From Paper to Pixel: The Admissibility of Electronic Evidence in Indian Criminal Justice System

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By Shatakshi Vyas

Digital evidence is any information that can be used to support or contradict claims in a court of law and is kept or sent electronically. A vast range of data, including emails, text messages, documents, audio and video recordings, photos, and metadata, can be included in it. In other words, it can include any material that is saved or transmitted digitally. Digital evidence is essential in a variety of scenarios, from fraud and cybercrime to family conflicts and intellectual property theft. The evidence rules have been modernised, made simpler, and streamlined by the Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaced the Indian Evidence Act (IEA) of 1872. The BSA still contains many of the IEA’s standards, even if they have been updated and enhanced.

The purpose of the change was to add Sections 65A and 65B to the act while maintaining the concerns about the reliability of electronic records and guaranteeing their flexibility in courtrooms. It is evident that digital and electronic records are included in the revised definition of “document.”

WHAT IS ELECTRONIC EVIDENCE?

According to the Bharatiya Sakshya Adhiniyam, electronic evidence are documented evidence. According to Section 2(1)(e), “evidence” includes papers, including electronic or digital recordings, that are produced for the Court’s review. In contrast to the IEA, which uses the interpretation clause under Section 3 to define “electronic evidence” as documentary evidence, the BSA uses a broader definition of the term that includes digital information and electronic devices.

Digital evidence has become increasingly important in both criminal and civil trials as the usage of digital platforms has increased dramatically. For instance, digital records like text messages or social media activities can be crucial to settling conflicts in divorce law, while digital evidence is frequently the primary piece of evidence connecting the defendant to a crime in cybercrime trials. Digital evidence is becoming a fundamental component of contemporary legal practice in India due to the extensive use of mobile and internet technology.

ADMISSION OF ELECTRONIC EVIDENCE IN INDIA

The Indian Evidence Act’s Section 61 states that any kind of document must be supported by either primary or secondary evidence. Primary evidence is defined as the original document in Section 62, and Section 65A requires that the contents of electronic documents be proven under Section 65B. Therefore, supplemental evidence must meet the requirements listed in Section 65. Because the electronic document is in binary code, only a computer can decipher it, regardless of whether it is primary or secondary.

This means that the difference between “primary” and “secondary” electronic documents is essentially meaningless because a court can only independently review such a document with a person who can testify in writing about its contents. The process for creating a certificate that permits the admission of an electronic document in court is described in Section 65B of the Indian Evidence Act. The emphasis is on making sure the evidence is properly certified. To guarantee that an electronic document appropriately reflects what it represents when viewed on a computer with the necessary software, it must always be certified. By completing the certification procedure outlined in Section 65B, the individual offering this certification fulfils the formal duty of an expert who supports the court, as defined by Section 65A.

In the landmark case of Shafi Mohammad v. the State of Himachal Pradesh, the Supreme Court shed important light on the necessity of rigorous procedural adherence and clarified the need for a certificate in cases involving the admission of digital evidence under Section 65B.

TYPES OF ELECTRONIC EVIDENCE

1. Electronic Documents: This group include text messages, emails, and other correspondence that is sent or kept digitally.

2. Data from Messaging and Social Media Platforms: In cases involving defamation, online harassment, and cyberbullying, evidence obtained from platforms like Facebook, Instagram, Twitter, and WhatsApp has become crucial.

3. Forensic Data: Retrieved data, logs, and deleted files from computers, smartphones, and storage devices are all part of digital forensics.

4. Metadata: The owner of an email, the creation date of a file, or the location of a snapshot are examples of metadata that contains information about other data.

5. Audio/Visual Evidence: Digital records, such as video recordings, audio files, and surveillance footage, are increasingly being used in both criminal and civil proceedings.

JUDICIAL INTERPRETATION OF SECTION 65B

One of the main subjects of the literature is Section 65B of the Indian Evidence Act, which lays out standards for the admissibility of electronic records. Legal analysts usually point to the Supreme Court’s landmark ruling in Anvar P.V. v. P.K. Basheer (2014), which made it clear that electronic evidence needs to be accompanied by a certificate under Section 65B(4) in order to be admitted.

This overturned the earlier ruling in State (NCT of Delhi) v. Navjot Sandhu (2005), which permitted electronic records to be admitted more broadly without rigorous adherence. The consequences of this more stringent criterion are examined in later research.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020),the Supreme Court took up the matter again and reaffirmed that the 65B certificate is required until the actual device is shown in court.

LEGAL CHALLENGE IN THE ADMISSIBILITY OF ELECTRONIC EVIDENCE

Making sure digital evidence is admissible in court is the biggest legal challenge. Compared to more conventional forms of evidence, such physical papers or witnesses, digital evidence has particular difficulties. It is challenging for courts to accept digital evidence without careful examination due to issues with authenticity, manipulation, preservation, and privacy. The Bharatiya Nyaya Sanhita 2023 and the Information Technology Act, 2000, in example, offer some guidance, but they too confront considerable obstacles in adequately addressing these issues. In order to guarantee that digital evidence is properly managed and recognised in Indian courts, this article attempts to examine these issues and offer solutions.

ROLE OF DIGITAL EVIDENCE IN INDIAN COURTS

In several well-known instances in India, digital evidence has proved crucial. In cybercrimes, fraud cases, and even terrorism-related cases, digital evidence can play a pivotal role in establishing guilt or innocence. Courts increasingly rely on digital records, such as emails, call logs, and chat histories, to establish a chain of events. However, due to the complex nature of digital evidence and its vulnerability to tampering, it requires rigorous procedures for authentication and handling.

The use of electronic evidence in criminal prosecutions has become both essential and revolutionary in a time when human behaviour is increasingly shaped by digital contacts.This research underscores the critical importance of a legal framework that can reliably accommodate digital evidence, ensuring that justice is served through methods that are both technologically informed and constitutionally sound.

According to the study, despite courts’ growing recognition of the validity and probative worth of electronic evidence, a number of procedural and structural flaws still prevent it from being used effectively. The lack of consistent methods for gathering, storing, and verifying digital material, the inconsistent court interpretation of Section 65B of the Indian Evidence Act, and the lack of technical understanding among legal players are some of the most urgent issues. If these loopholes are not filled, there is a chance that the protection of individual rights and the fairness of criminal trials will be compromised.

—Shatakshi Vyas is a final-year B.A.LL.B. student of the Indore Institute of Law