Digital evidence as primary evidence: a futuristic step

Introduction

The stability of the Indian legal system that relied on the strain of paper and ink has shifted into digital transformation. The modernization of legal proceedings is evident in the Bharatiya Sakshya Adhiniyam (hereinafter referred to as ‘BSA’) which proves the shift in the tendency when the use of the electronic record is predominant in the proceedings of courts. Digital technology has impacted almost all aspects of human life and society, and the same applies to the legal framework. With societies relying on electronic communication and data storage, the issue of using this digital identity for legal processes arises. Earlier, under the Indian Evidence Act,1872 primary evidence was only in physical documents and left a loophole when it came to digital evidence. It is where the Bharatiya Sakshya Adhiniyam (BSA) stands out as a significant point of legislation on the issue.

Limited scope of electronic evidence (Sections 65A & 65B)

Earlier to BSA, in the Indian Evidence Act, Sections 65A & 65B amendment was made to cope with the increasing scope of electronic records. However, these provisions had limitations:

• Secondary Evidence

  The electronic records used in the trial were qualified as secondary evidence under Section 65A. This meant that they could only be admitted in court if the original electronic record that was purged could not be produced. This was problematic since what the word ‘original’ entails in the digital environment is not straightforward.
  
  

• Ambiguous Admissibility

  Earlier Section 65B provided a demonstration of the substance of electronic records. Nevertheless, as it was mentioned, the admissibility criteria were vague, and that created confusion among the legal practitioners and possible disparity in the decisions made at lower instances.
  
  

• Focus on Proof, not Status

  The old Act mainly revolved around procedures on how one could ascertain the content of that electronic record, and that in fact, may not have given these records a status higher than that which is provided to original documents. This implied that they were not given a similar treatment as conventional documents concerning their importance.
  
  

Key changes in the Bharatiya Sakshya Adhiniyam

• Primary Evidence: Today, it has become possible for an electronic record to be considered as original or primary evidence, and as such, it can be tendered and used in any legal proceeding without the need for secondary evidence. This corresponds to the present-day scenario which has adopted electronic records for many affairs of life.
• Presumption of Authenticity: Records created with the use of computers or communication devices are considered original or original copies, if certain requirements are met. This presumption lowers the burden of the party challenging the authenticity of the record to a legal presumption.
• Simplified Admissibility Process: New to the BSA, the process of admitting electronic records becomes easy, and one does not need to attend countless certifications and expert testimony. This makes it easier for two parties which are involved in the dispute to produce the electronic evidence in court.
• Digital Signatures: The BSA acknowledges the digital signatures recognized by the law as valid for the certification and affirmation of electronic records. This has more significance in electronic contracts and agreements.
  
  

Understanding the new laws concerning the admissibility of electronic evidence 

Section 62

Before the BSA, the Indian Evidence Act of 1872 was predominant particularly in the case of physical papers as evidence. This traditional approach was deemed unproductive when faced with the increasing use of the digital platform. Words and phrases in digital emails, posts in social networks and media, and documents became the key legal exhibits across a broad spectrum of cases, including those concerning cybercrimes and financial frauds. However, issues of their admissibility and how much evidential value they have in court were seen as uncertain.

Section 62, therefore, clears up any such uncertainty. This ensures that the provisions of the Evidence Act, which applies to physical documents, do not exclude electronic or digital records as not being admissible as evidence. This Section thus grants digital records not only the possibility to be introduced in court but also based on the stipulations of Section 63.

Section 63: The admissibility of electronic records

Section 63 does not just permit an electronic record in court but goes further. Thus, it defines the conditions for their admissibility and guarantees equal consideration and believability to such documents. Here are the key aspects of this Section:

Equivalence to Documents: This Section introduces electronic records to the level of legal documents. Thus, an “original document” can be an original paper document, an electronic document that may be a paper printout or electronic in nature, or a document that may have been generated at least in part by an electronic device such as a computer. However, this is subject to the following conditions as outlined in the subsequent Sections.

Conditions for Admissibility

For an electronic record to qualify as relevant evidence in the legal proceedings, the following requirements have to be met:

• Origin: Produced by a computer or a communication device, the record must be frequently employed for a certain activity, which entails the generation of records concerning that activity, including the creation, storage, and processing of information.
• Regular Data Input: Data of the sort given within the record has to be input into the device continually as each of the stages of that activity goes on. This sets a precedent for the kind of data the device is known to process predominantly or what it is known to process most of the time.
• Device Functionality: The computer or the communication device needs to be in good working condition during the time relative to the creation of the record. None of these should have affected the reliability of the content that may be stored in the gadget.
• Information Authenticity: The information in the record should be the spin-off of the information fed into the equipment while the device was being used or it should be reproduced. This makes sure that the record has afforded real data and has not been altered in any way.
  
  

Multiple Devices

The Section is quite sensible to the fact that today’s communication and documentation processes are highly digitalized. If information processing invoked several more devices including standalone computers, a network environment etc over some time, all these are encompassed under a single unit for the purpose of this Section. Noticeably, this means that, as long as the overall process complies with the admissibility criteria, the actual devices utilized in the procedure do not play a crucial role.

