Indeed, the concept of digital evidence came in Indian court procedure after a sudden advancement of technology. Digital evidence refers to data stored, transmitted, or received by digital devices in any kind of civil or criminal cases. Therefore, a changed technology has forced the legal system to update itself according to the accommodations and regulations of such evidence.

The current project deals with the admissibility of digital evidence in Indian courts. It studies the legal framework, judicial interpretation, and challenges related to the handling and authenticity of digital evidence focusing on "Sections 65A and 65B of the Indian Evidence Act." The project further evaluates the use of digital evidence given the judiciary decisions, considering the way forward for filling existing gaps under the law.

Introduction
Use of evidence in legal proceedings has dramatically changed with rapid advancement of digital technology, especially relating to the inclusion and management of digital and electronic evidence. Earlier, "the Indian Evidence Act of 1872" did not accommodate electronic records; hence, the digital evidence was nothing but an unreliable hearsay. It therefore became necessary that in the enforcement of the rules, there should be an upgrading of the legal system to include paperless records resulting from information technology. The Information Technology (IT) Act, 2000 gave opportunity to amendments on the Indian Evidence Act, allowing digital evidence to be admissible in courts.

This update also encompassed "Sections 65A and 65B" of the Indian Evidence Act that formally accepted electronic records as evidence. Section 65B specifically specified a few conditions in which the admissibility of electronic records can be established; that the certificate of establishing origin and integrity was to be tendered.

These amendments brought into the legal framework of India changes that authorized the acceptance of a wide range of digital evidence, such as emails, digital photographs, ATM transaction logs, and files stored on digital devices, to be considered documentary evidence. The definitions of primary and secondary digital evidence explain them and modernize the Indian legal framework by adapting to the increasing dependency on electronic modes of communication and documentation.

Amendments to the Indian Evidence Act as well as evolving case law have built a comprehensive framework for handling digital evidence. This allows the judiciary to step in with times for technologies, while following the fundamentals of justice, fairness, and appreciation of the evidence presented and puts before the legal fraternity the vital function of law in ensuring correctness and reliability of electronic documents in this ever more digital era.

Meaning Of Electronic Evidence

Electronic evidence, or digital evidence, encompasses data in binary form from both digital and analogue sources. It refers to information created, stored, or transmitted by computing devices or systems, excluding the human brain. Key elements include: 1) Evidence from computers and related devices, 2) Data from devices like analogue outputs, telecommunication networks, and embedded systems, and 3) Relevance to the case, not the method of collection. With the rise of e-governance and e-commerce, electronic evidence is crucial in legal contexts. However, its admissibility poses challenges due to potential falsification and varied authentication issues across different types of electronic data.

The Indian Evidence Act, 1872 defined evidence as including oral evidence, which refers to the testimony of witnesses, and documentary evidence, which included electronic records presented for court inspection. Section 3 of the Act was amended to replace the phrase "All documents produced for the inspection of the Court" with "All documents including electronic records produced for the inspection of the Court." Furthermore, 'Section 59' addressed the "Content of documents or electronic records," and "Sections 65A and 65B" were introduced to address the admissibility of electronic evidence.

Section 3 The definition of evidence as given in the Indian Evidence Act, 1872 covers a) the evidence of witness i.e. oral evidence, and b) documentary evidence which includes electronic record produced for the inspection of the court. Section 3 of the Act was amended and the phrase "All documents produced for the inspection of the Court" was substituted by "All documents including electronic records produced for the inspection of the Court". Regarding the documentary evidence, in Section 59, for the words "Content of documents" the words "Content of documents or electronic records" have been substituted and Section 65A 65B were inserted to incorporate the admissibility of electronic evidence.

Bharatiya Sakshya Adhiniyam 2023:

• S.15 Admission Defined: The definition of admission (Section 17 of the Evidence Act) has been changed to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance.
   
• S. 33. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers: Where there is, (i) a longer statement, or (ii) a conversation, or (iii) an isolated document, or (iv) a document contained in a book, or (v) a series of letters of papers, the court has discretion to use the relevant portion of the conversation, document, books or series of letters or papers and requires the production of that portion or pages. In other words, the evidence shall be given of only explanatory or qualifying part of the statement, document, book etc. Same is applicable to electronic record under the section. The statements made in books cannot be relied on unless supported by contemporaneous records. What evidence is to be given and to be taken is total discretion of the judge. His discretion is always guided by principles of justice, conscience and convenience.
   
