Comparative Analysis of Electronic Evidence: Bharatiya Sakshya Adhiniyam, 2023 vs Indian Evidence Act, 1872

ABSTRACT

The digital revolution has brought about a paradigm shift in the way evidence is generated, stored, and presented in legal proceedings. As technology continues to advance, the importance of electronic evidence in litigation is only expected to grow. Against this backdrop, the Bharatiya Sakshiya Adhiniyam (BSA), 2023, has introduced significant changes to the law of electronic evidence in India. This paper provides a comprehensive analysis of the BSA’s provisions on electronic evidence, comparing them to the Indian Evidence Act (IEA), 1860, and examining their implications for the Indian legal system. The paper also explores the challenges and concerns surrounding the admissibility of electronic evidence in India, and suggests steps to address them. By examining the intersection of technology and law, this paper aims to contribute to the development of a robust and effective framework for the use of electronic evidence in Indian courts.

KEYWORDS:  Admissibility, Bharatiya Sakshiya Adhiniyam, Digital Forensics, Electronic Evidence, Indian Evidence Act, Preservation, Proof.

INTRODUCTION

The advent of technology has revolutionized the way we live, work, and communicate. The digital age has brought about an exponential increase in the generation and exchange of electronic data, which has, in turn, transformed the landscape of evidence in legal proceedings. Electronic evidence, encompassing a wide range of digital artifacts such as emails, social media posts, digital documents, and more, has become a crucial component of modern litigation. In India, the legal framework governing electronic evidence has undergone a significant transformation with the introduction of the Bharatiya Sakshiya Adhiniyam (BSA), a legislation aimed at modernizing the country’s evidence law. The BSA, which came into effect in 2022, has replaced the Indian Evidence Act (IEA), 1872, as the primary legislation governing evidence in Indian courts.

While the BSA has introduced several significant changes to the law of evidence, its impact on electronic evidence is particularly noteworthy. The new legislation has expanded the scope of electronic evidence, introduced new procedures for its authentication and verification, and provided for more robust mechanisms for its preservation and production. However, the transition from the IEA to the BSA has also raised several questions and concerns. How do the provisions of the BSA differ from those of the IEA in relation to electronic evidence? What are the implications of these changes for litigants, lawyers, and judges? How will the courts interpret and apply the new provisions, and what challenges and opportunities will arise in the process?

This paper seeks to provide a comprehensive comparative analysis of electronic evidence under the BSA and the IEA. By examining the provisions of both laws, analyzing relevant case law, and discussing the implications of the changes introduced by the BSA, this paper aims to provide a nuanced understanding of the legal framework governing electronic evidence in India. Ultimately, this analysis will inform the development of best practices and guidelines for the collection, preservation, and production of electronic evidence, ensuring that the Indian legal system remains equipped to handle the challenges and opportunities of the digital age.

ELECTRONIC EVIDENCE

Definition and Scope of Electronic Evidence

The definition and scope of electronic evidence have undergone significant changes with the introduction of the Bharatiya Sakshiya Adhiniyam (BSA). This section will examine the definitions and scope of electronic evidence under both the BSA and the Indian Evidence Act (IEA), highlighting the key differences and implications for the Indian legal system.

Definition of Electronic Evidence under the Indian Evidence Act (IEA)

Under the IEA, electronic evidence was not explicitly defined. However, Section 3 of the IEA[1] defined “evidence” as “all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.” This broad definition encompassed various forms of evidence, including electronic evidence.

In the absence of a specific definition, courts in India relied on judicial interpretations to determine the admissibility and scope of electronic evidence. In the landmark case of State of Maharashtra v. Dr. Praful B. Desai (2003), the Supreme Court of India held that electronic evidence, including computer-generated records, could be considered as “documentary evidence” under Section 3 of the IEA.

Definition of Electronic Evidence under the Bharatiya Sakshiya Adhiniyam (BSA)

The BSA has introduced a specific definition of electronic evidence, which is more comprehensive and inclusive than the IEA. Section 2(1)(e) of the BSA[2] defines “electronic evidence” as:

“…any information of probative value that is stored, transmitted, or received in an electronic form, including, but not limited to,—

1. electronic records;
2. electronic documents;
3. digital signatures;
4. electronic communications;
5. computer-generated records;
6. digital images;
7. audio and video recordings;
8. any other form of electronic data.”

