THIS ARTICLE WAS WRITTEN BY JESSICA KAUR A STUDENT OF SYMBIOSIS LAW SCHOOL, NOIDA.
With the advent of technology and digitalization, the world has indeed shrunk and become a smaller place. The transactions have become paperless, documentations have digitized and hence the repercussion of such developments is realized by the law makers of our country. “An electronic document is any electronic media content (other than computer programs or system files) that is intended to be used in either an electronic form or as printed output.” [i]
Legal recognition of such electronic documents thus becomes a necessity as question regarding their sanctity as well as evidentiary value is raised time and time gain in civil as well as criminal cases. With this view, India enacted its very first piece of legislation the Information Technology Act which gave legal validity and recognition to electronic documents and digital signatures and enabled conclusion of legally valid & enforceable e-contracts.
Similarly Indian Penal Code,1860 as well as Indian Evidence act,1872 has been amended accordingly in order to recognize electronic documents as evidence.
RECOGNITION OF E-MAIL AS EVIDENCE
- Definition of E-mail:
E-mail means electronic mail is the exchange of computer-stored messages by telecommunication.[ii] “E-mails are composed of a “header” and “body”. While the body of the email contains the individual text composed by the sender, the header listing the sender’s name and address, the recipient’s user name and address, the transmission date and time and the subject matter of the mailing. “[iii]
- E-mail as Admissible Evidence:
The introduction of Information Technology Act, 2000 has led to the amendments in the Indian evidence act to include electronic records in the definition of ‘evidence’ of section 3(a).
The admissibility of electronic document is also now recognized as per Section 17 of the Evidence Act which has been amended to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance. [iv]
Section 65B[v] gives a method to illustrating proof in backing of electronic records, for example, demonstrating that the PC from where the electronic archive is achieved or delivered was utilized as a part of conventional course of exercises and there was no extent of tampering with the same. Section 45 of the Act additionally depends on expert evidence with respect to the admissibility of electronic records.
Therefore, E-mail being an electronic document is admissible under the sections mentioned above provided its authenticity is proved beyond doubt. Section 65B is of utmost importance in accepting emails as admissible evidence by the courts. The courts have rejected emails as evidence ample number of times where a certificate in accordance with section 65B was not provided.
In Anvar P.V. vs. P.K. Basheer[vi] the Court rendered a landmark judgment where it held that “the person requires only to mention in the certificate that the same is to the best of his knowledge and belief which should be attached to the electronic record like pen drive, computer printout, Video Compact Disc (VCD), Compact Disc (CD), etc., referring to which statement is sought to be given in evidence, when the same is produced in evidence. All these protections are taken to guarantee the source and validness, which are the two trademarks relating to electronic record looked to be utilized as confirmation. Electronic records being more prone to altering, modification, transposition, extraction, should be taken into account as evidence after careful examination as otherwise it can result in tragedy of equity.” The same view was accepted in Suhdir Jain Vs. R.P. Mittal[vii]
Considering the importance of Section 65B it becomes necessary to understand it as it gives us an important inference as to how an email or any other electronic document can be produced before court as admissible evidence. In Kundan Singh Vs. The State [ix] The Delhi High court explained section 65B in great detail and held that “ The computer output – when provisions of section 65-B are satisfied is treated as evidence of the contents of the original or facts therein of which direct evidence is admissible.
Section 65-B of the Evidence Act, which consists of four sub-sections, expands the meaning of “computer output by referring it as the original device or machine from which the end result was procured. It specifies that the onus of proving its originality lies on the person who sought to produce it as evidence.[x] “In assessing the evidential weight the court ought to consider the nature of the route in which the data message was made, secured or passed on; “the trustworthiness of the path in which the authenticity of the data message was kept up; the path in which the originator of the data message or electronic record was recognized; and whatever other noteworthy variables.” [xi]
- Procedure for proving authenticity of E-mail:
Authentication ought to be made through a learned witness who can recognize the initiation and the archives appearance, substance, substance, inward examples, or other particular qualities.
- The individual creating the email as proof must show who or what began the email and whether the substance is finished in the structure proposed, free from mistake or manufacture. In revelation, the advocate needs to demonstrate that the printed copy of the email confirmation is steady with the one in the PC and incorporates all the data held in the electronic report.
- The individual ought to have the capacity to recoup passwords that demonstrate his ownership or possession, and distinguishing substance of documents that are particular to a client.
- Help of a Tech or an IT expert can likewise be taken to demonstrate that the email is genuine.
- With the assistance of IP locations and also Meta information of both servers of the beneficiary and sender can be made witness to demonstrate realness.
Other than call logs, the date/time and substance of messages and email can be valuable. Such information can likewise be verified with supporter records kept by the administration supplier.[xii]
The problem of hacking or viruses destroying the emails has not been dealt with in India yet. The laws enacted in India with the view to legalize and promote electronic transactions through emails are indeed noteworthy as there are provisions strengthening their enforceability and legality as well. However, it falls short in making it completely trustworthy as there are still doubts of E-mails being tampered with and complex scientific methods are required to determine the probability of such tampering.
The basic principles of equivalence, legal validity of both electronic signatures and hand written signatures, equivalence between paper document has gained universal acceptance but new laws and rules are needed to be adopted by India with the growing technology. We all are aware of the easy manipulation of email that occur which requires the courts to examine such emails as evidence with precision.
[i] Information Technology Act, 2000. (2000). Retrieved 15 March 2016, from http://www.ijlt.in/pdffiles/Information-Technology-Act-%28as%20amended%20in%202008%29.pdf
[iii] “Merriam-Webster Dictionary”. Merriam-Webster. Retrieved 20 March 2016.
[iv] Information Technology act,2000
[v] Indian Evidence Act,1872
[vi] AIR 2015 SC 180
[viii] Indian Evidence Act,1872,
[x] Karia,T. ,”Digitalevidence: An Indian Perspective” Digital Evidence and Electronic Signature Law Review, Vol 5 2008
[xi] Tamrakar, V., & pal, P. E-Contracts & Its Legality – Author – Vasudha Tamrakar & Pratibha Pal. Legalserviceindia.com. Retrieved 15 March 2016, fromhttp://www.legalserviceindia.com/articles/ecta.htm
[xii] Salkute, S,(2013) “E-mail/Electronic Document Proof ?”, Retrieved on 25.03.16 from http://www.legalindia.com/e-mailelectronic-document-proof/