The Indian Evidence Act of 1872[1] was established to systematize rules for presenting evidence in court proceedings. Section 3 of the Act[2] defines 'evidence' to encompass both oral statements made by witnesses concerning factual matters under investigation and documents submitted for court examination.[3]

Traditionally, evidence was categorized into oral and documentary forms.[4] Documentary evidence primarily comprised handwritten or typewritten documents and telegraphs.[5] However, the surge in technological advancement has introduced new modes of communication like emails, text messages, WhatsApp conversations, and social media posts, which have also given rise to cybercrimes.[6]

Recognizing these shifts, the Evidence Act was amended to accommodate electronic records as admissible evidence in court proceedings.[7] This change reflects the evolving communication landscape and the legal system's need to adapt to technological developments. Electronic evidence, also referred to as digital evidence, constitutes secondary evidence and pertains to information stored or transmitted digitally.[8] The inclusion of Section 65A and 65B within the Indian Evidence Act, 1872[9] was effected through the enactment of the Information Technology Act, 2000.[10]

This project addresses the gap arising from technology's rapid growth and the challenges courts face in evaluating complex forms of evidence that may not be easily interpretable. The initial section discusses the interpretation of electronic evidence under the Information Technology Act, 2000, and the Indian Evidence Act, 1872. It then examines the background leading to the introduction of Section 65B and its legal context.

The project subsequently explores the provision's scope, the authentication process for obtaining the certificate, and analyzes relevant case law revealing conflicting stances on the certificate's necessity. The project critically evaluates Supreme Court decisions like Shafhi Muhammad[11] and Arjun Khotkar,[12] concluding with suggested modifications aligning electronic evidence admissibility with technological advancements and practical courtroom considerations.

Electronic Evidence Demystified: Examining Its Conceptual Framework In India

The Beginnings
In 1965, Gordon E. Moore, co-founder of Intel, made a pivotal observation regarding the exponential growth of transistors on integrated circuits.[13] His insight, later known as Moore's Law, inadvertently became a cornerstone for technological, economic, and social progress over the subsequent decades.[14] As technology advanced exponentially due to the internet's emergence, addressing electronic evidence within the existing legal framework became imperative. The framers of the 1872 Evidence Act could not have foreseen innovations like computers, emails, and social media.[15] Consequently, the Act initially centered on traditional paper records, which proved inadequate for electronic evidence.[16]

However, the surge in technological adoption didn't bring the judicial process to a halt. Amendments were made to certain laws, like the Companies Act of 1956, to accommodate specific electronic evidence.[17] Courts also began admitting electronic evidence, although the procedure was intricate, relying on secondary evidence under the Evidence Act's Section 63.[18] This approach lacked safeguards and consistency, leading to ambiguity. The need for a modern framework arose to address electronic transactions effectively.

Legislative action was taken through the Information Technology Act, 2000 amending the Evidence Act, 1872.[19] The amendment, guided by UNCITRAL,[20] expanded the definition of evidence under Section 3 to encompass electronic evidence. Specific provisions, Sections 65A and 65B, were introduced to regulate electronic evidence's admissibility.[21] This step, aligning with international standards, has been recognized as crucial by Indian courts, marking a significant shift from the previous analog approach.

Section 65B in Perspective: Certification and Scope of Application

Trustworthiness relies on two crucial dimensions: reliability and authenticity.[22] Ensuring a digital document's authenticity involves verifying its accuracy and assessing data integrity. As digital evidence can be easily manipulated, ensuring its admissibility presents challenges.[23] The introduction of Section 65B alongside Section 65A aimed to address these complexities and align the legal framework with technological advancements.[24]

Section 65B, under sub-Section (1), treats electronic records as documents and allows their admissibility in court under specific conditions.[25] This provision acts as both a deeming and enabling clause, simplifying interpretation and enabling the use of secondary evidence. Sub-section (2) sets mandatory qualifications to ensure data accuracy and lawful computer use.[26] Sub-section (3) clarifies the use of multiple computers.[27]

The contentious aspect is sub-section (4), which requires a certificate to validate electronic evidence.[28] The certificate must identify the electronic record's origin, characteristics of the device, and be signed by a responsible official. Interpretations differ on whether this certificate is mandatory and its ability to ensure data reliability.[29]

Certification Stipulations in ApplicationEvery computer output must be accompanied by a corresponding certificate, which should include the following details:

