Issac Asimov has said and I quote-
“I believe in evidence. I believe in observation, measurement and reasoning, confirmed by independent observers. I’ll believe anything, no matter how wild and ridiculous, if there is evidence in it. The wilder and more ridiculous something is, however, the firmer and more solid the evidence will have to be.”
The quote above can be said to be the exact position of the judicial system in India. If it was proven to have happened, then it did! Such is the power of evidence that whatever can be asserted without evidence, can also be dismissed without evidence. In today’s world of digital media, where people are literally living their lives on the internet, the biggest question that face the court is that what exactly to do with evidence that is produced in the form of electronic medium? Is it admissible? Can we truly take into consideration the relevance of watsapp chats knowing that they could have taken place between anyone as they are faceless and nameless most of the times? Can we really judge someone on the basis of the pictures he/she posts on their Instagram account? Can a person produce an alibi on the basis of his phone location? All these and many more questions arise before us when we talk about the admissibility of electronic evidence in a trial.
The concept of "electronic evidence" has been introduced through the Information Technology Act, 2000 ("IT Act") and the related amendments in the Evidence Act, 1872 ("Evidence Act") and the Indian Penal Code, 1860 ("IPC"). The IT Act and its amendment are based on the United Nations Commission on International Trade Law ("UNCITRAL") model Law on Electronic Commerce.
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. Section 4 of the IT Act expressly recognises the validity and use of electronic records in place of ordinary paper-based records.
The Evidence Act was amended by virtue of Section 92 of the IT Act and the term "evidence" was amended to include "electronic record", thereby allowing for admissibility of the digital evidence. Prior to the legal recognition granted to electronic evidence, Sections 63 and 65 of the Evidence Act majorly dealt with and provided for the conditions for admissibility of electronic evidence. As per these provisions, the electronic evidence gathered through various means by applying cyber forensics was deemed as a "document" and the printed reproductions were considered secondary evidence, which required certification of authenticity from a competent signatory who was susceptible to cross-examination relating to the certified document.
We know that it is wrong always. Everywhere and for everyone to believe anything upon insufficient evidence. But if all the evidence that is actually available is in the electronic form, can it be said to be sufficient? To understand this, it is pertinent to first know that evidence can either be Primary or Secondary.
Primary evidence as the name suggests, refers to the documents in their authentic or standard form presented before the court for the purpose of inspection, to check its validity. For it to be primary, the document must be produced before the court in its original form because it is only then that the document is unmediated and highly reliable as it is considered to be free from tampering, addition or omission.
Secondary evidence is also proof of facts like primary evidence but is comparatively less important in nature. These are provided when the primary evidence is not present or cannot be produced before the court. When it comes to the source of evidence, primary evidence is the fundamental or the original source while secondary evidence is the alternative source. In case of digital evidence for example, of you go to a photo studio, all the copies received by you when you get a photo clicked become primary evidence whereas if you go to a studio to get the copy of a photograph clicked previously, then this will amount to secondary evidence.
Having understood this, now the question is what happens when electronic evidence needs to be produced before the court? The Supreme Court of India has held that the production of the electronic record can be achieved by the owner of the computer-device (a laptop, computer tablet, mobile phone etc.), on which the electronic record is stored, by first producing the device before the Court, and then stepping into the witness-box to prove that the concerned device on which the original information is first stored is owned, or operated, by him.
Regarding the Secondary evidence, the Court has also held that in cases where the 'computer' happens to be part of a 'computer system' or 'computer network' and it becomes impossible to physically bring such a system or network to the Court, then the only means of providing information contained in such electronic record would be to produce the computer-output (printout, CD, DVD, USB-drive etc.) of the electronic record. Such computer-output must be obtained in a manner compliant with S.65B of The Indian Evidence Act, and it must be accompanied by a certificate under S.65(B)(4). This certificate may be issued by the appropriate person mentioned under S.65(B)(4) to the best of his knowledge 'or' belief.
Also considering the large usage of call records and messages in trials as evidence, the Apex court in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors also noted that the present relevant licensing terms oblige ISPs and Cellular Companies to preserve logs of internet usage and call records of users for a limited period of one year; and that this may lead to difficulties in situations where a certificate under S.65(B)(4) is sought to be procured from them post the expiry of this one-year period.
The Court noted that the Police or an individual (interested, or party to the litigation in any form) might fail to procure the record, or to procure the certificate, within this one-year period; a post-dated certificate issued then by the ISP or Cellular Company would in all probability render the data unverifiable –and place the accused in a perilous position, since if the accused wants to challenge the authenticity of the certificate, the underlying data itself may be missing.
To address this situation, the Court has issued general directions to ISPs and cellular companies to maintain call records and other relevant records for the concerned period in a segregated and secure manner, if a particular call or other record is seized during investigation in the said period. This arrangement would then permit the concerned parties to summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness.
The Court has made these directions applicable to all judicial proceedings, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act, 2000.
In addition to electronic records being led in evidence, there has also been an increase in reliance on electronic media for other purposes in judicial proceedings. While recognizing the advantage of electronic media such as emails, WhatsApp messages, etc., the Supreme Court has encouraged parties / their advocates to serve the counter party through e-mail, in addition to the usual modes of service in commercial litigation and litigation wherein interim relief is prayed for. A similar view has also been taken by the Bombay High Court. In the recent times, even service through WhatsApp has been recognized by the Delhi High Court and the Bombay High Court.
With the enactment of the IT Act and the subsequent Amendments in the Evidence Act, the use of electronics records in judicial proceedings has gone a long way. However, despite various judicial precedents stressing on the importance of the certificate, the certificate has become a mere formality. Even thereafter, with the continuous evolution of the cyber space, it would be apposite that the courts keep up with the changes in cyber space, to promote certainty in the use of such electronic records, while taking into account all practical aspects.