NEW HORIZONS IN INDIAN LAW: THE EVOLUTION OF ELECTRONIC EVIDENCE AND ITS ROLE IN MODERN LITIGATION By- Mohd Mustafa

NEW HORIZONS IN INDIAN LAW: THE EVOLUTION OF ELECTRONIC EVIDENCE AND ITS ROLE IN MODERN LITIGATION

Authored By- Mohd Mustafa

“From the time the case is registered, till it is disposed of with judgment, the entire processing must take place electronically.”

-Dr. APJ Abdul Kalam, (12th Justice Sunanda Bhandare Memorial Lecture,

New Delhi, 01 November 2006)[1]

ABSTRACT

In the era of artificial intelligence and machine learning technologies, electronic evidence is a new frontier that is evolving and being applied by the Indian Judicial System in evidentiary law. The application of electronic evidence in modern litigation has changed the face of Indian law. The digital age has resulted in a vast amount of electronic data that is admissible as evidence in court, requiring legal professionals to have an understanding of admissibility criteria along with the principles governing the collection, preservation, and presentation of such evidence. The evolution of electronic evidence in India and its impact on modern litigation are examined in this article. It also discusses the challenges and opportunities that electronic evidence presents, such as the need for a strong legal framework to govern its use and the role of forensic experts in analysing and presenting electronic evidence in court. The increasing use of artificial intelligence and information technologies would be a challenge as well as an opportunity for doing justice with the help of electronic evidence. Is the electronic evidence only admissible post-insertion of the new law under Sections 65A and 65B of the Indian Evidence Act, 1872? In this article, this question is also addressed. Finally, the article examines recent case law in India on electronic evidence and concludes by highlighting the significance of technological literacy for legal professionals in the digital age. It is also being discussed how tools based on AI, such as ChatGPT, OpenAI GPT-3, Google Bard, and other upcoming chat bots, can empower the administration of justice.

MEANING AND DEFINITION OF

ELECTRONIC EVIDENCE

In general parlance, "electronic evidence" refers to any type of information or data that is stored in digital format and can be presented as evidence in a court of law. This includes electronic documents, emails, text messages, social media posts, audio and video recordings, computer files, databases, and metadata, etc. Electronic evidence is often used in criminal investigations and civil litigation cases to prove or disprove a fact.

“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) [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence.”[2]

The Information Technology Act, 2000 (Act 21 of 2000), was introduced, and through this, the Evidence Act, 1872, and the Indian Penal Code, 1860, were amended. By Act 21 of 2000, the Interpretation Clause provided under Section 3 of the Evidence Act, 1872, was amended, and the definition of "evidence" was partly substituted with the insertion of "all documents, including electronic records, produced for the inspection of the Court." The expression "electronic records" is not defined under the Evidence Act, 1872; rather, via the last paragraph of the Interpretation Clause of the Act, it is clarified that "electronic records" shall have the same meaning as assigned in the Information Technology Act, 2000. Sections 65A and 65B were also inserted to provide for the admissibility of electronic records and the procedure for proving such records. Section 65A lays down the conditions for the admissibility of electronic records, while Section 65B provides for the certification of electronic records by a person in charge of the computer or device used to create the record. As per the “Section 2(1)(t) of Act 21 of 2000 "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.”[3] In general parlance electronic records refer to any type of information or data that is stored in digital or electronic form. This includes a wide range of data like text, images, audio-video files, social media posts, commercial documents such as agreements, contracts, and emails. Electronic records can be created, edited, and shared using various electronic devices, such as computers, smartphones, tablets, and other digital devices[4]. The electronic records have been granted recognition IT Act, 2000[5].

Section 65A and 65B of the Indian Evidence Act, 1872, deal with the admissibility of electronic records as evidence in a court of law.

Section 65A provides for the admissibility of electronic records, stating that information contained in electronic records is considered to be a form of documentary evidence and is admissible in court. The section defines electronic records as data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche[6].

However, for an electronic record to be admissible as evidence, the following conditions[7] must be met:-

1. The electronic record must be produced in a prescribed manner.
2. The electronic record must be produced from the device or equipment that was used to create, store or transmit it.
3. The electronic record must be identified correctly by the person producing it.

Section 65B deals with the conditions for the admissibility of electronic records as evidence, particularly in relation to the requirements for the production of electronic records.[8] It requires that the person producing the electronic record must be able to provide the following information:-

1. The information contained in the electronic record was generated by a computer.
2. The computer was used in the normal course of business.
3. The computer was operated properly.
4. The information was fed into the computer in the ordinary course of business.

