The admissibility and reliability of electronic evidence in

Indian courts

Introduction
The current era has brought about a technological transformation that has enthralled not just
India but the whole world. Computers have become ubiquitous, accessible to everyone with
just a touch, moving beyond traditional organizations and institutions. Information
Technology (IT) has streamlined nearly every human endeavour. As computer applications
gained popularity, technology advanced rapidly. The growth of IT led to the creation of
cyberspace, where the internet offers equal access to information, data storage, and analysis
through advanced technology. The increasing digitization necessitates legal reforms for IT &
the acceptance of electronic record in courts.
The widespread use of computers and the broader influence of IT on society, along with the
capacity to digitally store and collect information, has necessitated the revision of Indian laws
to incorporate regulations for digital evidence.
Following these legal changes, courts have established precedents regarding the use of digital
proof. Courts have developed a nuanced understanding of the digital nature of evidence,
considering its acceptance and the understanding of legal statutes on how such evidence
should be presented in court. Digital evidence is now a key component of court cases. Before
accepting digital evidence, courts must assess its relevance, truthfulness, and authenticity.
Evolution of Legal Framework for Electronic Evidence
The “Information Technology Act, 2000”, confirmed the legal legitimacy of diverse types of
digital evidence. This legislation broadened the scope of 'documentary evidence' to include
materials such as electronic records that are submitted for judicial review. Consequently,
“Section 3” of the “Indian Evidence Act” was altered to confer legal status to electronic
documents and records as evidence.
The “Information Technology Act” is aligned with the “United Nations Commission on
International Trade Law (UNCITRAL) model Law on Electronic Commerce".
Amendments to key Indian statutes, including the “Indian Evidence Act 1872”, the “Indian
Penal Code 1860”, and the “Banker's Book Evidence Act 1891”, have created a
comprehensive legal framework for electronic transactions.
The term “electronic records” is defined in accordance with the “IT Act” as "data, record or
data generated, image or sound stored, received or sent in an electronic form or microfilm or
computer-generated microfiche." Furthermore, the meaning of “admission” has been
broadened to incorporate “statements made in oral, documentary, or electronic form that
suggest any fact at issue or relevance”. “Section 22A” has been included to the “Evidence
Act” to address “the relevancy of oral evidence regarding the contents of electronic records”.
This clause specifies that verbal acknowledgments regarding the content of electronic records
are irrelevant unless there is doubt about the genuineness of the presented electronic records
Defining and Categorizing “Electronic Evidence” in Legal Contexts
Evidence that falls under the categories of "electronic evidence," "digital evidence," or
"computer evidence" encompasses information processed, stored, or transmitted via digital or
electronic means. The expression "digital" is often associated with “computing and
electronics, where real-world information is converted into binary numerical form, such as in
digital audio or photography”. Interpretations of electronic evidence encompass "information
of probative value stored or transmitted in binary form" and "information stored or
transmitted in binary form that may be relied on in court." Nevertheless, although "digital"
might encompass a wide range of things, "binary" is too limited as it solely refers to a
singular type of data. Electronic evidence encompasses all kinds of data, whether it originates
from analog devices or is in digital form, that undergoes manipulation, storage, or
communication by artificial devices, computers, or systems, and is transmitted across
communication networks. This definition has three main components: It encompasses all
forms of evidence created, manipulated, or stored in devices broadly considered as
computers, excluding the human brain. It includes various devices for data storage or
transmission, such as analog devices that produce outputs, telephone systems, wireless
networks, the Internet, and embedded computer systems like those in mobile phones.
Admissibility and Conditions for Electronic Evidence under “Section 65B of the Indian
Evidence Act”
“Section 65B” establishes that information contained in an electronic record is regarded as a
document and can be accepted as evidence without requiring proof of the original's
production, provided that the conditions specified in “Section 65B” are fulfilled.
As per “Section 65B”, when information from an electronic record created by a computer is
transferred to optical or magnetic media, that duplicated electronic record is also recognized
as a document, contingent upon fulfilling the conditions outlined in “Section 65B”. This type
of document can be accepted as evidence in legal proceedings without the need for additional
proof or presenting the original, even for its contents or stated facts that would typically
demand direct evidence.
“The stipulations outlined in "Section 65B" are as follows:
1. The information must have been created during the period when the computer was
routinely used to handle data for regular activities overseen by the person in charge of
the computer.
2. The data in the electronic record or from which it originates must have been
consistently inputted into the computer as part of its standard operations.
3. The computer must have been functioning correctly throughout the relevant period,
and any temporary malfunctions should not have compromised the accuracy or
completeness of the record.
4. The data in the record must be either a direct reproduction or derived from the data
that was routinely inputted into the computer during its usual activities.”
A certificate under "Section 65B," which identifies an electronic record, elucidates its
production process, specifies the device used, and verifies adherence to "Section 65B"
conditions, when endorsed by a responsible authority linked to the device's management, acts
as proof of the facts mentioned in the certificate.
Emergence of Digital Evidence in Indian Judicial Trends
In the Case of “Bodala Murali Krishna Vs. Smt. Bodala Prathima”, the court emphasized the
significance of recent amendments to the “Evidence Act”, particularly “Sections 65-A and
65-B”, which focus on electronic records. Additional provisions such as “Sections 67-A and
73-A”address proof and verification of digital signatures, while “Sections 85-A, 85-B, 85-C,
88-A, and 90-A” deal with presumptions related to such records. These amendments reflect a
shift towards recognizing “electronic evidence and digital signatures” as valid forms of
evidence.
In “Dharambir v Central Bureau of Investigation”, the court clarified that the term "electronic
record" includes data stored on a hard disk, whether actively accessible or retrievable through
software programs. This distinction is crucial in understanding the levels of electronic
evidence and their admissibility in court.
The case of “State (NCT of Delhi) v Navjot Sandhu” involved an appeal concerning the
admissibility of mobile telephone call records without the requisite certificate under “Section
65B of the Evidence Act”. The Court determined that testimony from an informed witness
about the computer's operation and the procedure for obtaining call records printouts was
adequate evidence, underscoring the significance of comprehending the technical aspects of
electronic evidence.
In “Jagjit Singh v State of Haryana”, the Supreme Court considered digital evidence from
various television channels in a case related to legislative assembly proceedings. The court
affirmed the acceptance of digital evidence and stressed its increasing acknowledgment and
importance in legal contexts.
Furthermore, in “Twentieth Century Fox Film Corporation v. NRI Film Production
Associates (P) Ltd.”, specific conditions were established for the video recording of evidence
through audio-video links, ensuring procedural fairness and reliability in utilizing digital
technologies for legal purposes.
These cases collectively demonstrate a judicial trend towards acknowledging and valuing
digital evidence, necessitating a nuanced understanding of electronic records and adherence
to procedural standards for their admissibility in court proceedings