1. Identify the electronic record by name and explain how the record was generated.^[30]
2. Provide information about the electronic device, such as the computer involved in creating the record.^[31]
3. Confirm that the computer output was produced as part of its regular operation for storing or processing information for routine purposes, and that the person signing the certificate had lawful control over the computer (or network of computers) from which the output was taken.^[32]
4. Affirm that the type of information taken as computer output was regularly entered into the computer as part of its normal activities.^[33]
5. Verify that the computer used for generating the output was functioning correctly during the relevant period, without any issues that could impact the accuracy of the record.^[34]
6. Confirm that the output information is derived from data that was previously entered into the computer during regular activities.^[35]

The certificate should be signed by an individual who is responsible for operating the computer or overseeing the pertinent activities, based on their best knowledge and belief.

Analysing The Judicial Discourse: Exploring Interpretation Of Section 65b Over Time

The interpretation of Section 65B of the Indian Evidence Act has dynamically evolved as technology shapes evidence admissibility.[36] Examining key cases reveals a journey from initial challenges to clarity. From allowing secondary evidence without compliance to emphasizing the uniqueness of Section 65B, courts have navigated the intricacies of electronic evidence.[37] Balancing procedure and substance, courts have advanced the admissibility of electronic evidence, reshaping legal horizons.

The Initial Importance to Section 65B
In the State (NCT of Delhi) v. Navjot Sandhu[38] case, the Supreme Court initially ruled that secondary evidence of an electronic record under sections 63 and 65 can be presented without adhering to the conditions of section 65B.[39] However, this decision, along with the Court's expansive interpretation of section 65B, seemed to undermine the legislative intent behind its enactment.[40]

Correction and Clarification in Anvar vs. P.K Basheer Case
The Anvar vs. P.K Basheer[41] case corrected the error made in the Navjot Sandhu[42] case. The three-judge bench asserted that section 65B is a specialized provision that takes precedence over the general provisions in sections 63 and 65.[43] It emphasized that electronic evidence as secondary evidence must fulfill the requirements of section 65B, including the submission of a certificate as specified in section 65B(4).[44]

Admissibility of Electronic Records as Primary Evidence
Contrary to sections 59, 65A, and 65B of the Evidence Act, an electronic record used as primary evidence under section 62 is deemed admissible without necessitating compliance with section 65B of the Act.[45] This principle was highlighted in the case of Sanjay Singh Ram Rao Chavan vs. Dattatray Gulab Rao Phalke & Ors.[46]

The Significance of Source and Authenticity
The case of Tomaso Bruno v. State of UP[47] highlighted the pivotal role of source and authenticity in electronic evidence. The Supreme Court held that secondary evidence of document contents can be presented under section 65, but the reliance on section 65B(4) was avoided, unlike the Anvar case.[48]

Balancing Procedure and Substance in Sonu Vs. State of Haryana
In Sonu vs. State of Haryana,[49] the court stated that sections 65A and 65B pertain to the mode of proof for electronic records rather than their admissibility. The requirement of a certificate under section 65B(4) was deemed procedural, allowing for rectification during the trial if objections are raised.[50] The question of retrospective application of Anvar was left open for a suitable bench's consideration.[51]

Shafhi Mohammad Vs. State of UP: A Reconsideration Call
Shafhi Mohammad Vs. State of UP[52] upheld the notion that absence of a certificate under section 65B(4) could be considered a procedural defect. When the party presenting electronic evidence is in control of the relevant device, sections 63 and 65 remain applicable, granting flexibility. However, this decision overlooked the precedent set in Navjot Sandhu case,[53] which had been overruled by Anvar PV case,[54] prompting a need for a thorough review by a larger Supreme Court bench.

Resolving Decades-Long Conflict: Supreme Court's Recent Judgment
The Supreme Court, through its recent verdict in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal,[55] has conclusively put an end to the longstanding uncertainty surrounding the interpretation of Section 65B of the Indian Evidence Act, 1872.[56] This legal puzzle arose from conflicting judgments in the cases of Shafhi Mohammad v. State of Himachal Pradesh[57] and Anvar P.V. v. P.K. Basheer.[58]

In this case, the petitioners presented a crucial piece of evidence—a video recording from a CCTV camera outside the Returning Officer's office—to challenge an election. The recording was produced before the High Court without the requisite certificate under Section 65B(4), which mandates such certification for electronic records. The High Court deemed the oral evidence presented in cross-examination as "substantive compliance" with Section 65B(4), thereby allowing the evidence's admissibility.[59]

Challenging this, the appellant contended that the absence of certification rendered the electronic record inadmissible.[60] The Supreme Court's landmark decision settled the ambiguity by affirming the necessity of a certificate under Section 65B for the admissibility of electronic evidence. The ruling upholds the principles set out in the Anvar case and establishes that without the requisite certificate, electronic evidence is inadmissible under Section 65B.

