of
admissibility of electronic evidence.
References:
- The Indian Evidence Act, 1872
- Bharatiya Sakshya Adhiniyam, 2023
- Batuk Lal : The law of Evidence
- Ratanlal & Dhirajlal : The law of Evidence
- International Journal of Law, Management and Humanities, Vol. 2. Available at: https://heinonline.org/HOL/Page?handle=hein.journals/ijlmhs2&div=17.
- Admissibility of Electronic Evidence: An Overview. Forensic Research & Criminology International Journal, Vol. 4, 2022. Available at: https://d1wqtxts1xzle7.cloudfront.net/92593763/FRCIJ-04-00109-libre.pdf?1666027292.
- https://heinonline.org/HOL/Page?handle=hein.journals/ijlmhs2&div=17&g_sent=1&casa_token=&collection=journals
- A Comparative Analysis of Admissibility and Relevance of Electronic and Digital Evidence in Criminal Cases (2022) https://ijirl.com/wp-content/uploads/2022/05/A-COMPARATIVE-ANALYSIS-OF-ADMISSIBILITY-AND-RELEVANCE-OF-ELECTRONIC-AND-DIGITAL-EVIDENCE-IN-CRIMINAL-CASES.pdf
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