Initiation of the present century saw a technological revolution which enthralled not only India but showed its footsteps, all over the world. The use of computers is not limited to established organizations or institutions but available to every individual at the swipe of their finger. Information Technology has eased out almost every humanized action. In this age of the cyber world, as the application of computers became more popular, there was an expansion in the growth of technology. The evolution of Information Technology (IT) gave birth to the cyberspace wherein internet provides equal opportunities to all the people to access any information, data storage, analyse them etc. with the use of high technology. This increasing reliance on electronic means of communications, e-commerce and storage of information in digital form, as well as the legal recognition of electronic records and electronic signatures by the virtue of the enactment of Information Technology Act, 2000 has most certainly caused a need[i] to transform the law relating to information technology and rules of admissibility of electronic evidence both in civil and criminal matters in India. The proliferation of computers and the influence of information technology on society as a whole, coupled with the ability to store and amass information in digital form have all necessitated amendments in Indian law to incorporate the provisions on the appreciation of digital evidence. The Information Technology Act, 2000 and its amendment are based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce. The Information Technology (IT) Act 2000 was amended to allow for the admissibility of digital evidence. An amendment to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker's Book Evidence Act 1891 provides the legislative framework for transactions in the electronic world.[ii]
With the dynamic changes that took place in the Indian legal system, there was a need to develop the reliance of the 'electronic evidence' which includes insight regarding the admissibility of such evidence, and the interpretation of the law in relation to the manner in which electronic evidence can be brought and filed before the Hon'ble courts of law.
Briefly knowing, the Digital evidence or electronic evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial. Before accepting digital evidence, it is vital that the determination of its relevance, veracity and authenticity be ascertained by the court and to establish if the fact is hearsay or a copy is preferred to the original. Digital Evidence is 'information of probative value that is stored or transmitted in the binary form'. Evidence is not only limited to that found on computers but may also extend to include evidence on digital devices such as telecommunication or electronic multimedia devices. The e-EVIDENCE can be found in e-mails, digital photographs, ATM transaction logs, word processing, documents, instant message histories, files saved from accounting programs, spreadsheets, internet browser histories databases, Contents of computer memory, Computer backups, Computer printouts, Global Positioning System tracks, Logs from a hotel's electronic door locks, Digital video or audio files. Digital Evidence tends to be more voluminous, more difficult to destroy, easily modified, easily duplicated, potentially more expressive and more readily available.[iii]
Indian Evidence Act and Electronic Evidence: Tracing Relation between them
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.[iv]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.[v]
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. Traditionally, the fundamental rule of evidence is that direct oral evidence may be adduced to prove all facts, except documents. The hearsay rule suggests that any oral evidence that is not direct cannot be relied upon unless it is saved by one of the exceptions as outlined in sections 59 and 60 of the Evidence Act dealing with the hearsay rule. However, the hearsay rule[vi] is not as restrictive or as straightforward in the case of documents as it is in the case of oral evidence. This is because it is settled law that oral evidence cannot prove the contents of a document, and the document speaks for itself. Therefore, where a document is absent, oral evidence cannot be given as to the accuracy of the document, and it cannot be compared with the contents of the document. This is because it would disturb the hearsay rule (since the document is absent, the truth or accuracy of the oral evidence cannot be compared to the document). In order to prove the contents of a document, either primary or secondary evidence must be offered.
While primary evidence of the document is the document itself[vii], it was realized that there would be situations in which primary evidence may not be available. Thus, secondary evidence in the form of certified copies of the document, copies made by mechanical processes and oral accounts of someone who has seen the document, was permitted under section 63 of the Evidence Act for the purposes of proving the contents of a document. Therefore, the provision for allowing secondary evidence in a way dilutes the principles of the hearsay rule and is an attempt to reconcile the difficulties of securing the production of documentary primary evidence where the original is not available. Section 65 of the Evidence Act sets out the situations in which primary evidence of the document need not be produced, and secondary evidence - as listed in section 63 of the Evidence Act - can be offered. This includes situations when the original document
- Is in hostile possession.
- Or has been proved by the prejudiced party itself or any of its representatives.
- Is lost or destroyed.
- Cannot be easily moved, i.e. physically brought to the court.
- Is a public document of the state?
- Can be proved by certified copies when the law narrowly permits; and
- Is a collection of several documents?[viii]
This is the way how the admissibility and proving of different forms of evidence took place. To find a clear-cut explanation regarding admissibility of electronic evidence, a peer review needs to be made on the already existing provisions and judicial precedents in relation to the same.
Supreme Court and Electronic Evidence (Documents): Its Critical Appraisal
As documents came to be digitized, the hearsay rule faced several new challenges. While the law had mostly anticipated primary evidence (i.e. the original document itself) and had created special conditions for secondary evidence, increasing digitisation meant that more and more documents were electronically stored. As a result, the adduction of secondary evidence of documents increased. In the landmark case of Anvar P.K. v. P.V. Basheer[ix], 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. It is well settled that the Legislature does not use any word unnecessarily.[x] In this regard, the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa[xi] held that '...Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislationÍ¾ nor indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily.'
