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.  

Guest Post: In Defence of Sonu v State of Haryana

(I am happy to host a Guest Post by Mr. Lakshya Gupta, who is a 2017 graduate of the National Law University, Delhi, and is currently practising criminal law in Delhi) 

As has already been discussed on this blog, Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473, 'Anvar'] held that the only way to make electronic records admissible by way of secondary evidence is by adducing a certificate under Section 65-B of the Indian Evidence Act 1872. This blog has argued that:

a)   As per Anvar, the certification under Section 65-B is the only mode of proof for secondary evidence of electronic records;

b)  Sonu @ Amar v. State of Haryana [AIR 2017 SC 3441, 'Sonu'] made a distinction between ‘inherent admissibility’ of evidence and its ‘mode of proof’ and held that the requirement of certification under Section 65-B pertained to the latter and not the former;

c)  Ruling in Anvar must be interpreted to mean that absent a certificate under Section 65-B, secondary evidence of electronic record is rendered inherently inadmissible;

d)   Since Sonu which is a two-judge bench, ruled contrary to point c), it is at fault in not applying the law laid down by Anvar, which was decided by a higher bench of three judges.   

I am in agreement with points a) and b). I, however, contest point c) and consequently d). Further, I argue that Sonu applies Anvar retrospectively and decides a different issue than the one determined by Anvar.

The ruling in Sonu

Sonu relies on a two-judge bench decision of the Supreme Court in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Anr. [(2003) 8 SCC 752, 'Venkatachala'] wherein a distinction was been made between admissibility of a document in itself (inherent admissibility) and the manner or mode through which it is sought to be made admissible. The Court in Venkatachala held that objections with respect to the former could be raised for the first time even at the appellate stage while objections with respect to the latter could not be raised once evidence had been tendered. According to Venkatachala (SCC version, paragraph 20), the:

“… crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular ...”

Viewed in light of the reasoning behind Venkatachala, the ruling in Sonu is that since the objection to admissibility (absence of certificate under Section 65-B Evidence Act) of the electronic record (paper printouts comprising Call Detail Records – secondary evidence of their contents) dealt with the mode of proof, such an objection could not be entertained at the appellate stage, if the same was not raised at the time when the electronic record was submitted in evidence at the stage of trial. This is because had an objection been raised at the trial stage, that would have presented an opportunity to the prosecution to cure the defect as to the admissibility at that stage itself. Since no occasion would be available to cure the defect at the appellate stage, it would be unfair to the prosecution if the evidence on record at the time of trial and not objected to then, was omitted from being considered at the appellate stage.

The ruling in Anvar cannot be interpreted to mean that absence of certificate under Section 65-B renders secondary evidence of electronic record inherently inadmissible

From a close reading of Venkatachala and Sonu, it appears that the question of inherent admissibility concerns the nature of the evidence (electronic record) and is separate from the question in what way this evidence may be made admissible in court (as either primary or secondary evidence). So the question that whether printouts comprising Call Detail Records (electronic record in Sonu) or a CD with recorded files (electronic record in Anvar), is something that can be admitted in evidence, decides the inherent admissibility of such CDR or CD. Anvar does not deal with this question, but addresses whether these electronic records can be read in evidence without a certificate under Section 65-B of the Evidence Act. Anvar, as correctly pointed out by this blog, unequivocally answers this question in the negative.

The holding that this is the only manner in which an electronic record by way of secondary evidence may be read in evidence cannot be interpreted as a comment on the nature or inherent admissibility of the electronic record. While a certificate under Section 65-B certainly has a bearing on the authenticity of the electronic record, it does not in any manner, alter or affect the contents of such CD or CDR. Whether or not a certificate under Section 65-B is supplied, the nature of the CD or the CDR remains unchanged. The question of how you establish its authenticity is different – and while State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru [(2005) 11 SCC 600] provided the option of establishing authenticity with or without a certificate, Anvar held that authenticity can be established only through certification under Section 65-B. This question of establishing the authenticity relates to the mode of proof, the only issue discussed in Anvar. Therefore, contrary to what was argued by this blog, I submit the judgment in Anvar does not deliberate on the issue of inherent admissibility or the nature of an electronic record.  

