From Anvar To Arjun – A Tale Of Two 'Anys' & Other Stories

"3. We are of the considered opinion that in view of Anvar P.V. (supra), the pronouncement of this Court in Shafhi Mohammad (supra) needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter."

The cases referred to in this order are those in Anvar P. K v. Basheer^[2], which interpreted Sections 65A and 65B of the Indian Evidence Act, 1872 ("Evidence Act") and overruled the two – judge decision in State v. Navjot Sandhu^[3]; the second case forming part of the reference is a two-judge decision in Shafhi Mohammad v. The State of Himachal Pradesh^[4].

Tracing the trail from its beginnings^[5], in Navjot Sandhu's case, the Supreme Court held compliance with the process of submitting a certificate under Section 65B(4) to be discretionary and permitted reliance to prove secondary evidence even with respect to electronic records, on Sections 63 and 65 of the Evidence Act. In Anvar, a three – judge bench overruled the decision in Navjot Sandhu's case and held that the special provisions under Sections 65A and 65B held primacy over the general provisions and that secondary evidence with respect to electronic records therefore required compliance with the above special provisions. This special compliance is captured through the submission of a certificate in compliance with Section 65B(4) of Evidence Act, which Anvar interpreted to include compliance with ALL three categories covered under sub-clauses (a) to (c) of Section 65B(4) Evidence Act. Not just that, whist setting out the conditions that the certificate ought to comply with, Anvar also held that ALL sub-provisions under Section 65B(2) ought to be complied with. In short Anvar mandated that a certificate under Section 65B(4) would advert to the details mandated under Section 65B(4)(a) to (c) and that with Section 65B(4) (c) pertaining to Section 65B(2), that it would also include all details sought under Section 65B(2)(a) to (d) and not just any of them.

The Shafhi order sought to ease this burden by interpreting Anvar to apply only to those documents, which are within the custody of the deponent and carved out an exception that in the event of production of secondary evidence of electronic records in the custody of third parties, the deponent could rely on Sections 63 and 65 Evidence Act. This was however totally at the discretion of the trial court.

Neither Anvar nor Shafhi delved nor elaborately interpreted the entirety of the provisions under Section 65B Evidence Act. None of these decisions also took into account the etymology of the inclusion of these provisions under the Schedule to the Information Technology Act, 2000 ("IT Act")^[6] and the statement of objects and reasons, in the IT Act of 2000, which appears to have substantially driven the structure of Section 65B Evidence Act.

It is now open for Arjun to deal with such interpretation in depth and to capture legislative intent to ensure certainty. In fact it is a necessity that the Supreme Court puts the opportunity that the Arjun reference has placed before it to ensure certainty not only in the interpretation of the above provisions but also to lay down clearly the mode and manner of proof of electronic records. Such certainty, as the reference mandated is the need of the hour for better reliance on electronic records in legal proceedings in India.

Scope of Reference & Need for a Larger Bench

Arjun Panditrao reference has been taken up for hearings by a three-judge bench and submissions were heard. The assumption that the reference was only with respect to the sustainability of Shafhi decision may have led to the reference being heard by a three-judge bench, which is patently fallacious.

The very reference is in two parts, the first refers to the decisions of the Supreme Court in Anvar and Shafhi. However, the true import of the reference clearly lies in the portion that highlights the need for 'certainty' in law, in the light of increasing reliance on electronic.

This certainty can and would arise only if the reference is decided by a 5-judge bench of the Supreme Court, so that the correctness of Anvar may also be decided finally, including its interpretation of the extent that the special provisions override the general. To limit the present reference to a 3-judge bench presumes the correctness of Anvar, which may in itself be fallacious, for the crux of the reference is a definitive decision on (i) the applicability of the mandatory certificate for proving copies of all electronic records; (ii) the conditions to be complied with in such certificate and also (iii) whether any limitation may be read into the need for the certificate only to those in the custody of the deponent or for all electronic records.

To decide the above may take the court into revising Navjot Sandhu's decision and its overruling, which then clearly falls beyond the mandate of a three-judge bench. The certainty, that the Arjun Panditrao reference mandates needs to decide beyond just Shafhi Mohammad and hence it is imperative that this certainty is achieved through a decision interpreting all aspects, pertaining to Section 65B Evidence Act including the above by a larger five – judge bench.

