- Section 2(1)(t) of the Information Technology Act, 2000 tells us that, “an ‘electronic record’ means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche”.
- Any information found in an electronic record that is printed on paper, stored, recorded, or copied in optical or magnetic media created by a computer is considered to be a document as well, according to Section 65B.
- According to Section 3 of Indian Evidence Act, 1872, “all documents including any electronic record produced before this court for inspection can be treated as evidence.”
The majority of people in the world today conduct business through electronic communication, including those in banking, insurance, telecommunications, and other industries. Examples of electronic evidence include dates found on websites, messages sent via email, SMS/MMS, and other channels, as well as conversations held on social media platforms like Facebook, Instagram, and WhatsApp. The Indian Evidence Act, section 65(B), allows for the admissibility of WhatsApp messages and other electronic correspondence in court. The researcher defines "electronic record" in accordance with section 2(1)(t) of the Information Technology Act of 2000 in order to support this assertion.
Corporate workers are increasingly using WhatsApp as a communication tool. WhatsApp is regarded as the best messaging app for workers to communicate directly with clients and coworkers. Instant messages and photos sent on social media sites, like WhatsApp, are now admissible in court as evidence in both criminal and civil proceedings due to the increased use of these platforms. Instant messages and photos sent on social media sites, like WhatsApp, are now admissible in court as evidence in both criminal and civil proceedings due to the increased use of these platforms.
To use WhatsApp content as evidence in court, there are some specific rules that need to be adhered to. In Indian courts, WhatsApp messages are admissible as traditional documents and are treated as electronic records. For WhatsApp conversations to be accepted as evidence, a few conditions must be satisfied:
- The messages must reach their intended recipient.
- The phone needs to be used frequently. It ought not to sustain any harm.
- The message must have been sent with the sender's intention.
- The data in the duplicate copy that is presented in court needs to match the data in the original electronic record.
The Indian Parliament passed the Information and Technology Act, 2000 to broaden the definition of an electronic record in order to modernize and improve the technological accessibility of the Indian judiciary, given that everything is becoming digital these days.
Section 65 B Of Indian Evidence Act
Section 65(B) of the Indian Evidence Act was added by the Information Technology Act of 2000, enabling electronic evidence to be admitted into evidence in court. Judges and advocates agree that this is the most difficult section to understand. Because judges and attorneys approached it with the intention of producing secondary electronic evidence, this section is thought to be the most difficult technological concept for them.
They draw a comparison between this section's requirements and Section 65(B) of the Indian Evidence Act, which addresses additional documentary evidence. Legislation governing the validity of this clause was passed in October of 2000. This provision was initially applied by AMM court Egmore in the Suhas Katti v. State of Tamil Nadu case, [C No. 4680 of 2004]
POSITION IN INDIAN COURT
It has been established that WhatsApp texts, SMS/MMS, and other electronic evidence are all fully admissible in Indian courts. In State of Delhi v. Mohd. Afzaland others, [2003 (3) JCC 1669]also referred to as the Afzal Guru case, the Supreme Court of India ruled that electronic evidence is admissible in court. The abuse and accuracy of the evidence due to technological errors was also refuted by the Supreme Court. A certificate bearing the signature of the person using the computer resource and entering the data must be requested by the Supreme Court. That individual is solely accountable for the veracity of the document in question. On the other hand, the person contesting the electronic data bears the burden of proof.
Legal framework for electronic evidence
Electronic record contents must be proven as evidence in compliance with Section 65B requirements, as per Section 65A of the Evidence Act. Chapter V of the Evidence Act, which addresses documentary evidence, includes Sections 65A and 65B, which were added by the Indian Evidence (Amendment) Act, 2000. It was elucidated in Anvar v. Basheer that Section 65B, which commences with a non-obstante clause, constitutes a comprehensive code for the admissibility of electronic evidence.
Any information found in an electronic record that has been saved, recorded, or duplicated as a computer output is also considered a "document" under Section 65B(1). If the requirements are met, this information can be used as evidence without additional justification or the need to produce the original documents. The requirements that must be met for the data to be classified as a "computer output" are outlined in Section 65B(2).
The clause in Section 65B(4) that stipulates that a certificate identifying the electronic record and providing details about the device used in its production must be produced if the electronic evidence is to be used in any court proceeding is what gave rise to divergent interpretations. A person holding an official position of responsibility for the operation of the relevant device or someone in charge of managing the relevant activities involved must sign this certificate. This signature will serve as proof that the certificate is authentic. Additionally, Section 65B(4) specifies that the certificate's contents must be provided ‘‘to the best of the knowledge and belief of the person stating it.’’
Confusion arose regarding whether a certificate under Section 65B(4) would need to be obtained even when an original copy of the electronic record is produced as evidence, following the adoption of differing opinions in the three previous Supreme Court decisions mentioned above. Another question that came up was whether or not Section 65B(4)'s requirements had to be followed, or if getting a certificate could be waived.
It is also crucial to mention Sections 62 and 63 of the Evidence Act at this point. "Primary evidence" is defined in Section 62 as the actual document that is presented to the court. Secondary evidence is defined by Section 63 and includes certified copies, oral testimony regarding the contents of a document, and copies made from the original.
