Introduction
Electronic evidence presents a tall challenge to the traditional rules of authenticating documentary evidence. The notions of primary and secondary evidence evolved for paper documents are difficult to apply to electronic or digital evidence. Provenance of electronic evidence is extremely hard to establish with any certainty in many instances. Hence, Evidence Act, 1872, as amended, provides for a certificate mechanism under Section 65-B(4) to authenticate electronic evidence.
Supreme Court of India in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [1] has held that Section 65-B(4) is a mandatory requirement to admit electronic evidence unless the original electronic document (e.g., a tablet, laptop or mobile phone with a recording)[2] is produced in evidence through the document/device owner’s personal authentication as a witness. Supreme Court, hence, differentiated primary and secondary evidence standards for electronic evidence where secondary evidence for electronic evidence requires the Section 65-B(4) certificate.
Supreme Court has also put an interesting exception to the Section 65-B(4)’s certificate requirement: When even after applying to the relevant authority holding the electronic document sought to be proved in evidence and threafter to a court under procedural or evidence law, if the certificate cannot be obtained, then the production of the same is excusable in law. This is the impossibility exception based on two Latin maxims quoted by the court: lex non cogit ad impossibilia (the law does not demand the impossible) and impotentia excusat legem (if an impossibility bars obedience to law, the disobedience of law is excused)[3]. This article explores the judicially created impossibility exception to the certificate requirement under Section 65-B(4) of the Evidence Act, 1872.
I. Authenticating Electronic Evidence
A. Indian Approach
1. Authenticating Documentary Evidence
Under the Evidence Act, 1872 documentary evidence needs proof of contents[4] of a document by primary[5] (document itself) or secondary evidence[6] of certain types and in specific situations to admit the document in evidence. Five types of secondary evidence of contents of a document are permissible: certified copies, two types of reliably reproduced copies, counterpart against a non-executant and oral accounts of someone who has personally seen the document[7]. There are seven specific situations in which secondary evidence of existence, condition or contents can be given[8]. Signatures and handwriting need to be proved as of those they are attributed to[9].
Sir James Fitzjames Stephen, the author of The Indian Evidence Act (I. of 1872): With an Introduction on the Principles of Judicial Evidence describes the purpose of documentary evidence as[10]:
One single principle runs through all the propositions relating to documentary evidence. It is that the very object for which writing is used is to perpetuate the memory of what is written down, and to furnish permanent proof of it. In order that full effect may be given to this, two things are necessary, namely, that the document itself should whenever it is possible be put before the Judge for his inspection, and that if it purports to be a final settlement of a previous negotiation, as in the case of a written contract, it shall be treated as final, and shall not be varied by word of mouth. If the first of these rules were not observed the benefit of writing would be lost. There is no use in writing a thing down unless the writing is read. If the second rule were not observed people would never know when a question was settled, as they would be able to play fast and loose with their writings.
2. Authenticating Electronic Evidence
Electronic evidence created a challenge for which the Evidence Act, 1872, as minimally amended over the last century, had no answer. The mutability of electronic record and various forms essentially meant that few, if any, forms of electronic or digital evidence have the characteristic of being “original”, a necessity under the Evidence Act, 1872’s requirement of original document itself being the primary evidence of its contents unless secondary evidence of such a document is admissible under the said Act. Hence, the law was amended to introduce specific provisions for electronic evidence[11]. Principal among the amendments were authentication amendments introduced by Sections 65-A and 65-B in the Evidence Act, 1872.
The complete code for authenticating electronic evidence is in Sections 65-A and 65-B. The Supreme Court of India in Anvar P.V. v. P.K. Basheer [12] described the procedure as:
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Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.… The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:
(i) the electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) the information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) the information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
The conditions necessary for admitting electronic evidence based on a certificate have been explained as[13]:
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Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) there must be a certificate which identifies the electronic record containing the statement;
(b) the certificate must describe the manner in which the electronic record was produced;
(c) the certificate must furnish the particulars of the device involved in the production of that record;
(d) the certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and
(e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
The Supreme Court in Arjun Panditrao[14] case quoted the above conditions and process for authenticating electronic evidence from Anvar P.V.[15] case with a few added directions, which were:
(a) Section 65-B(4) certificate is unnecessary if the device on which an electronic document is first stored is itself produced in court through a witness e.g., owner who operated a laptop, tablet, etc. stepping into the witness box to produce the laptop, mobile, etc. in evidence. If the document is on a computer that cannot be brought to court then the only means of producing the document is by way of a certificate under Section 65-B(4)[16].
