To keep pace with the rapid developments in technology, the legislature enacted the Information Technology Act, 2000 and amended the Indian Evidence Act, 1872 in 2016 to recognize and include electronic records as admissible evidence in dealing with cases of cyber crime. Evidence law in India is categorized into Primary and Secondary Evidence, primary evidence being the original, and secondary evidence being any number of copies or reproductions of the original. The distinction serves to impose on secondary evidence a higher threshold of authenticity in comparison to primary evidence in order to filter out any miscreants who may tamper with evidence. The general rule of law of evidence is that when primary evidence (i.e. the original) is not available, secondary evidence (i.e. copies) is not admissible.
The principle governing primary and secondary evidence is applicable to electronic evidence too. While the device that produces the electronic record is primary evidence, any reproduction of such electronic record (print outs, soft copy) is secondary evidence. However, due to the complexities associated with adducing primary electronic evidence (since data in an electronic device is stored on magnetic medium, and in the case of data on online servers which becomes inaccessible as the servers cannot possibly be moved into court), this general rule that secondary evidence is only admissible when primary evidence is available is relaxed.
All electronic documentation, therefore, falls under the category of secondary evidence. Owing to the nature of electronic records and their susceptibility to tampering, courts have adopted stringent measures while evaluating the authenticity, reliability, and relevance of all forms of electronic records, including chats on social messaging platforms, chat engines, and traditional electronic records such as e-mail. The slightest doubt that such record may have been tampered with is sufficient for courts to reject its admissibility altogether.
In the age of digitisation and increasing reliance on computerised records in judicial proceedings, the SU has held that the requirement of a certificate to make an electronic evidence admissible is not mandatory “wherever interest of justice so justifies”.
The top court’s clarification on section 65B of Indian Evidence Act which deals with admissibility of electronic evidence in court proceedings, will have an impact on criminal trials, where an increasing number of call details records, CCTV footage, mobile video recordings and CDs are being relied upon.
Interpreting section 65B(4) of the Evidence Act, a bench of Justices A K Goel and U U Lalit said the provision should be applied only when such electronic evidence is presented by a person who is in a position to produce such certificate. Section 65(B) of Indian Evidence Act says that electronic records needs to be certified by a person occupying a responsible official position for being admissible as evidence in any court proceedings.
Current law relating to the admissibility of electronic documentation of different kinds still has a few issues that remain unresolved. Questions relating to the authorship of the certificate and clarity on the procedure for preserving and adducing more modern forms of electronic documentation in court are being debated, and an authoritative precedent on these grey areas is awaited. However, the onus is on individuals to be aware of the existing legal protection granted to electronic records. With new laws being drafted on personal data and information technology and the increasing number of disputes before courts relying on electronic records as evidence, the evolution of standard practice and procedure to be adopted in relation to preserving, admitting, and proving electronic records in court should soon get clarity.
Section 65B – Admissibility of Electronic Records
Sec. 65B(1): Notwithstanding anything contained in this Act, any information contained in an electronic record –
- which is printed on a paper, stored, recorded or
- copied in optical or magnetic media
- produced by a computer
- shall be deemed to be also a document, if the conditions mentioned in this section are satisfied
- in relation to the information and
- computer in question and
- shall be admissible in any proceedings, without further proof or production of the original,
- as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
- The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;
- Information was fed in computer in the ordinary course of the activities of the person having lawful control over the computer;
- The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;
- Information reproduced is such as is fed into computer in the ordinary course of activity.
The following computers shall constitute as 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 computers and one or more combinations of computers,
Regarding the person who can issue the certificate and contents of certificate, it provides the certificate doing any of the following things:
- identifying the electronic record containing the statement and describing the manner in which it was produced;
- giving the particulars of device
- dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
It has thus been seen that with the increasing impact of technology in everyday life, the production of electronic evidence has become a necessity in most cases to establish the guilt of the accused or the liability of the defendant. The shift in the judicial mindset has occurred mostly in the past twenty years and most legal systems across the world have amended their laws to accommodate such change.
In India, all electronic records are now considered to be documents, thus making them primary evidence. At the same time, a blanket rule against hearsay has been created in respect of computer output. These two changes in the stance of the law have created paradigm shifts in the admissibility and relevancy of electronic evidence, albeit certain precautions still being necessary. However, technology has itself provided answers to problems raised by it, and computer forensics ensure that manipulations in electronic evidence show up clearly in the record. Human beings now only need to ensure that electronic evidence being admitted is relevant to the fact in issue and is in accordance with the Constitution and other laws of the land.
Author Details: Aditi Yaduvanshi