Thursday, October 22, 2015

Electronic Evidence - Part 4

[this post looks longer than it is due to multiple extracts, please do read till the end]

Tape-recorded evidence hogged the spotlight for the past few weeks on this blog. I looked at how the Supreme Court dealt with the admissibility of such evidence, and argued that the Court adopted an incorrect approach. That approach possibly stemmed from a belief that the Evidence Act provided insufficient protection against the easily-manipulable electronic evidence. Crucially, then, Parliament amended the statute to insert Sections 65-A and 65-B. This concluding post now looks at how the Supreme Court approached electronic evidence in the wake of this legislative reform in the field.

The (Much-Needed?) Amendments - 65-A & 65-B
The Information Technology Act, 2000 introduced the concept of an 'electronic record', and amended the Evidence Act by way of its Second Schedule. The amendments did not expand the definition of a document to include 'electronic record' but inserted a separate explanation in Section 3 of the Act. Sections 65-A and 65-B were inserted after Section 65, and though lengthy, it is necessary to extract parts of both here with some emphasis supplied:

Section 65-A: The contents of electronic records may be proved in accordance with the provisions of section 65B

Section 65-B
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. 

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely :-

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -
(a) identifying the electronic record containing the statement and describing the manner in which it was produced; 
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, 

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

Parliament seems to have been greatly influenced by the U.K. Civil Evidence Act, 1968 owing to the similarities between Section 5 of that Act [which has since been repealed] and our Section 65-B. Reading the text, what seems clear is that concerns over accuracy had been statutorily redressed. Only if accuracy conditions in Section 65-B(2) were satisfied would the 'computer output' [such as tape-recordings] be considered a document, and be admitted as evidence. 

Interpreting Sections 65-A and 65-B - The Text
This is an interesting set of provisions when looked at together, and in the larger scheme of the Evidence Act itself. It is difficult to argue that after insertion of this legislative packet, one could still turn to Section 65 for introducing Secondary Evidence from electronic records in evidence. Those arguing for this might rely on the 'may' in Section 65-A. I think there is a different explanation for that. Section 65-A was designed to mirror Section 61. The operative phrase does not mean there are other ways to prove the contents, but that well one may not prove them as equally as one may.

Section 61: The contents of documents may be proved either by primary or by secondary evidence
Section 65-A: The contents of electronic records may be proved in accordance with the provisions of section 65B [emphasis supplied]

Section 65-B primarily (a) lays down statutory conditions to be satisfied to deem computer output as documents, and (b) provides an alternative to method to examining witnesses for the purpose of satisfying these conditions. Reading Section 65-B(4) - which talks about the certificate - its apparent that the certificate idea was brought in to quicken the admissibility process when outputs came from large computer systems (imagine email printouts). You need not examine a witness to satisfy all four conditions in Section 65-B(2), and can instead adduce a certificate by "a person occupying a responsible official position in relation to the operation of the relevant device" for "any of the following things" described in the section.

Anvar and a Fearful (and Bizarre) Reading of the Text
What did Court do in Anvar? Many things, in fact. First, it overruled State of NCT (Delhi) v. Navjot Sandhu [(2005) 11 SCC 600] to the extent it allowed recourse to Sections 63 and 65 for introducing Secondary Evidence of the electronic variety. Anvar places section 65-B as the exclusive method. Second, the Court held that Section 65-B won't be attracted where Primary Evidence of electronic records exists. Third, the Court held that Section 65-B only allowed for evidence by certificate, and this is where things get bizarre. The Court held:

Under Section 65B(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 65B(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.

If we scroll up, and read the text of Section 65-B(4), its clear that the Court engaged in some serious re-drafting here. The statute requires a certificate to do "any of the following things" listed in Section 65-B(4), which the Court somehow makes "all of the following". The Court also inexplicably misread the provision to make certificates mandatory. A plain reading of Section 65-B(4) shows the certificate was an alternative method for exhibiting the evidence, as against the normal manner of examining witnesses.

The Third conclusion is rather bizarre. It might be that the Court had an incorrect copy of the text. Funnily enough this has happened before and accounted for sustaining an incorrect position of law for nearly two decades [see Sheoratan Agarwal v. State of M.P., AIR 1984 SC 1824 and Aneeta Hada v. M/s Godfather Travels and Tours Pvt. Ltd., (2012) 5 SCC 661]. Given how the Court managed to correctly extract the provision earlier on in the judgment, one can't be so hopeful. The Court clearly thought certificates were mandatory, and I argue the genesis of this incorrect view is found in Navjot Sandhu itself. There, the Court resorted to Sections 63 and 65 because there was no certificate filed under Section 65-B(4) but witnesses were examined. Revealing, thus, the mistaken view that Section 65-B could not operate without the certificate.

