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This article has been written by Vishal Singh.

Introduction 

“Evidence” is one of the most important points of discussion in the domain of the legal field. And in this contemporary world where we live, we are totally surrounded by social media and its platforms. We can find almost everything on the internet or on social media. Electronic records nowadays are playing an important part as evidence in determining a case. The two most important laws governing electronic records are the Indian Evidence Act, 1872 and the Information Technology Act, 2000. One of the most used and successful social media platforms is WhatsApp for conversations. One interesting question that arises here is that are these online conversations that we do in these social media platforms like WhatsApp play any part in deciding a case; are they legally binding? We will discuss these questions in great details in this article but briefly, we can say that “By changing time, the law is expanding its reach and now the conversations which we do on these social media platforms can be admitted in a court of law as an evidence either in primary form or secondary form depending on the circumstances”.  

The media is flooded with a question regarding the admissibility of WhatsApp chats as evidence in a court of law after the news of alleged WhatsApp chats between republic TV channel anchor Arnab Goswami and the former BARC CEO Partho Dasgupta got released. Let’s discuss some of the basic definitions regarding the evidentiality of electronic records like WhatsApp chats. 

Basic definitions 

Section 2(1)(t) of the Information Technology Act, 2000 tells us that, “an ‘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”.

According to Section 3 of Indian Evidence Act, 1872, “all documents including any electronic record produced before this court for inspection can be treated as evidence”.

Section 62, Indian Evidence Act tells us that, “Primary evidence means that the document itself produced for the inspection of the court”.

And, according to Section 63 of the Evidence Act, “secondary evidence briefly includes certified copies and oral accounts of the contents of the document”.

So, by interpreting these definitions thoroughly, we can conclude that WhatsApp chats can be treated in a court as evidence but the process and conditions of its admissibility changes with its nature; which is our next discussion point. 

Nature of WhatsApp chats as an evidence

By analyzing some of the cases where the hon’ble courts have taken WhatsApp chats into consideration as evidence we can easily conclude that the nature of WhatsApp chats as evidence is mostly secondary because normally only the print-outs of the WhatsApp chats are produced before the court of law. The basic rule of the Indian evidence act regarding admitting any ‘electronic record’ as evidence is that it should be produced in the primary form of evidence or the document must be proved by primary evidence. Too much emphasis is given to the primary nature of the evidence. 

But realizing these emerging needs in the sector of information technology, the legislature incorporated a special provision in the year 2000 in the form of Section 65A of the Evidence Act which states that “the contents of electronic records may be proved in accordance with the provisions of Section 65B” or basically propounded some of the conditions to admit secondary rules as evidence under Section 65B. 

There are basically four conditions described under section 65B(2) of the Indian evidence act to admit the secondary nature of electronic evidence as evidence in a court of law:

  1. The computer/device from which the concerned information was produced must be used regularly over that period of time and by the person having lawful control over that computer;
  2. The concerned information, during the said period, was of such kind that it is regular and ordinary in such activity;
  3. The computer must be functioning properly during the concerned period; and
  4. The information contained in the duplicate copy which is produced before the court must be the same as it is in the original electronic record. 

These are the conditions that one should fulfil if one is producing the certified copies of WhatsApp chats or producing any ‘electronic evidence’ in the secondary form in the hon’ble court as evidence. One more condition covered under Section 65B(4), on which the Hon’ble Supreme Court has dissenting views over a period of time, but the current stand of the supreme court taken by a 3-judge bench headed by Justice Rohinton Fali Nariman on section 65B(4) is that this condition of producing a certificate is mandatory in order to admit electronic records as evidence.  

According to Section 65B(4), “in order to admit the electronic record as an evidence, it must be accompanied with a certificate signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities stating that the electronic record fulfils the above-mentioned four conditions”.

Also, according to Section 22A of the Indian Evidence Act, “oral admissions as to the content of electronic records are not relevant unless the genuineness of the electronic record produced is in question”. So, without having produced the computer or any device from which the information is extracted your word on the content of the electronic record has no value in the eyes of law. 

Landmark judgements

In Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another, the Supreme Court has made reference to WhatsApp chats as evidence and said that “the WhatsApp messages which are virtual verbal communications are a matter of evidence with regard to their meaning and its content to be proved during the trial by evidence in chief and cross-examination”. 