(b) Section 65-B(4)’s requirements for issuing the certificate are to be read as cumulatively “all of them” instead of text’s “… any of them…”[17].
(c) No proof of an electronic record by oral evidence is admissible if the requirements of Section 65-B are not complied with[18].
(d) Anvar P.V.[19] case stood clarified to make para 24 therein, “… if an electronic record as such in used a primary evidence under section of the Evidence Act…” to be read without the words “… under Section 62 of the Evidence Act…”[20].
(e) A trial court may at any stage before the completion of a trial, order the production of the certificate under Section 65-B(4) subject to a criminal court in criminal trial safeguarding against any prejudice to the accused[21].
(f) Authorities to examine the draft rules suggested by the Committee of five Judges (formed in consequence of the Chief Justices Conference held in April 2016) in its November 2018 report for statutory enactment in future. Data retention directions for call detail records issued to the cellular companies and internet service providers till rules and directions are enacted under Section 67-C of the Information Technology Act, 2000[22].
(g) The word “and” in Section 65-B(4)’s text “best of his knowledge and belief” has to be read as “or” because a person cannot testify to best of his or her knowledge and belief at the same time[23].
B. A Review of Foreign Approaches
The Supreme Court noted in Arjun Panditrao[24] case (in the main judgment) that Section 65-B(2)-(5) are reproductions of Section 5 of the UK’s Civil Evidence Act, 1968’s Section 5(2)-(5) with minor changes. But the UK law’s aforementioned section has been repealed by UK’s Civil Evidence Act, 1995. Main judgment in Arjun Panditrao[25] case is authored by Justice R.F. Nariman on behalf of the Bench that included Justices V. Ramasubramanian and Ravindra Bhat. Justice V. Ramasubramanian has written a supplementing opinion as well. The discussion immediately next is based on Justice V. Ramasubramanian’s supplementing opinion unless noted otherwise.
Anonymity of cyberspace has made election documents easily manipulatable and hence suspicious[26]. US approach also uses certificates under Federal Rules of Evidence, Rules 902(13) and (14) but requires notices to the opposing side. In the UK electronic evidence in civil cases is covered by the Civil Evidence Act, 1995, while electronic evidene in criminal law is governed by the Police and Criminal Evidence Act, 1984 where its Section 9 concerning electronic evidence stood amended by the Youth Justice and Criminal Evidence Act, 1999[27]. In all these reforms in the common law world regarding electronic evidence, essentially more hearsay evidence was made admissible with requirements of notice to the other side whether it be in electronic form or not. Business records exception to the rule against hearsay is now available in most advanced common law countries.
India has not undertaken any such comprehensive reform of the rule against hearsay[28], which is the underlying theme of the whole of Evidence Act, 1872 with carefully included exceptions. Justice S. Rangarajan of the Delhi High Court urged the consideration of reform to the hearsay rule way back in 1972[29]. But since long no reforms to the evidence law in India are forthcoming.
IV. Primary and Secondary Distinction Remains
The judgment in Arjun Panditrao[30] case retains the primary and secondary evidence for electronic evidence in these terms:
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… All this necessarily shows that Section 65-B differentiates between the original information contained in the “computer” itself and copies made therefrom – the former being primary evidence and the latter being secondary evidence.
Because of retaining primary and secondary evidence distinction for electronic evidence, the Supreme Court has required production of original electronic document in form of pen drive, mobile phone, etc. through the owner of such device stepping into the witness box. When it is impossible to bring “computer” being part of a computer system or computer network then the certificate under Section 65-B(4) can be produced[31].
