Abstract
Digital technology has changed the situation in terms of the law of evidence fundamentally, requiring a thorough re-evaluation of traditional doctrinal principles. The paper discusses the legal bases of electronic evidence within Indian criminal law including the Bharatiya Sakshya Adhiniyam, 2023 (BSA) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). It examines the way in which Sections 56-64 of the BSA redefine the concept of primary evidence, admissibility and certification of computer-generated records, and traces the judicial history of Navjot Sandhu to Anvar P.V. to Arjun Panditrao that brought about the present certificate-based admissibility regime in fact. The paper evaluates critically the compulsory forensic obligation in Section 176(3) BNSS, and finds a structural compliance gap in which the procedural compliance to the standards of cloud evidence does not meet the requirements. It also questions the four pillars of authenticity, integrity, attribution, and reliability of the standard doctrines in that excessive reliance on certification is likely to drive evidence law towards bureaucratic formalism. The paper concludes that the statutory framework in place though highly modernized, needs to be supplemented with additional guidelines and interpretive flexibility in order to offer solutions to the evidentiary complexities which come about as a result of distributed cloud infrastructure, attribution across multiple devices, and records produced by AI.
Keywords: Electronic Evidence, BSA 2023, Section 63, Certificate, Cloud Evidence, Digital Forensics, Attribution, Admissibility.
1.1 INTRODUCTION
Electronic evidence needs a different approach to traditional documentary evidence[1]. Digital records have no physical form (photographs, chat messages, server logs etc.) as opposed to physical documents[2]. They are generated, distributed and archived automatically and in a systemic way without human intervention. This renders them vulnerable to editing, biasing editing and deletion of context[3]. Digital records can also reside simultaneously on a number of systems, and this is a challenge to old concepts of singular possession and custodianship.
The key issue with evidence law here thus does not concern whether or not a digital recording can be accepted in a court but when a court can consider a digital recording to be credible. Courts should make a distinction of relevance, admissibility, authenticity, integrity, attribution and weight[4]. The chat message may be relevant and inadmissible[5]. An image of the screen can be presented in court but is not a sure method of establishing authorship. A server log might appear to be objective but it can cast doubts on who created it and under what supervision and whether the contents of the log are exhaustive[6].
The law of evidence in India has been slowly shifting towards a digital reality form other than an analogue system. The repeal of Indian Evidence Act, 1872 (IEA) was very much triggered by the judiciary in the case of State (NCT of Delhi) v. Navjot Sandhu, Anvar P.V. v. P.K Basheer, Arjun Panditrao Khotkarv. Kailash Kushanrao Gorantyal.
[1] Stephen Mason and Daniel Seng (eds), Electronic Evidence (4th edn, Institute of Advanced Legal Studies 2017) 1.
[2] Bharatiya SakshyaAdhiniyam 2023 (India), s 57.
[3] Mason and Seng (n 17) 45.
[4] Bharatiya SakshyaAdhiniyam 2023 (India), ss 62–63;
[5] Bharatiya SakshyaAdhiniyam 2023 (India), s 62.
[6] Mason and Seng (n 17) 55.