Electronic Evidence in Focus: Navigating Legal Shifts in the Law on Electronic Evidence under the BSA, 2023

The new criminal laws have garnered attention from all academic fields, ranging from constructive criticism to scepticism about their very existence, primarily questioning if the laws move beyond the colonial legacies or simply repackage them. So far, it is Sakshya Adhiniyam, 2023¹ (for brevity, “BSA”) supplanting the old Evidence Act, 1872² (for brevity, “IEA”), that has surprisingly received little scrutiny.

At first glance, the Adhiniyam seemingly is a rearrangement of sections, but a closer examination reveals a different picture. Apart from the minor omissions and additions in the BSA, the two important changes to be discussed are firstly, the definition of “document” under Section 2(1)(d) of the BSA, that now encompasses “electronic and digital records”³ and secondly, the consequent and correlated changes brought in the provisions related to electronic evidence.

In contrast, Section 3 of the IEA⁴, which corresponds to Section 2(1)(d) of the BSA, had a narrower import, the definition of “document” therein being limited to “any matter expressed or described upon any substance”, when such matter is so expressed or described by way of “letters figures or marks” or by such multiple means, thus excluding the possibility of reading electronic or digital records within this section — it is the computer output or device that records or stores the information in electronic form, which falls within the import of “document” under this provision.

Electronic evidence as secondary documentary evidence

Under the law of evidence, the cardinal principle is that, with respect to documentary evidence, primary evidence takes precedence to the complete exclusion of secondary evidence, and contents of a document may be proved by either primary documentary evidence i.e. the document in question itself, or such secondary documentary evidence, as declared by Section 56 of the BSA⁵ (corresponding to Section 616⁶ of the IEA). However, secondary documentary evidence can only be adduced in the cases expressly mentioned under Section 60⁷ of the BSA (corresponding to Section 65⁸ of the IEA), and Section 58 of the BSA⁹ (corresponding to Section 63¹⁰ of the IEA) lists the documents that can be used as such secondary evidence. It is trite to say that the law of evidence gives primary documentary evidence precedence over secondary documentary evidence, and accordingly it follows that with respect to electronic or digital records, the “computer output”¹¹ concerned will be considered the primary evidence, and the data so recorded or copied in any electronic form will be considered secondary evidence for the purposes of the law of evidence.

Electronic or digital records, while not classified as “document” under the IEA, are indeed documentary evidence when produced before the court for inspection, as stated under the former Section 3 of the IEA, being classified as a piece of secondary documentary evidence. Once the court has examined the relevancy of the electronic or digital records concerned, only thereupon it shall proceed to evaluate their admissibility under Section 63(1) of the BSA¹² [corresponding to Section 65-B(1) of the IEA], and then they must be duly proved by the party presenting evidence. Therefore, a conjoint reading of the provisions related to electronic evidence and the provisions relating to secondary documentary evidence, reveals that the purpose of the former is to bring a piece of secondary documentary evidence (i.e. electronic, or digital record) on the same footing as that of a primary documentary evidence, considering that once secondary documentary evidence stands duly proved, the information contained in such record shall “deemed to be also a document”¹³. Arguably, a legal fiction is created in declaring that the electronic evidence in question will be deemed to be a document, provided the preconditions prescribed under Section 63 of the BSA stand satisfied; thereby dispensing with the requirement to adduce the primary evidence itself (i.e. the computer output) to duly prove the relevant fact or fact in issue at hand.

Questions of seminal importance and the case-based law: Two converse approaches to admissibility of electronic evidence

Critical questions arose with the introduction of erstwhile Sections 65-A¹⁴ and 65-B, relating to the true import and intent of the two provisions vis-à-vis the nature of requirement of certificate to be submitted along with the electronic record under Section 65-B(4)¹⁵ of the IEA i.e. whether such submission is mandatory or merely directory. This determination was essential, since it necessitated an examination as to the nature and implications of the newly introduced provisions themselves — the Supreme Court was left to conclusively decide if the two provisions amounted to a special law as regards the general law relating to secondary documentary evidence under the Sections 63 and 65 of the IEA, and thus also whether the two provisions were exhaustive.

If the said two questions were to be answered in the affirmative, Sections 65-A and 65-B of the IEA would govern the admissibility of electronic evidence to the exclusion of the general procedural rule laid under Sections 63 and 65 of the IEA. If they were to be answered in the negative, then it would still be open to the parties would to have a recourse to the general procedure laid under Sections 63 and 65 of the IEA for duly proving a piece of secondary documentary evidence, in the event the party proposing to present evidence failed to fulfil the prerequisites of Section 65-B of the IEA.

