Author: Jatin Saini, Campus Law Centre, Faculty of Law, Delhi University
Abstract
As technology increasingly permeates daily life, digital evidence has emerged as a critical component in criminal trials. This prominence, however, comes with its own set of legal complexities, particularly regarding authentication, admissibility, and reliability. Unlike traditional evidence, the digital counterpart requires nuanced handling, calling for an evolved legal framework. This article delves into these challenges by scrutinizing procedural, technical, and jurisprudential aspects while proposing reforms to address existing gaps. The inclusion of provisions under the new Bharatiya Nyaya Sanhita (BNS) Act, 2023, and the Bharatiya Sakshya Adhiniyam (BSA), 2023, further adds to the contemporary significance of this topic. Ultimately, the objective is to bridge the chasm between technological innovation and legal principles, ensuring justice in the digital age.
Introduction
Digital evidence—ranging from emails and social media posts to metadata and system logs—has become indispensable in modern criminal litigation. Its dynamic nature, coupled with the ease of modification, makes it fundamentally different from physical evidence. This raises significant challenges under the Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaces the Indian Evidence Act, 1872. The BSA incorporates updated provisions aimed at addressing the unique challenges of digital evidence. Coupled with the Bharatiya Nyaya Sanhita (BNS), which emphasizes tackling modern cybercrimes, these legislative reforms signal an effort to modernize the evidentiary framework. Judicial bodies must grapple with not just procedural requirements but also the technical intricacies involved. This article critically explores these issues, dissecting judicial precedents, legislative frameworks, and the technological underpinnings that shape the discourse around digital evidence.
Legal Framework Governing Digital Evidence:
Bharatiya Sakshya Adhiniyam (BSA), 2023:
Replacing the Indian Evidence Act, 1872, the BSA introduces updated provisions for the admissibility of electronic records, aligning with modern technological realities.
Section 65B (now adapted within the BSA framework) stipulates the requirement of a certificate for electronic records, aimed at ensuring authenticity and integrity.
Sections governing expert testimony are expanded, allowing forensic experts greater scope to clarify technical aspects of digital evidence.
Information Technology Act, 2000:
This Act accords statutory recognition to electronic records and digital signatures, enhancing their admissibility in courts.
Sections 79A and 67C emphasize the importance of data preservation and designate certified forensic laboratories for analysis, reflecting an attempt to meet evidentiary standards.
Bharatiya Nyaya Sanhita (BNS) Act, 2023:
The BNS explicitly addresses modern crimes such as identity theft, deepfakes, and cyberstalking, ensuring that digital evidence is integral to proving such offenses.
Provisions within the BNS encourage the adoption of advanced forensic technologies, streamlining the process of evidence collection and certification.
Code of Criminal Procedure, 1973 (CrPC):
Section 91 empowers courts to summon electronic documents, showcasing procedural adaptability to emerging evidence types.
Proposed amendments under the Bharatiya Nagarik Suraksha Sanhita (BNSS) aim to expedite procedures involving cross-border digital evidence.
Comparison of Old and New Section 65B:
Scope and Relevance:
Indian Evidence Act, 1872: Section 65B was a standalone provision dealing with electronic records, requiring a certificate for their admissibility. Its scope was limited to the evidentiary framework in place before advanced digital forensics emerged.
Bharatiya Sakshya Adhiniyam, 2023: The revised Section 65B broadens the framework to include emerging technologies like blockchain and AI-generated evidence, emphasizing global compliance mechanisms.
Certificate Requirement:
Indian Evidence Act, 1872: A rigid mandate for a certificate under Section 65B(4) caused procedural hurdles, particularly in accessing evidence stored on foreign servers.
Bharatiya Sakshya Adhiniyam, 2023: The certificate requirement remains but allows exceptions where obtaining a certificate is not feasible, provided alternative authentication methods are established.
Technological Adaptation:
Indian Evidence Act, 1872: Did not account for dynamic technological advances, leading to interpretational issues.
Bharatiya Sakshya Adhiniyam, 2023: Explicitly includes provisions to address new-age technologies, ensuring its adaptability.
Chain of Custody and Reliability:
Indian Evidence Act, 1872: Relied heavily on judicial precedents to establish the importance of chain of custody.
Bharatiya Sakshya Adhiniyam, 2023: Introduces statutory guidelines for maintaining the chain of custody and ensuring forensic validation of digital evidence.
