Guest Post: Flawed Vision — Rethinking Eyewitness Identification in Indian Criminal Trials

(This is a guest post by Viraj Thakur)

How much weight should a 7-year-old memory carry in a murder trial? Courts in India have often answered: enough to convict.

On 29 July 2025, dealing with a case concerning the Godhra Riots of 2002, the Gujarat High Court (“HC”) in Sachinbhai v. State of Gujarat had the opportunity to elucidate on the law surrounding Test Identification Parades (“TIPs”) i.e. identification of suspects by eyewitnesses, outside of court, and Dock Identifications (“DIs”) i.e. the identification of suspects in court by eyewitnesses. While the HC, on facts, rightly refused to rely on identification in my opinion, it failed to engage with foundational issues: how time, stress, and suggestibility undermine visual memory, despite scientific consensus on these. This gap between evidence law and memory research poses a direct threat to fair trial rights for an accused, who may be convicted solely on the basis of a DI.

 

I argue that the effect of delays on eyewitness memory and the impact injuries/weapons have on accuracy of eyewitness identification are overlooked by courts, by referring to key precedents on TIPs. Consequently, I argue that courts must actively bear in mind that the standard to admit DI without a TIP ought to be very high. While courts do occasionally recognise this, a more well-reasoned rationale coupled with scientific evidence may make for a fairer process.

Introduction to TIPs and DIs

TIP is an eyewitness identification out of court made relevant under Section 7 of the Bharatiya Sakshya Adhiniyam (“BSA”). It is relevant for purposes of corroborating substantive evidence of eyewitness identification in court i.e. DIs (Daya Singh v. State of Haryana, ¶ 11). A TIP in particular is primarily meant to help investigators check if they are on the right track regarding the accused’s identity (Dana Yadav v. State of Bihar, ¶ 37). They are ordinarily held at the instance of the investigating officer (Dana Yadav, ¶ 5) and the accused has no right to ask for a TIP to be held, though courts may grant TIPs on an application if they believe it prudent to do so (ibid, ¶ 14). However, DIs have low probative value if uncorroborated, unless DI is of “sterling quality,” especially when the accused is a stranger to the witness (Sachinbhai, ¶ 44).

Reconsidering Time and Anxiety in Assessing Eyewitness Identification Reliability

Time elapsed between the crime and the identification and consequent memory decay

It is well-established that delays can affect the reliability of eyewitness identification. The delay may arise in holding the TIP or in the DI ultimately held in court. In Raja v. State, it was held that the impact of delays is a fact-based inquiry (¶ 14). However, if it can be demonstrated that a witness has an “enduring impress” of the identity of the suspect, then DI, even seven years after the crime, can be considered reliable (Daya Singh, ¶ 14). This “impress” often arises from sustained interaction or noticing distinctive features of the accused (¶ 23). However, if the testimony is unreliable or the suspect had changed their appearance, even a two-year delay would be fatal (¶ 25).

However, I argue that the theory of “enduring impress” overlooks the impact delays have on eyewitness memory.

 

Memory research shows that recollections fade and distort over time, unlike video recordings.[i] The greater the time between the crime and identification, greater the chance of false identification (ibid, pp. 23). As Gambell argues, repeated questioning, multiple recounts of the event, and multiple identifications, lead to changes in the memory of an eyewitness. Eyewitnesses may add details under the assumption that this “must have happened” (pp. 190-1). This is done by the eyewitness simply to make sense of the event and to avoid appearing as untrustworthy.

 

Consequently, given that verbal and pictorial information tend to be forgotten as time passes[ii] and that recollections of physical attributes (such as age, hair colour, complexion, height, etc.) are usually inaccurate (pp. 298-9), it is clear that delays have an adverse impact on the reliability of eyewitness identifications.

 

This becomes especially concerning given that with time, eyewitnesses grow more susceptible to suggestive cues – whether from police, environment, or internal bias – making delayed identifications less reliable (pp. 323-4).