Key highlights of the verdict include: [61]

1. The certificate under Section 65B(4) is a mandatory prerequisite for admitting electronic evidence.
2. Oral evidence cannot replace the requirement outlined in Section 65B(4).
3. The court can order the production of the certificate until the trial's completion.
4. If the original document is available and produced, the certificate may not be necessary.
5. In cases of electronic records on networks, adherence to Sections 65B(1) and 65B(4) is imperative.

In conclusion, the Supreme Court's judgment emphasizes that electronic records presented as evidence must be accompanied by the prescribed certificate as stipulated in Section 65B of the Act. This decision serves as a definitive guideline for the admissibility of electronic evidence in legal proceedings.[62] These legal developments showcase the evolution of judicial understanding concerning the admissibility and presentation of electronic evidence under section 65B over the years.

Current Standards For Electronic Evidence: A Critical Analysis Analysis

The Establsihed Principle at the Moment
The legislative introduction of Sections 65A and 65B aimed to streamline the presentation of electronic records.[63] However, the interplay of procedural intricacies and judicial pronouncements has, rather than resolving, spawned a multitude of questions. The fundamental motive behind these legal provisions is to expedite justice, not impede it or render it sluggish—particularly the procedural facets often regarded as justice's allies.[64] Yet, legal frameworks should possess dynamic traits to adapt to evolving circumstances, rather than stagnating in a static form.[65] The recent ruling in Arjun Panditrao Khotkar[66] by the Apex Court has illuminated the imperative nature of the certificate under Section 65B(4) of the Evidence Act, 1872, affirming its non-negotiable status and thus heralding a definitive standpoint.

The Recommendations
The escalating significance of electronic evidence in the legal landscape, coupled with the surge of e-commerce, underscores the necessity for a comprehensive provision that tackles the associated concerns.[67] Striking a balance between the accessibility and admissibility of electronic evidence, while accounting for its malleable nature susceptible to manipulation, is paramount.[68]

Section 65B was introduced through an amendment to the Information Technology Act, 2000,[69] to navigate the intricacies of electronic evidence.[70] The circumstances surrounding its enactment, along with the use of the term 'special provisions,' point to an exhaustive and exclusive application of these provisions.[71]

Although the absence of a Statement of Object or policy discussions limits a comprehensive analysis of intent, the inherent disparities between electronic and traditional evidence warrant distinct treatment. Consequently, it is recommended that Sections 65A, 65B, read in conjunction with Section 59,[72] be regarded as a specialized code tailored for electronic evidence—an approach validated by the Arjun Khotkar verdict.[73]

Given the exponential technological advancement, it's apparent that lower courts, which handle the majority of such cases in India, may lack the necessary technology and expertise. Section 65B(4) instituted a certification process that delves into the technology's nature and production method, addressing data integrity and consistency concerns.[74] The certificate serves as the baseline for authenticity and reliability of electronic evidence. While other means may be required in certain cases to verify authenticity, the certificate under Section 65B(4) remains pivotal. It promotes uniformity and certainty while minimizing reliance on judicial discretion.

The Arjun Khotkar[75] judgment rectified the inconsistencies arising from previous cases, reinforcing the certificate's indispensable nature. However, acknowledging that the requirement is robust and the position of the certificate's author is paramount, certain relaxations are warranted. Firstly, the contemporaneous certificate requirement can be waived, and secondly, an exception should be established to accommodate unlawfully acquired evidence. This exception must be judiciously defined to prevent misuse.

While a 65B certificate[76] remains a justifiable rule, it might not suffice as conclusive proof in all instances. Technological evolution demands authentication mechanisms beyond certificates, such as expert evidence, corroboration, and scrutiny of evidence. Comparable to US laws, authentication through public records, metadata, oral testimony, and circumstantial evidence should be considered. Furthermore, provisions to accommodate evolving methods of authentication should be formulated, drawing guidance from established case law.

