The Bharatiya Sakshya Bill, 2023, recently introduced in Parliament, aims to replace the long-standing Indian Evidence Act. This move has sparked discussions and debates across various circles and one of the key changes is that the Bill allows for evidence of digital records (such as email) to be given in court.

A review of the Bill finds that the previous position on electronic evidence has been largely maintained. Some of the adjustments made formalize the current position as put down by case law to make it more obvious, while others necessitate additional examination.

Reiteration of existing position and positive changes

The position on the acceptability of electronic records has not changed much. In the year 2000, the existing Indian Evidence Act was updated to include provisions for electronic evidence. The majority of these have been carried over into the current Bill. Even before the year 2000, electronic records might have been submitted in court using the device that created the electronic record (for example, a laptop on which a document is kept). Other computer outputs from such devices, which would otherwise be considered secondary evidence, were made admissible after 2000 by elevating them to the same level as primary evidence. As a result, a printout becomes admissible without the need to bring the computer into evidence. In Arjun Panditrao, the Supreme Court of India has clarified.

The Bill has codified the principles that were settled in the Arjun Panditrao case. The definition of ‘primary evidence’ in Clause 57 (corresponding to the existing Section 62) has been retained from the existing Act, but four more Explanations have been added. The Explanations clarify what is to be considered ‘primary evidence’ when dealing with electronic records. Clause 61 further clarifies:

“Nothing in the Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall have the same legal effect, validity and enforceability as paper records.”

Secondary evidence for electronic records – Potential complications

The adjustments made in this regard necessitate more attention. The clause has been expanded to include information generated or stored by communication devices. Information obtained through middlemen has also been included, which is a step in the right direction. The format of the certificate required under this Section is likewise specified in the Bill’s Schedule. This is also a favourable trend. According to the author’s experience, most litigants are often confused about the details that should be included in the certificate, and many certificates filed by the Delhi Police with their chargesheets are extremely insufficient. A predetermined format would almost likely prevent embarrassment at trial due to technical errors.

Strangely, however, the certificate provided in the Schedule itself does not meet the requirements prescribed in sub-clause 2. This sub-clause requires that the certificate to be submitted needs to specify that the device was under the lawful control of the person, that the computer was operating properly, etc. Sub-clause 4(c) requires these statements to be present in the certificate. Yet, they are missing in the format prescribed itself. Whether this is an oversight or a fundamental failure to understand the scheme of the legislation by the drafters itself, is an interesting thought.

The clause also introduces certain issues. Along with a certificate from the computer’s operator, it also requires a certificate from an expert. Surprisingly, instead of specifying that the certificate must be issued by an Examiner of Electronic Evidence (as defined in Section 79A of the Information Technology Act), the paragraph simply states “expert (whichever is applicable)”. It’s unclear why it’s worded this way.

Even yet, it’s unclear why an expert’s certificate is required at the stage of evidence admissibility. According to the Schedule as well as the clause, the expert is merely required to confirm that the computer output was obtained from the particular computer device. Thus, a person intending to give electronic evidence would be required to first contact an expert, hand over the computer device and request them to generate the computer output and take a certificate.

This is obviously nonsensical and would result in disproportionate hardship for no discernible reason. If a person is obliged to take a computer device to an expert in order to obtain the output, why not simply take the device to court as primary evidence? Because of the requirement of the expert’s certificate, the convenience of producing digital evidence that was intended by this section is completely lost.

An expert may be called upon to examine electronic evidence (such as a video or audio file) to determine whether it has been tampered with. But there is a distinct subject than the admissibility of the document itself, and the certificate necessary is relevant to such matters.

A confusing exercise

It’s unclear why these revisions were made to a phrase that was already enough to handle secondary evidence for electronic documents. True, certain clarifications had to be codified for specific provisions. However, there does not appear to be any pressing need to need an expert’s certificate for every computer output intended to be used as evidence. Furthermore, in his concurring opinion in the Arjun Panditrao case, Justice V Ramasubramanian analyzed the laws for electronic evidence in various jurisdictions and asked for a reconsideration of Section 65-B. These proposals do not appear to have been considered when the Bill was drafted.

It is hoped that enough debate will take place before any draft of the Bill is finalized. A critical exercise for any such debate would be to determine why such changes were made in the first place since they add nothing of value and only complicate the admissibility of electronic documents. The answer is still unknown as of now.