This article is written by Dhruv Acharya, a student of NMIMS, Bangalore.
Abstract
Due to technological advancement, there is an exponential increase in digital evidence introduced in court. These consist of emails, data records from social media, footage from CCTV cameras, call records, etc., and all electronic transactions. In India, admissibility elements of this kind of evidence are, to a limited extent, governed by the Indian Evidence Act of 1872 and the Information Technology Act of 2000. Besides establishing facts clearly, the digital evidence poses challenges in terms of authentication, risk of tampering, and violation of privacy. This article discusses the legal framework governing digital evidences in India, admissibility, landmark cases, and the challenges that courts continue to face with respect to electronic records.
Keywords: Digital Evidence, Information Technology Act of 2000, Indian Evidence Act of 1872, admissibility
Introduction
There is an increasing shift from traditional documentary evidence to electronic records in legal cases with the growing reliance on digital platforms. Indian courts have acknowledged the importance of digital evidence in civil and criminal litigation. The legal provisions concerning admissibility of such evidence are very strict so those manipulations can be avoided and reliability ensured. Sections 65A and 65B of the Indian Evidence Act, 1872, put conditions under which electronic records can be admitted as evidence in a court of law. This article talks about the evolution of digital evidence, the legal framework surrounding it, landmark judgments related to it, and the challenges that have arisen concerning its admissibility in Indian courts.
Legal Framework Governing Digital Evidence in India
The Indian legal system is furnished with provisions regulating and authenticating electronic evidence. These include the following key provisions:
Indian Evidence Act, 1872:
- Section 65A: Provides that the electronic records can be proved according to Section 65B.
- Section 65B: Lays down the conditions of admissibility of electronic records. This section requires certification of the digital record.
Information Technology Act, 2000:
- Gives legal recognition to documents in electronic form and digital signatures.
- Covers crimes concerning cybercrime and data breach.
- Criminal Procedure Code and Indian Penal Code:
- Deals with investigation and prosecution concerning crimes in cyberspace.
Admissibility of Digital Evidence in Indian Courts
For the digital evidence to be admissible, the following four conditions have to be fulfilled under Section 65B:
- The electronic record was produced by a computer system that was properly functioning and reliable.
- The record was generated during the ordinary course of operations.
- The certificate was allowed to be issued by a person who is responsible for the operating of such a computer.
- Under Section 65B(4), this certificate must also state that the digital evidence in question is genuinely on the same source and has not been affected by any tampering.
Historic Judgments on Digital Evidence
- State (NCT of Delhi) v. Navjot Sandhu (2005): The Supreme Court held that electronic records such as call logs and mobile tower locations are admissible, even without a Section 65B certificate, if presented by an expert.
- Anvar P.V. v. P.K. Basheer (2014): The Supreme Court ruled that electronic records must comply strictly with Section 65B for admissibility, overruling earlier judgments that allowed secondary evidence without certification.
- Shafhi Mohammad v. State of Himachal Pradesh (2018): The Court provided relief by stating that a Section 65B certificate is not mandatory when the party presenting the evidence does not have control over the original device.
- Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020): The Supreme Court reaffirmed that compliance with Section 65B is mandatory unless the original electronic record is produced.
Challenges in Admitting Digital Evidence
Irrespective of the provisions in the law, courts continue facing a considerable number of challenges respecting digitised evidence:
- Authentication and Tampering: Digital evidence could be changed; thus, authentication becomes vital. The courts call on forensic experts to confirm its integrity.
- Issues with Section 65B Certification: Obtaining 65B certification can be very challenging when there are electronic records coming from third parties (such as social media platforms, network service providers, etc.).
- Privacy and Data Protection: The collection and display of digital evidence are to strike a balance between the interests of the investigation and the individual’s rights to privacy. The court faces conflicts between the admissibility interests and the fundamental rights guaranteed by Article 21 in the Constitution of India.
- Lack of Awareness and Technical Expertise: The majority of lawyers and judges may not necessarily possess the technical ability to evaluate the digital evidence. This creates a situation where it does become very difficult in assessing the authenticity and relevance.
- Jurisdictional Problems Relating to Cyber Evidence: When data is stored on cloud servers outside India, jurisdictional conflicts arise in relation to such evidence. Courts have some difficulties forcing foreign service providers to furnish such evidence;
Conclusion
The recognition of digital evidence before the court system in India is indeed a watershed moment in the conduct of justice. While the Indian Evidence Act and Information Technology Act tend to set the framework for admissibility, there still remain serious impediments in authentication, certification, and privacy. The judicial interpretation in the cases of Anvar P.V. v. P.K. Basheer, Shafhi Mohammad v. State of Himachal Pradesh, etc., astonishedly guided the approach toward digital evidence admittance. It is high time that Indian courts, in order to render justice in the digital age, resort to sophisticated forensic techniques and thorough awareness of the law and procedural law to face the demanding circumstances of technology.
