A Relook At Section 65B Evidence Act Is The Need Of The Hour: SC [Read Judgment]

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16 July 2020 2:35 PM IST

"The major jurisdictions of the world have come to terms with the change of times and the development of technology and finetuned their legislations."

It is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, remarked Justice V. Ramasubramaniam in his concurring judgment in the decision holding the mandatory nature of the provision.Though he concurred with the judgment authored by Justice RF Nariman in (Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal) in which the court held that the...

It is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, remarked Justice V. Ramasubramaniam in his concurring judgment in the decision holding the mandatory nature of the provision.

Though he concurred with the judgment authored by Justice RF Nariman in (Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal) in which the court held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, the judge concluded his opinion as follows:

"The major jurisdictions of the world have come to terms with the change of times and the development of technology and finetuned their legislations. Therefore, it is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot Sandhu to Anvar P.V. to Tomaso Bruno to Sonu to Shafhi Mohammad. "

The opinion authored by Justice V. Ramasubramanian surveys legislative developments in U.S.A., U.K. and Canada on the admissibility of electronic records. He observed that jurisdictions of the world changed their legal landscape, over a period of time, by suitably amending the law, to avoid confusions and conflicts.

Certificate Under Section 65B(4) Evidence Act Is A Condition Precedent To The Admissibility of Electronic Evidence: SC [Read Judgment]

The judge observed that Section 65B, in its present form, is a poor reproduction of Section 5 of the UK Civil Evidence Act, 1968. "When our lawmakers passed the Information Technology Bill in the year 2000, adopting the language of Section 5 of the UK Civil Evidence Act, 1968 to a great extent, the said provision had already been repealed by the UK Civil Evidence Act, 1995 and even the Police and Criminal Evidence Act, 1984 was revamped by the 1999 Act to permit hearsay evidence, by repealing Section 69 of PACE, 1984.", the judge said.

The judge also added that development of law in the US demonstrates that, unlike in India, law has kept pace with technology to a great extent. He also noted that though a requirement similar to the one under Section 65B of Indian Evidence Act, is there in Canadian law, there is a very important distinction found in the Canadian law. "Section 31.3(b) takes care of a contingency where the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to produce it. Similarly, Section 31.3(c) gives leverage for the party relying upon electronic document to establish that the same was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it. ", the judge noted.

When A Person Refuses To Issue Certificate Under Section 65B(4) Of Evidence Act, Court Must Order Its Production :SC [Read Judgment]

Acrimony behind Section 65B

Answering the legal issue, the Judge noted that unlike Section 136, the Section 65B(1) starts with a non-obstante clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. The judge said that has created lot of acrimony behind Section 65B, the judge added. He said:

"While doing so, it does not talk about relevancy. In a way, Sections 65A and 65B, if read together, mixup both proof and admissibility, but not talk about relevancy. Section 65A refers to the procedure prescribed in Section 65B, for the purpose of proving the contents of electronic records, but Section 65B speaks entirely about the preconditions for admissibility. As a result, Section 65B places admissibility as the first or the outermost check post, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled."

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A Relook At Section 65B Evidence Act Is The Need Of The Hour: SC [Read Judgment]

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"The major jurisdictions of the world have come to terms with the change of times and the development of technology and fine­tuned their legislations."

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"The major jurisdictions of the world have come to terms with the change of times and the development of technology and finetuned their legislations."