Surprisingly, the Supreme Court addressed the abovestated question both affirmatively and negatively, as well as partially in both directions, obviously, at different times, over the past two decades. The Court acknowledged the dubious legal position for the first time in the State (NCT of Delhi) v. Navjot Sandhu ruling (commonly known as “The Parliament Attack case”)¹⁶, where the Court ruled that in the absence of the required certificate, there was no bar to adducing electronic evidence as secondary documentary evidence, to be proved in the same manner as any other secondary evidence, following the ordinary procedure. The Court noted that Section 65-A of the IEA employs the term “may”¹⁷, indicating that parties have the option to choose between proving electronic evidence in accordance with Sections 65-A and 65-B of the IEA, or in accordance with Sections 63 and 65 of the IEA.

The Navjot Sandhu¹⁸ approach held ground for nearly a decade, ensuring that electronic evidence could still be admitted even in the event of non-fulfilment of the procedural requirement of a certificate. However, this stance was eventually scrutinised, as it risked undermining the legislative wisdom of introducing special provisions commencing with a non obstante clause, which makes it imperative for the general law (i.e. Sections 63 and 65 of the IEA) to yield to the special law laid under Sections 65-A of the IEA.

Thus, the Court, in acknowledging the well-established common law principle of interpretation “generalia specialibus non derogant”, held in Anvar P.V. v. P.K. Basheer ruling¹⁹, that in case of conflict between the general provisions, namely, Sections 63 and 65 of the IEA, and the special provisions, namely, Sections 65-A and 65-B of the IEA, the special provisions must prevail, being a “complete code”²⁰ in themselves. The Anvar P.V.²¹ approach therefore required a certificate to be mandatorily submitted along with the electronic evidence, without which such evidence would be rendered inadmissible.

Present legal position summed-up

In 2018 Shafhi Mohammad v. State of H.P.²² ruling, the Court reverted to Navjot Sandhu²³ approach, determining that the provisions in question do not enjoy the status of a special law. Instead, taking a latitudinal view, the Court asserted its discretion to relax procedural requirements intended to supplement the law, when the interests of justice necessitate such flexibility. The Court instantiated this with a scenario where one party seeks to produce the document, while it is in control or possession of the adverse party; here, a mandatory requirement of the certificate would thwart the very purpose of special provisions regarding electronic evidence.

With these considerations, the Court diluted, if not completely set aside, the mandate of a certificate — the Court categorically stated that where the party concerned is in lawful control of the computer output or derive concerned, the Anvar P.V.²⁴ approach shall be followed requiring a mandatory submission of the certificate, whereas if the computer output or device is not in custody of the party concerned, such a requirement can be relaxed and the party may be permitted to prove electronic evidence in the ordinary manner as a piece if secondary documentary evidence.

While the Shafhi Mohammad²⁵ ruling furthered a balanced approach, it failed to crystallise as the definitive precedent, since as a 2-Judge Bench decision, it could not override the established law set by a 3-Judge Bench in Anvar P.V.²⁶ ruling, thus warranting a reference to a larger Bench. This led to R.F. Nariman, J., speaking for a 3-Judge Bench, in the recent key decision of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal²⁷, to affirm the Anvar P.V.²⁸ position i.e. declaring the submission of certificate to be mandatory. The Court held view taken by the 2-Judge Bench in Shafhi Mohammad²⁹ to be fallacious, noting that in case of inability to procure the electronic or digital record, it is always open to the party concerned to make an application before the trial court for the same, and the court is well within its powers to order production of a document (here, certificate) by invoking powers under the relevant provisions of the IEA, as well as the Code of Civil Procedure, 1908³⁰ and the Code of Criminal Procedure, 1973³¹.

Therefore, the Court once again declared the provisions relating to electronic evidence to be a “complete code” and held submission of the certificate to be sine qua non for admissibility of electronic evidence, and for its consequent deemed transformation into primary documentary evidence from merely being a piece of secondary documentary evidence. This key decision, on one hand, sought to enhance the reliability of electronic records and to reduce the high risks involved with authenticity and credibility of electronic records by ensuring that a definite, robust, and traceable chain of custody is established. But on the other hand, a strict mandate meant possibility of rejection of otherwise reliable electronic evidence as inadmissible, along with other access to justice concerns regarding procedural delays and increased costs on account of the stifled flexibility.

Changes brought under the new BSA, 2023

The BSA brings crucial, albeit slight, changes in the law on electronic evidence. While the principles on which it is premised upon remain intact, some newly inserted provisions and the expanded definition of “document” inclusive electronic and digital records, carry significant legal ramifications. Some of the changes so brought introduce much more ambiguity in an area that was already in its nascent phase, while the others address the access to justice concerns caused by rigid certification requirements. For clarity, these changes can be classified into three distinct areas:

1. Foundations of the law of electronic evidence: The preconditions for admissibility of electronic evidence under Section 65-B(1) of the IEA serve as a bridge for elevating the status of electronic evidence from secondary documentary evidence to primary documentary evidence, this elevation is to be understood in conjunction with Sections 62³² and 65 of the IEA.

