CRITICAL APPRAISAL OF THE RELEVANCY AND

ADMISSIBILITY OF ELECTRONIC EVIDNECE IN INDIA

By: Mr. Ananya Choudhary1

Abstract
The advent of Information and Communication Technology brought some major changes to
all the aspects of the human life. It would not be out of place to state here that even the
Indian legal system is not foreign to the use of as well as reliance on such technological
advancements.
With the cyber space now becoming integral part of almost every human on the planet, it has
become a means as well as victim of crime. Therefore, for effective adjudication of the cases,
the Indian legal system felt the need to incorporate laws in relation to the admission and
relevance of evidence in electronic form.
Therefore, the Indian legislature analyzed the advent of ICT, and in regards to the this, IT
Act, 2000 was enacted. And it also amended the Indian Evidence Act, 2000 and allowed for
the admissibility of digital/electronic evidence before the Indian Courts.
This paper aims at dealing with legal aspect of electronic evidence. In this paper some
important sections, case laws and judgments in relation to legality of electronic evidences
are discussed. Apart from that some drawbacks and dichotomies in the Indian model has
been discussed and in furtherance of same, some suggestions are also provided by the
author.

Keywords: Information and Communication Technology, Cyber Space, Electronic Evidence,

Admission, Relevance.

Introduction
The 21st Century, also known as the age of technology had brough a technological revolution
all around the globe, and India is not any exception. The advent of Information and
Communication Technology (ICT) had impact on every system, every sector and every
aspect of human life. With just a swipe of finger, ICT had allowed most of the human
activities to be done with an ease. In no time, it became quite popular and resulted in
exponential growth of its use. And one of the major branches born out of ICT was
cyberspace, that allows users with internet connection to access any information, data
storage, analyse etc. Even though ICT provides millions of benefits, but at the same time it
poses certain threats also. And with the ever-increasing use and reliance on technology there
arises the need for transforming of law in relation to IT. And with growth in the use of ICT
there was also an evolution of how the evidence were brought before court. With the

1
Mr. Ananya Choudhary, 2nd semester, Institute of Law Nirma University

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increased popularity and use of ICT, electronic evidences were being brought before the
court. Therefore, in this direction, to deal with the advent of ICT, the government of India
enacted The Information Technology (IT) Act 2000 2 and it was made in consonance with the
United Nations Commission on International Trade Law (UNCITRAL). And through the
same act, Indian Evidence act, 18723 was also amended. And one of the major attractions of
this amendment was that, it allowed for admissibility of digital/electronic evidence in the
Indian courts.

Electronic Evidence
As per section 2(t)4 of IT Act, 2000 “electronic record" means data, record or data generated,
image or sound stored, received or sent in an electronic form or micro film or computer-
generated micro fiche.
So, the electronic evidence or digital evidence basically refers to the probative value that is
either stored or transferred in binary form. But this evidence is not only limited to the ones
stored on computers but also includes the information on multimedia and/or
telecommunication devices. Examples of some of the device that come under its purview are
wireless telecommunications network or systems, smart phones, telephones, telephone
system, etc. And these evidences can also be found in form of email, in text documents,
backups, fax, navigation systems etc.
But there is a major problem associated with the electronic evidence, that it is easy to
manipulate electron/ digital evidence. And the reason for the same is that it can be easily
copied, altered, made, destroyed and is also easily transferrable. This is the major reason why
reliability and acceptability of electronic evidence is questioned.

Electronic evidence and the Indian evidence act 1872

With the IT Act, 2000, some amendments were also brought in the Indian Evidence Act,
1872 which allowed for acceptability of electronic evidences to be adduced before the court.
Evidence considered under Indian Evidence act 1872 are generally categorized in two
categories under section 35 of the act:
 the evidence of witness i.e. oral evidence
 documentary evidence which includes electronic record produced for the
inspection of the court

2
The Information Technology Act, 2000, No 21, Acts of Parliament, 2000
3
The Indian Evidence Act, 1872, No. 1, Acts of parliament, 1872
4
The Information Technology Act, 2000, § 2, No 21, Acts of Parliament, 2000
5
The Information Technology Act, 2000, § 3, No 21, Acts of Parliament, 2000