I must also counter a possible response. An argument may be made that since Section 65-B is a deeming provision, an electronic record can be deemed to be a document only if conditions under Section 65-B are satisfied. If the electronic record fails to meet these conditions, it does not qualify as a document and hence becomes inherently inadmissible in evidence. However, as was held in Anvar itself, the deeming of an electronic record as a document depends only on conditions under Section 65-B(2) and not on the certificate under Section 65-B(4). It must be noted here that conditions under Section 65-B(2) relate to the circumstances of the ‘computer’ and the manner of production of the ‘electronic record’ by such ‘computer’. If these circumstances and manner of production exist, then only the electronic record can be deemed to be a document as per Anvar. Now, the question of inherent admissibility of the electronic record would depend on the existence of these circumstances, and not on the manner in which they can be proved before the Court. Even if the only manner in which they can be proved to exist is through a certificate, as was probably held by Anvar, their existence itself determines the inherent admissibility of the record and not the manner in which their existence is proved. It must also be noted that Anvar nowhere expressly observes that an electronic record cannot be deemed to be a document absent a certificate under Section 65-B.  

Sonu applies Anvar retrospectively and decides a different issue that the one determined by Anvar

Sonu recognises that since the law laid down by Anvar applies retrospectively, requirement of a certificate under Section 65-B was necessary to make secondary evidence of electronic records admissible – and that must be deemed to have been the position of law from the introduction of Section 65-B in the Evidence Act. Since this was the position of law, the objection as to admissibility (failure to submit certificate under Section 65-B) should have been raised at the stage of tendering of evidence. Since the objection had not been raised during trial at the stage of evidence, it could not be entertained at the appellate stage.

So basically, the Court is telling the accused/appellant that – we agree that the position of law is what Anvar held, and so you ought to have argued it at the time when evidence was being lead during trial, and you cannot argue it now, at the appellate stage if you didn’t raise the argument during trial. Hence, the Court in Sonu in fact realises it was bound by in Anvar and reaffirms it.  

In Anvar, there is no doubt that the plea of non-admissibility of electronic record has been accepted by the Supreme Court at the appellate stage. It is crucial here to note that the reasoning of Sonu does not preclude the Court from entertaining objection as to admissibility of the electronic record at the appellate stage, but it bars the defence from raising that objection at the appellate stage when this was not taken at the time of tendering of evidence. Now, this would be a legitimate course of action available to the Bench in Sonu if it can be established that Anvar did not consider the issue determined by Sonu, which is - whether a plea regarding non-admissibility of electronic records (due to absence of certification under 65-B) could be taken at the appellate stage if the same had not been raised when evidence was being tendered during the trial. A look at the High Court decision in the Anvar case (Election Petition No. 3 of 2011 in High Court of Kerala) shows that the plea regarding non-admissibility of CD’s was raised by the petitioner even in the High Court.[1] 

Sonu also notes that Venkatchala was a civil case, and also places reliance on the three-judge bench decision in PC Purshothama Reddiar v. S. Perumal [(1972) 1 SCC 9, 'Reddiar'] which pertained to admissibility of police reports in a criminal trial. The defence in Reddiar had objected to the admissibility of police reports (marked in evidence without any objection during trial stage) on the ground that the police officials who had covered those meetings had not been examined. The Court held it was not open to the accused to raise an objection about the admissibility of the police reports when no such objection was taken at the time when evidence was being lead during trial. While Reddiar did not make a distinction between inherent admissibility and mode of proof, it is clear that the Court was unwilling to entertain objections pertaining to admissibility when they had not been raised during trial. Hence, it was legitimate for Sonu to decide an issue which was not considered in Anvar and the determination of which is in consonance with a bench co-ordinate to Anvar.

As has been correctly identified on this blog, Sonu is concerned that retrospective application of Anvar is ‘not in the interests of administration of justice’ for a large number of criminal cases that have already become ‘final’. However, I disagree that Sonu was a misstep, and submit it stands on firm legal footing.    

---

[1] The argument in the High Court was that since the CD’s were secondary evidence of the content of the recordings contained therein and since primary evidence of this content (recordings created and stored on mobile phones, digital camera or the computers to which they were transferred) was not submitted in court, the secondary evidence (CD’s) was not admissible since it could not be relied upon as an authentic source.

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.

Electronic Evidence - Part 4

[this post looks longer than it is due to multiple extracts, please do read till the end]

Tape-recorded evidence hogged the spotlight for the past few weeks on this blog. I looked at how the Supreme Court dealt with the admissibility of such evidence, and argued that the Court adopted an incorrect approach. That approach possibly stemmed from a belief that the Evidence Act provided insufficient protection against the easily-manipulable electronic evidence. Crucially, then, Parliament amended the statute to insert Sections 65-A and 65-B. This concluding post now looks at how the Supreme Court approached electronic evidence in the wake of this legislative reform in the field.

