This article was written by Somya Jotwani, a student of Faculty of Law, Delhi University.
In today’s world where technology had geared up with a pace ,there is a increasing reliance on electronic means of communications ,e-commerce and storage of information in digital form has most certainly caused a need to transform the law relating to information technology and rules of admissibility of electronic evidence . There is a great emergence in making those legislations in law which appreciates the digital evidence. Keeping with the times, requisite amendments were also made to Indian laws in the year 2000 with introduction of the Information Technology Act, 2000 which brought in corresponding amendments to existing Indian statutes to make digital evidence admissible.
While the admissibility of electronic evidence in legal proceedings is not new in India, with the passage of time, the safeguards employed for enabling the production of documents have changed substantially, especially since the storage and use of electronic information has increased and become more complex.
ADMISSIBILITY OF ELECTRONIC RECORDS:
The admissibility of electronic records along with paper based documents has been amended from time to time to proof as evidence in the Indian courts. Section 22A was inserted in evidence act to provide the relevancy of oral evidence as to contents of electronic records.
Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitles to give secondary evidence of the contents of such document under section 65, or unless the genuineness of the document produced is in question.
When the question is whether a document is genuine or forged, oral admissions about the fact are relevant. A document can be proved by the primary evidence or secondary document. Section 22A (When oral admissions as to contents of electronic records are relevant) amended in evidence act which lays down that the oral admissions as to the contents of electronic records are not relevant unless the genuineness of the electronic record produced is in question.
Section 65A and Section 65B have added by the Information Technology Act, 2000. Section 65A lays down that the contents of electronic records may be proved in accordance with the provisions of Sec65B.
Section 65A says that the contents of electronic records may be proved in accordance with the provisions of 65B.
Section 65B lays down “Notwithstanding anything contained in the Act, any information contained in the electronic record which is printed on a paper ,stored ,recorded or copied in optical or magnetic media produced by a computer shall be referred to be also a document, if the conditions contained in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings ,without further proof or production of the original ,as evidence of any contents of the original or of any stated e of which direct evidence would be admissible”.
It further laid down the following conditions have to be satisfied in relation to computer output:
Such information was produced during the regular course of activities by the person having lawful control over the computer’s use.
Such information has been regularly fed into the computer in the ordinary course of the said activities.
Throughout the material part of the said period, the computer was operating properly, or the improper operation was not Information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of activities.
Section 65B then lays down for the purpose of evidence, a certificate identifying the electronic record containing the statement and describing the manner in which it is produced by a computer and satisfying the conditions mentioned above ,and signed by the officer in charge of the operation or management of the related activities ,shall be the evidence of any matter stated in the certificate ;it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
This increased use of technology, however, poses challenges accommodating and reflecting the new age developments in laws across jurisdictions, which in turn has provided the much required impetus to the emergence and appreciation of digital evidence.
The certificate of authenticity has not always been filed with the electronic records in legal proceedings. In case of state (NCT of Delhi) v. Navjot Sandhu ,the Supreme Court had held that courts could admit electronic records such as print outs and compact disc as prime fv evidence without notification. The accused made a submission that no reliance could be placed on the mobile telephone records because the prosecution failed to produce the relevant certificate under section 65B of Evidence act was not followed. The Supreme Court held that cross examination of competent witness acquainted with functioning of computer was sufficient to prove the call records. There was no authentication and certification which leads to ignorance of special procedure followed in section 65B.
For instance, the case of Ratan Tata v. Union of India was another case where a CD containing intercepted telephone calls was introduced in the Supreme Court without following the procedure laid down under section 65B of the Evidence Act.
Recently, the Supreme Court of India in case of Anvar P.K Basheer & Ors overruled the earlier decision the case of State (NCT of Delhi) v Navjot Sandhu, also popularly known as the “Parliament Case”. The Supreme Court redefined the evidentiary admissibility of electronic records to correctly reflect the provisions of Evidence act by reinterpreting the application of section 63, 65 and 65B.
India has to go long way in keeping pace with the developments globally. it is clear that that India has yet to devise a mechanism for ensuring the veracity of contents of electronic records, which are open TO manipulation by any party .Although the amendments were introduced to reduce the manipulation of records but still it has to go far. The court has to see that the correct evidence is presented and administered so as to facilitate a smooth working of legal system. Such practices have to be adopted which fulfils the requirements of authenticity, reliability and integrity.