Internet is the most formidable thing in the world now. We co-exist with every other in this situation of the Covid-19 pandemic with the help of the internet. Many of the confidential conversations are communicated with help of social media tools like WhatsApp, Gmail, Outlook, and Telegram, etc. In India, Information Technology Act, 2000 provides electronic governance and legal recognition of the authenticity of electronic records. This act can be referred to as the primary law dealing with cybercrime and electronic commerce. When a crime is committed using electronics, the proof of the crime can be an electronic record only. Now in India, electronic records are admissible in courts with reference to Section 65(B) of the Indian Evidence Act.
In Section 2 (1)(t) of Information Technology Act, 2000, an electronic record is defined as the data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. Also, Section 3 of the Indian Evidence Act provides that evidence includes electronic records also.
Section 65B of the Indian Evidence Act
Section 65B provides for the admissibility of electronic records in the court. It has five sub-clauses.
Section 65B(1) starts with a non-obstante clause and it states that any electronic record produced by a computer shall be considered to be a document and admissible in any court proceedings without any additional proof if the record is binding by the conditions mentioned under the section 65B(2) are satisfied.
Section 65B(2) states the following conditions that the computer output shall be binding:
- The computer shall be used to store and process the information regularly for any regular activities by the person who has lawful control over the use of the computer.
- Any information produced before the court must be regularly fed into the computer for regular activities.
- The computer from which the information is obtained shall be regularly working and if there is any malfunction in the computer during information obtained, it shall not affect the electronic record.
- The information produced must be accurate.
Section 65B(3) states that, during any period when the function of storing and processing of information in the regular activities, if the computer where the information is obtained is connected with two or more computers in a combination, delegation or succession for the processing of information, all the computers involved shall be treated as a single computer.
Section 65B(4) provides the condition on which the certificate can be issued for the evidence. The authorised person who is in control of the source obtained from the computer must sign in the certificate to acknowledge that he/she takes full responsibility that information is true.
Section 65B(5) deals with the chances of information being tampered with due to technical errors.
CURRENT SCENARIO IN INDIAN COURTS CONCERNING ELECTRONIC EVIDENCE
Electronic evidence can be submitted in the courts and they have an evidential value when they are produced with a certificate from the authorised person under Section 65B(4) of the Indian Evidence Act. But, in the Judgement of ‘Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and others’ stated that the requirement of Section 65B(4) of providing certificate can be applied only when the person producing the electronic evidence has ownership over the device. In case of the person producing evidence does not own the device, Sections 63 and 65 of the Evidence Act cannot be applied. In such a case, the procedure under the aforementioned section can be certainly invoked and if this is not so permitted, it will be an injustice to the person who owns the authentic evidence but the evidence is not considered by the court as the certificate of proof is not submitted by the person. Thus, the requirement of the certificate under section 65B(4) is not mandatory. In ‘State of Delhi v. Mohd. Afzal and others’, The Supreme Court of India stated that electronic evidence is legally admissible in the court of law. In ‘SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Yadav’, The High Court of Bombay stated that WhatsApp chats are admissible as evidence in the court of law provided that the conditions mentioned in the Section 65B of the Indian Evidence Act are satisfied. But on the contrary, According to a report of Times of India, a bench of Chief Justice N V Ramana, Justices A S Bopanna, and Hrishikesh Roy said, “What is the evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don’t attach any value to the WhatsApp messages.”
CAN INSTAGRAM CHATS BE USED AS EVIDENCE?
Courts are accepting social media content as evidence around the world now. In ‘Largent v. Reed’, the plaintiff claimed that a recent accident made her life quite complicated. But, the defendant produced the post-accident photos of the plaintiff that she posted in her Facebook account before the court which revealed that she attended the gym, and feeling well enough in her daily activities. The court ordered the plaintiff to submit her Facebook login information for further investigation.
Electronic evidence can be manipulated or edited in some circumstances, courts follow strict measures while analysing the authenticity and reliability including chats on social messaging platforms, chat engines, and e-mails. Any doubt arising about the authenticity of the evidence, the court can reject its admissibility. Conversations on online messaging platforms can be archived by taking screenshots. But the screenshots are saved as photos, this puts the authenticity of the photos in jeopardy as they can easily tamper it. However, the burden of proof relies on the challenger’s side.
Under Section 65B of the Indian Evidence Act, Instagram chats can be submitted as evidence. The information shared on Instagram’s parent company Facebook was produced in the above precedent, so Instagram chats can be produced as evidence. But the authenticity of the screenshots of Instagram chats may be questioned in court.
Technological growth has mixed emotions as there are merits and demerits. The courts have problems in accepting electronic records because there is a chance that the electronic records can be manipulated. All the edited or manipulated records can however be identified with the help of experts who can analyse the forged documents and forensic and social media platforms providing services. But we can hope that with the development of technology, we can expect that all the electronic records are admissible in the court without hesitation and ensure that the authenticity of the evidence is not compromised.
Author(s) Name: Rishi Nandhan R. B. (Presidency University, Bangalore)
 State of Delhi v. Mohd. Afzal and others, (2003) 71 D.R.J. 178
 Whatsapp messages cannot be used as Evidence in a Court of Law, says SC: Report, News18 (July 15, 2021, 10:45 AM), https://www.news18.com/news/india/whatsapp-messages-cannot-be-used-as-evidence-in-a-court-of-law-says-sc-report-3964916.html
 Andrew Arnold, Here’s How Social Media Can Be Used Against You In Court, Forbes (December 30, 2018, 02:27 PM), https://www.news18.com/news/india/whatsapp-messages-cannot-be-used-as-evidence-in-a-court-of-law-says-sc-report-3964916.html