The recently introduced Bharatiya Sakshya Bill, 2023, seeks to replace the long-standing Indian Evidence Act. This action has prompted discussions and debates in various circles, and one of the most significant changes is that the Bill allows digital records (such as email) to be presented in court as evidence.
Examining the Bill reveals that, for the most part, the status quo regarding electronic evidence has been reaffirmed. Some of the modifications codify the current position as established by case law to make it more explicit, whereas others require closer examination.
Reiteration of the existing position and enhancements:
Regarding the admissibility of electronic recordings, the situation has not changed significantly. In 2000, the existing Indian Evidence Act was revised to include provisions for electronic evidence. The majority of these provisions have been retained in the current bill. Even prior to the year 2000, electronic records could have been submitted as evidence using the device that created them (for example, a laptop containing a document). Post-2000, other computer outputs from such a device, which were previously considered secondary evidence, were made admissible by elevating them to the level of primary evidence. Thus, a printout is admissible without requiring the computer to be presented as evidence. In Arjun Panditrao v. Kailash Kushanrao, the Supreme Court of India also clarified this position.
The Bill formalises the principles established in the Arjun Panditrao case. The definition of ‘primary evidence’ in Clause 57 (corresponding to the extant Section 62) has been retained from the previous statute, but four new Explanations have been added. The Explanations specify what constitutes ‘principal evidence’ when dealing with electronic records. Clause 61 clarifies further:
“Nothing in the Adhiniyam shall apply to deny the admissibility of an electronic or digital record as evidence on the grounds that it is an electronic or digital record, and such records shall have the same legal effect, validity, and enforceability as paper records.”
Secondary evidence for electronic recordings – Possible problems
The changes made in this regard necessitate more scrutiny. The clause has been modified to include data generated or stored by communication devices. The inclusion of information created through intermediaries is a positive development. A format for the certificate required by this section has been specified in the bill’s Schedule. Likewise, this is a favourable development. In the authors’ experience, the majority of litigants are frequently unsure of what information should be included in the certificate, and a large number of certificates filed by the Delhi Police with their chargesheets are exceedingly deficient. A prescribed format would definitely prevent humiliation in court due to technical errors.
Surprisingly, however, the certificate provided in the Schedule itself does not satisfy the sub clause 2 requirements. This sub clause stipulates that the certificate must specify that the device was under the person’s lawful control, that the computer was functioning correctly, etc. In accordance with clause 4(c), these statements must be included in the certificate. However, they are absent from the format itself. Interesting to ponder is whether this is an oversight or an intrinsic inability to comprehend the scheme of the legislation on the part of the drafters.
Additionally, the clause adds complications. In addition to a certificate from the computer’s operator, it also requires a certificate from an expert. Inexplicably, instead of stating that the certificate must be issued by an Examiner of Electronic Evidence (which is an expert designated under Section 79A of the Information Technology Act), the clause simply states “expert (whichever is applicable)”. It is unclear why it was written in this manner.
Even if this were not the case, it is perplexing why an expert’s certification is required at the admissibility of evidence stage. According to the Schedule and the clause, the expert is only required to attest that the computer output was produced by the specified computer device. Therefore, a person wishing to provide electronic evidence would be required to contact an expert, send over the computer device, request that they generate the computer output, and receive a certificate.
This is obviously absurd and would result in unnecessary hardships for no apparent purpose. Why wouldn’t a person simply bring the computer to court as primary evidence if they are required to transport it to an expert in order to receive the output? This clause’s intention to facilitate the production of digital evidence is rendered impossible by the requirement of an expert’s certification.
Expert testimony may be required to determine whether certain electronic evidence (such as a video or audio file) has been tampered with. However, this topic is vastly distinct from the admissibility of the document itself, and the required certification relates to such matters.
A perplexing activity :
It is puzzling why these modifications were made to a clause that was otherwise adequate to encompass secondary evidence for electronic records. Certain provisions did require codification of certain clarifications. It does not appear, however, that there was a compelling need to require an expert’s certification for every computer output that was to be offered as evidence. In his concurring opinion in the Arjun Panditrao case, Justice V Ramasubramanian contrasted the provisions for electronic evidence in various jurisdictions and called for a reexamination of Section 65-B. It does not appear that these suggestions were considered during the formulation of the bill.
It is anticipated that sufficient debate will take place before a bill draught is finalised. An essential task for any such discussion would be to determine why such changes were made in the first place, if they contribute nothing of value and only complicate the admissibility of electronic records. At this time, the answer is uncertain.