Introduction
In today’s digital environment, the convergence of technology and law presents both opportunities and challenges for lawyers and technologists. This paper investigates the urgent need for a strong legal framework to address the complexities caused by rapid technological progress. It investigates how new technologies, such as artificial intelligence, blockchain, and digital evidence, affect the legal system. Central themes include the need to update existing laws to reflect technological advancements, the importance of protecting digital rights, and the role of regulatory agencies in ensuring compliance and accountability.
Modifications made by the new BSA in 2023
The BSA makes significant, albeit small, changes to the law pertaining to electronic evidence. The inclusion of new clauses and the expansion of the definition of “document” to encompass digital and electronic records have substantial legal ramifications, even though the fundamental ideas are still the same. To be clear, these changes fall into three distinct categories:
Fundamentals of the law governing electronic evidence: Electronic evidence is elevated from secondary to primary documentary evidence by virtue of the requirements for its admissibility under Section 65-B(1) of the IEA. Sections 62 and 65 of the IEA should be considered when interpreting this elevation.
The procedural components pertaining to admissibility requirements: A crucial part of the legal framework governing electronic evidence is the Supreme Court's decision to make the procedural requirement for a certificate to accompany electronic evidence under Section 65-B(4) of the IEA mandatory.
Laws pertaining to the legal importance of electronic evidence: Section 22-A of the IEA and Section 61 of the IEA, which set forth guidelines for specific facts to be considered relevant regarding the content of documents and electronic records under particular conditions, are the laws pertaining to the legal significance of electronic evidence. Section 20 of the BSA now includes these two sections.
The following is a comparison of the legal frameworks created by the BSA and the IEA with regard to these three interrelated aspects:
Fundamentals of the law governing electronic evidence:
In short, the admissibility of electronic evidence under the law of evidence serves as the foundation for the legislation governing it. Accordingly, certain clauses act as a channel for electronic evidence—a type of secondary documentary evidence—to pass through legal systems and, by fulfilling the requirements, take on the qualities of primary documentary evidence. When these requirements are met, electronic evidence can be considered a "document" and, as such, have the same legal standing as the original document, which is the pertinent computer output or device.
The process required to raise the probative value of electronic evidence to equal that of the primary document is currently outlined in Section 61 of the BSA (which was recently enacted and added to the BSA) in conjunction with Sections 62 and 63 of the BSA (which correspond to Sections 65-A and 65-B of the IEA). However, by designating specific electronic or digital records as primary evidence under particular circumstances, the recently added Explanations 4-6 to Section 57 of the BSA (which correspond to Section 62 of the IEA) introduce potential inconsistencies. One could argue that these justifications go against Section 63 of the BSA since they appear to get around the necessity of fulfilling the requirements listed there in order for electronic evidence to be accepted as main supporting documentation, including the essential necessity of presenting a certificate.
However, by bringing the Explanations into compliance with the requirements for the admissibility of electronic records, this apparently contradictory circumstance can be resolved. This can be achieved by removing the situations outlined in the BSA’s Explanations to Section 57 from Section 63’s scope. This strategy would comply with the judicial requirement to meet the preconditions and fully respect the legislative intent stated in Section 57 of the BSA. Notwithstanding the possibility of reconciliation, these additions create additional ambiguities with regard to the law governing electronic evidence. For instance, according to Explanation 5, if an electronic or digital record is acquired from “proper custody,” it qualifies as primary evidence. However, the term "proper custody," as used here, is not precisely defined in The BSA's ambiguous Section 57.
Furthermore, it is a significant departure from the core ideas of electronic evidence law to use (im)proper custody as a standard for determining the evidentiary value of digital or electronic records. In the past, determining the evidentiary value has depended more on confirming the authenticity of the record than on the people who provide it as a source of authority. The requirements for the “information and computer in question,” as stated in the earlier Section 65-B(2) of the IEA, emphasize this idea.
The procedural components pertaining to admissibility requirements:
The rules and procedures for the law on electronic evidence are closely related to the basic ideas that were already explained. The Supreme Court has made it clear that submitting a certificate along with electronic evidence presented in the trial court is necessary. It is likely that this court order has led to the certificate requirements being made stricter and more strict. The BSA now requires that the certificate be signed by both an expert and the person in charge of the device In question, in addition to the core criteria. This creates a dual-certificate system. This is a good step forward that is in line with a number of court decisions, including the important one in Arjun Panditrao Khotkar. It makes electronic evidence more reliable for use in court.