 

This suggestiveness may be inherent in the process, such as in DIs, wherein only one person is shown to the eyewitness for identification. This is suggestive because the identity of the police suspect is inherently obvious, if there is only one “option” for an eyewitness to choose from (Perry v. New Hampshire Amicus Brief, pp. 24).

 

Suggestiveness may also arise due to the actions (subconscious or conscious) of the police, who may present the suspects differently from the fillers. For instance, in Tahir Mohammed v. State of MP, the suspects were put up with fetters connected by rods, while the fillers in the line-up were unfettered (¶ 8). Or, in case of TIPs, police personnel may indicate their approval / disapproval of a particular identification by the eyewitness through verbal or non-verbal cues (pp. 273).

 

Suggestiveness may even arise due to the psychology of the eyewitness – the desire to bring a criminal to justice, to exact vengeance upon them, or to find a scapegoat (pp. 367). It may arise due to the behaviour of the suspect themselves. Suspects are incentivised not to stand out and therefore may appear to be most anxious, standing further apart from the rest of the group, or receiving the most “looks” from the others in the lineup (pp. 319). Hence, the greater the delay, the more susceptible the eyewitness to suggestive cues.This further compromises the reliability of their identification.

 

Therefore, convicting a suspect based on a DI seven to eight years later, as in Daya Singh, is arguably incorrect. It would be a conviction based on unreliable evidence.

Stress & Anxiety due to Weapons and Injuries

The SC has held that eyewitnesses being injured would allow them an opportunity to observe a suspect, therefore overcoming problems posed by delays.[iii] In other words, being injured is a relevant factor in holding that a particular eyewitness had an “enduring impress” of the accused. In Pargan Singh v. State of Punjab, it was held that being in a near-death experience and sustaining injuries would mean seeing the suspect for merely 90 seconds would make for a sufficiently reliable DI, even with a delay of 7½ years (¶ 17). The SC specifically noted that “[t]he testimony of an injured witness requires a higher degree of credibility” (ibid, ¶ 19).

 

This goes against well-established evidence to the contrary. If a weapon is used to threaten / injure the eyewitness in committing a crime, most of the eyewitnesses’ attention is focused on the weapon and not the suspect (pp. 276). Stress and anxiety adversely affect the ability of a witness to recall, narrowing their attention – not the other way round (pp. 694). This becomes all the more concerning when “various factors that affect eyewitness accuracy often interact to compound the risk of mistaken identification” (Commonwealth of Pennsylvania v. Walker Amicus Brief, pp. 18). Therefore, in Pargan Singh and Daya Singh, delays coupled with injured eyewitnesses ought to render eyewitness identification, whether through TIPs or DIs, extremely unreliable – to the point, I suggest, that the results of such identification ought to be disregarded.

Conclusion

I have argued that Indian courts often overestimate the reliability of eyewitness identification. Long delays, and high-stress circumstances – especially where weapons or injuries are involved – distort memory. Scientific research suggests that such identifications are prone to error, yet courts continue to rely on them without adequate safeguards. Courts must adopt stricter evidentiary standards for visual identification – particularly DIs – or risk legitimising wrongful convictions based on flawed memory and implicit bias.

 

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[i] Arne Trunkell, Reliability of Evidence (Beckman 1972) 21.

[ii] Jessica Lee, ‘No Exigency, No Consent: Protecting Innocent Suspects from the Consequences of Non-Exigent Show-Ups’ (2005) 36 Columbia Human Rights Law Review 755, 759-60.

[iii] See Dana Yadav [8]; Raja [22].

