Abstract
In modern times, the judicial proceedings rely mostly upon integration of digital evidences presented in the courts of law. Although, the Bharatiya Sakshya Adhiniyam, 2023 provides for a very clear meaning to the word electronic evidence, it’s acceptance in court is obstructed due to a number of challenges such as authenticity, integrity, procedural compliances and the emergence of technologies like of Artificial Intelligence. Tragically, the access to digital technology is not limited to only courts and government organisations. There is an increasing risk of technology falling into wrong hands and the chances of it being misused cannot be ignored, hence we require a strong procedural framework for collecting and authenticating such digital evidences. This paper examines the legislative framework governing digital evidence in India including the Indian Evidence Act, 1872, the Bharatiya Sakshya Adhiniyam (BSA), 2023 and the Information Technology Act, 2000. The fact that digital evidence is vulnerable has been noticed by the courts in many instances. This paper focusses on the main challenges faced in admission and handling of digital evidence in India, keeping in view the gaps, it also suggests possible strategies to enhance reliability and strengthen the procedural framework of digital evidences.
Keywords: electronic evidence, digital technology, admissibility, relevance, judicial proceedings.
- Introduction
The digital era has transformed the way in which legal investigations take place and how court proceedings are looking at digital evidences more often. The evidences are presented in the form of emails, social media engagements and interactions, financial transactions, mobile device logs and even more sophisticated networks that are beyond the understanding of a common person.[1] Prior to the enactment of the Bharatiya Sakshya Adhiniyam, 2023, hereinafter referred to as the BSA, electronic evidence gained statutory recognition through amendments in the Indian Evidence Act, 1872 and Information Technology (IT) Act, 2000, along with judicial precedents. BSA provides a clear legal recognition to the word electronic evidence by including it under the category of ‘evidence’ under Section 2(1)(e)[2], thereby, giving it the same status of traditional documentary evidence. It also contains strict provisions in terms of admissibility and recognition of electronic evidence, how it is to be recorded and stored but it assumes that the judicial agencies have access to advanced cutting-edge technology required to process the electronic evidence. The electronic certificate to admit electronic evidence that was earlier discretionary in exceptional circumstances[3]has now become mandatory as per Section 63 of the BSA[4]. Amendments have also been made to the procedural laws such as The Bharatiya Nagarik Suraksha Sanhita, 2023 which provides for collection and and admissibility of electronic evidence in criminal cases. The increased dependence upon technology have significantly increased technology related crimes. Therefore, despite the developments, no law is able to keep up with the ever-evolving dynamics of technology. This has led to certain gaps and challenges that persist in the law leading to ambiguities in authenticity, relevance and admission of digital evidences. Thus, the due process of law is violated.
[1]Sharma, A. & Srivastava, R.K. Digital Justice: Analyzing The Role And Legal Admissibility Of Digital Forensic Evidence in India. IJLLR. Vol VII (I)
[2]BSA s.2(1)(e) “evidence” means and includes—
(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;
(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;
[3]Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors[2018] 2 SCC 801.
[4]Pune Bar Association v. Union of India,WRIT PETITION (CIVIL) NO.599 OF 2026