Admissibility of Electronic Records as Evidence in India

With the advent and widespread use of electronic means to facilitate business transactions, it is vital to understand the enforceability of such transactions in India’s courts of law, more specifically, the admissibility of electronic records as evidence of the legality of such transactions.

An e-mail address is commonplace in today’s world. Similarly, almost everyone with a cellular device is on a social networking app. People everywhere are using these applications to stay connected. Many businesses conduct essential meetings and business deals on platforms such as e-mail, and even on instant messaging apps such as WhatsApp and other similar applications. Schedules and minutes of meetings, essential documents, and receipts are all communicated via or on office WhatsApp groups. However, it is essential to be informed on how electronic records of conversations and documents shared on such platforms should be preserved and protected in the event these are to be produced as evidence in court. 

Are Electronic Records Admissible as Evidence in India?
To keep pace with the rapid developments in technology, the legislature enacted the Information Technology Act, 2000 and amended the Indian Evidence Act, 1872 in 2016 to recognize and include electronic records as admissible evidence in dealing with cases of cyber crime. Evidence law in India is categorized into Primary and Secondary Evidence, primary evidence  being the original, and secondary evidence being any number of copies or reproductions of the original. The distinction serves to impose on secondary evidence a higher threshold of authenticity in comparison to primary evidence in order to filter out any miscreants who may tamper with evidence. The general rule of law of evidence is that when primary evidence (i.e. the original) is not available, secondary evidence (i.e. copies) is not admissible.  

The principle governing primary and secondary evidence is   applicable to electronic evidence too. While the device that produces the electronic record is primary evidence, any reproduction of such electronic record (print outs, soft copy) is secondary evidence.  However, due to the complexities associated with adducing primary electronic evidence (since data in an electronic device is stored on magnetic medium, and in the case of data on online servers  which becomes inaccessible as the servers cannot possibly be moved into court), this general rule that secondary evidence is only admissible when primary evidence is available is relaxed. 

All electronic documentation, therefore, falls under the category of secondary evidence. Owing to the   nature of electronic records and their susceptibility to tampering, courts have adopted stringent measures while evaluating the authenticity, reliability, and relevance of all forms of electronic records, including chats on social messaging platforms, chat engines, and traditional electronic records such as e-mail. The slightest doubt that such record may have been tampered with is sufficient for courts to reject its admissibility altogether.  

Preservation of electronic records
Anyone who seeks to adduce e-mails as evidence has to download/printout  the e-mail which encapsulates details of the names of the sender and the recipient, as also the date and time of the message. Such data is proof of its relevance to the transaction to which evidence is sought to be adduced. All web-based e-mail facilities such as Outlook, Gmail, and Yahoo have a provision for this exercise.

Online Messaging Platforms
Online messaging platforms such as WhatsApp, Viber, and Telegram are admissible as legal evidence, provided the electronic records of these conversations are preserved and retrieved in a methodical manner.Conversations on messaging platforms could be archived by taking multiple screen shots. However, since the conversation slides are saved as photos, the authenticity of some of these images can be questioned. A safer option is auto-archiving conversations through designated mail service providers.  

Securing admission of an electronic record
When an electronic record is sought to be produced in court as material of reliance or evidence, then such electronic record is supported with a self-declaratory certificate in the form of an affidavit, signed by a person in real-time control of the device/devices from which such electronic record is retrieved. This certificate also details the manner and process by which the electronic record was retrieved, including a description of devices that stored and facilitated the retrieval, copy, and copy production of the electronic record. The declaration also confirms that the retrieved electronic record is identical to the original on the electronic device that produced or stored it. It is also preferable for the certificate to state that the certifier was directly involved in the subject conversation/transaction in question or had knowledge of it. 

During trial, if the need arises to further verify the copy of the electronic records submitted in court as evidence, then the services of an expert could be  sought to certify the authenticity of the certificate produced.  

Provisions regarding Electronic Evidence
The submission of the certificate or declaration in support of electronic evidence is not sufficient for judicial proceedings. Proving the validity of an electronic record is as challenging as getting it admitted as evidence. The next step towards acceptable proof is to establish the actual involvement of the accused in the conversation/transaction as reflected by the electronic record. To demonstrate that the ‘other party’ was in fact involved in such exchange is often tedious. Hence, it is always important to “connect the dots” by way of providing circumstantial evidence to supplement the available evidence on record. Providing previous transactional history, proof of ongoing relationships, call histories involving the ‘other party’ are instances of circumstantial evidence to corroborate any electronic record. 

Conclusion
Current law relating to the admissibility of electronic documentation of different kinds still has a few issues that remain unresolved. Questions relating to the authorship of the certificate and clarity on the procedure for preserving and adducing more modern forms of electronic documentation in court are being debated, and an authoritative precedent on these grey areas is awaited. However, the onus is on individuals to be aware of the existing legal protection granted to electronic records. With new laws being drafted on personal data and information technology and the increasing number of disputes before courts relying on electronic records as evidence, the evolution of standard practice and procedure to be adopted in relation to preserving, admitting, and proving electronic records in court should soon get clarity.

Authored by Gerald Manoharan – Partner, JSA

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