Thursday, July 16, 2020

The Supreme Court, 65-B Certificates, and Electronic Evidence

A Three Justices' Bench of the Supreme Court delivered a much-awaited decision in Arjun Panditrao Khotkar v. Kailash Kushanrao & Ors. [Civil Appeal Nos. 20825-26 of 2017, decided on 14.07.2020 ("Arjun Panditrao")]. The issue referred to the Three Justices was an apparent conflict that had emerged in the position of law on the point of Section 65-B of the Indian Evidence Act, 1872 [IEA]: It appeared that the legal position, as expressed by a bench of Three Justices in P.V. Anvar v. P.K. Basheer [(2014) 10 SCC 473 ("Anvar")], had been changed by a bench of Two Justices in Shafhi Mohammad v. State of H.P. [(2018) 2 SCC 801 ("Shafhi Mohd.")]. 

[For a background into the issues, see this post, and for various posts on Anvar, see here]  

The Holding in the Reference
The order of 26.07.2019 making the reference was as follows:   

We are of the considered opinion that in view of Anvar P.V. (supra), the pronouncement of this Court in Shafhi Mohammad (supra) needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter.

The reference itself has now been decided by a unanimous verdict (Justice Ramasubramanian has penned a separate opinion; more on that later), which I understood as holding that:

  1. Anvar continues to be the correct position of law and the observations in Shafhi Mohd., and some other decisions, have been declared per incuriam. 
  2. Thus, admissibility procedures set out in Sections 65-A and 65-B, IEA control the field completely when it comes to electronic evidence, and the regular procedures of Sections 62 to 65, IEA do not apply. 
  3. It is mandatory to file a certificate as per Section 65-B(4), IEA in all cases where a person cannot bring the computer device upon which "original information" is stored to court. 
  4. The person giving a certificate need only be able to attest to the requirements of Section 65-B, IEA to the best of her knowledge and belief.
  5. Where a party cannot produce the certificate, she must file an application before the court to direct the concerned persons to furnish the certificate as under Section 65-B(4). This process seems to be located during the trial itself when evidence is recorded. 
  6. Only where a certificate is not forthcoming despite these directions can the requirement be waived. 
  7. Section 65-B, IEA does not speak of the stage at which the certificate must come in. Anvar's view that the certificate must accompany the material when adduced in evidence is correct, but only in the cases where a party can produce a certificate. In other cases, the court conducting the trial must take steps to get the certificate by issuing necessary directions.
  8. In criminal cases, the certificate should ordinarily be filed at the outset to enable full disclosure. At the same time, it is open for a court to allow the certificate to be filed later during the trial if there are good reasons explaining the failure to file the certificate at the outset.  
  9. For data in the nature of call records that has been seized during an investigation, ISP’s and other service providers must store that data for a period longer than 1 year and do so in a “secure” manner.
[Based on Paras 30—63 and 72 of the judgment]

Three Points of Critique
There is a lot to unpack in the decision and the separate opinion which suggests that perhaps it is time to reconsider Section 65-B, IEA as a whole. Rather than enter a longwinded discussion with lengthy excerpts (and subject myself to the fallacy of the decision itself, which is bloated with copious extracts), below are some points of critique:

  • Two wrongs don't make a right (yet again): Anvar had made a mess of Section 65-B, IEA by making a certificate mandatory when it was never the case as per the statute, and Arjun Panditrao has gone ahead and repeated that error with aplomb. On both occasions, the Supreme Court has conflated the mandatory nature of Section 65-B, IEA for the specific kinds of material it covers, with the separate issue of how the conditions in that provision be established by a party during trial. The text of Section 65-B, IEA, principles of evidence which support ease of admissibility, and just plain logic, all support a reading that a party has the option to either have a witness come in or to furnish a certificate. In Arjun Panditrao, the Court has not confronted the clear leaps in Anvar which had led that decision to introduce the need for mandatory certificates, and has thus assured that Indian law retains its position of being a discordant exception to global best practices when it comes to the admissibility of electronic evidence [A point hammered home nicely by the Separate Opinion].
  • Peculiar Add-Ons to the Anvar Regime: As referred to above, the reference in Arjun Panditrao was the result of apparent conflicts between Shafhi Mohd. and Anvar. In my view, it would be a stretch to say there was a "conflict" — Shafhi Mohd. had filled in a gap that existed within the Anvar regime by fairly suggesting that mandatorily requiring parties to furnish certificates might adversely affect the cause of justice. Arjun Panditrao has actually upheld this kernel of truth, but rather than adopt the "interests of justice" formulation of Shafhi Mohd. what we have now is a higher yardstick and parties have to file applications for courts to compel production of certificates, which the court will consider during the trial [Para 50]. Is that really a better answer to the issue though? Consider the costs of this approach — 
    • The Court has now made the entire trial setup slightly bizarre. If I don't have a certificate for the material, I can still bring it to court. But what next? I file applications seeking directions against the concerned person to file the certificate. But what about the progress of the trial? Do courts "mark" and not "exhibit" the material and continue the trial, or do they stop and get this issue sorted first? Will that not be in the teeth of an earlier Supreme Court verdict which had recommended deciding all objections during the evidence stage at the end of the process in a bid to save time? Further, what if I do not know who the concerned person ought to be, or what if the person comes ahead and disputes the factual basis (as an adverse party might very well do)? Does the court then enter into a mini-trial on the application? Either way, there is bound to be greater delay in the process as all these applications necessarily take time; 
    • The Court has suggested that the deficiency of a certificate can be rectified by making proper applications before court. But, the Court puts the cart before the horse here, because it does not consider just what is the nature of the failure to tender a certificate. If Section 65-B, IEA compliance is a mode of proof issue — as was held in Sonu v. Haryana — then it means that courts should not exclude material on this ground unless that objection is raised by a party. If so, then isn't the entire mandatory nature of the certificate requirement a little bit of a hollow promise?  
  • A Worrying Blind Spot in the Criminal Process: Arjun Panditrao helpfully notices the different kind of pressures in a criminal trial and the necessity of securing a fair trial for an accused. Towards this, the Court recommends that a certificate be filed at the outset, so that it can be shared at the stage of disclosure [Section 207 Cr.P.C.]. All this is great, till you stop to think: Wait, what happens if it's a complaint case? These constitute a big chunk of criminal prosecutions, and more importantly, complaint cases are the ones where issues about a lack of certificate can arise rather frequently. On law as well, it is not a clear position that Section 207 applies in this context, and so we are left in a strange lurch where it becomes unclear at what stage certificates must be placed on record. 
Conclusion — Frustrating Justice
A reference was made to clarify the law on Section 65-B, IEA. Arjun Panditrao answers this by telling us that Anvar is the correct position insofar as the certificate requirement is still mandatory. But that is the limited extent to which any clarity has been offered. There were many other legal issues that had arisen in the years since Anvar that required clarity, chief among them being the observations made in Sonu about the nature of any 65-B, IEA objections. But the Court has turned a Nelson's eye to these issues. Instead, what the Court has done is to leave its mandate to clarify the law and step into suggesting the practical ways in which the certificate requirement is given effect. It would appear that the Court chose to make further changes without fully appreciating the nuances of the existing architecture, where many of the "nuances" are the result of similar forays by this Court in the past. What is left behind is the wasteland of criminal procedure, which someday a different bench of Justices will hold responsible for delaying the delivery of justice itself.    

[This post was edited on July 16 to insert point 9 in the section on the holding.] 

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