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Electronic evidence and the law
With the increase in volume of activities, transactions and interactions carried out on the internet (whether through web, mobile or other devices connected to the internet), chances are high that a large volume of the records with respect to such transactions will be in digital or electronic form, instead of physical copies. We are moving to a paperless world. In the event of disputes, parties are likely to submit digital records as evidence. Are digital or electronic communications, messages and files acceptable as evidence in courts? What are the procedures necessary for acceptance of digital evidence?

Digital evidence or electronic evidence refers to such information which is stored or transmitted in a digital format, and which is acceptable as evidence by the courts. The Information Technology Act, 2000 has incorporated certain changes to Indian evidence law to accommodate acceptance of electronic information and documents in digital format in the courts as evidence.



Under Indian law, electronic record includes “any data, record or data generated, any image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.”

Electronic records and evidence includes emails, SMS, chat messenger services, ATM machines, CCTV, website, servers, USB drives, hard drives, memory chips, databases, GPS devices printouts and everything which can be generated by or on a computer or an electronic device including mobiles and tablets.


How electronic evidence can be produced before the court?

The most obvious idea that comes to mind is to present electronic evidence in its original form, that is, on the original device or on the storage medium which contains the information. For example, a cellphone containing a call record, a hard disk, original CD records or the memory card which contains the relevant conversation. This is called primary evidence of electronic records. However, what happens when information is stored in a server or a machine? How can such information be presented before a court? How can one produce electronic records like email or information stored in a computer database?

In such circumstances, the document will have to be presented as ‘secondary evidence’. Secondary evidence refers to copies of original documents which are made through mechanical processes (which doesn’t in any way compromise with their accuracy). For example, computer-generated printouts will qualify as secondary evidence of electronic records. Printouts of call records of mobile conversations can be proven as electronic records if they satisfy the conditions mentioned under the Evidence Act (discussed below).

The Evidence Act lays down procedures for production and admissibility of the content of computer generated information (that is, secondary electronic evidence). As electronic records may be stored in huge servers which are hard to physically produce for examination in a court, the law permits production of computer generated electronic records by printing them  on a paper, or storing recording or copying them in an optical or magnetic media, without production of the original electronic device. However, such documents will only be accepted if they meet certain standards, as below: 
  1. The computer output containing the information 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;
  2. The information was regularly fed into the computer
  3. The computer was operating properly or, if not, it has not affected the electronic record or the accuracy of its contents; and
  4. The information was fed in the ordinary course of the said activities.
(see Section 65B of the Evidence Act for more details)
Moreover, Courts will accept the above records only when they are certified (through an affidavit) by a competent officer/ person who is responsible for managing or operating the relevant device. The officer must:
  • identify the electronic record containing the statement
  • describe the manner in which the electronic record was produced
  • give particulars of the device which was involved in preparation of the record

Moreover, the Courts will not consider any oral statements on the contents of an electronic record, except when the authenticity of the record itself is in question. This is very similar to the standard for acceptance of written contracts – when there is a written contract, courts will rarely accept oral evidence with respect to its actual terms.
Even in the absence of a certificate or affidavit as explained above, courts may consider the electronic document.
When such electronic record is produced before the court, it will be accepted by the court, if the witness can identify the signature made by the competent officer or by a person who can speak about the facts based on his personal knowledge. (State v Navjot Sandhu)


How to produce emails as evidence before the Court

One can produce a print out of an email as evidence before the court. However, such email should normally be accompanied by an affidavit made by the person who was responsible for operating the machine. In certain circumstances, the court may accept such email even without the certificate (read the immediately preceding paragraph). However, when the authenticity of such email is disputed by the other party, the court may ask for expert opinion about its authenticity.

Electronic evidence is vulnerable to tampering - the Supreme Court has held that the “standard of proof” for electronic evidence must be more stringent than normal documentary evidence to avoid tampering (R.K. Anand v Registrar, Delhi High Court).
When there is an apprehension of the documents being tampered or if the parties are disputing the identity, authenticity or contents of electronic records, the court may take expert opinion of a ‘cyber forensics expert’ into consideration – typically, the opinion of an Examiner of Electronic Evidence (they are appointed by the Central Government) in matters which involving information stored or transmitted by a computer resource, mobile phones, or in any electronic or digital form.
Acceptability of electronic evidence in arbitration proceedings

