Rishav Sen
Abstract
Despite its susceptibility to being tampered or manipulated, the importance of electronic evidence in this day and age cannot be understated. Therefore, it is important to have a comprehensive set of provisions which can reconcile its relevance and admissibility. The Supreme Court in Anvar P.V. v. P.K. Basheer clarified the law governing the admissibility of electronic evidence in India through its interpretation of Section 65B of the Indian Evidence Act, 1872. However, the above interpretation contradicted the literal rule of statutory interpretation and left a lot to be desired in terms of its future implications. Therefore, I shall attempt to recommend certain amendments to Section 65B by studying the best evidentiary practices in the UK, South Australia, and the US.
1. Introduction
The increased use of cyber devices has meant that most of our transactions take place in an electronic form. This has lead to a proliferation of electronic evidence during trials, which courts have had to take cognisance of. Now, electronic evidence, due to their very nature, can easily be manipulated as opposed to their physical counterparts. Therefore, laws governing the admissibility of physical evidence have proved to be incompatible with electronic evidence.
In order to modernize Indian evidentiary practices, Sections 65A and 65B were introduced in The Indian Evidence Act, 1872 (“Evidence Act”) with effect from 17th October, 2000. Section 65B in essence permitted electronic evidence to be admitted as documentary evidence. However, it needed to satisfy the conditions for its reliability and accuracy under Section 65B (2).
Despite its positive intent, the interpretation of Section 65B left a lot to be desired in terms of fulfilling its intended objectives. This is because, different High Courts have adopted an inconsistent and arbitrary approach towards determining what practices are to be adopted to satisfy the conditions under Section 65B (2). In order to resolve this question once and for all, the Supreme Court in Anvar P.V. v. P.K. Basheer & Ors.[1](“Anvar”) interpreted the requirement of a certificate under Section 65B (4) as the only necessary pre-condition for admitting electronic evidence.
Moving forward, I will analyse the position of law in India pre-Anvar and post-Anvar with a special emphasis on case law analysis. Part 2 of this paper will provide a brief overview of Section 65 and study whether the existing framework of law, prior to Sections 65A and 65B being introduced, was sufficient to determine the admissibility of electronic evidence. Part 3 of this paper will analyse the position of law in India prior to Anvar and the inconsistency in interpretations adopted by different High Courts. Part 4 of this paper will analyse the Supreme Court’s holding in Anvar and its interpretation of Section 65B. Part 5 of this paper will analyse the criticisms which arise in Anvar’s interpretation of the law and the difficulties which could arise in its application post-Anvar. Part 6 of this paper will engage in a cross-jurisdictional analysis of the evidentiary principles in the UK, USA, and South Australia to suggest a set of best practices for authenticating electronic evidence in India. This will be followed by my concluding remarks in Part 7 of this paper.
2. Understanding Section 65
2.1. Brief Overview
The Information Technology Act, 2000 (“IT Act”), was enacted to regulate transactions through the electronic medium.[2] As one of its objectives, it amended the Indian Evidence Act by introducing Sections 65A and 65B to acknowledge the growing influence of electronic evidence in Indian courts.[3] Now, the only purpose of Section 65A is to draw reference to Section 65B, which then describes the procedure for authenticating electronic evidence. Therefore, Section 65B will form the focus of our paper moving forward.
Section 65B (1) limits its scope of application to “any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output)”, that is, electronic evidence, which would be admissible as documentary evidence.[4] However, the electronic evidence must satisfy the four conditions laid down under Section 65B (2) with respect to its computer output.[5] The term ‘electronic record’ needs to be read with Section 2(1)(t) of the IT Act which defines electronic record as “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”.[6]
Further attention needs to be drawn towards Section 65B (4) which mentions a ‘certificate’ that can be used for attesting the information specified under any of its three clauses (a), (b), or (c).[7] Moving forward, I shall analyse the ‘mandatory’ nature of this certificate in greater detail in Parts 3 and 4 of this paper.
