Guest Post: Expert Certificates, BSA, and Electronic Evidence

(This is a guest post by Mohamed Thahir Sulaiman) 

The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal sought to clarify the legal position on the admissibility of electronic evidence by reverting to the interpretation adopted in Anvar P.V. v. P.K. Basheer, thereby reiterating the certificate mandated under Section 65B(4) as being sine qua non for its admissibility. However, despite its intention to restore clarity and consistency, this decision was criticized on inception, particularly on the court’s omission to clarify an issue hovering since its Sonu v. State of Haryana decision: Whether the production of certificate is an issue of mode of proof, or an issue of inherent inadmissibility. This issue is brought back into the limelight by a recent decision of the Kerala High Court in Alukas Jewelerry v. Anil (17.07.2025), where the court reiterated that the absence of certification is “only a curable defect,” and that an objection to its absence “relates only to a mode of proof issue.”

In this context, this post argues that introduction of expert certificate in the Bharatiya Sakshya Adhiniyam (BSA), 2023, further compounds this existing ambiguity surrounding the nature of certificate, forcing us to revisit the question: Whether the mandatory requirement of certificate as per Khotkar is still justified? I first highlight the internal tension within the post-Khotkar framework regarding the legal nature of the 65B certificate; secondly, I analyse the addition of expert certification under Section 63(4) of the BSA; and thirdly, highlight how this addition compounds the existing tension regarding the nature of the certificate. 

Ambiguity in Jurisprudence

To understand the tension regarding the nature of the certificate requirement for electronic evidence, it is necessary to trace its origins in the decision of Sonu v. State of Haryana.

While the Court had unambiguously held in Anvar P.V. that a certificate under Section 65B(4) of the IEA was mandatory for the admission of electronic records, this position was soon critiqued as being overly rigid and impractical, considering the procedural burdens already facing trial courts. As a result, subsequent decisions in Tomaso Bruno v. State of U.P. and Shafhi Mohammad v. State of Himachal Pradesh diluted the certificate requirement, departing from Anvar’s strict standard.

It was in this context that the Court in Sonu, while holding that the certificate was not necessary in the interests of justice for trials concluded prior to the Anvar ruling, drew a categorical distinction between mode of proof and inherent inadmissibility as objections to any evidence, observing that the requirement of the certificate pertained solely to the issue of mode of proof in respect of the underlying electronic evidence which was sought to be proved. This observation is significant as while the Court in Anvar, though not articulated in this language, held that the electronic evidence is in itself inadmissible without the certificate, the Court in Sonu took the position that the electronic evidence is admissible, and that a certificate should be treated merely as a procedural requirement relating to its mode of proof, rather than a substantive condition for admissibility of the underlying electronic evidence.

Given this context, even while the Court in Khotkar reaffirmed the mandatory requirement of the certificate, expressly overruling its previous decisions in Tomaso Bruno and Shafhi Mohammad, its decision was criticized for not explicitly overruling Sonu, nor clarifying as what is the nature of the certificate. While it could be argued that Khotkar, a three-judge bench, had implicitly overruled the division bench decision in Sonu, this interpretation was negated due to the three-judge bench decision Sundar @ Sundar v. State, which upheld Sonu as good law and reiterated its holding that the certificate is a matter of mode of proof, not of inherent admissibility.

As a result, the current judicial position on the admissibility of electronic evidence consists of two contradictory positions, held by two co-equal benches; While Khotkar maintains that a certificate is a sine qua non, making electronic evidence in itself inadmissible by its absence, Sundar upholds the view that electronic evidence is admissible, treating the 65-B certificate merely as a procedural requirement of mode of proof.

By failing to address this ambiguity in Khotkar, this tension has persisted and is evident even five years later in the Kerala High Court’s decision. While this tension may appear subtle, its true implications become clear with the introduction of the BSA in 2023.

Here Comes the BSA

Section 63 of the BSA has altered the law on electronic evidence, with a major change being found in the newly added schedule, which prescribes the format of the certificate. While this is largely a positive development, considering that there was lack of clarity as to what a certificate must contain under Section 65B(4) IEA, this change also complicates the law on admissibility with Section 63(4) BSA requiring the certificate to be filled both by the Party and an ‘Expert’ as provided in Part B of the certificate.  