• S. 39(2). Opinion of Examiner of Electronic Evidence: When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79 A of the Information Technology Act, 2000, is a relevant fact.
   
• S.61. Electronic or digital record: 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.
   
• Section 63 of the Bharatiya Sakshya Adhiniyam (Indian Evidence Act): Primarily addresses the admissibility of electronic records, which includes both audio and video evidence, provided certain conditions are met.
  • Relevance to Audio and Video Evidence:
  • Definition of Electronic Records: Section 63(1) specifies that any information contained in an electronic record (such as audio or video files) which is printed on paper, stored, recorded, or copied in optical, magnetic, or semiconductor memory produced by a computer or communication device is considered a document. Therefore, audio and video recordings produced by such means are included under this definition and can be admissible as evidence.
  • Conditions for Admissibility: Section 63(2) outlines conditions that must be satisfied for electronic records to be admissible:
    1. The electronic record (e.g., audio or video) must have been produced during a period when the computer or device was used regularly to create, store, or process information.
    2. Information of the kind contained in the electronic record must have been regularly fed into the device during the relevant period.
    3. The computer or device must have been operating properly throughout the relevant period, or any malfunctions should not have affected the accuracy of the record.
    4. The electronic record must reproduce or be derived from information regularly fed into the device.

Multiple Devices:
Section 63(3) states that if multiple computers or communication devices were used to create, store, or process information, they are treated as a single device for the purpose of this section. This means that for audio and video evidence, if multiple devices were involved in producing or handling the evidence, they are collectively considered as one device in terms of satisfying the conditions for admissibility.

Certification Requirements:
Section 63(4) requires that a certificate be submitted along with the electronic record to prove its authenticity. This certificate should identify the electronic record, describe how it was produced, provide details about the device used, and address the conditions mentioned in Section 63(2). For audio and video evidence, this would include details about the recording device and any processing involved.

Definition of Information and Output:
Section 63(5) clarifies that information is considered supplied to a computer or device if it is entered in any appropriate form, and a computer output is deemed produced whether directly or through appropriate equipment. This includes audio and video outputs produced by such devices."

The Principles Of Digital Forensics In Handling Digital Evidence

Handling digital evidence necessitates adherence to specific standards to ensure its admissibility in court. This is due to its unique nature, as emphasized by Olivier Leroux, who asserts that digital evidence must meet the same legal requirements as conventional evidence, despite its electronic origin.

Moussa, after examining various international best practices, including those outlined by the Council of Europe, identified two core principles for handling digital evidence: first, that such evidence must be legally obtained with appropriate authorization; and second, that its validity must be verified by experts in computer science and information technology. These principles are categorized under two key concepts: authenticity and accountability.

Authenticity: Authentic gathering of digital evidence involves collection in such a manner that the data cannot be altered or contaminated. First, all unencrypted files are copied from the computer system and only these copies are examined to ensure that the integrity of the original data is preserved. Information deleted from the computer is recovered and stored securely outside of the computer.

There are special software which also use discoveries of hidden files and decryption of protected files for reviewing otherwise inaccessible portions of the computers storage in order to find potentially important data. Through all these processes, the access of the original digital evidence is strictly kept to those qualified professionals who preserve the authenticity and prevent tampering with it.

Another principle is Accountability, which goes about proper documentation of every event that occurs in the collection, seizure, storage, and transfer of digital evidence. Every step of the way is documented and available for inspection to ensure transparency. Ideally, such a procedure would normally be supported by a technical report, and it would be possible to explain in court what happened in the handling of the evidence.

Because the report is substantiated by expert testimony, it helps evaluate evidence while allowing cross-examination so that the court understands why such findings are rendered. This means that this "chain of custody" ensures that evidence would have been handled responsibly by those who could be legally held accountable so that it is secured in integrity throughout the judicial process.

Indian Supreme Court And The Electronic Evidence

The growth of electronic evidence in Indian judicial proceedings, encompassing audio and video recordings, mirrors the growing role of technology in modern litigation. The Indian courts had cautiously admitted audio and video evidence, prior to formal integration with such safeguards that ensured authenticity and relevance.

Perhaps the first was Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, wherein the Supreme Court regarded tape-recorded speeches as "documents" under "Section 3 of the Indian Evidence Act". This was the case where the Court accepted such recordings as long as they were relevant to the matter before them, which indicated an initial acceptance of electronic evidence in legal procedures, provided that they adhered to the general rules for documentary evidence.

