Thursday, October 22, 2015

Electronic Evidence - Part 4

[this post looks longer than it is due to multiple extracts, please do read till the end]

Tape-recorded evidence hogged the spotlight for the past few weeks on this blog. I looked at how the Supreme Court dealt with the admissibility of such evidence, and argued that the Court adopted an incorrect approach. That approach possibly stemmed from a belief that the Evidence Act provided insufficient protection against the easily-manipulable electronic evidence. Crucially, then, Parliament amended the statute to insert Sections 65-A and 65-B. This concluding post now looks at how the Supreme Court approached electronic evidence in the wake of this legislative reform in the field.

The (Much-Needed?) Amendments - 65-A & 65-B
The Information Technology Act, 2000 introduced the concept of an 'electronic record', and amended the Evidence Act by way of its Second Schedule. The amendments did not expand the definition of a document to include 'electronic record' but inserted a separate explanation in Section 3 of the Act. Sections 65-A and 65-B were inserted after Section 65, and though lengthy, it is necessary to extract parts of both here with some emphasis supplied:

Section 65-A: The contents of electronic records may be proved in accordance with the provisions of section 65B

Section 65-B
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. 

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely :-

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(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.

Parliament seems to have been greatly influenced by the U.K. Civil Evidence Act, 1968 owing to the similarities between Section 5 of that Act [which has since been repealed] and our Section 65-B. Reading the text, what seems clear is that concerns over accuracy had been statutorily redressed. Only if accuracy conditions in Section 65-B(2) were satisfied would the 'computer output' [such as tape-recordings] be considered a document, and be admitted as evidence. 

Interpreting Sections 65-A and 65-B - The Text
This is an interesting set of provisions when looked at together, and in the larger scheme of the Evidence Act itself. It is difficult to argue that after insertion of this legislative packet, one could still turn to Section 65 for introducing Secondary Evidence from electronic records in evidence. Those arguing for this might rely on the 'may' in Section 65-A. I think there is a different explanation for that. Section 65-A was designed to mirror Section 61. The operative phrase does not mean there are other ways to prove the contents, but that well one may not prove them as equally as one may.

Section 61: The contents of documents may be proved either by primary or by secondary evidence
Section 65-A: The contents of electronic records may be proved in accordance with the provisions of section 65B [emphasis supplied]

Section 65-B primarily (a) lays down statutory conditions to be satisfied to deem computer output as documents, and (b) provides an alternative to method to examining witnesses for the purpose of satisfying these conditions. Reading Section 65-B(4) - which talks about the certificate - its apparent that the certificate idea was brought in to quicken the admissibility process when outputs came from large computer systems (imagine email printouts). You need not examine a witness to satisfy all four conditions in Section 65-B(2), and can instead adduce a certificate by "a person occupying a responsible official position in relation to the operation of the relevant device" for "any of the following things" described in the section.

Anvar and a Fearful (and Bizarre) Reading of the Text
What did Court do in Anvar? Many things, in fact. First, it overruled State of NCT (Delhi) v. Navjot Sandhu [(2005) 11 SCC 600] to the extent it allowed recourse to Sections 63 and 65 for introducing Secondary Evidence of the electronic variety. Anvar places section 65-B as the exclusive method. Second, the Court held that Section 65-B won't be attracted where Primary Evidence of electronic records exists. Third, the Court held that Section 65-B only allowed for evidence by certificate, and this is where things get bizarre. The Court held:

Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) There must be a certificate which identifies the electronic record containing the statement; 
(b) The certificate must describe the manner in which the electronic record was produced; 
(c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and 
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

If we scroll up, and read the text of Section 65-B(4), its clear that the Court engaged in some serious re-drafting here. The statute requires a certificate to do "any of the following things" listed in Section 65-B(4), which the Court somehow makes "all of the following". The Court also inexplicably misread the provision to make certificates mandatory. A plain reading of Section 65-B(4) shows the certificate was an alternative method for exhibiting the evidence, as against the normal manner of examining witnesses.

The Third conclusion is rather bizarre. It might be that the Court had an incorrect copy of the text. Funnily enough this has happened before and accounted for sustaining an incorrect position of law for nearly two decades [see Sheoratan Agarwal v. State of M.P., AIR 1984 SC 1824 and Aneeta Hada v. M/s Godfather Travels and Tours Pvt. Ltd., (2012) 5 SCC 661]. Given how the Court managed to correctly extract the provision earlier on in the judgment, one can't be so hopeful. The Court clearly thought certificates were mandatory, and I argue the genesis of this incorrect view is found in Navjot Sandhu itself. There, the Court resorted to Sections 63 and 65 because there was no certificate filed under Section 65-B(4) but witnesses were examined. Revealing, thus, the mistaken view that Section 65-B could not operate without the certificate.

While Navjot Sandhu and Anvar both hold certificates mandatory, the latter comes at this conclusion driven by the institutional fear of electronic evidence catered by the Supreme Court. Tampering of such evidence remains at the forefront, and this persuades the Court to require certificates must be contemporaneous as well. The provision is further re-drafted, becoming a product of the judicial fear seeping through the text. The paragraph where the Court discusses the certificate is enlightening:

Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. [emphasis supplied]

Any doubts over what this means are removed later, when it is held that such evidence "shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document [emphasis supplied]". 

Right at the start of these posts, I wrote about the Evidence Act incorporating a sense of balance in its mixing admissibility and reliability to ensure the best evidence is used to arrive at decisions. The strictness of the best evidence rule was not too harsh so as to exclude great amounts of material, and not too relaxed either. The history of how electronic evidence has been treated, first judicially then statutorily, suggests a greater stringency in the conditions due to the seemingly unique problems of duplication and tampering. But the concoction of judicial fear and statutory conditions in Anvar has swung the pendulum too far in the idealist pursuit of best evidence. The Indian position thus stands and marked contrast to how most common law countries consider such evidence today - our English inspirations have long since abandoned the certificate idea altogether. A failure to make the ruling prospectively applicable has made its effect even more drastic - courts are today excluding computer outputs in trials and appeals pending before Anvar for absence of contemporaneous certificates, causing in no uncertain terms a travesty of justice. 

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