Certain general standard exceptions to the rule of authentication could be introduced, including self-authenticating digital documents, official government websites, and documents uploaded thereon. Such self-authentication would alleviate the onerous burden imposed by certificates, making authentication more efficient and cost-effective. By embracing these recommendations, the legal framework can robustly address the intricacies of electronic evidence while keeping pace with technological advancements.

Conclusion
In a world where technological advancements play a central role in communication, business, and travel, it's crucial for the legal system to adapt to these changes. The rapid growth of technology requires continuous updates to the law to keep up with innovations that were unforeseen when the laws were initially created. In this context, the regulations governing electronic evidence hold significant importance due to the unique vulnerabilities of such evidence, including susceptibility to manipulation and damage.

Section 65B was introduced into India's Evidence Act in line with UNCITRAL guidelines to address the admissibility of electronic evidence.[77] Despite its somewhat unclear wording and similarity to a repealed provision in the UK, the intention behind Section 65B should not be dismissed.[78] This provision was specifically designed to counter the tampering of electronic evidence and determine its admissibility. Without meeting the criteria outlined in sub-section (2) and the certification requirement of sub-section (4) of Section 65B, there is currently no consistent alternative method to establish the authenticity of electronic evidence in India.[79]

The Supreme Court's interpretation of Section 65A and Section 65B[80] in the Shafhi case, treating them merely as procedural measures, doesn't align with the intended purpose of these provisions. A more thorough analysis of the sequence of admissibility, relevance, and certification of electronic evidence, in line with Section 136 of the Act,[81] was conducted in the Arjun Khotkar case,[82] although this analysis also has its limitations.

This study aimed to offer recommendations to address this uncertainty and find a balanced approach that allows electronic evidence in court while safeguarding against its susceptibility to manipulation. The authors suggested that the requirement of a Section 65B(4) certificate[83] should be the norm, with specific exceptions made for illegally obtained evidence and self-authenticating evidence. The procedural requisites of Section 65B[84] establish a baseline level of authenticity, which can be further corroborated with supplementary evidence for increased reliability if deemed necessary by the circumstances of each case.

However, in the current context of a developing country transitioning rapidly toward digitalization, an incomplete interpretation and application of Section 65B,[85] coupled with its shortcomings, could lead to detrimental outcomes for the Indian justice system.