2.2. Necessity for Sections 65A and 65B
A preliminary question arises at this stage regarding whether the existing framework of the Evidence Act, prior to Sections 65A and 65B being inserted, would have been broad enough to contemplate the admissibility of electronic evidence. Herein, a careful perusal of Chapter V of the Indian Evidence Act would suggest that the answer is in the affirmative for the following reasons. First, Sections 61-65 broadly mirror the provisions under Sections 65A and 65B. The electronic evidence contemplated under Section 65B can come within the scope of primary evidence, as defined in Section 62, which can be made admissible under Section 64 if produced in its original form. However, if the electronic evidence has to be “printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer” then it would be considered as secondary evidence under Sections 63 (2) and (3). Second, the conditions to be satisfied by any electronic evidence under Section 65B (2) would be comparable with Section 65, which lays down the conditions for using secondary evidence in case of documents.
Therefore, Sections 61-65 could possibly contemplate the admissibility of electronic evidence even in the absence of Sections 65A and 65B. However, doing so would involve equating electronic evidence with physical evidence which would not take into cognizance the unique challenges posed by the former. This is because, besides the potential for accidental or deliberate human error, which can affect both documentary and electronic evidence, electronic evidence poses the specific challenges of hardware and/or software failure and the relative ease of tampering or manipulating it.[8] Therefore, a special set of provisions were required to specifically deal with the challenges posed by electronic evidence, which were introduced through Sections 65A and 65B in the Evidence Act.
3. Admissibility Of Electronic Evidence In India Pre-Anvar
The test for determining the admissibility of electronic evidence, as under Section 65B, was considered for the first time by the Delhi High Court in State v. Mohd. Afzal And Ors. (“Mohd. Afzal”). [9] In this case, the Division Bench of the High Court was faced with the question of determining whether the call records of the accused had been admitted in accordance with Section 65B. The appellant-accused in this case argued to the contrary and contended that the certificate required under Section 65B (4) had not been submitted. Since this was a mandatory requirement, the call records being relied on by the prosecution would be inadmissible.[10] However, the prosecution countered that the conditions under Section 65B (2) had been satisfied through the testimonies of the relevant witnesses.[11] The High Court in this case found favour with the argument put forward by the prosecution and observed that compliance with Sections 65B (1) and (2) was sufficient for admitting electronic evidence.[12] Therefore, the key takeaway here was that the requirement of a certificate, as under Section 65B (4), was one among several alternative methods which could be relied on for authenticating electronic evidence.[13]
The decision of the Delhi High Court in Mohd. Afzal was further affirmed during its appeal before the Supreme Court in State (N.C.T. Of Delhi) v. Navjot Sandhu @ Afsan Guru (“Navjot Sandhu”).[14] In this case, the testimonies of the prosecution witnesses were accepted by the Supreme Court for authenticating the call records under Section 65B. Putting forward its justification for the same, the Supreme Court observed that the certificate under Section 65B (4) was not a mandatory requirement.[15] Further, even in the absence of a certificate, the electronic record in question could be admitted under Sections 63 and 65.[16] This raised a concern regarding whether the Supreme Court’s holding violated the principle of generalia specialibus non derogant, that is, the special law shall prevail over the general law.[17] Moving forward, this contention was addressed by the Supreme Court in Anvar, which will be further analysed in Part 4 of this paper.
Hence, there was a general relaxation in the standards for authenticating electronic evidence across different High Courts post-Navjot Sandhu. In most cases it involved the oral testimonies of the following witnesses: a) persons who created the computer output;[18] or b) persons testifying to the fact based on their personal knowledge.[19] However, there have been several instances of courts choosing to ignore the holding in Navjot Sandhuby imposing the certificate under Section 65B (4) as a mandatory requirement.[20] Further, in one exceptional case, the court completely set aside the requirement of authenticating the electronic evidence under Section 65B (1).[21] This is because the other party had consented to admitting certain computer files as evidence.[22]
Therefore, analysis of the case laws prior to Anvar shows the prevalence of judicial discretion while interpreting the test for admissibility under Section 65B, which led to widespread inconsistencies in the application of the law. Eventually, nine years after Navjot Sandhu, the Supreme Court had the opportunity to lay down a uniform standard for interpreting the authentication requirement under Section 65B in Anvar.
