A CRITICAL ANALYSIS OF ADMISSIBILITY AND RELEVANCY OF DIGITAL EVIDENCE IN INDIA by - Muthukumaran Sivaswamy

A CRITICAL ANALYSIS OF ADMISSIBILITY AND RELEVANCY OF DIGITAL EVIDENCE IN INDIA

 

AUTHOR

Muthukumaran Sivaswamy

2nd year, B.A.LL.B(Hons)

Saveetha school of Law

Saveetha Institute of Medical and Technical Sciences

(SIMATS)

Chennai-600 077

kumaranrvp@gmail.com

Postal address: No:15, Mambalam high road, TNagar,

Chennai 600-017, TamilNadu.

Ph.no: 9778483911

 

ABSTRACT

The widespread use of computers and digitalization has been one of humanity's most inventive and revolutionary changes. Cyberspace has always had risks and the potential for the spread of crime, just like other spheres of human existence. This is because there is a large variety of content and information available, and it is also simple and widely accessible. However, there has been a substantial increase in its abuse as the cyber environment has grown. Given their propensity for deformation, the authenticity of electronic writings has long been a topic of discussion. Investigative organizations still struggle with the reliability of such electronic evidence. Comparatively to conventional or traditional evidence, electronic evidence necessitates particular training and knowledge in the area of cyberspace, therefore the approach adopted. Indian courts have always made an effort to make the legal situation clear, including the gathering procedure, admissibility, veracity, and relevance of electronic evidence. Few parts were still unclear, though. The purpose of this study is to examine Digital evidence admissible under Indian Evidence Act,1872 and to determine the extent of admissibility in Indian courts. Further to identify the procedure and safeguards, that needs to be adopted for handling digital evidence by Indian Judiciary. The research method adopted is empirical research with a simple random sampling method. The sample size is 223 samples with sample frames of in and around TamilNadu. The statistical tools used for data analysis are clustered bar graph, Chi-square, One way ANOVA and Correlation. This paper examines the issue of when an electronic evidence certificate is necessary, what information should be included in such a certificate, who is qualified to provide such a certificate, and at what point it is needed.

 

KEYWORDS: Evidence, Cyber Laws, Admissibility, Relevancy, Court.

 

INTRODUCTION

One of the most innovative and radical changes in humanity has been the proliferation of computers and digitalisation. As in other areas of  mortal life, cyber space has  noway  been free of  pitfalls and the transmission of crime. This is due to the diversity of content and information available as well as easy access and wide availability. still, with the increase in the cyber  terrain, there has been a significant increase in its abuse. Evidence law has changed dramatically in recent years, and different types of evidence are now admissible by courts. This change has also come to India with various changes to existing legislation. Pursuant to India's commitment to the United Nations Commission on International Trade Law (UNCITRAL), the Information Technology Act, 2000 (the "Information Technology Act") has come into force. This Act legalized and encouraged electronic commerce in the global marketplace and amended the Indian Evidence Act of 1872 (hereinafter referred to as the Evidence Act) to include provision for electronic evidence. The authenticity ofe-texts has always been  bandied, considering how they're prone to  deformation. Investigative agencies also continue to face issues regarding the validity of  similar electronic  substantiation.  Since electronic  substantiation, compared to conventional or traditional  substantiation, requires technical training and  moxie in the field of cyberspace, the  system used to  probe and  dissect information stored or  attained from the media electronically for  donation in a court of law is extremely important.  The composition analyzes and evaluates the validity of electronic  substantiation in a court of law in the light of  affirmations of judgment and legal purpose. Section 65A of the Evidence Act provides that the contents of electronic records may be verified under the provisions of Section 65B of the Evidence Act. Therefore, a written record of an electronic record can only be proven in accordance with the procedures set out in Section 65B of the Evidence Act. Section 65B of the Act of Evidence provides that all information contained in the Act of Evidence shall be information contained in electronic records, documents whose contents have been published or preserved, recorded, and which have been copied from optical or magnetic media are documents; Acceptable as evidence without further proof of original production provided the conditions set forth in Section 65B(2)-(5) of the evidence act. Although the significance of electronic records is obvious given the relevant facts and circumstances in each case, determining the correctness, validity, and trustworthiness of digital evidence are some of the primary difficulties that courts must overcome.