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1. Indian Evidence Act, 1872.
2. Indian Evidence Act, 1872, s 3.
3. Ibid.
4. Ratanlal and Dhirajlal, The Law of Evidence (27th edn, EBC 2019).
5. Ibid.
6. Gupta S, '[Part 1] The Admissibility of Electronic Record under Section 65-B of Indian Evidence Act – The Leaflet' (The Leaflet – An independent platform for cutting-edge, progressive, legal, and political opinion.) https://theleaflet.in/the-admissibility-of-electronic-record-under-section-65-b-of-indian-evidence-act/accessed 27 August 2023.
7. Ibid.
8. Singh B and Bambri A, 'The Dichotomy of the 65B Certificate: Analysing Trends with Regard to the Authentication of Electronic Evidence in India' (2021) 10(1) Christ University Law Journal 73 https://doi.org/10.12728/culj.18.4
9. Indian Evidence Act, 1872, s 65A and 65B.
10. Information Technology Act, 2000.
11. Shafhi Mohammad Vs. State of U.P2 (2018) 1 SCC (Cri) 860.
12. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal 2020 SCC 571.
13. Gordon E. Moore, Cramming More Components onto Integrated Circuits,
14. Ibid.
15. Scientific Working Groups on Digital Evidence and Imaging Technology, Best practices for digital evidence laboratory programs glossary; See Carrie Morgan Whitcomb, An Historical Perspective of Digital Evidence: A Forensic Scientist's View, 1(1) INTERNATIONAL JOURNAL OF DIGITAL EVIDENCE,
16. International Organization on Computer Evidence, G8; BUKHARD SCHAFER & STEPHEN MASON, THE CHARACTERISTICS OF ELECTRONIC EVIDENCE, in MASON S. & SENG D. (EDS.), ELECTRONIC EVIDENCE 18-35 (2017)
17. Ibid.
18. Arvind M. Bhandarwar, Electronic Record, Its Proof and Certificate under Section 65B of Indian Evidence Act,
19. n 9.
20. United Nations Commission on International Trade Law, 1996.
21. n 18.
22. Max Roser and Hannah Ritchie, Technological Progress,
23. Ibid.
24. Singh A, Principles of The Law of Evidence (24th edn, EBC 2020).
25. Ibid.
26. n 24.
27. n 4.
28. n 24.
29. 'Section 65B of the Indian Evidence Act, 1872: Requirements for admissibility of electronic evidence revisited by the Supreme Court' (India Corporate Law) https://corporate.cyrilamarchandblogs.com/2020/07/section-65b-of-the-indian-evidence-act-1872-requirements-for-admissibility-of-electronic-evidence-revisited-by-the-supreme-court/accessed 25 August 2023.
30. Ibid.
31. n 29.
32. '[Part 3] Legal Turmoil in Admissibility of Electronic Evidence Due to Interpretation of S 65B by Supreme Court – The Leaflet' (The Leaflet – An independent platform for cutting-edge, progressive, legal, and political opinion.) https://theleaflet.in/part-3-legal-turmoil-in-admissibility-of-electronic-evidence-due-to-interpretation-of-s-65b-by-supreme-court/accessed 27 August 2023.
33. Ibid.
34. n 32.
35. Shairwal S, 'Judicial interpretation of section 65b obver the years' (Lexology, 18 March 2021) www.lexology.com/library/detail.aspx?g=641b75d3-3798-4714-894e-f46f7a47a001accessed 23 August 2023.
36. Ibid.
37. n 4.
38. State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600.
39. Indian Evidence Act, 1872, ss 63, 65, 65B.
40. n 35.
41. Anvar PV v. PK Basheer & Ors (2014) 10 SCC 473.
42. n 38.
43. n 39.
44. Indian Evidence Act, 1872, s 65B(4).
45. Indian Evidence Act, 1872, ss 59, 62, 65A, and 65B.
46. Sanjay Singh Ram rao Chavan Vs. Dattatray Gulab Rao Phalke & Ors. (2015)3SCC 123.
47. Tomaso Bruno v. State of U.P. 2012 SCC OnLine All 4139.
48. n 41.
49. Sonu Vs. State of Haryana4 (2017) 8 SCC 570.
50. n 38.
51. Bhardwaj P, 'SC clarifies law on admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872 | SCC Blog' (SCC Blog, 14 July 2020) www.scconline.com/blog/post/2020/07/14/sc-clarifies-law-on-admissibility-of-electronic-evidence-without-certificate-under-section-65b-of-evidence-act-1872/accessed 21 August 2023
52. Ibid.
53. n 41.
54. n 11.
55. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571.
56. n 51.
57. n 11.
58. n 41.
59. 'Supreme Court on the admissibility of electronic evidence under Section 65B of the Evidence Act.' (India Corporate Law) https://corporate.cyrilamarchandblogs.com/2021/01/supreme-court-on-the-admissibility-of-electronic-evidence-under-section-65b-of-the-evidence-act/accessed 27 August 2023.
60. Ibid.
61. n 59.
62. n 59.
63. Indian Evidence Act, 1872, ss 65A and 65B.
64. Gandhi D and Garg N, 'The decision in Arjun Panditrao: Admissibility of electronic evidence in India continues to face hurdles | SCC Blog' (SCC Blog, 7 July 2021) www.scconline.com/blog/post/2021/06/07/electronic-evidence-2/accessed 29 August 2023.
65. Ibid.
66. n 55.
67. Pandey KA, V. P. Sarathi's Law of Evidence (8th edn, EBC 2021).
68. Ibid.
69. Information Technology Act, 2000.
70. Dubey V, 'Admissibility of Electronic Evidence: An Indian Perspective' (2017) 4(2) Foresic Research & Criminology International Journal http://dx.doi.org/10.15406/frcij.2017.04.00109, accessed 27 August 2023
71. Ibid.
72. Indian Evidence Act, 1872, ss 59, 65A and 65B.
73. n 55.
74. n 59.
75. n 55.
76. Indian Evidence Act, 1872, ss 65B.
77. n 20.
78. Civil Evidence Act, Chapter 64, § 5, Acts of Parliament, (UK)(1872).
79. n 4
80. n 9
81. Indian Evidence Act, 1872, ss 160.
82. n 55.
83. n 44.
84. n 44.
85. n 44