With Introduction of modern techniques and advancement in technology, Not only India, but the entire world, was enthralled by the technological breakthrough of the twenty-first century. Computers are no longer restricted to well-known institutions and organizations, but are instead accessible to everybody with a swipe of a fingertip. the actions that were difficult earlier like communication, sharing of data, video calls, e-commerce have now become a child's play. Information technology has made almost every human actions, from shopping to communication more convenient. Technology advanced in leaps and bounds and drastically as the usage of computers became increasingly popular in this age of cyberspace, and every person is involved some way or another on these platforms. The vast involvement of population on the cyber space increased crimes and also helped to collect evidences for the same crimes. But are these evidences admissible in our court of law? The evolution and amendments of information technology (IT) gave rise to the cyber space, in which the internet gives all individuals with equal access to any information, data storage, analysis, and other services using high technology. The advancement of technology has not only raised a lot of questions regarding the safety and privacy of people but also raised concerns regarding the admissibility of Digital evidence in India. The data on the cyberspace can be easily tampered with and manipulated. The videos can be cut or edited, the voices can be changed, the documents can be edited, Digital signatures can be altered and forged. These questions have raised a lot of concerns for the judiciary to consider digital evidences as admissible or not.
The advancement of technology, as well as the widespread usage of mobile devices computers, and tablets, which have become an indispensible part of modern society, has resulted in a considerable shift away from the creation of physical to digital data.
In simple terms, in proving a case the court needs evidence and a substantive proof to hold someone responsible and to convict, any sort of proof presented with the purpose of instilling belief in the mind is referred to as evidence. Section three of the Indian Evidence Act of 1872 provides a statutory definition of the term Evidence. The third section defines the term "evidence" and what it entails.
Oral evidence refers to all statements made before the Court by witnesses in relation to the facts under inquiry that the Court allows or requires them to make.
All materials, including electronic documents, that are produced for the Court's scrutiny are referred to as documentary evidence.
Unlike the physical world, there are various crimes on the cyberspace that is difficult to pin down because the vast data stored on the internet and also the anonymity of the users. Online Transaction fraud, identity theft, child pornography, hacking, and other crimes can all be committed in the virtual world. Electronic data, which is used as evidence in court, is frequently useful in demonstrating or disproving a truth or fact in question.
E-mails, images shared on the internet through various sites like Instagram, whatsapp, facebook, transactions in ATM, the browsing history, chats, data stored on the computer, memory cards, backups, copying and printouts, GPS, audio and video records are all examples of e-evidence. we all know that because these evidences are easily accessible and thus Digital evidence is typically larger, more difficult to destroy, more easily manipulated, replicated, potentially more expressive, and more immediately available.
As a result of the tremendous expansion in e-governance all through the industry and government, digital evidence has now become a critical pillar of interaction, storage, and recording, and diverse types of online proof are progressively being utilized in both civil and criminal proceedings. As a consequence, Indian courts have established case law and precedents on the use of electronic evidence, prompting changes to National legislations to include provisions for digital evidence.
Earlier The Indian Evidence Act, 1872, did not have any particular provisions recognizing the admission and value of digital evidence. In terms of substance, it lagged behind modern technical advancement. As a result, there was an emerging need for the development and advancement of technology and evidences that were procured through the help of these technologies. Thus regulations were amended to recognize electronic data and other types of electronic communication. The admissibility of digital evidence is reflected in a number of statutes, The Information Technology (IT) Act of 2000 was amended to allow for the admissibility of electronic data. And provide the legal basis for electronic transactions, the Indian Evidence Act 1872, the Indian Penal Code 1860, and the Banker's Book Evidence Act 1891 have all been amended.
Section 65B of the Indian Evidence Act, 1872 was enacted in 2000 in an attempt to modernize Indian evidentiary processes and aid our courts in dealing with technological advancements. Under the Evidence Act, electronic output such as prints, CDs, hard disks, and other similar items are considered "documents," allowing them to be used in court. It also aims to protect the reliability and accuracy of such evidence by requiring the fulfillment of 65B's specified conditions (2).