4. Understanding The Holding In Anvar
The Supreme Court began its analysis in Anvar by making two preliminary observations regarding the broad interpretation of Sections 65A and 65B. First, it read Section 59, which prohibits the use of oral evidence to prove the contents of documents, with Section 65A, which states that the only way to prove the contents of electronic records is through Section 65B, to exclude the applicability of any provision other than Section 65B while admitting information contained in any electronic record.[23] Second, it disagreed with its own dictum in Navjot Sandhu by upholding the principle of generalia specialibus non derogant. Accordingly, it observed that Section 65B takes precedence over the general law, under Sections 63 and 65, while admitting electronic evidence.[24]The Supreme Court backed up its reasoning by observing that Section 65B begins with a non-obstante clause.[25]
Moving forward, the Supreme Court focused its analysis on Sections 65B (2) and (4) and put forward the following three conclusions with regard to it. First, all four conditions under Section 65B (2) are mandatory due to the use of the ‘and’ conjunction.[26] This understanding appears to be in line with our previous argument in Part 2 of this paper.
Second, the Supreme Court read in five conditions under Section 65B (4) which must be satisfied, in addition to the four conditions under Section 65B (2), while admitting any electronic evidence.[27] The first condition under Section 65B (4) states that “[t]here must be a certificate…”.[28] Herein, the use of the word “must” gives rise to the unequivocal conclusion that an electronic record will be inadmissible under Section 65B in the absence of an accompanying certificate. This particular interpretation of the provision by the Supreme Court will be analysed in greater detail in Part 5 of this paper.
The Supreme Court reached its third conclusion by introducing the requirement of contemporaneity while producing a certificate under Section 65B (4).[29] In coming to its third conclusion, the Supreme Court drew reference to its own dictum in Navjot Sandhu where it observed that “a responsible official had duly certified the document at the time of production itself.”[30] Therefore, the requirement of contemporaneity, which was a mere obiter in Navjot Sandhu, became a part of the ratio decidendi in Anvar. This requirement of contemporaneity proved to be, inter alia, the reason that the electronic evidence in Anvar was deemed to be inadmissible. This is because the certificate in this case was not produced at the time the computer output was generated.[31]
5. Analysing The Holding In Anvar
5.1. Anvar: Reinterpreting Or Reinventing Section 65B (4)?
The restatement of the law under Section 65B (4) by the Supreme Court in Anvar[32] contravened the literal rule of statutory interpretation due to the following reasons. Further, no attempts were made to explain the deviations made.
First, the Supreme Court imposed the certificate as a mandatory requirement without giving litigants any leeway to introduce alternative methods to satisfy the conditions under Section 65B (2). Post-Anvar, this rule has already been applied by the Delhi High Court in Jagdeo Singh v. State where it held that oral evidence was insufficient for authenticating the electronic evidence in question.[33] However, such a conclusion is not supported by the language of the provision. The use of the word ‘shall’, which ordinarily creates a mandatory requirement, is only used in Section 65B (4) to state that the certificate “shall be evidence” of any matter under sub-clauses (a), (b), and (c).[34] However, nowhere does the provision state that the certificate “shall be submitted” in order to authenticate the electronic evidence, or that other alternative methods of authentication are barred. This conclusion is further supported by Sections 65B (1) and (2) which do not specify any method for authenticating the electronic evidence.
Second, Section 65B (4) states that a certificate must do “any of the following things” before laying down the three sub-clauses (a), (b), and (c).[35] The use of the phrase “any of the following things” before the three sub-clauses suggests that a certificate can satisfy either of the three conditions, in order to be deemed valid. However, in its holding, the Supreme Court interpreted the three sub-clauses as individual mandatory requirements for the certificate to be deemed valid.[36]
Third, the Supreme Court went ahead and read in words where none existed in the original provision. The Supreme Court held that a certificate must state the “applicable conditions” under Section 65B (2).[37] However, no such requirement of applicability was present in the original provision. Further, introducing the word ‘applicable’ created a dichotomy between Sections 65B (2) and (4).This is because, each of the four conditions under Section 65B (2) is mandatory in nature. However, the Supreme Court only required the certificate to confirm the “applicable conditions” under Section 65B (2). This contradicts the mandatory nature of Section 65B (2) since the certificate is the only means to satisfy these conditions.
Fourth, the Supreme Court introduced the requirement of contemporaneity in Section 65B (4). This step was clearly extra-statutory since the text of the provision does not draw a reference to any time limit within which the certificate must be produced. The effects of this requirement are already being felt as the Delhi High Court in Ankur Chawla v. CBI applied this test in order to declare the electronic evidence in question inadmissible.[38]
Therefore, the aforementioned criticisms prove that the Supreme Court had not only re-interpreted but re-invented Section 65B (4) in Anvar, by engaging in judicial overreach and displaying considerable negligence in contravening the literal rule of statutory interpretation.