While Navjot Sandhu and Anvar both hold certificates mandatory, the latter comes at this conclusion driven by the institutional fear of electronic evidence catered by the Supreme Court. Tampering of such evidence remains at the forefront, and this persuades the Court to require certificates must be contemporaneous as well. The provision is further re-drafted, becoming a product of the judicial fear seeping through the text. The paragraph where the Court discusses the certificate is enlightening:

Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. [emphasis supplied]

Any doubts over what this means are removed later, when it is held that such evidence "shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document [emphasis supplied]". 

Right at the start of these posts, I wrote about the Evidence Act incorporating a sense of balance in its mixing admissibility and reliability to ensure the best evidence is used to arrive at decisions. The strictness of the best evidence rule was not too harsh so as to exclude great amounts of material, and not too relaxed either. The history of how electronic evidence has been treated, first judicially then statutorily, suggests a greater stringency in the conditions due to the seemingly unique problems of duplication and tampering. But the concoction of judicial fear and statutory conditions in Anvar has swung the pendulum too far in the idealist pursuit of best evidence. The Indian position thus stands and marked contrast to how most common law countries consider such evidence today - our English inspirations have long since abandoned the certificate idea altogether. A failure to make the ruling prospectively applicable has made its effect even more drastic - courts are today excluding computer outputs in trials and appeals pending before Anvar for absence of contemporaneous certificates, causing in no uncertain terms a travesty of justice. 

Saturday, October 17, 2015

Electronic Evidence - Part 3

The treatment of electronic evidence in India has been the subject on this blog for the past few posts. This has been done by chronologically discussing the cases involving questions on the admissibility of tape-recorded evidence. From having no tests in the beginning, the Supreme Court by the 1980s had begun to impose strict admissibility requirements for such evidence. This was, in my opinion, largely driven by the reliance judges placed on the English decision in R v. Maqsud Ali. Frequent invocation of the requirements imposed by the Court of Appeals in that case to judge electronic evidence lend credibility to the view that the same tests now applied to India. This was put beyond doubt by the Court in Ram Singh v. Col. Ram Singh [1985 (Supp) SCC 611].

Ram Singh and Tying Loose Ends
Another election dispute, another judgment on tape-recorded evidence. But here, all three judges gave separate opinions in what was a 2-1 split. The majority formed by Fazal Ali and Mukharji JJ., held the tape-recorded statements were inadmissible, whereas Vardarajan J. disagreed. 

Right at the outset of his discussing the evidence, Fazal Ali J. observes: 

Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. 

(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act
(5) The recorded cassette must be carefully sealed and kept in safe or official custody. 
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

This observation notably expanded on the course plotted earlier. To lend greater authority to his observation, the judge referred (again) to Maqsud Ali, and also to American opinion on the issue. He discarded the evidence as, although relevant, it failed the other conditions of reliability in his six-fold test. Interestingly, Mukharji, J. in his separate, concurring opinion discussed Maqsud Ali to observe that the court there held "there cannot, however, be any question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged." The dissent did not provide a rival six-fold test, but merely stated that "tape-recorded evidence is admissible provided that the originality and the authenticity of the tape are free from doubt." The dissent, thus, simply found the facts sufficient to establish all that the majority also wanted to admit the electronic evidence.

Infidelity to the Text
The six-fold test conceived by Fazal Ali, J. appeared an easy device for courts to employ in dealing with electronic evidence at large. The three judges in Ram Singh extensively considered arguments on admissibility of Secondary Evidence, i.e. tape-recorded evidence in this case. Yet, the three separate judgments are astonishing for their failure to even mention Section 65 of the Evidence Act, the basic provision governing the admissibility of Secondary Evidence. In fact, there is no discussion about the nature of the evidence at all. Rather than turn to the text of the governing law, the Supreme Court repeatedly referred to, and relied upon, authorities from the UK and USA. 

The importation of foreign tests to the Indian legal system has been criticised often. There are unique challenges to each legal system and legislators and courts alike have been all too keen to ignore this and adopt 'best practices' to fill the gaps. The same issue arises here: the UK and India fundamentally differed in their evidence laws as the former had no statute! The Court of Appeal in Maqsud Ali was merely following common law traditions of developing law in the absence of statute. This did not apply to India because the Evidence Act squarely covered the field. There were no gaps here - having characterised the evidence as either Primary or Secondary, the Court was obligated to turn to the statute. If it considered statutory requirements too relaxed, it could recommend amendments (which finally happened in 2000). The admissibility-heavy criteria in Maqsud Ali might have appeared necessary because of the jury-trial in the UK. The judge ensured only the best and most accurate evidence reached the jury, which was solely qualified to determine its reliability. But where the judge himself determines the reliability, such entry-barriers don't have such a beneficial effect.

