DEVELOPMENT OF LAW ON ELECTRONIC EVIDENCE

Written by: Sakshi Kumari, B.A.LL.B, Sarla Birla University, Ranchi 

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ABSTRACT;

 In the era of electronic communication, even documents are contained in digital form and can be transmitted through electronic optical fiber or wireless systems. The electronic communication system which we are following these days may seem simple and convenient but at the other side, it is the most complex system. But at the other side it can be also the most authentic, credible, and trustworthy human-made system. To use Technology in collection of evidence is the main objective of Bhartiya Sakshya Adhiniyam, 2023,  

When the court is significantly shifting from traditional evidence to electronic evidence, the legislation is also thought to change the traditional provision of evidence. The commencement of The Information Technology Act, 2000, made a significant change into The Evidence Act, 1872, it was the time when electronic evidence gains it admissibility position in legal system. After that when New Criminal Laws were commenced, it slightly changed the position of electronic evidence and electronic records.

             INTRODUCTION;

 In India, the use of electronic evidence in courts has grown a lot with the rise of technology. Earlier, Indian laws mainly dealt with traditional forms of evidence like paper documents and oral testimony. But as people began using mobile phones, computers, and the internet, it became necessary for the legal system to recognize and accept digital or electronic evidence. The first big step came with the Information Technology Act, 2000, which gave legal recognition to electronic records and digital signatures. To support this, important changes were made to the Indian Evidence Act, 1872, the Indian Penal Code, 1860, and the Bankers’ Books Evidence Act, 1891. These amendments allowed electronic records, emails, call logs, SMS, CCTV footage, and other digital data to be used as valid evidence in court.

WHAT IS ELECTRONIC EVIDENCE:

The word ‘Evidence’ is derived from the Latin word ‘evidera’, which means to ascertain or to prove.  According to Taylor,   “all means which tends to prove or disprove any matter, fact, the truth of which is to submitted to judicial investigation”[1].

 According to Bhartiya Sakshya Adhiniyam, 2023, Evidence can be of two types expressly;

·       Oral Evidence

·       Documentry Evidence

The word electronic record and digital record were added in the definition of evidence but after the commencement of Bhartiya Sakshya Adhiniyam 2023.

Electronic evidence is also known as Digital Evidence. Electronic Evidence is stored in an electronic form or transmitted in a digital format.  It includes digital photos, audio files, mails, word processing document, CCTV footage, ATM Transaction reports, browsing history, files stored in devices, electronic signature, electronic media etc.

It can be used to assert or deny any fact, fact in issue, and relevant fact. It is digital version of physical evidence. It can be produced in criminal as well as in civil proceedings but must be authentic, not tampered and Legal.

BACKGROUND & EVOLUTION OF ELECTRONIC EVIDENCE;

With the rapidly growth in Technology, the legal system started facing problems related to physical evidence and admissibility of computer or internet related evidence. At very beginning, the court and legal system struggled to incorporate a sudden change in form of evidence, but over the time through various judgment’s, judicial observation, judicial interpretation and after from specific legislation, legal system developed the technique to apply the electronic evidence in legal justice system. The main concern of court was regarding authenticity and integrity of electronic records. The court’s suspicion was real, specially when the young legal professionals use artificial intelligence tools to generate fake evidences and fake judgements. For the admissibility of electronic evidence (with the view of judicial proceedings) court specially focuses on the source which is credible, authentic and free from manipulation.

The Indian Evidence Act 1872, initially only focused on the provision of physical evidence and there were lack of provision related to electronic evidence. But, after the enforcement of The Information Technology Act, 2000, a significant change was made in The Evidence Act, 1872. Specially introduction of Section 65A and Section 65B, which addressed the admissibility of electronic evidence. After the introduction of new criminal laws majorly Bhartiya Sakshya Adhiniyam, 2023, added new provision related to digital evidence addressing modern legal landscape.

In the case of Gopalkrishnan v. State of Kerala, 2019, The Apex Court of India Held that  “the video footage/clipping contained in such memory card/pen-Drive being an electronic record as envisaged by Section 2(1)(t) of the 2000 Act, is a ‘document’ and cannot be regarded as a Material object Section 3 of the Indian Evidence Act,1872 was amended and the phrase ‘All documents produced for the inspection of the Court’ were substituted by ‘All documents including electronic records produced for the inspection of the Court’. Regarding the documentary evidence, in Section 59, for the words ‘Content of documents’ the words ‘Content of documents or electronic records’ have been substituted and Section 65A & 65B were inserted to incorporate the admissibility of electronic evidence”[2]

State (N.C.T of Delhi) v. Navjot Sandhu, The Court held that “printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 and 65”[3]

               Evolution of Electronic Evidence Through Various Legislation;

                The Bhartiya Sakshya Adhiniyam, 2023,

Section 57 deals with primary evidence,

·       it includes an electronic or digital record which is created or stored, either simultaneously in multiple files, then each such file is an original.