In Som Prakash vs. State of Delhi[xii], the Supreme Court has rightly observed that 'in our technological age nothing more primitive can be conceived of than denying discoveries and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific aids to prove guilt.' Statutory changes are needed to develop more fully a problem-solving approach to criminal trials and to deal with a heavy workload on the investigators and judges. In SIL Import, USA v. Exim Aides Exporters, Bangalore[xiii], the Supreme Court held that 'Technological advancement like facsimile, Internet, e-mail, etc. were in swift progress even before the Bill for the Amendment Act was discussed by Parliament. So, when Parliament contemplated notice in writing to be given, we cannot overlook the fact that Parliament was aware of modern devices and equipment already in vogue.'
Moreover, recently the Apex Court in the landmark judgment of Shafhi Mohammad v. State of H.P.[xiv] at page 808 quoted
'21.We have been taken through certain decisions which may be referred to. InRam Singhv.Ram Singh[Ram Singhv.Ram Singh, 1985 Supp SCC 611], a three-Judge Bench considered the said issue. English judgments inR.v.Maqsud Ali[R.v.Maqsud Ali, (1966) 1 QB 688 : (1965) 3 WLR 229 : (1965) 2 All ER 464 (CCA)] andR.v.Robson[R.v.Robson, (1972) 1 WLR 651 : (1972) 2 All ER 699 (CCC)] and American Law as noted inAmerican Jurisprudence2d (Vol. 29) p. 494, were cited with approval to the effect that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence was held to be admissible subject to safeguards adopted by the Court about the authenticity of the same. In the case of tape-recording, it was observed that voice of the speaker must be duly identified, accuracy of the statement was required to be proved by the maker of the record, possibility of tampering was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant…..
29.The applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65-B (4) is not always mandatory.
30.Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such a party cannot be required to produce certificate under Section 65-B (4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies.
It is clear that the admission of electronic evidence is the norm across all jurisdictions, rather than the exclusion. Along with advantages, the admissibility of electronic records can also be complex – although some jurisdictions have imposed the requirements regarding admissibility as in India. It is, thus, upon the 'keepers of law', the courts to see that the correct evidence is presented and administered so as to facilitate the smooth working of the legal system. Sound and informed governance practices along with scrutiny by the courts must be keenly observed todetermine whether the evidence fulfils the three essential legal requirements of authenticity, reliability and integrity. Hopefully, with the Supreme Court having re-defined the rules, the Indian courts will adopt a consistent approach and will execute all possible safeguards for accepting and appreciating electronic evidence. And for the same, it is rightly said,
'When making decisions about people, stop confusing experience with evidence. Just as owning a car doesn't make you an expert on engines, having a brain doesn't mean you understand psychology.'[xv]
[i] Shodhganga, Introduction: Need for Enactment of Information Technology Act 2000, SHODHGANGA (Mar. 23, 2018, 02:56 PM), http://shodhganga.inflibnet.ac.in/bitstream/10603/7829/16/16_chapter%207.pdf.
[ii] Adv. Prashant Mali, Electronic Evidence/ Digital Evidence & Cyber law in India, LINKED IN (Mar. 23, 2018, 02:45 PM), https://www.linkedin.com/pulse/electronic-evidence-digital-cyber-law-india-adv-prashant-mali-.
[iii] Vivek Dubey, Admissibility of Electronic Evidence: An Indian Perspective, MEDCRAVE (Mar. 23, 2018, 03:09 PM), http://medcraveonline.com/FRCIJ/FRCIJ-04-00109.pdf.
[iv] The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872, Section-3.
[v] As amended by Information Technology Act, 2000, No. 21, Acts of Parliament, 2000, Section-92.
[vi] The Legal Blog, 'Hearsay' Evidence: The Law, LEGAL BLOG (Mar. 23, 2018, 04:23 PM), http://www.legalblog.in/2011/01/hearsay-evidence-law.html.
[vii] The Indian Evidence Act, 2000, Section-62, supra 10.
[viii] Stephen Mason, supra 7.
[ix] Anvar P.K. v. P.V. Basheer, (2014) 10 S.C.C. 473 (India).
[x] Prashanti, E-Evidence in India, LEGAL SERVICES INDIA (Mar. 23, 2018, 05:59 PM), http://www.legalservicesindia.com/.
[xi] Utkal Contractors & Joinery Pvt. Ltd. v. State of Orrisa, A.I.R. 1987 S.C. 1454 (India).
[xii] Som Prakash vs. State of Delhi, AIR 1974 SC 989 (India).
[xiii] SIL Import, USA v. Exim Aides Exporters, Bangalore, (1999) 4 S.C.C. 567 (India).
[xiv] Shafhi Mohammad v. State of H.P., (2018) 2 S.C.C. 801 (India).
[xv] Adam Grant, Evidence Quotes, BRAINY QUOTES (Mar. 25, 2018, 07:28 PM), https://www.brainyquote.com/quotes/adam_grant_834260?src=t_evidence.