In Anvar P.V. v. P.K. Baseer & Ors., “the 3-judge bench comprising R.M. Lodha, CJ and Kurian Joseph and R.F. Nariman, JJ of Supreme Court overruled the judgement delivered in State (NCT of Delhi) v. Navjot Sandhu to the extent of deciding the evidentiality of secondary evidence in a court of law and by applying the principle of generalia specialibus non derogant (special law will always preserve over the general law) has mandated the requirements mentioned in Section 65B of the Evidence Act and held that certificate is compulsory in order to admit electronic evidence” but later in 2018, Supreme Court overruled this judgement in Shafhi Mohammed v. State of Himachal Pradesh, where this hon’ble court relaxed the mandatory clause added in previous judgement and stated that any electronic record produced as evidence without following the condition mentioned in Section 65B(4) (regarding the certificate production) can be relied upon. Also held that Sections 65A and 65B are supplementary in nature which is added to assist the code on the subject and are procedural in nature. 

Again, in Arjun Panditrao Khotkar v. Kailash Kushanrao, the Supreme Court of India held that the condition mentioned under Section 65B(4) of the Evidence Act (which is regarding the certificate to be produced before the court) is essential for admissibility of electronic records. 

In other terms, the hon’ble court upheld the order stated in the P V Anvar case and overruled the Shafhi judgement. And also held that if the person who is bringing this concerned information is not in the possession of the computer or the original device then that person can seek help from the hon’ble court in getting a proper certificate which is defined under Section 64B(4) of the Evidence Act on record by the concerned person. 

In the same case, a 3-judge bench of the Supreme court stated that according to the language of Section 65B(1) of the evidence act there is a difference between ‘original document’ (which is basically the primary evidence) and the output of the computer containing the same information (that is the secondary evidence). The supreme court further clarifies that it is not necessary to produce a certificate before a court of law if the ‘original document’ is produced itself. And in all other cases, the electronic record can go through according to the content of Section 65B(1) together with a certificate defined under Section 65B(4) of the Indian Evidence Act.

There are many instances where the High Courts also have considered WhatsApp chats in the court of law as evidence like in Rakesh Kumar Singla v. Union of India, the Punjab and Haryana High Court rely upon WhatsApp chats while granting a bail application in an NDPS case and also held that without any certificate under S. 65B of evidence act WhatsApp chats cannot be treated as evidence. The High Court of Gujarat in Chirag Dipakbhai Sulekha v. State of Gujarat referred to WhatsApp chats in granting the bail. 

These are the stand of respective courts on the admissibility of WhatsApp chats as evidence but what about WhatsApp forwarded messages, did they have any legal binding in a court of law? This question was answered by Delhi High Court, which held that WhatsApp forwarded message cannot be treated as evidence, it is even not regarded as a ‘document’ under the evidence act, without having its original in National Lawyers Campaign for Judicial Transparency and Reforms v. Union of India.

Another question that has occurred several times in my mind that what if the computer/device itself was malfunctioning? This question was answered by Karnataka High Court, which held that if a ‘computer’ itself was admittedly malfunctioning, then the output or the information received from that computer cannot be treated as evidence in Sri. P. Padmanabh v. Syndicate Bank Limited.

Conclusion

We can observe in our daily life that we are surrounded by social media platforms everywhere. And from the above-discussion on point of law and on the cases which are coming before hon’ble Supreme Court of India and several High Courts we can see that printout of WhatsApp chats or social media conversations are shown in courts or used as evidence in a case and the hon’ble judges of the Courts has also taken these conversations into considering a case but because of producing mostly the printouts of WhatsApp chats it has taken these WhatsApp chats clearly out of the scope of Section 62 of the Evidence Act and now, they are treated as secondary evidence rather than primary evidence in a case. 

Mainly due to this reason, the Government of India has introduced a special provision in the year 2000 in the form of section 65A of the Evidence Act which laid out some conditions to incorporate secondary evidence as legal evidence in a case before any court of law. The IT Act is also introduced by the government in the year 2000 which shows a positive mindset of the legislature towards the principle that “due to the changing needs and circumstances of this world, the law governing it should also change”. 


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