INFORMATION TECHNOLOGY LAW

ASSIGNMENT

INFORMATION TECHNOLOGY
AND LAW OF EVIDENCE

GOWRI DEV
BBA.LLB
15
INTRODUCTION 3
LEGAL FRAMEWORK FOR ELECTRONIC RECORDS 5
A. Electronic Records 5
B. Admissibility of Electronic Records 6
C. Other Related Provisions 10
Presumptions Regarding Electronic Evidence 10
CONCLUSION 12
BIBLIOGRAPHY 13
INTRODUCTION

The 21st-century information revolution resulted in never-before technological innovation

and dynamic changes in the technology world. The constant evolution of the technical world
has mandated the evolution of jurisprudence on electronic evidence. The increased
dependency on computers and technology has completely transformed human lives. The
advancement of the IT sector created a vast cyberspace wherein an individual could have
equal opportunities in regard to access to data through the usage of high-end technology in
place. The increase in the application, dependency and use of technology has undoubtedly
become one of the pertinent reasons to reform the legislation related to Information
Technology. The proliferation of computers, the influence of information technology in
human lives, and the storage of information in the digital form required amendments to
Indian law to include provisions regarding the appreciation of digital evidence.

The Indian Evidence Act 1872 was enacted to codify rules and procedures to procure and
adduce evidence to decide a dispute in courts. The Evidence Act defines ‘evidence’ in section
3 to mean and include (i) all statements that 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; and (ii) all documents produced for the inspection of the Court; such documents are
called documentary evidence. The Act, when enacted, focussed solely on documentary and
oral evidence as the types of evidence.

With technology, other modes, namely, voice recording, video-recording, still photos through
cameras or other capturing modes, electronic devices including DVDs, CDs, hard discs,
website data, social network communication, email, instant chat messages, SMS/MMS, pen
drives, memory card data, etc., also became prevalent amongst the general public for storing,
creating and communicating data and documents. The intricate involvement of technology in
our day-to-day lives has given birth to cybercrimes.

Thus, amendments to the existing laws dealing with the physical plane were the need of the
hour.
In 2000, the Indian Parliament enacted the Information Technology Act (Act No. 21 of
2000), hereinafter the IT Act, to give legal sanction to electronic commerce and electronic
transactions, enable e-governance, and prevent cybercrime. Additionally, the Act made
corresponding amendments to existing Indian statutes to make digital evidence admissible.
These amendments follow the provisions introduced by the UNCITRAL Model Law on
Electronic Commerce, which the IT Act is based on. The Act brought changes to the Indian
Evidence Act, 1872, the Indian Penal Code, 1860, and the Bankers Book Evidence Act, 1891,
recognising transactions carried out by means of electronic data interchange and other forms
of electronic communications.
 LEGAL FRAMEWORK FOR ELECTRONIC
RECORDS

A. Electronic Records

The IT Act amended the definition of ‘evidence’ under Section 3 of the Indian Evidence Act
to include electronic records. Evidence now consists of three parts, (i) electronic records1, (ii)
documentary evidence other than electronic records, and (iii) oral evidence. Thus, evidence
can now be divided into,
(i)Oral evidence by the witness made before the Court
(ii)Documentary evidence which includes electronic records after the enactment of IT
Act.

The term ‘record’ has been defined under the IT Act to include2,

“data, record or data generated, image or sound stored, received or sent in an

electronic form or micro-film or computer-generated microfiche.”

Section 4 of the Act gives an overarching legal recognition for electronic records by
incorporating the provision for information to be provided in electronic form. It states,

“Any law provides that information or any other matter shall be in writing or in the
typewritten or printed form, then, notwithstanding anything contained in such law,
such requirement shall be deemed to have been satisfied if such information or matter
is– (a) rendered or made available in an electronic form; and (b) accessible so as to
be usable for a subsequent reference.”

1 Section 3 Indian Evidence Act “.......all document including electronic records produced for the inspection of
the Court, such statements are called documentary evidence”
2 Section 2(t) of IT Act 2000
In State (NCT of Delhi) v. Navjot Sandhu3, the Supreme Court held that courts could accept
electronic records such as printouts and compact discs as prima facie evidence without
notification.