 

OBJECTIVES OF THE STUDY

• To examine Digital evidence admissible under Indian Evidence Act,1872 and to determine the extent of admissibility in Indian courts.
• To identify the procedure and safeguards, that needs to be adopted for handling digital evidence by the Indian Judiciary.
• To examine the issue of when an electronic evidence certificate is necessary, what information should be included in such a certificate, who is qualified to provide such a certificate, and at what point it is needed.
• To study the laws relating to admissibility and  relevancy of digital evidence in the courts in India

 

REVIEW OF LITERATURE

1. (Shweta; Ahmad, Tauseef) The study found that with growth and technological development, everyday life has changed a lot. Communicating through technology is very easy. Technology increasingly relies on electronic means of communication, e-commerce, and the storage of information in digital form. The rise and development of this technology has had a significant impact on the legal norms of the legal system, especially in the area of ​​evidence. This latest technology has generated and produced material that is considered evidence in court. This has necessitated changes to information technology laws and the rules for admissibility of electronic evidence in both civil and criminal cases.

 

1. (Nishant Gupta) The study found that anyone who engages in criminal activity will sooner or later be confronted with electronic evidence. For many, this kind of technical subject is a whole new and terrifying departure from traditional investigative exercises, and a virtual coroner is always someone who needs to obtain and investigate such evidence, but still There may be a desire for insight and insight. Basic knowledge of what a digital certificate is, where to find it, how to look for it, and how to work with it.
2. (Ivan Nafuye) The study found that the evidence related to computer crime is very different from that related to everyday tradition. crime. Digital is different. Forensics, there are established standards, procedures, and models that courts can invoke in relation to traditional crimes and their acquisition. This work makes a unique contribution to the field of digital forensics in Uganda by developing a process model and tolerance matrix.

 

1. (Gokul Sundar K Ravi) The study found that we are a generation living in an electronic world. With the tremendous growth of electronic communication, electronic writing has become a fundamental pillar of communication in today's society. The evolution of the paperless environment is characterized by three main trends. the dematerialization of the workplace; the ubiquity and adaptability of electronics.

 

1. (Pankaj Umbarkar, Priyanka R Mohod) The study analyzed in particular, the establishment of the International Criminal Court after World War II has clearly demonstrated the increase in international crime. The culmination of major courts such as Yugoslavia and Rwanda has opened new phases on several important issues, including respect for humanitarian principles throughout investigations, the relevance and credibility of evidence, the mechanisms as a whole and their legality.People The potential for an independent investigative mechanism for crimes against people cannot be ignored.

 

1. (Khandker Tanbir) The study found that the Bangladesh Evidence Law does not contain clear provisions regarding the admissibility of digital evidence. However, each law is designed to reflect the changing needs of society. So a related question arises like are Digital Evidence Allowed in Bangladesh Evidence Law? This article discusses such interesting questions. That is, through broad interpretation of the term "document", interpretation as a tangible object other than a document, and, the development of jurisprudence, the admissibility of digital evidence within the law has become more flexible. claimed to be. Also, digital records must be included in the Evidence Act of 1872, and legislators must take action to ensure that digital evidence is admissible in court, as public and public life revolves around digitized systems.

 

1. (Renjulal Yesodharan, Vishnu Renjith, Ashwini Kumar, Vinod C Nayak) The study found that the photos are a key factor in solving the mystery behind crime by providing important information related to criminal and legal investigations. Initially based on manually operated cameras and filmstrips, it later adopted digital technology to record and store images. Digital evidence can also indicate the relative position of evidence at a crime scene, determine the relative size of evidence, and complement other evidence gathering techniques.

 

1. (Changwei Liu, Anoop Singhal, Duminda Wijesekera) The study found that the attackers use complex techniques, such as combining multi-stage attacks and forensic tools to make incriminating evidence harder to find and reconstructing attack scenarios to withstand the expected burden of proof in court. tend to. As a solution, she proposes to integrate the legal aspects of evidence correlation into her Prolog-based reasoner to meet the admissibility requirement by creating the most probable attack scenario that satisfies the admissibility criteria of the proof. increase. Using a prototype implementation, we demonstrate how evidence extracted by forensic tools can be integrated with legal arguments to reconstruct network attack scenarios. Our experiments show that this implemented reasoner can provide a prior assessment of the admissibility of digital crime to attacked networks.

 

1. (Dr Ramzan Kasuri) The study found that the evidence is the most important way to prove the guilt and innocence of the defendant. However, evidence proving the accused's guilt and innocence is the oldest method. Forensic and digital evidence are new and recent phenomena in the history of evidentiary law, but they are still used as joint evidence rather than physical evidence. Certain questions arise when it comes to forensics and digital evidence.