The (Much-Needed?) Amendments - 65-A & 65-B

The Information Technology Act, 2000 introduced the concept of an 'electronic record', and amended the Evidence Act by way of its Second Schedule. The amendments did not expand the definition of a document to include 'electronic record' but inserted a separate explanation in Section 3 of the Act. Sections 65-A and 65-B were inserted after Section 65, and though lengthy, it is necessary to extract parts of both here with some emphasis supplied:

Section 65-A: The contents of electronic records may be proved in accordance with the provisions of section 65B

Section 65-B: 

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. 

(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.

.....

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -

(a) identifying the electronic record containing the statement and describing the manner in which it was produced; 

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, 

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

Parliament seems to have been greatly influenced by the U.K. Civil Evidence Act, 1968 owing to the similarities between Section 5 of that Act [which has since been repealed] and our Section 65-B. Reading the text, what seems clear is that concerns over accuracy had been statutorily redressed. Only if accuracy conditions in Section 65-B(2) were satisfied would the 'computer output' [such as tape-recordings] be considered a document, and be admitted as evidence. 

Interpreting Sections 65-A and 65-B - The Text

This is an interesting set of provisions when looked at together, and in the larger scheme of the Evidence Act itself. It is difficult to argue that after insertion of this legislative packet, one could still turn to Section 65 for introducing Secondary Evidence from electronic records in evidence. Those arguing for this might rely on the 'may' in Section 65-A. I think there is a different explanation for that. Section 65-A was designed to mirror Section 61. The operative phrase does not mean there are other ways to prove the contents, but that well one may not prove them as equally as one may.

Section 61: The contents of documents may be proved either by primary or by secondary evidence
Section 65-A: The contents of electronic records may be proved in accordance with the provisions of section 65B [emphasis supplied]

Section 65-B primarily (a) lays down statutory conditions to be satisfied to deem computer output as documents, and (b) provides an alternative to method to examining witnesses for the purpose of satisfying these conditions. Reading Section 65-B(4) - which talks about the certificate - its apparent that the certificate idea was brought in to quicken the admissibility process when outputs came from large computer systems (imagine email printouts). You need not examine a witness to satisfy all four conditions in Section 65-B(2), and can instead adduce a certificate by "a person occupying a responsible official position in relation to the operation of the relevant device" for "any of the following things" described in the section.

Anvar and a Fearful (and Bizarre) Reading of the Text
What did Court do in Anvar? Many things, in fact. First, it overruled State of NCT (Delhi) v. Navjot Sandhu [(2005) 11 SCC 600] to the extent it allowed recourse to Sections 63 and 65 for introducing Secondary Evidence of the electronic variety. Anvar places section 65-B as the exclusive method. Second, the Court held that Section 65-B won't be attracted where Primary Evidence of electronic records exists. Third, the Court held that Section 65-B only allowed for evidence by certificate, and this is where things get bizarre. The Court held:

Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) There must be a certificate which identifies the electronic record containing the statement; 
(b) The certificate must describe the manner in which the electronic record was produced; 
(c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and 
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

If we scroll up, and read the text of Section 65-B(4), its clear that the Court engaged in some serious re-drafting here. The statute requires a certificate to do "any of the following things" listed in Section 65-B(4), which the Court somehow makes "all of the following". The Court also inexplicably misread the provision to make certificates mandatory. A plain reading of Section 65-B(4) shows the certificate was an alternative method for exhibiting the evidence, as against the normal manner of examining witnesses.

The Third conclusion is rather bizarre. It might be that the Court had an incorrect copy of the text. Funnily enough this has happened before and accounted for sustaining an incorrect position of law for nearly two decades [see Sheoratan Agarwal v. State of M.P., AIR 1984 SC 1824 and Aneeta Hada v. M/s Godfather Travels and Tours Pvt. Ltd., (2012) 5 SCC 661]. Given how the Court managed to correctly extract the provision earlier on in the judgment, one can't be so hopeful. The Court clearly thought certificates were mandatory, and I argue the genesis of this incorrect view is found in Navjot Sandhu itself. There, the Court resorted to Sections 63 and 65 because there was no certificate filed under Section 65-B(4) but witnesses were examined. Revealing, thus, the mistaken view that Section 65-B could not operate without the certificate.

While Navjot Sandhu and Anvar both hold certificates mandatory, the latter comes at this conclusion driven by the institutional fear of electronic evidence catered by the Supreme Court. Tampering of such evidence remains at the forefront, and this persuades the Court to require certificates must be contemporaneous as well. The provision is further re-drafted, becoming a product of the judicial fear seeping through the text. The paragraph where the Court discusses the certificate is enlightening:

Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. [emphasis supplied]

Any doubts over what this means are removed later, when it is held that such evidence "shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document [emphasis supplied]". 