2. Procedural aspects of the preconditions for admissibility: The procedural requirement of a certificate to be submitted along with the electronic evidence under Section 65-B(4) of the IEA, which has been declared to be mandatory by the Supreme Court, thereby becoming substantial to the legal framework on electronic evidence.

3. Law on the legal relevancy vis-à-vis electronic evidence: This involves Section 22-A of the IEA³³ read with Section 61 of the IEA, which lays rules for certain facts to be relevant as to content of documents and electronic records, in the specified circumstances. The two sections have been subsumed in Section 20 of the BSA³⁴.

The legal positions under the IEA and the BSA, regarding these three overlapping aspects can be juxtaposed as follows:

Foundations of the law on electronic evidence

To put it succinctly, the foundation of the law on electronic evidence is premised upon admissibility of the same under the law of evidence i.e. the special provisions act as a bridge for electronic evidence (a piece of secondary documentary evidence) to traverse the legal landscapes and, in this journey, partake the nature of primary documentary evidence via fulfilment of conditions so prescribed, which once satisfied, allow electronic evidence to be “deemed to be also a document” and thus stand on the same footing as the primary document itself (the primary document, here, being the computer output or the device concerned).

Now, Section 61 of the BSA³⁵ (newly enacted and inserted in the BSA) read with Sections 62³⁶ and 63 of the BSA (corresponding to Sections 65-A and 65-B of the IEA) lay down the procedure to be followed to bring the probative value of electronic evidence at par with the enhanced probative value of the primary document. Conversely, the newly incorporated Explanations 4-6 to Section 57³⁷ of the BSA (corresponding to Section 62 of the IEA) introduce potential contradictions by declaring certain electronic or digital records to be primary evidence itself in specific circumstances. Arguably, the explanations fall foul of Section 63 of the BSA, since they appear to bypass the mandatory requirement of satisfying the preconditions stated therein for the electronic evidence to be admissible as primary documentary evidence, including the mandatory requirement of submission of the certificate.

However, this apparent conflict can be resolved by harmonising the Explanations with the preconditions for admissibility of electronic record, which can be achieved by excluding the circumstances outlined under Explanations to Section 57 of the BSA, from the scope of Section 63 of the BSA, thereby giving full effect to the legislative intent under Section 57 of the BSA, while respecting the judicial mandate for satisfaction of the preconditions. The additions, despite the possible reconciliation, give rise to new ambiguities as regards the law on electronic evidence — for instance, Explanation 5 declares an electronic or digital record to be primary evidence, provided it is procured from “proper custody”³⁸. However, the term “proper custody” employed here lacks a clear definition within the context of Section 57 of the BSA, leaving room for uncertainty.

Furthermore, using (im)proper custody as one of the yardsticks for determination of evidentiary value of electronic or digital records, marks a significant departure from the foundational principle of law on electronic evidence. Traditionally, under the scheme of law on electronic evidence, the ascertainment of evidentiary value has been premised upon verifying authenticity of the record itself, rather than upon individual(s) as a source of authority providing such record. This principle is underscored by the conditions outlined for the “information and computer in question” under the erstwhile Section 65-B(2) of the IEA³⁹. Additionally, there are other technical and technological ambiguities and ramifications involved with the other Explanations, that are not discussed here to avoid verbosity and technological jargons.

Procedural aspects of the preconditions for admissibility

The procedural aspects related to the law on electronic evidence closely align with the foundational principles previously discussed, considering that the procedural requirement of submission of a certificate alongside electronic evidence produced before the trial court, has been declared indispensable by the Supreme Court. It is, perhaps this judicial directive, that has led to strengthen and striction of the said certificate — while the basic criteria remain unchanged, the BSA additionally requires the certificate to be also signed by an expert, apart from the person in charge of the device concerned, thereby introducing a dual-certificate mechanism. This is a positive development brought that aligns with various judicial decisions and the key ruling laid in Arjun Panditrao Khotkar⁴⁰, strengthening the credibility of the electronic evidence for admissibility purposes.

Additionally, Section 39(1) of the BSA⁴¹ (corresponding to Section 45 of the IEA⁴²) incorporates a significant reciprocal change by inserting the residuary phrase “any other field”⁴³ thereby making the opinion of an expert of any other field, including but not limited to experts in the fields of emerging technologies and the Information Technology, relevant in judicial proceedings. In contrast to the previous Section 45 of the IEA, which was exhaustive in specifying the fields from which experts could be called to testify before the trial court, Section 39(1) of the BSA adopts a more inclusive approach.