OVERRULING OF TOMASO BRUNO AND SHAHFI MOHAMMAD CASE
The Court declared that its ruling in Tomaso Bruno was per incuriam, concluding that Section 65B was not a comprehensive code, without citing the previous ruling in Anvar v. Basheer. In addition to concluding that Section 65B is merely a procedural provision and that the requirement of obtaining a certificate can be waived when the individual requiring the certificate is unable to access the electronic device storing the records, Justice Nariman also stated that the Shahfi Mohammad decision had misinterpreted the law.
It was decided that it would be incorrect to assume that there would be challenges in obtaining the certificate because the Evidence Act (Section 165), the Civil Procedure Code (Order XVI), and the Criminal Procedure Code (Section 91 and Section 349) all contain provisions that give the court the authority to order the production of any item or document during the trial. Accordingly, it was specified that, in the event that a person is unable to obtain the certificate under Section 65B(4), he may, in any case, apply to the Judge for an order requiring the production of any "document" that would constitute electronic evidence.
The party wishing to rely on the electronic record may apply to the court for an order to produce the necessary certificates if the competent person or entity declines to grant the certificate. The Court deduced from this premise that the obligation imposed by Section 65B(4) was obligatory, rather than optional, and that it is a prerequisite for the admission of secondary copies of an electronic record. It was decided that the electronic evidence ought to be produced before the trial even starts, and that the court can order the certificate's production at any point before the trial is over in accordance with Section 65B(4).
The Court maintained the High Court's ruling after elucidating the parameters of Section 65B, despite the fact that the High Court had depended upon electronic data that had not been validated in accordance with Section 65B(4). This was due to the fact that the High Court concluded that the nomination papers were not filed by the deadline by using admissible evidence in addition to the electronic evidence.
The Court's decision was founded on the particular facts of the case, for which additional evidence was available. It does not, however, suggest that the Section 65B(4) obligation can be waived. In all cases where secondary copies of an electronic record are produced, as Justice Nariman has made clear, obtaining a certificate under Section 65B(4) shall be a prerequisite.
CASES WHERE WHATSAPP CHATS ARE USED AS EVIDENCE IN THE COURT OF LAW
Ambalal Sarabhai Enterprise ltd. . KS Infraspace LLP Limited and Another [934849 OF 2019]
As per the ruling of the Supreme Court, virtual verbal communications like WhatsApp messages can be used as evidence to prove the meaning and content of the messages during trial through chief witness and cross-examination.
Anvar P.V. v. P.K. Baseer and Others, 18 September, 2014 [C NO. 4226 OF 2012]
Applying the principle of generalia specialibus non derogant (general provisions must always yield to special provisions), a three-judge bench made up of Justices R.M. Lodha, Kurien Joseph, and R.F. Nariman overturned the State (NCT Delhi) v. Navjot Sandhu ruling to the extent of determining the admissibility of secondary evidence in court. The bench mandated the requirements outlined in Section 65B of the Evidence Act and held that a certificate is required in order to admit electronic evidence.
In Shafhi Mohammed v. State of Himachal Pradesh, the Supreme Court overturned this ruling in 2018. The court also held that Sections 65A and 65B of the Evidence Act are supplemental in nature, added to support the code on the subject, and that any electronic record produced as evidence without following the condition mentioned in Section 65B(4) of the Evidence Act (regarding the certificate) can be relied upon.
Arjun Panditrao Khotkar v. Kailash Kushanrao [(2020) 3 SCC 216]
The Supreme Court ruled in 2020 that electronic records cannot be admitted as evidence unless they meet the requirement outlined in section 65B(4) of the Evidence Act. The ruling in Shafhi Mohammed v. State of Himachal Pradesh was overturned by the Supreme Court, which also maintained the ruling in Anvar P V Vs. P K Baseer and Others.
The Supreme Court further held that the person bringing the relevant information can ask the court for assistance in obtaining a valid certificate—which is defined by Section 64B(4) of the Evidence Act—on file by the person in question if they do not own the computer or the original device.
The Supreme Court's decision in Arjun v. Kailash, which holds that a certificate of compliance under Section 65B(4) need only be produced when a party relies on secondary copies of an electronic record, will ensure that the compliance burden associated with electronic evidence is partially mitigated until a thorough review of the legal framework surrounding electronic evidence is conducted.
The need to create safeguards to maintain and retain electronic records is underscored by the recent disclosure of electronic evidence, specifically Whatsapp chats, in addition to the practical challenges. Whatsapp chats will not be considered evidence until a certificate under Section 65B(4) is produced, according to a recent order by the Punjab & Haryana High Court, which cited the case of Arjun v. Kailash.
In order to protect the privacy and confidentiality of the information contained in electronic records, additional safeguards must be developed in addition to the potential need for the production of a certificate under Section 65B (4). In his ruling, Justice Nariman cited the report that a five-judge committee had produced in November 2018 and which included draft rules for the authentication, retrieval, and preservation of electronic records. The parameters of Section 65B are now clear, but more work remains to guarantee the security, preservation, and privacy of data collected as electronic evidence.