INTRODUCTION
The evidence laws have been modernised, streamlined, and made simpler by the “Bharatiya Sakshya Adhiniyam, 2023”, replacing the “Indian Evidence Act of 1872”.[1]Although many of the provisions of the IEA are still included in the BSA, they have been updated and improved.
The usage of digital and electronic evidence in court proceedings is expanding quickly but dealing with the many categories of electronic evidence such as CDs, DVDs and computer-generated documents brings a unique set of problems and difficulties for suitable authentication. But now the changes have been introduced and BSA has allowed digital or electronic records to be accepted as evidence and stipulates that they must have the same legal weight, validity, and enforceability as paper records. The updated definition of ‘document ’ clearly includes digital and electronic records.[2]
Electronic evidence is regarded by the BSA as documentary evidence. Documentary evidence is defined as “evidence” under S. 2(1)(e) to include documents that include electronic or digital records that are produced for the Court’s scrutiny.
As compared to IEA, which defines “electronic evidence” as documentary evidence in the interpretation clause under Sec 3 whereas BSA defines the term “electronic evidence” more broadly, encompassing digital information and electronic equipment.
ANALYSIS
In contrast to the IEA’s regulations, which treat electronic records as secondary evidence, the BSA views them as primary evidence.[3]It states that any file created or stored concurrently or sequentially in multiple files including electronic or digital records is primary evidence. Therefore, by BSA, the electronic record may be produced for the Court’s examination, which is not permitted by the IEA that mandates S. 65 B’s required procedure for electronic record admissibility.
It has established the electronic or digital record as a reliable and valid piece of evidence in a court of law while deciding a case. As, particularly in a criminal trial, where the defence side is granted the benefit of the doubt because there is a lack of primary evidence, even in the presence of electronic evidence, and the investigating agencies struggle to find substantial physical evidence that is typically primary.
ADMISSIBILITY OF EVIDENCE
Electronic and digital records are accepted under Section 61, which also stipulates that they have the same legal standing and validity as paper records. The record’s contents must be compliant with Section 59’s requirements, as demonstrated by primary evidence.
A comparison of Sec.63 of the BSB and Sec.65B of the IEA reveals some significant modifications to the rules controlling the acceptance of electronics.
Documents that must be mentioned:
It says that an electronic record that is recorded, stored, or replicated in semiconductor memory is also considered “Information.” Any communication device’s output as well as any other electronically stored, recorded, or duplicated data is included in the definition of “computer.”[4]
According to S. 63(4),[5] The certificate proving the admissibility of electronic evidence must be submitted at the same time as the record for admission, in cases where a statement is needed. There is no such clarity in S. 65B (4) IEA. Further, it stated that the certificate should be signed by the expert and the person in charge of that communication device.
According to the IEA, a certificate is required for electronic record authentication. The Committee observed that S. 59 of the BSA specifies that electronic records must be supported by primary evidence. Nonetheless, S. 63 of the IEA, which mandates certificate authentication, is still included regarding the admissibility of electronic records.
ELECTRONIC RECORD-RELATED CONCERNS
Since the BSA permits the use of electronic records as primary evidence, there is a chance that these records will be tampered with during the adjudication process, which starts with the investigation and ends with the accused being found guilty or not, unless special precautions are taken to prevent this from happening. The Supreme Court acknowledged in 2014 that electronic documents are vulnerable to manipulation and tampering.[6] It said that if the entire trial is predicated on the evidence of electronic records without sufficient safeguards, it could result in injustice. Furthermore, as digital and electronic records are vulnerable to manipulation, The Standing Committee on Home Affairs (2023)[7] Stressed the significance of protecting their integrity and authenticity. It suggested requiring the safe handling and processing of all digital and electronic records gathered as evidence during an inquiry through an appropriate chain of custody.
The Karnataka High Court published recommendations for the bare minimum of protections to be provided when searching and seizing electronic records in 2021.[8] A few of these are as follows: (i) making sure the search team is accompanied by a certified forensic examiner; (ii) forbidding the person in search from utilizing the seized electronic device to gather electronic records or conduct the investigation; (iii) confiscating any digital storage device (such as hard drives or pen drives) and putting it in a Faraday bag. Faraday bags prevent electromagnetic impulses from being transmitted, which could damage or corrupt data that is stored in the device.
Also, there is ambiguity regarding the admissibility of electronic evidence in BSA. Since the BSA has embraced electronic records in its definition of documents. It keeps the IEA’s requirement that all papers be admitted as primary evidence unless they meet the criteria for secondary evidence (the original must be shown against the person it is meant to prove or has been destroyed). It does, however, still include the need that all electronic records be authenticated by a certificate for them to be accepted as legal documents. The effects of this supersede those of other provisions. These modifications might create uncertainty about whether electronic records are admissible.
CONCLUSION
By giving priority to technology, the BSA, 2023 represents a breakthrough in the criminal judicial system of India. In addition to extending the range of admissible evidence, it also introduces protocols for managing digital evidence and virtual court appearances. It has recognized electronic evidence as primary evidence and makes it easier for judges to make decisions if there is only the presence of electronic evidence earlier it was difficult for them as it has been considered secondary evidence. The BSA still has concerns regarding tampering of evidence but addresses the important issue regarding electronic evidence.
The Indian judicial system must continue to be flexible and adaptable as technology develops, accepting electronic evidence in its courtrooms while maintaining the values of justice and fairness.
Author(s) Name: Nanki Kour Chhabra (SVKM’s NMIMS, Indore)
References-
[1] Indian Evidence Act 1872
[2] The Bharatiya Sakshya Adhiniyam 2023, s 2 (1) (D)
[3] The Bharatiya Sakshy a Adhiniyam 2023, s 57
[4] BSA 2023, s 63 (1)
[5]BSA 2023, s 63 (4)
[6]Anvar P.V. v P.K. Basheer AIR 2015 SC 180
[7] Standing Committee Report Summary <PrsIndia.org>
[8]Mr. Virendra Khanna v State of Karnataka, Karnataka High Court 2021, Writ Petition No. 11759 of 2020