Legal Requirements for Admissibility of Electronic Records

The process of making electronic records admissible in court involves several steps,
particularly focusing on their relevancy, genuineness, veracity, and reliability. There are two
main routes to achieve admissibility:
1. Original Electronic Record (without certificate): If a party can present the original
electronic record directly to the court, which constitutes primary evidence, there is no
 requirement to comply with “Section 65-B of the Indian Evidence Act, 1872”. In such
cases, the record is admissible as evidence.
2. Computer Output (with certificate): In circumstances where the original electronic
record cannot be presented in court, it can be converted into a computer output
format, such as a Pendrive, printout, or CD, making it secondary evidence. However,
for this secondary evidence to be admissible, it must comply with “Section 65B of the
Indian Evidence Act, 1872”.
The process involves proving that the computer output qualifies as documentary evidence
under Section 65B(2) and providing a certificate confirming its authenticity as per Section
65B(4). Once these requirements are met, the party can rely on the computer output as
evidence and is not obligated to produce the original electronic record in court.
Legal Clarifications on the Admissibility and Certification of Electronic Evidence
The debate over when certificates under Section 65B should be issued, either during the
submission of evidence or when the person is summoned for trial, has been thoroughly
examined in legal rulings.
In the case of “Anwar P.V. (S) versus P.K. Basheer”, the Court ruled that the certificate must
be presented along with the electronic evidence, such as a printout. This decision highlighted
the distinction between the initial stages of establishing relevancy and admissibility, which
are addressed first, and the subsequent assessment of genuineness, veracity, and reliability,
which occurs later or in the second stage of legal proceedings.
Further clarification on this matter was provided in “Ram Singh and Ors. v. Col. Ram Singh”,
where the court stressed the significance of utilizing new methods and devices in the law of
evidence, provided that the accuracy of the recording can be verified. Electronic evidence
was deemed admissible, subject to safeguards ensuring its authenticity.
In “Shafhi Mohammad vs. The State of Himachal Pradesh”, the court addressed the necessity
of videography in crime scene investigations, The court clarified that the procedural
requirement specified in "Section 65B" of the Evidence Act applies solely when the
electronic evidence is introduced by the party in possession of the device, not by the opposing
party. This decision aimed to prevent the denial of justice due to procedural technicalities.
Similarly, in “Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors”, The court
reiterated that the certificate mandated by "Section 65B" is essential for admitting electronic
records. Oral evidence cannot substitute for this certificate, as it is a statutory requirement.
The majority judgment in this case clarified that electronic record evidence, being governed
by special provisions, requires compliance with Section 65B for secondary evidence's
admissibility. The court overruled previous statements on the admissibility of secondary
electronic evidence and established that secondary evidence of electronic records must be
accompanied by a “Section 65B” certificate.
In conclusion, the Supreme Court has resolved the controversy by affirming the admissibility
of original evidence under “Section 62” and mandating “Section 65B” certificates for
secondary evidence. It clarified the procedural aspects regarding the timing and necessity of
certificates in criminal trials, allowing for discretion in certain situations and directing parties
to produce required certificates under appropriate legal provisions.