B. Admissibility of Electronic Records

The IT Act 2000 amended the Evidence Act incorporating Sections 65A and 65B. It ensures
that the parties engaged in communication through various electronic mediums can assign
credence to the records and thus take full advantage of the technological advancements to
prove their stand in the courts.

Chapter IV of the Act, Sections 59-60 deals with oral evidence. Section 59 has been amended
which reads as follows: “All facts, except the [contents of documents or electronic records],
may be proved by oral evidence”. Thus section 59 states that electronic records cannot be
proved by way of oral evidence.

Chapter V of the Act, Sections 61-90 deals with documentary evidence. According to Section
61, the contents of a document can be proved either by primary or secondary evidence.

Exclusive provisions dealing with the admissibility of electronic evidence have been
incorporated by way of Sections 65A and 65B pursuant to the Amendment in the year 2000.
The amendment aims to render a simple procedure to admit ‘computer output’ (secondary
evidence) in evidence. Section 65A is an enabling provision, or rather an introductory
provision, which provides that the contents of electronic records may be proved in
accordance with provisions of Section 65B.

Section 65B deals with the admissibility of electronic records. Section 65-B sub-section (1)
states that any information contained in an electronic record that is printed or stored by
computer will be deemed to be a document. An electronic record shall be admissible as
evidence in any proceeding without any further proof, provided the conditions mentioned in
section 65B(2)-(4) are fulfilled. Section 65B (2) provides some conditions which are to be
satisfied in order to accept electronic records as evidence, which are briefly provided below –

3 State v. Navjot Sandhu, (2005) 11 SCC 600

 ● the computer was used by a person to store or process information for carrying on any
activity regularly over a period of time and has lawful control over the use of a such
computer,
● such information must have been regularly fed into the computer in the ordinary
course of the said activities. Throughout the material part of the said period, the
computer was operating properly, and even if not operating properly, it does not affect
the electronic record or accuracy of its contents and
● information in the electronic record reproduced/derived from information fed into the
computer in the ordinary course of the said activities.

If the conditions mentioned in this Section Sec. 65B(2) are satisfied, by necessary
implication, it will bring a presumption under Sec. 114 with respect to the regularity of the
computer output. Because admissibility of any fact stated therein without further proof is
nothing but the presumption of its regularity and correctness. Thus, if the conditions in Sec.
65B(2) are satisfied, the burden to prove otherwise is cast on the person who opposes it.

Section 65B (4) provides for the requirement of a certificate of authenticity in order to satisfy
the conditions set out above, signed by a person occupying a responsible official position.
Such a certificate will be evidence of any matter stated in the certificate. The certificate must
identify the electronic record containing the statement, describe the manner in which it was
produced, and also give such particulars of any device involved in the production of the
electronic record as may be appropriate for the purpose of showing that the electronic record
was produced by a computer. The certificate must also deal with any of the matters to which
the conditions for admissibility relate. This signature shall be evidence of the authenticity of
the certificate.

The Supreme Court held in State v. Navjot Sandhu4, that, “irrespective of the compliance
with the requirements of Section 65-B, which is a provision dealing with the admissibility of
electronic records, there is no bar to adducing secondary evidence under the other provisions
of the Evidence Act, namely, Sections 63 and 65”. The Supreme Court overlooked the non-
obstante clause in Section 65B which overrides the other sections when the evidence was
digital evidence. By invoking Sections 62 and 65 of the Evidence Act, which was meant for
paper documents when enacted, the Supreme Court bypassed the entire set of special

4 State v. Navjot Sandhu, (2005) 11 SCC 600

procedures laid down by the scheme of Section 65A and Section 65B together, making the
same completely optional.

In Anvar P.V. v. P.K. Basheer and ors5, the Court has interpreted sections 22A, 45A, 59,
65A & 65B of the Indian Evidence Act and held that secondary data contained in a CD,
DVD, or a Pen Drive are not admissible without a certificate under section 65 B(4) of the said
Act. In the case, it was said that electronic evidence without a certificate under section 65B
cannot be proved by oral evidence and also the opinion of the expert under section 45A of the
said Act cannot be resorted to make such electronic evidence admissible. After this case, it
was clarified that the only way to prove an electronic record/evidence is by producing the
original media as primary evidence and the copy of the same as secondary evidence under
section 65B of the Indian Evidence Act, 1872.