 

1. (Nilima Prakash, Roshni Duhan) The study found that forensics is the use of science to determine facts in court. In modern times, almost all crimes are investigated using forensics, and this science is used as evidence to prove guilt or defend the accused. Forensic evidence includes physical evidence such as bullets and firearms, and medical evidence such as blood and DNA. The term computer forensics includes the collection, investigation and reporting of information found on computers and networks in connection with civil or criminal investigations.

 

METHODOLOGY

The method of research was empirical research. The sampling method was taken in a convenient sampling method. The sample size of the research is 228 samples. The sample frame was collected in India through online surveys. The independent variables were  age, gender, occupation, educational qualifications and income. The dependent variables were what are the most susceptible ways of forging a digital evidence that eventually leads to travesty of justice, what can be the challenges or hindrances in handling the digital evidence. The statistical tools used in the research were clustered bar charts, chi square, one way anova, correlation, etc,..

 

RESEARCH HYPOTHESIS

This research is assigned to study the relationship between the and people's opinion and admissibility and relevancy of digital evidence in the court. Using the convenient sampling method various dependent and independent variables have been used as stated above.

 

HO: There is no significant association regarding the and people's opinion and admissibility and relevancy of digital evidence in the court.

Ha: There is a significant association regarding the and people's opinion and admissibility and relevancy of digital evidence in the court.

 

DATA ANALYSIS AND INTERPRETATION

Figure:1

LEGEND:

In the figure:1 shows the age distribution pertaining to the statement, “ The presentation of digital evidence is more difficult than its collection because there are many instances where the legal framework acquires a set of approach and does not recognise every aspect of law”.

 

Figure:2

 

 

LEGEND:

The figure:2 shows educational qualifications pertaining to scale of 1-5 to the statement, “ it’s upon the courts to see whether the evidence fulfills the three essential legal requirements of authenticity, reliability and integrity”.

 

 

 

Figure:3

LEGEND:

The figure:3 shows occupation pertaining to the most susceptible ways of forging a digital evidence that eventually leads to travesty of justice.

 

Figure:4

LEGEND:

The figure:4 shows the people’s opinion on the entities that may be the challenges or hindrances in handling the digital evidence.

 

Figure:5

 

 

 

 

LEGEND:

The figure:5 shows the test of chi- square between the age and the entities that may be the challenges or hindrances in handling the digital evidence.

 

 

 

 

Figure:6

LEGEND:

The figure:6 shows the One-Way Anova test the gender and the statement, “The presentation of digital evidence is more difficult than its collection because there are many instances where the legal framework acquires a set of approaches and does not recognise every aspect of law”.

 

Figure:7

LEGEND: The figure:7 shows the test of correlation between the occupation and scale of 1-5 to the statement, “it’s upon the courts to see whether the evidence fulfills the three essential legal requirements of authenticity, reliability and integrity”.

RESULT AND DISCUSSION

In (figure:1) 22.09% of people between the age category of 21 to 13 and 2.33% of 18 to 20 and 3.49% of above 50 years people agree to the statement that the presentation of digital evidence is more difficult than its collection because there are many instances where the legal framework acquires a set of approach and does not recognise every aspect of law. In (figure:2) 20.93% of UG and 6.98% of HSC people rate 4 out of 5 on the scale to the statement, “It is upon the court to see whether the evidence fulfills the three essential legal requirements of authenticity, reliability and integrity”. In (figure:3) 20.93% of the public sector, 6.98% of self-employed/business, 3.49% of private sector and unemployed people opined that transposition is the most susceptible way of forging digital evidence, that eventually leads to travesty of justice. In (figure:4) more than 40% of the people say admissibility in the court is the challenges of hindrances in handling the digital evidence. In (figure:5) the calculated value is 0.329, which is >0.05, the p value. Hence, the null hypothesis is accepted, so there is no significant association between the age and the entities that may be the challenges or hindrances in handling the digital evidence . In (figure:6) the calculated value is 0.000, which is <0.05. Hence, the null hypothesis is rejected, so there is a significant difference between the gender and the statement, “The presentation of digital evidence is more difficult than its collection because there are many instances where the legal framework acquires a set of approaches and does not recognise every aspect of law” . In (figure:7) the calculated row value is -.135. So, there is a negative correlation between the occupation and scale of 1-5 to the statement, “ it’s upon the courts to see whether the evidence fulfills the three essential legal requirements of authenticity, reliability and integrity”.

