ADMISSIBILITY OF EVIDENCE OVER WHATSAPP EXAMINIG THE REQUIREMENT OF PROCEDURAL SAFEGAURDS by-Stuti Garg
This paper aims at understanding how legal process under The Code of Criminal Procedure, 1973 adapts itself to the dynamic society. Particularly, the paper seeks to establish how the introduction of instant messaging apps such as ‘Whatsapp’ has affected the interpretation of text created several years ago and how it has left the users of such applications exposed to legal issues. Mainly the paper focuses on whether evidence sent over ‘Whatsapp’ can be admissible under the provisions of law? This focuses on the larger issue of how technology advancement has affected law and society as a whole.
The Indian Evidence Act (The Act, hereon) which was laid down in 1872, primarily provided evidentiary principles on documented evidence based on the accord formerly. However, the manner through which we exchange and store information in our daily transactions has significantly changed since the technological revolution. This proliferation of technology had to extend from beyond individual fingertips to the societal structure, which is the law. In India, criminal and civil cases eminently depend upon the evidence produced before the court. Therefore, Sections 65A and 65B were added to The Act in 2000, with the aim of setting standards for admissibility of electronic evidence. Interestingly, the cause behind this insertion was issues faced by upcoming e-commerce industries yet it exerts over criminal cases as well. 2 This paper seeks to examine the procedure of admissibility of evidence over instant messaging applications, such as WhatsApp and comment on the degree of judicial discretion in such cases.
THE PARLIAMENTARY ATTACK CASE
The case of Navjot Sandhu v. State of Delhi3aka the Parliament attack case, is a landmark case for admissibility of electronic evidence in India. The evidence in question here was call records, which were produced without the certificate required under Section 65B of the Act. The court held that electronic evidence is admissible without the certificate, thereby treating it as an optional requirement than a mandated one. The court overrode the principle of Generalia Specialibus Non Derogant and by itself provided a loophole in the provisions for electronic evidence by “adducing electronic evidence as secondary evidence under other provisions of The Act, Sections 63 and 65.4” Moreover, the Supreme Court held that relevant oral admissions with respect to the electronic evidence were sufficient to answer questions of authenticity.
THE ANVAR OVERRULING
Fourteen years after the inclusion of Section 65A and 65B, the Supreme Court made requirement of a certificate binding for admissibility of electronic evidence under The Act. The court restricted identification of electronic evidence under Sections 65A and 65B exclusively, squashing the escape clauses of secondary evidence stated in the Navjot Sandhu case. The outcome of this judgment is troublesome as alternate ways of adducing electronic evidence are terminated and the absence of a certificate will render the evidence inadmissible.5 It could be argued that in cases where electronic evidence is the sole basis of judgement, only a certificate being the threshold for admissibility of electronic evidence can lead to grave injustice.
Additionally, it can be observed that, the sole requirement, i.e. the certificate being the point of difference between the two cases suggests a high degree of judicial discretion despite the presence of an express provision. Since this is a recent issue, it imposes vast exemplar power on the courts and accordingly, uniformity should become an essentiality.
EXAMINING SECTIONS 65A AND 65B
Sections 65A and 65B of The Act are “special provisions” which lay down the conditions for authenticating electronic evidence. Following the doctrine of “Generalia Specialibus Non Derogant”, any electronic evidence shall be brought in only under these special sections over generic sections of authenticating evidence, sections 61- 65 of The Act. Prior to the case of State
- Mohd. Afzal6 in 2003, electronic evidence was cloaked as documented evidence despite the presence of specific sections, thus opening the evidence vulnerable towards tampering and manipulation.
Section 65B is the principal section for admissibility of electronic evidence. Sub-section (1) enables the parties to “transfer information from the original source to any media and produce it in court.7” This is a leeway from the common law evidentiary principle obligating parties to submit the primary evidence, when available.8The 69th Report of the Fifth Law Commission India 9 justifies adducing secondary electronic evidence by contrasting it to the automatic admissibility of a certified copy in court. Sub-section (2) states conditions to ensure the information is generated from a computer which was “lawfully used in ordinary course of business.10” Firstly, the computer was used regularly to store the said information and the person had lawful control over the computer. Secondly, the said information was regularly fed in the computer in “ordinary course of activities.11” Thirdly, the computer was operating properly and fourthly, the information derived from the computer is replicating the information fed in the computer. An “and” conjoins these conditions, implying that all conditions need to be met with. From a strict construction point of view, this provision is limited to its history of e-commerce issues, consequently producing ambiguity with respect to any other electronic evidence. For example, a message sent over WhatsApp need not to be “regularly fed” in the device. Additionally, the assumption that a message sent from a “handle” is intended by the owner creates a loophole in the argument of “lawful control”, as he technically has lawful control over his handle, but may not have over the device.