If these conditions are met, the electronic record is considered admissible as evidence in court. However, if these conditions are not met, the electronic record may be considered inadmissible[9].

The video clips or footages, images and even electronic document contained in pen drive or memory card/CD/DVD etc. are electronic record as enumerated in Section 2(1)(t) Act 21 of 2000, therefore is a "document" and shall not be considered as a material object[10]. Electronic evidence can be easily manipulated or altered, so strict rules and procedures must be followed to ensure its authenticity and admissibility in court[11]. Therefore “When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the Code of Criminal Procedure, 1973.”[12]

ORIGIN AND EVOLUTION OF ELECTRONIC EVIDENCE IN INDIA

The use of electronic evidence in India can be traced back to the introduction of the Indian Evidence Act, 1872, which recognized the admissibility of documentary evidence in legal proceedings. However, with the advent of electronic communication and digital technology, the concept of electronic evidence has evolved significantly over the years. Therefore subsequently amendments were introduces in the Indian Penal Code, 1860, the Indian Evidence Act, 1872, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 by introducing a new law the Information Technology Act, 2000[13] which is based on the United Nations Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law (UNCITRAL).[14] In the field of evidentiary jurisprudence the branch of electronic evidence differs from traditional kind of evidences. The distinguishing feature of electronic evidence is that it is dynamic in nature, means that its provability and reliability get change with the advancement of technologies in cyberspace and cyber forensics. The method of collecting, proving, and preserving electronic evidence evolves with time and technology.

It would not be wrong to assert that the origin of electronic evidence can be traced back to 1972 in a case of the Supreme Court of India named R.M. Malkani vs. State of Maharashtra[15]. In this case, the police used a new technology for recording evidence by means of a mechanical process called "phone tapping." The same type of technology or technology based on the same principles is now being used by the cyber police to record or create electronic evidence. At that time in the 1970s, the nomenclature "electronic evidence," "electronic records," etc. was not prevalent; therefore, it was not used in the R.M. Malkani case, and the evidence recorded was simply taken as phone tapping evidence recorded with a mechanical process.[16] If the R.M. Malkani case had happened after 2000, the evidence of phone tapping would have been classified as electronic evidence. Even the principles used to determine the authenticity and reliability of modern electronic evidence are the same as those considered in the phone tapping case. In this case, the telephone conversation was recorded using a tape recording machine, which is essentially the same as a modern phone call. The R.M. Malkani case may be considered the foundation of electronic evidence in India. The judgement provided for the admissibility of evidence collected by means of technology. Based on this analysis, it may be concluded that there was never a question on the admissibility of electronic evidence and that the real issue is one of reliability, authenticity, and genuineness. Electronic evidence has been admissible ever since the enactment of the Information Technology Act, 2000, and related amendments to the Indian Evidence Act, 1872, Sections 65A and 65B, etc. Theoretically, asserting and claiming that the concept of electronic evidence was introduced by the Information Technology Act of 2000 and similar amendments to the Evidence Act of 1872 and the Indian Penal Code of 1860 is incorrect, because it has existed since the advent of cyberspace technologies such as computers, telephones, telegraph machines, and so on. It's just that, with these new laws, what was already implicit in the definition of documentary evidence under Section 3 of the Evidence Act of 1872 is now explicitly provided and granted statutory recognition. Furthermore, in the admissibility of electronic evidence, express statutory recognition has brought more clarity and reliability.

ROLE OF SUPREME COURT OF INDIA IN EVOLUTION OF ELECTRONIC EVIDENCE

State of Maharashtra vs. Praful B. Desai[17]

Dr. Greenberg, a US-based surgeon, examined the complainant's wife and opined that she was not in a fit state for surgery and should only be medicated. Following that second opinion, Dr. A K Mukherjee, an India-based surgeon with 40 years of experience, advised them to have the uterus surgically removed. Despite being aware of Dr. Greenberg's view, he advised removing the uterus by operation, which badly affected the life of that lady and subjected her to physical pain until she passed away. Following an investigation, the Maharashtra Medical Council found Dr. Mukherjee guilty of medical negligence. Being not well, Dr. Greenberg declined to come to court in India for the recording of his statement. But he was willing to testify before the court via video conference. Therefore, the prosecution requested the same. The issue before the Supreme Court of India was whether evidence recorded through video conferencing could be admissible in court proceedings. The Supreme Court held that evidence recorded through video conferencing could be admissible in court proceedings under certain conditions.[18] The Court laid down guidelines for conducting video conferencing:-

