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.  

Post Arrest Silence and Self-Incrimination

An interesting question has been troubling me of late, to discuss which, I'd ask you to recall the posts on entrapment. For those in a hurry, picture this: The police have sent V to the doorstep of D, a drug dealer, asking for some contraband. V has been taped, and the conversation is being recorded by the Police who are sitting in a van 50 yards away. D willingly complies, and the moment he accepts the cash from V a Police Officer rushes out of his van and confronts D, accusing him of having sold contraband drugs to V and grabs his wrists. D appears confused and remains silent, not responding to the accusation. He is subsequently on trial for possession and sale of narcotics. Can the Prosecution rely on D's conduct when he was confronted by the police officer? 

Evidence of Conduct?

Section 8 of the Indian Evidence Act 1872 [IEA] makes relevant "... the conduct of any person an offence against whom is the subject of any proceeding ... if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto [emphasis supplied]".

The 'conduct' here is D appearing confused and remaining silent when the Police accuse him after the trap. Does it influence or is influenced by any fact in issue or relevant fact? Yes, as per the definition of the terms 'fact in issue' and 'relevant fact' under Section 3 of the IEA. So there is little doubt that the conduct in question is made relevant by Section 8, IEA.

Is this Reliable Evidence?

Courts differ in their appreciation evidence which details the conduct of an accused following a confrontation such as the one in our example. On one occasion, the Supreme Court in Prakash Chand v. State [AIR 1979 SC 400] held that the "immediate reaction of the accused on being questioned by PW9 [police officer laying trap] is a circumstance which corroborates the testimony of PW6 [complainant, the bribe-giver]." However, earlier in Sat Paul v. Delhi Administration [(1976) 1 SCC 727], the Court held when discussing the reliability of such conduct, that "its probative value would be almost nil" because "It would not be unusual even for an honest Officer to be frightened out of wits on being suddenly accused of bribe-taking by a superior Officer". On the balance of judgments, however, it appears that the Supreme Court is usually willing to consider the evidence of conduct following a confrontation/questioning at the scene of crime [see, Zwinglee v. State of M.P., AIR 1954 SC 15; Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322; State of Madras v. Vaidyanatha Iyer, AIR 1958 SC 61].

Self-incriminatory?

Article 20(3) of the Indian Constitution guarantees a fundamental right that no accused person shall be compelled to be a witness against himself. Would this not squarely apply to any questions D is asked when the Police grab him? At the relevant time, D is literally in police custody for committing an offence, clearly making him an accused [see, Romesh Chandra Mehta v. State of W.B., AIR 1970 SC 940]. D is questioned by the police, i.e. to become a witness against himself. Two out of three boxes are checked.

We are only left with the issue of compulsion. The majority opinion in State of Bombay v. Kathi Kalu Oghad, [AIR 1961 SC 1808] did hold that "The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'." The words 'mere' and 'voluntary' are instructive. They do not envisage the coercive scenario that is custody at the time of a trap. In fact, Krishna Iyer J. in Nandini Satpathy v. P.L. Dani [AIR 1978 SC 1025] took great pains to discuss how harrowing police interrogation can be for an accused. Therefore, it is difficult to conclude that the observations in Kathi Kalu Oghad make such evidence permissible. 

The Supreme Court of the United States in Doyle v. Ohio [426 U.S. 610 (1976)], held that the post-arrest silence of an arrestee could not impeach or impair any subsequent explanation, as that silence was protected under the Fifth Amendment to the U.S. Constitution. The Court concluded thus largely because Doyle had chosen to remain silent after being read his Miranda Rights, a set of judicially mandated warnings issued to every arrestee following the landmark decision in Miranda v. State of Arizona [384 U.S. 436 (1966)]. Therefore, it is difficult to rely on it to support the general proposition that post-arrest conduct upon questioning would contravene the privilege against self-incrimination.

Conclusion

Today, whatever D says and/or does upon being confronted at the time of being apprehended by the police is relevant and admissible. D, therefore, is being made a witness against himself under what seem to be compelling circumstances. 

Guest Post: The Relevance of Bad Character in Indian Law

I am pleased to present a Guest Post by Mr. Kaustav Saha, a very bright IVth Year student in the BA LLB (Hons.) programme at NLS, Bangalore. He may be contacted at kaustavsaha93@gmail.com.

