Electronic Evidence in India: A Cyber Lawyer's Perspective on Case Laws under IEA and BSA

The digital realm has permeated every facet of modern life, leaving an indelible mark on the legal landscape. Electronic evidence, encompassing emails, messages, social media posts, and digital documents, has become a cornerstone in legal proceedings. India's legal system, recognizing this paradigm shift, has evolved to accommodate electronic evidence under the Indian Evidence Act, 1872 (IEA), and subsequently the Bharatiya Sakshya Adhiniyam, 2023 (BSA).

This blog post delves into the evolution of electronic evidence jurisprudence in India through landmark case laws, providing a comprehensive overview of the legal precedents under IEA and BSA up to 2025.

The Genesis: Electronic Evidence under IEA

The IEA, initially designed for a pre-digital era, received its first major amendment in 2000 with the introduction of Section 65B. This provision sought to address the admissibility of electronic records, acknowledging their growing significance in legal proceedings. However, the absence of a prescribed format for the certificate under Section 65B led to inconsistencies and challenges in judicial interpretations.

Landmark Case Laws under IEA:

• State (N.C.T of Delhi) vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 (Parliament Attack Case): This case, arising from the 2001 terrorist attack on the Indian Parliament, witnessed the Supreme Court admitting call detail records (CDRs) as evidence without strict adherence to Sections 65A and 65B. This decision, however, was subsequently overruled in the Anvar vs Basheer case, emphasizing the mandatory nature of the certificate for admissibility.

• Manu Sharma vs. The State (NCT of Delhi) (2010) 6 SCC 1 (Jessica Lal Murder Case): The court recognized the evidentiary value of electronic records, including witness testimonies and phone records, in this high-profile murder case. The case highlighted the potential of digital evidence to corroborate and contradict traditional forms of evidence.

• Anver P.V vs. P.K Basheer & Ors AIR 2015 SC 180: This landmark judgment clarified the mandatory requirement of a certificate under Section 65B(4) for the admissibility of electronic records as secondary evidence. The court stressed the need to establish the authenticity and integrity of electronic evidence, considering its susceptibility to manipulation.

• Shafhi Mahommad vs. The State of Himachal Pradesh (2018) 2 SCC 801: This case presented a contrasting viewpoint, suggesting that the certificate requirement under Section 65B(4) might be relaxed when the party presenting the electronic evidence lacks possession of the device. This position, however, was later overruled in the Arjun Panditrao Khotkar case.

• Arjun Panditrao Khotkar vs. Kailash Kishanrao (2020) 3 SCC 216: Overruling the decisions in the Tomaso Bruno and Shafhi Mohammad cases, the Supreme Court reaffirmed the mandatory nature of the certificate under Section 65B(4). The court emphasized that challenges in obtaining the certificate do not justify the admission of electronic evidence without fulfilling the procedural requirements. The court also clarified that the certificate is unnecessary if the original document itself is produced, such as the owner of a device containing the original information testifying and proving ownership.

Embracing the Digital Age: The Bharatiya Sakshya Adhiniyam, 2023

The introduction of the BSA in 2023 marked a significant step in aligning the Indian evidence law with the digital age. The Act repealed the IEA, introducing comprehensive changes, particularly in the realm of electronic evidence.

Key Changes under BSA:

• Digital Evidence as Primary Evidence: Section 57 of the BSA elevates the status of electronic records, recognizing them as primary evidence. This move signifies a crucial shift in acknowledging the intrinsic value and reliability of digital evidence.

• Expanded Scope of Secondary Evidence: Section 58 broadens the scope of secondary evidence, encompassing oral and written admissions and evidence provided by experts examining complex digital documents.

• Standardized Certificate Format: The BSA introduces a standardized format for the certificate under Section 63, ensuring uniformity and clarity in the presentation of electronic evidence. The format includes two parts: Part A to be filled by the party presenting the evidence and Part B by an expert.

• Clarification on "Proper Custody": The BSA provides a definition for "proper custody" in relation to electronic records, adding an explanation to Section 80 to clarify its interpretation in the context of digital evidence.

Case Laws under BSA (till 2025):

As the BSA is relatively recent, case laws specifically interpreting its provisions are still developing. However, existing pronouncements under IEA continue to guide the admissibility and appreciation of electronic evidence.

Challenges and the Road Ahead

While the BSA represents a progressive step towards integrating electronic evidence, challenges persist:

• Defining the "Expert": The BSA lacks a clear definition of the "expert" required to sign Part B of the certificate under Section 63. This ambiguity may lead to inconsistencies and disputes regarding the qualifications and expertise necessary for certification.

• Data Protection and Privacy: The collection and use of electronic evidence raise concerns about data protection and privacy. Balancing the need for evidence with individual rights necessitates robust safeguards and legal frameworks.

• Cross-Border Issues: The global nature of digital data necessitates international cooperation and legal frameworks to address cross-border issues related to the collection, admissibility, and enforcement of electronic evidence.

Conclusion

The evolution of electronic evidence law in India reflects a continuous effort to adapt to the digital revolution. The BSA, with its progressive provisions, lays a solid foundation for a robust and technologically aligned legal framework. However, addressing the existing challenges, particularly clarifying the role of the "expert" and ensuring robust data protection mechanisms, remains crucial for the effective and just utilization of electronic evidence in Indian courts.

As a cyber lawyer, I remain optimistic about the future of electronic evidence in India. The legal system's proactive approach in embracing technology promises a future where justice prevails in the digital age.