Sub- section (4) presents one of the most important elements on the question of admissibility, the validating certificate. It necessitates a certificate along with the electronic evidence which identifies the evidence in question and is “signed by a person occupying a responsible official position.”12The paramount issue with this provision is the sole reliance on the certificate.13 Ordinarily, under Section 22 of The Act, oral admissions can be a corroborate evidence. However, the addition of Section 22A prohibits oral admissions for corroboration of electronic evidence, hence authenticating electronic evidence exclusively on the basis of this certificate. Moreover, holding the provision of “official position” places a burden on the signatory to have a reasonable knowledge about the functioning of electronic devices.14 Such a requirement can be acceptable if it guarantees certainty by furnishing details. But there are several questions unanswered by the provision, such as who qualifies as a “person occupying responsible official position”? Can the owner of the evidence hold this “official position” or can any government official validate this evidence? Would this not lead to injustice in cases of corruption charges against government employees, or even a personal bias by this official?
Another issue is the lack of details with respect to the time period within which this certificate has to be presented.15 In Anvar P.V vs P.K. Basheer16, it was held that the certificate has to be presented “at the time of producing the document.17”Conversely, in the case of Ankur Chawla v Central Bureau of Investigation18, the court held that the certificate has to be presented “when the CDs were being prepared 19” accordingly, the date when the CDs were prepared should replicate the date when the CDs were presented. In this case the CDs were held inadmissible, compromising the justice promised by our law authorities due to their own obscurity.
Sub section (4) specifies the content of the certificate, which verified by an official signatory produces a valid certificate. In the case of Anvar, the court commented on Navjot Sandhu by stating that “validation of call records by an official signatory at the time of production itself” was “apparently in compliance with 65B provisions.20” However, in the case of Jagdeo Singh21, since there was no certificate, the evidence was rendered inadmissible despite it being the singular evidence in the case. It is observed that the court applies the doctrine of substantial compliance arbitrarily and the court denying substantial compliance in Jagdeo Singh case is “factual determination and not a legal one. 22 ”The case of Anvar introduces the doctrine of substantial compliance with respect to Section 65B, however the case of Jagdeo Singh specifies the condition of valid certification as essential in the sphere of substantial compliance. Considering that Anvar is a retrospective judgement, the courts should be more flexible towards substantial compliance to prevent denial of justice.23
APPLICATION IN RECENT CASES
With the escalation of information exchange over electronic media, an increase in necessity of these provisions is apparent. Let’s take a look at the recent case of Vikas Garg and Ors. v. State of Haryana24, where there were no substantial witnesses as all the acts were purposely done in a private space, the only evidence was the conversation between the accused and the victim on WhatsApp. The electronic evidence also included compromising pictures of the victim which the accused had forced her to send over instant messaging applications. Two years of gut wrenching physical and mental torture by multiple accused on the victim can only be proved by access to their chats and photos. The fact that the Supreme Court is asking for passwords of the accused and accepted an affidavit claiming they “don’t remember”, speaks volumes about the treatment of electronic evidence in India.
Similarly, in the case of Mahmood Farooqui v. State25, the prosecutrix had been invited by the appellant to his house where he forced oral sex on her. In this case, the court corroborated the testimony of the prosecutrix by the WhatsApp chat between her and her friend where she described the incident, however, she did not use the word “raped” as it could not have been explained properly over the said platform. The courts have questioned the true intention of the prosecutrix after a plain reading of the electronic evidence, since it cannot be corroborated by oral admissions under Section 22 of The Act. Additionally, the authenticity of the electronic evidence is questioned as the police had failed to confiscate the device initially, hence impairing the prosecutrix’s case.
It is clear that even with the presence of specific provisions since decades, unless knowledge about admissibility of electronic evidence by all actors of the legal system and the technological capability of the courts is ameliorated, these provisions will remain inadequate. This is specifically the reason behind the low prosecution rate of cybercrimes. Perhaps the courts can look into frameworks of other jurisdictions, such as Canada, wherein the “system integrity26” approach is followed as opposed to the conventional approach followed in India, to conserve the authenticity of electronic evidence. Thus, the “keepers of law 27 ” bear the responsibility to administer the electronic evidence produced in court by ensuring the fulfilment of three vital elements of electronic evidence, namely, authenticity, integrity and reliability. The Supreme Court has taken notice of this duty and hence has made the certificate “optional”, according to the respective “position to present the certificate.28” However, this step causes a dichotomy in the procedure for admissibility of electronic evidence instead of additional clarity on a singular procedure as well as widens judicial discretion.
