With the advent and widespread use of electronic means to facilitate business, it is very crucial to understand the position of enforceability of such transactions in India’s Court of Law, especially the admissibility of electronic records as evidence. Majority of the businesses conduct their meetings or deals via virtual platforms like e-mails or even on messaging apps such as Whatsapp. However, it is important to understand how electronic records of conversations and documents shared on platforms like Whatsapp should be preserved and protected in order to produce them as evidence in the Court of Law. Two laws governing the electronic records are
The Indian Evidence Act, 1872
The Information Technology Act, 2000
In January 2021, Whatsapp messages between Republic TV Editor-in-Chief Arnab Goswami and former Broadcast Audience Research Council (BARC) CEO Partho Dasgupta were leaked and reported by several sections of the media. The Whatsapp chats became a part of the evidence for the TRP scam case filed by the Mumbai Police in the charge sheet.
In Sushant Singh Rajput case, the Bollywood actor was found dead in is Mumbai apartment in June, 2020. Several private chats between him and his former girlfriend Rhea Chakraborty were release which gave rise to the theory of murder.
All these scenarios give rise to a question, “Are Whatsapp chats admissible as Evidence in the Court?”
Admissibility of Whatsapp Chats as evidence in India
To keep up with the rapid technological advances, the legislature enacted the Information Technology Act, 2000, and the Indian Evidence Act, 1872 in 2016 to interpret and include electronic records as admissible evidence.
In India, Evidence law is categorized into primary evidence and secondary evidence. Primary evidence is considered to be the original documents and secondary evidence being any number of copies or reproduction of the original. The general rule of evidence law is that when primary evidence is not available then secondary evidence is not admissible. The same principle of primary and secondary evidence is applicable to electronic evidence as well. Any computer or device that produces the electronic record is the primary evidence. Any form of reproduction of the electronic record in the form of print outs or soft copies is regarded to be secondary evidence. However, due to the issues related to presenting primary evidence in the court, the rule of secondary evidence being admissible only when primary evidence is available, is generally relaxed.
Thus, all electronic documentation fall under the category of secondary evidence. Keeping in mind the chances of the documents being tampered with, the Courts have adopted stringent measures while evaluating the authenticity, reliability and relevance of the electronic records, including chats on online messaging platforms, chat engines. If any doubt arises regarding tampering with the authenticity of such record, the court can reject its admissibility altogether.
Section 65 of the Indian Evidence Act,1872 provides for a situation where a party may lead secondary evidence.
Section 65A, states that the contents of electronic records may be proved in accordance with the provisions given in Section 65B of the Act which provides the mode for proof of contents of electronic records. This mode of proof by secondary evidence applies to any computer output.
Conditions for Considering an Electronic Record
Section 65B (2) provides the conditions which have to be satisfied in order for a computer output to be considered as evidence. They are:
The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information by the person having legal control over the use of the computer
Information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities.
The computer was operating properly during the concerned period.
The information contained in the electronic record reproduced should be information fed into the computer in the ordinary course of the said activities.
One has to fulfil all the four conditions in order to produce the certified copies of Whatsapp chats or other electronic evidence in a secondary form before the court of law as evidence. When such a statement is produced as evidence under this section, it should be accompanied by a certificate signed by a person occupying an official position in relation to the operation of the relevant device.
In the case of Anwar P.V. v P.K. Basheer, the Supreme Court redefined the evidentiary admissibility of secondary evidence by re-interpreting the applications of Section 65 and 65B of the Evidence Act. The Court initially declined to accept electronic records as prima facie evidence without any certificate or signature in terms of Section 65B and stated the requirement of providing an electronic certificate under Section 65B pertaining to any electronic record is mandatory for treating such evidence as admissible. However, in 2018, in the case of Shafi Mohammad v State of H.P.,the Court relaxed the mandatory clause of production of certificate and stated that any electronic record produced as evidence can be relied upon.
It has been observed that Whatsapp chats or communication happening over any social media platform is submitted in the form of printouts of the actual chats and are used as evidence for the particular case. This clearly takes Whatsapp chats outside the scope of Section 62 of the Evidence Act and they cannot be considered as primary evidence. While the jurisdiction on electronic evidence is still developing, the Government of India has introduced a special provision in the form of Section 65A of the Evidence Act in 2000 which laid down the conditions to incorporate secondary evidence as legal evidence before the court.