Guest Post: Competence of Child Witness - A Tale of Judicial Discretion

(This is a guest post by Kaustubh Garg)

S. 118 of Indian Evidence Act 1872 [“IEA”] provides powers to the court to render a witness incompetent if she is unable to comprehend questions or give logical answers by reason of “tender years, extreme old age, disease (body or mind), or any other cause of same kind”. However, this provision and its interpretation by courts is not without problem. This post seeks to explore the position of competence of witnesses under IEA. It argues that S. 118 confers wide discretion in courts to conduct competency examination of witnesses, which results in rendering incompetent child witness’ testimony admissible. The first part argues that courts have merged competency with credibility while interpreting S. 118. The second part highlights that reliance on cross-examination and witness demeanour is an ineffective standard to judge competency of a witness. The third, and last, part suggests an amendment to S. 118, to make the examination of competence of witness mandatory. The scope of the paper is limited to analysing the competency of tender-age children (at most, 11-12 year olds).

Conflating Competency And Credibility 

The purpose of competency requirements is to determine child witness' intelligence, memory power, and capacity to observe events [see R. Selvaraja v. S. Latha ¶10 (Madras HC, 2013)]. The child must possess cognitive skills to decipher the event she witnessed, and recount memories accurately before court during trial. Moreover, the child must comprehend, and give intelligent answers to questions about the occurrence of events, for which she is called to testify. The competency hearing also reflects a child’s understanding of difference between right and wrong.

As opposed to adult witnesses, child witnesses pose inherent reliability risks in their testimony because of their susceptibility to tutoring, inability to distinguish between real and imagined events, and weakening or twisting of memory over time. In India, where the legal system is ridden with delays, there is a greater risk of a child's memory being prone to self-distortion or manipulation. In addition to the above reasons, examining competency of a child witness becomes even more necessary in child sexual abuse cases, where the sole testimony of victims can determine the guilt of an accused.

S. 118 of IEA confers wide discretion to courts in terms of examining the competency of a witness through voir dire examination. In Rameshwar Singh v. State of Rajasthan (SC, 1951), it was held that trial courts possess powers to decide whether a voir dire examination is necessary. However, the failure to conduct this examination is regarded as a mere procedural irregularity and does not make testimony of a child witness inadmissible. The power to determine competency entirely lies within the discretion of a trial court judge, which inevitably has a considerable influence on the outcome of the case. Furthermore, the court have tended to ignore their responsibility to examine the capacity and intelligence of child witness through preliminary examination.

In exercise of this wide discretion, courts have muddled the distinction between competency and credibility / reliability stage (with some exceptions). For instance, in Himmat Sukhadeo Wahurwagh v. State of Maharashtra (SC, 2009), the Court held that “Sanjay (the witness) was aware of what had happened in the answers given by him in the course of his evidence which clearly proved that he was a competent witness”. This judgment is not an aberration, rather it is reflective of a general trend of courts have consistently examined the competency during witness testimony, relying upon evidence, demeanour, and response to cross-examination [see, Janardhan Tewary v. State of Bihar ¶5 (SC, 1970); S. Anbazhagan v. State ¶24 (Madras HC, 2017); Kabiraj Tudu v. State of Assam ¶10 (Gauhati HC, 1992); Sanjay Kumar v. State (SC, 2014)].

It must be highlighted that competency is a pre-requisite to admissibility and reliability of evidence. Competency determines the probative value of a witness, which ensures that incompetent witnesses are not allowed to testify in court. Determining competence is not an assessment of truth or accuracy of testimony, rather it involves ascertaining the capability of a witness in form of observation, recollection, communication, etc. which is a pre-cursor to giving reliable testimony. Issues of credibility and reliability only affect the weight ascribed (probative value) to the evidence of a witness by court on the basis of accuracy or inconsistencies. The above approach of Indian courts aligns with Wigmore’s requirement of competent child witnesses. Wigmore suggests that the fact-finder must evaluate credibility of a child’s testimony just as any other witness, thereby arguing for exclusion of competency requirements. Moreover, he states that a logical way is to “put the child upon the stand and let the story come out for what it may be worth” because of a child's tendency to speak her mind straightforwardly.

