The recent instances of leakage of Whatsapp chats obtained during the course of investigation and their admissibility as evidence in a criminal trial has brought the issue of electronic evidence to the forefront. These Whatsapp chats have been leaked in the public domain at the investigation stage itself, even before the commencement of the trial. Considering these recent developments, the legal framework for electronic evidence merits further scrutiny.
Under the Indian Evidence Act, 1872, Section 65B prescribes a distinct framework that governs the admissibility of electronic evidence. There have been multiple litigations over the scope and ambit of Section 65B, with divergent views taken by the Apex Court.
In a decision delivered on July 14, 2020, a three-judge bench of the Supreme Court, in Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal (‘Arjun v. Kailash’), has now clarified the interpretation of Section 65B. Confusion arose over the scope and ambit of Section 65B as inconsistent views had been taken in three earlier decisions of the Supreme Court – in Anvar P.V. v. P.K. Basheer[1](‘Anvar v. Basheer’), Shahfi Mohammad v. State of Himachal Pradesh[2] (‘Shahfi Mohammad’) and Tomaso Bruno v. State of Uttar Pradesh[3] (‘Tomaso Bruno’).
Before examining these decisions and the conflict that has now been resolved in Arjun v. Kailash, let us first refer to the legal framework for admissibility of electronic evidence under Section 65B.
Under Section 65A of the Evidence Act, the contents of electronic records have to be proved as evidence in accordance with the requirements of Section 65B. Both Sections 65A and 65B were inserted through the Indian Evidence (Amendment) Act, 2000, and form part of Chapter V of the Evidence Act, which deals with documentary evidence. In Anvar v. Basheer, it was clarified that as Section 65B begins with a non-obstante clause, if forms a complete code for the admissibility of electronic evidence.
Under Section 65B(1), any information contained in an electronic record, which has been stored, recorded or copied as a computer output, shall also be deemed as a ‘document’ – and shall be admissible as evidence without further proof or production of the originals, if the conditions mentioned are satisfied. Section 65B(2) lays down the criteria that must be satisfied for the information to be categorized as a ‘computer output.’.
What gave rise to conflicting interpretations is the provision in Section 65B(4), which states that if the electronic evidence is to be used in any judicial proceeding, a certificate shall have to be produced which identifies the electronic record, and gives particulars of the device involved in the production of the electronic record . This certificate shall have to be signed by a person occupying a responsible official position in relation to the operation of the relevant device, or from a person who is in the management of the relevant activities involved. This signature shall be evidence of the authenticity of the certificate. Section 65B(4) also mentions that the contents of the certificate should be stated “to the best of the knowledge and belief of the person stating it.”
After divergent views were taken in the three earlier Supreme Court decisions referred above, confusion had arisen as to whether a certificate under Section 65B(4) would have to be obtained even when an original copy of the electronic record is produced as evidence. Another issue that arose was whether it was mandatory to comply with the provisions of Section 65B(4) or can the requirement to obtain a certificate be dispensed with.
At this juncture, it is also important to refer to Section 62 and Section 63 of the Evidence Act. Section 62 defines the term ‘primary evidence’ – which means the document itself that is produced before the Court. Under Section 63, secondary evidence includes copies made from the original, certified copies, oral accounts of the contents of a document etc.
In Arjun v. Kailash, the Court had to adjudicate on an election petition which challenged the election of Mr. Arjun Panditrao Khotkar from Jalna-101 Legislative Assembly Constituency, on the ground that the nomination papers were filed after the stipulated deadline. The Respondents wished to rely on video camera recordings to prove that the candidate had filed his nomination after the stipulated deadline. The Election Commission produced CDs which contained a copy of the video camera recordings, in accordance with the direction given by the High Court. However, the necessary certificates were not produced in accordance with Section 65B(4) by the Election Commission, despite multiple requests made by the Petitioner.
During the cross examination, an officer of the Election Commission testified that the video camera recordings were authentic. Based on this testimony, the High Court admitted the evidence of the video recordings even though the certificate in accordance with Section 65B (4) had not been produced. The High Court held that it was satisfied that there was “substantial compliance” with Section 65B, as a competent officer had testified that the video recordings were authentic.
In this scenario, the Supreme Court had to interpret Section 65B(4) for determining the following issues:
The lead opinion was delivered by Justice Nariman and a concurring opinion was delivered by Justice V Ramasubramanian.
Justice Nariman noted that Section 65B(1) differentiates between the ‘original’ electronic record, which is contained in the computer in which the information is first stored – and the secondary copies that are made from the primary electronic record. For instance, in the present case, the original electronic record would be the computer of the Election Commission in which the video footage is first stored. The CDs where the content of the video recording is copied shall constitute the secondary copies of the electronic record. It was held that a certificate under Section 65B(4) shall have to be obtained only when the secondary copies of the electronic record are produced before the Court.