Introduction

At the heart of the prohibition on evidence of bad character is a fundamental principle of criminal justice: the accused is only on trial for the offence he has been charged with, and will not have to answer for his past sins which have no bearing upon the charge. This rule is embodied in Section 54 of the Indian Evidence Act 1872 [IEA]. The quixotic nature of this rule is apparent: bad character is sometimes quite relevant to determine the guilt or innocence of an accused person. Should this statutory rule be eschewed in the face of compelling practical realities of a trial? 

In the Indian context, this dilemma is significantly embodied in the conflict between Section 54 on one hand and Sections 14 and 15 on the other. Section 14 IEA indicates that facts are relevant if they show the state of mind of a person or of bodily feeling [Section 14]. The crucial question which arises in the context of Section 14 is when state of mind is considered relevant. Courts have held that Section 14 operates only when existence of state of mind is in issue and not where guilt or innocence depends on actual facts [See, R v Vyapoory, ILR (6) Cal 655; Jagmohan @ Birju v State, ILR 1995 Del 165). This amounts to little more than saying that it operates whenever the state of mind is an ingredient of the offence, which is true for most criminal offences. Section 15 makes it a relevant fact that an act was part of a series of similar acts, where it is a question whether that act was accidental in nature. 

Section 54 v. Sections 14 & 15: An Intelligible Hierarchy?

This brings us to the heart of the debate: does Section 54 override all other provisions of the IEA [Sections 6-55] which make evidence relevant and hence admissible? This issue was squarely considered by the Bombay High Court in Lakshmandas Chaganlal Bhatia v State [AIR 1968 Bom 400]. The accused were charged with conspiracy to unlawfully import gold into India, and the Prosecution had relied upon evidence of the accused having assisted in committing such illicit acts prior to the alleged conspiracy being hatched. This was contended as being hit by the prohibition under Section 54, regardless of it being relevant under other provisions of the IEA. The Court disagreed, and held that Section 54 did not override other provisions, thereby accepting the evidence as relevant and admissible inter alia under Section 15.

I find the reasoning adopted by the Court problematic for two separate reasons. Firstly, it is highly questionable that the evidence in question satisfied the test of similarity as laid down in the common law [The most recent elucidation of which came in DPP v P (1991) 2 AC 447, that the prejudicial effect of such evidence must not outweigh the probative value]. It is submitted that allowing prior instances of smuggling to be relevant and admissible under the similar fact rule entirely frustrates the purpose behind the bad character prohibition. Such a reading of the similar fact rule allows highly prejudicial evidence to be admitted for proving facts which could have been otherwise proved by other, more reliable, evidence. Secondly, placing Section 54 beneath other provisions in a hierarchy is legally dubious, particularly when the common law indicates the desirability of the contrary position. Professor Williams lamented that case law from the early 19th Century till the 1920s revealed a tendency to widen the area of admissibility of similar fact evidence and deprive the accused of a fundamental protection which may lead to his acquittal [See, E. Williams, 'Evidence of Other Offences', 39 Law Quarterly Review 212, 223 (1923)]. 

Lakshmandas reveals a similar unfortunate tendency in Indian law. The court’s observation that evidence of prior smuggling would be inadmissible if offered for the inference that the accused were criminally predisposed is of little consolation. The use of the word 'accidental' in Section 15 has almost unanimously been considered as the opposite of 'intentional', and this has made evidence of similar fact in India admissible whenever mens rea is an element. To overcome this problem, it must be realised that the manner in which Lord Herschell used the word 'accidental' in the celebrated case of Makin v Attorney General for New South Wales [(1894) AC 57] and also how Sir Stephen used it in the Evidence Act, is a state of mind opposed to "coincidence or mere chance" [See P.B. Carter, 'Forbidden Reasoning Permissible: Similar Fact Evidence a Decade After Boardman', 48 Modern Law Review 29, 40 (1985)].

Conclusion

While the character evidence prohibition is treated as a laudatory exclusionary rule, a closer look reveals that this has largely been lip service. In the face of a conflict between including relevant evidence and preventing prejudice to the accused, the former has usually prevailed, and it may very well continue to do so. Indian law at present lacks a principled approach to the admissibility of such evidence and as a result, the Evidence Act has been interpreted to give a wide berth to the admission of similar fact evidence. This largely unfettered inclusionary rule threatens to engulf the prohibition on introducing evidence of an accused’s bad character. Rather than ask when state of mind is relevant, a largely unhelpful test, the question should be whether the accused asserts coincidence or chance as a defence. By altering the nature of enquiry thus, there is a better chance that the prohibition on character evidence will be treated as the rule and admission of similar fact evidence as the exception.