Surprisingly, the Ram Singh tests continue to be used by courts despite the amendment of the Evidence Act to specifically deal with electronic evidence [see, e.g., Tukaram Dighole v. Manikrao Shivaji Kokate (2010) 4 SCC 329]. This supports the argument I am advancing here: that the Supreme Court has been extremely unfaithful to the text of the statute, only to address its fears over the genuineness of electronic evidence. The most recent example of this, Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473], will be the focus of the last post in this series.

Saturday, October 10, 2015

Electronic Evidence - Part 2

In the last post, I put across the idea that the Supreme Court has had a very big role to play in shaping how electronic evidence is treated in India. This influence, I argue, has in some instances led to departures from the statute to reinforce the Court's opinion of the proper state of affairs. Fears about the reliability of such evidence are seemingly underpinned by a desire to ensure the best evidence makes its way to court. But an overemphasis on these issues has led to disturbing a seemingly delicate balance that the Evidence Act maintains between admissibility of evidence and determining its reliability. Here, I develop this thought by showing the progression of law regarding, the admissibility of tape recorded statements. 

Before proceeding further, a fun fact about the cases to be discussed. These were either election disputes, or sting operations, where tape recorded statements were adduced in evidence against the accused. None of them were instances where the evidence was relied upon by the accused himself to put forward his defence. Given the (now declining) importance paid to the presumption of innocence in our criminal justice system, one wonders whether gradual introduction of increasingly strict admissibility rules might have been driven by this commonality across these seminal cases. 

Partap Singh and the Beginning
The first notable case was Partap Singh v. State of Punjab [(1964) 4 SCR 733]. The Appellant, a Civil Surgeon, had been found guilty of unlawfully accepting 16 Rupees and been placed under suspension. The High Court held against him in Article 226 proceedings, and the Appellant thus approached the Supreme Court. A 3-2 split held in favour of the Appellant. Now, the Appellant had heavily relied upon tape recorded statements to support his case, which the High Court refused to admit in evidence owing to fears of tampering. This approach was rejected by all five judges in the Supreme Court. Tellingly, the Majority observed that "There are few documents and possibly no piece of evidence which could not be tampered with, but that would certainly not be a ground on which Courts could reject evidence as inadmissible or refuse to consider it." Nowhere in the judgment does the Court lay down tests to consider the admissibility of these records. The Majority simply observed that: "Doubtless, if in any particular case there is a well-grounded suspicion, not even say proof, that a tape-recording has been tampered with, that would be a good ground for the Court to discount wholly its evidentiary value." Thereafter, it is stated that the State in this case had applied to the Court to create copies of the original records supplied by the Appellant to satisfy itself on the genuineness of the record. Eventually, the State did not deny the genuineness of the recordings.

Although Partap Singh did not lay down a test, there is a passage that seems to be the basis of the later forays of the Court. While noting that the State made its copies of the tapes, the Majority observed that this was done "to verify (a) whether the voice recorded was that of the person whose voice it professed to be; (b) whether there had been any interpolations or omissions; and (c) whether there had been any other tampering with the records."  A reading of the entire judgment leaves no doubt that this is not the Court laying down a test. It appears nothing more than a mere description of what the State would have done. Nonetheless, this position soon came to represent what the Court required to be done in such cases.

'Salim Pan Lao' and the Malkani Phone-Tapping
The concept of entrapping accused persons took a whole new leap with tape-recording technology. It was not long before someone challenged its use, and the Supreme Court specifically addressed this issue in Yusufalli Esmail Nagree v. State of Maharashtra [(1967) 3 SCR 720]. The Appellant had arranged to meet a public servant (here, a clerk) at his residence for paying a bribe. The clerk had already informed the Police, and so a trap was laid. When the Appellant produced the money to hand it to the clerk, he gave that signal 'Salim Pan Lao', and the Police came rushing into the room to catch the Appellant red-handed. The tape recordings were used as evidence to convict the Appellant, who thus took his challenge to their admissibility to the Supreme Court. The three judges cited Partap Singh along with R v. Maqsud Ali [(1965) 2 All ER 464] and held:

"If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The Court must be satisfied beyond reasonable doubt that the recording has not been tampered with."

