[Ed Note: The following is a guest post by Shriram Kashyap, a second year student of NALSAR University of Law.]
The sudden influx of computers brought about major changes in the legal framework for regulating technology in India. The Information Technology Act 2000 (hereinafter the ‘IT Act’) was one such change that impacted various fields, including Criminal Law and Law of Evidence. The Indian Evidence Act, 1872 was one of the many Acts that was amended by the IT Act, and it introduced the concept of digital evidence to Indian Courts by adding Sections 65A and 65B, which describe the procedure to produce electronic evidence in courts during criminal trials and the admissibility of the same. These sections minimise the risk of falsification of digital evidence through various stipulations.
Section 65B (4) in particular, requires a certificate which has to mention the electronic record containing the section, the manner of production of the record, the particulars of the device used in producing the record and be signed by a person occupying a responsible position in relation to the device to be produced along with the evidence when it is submitted. This requirement has come under scrutiny over the years, with various judgements giving opposing views of the section which has resulted in a very unsettled position of law. The law on the issue is still unclear.
The jurisprudence on Section 65B of the Indian Evidence Act is mainly encapsulated in four landmark cases. The section was first relaxed by State v Navjot Sandhu, before being made strict by Anvar P.V v P.K Basheer & Ors. Later, it was relaxed a bit again Sonu v State of Haryana and Shafhi Mohammad v State of Himachal Pradesh.
This post aims to trace this jurisprudence and analyse each case, while finally commenting on the unsettled position of the current law and the need for a speedy decision by the Supreme Court.
State v. Navjot Sandhu
This was the first case that differed with the statute and set up a new jurisprudence. The judgement held that it was not necessary for evidence to comply with Section 65B (4). It revolves around the attack by a terrorist group on the Parliament in 2001. The call records were part of the evidence against the accused and were brought under question during the appeal in the Supreme Court for not complying with the requirement of producing a certificate under Section 65B (4) was contended.
The Court held that submission of secondary digital evidence was not exclusively governed by Section 65B and that Sections 63 and 65 would continue to be valid and that the same evidence may be filed under either of these.
The effect of such a judgement is that it negated the existence of Section 65B and widened the scope of secondary digital evidence, practically removing the question of the necessity of certificate when filing digital evidence. Its admissibility could no longer be challenged on the grounds under Section 65B alone as the Sections 63 and 65 would also apply.
This could be said to be going against the spirit of the law as strict regulations were placed to ensure that digital evidence presented to the Court was not tampered with. The requirement of the certificate and verification by an authority in the field are safeguards to prevent false evidence and the broadening of the law takes away these safeguards.
This case, by interpreting the law such that digital evidence was not bound solely by Section 65B, opened the floodgates for all digital evidence and made the amended provisions basically redundant. This position was challenged and changed in the subsequent case of Anvar P.V v P.K Basheer & Ors.
Anvar P. V. v. P. K. Basheer & Ors.
In this case, the issue was the appeal made by a contestant in an election to the Kerala Legislative Council. Among the evidence provided to the Court were electronic records whose admissibility came to be questioned. These electronic devices were not the original CDs but recordings of the same. Thus, not being primary evidence, their admissibility under Section 65B was contended.
The Court here held that all the requirements of Section 65B have to be strictly complied with when submitting digital evidence. The case of State v Navjot Sandhu was overruled on this point and it was made mandatory for all digital evidence to carry a certificate with it at the time of submission. The Court also held that, only if the electronic record was in consonance with the requirements of Section 65B, the question as to its genuineness could arise. If the evidence did not comply with the same, it could not be considered in Court. The Court refused to accept the evidence given by the appellant, that is, the recording of the CD, as the secondary evidence.
In this case, the jurisprudence that had held sway for over nine years was changed and Section 65B became relevant again. The Court considered Section 65A and 65B as a self-sufficient code to govern the admissibility of digital evidence. By using the principle wherein the special legislation prevails over the general and by calling the amended Sections as special legislation, they held that it prevails over the general law of submitting secondary evidence.
This case changed the jurisprudence back to the pre-Navjot Sandhu days by strictly applying the law again. It should be noted that this judgement was pronounced by a three-judge bench of the Supreme Court and that all future judgements that disagreed with this are division benches. Therefore, this judgement has not been overruled till date.
Sonu v. State of Haryana
This case and the one following it both disagreed with Anvar and refused to be bound by it. By going against a bench of higher strength and questioning its validity, they created a new facet to the issue.
