New rules to adduce digital evidence in Courts

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Allegations of corrupt electoral practices in the Kerala Legislative Assembly conducted in the year 2011 has lead the Supreme Court to make a authoritative ruling on adducing digital evidence in Courts. In the case of Anvar P.V vs P.K.Basheer & Ors the court has been pleased to overrule its previous ruling on admissibility of secondary evidence in State v. Navjot Sandhu (2005) 11 SCC 600 with respect to the admissibility of electronic records.

Rules of Admissibility as per State v. Navjot Sandhu

The case of State v. Navjot Sandhu is popularly called the parliament attack case, which lead to the conviction of the Respondent under various provisions of the Indian Penal Code and the Prevention of Terrorism Act, 2002. One of the pieces of evidence relied by the prosecution and subsequently forming the basis of conviction were the call records of the accused. In appeal before the Supreme Court has occasion to adjudicate on the admissibility of the call records as electronic evidence.

The Court held that printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. This would make the call records admissible. The Supreme Court went further on to state that irrespective of the compliance of the requirements of Section 65B of the Evidence Act which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65.

The Court held that merely because a certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65.

New Rules of Admissibility as per Anvar P.V vs P.K.Basheer & Ors

As stated before the Supreme Court in Anvar has now overruled the position in law as in State v. Navjot Sandhu. The Court has now held that any documentary evidence in the form of an electronic record can be proved only in accordance with the procedure prescribed under Section 65B of the Evidence Act.

To reach this conclusion the Court reasoned that Section 65B of the Evidence Act has been inserted by way of an amendment by the Information Technology Act, 2000. Inasmuch it is a special provision which governs digital evidence and will override the general provisions with respect to adducing secondary evidence under the Evidence Act.

The Court further goes on to hold that provisions such as Section 45A of the Information Technology Act, 2000 which provide for the opinion of examiner of electronic evidence can only be availed once the provisions of Section 65B are satisfied. Hence compliance with Section 65B is now mandatory for persons who intend to rely upon emails, websites or any electronic record in a civil or criminal trial to which provisions of the Evidence Act are applicable.

Practice Guidelines

Following from this judgement is important for lawyers to ensure compliance with Section 65B when seeking to rely on electronic records in court.

1. Simply stated Section 65B mandates that every electronic record will be admissible only if it is supported by an affidavit of the party. The provision further specifies who should make such an affidavit, its form and contents.
2. The affidavit is usually made by the person who is in control of the computer terminal (if it is an email) or has procured access to the electronic record. This has to be explained and the person making the affidavit may be called as a witness at the stage of trial.
3. Such an affidavit should not be made in a mechanical manner and should be drafted under instructions of the client reflecting the unique facts and circumstances of the case. Broad compliance with substantive requirements of Section 65B should be made but a blind reliance on boilerplates should be avoided. Lawyers would be well advised to consider an affidavit under Section 65B as a part of the pleadings inasmuch they are required to draft it, as opposed to just filling in the blanks.
4. Even prior to trial, especially at the stage of ex-parte injunctions in intellectual property matters, the strength of the electronic records are today being weighed by Courts extensively. A well drafted affidavit under Section 65B adds to the overall strength of the claim asserted in Court and increases the chances of a favourable order.

A template of a Section 65B affidavit is available at the following link.