Importance of the Statement of Objects & Reasons

To evaluate the parliamentary intent behind Sections 65A & 65B Evidence Act, it is imperative, as espoused by the Supreme Court in Tata Power Co. Ltd. v. Reliance Energy Ltd.,^[7] and Utkal Contractors and Joinery Pvt., Ltd., v. State of Orissa^[8] to consider the Statement of Objects and reasons under the IT Act of 2000, as it was under the Second Schedule of the IT Act, 2000 that the Indian Evidence Act, 1972 was amended to include the above provisions under consideration.

The limited scope under the said enactment was to provide legal recognition for eCommerce transactions. The Objects and Reasons also records the adaptation of the UNCITRAL^[9] Model Law on Electronic Commerce^[10], which India was also required to give favorable consideration of to ensure harmonious adaptation of laws pertaining to eCommerce across signatory Nations.

The amendments brought into the Indian Evidence Act pursuant to the IT Act appears to have had similar focus on eCommerce, which is also reflected in the wordings of Sections 65A & 65B Evidence Act. It is therefore imperative to interpret and apply the said provisions

The Tale of Two Anys – Interpreting Sections 65A & 65B Evidence Act

Keeping in mind the cardinal principal of law that "every law is designed to further the ends of justice but not to frustrate on the mere technicalities"^[11] (emphasis supplied), it is imperative that the essence, intent and purpose behind Section 65B Evidence Act is evaluated, for Section 65A merely acts as a signpost, directing those intending to rely on electronic records to comply with the provisions of Section 65B Evidence Act.

Taking Section 65B Evidence Act in its entirety, that which is apparent is that Section 65B(4) is the primary objective of parliament, that is intended to be completed for copies^[12] or 'computer outputs' (as defined in the said provision) of electronic records, to be taken on record. For all other provisions of Section 65B merely provide guidance and facilitate compliance of Section 65B(4) Evidence Act.

The intent and purpose of Section 65B in itself appears to be to lower the threshold for acceptance of secondary evidence with respect to electronic records and not to complicate it further. This is evident from the dispensing with of the procedures mandated under Section 66 Evidence Act. Else between Section 63 and 65, as was noted in Navjot Sandhu's case, the provisions contained therein would have covered electronic records also, as they would fall within the category of "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies" under Section 63(2) Evidence Act, as also Section 65(d) i.e., "when the original is of such a nature as not to be easily movable", which appears to be one reason to provide special provisions for facilitating production of secondary evidence of electronic records.

The wording at the commencement of Section 65B(2) read with Section 65B(1) is misleading, and may lend itself to assume that the focus of the provision and the threshold of proof is only as is set out in Section 65B(2). For in Section 65B(1), it is stated that for a copy of an electronic record to be 'deemed to be also a document', 'conditions mentioned in this section' have to be satisfied 'in relation to the information and computer in question' and Section 65B(2) states that the "conditions referred to in sub-section (1) in respect of a computer output shall be" that which is set out therein.

However, with Section 65B(4) setting out the mode and manner of compliance with the conditions, the claim under Section 65B(2) Evidence Act stands diluted and a harmonious reading of both provisions clearly demonstrate that the primary provision for proving of secondary evidence with respect to electronic records is that which is set out at Section 65B(4) Evidence Act and that Section 65B(2) is one mode of proof for taking on record copies of electronic records or computer outputs.

It would also be erroneous to assume that the contents of Section 65B(4) (a) and (b) are merely reproductions of the four conditions under Section 65B(2) Evidence Act. Cutting through the jargon of the latter, it is apparent that whilst Section 65B(4)(a) and (b) mandate the requirement of a certificate doing any of the following…"(emphasis supplied) i.e.,

(a) identifying the doc (electronic record) and how it was produced; or

(b) give details of the device used to produce the electronic record to show it is

produced by a computer;

Against this the last requirement under Section 65B(4)(c) requires the certificate to deal with "any of the matters to which the conditions mentioned in sub-section (2) relate" (emphasis supplied).

