Introduction
Section 65-B of the Evidence Act, 1872[1] (Act), dealing with the admissibility of electronic evidence, has emerged as one of the most controversial provisions under the Act over the last two decades. Inserted vide an amendment in the year 2000, the provision was introduced keeping concerns about the authenticity of electronic records at heart, while ensuring the overall adaptability to the use of electronic records in courtrooms.[2] Over the years, Courts in India have grappled with issues arising from the interpretation of Section 65-B, often oscillating between contrarian positions that have had a far-ranging impact on the inclusion of significant information in trials.
On 14-7-2020, a three Justices’ Bench of the Supreme Court of India (Supreme Court) delivered its decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal,[3] considering the interpretation of Section 65-B yet again. The factual background of the case relates to the election of a successful candidate (appellant) to a State Legislative Assembly which had been challenged by a defeated candidate and an elector in the constituency (respondents). The challenge was levelled on the basis that the nomination papers of the appellant had been improperly accepted by the Returning Officer (RO) concerned of the Election Commission after the cut-off time on the stipulated date i.e., after 3.00 p.m. on 27-9-2014.
To support this contention, the respondents had sought to rely on video-camera recordings from arrangements made within and outside the RO’s office. Upon the High Court’s direction for production of the original video recordings of the two days stipulated for filing nomination forms (September 26-27, 2014), the Election Commission had produced Video Compact Disks (VCDs) before the Court. The recordings in these VCDs clearly showed that the nomination papers had been filed after the cut-off time. Notably, however, the RO’s office had not furnished a certificate under Section 65-B(4) of the Act [65-B(4) certificate] along with the VCDs, and had refused to do so even after a request had been made by the respondents.
The main question before the High Court was whether the VCDs could be admitted in evidence in the absence of such a certificate. Interestingly, during cross-examination, a representative from the RO’s office had admitted that there had been no complaint as to the working of the video cameras installed there. She had further admitted that the cameras were regularly used to record incidents at the RO’s office and that a VCD of the recordings was collected on a daily basis. The VCDs were even entered as part of the record of the Election Commission. In light of this evidence obtained during cross-examination, the High Court observed that the conditions stipulated in the Act as regards the reliability of electronic evidence had been fulfilled. It noted that oral evidence of this nature was not barred by Section 65-B and that a requirement of filing a 65-B(4) certificate had been substantially complied with.[4]
In appeal before the Supreme Court, the main argument was that according to a prior decision of three Justices in Anvar P.V. v. P.K. Basheer,[5] a written and signed 65-B(4) certificate was mandatory for the admissibility of electronic records and no oral evidence could be adduced in support thereof. Thus, in the absence of such a certificate, it was argued that the VCDs could not have been admitted in evidence. A two Justices’ Bench took note of Anvar[6] as also the decision in Shafhi Mohammad v. State of H.P.,[7] where another two Justices of the Supreme Court had held that the certificate requirement under Section 65-B(4) was not always mandatory, and could be relaxed in the interest of justice.[8] In view of an apparent conflict between the interpretation of Section 65-B by three Justices in Anvar[9], and that by two Justices in Shafhi[10], the issue was referred to be clarified by a three Justices’ Bench in Arjun Panditrao[11].
Three Justices of the Supreme Court upheld the decision in Anvar[12], holding 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. The observations in Shafhi[13] were declared per incuriam. It was 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.
In this comment, we contend that in its decision in Arjun Panditrao[14], the Supreme Court has perpetuated the errors in Anvar[15] by holding that the production of a certificate under Section 65-B(4) is mandatory for the admissibility of electronic records contained in computer outputs. This approach is not only contrary to the text and structure of Section 65-B, but also the global practices on admissibility of electronic evidence, geared towards ensuring greater ease of admissibility.[16] While a concurring opinion in Arjun Panditrao[17] (penned by V. Ramasubramanian, J.) looks at these global best practices and suggests a reconsideration of Section 65-B, we argue that the Court’s reasoning and conclusion would have been enriched by drawing on comparative lessons, especially from the United Kingdom and Singapore, where legal provisions akin to the existing Section 65-B existed. In this light, it is also argued that the Court’s reiteration of the primary-secondary dichotomy in the context of electronic evidence may be dated and may have to be revisited in future.
The certificate under Section 65-B(4): A background
Under the scheme of the Act, electronic evidence is primarily governed by Sections 65-A[18] and 65-B. The purpose of Section 65-A is only to make a reference to Section 65-B.[19] Under Section 65-B(1), a deeming fiction is created whereby information contained in an electronic record when printed on paper or captured in media such as a CD or a USB drive is treated as a document and is admissible as evidence of the contents of the electronic record. Creating an exception to the best evidence rule, namely, when an original is available, no secondary evidence ought to be produced,[20] this was introduced with a view to facilitate the use of electronic evidence in proceedings.
