This article is written by Pruthvi Ramkanta Hegde. This article explains what is digital evidence while emphasizing on the concept, scope, need, and types of digital evidence. The article further covers the admissibility of digital evidence in India, role of digital evidence in cyber crimes, IPR protection and forensic investigation. Further into the article, the author has also covered various judicial pronouncements surrounding digital evidence, its benefits in legal proceedings and challenges of digital evidence. The article also highlights different global positions with regard to the admission of digital evidence in respective legal proceedings.

Introduction

“Extraordinary claims require extraordinary evidence.” Carl Sagan’s statement states that extraordinary claims should not be accepted without conclusive proof of evidence. Similarly, within the Indian justice system, evidence holds a pivotal role in order to establish the claim and defence of both the parties involved in a case.  Evidence can be in many forms, but its admissibility depends on the court’s discretionary powers by following established rules and laws. As technology is growing consistently, digital evidence also known as electronic evidence is considered relevant evidence in the Indian Court of Justice. Digital evidence can be in many forms including computers, smartphones, pen drives, and other digital media. Its admissibility depends upon the circumstances of each case. 

What is digital evidence

The evidence is generally termed as proof of records or any relevant information. The explanation to Section 79A of the Information Technology (Amendment) Act (2008) defined the electronic evidence, as any information with values that is stored or transmitted electronically, and it includes evidence such as computer data, digital audio, digital video, cell phones and digital fax machines. 

Digital evidence refers to stored, transmitted, or collected information that is used as proof before the court of justice. The information is stored, transmitted, or collected in digital media like computers, mobiles, and other electronic devices. The digital evidence may be in numerous forms including, messages, pictures, videos, and other digital forms. There is no need for handwritten notes or fingerprint tests during an investigation with regard to digital evidence. The digital evidence is always stored in electronic form, not in traditional paper documents. 

Scope of digital evidence

Nowadays, the scope of digital evidence is widening because of continued growth in the digital world. Digital evidence plays a major role in different areas that include legal proceedings, cyber security, corporate investigation, e-discovery, intellectual property theft, forensic analysis, and many other areas. Digital evidence is in many forms including electronic communications, digital documents, multimedia files, internet browsing history, computer data, network data, mobile device data, digital signatures, certificates, and many others.

Need for digital evidence

In India, digital evidence plays a significant role in establishing the claims of each party before the court of law. Some of the major reasons for the need for digital evidence are as follows:

• Digital evidence serves as a detailed and authentic record of electronic records such as emails, text messages, and social media interactions, and helps to present the comprehensive facts in an easier manner.
• In criminal and civil cases, digital evidence assists legal professionals and law enforcement agencies such as the judiciary to investigate and reconstruct events. Digital evidence assists in identifying people, tracing financial transactions and discovering connections between people and entities.
• Well-established digital evidence is more trustworthy and reliable. Electronic records are maintained safely by putting passwords and security. It is hard to change or mess up as compared to traditional paper documents.
• Digital evidence helps to establish intellectual property theft, copyright infringement, or violation of digital rights by providing a clear record of data through different digitised methods. It helps to establish ownership and provides proof of unauthorized use or distribution of digital assets.
• Digital evidence plays a crucial role in establishing facts in concern with the cyber crimes, which have been occurring more recently.  In order to combat cyber crimes like cyber harassment, online bullying, online fraud and other related offences, digital proof is essential to establish real facts.
• The role of digital records in electronic contracts and transactions is pivotal. Due to growth in the digital world, almost every business prefers to engage in electronic contracts and many electronic transactions. In such situations, a digital proof is required to establish the reliability of these documents. This includes emails, digital contracts, and records of transactions. 
• When there are issues with keeping information safe or if someone’s private details get leaked, digital evidence plays a very important role in order to prove what actually happened.
• In matters that deal with national security, the role of digital evidence is phenomenal. Due to technological advancements, the government stores its important documents in the form of electronic records by establishing its official sites. If any security issues arise then it assists in enhancing accessibility, efficiency and facilitates the secure management of sensitive information. Digital evidence helps to determine cybercriminals by finding out where attracts come from and giving proof to court. It also helps to stop future attacks by finding weaknesses in a system and fixing them. For instance, if there’s a pattern that shows a possible threat, digital evidence can help to take action before an attack happens. Thus, it protects the national interest. 
• The matter deals with border issues, digital evidence is very essential. The digital technology is used to monitor border security issues. In order to analyse and monitor activities related to potential threats, it plays a role in verifying identities, tracking the movement of individuals, and preventing illegal activities across borders.
• Digital evidence is essential for establishing the facts concerned with public safety. Police and security teams use digital information to monitor online activities and, they can investigate as early as possible. 
• In the healthcare sector, the adoption of digital technology is important to make sure that information about the patient is kept private and secret. It helps in checking if someone is misusing medical records or doing something wrong with the patient’s information. It can be used as digital evidence if any issues arise in future.

Types of digital evidence

Digital evidence is the information or data which is in the electronic forms. The widespread use of technology in different aspects of life has led to an increase in the different forms of digital evidence. Here are some of the types of digital evidence:

• Communications through text messages, emails, instant messaging, and other electronic messaging platforms can be used as digital evidence.
• Social media posts, comments, messages, and other content from any other social media platforms like Facebook, Twitter, Instagram, etc., can be used as valuable digital evidence.
• Digital documents, spreadsheets, presentations, and other file types are also forms of digital evidence. Metadata within these files may also provide important information.
• Digital photos and videos can be powerful evidence. Metadata, such as timestamps, and geolocation data, can be crucial in order to establish authenticity and context of media files.
• Logs that record computer and internet activities, including browsing history, file access and system logs, can be analysed as digital evidence.
• Mobile devices and some digital cameras record GPS and location data, and are also considered as digital evidence.
• Records of phone calls, including call logs, durations and time stamps, can be treated as digital evidence.
• Digital records of financial transactions are considered digital evidence. That includes bank statements, online purchases and electronic fund transfers, which can be important in financial investigations.
• Fingerprints, facial recognition data, and recording of unique voice characteristics may be used as digital evidence.
• Information related to network traffic, IP addresses, and connection logs can be important for cybersecurity and digital forensics.
• Information that is related to software usage, application logs and system configurations can be treated as digital evidence.
• Data which is stored in cloud services such as Google Drive, Dropbox, or One drive, can be used as evidence.
• Metadata associated with digital files, such as creation data, modification history, and user information is also considered digital evidence that is used for forensic purposes.
• Cryptocurrencies, and blockchain transactions, can also serve as digital evidence. 

Admissibility of digital evidence in Indian Law

In India, the admissibility of digital evidence depends on the different laws, and courts rulings. The Indian legal system has given legal recognition to digital evidence and such recognition of digital evidence is covered under different laws that include as following:

Indian Evidence Act, 1872

The Indian Evidence Act, of 1872 is one of the foundational legislation that continues to be highly relevant in the Indian legal system. Under this legislation, certain provisions direct how evidence is treated in the court. Initially, the Indian Evidence Act didn’t bear direct provisions for the admissibility of digital evidence. Later in the year 2000, an amendment was made to the Indian Evidence Act, accordingly, Section 65B of the Indian Evidence Act, has given legal recognition to digital evidence. Section 65B specifically addresses the admissibility of the electronic records before the court. As per the section, the electronic records include emails, or digital documents or other documents acceptable as evidence in Court. This document can be used as evidence in court without having to show the original digital file, subject to some conditions mentioned in the section that needs to be followed. This allows easier use of electronic information as evidence.

