Digital Evidence: An Indian Perspective

Pages:214-220
Author:Tejas D. Karia
Position::Principal Associate with Amarchand & Mangaldas & Suresh A. Shroff & Co, Advocates & Solicitors, New Delhi, India
SUMMARY

Law relating to digital evidence in India. Changes in the Evidence Act. Evidence. Admissions. Evidence to be given when the statement forms part of electronic record. Admissibility of digital evidence. Conditions for the admissibility of digital evidence. Presumptions regarding digital evidence. Gazettes in electronic form. Electronic agreements. Secure electronic records and digital signatures. ... (see full summary)

 
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Tejas D. Karia1

This short paper is based on the presentation made at the first International Conference on Digital Evidence held at London on 26 and 27 June 2008, and primarily deals with the amendments to Indian law, to include the provisions relating to digital evidence and rules regarding the recognition and admissibility of digital evidence under Indian law. The recent decisions of the Indian courts on digital evidence are also discussed briefly.

Law relating to digital evidence in India

The proliferation of computers and the influence of information technology in human lives and the storage of information in digital form required amendments to Indian law to include the provisions regarding the appreciation of digital evidence. In 2000, the Indian Parliament enacted the Information Technology Act, 2000 (IT Act), which brought in corresponding amendments to existing Indian statutes to make digital evidence admissible. The IT Act is based on the UNCITRAL Model Law on Electronic Commerce and, apart from providing amendments to Indian Evidence Act, 1872 (Evidence Act), the Indian Penal Code, 1860 and the Banker's Book Evidence Act, 1891, mainly recognizes transactions that are carried out by means of electronic data interchange and other means of electronic communications.

Changes in the Evidence Act

Although the Evidence Act has been in force for many years, it has been amended from time to time to acknowledge important developments. Similarly, amendments have been made to the Evidence Act to introduce the admissibility of electronic records along with paper based documents.

Evidence

The definition of 'evidence' was amended to include electronic records (section 3(a), Evidence Act). Evidence is of two types: oral and documentary. The definition of documentary evidence has been amended to include all documents, including electronic records produced for the inspection of the court. The term 'electronic records' has been given the same meaning as assigned to it in the IT Act, which provides, 'data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche'.

Admissions

The definition of Admission (section 17, Evidence Act) is changed to include a statement, oral or documentary, or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact. New section 22A has been inserted into the Evidence Act to provide for the relevancy of oral evidence as to the contents of electronic records. It provides that oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic records produced is in question.

Evidence to be given when the statement forms part of electronic record

When any statement of which evidence is contained is part of electronic record (section 39 Evidence Act), evidence must be given of so much and no more of the electronic record as the court considers necessary in that particular case to the full understanding of the nature and effect of the statement and of the circumstances under which it was made. This provision deals with statements that form part of a longer statement or of a conversation or part of an isolated document, or is contained in a document that forms part of a book or series of letters or papers.

Section 5 of the Evidence Act provides that evidence can be given only regarding facts that are in issue or where they are relevant, but no other facts, and section 136 empowers a judge to decide as to the admissibility of the evidence.

Admissibility of digital evidence

New sections 65A and 65B were introduced to the Evidence Act under the Second Schedule to the IT Act. Section 5 of the Evidence Act provides that evidence can be given only regarding facts that are in issue or where they are relevant, but no other facts, and section 136 empowers a judge to decide as to the admissibility of the evidence. A new provision introduced to the Evidence Act, section 65A, provides that the contents of electronic records may be proved in accordance with the provisions of section 65B. Section 65B provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record, whether it be the contents of a document or communication printed on a paper, or stored, recorded, copied in optical or magnetic media produced by a computer (also referred to as computer output in the Act), it is deemed to be a document and is admissible in evidence without further proof of the production of the original, providing the conditions set out in section 65B (2) - (5) are satisfied.

Conditions for the admissibility of digital evidence

Before a computer output is admissible in evidence, following conditions must be fulfilled, as set out in section 64(B)(2):

(2) The conditions referred to in sub-section

(1) in respect of a computer output shall be the following, namely:

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information...

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