In R.M. Malkani v. State of Maharashtra, the Supreme Court of India set parameters upon determining such taped conversations as being admissible as evidence if certain key conditions are met. Holding further that, before that evidence becomes admissible in court, it must satisfy three requirements: first, there should be direct relevance between the recorded conversation and the matter in contention, hence directly related to legal issues involved. In addition, the voices should be able to be clearly identified to connect the conversation with the persons involved.

Furthermore, the authenticity of that recording must be proved by ridding it from any possibilities of tampering, erasure or manipulation. This is exactly what the Court had asserted that tape-recorded conversations are a relevant fact under "Section 7 of the Indian Evidence Act, 1872", whereby facts that explain a series of connected events are allowed to be admitted. This case underlines how judicature has been cautious about this new electronic evidence so that stringent criteria for authenticity and reliability are maintained.

The admissibility of video recordings as evidence was significantly reinforced in "Jagjit Singh v. State of Haryana", where the Supreme Court validated the use of interview transcripts from various television channels to disqualify a Haryana Legislative Assembly member for defection. The Court ruled that the evidence was in the electronic form in CDs of the recorded interviews-a genuine exercise since digital recordings could play a crucial role in the substantiation of claims in judicial proceedings. It established that Indian courts were learning about and appreciating digital evidence, especially if it was relevant and trustworthy, to help legal decisions.

Although these developments were noted, courts found themselves struggling with the legality and authenticity of recordings primarily when they were acquired illegally. For instance, in "S. Pratap Singh v. The State of Punjab", the Supreme Court accepted a tape-recorded conversation, although it was acquired illegally. The court felt that the conversation was central to the case, and the judiciary has always shown a willingness to admit otherwise dubious evidence if it was central to the conviction process. This decision also reflected the flexibility that Indian courts have exhibited in balancing the need for justice with procedural technicalities, especially in cases wherein the evidence, though illegally obtained, played a pivotal role in the outcome.

But the question of authenticity even more came to the forefront in the landmark case of "Ratan Tata v. The Union of India & Ors," where telephone conversations between Nira Radia and a few people who were involved in the scandal of the 2G spectrum scam came under question regarding their admissibility in court. The conversations, recorded during the government-authorized investigation, cast legal questions of possible rights of privacy against public interest.

Although there were enough reasons for questioning the circumstances of their creation, the Supreme Court accepted them and counted them as evidence once it determined that since they have been authorized, they are thus lawful and pertinent to the case at hand. It was the case that showcased the increasing conflict of private interests versus the interest of the state in carrying out its investigation, and the recording of electronic evidence goes directly in the middle of these conflicting rights.

Arjun v. Kailash added further clarity on the admissibility of electronic evidence under legal law. The central issue here was regarding the admissibility of video footage in an election petition. This case contested a candidates election after it was alleged that his nomination papers were submitted beyond the deadline stipulated under the law. In its evidence, it relied on video recordings from the Election Commission.

Even without affixing the certificate under "Section 65B(4) of the Evidence Act," the High Court accepted the video recording based on the deposition of the Election Commission officer who attested that the records were genuine. This move sparked controversy as it revolved around the interpretation of "Section 65B(4)," wherein a certificate must accompany the electronic evidence if it is to be considered sound and valid.

This judgment of the Supreme Court by Justice Nariman further defined an important distinction between the original electronic record and its secondary copies. A certificate under "Section 65B(4)" would be relevant only when secondary copies - such as printouts or CDs were in question. Appellants contention that the secondary electronic evidence would be inadmissible if no certificate was issued under Section 65B of the Act, has been clarified by the law, in that if the original electronic record, like this video recorded on the Election Commission computer, is available and authenticated by the person responsible for the storage, no certificate is required and hence, is admissible under Section 65B.

Justice Narimans judgment in Arjun v. Kailash came in the same line of reasoning as that in the earlier judgment in Anvar v. Basheer, which really changed the face of electronic evidence treatment in India. In Anvar, the Court held that Section 65B, introduced by the Information Technology Act of 2000, amounts to a complete code regarding the admissibility of electronic evidence. Section 65B accordingly made compliance absolutely necessary, and other general provisions such as Sections 63 and 65 of the Evidence Act-the sections which governed secondary evidence generally-could not be relied upon to circumvent compliance. This brought the principle that electronic evidence requires special safeguards to ensure its integrity as electronic records are inherently vulnerable to manipulation and falsification.