Section 65B(2) of the Act prescribes the rules that need to be satisfied for the information stored in the computer to be considered valid in legal proceedings:

• The information in the electronic record must be produced by the computer during the regular use of that computer for storing or processing information related to ongoing activities. 
• During this regular use, the kind of information in the electronic record was regularly input into the computer as part of the usual activities.
• The computer must have been working correctly during the relevant time, and any issues with its operation should not affect the accuracy of the electronic record.
• The information in the electronic record must match the information that is initially fed into the computer during regular activities.

As per Section 65B(4) of the Act, in order to present a statement from the electronic record in court, a certificate can be used. The certificate should be signed by a responsible official who can confirm how the electronic record was produced, provide details about the devices involved, and address the conditions mentioned earlier. In the case of Anver P.V v/s P.K Basheer (2014), the Honourable Supreme Court decided that a certificate under Section 65B(4)of the Indian Evidence Act is essential for admitting electronic evidence. The court emphasised that this certificate ensures the source and authenticity of the electronic record. However, in the case of Shafhi Mohammad vs State of Himachal Pradesh (2018), the Supreme Court provided a different decision. They said that the certificate requirement under Section 65B(4) of the Indian Evidence Act is not always mandatory. According to this case, the certificate is only needed when the person presenting the evidence has control over such a device, not when it’s the other party. 

Evidentiary value of the digital evidence with reference to Bharatiya Sakshya Bill, 2023

The Indian Parliament on August 11, 2023, introduced the Bharatiya Sakshya Bill (hereinafter referred to as ‘Bill’) that replaced the Indian Evidence Act, 1872. The President of India gave their approval on December 5, 2023. The Bill has changed many provisions of the Indian Evidence Act and some of the provisions remain the same. For the admissibility of electronic records or digital evidence, the bill has many provisions. The bill has validated the evidentiary value of the digital evidence. Some of the major changes with regard to electronic records are as follows:

• Section 2(e) of the Bill has provided the legal frameworks for the admissibility of digital evidence. Accordingly, this Section states that evidence includes two forms of evidence. That includes oral evidence and documentary evidence. Oral evidence involves the statements or information provided electronically, by the witnesses in the court, that contribute to the investigation of facts. Such statements are acceptable and it is termed as oral evidence. On the other hand, documentary evidence includes documents that are extended to cover electronic or digital records that are presented to court for the examination. The Section thereby covers the electronic evidence orally as well as through documents. 
• Section 32 of the Bill consists of electronic records in reference to the laws of the other country. Whenever a court needs to understand the laws of another country, any statement about such laws is found in a book claiming to be published under the authority of that country’s government, including electronic or digital form which is considered as relevant. 
• The Bill has expanded the evidentiary value of electronic or digital evidence, by considering digital evidence as primary evidence. As per the Section 57 of the Bill primary evidence refers to actual documents presented for the court’s examination.  Section 65B of the Indian Evidence Act 1872, digital evidence was considered secondary evidence. Section 63 of the Indian Evidence Act stated the meaning of the Secondary evidence. However, the Bill has provided more importance to digital evidence in the legal proceedings by considering the digital evidence as primary evidence. Section 57 of the Bill prescribes the provisions for digital evidence as primary evidence. The Section in its explanation part 4 says that, when an electronic or digital record is created or stored, and this storage happens at the same time or one after another in multiple files, each of these files is considered primary evidence.

Explanation 5 states that if an electronic or digital record is produced from proper custody and is not disputed, it is also considered as primary evidence. Explanation 6 states that video is simultaneously stored in electronic form and transmitted, broadcasted or transferred elsewhere, each of these stored recordings is considered primary evidence. Explanation 7 further extends the concept to situations where an electronic or digital record is stored in various locations within a computer resource, including temporary files. In such cases, each automated storage space is considered primary evidence.

Information Technology Act, 2000 

The Information Technology Act was enacted by the Indian Parliament on June 9, 2000. The main purpose of the Act is to give legal recognition to electronic records and digital signatures which is enumerated under Section 4 and Section 5 of the Act. Digital signatures and electronic records are the forms of digital evidence.  Some of major provisions in this Act that relates to electronic evidence are:  

• Section 4 of the Act states that if any law specifies that information or any other thing must be in written, typewritten or printed form, this requirement is still satisfied if the information is presented in electronic form. Additionally, it should be easily accessible and usable for future reference. 
• Section 5 of the Act states the legal recognition of electronic signatures. If any law mandates that information or any other thing requires authentication through a physical signature, a document must bear the signature of a person. This provision overrides such requirements. It asserts that legal criteria for authentication are fulfilled if the information is authenticated through an electronic signature. The explanation part of section 5 states that if a law requires a person’s signature on a document, the term ‘signed’ means putting a handwritten signature or any mark on it. It also means that the term signature is understood in the same way. The provisions make it clear that electronic signatures are considered just as valid as traditional handwritten ones. However, electronic signatures are valid as long as they follow the specific electronic signature standards set by the central government.
• Section 79A of the Act which was amended in 2008 states that, it is necessary for the central government to appoint an examiner of electronic evidence. That person’s role is to give their expert suggestions on electronic evidence in court or other authorities.

Banker’s Book Evidence Act, 1891

The Banker’s Book Evidence Act came into existence in 1891. It was amended in the year 2000. This amendment introduced specific changes that relate to the admissibility of digital records. Subsequently, the Information Technology Act was enacted, and it served as an update to the Banker’s Book Evidence Act. The amendment has made significant changes in the banking evidence. Accordingly, Section 2 of the Act states that evidence that is taken from the banker’s book as defined under this section is reliable evidence before the legal proceedings. In addition to this, Section 2A speaks about the use of printouts of electronic data that are also considered as evidence before the court. Thereby, amendment was made to this Act that provides legal frameworks for the admissibility of digital evidence in conjunction with banking evidence. 

Role of digital evidence in cyber crime investigation

Cyber crimes are one of the serious issues in India. As technology is growing, some people are misusing it for fraudulent purposes. As per the report of the National Crime Record Bureau (NCRB), in 2019 there was a significant rise of 63.5 percent in cybercrime cases reported in India. The reported cases increased from 28248 to 45546 cases in 2019. In those cases, a total 60.4 percent involved fraud as the primary motive, while 5.1 percent are related to sexual exploitation. Karnataka had the highest number of registered cyber crimes cases 12020, in Uttar Pradesh 11416, in Maharashtra 4867, and in Assam as 2231 cases. Among the union territories Delhi alone accounted for 78 percent of cyber crimes. By the end of 2022, there were a total of 65000 cyber related cases registered in India. 

The majority of the cases fall under computer related offences as per Section 66 of the Information Technology Act. There is a greater importance for the digital evidence to substantiate the facts and to prove these cases. Digital evidence is often linked to electronic crimes like identity theft, cyberstalking, and credit card fraud. Digital evidence is important in finding cyber crimes and proving them in court. The use of digital devices assists in uncovering the evidence related to proof of cybercrimes, data leaks, hackings, and other digital problems.