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But by the virtue of Section 926 of the IT Act 2000, section 3 of the Indian Evidence Act
1872 was further amended and the phrase “All documents produced for the inspection of the
Court” was substituted by “All documents including electronic records produced for the
inspection of the Court”
Section 597 of the Indian Evidence Act,1872 dealt with the Proof of facts by oral evidence.
But this section was also amended. And the phrase “Content of documents” contained in this
section was substituted with the words “Content of documents or electronic records”.
And further to that, section 65A8 and Section 65B were also added to the Indian Evidence
Act. All the debate in respect to electronic evidence circles around Section 65B.
The sole purpose of Section 65A is just that it aims to refer section 65B and thus, just
provides for how admissibility of electronic evidence is to be proved in accordance with
section 65B.
Section 65 B provides for the grounds and procedure to be followed for the purpose of the
admissibility of the electronic evidence. With growth in use of the ICT, very soon many of
the evidences were also brought in electronic form before the court. And since electronic
evidences can easily be manipulated, therefore the section 65B deals with providing detailed
conditions and procedure for the acceptability of such evidences. This section aims at
ensuring that the evidence brought before the court are reliable and authenticated. Because
altered or false evidence could lead to grave injustice.
The non-obstante clause as inserted by the legislature allows these two sections to enjoy an
overriding power over the rest of the act in relation to electronic evidence.

Section 65B
Section 65B is one of the most important section as in regards to Electronic evidence. And
with ever growing use of ICT, this section is making its presence be felt in Indian courts.
Section 65B basically elaborately deals with the aspect of procedure and grounds for
acceptability of electronic evidences.
Section 65 B (1): As opposed to the general principle of law, that forbids secondary
document to be presented before the court whenever original evidence or documents are
available, this subsection is quite an exception. Section 65B (1) allows evidence to be
presented before the court which may be contained in an electronic record that is transferred
onto computer output. For example, CDs or pen drives, etc. Thus, it would not be necessary
for the parties to bring the original evidence, which may be in form of server or computer,
etc. Because it would make the task quite difficult or impossible to bring such output in the
court. Therefore, Section 65B (1) allows electronic evidence to be presented in secondary
form and not necessarily original form.
Even though section 65 B (1) provides some freedoms/laxity to the parties, but at the same
time section 65B (2) provides for some conditions of acceptability. It provides for a detailed

6
The Information Technology Act, 2000, § 92, No 21, Acts of Parliament, 2000
7
The Indian Evidence Act, 1872, § 59, No. 1, Acts of parliament, 1872
8
The Information Technology Act, 2000, § 65, No 21, Acts of Parliament, 2000

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procedure to be followed in order to ensure acceptability of electronic evidence by the courts.
This section just aims to ensure that all the information is used lawfully and none of the
electronic evidences are altered.
The first condition it provides for is that the evidence/output being produced by the computer,
must have been produced between the time duration when it was in regular use, and that too
by a person having lawful control over it. The second condition requires that the kind of
information which is of subject matter to the evidence must have be fed in the computer on
regular basis. The third condition requires that the computer being used for the purpose must
have been working properly. This condition is put into the act so as to ensure that due to any
technical reason, the accuracy of the electronic records is maintained. The fourth and the last
condition provides that the duplicate copy must be derived from the original record.
All the aforesaid conditions are joined by “and” as conjunction and not “or”. Therefore, all
these conditions are required to be necessarily fulfilled in order to ensure accuracy of the
electronic evidence.
One of the other key sub-section of the IT act 2002 in relation to electronic evidence is sub-
section 4, which provides for some conditions under which the statements in relation to the
electronic evidence are permissible. It further provides for the key requirements that must be
fulfilled by the certificate, which ii required for the admissibility of the evidence