Despite the good objectives behind the amendment, it has sparked controversy on it accuracy and admissibility. This is largely owing to the High Courts' inconsistent and arbitrary application of Section 65B to electronic evidence. As a result of different courts needing different means to achieve the standards set forth in 65B, there has been a substantial lack of uniformity . This inconsistency in practice not only frustrates litigants, but it also increases the danger of justice being hindered.
Section 3 of the Indian Evidence Act of 1872 defines what constitutes admissible evidence in a court of law. According to clause 2 of the Section, "any documents produced for the court's inspection." The section did not include any electronic proof. In due to the rising use of electronic records in court, Section 3 of the Act was amended in 2000. To create way for electronic records, the section was changed to say, "All papers, including electronic documents, produced for the court's inspection."
The nature of such digital evidence establishes and determines the evidentiary value of such evidence. Section 65 dives into the topic of e-evidence admission in depth. Because it is only a secondary type of evidence, e-evidence is accepted as acceptable evidence in Indian courts under a few conditions when those conditions are fulfilled. Anything in the form of an electronic record, whether printed on paper like documents, saved, or recorded, whatsapp messages, audios or videos, can be recognized as admissible evidence only if it fits particular standards set forth in Section 65B's subsequent requirements, according to Section 65B(1).
As per Section 65A of the Evidence Act, the contents of electronic documents may be proven in line with Section 65B of the Evidence Act. As a result, only the procedure provided in Section 65B of the Evidence Act can be used to show any documented evidence in the form of an electronic record. As per Section 65B of the Evidence Act, any data contained in an electronic record is deemed to be a document and is admissible in evidence without further proof, whether it is the contents of a document or communication printed on paper, or stored, recorded, or copied in optical or magnetic media produced by a computer. the conditions are as follows:
The computer that made an electronic record can be regarded a reliable source. With the stipulation that the computer be used on a regular basis and that it be the one that was routinely used to store information about the alleged misconduct.
The computer's data must have been entered in the usual course of business. Furthermore, during the time period in question, the computer must have been active.
It provides that a group or combination of computers linked across the time period in issue must be considered as a single computer for the purposes of evidence. Furthermore, if one or more computers perform in the same order during the course of the time period in question, they are viewed as a single computer.
When electronic evidence is used in a hearing, a certificate must be issued that specifies the device and anything else connected to Subsection 2 of the Section. The certificate must be signed by someone with a responsible official position about the device's characteristics. The majority of the time, these individuals are IT specialists who are well-versed in the equipment in question.
A trial based primarily on electronic data might be a sham of justice since electronic data are more prone to tampering, exploitation, manipulation, deletion, and other sorts of fraud. Thus It necessitates:-
Data Integrity: This means that the data was supplied or captured in its original condition, with no tampering.
Hardware or software integrity: There were no deviations or errors in the hardware and software used for accessing, transmitting, processing, viewing, or storing data.
Protection of the system: During the time in question, the system used to access such an electronic record was secured, and it was not accessible by any unauthorized person, eliminating the danger of tampering or malfunction.
State (NCT of Delhi)V. Navjot Sandhu (2005) 11 SCC 600:
This was one of the landmark cases in regards to Admissibility of digital evidence. The court in this case held that Even though the certificate giving the data required in Section 65B is not available, secondary evidence can be submitted if "it complies with the provisions of sections 63 and 65 of the Act". The Court found the prosecution witnesses' oral testimony to be adequate and authorized it. Even if the conditions of 65B(4) were not satisfied, it stated explicitly that evidence might be submitted under sections 63 and 65 of the Evidence Act. This decision resulted in a significant reduction in the standards for electronic evidence .High courts around the nation have allowed other authentication techniques, especially oral evidence, as alternatives to certificates. This has been done through the testimony of individuals who created the computer output, as well as persons qualified to testify concerning the signature of the certifying authority, or people who can "speaking of the facts based on their personal knowledge."