Justice Nariman further pointed out that Section 65B places procedural compulsions on electronic evidence, and oral evidence as to the contents of the electronic record is not permissible unless the strict provisions of Section 65B are satisfied. This is necessary lest tampered or altered evidence creeps into the judicial records by saying that a digital record, including video and audio recordings, cannot be called for strict scrutiny. The judgment also introduces a layer of protection by admitting the oral evidence of the authenticity of the original electronic record once admitted properly, under Section 22A of the Evidence Act.

Video and audio recordings have emerged as a strong form of evidence in Indian courts with both the judiciary recognizing their potential and their risks. The cases of Jagjit Singh, Arjun v. Kailash, and Anvar v. Basheer reflect a judiciary that is increasingly accommodating digital evidence but insisting on rigorous safeguards to ensure fairness and reliability.

The inclusion of "Sections 65A and 65B of the Indian Evidence Act" is indeed a significant step forward as regards the legal treatment afforded to electronic records and audio and video evidence in particular, wherein such material would be admissible only under conditions of ensuring authenticity. Such provisions further go in with the rationale of ensuring that the advancement of technology had to be balanced with legal safeguards in order to protect the integrity of judicial proceedings from breaches in the digital age.

Challenges To Authenticity Of Electronic Evidence

Authenticating electronic evidence presents several challenges that impact its reliability and admissibility in court. Key issues include the potential alteration or manipulation of records between their creation and court presentation, and the reliability of the software that generated them. Identifying the author of digital documents like emails or SMS can be difficult, especially without clear links to the individual. Social media evidence further complicates matters, as authorship can be ambiguous. Access control issues arise when multiple individuals use the same device or network, complicating the attribution of actions or communications. Additionally, cloud computing introduces challenges with data storage across jurisdictions and ensuring point-in-time accuracy.

Effects Of Considering Electronic Evidence As Primary Evidence Or Direct

The admissibility of electronic evidence under "Sections 65A and 65B of the Indian Evidence Act" has also blurred the traditional distinction between primary and secondary evidence. While such distinctions still apply to physical documents, electronic evidence, due to its digital nature, is treated as primary evidence despite being reproducible only through printouts or CDs. This shift has proven particularly beneficial in criminal prosecutions, where electronic evidence, such as transcripts of internet transactions, plays a pivotal role, as seen in high-profile cases like "State (NCT of Delhi) v. Navjot Sandhu" and the "Ajmal Kasab case."

However, the risk of manipulation of electronic records remains a concern, though advances in computer forensics provide tools to detect tampering. The broad scope of "Section 65A and 65B", potentially encompassing any device with a computer chip, has opened the possibility for a vast range of evidence to be admitted, raising practical and ethical concerns. The Supreme Court, for instance, has ruled against the admissibility of narco-analysis results, citing their violation of "Article 20(3) of the Constitution". Each new form of technology used to produce evidence must, therefore, be carefully examined for its constitutional and legal implications before being permitted in court proceedings.

Critical Analyses
In civil or criminal proceedings before the Indian courts, parties applying to advert to emails, websites, or any electronic record before the Indian Courts have to strictly comply with "Section 65B of the Indian Evidence Act." The Indian Supreme Courts stand tries to safeguard the reliability and evidentiary value of electronic documents, which are more easily tampered with and manipulated. Judge Kurian in a judgment has observed that even electronic data-based trials would commit errors if appropriate measures are not provided.

Electronic documents tamper, alter, transpose and even excise much more easily while taking the flow into consideration. Consequently, courts must not rely purely on documents created from computers as they may be sensitive to such alterations. By making an assumption that electronic evidence created in the normal course of events by an individual not a part and parcel of the proceedings and beyond the control of the proponent bears prima facie authenticity, an amendment to the Indian Evidence Act can help lessen such dangers.

It would go a long way toward reducing the risk of manipulation if digital records were made by a party whose interests are adverse to those of the record proposer and if the record were used against the adverse party. As a matter of fact, it is said that if an uninterested party knew the record had been tampered with, it would not certify it as authentic.

The law must also imaginatively address the proponents duty of testifying about the documents authorship, whether it was changed after it was created, the dependability of the software used to create it, and its completeness. Further, courts need to be aware that data can easily be falsified or changed and that "Section 65B" does not fully account for those possibilities.

For instance, the sender may change the contents of a forwarded e-mail and the recipient may even be unaware of that. Hence, third-party certificate cannot ensure document authenticity every time. However, the digital age has raised some issues of great importance that have raised questions about the truthfulness of electronic evidence, such as information forgery and masquerade.