Indian authorities are incorporating various licensed equipment. Those equipments are specialised in software and advanced algorithms for their investigations. This helps to combat cyber crimes effectively. In this regard, tools like X-ways, WinHex, Rifiuti, Pasco, Galleta/Cookies, NMap, ethereal BinText, and more are helpful in investigation purposes. For example, Rifuti helps to recover deleted documents and Pasco gathers records of internet activities on a targeted computer.

Significance of digital evidence in protecting the intellectual property rights (IPR)

Intellectual property is gaining prominence in India  as a lucrative source of income. In order to prove the ownership of intellectual property, strong evidence is very essential. The infringement may have occurred due to copying, distributing and modifying digital content without the permission of the authorised person. In these situations, the digital evidence helps to execute the facts that validate the originality of a work. It will help to mitigate the unauthorised copying or distribution of such property.  Intellectual property is the product of intellect. Property includes literary, artistic, and scientific works, discoveries, performances, phonograms, broadcasts, industrial design, trademarks, service marks, commercial names and designations.

Property rights are confirmed on the basis of the uniqueness of ideas and creation of the mind. It is essential to prospect the rights of the original owner. Digital copies like journals, publications and books are readily available online.  In case of infringement of such assets by electronic means, it is very essential to protect such rights through the use of digital evidence. Digital evidence helps to safeguard intellectual property rights in case of infringement of such rights. In this regard metadata, digital fingerprints, digital certificates and watermarks play a very important role that includes:

• Metadata will be used to describe other data by encompassing information like creation, date author and software used for a file. Digital fingerprints also serve a major role. It identifies the integrity of a file. Along with it, identical hash values indicate identical files. 
• Digital certificates are used to verify the identity of a person or any organisation. This will help to prove the specific work that is created by that individual or entity. 

The watermarks are considered digital marks which are embedded in a file to show ownership of a work. They are commonly applied to various digital media such as images, videos or documents. The primary purpose of watermarks is to identify and protect intellectual property by visibly and invisibly marking the content. 

Importance of digital evidence in forensic investigation

In India, the role of digital evidence in forensic investigation is phenomenal. Forensic investigation commonly involves scientific methods of investigation. The forensic investigation includes taking physical evidence such as fingerprints, DNA, blood stains, or weapons, autopsy, post-mortem reports, and some other evidence. Along with this physical evidence, digital forensics methods also contribute a significant role in forensic investigations. This is particularly important in dealing with the cases where information is stored electronically. The information may be in any form that includes emails, files and history, all are accounted for as digital evidence while conducting forensic investigation. However, in India, digital forensic investigation is still developing. 

In 2008, a terror attack occurred at Mumbai in India highlighted that the country was still figuring out how to handle and investigate digital crimes. The investigation into the attack was criticised for missing important digital information from the US that warned about the possible terror attack. After this attack, investigators found that digital evidence played a big role in planning and carrying out these terror attacks. In this regard, the Indian government created a report which pointed out that digital devices are very important. The report also highlighted the importance of information from a satellite phone, Direct Inward Dialing (DID) facilities, GPS equipment and the tracking of emails/IP addresses. Even before this incident, there were worries about the use of digital devices in attacks in India. Pakistani hacker groups had been targeting Indian websites. They have tried to hack government official pages and an atomic research facility. 

In the Mumbai train bombings of 2006, terrorists used advanced technology. They used things like masking their IP addresses and using proxy services to hide their communications. After these incidents, India became more  conscious of the importance of digital evidence in forensic investigation and many concerns are raised on this behalf. They suggested that there is a need to improve cyber forensics and cyber security professionals to protect India’s information technology from potential harm. 

Bharat Jatav vs State of Madhya Pradesh (2021) in this case, Honourable High Court while hearing the matter with regards to grant of bail under Section 439 of the Criminal procedure Code emphasised the importance of technology in forensic science and held that the scope of forensic science extends beyond the DNA reports and blood samples. Therefore, Police officers, public prosecutors and trial judges need to be aware of the subjects and tools of digital forensics methods. Digital forensics was governed as per the Indian Evidence Act now, it is governed as per the Bharatiya Sakshya Bill and Information Technology Act. I

The major types of digital forensics are as follows:

• Database forensics – which helps in checking databases for information.
• Network forensics – used for the understanding of data flow in networks to prevent issues and find out what happened. 
• Mobile forensics- this will help to get information from phones or tablets to solve cases. 
• Malware forensics – which is used for harmful computer viruses to know who made them and what it will cause.
• Email forensic- using emails to check out its source from whom it is sent and confirming the date and contents of the mail.
• Memory forensic – used for checking hidden memories or information from the computers.

Judicial pronouncement surrounding digital evidence

State (N.C.T of Delhi) v. Navjot Sandhu @ Afsan Guru (2005)

This case is also known as the Parliament attack case. In this case, the Supreme Court decided on a very significant aspect of the admissibility of the electronic records as evidence in court. This case revolved around the 2001 terrorist attack on the Indian Parliament. Navjot Sandhu, former President of Punjab Pradesh Congress Politician, was accused of being involved in the conspiracy. The issue arose when the prosecution wanted to present call records as evidence. However, the defence objected on the ground that the records didn’t have the required certificate as per Section 65B(4) of the Indian Evidence Act. The Honourable Supreme Court of India had made an important ruling in this case. It was held that the electronic records could be accepted as evidence even without a specific certificate mentioned in Section 65B(4) of the Indian Evidence Act. The court further states the admissibility of electronic record as evidence depends on the details of each case. Facts like the reliability of evidence, where it came from and how it was presented had to be considered. After this case, the rules about admitting electronic records become more flexible. Parties could be allowed to either bring an original record to court and prove it as primary evidence. They could use a copy of the original record accompanied by a certificate under Section 65B(4) of the Evidence Act. However, this decision was overruled by the Supreme Court in the later case of Anver P.V. in 2015.

Manu Sharma v. The State (NCT of Delhi) (2010)

The case is known as the Jessica Lal murder case. The Hon’ble court had the opportunity of delving into the intricacies of digital evidence while deciding this case. In 1999, Jessica Lal, a model, was shot dead at a party. The case gained nationwide attention due to the accused’s influential background and the perceived lack of justice for the victim. One of the pivotal aspects of the case was the court has given recognition to the electronic evidence during the trial. The court acknowledged the admissibility of electronic evidence, including call records and CDs. It had played an important role in establishing the involvement of the accused in the crime. The court had given prominence in adopting technological advancement and incorporated such evidence in criminal proceedings. Meanwhile, the media played a major role in bringing the case into the national spotlight. Finally, in 2010 Honourable Supreme Court of India upheld the conviction of the accused and sentenced them to life imprisonment. This case is considered as one of the prominent cases that allowed the admissibility of digital evidence and upheld the rule of law by ensuring justice without considering the standing of the accused.

Unnikrishnan @ Unni v. The State by Inspector of Police (2011)

In this case, contentions were raised before the Madras High Court. The issue revolved around the admissibility of digital photographs as evidence in a criminal trial. The trial court initially considered the digital photographs inadmissible as evidence. The reason was that the negatives of the photo (this is created during the process of exposing photographic film to light, and it serves as an inverted version of the original scene) were not presented during the trial. However, the High Court took a different stance. 