Judicial Trend on Admissibility of Electronic Evidence

One of the landmark judgments that served the purpose of giving a clear interpretation of the
law and clearing the clouds of doubts and controversies in relation to electronic evidence was
Anvar P.V. v. P.K. Basheer9. The key issue being considered in this case was regarding the
admissibility standards of electronic evidences. The facts revolved around the Assembly
election in Kerala. As per the facts, after losing the election, the appellant knocked the door
of the high court claiming that corrupt practices were used in the election. However, after
losing the appeal, the appellant brought the appeal before the supreme court. And of the
major evidence considered by the court were electronic evidence. The honourable supreme
court in relation to the electronic evidence identified some important sections of the IEA,
which were Sections 3, 22A, 45A, Section 59, Section 65A & Section 65B. And section 65B
being the most important.
The supreme court in this case refers to its previous judgment of Information and
Communication Technology. The supreme court found the dictum of the judgment to be
flawed as the dictum allowed for the application of §§61-65 of the Evidence in case the
conditions as mentioned under §65B were not satisfied. But the supreme court in the Anvar
case adopted a different view. Applying the principle of Generalia specialibus non derogant,
Supreme court in this case held that for the purpose adducing any electronic evidence, only
section 65 B is applicable.
In dictum of the case supreme court focused more on the sub-sections (2) and (4) of §65 of
the Indian evidence act,1872. Further the SC made all the conditions under sub-section (2)
compulsory, in order. And also, in relation to section 65B (4), the court held that all the
9
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473

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conditions are required to be mandatorily fulfilled. Apart from that the SC in this case
paraphrased sub-section (4) and held that a certificate under this section must also be
presented for the purpose of authentication and thus making it the fifth condition apart from
sub-section (2) which needs to be fulfilled. And if the certificate is not presented as per the
terms stipulated under sub-section 4 then the evidence won’t be adduced. And further the
honourable court also interpreted all the other clauses of sub-section 4 as compulsory
requirements for the certificate rather than considering them just to be optional. And one of
the other major conclusions of the judgment was that contemporaneity is required in the
production of certificate. Court made this also a compulsory condition. And based on this
condition only, the court didn’t adduce the evidence in the case, as it failed to fulfil the
contemporaneity requirement. This condition requires that the certificate needs to produce at
same time when the computer output is generated. And if this condition is not fulfilled than
the evidence will be held to be inadmissible.
But still in this landmark case, the supreme court has missed to look over some other aspects
of the section. They overlooked the aspect of as to the computer producing the output.
Supreme court also left the ambiguity over the aspect of person signing the certificate. The
court also didn’t discuss over the time period within which the certificates needs to be
produced. Thus, it leads to some ambiguity in respect to these matters.
But this judgment cleared many of the doubts as in regards to the interpretation of sections in
relation to electronic evidence. Acting like a precedent, the interpretation of this law, is being
followed by the Indian courts in the upcoming cases. And they are referring the dicta of the
case.
In the case of Jagdeo Singh v. State10, the Delhi high court gave the credit to the supreme
court for making the applicability of law over electronic evidence clear thorough its Anvar
verdict. In this case also the court held that certificate need to be mandatorily presented along
with the evidence as under section 65, for ensuring acceptability of the evidence. In the same
case the parties didn’t succeeded in acceding to all the conditions as under section 65. Thus,
was held to be admissible.
And further many judgements were delivered in light of the Anvar judgment. For example,
Sanjay Singh Ram Rao Chavan v. Dattatray Gulab Rao Phalke 11, Sanjay Singh Ram Rao Chavan v.
Dattatray Gulab Rao Phalke12.

Difficulties and Drawbacks

Several conditions as set under Anwar judgement, and especially the requirement of
certificate gives birth to some difficulties and drawbacks.
Many times, situations may arise where the evidence presented before the court may not
necessarily be obtained in a legal manner. This may happen in a situation where many times
evidence are presented by investigation agencies through their secret or unapproved searches,
whistleblower, accomplice, etc. Even though they might be obtained in an illegal manner, but
10
Jagdeo Singh v. State, 2015 SCC OnLine Del 7229
11
Sanjay Singh Ram Rao Chavan v. Dattatray Gulab Rao Phalke, (2015) 3 SCC 123
12
Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123

