Bharatiya Sakshya Bill, 2023: Admissibility of Electronic & Digital Records As Evidence

With the technological strides India has made in the last few years, it is an undeniable fact that Indian law too must grow to accept digitalisation. Therefore, on the last day of the monsoon session, the Parliament introduced the Bhartiya Sakshya Bill, 2023 (the “BSB‘) with the intention of replacing the Indian Evidence Act, 1872 (the “Act‘). In this article, the author seeks to bring about a comparative study of the admissibility of electronic and digital records in both these statutes and opines with whether the BSB has been successful in its aim.

I. THE INDIAN EVIDENCE ACT, 1872

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. Section 65A of the Evidence Act, states that the contents of electronic records have to be proved as evidence in accordance with Section 65B of the Act.

Section 65B is a self-contained code courtesy the non-obstante clause it starts with. It details the procedure to be followed while admitting electronic records as evidence. Of the many procedural aspects it covers, it also mandates the requirement of a certificate as per Section 65B (4) which is reproduced herein below:

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, —

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

The said Section 65B of the Act caught the eye of the legal luminaries and became a debate in the legal corridors. In the State of N.C.T. of Delhi v. Navjot Sandhu¹ in 2005 it was held by the apex court that there is no bar to adducing secondary evidence under other provisions of the Evidence Act, namely Sections 63 and 65 even if a certificate containing the details in Section 65B(4) of the Act is not filed.

However, this ruling was dissented in the case of Anwar PV v. PK Basheer and Others² in 2014 wherein the apex court held that a certificate under Section 65B of the Act is compulsory for admission of electronic evidence. The Supreme Court observed that Section 65B of the Act begins with a ‘non-obstante clause’ and therefore would override the general law on secondary evidence, as laid down under Section 63 and 65 of the Act. Section 65B of the Act is a special provision concerning proof of electronic records. and hence prevails over the general provisions of section 63 and 65.

The confusion was exacerbated by differing judgements given in Tomaso Bruno v. State of Uttar Pradesh³ in 2015 and then Shahfi Mohammad v. State of Himachal Pradesh⁴ in 2018. Yet again in 2020, Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal⁵ decided the fate of video recordings as evidence and stated the following:

“The electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, Oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.”

Admissibility of WhatsApp Messages:

An important change in modern communication has been the invention and wide-spread usage of WhatsApp which makes it an important form of evidence. However with the confusion surrounding Section 65B of the Act, the admissibility of WhatsApp chats as evidence is also put into question.

In A2Z Infraservices Ltd. Versus Quippo Infrastructure Ltd.⁶, the Apex court held that Whatsapp Chats could not be admitted as valid evidence without the accompanying certificate as prescribed in Section 65B of the Act. They held:

“What is the evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don’t attach any value to the WhatsApp messages”.

However, in Ambalal Sarabhai Enterprise Ltd v. KS Infraspace LLP Limited⁷, the Apex court held:

“The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidence – in – chief and cross examination.”

Further, it seems that WhatsApp chats are considered valid evidence in criminal proceedings where the prosecution must show beyond a reasonable doubt that the defendant is guilty. In Ritu v. State⁸, the Delhi High Court upheld the acquittal of the rape accused considering WhatsApp chats. In another significant case, three students of Jindal Global University, accused of gangraping and blackmailing their junior were convicted on the basis of WhatsApp chats admitted into evidence. These have been instances where WhatsApp messages have played a concomitant role in corroborating the intention and adducing to the commission of the offence

Yet again, there is clear misunderstanding when it comes to Section 65B of the Act.

As recently as June, 2023, courts have held differing views on this contentious section. The Madras High Court in the case of Yuvraj v. State of Karnataka⁹ have held that the requirement of a certificate under Section 65B(4) of the Act is archaic and stemming from outdated British laws. They went on to state:

“It is rather unfortunate that the provisions found to be obsolete by the United Kingdom in 1995 were found to be readily acceptable by the Indian Legislature in the year 1999. By virtue of the same, certification requirements that were conceived by the United Kingdom in the year 1960, is now made applicable to modern computers, in the year 2000 by India. There could be no better instance of fitting a square peg into a round hole.”

This up and down in compliance requirement for admission of electronic records as evidence is not in line with India’s goal of digitisation. The BSB was ideated in the backdrop that the existing law does not cover adequately the change in technology that India has undergone. As stated in the Clause 3 of the Statements and Objects of the BSB the legislation aims to provide for admissibility of electronic or digital record as evidence and give it the same designation and legal effect, validity and enforceability as paper records.

II. COMPARISON OF THE ACT AND THE BILL

To assess whether the BSB has been successful in its aim, it is first important to compare the provisions relating to electronic and digital records in both the statutes:

