Due to enormous growth in e-governance throughout the public & private sector in India, even for e-commerce activities, electronic evidence has involved into a pillar of communication, processing and documentation. Government agencies are now beginning to introduce various policies like periodic electronic filings to regulate and control different industries through electronic means. But what is e-evidence?
The type of evidence that we are dealing with has been widely described as ‘electronic evidence’, ‘digital evidence’ or ‘computer evidence’. The word digital is commonly used in computing and electronics, especially where physical-world information is converted to binary numeric form as in digital audio and digital photography.
This definition has three elements. First, it is intended to include all forms of evidence that is created, manipulated or stored in a product that can, in its widest meaning, be considered a computer, excluding for the time being the human brain. Second, it aims to include the various forms of devices by which data can be stored or transmitted, including analogue devices that produce an output. Ideally, this definition will include any form of device, whether it is a computer as we presently understand the meaning of a computer; telephone systems, wireless telecommunications systems and networks, such as the Internet; and computer systems that are embedded into a device, such as mobile telephones, smart cards and navigation systems. The third element restricts the data to information that is relevant to the process by which a dispute, whatever the nature of the disagreement, is decided by an adjudicator, whatever the form and level the adjudication takes.
This part of the definition includes one aspect of admissibility – relevance only – but does not use ‘admissibility’ in itself as a defining criteria, because some evidence will be admissible but excluded by the adjudicator within the remit of their authority, or inadmissible for reasons that have nothing to do with the nature of the evidence – for instance because of the way it was collected.
At the stage of trial, Judges are often asked to rule on the admissibility of electronic evidence and it substantially impacts the outcome of civil law suit or conviction/acquittal of the accused. The Court continue to grapple with this new electronic frontier as the unique nature of e-evidence, as well as the ease with which it can be fabricated or falsified, creates hurdle to admissibility not faced with the other evidences. The various categories of electronic evidence such as CD, DVD, hard disk/ memory card data, website data, social network communication, e-mail, instant chat messages, SMS/MMS and computer generated documents poses unique problem and challenges for proper authentication and subject to a different set of views.
Indian Evidence Act
The Evidence Act was amended by virtue of Section 92 of Information Technology Act, 2000. Section 3 of the Act was amended and the phrase – ‘All documents produced for the inspection of the Court’ were 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.
Supreme Court on Admission of E-evidence
In the case of Anvar PV vs PK Bashir & Ors., the Supreme Court noted that “there is a revolution in the way that evidence is produced before the court. In India before 2000, electronically stored information was treated as a document and secondary evidence of these electronic ‘documents’ was adduced through printed reproductions or transcripts, the authenticity of which was certified by a competent signatory. The signatory would identify her signature in court and be open to cross examination. This simple procedure met the conditions of both sections 63 and 65 of the Evidence Act. In this manner, Indian courts simply adapted a law drafted over one century earlier in Victorian England. However, as the pace and proliferation of technology expanded, and as the creation and storage of electronic information grew more complex, the law had to change more substantially.”
Under the provisions of Section 61 to 65 of the Indian Evidence Act, 1872, the word “Document or content of documents” have not been replaced by the word “Electronic documents or content of electronic documents”.
Thus, the intention of the legislature is explicitly clear i.e. not to extend the applicability of section 61 to 65 to the electronic record. It is the cardinal principle of interpretation that if the legislature has omitted to use any word, the presumption is that the omission is intentional.
The IT Act amended section 59 of the Evidence Act, 1872 to exclude electronic records from the probative force of oral evidence in the same manner as it excluded documents. This is the re-application of the documentary hearsay rule to electronic records. But, instead of submitting electronic records to the test of secondary evidence – which, for documents, is contained in sections 63 and 65, it inserted two new evidentiary rules for electronic records in the Evidence Act: section 65A and section 65B.
The intention of the legislature is to introduce the specific provisions which has its origin to the technical nature of the evidence particularly as the evidence in the electronic form cannot be produced in the court of law owing to the size of computer/server, residing in the machine language and thus, requiring the interpreter to read the same.
Section 65A of the Evidence Act creates special law for electronic evidence – The contents of electronic records may be proved in accordance with the provisions of section 65B. This section performs the same function for electronic records that section 61 does for documentary evidence: it creates a separate procedure, distinct from the simple procedure for oral evidence, to ensure that the addition of electronic records obeys the hearsay rule. It also secures other interests, such as the authenticity of the technology and the sanctity of the information retrieval procedure. But section 65A is further distinguished because it is a special law that stands apart from the documentary evidence procedure in sections 63 and 65.
Section 65B of the Evidence Act details this special procedure for adducing electronic records in evidence. Sub-section (2) lists the technological conditions upon which a duplicate copy (including a print-out) of an original electronic record may be used:
i. At the time of the creation of the electronic record, the computer that produced it must have been in regular use,
ii. The kind of information contained in the electronic record must have been regularly and ordinarily fed in to the computer,
iii. The computer was operating properly; and,
iv. The duplicate copy must be a reproduction of the original electronic record.
The Section 65B of the Evidence Act makes the secondary copy in the form of computer output comprising of printout or the data copied on electronic/magnetic media admissible.
Though, e-evidence is admissible in Courts, a strict compliance with section 65B is now mandatory for persons who intend to rely upon e-mails, web sites or any electronic record in a civil or criminal trial before the courts in India. This outlook of the Supreme Court of India is to ensure that the credibility and evidentiary value of electronic evidence is provided for, since the electronic record is more susceptible to tampering and alteration.
The admission of electronic evidence along with advantages can also be complex at the same time. It is upon the courts to see that the whether the evidence fulfils the three essential legal requirements of authenticity, reliability and integrity. After the decision by Supreme Court laying down the rules for admissibility of electronic evidence it can be expected that the Indian courts will adopt a consistent approach, and will execute all possible safeguards for accepting and appreciating electronic evidence.
Contributor: Shreya Deb (Senior Associate)