The court emphasised that in the past, when photographs were captured using cameras with photo films, the negatives were considered primary evidence. Without the production of negatives, the photographs were treated as inadmissible secondary evidence. The High Court highlighted that advancement in technology and inception of modern digital cameras, reliance on traditional photo films reduced. In the case of digital cameras, the photograph itself, or its printout, is considered the primary evidence. The court further held that the requirement of producing negative, as applicable to older cameras. It doesn’t need to apply in the digital age. However, an important point was raised regarding the admissibility of digital photographs. While the Madras High Court had given recognition to the digital photograph as relevant evidence. It interpreted that the digital photograph must meet the conditions that are specified in Section 65B of the Evidence Act. Section 65B(2) of the Act states the requirements for the admissibility of electronic evidence. Section 65B(4) includes the need for a certificate confirming its authenticity and integrity. Thus, the court asserted that in cases involving digital photography, the photograph itself is primary evidence. There is no necessity of submitting negatives for its admissibility in legal proceedings.

Konnadan Abdul Gafoor v. The State of Kerala (2012)

In this case, the issue was raised regarding the admissibility of electronic evidence. The petitioner, Konnadan Abdul Gafoor, was the fourth accused in multiple crimes including illegal and fraudulent activities. The accused individuals were allegedly engaged in activities that cheated telecom service providers, and tampered with the telecommunication network. Further, it was alleged that he caused substantial monetary losses to the government and service providers and installed parallel telephone exchanges in Kozhikode. The mode of operation included the use of multiple broadband connections, illegal call routing Gateway devices, and the insertion of pre-activated SIM cards without the owner’s knowledge and consent. 

• The issue in this case was whether the electronic device met the requirements of Section 65B of the Indian Evidence Act or not. 
• Secondly, whether such evidence is required to be accompanied by the necessary certificate under Section 65B(4) of the Act in order to confirm its authenticity. 

The High Court of Kerala ruled that electronic evidence in the form of probative information is stored in digital form in a Court. However, the court has recognised the delicate and easily manipulable nature of digital evidence. Digital evidence such as electronic files or data which can be easily altered, damaged or destroyed. Hence, there must be special care needed to protect such information. To address these concerns for the admissibility of such evidence in court, the court had ruled that electronic evidence must meet certain specific requirements, which are outlined in Section 65B of the Indian Evidence Act. The court upheld the significance of digital evidence in this case. However, it interpreted that such evidence needs to fulfil the condition specified under Section 65B of the Act.

Anver P.V v. P.K Basheer & Ors (2014) 

The Honourable Supreme Court in this decision had ruled regarding the evidentiary admissibility of the electronic record. The appellant contested in an election as an independent candidate with alleged support from the Left Democratic Front. The respondent emerged as the victor in the 034 Eranad Legislative Assembly Constituency. The issue was related to an election dispute where the appellant alleged corrupt practices during the election campaign. The main issue involved in this case was about the admissibility of the electronic evidence. The evidence specifically included CDs and the publication of a leaflet. It allegedly contained false statements to influence the election outcome. The appellant failed to give a certificate for certain CDs which is required under Section 65B(4) of the Act. It led to questions about the admissibility of the electronic records as secondary evidence. Additionally, the case represented the claims related to the publication of the contentious leaflet (Exhibit- P1). Such claims constituted a corrupt practice under Section 123(4) of the Representation of the People Act (1951). 

The court in its judgement ruled that the electronic record in question was inadmissible as evidence. The evidence had not met the requirements of Section 65B of the Indian Evidence Act. The court clarified that the Section exclusively governs the admissibility of electronic records as secondary evidence. Specifically, the court has highlighted that a person is required to declare in the certificate that the information in CDs, VCDs and chips is to the best of their knowledge and belief. This decision underscores the mandatory nature of Section 65B for admitting electronic evidence as secondary evidence in legal proceedings. The court also held that without submitting the certificate as mentioned under section 65B of the Act, CDs are not admissible as relevant evidence. The decision of the court declared that strict adherence to the conditions outlined in Section 65B is important for the admissibility of electronic records. This decision provided clarity for the admissibility of electronic evidence in legal proceedings. It is considered one of the landmark cases in the admissibility of digital evidence.

Tomaso Bruno & Anr v. State of U.P (2015)

In this case, the Honourable Supreme Court declared that Section 65B of the Indian Evidence Act was not a complete code, but it didn’t refer to the earlier decision held in Anvar vs Basheer case, which is considered a precedent for upcoming cases. In this case, previous judgement appellants were convicted for the alleged murder of Francesco Montis an Italian tourist who resided in Varanasi. The prosecution claimed that the appellants were responsible for his death. 

Meanwhile, the court said that the evidence like security camera footage and electronic proof were not properly shown during the trial. The judges pointed out that the investigation had big mistakes, and the trial court didn’t take them seriously. The decision stressed the importance of having strong evidence in criminal trials. Because necessary proof was missing or not good enough, hence the court acquitted the accused. The court further held that though there is legal recognition of electronic evidence in the Indian Evidence Act, such evidence can be proved beyond a reasonable doubt. The court held that the law prefers to give the benefit of the doubt to the accused when evidence is not clear. However, the judgement is not made clear as to the consideration of the digital evidence.

Shafhi Mahommad v. The State of Himachal Pradesh (2018)

In this case, the Honourable Supreme Court of India addressed the issue of the admissibility of electronic evidence. Issue specifically addressed that the party presenting the evidence is not in possession of the device that generated the electronic document. The court discussed the applicability of Section 65B(4) of the Evidence Act. The Section requires a certificate for the admissibility of electronic evidence. The court held that the requirement of such a certificate is not compulsory when electronic evidence is produced by a party who is not in possession of the device. The court had replaced the procedural requirement of the certificate under Section 65B(4) of the Indian Evidence Act instead allowing electronic evidence without the certificate. 

Arjun Panditrao Khotkar v. Kailash Kishanrao (2020)

In this case, the Honourable Supreme Court of India dealt with the main issue that revolved around the admissibility of electronic records as secondary evidence in court proceedings. Arjun Pnaditrao Khotkar challenged the election of Kailash Kushanro Gorantyal under Section 80 and Section 81 of the Representation of the People Act 1951. The court has interpreted the Section 65B(4) of the Indian Evidence Act, of 1872. The court further held that a certificate is compulsory for the admissibility of electronic records in court. The purpose of this compulsory requirement is to ensure the source and genuineness of electronic records. Because these evidences are more susceptible to tampering or any modifications. 

The court further clarified that the person providing the certificate, such person, needs to state that it is to the best of their knowledge and belief. This certificate must accompany electronic records. That includes computer printouts, CDs, VCDs, pen drives, and some other records when presented as evidence. These safeguards aim to maintain the integrity of electronic records. It prevents potential injustices in trials based on such evidence. The judgement highlighted that if the original document itself is produced, then the certificate Section 65B(4) is not necessary. The owner of a device such as a laptop, tablet, or mobile phone, can enter the witness box to prove ownership and operation of the device where the original information is stored. However, if the computer is part of a larger system network, it’s not possible to physically bring it to court. In such circumstances, Section 65(B) and requirements of obtaining the certification under Section 65B(4) become essential. It is required to prove information contained in electronic records. Further courts specifically addressed the Anvar P.V. case and upheld the judgement in this case. The court interpreted that electronic records used as primary evidence do not necessarily adhere to Section 62 of the Evidence Act. This is because Section 65B is considered the complete code for dealing with electronic records.  