Certificate for Electronic Records

This requirement aims to guarantee that the originality of the record is unaltered and the procedure for its creation has been carried out according to the proper regulations if the electronic record is to be used as evidence. This certificate acts as a sworn statement and should contain the following details:

• Record Identification: That document must indicate the item that is an electronic record and how it was generated.
  
  
• Device Details: There should be information regarding the devices that took part in creating the record and show that they conform to the conditions explained above.
  
  
• Conditions Met: In the case of Section 63 (2), the certificate should deal with the admissibility of the record which is in a way endorsing the record.
  
  
• Authorized Signature: The certificate must be signed either by the person who is accountable for the device or for the management of the activity in which the record was created. This makes the record creator and handler accountable for the record.
  
  

Information Supply and Output

To control a device means to supply the device with information in several ways: directly and indirectly, with or without the intervention of a person. Likewise, the output of the electronic record can be originated directly or indirectly through the device. This takes into consideration the nature in which data can be input as well as output from electronic systems.

Thus, Sections 62 and 63 of BSA better can be referred to as a radical turn in the Indian legal culture-based approach to the evidence. The sections on the admissibility of electronic records, therefore, lay the foundation for improving on this facet of the justice system and thus make the justice system better ready to face the changing world that is teeming with diverse opportunities for advancement in as much as it presents hurdles for the same.

Impact of the Bharatiya Sakshya Adhiniyam

The legal framework that followed the Bhartiya Sakshya Adhiniyam, for the first time, made the use of electronic evidence admissible in India. Sections 62 and 63 of the Adhniyam are altogether exclusively dedicated to detailing the admissibility of records in a proceeding in electronic format. The BSA is expected to have a significant impact on the Indian legal system:

• Enhanced Efficiency

  Elimination of barriers to admissibility and assuming the genuineness of such evidence will serve to shorten trials' future expenses on electronic evidence.
  
  

• Improved Justice

  In this manner, the BSA will enhance the capacity of courts to handle justice in cases involving electronic records through ease in admission and reliance of the courts on digital evidence.
  
  

• Support for Digital Economy

  Acceptance of electronic evidence by the BSA is expected to expand the digital economy in India which would encourage the companies since they can have the assurance of having their electronic transactions enforced by law.
  
  

The Benefits of Digital Evidence

The inclusion of digital evidence as primary evidence offers several advantages:

• Enhanced Authenticity

  Digital evidence has a system of records to provide the originality of materials and to check possible attempts of falsification.
  
  

• Improved Accessibility

  Computerized information can be saved in electronic format and therefore, is less likely to get lost or destroyed than physical papers. It can also be easily shared and accessed by the intended users or the personnel in charge of managing such files.
  
  

• Advanced Investigations

  Computer detectives can explore particular gadgets, and look for potential, or concealed information important when solving a case.
  
  

Critical analysis

The Bharatiya Sakshya Adhiniyam has brought a drastic change in the Indian courtroom as much-needed recognitions are accorded to the electronic records as primary evidence. It can be seen that the given shift is in tune with the imperatives of the digital age, though it is a closer examination of the field that shows that the given situation is far from one-sided.

On the positive side, the BSA helps to potentially speed up legal action by streamlining admissibility. Opportunities to get access to a larger array of digital evidence important in cybercrimes and various forms of fraud cases can enhance the fight for justice. Also, a strong foundation of rules of electronic evidence contributes to the confidence in electronic business, which may stimulate the development of the digital economy.

But, as pointed out earlier, the BSA organization poses severe problems. This is based on the effective protection of data and its significance to the organization. A lack of procedures may expose digital evidence to manipulation thus compromising its core. Moreover, there are threats related to computer and internet use; and cyber threats; in the digital environment. Criminals can manipulate or create new records with the help of such technologies, which, as a result, can lead to unfair trials.

Overcoming the gap in technical know-how is another challenge. Introducing matters of law, police and law enforcement agencies, lawyers and even judges may not possess the expertise of processing as well as analyzing digital evidence. This could lead to a situation that favors some parties with better technical ability as compared to other parties.

Lastly, it can be said that the BSA is on the one hand beneficial and on the other hand, it has the potential to be detrimental. It marks a shift in a new form of digital evidence and largely depends on how the following issues will be addressed: data security issues, stakeholders’ cybersecurity measures, and legal professions’ expertise. The only way to do this is a ‘whole of India’ strategy where diverse stakeholders and organs of the state work in parallel addressing a plethora of elements to make the BSA an unalloyed success and create a proper legal architecture for the internet age.

Conclusion

Digital and electronic evidence as being considered as primary evidence stands as a plus for the legal system of India heading towards the future. Nonetheless, constant work has to be carried out to counter difficult issues and guarantee appropriate methods of managing this novel type of evidence. Continued education and training for legal professionals, development of infrastructure to support digital forensics, and strong and effective cyber security measures will be important in realizing the potential of digital evidence and enhancing the efficiency and fairness of the legal system.