However, at the same time, the deeming fiction is made subject to the fulfilment of certain conditions enlisted in sub-section (2)[21] to address widely accepted concerns about corruption and tampering of electronic evidence. While the fulfilment of these conditions is mandatory, sub-section (2) does not spell out how these conditions must be satisfied. In this regard, an avenue is found in Section 65-B(4) which allows the production of a certificate identifying the electronic record containing the statement and the manner in which it was produced; giving particulars of any device used in the production of an electronic record; or dealing with any of the matters mentioned in sub-section (2). It is provided that such a certificate which is signed by a responsible official person in relation to the operation of a device or management of the relevant activities shall be evidence of the material stated therein.
Thus, it appears that while introducing conditions that make genuineness of the electronic records relevant at the admission stage itself, the Act also makes provision for a way to prove these conditions by way of sub-section (4). Notably though, it is not stated that only a certificate of this type shall be evidence, nor is it stated that the conditions in sub-section (2) can be satisfied only through a certificate. In fact, in the absence of any provision in Section 65-B that indicates otherwise, it follows that the conditions enlisted in Section 65-B(2) can be proved by oral or documentary evidence, as per the general procedure prescribed under Sections 63[22] and 65 of the Act.[23] In our view, a holistic interpretation of Section 65-B leaves open the possibility for the use of evidence aliunde to meet the conditions in sub-section (2), especially since sub-section (2) does not give any guidance on how the conditions therein must be proved. Thus, a certificate doing “any” of the three things under sub-section (4) is provided as an option over and above oral and documentary evidence, to a party that wants to rely on electronic evidence.
This aspect of Section 65-B has been interpreted on more occasions than one by the Supreme Court. The first prominent case was State (NCT of Delhi) v. Navjot Sandhu,[24] where a two Justices’ Bench was called upon to consider whether printouts of call records could be adduced in evidence, without a certificate under Section 65-B(4). Recognising the constraints of producing information contained in call records stored in huge servers, the Court held that secondary evidence under Sections 63 and 65 of the Act could be produced for proving the contents of an electronic record. It observed that printouts of the call records taken from the computers/servers, which were certified by a responsible official of the service-providing company, could be led in evidence through a witness who identified the signatures of the certifying officer or otherwise spoke of the facts on the basis of her personal knowledge. Thus, a certificate under Section 65-B(4) was held to not be mandatory for producing electronic evidence.
However, this part of the decision in Navjot Sandhu[25] was overruled by three Justices in Anvar[26]. In this case, certain CDs that were used for recording speeches and announcements during an election were sought to be produced before the Court to challenge a candidate’s election. Since these CDs were not produced with Section 65-B(4) certificates, it was held that the electronic records contained in them could not be admitted, as the certificate was mandatory. It was also observed that Section 65-B is a complete code unto itself and therefore, evidence aliunde could not be used to prove the genuineness of electronic records.
Soon after Anvar[27] though, a three Justices’ decision in Tomaso Bruno v. State of U.P.[28] geared back towards the position in Navjot Sandhu[29], holding that secondary evidence pertaining to an electronic record could be led under the Act. However, this decision did not consider Anvar[30]. The view in Navjot Sandhu[31] also came to be reflected in the observations of two Justices in Sonu v. State of Haryana,[32] where a 65-B(4) certificate was noted as being only a “mode of proof”. This was closely followed by the decision in Shafhi[33] where an exception as to the applicability of Anvar[34] was carved to meet situations where a party does not have control over the device in which the original electronic evidence is stored. The Court held that the certificate requirement in Section 65-B(4) could be relaxed in such instances.
Mandating the certificate under Section 65-B(4) in Arjun Panditrao: A compounded error
In this conspectus, the interpretation of Section 65-B came up before the Court in Arjun Panditrao[35]. While the commentary on Section 65-B since Anvar[36] had delved deep into the text and judicial history of the provision, it appears that the three Justices deciding Arjun Panditrao[37] did not take the reference as an opportunity to do so. In fact, a close reading of the decision shows that the Court does not enter the thick of this controversy at all. It merely accepts the position in Anvar[38] that the certificate requirement under Section 65-B(4) is mandatory,[39] without assigning adequate reasons of its own for why it should be so. The Court does not examine the text or its underlying policy imperatives, which in fact indicate that the certificate requirement is only a sufficient, and not a necessary condition. As a consequence, no rationale for excluding oral or secondary evidence to meet the conditions in sub-section (2) is provided either.