1. The witness must give his or her consent to give evidence through video conferencing.
2. The witness must be identified by a judicial officer or a consular officer.
3. The recording must be done in an environment free from any disturbance.
4. The quality of the video and audio must be clear and of adequate quality.
5. The recording must be done in presence of a judge who ensures that it is not tampered.
6. The accused or his counsel must have access to the video conferencing and the opportunity to cross-examine the witness.
7. The judge must ensure about any pressure or coercion on witness and not assisted by any person or document while giving evidence.
8. A complete record of the entire proceedings must be maintained, including the manner in which the witness was identified, the notice given to the accused, the questions put to the witness, and the manner in which the witness gave answers.

The Supreme Court's guidelines in this case have been repeated numerous times in cases involving video conferencing, forum convinces, and electronic evidence.[19]

Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal[20]

The Supreme Court's guidelines in this case have been repeated numerous times in cases involving video conferencing, forum shopping, and electronic evidence. Is the requirement of a certificate under Section 65B(4) of the Evidence Act mandatory for the production of electronic evidence? In reference to the case before the Supreme Court, the main argument was that according to a prior decision of the full bench (3-judge bench) in Anvar P.V. vs. P.K. Basheer 2014 SC[21], a written and signed certificate under Section 65B (4) was held to be mandatory for the admissibility of electronic records and no oral evidence could be adduced in support thereof. Thus, in the absence of such a certificate, electronic evidence shall not be admitted. A division bench took note of the Anvar P.V. case as well as the decision in Shafhi Mohammad vs. State of Himachal Pradesh[22], where another division bench of the SC had held that the certificate requirement under Section 65B(4) was not always mandatory and could be relaxed in the interest of justice. In view of an apparent conflict between the interpretation of Section 65B by three judges in the Anvar P.V. case and by two judges in the Shafhi Mohammad case, the issue was referred to a three-judge bench in the Arjun Panditrao case to settle this conflicting question of law.

In this case, the Supreme Court answered a reference, upholding the verdict delivered in Anvar P.V. vs. P.K. Basheer (2014 SC, 3 judge bench case), and overruling Shafi Mohammad vs. State of Himachal Pradesh (2018 SC, 2 judge bench case).

• It has been observed that an electronic record, by way of secondary evidence, shall not be admitted in evidence unless the requirements under Section 65B are satisfied. And the required certificate under Section 65B (4) is unnecessary if the original document itself is produced. Therefore, now a certificate required under Section 65B (4) is a condition precedent for the admissibility of electronic evidence if the original document itself is being produced.
• The owner of a laptop, computer device, e-chip, mobile phone, or any other electronic device may present such a device in court and prove that he owns or operates the device in which the original information is first stored; this is primary evidence.But when it becomes impossible to bring devices to the Court physically because they are part of a huge electronic system such as a computer network or are inseparable by nature, the only means of providing the information contained in such an electronic record is in accordance with Section 65B(1), together with the requisite certificate from the concerned authority under Section 65B(4).
• The court observed that the major concern in Shafhi Mohammad's case is that the required certificate cannot be timely and duly obtained, which is wholly incorrect. In the Anvar PV case, it has been held that where the requisite certificate has been applied for and the person in authority denies or ignores the request for such a certificate, the aggrieved party can apply to the court for its production under the provisions aforementioned of the Indian Evidence Act, 1872, the Code of Civil Procedure, 1908, or the Code of Criminal Procedure, 1973. In cases where either a defective certificate is given or not given, the court may summon the person referred to in Section 65B(4) of the Evidence Act, 1872.
• Exercising its discretion and seeing that the accused is not prejudiced by the lack of a fair trial, the court may, in appropriate cases, allow the prosecution to produce such a certificate at a later point in time.[23] However, this will depend on the justice of the case and the court's discretion in accordance with the law.

ROLE IN MODERN LITIGATION

Electronic evidence plays a crucial role in modern litigation in India. With the increasing use of technology in our daily lives, electronic evidence has become a crucial source of evidence in legal proceedings. With their ease of accessibility and user friendliness, the information technologies are dangerous in the sense that they are prone to mistakes, and therefore the question of reliability, authenticity, and legitimacy remains open and debatable.

