July 31, 2021

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Admissibility of evidence of electronic records in India

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This article is written by Aashish Ahuja.

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In the 21st century, the technology has not only fascinated India but the entire world. The utilization of computers isn’t restricted to organizations yet accessible to each person at swipe of a finger. Information Technology has refined each and every human activity. In this time of digital world as the utilization of computers turned out to be better known, there was development in the field of technology. The advancement of Information Technology (IT) brought forth the internet wherein web gives equivalent occasions to all individuals to get to any data, information stockpiling, examine and so on with the utilization of high technology.

This expanding dependence on electronic methods for interchanges, internet business and storage of data in computerized structure has unquestionably made a need to transform the law relating to Information Technology and rules of admissibility of electronic proof in every case in India. The multiplication of computers and the impact of information technology on society as entire combined with the capacity to store and gather data in advanced structure have all required changes in Indian law to fuse the arrangements on the appreciation of electronic evidence. The Information Technology Act, 2000 and its revision depend on the United Nations Commission on International Trade Law (UNCITRAL) model Law on Electronic Commerce. The Information Technology (IT) Act 2000 was amended to consider the admissibility of electronic evidence. Amendments to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker’s Book Evidence Act 1891 empower the legislative framework to transact in electronic world. 

With the adjustment in law, Indian courts have created case law with respect to dependence on electronic proof. Judges have additionally shown perceptiveness towards the inborn ‘electronic’ nature of proof, which incorporates knowledge with respect to the admissibility of such proof, and the translation of the law corresponding to the way in which electronic proof can be brought and documented before the court. Digital proof or electronic proof is any probative data stored or communicated in computerized structure that party to a legal dispute may use at court trial. Prior to accepting any evidence it is indispensable that the assurance of its authenticity, veracity and relevance be discovered by the court and to set up if the fact is hearsay or a duplicate is preferred to the original. Computerized Evidence is “data of probative worth that is stored or communicated in binary structure”.

Proof isn’t just restricted to that found on electronic devices however may also include proof for computerized gadgets, for example, media transmission or visual device and sound gadgets. The E-Evidence can be found in messages, computerized photos, ATM exchange logs, word processing, archives, text narratives, documents spared from bookkeeping programs, spreadsheets, web program history information databases, contents of computer memory, computer reinforcements, computer printouts, Global Positioning System tracks, Logs from an hotel’s electronic entryway locks, digital video or sound records. Electronic Evidence will in general be more voluminous, more hard to demolish, handily altered, effortlessly copied, conceivably more expressive and all the more promptly accessible.

The spread of Coronavirus and the cross country lockdown has provoked the courts to direct legal procedures on the web. Various measures have been laid down by the courts for administration of justice during the pandemic. While the need of great importance requires such strides to be taken, it is basic that free and reasonable justice isn’t upset. Unlike to only a couple months back, the vision of virtual courts in India no longer appears to be daring. Combined with cycle of re-designing and streamlining of court measures, the Indian Judiciary, both in its physical and virtual structure, is gazing at a future with immense prospects in development and resolution of a portion of its long standing issues. How viable are virtual hearings:

The Covid 19 pandemic has brought to a head an issue that has been controversy for quite a long time. Despite the fact that the idea of e-courts has been being under dispute about for quite a while yet the Indian Judicial System, pretty much, has been not able to investigate and characterize the execution of this process. This lockdown period can be utilized by the Judiciary of India as an occasion to have more evolved court framework and update the utilization of technology in the framework. This research paper weights on the requirement for a methodical and logical way to deal with technology being integrated into the judiciary. The proposed exploration will fundamentally record, investigate, inspect into how the virtual court will resemble, the difficulties to be looked during transformation of actual court into virtual court, ongoing events, how it tends to be made fruitful and what model should be adopted by the courts.

The examination will take a look at the customary and the new model of working of courts in the wake of Covid-19. Subsequent to breaking down everything in a complete way, the report shows up that each emergency raises another opportunity, an occasion to create and redesign ourselves, an occasion to overhaul ourselves and upgrade ourselves to get immunity from the hindrances that may come up in any manner later on. While India wrestles with an emergency on the wellbeing and financial front, there is a need to thoroughly consider out of box and an adjustment in outlook with respect to the work culture is required. It is time that the court should open its doors to the recent innovation. Whenever personal stakes are kept aside and collective will to initiate what is for the benefit of everyone comes first, a virtual judiciary can turn out to be essential for the Indian judiciary.

There is no doubt that technology will greatly influence future courtroom and litigation practices, but the extent to which change will occur is subject to a reasonable amount of speculation because the technologies that are yet to be invented will changee the way of our living and will reshape our lives. There are various disruptive technologies such as steam engine, telephone, automobile, radio, airplane, television, computer, cell phone, and internet. However there were some technologies that were predicted before they came in (such as television, cell phone, internet) while others would have been difficult to imagine by early societies. So, with this in mind, there is a fair degree of difficulty in guessing about the future when one considers the new inventions coming in that might affect those projections.

The major accelerators of practicing the recording of evidence and changes in law are the digitalization of our country and rapid evolution of technology. The practice of recording electronic evidence not only raises legal questions but also has societal implications. Nowadays, social media is the platform where people share their thoughts and insignificant daily events for most of us, our smart phone contains a rich body of information on many aspects of our lives. In recent years, the media is focusing on the gathering of electronic evidence. The most important topic on which the media is trying to focus more is the use of information gathered from social media and networks. Thus, one needs to discuss present problems and future challenges of electronic evidence. The need is to set-up a legislative framework, to discuss different legal issues in different jurisdictions and what future challenges needs to be faced. The key issues are as follows:

(1) The collection and production of evidence in court by means of e-discovery and e-disclosure; 

(2) The authentication, admissibility and reliability of electronic evidence presented in the court; and 

(3) The interpretation and evaluation of electronic evidence presented in the court of law, including the use of social media and emojis.

