This blog focuses on how Certificate requirement have evolved in the Bhartiya Sakshya Adhiniyam under section 63(4), earlier 65(B) of Indian Evidence Act, for admissibility of Electronic Evidence over last decade.
The evolution of technology has revolutionized evidence collection and presentation, rendering electronic evidence indispensable in modern litigation. Under the Bhartiya Sakshya Adhiniyam (BSA) 2023, the legislative successor to the erstwhile Indian Evidence Act, the requirement of a certificate under Section 63(2) plays a pivotal role in determining the admissibility of electronic records.
Certificates are essential in authenticating electronic records, ensuring their integrity, origin, and reliability. Such authentication derives from the legal presumption that electronic records, being susceptible to tampering, modification, or fabrication, need corroborative documentation to establish their genuineness. The certificate, issued by a responsible person in control of the device or systems producing the record, acts as a seal of authenticity, enhancing the evidentiary value of electronic documents.
However, legal interpretations and subsequent amendments in the BSA have nuanced this requirement, particularly after the landmark Supreme Court judgment in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. (2020), reshaping its application and judicial understanding.
Incorporating the SC Judgment in Arjun Panditrao Khotkar Case (2020)
The Supreme Court’s verdict in the Arjun Panditrao case served as a definitive ruling on Section 65B of the Indian Evidence Act, which governed the certification requirement for electronic evidence. The Court clarified that a certificate under Section 65B was mandatory for the admissibility of electronic evidence, except in exceptional circumstances. The bench observed that electronic records lacked inherent verifiability unless supplemented by certification from a competent authority under the section.
This judgment built upon earlier rulings such as Anvar P.V. v. P.K. Basheer (2014), which established the mandatory nature of the certificate to prevent unauthenticated or unreliable electronic evidence from being admitted, and Shafhi Mohammad v. State of Himachal Pradesh (2018), which sought to relax this rigidity by allowing courts to admit electronic evidence without a certificate in cases where the producing party lacked control over the devices. However, Arjun Panditrao reaffirmed the primacy of certification, setting aside any interpretation that deviated from statutory mandates.
The decision invited significant scrutiny for being overly rigid, particularly in cases where obtaining such certificates was either impossible or impractical, such as when the devices or systems were no longer available or accessible to the party relying on the electronic record. The ruling raised concerns about justice being compromised on technical grounds, compelling legislative intervention.
The BSA 2023 responded by recalibrating the balance between evidentiary requirements and practical considerations. By incorporating elements of the Arjun Panditrao judgment, the Act retained the centrality of the certificate requirement while introducing greater judicial discretion in scenarios where such certification was unavailable.
Key Changes in the BSA 2023 Following the Judgment
The BSA 2023 introduced notable changes, demonstrating a shift towards judicial pragmatism in electronic evidence handling. One critical development was the replacement of Section 65B of the Indian Evidence Act with a more comprehensive Section 63 under the new law. While maintaining the requirement for certification under Section 63(2), it expanded on exceptional circumstances under which courts could consider electronic records without such certification.
A primary change was the acknowledgment of scenarios beyond a litigant’s control. The legislation recognized that technical and operational hurdles might inhibit the procurement of certificates, such as the demise of the individual responsible for issuing the certificate or the destruction of relevant electronic systems. By embedding flexibility within statutory language, the Act aimed to mitigate the rigidity criticized in Arjun Panditrao while safeguarding the credibility of electronic records.
Sections of BSA 2023 Reflecting Judicial Flexibility
Section 63(2) of the BSA remains the cornerstone for certifying electronic evidence, stipulating that records be accompanied by a certificate attesting to their authenticity, system integrity, and process reliability. This certificate must originate from a responsible individual with dominion over the device or processes generating the record.
Further, provisions of Section 63 enhances judicial discretion in balancing procedural adherence and the broader goal of justice. It allows courts to assess whether admitting electronic evidence without strict compliance would serve the interests of justice, provided the evidence’s probative value remains intact. This provision underscores the judiciary’s proactive role in bridging procedural requirements with equitable considerations.
Read Also: Admissibility of Electronic Evidence u/s 63 of BSA
Impact on the Admissibility of Electronic Evidence Going Forward
The amendments in the BSA 2023 herald a more balanced approach to the admissibility of electronic evidence, offering relief to litigants grappling with practical challenges. While the certification requirement under Section 63(2) remains crucial for ensuring the credibility of electronic records, the flexibility granted to specific scenarios where procedural adherence proves unfeasible.
Judicial reliance on electronic evidence is set to grow, given the increasing digitization of personal and commercial interactions. These amendments enable courts to scrutinize the substantive value of electronic records rather than dismissing them on technical grounds alone. By allowing evidentiary consideration in exceptional cases, the BSA aligns legal procedures with technological realities without compromising on justice.
Moreover, the growing incorporation of blockchain and other technologies for maintaining the chain of custody, as envisaged , marks a significant leap in ensuring the reliability and traceability of electronic evidence. These tools minimize the risk of tampering, providing courts with greater confidence in the evidentiary integrity of digital records.
However, the newfound discretion demands responsible judicial exercise. Courts must vigilantly assess claims of procedural impracticalities, ensuring that the exception does not become a loophole for admitting dubious electronic records. The provision’s efficacy will rest on striking the right balance between procedural adherence and substantive justice, demanding thoughtful interpretation and application.
Additionally, the legal fraternity must adapt to this legislative shift. Legal practitioners and investigators must be well-versed in the operational dynamics of electronic systems, ensuring robust certification processes and alternate validation techniques when necessary. Training programs and legal-tech advancements, including blockchain-based record keeping and automated certification tools, will likely gain prominence, equipping stakeholders to navigate the complexities of digital evidence seamlessly.
Summary
The BSA 2023’s nuanced stance on certificates for electronic evidence signifies a watershed moment in India’s evidentiary jurisprudence. By reconciling procedural rigour with judicial pragmatism, it embraces the realities of an increasingly digital world while safeguarding the justice system from the pitfalls of rigid statutory interpretation.
In a legal landscape where technology’s role continues to expand, the future of electronic evidence will hinge on the harmonious interplay of legislation, judicial discretion, and technological innovation. The reforms introduced by the BSA 2023 are a step forward, promising a more inclusive and equitable approach to electronic evidence admissibility. As courts and practitioners adapt, these changes hold the potential to fortify the evidentiary framework while upholding the principles of justice in a digital age.