After 20 years of legal uncertainty, involving the interpretation of legislation in a strict sense, the ensuing watering down of the regime established and the final reference for clarifications on the matter, the Apex Court of our country has finally settled the law regarding obtaining of a certificate for producing electronic evidence under Section 65B, Indian Evidence Act once and for all, curing all defects in interpretations which caused confusion and chaos over the years in legal proceedings. Or has it? The journey towards reaching the current stance of Indian courts on the admissibility of electronic evidence was neither smooth nor linear, as put aptly in a recently published poem by Radhika Kolluru, a practicing advocate in the Delhi High Court-
Hope you liked this flippant tale
’bout the dance of Section 65B
Troubling counsel both young and wise
from year Two Thousand to Twenty-twenty
~ Radhika Kolluru
Establishing the Anvar Regime
With the introduction of Sections 65A and 65B into the Indian Evidence Act in 2000, an entirely new procedure was born, which differentiated itself from the previous practice adopted by courts to admit electronic evidence under Sections 61 to 65 of the Act in the form of primary (section 62) or secondary [section 62(2)] evidence.
With its introduction, section 65B allowed for admissibility of electronic output in court as a ‘document’ without any further proof or production of originals, provided that the conditions related to the information and computer in question, as laid down in the provision, are duly complied with.
It is important to note at this juncture that when the issue of section 65B was presented to the Supreme Court for the first time in the case of N.C.T. of Delhi v Navjot Sandhu, the court decided to take a rather relaxed view, deciding that 65B only laid down one of the ways to admit electronic evidence in court, and the same may be achieved by the conventional routes as used before.
All this changed in the landmark case of Anvar P.V. v P.K. Basheer, where the Supreme Court ruled that the pre-emptive checks embodied in the statute in the form of certification under section 65B is a mandatory requirement which must be complied with in cases where the party is unable to bring the original document before the court. The retrospective applicability of the judgement, coupled with the requirement of a contemporaneous certificate under section 65B led to a lot of cases falling short of the test of admissibility, thus taking away vital, and relevant evidence from their trials. This inadvertently led to a watering down of sorts with courts finding ways to circumvent the precedent so as to admit electronic evidence on record. Such steps had to be taken in light of the ruling in Anvar as, for most parties, it was grossly unfair to now produce a certificate for electronic evidence admitted years ago or see their documents not considered in court.
Admitting Evidence post-Anvar
With the judgement delivered in the Anvar case came various problems as mentioned above. As these problems surfaced, so did creative judgements, which were penned down to reconcile principles of justice with the ratio. One of the first attempts to do so was in the case of Sonu v State of Haryana, where a two judge bench of the Supreme Court opined that in cases where compliance of the requirements of section 65B could not be fulfilled, the issue was to be looked upon as an issue with the ‘mode of proof’ rather than an issue of ‘inherent inadmissibility’. By drawing this very important distinction, the court held that such issues must be brought up at the time of the trial and the objections cannot be sustained at the appeals stage. This effectively protected all previous trial court cases from the problems arising out of Anvar, thus allowing for previously admitted electronic evidence to be considered.
The practice of finding ways out of the ratio of Anvar perhaps reached its peak with the case of Shafhi Mohammad v The State Of Himachal Pradesh, which would eventually be termed to be in direct ‘conflict’ with the Anvar case. In the relevant judgement, the two judge bench ‘clarified’ that section 65B was not in itself the sole provision applicable to admit electronic evidence, and causing even more controversy, laid down that the requirements of a 65B certificate may be relaxed in the interest of justice. Such a view could not possibly be reconciled with the judgement of Anvar, and the conflict was taken note of and referred to a larger bench in the recent case of Arjun Panditrao Khotkar v. Kailash Kushanrao & Ors.
A Final Clarification?
A three-judge bench of the Supreme Court settled the conflict between the ruling of the Anvar case and the Shafhi Mohammed case in Arjun Panditrao. The judgement held that the reasoning followed in the Anvar case is correct and certification under section 65B is indeed a mandatory requirement for the admissibility of electronic evidence. It thus declared Shafhi Mohammed as per incuriam to the extent of its opinion on the same. The same court further held that the admissibility of electronic evidence is solely governed by the procedures as laid down in section 65A and section 65B, and sections 61 to 65 being general and not applicable in cases pertaining to electronic evidence.
As elucidated in great detail in the separate opinion of Arjun Panditrao, penned by Justice Ramasubramanian, it is the need of the hour to relook section 65B once again due to the fact that even though the amendment to the Evidence Act mixes up proof and admissibility, it in no way gives weightage to the relevancy of the evidence in the case in question. He strengthens his point by examining similar provisions in jurisdictions across the world, pointing out that ever since the introduction of the provision, there has been cause of massive legal turmoil with confusion arising time and again. Thus, it is necessary for us to ‘come to terms with the change of times and the development of technology, and finetune our legislations.’
It is the author’s opinion that the ‘conflict’ as resolved between Anvar and Shafhi Mohammed may have been reconciled by taking a wider interpretation, with the relaxation of a mandatory certificate in interests of justice so as to protect parties being adversely affected at the stage of admissibility itself. Such particular cases might arise when the party presenting evidence is not in a position to obtain certification due to inaccessibility to the host computer or non-possession of the device.
In most cases where output is obtained from an adverse party, opposing counsel may come forward and even dispute the factual correctness of the document, thus forcing the court to enter into a mini-trial at the stage of admissibility itself. The gap that existed in the Anvar regime for cases where certification could not be obtained by the party was meant to be filled by Shafi Mohammed.
Anvar chose to take a stricter approach towards the provision and Arjun Panditrao built on the same line of reasoning, making Indian one of the few countries with the strictest admissibility norms for electronic evidence. The clarifications as provided in the reference may tell us that Anvar is the correct law to follow, but are yet to convey the very nature of section 65B, the issue with calling witnesses to prove documents as an alternative to certification, and the delay that will be suffered in making applications to the court in cases where the 65B certificate cannot be obtained. It is unlikely that there will be another revision of the current stance anytime soon, and it looks like for the time being we have to comply with a mandatory certificate requirement for all electronic evidence.
About the Author: Kabir [2018-23] is pursuing B.A.LL.B (Hons) from West Bengal National University of Juridical Sciences, Kolkata.