The Conundrum of Certification of the Electronic Evidence

By Ayush Mishra

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Introduction

The Supreme Court recently referred the question of ‘requirement of certificate under §65B(4) of the Indian Evidence Act,1872 being mandatory for production of electronic evidence’ to a larger bench.[1] The issue at hand is that the Supreme Court in Shafhi Mohammad vs. State of Himachal Pradesh (2018), held that the “requirement of certificate u/s 65B(4) is not always mandatory”. However, this was in stark contravention to its earlier decision of a larger bench in Anvar P.V. vs. P.K. Basheer & Ors. (2014) wherein the same requirement was held to be mandatory and it was emphatically laid down that “An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B(4) are satisfied.” (emphasis added). It is in this background that the Apex Court decided to refer this question to a larger bench to clarify the position of law with utmost urgency.

Understanding S.65B and its Judicial History

The Information Technology Act, 2000 brought about the addition of §§65A[2] and 65B in the Evidence Act. §65B(1) serves two purposes: Firstly, it creates an exception to the “best evidence rule”[3] by providing that a ‘computer output’ shall be admissible in law without the proof or production of the original. Secondly, it enables an electronic record which is either available in physical form, or stored in some audio-visual/electromagnetic form, to be “deemed to be a document” for the purpose of the Evidence Act upon the satisfaction of the conditions mentioned in the §65B(2). However, §65B(4) adds a requirement of a certificate to be attached with this deemed document if the same is to be submitted as evidence.

This requirement has been put by the legislature to safeguard the source and authenticity of the electronic record because such records are easily capable of being digitally altered, manipulated, faked, destroyed and recreated. However, there appears to be a judicial tussle regarding the fact that whether or not this certificate should be mandatory for the admission of electronic evidence.

The Supreme Court in State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru (2005)  held that “Irrespective of the compliance with the requirements of § 65B, there is no bar to adducing secondary evidence under §§ 63 and 65.” Subsequently, a three-judge bench overturned this decision  in Anvar P.V. vs. P.K. Basheer & Ors. and held that the requirement of the certificate is mandatory and that §§63 and 65 will not be applicable in cases of electronic evidence. However, Shafhi Mohammad vs. State of Himachal Pradesh went against the Anvar judgement and created a partial relaxation to the requirement of certification to the extent that wherein a party is  not in possession of the device, the requirement can be waived and §§63 and 65 will apply.

Shafhi Judgment is per incuriam

A. Generalia Specialibus non derogant

Shafhi Mohammad case held that §65B(4) was merely a “procedural provision” intended to “supplement” the law. However, it is argued that this is a flawed understating of the text. Noteworthy is the fact that §§65A and 65B were special substantive provisions introduced by the Information Technology Act, 2000 and find mention in the main body of the act. Henceforth, owing to the maxim of generalia specialibus non derogant, §§63 and 65 will have to yield to §§65A and 65B.  Moreover, §65B itself starts with a non-obstante clause and henceforth, is applicable notwithstanding anything contained in the act. Therefore, §65B,  read with §§ 65A & 59, forms a complete code in itself and implicitly rules out the application of §§63 & 65 from this domain.

B. The Dichotomy of Primary/Secondary Evidence

The Shafhi Judgement contested this above-mentioned claim w.r.t §§65A and 65B being a complete code. The Supreme court rooted its reason for this in the differentiation that the Anvar judgement made between primary and secondary evidence. I submit that such reasoning emanates from a conceptually weak understating of primary and secondary evidence vis-à-vis electronic records. Notably, in the context of electronic records, “primary” evidence is just a stream of binary data which cannot be comprehended by humans in its raw form. To convert it into human readable form, we need an electro-mechanical computer setup, a specific operating system to run that setup and different engagements with various configurations of software applications that will work together to make it humanly readable. Even if one submits the hard-disk instead of the data in it, similar hardware/software requirements would exist to read that data because the hard-disk is just a container for it. Therefore, it is submitted, that the primary/secondary dichotomy does not hold good in the context of electronic records.

C. The Problem with Admitting Electronic Record as Primary Evidence

When an electronic record is presented to the judge as primary evidence and with no §65B certificate, the judge cannot simply view it and admit it in the proceeding, because the moment the judge sees that evidence on some device capable of translating the media, he himself becomes a certifier to the fact that the hard disk had this data which was viewed on his computer on a particular operating system and using a particular media player. This information about the configuration of the computer is precisely what the §65B(4) certificate demands. Therefore, by using this provision, the judge is escaped from taking the responsibility of the configuration, authenticity and working condition of the device, and by extension, the electronic evidence itself.[4]

D. The Problem of Fabricated and Erased Evidence

Another inevitable consequence of the Shafhi judgement is that it opens the floodgates for falsified electronic evidence. Suppose a person “A” wants to present a document without any certification, alleging that it  is in the custody of “B”. However,  if “B” says that no such document exists[5], what this judgement does is that, it allows “A” to present any copy of the document which he claims to be the original and then use the defence of the ‘device not being in my custody’ to waive the certification requirement. This may lead to fraudulent evidences being presented in the proceedings.[6]

Secondly, the requirement of a certification also makes sense vis-à-vis electronic records because once a dispute occurs, digital data is capable of being removed from servers and being taken down from websites. Therefore, in such situations the court has no option but to rely upon the certifier who confirms to have seen the deleted data. In his absence, the court will not be able to attribute credibility to the statement of the parties.