Overruling of judicial decisions

The Honourable Supreme Court of India overruled the decisions of the Tomaso Bruno case and the Shafhi Mohammad case while deciding the Arjun Panditrao Khotkar vs the Kailash Kishanrao case. The court stated that Tomaso Bruno’s case stated that Section 65B was not a complete code. Thereby, the court ignored the earlier decision in the Anver vs Basheer case. The court in the Arjun Panditrao Khotkar vs Kailash case held that Section 65B is a complete code for electronic records. Justice Nariman criticised Shafi Mohammad’s case interpretation that Section 65B is merely procedural, and the certificate requirement can be waived when the electronic device is inaccessible. The court further emphasised that difficulties in obtaining the certificate are not a valid reason for admitting the electronic evidence. Further the court has considered the legal provisions such as Section 165 of the Evidence Act, Civil Procedure Code Order XVI, Sections 91, and Sections 349 of the Criminal Procedure Code 1973 which allow the court to order the production of any document, including electronic evidence too. Thus, if unable to obtain the certificate a person can request the court’s order for document production. Similarly, the court ruled that section 65B(4) is mandatory, not optional. It is a prerequisite before admitting secondary copies of electronic records. It clarified that electronic evidence must be present before the trial begins, and the court can order the certificate’s production at any stage before trial completion. 

Benefits of digital evidence in legal proceedings

The digital evidence plays an important role in establishing the facts in legal proceedings. Earlier it was stuck to physical evidence. As a result of rapidly growing technology, various transactions are carried out in digital mode. Digital evidence has many benefits, some of the important merits are as follows:

• Digital evidence can be sourced from a variety of formats and devices. Devices like laptops, mobiles, hard disks, software and documents like PDF, JPG, image, and audio formats like mp3,  mp4, and many others. These formats and devices can easily be carried in legal proceedings. Thus, it will help to widen the scope of investigations. 
• Digital evidence is stored or transmitted in binary form. The binary form refers to it as a way of representing data using only 0s and 1s. In computing, it’s the fundamental language of electronic devices. Each digit is called a “bit”. This system forms the basis for encoding and processing information inclined every text, image, audio, and video. Digital evidence is the binary nature of data that allows the accurate, reliable representation. This will add more value to the evidence before the court.
• Digital Evidence can be more secure as it prescribes certain passwords and security resultantly, there is less chance of violating private information with strong passwords.
• The Digital data can be easily found, organised and shown in court. This evidence is like information on computers or phones and is helpful in court because it is easily found in different documents, easily copy-pasted and executed in legal proceedings. The digital files not only contain the main information but also keep the record of when it was created, modified and viewed. The digital evidence often comes with metadata. Metadata helps to prove that digital evidence is more organised and more truthful evidence in legal proceedings.
• In cases where in legal proceedings any money matters are involved, digital evidence is very important. It serves as a document, showing how money moves around. This proof is helpful in situations of fraud, or any financial wrongdoing.
• Digital technologies such as encryption, digital signatures, blockchain technology timestamps and logging technology help to maintain the originality and authenticity of the data. Thus, it will be considered as more reliable in court. 
• Digital technology will provide real-time information. This will help lawyers and other legal experts to have access to the most recent and relevant information when dealing with ongoing cases in the court. 
• Instead of dealing with lots of paperwork, storing physical documents, and handling everything manually, digital evidence allows, to do things more efficiently. This means with less printing, less physical storage space and less manual work. It makes the whole legal process more cost-effective.
• The digital clues like metadata, timestamps, and other digital footprints help the experts to investigate more accurately. It provides structured information to get a better and complete picture of the case. This helps to understand the sequence of events and gather more information related to the case.
• Extra details contained in the digital evidence help to verify facts. This might include information like geological data, device identification and user authentication details. These additional details make the evidence more reliable. This will strengthen its credibility in legal proceedings.
• The paper documents or objects can have the change or wear out or change over time. However, digital evidence stays the same. It can be kept in a stable and unchanged condition for a long time. Digital evidence ensures that important information remains unchanged and doesn’t degrade over the years.
• The digital evidence makes the process of finding and using information much easier by using different digital formats. This can be termed electronic discovery. It allows us to collect relevant data for the cases. It is for the better when compared with the old fashioned way of going through piles of papers. By using keywords or specific words one can find the required information very quickly. Collection of the evidence is much easier as compared to physical documents. 

Challenges in handling digital evidence in India 

Though there are immense benefits of using digital evidence, there are many challenges associated in handling digital evidence in India. In India, digital evidence got prominence after the amendment made in the year 2000 to the Indian Evidence Act 1872. But, even today there are numerous complexities in managing electronic evidence. The major challenges are as follows:

Legal framework

Initially, digital evidence did not bear any legal recognition before the court. However, amendment of the Indian Evidence Act in 2000 has given legal recognition to the digital evidence as admissible before the court. However, this Act does not consider electronic evidence as primary evidence, though it is admissible as evidence before the Court. The digital evidence is considered as the secondary evidence as per the Indian Evidence Act 1872. The major issue is as a secondary evidence it may affect its credibility in court. Primary evidence is considered as more reliable and has more evidentiary value compared to secondary evidence. The classification of digital evidence as secondary evidence could impact on the outcome of cases. Moreover, treating digital evidence as secondary evidence will place an extra burden on the person to establish their claims. 

In the legal concept, the burden of proof is something which dictates that the party making a claim must provide relevant and sufficient evidence in order to support their claim. While electronic evidence is admissible before the court as per the Evidence Act it needs to be provided with authenticated certificate to make that evidence admissible before the court. Thus, parties need to overcome additional hurdles for establishing the authenticity of the digital records. In order to combat these issues later some changes were made in the new Bill called Bharatiya Sakshya Bill 2023. The Bill has treated digital evidence as the primary evidence. However, the Bill is criticised for some reasons:

• The Bill is lacking in sufficient safeguards to prevent tampering or contamination of electronic records during investigations. This will raise questions about the integrity of digital evidence in legal proceedings.
• The Bill requires the need for an expert’s certificate to authenticate specific electronic evidence. While this certification is indeed to ensure the accuracy of digital evidence, it may pose a challenge in terms of the ease of producing such evidence in court.
• Further, electronic evidence is bifurcated as both primary and secondary evidence. This will often create confusion in court proceedings. This confusion could affect while interpreting the digital evidence. This may impact the outcome of the cases.

Data protection and privacy 

Digital evidence can have both positive and negative impacts. Digital evidence is very important for the investigation of cybercrimes. However, it can also cause threats to people’s privacy rights. Such rights are protected under Article 21 of the Constitution that states that every individual has the right to life and liberty. The same contention was upheld in Justice K.S Puttaswamy vs Union of India (2018) case. 

For instance, digital evidence is like a detective tool that will be used in order to catch online criminals. It has the capacity to track and analyse activities on the internet. However, this can be misused to the rights of the individual. Because tracking their online movement without their permission is a clear way of violation of privacy. 