·       An electronic or digital record is produced from proper custody it is sufficient to prove its contents unless it is disputed.

·        an electronic or digital record is stored in multiple storage spaces in a computer resources, each such automated storage, including temporary files, is an origin.

 Section 61(1): ‘Electronic records are admissible in evidence if they satisfy certain conditions’[4].

Section 61(2): ‘Provides that information in electronic records, which is stored or processed in a computer, shall be deemed to be a document and admissible’[5].

Example: If a CCTV footage or WhatsApp chat is submitted, it can be accepted in court if the proper conditions are fulfilled.

Section 62: section outlines the conditions to be fulfilled for admissibility of electronic records:

·       The computer must have been in regular use.

·       The information must be regularly fed into the system.

·       The system must have been operating properly.

               Section 63: Certificate for electronic record:

·       A certificate is required to authenticate the electronic evidence.

·       Must be signed by a person responsible for the operation of the device.

The certificate must:

·       Describe the device and process,

·       State that the electronic record was produced, by a properly functioning system,

·       Include identifying details like hash value, date, etc.

This certificate is essential for the court to accept electronic record as evidence.

Section 64: The court may presume the integrity and authenticity of an electronic record if:

It is produced from a secure and reliable system. there is no suspicion about its alteration.

Section 65 – Presumption for Secure Digital Signature:

If a digital signature is secure and affixed according to the IT Act, the court shall presume it is valid.

Information Technology Act, 2000,

The Information Technology Act, 2000 (IT Act) provides the legal recognition to electronic records and digital signatures in India. It complements laws like the Bhartiya Sakshya Adhiniyam, 2023 and the Indian Penal Code (now replaced by Bhartiya Nyaya Sanhita, 2023) in handling cyber evidence and digital crimes.

Section 3 – Authentication of Electronic Records:

Provides for digital signatures using asymmetric cryptosystem and hash functions. A digitally signed electronic record is considered valid and secure under law.

Section 4 – Legal Recognition of Electronic Records:

“Where any law provides that information or any other matter shall be in writing… such requirement shall be deemed to be satisfied if it is in electronic form.”[6]

This section gives legal status to electronic documents like: Emails, PDFs, Scanned documents, Word files, etc.

Section 5 – Legal Recognition of Digital Signatures:

Documents that require signatures (like contracts, affidavits, etc.) are considered valid if digitally signed using a valid digital signature.

Section 6 – Use of Electronic Records in Government and Legal Proceedings:

Allows government departments to accept, store, and issue documents electronically.

Sections 85A, 85B, 88A, 90A (Indian Evidence Act — Supported by IT Act):

These sections give presumptions about: Validity of electronic agreements, Authenticity of digital signatures, Integrity of electronic records, Attribution of email/message to a person.

Banker’s Books Evidence Act,

Section 2(3) read with Section 2(8)  

‘ Bankers’ books” include ledgers, day-books, cash-books, account-books And all other records used in the ordinary business of the bank, whether These records are kept in written form or stored in a micro film, magnetic Tape or in any other form of mechanical or electronic data retrieval Mechanism, either onsite or at any offsite location including a back-up or Disaster recovery site of both’[7]

Conclusion;

Over time, electronic evidence has grown from being a new and unfamiliar concept to becoming an important part of the legal system. In the beginning, courts were unsure how to deal with digital records, messages, and online data. But as technology became a bigger part of everyday life, the law also changed to keep up. Laws like the IT Act, 2000 and the Bharatiya Sakshya Adhiniyam, 2023, started to clearly define how electronic evidence should be used and trusted in court. Today, electronic evidence is not just useful—it is often key to solving cases. This shows how the legal system has adapted with time, making sure justice stays strong in a digital world.

 References

[1] Taylor, Evidence, s 1.

[2] Mohd. Afzal v State (NCT of Delhi), AIR 2005 SC 3820.

[3] State (NCT of Delhi) v Navjot Sandhu, (2005) 11 SCC 600.

[4] Gopalkrishnan v State of Kerala, (2019) SCC OnLine SC 61.

[5] Bhartiya Sakshya Adhiniyam 2023, s 61(1).

[6] Bhartiya Sakshya Adhiniyam 2023, s 61(2).

[7] Information Technology Act 2000, s 3.

Bankers’ Books Evidence Act 1891, s 2(3) read with s 2(8).