Electronic evidence rules – E-evidence, new criminal law, its implementation

Source: The post electronic evidence rules has been created, based on the article “E-evidence, new criminal law, its implementation” published in “The Hindu” on 1st March 2024.

UPSC Syllabus Topic: GS Paper 2- governance-Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

News: The article discusses changes in India’s criminal laws, focusing on new rules for electronic records and evidence. It explains the updated definitions, admissibility, and requirements for electronic evidence under the new laws, and mentions the challenges these changes pose for law enforcement and legal processes.

What are the new criminal laws in India?

India is introducing three new criminal laws: the Bharatiya Nyay Sanhita (replacing the Indian Penal Code), the Bharatiya Nagarik Suraksha Sanhita (replacing the Code of Criminal Procedure), and the Bharatiya Sakshya Adhiniyam (replacing the Indian Evidence Act). These laws will be effective from July 1, 2024.

For information on new criminal laws in India read Article1, Article2

What changes have been made in electronic evidence rules?

Definition of Electronic Records: Electronic records now include a wide range of digital data such as emails, server logs, documents on electronic devices, messages, websites, and digital voice mails.

Primary Evidence Rule: All copies of a video recording stored and transmitted electronically are considered primary evidence. This helps in proving cyber-crimes even if the original record is destroyed.

Admissibility of Electronic Records: Following the Supreme Court’s guidelines, a special certificate is required for electronic records to be admitted in court (Under the Bharatiya Sakshya Adhiniyam,). This certificate must be signed by two individuals: the person managing the device and an expert.

What are the judicial views on electronic evidence rules?

Mandatory Certificate: The Supreme Court judgment in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal & Ors. (2020) requires a certificate under Section 65-B (4) of the Indian Evidence Act (now Section 63(4) in the Bharatiya Sakshya Adhiniyam) for the admissibility of electronic records.

Curable Defect: Non-submission of the certificate in time is considered a curable defect. Courts may allow its later submission without prejudicing the trial.

Impossibility Principle: The Court’s view that if it is impossible to produce the required certificate, the court may excuse this requirement, recognizing the practical difficulties in obtaining the certificate.

What are the challenges in enforcing electronic evidence rules?

Insufficient Manpower and Resources: Many cyber labs may not have enough staff or are not notified under the IT Act to provide expert opinions on electronic records.

Complexity in Handling Vast Data: With the ubiquity of smartphones in crimes, the volume of data needing certification is enormous, posing logistical challenges.

Timing of Expert Certification: The article suggests that requiring expert certification for every case could be excessive, proposing its necessity only when the integrity of the electronic record is disputed.

Way forward

To effectively implement the new electronic evidence rules, a dual approach is needed: firstly, enhancing the capacity and resources of cyber laboratories, and secondly, initiating widespread training and awareness programs about encryption and electronic record handling, especially for private entities using electronic security systems. This will ensure smoother enforcement and compliance with the updated legal framework.

Question for practice:

Examine the significance of the mandatory certificate requirement for electronic records admissibility under India’s new criminal laws, considering judicial views and the challenges encountered in enforcing this rule.