Furthermore, digital evidence can go beyond just identifying criminal activities. It has the power to reveal personal information about individuals. During the investigation if these information are not handled properly this may lead to potential harm to one’s own privacy. In order to balance these concerns, it is essential to use digital evidence in an ethical manner. The methods used to collect digital evidence must respect the individual privacy rights. There are so many methods to protect the privacy of the person. Using effective methods like encryption, that act like a secret code to secure data and makes it difficult for unauthorised individuals to access it. There are privacy enhancing technologies such as virtual private networks, block chain technology, and encrypted messaging apps that will inform individuals to control what personal information is collected about them. The implementation of these tools will safeguard the privacy rights and investigation can be carried in an ethical border.

Search Authority and Search & Seizure

The court will admit the digital evidence if the methods used to obtain digital evidence are in line with legal procedures. The challenge arises when digital evidence is obtained without proper authority. If the evidence is obtained without a valid search warrant is also one of the challenges. In such cases, where the procedural requirements stated in the Code of Criminal Procedure are not met, the defence has the right to challenge the admissibility of such evidence. If there is a failure to follow the correct protocols like maintaining a properly documented record of evidence handling, it can lead to challenges regarding the reliability of the evidence. 

For instance, if law enforcement seizes a suspect’s mobile device without following legal procedures, the defence can take the argument that such action violates the rights of such a person. 

For instance, law enforcement searches a suspect’s computer, without following specific guidelines in the CrPC or not getting a valid search warrant. It raises a big question about the legality of the search. The defence can take the point that any digital evidence obtained by the unauthorised search, will not be allowed as evidence before the court. The court will closely determine the legitimacy of the search process in order to maintain a fair investigation. 

Ethical issues

An ethical issue is like a problem where people have to decide what’s right or wrong based on what they believe is good or fair. It’s a situation where people may have different perspectives on what actions should be taken because ethical issues involve values and morals. The digital evidence must be in accordance with the ethical concerns. The evidence collected is affecting the privacy and the rights of the person, it may lead to ethical issues. In ethical issues, primary consideration is the respect for individuals privacy rights. This must be maintained through the collection and utilisation of digital evidence. Digital evidence can cause unfair treatment if it is not handled fairly. If only some information is looked at, or if people’s ideas or unfair attitudes affect how the evidence is understood. It can lead to treating individuals in legal cases unfairly. The important ethical rule here is that digital evidence should be looked at in a fair way to make sure everyone is treated equally.

For instance, in some workplaces, employers may use digital surveillance tools like computer monitoring software or CCTV cameras to monitor employees’ activities. While the intention is to ensure productivity and security, ethical concerns arise when this surveillance extends beyond professional activities to invade employees’s privacy. Likewise, if an employer instals monitoring software on company computers without informing employees and tracks their personal online activities. Such as private emails, and social media use during breaks, it can be seen as an ethical issue. This collection of digital evidence may raise concern about the right to privacy in the workplace. 

Forensic challenges

Digital evidence often undergoes forensic examination in order to determine its authenticity. However, challenges can arise due to the rapidly growing technology. Outdated forensic tools present a challenge during the examination, potentially impacting the court’s confidence in the accuracy of digital evidence. Digital forensics experts must stay updated to address these challenges and ensure that forensic procedures align with legal standards for the admissibility of evidence. The digital forensic challenges fall into three main categories that includes: 

• Technical challenges – means issues like anti-forensic techniques, cloud operations, skill gaps and steganography.
• Legal challenges – involve presenting digital evidence, lack of proper guidelines, and inadequate electronic evidence collection and acquisition.
• Resource challenges – include the power required for collecting digital evidence and analysing a running computer. 

In order to maintain the integrity and admissibility of digital evidence in legal proceedings, there is a need to overcome these challenges.

Cross border issues

In the interconnected world, the movement of digital evidence between countries is continuously increasing. It will lead to a lot of issues related to legal jurisdiction, international agreements, and recognition of foreign digital evidence in legal proceedings. When it is used as evidence in Indian courts, things can get more complicated. It will raise questions about who has authority and how such evidence can be accepted.

For instance, if evidence comes from a server outside India, it raises questions about whether Indian courts have the authority over that data. These situations can get tricky because different countries have different rules about how evidence can be shared and used. The legal issues are not always straightforward, as they expand on the unique details of each case. 

Technological Advancement 

The evolving technology has posed many challenges for defining and controlling digital technologies like artificial intelligence, blockchain, and other internet things. Because of this progress, courts have to get used to dealing with proof or information that comes from these very advanced technologies. It’s like they need to learn and understand these new technologies to make fair decisions when such evidence is involved in legal cases. For instance, the court faces issues while getting to accept evidence as created by an artificial intelligence system. Because difficulty may arise because those artificial intelligence generated evidences are more often seen as black boxes. That means it implies lack of transparency and accuracy in how the system processes information and arrives at its conclusions. This complicates determining whether such evidence is preceded by such systems is reliable or not. 

Suggestions to combat these challenges

In order to combat these challenges, the following suggestions can be followed:

• Providing training and education for legal professionals and law enforcement officials is very important. The training and education with regard to the digital methods and its applications will enhance the proper usage of different digital methods, it will help to collect more accurate information about the cases involving such evidence. It will enhance the credibility and admissibility of such evidence before the court. 
• There is a need for clarity regarding the rules of digital evidence in its collections, storage, and presentation. This includes making guidelines for using forensic tools, setting procedures for handling digital evidence correctly, and having protocols in place.
• It is important for different groups like the police, lawyers, and tech experts to work together. They can share the many ways to do things, create new technologies and agree on common rules. It will help to deal with the challenges of handling digital evidence because when people from different groups work together they often have the opportunity to learn about each other’s work, details of evidence, and the rules for collecting and presenting it in court. 
• Using strong and unique passwords for all accounts is essential to reduce the risk of unauthorised access. 
• Implementation of two factor authentication will add an extra layer of security. It provides users with a second form of verification such as a code sent to their mobile device. Two factor authentication is a security process that requires users to provide two different authentication factors to verify their identity.
• Keeping all software, operating systems and applications up-to-date will help to mitigate cybercrimes. When a software is updated regularly, it will protect the system from unauthorised usage or illegal hacking. Regular updates ensure that the system has the latest security measures in place.
• Encryption tools will help to protect sensitive data. It can be used both in transactions and when such data is stored. This adds a layer of security from cyber hacks.
• Activating a backup system can save a lot of information. It will help in the event of a cyber attack and it allows for the recovery of necessary information.
• Applying firewalls and intrusion detection systems will help to monitor and control network traffic. This will help to mitigate unauthorised access.
• Digital evidence is sensitive and easily changed so it is important to collect volatile evidence. This evidence refers to digital data that is temporary and can be easily altered or lost. This type of evidence is usually stored in collective memory such as RAM and can be quickly affected by actions like powering off a device. Accordingly, collecting the most sensitive data first and least sensitive at last. It is very important to collect the correct order of volatility of evidence.