There are several challenges that can be made to the authenticity of digital records:

  • Identity Management Challenge: 

Who Is the Author of the Records? Courts look for different ways to find the author of the digital information offered into evidence. Whether a message, document, video, or photo was included posted on a website, it is important for the proponent to provide testimony about who the author is. 

  • Is the Computer Program reliable that has generated different records? Was the output of the computer exact as it needs to be? 
  • Were the records altered, manipulated, or damaged after they were created? There are different Photoshop websites and graphic design programs that can change photographs and videos, while there are hackers who can alter websites, change databases, and other electronic media. Mostly they cover their tracks by changing audit log records.
  • Information from Social Media Sites

Due to infinite participants on social media platforms such as Facebook, MySpace, and LinkedIn the information has been created that is outside the knowledge and control of any specific person or organization. Also, in the absence of restriction on who may create a profile, courts generally apply a stricter standard to authentication of information from social networking sites. As it is possible that anyone can create a social network profile anonymously courts cannot necessarily attribute a particular message to the person who owns the site. It is difficult to determine the real author of post as it can be made from a public computer such as in a library or a hotel.

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  • Blurred the difference between Primary and Secondary Evidence

The statute has effectually blurred the difference between primary and secondary forms of evidence by including all forms of computer evidence into the ambit of primary evidence. An exception has been created for the evidence produced from the documents generated from the computers because it is of complicated nature and cannot be easily produced in tangible form. Thus, it can be a good argument to say that if the word document is the original then a print out of the same should be treated as secondary evidence, it should be considered that producing a word document in court without the aid of print outs or CDs is quite impossible.

Unfairly Prejudicial 

The word prejudicial means tending to convince based on past history of the events rather than actual evidence of case in hand. The evidence which is harmful, injurious or biased towards the case without establishing any proper fact and outraging the judge without providing any material fact is often excluded from the Court proceedings. For example, a child’s photograph around the victim’s body.

Wastes Time 

During the court trials, the advocates representing their clients often provide with evidence or witness which can lead to the wastage of time of the Court and however such witnesses or evidences are excluded from a court proceeding. For example, it is a waste of time for the Court if the advocate has to prove that the accused is an honest person by producing twenty separate people. 

Misleading 

If the evidence produced is drawing away the jury’s or the judge’s attention away from the main issue or essence of the case such evidence is considered as misleading evidence and should be excluded from the court proceedings. For example, a minor’s gender in a case of rape is irrelevant because the main fact to be established is whether rape was conducted or not on the minor and it is not important to know whether the minor was of which gender.

Hearsay evidence

Hearsay evidence is when a person himself is not physically present but got the knowledge of certain happening of an event from someone else. Such kind of evidence is inadmissible in court because any human can blame the other person for saving the guilty or to escape from punishment. 

For example, if witness ‘A’ claims that another witness ‘B’ said the defendant hit the victim with a stick and the prosecutor wants to use the testimony to prove that the defendant hit the victim, that testimony is considered as hearsay.

Character 

To prove the character of the defendant the evidence produced by the plaintiff party has certain traits which are excluded from the court proceedings unless the defendant introduces the evidence of character first in the hearing.

Expert Testimony

Expert testimony is only admissible in court when it is originally given by an expert and not by a layman. A layman’s testimony is not admissible in court.

Privileges 

The Court does not admit any kind of privilege information obtained by any attorney-client privilege as well as any other information which is self-incriminating. Such information is confidential in nature and would perjure the attorney and is inadmissible in the court of law. 

Recently, the Chairman of Bar Council of India had addressed a letter to the CJI criticizing the virtual hearing post lockdown period stating the huge gap between resources available for video-conferencing and e-filing platform with lawyers of from rural cities as compared to that of the elite class of big cities. He urged to introduce a virtual court system in a systematic manner. No doubt, the council has appreciated the idea of conducting “virtual hearing” particularly the Apex Court and High Courts for urgent matters, but the aforementioned letter highlights the fact that most of the advocates and judges are unaware of the technology and its nuances. The people sitting on elevated chairs are so unaware of the ground reality that’s why they are advocating such thought process”.

Recently, the Supreme Court has released a press note criticizing the continuation of virtual court hearing post-lockdown stating that the aim of both the system of adjudication through the open court system or via video conferencing is delivery of justice. The press notes further state that it is not an absolute right to claim open court hearings and process of adjudication itself does not demand an open court. However, in the current scenario when we are reliant on technology for every aspect of our lives and similarly virtual court rooms cannot be “antithetical” to the open court system in any manner.

In the present-day scenario, many difficulties can be faced in the practical implementation of virtual platform. Many people and litigants are facing difficulties in navigating a digitalized justice system due to lack of some practical training. In a way, creating a next-generation justice platform will be full of challenges but it is important to note that this is the first step towards digitalization of the court system in a series of many.

In our opinion video conferencing is being used for extremely urgent matters whereas the e-filing facility is available for all matters. However, there is a dire need for the judicial fraternity to remain accessible during this pandemic and the judiciary should approach the virtual court system post COVID-19 crisis as well. Unfortunately, even before this crisis, many people were facing difficulties to access justice through courts due to a variety of reasons including a lack of financial means, physical disabilities, and other unavoidable circumstances. There are several benefits of hearing via video conferencing which does not require physical presence wherein parties do travel miles to be present in person before courts. Secondly, it will be cost and time effective for the parties’ perspective as well as the judiciary. Most importantly this will reduce carbon footprint. However, the video conferencing should be made optional in all courts for different kinds of matters across the country. Digitalisation will reduce the number of pending cases before courts and will be an effective remedy for delayed justice.


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