 

LIMITATIONS OF THE STUDY

There were certain limitations for me while conducting the study. The questions were quite complicated for the respondents to understand as it was in nature of collecting opinion rather than the practice.There may be errors which might have taken place because the research is completely based on general conception or common awareness.Which may not be factfully appropriate, so that we can not arrive at an accurate presumption. There are limitations to conduct an analysis of the result also,because it failed to reach all over the population.

 

 

 

 

 

SUGGESTION AND CONCLUSION

India still has a long way to go before it can keep up with the latest trends, even with its problems with appropriateness and evaluation for electronic proof. Although the reforms were thought to lighten the consumer's load, they are not without constraints. The important findings of the research were  transposition, tampering, alteration and excision are the most susceptible ways of forging digital evidence and admissibility in courts, resource challenges, technical challenges and legal challenges are the challenges and hindrances in handling the digital evidence. India cannot seem to come up with a way to ensure the accuracy of electronic records that can be checked by a database by getting access to the server or space where they are kept. Verifying online evidence and focal points at the same time might be confusing. The three fundamental legal standards of integrity, unchanging quality, and reliability must all be met by the testimony before the courts. The numerous types of electronic evidence, including CDs, DVDs, hard drives, memory cards, internet data, social network communication, emails, instant messages, SMS/MMS, and computer-generated documents, present particular difficulties for effective verification and are open to multiple points of view. Different issues arise when managing electronic evidence than when handling traditional physical or documentary evidence during the course of an investigation and trial. India still needs to make significant progress in order to stay up with international advancements when it comes to the difficulties with regard to the admission and appreciation of electronic evidence. Although the amendments were introduced to reduce the burden of the proponent of records, they cannot be said to be without limitations. It is obvious that India has not yet developed a method to ensure the veracity of the information included in electronic records, which is susceptible to manipulation by anyone who has access to the server or location where it is kept. Along with benefits, the acceptance of electronic evidence can sometimes be complicated. Courts must determine whether the evidence satisfies the three fundamental legal requirements of veracity, dependability, and integrity. It can be anticipated that the Indian courts will adopt a consistent approach and will implement all feasible safeguards for accepting and appreciating electronic evidence in light of the Supreme Court's decision in the Anvars case, which established the rules for admissibility of electronic evidence.

 

 

 

 

 

 

REFERENCE

1. Relevancy and Admissibility of Digital Evidence: A Comparative Study, Shweta; Ahmad, Tauseef, Int'l JL Mgmt. & Human. 2, 100, 2019.
2. Relevancy and Admissibility of Electronic Evidence, Nishant Gupta, Jus Corpus LJ 1, 143, 2020.
3. A process model and matrix for acquisition of admissible live digital evidence (ALDEM), Ivan Nafuye, Busitema University., 2019.
4. RELEVANCY OF ELECTRONIC RECORDS AND ITS ADMISSIBILITY IN CRIMINAL, Gokul Sundar K Ravi.
5. Reflections on the Symptoms of Humanitarian Principles in the Investigations--A Study on Admissibility of Electronic Evidences., Pankaj Umbarkar, Priyanka R Mohod, Cardiometry, 2022.
6. Admissibility of Digital Evidence in Bangladesh, Khandker Tanbir, Available at SSRN 4274024, 2021.
7. Forensic clinical photography: A game changer in medicolegal investigation and forensic science Renjulal Yesodharan, Vishnu Renjith, Ashwini Kumar, Vinod C Nayak, Indian J Forensic Med Toxicol 12 (2), 262-266, 2018.
8. Relating Admissibility Standards for Digital Evidence to Attack Scenario Reconstruction. Changwei Liu, Anoop Singhal, Duminda Wijesekera, Journal of Digital Forensics, Security & Law 9 (2), 2014.
9. Forensic and Digital Evidence be used as Substantial Evidence in Criminal Cases, an Effective Alternative of Ocular Account: Evaluation in the Light of New Amendments. What are …, Dr Ramzan Kasuri, What are the Requirements of Admissibility and Reliability of Digital and Forensic Evidence, 2022.
10. Computer forensic investigation process and judicial response to the digital evidence in India in light of rule of best evidence, Nilima Prakash, Roshni Duhan, Journal Homepage: http://ijmr. on 8 (05), 2020.

 

 

 

 

 

 

 

PLAGIARISM