Evidence is the heartbeat of justice. It breathes credibility into facts and gives shape to the truth in courtrooms. As technology sweeps through every corner of life, it leaves behind trails—messages, emails, CCTV clips, metadata, cloud backups. All these digital trails are now powerful carriers of proof. But while digital evidence has become routine in modern trials, it raises questions of authenticity, admissibility and interpretation that continue to challenge our legal framework.
What is Digital Evidence?
At its core, digital evidence is any information or data of probative value stored or transmitted in digital form. It could be as simple as a WhatsApp chat, as complex as GPS data or as large as a server log spanning millions of entries. Unlike traditional evidence, digital evidence is intangible and easy to manipulate. This single feature makes it both valuable and vulnerable.
Admissibility under Indian Law
In India, the framework for electronic records and digital evidence primarily comes from the Indian Evidence Act, 1872. When the Act was drafted, the word ‘electronic’ did not exist. But the Information Technology Act, 2000 amended the Evidence Act to bring digital records into its fold.
Section 3 of the Evidence Act now defines evidence to include all documents, including electronic records produced for the inspection of the court. Sections 65A and 65B were introduced specifically to tackle the special nature of electronic records.
Section 65A lays down that the contents of electronic records may be proved in accordance with the provisions of Section 65B. Section 65B is crucial. It provides that any information stored in an electronic record, which is printed or reproduced by a computer, shall be deemed to be a document if the conditions laid down in the section are satisfied.
A certificate under Section 65B(4) is mandatory to make such digital evidence admissible. It must identify the electronic record, describe how it was produced and give particulars of the device involved. It must be signed by a person occupying a responsible official position in relation to the operation of the device.
Landmark Judgment: Anvar P.V. vs. P.K. Basheer
For years, there was confusion over whether courts could rely on secondary electronic evidence without a certificate under Section 65B. Some courts used to admit CDs, pen drives, and emails under general provisions for secondary evidence.
This confusion was cleared in the landmark Supreme Court judgment Anvar P.V. vs. P.K. Basheer & Ors., (2014) 10 SCC 473. In this case, the Supreme Court ruled that Sections 65A and 65B are special provisions and override the general law on secondary evidence. The court categorically held that any electronic record by way of secondary evidence is inadmissible unless accompanied by the certificate required under Section 65B(4).
This judgment transformed how lawyers and investigators handle digital proof. Without the certificate, courts must ignore the evidence, even if its contents are undeniably genuine. The certificate itself must come from the person who operated the computer or has lawful control over it.
Practical Challenges in Obtaining Certificates
While the principle sounds simple, practice is far from it. Getting a Section 65B certificate is often an uphill battle, especially for the defence in criminal trials. Many times, the data belongs to a third party—mobile companies, social media platforms, or internet service providers. These entities may be uncooperative or situated outside India’s jurisdiction.
Imagine an accused trying to prove an alibi by producing Google location history. Without Google’s certificate, the evidence is likely to fail the test under Anvar P.V.
Recognising this, the Supreme Court in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal (2020) 7 SCC 1 clarified that if the original electronic evidence is produced in court—say, the actual device or original server—then no certificate is needed. The requirement applies only when a copy is produced.
Authentication: Proving It’s Real
Even with a certificate, authenticity must still be proved. The court must be convinced that the evidence is what it purports to be. Take CCTV footage: a camera may record continuously, but gaps can be created by tampering. Metadata, hash values and expert testimony become crucial here. Forensic labs often play a key role by certifying that the footage is unaltered.
In State of Delhi vs. Navjot Sandhu (2005) 11 SCC 600, also known as the Parliament Attack case, the Supreme Court accepted computer-generated call records even without a Section 65B certificate, relying instead on oral evidence by investigating officers. This part was overruled by Anvar P.V., tightening the standards to reduce misuse.
Preservation and Chain of Custody
One of the thorniest issues with digital evidence is the chain of custody. Unlike a physical weapon, a file can be copied endlessly without leaving obvious marks. Each transfer can risk contamination. A lapse in chain of custody can render the entire evidence suspect.
Investigators now follow standard operating procedures. Devices are seized in powered-off mode, hash values are generated on-site, and cloned copies are created for examination. The original device stays sealed and untouched to ensure integrity.
Hearsay and Digital Evidence
Another puzzle is the hearsay rule. Normally, hearsay—second-hand information—cannot be admitted as evidence. But digital evidence blurs this line. Emails and text messages often contain statements made by people not present in court. The Evidence Act carves out exceptions, treating some digital records as original documents if properly authenticated.
International Standards and India’s Position
Globally, digital evidence has its own standards and best practices. The Budapest Convention on Cybercrime, though India is not a signatory, sets useful guidelines for preserving and sharing electronic data across borders. In India, the lack of clear data protection laws makes this area murkier.
Indian courts still rely heavily on expert opinions from government forensic labs. But the sheer volume of cyber cases often creates delays. Private forensic labs exist but their reports may face credibility challenges.
Future of Digital Evidence
The volume of digital evidence will only grow. Virtual reality, blockchain transactions, deepfake videos—newer forms of evidence are emerging that will test the limits of our traditional legal thinking. There is a pressing need to train judges, lawyers and police officers in the technical nuances. Without this, a confession in a WhatsApp chat or an incriminating Facebook post can either wrongly convict or wrongly acquit.
The courts are evolving too. E-filing, virtual hearings and electronic records have become routine since the pandemic. The next logical step is building robust digital forensics infrastructure and clear protocols for real-time verification.
Conclusion
Digital evidence is here to stay. It can clinch convictions or dismantle falsehoods but only if handled with care. The law, as laid down under Sections 65A and 65B of the Evidence Act, provides a clear path but demands strict compliance. Anvar P.V. remains the torchbearer judgment that ensures this special evidence is treated with the caution it deserves.
Yet, technology moves faster than law. For our courts to keep pace, constant review, practical training and modern tools are essential. The promise of digital truth must never be lost in procedural blind spots. The power of a single byte of data can be enough to change a man’s fate—our justice system owes it to itself to get this right, every time
Contributed By: Saksham Tongar (intern)