In these unprecedented times we have seen how world has started accepting the technological shifts that accompanied the pandemic. The impacts resulting over to a wide range of sectors comprising of education, healthcare, news media, e-commerce including the legal profession. People and organizations all over the world have had to adjust to new ways of work and life. In this article we’ll mainly be focusing upon how these waves have been affecting the process of administration of justice and the role of electronic evidence in their functioning.

Primarily we need to know that the evidence consists of three parts:

1. electronic records,
2. documentary evidence other than electronic records, and
3. oral evidence.

While the documentary and oral evidence have existed traditionally, electronic evidence got introduced at the later stage. Nevertheless, there is a general consensus that electronic evidence is important and relevant; however its usefulness as courtroom evidence is still a matter of debate.

In this article we’ll be discussing the meaning of electronic evidence, its evolution, current status in Indian Judiciary along with relevant case laws, legal provisions associated in addition to its relevancy and admissibility. We’ll also see the comparison with other countries in their practices.

Meaning And Characteristics Of Electronic Evidence

To start with, electronic evidence is called by different names mainly as ‘E-evidence', 'digital evidence' or 'computer evidence'. Electronic evidence is defined as information and data of value to an investigation that is stored on, received or transmitted by an Electronic device. This definition will include any form of device, whether it is a computer/laptop, telephone systems, wireless telecommunications systems and networks, such as the Internet; and computer systems that are embedded into a device, such as mobile telephones, smart cards and navigation systems.

The various categories of E- evidence includes data storage in way of:

• Computers/laptops, CD/DVD’s, floppy disks, hard drives, thumb drives
• Memory sticks and memory/SIM cards, PDA’s, cell phones/mobile
• Fax machines, answering machines, pagers, caller-ID, scanners, printers and copiers.
• CCTV.
• Website data, social network communication, e-mail, instant chat messages, SMS/MMS.

Characteristics of E-evidence:

• Is latent like Fingerprints and DNA.
• It can transcend borders with ease and speed.
• Intangible and fragile in nature due to which can be altered or destroyed easily.
• Can be time sensitive.
• Requires expert testimony.
• Requires unique tool equipment and specialized training.

Evolution Of Electronic Evidence

Electronic evidence processing is a growing topic with numerous potential needs to help realize its full potential for the criminal justice system. As early as 1984, the FBI Laboratory and other law enforcement agencies began developing programs to examine computer evidence. A Scientific Working Group on Digital Evidence (SWGDE) was formed to address issues about the concept of digital evidence, including digital computer evidence, digital audio and video evidence and similar matters. Later at the July 1998 meeting, SWGDE began to draft definitions which included definitions such as of ‘Digital Evidence’.

The evolution of Information Technology (IT) has necessitated the amendments in Indian law to incorporate the provisions on the appreciation of digital evidence. It was inserted by the Indian Parliament on 17 October, 2000 with the Information Technology Act, 2000 coming into force. The IT Act, 2000 and its amendments were based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce.

With its introduction came certain amendments in the Indian Evidence Act, 1872; the Indian Penal Code, 1860 and the Banker’s Book Evidence Act, 1891. According to section 2(1)(t) of the IT Act, the term "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro-film or computer-generated micro fiche.

The Evidence Act, 1872 underwent few major modifications in its legal provisions. To begin with virtue of Section 92 of the IT Act the term "evidence" was amended to include "electronic record", which was given the same meaning as assigned to it in the IT Act. The definition of ‘Admission’ under section 17 was changed to include- a statement, oral or documentary, or contained in electronic form. Moreover section 65(A) & 65(B) was inserted under the second schedule to the IT Act to lay down the admissibility standards of e-evidence. More such adaptations were introduced in the Act to adopt with the processing of E-evidence.

It also introduced amendments in the Indian Penal Code, 1860 with respect to offences for the production of documents that have been amended to include electronic records.

