Electronic Evidence In The Bharatiya Sakshya Bill, 2023 – Regressive Or Progressive?

Section 65 B of IEA:

The interpretation of Section 65 B of IEA has resulted in several interesting decisions. In State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600, the Supreme Court held that the Call Data Records are admissible even in the absence of a certificate as required under Section 65 B (4) of IEA. About a decade later, a 3 judge bench in Anvar P.V. vs. P.K. Basheer (2014) 10 SCC 473 overruled Navjot Sandhu alias Afsan Guru (supra) and held that secondary evidence by way of electronic record is wholly governed by Sections 65 A and 65 B of the Evidence Act and consequently evidence by way of a CD, DVD, chip etc. are required to be accompanied by a requisite certificate without which the evidence becomes inadmissible. However, another 3-judge bench in Tomaso Bruno vs. State of Uttar Pradesh (2015) 7 SCC 178 held that the secondary evidence of electronic records can also be led through Section 65 of the Evidence Act.

In Sonu v. State of Haryana, (2017) 8 SCC 570, another dimension was added by holding that the certificate under Section 65-B of the Evidence Act only pertains to the mode or method of proof and was procedural in nature and hence, if no objection was raised at the time of marking the electronic record, such objections cannot be raised for the first time in appeal. In Shafhi Mohamad vs. State of Himachal Pradesh (2018) 2 SCC 801, a two-Judge Bench held that Sections 65-A and 65-B of the Indian Evidence Act cannot be held to be a complete code and the requirement of a certificate can be relaxed by the Court wherever the interest of justice so justifies.

It appears that as of now, the situation under IEA, seems to have been settled by a 3 judge Bench in Arjun Panditrao Khotkar vs. Kailash Khushanrao Gorantyal and ors., (2020) 7 SCC 1, which has categorically held that Tomaso Bruno is per incuriam, and overruled Shafhi Mohama. Arjun Panditrao held that Section 65-A and Section 65-B fully govern the admissibility of electronic evidence under the Act, to the exclusion of the regular procedures provided in other parts of the Act. It was further held that a 65-B (4) certificate is mandatory in all cases where the original electronic record (as stored on a computer device) cannot be produced before the Court.

BSB:

In this background, where the Courts have fluctuated from one end to another, Bharatiya Sakshya Bill, 2023 [BSB] ought to have clarified the rule for admissibility of electronic evidence. However, BSB fails to bring any clarity and instead the provisions are confusing as to how an electronic record can be produced as evidence. It fails to appreciate the difference in various electronic record, such as an email or a video on a DVR recorded by a CCTV, and that there could be separate ways of proving such information in evidence.

Confusion in the definition:

The definition of “document” in the BSB now includes “electronic and digital records” which was missing in IEA. It is further supplemented with Illustration (vi) which provides several examples of electronic and digital records that would amount to a document in terms of clause 2 (c) of the BSB.

However, there is an anomaly in the definition of “document” due to the overlap between the illustration of electronic record in clause 2 (1) (c) and definition of “computer output” in clause 63 (1) of the BSB. Since clause 63 (1) starts with a non-obstante clause, it ousts the illustration of electronic and digital record as provided in clause 2 (1) (c) of the BSB and for the purposes of applicability of clause 63 restricts electronic evidence to computer output as defined in clause 63.

Moreover, the IEA defined “electronic form”, “electronic records” by referring to section 2 (r) and section 2 (t) of the Information Technology Act, 2000, respectively, but there is no reference to I.T. Act in BSB. The BSB does not define the terms electronic form and electronic records and uses them interchangeably.

Certificate: the primary evidence and secondary evidence conundrum:

As mentioned above, the definition of “document” includes electronic and digital records. Clause 56 of the BSB states that contents of documents may be proved either by primary or by secondary evidence. Thus, by extension electronic records can be proved by either primary or secondary evidence.