Most arbitration proceedings follow their own rules and regulations and are not governed by strict principles of the Evidence Act or Civil Procedure Code. However, arbitrators follow principles of natural justice and equity (fairness). Electronic records may be produced as evidence in a manner that arbitrators may feel just and reasonable for deciding the dispute. Arbitrators need not necessarily consider the opinion of the Examiner of Electronic Evidence – they may simply obtain statements from a computer expert. However, arbitrators should be careful to ensure that the expert does possess sufficient expertise – else, there is a risk of challenge of the arbitral award subsequently.
Presumptions regarding electronic evidence

Parties to a legal proceeding need to establish facts by providing necessary evidence. With respect to digital and electronic evidence, courts typically go by certain ‘presumptions’, that is, a default state of affairs, if certain preliminary conditions are met. Unless the other side indicates reasons or facts to challenge the genuineness of a particular presumption of a court, the court proceeds with the presumption.

Presumptions with respect to electronic evidence are listed below (see Sections 85A, 85B, 85C, 88A and 90A of Indian Evidence Act for details) – these are largely intuitive and correspond to common-sense. In case of electronic records, the Court can accept the following:
  • When an electronic agreement contains digital signature of both the parties, it will be presumed that the contract has concluded. 
For example, a flour mill entered into an agreement with a bakery for supply of flour. The agreement was made in an electronic format and both the parties have affixed their digital signature. When both the parties have affixed their respective digital signature, the court will presume that the terms of the contract have been agreed upon by both the parties.
  • If a security process has been applied to an electronic record at a particular time, it will be presumed that it has not been altered till the time of verification, except it is proved otherwise before the court.
For example, if a password-protected document is presented to the court, the court will presume that no alteration has been made to the document (since it is password protected), except when there exist certain facts to prove that there is a chance of tampering of such document.
  • When an electronic record bears a secure electronic signature, it will be presumed that the person signing the document has intended to approve or sign the electronic records, except if it is proved otherwise.
For example, a person has affixed a secured electronic signature to an electronic record the court will consider that the person has given his approval or signed the electronic record, except when certain facts are brought to the court which establish that the document may have been tampered.
  • In case of digital signature certificates, it will be presumed that the information listed in the certificate (relating to the identity and other details of the sender) is authentic. However, the same presumption will not be made with respect to the information which is provided by the person signing the record. A digital signature can contain information which is provided by the subscriber like his name and address as well as other cryptographic information which will help to identify that the signature belongs to him. Though the court will presume that the digital signature certificate is authentic, the presumption will not be extended to the information that is provided by the subscriber.
  • In relation to electronic messages, the court will presume authenticity of the message which is forwarded by a sender through an electronic message server to another electronic message addressee. That is, it will presume that the message that was received was the same as that which was transmitted. However, it will not make any presumption regarding the identity of the sender of the message – since it is possible for somebody else to have operated the sender’s account.

For example, if an email has been send from an email id held by a person A to another person B, the court will consider that the email has been send by the email id of person A. But the court will not presume (without taking necessary evidence to establish this) that the email has been send by A himself – since somebody else could have operated A’s account.
  • When any electronic record is more than 5 years old and which was in proper custody of a person, it will be presumed that the digital signature has been placed by the signatory himself or any person who has been authorised by the signatory.
Penal provisions

As is the case with respect to physical forms of evidence, evasion of court processes to produce electronic evidence, destruction or fabrication of electronic evidence is punishable. The Information Technology Act has amended the Indian Penal Code – offences in relation to production of and dealing with electronic records are listed in the table below.

Nature of the Offence Related Provisions (IPC) Punishment
Absconding to avoid production an electronic record in Court Section 172 Simple imprisonment for 6 months, or fine of INR 1,000 or both.
Intentionally preventing the service of summons, notice or order to produce an electronic record in Court Section 173 Simple imprisonment for 6 months, or fine of INR 1,000 or both
Intentionally does not produce an electronic document which that person is legally bound to produce before a public servant or a Court Section 175 Simple imprisonment for 1 month, or fine of INR 500, or both.
Fabrication of electronic record which may be produced as evidence before a Court, public servant or an arbitrator Section 192 Imprisonment for 7 years and fine.
Destruction of electronic records which may be produced as evidence before a Court or public servant Section 204 Imprisonment for 2 years, or fine, or both.
Fabrication and creation of false electronic records Sections 463, 464 Imprisonment for 2 years, or fine, or both.
See a sample affidavit which will be acceptable under Section 65B here.


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