As a result of Wigmore’s influence, the interpretation of courts has been to exclude the barriers to admissibility of testimonial evidence of child witness. The credibility risks can be effectively examined during trial because they only become apparent in the course of testimony. Moreover, any minor inconsistencies will not affect the reliability of other aspects of witness’s testimony. In contrast, the risk relating to witness’ memory distortion, lack of capacity to observe, recollect etc. can be examined before trial and failure to satisfy the requirements would exclude testimony entirely from the trial. 

By examining competency and credibility together, courts have conflated two entirely different aspects, which is incorrect from the procedural aspect of the law.

Increasing Reliance on Cross-Examination – Not A Sufficient Alternative

The courts have laid reliance on the cross-examination and demeanour of the witness to test the competency of child witness. Firstly, cross-examination is an ineffective exercise in absence of a voir dire examination of child witnesses. Research studies analysing testimony of child witnesses highlight that repeating the mere details of a non-event (i.e. fingers were caught in a mousetrap) repeatedly (7-8 times) in front of children would actually lead to a situation where children started believing in the happening of that non-event even if the children had never suffered any harm from the mousetrap. Even though the event did not occur, the “memory” of the event was produced by researchers. As observed earlier, a child witness is prone to suggestibility, and by repeating the same story to the children the researchers created a “real event” in their mind. 

The purpose of cross-examination is to create a distinction between truth tellers and liars and its effectiveness to discredit a false witness cannot be doubted. However, cross-examination is unlikely to be effective where a witness believes her version to be true. In cases where the child witness has been thoroughly tutored, or where the memory is 'produced', a child actually believes her memory of the event as demonstrated by the above research. More importantly, if the child hears the story same repeatedly, she becomes “will commit it to memory and will be able to retell it upon request”. Since she believes the story to be true, the witness is unlikely to falter in direct as well as cross-examination. Moreover, child witness’ demeanour will reveal no indication of falsehood because of the sole reason that the witness does not know that story is false. The same rationale was adopted in relaxing oath requirements for children because of their tendency to speak what they believe irrespective of whether it is true or false. Perhaps Wigmore’s understanding of the child competency requirement overlooks the possibility of tutoring, which is unlikely to be discovered during cross-examination. Therefore, pre-trial examination becomes necessary to assess the memory, intelligence of the child witness. 

Even if a court highlights some inconsistencies in the tutored part of testimony, the court does not exclude the whole evidence from trial. For instance, in Gagan Kanojia v. State of Punjab (SC, 2006), the Court severed materially inconsistent portions of the testimony from the rest. Although a part of testimony was unreliable, the Court held that the remaining part can be taken into consideration for corroborative purposes [see, Jharna Debnath v. State of Tripura ¶24 (Gauhati HC, 1999); Damber Singh Chhetri v. State of Sikkim ¶132 (Sikkim HC, 2018)]. The testimony will still have persuasive value, which along with other available evidence, will influence the result of the trial. The competency examination would have ensured that testimony of an incompetent child witness is inadmissible in court. As observed earlier, admissibility of evidence of an incompetent witness can result in prejudice to the accused in the trial.

Secondly, courts have provided special exemptions to the children while giving testimony, which hinders the effective cross-examination of a witness. Various measures have been provided to safeguard the child witness from being traumatised by needing to look at the accused, such as screens, videotaped testimony, and closed-circuit television [see Sakshi v. Union of India ¶27 (SC, 2004)]. Moreover, with the onset of COVID-19, virtual hearings are extended to all cases and not just restricted to cases involving child victims. Since the past two years, the testimony of witnesses (including children) are being recorded through video-teleconference (‘VTC’). While the use of VTC does provide an opportunity for cross-examination, the medium significantly reduces the effectiveness of this aspect of a trial.