Even Clause 57 defining primary evidence in the BSB now introduces Explanations 4 to Explanation 7 that provides for electronic or digital records, video recordings, etc. which can be produced before the court for inspection and be treated as primary evidence. Thus, the intent appears to be that content of electronic records can be proved by primary evidence without any requirement of certificate.

However, the discrepancy arises on account of Clause 63 (1) which states that information stored on electronic record would be deemed to be document, when the conditions mentioned in Clause 63 are satisfied. Clause 63 (2) requires a certificate on the lines of Section 65 B of IEA.

The “information” as mentioned under Clause 63 (1) is extremely wide and expansive. It states that “information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document…”

Thus,

• the non-obstante clause in Clause 63 (1) ousts the application of all other provisions of BSB, so the overlap between the definition of “document” and “computer output” the Clause 2 (1) (c) and Clause 63 (1) respectively, creates confusion as to the types of electronic records which can be treated as a document.

• Even though in terms of Clause 62 read with Clause 59, it appears that litigants can prove electronic evidence by way of primary evidence, due to the non-obstante clause in Clause 63 (1), the electronic evidence is subject to certification requirements as provided for in Clause 63 (2) and (4) before they can be treated as a “document”.

• If essentially all electronic documents have to meet the certificate requirements as provided for in Clause 63 (2) and (4), before it can be treated as a “document”, it renders Clauses 62 and 59 otiose, which otherwise provides for electronic documents to be produced as primary evidence.

• The introduction of the phrase “each instance” in Clause 63 (4) of BSB creates further confusion whether all forms of electronic evidence sought to be relied on by a party would be subjected to certificate requirements separately which seems repetitive.

Suggestions:

In light of the above, the following modifications are essential in BSB:

• the phrases “electronic record” or “electronic document” which have been deleted from the BSB ought to be properly defined either by again referring to the ITA or in the BSB itself.

• the confusion regarding the scope of electronic record in the illustration (vi) of the term “document” in Clause 2 (1) (c) of the BSB due to the overlapping it with “computer output” in Clause 63 (1) ought to be clarified preferably by removal of the defining elements from Clause 63 (1) and shifting the same to Clause 2 (1) (c) which can define electronic record more exhaustively while defining “document”.

At the same time, it is imperative to appreciate the nature of electronic evidence with developing technology and gadgets. It is important to specifically define and categorise the electronic data/information which can be proved as primary evidence and that which can be proved through secondary evidence.

• Primary evidence: Various commonly used electronic evidence like emails, text messages, chats (the originals thereof) can be instantaneously produced before the court on a mobile, tablet or laptop. Any electronic record which is in the form of a primary evidence should not require any certification. This approach will be in line with global statutes. This would also clarify the confusion for admissibility of electronic documents as primary evidence in terms of Clause 62 read with Clause 59.

• Secondary Evidence: There should be a requirement of a specific affidavit to be submitted for proving secondary evidence Clause 63. The affidavit should be signed by a person who has made a copy from the primary evidence or under whose direct instruction and supervision the copy has been made. The affidavit should mention the circumstances because of which primary evidence cannot be produced, i.e., it is stored on a device which is bulky or in distant location and cannot be transported or located; or is located in a unified server which is incapable of being produced in evidence. There should not be any automatic presumption that the computer output is correct and true copy.

With the advancement of technology and Artificial Intelligence (AI), means and modes to tamper with electronic evidence have increased. There is a likely probability that false evidence can be generated by use of AI. Thus, for secondary evidence to be admissible, an affidavit in support should be required.

Interestingly, in Arjun Panditrao Khotkar (supra) reference has been made to the practice in the United States specifically Rule 901 and Rule 902 of the Federal Rules of Evidence for authenticating ESI (Electronically Stored Evidence). Different method for authenticating ESI is provided in the “Grimm- Brady Chart.” It is essential that we refrain from adopting “one shoe fits all” approach and consider the growth of technology in last two decades.

Amit Gupta is an Oxford and Columbia University graduate practicing in Delhi. Harishankar Mahapatra is a graduate from NLU Delhi and University of Miami, practicing in Delhi. Views are personal.