Admissibility of Electronic & Digital Record as Evidence

INTRODUCTION 

With the advent of internet revolution, the Indian legal system incorporated technology into its proceedings through the Amendment Act of 2000 to the Indian Evidence Act, 1872. The amendment was introduced to add Section 65A & 65B under chapter 5 (Now placed under chapter 5, Section 61-63, under the heading Admissibility of Documentary Evidence) the act, keeping the concerns regarding the authenticity of electronic records intact and to ensure their adaptability in courtrooms. The admissibility of electronic evidence in Indian courts, since then have been a topic of extensive discussion, one of the reasons for which is the prevailing ambiguity in provisions incorporated thereunder.

The classification of electronic evidence as a secondary category of acceptable evidence in court has sparked several important questions surrounding its admissibility. One significant query is whether Section 65B is mandatory for the admissibility of electronic evidence, and at what stage the production of the certificate should ideally take place. Should the certificate be presented after the evidence is submitted in court or when it is referred to during legal proceedings? Moreover, the validity of the evidence and the applicability of different methods in civil and criminal cases have remained uncertain.

CONTEXT:

Presently Electronic & Digital Records have been added under the definition document as given under Section 2(d) of BSA,2023 which was not earlier treated as documents as per the prescribed definition of the term ‘document’ given under Section 3 of IEA,1872. Section 2(d), BSA 2023 says that
              
 “document” means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.

Under Section 3 of IEA the term evidence was defined which included two types of evidence under it named as Oral and Documentary Evidence. The contemporary BSA under Section 2(e) made an addition to the definition of evidence which shall include ‘information given electronically’ within oral evidence and ‘or digital records’ within documentary evidence. Hence to conclude it can be said that electronic and digital records are treated as Documentary Evidence. The definition given under Section 2(e) as follows 
                   
 “evidence” means and includes—
(i)All statements including statements given electronically which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;
(ii)All documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence.

Previously the concept of primary evidence was given under Section 62 of IEA, 1872. But the same has now been covered under Section 57 of BSA, 2023 with significant addition of four new explanations namely 4,5,6,7 which explicitly rules it out that Electronic and Digital Records are Primary Evidence where the IEA treated it as Secondary Evidence. Section 57 BSA states that 

Primary evidence means the document itself produced for the inspection of the Court.

Explanation 4 provides that “Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.” 

Explanation 5 provides that “Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.”  

Explanation 6 provides that “Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.”  

Explanation 7 provides that “Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.”  

Admissibility of electronic and digital records:

It has been dealt under Section 61 of BSA which was not earlier anywhere in the IEA. According to Section 61 of BSA, electronic or digital records are explicitly deemed admissible in evidence, challenging any denial solely on the grounds of their electronic nature. This recognition signifies the acknowledgment of the legal validity, effect, and enforceability of electronic records in par with traditional documents. This Section treats electronic records at par with documentary evidence as already treated under the IEA as amended by the Information Technology Act, 2000 (IT). Section 61 states that 

Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document. 

Proving Contents of Electronic Records:

Section 62 BSA (i.e. Section 65A of IEA) specifies the process for proving the contents of electronic records in accordance with Section 63(i.e. Sec 65B IEA). This lays the groundwork for establishing the credibility and authenticity of information stored in electronic form. Sec 62 BSA states that 
The contents of electronic records may be proved in accordance with the provisions of section 63.

Conditions for Admissibility:

Section 63(i.e. Sec 65B) outlines the conditions that must be satisfied for the admissibility of electronic records. It states that information contained in an electronic record, when produced by a computer or communication device, is considered a document. This electronic document is then admissible in proceedings without requiring the original document, provided certain conditions are met.

Section 63(2) details the conditions for admissibility of a computer output, which includes:
- Regular use of the computer or communication device for creating, storing, or processing information.
- Regular feeding of information into the computer during ordinary activities.
- Proper operation of the computer or communication device during the relevant period.
- Reproduction or derivation of information from the ordinary course of activities.Treatment of Multiple Computers:

Section 63(3) addresses scenarios where multiple computers or communication devices are involved in creating, storing, or processing information. It treats them collectively as a single unit for the purpose of admissibility, providing a practical approach to electronic evidence in various technological setups.

Certification Requirement:

Section 63(4) mandates the submission of a certificate, signed by a person in charge of the computer or communication device and an expert, along with the electronic record. This certificate must identify the electronic record, describe its production, and provide particulars of the devices involved. Additionally, it should address matters related to the conditions outlined in Section 63(2).

Comparison between IEA and BSA on 65B:

Section 63 of BSA expands its reach to electronic records in semiconductor memories, in addition to those on paper and stored/recorded/copied in optical or magnetic media.  

Furthermore, the provision extends its applicability to encompass 'any communication device,' broadening its scope. 

Subsection (3) of the provision refines the definition of a computer or a communication device, providing it with a more comprehensive interpretation. 

Section 63(4) of BSA mandates a certification process similar to Section 65B (4) of IEA with added safeguards like producing the electronic record with the certificate. The BSA provides that while producing electronic evidence, the party must produce the certificate mentioned in the Schedule. 

The Certificate contained in the Schedule consist of two parts: 
Part A which has to be filled by the party; 
Part B which has to be filled by the Expert.