The Supreme Court in Anwar overruled Navjot Sandhu to the extent of the statement of the
law on the admissibility of secondary evidence pertaining to the electronic record. It held that
Section 65A and Section 65B are special provisions that relate to evidence relating to
electronic records and they are a complete code in themselves. Since special law will prevail
over general law, Sections 63 and 65 have no application in the case of secondary evidence
by way of electronic record; the same is wholly governed by Sections 65A and 65B of the
Evidence Act. An electronic record by way of secondary evidence shall not be admitted in
evidence unless the requirements under Section 65B of the Evidence Act are satisfied.

Thereafter, Tomaso Bruno and Anr. v. State of Uttar Pradesh6, a three-judge Bench of the
Supreme Court, without referring to the judgment passed in Anvar followed the law laid
down in Navjot Sandhu and held that secondary evidence of the contents of a document can
be led under Section 65 of the Evidence Act.

Thereafter, the Supreme Court in Shafhi Mohammad v. State of Himachal Pradesh7 2018,
held that the requirement of producing a certificate under Section 65B(4) is procedural and
not always mandatory. A party who is not in possession of the device from which the
document is produced cannot be required to produce a certificate under Section 65B (4). The
Court was of the view that the procedural requirement under Section 65B(4) is to be applied
only when electronic evidence is produced by a person who is in control of the said device,

5 Anvar P.V. v. P.K. Basheer & Ors., (2014) 10 SCC 473

6 Tomaso Bruno and Anr. v. State of Uttar Pradesh, (2015) 7 SCC 178
7 Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801
and therefore in a position to produce such a certificate. However, if the person is not in
possession of the device, Sections 63 and 65 cannot be excluded.

After divergent views were taken in the earlier Supreme Court decisions referred to above,
confusion had arisen as to whether a certificate under Section 65B(4) would have to be
obtained even when an original copy of the electronic record is produced as evidence.
Another issue that arose was whether it was mandatory to comply with the provisions of
Section 65B(4) or can the requirement to obtain a certificate be dispensed with.

At this juncture, it is also important to refer to Section 62 and Section 63 of the Evidence Act.
Section 62 defines the term ‘primary evidence’ – which means the document itself that is
produced before the Court. Under Section 63, secondary evidence includes copies made from
the original, certified copies, oral accounts of the contents of a document, etc.

The controversy surrounding electronic records was settled in the recent Supreme Court
decision, Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal8. The Court had to
adjudicate on an election petition which challenged the election of Mr. Arjun Panditrao
Khotkar from Jalna-101 Legislative Assembly Constituency, on the ground that the
nomination papers were filed after the stipulated deadline. The Respondents wished to rely on
video camera recordings to prove that the candidate had filed his nomination after the
stipulated deadline. The Election Commission produced CDs that contained a copy of the
video camera recordings, in accordance with the direction given by the High Court. However,
the necessary certificates were not produced in accordance with Section 65B(4) by the
Election Commission, despite multiple requests made by the Petitioner. The key takeaways
from the decision are

1. Section 65B differentiates between the original information contained in the

“computer” itself and copies made therefrom – the former being primary evidence,
and the latter being secondary evidence. The required certificate under Section 65B(4)
is unnecessary if the original document itself is produced. This can be done by the
owner of a laptop computer, computer tablet, or even a mobile phone, by stepping
into the witness box and proving that the concerned device, on which the original
information is first stored, is owned and/or operated by him. In cases where the
“computer” happens to be a part of a “computer system” or “computer network” and

8 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571
 it becomes impossible to physically bring such system or network to the Court, then
the only means of providing the information contained in the such electronic record
can be in accordance with Section 65B(1), together with the requisite certificate
Under Section 65B(4).
2. If the certificate is not issued or refused, the Court may order the production of the
certificate by the concerned authority.
3. The decision in Anvar P.V. has been upheld and the judgment in Tomaso Bruno v.
State of U.P. has been overruled. The obligation placed by Section 65B(4) was
mandatory, and not voluntary, and is a condition precedent before secondary copies of
an electronic record can be admitted.