The implicit assumption behind retaining the primary and secondary evidence distinction for electronic evidence is the miniaturisation of computing technology. Pharesology of Section 65-B(2)’s conditions (a)-(d) presumes computers to be of the old mainframe era where data is stored that can be retrieved either as saved or as a printout, etc. as a generated report from data inputted consistently. Computers have evolved such that there may not be many a large monolith mainframe that cannot be produced in court easily rather than mobiles, pen drives, memory cards, tablets or watches that can be produced easily in courts. Rather computing now is a process applied in varied devices like mobile phones, tablets, sensors, smart watches, etc. There are no old style PC computers per se in these devices but they contain the core computing abilities of any common computer. Hence, such devices which are almost pocket sized can easily be produced in court as “originals” through a witness authenticating the device and its contents. This production of a device used for storing contents as created has naturally higher probability of genuiness than say a prinout of a document stored in memory of a mobile phone to determine the genuineness of the electronic document rather than rely on a certificate alone in such instances.
V. Methods to Get the Document
The Supreme Court grappled with the problem of not getting the relevant certificate despite all possible efforts by a litigant. The question that the court posed to itself was: What if the Section 65-B(4) certificate could not be obtained because the litigant may not be in possession of the electronic device storing the electronic document and despite applying to the authority holding the electronic document a certificate under Section 65-B(4) was not being issued? As a remedial first step, the Supreme Court noted the several provisions across statutes that enable a Court to order production of a document. The Supreme Court was essentially countering the major premise of Shafhi Mohammad v. State of H.P.[32] that the certificate could not be obtained by persons who are not in possesion of an electronic device containing the stored electronic document.
Section 165 of the Evidence Act, 1872 enables a Judge presiding over a civil or a criminal trial to order production of any document or thing for obtaining proof of relevant facts. Civil Procedure Code, 1908 provides in Order 16 concerning “Summoning and Attendance of Witnesses” empowers the trial court to issues summons to produce document (Rule 6), require persons present in court to give evidence or produce a document (Rule 7). Further, under Order 16, the trial court can also issue a proclamation for attendance and (or in lieu) issue a warrant or even attachment of property if a person summoned fails to produce a document (Rule 10).
Under the Criminal Procedure Code, 1973, a criminal trial court can issue summons to produce a document or a thing (Section 91). Further, the criminal trial court can penalise a person refusing to produce a document (Section 349).
While several procedural provisions exist by which a Judge in a civil or criminal trial can order production of a document, in practice this is hard to do. Hence, the Supreme Court’s prescription that the trial Judges will assist the litigants to obtain the Section 65-B(4) certificates under existing procedural methods in practice may be cumbersome and lengthen the trial itself.
The Impossiblity Maxims
While the Supreme Court has pointed to the existing procedural measures to obtain Section 65-B(4) certificates from anyone possessing the electronic device that contains the impugned electronic document, the court has also contemplated situations where despite all efforts, the relevant Section 65-B(4) certificates cannot be obtained by a litigant.
In the facts of Arjun Panditrao case[33], the Supreme Court noted that despite all efforts made by respondents through the High Court and otherwise, the litigant failed to obtain the Section 65-B(4) certificate from the government authorities who held the original electronic recording.
The prerequisite[34] for considering impossiblity of obtaining the Section 65-B(4) certficates are:
- Litigant has applied for the requisite Section 65-B(4) certificate to the relevant authority but either the that authority has refused or does not respond to the request then the litigant has to take help of court.
- Litigant seeks a court’s help to use its powers under the evidence, civil procedure and criminal procedure to summon the certificate from the authority refusing or delaying the same.
- If the litigant still does not get the relevant Section 65-B(4) certificate, then the litigant has done all she can to obtain the certificate.
For such impossiblity in obtaining the Section 65-B(4) certificate even after the prerequisites are performed, the Supreme Court applied two Latin maxims:
(1) lex non cogit ad impossiblia (law does not demand the impossible); and
(2) impotentia exusat legem (in case of disability that makes it impossible to obey the law, the disobedience is excused). These maxims have been cited many times by Indian courts and at times even in the context of mandatory provisions of law[35].