Interestingly, when discussing the historical antecedents of Section 65-B, the Court takes note of the fact that the provision had been borrowed from Section 69 of the Police and Criminal Evidence Act, 1984[40] (PACE) in the United Kingdom. While the Court correctly observed that the extant law in the United Kingdom does not draw a distinction between electronic evidence and other evidence in terms of admissibility and reliability any longer,[41] it did not consider how Section 69 of the PACE had been interpreted previously by the House of Lords.
In Reg. v. Shepherd,[42] the House of Lords was called upon to consider the admissibility of certain computer-generated till rolls which had been relied upon by the prosecution as evidence of theft from a departmental store. The defendant had argued that the till rolls could be admitted if and only if a certificate signed by a person occupying a responsible position in relation to the computer was produced. The House of Lords rejected this contention. It said that whilst a certificate could only be given by a person occupying a responsible position qua the computer, oral evidence could also be led if such a certificate was not available. The House of Lords further went on to say that the evidence as regards the operation of a computer would inevitably vary from case to case. It observed that expert evidence would rarely be needed, and in a vast majority of cases, the burden could be discharged by calling a witness familiar with the operation of the computer.
Thus, interpreting Section 65-B of the Act nearly three decades later, the Supreme Court ought to have considered the decision of the House of Lords. However, instead of relying on the oral evidence produced by the respondent to rule in favour of a substantial compliance with sub-section (2), the Court’s primary focus appears to be on the special nature of Section 65-B as a complete code on electronic evidence.
Contents of certificate under Section 65-B(4): Caging the scope
As mentioned earlier, Section 65-B(4) allows a party to produce a certificate which avers to “any of the things” mentioned therein as proof of one or more of those things. These things could range from the identification of an electronic record to a narration of the working condition of the computer from which such record is produced. Notably, sub-section (4) uses the word “any” when listing the three “things”. It does not state that a certificate must do all the things.
In its decision in Arjun Panditrao[43], the Supreme Court has however observed that the phrase “any of the things” must be read as doing “all” of the things. For this, it relied on a prior decision holding that in certain contexts “any” can mean “all”.[44] In doing so, the Court followed the law laid down in Anvar[45]. However, as in Anvar[46], it did not consider the fact the certificate needs to be signed by a person “occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities”.[47] It needs to be borne in mind that such a person may not always be available with respect to all the “things” mentioned in sub-section (4).
To see why, consider the example of a whistleblower in a company who has copied information (forged account statements) onto a pen drive, or a forensic expert working with the police who has transferred data (taped confession) to a USB drive. While the whistleblower or the forensic expert may be able to produce a certificate narrating the particulars of the computer from which data was copied onto the pen drive/USB stick, she may not be able to testify as to how the electronic record (.xml/.mp4 file) containing the information was produced. For this, the investigation agency could possibly produce a technician’s report, who may depose as to the existence of other files of a similar nature saved on the laptop during the relevant time. Relying on Section 114 of the Act,[48] the Court may then presume that the laptop was working smoothly at that time.
Examples such as these can be multiplied. The point remains that the text of sub-section (4) is alive to these possibilities and therefore, uses the word “any”. This is not to say that the conditions enlisted in sub-section (2) need not be proved. It only means that a certificate may not always be able to prove all the conditions and evidence aliunde may therefore be required. Unfortunately, the Court in Arjun Panditrao[49] missed an opportunity to consider this.
The primary-secondary conundrum: A needless enquiry?
In Arjun Panditrao[50], based on the non obstante clause in sub-section (1) of Section 65-B, the Supreme Court proceeded to hold that Section 65-B operates independently of other provisions in the Act.[51]
While such reasoning seems reasonable at a first glance, it fails to consider a more nuanced justification for the presence of a non obstante clause in sub-section (1) of Section 65-B. Under the Act, the best proof of a document is the document itself. This type of evidence is known as primary evidence. When primary evidence is not available, the Act permits the use of secondary evidence. However, secondary evidence can only be used when certain pre-conditions mentioned in the Act are satisfied. Ordinarily, had there not been any special provisions for electronic evidence, printouts, CDs, USB drives and the like would arguably have been classified as secondary evidence under the general scheme of the Act. This means that their use in evidence would only have been permitted when special conditions for the admission of secondary evidence as stated in Sections 63[52] and 65[53] of the Act were met.