Few of which includes:

• Absconding to avoid the production of a document or electronic record in a court (section 172
• Intentionally preventing the service of summons, notice or proclamation to produce a document or electronic record in a court (section 173);
• intentionally omitting to produce or deliver up the document or electronic record to any public servant (section 175);
• fabricating false evidence by making a false entry in an electronic record or making any electronic record containing a false statement, intending the false entry or statement to appear in evidence in judicial proceedings (sections 192 and 193);

The destruction of an electronic record, where a person secrets or destroys an electronic record, or obliterates or renders illegible the whole or part of electronic record with an intention of preventing the record from being produced or used as evidence (section 204); making any false electronic record (section 463 and 465).

While in the Banker’s Book Evidence Act, the definition of ‘banker’s book’ has been amended to include the printout of data stored in a floppy, disc or any other electro-magnetic device (section 2 (3)), and section 2(A) which provided that the printout of an entry or a copy of a printout must be accompanied by a certificate.

The legal interpretations by the Courts of India have been challenging the electronic evidence and its admissibility from time to time. In State vs. Mohd. Afzal and Ors.[1], well known as the Parliament attack case, it was for the first time test for admissibility under Sec 65(B) was considered. A range of developments was followed to include the provisions relating to the recognition and admissibility of digital evidence under the Indian law.

Laws In India Related To Electronic Evidence

Below mentioned are some sections and sub-sections given under Indian Evidence Act, 1872 to guide the court proceedings in the matter of e-evidence:

1. Sec 45A: Opinion of examiner of electronic evidence
   When in a proceeding, and the court has to give judgement 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 the Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 is a relevant fact. Section 65A provides that the contents of an electronic record - which was earlier used to be proved in accordance with Sections 61 to 65 of the Act - may be proved in accordance with the provisions of Section 65B. Section 65A provides that the contents of an electronic record - which was earlier used to be proved in accordance with Sections 61 to 65 of the Act - may be proved in accordance with the provisions of Section 65B.
    
2. Sec 47A: Opinion as to electronic signature when relevant
   When the court has to decide on the relevancy as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact. A “certifying authority” means a person who has been granted a license to issue a digital signature certificate under S.24 of the Information Technology Act, 2000.
    
3. Sec 63: Call records of the cellular phones
   Call records of cellular phones are stored in huge servers, which cannot be easily moved and produced in courts. Hence, secondary evidence of such records should be allowable under sections 63 and 65. Whether or not the requirements of Section 65B(4) are satisfied. Also, court can call an expert to examine the data. But in any case the discretion to admit the evidence lies with the court.
    
4. Sec65: Cases in which secondary evidence relating to documents may be given
   There are many scenarios in which court can accept secondary evidences relating to a document. For example, when the party can prove that the original document is in possession or power of the person against whom the document is sought to be proved, when the original is of such a nature as not to be easily movable, when the original is a public document within the meaning of section 74.
   
   The following two sections, namely, section 65A and section 65B have been added in the Indian Evidence Act, 1872 by the Information Technology Act, 2000.
   
   1. Sec65A: Special provisions as to evidence relating to electronic record.
      65A provides that the contents of the electronic evidence may be proved in accordance with the section 65B which earlier was used to be proved in accordance with the sections 61 to 65
       
   2. Sec65B: Admissibility of Electronic Records.
      Any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical media produced by a computer shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question. Also, there are 2 sub-clauses in section 65B which specify the criteria for an e-record or output in order to be admissible. Evidences like audio CD, video recordings are admissible in court but to admit a document, the discretion lies with the court. Testimony or statement through Video conferencing is also admissible now in civil cases as it was admissible in criminal cases from a while before.
      
      There have been various interpretations over the scope and ambit of Section 65B, with divergent views taken by the Indian Courts. In a decision delivered on July 14, 2020, a three-judge bench of the Supreme Court, in Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal[2] (Arjun v. Kailash), has clarified all previous inconsistent views on Section 65B which were taken in three earlier decisions of the Supreme Court in Anvar P.V. v. P.K. Basheer[3], Shahfi Mohammad v. State of Himachal Pradesh[4], and Tomaso Bruno v. State of Uttar Pradesh[5].
       
   3. Section 67A: Proof as to Electronic Signature.
      Except in case of a secure electronic signature, if the electronic signature of a person is alleged to have affixed with an electronic record the fact that the signature in record is the signature of the same person must be proved. A secure electronic signature can be made according to the guidelines given in the website of Ministry of Information and Technology.
       
