By Tanushree Dubey
Published on: November 10, 2023 at 12:31 IST
Electronic communication has significantly transformed the way we share information and conduct commercial transactions. Whether it involves online banking, insurance claims, telecommunications, or social interactions on platforms such as Facebook, Instagram, and WhatsApp, electronic evidence has become a crucial element in legal proceedings.
Within the Indian legal system, law enforcement agencies and investigative bodies have recognized the pivotal role of electronic evidence and have implemented specific measures to govern its use in courts under the Indian Evidence Act.
Facebook is a significant facet of electronic communication, and its chat feature is one mode of communication. In this article, our primary focus is on the admissibility of electronic evidence, specifically addressing the admissibility of Facebook chat under electronic evidence.
Electronic Evidence in India and its Relevance
Electronic records are defined under Section 2(1)(t) of the Information Technology Act of 2000 as encompassing any data, record, or information created, saved, received, or transmitted in an electronic form. These records span a wide spectrum of digital information, including text messages, multimedia content, and more.
Section 3 of the Indian Evidence Act of 1872 specifically includes electronic records within the ambit of “evidence,” classifying them as documentary evidence.
However, to gain admissibility in Indian courts, electronic evidence must meet stringent criteria as defined in Sections 65A and 65B of the Indian Evidence Act. These provisions ensure that electronic records are meticulously handled and preserved to maintain their integrity.
The Admissibility of Electronic Evidence
Section 65A of the Indian Evidence Act, of 1872 lays down the conditions for disclosing the contents of an electronic record in a court of law. In summary, these conditions include:
- Regular Usage: The evidence must be stored in a computer that is used regularly and is under the lawful possession of the individual presenting it.
- Routine Data Input: The content of the evidence must be supplied to the computer through routine usage or actions performed by the computer.
- Proper Functioning: The computer must be in good working order. If not, it must be demonstrated in court that the evidence has not been tampered with and remains presentable.
- Preservation of Original State: The evidence must be presented in court exactly as it was retrieved during the computer’s normal operation, ensuring that it has not been altered in any way.
Section 65(B) of the Indian Evidence Act
Section 65(B) of the Indian Evidence Act was introduced as part of the Information Technology Act of 2000. This section establishes the legitimacy of electronic evidence in the eyes of the law and is often seen as a complex and challenging topic for legal practitioners, as it pertains to “Secondary Electronic Evidence.”
Section 65(B) comprises five sub-clauses:
- Section 65(B)(1): This section forms the basis for the subsequent sub-clauses and underscores that computer output can be considered an original document and admissible evidence in court if it meets the conditions set out in Section 65(B)(2). This provision operates independently of the rest of the Indian Evidence Act.
- Section 65(B)(2): This subsection outlines specific conditions for the admissibility of computer output as evidence, including the requirement that the information must be created by a person who regularly and legitimately uses the computer, the data must be routinely input into the computer, the computer must be in good working order during the relevant period, and the data generated must be correct.
- Section 65(B)(3): This section reiterates and confirms the conditions established in Section 65(B)(2), reinforcing the importance of these conditions in electronic evidence admissibility.
- Section 65(B)(4): Section 65(B)(4) specifies the certificate that must accompany electronic evidence. This certificate should be signed by an individual who possesses the source from which the electronic record is created. This person takes full responsibility for ensuring the truthfulness and authenticity of the information presented as an electronic record.
- Section 65(B)(5): Section 65(B)(5) addresses scenarios in which technological faults might taint electronic evidence, emphasising the importance of maintaining the integrity of digital records.
Admissibility of Facebook Chats as Evidence under the Indian Evidence Act
In modern litigation, electronic communication has become increasingly prevalent, and Facebook chats are no exception. These digital conversations can serve as crucial pieces of evidence in legal proceedings in India, shedding light on various aspects of a case. However, the admissibility of Facebook chats in a court of law is subject to several vital considerations under the Indian Evidence Act, of 1872.
- Relevance: To hold evidentiary value, Facebook chats must be directly connected to the matter in question and must contribute to establishing key facts in the case. Irrelevant discussions or messages may not be admitted as evidence.
