INTRODUCTION
The exponential growth of technology has transformed the manner in which information is created, stored, and communicated. In contemporary litigation, electronic evidence—such as emails, call detail records, CCTV footage, digital documents, and social media content—has become central to both civil and criminal proceedings. Recognising this shift, the Indian legal system has attempted to adapt traditional evidentiary principles to digital realities. However, the admissibility and evidentiary value of electronic evidence have been subjects of significant judicial debate.
Two landmark judgments of the Supreme Court of India—Anvar P.V. v. P.K. Basheer (2014) and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)—have decisively shaped the law on electronic evidence under the Indian Evidence Act, 1872. This article examines the legal position emerging from these decisions and analyses their practical implications for litigation and legal practice.
STATUTORY FRAMEWORK: ELECTRONIC EVIDENCE UNDER THE EVIDENCE ACT INDIAN
Evidence Act,1872 underwent major amendments in the Information Technology Act, 2000. The section 65A and 65B were introduced to regulate the admissibility of the electronic records. Section 65A states that the contents of electronic records can be proved in harmony with Section 65B, and thus, Section 65B is a special provision that overrides the common principles of the documentary evidence.
Section 65B considers the electronic records as the documents and establishes certain conditions of admissibility. Above all, Section 65B(4) demands a certificate that identifies the electronic record, the way in which such record was created, and attests the integrity of the equipment that was utilized to create such record.
In spite of the clarity of the statute, judges rendered varying interpretations up to the point of the Supreme Court ruling.
ANVAR P.V. V. P.K. BASHEER (2014): MANDATORY NATURE OF SECTION 65B
In Anvar P.V., the Supreme Court reversed its own earlier order in State (NCT of Delhi) v. It had permitted admission of electronic evidence under Sections 63 and 65 of the Evidence Act by way of oral evidence and secondary evidence in Navjot Sandhu (2005).
In the case of Anvar P.V., the Court concluded that the electronic evidence can only be admissible when the provisions of Section 65B are strictly adhered to. It clarified that the electronic evidence has its own code that is contained in section 65A and section 65B. Without the requirement of Section 65B, secondary evidence of electronic records is not admissible. Section 65B (4) is a precondition for admissibility that a certificate is required. In the ruling, it was noted that electronic records are prone to abuse, manipulation, and alterations. Thus, there is a strict need to provide procedural protection of their authenticity and reliability. This ruling was a significant departure, providing the much-needed certainty but introducing practical challenges, especially where the initial electronic device was not in the control of the party relying on the evidence.
CONFLICTING INTERPRETATIONS AND PRACTICAL CHALLENGES
Following Anvar P.V., courts across India applied Section 65B strictly, often rejecting crucial electronic evidence due to the absence of the mandatory certificate. This rigid application posed challenges in cases involving third-party records, such as call detail records obtained from telecom companies or CCTV footage controlled by public authorities.
Further confusion arose from subsequent judgments that appeared to dilute the requirement of the certificate, leading to inconsistent legal positions. This uncertainty necessitated authoritative clarification by a larger bench of the Supreme Court.
ARJUN PANDITRAO KHOTKAR V. KAILASH KUSHANRAO GORANTYAL (2020): SETTLING THE LAW
In Arjun Panditrao, a three-judge bench of the Supreme Court reaffirmed the ratio laid down in Anvar P.V. and conclusively settled the law relating to electronic evidence.
The Court held that:
- The requirement of a Section 65B (4) certificate is mandatory, and electronic evidence is inadmissible without it.
- Sections 63 and 65 of the Evidence Act cannot be invoked to admit electronic evidence.
- The decision in Navjot Sandhu stands overruled to the extent it permitted alternative modes of proof.
- The certificate can be produced at any stage of the trial, including during appellate proceedings, provided the interests of justice are served.
Notably, the Court was aware of practical problems and created a narrow exception. In the event that the parties relying on the evidence do not have the control or possession of the electronic device, the relying party may approach the court asking the person in possession of the device to provide the necessary certificate.
This happy medium saved the sanctity of the procedural safeguarding and at the same time did not allow the technical impossibility to overcome justice.
EVIDENTIARY VALUE AFTER ANVAR AND ARJUN PANDITRAO
Post these judgments; the evidentiary value of electronic evidence depends not merely on its relevance but primarily on its compliance with statutory requirements. Electronic evidence that satisfies Section 65B enjoys the same probative value as primary documentary evidence.
Courts now scrutinize electronic records more rigorously, focusing on:
- Authenticity of the source,
- Integrity of the device,
- Chain of custody,
- Compliance with certification requirements.
This approach strengthens the credibility of digital evidence and enhances judicial confidence in technologically derived records.
PRACTICAL IMPLICATIONS FOR LEGAL PRACTITIONERS AND LAW FIRMS
For law firms and litigators, these judgments carry significant practical implications:
- Early Evidence Planning: Lawyers must identify electronic evidence at an early stage and ensure that Section 65B certificates are obtained promptly.
- Drafting Precision: Certificates must strictly comply with statutory requirements, including identification of the device and method of production.
- Client Awareness: Clients must be educated on the importance of preserving original devices and metadata.
- Litigation Strategy: In cases involving third-party electronic records, timely applications should be made to the court to secure certification.
- Risk Management: Failure to comply with Section 65B may result in exclusion of crucial evidence, adversely affecting the outcome of litigation.
CONCLUSION
The judgments in Anvar P.V. and Arjun Panditrao have brought much-needed clarity and certainty to the law governing electronic evidence in India. By mandating strict compliance with Section 65B, the Supreme Court has reinforced the principles of authenticity, reliability, and procedural fairness.
While the law may appear technical, it reflects a conscious judicial effort to balance technological advancement with evidentiary integrity. For the legal fraternity, particularly law firms and young practitioners, these decisions underscore the importance of procedural diligence in an increasingly digital litigation environment.
As technology continues to evolve, the principles laid down in these cases will remain foundational, guiding courts and practitioners alike in navigating the complex landscape of electronic evidence.
Contributed by: Akash singh