This addition raises two critical questions: Firstly, who exactly constitutes the "expert" as found in Section 63(4)? Neither Section 63 nor the accompanying Schedule defines who is an ‘expert’ forfilling the certificate, nor is there any clarification found in the new provisions elsewhere in the BSA.

When reading the BSA collectively, however, it is seen that the only reference to an expert in the context of electronic evidence appears in Section 39(2), the Explanation to which states that the "Examiner of Electronic Evidence" notified under Section 79A of the Information Technology Act (IT Act), 2000, shall be deemed to be an expert.

Using this as an aid in interpreting the definition of “expert” in Section 63 BSA, two readings become possible. The first suggests that the Examiner of Electronic Evidence is one among several “experts” who can fill the certificate, and that other individuals are not precluded from doing so. However, this reading would be inconsistent with the larger scheme of Section 39, where sub-section (2) has specifically defined who would qualify to be an expert for electronic evidence, unlike in sub-section (1), where the term “expert” is remained undefined for general cases. This leads us to the second reading, which construes “expert” in Section 63 as referring exclusively to the Examiner of Electronic Evidence.

However, this reading is deeply problematic for two reasons. First, it may not necessarily reflect legislative intent, given that Section 39(2) of the BSA is a verbatim reproduction of Section 45A of the IEA, and it is known that the BSA’s replication of earlier IEA provisions is has not always been made consistent with the changes relating to electronic evidence (for instance, Section 15 of the BSA reproduces Section 17 of the IEA verbatim, failing to acknowledge BSA’s inclusion of electronic evidence within the definition of ‘document’). Second, the Examiner of Electronic Evidence is to be notified by the central government individually as per Section 79A of the IT Act, as can be seen by past notifications, and it is simply impossible for every electronic evidence to be certified exclusively by such government-notified experts.

Despite these problems, a plain reading of BSA, absent any judicial or legislative clarifications to the contrary, clearly provides that Section 63 certificate must be filled by an Examiner of Electronic Evidence. The fact that such interpretation seems consistent with larger statutory language, regardless of whether it was intended or how illogical it may be, highlights a crucial drafting error in the BSA. Thus, when assuming thus question to be answered according to the second reading, we see that the BSA introduces a significant procedural barrier that hampers admission of electronic evidence.

The second question that now arises is: What is the purpose of the expert certificate in the first place? The rationale behind relying on expert opinion in Section 39 is to aid the court in forming an informed, independent assessment on technical matters. However, in the 63 BSA certificate and its format given in the Schedule to the Act, Part A (to be filled by the party) and Part B (to be filled by the expert) contain the same set of information. It is thus unclear how Part B adds anything of value, when all the expert certificate does is merely replicate the information already provided in Part A. As a result, addition of Part B seems more like a procedural formality, rather than anything adding substantive value.

Additionally, if an expert certificate is already to be provided during admission stage itself, does this not make Section 39(2) itself redundant—why would the court need to refer to expert opinion on electronic evidence when the same is already certified in Part B of the certificate? 

Adding to the Ambiguity

Given this development, one must now reconsider the nature of the Section 63(4) certificate given that it is now to be filled by both the party and an expert.

Intuitively, this additional requirement may appear to reaffirm the Khotkar position: by rendering the expert certificate mandatory, it seems to strengthen the stringent requirement for a certificate as a precondition for the admission of electronic evidence. Such reading would thus align with the Anvar–Khotkar line of reasoning that courts must establish the evidence to be original and unaltered, with Part B of the certificate serving merely as an added safeguard. As per this interpretation, the certificate continues to be a sine qua non for admissibility.

On the other hand, one must remember that the entire point of expert opinion under the IEA had been a mode of proof issue; the opinion of experts under Section 45A of IEA was not mandatory for admission of electronic evidence and was simply to aid the court in assessing its admissibility when doubt arises. Thus, if this conventional purpose of requiring expert opinion still prevails, the expert opinion should also be deemed to be merely a mode of proof issue. This reading then relates back to the Sonu-Sundar line of interpretation.

These competing interpretations just go to show how the BSA has again complicated the issue of the nature of certificate even further. As discussed earlier, while this ambiguity had been lingering even in the post-Khotkar period, the law on electronic evidence was still settled to the extent that a certificate was absolutely mandatory. Such legislative additions, without addressing these pre-existing concerns, have aggravated this underlying tension, resulting in a new set of questions that courts must now resolve: What is the precise legal nature of the expert certificate under the BSA? Is it logically sustainable for Part A to be necessary for admission, while Part B is not? And more broadly, when the statutory content and structure of the certificate have been substantively altered, can the pre-BSA jurisprudence mandating its production for admissibility still validly apply?

