Its been a year since three judges of the Supreme Court of India decided Anvar P.V. vs. P.K. Basheer [(2014) 10 SCC 473, and Anvar henceforth] and changed our law governing electronic evidence. Surprisingly, remarkably little writing has emerged during this time on what is a hugely significant legal development. Most commentaries brush aside Section 65-B, and independent writing is yet to emerge In fact, there is very little appreciation of our treatment of electronic evidence at large. Through these posts, I try and adopt a bottom-up approach to the issues: starting from the basics to understand the issues and nuances governing the field.
The Evidence Act and Some Basics
There are several ideas running through the Indian Evidence Act and their interplay is well illustrated upon reading the Introduction to the Indian Evidence Act by its author, Sir James Fitzjames Stephen. One such relationship is between relevance and admissibility. Relevance is of fact, but determines admissibility of evidence. Evidence is admissible, only if it concerns facts declared to be relevant under Chapter II of the Evidence Act [Section 5 IEA]. But this is merely a threshold, the purpose of which is to render the amount of evidence before the Court manageable. There are attendant concerns of the quality of the evidence that is advanced, the idea being that the best evidence must find its way to Court. The Evidence Act, accordingly, lays down stringent conditions on how facts may be proved to ensure that the best evidence is before Court [Chapter V IEA]. So if a document carries a signature, Section 67 needs the signatory to be examined for the document to be exhibited. The document then is labelled as "Exhibit PW1/A" (assuming this is the first prosecution witness). Parties would address the Court on the genuineness of the evidence at the stage of arguments.
Without meeting these conditions, evidence of relevant facts would still be inadmissible. Absent an author, the Court will not exhibit the document in evidence, and it would be labelled as "Mark A". No arguments are then needed about its reliability later on. So in our quest to have the best evidence, we end up asking questions about the reliability of evidence at the outset itself. Admissibility, therefore, actually reveals how the Evidence Act installs two systems of reliability - objective and subjective. The objective standards are something that every document must satisfy for it to be worthy of being evidence at a trial, and are therefore generic and not very onerous. Having cleared this, at trial the judge must then be subjectively satisfied about the genuineness of the document. Although our Exhibit PW1/A had a signatory, was the signature on the document actually his? Such questions which require greater application of judicial mind are thus reserved for trial.
Without meeting these conditions, evidence of relevant facts would still be inadmissible. Absent an author, the Court will not exhibit the document in evidence, and it would be labelled as "Mark A". No arguments are then needed about its reliability later on. So in our quest to have the best evidence, we end up asking questions about the reliability of evidence at the outset itself. Admissibility, therefore, actually reveals how the Evidence Act installs two systems of reliability - objective and subjective. The objective standards are something that every document must satisfy for it to be worthy of being evidence at a trial, and are therefore generic and not very onerous. Having cleared this, at trial the judge must then be subjectively satisfied about the genuineness of the document. Although our Exhibit PW1/A had a signatory, was the signature on the document actually his? Such questions which require greater application of judicial mind are thus reserved for trial.
Documentary Evidence and The Primary-Secondary Dichotomy
When talking about best possible evidence, it is obvious that enforcing this to the hilt can lead to absurd situations where the court has no evidence to render judgment on facts. This leads to concessions, and that is what Chapter V of the Act is about when it explains the modes of proof or documentary evidence. At the heart of this is the dichotomy between Primary and Secondary evidence. Primary Evidence is the document itself [Section 62 IEA] while Secondary Evidence refers to copies that satisfy conditions under Section 63 IEA. Going back to the previous idea of two levels of reliability, we see that the Evidence Act reinforces its best evidence requirement by imposing more stringent entry-level barriers to the admissibility of Secondary Evidence. The fact that the document before court is a copy lends to a presumption of suspicion somewhat, which then must be adequately discarded at that first level itself.
Even in 1872, the Evidence Act did speak about documents created through mechanical processes. Section 62 considered the scenario where numerous copies are made by a uniform mechanical process - printing, lithography, photography. It did not consider the idea of a single document being derived from such mechanical processes. The definitions under Section 63 IEA were framed in such a manner as to achieve some balance between having sufficiently high entry-level barriers, and not too much evidence. Interestingly, the definition of Secondary Evidence was never amended to refer to more than 5 conditions. Even after the Evidence Act went digital and changed its idea of a document following the amendments in 2000, it was considered fit to leave Section 63 unchanged. Perhaps, this was because of the already inclusive definition of Section 63: "secondary evidence means and includes", but some clarity never hurt. The other question is when can Secondary Evidence be adduced, for which one must turn to Section 65 IEA. Seven situations were envisioned in 1872 and no more have been added since, despite this not being an inclusive list of circumstances.