5.2. Potential Consequences Of The Holding In Anvar
Applying the law as interpreted by the Supreme Court in Anvar could lead to several difficulties which will be seen moving forward.
First, it is established law that illegally obtained evidence is admissible in Indian courts,[39] due to the application of the unfair operation principle.[40] However, in case of electronic evidence which has been illegally obtained, it is highly unlikely that the mandatory requirement of contemporaneity in producing a certificate can be satisfied by the party relying on it. This is because, a person “occupying a responsible official position”[41] with respect to a computer would hardly aid a person, who has stolen information, by signing a certificate which would authenticate the illegally obtained evidence against their own interests. This could lead to a contradictory situation wherein illegally obtained evidence would be admissible in Indian courts, but not in an electronic form.
Second, Anvar sets a particularly low threshold for determining the genuineness of electronic evidence. This is because, the only method for authenticating the electronic evidence is the certificate under Section 65B (4), which can be easily subject to fraud or manipulation. Further, the certificate is also not subject to the three-fold safeguards of oath, cross-examination, and observation of demeanour, which is guaranteed in case of an oral testimony.[42] Therefore, there is nothing preventing a party from submitting a fraudulent certificate, other than the fear of being charged for the offence of perjury.[43]
6. Reworking Section 65B Through A Cross-Jurisdictional Analysis
In light of the difficulties posed by the Supreme Court’s holding in Anvar, I shall attempt to rework Section 65B by relying on the UK, South Australian, and American model for authenticating electronic evidence.
6.1. Studying The UK, South Australian, And American Model
Admissibility of electronic evidence in the UK is determined under Section 5 of the Civil Evidence Act, 1968.[44] This provision is identical to Section 65B of the Evidence Act and allows “a statement contained in a document produced by a computer”[45] to be admitted, contingent on it satisfying the conditions under Section 5 (2). Further, the conditions mentioned under Section 65B (2) have also been closely adopted from Section 5 (2).
The South Australian model can be called an improved version of the UK model for authenticating electronic evidence. This is because, Section 59B of the South Australian Evidence Act, 1929[46] introduced three conditions through sub-clauses (e), (f), and (g) in addition to the four conditions under Section 5 (2), which help guard against any tampering or manipulation of the electronic record. These additional conditions are as follows. First, the computer must not have been affected in any manner which would impact the accuracy of its output.[47] Second, records of any alteration to the computer must be maintained by a reasonable person.[48] Third, there must be no reason to believe that the accuracy of the output has been adversely affected due to inadequate safeguards while using the computer.[49] Further, Section 59B (6) departs from the UK model by allowing oral evidence, if the court deems it necessary, while admitting electronic evidence.
The American model for authenticating electronic evidence is covered under Rules 901 and 902 of the Federal Rules of Evidence, 2015. These twin provisions allow the use of several modes including, inter alia, oral evidence, expert testimony, public reports, etc. for authenticating physical evidence. In 2007, the District Court of Maryland in Lorraine v. Markel American Insurance Co. extended the applicability of Rules 901 and 902 to electronic evidence as well.[50] This helped create a flexible framework for courts and parties to admit electronic evidence through multiple means.[51]
6.2. Recommendations For Amending Section 65B
The following suggestions for amending Section 65B are put forward by identifying the best practices in the abovementioned models.
First, the UK model provides us with a starting point since Section 65B (2) is a verbatim adoption of the conditions laid down under Section 5 (2) of the Civil Evidence Act. Further, we should retain the certificate based authentication method for admitting electronic evidence, which has been recognised in the UK. However, the existing conditions under Section 65B (2) need to be supplemented by the three additional conditions under Section 59B of the South Australian Evidence Act. This would make the provision more comprehensive in its coverage by taking into account deliberate attempts to tamper or manipulate the electronic evidence.
Second, pursuant to our discussion in Part 5.2 of this paper, illegally obtained evidence needs to be carved out as an exception to Section 65B to ensure that the likely absence of an accompanying certificate does not affect its admissibility.