Resolving these questions can now no longer be deemed to be a mere academic exercise, as it existed after Khotkar. If Part B of the certificate is interpreted as a mandatory precondition for admissibility, the requirement may significantly hinder the conduct of trials, delaying proceedings and obstructing access to justice. A more balanced approach, treating the certificate, particularly the expert portion, as a matter of mode of proof, would align better with principles of procedural fairness. However, as matters currently stands, there is still no clarity either from the judiciary or legislature regarding this ambiguity. 

Moving Forward

When one sees how much confusion a legislative action, such as the addition of just two words to a provision, can cause, one cannot help but recall Justice Ramasubramanian’s concurring opinion in Khotkar. As he rightly observes, while other jurisdictions in the world have adapted to the technological developments and “fine-tuned their legislations” accordingly, India’s ambiguous legislative drafting has led to considerable “judicial turmoil.”

Given that this understanding was eloquently articulated in 2020, the enactment of BSA served as a golden opportunity for the government to undertake meaningful reform in order to align the law governing electronic evidence with other jurisdictions. Rather, the government strangely, has reproduced the same IEA provisions with the addition of the vaguely defined requirement of an ‘expert’ certificate.

Considering how the ambiguity introduced by the 2000 amendment led to extreme swings in judicial interpretations, from Navjot Sandhu to Anvar, it is reasonable to foresee a similar judicial turmoil ensuing in the coming years from the simple addition of “and expert” in Section 63(4).

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.

[Taken from Ram Singh v. Col. Ram Singh, 1985 (Supp) SCC 611]

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 Anvar. It 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. 

Conclusion
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.  

Electronic Evidence and the Commercial Courts Act 2015

Electronic evidence and Sections 65-A and 65-B of the Indian Evidence Act 1872 [Evidence Act] were the subject of a four-part series on the Blog (see, here, for the first of these). I try and follow up on developments in the law to discuss them here and was pleasantly surprised when I stumbled upon an interesting anomaly that has crept in today, which I discuss here.

Section 65-B Certificates 

Recall, that Sections 65-A and 65-B of the Evidence Act provide a special procedure for determining the admissibility of secondary electronic evidence in proceedings. These were inserted in the Evidence Act through the Information Technology Act 2000.  Section 65-B postulates that in order to treat the electronic material as evidence, certain preliminary issues need to be resolved. Such as, authenticity of the data-source, proper functioning of data-extraction methods etc. The provision allowed for this information to be furnished via a Certificate. It does not require that the Certificate be accompanied by an affidavit, since it is regular for the person making the certificate to be examined as a witness during the proceedings.

The Supreme Court in 2014 through the decision in Anvar PV v PK Basheer [(2014) 10 SCC 473] held that a Section 65-B Certificate was mandatory to prove electronic material. While I continue to stick by my argument that the decision is patently incorrect, that discussion is now purely academic since the decision has quickly been adopted into the processes of law. Today, then, electronic material such as emails is filed along with a Certificate under Section 65-B, where the maker of that material certifies its correctness etc. This Certificate does not contain an affidavit. It is exhibited in evidence, and the maker regularly questioned.    

Commercial Courts Act, 2015

Enter the Commercial Courts Act, 2015 [CCA]. This was the direct result of the Report No. 253 of the Law Commission of India and was announced to some fanfare. The CCA received Presidential Assent on 31.12.2015, but has been made retrospectively operative since 23.10.2015. This Act creates a special procedure for cases involving a 'commercial dispute' [Section 2(c)] that are above a specified monetary value that each State must fix [Section 6]. Rather than create a new procedure, the Legislature, through the CCA, made wholesale amendments to the Civil Procedure Code 1908 [CPC] for cases involving commercial disputes. We are concerned with the amendments to Order XI CPC, pertaining to disclosure, discovery and inspection of documents. 