C. Other Related Provisions

Presumptions Regarding Electronic Evidence

I. Gazette in electronic form

Under the provisions of section 81A, the court presumes the genuineness of electronic
records purporting to be the Official Gazette or an electronic record directed by any law,
providing the electronic record is kept substantially in the form required by law, and it is
produced from proper custody.

II. Electronic agreements

Section 84A provides a presumption that a contract is concluded where the digital signatures
of the parties are affixed to an electronic record that purports to be an agreement.

III. Secure electronic records and digital signatures

Section 85B provides that where a security procedure has been applied to an electronic record
at a specific point in time, then the record is deemed to be a secure electronic record from
such point of time to the time of verification. Unless the contrary is proved, the court is to
presume that a secure electronic record has not been altered since the specific point in time to
which the secure status relates. The provisions relating to a secure digital signature are set out
in section 15 of the IT Act, and such a signature is a digital signature, which by application of
a security procedure agreed upon by the parties concerned, at the time it was affixed was,
was:
 1) unique to the subscriber affixing it;
2) capable of identifying such subscriber;
3) created in a manner or using a means under the exclusive control of the subscriber and
is linked to the electronic record to which it relates in such a manner that if the
electronic record was altered the digital signature would be invalidated.

In the case of a secure digital signature, there is a presumption that the secure digital
signature was affixed by the subscriber with the intention of signing or approving the
electronic record, and in respect of digital signature certificates (section 85C), it is presumed
that the information listed in the certificate is correct, with the exception of information
specified as subscriber information that has not been verified if the certificate was accepted
by the subscriber.

IV. Electronic Messages

Under the provisions of section 88A, there is a presumption that an electronic message
forwarded by the sender through an electronic mail server to the addressee to whom the
message purports to be addressed, corresponds with the message fed into his computer for
transmission. However, there is no presumption as to the person by whom such message was
sent. This provision only presumes the authenticity of the electronic message and not the
sender of the message.

V. Electronic Records Five Years Old

The provisions of section 90A make it clear that where an electronic record is produced from
any custody that the court in a particular case considers proper, and it purports to be or is
proved to be five years old, it may be presumed that the digital signature affixed to the
document was affixed by the person whose signature it was or any person authorized by them
on their behalf. An electronic record can be said to be in proper custody if it is in the place in
which, and under the care of the person with whom, they naturally are. At the same time, the
custody is not improper if it is proved to have had a legitimate origin, or the circumstances of
the particular case are such as to render the origin probable. The same rule is also applicable
to the Official Gazette in electronic form.
CONCLUSION
As we are gradually moving towards the virtual world, which is an extended version of the
real world, every activity involves the generation of an electronic record. In today‘s era,
electronic records have become the most crucial piece of evidence in every crime. Therefore,
the position of admissibility of such a piece of evidence must not remain in ambiguity. Indian
Courts have clarified this position from time to time, that the original electronic record, and
the computer output, can be produced before the Court as evidence. Serious issues have been
raised in the digital world due to malpractices such as falsification of information and
impersonation, in relation to the authenticity of information relied upon as evidence. It raises
queries as to how it is possible to prove the creation and transmission of electronic
communication by one party when the party’s name as the author of the post could have been
inserted by anyone. With the challenges with respect to the admissibility and appreciation of
electronic evidence, India still has a long way to go in keeping pace with the developments
globally. Although the amendments were introduced to reduce the burden of the proponent of
records, they cannot be said to be without limitations. It is clear that India has yet to devise a
mechanism for ensuring the veracity of the contents of electronic records, which are open to
manipulation by any party by obtaining access to the server or space where it is stored.
BIBLIOGRAPHY
1. Indian Kanoon
2. The Admissibility of Electronic Record under Section 65-B of Indian Evidence Act,
The Leaflet, (2020) https://theleaflet.in/why-is-admissibility-and-authenticity-of-
electronic-evidence-complicated/
3. The Admissibility of Electronic Evidence, FoxMandal, (2020)
https://www.foxmandal.in/the-admissibility-of-electronic-evidence/#_ftn6
4. Admissibility of Electronic Evidence in India, Manupatra Articles, (2021)
https://articles.manupatra.com/article-details/Admissibility-of-Electronic-Record-in-
India