Third, Section 65B (4) should be suitably amended to make the requirement of a certificate mandatory while admitting electronic evidence. This is because information pertaining to the authenticity of an electronic record can become quite technical for judges to comprehend in the absence of a certificate. Further, it would ensure a degree of uniformity in the steps taken to authenticate electronic evidence, the absence of which plagued High Courts across the country in the pre-Anvar era.
Fourth, as noted in our discussion in Part 5.2 of this paper, the requirement of a certificate creates a particularly low threshold for determining the authenticity of electronic evidence. Therefore, Section 65B needs to incorporate the American model by allowing courts to demand additional modes of authentication, if they have reasonable grounds to believe that the conditions under Section 65B (2) are not satisfied by the certificate. This would serve the following benefits. First, it will help corroborate the information stated in the certificate and help increase its reliability and accuracy. Second, advancements in technology are bound to create better authentication methods in the future. Pre-empting such a scenario would help us avoid a situation where courts are not able to take recourse to advanced authentication methods due to a mandatory certification requirement.
7. Concluding Remarks
Recently, the Supreme Court had the opportunity to revisit its Anvar judgement in Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal.[52]Accordingly, it upheld Anvar by emphasising on the mandatory nature of the certificate under Section 65B (4). However, it refused to expand its interpretation by allowing any other forms of authentication to supplement the certificate. Therefore, the Parliament should take this opportunity to suitably amend the law in light of the recommendations advanced in Part 6.2 of this paper. This would bring our evidentiary practices on par with leading jurisdictions in this area of law, by embracing modernity.
[The author is a fourth year BA. LL.B. (Hons.) student at Jindal Global Law School]
[1] (2014) 10 SCC 473. [2] The Information Technology Act, 2000, Preamble. [3] Id., Schedule II, Entry 9. [4] The Indian Evidence Act, 1872, § 65B (1). [5]See id., § 65B (2). [6] Information Technology Act, 2000, § 2(1)(t). [7]Supra note 4, § 65B (4). [8] Julien Hofman, Electronic Evidence in Criminal Cases, 19(3) SACJ 257, 258 (2006). [9] (2003) 107 DLT 385. [10]Id at 266. [11]Id at 267 [12]Id at 276. [13]Id. [14] (2005) 11 SCC 600. [15]Id at 57. [16]Id. [17]See Ram Naresh v Emperor, AIR 1939 All 242, at 17. [18] A.M. Perumal v. Star Tours and Travels (India) Ltd., (2010) Cri LJ 3732. [19] Societe Des Products Nestle SA v. Essar Industries, (2006) 33 PTC 469 (Del). [20] Pradeep Kumar v. State of Bihar, (2014) SCC OnLine Pat 483, at 11; Aniruddha Bahal v. CBI, (2014) 210 DLT 292, at 53. [21]Mohd. Tahir Mohmed ArifBakaswala v. State of Gujarat, (2010) SCC Online Guj 4829. [22]Id. [23]Supra note 1 at 6. [24]Id at 7. [25]Id at 6. [26]Supra note 1 at 6. [27]Id. [28]Id. [29]Id. at 8. [30]Supra note14 at 57. [31]Supra note1 at 8. [32]Id. at 6. [33]Jagdeo Singh v. State, (2015) SCC OnLine Del 7229. [34] The Indian Evidence Act, 1872, Section 65B (4). [35]Id. [36]Supra note 1 at 6. [37]Id. [38]Ankur Chawla v. CBI, (2014) SCC OnLine Del 6461. [39]See State Of Punjab v. Baldev Singh, (1998) SCC 2 724. [40] R. M. Malkani v. State Of Maharashtra, (1973) AIR 157. [41] The Indian Evidence Act, 1872, § 65B (4). [42]Code of Civil Procedure, 1908, Order XVIII Rule 4. [43]See Indian Penal Code, 1860, § 191-200. [44]See Civil Evidence Act, 1968, § 5. [45]Id. [46]South Australian Evidence Act, 1929, Section 59B. [47]Id, § 59B (e). [48]Id, § 59B (f). [49]Id, § 59B (g). [50] Lorraine v. Markel American Insurance Co., 241 FRD 534 (2007). [51] Federal Rules of Evidence, 2015, Advisory Committee's note to Rule 901(b). [52] (2020) SCC OnLine SC 571