Understanding and Inserting Electronic Evidence
A handwritten document consists of (a) paper/writing surface, (b) ink/writing substance, and (c) an author who put the ink on paper to draw certain symbols to create that document. When we have a photograph, the components increase - the interface between the human element and the end product is now a highly technical instrument. Human progress created more complex and sophisticated instruments, without everyone having to know how exactly they function to give us the end-product. Today you and I don't need to know how our phones works to use them. So, how far can we trust them? In the 143 year history of the Evidence Act, the Legislature has not really dealt with this question. There have been 24 amendments overall, with only 2 concerning electronic evidence. These were, in fact, consequential amendments made to the Evidence Act following the coming of the Information Technology Act, 2000.
The Legislature didn't address this, but that doesn't stop problems coming to the courts as more and more people begin to use electronic devices to deal with everyday life. Necessarily then, the courts are required to resolve issues arising from the use of these materials in legal transactions, from what is currently available on the text of the statute. This process is very fact-specific: courts would look to the text to answer problems arising from the particular kind of electronic evidence before it, and not generally ponder about issues from such evidence of facts. The process, as has been illustrated over the last 50 years and ever so brilliantly in Anvar, is fascinating. While dealing with electronic evidence, the Court greatly tilted the balance between the two levels of reliability created by the Evidence Act and made entry-level requirements extremely onerous. Extremely little was left for the judge to determine about the genuineness of the electronic evidence having admitted it. What is even more fascinating, is that the court repeatedly ignores the text of the statute to inform the law through its fears of the reliability of electronic evidence, be it Primary or Secondary. The next post will develop this point by looking at the law on tape-recorded evidence and emails and other Secondary Evidence requiring proof as per Section 65-B of the Evidence Act.
Even in 1872, the Evidence Act did speak about documents created through mechanical processes. Section 62 considered the scenario where numerous copies are made by a uniform mechanical process - printing, lithography, photography. It did not consider the idea of a single document being derived from such mechanical processes. The definitions under Section 63 IEA were framed in such a manner as to achieve some balance between having sufficiently high entry-level barriers, and not too much evidence. Interestingly, the definition of Secondary Evidence was never amended to refer to more than 5 conditions. Even after the Evidence Act went digital and changed its idea of a document following the amendments in 2000, it was considered fit to leave Section 63 unchanged. Perhaps, this was because of the already inclusive definition of Section 63: "secondary evidence means and includes", but some clarity never hurt. The other question is when can Secondary Evidence be adduced, for which one must turn to Section 65 IEA. Seven situations were envisioned in 1872 and no more have been added since, despite this not being an inclusive list of circumstances.
Understanding and Inserting Electronic Evidence
A handwritten document consists of (a) paper/writing surface, (b) ink/writing substance, and (c) an author who put the ink on paper to draw certain symbols to create that document. When we have a photograph, the components increase - the interface between the human element and the end product is now a highly technical instrument. Human progress created more complex and sophisticated instruments, without everyone having to know how exactly they function to give us the end-product. Today you and I don't need to know how our phones works to use them. So, how far can we trust them? In the 143 year history of the Evidence Act, the Legislature has not really dealt with this question. There have been 24 amendments overall, with only 2 concerning electronic evidence. These were, in fact, consequential amendments made to the Evidence Act following the coming of the Information Technology Act, 2000.
The Legislature didn't address this, but that doesn't stop problems coming to the courts as more and more people begin to use electronic devices to deal with everyday life. Necessarily then, the courts are required to resolve issues arising from the use of these materials in legal transactions, from what is currently available on the text of the statute. This process is very fact-specific: courts would look to the text to answer problems arising from the particular kind of electronic evidence before it, and not generally ponder about issues from such evidence of facts. The process, as has been illustrated over the last 50 years and ever so brilliantly in Anvar, is fascinating. While dealing with electronic evidence, the Court greatly tilted the balance between the two levels of reliability created by the Evidence Act and made entry-level requirements extremely onerous. Extremely little was left for the judge to determine about the genuineness of the electronic evidence having admitted it. What is even more fascinating, is that the court repeatedly ignores the text of the statute to inform the law through its fears of the reliability of electronic evidence, be it Primary or Secondary. The next post will develop this point by looking at the law on tape-recorded evidence and emails and other Secondary Evidence requiring proof as per Section 65-B of the Evidence Act.
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