Laws On Digital Evidence & Forensics

KEY TAKEAWAYS

• The provisions of the Information Technology Act, 2000 were amended to bring into account the need for recognition of admission of electronic and digital evidence as admissible evidence.
• The provisions of Sec. 2(1) (t) of Information Technology Act define electronic record as data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
• The amendments were brought into place in order to keep up with the challenges faced in the field of forensics.
• The provisions of Sec. 65B of the Evidence Act, 1872, also cover the admissibility of electronic evidence as admissible evidence in a case.
• The provisions with regards to electronic evidence in both the Evidence Act and the Information Act were brought into force in order to ensure that electronic devices were not tampered with and information is authentic so that it can be produced as admissible evidence.

INTRODUCTION

Due to the rise in technology and as the country witnesses an increasing demand in the use of technology for basic needs, there is also an increasing demand to amend the laws that govern the people in order to meet the challenges that technology poses with regards to creation and admission of digital forms of evidence.

The provisions of the Information Technology Act, 2000 were amended to meet this demand. The new amendment introduced the concept of “digital signatures”, “encryption” and “electronic evidences”, to name a few.

The provisions of Sec. 65B of the Evidence Act also accommodate the need to include electronic evidence as admissible evidence. The provisions of Sec. 65B also provide guidelines and requirements as a condition precedent to the admissibility of electronic record in evidence.

But before the aforementioned amendments, the courts have tried to fill the void in the long period of statutory vacuum on electronic data and documents.

In R v. Maqsud Ali (1966 1 QB 688) it was held that it would be wrong to deny the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded are properly identified. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.

FURTHER DETAILS

The best evidence rule is a rule in law which states that when evidence such as a document or recording is presented, only the original evidence would be accepted unless there is a legitimate reason that the original cannot be used. With the advent of electronic communications and a rising demand in the same, there has been some argument as to how the best evidence rule should be applied, and whether or not it is relevant. However, in order for electronic and digital evidence to be admissible in court, it needs to comply with the aforementioned rule. Electronic and digital evidence must also comply with the chain of command rule in order to protect the integrity of the evidence so that it can be considered by the courts in its original form.

In a leading case of Lorraine v. Markel American Insurance Company (241 FRD 534), the court described a model for addressing of admission of electronic evidence. The model that the case suggested was that admissibility of electronic evidence focuses first on relevance, asking whether the electronic evidence has any tendency to make some fact that it is of consequence of litigation more or less probable than it would be otherwise. The case called for the following tests in order for electronic evidence to be admissible:

1. Is the information relevant?
2. Is it authentic?
3. Is it hearsay?
4. Is it original or, if it is a duplicate, is there admissible secondary evidence to support it; and
5. Does its probative value survive the test of unfair prejudice?

The provisions of Sec. 3 of the Evidence Act were amended to include electronic records produced for the inspection of the court. In Anvar P.V. v. P.K Basheer & Ors., (2014 10 SCC 473), it was held that in order to prove the contents of a document, either primary or secondary evidence must be offered. The case also held that Sec. 65B of the Evidence Act had been inserted by way of an amendment by the Information Technology Act, 2000.

The earliest notable decision of the Supreme Court in relation to admissibility of electronic records is State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600) which held that irrespective of compliance with the requirements of Section 65B, there is no bar to adduce secondary evidence under Sections 63 and 65, of an electronic record. The judgment in the case was overruled by the aforementioned case.

With regards to the procedure for admissibility of electronic evidence, the provisions of Sec. 65B (4) of the Evidence Act provide the same. The provisions of the section provide for the production of a certificate to be deemed to be admissible as evidence. In the case of Arjun Panditrao Khotkar vs Kailas Khusanrao Gorantyal and Ors (C.A. Nos. 20825), it was held that certificate under Section 65B (4) of the Indian Evidence Act was mandatory for the production of electronic evidence before the court. The aforementioned case overruled the decision given in the case of Shafhi Mohammed v. State of Himachal Pradesh (2018 2 SCC 801), which held that production of certificate under Sec. 65B was not mandatory.

In Som Prakash vs. State Of Delhi (AIR 1974 SC 989), the Supreme Court 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. Furthermore, in the case of SIL Import, USA v vs. Exim Aides Exporters, Bangalore ((1999) 4 SCC 567) 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.

In State v. Mohammed Afzal & Ors., ((2003) DLT 385) the court held that computer generated electronic record is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. In addition to the aforementioned judgment, the Delhi High Court in the case of Jagdeo Singh vs. The State and Ors., (MANU/DE/0376/2015) while dealing with the admissibility of intercepted telephone call in a CD and CDR which were without a certificate under Sec. 65B of the Evidence Act, the court observed that the secondary electronic evidence without certificate under Sec. 65B of the Evidence Act is inadmissible and cannot be looked into by the court for any purpose whatsoever.

CHALLENGES IN IMPLEMENTATION AND ENFORCEMENT OF DIGITAL EVIDENCE AND FORENSIC LAWS

The major problem with regards to implementation and enforcement of digital evidence and forensic laws is there is a lack of motivation with regards to enforcement of digital evidence laws. Special measures are in the need of the hour in order to implement digital evidence laws.

Another problem that is to be dealt with is the problem of intelligence of criminals. Due to advancements in the field of technology, criminals have been given, and have gained incentive by “staying ahead of the curve” and have been successful in evading the law multiple times. Therefore, it is imperative that the security agencies and the law enforcement agencies to evolve and improve their methods if they are to enforce the laws that protect the digital integrity of the citizens of the country.

CONCLUSION

Cyber-forensics has become more challenging since new forms and techniques of cyber-crimes have emerged and new technologies are developed. There needs to be a constant, if not relative change in the laws. In State of Punjab v. Amritsar Beverages Ltd., (2006 7 SCC 607), the court held that there are a lot of difficulties faced by investigating officers due to lack of scientific expertise and insight into digital evidence techniques. The court also held that the provisions of the Information Technology Act do not deal with all types of problems and hence the agencies are seriously handicapped in some respects.

Although it is a notable achievement that India is up to date with changing technological trends and needs, it is no secret that there is more that needs to be done in order to stay ahead of the technological demands and challenges the country will face in the future.