Section 65-B seeks to make this process easier in respect of electronic evidence to prevent parties from having to satisfy these conditions for secondary evidence on each occasion. To do so, it includes a non obstante clause in sub-section (1) so that it can provide a deeming fiction for all electronic records to be considered as proof of the contents of the original record itself. Unfortunately, the Supreme Court fails to consider this aspect in Arjun Panditrao[54].
Instead, it opines that the electronic record in sub-section (1) is in the nature of secondary evidence and therefore, a certificate is necessarily required. At this juncture, a comparative dialogue with the law in Singapore may have been of some importance. As is well-known, the British had introduced evidence statutes in India and Singapore that were nearly identical to one another.[55] While Singapore has amended its statutory provisions from time to time, the statute has not been overhauled and parallels in the statutory scheme are apparent.[56] Section 64[57] of the Evidence Act of the Republic of Singapore (SEA) says that when a copy of a document in the form of an electronic record is shown to reflect that document accurately, the copy is primary evidence. Section 65 of the SEA which defines secondary evidence, excludes such copies from its purview. In this light, it is not a foregone conclusion that electronic evidence would necessarily be in the nature of secondary evidence. On a comparative analysis with the SEA, one may even understand the deeming fiction in Section 65-B to mean that the Act explicitly veers away from the conclusion that electronic records would be secondary evidence.
Other than the comparative lessons, there are also normative reasons why Section 65-B does not classify electronic records as secondary evidence. Unlike physical documentary evidence, electronic record scan also be auto-generated. Call-data records are a prime example, as are the automatic confirmations of purchase orders placed with online retail platforms. In such cases, there is no primary evidence per se. This is because the computer output of auto-generated call records will always be an exact reproduction of the data stored on the server. The SEA probably takes cognizance of this possibility and includes such electronic records within the ambit of primary evidence itself.
As a corollary, there may not be any individual who may be able to testify as to the operating condition of the server when such information was fed into it. In this context, if one were to follow the interpretation in Arjun Panditrao[58] as to the contents of a certificate and its mandatory nature, there would simply not be any individual who may be able to furnish such a certificate. To get around this, the very fact that the document was generated would have to be considered as being presumptive of the smooth working condition of the cloud or computer network or server, unless it can be shown that the server has been tampered with. While this aspect has been considered in a decision by the Delhi High Court,[59] the Supreme Court in Arjun Panditrao[60] does not delve into it. Interestingly, this question too had been considered by the UK Court of Appeals in R v. Spiby.[61] The Court of Appeals observed that in such cases, the computer or mechanical instruments could be presumed to be in good working condition unless shown otherwise.[62] In fact, even the SEA has now adopted a similar position. Section 116-A of that statute has created a rebuttable presumption in favour of the working condition of the computer device.
However, this is not all. There is another way in which this primary-secondary dichotomy constraints the understanding of the Court on electronic evidence and thereby, the mandatory need for a certificate. In the decision, the Court observes thus:
Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where “the computer”, as defined, happens to be a part of a “computer system” or “computer network” (as defined in the Information Technology Act, 2000[63]) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4).[64]
Consider an electronic agreement that is verified by an e-signature, linked to a national identity card, and is stored on the cloud. As per these observations in Arjun Panditrao[65], a party to the agreement who wishes to rely on it would have to bring a computer system or computer network before the Court. However, she may simply choose to step into the witness box, log onto her cloud-based account, and introduce the electronic agreement in evidence. In such a case, no certificate would be needed as the information is on the cloud. Alternately, if the party were to log onto their cloud account, download the agreement, take a printout, and introduce it in evidence, only those conditions in sub-section (2) which pertain to the device from which the document was printed would have to be satisfied. The others would not come into play at all. Naturally, these conditions can and should be allowed to be met by the oral evidence of the party relying on the agreement.
However, none of these scenarios are considered by the Supreme Court in Arjun Panditrao[66]. It only considers the law in a paradigm where there was a computer or device on which some electronic information was generated and this information was sought to be led as evidence. In our view, had the Court considered the unique nature of emerging forms of electronic evidence, it may have arrived at a different conclusion on the mandatory need of a certificate.
Conclusion
The arguments advanced by us in this comment are only buttressed by the final outcome of the case. On facts, the Court finally held in favour of the respondents recognising that there may be instances where even after the involvement of the Court, a third-party may refuse to give the requisite certificate under Section 65-B(4).[67] Given that such scenarios are a reality, it is worth asking whether it was necessary to preserve the sanctity of a mandatory certification requirement, only to later relax it when parties have done everything possible in their means to obtain the certificate. In fact, by carving out such an exception, the Supreme Court implicitly recognises the fact that a certificate is not a sine qua non for establishing the authenticity of an electronic record.