Production of a certificate shall not be necessary when the original electronic record is produced. The original electronic record can be adduced directly as evidence if the owner of the computer/tablet/mobile phone steps into the witness box and establishes that the device where the information is first stored is owned/operated by him. If the “computer” where the electronic record was first stored happens to be part of a “computer network” or “computer system” (as defined under the Information Technology Act, 2000), and it is not possible to bring such a network/system physically to the Court, then secondary copies can be produced along with the certificate stipulated by Section 65B(4).
Justice Nariman also agreed with the view taken in Anvar v. Basheer – which held that Section 65B is a complete code in itself for the admissibility of electronic evidence and shall not be affected by other provisions of the Evidence Act. Anvar v. Basheer also held that – “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.” Justice Nariman clarified that this dictum should be read by omitting the words “under Section 62 of the Evidence Act.” This is because Section 65B is a complete code for electronic evidence and shall supersede other provisions such as Section 62.
Justice Nariman implies here that it is not necessary to refer to Section 62, as Section 65B(1) itself distinguishes between the original electronic record and the secondary copies of the electronic record.
The Court stated that the decision in Tomaso Bruno was per incuriam, as the Court in Tomaso Bruno concluded that Section 65B was not a complete code – without making any reference to the earlier decision in Anvar v. Basheer. Justice Nariman also stated that the decision in Shahfi Mohammad had misinterpreted the law while concluding that Section 65B is merely a procedural provision, and the requirement of obtaining a certificate can be dispensed with when the electronic device storing the records is inaccessible to the person who needs to obtain the certificate.
It was held that it is incorrect to conclude that difficulties may arise while obtaining the certificate, as there are provisions in the Evidence Act (Section 165), the Civil Procedure Code (Order XVI) and the Criminal Procedure Code (Section 91 and Section 349) – which empower the Court to order for the production of any document or thing during the course of the trial. It was accordingly stated that a person can in any case make an application to the Judge to order for the production of any ‘document’ that would constitute electronic evidence, if he is unable to obtain the certificate under Section 65B(4).
If the competent person/entity refuses to grant the certificate, the party who wishes to rely on the electronic record can apply to the Court for an order to produce the requisite certificates. Based on this premise, the Court concluded that the obligation placed by Section 65B(4) was mandatory, and not voluntary, and is a condition precedent before secondary copies of an electronic record can be admitted. It was held that the electronic evidence should be presented before the trial begins, and at any stage prior to the completion of the trial, the Court can direct the production of the certificate under Section 65B(4).
After clarifying the scope of Section 65B, the Court upheld the decision of the High Court – even though it had relied on electronic evidence that was not certified under Section 65B(4). This was because along with the electronic evidence, the High Court had also relied on other admissible evidence to conclude that the nomination papers were not filed within the stipulated deadline.
The Court’s conclusion was based on the specific fact situation where other evidence was also available – and does not in any way imply that the obligation under Section 65B(4) can be dispensed with. As Justice Nariman has clarified, obtaining a certificate under Section 65B(4) shall be a condition precedent in all situations where secondary copies of an electronic record are produced.
Justice Nariman as well as Justice V Ramasubramanian noted that apart from a few minor alterations, Section 65B was a reproduction of Section 5 of the UK Civil Evidence Act, 1968. Section 5 of the UK Civil Evidence Act was repealed in 1995. Hence, when Section 65B was added to the Evidence Act in 2000, India adopted a provision that had already been repealed in the UK.
Section 5 of the UK Civil Evidence Act was repealed following the recommendations of the Law Commission – which stated that the framework under Section 5 had become outdated following developments in computer technology, and that there was no need for having a different regime for computer-generated documents. As India has adopted a provision which was deemed to be outdated in the UK, there is a need for a similar review in India as well, to address various practical difficulties that may arise while complying with Section 65B.
Until a comprehensive review of the legal framework dealing with electronic evidence is undertaken, the decision of the Supreme Court in Arjun v. Kailash will ensure that the compliance burden under Section 65B(4) is partially reduced, with the Court holding that such certificate has to be produced only when secondary copies of an electronic record are relied upon by any party.
Along with the practical difficulties, the recent leakage of electronic evidence (in the form of Whatsapp chats) also highlights the need to devise safeguards to preserve and retain electronic records. In a recent order, the Punjab & Haryana High Court had referred to Arjun v. Kailash to conclude that Whatsapp chats shall have no evidentiary value until a certificate is produced under Section 65B(4).
While production of a certificate under Section 65B(4) may be a necessary safeguard to ensure authenticity, there is a need to formulate other safeguards as well – to ensure that privacy and confidentiality of the information contained in electronic records is protected. Justice Nariman, had, in his judgment, referred to the Report submitted by a five-judge Committee in November 2018, which had framed Draft Rules dealing with the preservation, retrieval and authentication of electronic records. While there is now clarity over the scope of Section 65B, multiple steps are still needed to ensure the safety, retention and confidentiality of information obtained in the form of electronic evidence.