The Delhi High Court ruled in the case of Rakesh Kumar and Ors. Vs. State, While conceding the prosecution's reliance on the call data, asserts that "computer produced electronic records constitute evidence, admissible at a trial if proven in the manner provided by Section 65B of the Evidence Act."
Anvar P.V. v. P.K. Basheer And Others (2014)
This case over ruled the Navjyot sandhu case.In this case, the Supreme Court issued a groundbreaking decision. The Supreme Court began its analysis by noting 59, which prohibits the use of oral evidence to prove the contents of documents, and 65A, which states that the only way to adduce evidence of electronic records is by fulfilling the conditions and presenting the certificate for the authenticity of the electronic record. "Sections 63 and 65 do not apply to secondary evidence in the form of an electronic record, which is controlled solely by Sections 65A and 65B. When it comes to the admissibility of information contained in electronic records, the Court held that Sections 65A and 65B form a complete code, and an electronic record as secondary evidence shall not be admitted unless the requirements of Section 65B are met, including a written certificate under Section 65B (4)".. Because Sections 65A and 65B are special provisions, they will take precedence over Sections 63 and 65. "Generalia specialibus non derogant"
Secondary data on CDs, DVDs, and Pen Drives can only be accessed with a certificate issued under section 65B (4) of the Indian Evidence Act, according to the Supreme Court. Instead of using oral evidence to prove electronic evidence, a certificate under section 65B is necessary. Furthermore, an expert's opinion obtained under Section 45A of the Indian Evidence Act is not a technique to circumvent Section 65B's method. Producing the original, a copy, or a counterpart coupled with a certificate u/s 65B is the sole way to prove electronic evidence as main or secondary evidence.
What are the difficulties faced?
Evidence is frequently acquired wrongly or unlawfully in Indian courts, notably by whistleblowers, investigative agencies conducting confidential searches, approvers seeking favor with authorities, and so on. We have ruled that the method employed to acquire the evidence is immaterial, hence such evidence is allowed. But to acquire certificate for the same is difficult as the evidence is collected illegally, which itself is wrong.
Similarly, the certificate-based authentication system is prone to exploitation and manipulation. Unlike data, it does not depend on objective, verifiable facts.
The certification issued under 65B does not guarantee that the document is tamper-proof or accurate. It's difficult to tell who has control of the computer.
We all know that evidence is an important part for the case and trial. It can prove the guilt or innocence of an accused. Thus it becomes important that the evidences are relevant, authentic and help in the case. In legal processes, evidence is only admissible if it is relevant to the facts, issues, or conflicts at hand. The Court would be wasting its time if evidence is admissible but unrelated to the case. Before evidence may be utilized in a court of law, it must be both relevant and fulfill all of the established conditions for admissibility. In the current context, even electronic or digital documents are admissible as evidence provided they are reliable, relevant, and received through a legitimate source of electronic communication. Acceptance of electronic evidence, as well as its advantages, might be difficult to achieve. The courts must decide if the evidence satisfies the three legal standards of validity, reliability, and integrity. Following the Supreme Court's decision in the Anvars case, which set rules for electronic evidence acceptance, Indian courts are obliged to use a consistent approach to prevent miscarriage of justice and take all essential safeguards while accepting and evaluating electronic evidence.
Shweta and Tauseef Ahmad, Relevancy and Admissibility Of Digital Evidence: A Comparative Study, volume 2 issue 1, IJLMH,2018.
Use of E-evidence in Judicial Proceedings, 2020, https://www.mondaq.com/india/trials-appeals-compensation/944810/use-of-electronic-evidence-in-judicial-proceedings
State (NCT of Delhi)V. Navjot Sandhu (2005) 11 SCC 600
Anvar P.V. v. P.K. Basheer And Others (2014)
Rakesh Kumar and Ors. Vs. State
Section 65A andd 65B of The Indian Evidence Act,1872.
- Janhavi Singh
UPES School of law, Dehradun.