How to Prove WhatsApp Messages in Court?

Communication has shifted from traditional methods like face-to-face conversations and handwritten letters to electronic platforms, with WhatsApp being one of the most widely used messaging apps globally. With billions of users, WhatsApp has become a primary mode of communication for personal and professional interactions. Consequently, the use of WhatsApp messages as evidence in legal proceedings has grown significantly. However, proving WhatsApp messages in court involves navigating complex legal requirements and technical procedures.

Governing Laws on Electronic Evidence 

Electronic evidence refers to information or data stored, transmitted or received in electronic form, including emails, text messages, social media posts, digital documents and more. The Indian legal system recognises electronic evidence as valid and admissible, provided certain conditions are met.

The admissibility of electronic evidence in Indian courts is governed by two primary statutes: the Indian Evidence Act, 1872 and the Information Technology Act, 2000.

• Section 65A and 65B of the Indian Evidence Act, 1872: These sections were introduced to address the admissibility of electronic records as evidence. Section 65A recognises electronic records as evidence and Section 65B outlines the specific conditions under which such records can be admitted in court.
• Section 2(1)(t) of the Information Technology Act, 2000: This section defines an electronic record as data, record or data generated, image or sound stored, received or sent in electronic form.

Admissibility of WhatsApp Messages in Court

Recognising WhatsApp Messages as Electronic Records

WhatsApp messages are considered electronic records under Indian law. As such, they fall within the ambit of Sections 65A and 65B of the Indian Evidence Act, 1872. For these messages to be admissible in court, they must meet the requirements set forth in these sections.

Section 65B of the Indian Evidence Act

Section 65B(1) states that any information contained in an electronic record which is printed, stored, recorded or copied in an optical or magnetic media produced by a computer shall be deemed to be a document. This means that a printout or a copy of a WhatsApp message can be considered a document, provided the conditions in Section 65B are met.

Section 65B(2) specifies the conditions under which a computer output, such as a WhatsApp message, is admissible:

• The computer generating the output must be regularly used for storing or processing information.
• The information must have been regularly fed into the computer during its operation.
• The computer must have been functioning properly during the relevant period.
• The output must reflect the data accurately.

Section 65B(4) requires that a certificate must accompany the electronic record to authenticate its admissibility. This certificate should:

• Identify the electronic record containing the statement.
• Describe the manner in which the electronic record was produced.
• Provide details of the device involved in the production of the record.
• Certify that the electronic record was produced by a properly functioning computer and that the data has not been altered.

Steps to Prove WhatsApp Messages in Court

Collection and Preservation of Evidence

The first step in proving WhatsApp messages in court is to ensure the collection and preservation of the evidence in a manner that maintains its integrity and authenticity.

• Screen Capture: A common method of preserving WhatsApp messages is by taking screenshots. However, screenshots alone may not be sufficient unless accompanied by proper authentication, as they can be easily manipulated.
• Exporting Chats: WhatsApp allows users to export chat history, which can then be saved as a text file or email. This exported data can be used as evidence, provided it is properly authenticated.
• Forensic Imaging: Forensic experts can create an exact replica (forensic image) of the mobile device containing the WhatsApp messages. This method ensures that the data is preserved in its original form and can be examined forensically if needed.

Obtaining a Section 65B Certificate

The next crucial step is to obtain a Section 65B certificate. This certificate is mandatory for the admissibility of WhatsApp messages as evidence.

• Who Can Issue the Certificate?: The certificate can be issued by a person responsible for the operation of the device from which the WhatsApp messages were produced or by a person in a position of authority over the computer or device.
• Contents of the Certificate: The certificate must clearly state that the information was produced by the computer during the regular course of activities, that the device was functioning properly and that the data has not been altered.
• Timing of the Certificate: The certificate should ideally be obtained at the time the evidence is collected. Delays in obtaining the certificate can raise questions about the authenticity of the evidence.

Submission of Evidence in Court

Once the WhatsApp messages and the Section 65B certificate are ready, the next step is to submit them to the court as evidence.

• Physical Submission: The printouts of the WhatsApp messages, along with the Section 65B certificate, can be submitted to the court. The printouts must be clear and legible, showing all relevant details such as timestamps, sender and recipient information.
• Digital Submission: In some cases, the court may allow the submission of digital copies of the WhatsApp messages, along with the Section 65B certificate. This could include submitting the data on a USB drive or other digital media.

