This article is written by Arundhati Roy.
Table of Contents
In this tech-savvy world, the utilization of computers is not just restricted to established organizations or institutions but also to every individual at the swipe of a finger. However, the virtual world unlike the real world creates several opportunities for the commission of cyber offences which includes phishing, child pornography, identity theft, hacking, etc. As there is a constant rise in the dependency on electronic means of communications, e-business and storing of information in digital form, the need for transformation to the law relating to the information technology as well as rules of admissibility of electronic evidence both in civil and criminal matters has emanated.
The term ‘Electronic Evidence’ signifies a piece of evidence generated by some mechanical or electronic processes which is often relevant in proving or disproving a fact or fact at issue, the information that constitutes evidence before the court. Electronic Evidence is commonly known as Digital evidence. The forensics experts or the Examiner of Electronic Evidence have the ability to recover the data which is stored in electronic devices or systems and after their examination it can be made admissible before the Court proceedings.
As the electronic records are more vulnerable to alteration, transposition, tampering, excision etc., without the presence of any such safety measures, it can lead to distortion of justice if the entire proceeding is based on electronic evidence. The legitimacy of the e-documents being arguable for the reason that they are susceptible to be tampered with, the agencies which conducts investigation of such e-documents are struggling with the problem of admissibility of such electronic evidence.
Accordingly, the Information Technology Act, 2000 which is formulated on the basis of United Nations Commissions on International Trade (UNCITRAL) Model Law on Electronic Commerce was amended to allow the admissibility of digital evidence and also brought amendments to Indian Evidence Act, 1872, the Indian Penal Code, 1860 and the Banker’s Book Evidence Act, 1891. The amendments carried out in these acts provides the legislative structure for transactions which take place in the electronic world. In this article, examiner of electronic evidence in nexus with the other statutory provisions with respect to the admissibility of electronic evidence has been analyzed.
Examiner of electronic evidence
Section 79A of the Information Technology Act, 2000 has been embodied to deal with the Examiner of Electronic Evidence. Chapter XIIA of the IT Act enshrines the provision for highlighting the role of Examiner of Electronic Evidence, as the legislators felt that there is a necessity for a specialized department, body or agency of the Central Government to provide expert opinion on electronic form of evidence before any court or other authority.
The Central Government is empowered under Section 79A of the IT Act to notify any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence for the purposes of providing expert opinion on electronic form evidence before any court or other authority stipulated by notification in the Official Gazette.
Further, the Explanation clause defines the term “Electronic Form Evidence” which means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines. This definition is to be read only for the purpose of this section which is specifically mentioned by the explanation clause.
In view of the above definition provided to “Electronic Form Evidence”, the Courts can give permission to use digital evidence such as WhatsApp chats, Social Media chats, browser data, browser history, digital images, e-mails, word processing documents, contents of hard disk, databases, Global Positioning System tracks, etc., during the course of civil proceedings or criminal trials.
Pilot scheme for notifying examiner of electronic evidence u/s 79A of IT Act, 2000
The Ministry of Electronics and Information Technology (MeitY) has developed a scheme for notifying the Examiner of Electronic Evidence and was launched in January 2017. As per the Ministry, the objective of the scheme is to ascertain the competence of all the desiring Central Government or State Government agencies and to qualify them to act as Examiner of Electronic evidence as per their scope of approval through a formal accreditation process. Once notified, such Central, State Government agencies can act as the “Examiner of Electronic Evidences”, and provide expert opinion of digital evidences before any court.
In order to be qualified the Central or State Government agencies have to go through the process that is used to evaluate whether they are eligible to be appointed as Examiner of Electronic Evidence. The scheme is formulated in such a way as to assess these agencies, the test of which includes examination of the technical, skilled professional manpower in digital forensics, licensed tools and equipment, availability of suitable environment to carry out such evaluation as also the availability of a proper quality management system and reasonable experience to demonstrate their overall competency in this area. No individual will be certified as an examiner
Scope of the scheme
When any department, body or agency of the Central Government or a State Government seeks to be notified as an Examiner of Electronic Evidence, they have to apply by way of submitting an application as prescribed to the Ministry of Electronics & Information Technology (MeitY), Ministry of Communications and Information Technology, Government of India. The scope of approval will be one or more of disciplines/ areas of activity in the applicant Forensic Science Laboratories:
- Computer (Media) Forensics;
- Network (Cyber) Forensics;
- Mobile Devices Forensics;
- Digital Video / Image & CCTV Forensics;
- Digital Audio Forensics;
- Device Specific Forensics;
- Digital Equipment / Machines (having embedded firmware);
- Any other.
Moreover, the Pilot Scheme for notifying Examiner of Electronic Evidence issued by the Ministry of Electronics & Information Technology (MeitY) also consists of the Criteria for Accreditation, Eligibility Criteria, Procedure for Application, Evaluation and Recommendation, Notification and validity, Appeals, Fee for application, assessment, certification. For the proper perusal of the scheme visit the website.
Electronic Evidence and the Indian Evidence Act, 1872
Apparently, when comparing electronic evidence to the conventional or traditional form of evidence, it has been seen that the evaluation of the electronic evidence in order to check its authenticity requires specialized and expert training in the field of cyberspace, the methodology used for its investigation and the analysis of facts, figures, or particulars kept or recovered from any electronic device for it to be admissible before the court of law.