The new procedure created by the CCA requires a Declaration on Oath by the plaintiff that "all documents in the power, possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceedings initiated by him have been disclosed ... and that the plaintiff does not have any other documents in his power, possession, control or custody." [Order XI, Rule 1(3)]. The Law Commission Report referred to above cited improvements in the procedural law on the point of disclosure, and I guess this is what they went for. However, I found no discussion at all for the new Rule 6 in Order XI, which deals with Electronic Evidence and has been extracted in full below:

(1) In case of disclosures and inspection of Electronic Records (as defined in the Information Technology Act, 2000), furnishing of printouts shall be sufficient compliance of the above provisions. 
(2) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of electronic records may be furnished in electronic form either in addition to or in lieu of printouts. 
(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify

(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such electronic record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of email ids, details of ownership, custody and access to such email ids;
(f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
(g) deponent’s knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource. 

(4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be required to give inspection of electronic records, provided a declaration is made by such party that each such copy, which has been produced, has been made from the original electronic record. 
(5) The Court may give directions for admissibility of Electronic Records at any stage of the proceedings. 
(6) Any party may seek directions from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs before admission of such electronic record.

Does Rule 6 render 65-B Certificates Redundant for the CCA? 

The Declaration on Oath (i.e. a statement on affidavit) must contain all the information mentioned in Rule 6(3) for it to be accepted. While this may seem to be invoking the spirit of Section 65-B, it makes no mention of the provision whatsoever. It would be interesting, then, to compare Rule 6(3) with the requirements specified by Section 65-B that are found in the Certificate. It becomes clear that the procedure under the CCA is more exacting than the ordinary procedure under Section 65-B. Not only does the Section 65-B Certificate warrant lesser information, but it is also not on oath. 

So does Rule 6(3) render it absolutely redundant to secure a separate Certificate under Section 65-B for cases under the CCA? To my mind it does, and the CCA allows for this kind of an override  as well [Section 21]. I am told however that Section 65-B Certificates are still filed in cases before Commercial Courts together with this information that the new Rule 6 requires. That this is creating confusion is made apparent upon reading the order of a Single Judge of the Delhi High Court in Eli Lilly [CS (Comm) 1472/2016, order dated 09.11.2016]. Repeatedly, an affidavit under Section 65-B is referred to, or the certificate is constantly treated as being an alternative word for affidavit: "counsel for the plaintiff states that such a certificate/affidavit was not filed ... Such certificate/affidavit under Section 65-B" and so on. 

Endlaw, J. in passing refers to how the claims of the counsel ignored clear precedent perhaps because it pertained to criminal cases without considering that the Evidence Act applies to both civil and criminal proceedings equally (referring to the Division Bench decision of the Delhi High Court in Kundan Singh). I think he may be on to something bigger. It is no coincidence that the Evidence Act has rarely been amended through the vehicle of procedural law through time. Legislatures have been careful to maintain the equal treatment it metes out to both civil and criminal proceedings in the context of questions of admissibility and proof. So, while the standard of proof might have been different in civil and criminal cases (balance of probabilities versus proof beyond reasonable doubt), the Evidence Act ensured that how documents and material became evidence was common unless mentioned otherwise. The CCA has ignored that precept, and has created a situation where commercial cases are being subjected to stricter rules of proof than other cases. It would be ideal for this to be addressed by a bench of higher strength, or the Supreme Court, to put the confusion to rest before any egregious consequences ensue.

(hat tip to Suveni Bhagat, Viraj Parikh, and Aditya Vikram Singh)

Delhi High Court on Section 65-B, Evidence Act

A Division Bench of the Delhi High Court recently delivered a decision with big implications for the application of Section 65-B of the Indian Evidence Act 1872. Kundan Singh v. State [Crl. Appeal No. 711/2014 decided on 24.11.2015] was an appeal against a murder conviction which involved appreciating electronic evidence. Black bags with bodies were recovered, and a chain of events was recreated using electronic evidence, among other things, which linked the Appellant with the crime. The Appellant contended the Call Detail Records (CDRs) were incorrectly relied upon by the Trial Court as 65-B certificate was not contemporaneous to creation of the material. This contention prompted a thorough discussion of Section 65-B, which leads to this post. 