Different global positions with regard to the admissibility of digital evidence 

United States (U.S)

In the U.S. admissibility of electronic evidence in the U.S. federal courts is determined by the Federal Rules of Evidence (FRE), 1975. For electronic evidence to be accepted, such evidence must be relevant and authentic. Such evidence must demonstrate that it fits a hearsay exception. The major thing is the authentication of digital evidence. The evidence provided must be proven as genuine. This is done by presenting a witness with personal knowledge. But if that’s not possible, alternatives include expert comparisons, public records, reliable systems, official publications, certified business records, or certified data copied from electronic devices would also suffice. After the authentication of records, such evidence must come from Federal Rules of Evidence Rule 401 and Rule 402. Section 401 states that evidence is considered relevant if it has the potential to influence the probability of a particular fact and if that fact is important in deciding the outcome of the legal matter at hand. Rule 402 states that relevant evidence is admissible unless there are specific reasons for exclusion. The reasons include provisions in the United States Constitution, federal statutes, the rules specific in the document or rules as established by the Supreme Court. 

Another legal requirement is the original writing rule which is stated under Federal Rules of Evidence Rule 1002. This rule applies to various forms like writing, recordings, and photos encompassing letters, numbers or stored images. In order to admit this evidence, it must be an original with the same effect as the person who made it. In the case of photography, there is a negative requirement. The ‘negative’ is considered a primary source of the image and is used to create prints and reproduction that can be presented as evidence in the legal proceedings. However, duplicates produced by various processes are also admissible unless there exists authenticity issues. Witnesses with personal knowledge can verify duplicates. In such situations, originality is not needed. There exists ambiguity regarding the truth of duplicates. Original records are needed. The process ensures the importance of authenticity with regards to electronic evidence under the Original Writing Rule. 

The key challenge in using digital evidence in US courts is understanding the hearsay rules. The Federal Rules of Evidence Rule 801 and Rule 802 state these aspects. The court carefully needs to determine whether the presented evidence is a statement made by the person, or whether it’s offered to prove something is true. If the evidence falls into these categories it might be considered as hearsay. However, there are exceptions like statements made by witnesses before or statements made by opposing parties that may allow the evidence to be admitted. It is very important for determining the admissibility of digital evidence in court.

Australia

In Australia, the admissibility of electronic evidence has been governed as per Section 146 and Section 147 of the Uniform Evidence Act, 1955. These sections are meant to make it easier to admit computer generated evidence. In Section 146 there’s the basic idea that if a document or thing is created by a process or device that usually gives a specific result when used correctly, then it is assumed that the produced material actually has that result. Section 147 is of a similar kind but it applies to documents made in the regular course of business. So, if a document is made as part of normal business activities there’s a presumption that it is reliable. These rules are stated in order to allow the electronic evidence in court. Even though rules were meant to make it easier to use computer-generated evidence in court, there are concerns among some individuals that these rules might not be sufficient. These concerns came up during a discussion about DP 69. DP 69 is a notable proposal and this suggestion is influenced by the evidence laws in South Australia. It introduced a new idea that is called the ‘redundancy test’. This test would require showing that there are extra checks in the computer system to make sure the information it produces is accurate. People who liked the redundancy test idea believed that it could make computer generated evidence more reliable. They thought that by having extra checks and safeguards in place within the computer system, the evidence would be more accurate. 

Even though the rules wanted to make it easier to use computer generated evidence in court, the DP 69 was opposed particularly by Officers of the Director of Public Prosecutions. On the other hand, the Commonwealth Director of Public Prosecutions (CDPP) disagreed and said that the presumption rules are good because presumption makes it easier to admit multiple documents and business records that originate from information stored on a computer. Some lawyers argued that these rules make it easy to bring in documents and record from computer data. Many concerns were raised about the practicality and potential drawbacks of implementing the more strict test. It also increases cost, creates disadvantages to small litigants and also impacts adversely on various computer generated evidence. When matters reached before commission they looked at all the feedback and found that there wasn’t solid proof showing any issues with the current rules. They noticed that people in the legal community had different opinions. In the end, the commission decided that there wasn’t strong enough reason to make significant changes. They preferred making small adjustments rather than changing the complet law. The rules for using electronic evidence in Australia are still the same for now. However, ongoing discussions show how important it is to find a good balance between making sure the evidence is accurate and making it accessible for legal cases. 

Canada

In Canada, the use of electronic documents in court is governed by Sections 31.1 to Section 31.8 of the Canada Evidence Act (CEA) 1985. These rules highlight the importance of electronic records in legal proceedings. The court needs to follow these rules when dealing with evidence from computers. When deciding the matter if electronic documents can be used as evidence, the court must check if they are genuine and reliable. Section 31.1 to Section 31.8 aims to create a flexible approach to admitting electronic records. It recognises how technology keeps changing. Judges need to carefully assess electronic evidence, considering its value, because electronic records can be easily changed. These rules mainly impact how electronic records are proven to be genuine and best evidence, but they don’t change other rules for admitting evidence. These rules acknowledge that technology has made the difference between originals and copies less important. Section 31 is seen as a way to authenticate and admit electronic records not as an exception to hearsay. When electronic documents are used as evidence, especially those with human-inputed data the court must think about hearsay rules. However, records created by automated processes are not considered hearsay because there’s no person behind them who can be questioned. The admission of electronic documents depends on their format. It may be printout, scanned copy or native digital format. However, they always need to be proven as genuine and follow the evidence rule. t.

Singapore

In Singapore, admissibility of digital evidence is governed by the Evidence Act, 1893. Accordingly, Section 116A of this Act provides some assumptions that a party can rely on when presenting electronic records in court. The assumptions help to make things smoother in legal proceedings. As per Section 116A(2), one important assumption is that the court will assume electronic records are authentic if certain conditions are met; it includes electronic records must have been generated or stored in the usual course of business, the record must have been created by a person who was not a party to the legal proceedings, and the person generating, recording, storing the electronic records must not have done so under the control of the party seeking to introduce the electronic records. However, it is difficult to provide electronic records without these assumptions. In order to rely on the assumption there is a specific condition that needs to be followed. The conditions are to use a certified imaging system. This system, known as an approved procedure the Act, must be certified by an independent body chosen by the Ministry of Law, referred to as a Certifying Authority. This certificate ensures that the system accurately converts physical documents into electronic images. This certificate is important for lying on the presumption stated in Section 116A(6) of the Act. It added that electronic records are trustworthy and can be accepted in court without too much difficulty. On the other hand, in Singapore electronic transactions are governed as per the Electronic Transaction Act of 2010 which gives the legal framework for electronic transitions, which includes e-commerce, electronic records, electronic contracts and electronic signatures. This framework provides consistency and clarity to agreements made digitally. The Act further specifies the legal recognition, and application of digital signatures and electronic documents in various commercial governmental settings. 

European Union

In the European Union, electronic Identification Authentication and trust Services (eIDAS) is a regulation introduced in July 2015 through EU Regulation 910/2014. It represents a significant role in electronic transactions across the European Union. eIDAS Regulation provides the legal framework for the various electronic transactions. It covers both commercial and governmental context. It has set standards for electronic signatures, digital certificates, electronic seals, and time stamps, and other authentication mechanisms. The regulation ensures that these digital counterparts hold the same legal rights as traditional paper based transactions. The regulation plays an important role by giving recognition to digital evidence.