The facts in the case involve the abduction and murder of one Ramesh Jain. In the investigation, six people were accused and convicted in the Trial Court. A crucial convicting factor of one of the accused was that of CDRs (Call Detail Records) which were procured from phone companies, but they were not submitted with the certificate required under Section 65B of the Indian Evidence Act. The same was challenged in the Supreme Court. The Court placed great relevance on the case of RVE Venkatachala Gounder and held that the admissibility of the evidence could not be challenged at the appellate stage and if there was a discrepancy, it should have been brought up when the evidence was submitted in the trial court itself.
The Court refused to be completely bound by Anvar and went on to create differences between substantial acceptance and procedural acceptance. It did not say that the requirements of Section 65B need not be fulfilled but held that the noncompliance cannot be brought up in the appellate stage. The Court expounded on the power to waive a piece of evidence in a criminal trial and held that if the evidence was not contested when it was first submitted, it could not be disputed in the appellate stage.
The Court also spoke about the doctrine of ‘prospective ruling’, which is borrowed from American jurisprudence. It holds that the decision of the Court in a particular case does not apply retrospectively and only applies to future cases. There also exists another doctrine, namely, stare decisis, which states that a decision of Court will be binding on Courts or simply, the doctrine of precedent. This was the doctrine that held sway in India till the A.K. Gopalan case.
The Court decided that it was not wise to apply this case retrospectively as it may lead to the re-opening of many decided cases but also felt that it could not decide on the prospective ruling and therefore left it to be decided by another bench of greater strength. The effect of this case is that Anvar has been brought into question and its binding value on future cases is not certain. Further, by laying down that the admissibility of evidence could not be questioned in the appellate stage, the Court barred relief in all cases wherein the admissibility was not contested at trial.
Shafhi Mohammad v. State of Himachal Pradesh
In this case, the Court disagreed with the Anvar case on the point that the Sections 65A and 65B were a complete code on the matter of digital evidence. It held that the requirements of Section 65B were merely procedural in nature and that they may be relaxed or foregone in the interest of justice, and if the Court was satisfied with the authenticity of the evidence, it could relax the procedures based on the facts in the interest of justice.
However, by using such an ambiguous and undefinable word, the Court may have over broadened the scope of the Section as ‘interest of justice’ is not a concrete term. While the Court’s reasoning that the two sections do not constitute a code is well founded, its opinion that the entire procedure may be subverted and that the certificate is not mandatory is questionable.
By giving Courts the ability to subjectively apply a law that was made to govern all digital evidence, they are entering a very problematic area. It is observed that if the Court is satisfied with the authenticity of the evidence, it can forego the procedure, but the purpose of the procedure was to establish the authenticity of the document. As observed by the Court on multiple occasions, it is very easy to tamper with digital evidence which is why stringent safeguards are needed.
The case also did not lay down guidelines on how to determine the authenticity of the evidence it is examining. Therefore, the option to insist on compliance with the requirements of Section 65B is entirely left to be subjectively determined by the Courts on a case-to-case basis.
Thus two separate lines of reasoning lay open for interpretation. Since none of the cases since 2014 have been overruled, it has led to a very uncertain area of law and there is an urgent need for the Courts to clarify on this position.
Therefore, there exists two positions of law presently. One laid down by the Anvar case which enforces strict compliance with the Section 65B and one in the latest case of Shafhi Mohammad v State of Himachal Pradesh, which holds that the requirement may be foregone in the interest of justice.
This is very problematic in the current society when most of the documents are digitized and with growing awareness of reducing physical documents and the added benefits of durability that digital documents provide, the amount of digital evidence is increasing too. The unsettled law in such a topic can lead to disastrous consequences.
I agree with the Anvar judgement and feel that the law should be followed strictly. The Legislature made the certificate a mandatory requirement as falsification of digital evidence is easier than physical evidence. It also crosses into the grey area of judicial activism where the judges decide whether or not a law made by the Legislature applies or not. Any practical problems that may be faced in enforcing the provision should lead to a response from the Legislature, rather than the Judiciary deciding to selectively apply a provision.
It can only be hoped that this unsettled position of law is cleared at the earliest by the Supreme Court or certain amendments are introduced into the Act to rectify this discrepancy as an unsettled position of law in submitting evidence in this age of digitization can lead to a grave miscarriage of justice.