Electronic evidence includes any data or information that is stored or transmitted electronically, such as emails, text messages, social media posts, digital photos and videos, and electronic documents. It can also include metadata, which is information about the data itself, such as the date and time it was created or modified, the author, and the location.[24]

In modern litigation in India, electronic evidence can be used in several ways, including:

1. Discovery: Electronic evidence can be requested during the discovery phase of a lawsuit, where each party is required to provide the other with relevant evidence. This can include emails, documents, and other digital records.
2. Proof: Electronic evidence can be used to prove or disprove facts in a case. For example, if a plaintiff claims they were terminated due to discrimination, electronic evidence such as emails or messages may show that discriminatory language was used by the defendant.
3. Authenticity: Electronic evidence can be used to authenticate other evidence. For example, an email can be used to verify the authenticity of a contract or agreement.
4. Admissibility: Electronic evidence must meet certain criteria to be admissible in court. This includes establishing its authenticity, reliability, and relevance to the case.
5. Preservation: Electronic evidence must be properly preserved to ensure its integrity and prevent tampering. This involves creating a chain of custody to track the evidence and ensuring that it is stored securely[25].

In India, electronic evidence is recognized and admissible in court under the Indian Evidence Act, 1872, and the Information Technology Act, 2000. The Supreme Court of India has also issued guidelines on the admissibility and proof of electronic evidence in court. Overall, electronic evidence plays a critical role in modern litigation in India and can significantly impact the outcome of a case. It is essential for lawyers and litigants to be familiar with the rules and procedures related to electronic evidence in order to effectively use it in legal proceedings.

ROLE OF AI IN THE AREA OF ELECTRONIC EVIDENCE AND MODERN LITIGATION

AI can play a significant role in electronic evidence in court. Here are some ways in which AI can be used in the context of electronic evidence in court[26]:

• Analyzing patterns and trends: AI algorithms can identify patterns and trends in electronic data that might not be immediately apparent to human reviewers. This can help lawyers build a stronger case and identify potential weaknesses in their opponent's argument.
• Assisting with legal research: AI algorithms can be used to search legal databases for relevant case law and statutes. This can help lawyers build a stronger legal argument and better understand the legal landscape surrounding their case.
• Identifying relevant evidence: AI algorithms can be trained to identify relevant evidence based on certain criteria, such as keywords or topics. This can save lawyers time and effort in reviewing large amounts of data.
• Predictive analytics: AI algorithms can be used to analyze data and make predictions about future outcomes. For example, they can be used to predict the likelihood of a certain outcome in a case based on the evidence presented.
• Processing large amounts of data: AI algorithms can process large amounts of electronic data such as emails, social media posts, and text messages in a short time. This can be useful for lawyers who need to review evidence quickly and efficiently.[27]

It's important to note that while AI can be a powerful tool for processing and analyzing electronic evidence, it should always be used in conjunction with human judgment and expertise. Ultimately, it's up to lawyers and judges to make decisions based on the evidence presented in court. Therefore AI is not to be considered as a substitute for human lawyers, but rather a tool to help them work more efficiently and effectively. Ultimately, it is up to the lawyers and judges to use their legal knowledge and judgment to make decisions in the best interests of their clients and the legal system.

CONCLUSION

In conclusion, the evolution of electronic evidence in Indian law has opened up new horizons for modern litigation. Technological advancements have enabled the storage and retrieval of massive amounts of data, which can now be used as evidence in court. Electronic evidence has revolutionized the way litigation is conducted in India, making it faster, more efficient, and more reliable. However, this evolution also poses new challenges and raises ethical concerns that must be addressed to ensure that the use of electronic evidence is fair and just. Overall, the incorporation of electronic evidence in Indian law represents a significant step forward in the legal system's ability to handle complex and high-volume cases, and it is expected to continue to play a vital role in the future of litigation. The directions issued by the Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal shall be duly followed, and accordingly, the appropriate rules and directions shall be framed exercising Section 67C of the Information Technology Act, 2000, after taking into consideration the report of the Committee constituted by the Chief Justice’s Conference in April, 2016. These rules shall provide for the preservation and segregation of data, chain of custody, stamping, and record maintenance for the entire duration of trials and appeals. Before admitting electronic evidence, the principles enumerated in various precedents, the Indian Evidence Act, 1872, and the Information Technology Act, 2000, must be satisfied.

[1] Dr. APJ Abdul Kalam, Judiciary and its multi-dimensions, Speech of the then President of India Dr. APJ Abdul Kalam at 12th Justice Sunanda Bhandare Memorial Lecture, New Delhi, 01 November 2006, official website of Punjab and Haryana High Court, https://highcourtchd.gov.in/sub_pages/left_menu/publish/articles/articles_pdf/sunanda.pdf, at page no. 8, last visited on Feb. 28, 2023.