This definition explicitly includes various forms of electronic data, providing clarity and certainty on the scope of electronic evidence.

Scope of Electronic Evidence under the BSA

The BSA has expanded the scope of electronic evidence, making it more inclusive and comprehensive. The following are some key aspects of the scope of electronic evidence under the BSA:

Electronic Records: The BSA recognizes electronic records as a distinct category of electronic evidence. Section 2(1)(e)(i) defines “electronic records” as “records generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.”

Digital Signatures: The BSA has introduced digital signatures as a form of electronic evidence. Section 2(1)(e)(iii) defines “digital signature” as “an electronic signature or an advanced electronic signature.”

Electronic Communications: The BSA includes electronic communications, such as emails, text messages, and social media posts, as a form of electronic evidence.

Computer-Generated Records: The BSA recognizes computer-generated records, including printouts, as a form of electronic evidence.

Comparison of the Scope of Electronic Evidence under the IEA and BSA

The BSA has significantly expanded the scope of electronic evidence compared to the IEA. The key differences are:

• Explicit Definition: The BSA provides an explicit definition of electronic evidence, whereas the IEA did not.
• Inclusive Definition: The BSA’s definition of electronic evidence is more comprehensive, including various forms of electronic data.
• Recognition of Digital Signatures: The BSA recognizes digital signatures as a form of electronic evidence, which was not explicitly recognized under the IEA.
• Expanded Scope: The BSA has expanded the scope of electronic evidence to include electronic communications, computer-generated records, and digital images.

Thus we observe that, the BSA has introduced a more comprehensive and inclusive definition of electronic evidence, expanding its scope to include various forms of electronic data. This change is expected to have significant implications for the Indian legal system, particularly in the context of electronic evidence in litigation.

ADMISSIBILITY OF ELECTRONIC EVIDENCE

The admissibility of electronic evidence is a critical aspect of the Indian Evidence Act (IEA) and the Bharatiya Sakshiya Adhiniyam (BSA). The admissibility of electronic evidence determines whether it can be presented in court as evidence to prove or disprove a fact in issue. This section will examine the admissibility of electronic evidence under both the IEA and the BSA, highlighting the key differences and implications for the Indian legal system.

Admissibility of Electronic Evidence under the Indian Evidence Act (IEA)

Under the IEA, the admissibility of electronic evidence was governed by the general principles of evidence. The IEA did not provide specific provisions for the admissibility of electronic evidence. However, courts in India relied on judicial interpretations to determine the admissibility of electronic evidence.

In the landmark case of State of Maharashtra v. Dr. Praful B. Desai[3] (2003), the Supreme Court of India held that electronic evidence, including computer-generated records, could be considered as “documentary evidence” under Section 3 of the IEA. The court also laid down certain guidelines for the admissibility of electronic evidence, including:

• Relevance: The electronic evidence must be relevant to the facts in issue.
• Authenticity: The electronic evidence must be authentic and not tampered with.
• Reliability: The electronic evidence must be reliable and trustworthy.
• Certification: The electronic evidence must be certified by the person who generated or stored it.

Admissibility of Electronic Evidence under the Bharatiya Sakshiya Adhiniyam (BSA)

The BSA has introduced specific provisions for the admissibility of electronic evidence. Section 4 of the BSA provides that electronic evidence shall be admissible in any proceedings if it is:

• Relevant: The electronic evidence is relevant to the facts in issue.
• Authentic: The electronic evidence is authentic and not tampered with.
• Reliable: The electronic evidence is reliable and trustworthy.
• Certified: The electronic evidence is certified by the person who generated or stored it.
• Generated by a Computer: The electronic record is generated by a computer in the course of its ordinary use.
• Stored in a Computer: The electronic record is stored in a computer in the course of its ordinary use.
• Produced by a Computer: The electronic record is produced by a computer in the course of its ordinary use.
• Certified by a Responsible Person: The electronic record is certified by a responsible person who is familiar with the computer system.