This casts doubt over the creation and communication of electronic messages and, in particular over anyones ability to assume the name of the author. A prudent course of action might be for the government or the courts to put together a panel of experts in digital evidence whose task would be to assist the courts in establishing whether such electronic documents are authentic.

India is way behind the rest of the world in terms of this development and has substantial challenges concerning the admission as well as scrutiny of electronic evidence. Even though the burden on the individuals who favour electronic records has decreased following amendments, still the amendments are far from being flawless. India still does not have a proper mechanism to ensure authentication of electronic records and still remains vulnerable to tampering by other hands, that may get access to their servers or storerooms.

Though electronic evidence offers several advantages, its admissibility remains a complex issue. The courts have to determine whether such evidence is admissible under the three fundamental legal requirements of integrity, reliability, and authenticity. In the wake of the Supreme Court ruling in "Anvar v. Basheer," it is expected that Indian courts will take a uniform stance, laying down the required protections for the admission and assessment of such evidence, clearly laying down guidelines on principles governing the admissibility of electronic evidence.

However, there is a good-sized chink in Indian law. It remains ambiguous on when to start investigating based on some digital content produced-chats or pictures-without even determining relevance or genuineness of evidence to prima facie make a criminal case. The recent Delhi Boys Locker Room case where the police have arrested the alleged culprits before the forensic report has come out is an example of this lacuna.

It was later verified that the one responsible for the incident was the complainant herself. That would mean verification from the experts of digital evidence should also be done before presenting it to the law enforcement agencies, whether in criminal or civil cases. In civil cases, such as consumer protection or digital contracts, there should be verification from the experts about authenticity and relevance of electronic evidence before allowing it in court.

In the opinion of the author, independent authentication and verification by an independent authority regarding electronic and digital evidence are absolutely necessary. Such a body will offer detailed reports, which would hold opinions on whether the evidence brought before them is original or it has been physically created or engineered using sound mixers or Photoshop manipulation. The credibility and reliability of electronic evidence in Indian courts of law will substantially improve if such a system were in place.

Recommendations
The safeguarding of electronic evidence can only be effective if several main steps are as follows:
First, use write-blocking devices during data collection to prevent any changes. Thereafter, record everything very carefully and ensure that all steps involved in the process are adequately documented and recorded, including chain of custody. Store the evidence securely; apply tamper-evident seals where necessary and maintain a controlled environment to prevent unauthorized access. Access shall be strictly limited to authorized personnel, with strong authentication methods, and it should also be periodically checked to verify compliance.

All data should be encrypted in transit, as well as at rest, with encryption keys stored separately. Copies of evidence should be made regularly so that evidence is not lost due to hardware failure or accidental deletion, and accepted digital forensic tools should be used in the manipulation and analysis of data in such a way that it would least alter evidence.

Evidence should be handled as little as necessary, while ensuring that personnel involved have thorough training on the handling of evidence, kept abreast of the latest techniques and technologies. Establish and enforce standard operating procedures for handling evidence, regularly updating these processes for new technologies and legal standards. Use qualified digital forensics professionals and best practices, and invest in ongoing training from these experts for especially complex cases. This ensures adherence to best practices and these experts are consulted on the specific needs of a case in respect of admissibility of electronic evidence.

References:

• The Indian Evidence Act, 1872
• Bharatiya Sakshya Adhiniyam, 2023
• Batuk Lal : The law of Evidence
• Ratanlal & Dhirajlal : The law of Evidence
• International Journal of Law, Management and Humanities, Vol. 2. Available at: https://heinonline.org/HOL/Page?handle=hein.journals/ijlmhs2&div=17.
• Admissibility of Electronic Evidence: An Overview. Forensic Research & Criminology International Journal, Vol. 4, 2022. Available at: https://d1wqtxts1xzle7.cloudfront.net/92593763/FRCIJ-04-00109-libre.pdf?1666027292.
• https://heinonline.org/HOL/Page?handle=hein.journals/ijlmhs2&div=17&g_sent=1&casa_token=&collection=journals
• A Comparative Analysis of Admissibility and Relevance of Electronic and Digital Evidence in Criminal Cases (2022) https://ijirl.com/wp-content/uploads/2022/05/A-COMPARATIVE-ANALYSIS-OF-ADMISSIBILITY-AND-RELEVANCE-OF-ELECTRONIC-AND-DIGITAL-EVIDENCE-IN-CRIMINAL-CASES.pdf

Written By:

• V. Medha &
• Sanket Majumder