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As governance, commerce, and industry move into the 21st century and
onto the digital age, it is imperative for the law to keep pace with its
subject, and progress congruently. Due to the existence of businesses,
transactions, and communications occurring in digital form, both in the
public and private sector, there has been a parallel rise in the number of
legal conflicts and clarifications before the Indian courts that concern
electronic evidence. These cases are both of civil and criminal nature,
and the nature and admissibility of evidence put before the court therein
are of utmost importance to their ultimate result. There exist several new
challenges before the courts when addressing electronic evidence – its
unique character, coupled with its vulnerability to easy fabrication and
falsification, as well as its various new sources (emails, SMS/MMS,
social media, website data, etc.) and their ambiguous status in law.
Until recently, electronic documentary evidence was clubbed together
with ordinary documentary evidence and was to be adduced under
Sections 61-65 of the Indian Evidence Act.i It was subject to the same
provisions as physical documents were, and this created scope for great
manipulation and abuse. Equally importantly, as will be discussed
further in this essay, it violated the hearsay rule, which is an essential
tenet of evidence law. Thus, to rectify this, and bridge the generally
widening gap between the law and the digital age, the Information
Technology Act of 2000 (hereafter ‘the IT Act’) was enacted. This act
not only defined ‘electronic record’ii, but also amended Section 59 of the
Evidence Actiii, excluding these electronic records, much like
documents, from the probative force of oral evidence. However, instead
of simply subjecting them to Sections 63 and 65iv, which expound the
conditions for adducing documents as secondary evidence, the IT Act
inserted Sections 65A and 65Bv, created specifically to address the
evidentiary rules for electronic records.
Thus, this essay will aim to discuss the overarching concepts of primary
and secondary evidence, with reference to electronic records. It will
discuss the status and character of electronic evidence in the Indian legal
system, and the need for special provisions to address it separately from
ordinary documentary evidence. The essay will then explore the courts’
evolving position on electronic records and the process for their
adduction as evidence over the years, before finally describing the
current position of law, as laid down by the landmark Anvar P.V. v. P.K.
Basheervi judgment. The author will finally seek to critically analyse
said judgment, and discuss the gaps left in the law by the same, despite
its many accomplishments.
Right of waiver
Whenever secondary evidence is presented before a court it is the right of
the adverse party to object the same in the court of first instance.
Otherwise this right will not be available in the appellate court. In this
case that right would be deemed to be waived.
c) When the original has been destroyed or lost, or when the party
offering evidence of its contents cannot, for any other reason not arising
from his own default or neglect, produce it in reasonable time;
Anvar v. Basheer