Conclusion
Right at the start of these posts, I wrote about the Evidence Act incorporating a sense of balance in its mixing admissibility and reliability to ensure the best evidence is used to arrive at decisions. The strictness of the best evidence rule was not too harsh so as to exclude great amounts of material, and not too relaxed either. The history of how electronic evidence has been treated, first judicially then statutorily, suggests a greater stringency in the conditions due to the seemingly unique problems of duplication and tampering. But the concoction of judicial fear and statutory conditions in Anvar has swung the pendulum too far in the idealist pursuit of best evidence. The Indian position thus stands and marked contrast to how most common law countries consider such evidence today - our English inspirations have long since abandoned the certificate idea altogether. A failure to make the ruling prospectively applicable has made its effect even more drastic - courts are today excluding computer outputs in trials and appeals pending before Anvar for absence of contemporaneous certificates, causing in no uncertain terms a travesty of justice. 

Electronic Evidence - Part 3

The treatment of electronic evidence in India has been the subject on this blog for the past few posts. This has been done by chronologically discussing the cases involving questions on the admissibility of tape-recorded evidence. From having no tests in the beginning, the Supreme Court by the 1980s had begun to impose strict admissibility requirements for such evidence. This was, in my opinion, largely driven by the reliance judges placed on the English decision in R v. Maqsud Ali. Frequent invocation of the requirements imposed by the Court of Appeals in that case to judge electronic evidence lend credibility to the view that the same tests now applied to India. This was put beyond doubt by the Court in Ram Singh v. Col. Ram Singh [1985 (Supp) SCC 611].

Ram Singh and Tying Loose Ends

Another election dispute, another judgment on tape-recorded evidence. But here, all three judges gave separate opinions in what was a 2-1 split. The majority formed by Fazal Ali and Mukharji JJ., held the tape-recorded statements were inadmissible, whereas Vardarajan J. disagreed. 

Right at the outset of his discussing the evidence, Fazal Ali J. observes: 

Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows:

(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 strick 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 con text 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.

This observation notably expanded on the course plotted earlier. To lend greater authority to his observation, the judge referred (again) to Maqsud Ali, and also to American opinion on the issue. He discarded the evidence as, although relevant, it failed the other conditions of reliability in his six-fold test. Interestingly, Mukharji, J. in his separate, concurring opinion discussed Maqsud Ali to observe that the court there held "there cannot, however, be any question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged." The dissent did not provide a rival six-fold test, but merely stated that "tape-recorded evidence is admissible provided that the originality and the authenticity of the tape are free from doubt." The dissent, thus, simply found the facts sufficient to establish all that the majority also wanted to admit the electronic evidence.

Infidelity to the Text

The six-fold test conceived by Fazal Ali, J. appeared an easy device for courts to employ in dealing with electronic evidence at large. The three judges in Ram Singh extensively considered arguments on admissibility of Secondary Evidence, i.e. tape-recorded evidence in this case. Yet, the three separate judgments are astonishing for their failure to even mention Section 65 of the Evidence Act, the basic provision governing the admissibility of Secondary Evidence. In fact, there is no discussion about the nature of the evidence at all. Rather than turn to the text of the governing law, the Supreme Court repeatedly referred to, and relied upon, authorities from the UK and USA. 

The importation of foreign tests to the Indian legal system has been criticised often. There are unique challenges to each legal system and legislators and courts alike have been all too keen to ignore this and adopt 'best practices' to fill the gaps. The same issue arises here: the UK and India fundamentally differed in their evidence laws as the former had no statute! The Court of Appeal in Maqsud Ali was merely following common law traditions of developing law in the absence of statute. This did not apply to India because the Evidence Act squarely covered the field. There were no gaps here - having characterised the evidence as either Primary or Secondary, the Court was obligated to turn to the statute. If it considered statutory requirements too relaxed, it could recommend amendments (which finally happened in 2000). The admissibility-heavy criteria in Maqsud Ali might have appeared necessary because of the jury-trial in the UK. The judge ensured only the best and most accurate evidence reached the jury, which was solely qualified to determine its reliability. But where the judge himself determines the reliability, such entry-barriers don't have such a beneficial effect.

Conclusion

Surprisingly, the Ram Singh tests continue to be used by courts despite the amendment of the Evidence Act to specifically deal with electronic evidence [see, e.g., Tukaram Dighole v. Manikrao Shivaji Kokate (2010) 4 SCC 329]. This supports the argument I am advancing here: that the Supreme Court has been extremely unfaithful to the text of the statute, only to address its fears over the genuineness of electronic evidence. The most recent example of this, Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473], will be the focus of the last post in this series.