   4. Section 73A: Proof as to verification of Electronic Signature.
      In order to verify the digital signature of a person, the court may direct the person or certifying authority to produce the Digital Signature Certificate or any other person to apply the public key listed in the Digital Signature Certificate.

Comparative Analysis Of Law On E-Evidence With Other Countries

Laws on electronic evidence and their admissibility in court of law is a matter of debate worldwide. Some countries are still to make a law on the matter while some are progressive with their law on electronic evidence. For example in United States of America courts apply Federal Rules of Evidence to digital evidence in a similar way to traditional documents, although important differences such as the lack of established standards and procedures have been noted.

In December 2006, strict new rules were enacted within the Federal Rules of Civil Procedure requiring the preservation and disclosure of electronically stored evidence. Digital evidence is often attacked for its authenticity due to the ease with which it can be modified, although courts are beginning to reject this argument without proof of tampering.

The problem to admit the electronic documents as evidence occurs because electronic documents can be modified, changed, tampered easily. USA is the second largest democracy in the world after India and also India took many of the parts directly from the US constitution for the Indian constitution.

Currently, laws in India and USA are not much different from each other but one thing is exactly same which is both are continuously amending its laws especially regarding electronic evidence. Stricter policies and procedures are made so that these policies and procedures can assist the courts in smooth functioning.

In UK under section 69 of the Police and Criminal Evidence Act 1984, computer-produced evidence is admissible as long as there are no reasonable grounds for believing that the statement it contains is inaccurate because of improper use of the computer. In addition, at all material times it must have been operating properly (or any malfunction did not affect the production of the document or the accuracy of the statement).

For the law enforcement authorities, it is also vital to obtain the document or evidence legally. Guidance for seizing e-evidence is provided in the Good Practice Guide for Computer-Based Electronic Evidence. These seizures are impacted by the Police and Criminal Evidence Act 1984, The Regulation of Investigatory Powers Act 2000 and The Data Protection Act1998. These acts contain the guideline as to what can be seized, how can be seized and how it should be kept, transported etc.

The U.S. Federal Rules of Evidence, the UK Police and Criminal Evidence Act (PACE) and the Civil Evidence Act, and similar rules of electronic evidence in other countries were established to help evaluate evidence. For instance, before admitting evidence, a court will generally ensure that it is relevant and will evaluate it to determine if that is what its proponent claims.

Conclusion
With the change in law, Indian courts have developed various provisions for the recovery and admissibility of digital evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

The recent leakage of electronic evidence (through Whatsapp chats) has highlighted the present issue. It is now vital for the Indian courtrooms to set up specific rules and procedures for smooth functioning of courts for the sake of admissibility of electronic documents.

References:

1. Indian Evidence Act,1872
2. Information Technology Act, 2000
3. Indian Penal Code, 1860
4. Banker’s Book Evidence Act, 1891
5. Relevancy and admissibility of electronic evidence https://www.lawteacher.net/.../relevancy-and-admissibility-of-electronic-law
6. Electronic Evidences and Its Challenges” - by Swarupa Dholam mja.gov.in/Site/Upload/GR/Article%20on%20Electonic%20evidence.pdf
7. https://medcraveonline.com/FRCIJ/admissibility-of-electronic-evidence-an-indian-perspective.
8. Digital Evidence and the U.S. Criminal Justice System, Identifying Technology and Other Needs to More Effectively Acquire and Utilize Digital Evidence- Sean E. Goodison, Robert C. Davis, and Brian A. Jackson.
9. https://www.mondaq.com/india/trials-appeals-compensation/944810/use-of-electronic-evidence-in-judicial-proceedings

Digital Evidence: An Indian Perspective

1. (2003) 71 DRJ 178 (DB): 2003 SCC Online Del 935
2. C.A. Nos. 20825-20826 of 2017
3. 2014 10 SCC 47
4. 2018 5 SCC 311
5. 2015 7 SCC 178

Written By:

1. Ushma Pandey And
2. Tushar Tak