This article has been written by Karan Sharma, pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
A document, as we all know, is a systematic record of details with respect to the various activities that one performs or activities that take place in surroundings. A document is not only a work product but is also the product of images, audio recordings, video clips, online conversations, etc. We can also say that documents are more information providing particulars that update the people through many instruments like newspapers, different issues of newspapers, ancient scriptures, etc. We can say all these things are documents as they are systematically recorded activities that update the people about their surroundings, their past, etc.
When we talk about documents, it is very hard to neglect the concept of e –documents or electronic documents in the 21st century. Electronic documents are those documents which record the information electronically rather than producing them in the hard copy to the receiver. Everything that we do on our electronic devices like laptop, computers, mobile phones, tablets is electronically recorded in the form of search history, photographs, audio recordings, screenshots, cache, video clips and call recordings.
In this article, we will discuss what is the status of electronic documents in the form of evidence in the Indian courtroom.
Concept of E-Evidence in India
India was introduced with computers in the 1950s but it became a part of regular documentation machines in the 1980s. The computer systems were introduced with efficient documenting functions which made the recording of documents more formal and central. Currently, the technological aspects of computers have risen up to a whole new level which the people could only dream of. With the advancement in technology, today we have smartphones which are almost kind of miniature PCs or laptops which are more advanced in documenting photographs, audio recordings, text messages, video clips, call recordings and much more. As John F. Kennedy once said, “Change is the law of life. And those who look only to the past or present are certain to miss the future”. The Indian Judiciary system had to advance itself too as it was the need of the hour and the need of the future. In today’s time, when the classes, offices, court hearings, appointments are online and done in electronic mode, the harassments have also seen a large number in electronic form.
As the above-mentioned scenarios are also in the electronic form, it is easy to digest that all the evidence, all the proofs and all the submission will be in electronic documentation form only. Indian legislature took as much time as is needed in making legal alterations to the Evidence Act and presenting a considerable law to be specific, the Information Technology Act, 2000. The electronic record, electronic signature, electronic authentications, electronic structures, electronic business, electronic book or arrangement, electronic arrangements, and electronic messages, were consolidated in different laws to extend the extent of acceptable proof. Digital Signatures likewise got legal acknowledgement via the 2009 correction to the Information Technology Act, 2000. The above-mentioned facts correctly show and represent that not only the Judicial System has not been prejudicial to changes but also represents the fact that the Indian Judicial system has always tried to advance itself with the advancement of nature and the environment around it.
Electronic Evidence: Primary or Secondary?
However, it is pertinent that to make your case strong, you need all the proofs, evidences that you are capable of collecting and presenting before the court. When the Indian Evidence Act, 1872, with respect to Section 92 of the I.T. Act 2002 was amended, in Section 3 “documents” was substituted with “all documents including electronic records”. It also states that words printed, lithographed, photographs were considered as documents and thus are very much presentable in court.
When we look into the Evidence Act in exaggerated details, we get to see sections like Section 62, which tells what is primary evidence and section 63. which informs about the Secondary Evidences, neither of them directly insist or pressurize on the word “electronic document” rather they only talk about the original documents or the certified documents which are produced by a computer, or the copies that are compared with the original document or the oral accounts stated by the person who has himself seen it and is not stating hearsay.
But when we move further and study Section 65, it tells us about the conditions when secondary evidence/documents may be provided. Under section 65, there is Section 65(B) which governs the laws for “Admissibility of Electronic Records”. So it is safe to say that even though it does not expressively state that the electronic documents are secondary or primary in nature but impliedly tells that the electronic documents are secondary evidence in nature as the admissibility of the electronic records are stated under Section 65(B) which is a part of Section 65 which governs the laws for secondary documents
E-Evidence in the Indian Evidence Act, 1872
The Indian Evidence Act, 1872 lays down the provisions for admissibility and the validity of the e-documents under provision of Section 65(B). Section 65(B) of the act states the norms for admissibility of electronic records.
Section 65(B)(1) states that anything that is printed on paper, stored on a disc, recorded on a magnetic media or copied to a magnetic media shall be treated as an admissible document.
Section 65(B)(2) states that the documents presented are admissible in any proceedings if the document is gained through:
- The computer that was used in the ordinary cause and was used regularly to store and process the information by the person who was lawfully entitled to the computer.
- The information that was regularly fed in the daily course of activities.
- The computer that was in the working condition from which the information is derived and also state if it was inoperative or not operating properly and also states the accuracy of the computer
- The information contained in the electronic record reproduced from the information derived from the real information.
Section 65(B)(3) states that if the information, which is being derived from:
- Combination of computers;
- Different computers operating during the succession of that time period;
- Computers that were used in combination at that period of time; or
- In any manner if one or more computer was used.
In the above-mentioned scenarios, all the referred computers shall be treated as one single computer.
Section 65(B)(4) states that if any information is derived under the supervision of the provision of this Section:
- The document shall be identified and the way of procurement of such record shall be stated.
- State the particulars of the computer or electronic device from which such record was produced.
- Particulars of the official responsible person or the management that is over the control of the computer from which such information is derived.
E-Evidence in the I.T. Act, 2000
The I.T. Act of 2000 was introduced as the advancement of laws with the advancement of technology in the 2000s. The Section 2(r) states “electronic form with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, microfilm, computer-generated microfiche or similar device” and Section 2(t) states “electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche.”
The I.T Act, 2000 also does not give much emphasis on the fact of proving if the electronic documents can be submitted to the court of trial in order to prove some facts but, the Section 79A of the I.T. Act explicitly states that the Central Government through its powers, can appoint an expert in order to review, give an opinion and examine the electronic record that has been presented in the court. This shows that the court and the government are of the opinion that electronic forms of evidence/records are actually admissible.
Role of Electronic Evidence in CPC
The Code of Civil Procedure looks into the matters that are concerned with the civil wrongdoings in society. Civil matters mostly are in concern with the recovery of money, illegal constructions and etc. The Civil Courts also allow electronic evidence in compliance with Section 65, 65(B) of the Evidence Act, 1872.
The civil court has then and now relied upon the screenshots, photographs, WhatsApp chats, audio recordings and call recordings in order to get the justice done. There are still some uncertain situations where the court, even though accepts that a conversation took place between the sender and the receiver, there is still some possibility that someone else could enact or forger the personality of the sender as well.
In short, even though electronic evidence is accepted by the courts, there are still chances or uncertain events that might lead to the tampering of the electronic evidence or electronic records which might result in injustice to one of the parties.
The Apex Court in Shahfi Mohammad v. State of HP said that the certificate of the produced electronic evidence shall be thoroughly checked for any tampering by the officeholder or responsible person of the computer through which such document or evidence is presented.
In Anvar P.V. case, the Supreme Court stated that the section 65(B) if the Indian Evidence Act, 1872 is correctly laid down as there is a big chance that the electronic evidence can be manipulated, changed or tampered, so a certificate of legitimacy shall be provided as it only makes the e-evidence more strong in the court.
In conclusion, we can say that the Judicial System has always tried its best in order to get advanced with the advancing environment and has correctly laid down the laws that relate to the submission and admissibility of electronic documents, evidence and records. The Indian Evidence Act along with the IT Act has tried to enforce and legitimise the concept of electronic evidence in India. Even though the view of the courts is right that such documents or evidence can be tampered but the certified copies do make your case very strong and thus, electronic evidences are admissible and reliable in the eyes of courts.
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