[2] The Indian Evidence Act, 1872, S 3, No. 1, Acts of Parliament, 1872 (India).

[3] The Information Technology Act, 2000, S 2, No. 21, Acts of Parliament, 2000 (India).

[4] P. Gopalkrishnan vs. State of Kerala, (2019) 17 SCC 702.

[5] The Information Technology Act, 2000, S 4, No. 21, Acts of Parliament, 2000 (India).

[6] The Indian Evidence Act, 1872, S 65A, No. 1, Acts of Parliament, 1872 (India), Ins. by Act 21 of 2000, s. 92 and the Second Schedule (w.e.f. 17-10-2000)

[7] Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, see also Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801

[8] The Indian Evidence Act, 1872, S 65B, No. 1, Acts of Parliament, 1872 (India), Ins. by Act 21 of 2000, s. 92 and the Second Schedule (w.e.f. 17-10-2000).

[9] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, see also Dr. P. Vinod Bhattathiripad and Loknath Behera, Electronic Evidence in the Indian Courts: A Set of Forensic Guidelines for the Police Officers in India, 66 The Indian Police Journal, 1, 2-3 (2019).

[10] P. Gopalkrishnan vs. State of Kerala, (2019) 17 SCC 702.

[11] Dr. P. Vinod Bhattathiripad and Loknath Behera, Electronic Evidence in the Indian Courts: A Set of Forensic Guidelines for the Police Officers in India, 66 The Indian Police Journal, 1, 2 (2019).

[12] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, see also P. Gopalkrishnan vs. State of Kerala, (2019) 17 SCC 702

[13] The Information Technology Act, 2000, Preamble, No. 21, Acts of Parliament, 2000 (India).

[14] United Nations Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law (UNCITRAL) available at https://digitallibrary.un.org/record/232118?ln=en, last visited on feb.28.2023.

[15] AIR 1973 SC 157.

[16] S. Pratap Singh vs. The State of Punjab AIR 1964 SC 72, also see Ysufalli Esmail Nagree vs. The State of Maharashtra AIR 1968 SC 147, also see Shri N. Sri Rama Reddy etc. vs. Shri V. V. Giri (1971) 2 SCC 63.

[17] (2003) 4 SCC 601.

[18] State of Maharashtra vs. Praful B. Desai, (2003) 4 SCC 601.

[19] Central Bureau of Investigation v. V. Sriharan alias Murugan, (2015) 7 SCC 447, see also Ritesh Sinha v. State of Uttar Pradesh, (2019) 5 SCC 728, see also State of Kerala v. Rasheed, (2010) 7 SCC 773, see also Swapnil Tripathi v. Supreme Court of India, (2020) 3 SCC 149, see also Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158.

[20] (2020) 7 SCC 1.

[21] (2014) 10 SCC 473.

[22] (2018) 2 SCC 801.

[23] Shyam Sunder Prasad v. Central Bureau of Investigation Lucknow, Allahabad High Court, Criminal Revision No. 588 of 2022, decided on June 6, 2202. See also Paras Jain and Others v. State of Rajasthan, 2015 SCC OnLine Raj 8331

[24] Pavan Duggal and Rahul Kumar, Electronic Evidence in Indian Law: A Critical Analysis, International Journal of Law and Legal Jurisprudence Studies, Vol. 5, Issue 5, 2018.

[25] Ajay Bhargava, Aseem Chaturvedi , Karan Gupta and Shivank Diddi, India: Use Of Electronic Evidence In Judicial Proceedings, Mondaq, (Feb. 28, 2023, 12:13 PM), www.mondaq.com/india/trials-amp-appeals-amp-compensation/944810/use-of-electronic-evidence-in-judicial-proceedings

[26] Ashmita Mitra and Amulya Baid, Artificial Intelligence and the Future of Legal Profession, Volume 1 Issue 2, International Journal of Legal Science and Innovation, 2019, available at https://www.ijlsi.com/wp-content/uploads/Artificial-Intelligence-And-The-Future-Of-Legal-Profession.pdf, last visited on Feb. 28, 2023.

[27] Cary G. Debessonet and George R. Cross, Artificial Intelligence Application in the Law: CCLIPS, a Computer Program That Processes Legal Information, An, 1 Berkeley Tech. L.J. 329 (1986). Available at: http://scholarship.law.berkeley.edu/btlj/vol1/iss2/2, last visited on Feb. 28, 2023.