The Transformative Benefits of Embracing Electronic Evidence in Legal Proceedings

In the contemporary legal landscape, the acceptance and integration of electronic evidence
play a crucial role in ensuring a fair, efficient, and accessible justice system. Embracing
electronic evidence brings about several significant benefits that contribute to the overall
effectiveness of legal proceedings.
One of the primary advantages of electronic evidence is its efficiency in terms of
documentation, storage, and accessibility. Digital records can be easily organized, retrieved,
and shared, reducing the time and resources traditionally spent on handling physical
documents. This efficiency translates into faster case resolution, reduced administrative
burden, and improved overall productivity within the legal system.
Moreover, electronic evidence enhances the accuracy and reliability of information presented
in court. Digital records often come with metadata, timestamps, and audit trails that provide a
detailed history of their creation, modification, and transmission. This transparency and
traceability increase the credibility of evidence and help establish a clear chain of custody,
bolstering the confidence of judges, juries, and legal practitioners in the authenticity of the
presented information.
Another significant benefit of electronic evidence is its ability to facilitate remote access and
participation in legal proceedings. With digital platforms and communication tools,
individuals and legal professionals can engage in hearings, depositions, and consultations
from any location, overcoming geographical barriers and promoting inclusivity in the legal
process. This accessibility is particularly beneficial for marginalized communities,
individuals with disabilities, and those residing in remote areas with limited access to legal
resources.
Furthermore, the use of electronic evidence promotes environmental sustainability by
reducing paper consumption, physical storage requirements, and carbon emissions associated
with traditional legal documentation. Digital records contribute to a paperless and eco-
friendly approach, aligning with global efforts towards sustainability and conservation.
Additionally, electronic evidence fosters innovation and modernization within the legal
sector. It encourages the adoption of advanced technologies such as artificial intelligence,
data analytics, and blockchain, which can streamline legal research, case management, and
decision-making processes. These technological advancements not only improve the
efficiency of legal operations but also enhance the quality of legal services provided to
clients.
In summary, the acceptance of electronic evidence brings about transformative benefits that
enhance the speed, accuracy, accessibility, sustainability, and innovation within the legal
system. By embracing digitalization and leveraging technological advancements, legal
professionals can uphold the principles of justice, transparency, and fairness while adapting to
the evolving needs of a digital society.
Challenges to the Authenticity and Admissibility of Electronic Evidence
1. Allegations of Tampering: Parties involved in litigation may assert that electronic
evidence has been manipulated or modified, thereby challenging its authenticity. The
susceptibility of electronic data to manipulation poses a significant issue for courts in
verifying the reliability of such evidence.
2. Reliability of Software: The reliability of the software programs that generate
electronic evidence can be contested. Both courts and parties may question the
trustworthiness of the programs used to produce data, raising concerns about the
legitimacy of the evidence presented.
3. Verification of Identity: Establishing that the individual who utilized a password,
PIN, or accepted terms is indeed the person who performed the action is challenging.
This issue provides a substantial basis for disputing the admissibility and authenticity.
4. Author Identification: The identity of the person responsible for creating electronic
documents, such as emails or SMS messages, can be questioned. If there is no
definitive proof connecting the author with the document, the authenticity of the
evidence may be called into question.
5. Challenges from Social Media Evidence: Evidence derived from social media
platforms presents unique challenges due to the widespread use of fake accounts and
shared access. Authenticating the original author of posts or messages on these
platforms is problematic, affecting the reliability of such evidence.
6. Shared Device Access: When multiple individuals have access to the same device, it
becomes difficult to establish who sent or received specific messages or content. This
complicates the process of admitting electronic evidence and verifying its
authenticity.
7. Reliability of Social Networking Evidence: Evidence sourced from social media
sites , such as Facebook, Instagram, or Twitter, can be disputed due to the informal
nature of these platforms. The dependability and relevance of such evidence in legal
contexts are often questioned.
8. Data from Local Networks: Data originating from computers connected to a local
network can be challenging to trace to a specific machine or time of action. This
presents difficulties in authenticating and admitting such electronic evidence.
9. Variability of Internet Data: Information available on the internet may vary between
devices, especially when accessed from remote computers. This variability poses
challenges to the consistency and reliability of electronic evidence.
10. Constantly Updated Data: Websites and transactional databases that are frequently
updated present issues for the admissibility of electronic record. The dynamic nature
of online data complicates its use as reliable evidence in legal proceedings.
11. Susceptibility to Mechanical Damage and Viruses: Electronic evidence is
vulnerable to mechanical damage and viruses, which can rapidly destroy data if not
 adequately protected. These risks pose significant challenges to the integrity and
admissibility of electronic record.
The challenges mentioned emphasize the intricate nature of employing electronic evidence in
legal matters, underscoring the need for stringent steps to guarantee its genuineness and
dependability.
Comparative Analysis of Electronic Evidence Laws: Indian and UK
Justice Nariman and Justice V Ramasubramanian observed that “Section 65B” closely
resembled “Section 5 of the UK Civil Evidence Act, 1968”, with only minor modifications.
However, “Section 5 of the UK Civil Evidence Act” was repealed in 1995 due to
recommendations from the “Law Commission”. The Commission contended that due to
advancements in computer technology, the structure of Section 5 had become outdated, and
there was no more necessity for a separate framework governing computer-generated
documents.
India's inclusion of “Section 65B in the Evidence Act in 2000” essentially adopted a
provision that had already been discarded in the UK. This situation prompts a comparison
and raises concerns about the need for a similar reassessment in India. Such a review would
be necessary to tackle practical challenges that may arise while adhering to the requirements
of Section 65B.