Under Section 65B(2) also the conditions are not listed, as a conspectus of ALL conditions but only of any one of the first three and the certainty of the fourth. This is apparent from a quick look at the sub-sections of Section 65B(2), which seeks,

(a) that the computer output (i.e., copies of electronic records)

• -was produced by the computer;
• -that during the period
• -the computer was used regularly to store or process information
• -for the purposes of any activities regularly carried
• -by the person having lawful control over the use of the computer;

(c) that:

• during the said period,
• information in the electronic record or from which the information is derived
• was regularly fed into the computer
• in the ordinary course of the said activities;
• that during the material part of the said period
• the computer was operating properly (or, if not)
• for such period when it was not operating properly or was out of operation
• it did not affect the electronic record or the accuracy of its contents; AND

(d) the information in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

The only sub-provision using the conjunctive "and" is after sub-provision (c), which again appears to indicate parliamentary intent to be for (a) to (c) to be any one of the conditions with (d) being mandatory. The provision, as a whole has inter-dependence in interpretation but not necessarily application. For, phrases such as "period" and "activities" relate to the earlier provisions. Further Sub-section (b) of Section 65B(2) is in effect repeated at sub-section (d) of Section 65B(2). The purpose of the repetition at best can be interpreted to make Section 65B(2)(d) mandatory, when any one of the other provisions of Section 65B(2)(a) to (c) are relied on in the certificate under Section 65B(4).

With respect to the similarity between Section 65B(4)(a) and (b) with those under Section 65B(2) Evidence Act, it is apparent that the option of Section 65B(4)(a) is much wider than any other option and is not covered under any of the other conditions. Further the distinction between that under Section 65B(4)(b) and those under Section 65B(2)(a) stops with the proof of the electronic record being generated by a computer. All other conditions of it being used regularly, of the information stored and processed being in ordinary course of business or activities and of the same being done by the person in lawful control over the computer are NOT part of Section 65B(4)(b) Evidence Act. These distinctions are imperative, as the certificate is warranted in cases, where the electronic record may be in the custody of the person producing the same; or in third party custody (which is what Shafhi decision tried to address); or in criminal cases may relate to documents in the custody of the accused, who is certainly not going to give any certificate affirming either the contents or accuracy.

It is also important to take Section 65B(4) in its entirety to reach the correct conclusion i.e., that each of its sub – provisions are independent of each other. The certificate mandated is required to be given by the person in responsible official position qua "…the relevant device or the management of the relevant activities (whichever is appropriate)…" (emphasis supplied). This delineation between device and activities also emphasizes the need for each of the sub-sections of Section 65B(4) Evidence Act to be read independent of each other and not clubbed together as a whole. For under Section 65B(4)(a) and (b), it would suffice for any person who is producing a document to identify the document or device as the case may be and it is only under Section 65B(2) in some instances that activities may dictate the person who will give the certificate and also the details that such certificate will be required to set out.

The lower threshold has also been set keeping in mind that the process merely facilitates submission of secondary evidence of the electronic record to prove its integrity and authenticity i.e., that the contents have not been tampered and not to prove the truth of the contents, which, as with any other record will have to be proven separately.

Further, both "anys" used in the above provision cannot and ought not to be interpreted in similar fashion. The first 'any' in Section 65B(4) Evidence Act would be required to be interpreted independent of the second 'any' with respect to the four conditions under Section 65B(2). Even if the latter were to be interpreted as 'all' and in fact more so if that is the case, the first 'any' would necessarily be required to be interpreted as 'any' giving the deponent relying on secondary evidence of an electronic record to set out any one of the conditions set out at Section 65B(4) Evidence Act.

To do otherwise will otherwise by relying on the last part of Section 65B(4) i.e., that a person only has to aver to the "best of the knowledge and belief of the person stating it" will make the very certificate a dead letter, which will serve no useful purpose, as was noted by the UK Law Commission whilst repealing Section 69 of the Police And Criminal Evidence Act, 1984^[13].

An attempt to therefore assume similarity between Section 65B(4)(a) and (b) with those conditions under Section 65B(2) would lead not only to erroneous interpretation but will frustrate the very purpose of legislature providing or attempting to provide a lower threshold for reliance on electronic records in legal proceedings.

Way forward for Supreme Court in Arjun Panditrao

For Arjun Panditrao reference to produce the desired results of certainty, it is imperative that the Supreme Court firstly, refers the case to a larger bench, for any decision that will afford certainty and ensure effective enforcement of parliamentary intent would be achieved only if the decision in Anvar is reviewed.

Interpret Section 65B in Entirety & Addressing All Issues beyond 'Any':

Further, it may be fallacious for the Supreme Court to narrow its perspective to interpreting Section 65B Evidence Act in literal sense by taking phrases or wording in isolation. With legislative intent being manifest from the objects and reasons i.e., to facilitate eCommerce, it is imperative that the Supreme Court takes up all issues pertaining to the interpretation of Section 65B Evidence Act in its entirety.

