Revisiting the Admissibility of Electronic Evidence: Indian Jurisdictions & Notes from Other Countries

Abstract

Admissibility of electronic evidence in Indian courts is regulated under section 65B of the Evidence Act, 1871.[1]Section 65B(2) details the criteria for admission of electronic evidence before a court of law and section 65B(4) requires mandatory certification of the same .Such provisions followed the judgement in Anvar v. Basheer[2]where the Supreme Court had overturned a previous SC judgement in State (NCT of Delhi) v. Navjot Sandhu[3]. In the latter case, it was ruledthat a piece of electronic evidence did not need to comply with criteria under section 65B(2) and the same could be admitted through sections 63 and 65[4]. The former case overruled the latter judgement subjecting the admission of electronic evidence exclusive to the provisions under section 65B. While this solves the problems related with the integrity of electronic evidence in certain civil cases, it has been argued in this article that the same leads to the exclusion of a large amount of authentic electronic evidence from the consideration of the courts. This article investigates the development in other jurisdictions and taking cues from the prevalent admission procedures for electronic evidence in the UK, the USA, and Canada, concludes that the Indian system too needs a balanced approach that (i) does not exclude the vast amount of evidence in electronic form in cases where meeting all the criteria under section 65B may not be feasible, and (ii) ensures the integrity of the evidence at the same time.