Thursday, March 14, 2019

Electronic Evidence: A Way Forward

Court cases, whether civil or criminal, are how we ask the legal system to decide contested questions of fact. Both sides give their versions of what happened by leading evidence of the many details that made up the event. Witnesses are called, documents and other materials filed, all to show that one version was more probable. A court then examines these materials to decide which version of events was probably (or most possibly) true. 

As trials are attempts at recreating what people did, it is natural to imagine that a major way of doing this is through mobile phones, computers, and social media. Not only do many of us create an almost contemporary record of their daily life on Facebook etc., but cellphones are also sophisticated tracking devices that can help locate where someone was on any given day. At the same time, the likelihood of fake accounts and tampering with this material is also quite high, making it difficult to believe all that we do end up seeing.

This throws up the following dilemma: Should it be easy for this material to come before court with no pre-emptive checks against tampering, giving the court full discretion on how it is considered? Or, do we want to have some questions that a court must ask when deciding whether to let such evidence come on record? In legal terms, the dilemma is about whether admissibility requirements for such electronic evidence should be relaxed or strict. 

In this post, I explain the evolution of law on this point, which shows that barring a brief decade between 2005 to 2014, the Supreme Court approved of strict admissibility requirements for electronic evidence. I argue that this approach was guided by a fear of the unknown when it came to technology, and ended up conflating issues of admissibility with those of a material's reliability. After 2014 though, courts have marked a silent retreat from this strict position, and in 2018 the Supreme Court suggested a return to the relaxed approach of 2005. The result of this back-and-forth is that trial courts across the country are uncertain about  what the law is, increasing the potential for manifest arbitrariness in how cases are processed. I offer my (utopian) take on how to solve this confusion, and conclude by urging for a speedy resolution of the present uncertainty to prevent costly failures of justice. 

Admissibility v. Reliability: The Judicial History of Electronic Evidence
Election cases have had a disproportionately large footprint in the judicial history of electronic evidence. In most of these, candidates had made recordings of their competitors violating election laws, and sought to use this recording as evidence in Court. How these cases were handled by the Supreme Court was the subject of a four-part series on the Blog, and I need not address that in much detail here. It suffices to say that while the Court often spoke about admissibility in those decisions, it paid lip-service to the statutory rules on the issue. Instead, the Court created new conditions beyond the text, which were concerned with the reliability of recordings and sought to exclude material that did not satisfy a minimum threshold of genuineness:

(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 strict 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 context 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.

A look at this test shows how the Court conflated issues of a material's admissibility with those of its reliability. Conditions on admissibility decide whether or not a court can look at material. Questions of reliability comes after the material is already before court, and affects how much weight can be placed on it. But since the decisions consistently referred to admissibility, it must be assumed that the idea was to create additional requirements to tighten statutory rules on admissibility, which were perceived as insufficient, with non-compliance warranting exclusion of the inadmissible material. 

The judiciary's multi-factor test arose at a time when Section 65-B did not exist in the Indian Evidence Act 1872. This provision, along with Section 65-A, was inserted in 2000, and provided a new procedure for admitting electronic evidence in court and address that judicial concern with a laxity on admissibility requirements in the statute. The new procedure did not differ much from the old — get originals if you can, but we will accept copies if that isn’t possible — but made some important tweaks. As Section 65-B(2) shows, the statute now carried specific checks at the stage of admissibility similar to the judicially created multi-factor test referred to above: 

(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.

Electronic Evidence: Anvar and the Strict Approach
Thus, the text of Section 65-B suggested that the legislature had introduced conditions in the statute that confirmed the judicially created tests that had emerged to regulate admissibility of electronic evidence. Crucially, though, when Section 65-B came before the Supreme Court for the first time in Navjot Sandhu [(2005) 11 SCC 600], it held that the provision had done no such thing. Rather, it held that Section 65-B was only one method for admission of evidence, which meant that the pre-emptive checks it provided were not mandatory. This was a clear indicator that the Supreme Court favoured a relaxed approach to allow relevant evidence and let the judge deal with it, rather than exclude it as inadmissible altogether. 

In 2014, the Supreme Court opted for a strict approach on accepting electronic evidence through a  decision by a Three Justices' Bench in P.V. Anvar v. P.K. Basheer [(2014) 10 SCC 473]. Anvar was also a case of alleged election malpractice, and the Court was asked to decide whether the material basis for the allegations — A/V recordings on a CD — was admissible or not. Despite these similarities with the old cases on tape-recorded evidence, Anvar did not simply apply those tests and decide the case. Instead, it correctly looked at the material from the prism of Section 65-B of the Evidence Act, and held that if parties were not getting originals then all copies must comply with the conditions of Section 65-B to be admissible. 

Bringing originals is not difficult with recordings, as all you need to do is get the original memory card etc. which was used in the recording device, along with the device itself. But with messages, emails, call records and the like, the originals are not in any person’s possession, but on the servers of corporations such as Google, Amazon or Airtel. Thus, for a vast chunk of electronic evidence, courts can only ever deal with copies. And in Anvar the Supreme Court held that to even look at any of this, Section 65-B had to be complied with, where compliance meant filing a contemporaneous certificate as provided under Section 65-B(4) (filed when the evidence comes to court). 

Anvar affirmed the strict approach on admissibility and overruled Navjot Sandhu in the process. In doing so, it harmonised the old cases on tape-recorded evidence with the new statutory provisions in Section 65-B. At the same time, it also prescribed a very harsh medicine for non-compliance with the law: excluding potentially relevant evidence from consideration. 