The tampering fear is laid bare here. Because of this, from requiring no tests in Partap Singh, the judges in Yusufalli held that the recording's (i) time, (ii) place, and (iii) accuracy must be proved, and voices therein properly identified. Given that this was a criminal case, the Court clarified that all the above must be proved beyond reasonable doubt. Still, the judgment is unclear on whether these observations concerned the admissibility of tape recordings, or merely indicated factors that would affect their reliability. An equally important development here was the reliance placed on the English decision of Maqsud Ali, something I will return to later.

V.V. Giri and the Presidential Election
Apart from trap cases, tape recordings were quite common evidence in election disputes. In N. Rama Reddy v. V.V. Giri [1970 (2) SCC 340], the Court was concerned not purely with the admissibility question, but whether tape recorded statements could be admitted during cross-examination of witnesses to contradict them. The case was sensational as it concerned the Presidential Elections for the country. The Petitioner had sought to confront witnesses using their earlier tape recorded statements and so the Court was required to interpret Sections 146 and 155 of the Evidence Act. After observing the decisions of the U.K. and India, the Constitution Bench here found no difficulty in concluding that such evidence was admissible even for purposes of cross-examining the witness. For reasons best known to the judges, they went no further in discussing the admissibility requirement than by citing various decisions of the High Courts and Supreme Court of India, along with other decisions from English Courts. It remains unclear, therefore, whether the Constitution Bench favoured the view in Partap Singh or that of Yusufalli.

Consolidating a Test: Malkani and Ziyauddin 
In R.M. Malkani v. State of Maharashtra [1973 (1) SCC 471], the Appellant (a Coroner) was demanding a bribe from a Doctor to give a favourable report. There were several conversations over the phone between the Appellant and witnesses conveying a demand and on how the bribe was to be paid. When the witnesses approached the Police, the telephone lines of a witness were tapped to record these incriminating calls between him and the Appellant. While the bribe was ultimately not paid, the Appellant was charged with an attempt to demand and accept illegal gratification. The Two judges in Malkani cited the previous decisions on the point mentioned above without engaging with their reasoning. No provision of the Evidence Act was mentioned either. Rather, at paragraph 23 of the SCC reported version we find the Court stating tests that tape recorded evidence must satisfy to be admissible in evidence: (i) the voices of speakers need identification, (ii) accuracy of the record is proved "by eliminating the possibility of erasing the tape record". The near-parity with Maqsud and Yusufalli is apparent. But now, the judges went further and clarified that these tests determined the admissibility of evidence, a question perhaps left open afterYusufalli.

Five judges in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [(1976) 2 SCC 17] were required to decide an election dispute which again involved reliance on tape recorded evidence. The High Court had admitted the evidence after having tested that (i) the voices of speakers were identified, (ii) there was no erasure and (iii) the conversation was relevant to the dispute. In upholding the High Court's decision to admit the evidence, the Constitution Bench stated that "these requirements were deduced by the High Court from R v. Maqsud Ali ...". Interestingly, the Court did not cite Malkani although the requirements of Maqsud had already been incorporated in India by that decision. Nor did the Bench provide provide any update/clarification on the tests laid down; they seemed content with status quo.

Between 1965 and 1975, three Constitution Bench decisions considered the admissibility of tape recorded statements, and said very different things. The gradual development of strict admissibility criteria for electronic evidence is clear, and it certainly seems driven by the fear of tampering this evidence. An underlying commonality missed out by commentators, however, is the heavy reliance on the English Court of Appeal decision in Maqsud. The Supreme Court imported those tests over the course of two decades. Next time, I try and argue how this was a mistake. I also discuss how the Court compounded this mistake: the decision in Ram Singh v. Col. Ram Singh [1985 (Supp) SCC 611]. 

Friday, October 2, 2015

Electronic Evidence - Part I

Its been a year since three judges of the Supreme Court of India decided Anvar P.V. vs. P.K. Basheer [(2014) 10 SCC 473, and Anvar henceforth] and changed our law governing electronic evidence. Surprisingly, remarkably little writing has emerged during this time on what is a hugely significant legal development. Most commentaries brush aside Section 65-B, and independent writing is yet to emerge In fact, there is very little appreciation of our treatment of electronic evidence at large. Through these posts, I try and adopt a bottom-up approach to the issues: starting from the basics to understand the issues and nuances governing the field. 

The Evidence Act and Some Basics
There are several ideas running through the Indian Evidence Act and their interplay is well illustrated upon reading the Introduction to the Indian Evidence Act by its author, Sir James Fitzjames Stephen. One such relationship is between relevance and admissibility. Relevance is of fact, but determines admissibility of evidence. Evidence is admissible, only if it concerns facts declared to be relevant under Chapter II of the Evidence Act [Section 5 IEA]. But this is merely a threshold, the purpose of which is to render the amount of evidence before the Court manageable. There are attendant concerns of the quality of the evidence that is advanced, the idea being that the best evidence must find its way to Court. The Evidence Act, accordingly, lays down stringent conditions on how facts may be proved to ensure that the best evidence is before Court [Chapter V IEA]. So if a document carries a signature, Section 67 needs the signatory to be examined for the document to be exhibited. The document then is labelled as "Exhibit PW1/A" (assuming this is the first prosecution witness). Parties would address the Court on the genuineness of the evidence at the stage of arguments.