Conclusion
The “Supreme Court of India” has made it obligatory with Section 65B for individuals
intending to present emails, websites, or any electronic records as evidence. This approach is
implemented to protect the credibility and evidential significance of electronic evidence,
given its susceptibility to tampering and alteration. Justice Kurian said that “Electronic
records are highly vulnerable to tampering, alteration, and other forms of manipulation.
Without adequate safeguards, trials based on such evidence can lead to miscarriages of
justice.”
A suggestion has been made to tackle these issues by amending the “Indian Evidence Act” to
prevent manipulation, especially concerning the presumption of authenticity of electronic
records. One suggestion is to require that records be created in the usual manner by someone
not involved in the legal proceedings and unfavourable to the proponent of the record. This
would reduce the risk of manipulation significantly, as a disinterested party would be unlikely
to certify a tampered record knowingly.
Additionally, the burden should be on the proponent to provide evidence about the
document's authorship, any post-creation alterations, the reliability of the generating
computer program, and the completeness of the records. However, “Section 65B” of the
“Evidence Act” does not adequately address these issues. For example, in forwarding an
email, the sender can edit the content without the recipient's knowledge, making third-party
certification unreliable for verifying document authenticity.
The digital realm faces serious challenges such as falsification and impersonation, raising
questions about proving the origin and transmission of electronic communication.
Establishing a specialized team of digital evidence experts to assist courts in investigating the
authenticity of electronic records could be a solution. Despite amendments to ease the burden
of record proponents, India still lacks a robust mechanism to ensure the accuracy of
electronic evidence, vulnerable to manipulation by unauthorized access.
While electronic evidence offers advantages, its admission is also complex, requiring courts
to assess authenticity, reliability, and integrity. Following the guidelines set in the “Anvar's
case” by the “Supreme Court”, a consistent approach is expected, with courts implementing
necessary safeguards for accepting and evaluating electronic evidence effectively.