The Indian Evidence which has been amended as a consequence of Section 92 of the Information Technology Act. The amendment in the Evidence Act includes the addition of the words “electronic record” in the definition of evidence, thereby permitting admissibility of the electronic evidence. Regarding Section 59, which incorporates “documentary evidence”, for the words “contents of documents” the words “contents of documents or electronic records” have been substituted. In addition to this Section 65A & 65B were inserted by way of amendment to provide for the admissibility pf electronic evidence. Further, Section 79A of the IT Act has expanded the scope of Section 45 of the Indian Evidence Act. Section 45 of the IEA provides for Opinion of experts.
Section 45 of the IEA says that, When there is a requirement as to the formation of opinion by the Court of law on the points such as foreign law or of science or art or identification of handwriting or finger impressions, the opinions of such persons shall be relevant on that point who are especially skilled in the field of foreign law, science or art or as to identity of handwriting or fingerprints. Such persons are known as Experts and their opinions are relevant under this section.
By virtue of Section 45, any expert called to give opinion on “electronic form evidence” will be relevant in accordance with the Indian Evidence Act, 1872. Also, a separate Section i.e., Section 45A has been inserted by way of amendment in the year 2009 to specifically make the Opinion of Examiner of Electronic Evidence relevant before the court of law.
As per Section 45A, During a proceeding if the need arises as to formation of an opinion by the Court on any matter which pertains to any information communicated or stored in any computer resource or in any other electronic or digital form, the opinion which is given by an Examiner of Electronic Evidence mentioned under Section 79A of the Information Technology Act, 2000 is a relevant fact. The explanation clause supplemental to section 45A states that the Examiner of Electronic Evidence is an expert for the purpose of this Section.
In the matter of Tulip Lab Pvt. Ltd v. Mr. Henrik Uffe Jensen, the Delhi High Court had opined that, “NASSCOM is requested to appoint an expert to look into the data furnished by the defendants in support of the contention that the plaintiff may be indulged in spamming….”
Admissibility of electronic evidence u/s 65A & 65B of the Evidence Act
Section 65A of the Indian Evidence Act has been incorporated with the intention to prove the contents of electronic records in conformity with the provisions of Section 65B of the Indian Evidence Act. Thus, Section 65B of the Evidence Act specifies the procedure for justifying any documentary evidence by way of an electronic record.
Section 65B states that, Despite the other provisions of the Evidence Act, any information which is contained in electronic record i.e., engraved on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be considered to be a document, if it fulfils the conditions prescribed under this section 65B (2) to (5) in connection with the information and the computer in question, shall be admissible in any civil or criminal proceeding without the directive to present the evidence by producing the original document.
The conditions laid down under Section 65B (2) to (5) should be taken into account while proving the admissibility of any electronic evidence.
In Anvar P.V. Vs. P.K. Basheer and Others, it was held by the Supreme Court that the Computer Output is not admissible without compliance of Section 65B. It overruled the judgment in State (NCT of Delhi) v. Navjot Sandhu alias Afzal Guru by the two judge Bench of the Supreme Court. The court observed that “the Judgment of Navjot Sandhu, to the extent, the statement of the law on admissibility of electronic evidence pertaining to electronic record of this court, does not lay down correct position and is required to be overruled”.
In the case of Tomaso Bruno & Anr. Vs. State of UP, the Apex Court dealt with the admissibility of evidence in a criminal case. The Court held that ― “the computer-generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B. Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act.”
The Decisions in the above three matters had created scepticism over the interpretation Section 65B of the Indian Evidence Act, 1872, as all of them were conflicting with each other. This issue has now been determined in a recent matter of Arjun Panditrao Khotkar v. Kailash Kishanrao, wherein the Supreme Court has elucidated the explanation of Section 65B in its verdict. The Judges in the instant case concurred with the observation done in Anvar v. Bashir wherein the court had held that Section 65B is an exhaustive provision in itself, directing the procedure for the admissibility of electronic evidence and therefore other provisions of the Evidence Act won’t affect it.
Today, the biggest challenge the Courts have to deal with regard to electronic evidence is its authenticity, veracity, genuineness and reliability for it to be admissible before the court of law. However, with the legal recognition given by the Information Technology Act, 2000 to the electronic or digital evidence, along with subsequent amendments in the Indian Evidence Act, 1872, the use of electronic form of evidence has come a long way. Yet, it cannot be said that the statutory provisions introduced to assess the veracity of the electronic evidence are suffice to face the issues which arise as a result of malpractices such as falsification of information in relation to the legitimacy of information relied upon as piece of evidence during trials or proceedings. In order to deal with the concerned issued, it may be sagacious to set up a special team of experts who are well-versed with information technology and can assist the courts by investigating the authenticity of electronic records presented as evidence.
In an initiative taken by the Ministry of Electronics and Information Technology, it has finally acknowledged the need for appointing an expert for Electronic evidence that will provide aid to the investigators and prosecutors as per the changing requirements. In this article we have gone through Section 79A of the Information Technology Act, which empowers the Central Government to appoint “Examiners of Electronic Evidence” along with the pilot scheme for notifying the Examiner of Electronic Evidence launched in the year 2017. It is pertinent to note that under this scheme only Central or State Government agencies who are specialized in the field of forensics can apply to be evaluated and certified.
After this, the applying agencies have to go through a three-stage assessment only then they shall be appointed as examiners. The appointment of such examiners is a progressive step in making the electronic evidence not just reliable but admissible before the court of law. But as far as the success rate of the pilot scheme introduced by the MeitY is considered it cannot be said to have achieved the purpose as we need more certified labs, putting their seal and sign which in itself qualifies as a concrete attestation before any court.
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