Re-Understanding Section 65-B 

The relevant part of the decision begins from Paragraph 30. Here, after copying the provisions, the Court makes an important observation of the intertwined nature of reliability and admissibility stages in Indian evidence law, and places Section 22-A [a provision making admissions about contents of electronic records relevant] in the reliability domain. But this is not why I describe the judgment as 're-understanding' Section 65-B. This is because the Court adopted a novel approach by looking at clause (5) of 65-B before turning to the crucial clause (4). The Court looks at clause 5 because "the said Section is relevant for interpreting sub-sections (1), (2) and (3)." It considered 65-B(5)(a) as creating a difference between processes automatically feeding data to computers as opposed to processes which require human intervention. Given the nature of data involved in the Appeal was a CDR, this distinction played an important part in the Court's conclusions of allowing the evidence.

After this we move to 65-B(4), and here again the Court goes ahead and re-writes the text of Section 65-B by authoritatively stating that "the certificate under sub-section (4) to Section 65B must state the following [emphasis supplied]." We find at Paragraph 38 the judges giving us four clearly laid out conditions inexactly mirroring those in Anvar. The gap widens further as the question of the certificate being issued simultaneously with production of the computer-output is taken up. The Division Bench found no such requirement in Anvar, which said "such a certificate must accompany the electronic record ... pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence." Determining this issue obviously turns on how one views the words 'produced in evidence'. The Division Bench understood 'production' to mean producing the electronic record for it to be marked in evidence, and not its mere filing in court as part of the record. So what this means is that the police don't need 65-B certificates when they file emails in a charge-sheet, but need to provide 65-B certificates when those emails are to be exhibited before court for them to be considered evidence. Therefore, certificates can also be produced while exercising powers under Sections 311 and 319, Cr.P.C. The only point where the Division Bench adopted Anvar was in its conclusion that the procedure under Sections 65-A and 65-B is special and should solely govern production of such material as evidence.

Separating Admissibility from Reliability
A part of the decision also considers the hearsay rule in the context of electronically generated material. The fact that CDRs were in question made the court distinguish between electronic records automatically created and those requiring human intervention (a distinction conveniently read into the statute as I observed above). If, then, someone not involved in the creation of that record comes to depose about it, would their testimony be hit by the hearsay rule? To answer this, the Court highlights the importance of making an assertion while considering hearsay objections. It is one thing to say that I heard X say Y murdered him. But me stating the CDR adduced is created from a bug-free device does not have the same bearing. Hearsay questions the authenticity of the evidence - the authenticity of a CDR really doesn't depend on what the manager says but on the computer processes. As Section 65-B raises questions of the accuracy of these processes, the Court cleverly uses this as a segue way to drive home the point that 65-B remains an issue of admissibility, not reliability. It stresses how compliance with Section 65-B is not the end of the picture; the reliability of the same is yet to be determined.

What to Make of this?
For one thing, it would be remarkable if this decision is not taken up to the Supreme Court given the stakes involved. As for the Court and its analysis, there appears a repetition of old faults. There is again a disregard for the statute. The interpretation of 65-B(5) seems clearly wrong to me, as the clause makes no allusion to differences between data automatically gathered and data fed by humans. Rather, it speaks of data being entered either directly into the computer or by way of another device (say a pen-drive), "with or without human intervention". This error may prove costly, as this difference of automatic vs. man-made data is pivotal to the conclusions arrived at. Here again I find no critical examination of whether 65-A and B exclude the other provisions altogether. One can perhaps wave this aside by virtue of Anvar controlling the field. It would have helped, though, if the Court followed the same ideas on what a 65-B certificate needs.

The Division Bench also disagreed with the idea that Anvar prescribed contemporaneous certificates although that understanding seemed most closely attuned to the judgment. I consider this disagreement, together with the general discussion on admissibility vs. reliability, very valuable and an attempt to steer the law back on course. The fact that Section 65-B was introduced to ease the process of introducing computer output as evidence seemed not lost on the Court, which sought to leave more touchy questions for the reliability stage. The treatment of CDRs and other data produced by automated processes as a separate class is in tune with the general aim of easing the use of such evidence in trials. [One may look at observations made by the UK Law Commission in 1993 on Hearsay in Civil Proceedings, where it considered the English equivalent of Section 65-B.] Perhaps most laudable is the attempt on part of the judges to reaffirm the lines drawn between separate phases of evidence during trial in a context [electronic evidence] where it seems those lines were drawn on sand. The hearsay discussion was important only for this purpose, and one hopes the Supreme Court soon adopts this position for it to get further legitimacy.