- Authenticity: Establishing the authenticity of Facebook chats is paramount. It is crucial to demonstrate that the messages were genuinely sent or received by the individuals involved and have not been tampered with or forged. This can be achieved through witness testimony, expert analysis, or by presenting the technical metadata associated with the chat.
- Admissibility: For Facebook chats to be admissible, they must not fall under any of the exceptions to admissibility laid out in the Indian Evidence Act, such as hearsay or privileged communications. The information presented must align with the Act’s stipulations.
- Compliance with Section 65B: Section 65B of the Indian Evidence Act specifically addresses electronic evidence, including social media messages and chats. According to this section, electronic records, such as Facebook chats, must be accompanied by a certificate issued by the person responsible for maintaining the computer system. This certificate affirms that the electronic record was generated during the regular operation of the computer and is a genuine copy. Failure to adhere to Section 65B’s requirements could render the evidence inadmissible.
- Chain of Custody: Proving the integrity of the Facebook chats requires establishing an unbroken chain of custody. This serves to demonstrate that the chats have not been tampered with or altered from the moment they were obtained or captured to their presentation in court. This can be achieved through the testimony of law enforcement officers or individuals responsible for safeguarding the evidence.
- Expert Testimony: In cases where the technical aspects of digital evidence are intricate, expert witnesses may be called upon to provide insights and verification of the validity of the Facebook chats.
Admissibility of Facebook chat in Indian courts
The admissibility of Facebook chats as evidence in the Indian judicial system has become a subject of paramount importance in an age marked by pervasive digital communication. The Indian Evidence Act, complemented by key legal precedents, offers guidance on the standards and prerequisites for introducing Facebook conversations as admissible evidence in legal proceedings.
- Anvar P.V. V. P.K. Baseer & Ors:
In a landmark case that significantly influenced the evidentiary value of electronic records, Anvar P.V. challenged the previously held principles. In this judgment, the Supreme Court overruled a prior decision, establishing a stringent requirement for the admission of electronic evidence. It mandated compliance with Section 65B of the Indian Evidence Act, which necessitated the inclusion of a certificate to validate electronic evidence. This ruling emphasized on the need for proper certification as a prerequisite for admissibility, setting a stringent precedent.
- Shafhi Mohammed V. State of Himachal Pradesh:
Responding to the rigidity of certification requirements outlined in Anvar P.V., the Shafhi Mohammed case represented a significant shift in the legal landscape. The Supreme Court relaxed the previously mandatory certification, affirming that electronic records could be relied upon even in the absence of a certificate under Section 65B(4) of the Evidence Act. The court categorized Sections 65A and 65B as procedural and supplementary, rather than as strict prerequisites, indicating a more flexible approach to the introduction of electronic evidence.
- Arjun Panditrao Khotkar v. Kailash Kushanrao:
This case reaffirmed the importance of adhering to Section 65B(4) of the Indian Evidence Act, which explicitly mandates the necessity of a certificate for electronic documents to be considered admissible in court. The Supreme Court’s position reiterated the significance of proper certification in ensuring the admissibility of electronic evidence.
- Shamsudin Bin Mohd. Yosuf v. Suhaila binti Sulaiman:
This case shed light on the legal recognition of oral agreements, even when predominantly conducted through digital platforms such as WhatsApp. The court acknowledged that legal agreements, facilitated by digital means, could indeed possess legal enforceability, emphasizing the adaptability of the legal system to contemporary modes of communication.
- Bhim Rathke v. Mr R.K. Sharma:
In a case addressing the service of legal summons through email and WhatsApp, the court denied the application on account of the court system’s inherent limitations in serving documents electronically. However, it acknowledged the potential for utilizing electronic media for summons service in specific and exceptional circumstances. This case underscored the evolving role of digital communication in legal proceedings.
- Sanjib Sarkar v. Rajasree Roy:
A recent and notable case, Sanjib Sarkar v. Rajasree Roy clarified the admissibility of secondary evidence of Facebook messages. The case emphasized that a certificate under Section 65B(4) of the Indian Evidence Act is indispensable for admissibility. Oral evidence alone was deemed insufficient to establish the authenticity of electronic evidence, reinforcing the significance of strict adherence to the statute’s requirements.