The Silent Retreat After Anvar

Anvar was flawed. Not because it held that Section 65-B is a mandatory requirement for accepting copies of electronic evidence, but because it held that a contemporary 65-B certificate is mandatory. This is plainly unsupported by the provision, which only provides for the certificate method as an option for convenience. 

Further, Anvar was also flawed insofar as the holding was allowed to apply retrospectively to pending cases and appeals, something that consequently placed all pending litigation in the country in a flux. If electronic evidence had been taken on record contrary to the single method that Anvar now prescribed, it had to go away. And since the method in Anvar made it impossible to cure defects — it needed a contemporary certificate — it meant many cases would fall to the floor. 

The initial chiseling of Anvar began with this perspective: courts read the judgment in ways to make the conditions more palatable so as to not imperil pending cases, but did not disagree with the view that Section 65-B was mandatory. A leading example of such an attempt was the Delhi High Court decision in Kundan Singh [Crl. Appeal 711/2014 decided on 24.11.2015], which enlarged the scope to cure defects by holding that Anvar did not require a contemporary certificate under Section 65-B to be filed. 

This chiseling continued with Sonu v. Haryana [(2017) 8 SCC 570]. Here, a Two Justices' Bench of the Supreme Court developed a different line to allow for curing the procedural defects that might result from Anvar. Focusing on the distinction between issues of "inherent admissibility" and "mode of proof", it held that non-compliance with Section 65-B was an issue that affected the latter. This required parties to raise this objection at the time of trial, and barred them from raising it in appeal. Effectively, it meant that the Court had shielded trial court verdicts from a retrospective application of Anvar, something it specifically flagged as a concern.

And in 2018, this chiseling fashioned a different artwork altogether when another Two Justices' Bench decided to take up many evidentiary issues in the case of Shafhi Mohammad [(2018) 2 SCC 801]. The case did not involve any questions on Section 65-B, but that did not stop the Court from "clarifying" the legal position on the same. It did so in two remarkable ways: first, it suggested that Sections 65-A and 65-B were not a complete code on the subject of electronic evidence, and second, it held that courts can relax the requirement of a certificate in the interests of justice as these are procedural provisions.

Working Towards Untangling the Knots
The chiseling, or wrecking, of the house built by Anvar in 2014 has been done either by High Courts, or by Supreme Court decisions passed by benches of lesser strength. This repeated clarification of the law by different courts is not an exercise in distilling the essence of a substance by repeated filtering. It is actually the opposite: a process which throws millions of pending into a violent churning, with the trial courts not knowing how to handle the material presented before them. 

How do we resolve this confusion over what shape should the law take? There are many answers to this. One of these is a clarification of Anvar to state that a contemporary certificate under Section 65-B is not required, and limiting the retrospective effect of that decision to save decided cases. This would address the most visible of sores. But it will not solve the problem itself. For that, we must repeal Section 65-B of the Evidence Act and bring in its place a new setup to untangle the nexus between admissibility and reliability that has contributed to the present state of affairs.

The judiciary's approach to focus on the accuracy of electronic evidence at admissibility itself worked at a time when such material was a rare oddity in trials. It was, as I have argued earlier, symptomatic of worries about misuse of unfamiliar technology that plague us all. Given the rarity of this material, as well its unfamiliarity, it makes sense that a system potentially excluding this evidence at the outset was not seen as problematic. Section 65-B reflects this reality — the product of a legislation that went through its gestation in the 1990s. However, the landscape has changed so dramatically in the last two decades that both aspects of rarity and unfamiliarity in relation to electronic evidence have almost completely disappeared.

This transformation makes a legal system which possibly excludes this material as evidence appear quite unfavourable and out of sync with common sense, and explains the retreat from AnvarIt also warrants that the system give up this approach which considers issues of accuracy and reliability at the stage of admissibility itself and ousts relevant material. This ultimately increases the already existing gap between judicial verdicts and the truth as parties might perceive it. Instead, it makes sense to revert back to the standard method for accepting evidence, found in Sections 60 to 65 of the Evidence Act. In this model, admissibility is concerned about the provenance of the material, with a preference for getting originals with the law allowing copies if the circumstances require. But the concerns over accuracy and reliability, which are at the heart of Section 65-B(2), would still be left for courts to consider when evidence is being appreciated and arguments being heard. 

The Indian Parliament took great inspiration from Section 5 of the U.K. Civil Evidence Act of 1968 while drafting Section 65-B: both provisions were almost identical. I use the past tense because the U.K. provision has since been repealed, with that jurisdiction adopting a relaxed approach on the point of admissibility. Here, I suggest that India should follow suit, and consign Section 65-B of the Evidence to the realm of history.

The chances of that are not very high, which is why the impetus then shifts to the judiciary bringing about changes to Anvar for making it more palatable — a petition seeking clarifications is presently pending. Even so, I would suggest that a return to the 2005 position in Navjot Sandhu should also be considered, which suggested that Section 65-B cannot be treated as the only method for accepting electronic evidence. 

Whatever way the cards fall, clarity is urgently needed. I exaggerate, but the multiplicity of judicial opinions from high above in the wake of Anvar has perpetuated a situation where nobody on the ground knows what the law is with any certainty. Rather than more episodes such as Shafhi Mohd., a decision which changes the law on electronic evidence in a case which had nothing to do with it, what we need is a firm resolution to prevent the arbitrariness from causing more failures of justice.  

No comments:

Post a Comment