Section 39(1) of the BSA, which is the same as Section 45 of the IEA, also makes a significant change by adding the phrase “any other field.” This change makes it possible for the opinions of experts from many fields, such as those who work with new technologies and information technology, to be relevant in court. Section 39(1) of the BSA takes a broader, more inclusive view than the old Section 45 of the IEA, which listed all the fields from which experts could be called to testify in the trial court.
Laws pertaining to the legal importance of electronic evidence
Information that is important to the content of electronic or digital records. The law of evidence says that electronic evidence is secondary documentary evidence. This means that facts about the contents of electronic or digital records only matter in certain situations. Before, Section 22-A of the IEA talked about how oral admissions about the contents of documents were important. This is no longer the case because the BSA has expanded the definition of "document" to include electronic or digital records. Section 22-A of the IEA says that oral admissions are not usually relevant to the contents of the document unless there are doubts about the authenticity of the electronic record itself.
Notably, the previous Section 22 of the IEA created two different requirements for oral admissions about the contents of documents to be deemed relevant. The first was that the oral admissions could be legally relevant if the party attempting to prove them proved that they had the right to provide secondary evidence of the documents’ contents, or if there was uncertainty about the document’s authenticity. Furthermore, it is noteworthy that Section 22-A of the IEA was eliminated as a result of the BSA’s updated definition of “document,” and the language used in the recently passed Section 20 of the BSA completely complies with Section 22 of the IEA, applying the same two requirements to all kinds of documents.
It is crucial to look at the enlarged definition of secondary evidence under Section 58 of the BSA (which translates to Section 63 of the IEA) before exploring the resulting dichotomy. Oral admissions may be used as secondary evidence about the original document’s contents in the circumstances allowed by clause (i) of the Explanation to Section 60 of the BSA (which is equivalent to Section 65 of the IEA), according to Section 58 of the BSA, among other things. If the original document that needs to be proven is in the possession of the opposing party, has been lost, or is not easily movable, this permits the acceptance of any secondary evidence, including oral admissions.
Electronic or digital documents used as primary evidence
The fact that digital or electronic records may be accepted as primary evidence in specific circumstances under Section 57 of the BSA must be taken into consideration when having this conversation. In conclusion, the recently added explanations to Section 57 of the BSA allow oral admissions to be used as secondary evidence for digital or electronic records that are designated as primary evidence. One such instance is when the records are not in the legitimate possession, custody, or control of the party seeking to prove them; this is a special case that the court initially recognized in the Shafhi Mohammad ruling. According to the Arjun Khotkar ruling, in these situations, the party wishing to prove the records is exempt from having to apply to the court to obtain them.
As a result, the party in question now has a remedy under the law of evidence itself, albeit in certain situations where the records that are going to be introduced qualify as primary evidence. These electronic or digital records designated as primary evidence are now protected from the strict framework imposed by the special provisions regarding electronic evidence by being subject to the general procedural rules that govern primary and secondary documentary evidence.
Conclusion
On the one hand, the Arjun Khotkar ruling has affirmed that the regulations governing the admissibility of electronic evidence form a comprehensive and self-contained “complete code.” This essentially stops the current legal framework governing electronic evidence from creating two parallel procedural pathways. The Arjun Khotkar decision was a crucial step towards consistency in this legal area, as the approaches taken in earlier rulings, like Navjot Sandhu and Shafhi Mohammad, were deemed inconsistent. However, this move is now uncertain because of the recently passed BSA, 2023. Although the Adhiniyam brings about a welcome change, it is unclear if this new chapter will lead the Court to reevaluate its previous decisions and take the previously rejected methods into consideration as viable alternatives in this evolving context.
We must decide whether to actively seek out solutions to the issues raised or wait for the Court’s response. One could argue that identifying problems is easier than coming up with solutions, but in the legal profession, it is crucial to keep in mind Einstein’s famous observation that, given an hour to save the world, he would spend 59 minutes defining the problem and just one minute coming up with a solution. Therefore, it might be okay to sit with the issues that have been identified for the time being.
Closing Credit
Author- Neha Kalyan
"The views expressed are personal. This article is intended for educational purposes and public discourse. Feedback and constructive criticism are welcome!"
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