Comparison of Admissibility of Electronic Evidence under the IEA and BSA

The BSA has introduced significant changes to the admissibility of electronic evidence compared to the IEA. The key differences are:

• Specific Provisions: The BSA provides specific provisions for the admissibility of electronic evidence, whereas the IEA did not.
• Certification: The BSA requires certification by a responsible person who is familiar with the computer system, whereas the IEA required certification by the person who generated or stored the electronic evidence..
• Expanded Scope: The BSA has expanded the scope of admissible electronic evidence to include electronic records, digital signatures, and computer-generated records.

In general, the BSA has introduced significant changes to the admissibility of electronic evidence, providing more clarity and certainty on the requirements for admissibility. The BSA’s provisions on admissibility of electronic evidence are expected to have a significant impact on the Indian legal system, particularly in the context of electronic evidence in litigation.

PROOF OF ELECTRONIC EVIDENCE

The proof of electronic evidence is a critical aspect of the Indian Evidence Act (IEA) and the Bharatiya Sakshiya Adhiniyam (BSA). The proof of electronic evidence determines the manner in which electronic evidence is proved in court to establish its authenticity and reliability. This section will examine the proof of electronic evidence under both the IEA and the BSA, highlighting the key differences and implications for the Indian legal system.

Proof of Electronic Evidence under the Indian Evidence Act (IEA)

Under the IEA, the proof of electronic evidence was governed by the general principles of evidence. The IEA did not provide specific provisions for the proof of electronic evidence. However, courts in India relied on judicial interpretations to determine the proof of electronic evidence.

As seen in the landmark case of State of Maharashtra v. Dr. Praful B. Desai (2003), the Supreme Court of India held that electronic evidence, including computer-generated records, could be proved through:

• Primary Evidence: The original electronic record or document.
• Secondary Evidence: A copy of the electronic record or document, certified by the person who generated or stored it.
• Oral Evidence: Testimony of a witness who is familiar with the electronic record or document.

Proof of Electronic Evidence under the Bharatiya Sakshiya Adhiniyam (BSA)

The BSA has introduced specific provisions for the proof of electronic evidence. Section 65A of the BSA provides that electronic evidence shall be proved through:

• Electronic Record: The original electronic record or document.
• Certified Copy: A certified copy of the electronic record or document, certified by the person who generated or stored it.
• Printout: A printout of the electronic record or document, certified by the person who generated or stored it.
• Digital Signature: A digital signature, which is a secure electronic signature that authenticates the electronic record or document.
• Hash Value: A hash value, which is a unique digital fingerprint that authenticates the electronic record or document.
• Certificate of Authentication: A certificate of authentication, issued by the person who generated or stored the electronic record.
• Certificate of Verification: A certificate of verification, issued by a competent authority, verifying the authenticity of the electronic record.

Comparison of Proof of Electronic Evidence under the IEA and BSA

The BSA has introduced significant changes to the proof of electronic evidence compared to the IEA. The key differences are:

• Specific Provisions: The BSA provides specific provisions for the proof of electronic evidence, whereas the IEA did not.
• Certified Copy: The BSA requires a certified copy of the electronic record or document, whereas the IEA did not.
• Digital Signature: The BSA recognizes digital signatures as a means of proof, whereas the IEA did not.
• Hash Value: The BSA recognizes hash values as a means of proof, whereas the IEA did not.
• Certificate of Authentication: The BSA requires a certificate of authentication, issued by the person who generated or stored the electronic record, whereas the IEA did not.

In conclusion, the BSA has introduced significant changes to the proof of electronic evidence, providing more clarity and certainty on the manner in which electronic evidence is proved in court. The BSA’s provisions on proof of electronic evidence are expected to have a significant impact on the Indian legal system, particularly in the context of electronic evidence in litigation.

PRESERVATION AND PRODUCTION OF ELECTRONIC EVIDENCE

The preservation and production of electronic evidence are critical aspects of the Indian Evidence Act (IEA) and the Bharatiya Sakshiya Adhiniyam (BSA). The preservation and production of electronic evidence determine the manner in which electronic evidence is collected, stored, and presented in court to establish its authenticity and reliability. This section will examine the preservation and production of electronic evidence under both the IEA and the BSA, highlighting the key differences and implications for the Indian legal system.