- Kadar Nazir Inamdar v. State of Maharashtra:
This case emphasized the importance of demonstrating the genuineness and authenticity of Facebook chat evidence. An alleged Facebook conversation, treated as secondary evidence, was found to be untenable due to the absence of material demonstrating the retrieval of data by the Investigating Officer and the lack of a certificate under Section 65B. The case underscored the need for meticulous handling and presentation of electronic evidence in legal proceedings.
These cases collectively illuminate the evolving standards and guidelines for the admissibility of Facebook chats as evidence in the Indian judicial system. While digital communication is increasingly recognized as a valuable source of evidence, these cases underscore the critical importance of adhering to the Indian Evidence Act, particularly Section 65B, to ensure the admissibility of such evidence. The legal landscape continues to adapt to the challenges and opportunities posed by the digital age, with these cases playing an instrumental role in shaping the path forward.
Legal challenges in the Admissibility of Facebook chats
The admissibility of Facebook chats as evidence in legal proceedings is not without its challenges. Several legal issues and hurdles often arise in the process. Here are some of the key legal challenges associated with the admissibility of Facebook chats in court:
- Authentication and Tampering: One of the primary challenges is establishing the authenticity of Facebook chats. It can be difficult to prove that the chats presented in court have not been tampered with or manipulated. Without proper authentication, the evidence may be deemed unreliable and inadmissible.
- Hearsay: Hearsay is a legal principle that prohibits the use of out-of-court statements as evidence, as the declarant is not available for cross-examination. Facebook chats are essentially statements made outside the courtroom, and unless a proper foundation is laid, they might be considered hearsay and inadmissible.
- Privacy Concerns: Privacy issues often come into play when attempting to use Facebook chats as evidence. Parties may argue that their privacy rights have been violated, and the evidence should not be admitted due to breaches of privacy laws or terms of service.
- Relevance: Evidence must be relevant to the case to be admissible. Establishing the relevance of Facebook chats can be challenging, as parties may dispute their connection to the matter in question. Irrelevant evidence may be excluded.
- Best Evidence Rule: The Best Evidence Rule requires that the original of a document or writing be produced as evidence, rather than a copy or secondary evidence. When presenting Facebook chats, it may be difficult to determine what constitutes the “original” in the digital context and whether printed copies qualify as primary evidence.
- Adherence to Section 65B of the Indian Evidence Act: As previously discussed, Section 65B of the Indian Evidence Act imposes specific requirements for the admissibility of electronic evidence, including Facebook chats. Failure to comply with these requirements can render the evidence inadmissible.
- Expert Testimony: In complex cases involving technical aspects of digital evidence, expert witnesses may be necessary to explain the authenticity, integrity, and admissibility of Facebook chats. The admissibility of expert testimony itself can be a subject of legal challenge.
- Cross-examination: The opposing party has the right to cross-examine witnesses who introduce Facebook chats as evidence. Challenging the credibility and accuracy of the evidence through cross-examination can be a significant legal hurdle.
- Privilege: Certain communications may be privileged and protected from disclosure. Parties may claim that their Facebook chats fall under attorney-client privilege, doctor-patient privilege, or other recognized privileges, making them inadmissible.
- Preservation and Chain of Custody: Proper preservation of digital evidence and maintaining an unbroken chain of custody is crucial. Failure to do so can raise doubts about the integrity of the evidence and its admissibility.
- Foreign Jurisdiction and Data Privacy Laws: If the Facebook chats involve data from a foreign jurisdiction, there may be additional challenges related to data protection laws and international legal issues.
Addressing these legal challenges requires a thorough understanding of both the Indian Evidence Act and the specific circumstances of the case. Legal professionals must carefully navigate these hurdles to ensure the admissibility of Facebook chats as evidence in court.
The admissibility of Facebook chats as evidence in the Indian legal system is a complex issue. The judiciary, guided by the Indian Evidence Act and legal precedents, is grappling with how to handle digital evidence. Section 65B, along with considerations of authenticity, relevance, and hearsay, plays a significant role in determining whether these chats are admissible. As technology continues to advance, the legal system must find a balance between using digital evidence and maintaining its integrity. Legal professionals have the crucial task of authenticating evidence and addressing privacy concerns. Striking this balance between leveraging digital evidence and safeguarding rights remains an ongoing challenge in the ever-changing landscape of technology and law.