The Way Forward

The Supreme Court must declare the Shafhi judgement per incuriam and reinstate the Anvar decision. However, it must go beyond the Anvar verdict also to answer the following questions:-

A. What about illegally obtained electronic evidence?

Even post-Anvar, the issue of illegally obtained electronic evidence did not receive any clarity. As we don’t follow the “fruit of the poisoned tree”[7] doctrine, illegally obtained non-electronic evidence by investigating agencies or whistle-blowers/approvers etc. are admissible in court, but illegally obtained electronic evidences are not admissible, because for them to be admitted, they need to be accompanied by a certificate issued by a person occupying a ‘responsible official’ position vis-à-vis the device from which it was extracted. As no company or individual would certify to the  authenticity of any incriminating or sensitive information that was stolen from their servers, the records never become admissible, unlike their non-electronic counterpart.

B. Using Hash Values and Digital Signatures to preserve authenticity

Shafhi Mohammad worked under the fallacious assumption that only the person who performs the videography can issue the certificate. Owing to this, it diluted the certification process. However, it is argued, that answer to this problem could be found, not in removing the certification process, but in understanding the nuances of §65B(4), which asks for a “computer output” and not the original electronic record. Therefore, the court, in its final order must clarify that even video operators of the police control room could certify to the contents of the video that is shot by the field officer.[8] Moreover, if authenticity of the data is a concern which the court was trying to preserve, the correct way to do it would be to incorporate methods like keeping track of the hash value of the record while transferring it from the recorder to the operator, using algorithms like the SHA-256 algorithm[9] and using digital signatures. Additionally, contemporaneous certificates could be given at every stage of the transfer to check the chain of custody, because any alteration in the record will get reflected in its hash value.[10]

C. Eradicating flexibility of S.65B(4) through misinterpretation

A pertinent error of the Anvar judgement is the misinterpretation of the word “any” into “all” w.r.t §65B(4). Whereas the legislative intent is patently clear in establishing that “any” of the three criteria laid down in the subsection is sufficient to get the certificate, the court seems to have attributed its own interpretation to make fulfilment of all the three parameters mandatory, thereby taking away the flexibility of the section.

D. The query regarding the stage of submission of certificate

Another issue on which Anvar judgement failed to provide clarity on, was regarding the stage at which §65B(4) certificate should be submitted. In the absence of any Supreme Court ruling on the subject matter, currently it is governed by some High Court judgements. Initially the Delhi High Court said that the certificate cannot be submitted after the charge-sheet is filed. However, subsequent to this, another Delhi High court bench along with Madras, Rajasthan and Bombay High courts have held on different occasions that the certificate could be filed after the filing of the Charge Sheet. However, the apex court is yet to comment on this issue.

Concluding Remarks

The referral provides an excellent opportunity to the Supreme Court to settle the debate. The court must go beyond Anvar judgement to provide enhanced clarity on critical peripheral issues. As new ways of collection of evidence have emerged with the proliferation of technology, law must keep pace to provide for improved ways of admitting such evidences.

[1] Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal ; Civil Appeal No(s).20825-20826/2017

[2] §65A just refers to §65B and §65B lays down the process of admissibility of electronic records.

[3] See Halsbury’s Laws of England, Vol. 17 pg. 138 ( 4th Edition 1973)

[4] If dispute persists, the judge can call an examiner of electronic evidence under section 79A of the IT Act, 2000.

[5] If such a document exists and as alleged, is in the custody of “B”, “A”  should be asked to make use of the available provision in law to demand these documents from “B”.

[6] An illustration for this could be found in a Punjab and Haryana High court judgement of 2018 wherein the court held that the petitioner presented fabricated recordings and then tried using the Shafhi judgement to waive the certification requirement. The court held that the petitioner could not even tell the source of his recording or the device which was used to capture it, let alone give evidence for its authenticity.

[7] See Law  Commission  of  India, Evidence obtained illegally or improperly: Proposed Section 166A,  Indian  Evidence  Act,  1872, Report No. 94, 1983;

[8] This same issue was the bone of contention in the Shafhi Judgement (2018) 2 SCC 801

[9] This is the strongest one-way cryptographic function available.

[10] The court held that at each transfer point there has to be what it called a “Contemporaneous Certificate under Section 65B”.

 

[The author is a final year B.A., LL.B. student at NALSAR University of law, Hyderabad.]

Image Courtesy: Asia Business Law Journal

 

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