Law on the legal relevancy vis-à-vis electronic evidence

Facts relevant as to contents of the electronic or digital records

Since electronic evidence is secondary documentary evidence under the law of evidence, the relevance of facts as to contents of the electronic or digital record is limited to specified circumstances. Previously, Section 22-A of the IEA addressed the relevancy of oral admissions as to contents of documents, which has been rendered redundant with the as the expanded definition of “document” under the BSA encompassing electronic or digital records. As a general rule, under Section 22-A of the IEA, oral admissions are not considered relevant as to contents of the document, except when the genuineness of the electronic record itself is in question.

It is noteworthy that the erstwhile Section 22 of the IEA⁴⁴ prescribed two alternate twin conditions for oral admissions as to the contents of documents to be relevant — the oral admissions could become legally relevant either if the party proposing to prove them showed that he was entitled to give secondary evidence of the contents of such documents, or when the genuineness of the document itself was in question. It is further noteworthy that the altered definition of “document” under the BSA, has led to the omission of Section 22-A of the IEA and the language employed in the newly enacted Section 20⁴⁵ of the BSA corresponds completely with Section 22 of the IEA, thereby subjecting all kinds of documents (including electronic or digital records) to the same two conditions.

Before exploring the resultant dichotomy, it is first pertinent to consider the expanded definition of what may amount to secondary evidence under Section 58 of the BSA (corresponding to Section 63 of the IEA). Section 58 of the BSA now, inter alia, provides that oral admissions can be adduced as a piece of secondary evidence as to contents of the original document in the permissible situations listed under clause (i) Explanation to Section 60⁴⁶ of the BSA (corresponding to Section 65 of the IEA), which allows any secondary evidence (including oral admissions) to be admissible in the circumstances where the adverse party is in possession of the original document sought to be proved, has been lost, etc. or is not easily movable.

Electronic or digital records as primary evidence

This discussion must be located within the context of electronic or digital records being designated primary evidence in specific situations under Section 57 of the BSA⁴⁷. To summarise, oral admissions can now be presented as secondary evidence of the electronic or digital records that are classified as primary evidence by the newly enacted Explanations to Section 57 of the BSA. One such circumstance arises when the records are not within the lawful control, custody or possession of the party proposing to prove them — a peculiar situation first identified by the Court in Shafhi Mohammad⁴⁸ ruling — and now in these cases, the party proposing to prove them need not apply to the Court to procure such records, as suggested in Arjun Khotkar⁴⁹ ruling, while declaring Shafhi Mohammad⁵⁰ to be flawed.

Thus, the party concerned now has a remedy within the law of evidence itself, albeit in limited circumstances, where the records sought to be adduced constitute primary evidence. The general procedural rules governing primary and secondary documentary evidence now apply to these electronic or digital records so designated as primary evidence, thus protecting these specified records from the rigour of a rigid framework laid in the special provisions relating to electronic evidence. Seemingly, in the context of these limited circumstances, Parliament has diluted, if not entirely circumvented, the strict dictum laid in Arjun Khotkar⁵¹ ruling, completely prohibiting proving of electronic or digital records in the ordinary manner in accordance with the general rules for proving contents of a document. From the foregoing discussion, it is safe to conclude that the balanced approach put forth by Shafhi Mohammad⁵²ruling now finds a place, though in a different form, within the legislative framework on the law of electronic evidence.

Conclusion

The Arjun Khotkar⁵³ ruling, on one hand, had affirmed the provisions relating to admissibility of electronic evidence to be a self-sustained and comprehensive “complete code”, and effectively prevented creation of two parallel procedural pathways within the existing legal framework of the law on electronic evidence. The approaches outlined in the earlier decisions in Navjot Sandhu⁵⁴ and Shafhi Mohammad⁵⁵ were deemed divergent, making the verdict in Arjun Khotkar⁵⁶ a foundational step towards uniformity in this area of law — a step that now stands unsettled in light of the recently enacted the BSA, 2023. Though the Adhiniyam offers a refreshing change, it now remains to be seen if this new beginning will warrant the Court to revisit its previous decisions, and reconsider the discarded approaches as viable options in this evolving landscape. While we await the response from the Court, we can either wait for solutions to the issues identified or actively pursue to seek those solutions. Arguably, it is easier to identify problems than to propose solutions, but in the realm of law, it is crucial to recall Einstein’s wisdom, who is famously quoted having said that if he had one hour to save the planet, he would spend 59 minutes defining the problem and only one minute on the solution. So, for now, it is hopefully acceptable to sit with the problems so identified.