In Arjun Panditrao[36] case, the Supreme Court noted that the litigants had done everything they could to obtain the Section 65-B(4) certificate but they had failed. Hence, the Court held that,
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51. On an application of the aforesaid maxims …, it is clear that though Section 65-B(4) is mandatory, yet, on the facts of this case, the respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third party over whom the respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.
Conclusion
While the Supreme Court has created stability in law regarding electronic evidence by maintain the primary and secondary evidence distinction, it has also pressed into service existing procedural and evidentiary provision to obtain the elusive Section 65-B(4) certificate when the electronic document is not possession of a litigant seeking a Section 65-B(4) certificate. But most importantly, the Court has created a judicially recognised exception to the requirement of the Section 65-B(4) certificate when a litigant has done all she can to obtain such a certificate. The way court did it was not by reading down the mandatory nature of the Section 65-B(4) but by using well-recognised Latin maxims when it is impossible for a litigant to obtain the certificate despite seeking it from relevant authority and thereafter also seeking a court’s assistance through its procedural powers.
The Supreme Court has done its best to interpret the existing law on electronic evidence, but in future there will be a need to reform the rule against hearsay following the rest of the common law world.
† Hasit B. Seth practises as an independent Counsel in the Bombay High Court and in arbitrations.
[1] See Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
[2] Id. at 37.
[3] Id. at 46.
[4] Evidence Act, 1872 does not use the terminology of “authenticating” a document for evidentiary purposes (The word “authenticating” is used in Ss. 82 and 85 for specific types of endorsements and is not used generally for authentication for all documents). The Evidence Act, 1872 uses “proof of contents of documents” to verify genuineness of a document’s contents. This article proposes that “authentication” word be used for discussion purposes rather than “proof of contents” of a document. The reason is that it is commonly said, “have you proved the document?” while intent is to ask have you provided proof of contents of the document? US Federal Rules of Evidence uses authentication as a term to verify genuineness of all kinds of evidence, as explained in Federal Rules Evidence 901 as: “(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Further, for electronic documents, Ss. 65-A and 65-B do not use the terminology of “proof of contents of documents”; S. 65-A uses “contents of electronic record may be proved…”. Hence, the choice of using a common umbrella term “authentication” for verifying genuineness of all kinds of evidence, be it electronic – analog or digital, physical objects, real, paper or any other kind.
[5] Evidence Act, 1872, Act 1 of 1872, S. 62.
[6] Id., S. 63.
[7] Id., S. 63.
[8] Id., S. 65.
[9] Id., S. 67.
[10] James Stephen, An Introduction to the Indian Evidence Act: The Principles of Judicial Evidence 176-177 (1902).
[11] See Information Technology Act, 2000, S. 92 and 2nd Schedule (both now omitted).
[12] Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, 483; Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 28-29.
[13]Anvar P.V., (2014) 10 SCC 473 at 484.
[14] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 28-29.
[15] See Anvar P.V., (2014) 10 SCC 473.
[16] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37.
[17] Id. at 27-28.
[18] Id. at 30.
[19] Anvar P.V., (2014) 10 SCC 473.
[20] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37-38.
[21] Id. at 55.
[22] Id. at 57.
[23] Id. at 55.
[24] Id. at 34.
[25] Arjun Panditrao Khotkar, (2020) 7 SCC 1.
[26] Id. at 68.
[27] Id. at 78.
[28] Evidence Act, 1872 does not define hearsay unlike US’s Federal Rules Evidence 801 that defines hearsay as, “(c) Hearsay. ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”
[29] Rangarajan, S., The Anglo-Saxon Experiment Concerning the Rule against Reception of Hearsay Evidence and What it may Mean to us., Journal of the Indian Law Institute, 1972 can be accessed HERE .
[30] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37.
[31]Id. at 37.
[32] See Shafi Mohammad v. State of H.P., (2018) 2 SCC 801.
[33]Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 46.
[34] Id. at 46.
[35] Id. at 48-49.
[36] Id. at 50.