Preservation of Electronic Evidence under the Indian Evidence Act (IEA)

Under the IEA, the preservation of electronic evidence was governed by the general principles of evidence. The IEA did not provide specific provisions for the preservation of electronic evidence. However, courts in India relied on judicial interpretations to determine the preservation of electronic evidence.

Again in State of Maharashtra v. Dr. Praful B. Desai (2003), the Supreme Court of India held that electronic evidence, including computer-generated records, should be preserved in its original form to maintain its authenticity and reliability.

Preservation of Electronic Evidence under the Bharatiya Sakshiya Adhiniyam (BSA)

The BSA has introduced specific provisions for the preservation of electronic evidence. Section 66 of the BSA provides that electronic evidence shall be preserved in its original form, and any alteration or tampering with the electronic evidence shall be prohibited.

Section 67 of the BSA provides that electronic evidence shall be preserved in a secure and tamper-proof environment, and any person who intentionally destroys or alters electronic evidence shall be liable for punishment.

Punishment for Tampering: The BSA provides punishment for tampering with electronic evidence, whereas the IEA did not.

Production of Electronic Evidence under the Indian Evidence Act (IEA)

Under the IEA, the production of electronic evidence was governed by the general principles of evidence. The IEA did not provide specific provisions for the production of electronic evidence. However, courts in India relied on judicial interpretations to determine the production of electronic evidence.

Thus, the BSA has introduced significant changes to the preservation and production of electronic evidence, providing more clarity and certainty on the manner in which electronic evidence is collected, stored, and presented in court. The BSA’s provisions on preservation and production of electronic evidence are expected to have a significant impact on the Indian legal system, particularly in the context of electronic evidence in litigation.

CASE LAW ANALYSIS: ELECTRONIC EVIDENCE IN INDIAN COURTS

The Indian judiciary has played a significant role in shaping the legal framework for electronic evidence in India. Through various judgments, the courts have interpreted the provisions of the Indian Evidence Act (IEA) and the Bharatiya Sakshiya Adhiniyam (BSA) to establish the admissibility and reliability of electronic evidence. This section will analyze some landmark cases that have contributed to the development of electronic evidence law in India.

State of Maharashtra v. Dr. Praful B. Desai (2003)

In this landmark case, the Supreme Court of India held that electronic evidence, including computer-generated records, could be admitted as evidence in court. The court observed that electronic evidence was not inherently unreliable and could be authenticated through certification, expert evidence, and internal consistency.

Anvar P.V. v. P.K. Basheer (2014)[4]

In this case, the Supreme Court of India held that electronic evidence, including WhatsApp messages and Facebook posts, could be admitted as evidence in court. The court observed that electronic evidence was admissible if it was properly authenticated and verified.

Shafhi Mohammad v. State of Himachal Pradesh (2018)[5]

In this case, the Himachal Pradesh High Court held that electronic evidence, including call detail records (CDRs), could be admitted as evidence in court. The court observed that CDRs were admissible as evidence if they were properly certified and verified.

Analysis of Case Law

The analysis of these cases reveals the following trends and principles:

• Admissibility of Electronic Evidence: The courts have consistently held that electronic evidence is admissible in court if it is properly authenticated and verified.
• Authentication and Verification: The courts have emphasized the importance of authentication and verification of electronic evidence to establish its reliability and authenticity.
• Certification: The courts have recognized certification as a means of authentication and verification of electronic evidence.
• Expert Evidence: The courts have recognized expert evidence as a means of authentication and verification of electronic evidence.
• Internal Consistency: The courts have recognized internal consistency as a means of authentication and verification of electronic evidence.
• Digital Signature and Hash Value: The courts have recognized digital signatures and hash values as means of authentication and verification of electronic evidence.

Implications of Case Law: The case law analysis has significant implications for the Indian legal system:

• Establishing Reliability: The courts have established that electronic evidence can be reliable if properly authenticated and verified.
• Admissibility: The courts have established that electronic evidence is admissible in court if it meets the requirements of authentication and verification.
• Digital Forensics: The courts have recognized the importance of digital forensics in authenticating and verifying electronic evidence.
• Electronic Evidence in Litigation: The courts have paved the way for the increased use of electronic evidence in litigation, particularly in cases involving digital transactions and communications.