Whilst doing so, one option before the Supreme Court is to give a detailed interpretation of the conditions applicable AND also clarify the mode and manner in which such conditions may be complied with in civil and Criminal cases, including (i). form of such certificate; (ii). conditions or details to be set out in the certificate; (iii). persons, who may give such certificate; (iv). need for such person to be examined before Court; (v). stage when such certificate may be given; (vi). when is such certificate required i.e., when copies are furnished; and (vii). what does such certificate prove i.e., that proof of 'contents of documents' does not mean proof of the truth of such contents.

It would also be imperative for the Supreme Court to interpret the definitions of "relevant device" and "relevant activities" at Section 65B(4) Evidence Act, as the fixing of the person in charge, will be guided by the device concerned or activities involved. In all judgments of the various High Courts, the importance of the latter i.e., of the 'activities' has been disregarded.

It is also important for the Supreme Court to decide on various phrases used in Section 65B(2) including 'during the said period'; 'used regularly' or 'regularly fed'; 'activities regularly carried on'; 'person having lawful control'; 'operating properly'; 'affect the electronic record' or 'accuracy of its contents'. It is also imperative that the Supreme Court reads and interprets harmoniously the provisions mostly repeated in Section 65B(2)(b) and (d) and finally to interpret the legislative intent of using the conjunctive 'and' only for (d) of Section 65B(2) Evidence Act.

Whilst interpreting these phrases, it would be imperative for the Supreme Court to keep in mind its applicability to civil and criminal cases, including those where the information in an electronic record sought to be relied on may refer to modifications and tampering of such records, which neither fall within ordinary course of business or activities or in regular use or by persons in lawful control. Further such acts also result in tampering and modifying content on the electronic resource and this is one further reason to hold the interpretation that ALL conditions of Section 65B(4) Evidence Act would be applicable, patently erroneous.

Some arguments that Navjot Sandhu relied on i.e., that "desired to give a statement in evidence by virtue of this section" may be interpreted to mean that Section 65B(4) was only optional and not mandatory and that it is open to the deponent to either comply with the lower threshold of Section 65B(4) or of Sections 63 and 65 of Evidence Act have been revisited in discussions. Whilst this may seem untenable, considering that the legislative intent in using 'desired' may refer to the use of secondary evidence instead of primary evidence, it may still be relevant to revisit this issue to ensure finality.

The need for special provisions is emphasized actually by two sub-sections of Section 65B, which are barely discussed i.e., Section 65B(3) and (5), which ensure that copies from any electronic record forming part of even a link in the chain of custody, may be produced (Section 65B(3)) and for the modes and means of information or activities pertaining to electronic records becoming relevant facts and also the mode of creating such copies (Section 65B(5)).

Whilst interpreting the intent of legislature therefore it is imperative that the Supreme Court takes into account that the above provisions were also intended to meet the ends of justice and technical interpretations should not frustrate such intent. In doing so, as was pointed out by the Supreme Court in Directorate of Enforcement v. Deepak Mahajan^[14], literal and grammatical interpretations may not lead to the correct intent of legislature and "in interpreting a statute in its true spirit, the right direction should be to give a full and literal meaning to the language aiming ever to show fidelity to the meaningful purpose of the statute and never to make it sterile and impotent by giving a strict literal interpretation putting blinkers for judicial approach; because such interpretation will run counter to the legislative intent."

In the words of the Supreme Court, in the above decision:

"True, normally courts should be slow to pronounce the legislature to have been mistaken in its constantly manifested opinion upon a matter resting wholly within its will and take its plain ordinary grammatical meaning of the words of the enactment as affording the best guide, but to winch up the legislative intent, it is permissible for courts to take into account of the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislature inane."

"Though the function of the courts is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute."

Finally, as was pointed out in the above decision, "it is permissible for courts to have functional approaches and look into the legislative intention and sometimes it may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile."

Is It Time to Discard Sections 65A 7 65B Evidence Act?

One further alternative that needs to be addressed is to strike down or through legislative intervention amend Indian Evidence Act, 1872 to delete Sections 65A & 65B, as was done by UK in the parent Act from which thee provisions were drawn.

The very provision was enacted with a very narrow scope in mind i.e., for "legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies", which is no longer applicable in the light of further developments in law and technology.

Continuation of the above provisions, in the manner in which the same have been drafted is bound to frustrate the intent behind the very provisions and hence it is imperative for a decision on its continued existence.

However, until such eventuality, it is imperative that a holistic approach is taken to the provisions and their applicability and compliance, to ensure that no legal proceedings, civil or criminal are frustrated due to unworkable methodologies or narrow interpretations.