Without meeting these conditions, evidence of relevant facts would still be inadmissible. Absent an author, the Court will not exhibit the document in evidence, and it would be labelled as "Mark A". No arguments are then needed about its reliability later on. So in our quest to have the best evidence, we end up asking questions about the reliability of evidence at the outset itself. Admissibility, therefore, actually reveals how the Evidence Act installs two systems of reliability - objective and subjective. The objective standards are something that every document must satisfy for it to be worthy of being evidence at a trial, and are therefore generic and not very onerous. Having cleared this, at trial the judge must then be subjectively satisfied about the genuineness of the document. Although our Exhibit PW1/A had a signatory, was the signature on the document actually his? Such questions which require greater application of judicial mind are thus reserved for trial. 

Documentary Evidence and The Primary-Secondary Dichotomy
When talking about best possible evidence, it is obvious that enforcing this to the hilt can lead to absurd situations where the court has no evidence to render judgment on facts. This leads to concessions, and that is what Chapter V of the Act is about when it explains the modes of proof or documentary evidence. At the heart of this is the dichotomy between Primary and Secondary evidence. Primary Evidence is the document itself [Section 62 IEA] while Secondary Evidence refers to copies that satisfy conditions under Section 63 IEA. Going back to the previous idea of two levels of reliability, we see that the Evidence Act reinforces its best evidence requirement by imposing more stringent entry-level barriers to the admissibility of Secondary Evidence. The fact that the document before court is a copy lends to a presumption of suspicion somewhat, which then must be adequately discarded at that first level itself.

Even in 1872, the Evidence Act did speak about documents created through mechanical processes. Section 62 considered the scenario where numerous copies are made by a uniform mechanical process - printing, lithography, photography. It did not consider the idea of a single document being derived from such mechanical processes. The definitions under Section 63 IEA were framed in such a manner as to achieve some balance between having sufficiently high entry-level barriers, and not too much evidence. Interestingly, the definition of Secondary Evidence was never amended to refer to more than 5 conditions. Even after the Evidence Act went digital and changed its idea of a document following the amendments in 2000, it was considered fit to leave Section 63 unchanged. Perhaps, this was because of the already inclusive definition of Section 63: "secondary evidence means and includes", but some clarity never hurt. The other question is when can Secondary Evidence be adduced, for which one must turn to Section 65 IEA. Seven situations were envisioned in 1872 and no more have been added since, despite this not being an inclusive list of circumstances.

Understanding and Inserting Electronic Evidence
A handwritten document consists of (a) paper/writing surface, (b) ink/writing substance, and (c) an author who put the ink on paper to draw certain symbols to create that document. When we have a photograph, the components increase - the interface between the human element and the end product is now a highly technical instrument. Human progress created more complex and sophisticated instruments, without everyone having to know how exactly they function to give us the end-product. Today you and I don't need to know how our phones works to use them. So, how far can we trust them? In the 143 year history of the Evidence Act, the Legislature has not really dealt with this question. There have been 24 amendments overall, with only 2 concerning electronic evidence. These were, in fact, consequential amendments made to the Evidence Act following the coming of the Information Technology Act, 2000.

The Legislature didn't address this, but that doesn't stop problems coming to the courts as more and more people begin to use electronic devices to deal with everyday life. Necessarily then, the courts are required to resolve issues arising from the use of these materials in legal transactions, from what is currently available on the text of the statute. This process is very fact-specific: courts would look to the text to answer problems arising from the particular kind of electronic evidence before it, and not generally ponder about issues from such evidence of facts. The process, as has been illustrated over the last 50 years and ever so brilliantly in Anvar, is fascinating. While dealing with electronic evidence, the Court greatly tilted the balance between the two levels of reliability created by the Evidence Act and made entry-level requirements extremely onerous. Extremely little was left for the judge to determine about the genuineness of the electronic evidence having admitted it. What is even more fascinating, is that the court repeatedly ignores the text of the statute to inform the law through its fears of the reliability of electronic evidence, be it Primary or Secondary. The next post will develop this point by looking at the law on tape-recorded evidence and emails and other Secondary Evidence requiring proof as per Section 65-B of the Evidence Act.