Judicial Pronouncements:
Anvar P.V. v. P.K. Basheer (2014): This landmark ruling clarified that compliance with Section 65B is mandatory for the admissibility of electronic evidence, underscoring the importance of procedural exactness.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020): The Court reiterated the necessity of a Section 65B certificate while carving exceptions for cases where the original device is presented.
Shafi Mohammad v. State of Himachal Pradesh (2018): Deviating from Anvar, the Court introduced limited exceptions, particularly where obtaining a certificate is impractical due to external constraints.
Challenges in Authentication and Admissibility:
Data Integrity and Chain of Custody: The volatile nature of digital evidence demands an unbroken chain of custody. Even minor lapses can render evidence inadmissible, eroding its probative value.
Section 65B Compliance under BSA: Compliance often becomes a hurdle, especially when electronic data is stored on third-party platforms or foreign servers. The rigid requirements create a conflict between procedural law and substantive justice.
Jurisdictional and Cross-Border Complexities: Digital evidence frequently resides on cloud servers located abroad, necessitating adherence to international frameworks like the Mutual Legal Assistance Treaty (MLAT). This process is notoriously slow and bureaucratic.
Emerging Crimes and Technological Expertise: Crimes involving artificial intelligence, blockchain fraud, or deepfakes often outpace the judiciary’s ability to adapt. Judges and lawyers must rely on forensic experts, whose testimony can become a battleground during cross-examination.
Recent Legislative and Technological Developments:
Provisions in BNS, BNSS, and BSA: These reforms emphasize faster processing of cybercrimes, providing special provisions for offenses reliant on digital evidence, such as cryptocurrency fraud and cyberbullying.
Advances in Digital Forensics: New tools like hash value verification, metadata analysis, and blockchain applications are transforming how digital evidence is authenticated.
Judicial Training Initiatives: Training programs aimed at equipping judges with technological literacy are gradually gaining traction, fostering a more informed approach to handling digital evidence.
Comparative Perspectives:
United States: The Federal Rules of Evidence adopt a pragmatic stance, prioritizing reliability over rigid procedural compliance. The “best evidence rule” ensures that digital records meet minimum authenticity thresholds without excessive formalities.
European Union: The GDPR’s stringent data protection norms indirectly influence the handling of digital evidence by mandating accountability and transparency in data collection and storage.
Singapore: The Electronic Transactions Act provides a streamlined approach to admitting electronic evidence, ensuring compatibility with emerging technologies.
The Way Forward:
Evolving Procedural Norms: Reforms must simplify Section 65B compliance under the BSA while upholding evidentiary integrity. This can involve introducing alternative methods for validating digital evidence.
Specialized Cybercrime Courts: Establishing dedicated courts with expertise in digital forensics and cybercrime can expedite proceedings and ensure more accurate adjudication.
International Collaboration: Strengthening treaties and harmonizing cross-border protocols for evidence collection can mitigate jurisdictional challenges.
Technological Integration: Incorporating AI-driven tools and blockchain technology for evidence analysis and preservation can enhance reliability and reduce human error.
Conclusion: Digital evidence is undeniably reshaping the criminal justice landscape. The inclusion of provisions under the BSA, BNS, and BNSS indicates a positive trajectory, aligning procedural law with technological realities. However, effective utilization hinges on resolving procedural, technical, and jurisdictional hurdles. The judiciary, legislature, and legal fraternity must adopt a proactive approach to ensure justice keeps pace with technological advancements. By fostering expertise and embracing innovation, the system can maintain a delicate balance between procedural rigor and substantive fairness.
FAQS
What constitutes digital evidence? Digital evidence includes electronically stored or transmitted data such as emails, social media posts, multimedia files, and system logs.
Why is Section 65B certification crucial under the BSA? It ensures the authenticity and integrity of electronic records by certifying the process through which the data was generated and preserved.
How does the BNS address digital evidence? The BNS incorporates provisions for handling crimes like deepfakes and identity theft, emphasizing modern forensic technologies to ensure evidentiary reliability.
What challenges arise in cross-border evidence collection? Jurisdictional conflicts, varying data protection laws, and delays in executing MLATs often hinder access to evidence stored overseas.
What reforms are necessary to improve the admissibility of digital evidence? Simplifying Section 65B requirements, enhancing judicial training, and adopting international best practices are essential steps toward addressing existing challenges.
