Bharatiya Sakshya Bill, 2023: A Closer Look at the Proposed Changes in Electronic Evidence

Bharatiya Sakshya Bill, 2023: A Closer Look at the Proposed Changes in Electronic Evidence

 

The introduction of the Bharatiya Sakshya Bill, 2023, as a replacement for the long-standing Indian Evidence Act, has stirred discussions and debates across various spheres. One of the pivotal changes introduced by the Bill is its provisions for the admissibility of digital records, such as emails, in legal proceedings. This development has raised several questions and piqued the interest of legal experts and the public alike.

Regarding the admissibility of electronic records, the Bill mainly reaffirms the existing stance. The Indian Evidence Act was previously amended in 2000 to incorporate provisions for electronic evidence, and these provisions have been carried over to the current Bill. Pre-2000, electronic records could be presented as evidence using the device that generated them, like the laptop storing a document. After 2000, other computer outputs created from such devices, which would typically be considered secondary evidence, were elevated to the status of primary evidence. This meant that print-outs could be admitted without requiring the computer’s presence in court. The Supreme Court of India clarified this position in the Arjun Panditrao v. Kailash Kushanrao case.

The Bharatiya Sakshya Bill solidifies the principles established in the Arjun Panditrao case. While the definition of ‘primary evidence’ in Clause 57 remains the same as in the existing Act, four additional Explanations have been included to elucidate what constitutes ‘primary evidence’ in the context of electronic records. Furthermore, Clause 61 emphasizes that the Bill does not deny the admissibility of electronic or digital records, which hold the same legal weight, validity, and enforceability as paper records.

However, certain modifications in this aspect warrant closer examination. The clause now encompasses information produced by or stored in communication devices, a welcome inclusion. It also recognizes information created through intermediaries, which is a positive step. The Bill even prescribes a format for the certificate required under this section, a helpful addition as it clarifies the details to be included in the certificate. This format will prevent the common issues of inadequate certificates submitted by litigants, especially the Delhi Police with their chargesheets.

Nevertheless, there is a puzzling aspect in the Bill: the certificate provided in the Schedule does not meet the requirements set out in sub-clause 2. The sub-clause mandates that the certificate must specify that the device was lawfully controlled, and the computer was operating correctly, among other details. Strangely, these crucial elements are missing in the prescribed format, raising questions about whether this is an oversight or a misunderstanding of the legislation’s framework by the drafters themselves.

The clause introduces another complexity by requiring two certificates – one from the computer operator and one from an expert. Rather perplexingly, the clause uses the vague term “expert (whichever is applicable),” instead of specifying that the certificate must come from an Examiner of Electronic Evidence, as defined under Section 79A of the Information Technology Act. This choice of wording remains unclear.

Furthermore, the requirement for an expert’s certificate at the stage of evidence admissibility itself raises questions. As per the Schedule and the clause, the expert’s role is simply to certify that the computer output has been derived from the respective computer device. This stipulation could create undue hardships, as it implies that individuals wishing to present electronic evidence must first engage an expert to generate the computer output and provide certification.

This approach appears illogical and counterproductive, as it undermines the intended ease of presenting digital evidence. If individuals are compelled to involve an expert for this purpose, why not simply present the computer device as primary evidence? The requirement for an expert’s certificate could lead to unnecessary complications in the process of producing electronic evidence, with no apparent benefit at this stage. While an expert’s certificate may be relevant for analysing specific electronic evidence for tampering, the question of admissibility itself seems distinct and does not necessitate an expert’s involvement.

 

Author: Manasvi Vaid, Student at Symbiosis Law School, Noida

 

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