Effective cross-examination requires not only the chance to ask questions of witnesses, but also the ability to communicate with them and perceive their answers. VTC technology falls short in this aspect of engagement because it does not allow parties to efficaciously observe oscillations and inconsistencies in the course of giving testimony. The reduction of a courtroom testimony to television image does not provide an equal opportunity for observation of non-verbal cues such as facial expression, body postures, and eye contact etc., which are quintessential for examining witness’ demeanour. Moreover, courts have to face technological issues which interferes with the recording of testimony and observing demeanour. Virtual trials even provide an opportunity for child witnesses to give evidence or answer questions using material placed before them, which can frustrate the entire purpose of cross-examination.

Courts have put further limitations by allowing cross-examination only on the basis of written questions submitted to a judge for child witnesses on occasion. Even though it is necessary to guard child witnesses from potential traumatisation, these guidelines can influence proceedings in ways that may be helpful to child witnesses in the form of exercising control over questioning and cross-examination, examining the difficulty of questions, etc.

Apart from the best interests of witness, courts also need to ensure that an accused gets a fair trial and prevent false convictions. Adopting a no-enquiry approach to examine competency of child witnesses or by conflating it with credibility, courts have relaxed preliminary requirements for child witness testimony. As observed above, cross-examination is ineffective in determining competency or possibility of such witnesses being tutored, and so the excessive reliance on this testimony for determining convictions can lead to devastating outcomes. 

Courts have returned convictions on the sole testimony of child witnesses (even 6 year olds) [see, State of UP v. Krishna Master ¶6 (SC, 2010); Ratansinh Dalsukhbhai Nayak v. State of Gujarat (SC, 2003); Hari Om v. State of UP ¶22 (SC, 2021)]. It cannot be doubted that child sexual abuse presents unique legal concerns. Unlike other crimes, there will be little or no evidence apart from the victim's testimony. The current system of determining guilt on the sole testimony of the child without examining its competency is seriously flawed, and consequences of not conducting voir dire examinations are dangerous. It becomes necessary that the pre-trial examination must be mandatory, which will make a realistic assessment of witness’ development maturity and ability to provide reliable information in a trial. 

Reviving the Voir Dire Examination

Earlier parts of the post show how not conducting voir dire examination of child witnesses can led to dangerous outcomes at trial. Indian courts have seldom conducted preliminary examination to examine competency of a witness [see, P. Ramesh v. State ¶12 (SC, 2019); Dinesh Chand v. State (Govt. of NCT of Delhi) ¶6 (Delhi HC, 2019). However, those examinations were only limited to questions related to name, parents’ name, class, day, date etc. These type of questions makes little or no attempt to accurately examine the developmental maturity or ability to observe, memorize or recollect series of events. Most courts have a set template of questions which are not a true assessment of a child's ability and competence, thereby affecting the quality of the testimony. 

Before conducting preliminary examinations, the court must obtain information about the child, by conversing with family members (if they are not engaged in the incident), other caretakers, or educators. Also, information can be obtained from the school, pre-school, neighbours of children which might give potential areas for inquiry of the child witness. Based on the research of Dr. Sherrie Bourg Carter, child witness ought to be asked to explain specific events of life such as vacations, birthdays, or about any specific school events. The timeline of events must be similar as events alleged in the criminal case. The child’s answers can be compared with the description by an adult to determine accuracy of events. These questions would test the child’s observation of that particular incident, and its recollection before court. Since criminal trials are generally delayed, it also helps in testing the memory of a child and account for any distortion that takes place. Because questions are not known to the child and are of a general nature, the question of tutoring or preparing about these questions is ruled out. Although these questions will be easy to answer, this will provide information about competency of a child witness. More importantly, asking informal questions of general nature would likely result in establishing truth and rapport and familiarising witness with the courtroom environment. 

The above tests cannot be made mandatory because of S. 118 of IEA, which allows discretion to the judges to conduct the competency tests. Which is why I suggest an amendment be made to S. 118 of IEA which makes voir dire examination mandatory for tender years’ children. For child witnesses, incompetency must be the rule and competency is the exception.

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.