TITLE	BSB, 2023	IEA, 1872	ANALYSIS
Definition of “Document”	Sec 2 (c)		As per IEA “Documents” did not involve electronic or digital records. Now, record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are also considered as “Documents”;
Evidence	Sec 2 (e)	Sec 3	In IEA electronic records were considered as documentary evidence. Now, the scope has been enlarged to include digital records along with electronic records.
Admissions	Sec 15	Sec 17	No Change
Entries in books of account when relevant.	Sec 28	Sec 34	No change
Relevancy of entry in public record or an electronic record made in performance of duty.	Sec 29	Sec 35	No change in content although the title involves “electronic records” which as per IT Act 2000 refer to data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer-generated micro fiche.
Relevancy of statement as to fact of public nature contained in certain Acts or notifications.	Sec 31	Sec 37	Previously the Court when forming an opinion as to the existence of any fact of public in nature relied on the Central or State Act appearing in the official gazette or any printed paper. Now they can also rely on Central or State government notification in digital or electronic form.
What evidence to be given when statement forms part of a conversation…	Sec 33	Sec 39	No change
Opinions of experts	Sec 39	Sec 45 A	No change
Opinion as to hand- writing and digital signature,	Sec 41	Sec 47 A	No effective change
Primary evidence	Sec 57	Sec 62	4 explanations were added as the scope of primary evidence was broadened; wherein explanations (4), (5) and (7) talks about electronic or digital records and (6) focuses on video recordings.
Proof of documents by primary evidence.	Sec 59	Sec 64	No change
Admissibility of electronic or digital record.	Sec 61		Admission of electronic records were mentioned only in sec 17 and 65 B of IEA but it did not state admissibility of digital records.
Special provisions as to evidence relating to electronic record.	Sec 62	Sec 65 A	As per BSB, electronic records MAY BE proven by provisions of section 59
Admissibility of electronic records.	Sec 63	Sec 65B	There are only additions of few words like “create, communication devices” which broadens the scope of electronic records and computer output.
Rules as to notice to produce	Sec 64	Sec 66	Mere changes like “attorney and pleader”, “advocate and representative”
Proof as to electronic signature	Sec 66	Sec 67 A	No change
Presumption as to Gazettes in electronic or digital record.	Sec 81	Sec 81 A	Only addition of the word “digital”
Presumption as to electronic agreements.	Sec 85	Sec 85 A	Only addition of the word “digital”
Presumption as to electronic records and electronic signatures.	Sec 86	Sec 85 B	No change
Presumption as to [Electronic Signature Certificates]	Sec 87	Sec 85 C	No change
Presumption as to electronic messages	Sec 90	Sec 88 A	No change
Presumption as to electronic records five  years old	Sec 93	Sec 90 A	No change
Production of documents or electronic records which another person, having possession, would refuse to produce.	Sec 136	Sec 131	No change

III. CONTRADICTING SECTIONS IN THE BILL

Unfortunately, it is evidenced from the comparison above that most sections have remained the same in the BSB or have been subject to minor soft changes. What is important to note that Section 65B of the Act has almost verbatim been reproduced vide Section 63 of the BSB. The earlier conundrum of the judiciary continues, and even gets more complicated with the addition of Section 61 of the BSB as reproduced below:

61. Nothing in the Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall have the same legal effect, validity and enforceability as paper records.

Section 62 of the BSB further fortifies this position by saying that the contents of electronic record may be proved in accordance with provisions of Section 59 of the BSB. The use of the phrase ‘may be’ denotes an option that can be exercised. Incidentally, the said Section 59 states that documents shall be proved by primary evidence.

Section 57 of the BSB speaks of ‘primary evidence’ and the same is reproduced herein below:

Primary evidence means the document itself produced for the inspection of the Court.

…

Explanation 4.—Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.

Explanation 5.—Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.

Explanation 6.—Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.

Explanation 7.—Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

Section 63 of the BSB is a replica of Section 65B of the Act. Since it also starts with a non-obstante clause, it seems to have overriding power over all other sections. This puts it at loggerheads with Section 61 and 62 of the BSB, which leads to one practical question- Does electronic evidence need to be proven specially as per Section 63 of the BSB (earlier: Section 65B of the Act) or does it stand valid on its own as primary evidence?

What makes it even more difficult to answer this is the question that even Section 61 of the BSB begins with ‘Nothing in the Adhiniyam shall apply…’ potentially rendering the efficacy of Section 63 of the BSB as null and void.

Section 63 is titled ‘Admissibility of electronic records’, but Section 62 is titled ‘Special provisions as to evidence relating to electronic record.’ In my personal opinion, since Section 62 provides special rules as to the admissibility of Electronic Records, it must prevail over Section 63, irrespective of the non-obstante clause in view of ensuring justice and keeping in mind that special law overrides general law.

V. CONCLUDING REMARKS

The BSB being at infant stage, will face its own share of litigation and ultimately highest judiciary will have to cull out the correct law. Although the intention is appreciated, I do not think that BSB has translated well into the actual phrasing of the bill. The legal admissibility of the contents of electronic records, including WhatsApp chats, is underscored by the legislative framework i.e, Section 62 of the BSB which reinforces this by allowing electronic records to be proven through the mechanisms outlined in section 59, establishing them as primary evidence. However, due to the phrasing of Section 63 of the BSB, one remains unsure of whether the additional compliance as per Section 63 of the BSB is required or not. Now, Section 62 and Section 63 of the BSB stand diametrically opposite each other and it is up to the judiciary to interpret them in a harmonious manner as far as possible.

DISCLAIMER:

This information memorandum is meant solely for the purpose of information. Acelegal does not take the responsibility of any decision taken by any person based on the information provided through this memorandum. Please obtain professional advice before relying on this information memorandum for any actual transaction. Without prior permission of Acelegal, this memorandum shall not be quoted in whole or in part or otherwise referred to in any documents.

Notes:

1 (2005) 11 SCC 600

2 (2014) 10 SCC 473

3 (2015) 7 SCC 178.

4 (2018) 2 SCC 801.

5 MANU/SC/0521/2020

6 SLP(C) No. 8636/2021

7 CIVIL APPEAL NO. 9346 OF 2019

8 (2018 SCC On Line Del 12914)

9 Crl.A(MD). No.228 of 2022