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still the court accepts them. But in case, electronic evidence are presented in this manner, it
would be impossible to get it certified as under section 65 of the Indian Evidence Act.
Therefore, it leads to a situation where if non-electronic evidence is even acquired by illegal
manner, they would be accepted. But if electronic evidence is received in this manner, then
they won’t be accepted.
One of the other difficulties that may arise is in relation to India judicial system. It is a well-
versed situation that the Indian Judicial system is slow and delays are quite common here.
Cases are delayed for a long time in India. And in this case maintaining such electronic
evidence is quite difficult. Because electronic evidences could easily be tampered or
manipulated with.
One other dichotomy that may arise is on relation to certificate-based authentication. It is
quite prone to fraud or manipulation. Firstly, the statement in certificate is merely presented
by the party desirous of producing the evidenced submitted. Secondly, as opposite to the
safeguards ensured in oral evidence, the certificate for electronic evidence is not subjected to
the oath, cross-examination and observation of demeanour. And this reduces reliability.
Further it is quite difficult to ensure that the parties have not engaged in any case of perjury.
The conditions under section 65B could still be satisfied even if the lawful owner of alters the
evidence in due ordinary course of business. Thus, there are some dichotomies or difficulties
which may be faced and thus, hinder the process of justice.

Provisions in USA.
In US also, the issue of electronic evidence is an issue of great significance. Rules in relation
to electronic evidence in US are quite similar to that of India. But in US a more exhaustive
and a better model is adopted. In USA laws in regards to electronic evidence is governed by
Federal Rules of Evidence,2015. And what purpose Anwar case fulfils in India, is done by
Lorraine v. Markel American Insurance Co.13 in USA. This case played an Important role in
clearing the position of law over admissibility of Electronic evidence in USA. But the method
and scope of law in relation to electronic evidence is quite different in USA as compared to
India. In this case the court extended the purview and applicability of §§901 and 902 of the
Federal Rules of Evidence, 2015. A non-exhaustive list of authentication methods was laid
down in this case through these sections by the court. This judgment helped in better
interpretation of law. And it didn’t bound the parties by a single method of authentication. It
brought a more flexible and a broad framework which allowed the parties to get their
electronic evidences adduced by multiple methods of authentication.

13
Lorraine v. Markel American Insurance Co., 241 FRD 534 (D. Md. 2007)

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 Suggestions
As earlier in the article we have seen that how, the Indian model lacks at some place. And as
a result of which the justice may not be delivered fairy. There is need for bringing some
modifications in the Indian model to make it more comprehensive and to widened the scope.
And also, to ensure reliability of authentication methods and to reduce the cases of tampering.
Firstly, the Indian legislature must enact a completely new law over electronic evidence,
covering all the aspects of the electronic evidence, and detailed procedure to be followed,
proper guidelines, etc.
Secondly the scope of Section 65B (2) must be widened and more conditions should be added
to the same. Efforts should be made to devise such ways as to prevent the deliberate
alteration with the electronic evidences.
Further, Indian should also adopt the US model of law in relation to acceptability of
electronic evidence. Just like the way, US had adopted a more comprehensive and a broad
mechanism, similarly India should also adopt the same. Instead of just a single method of
certification, Indian law should provide the parties with more and more alternative methods.
Fourthly, India should allow for additional authentication and also cross questioning as done
in case of oral evidences. And mechanism must be set up, so as to ensure that whenever the
court or the parties have a valid reason, a proper and a full additional authentication of the
evidences should be allowed.
And lastly, some exemptions must be allowed for the evidences obtained in an illegal
method. The issue in relation to the illegal evidences has been already discussed in the paper.
Therefore, some exceptions should be framed in the sections so as to allow illegally obtained
evidences without a need for certification.

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 Conclusion
With the development of technology, there also has been an evolution in as to the way,
evidences are brought before the court. With the increased popularity and use of ICT,
evidences were brought before the court in electronic form. Therefore, to deal with the
situation IT Act, 2000 was drafted by the legislature and in addition to that some amendments
were made to Indian Evidence Act, 1872. Amendment were brought keeping in minds the
electronic evidence. And the most importation section in relation to the same was Section65
B. It provided for detailed procedure and grounds for adducing electronic evidence before the
court. But still there were clouds of doubt over the interpretation of these sections. But
through Anwar case, the Supreme Court successfully gave a clear understanding over the
applicability of law in regards to electronic evidences. This case served as a guidance for the
Indian court to deal with such matter in the future. And this served the purpose, and the same
was adopted by the court after that. But still, this case lagged at some places and this case
brought some rigidity over authentication of evidences. And in addition to that there were
some drawbacks as in relation to Indian law over the electronic evidence. Therefore, there are
need for some modifications to be brought in the law. And some of the suggestions have been
discussed in this article.

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