1 Student of Jindal Global Law School, Sonipat
2Sethia, Aradhya. “Rethinking Admissibility of Electronic Evidence.” International Journal of Law and Information Technology, vol. 24, no. 3, 2016, pp. 229–250., doi:10.1093/ijlit/eaw005 p. 231.
3State (N.C.T of Delhi) vs Navjot Sandhu, (2005) 11 SCC 600.
4State (N.C.T of Delhi) vs Navjot Sandhu, (2005) 11 SCC 600.
5Sethia, Aradhya. “Rethinking Admissibility of Electronic Evidence.” International Journal of Law and Information Technology, vol. 24, no. 3, 2016, pp. 229–250., doi:10.1093/ijlit/eaw005 p. 241.
6State vs Mohd. Afzal, (2003) VIIAD Delhi 1.
7Indian Evidence Act, 1872 , s 65B.
8Ashwini Vaidialingam, Authenticating Electronic Evidence: Sec. 65B, Indian Evidence Act, 1872, 8 NUJS L. Rev. 43 (2015). p. 47.
9The 69th Report of the Fifth Law Commission India, 1977. p. 18.
10Ashwini Vaidialingam, Authenticating Electronic Evidence: Sec. 65B, Indian Evidence Act, 1872, 8 NUJS L. Rev. 43 (2015). p. 47.
11Indian Evidence Act, 1872 , s 65B.
12 Indian Evidence Act, 1872, s 65B.
13Ashwini Vaidialingam, Authenticating Electronic Evidence: Sec. 65B, Indian Evidence Act, 1872, 8 NUJS L. Rev. 43 (2015). p. 61.
14 Sethia, Aradhya. “Rethinking Admissibility of Electronic Evidence.” International Journal of Law and Information Technology, vol. 24, no. 3, 2016, pp. 229–250., doi:10.1093/ijlit/eaw005. p. 243.
15 International Journal of Law and
Information Technology, vol. 24, no. 3, 2016, pp. 229–250., doi:10.1093/ijlit/eaw005. p. 243.
16Anvar P.V vs P.K. Basheer, (2014) 10 SCC 473.
17Anvar P.V vs P.K. Basheer, (2014) 10 SCC 473.
18Ankur Chawla vs Central Bureau of Investigation, [MANU/DE/2923/2014]. 19Ankur Chawla vs Central Bureau of Investigation, [MANU/DE/2923/2014]. 20Anvar P.V vs P.K. Basheer, (2014) 10 SCC 473.21Jagdeo Singh vs State, (2015) IIIAD (Delhi) 268.
22 Sethia, Aradhya. “Rethinking Admissibility of Electronic Evidence.” International Journal of Law and Information Technology, vol. 24, no. 3, 2016, pp. 229–250., doi:10.1093/ijlit/eaw00. p. 244.
23 Sethia, Aradhya. “Rethinking Admissibility of Electronic Evidence.” International Journal of Law and Information Technology, vol. 24, no. 3, 2016, pp. 229–250., doi:10.1093/ijlit/eaw005. p. 243.
24Vikas Garg and Ors. vs. State ofHaryana, [MANU/PH/1163/2017].
25Mahmood Farooqui vs State (Govt. of NCT of Delhi), 243 (2017) DLT 310.
26 Sethia, Aradhya. “Rethinking Admissibility of Electronic Evidence.” International Journal of Law and Information Technology, vol. 24, no. 3, 2016, pp. 229–250., doi:10.1093/ijlit/eaw005 p. 238.
27Tejas Karia; Akhil Anand; Bahaar Dhawan, The Supreme Court of India Re-Defines Admissibility of Electronic Evidence in India, 12 Digital Evidence &Elec.Signature L. Rev. 33 (2015). p. 38.
28“Courts Can Rely on Electronic Records without Certificate: Supreme Court.” The Economic Times, Economic Times, 4 Feb. 2018, economictimes.indiatimes.com/news/politics-and-nation/courts-can-rely-on-electronic-records- without-certificate-supreme-court/articleshow/62777759.cms.