Cross-Examination and Verification

During the trial, the opposing party may challenge the authenticity of the WhatsApp messages. The party submitting the evidence must be prepared to defend its authenticity.

• Cross-Examination of Witnesses: The person who issued the Section 65B certificate or who was involved in collecting the evidence may be called to testify. They may be cross-examined on the methods used to collect, preserve and produce the WhatsApp messages.
• Forensic Examination: If the authenticity of the WhatsApp messages is disputed, the court may order a forensic examination of the device or data. This examination can verify whether the messages were altered or tampered with.

Case Laws and Judicial Interpretations

The Indian judiciary has addressed the admissibility of electronic evidence, including WhatsApp messages, in several landmark cases. These cases provide important insights into how courts view such evidence.

State (NCT of Delhi) v. Navjot Sandhu (2005)

In this case, the Supreme Court initially allowed the admission of electronic records without strict adherence to the requirements of Section 65B. The court held that printouts of electronic records could be admitted as evidence if a competent witness familiar with the operation of the computer testified to its accuracy.

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

This landmark judgment clarified that electronic evidence must be accompanied by a certificate under Section 65B for it to be admissible in court. The Supreme Court emphasised that electronic records without the requisite certificate could not be admitted as evidence.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

The Supreme Court in this case reaffirmed the mandatory nature of the Section 65B certificate for the admissibility of electronic records. The court also clarified that if the original electronic record is produced in court, the certificate may not be required. However, for secondary evidence, the certificate is indispensable.

Other Relevant Cases

• SBI Cards & Payment Services Pvt. Ltd. v. Rohit Jadhav (2018): The Bombay High Court held that WhatsApp messages, accompanied by a Section 65B certificate, could be admitted as evidence. The court observed that the “blue tick” on WhatsApp could be considered evidence that the recipient had received and read the message.
• Vikas Garg v. State of Haryana (2017): The Punjab and Haryana High Court relied on WhatsApp messages to convict the accused of rape and other offenses. The court noted that the chats provided crucial evidence of the accused’s intent and actions.

Challenges in Proving WhatsApp Messages

• Manipulation and Tampering: One of the significant challenges in proving WhatsApp messages in court is the potential for manipulation and tampering. Messages can be edited, deleted or fabricated, raising doubts about their authenticity.
• Technical Complexities: The process of collecting, preserving and producing electronic evidence like WhatsApp messages involves technical complexities. Ensuring that the evidence is not altered during these processes is crucial but challenging.
• Legal Hurdles: Obtaining a Section 65B certificate and meeting the stringent requirements for admissibility can be a legal hurdle. The certificate must be precise and any discrepancies can lead to the evidence being rejected.
• Privacy Concerns: WhatsApp messages often contain private and sensitive information. Producing such messages as evidence in court can raise privacy concerns, particularly if the messages involve third parties who are not part of the litigation.

Best Practices for Proving WhatsApp Messages

Early Collection of Evidence

Collect WhatsApp messages as evidence as early as possible in the legal process. This reduces the risk of tampering and ensures that the evidence is preserved in its original form.

Use of Forensic Experts

Engage forensic experts to collect and preserve WhatsApp messages. Forensic imaging of devices and expert analysis can provide robust evidence that is more difficult to challenge in court.

Obtain Section 65B Certificate Promptly

Ensure that the Section 65B certificate is obtained promptly and accurately. The person issuing the certificate should have a thorough understanding of the legal and technical requirements.

Be Prepared for Cross-Examination

Be prepared to defend the authenticity of WhatsApp messages during cross-examination. This includes having a clear understanding of the technical aspects of the evidence and the legal requirements.

Maintain Privacy and Confidentiality

When dealing with WhatsApp messages as evidence, take steps to protect the privacy and confidentiality of the information. Redact sensitive information that is not relevant to the case and consider seeking protective orders if necessary.

Conclusion

Proving WhatsApp messages in court is a complex process that requires careful attention to both legal and technical details. The Indian legal framework provides a clear pathway for the admissibility of such evidence through Sections 65A and 65B of the Indian Evidence Act, 1872. However, the process involves significant challenges, including the potential for manipulation, technical complexities and privacy concerns.