Author: Avik Das Roy


Introduction

Today, hundreds of millions of people around the world are active users of some kind of social networking websites like Facebook and Twitter. Users plaster their profiles with the play by play of their daily lives often complemented by dozens of pictures to document the experience. Not so very long ago, this type of information was reserved for the few friends who actually saw the person daily. But today, almost anyone can have access to a user’s private thoughts and photographs, including lawyers looking for potentially useful evidence to help support a claim or defence. Information gathered on social networking sites provides valuable evidence in both criminal and civil cases about a party’s daily life and state of mind. However, unique problems have arisen, in the form of discoverability, admissibility, and most notably, authentication and reliability. Without proper guidance, courts produce a disjointed patchwork of inconsistent case law with no unified approach for this distinctive category of evidence. This comment will seek to guide courts toward pursuing a more accommodating and consistent acceptance of social media evidence. It analyzes the application of the Indian Evidence Act, 1872, to social networking evidence and advocates for the recognition of an informal presumption of reliability that, in an appropriate case, an opponent easily can rebut with convincing proof that the site or content is inauthentic in any way.

Advanced technology and the evolution of communication systems have substantially transformed the process of exchanging information in all spheres. The use of digital media in unlawful activities has increased so dramatically that investigation of any criminal activity nowadays, produces electronic evidence. However, the rapid growth in the number of cases involving electronic evidence has all too often found law enforcement and the judiciary, not advanced enough to deal with the new issues evolving out of such evidence. The gathering, conservation, communication and presentation of the digital evidence must fulfil legal requirements for the admissibility of the evidence.[1] Electronic evidence which has been collected during the investigation that is not in conformity with the law would be declared inadmissible and be ruled out of court.

Electronic Evidence and the Indian Evidence Act, 1872

The kinds of evidence that we are dealing with in this article have been variously described as ‘electronic evidence’, ‘digital evidence’ or ‘computer evidence’. Digital Evidence is “information of probative value that is stored or transmitted in the binary form”.[2]

Section 3 of the Indian Evidence Act, 1872 fundamentally describes two types of evidence –

  1. The evidence of a witness, i.e. oral evidence; and

  2. Documentary evidence, which includes electronic records produced for the inspection of the court. Section 3 of the Act was amended by virtue of Section 92 of the Information Technology Act, 2000, and the phrase, “All documents produced for the inspection of the Court” was substituted by “All documents including electronic records produced for the inspection of the Court”.

Furthermore, as per Section 2(t) of the Information Technology Act, 2000, the wider connotation has been given to an electronic record. Section 2(t) defines ‘electronic record‘ as, “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfilm”. Where any law provides that information or any other matter shall be in writing or typewritten or in printed form, then notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is- (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference. The definition of ‘admission’ as given in Section 17 of the Evidence Act, has been changed to include a statement in oral, document or electronic form which suggests an inference to any fact in issue or of any relevant fact.

Relevancy of Oral Evidence regarding Electronic Evidence

Section 22A of the Evidence Act provides that oral admissions regarding the contents of electronic records are not relevant unless the genuineness of the electronic records produced is in question. In the context of documentary evidence, in Section 59 of the Evidence Act, for the words “content of documents” the words “content of documents or electronic records” have been substituted.

Admissibility of Electronic Evidence

Sections 65A and 65B of the Evidence Act are inserted to incorporate the admissibility of electronic evidence in the Act under the Second Schedule to the Information Technology Act, 2000. Section 5 of the Evidence Act defines that evidence can be given regarding only facts that are at issue or of any relevance. Further, Section 136 empowers a judge to decide on the matter of admissibility of the evidence. Section 65A of the Evidence Act provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B of the Evidence Act, which provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record, is deemed to be a document and is admissible in evidence without further proof of the original’s production, provided that all conditions set out in Section 65B are satisfied.[3]

Conditions for the Admissibility of Electronic Evidence

  • Section 65B(1) states that if any information contained in an electronic record produced from a computer (known as computer output) has been copied on to an optical or magnetic media, then such an electronic record that has been copied, shall be deemed as a document, subject to the conditions set out in Section 65B(2) being satisfied. Both in relation to the information as well as the computer in question, such document shall be admissible in any proceedings when further proof or production of the original as evidence of any contents or of any facts stated therein of which direct evidence would be admissible.
  • Section 65B(2) states that at the time of creation of the electronic records, the computer that produced it. must have been in regular use, and the kind of information contained in the electronic record must have been regularly and ordinarily fed into the computer.[4] Furthermore, it states that the computer must have been properly operational and that the duplicate copy must be a reproduction of the original electronic record.
  • Section 65B(4) deliberates regarding the person who can issue the certificate and contents of the certificate. It provides the certificate doing any of the following things:
    1. identifying the electronic record containing the statement;
    2. describing the manner in which the electronic record was produced;
    3. furnishing the particulars of the device involved in the production of that record.
    4. dealing with the applicable conditions mentioned under Section 65B (2) of the Indian Evidence Act; and
    5. signed by a person occupying a responsible official position in relation to the operation of the relevant device. By referring to the above-mentioned definitions in the light of the provisions incorporated under sections 65A and 65B of the Indian Evidence Act, 1872, electronic evidence is now another kind of documentary evidence which is if duly proved in the manner provided in Section 65B, can be considered as strong evidence.

