Saturday, October 17, 2015

Electronic Evidence - Part 3

The treatment of electronic evidence in India has been the subject on this blog for the past few posts. This has been done by chronologically discussing the cases involving questions on the admissibility of tape-recorded evidence. From having no tests in the beginning, the Supreme Court by the 1980s had begun to impose strict admissibility requirements for such evidence. This was, in my opinion, largely driven by the reliance judges placed on the English decision in R v. Maqsud Ali. Frequent invocation of the requirements imposed by the Court of Appeals in that case to judge electronic evidence lend credibility to the view that the same tests now applied to India. This was put beyond doubt by the Court in Ram Singh v. Col. Ram Singh [1985 (Supp) SCC 611].

Ram Singh and Tying Loose Ends
Another election dispute, another judgment on tape-recorded evidence. But here, all three judges gave separate opinions in what was a 2-1 split. The majority formed by Fazal Ali and Mukharji JJ., held the tape-recorded statements were inadmissible, whereas Vardarajan J. disagreed. 

Right at the outset of his discussing the evidence, Fazal Ali J. observes: 

Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. 

(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act
(5) The recorded cassette must be carefully sealed and kept in safe or official custody. 
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

This observation notably expanded on the course plotted earlier. To lend greater authority to his observation, the judge referred (again) to Maqsud Ali, and also to American opinion on the issue. He discarded the evidence as, although relevant, it failed the other conditions of reliability in his six-fold test. Interestingly, Mukharji, J. in his separate, concurring opinion discussed Maqsud Ali to observe that the court there held "there cannot, however, be any question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged." The dissent did not provide a rival six-fold test, but merely stated that "tape-recorded evidence is admissible provided that the originality and the authenticity of the tape are free from doubt." The dissent, thus, simply found the facts sufficient to establish all that the majority also wanted to admit the electronic evidence.

Infidelity to the Text
The six-fold test conceived by Fazal Ali, J. appeared an easy device for courts to employ in dealing with electronic evidence at large. The three judges in Ram Singh extensively considered arguments on admissibility of Secondary Evidence, i.e. tape-recorded evidence in this case. Yet, the three separate judgments are astonishing for their failure to even mention Section 65 of the Evidence Act, the basic provision governing the admissibility of Secondary Evidence. In fact, there is no discussion about the nature of the evidence at all. Rather than turn to the text of the governing law, the Supreme Court repeatedly referred to, and relied upon, authorities from the UK and USA. 

The importation of foreign tests to the Indian legal system has been criticised often. There are unique challenges to each legal system and legislators and courts alike have been all too keen to ignore this and adopt 'best practices' to fill the gaps. The same issue arises here: the UK and India fundamentally differed in their evidence laws as the former had no statute! The Court of Appeal in Maqsud Ali was merely following common law traditions of developing law in the absence of statute. This did not apply to India because the Evidence Act squarely covered the field. There were no gaps here - having characterised the evidence as either Primary or Secondary, the Court was obligated to turn to the statute. If it considered statutory requirements too relaxed, it could recommend amendments (which finally happened in 2000). The admissibility-heavy criteria in Maqsud Ali might have appeared necessary because of the jury-trial in the UK. The judge ensured only the best and most accurate evidence reached the jury, which was solely qualified to determine its reliability. But where the judge himself determines the reliability, such entry-barriers don't have such a beneficial effect.

Surprisingly, the Ram Singh tests continue to be used by courts despite the amendment of the Evidence Act to specifically deal with electronic evidence [see, e.g., Tukaram Dighole v. Manikrao Shivaji Kokate (2010) 4 SCC 329]. This supports the argument I am advancing here: that the Supreme Court has been extremely unfaithful to the text of the statute, only to address its fears over the genuineness of electronic evidence. The most recent example of this, Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473], will be the focus of the last post in this series.

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