Electronic Evidence Under The Bhartiya Sakshya Bill, 2023: A Pandora’s Box To Be Reopened!!

Looking back at the jurisprudence, one can surely say that the evidence act in its present form did amazing job in dealing with the traditional cases pertaining to oral and documentary evidence. Where the language fell short, courts rushed to rescue.

However, the present law was not yet adept at the new technological advancements and ever evolving mutants of electronic evidence. The amendment brought by the Information Technology Act of 2000 created more issues, then it sought to resolve. With this amendment of 2000, started the journey of pendulum jurisprudence on the electronic evidence. The dust rose by Navjot Sandhu^[1] in 2005 settled down only in Arjun Khotkar^[2], few important issues, still begging for the answers.

This state of flux lasting for more than two decades itself exhibited insufficiency and inadequacy of the amendment that IT Act of 2000 brought. Many High Courts and even Supreme court time and again underline the need for new law to deal with electronic evidence at par with some other countries. In one recent judgment^[3], the Madras High Court emphatically underlined the need of new law, after quoting the authors book on the electronic evidence^[4]. With the deletion of English counterpart of section 65B, this demand derived strong legitimacy.

With this ever changing judicial paradigm and fast paced electronic evidence, all the hopes were pinned on the new law.

When finally an announcement was made about introduction of the Bhartiya Sakshya Bill, 2023, all thought this to be the moment.

But..alas, even a cursory perusal of sections dealing with electronic evidence, makes a shocking revelation and gives a gloomy glimpse into the upcoming saga. This, in fact, makes the earlier version look better, apart from the fact that it was by now at least tested and set by the Supreme Court.

Let us see where the problem lies !

The entire journey of interpretation of S.65B of electronic evidence began in Navjot Sandhu judgment. In this case, the Supreme Court, said that electronic evidence can also be proved with the help of the sections that deal with documentary evidence i.e. S. 59 to 65. [E.g. S.65[d] renders the secondary evidence admissible when the original is not easily movable as is the case with huge data servers and computers].

The Supreme Court in effect said, though tool of S.65B is now available, that does not bar utilisation of other sections, which are meant for documentary evidence.

This judgement virtually gave a complete go-bye to the mandate of S.65B since therefrom everyone started following the regime meant for documentary evidence.

After holding the field for more than a decade, came another judgement in the year 2015 of Anvar PV^[5] which totally overruled Navjot Sandhu by inviting attention to the non-obstante clause of section 65B. The opening words of S.65B “notwithstanding anything contained in this act…’, itself completely ruled out the applicability of any other sections including the ones dealing with the documentary evidence, Supreme Court said. One must follow the rigours of section 65B was the ratio.

Thus, now observance of section 65B was held mandatory.

Pendulum again swung in 2018, with a judgement of Shafi Mohammad^[6], which diluted the ratio of Anvar PV. [by holding that the compliance with 65B cannot be compelled if the electronic evidence is coming from the custody of someone other than the owner/operator of the computer/system].

However, all the issues were set at rest with the judgement of Supreme Court in Arjun Panditrao which not only the affirmed the view of the Supreme Court in Anvar PV but also frowned upon its dilution in Shafi Mohammad.

Now, in this background, let us examine what the present Bhartiya Sakshya Bill, 2023 stipulates about electronic evidence.

Section 61, 62 and 63 of Sakshya Bill inter alia deal with electronic evidence.

Surprisingly, Section 61 clearly restores the position of Navjot Sandhu by holding the electronic evidence at par with documentary evidence and goes on to say that “Nothing in this act can be used to deny the admissibility of electronic record, and the electronic record shall have same legal effect, validity and enforceability as paper record.

Note the opening word, “Nothing..” which makes this section supersede rest all.

Section 62 further fortifies this position by saying that the contents of electronic record may be proved in accordance with provisions of section 59 [the section that deals with documentary evidence]

Now comes a major problem and beginning of a conundrum.

Section 63 lays down the position as laid down in Arjun Panditrao. [which is diametrically opposite to the one laid down Navjot Sandhu and reinstated in Section 61].

Section 63 is reincarnation of Section 65B. It is in verbatim replica of S.65B.

Therefore, even the non obstante clause makes its strong appearance in the opening line of section 63. It begins by saying ‘Notwithstanding anything contained in this act….’

Therefore, this non obstante clause overrides all the earlier sections, including section 61, and 62. Therefore, this apparently indicates that one must resort only to section 63 whilst dealing with electronic record.

So one no longer can equate the electron evidence with the documentary evidence as Section 61 attempts to do.

Also, owing to the non-obstante clause, this section has the potential of again being interpreted by the Supreme Court as overriding all other provisions as was done in the judgement of Arjun Panditrao.

In fact, this time the conflict between the two sections would be much more violent and severe. In the earlier legislation, there was nothing to be pitted against the non obstante clause of section 65B. However, in its present Avatar, this non-obstance clause has a worthy opponent in the form of equally strong opening lines of section 61 which say “Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic record on the ground that it is an electronic record and such record shall have the same legal effects, validity and enforceability as paper records’.

The word ‘nothing’ has the ability to annul the effect of non obstante clause appearing in section 63 and vice versa.

In the clash of titans between notwithstanding and nothing, which one will prevail, is the moot question. In the earlier legislation, at least there was a guiding light in the form of section 65A which categorically paved the way for proving the electronic evidence in accordance with section 65B. It said that the contents of electronic record may be proved in accordance with section 65B. This section drew a line of division, though subtle, between the regime of documentary evidence and that of electronic evidence.

However, section 61 is exactly contrary which instead of drawing the line, imports the sections dealing with documentary evidence in the regime of electronic evidence and mixes up both the jurisprudences. Section 61, standing alone, could have sorted the problems. Or Section 63 alone would have redressed the issues. But both holding the field is going to cause a worst ever fight.

In the coming time, the battle between section 61 and 63 is going to rule the court rooms but with much more chaos and confusion. Worst of all, this is going to breed uncertainty again.

Legislators, must not forget that the laws can be good or bad, but they must be certain.

The author is an Advocate Bombay High Court. Views are personal.