Admissibility of digital evidence in International Criminal Courts

The International Criminal Court (ICC) is a permanent court established by the Rome Statute in 1988. It deals with serious crimes like genocide, war crimes and crimes against humanity. The court officially started its work on July 1, 2002 after 60 countries agreed to follow its rules. The ICC has its headquarters at the Hague, Netherlands. The admission of digital evidence in ICC is decided by the combination of common law and civil law tradition. The Rome statute sets up the ICC which deals with serious international crimes. It is designed to be flexible and more like the civil law system. In order to handle digital evidence, the ICC has established an “e-Court Protocol” to guarantee authenticity, accuracy, and preservation. This protocol makes it mandatory to include metadata such as the chain of custody, source identity, and author information. The main aim of this protocol is to standardise the format of digital evidence. However, it’s important to note that the protocol doesn’t specifically tackle issues related to the probative values of the digital evidence. Probative values concerns how relevant and valuable evidence is in proving or disproving facts in a case. The ICC employs a flexible approach to the admission of evidence, allowing judges with a discretion in adopting relevant probative value and potential prejudice. The three part test of the admissibility of evidence involves determining the relevance, probative value and balancing probative value against prejudicial effect. 

• Relevance: Evidence is considered relevant if it makes the existence of fact at issue more or less probable. This is determined under the Rome Statute and rules of procedure and evidence.
• Probative Value: The probative value means how helpful evidence is in proving something important during a trial. The court looks at the characteristics of the evidence to decide this. But the court has to make sure it does not unfairly harm the accused parties while using this evidence.
• Balancing probative value against prejudice effect: It means the court needs to make sure that the evidence presented is important and helpful for the case. However, the court also has to check that using this evidence doesn’t cause injustice and they try to find the right balance.

The regulations of the court, particularly Regulation 26, require the establishment of a reliable electronic system to support the court’s daily operations. The Unified technical Protocol also known as e-Court Protocol serves a major role in determining the authenticity of digital evidence. 

Approaches towards Hearsay evidence 

In the ICC, there isn’t a strict rule about hearsay evidence. Hearsay evidence is literary evidence when someone talks about what others say. Usually, the ICC prefers to have witnesses to testify in court. But sometimes, they might allow digital evidence, like emails or information from unknown people even if it’s hearsay. It’s a bit of a flexible approach depending on the different situations. In the case of Prosecutor v Tolimir, (2012)  the ICC has accepted digital evidence even though it was considered hearsay. The meaning of the information was not directly witnessed or experienced by the person presenting it. The court accepted because other factors made it seem believable. The experience and expertise of the investigators and additional supporting proof help to establish the credibility of the digital evidence. The ICC generally prefers live testimony where witnesses speak in person during a trial. 

However, in certain situations, like in this case the ICC showed a flexible approach. However, other International Criminal Tribunals, known as ad hoc tribunals, have stricter rules regarding hearsay evidence. These tribunals place strong phases in ensuring the reliability of the information allowing it to be used in court. In the future, the ICC will focus on improving organisational capabilities and centralising processes for handling digital evidence. The Office of Public Counsel For Defence (OPCD) plays an important role in supporting defence teams. Caution is recommended in using digital evidence to avoid impacting trial duration. The Registry plays a very important role in processing evidence and ensuring secure IT systems. The ICC is encouraged to prepare for digital evidence challenges on the other hand it balances the efficiency and rights of the accused.

Conclusion

Digital evidence is very important in today’s investigation. Due to the rapid growth in technology, the scope of digital evidence is increasing. The Indian judiciary has given legal recognition to digital evidence by adopting digital evidence in many cases. Digital evidence or electronic evidence is used in various cases. In cases like cyber crime or fraud digital evidence is more reliable than traditional evidence. After knowing the importance of digital evidence Parliament made necessary enactment with regard to digital evidence admissibility in Bharatiya Sakshya Bill 2023. The Bill considered digital evidence as primary evidence. On the other hand, digital evidence has its own set of challenges. It is important to keep this evidence safe and unchanged by including strong passwords and some digital security measures. Digital evidence faces some challenges like software privacy, cyber hacking, cyber fraud, and cyber theft. To address these challenges legal systems need to continually update legislation. The Government had to provide clear guidelines for securing and creating awareness regarding this evidence. Digital evidence is getting legal recognition in different countries. The ICC also provided legal recognition to digital evidence in admitting such evidence in many cases. When use of technology increases, the information stored on digital devices also increases. This may lead to the misuse of technology often tends to crimes. Everyone involved in the legal system, such as lawyers, and judges, need to understand how to handle and use this digital evidence properly. Working together is needed to make sure that this kind of evidence is used correctly, by meeting the ethics of law and justice is served properly.

Frequently Asked Questions (FAQs)

How is digital evidence collected?

Digital evidence is collected using specialised tools and techniques. Forensic experts use methods such as imaging hard drives, analysing network traffic and extracting data from various devices.

What type of cases use digital evidence?

In India, the use of digital evidence is not limited to particular cases. It can be used in a wide range of cases including cybercrime, fraud, intellectual property theft, child exploitation and even in traditional criminal investigations where electronic devices are involved.

Can deleted data be recovered as digital evidence?

In many cases, deleted data can be recovered through forensic tools such as autopsy, and recuva that can be reconstructed and analysed in storage media.

How is digital evidence presented in court?

Digital evidence is presented in court through the testimony of digital forensic experts with required certificates as mentioned under Section 64B(4) of the Act.

How is digital evidence stored for the long term?

Digital evidence is typically stored in secure digital formats. It may use hash values or metadata to verify the integrity of the stored evidence over time. 

References 

• https://prsindia.org/billtrack/the-bharatiya-sakshya-bill-2023
• https://lawtimesjournal.in/digital-forensics-in-india-an-overview/#google_vignette
• https://www.sciencedirect.com/science/article/abs/pii/S1742287612000187
• https://www.financialexpress.com/business/defence-cybercrime-and-digital-evidence-2632164/
• https://www.latestlaws.com/articles/importance-of-protecting-intellectual-property-rights-in-digital-age-180377/
• https://corporate.cyrilamarchandblogs.com/2021/01/supreme-court-on-the-admissibility-of-electronic-evidence-under-section-65b-of-the-evidence-act/
• https://corporate.cyrilamarchandblogs.com/2021/01/supreme-court-on-the-admissibility-of-electronic-evidence-under-section-65b-of-the-evidence-act/
• https://www.scconline.com/blog/post/2021/03/13/electronic-evidence/
• https://medium.com/@murarijhalegal/digital-evidence-in-indian-law-investigating-challenges-and-legal-ethical-considerations-6ef913052254
• https://legaldesire.com/challenges-faced-by-digital-forensics/
• https://www.jacksonkelly.com/anticipation-litigation-advisor-blog/admissibility-of-electronic-evidence
• https://www.alrc.gov.au/publication/uniform-evidence-law-alrc-report-102/6-documentary-evidence/reliability-and-accuracy-of-computer-produced-evidence/
• http://www.criminalnotebook.ca/index.php/Electronic_Documents_and_Records#:~:text=The%20sections%20have%20the%20effect%20of%20deeming%20electronically,whether%20the%20record%20is%20authentic%20and%20reliable.%20
• https://www.pwc.com/sg/en/audit/assets/evidence-act-secure-electronic-records.pdf
• https://www.sectigo.com/resource-library/what-is-eidas-regulation
• https://humanrights.berkeley.edu/sites/default/files/publications/an-overview-of-the-use-of-digital-evidence-in-international-criminal-courts-salzburg-working-paper.pdf
• https://www.ibanet.org/document?id=Evidence-matters-in-icc-trials