Moreover, the Court has also misconstrued what a 65-B(4) certificate can possibly prove by reading the things listed in that sub-section in a conjunctive manner. Not to mention, a primary-secondary conundrum has been imported into electronic evidence even when the Act seems to eschew that divide for this type of evidence.
A comparative dialogue, especially with the United Kingdom where the historical antecedents of the Act lay, and with the SEA which is pari materia with the Act, too, would have led the Court to a different conclusion. In fact, this case is a good example of instances where comparative learning may have contributed effectively to jurisprudential development. Summarily put, while Arjun Panditrao[68] presented an opportunity to resolve the controversy surrounding electronic evidence in India, it appears that the Court only perpetuated the errors inhering in the interpretation adopted in Anvar[69].
† Graduate of NLSIU, Bangalore, an Advocate at Bombay High Court, e-mail: dhruvagandhi95@gmail.com.
†† Graduate of NLSIU, Bangalore, an Associate at Keystone Partners, Delhi, e-mail: nikitagarg1006@gmail.com.
[1] <http://www.scconline.com/DocumentLink/dQ7rc5Jn>.
[2] Ins. by Information Technology Act, 2000 (Act 21 of 2000), S. 92 and Sch. II
[4] (2020) 7 SCC 1, at 19-20 (paras 7-8).
[8]Id., at 809-811 (paras 23-30).
[16] Smith G. (2002), Legislating for Electronic Transactions, Computer and Telecommunications Law Review, 8(3) at 58.
[18] <http://www.scconline.com/DocumentLink/2DzzZZ6F>.
[19] Evidence Act, 1872 (Act 1 of 1872), S. 65-A.
[20]Vaidialingam A. (2015), Authenticating Electronic Evidence: S. 65-B, Evidence Act, 1872, NUJS Law Review, 8, 43 at 47.
[21]These conditions ensure that the information was fed into the computer device and the computer output was generated in the ordinary course of business. They also seek to ensure that the computer device was operating properly during the material time frame or that even if it was out of operation, it was not such as to affect the accuracy of the electronic records in question. See Sub-section (2).
[22] <http://www.scconline.com/DocumentLink/jKNlwH2s>.
[23]Sekhri A. (22-10-2015), Electronic Evidence, The Proof of Guilt, <https://theproofofguilt.blogspot.com/2015/10/electronic-evidence-part-4.html>.
[39] (2020) 7 SCC 1 , at 37-38 (para 34).
[40] https://www.legislation.gov.uk/ukpga/1984/60/contents
[41] (2020) 7 SCC 1, at para 29.
[42] 1993 AC 380 : (1993) 2 WLR 102
[44]Supra note 3, at 27 (para 23). The first decision that the Supreme Court cited was that of Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849 : (1962) 1 SCR 33. This decision simply references an earlier decision that interpreted S. 76 of the Mines Act, 1952 and held that the words “any one” should be read as “every one”. The second decision cited was that of Om Parkash v. Union of India, (2010) 4 SCC 17. This decision does not specifically hold that the word “any” can mean “all” and neither does it provide any criteria for when a court may consider the words “any” to mean “all” or “every”. Both these decisions, therefore, serve as mere examples and do not advance a case for why the word “any” in S. 65-B(4) should be read to mean “all”.
[47]Supra note 4.
[48] S. 114 of the Evidence Act, 1872 says, “Court may presume existence of certain facts.— The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
[51](2020) 7 SCC 1, at 38 (para 31).
[52] <http://www.scconline.com/DocumentLink/jKNlwH2s>.
[53] <http://www.scconline.com/DocumentLink/agf32S6C>.
[55]Benny P.T. (2018), Reflections on Section 2(2) of Singapore Evidence Act and Role of Common Law Rules of Evidence — New Discoveries on Intentions and Implications, Singapore Academy of Law Journal, 30, 224 at 225 and 237.
[56]See Siyuan C. (2013),The Future of the Similar Fact Rule in an Indian Evidence Act Jurisdiction: Singapore, NUJS Law Review, 6, 361.
[57] <http://www.scconline.com/DocumentLink/1j9W6PGu>.
[59]Kundan Singh v. State, 2015 SCC OnLine Del 13647: (2016) 1 DLT (Cri) 144 (para 64)
[61](1990) 91 Cr App R 186.
[62]Id., at 191-192.
[63] <http://www.scconline.com/DocumentLink/QFpg4Fi0>.
[64](2020) 7 SCC 1 , at 38 (para 32).
[67](2020) 7 SCC 1 ., at 46 (para 45).