Such stringent conditions for the admissibility of electronic evidence points out this very fact that the courts in India cannot accuse solely relying on the basis of the same. Although the Indian Constitution provides for such safeguards, there still remain numerous shortcomings as far as implementation goes. Data on arrests under Section 66A reveals that the police ignorant about judicial pronouncements. Police across the country continue to use section 66A to book people for making offensive comments on social media, blissfully unaware of its deletion from the IT Act. According to the National Crime Records Bureau, 4,154 new cases were filed and 3,137 people arrested under section 66A in 2015. The numbers are for the whole year and no monthly disaggregation is available, but it’s highly improbable that all these cases were filed before the law was scrapped in March, especially when compared to data for 2014 when 4,192 cases were filed and 2,423 people were arrested.[5]

Last November, police in Sheopur, Madhya Pradesh arrested 25-year-old Sattar Khan for allegedly making offensive remarks about the Rashtriya Swayamsevak Sangh (RSS) chief, Mohan Bhagwat on social media. Reacting to pressure from angry protestors, the police filed a criminal case against Khan, and months later, they were in a fix. “We don’t know how to proceed because we came to know later that the Section 66A was struck down by the Supreme Court,” a police officer told the Indian Express.[6] The police officer’s dilemma shows the huge gap between the judicial pronouncements by courts and their implementation at the ground level.

CONCLUSION

In the 21st Century, we saw a rapid rise in the field of information and communication technology. The expanding horizons of science and technology have thrown new challenges to the legal fraternity. Storage, processing and transmission of data on magnetic and silicon medium become cost-effective and as a result, easy to handle, whereas the conventional means of record and data processing are outdated. Therefore, the law had to respond and gallop with the various technological advancements.

The appropriate amendments in the Indian Evidence Act, 1872, incorporated by the Indian judiciary show pro-activism. Now, it is needed that the law enforcement agencies and investigating officers have to update themselves with the authentication process prescribed by the court, regarding the admissibility of electronic evidence so that the various impediments in trial procedures can be successfully overcome. The foremost requirement of recent times is the proper training of law enforcement agencies in handling cyber-related evidence and correct application of procedure and sections of the Indian Evidence Act while presenting such evidence in court. India has to go a long way in keeping pace with the developments globally. Clearly, India has yet to devise a mechanism which ensures the veracity of contents of electronic records, which is open to manipulation by any party. The court has to see that the evidence so presented is correct and is administered in a proper manner, so as to facilitate the smooth working of the legal system. Sound and informed governance practices along with scrutiny by the courts must be adopted to determine whether the evidence fulfils the three essential legal requirements of authenticity, reliability and integrity. With an optimistic view, the Supreme Court having re-defined the rules, the Indian courts should adopt a consistent approach and will execute all possible safeguards required for accepting and appreciating electronic evidence.


[1] Olivier Leroux, Legal Admissibility of Electronic Evidence, 18 IRLCT. 193, 202 (2004).

[2] Eoghan Casey, Digital Evidence and Computer Crime 7-8 (3d Ed, 2011).

[3] Smt. K.B. Agarwal, Admissibility of Electronic Record, Video Recording, Computer Outputs, Maharashtra Judicial Academy (Jun.05,2019,10: 04 AM), http://mja.gov.in/Site/Upload/GR/final.html

[4] Vivek Dubey, Admissibility of Electronic Evidence: An Indian Perspective, FRCIJ, Mar. 2017, at 1, 3.

[5] (n.d.). Retrieved from https://thewire.in/law/supreme-court-rulings-only-mean-something-if-the-police-enforce-them

[6] (n.d.). Retrieved from https://indianexpress.com/article/india/india-news-india/insult-to-rss-chief-cops-in-a-fix-after-booking-youth-under-scrapped-66a-of-it-act/


About the Author: Avik is a 2018-23 Batch B.A.LL.B student at Gujarat National Law University, Gandhinagar.


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