In conclusion, the case law analysis reveals that the Indian judiciary has played a significant role in shaping the legal framework for electronic evidence in India. The courts have established the admissibility and reliability of electronic evidence, and have recognized the importance of authentication, verification, and digital forensics in establishing the authenticity of electronic evidence.

CHALLENGES AND CONCERNS IN THE ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIA

While the Indian judiciary has made significant strides in recognizing the admissibility of electronic evidence, there are still several challenges and concerns that need to be addressed. This section will examine some of the key challenges and concerns in the admissibility of electronic evidence in India.

Challenges

• Authentication and Verification: One of the biggest challenges in the admissibility of electronic evidence is authentication and verification. Electronic evidence can be easily tampered with, and it is often difficult to establish its authenticity and reliability.
• Digital Forensics: Digital forensics is a relatively new field in India, and there is a lack of trained professionals and infrastructure to handle digital evidence.
• Preservation of Electronic Evidence: Electronic evidence is often fragile and can be easily destroyed or lost. There is a need for proper preservation and storage of electronic evidence to ensure its integrity.
• Chain of Custody: Maintaining a proper chain of custody is essential to establish the authenticity and reliability of electronic evidence. However, this can be a challenge, particularly in cases where electronic evidence is handled by multiple parties.
• Technical Expertise: Courts and lawyers often lack the technical expertise to handle electronic evidence, which can lead to misunderstandings and misinterpretation of electronic evidence.

Concerns

• Privacy and Data Protection: The increasing use of electronic evidence raises concerns about privacy and data protection. There is a need for robust data protection laws to ensure that electronic evidence is handled in a manner that respects individual privacy.
• Cybersecurity: The use of electronic evidence also raises concerns about cybersecurity. There is a need for robust cybersecurity measures to prevent hacking and tampering with electronic evidence.
• Admissibility of Electronic Evidence: There is still uncertainty about the admissibility of certain types of electronic evidence, such as WhatsApp messages and Facebook posts.
• Lack of Standardization: There is a lack of standardization in the handling and preservation of electronic evidence, which can lead to inconsistencies and errors.
• Training and Capacity Building: There is a need for training and capacity building for judges, lawyers, and law enforcement officials to handle electronic evidence effectively.

Addressing the Challenges and Concerns: To address the challenges and concerns in the admissibility of electronic evidence, the following steps can be taken:

• Developing Standard Operating Procedures: Developing standard operating procedures for the handling and preservation of electronic evidence can help ensure consistency and reliability.
• Training and Capacity Building: Providing training and capacity building for judges, lawyers, and law enforcement officials can help ensure that they have the necessary skills and knowledge to handle electronic evidence effectively.
• Investing in Digital Forensics: Investing in digital forensics infrastructure and training can help ensure that electronic evidence is properly analyzed and authenticated.
• Strengthening Data Protection Laws: Strengthening data protection laws can help ensure that electronic evidence is handled in a manner that respects individual privacy.
• Encouraging International Cooperation: Encouraging international cooperation can help address the challenges and concerns in the admissibility of electronic evidence, particularly in cases involving cross-border transactions and communications.

While the Indian judiciary has made significant strides in recognizing the admissibility of electronic evidence, there are still several challenges and concerns that need to be addressed. By developing standard operating procedures, providing training and capacity building, investing in digital forensics, strengthening data protection laws, and encouraging international cooperation, India can ensure that electronic evidence is handled in a manner that is reliable, authentic, and respectful of individual privacy.

CONCLUSION

In conclusion, the BSA has introduced significant changes to the law of electronic evidence in India, and it is essential to address the challenges and concerns that arise from these changes. By doing so, India can ensure that electronic evidence is handled in a manner that is reliable, authentic, and respectful of individual privacy, and that the Indian legal system remains equipped to handle the challenges and opportunities of the digital age.

[1] § 3 Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872

[2] Bharatiya Sakshiya Adhiniyam § 2(1)(e) (2023).

[3] State of Maharashtra v. Dr. Praful B. Desai 2003 (4) SCC 601

[4] Anvar P.V. v. P.K. Basheer (2014) 2014 AIR SCW 5695

[5] Shafhi Mohammad v. State of Himachal Pradesh (2018) 5 SCC 311

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