Technology has advanced and developed exponentially and has impacted every sphere of life. Technological superiority has played a huge role in the development and growth of nations, entities and individuals. Hence, it becomes vital for everyone to keep evolving and adapting to the new technological advancements happening around us. One such unprecedented change has been seen by the judicial system in India in the wake of the global pandemic i.e. COVID – 19. Unforeseen circumstances have forced the judicial system to switch to a system where technology plays a vital role in smooth functioning of the judicial proceedings which was otherwise heavily dependent on physical human intervention at several stages.
Under these circumstances, it becomes necessary to modify provisions and laws as well as the need to clarify the position of law on some issues relating to online disposal of cases becomes important. One such issue pertaining to the adjudication of disputes via video conferencing is admissibility of electronic evidence and the evidentiary value of such evidence.
Electronic Records as a Form of Evidence
Electronic records have been explained and recognized in the Information Technology Act, 2008 . As per Section 2(t) of Information Technology Act, 2000: –
“(t) ―electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche; ”
Consequently, Section 3 of Indian Evidence Act, 1872  provides for admissibility of electronic records as documentary evidence.
“Evidence.”— “Evidence” means and includes–
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2)6[all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.”
Electronic Evidence as Primary or Secondary Evidence and Prerequisites
Section 62  of The Indian Evidence Act, 1872 explains primary evidence as:
“Primary evidence means the document itself produced for the inspection of the Court.”
Similarly, Section 63  of The Indian Evidence Act, 1872 provides for what qualifies as secondary evidence:
“Secondary evidence means and includes –
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.”
It is a well settled position of law that documentary evidence must ordinarily be proved through primary evidence. This is also known as “best evidence rule” i.e. the best way to prove a document is producing the document itself. Although the law also provides for proving a document through secondary evidence in special circumstances provided under Section 64  of the Indian Evidence Act, 1972 based on the existence, condition and contents of the documents wherein, it allows secondary evidence to be tendered as evidence.
In the case of electronic evidence, a special provision was enacted. Section 65-A  provides that the contents of any electronic records may be proved in accordance with the provision of Section 65B .
Thus, the very admissibility of an electronic record which is called as computer output depends upon the four conditions mentioned under Section 65B (2).
Section 65B (4) mandates the production of a certificate of authenticity of electronic evidence which is signed by a person who was responsible for the computer on which electronic data was stored.
Therefore, if a party produces electronic record in its original form, it shall be treated as primary evidence i.e. the data stored in a device which is to be
presented in the court has to be generated at the source without any human
intervention. Such electronic evidence as primary evidence does not require the certification of authenticity under Section 65B .
Whereas, like in most of the case where it is not possible for the parties to present the original device in the court and when the party brings electronic evidence as secondary evidence, the certificate under Section 65B (4) is required for the evidence to be admitted under any proceedings.
Case Laws, Legal Conundrums and the Present Position
The courts have oscillated back and forth on the issue of mandatory requirement of certificate of authenticity as prescribed under Section 65B (4) for production of electronic evidence or secondary evidence as primary evidence.
The issue was first discussed in 2003 in State v. Mohd. Afzal  also popularly known as Parliament Attack casewherein, the Hon’ble High Court of Delhi held that compliance of sections 65B (1) and (2) are enough to make it admissible and the pre-requirement of certification under section 65B (4) was merely an “alternate mode of proof”.
The position was re-affirmed by the Hon’ble Apex Court in State (NCT of Delhi) v. Navjot Sandhu  and held that even if requirements under Section 65B were not met, evidence could be produced under Section 63 and 65 of the Act.
Thus, it is clear that until this point of time, production of certificate under Section 65B(4) was upto judicial discretion.
However, the position changed when the decision in State (NCT of Delhi) v. Navjot Sandhu was overturned in Anvar P.V. v. P.K. Basheer  wherein the Hon’ble Supreme Court of India held that the only way to produce an electronic evidence is by way of Section 65B and excluded the applicability of other provisions. The Apex Court in its judgment makes the production of certificate under Section 65B (4) mandatory and in the absence of which would make the electronic record inadmissible as evidence. Therefore, The Supreme Court makes it clear that an electronic record can only be proved in accordance with procedure prescribed under Section 65B and does not leave it to judicial discretion.
The position was again relaxed in the case of Shafhi Mohammad v. State of Himachal Pradesh  wherein the Hon’ble Supreme Court held that the sections 65-A and 65B cannot be held to be a complete code on the subject and the threshold admissibility of electronic evidence cannot be ruled out on any technicality if the same is relevant. The Court also stated that the requirement of certificate under Section 65B (4) being procedural, can be relaxed by Court wherever interest of justice so justifies and is always not mandatory.
The recent case law on the situation is Arjun Panditrao Khotkar v.Kailash Kushanrao Gorantyal and Others  wherein the Hon’ble Supreme Court took cognizance of all the above-mentioned cases and a three-judge bench delivered the judgement on 14.07.2020. The division bench by upholding the law in Anvar Case held that the requirement of certificate is a pre-condition to the admissibility of an electronic record under Section 65B of the Act and for the purpose of proving the contents of an electronic record, Section 65B speaks entirely about the preconditions for admissibility thereby making the conditions laid down under the provisions under Section 65B mandatory without which electronic record would be considered inadmissible.
More Issues and The Way Ahead
Another issue that arises out of admitting electronic records as evidence is the authenticity of the document(s) so provided by a party and the Court’s approach to the genuineness of the records. With the high possibility of electronic documents being tampered and morphed by the parties to their own benefit and the absence of any clear mechanism of the same, it becomes imperative upon the Court to develop a methodology to ascertain the genuineness of the documents so provided by the parties underlying the certification under Section 65B (4). In order to truly embrace the modernization of the judicial system and to make full use of the technology, it’s upon the judiciary to take cognizance of the complexities that follow.
Akash Yadav is a practicing advocate in various Courts and Tribunals of Delhi and deals with matters relating to Insolvency laws, Arbitration laws, and Civil and Criminal matters.
1.Section 2(t) Information technology Act, 2008
2.Section 3, Indian Evidence Act, 1872
3.Section 62, Indian Evidence Act, 1872
4.Section 63, Indian Evidence Act, 1872
5. Section 64, Indian Evidence Act, 1872
6. Section 65-A, Ins. by Act 21 of 2000, s. 92 and the Second Schedule (w.e.f. 17-10-2000).
7.Section 65B, Indian Evidence Act, 1872
8. Vikram Singh v. State of Punjab, (2017) 8 SCC 518
9. State v. Mohd. Afzal, (2003) 107 DLT 385.
10. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.
11. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
12. Shafhi Mohammad v State of Himachal Pradesh, (2018) 2 SCC 801
13. C.A. No.-020825-020826 / 2017 | 14-07-2020