I. Introduction

In Anvar PV v. PK Basheer and Arjun Paditrao Khotkar v. Kailash Kushalrao Gorantyal the Supreme Court held that electronic evidence that is secondary evidence is admissible only if the requirements under §65B of the Indian Evidence Act, 1872 (now, §63 of the Bharatiya Sakshya Adhiniyam, 2023) are complied with, that is, the certificate authenticating the evidence in the requisite manner is produced. Both cases distinguish between primary electronic evidence and secondary electronic evidence – §65B only applies to make secondary electronic evidence admissible. The underlying rationale is to ensure the source and authenticity of these records, which are more susceptible to tampering, alteration, transposition and excision (¶15, Anvar). However, neither judgement contains a detailed discussion on the meaning of secondary electronic evidence (a term not defined in the IEA), mentioning a definition or illustration only in passing.

The traditional dichotomy of the “original” and “copy” as applicable to paper documents cannot be applied ipso facto to electronic records. In the case of paper documents, there is a clear demarcation between the original and its copies, which are documents with different physical characteristics. However, this demarcation becomes less clear when it comes to electronic documents. Therefore, what constitutes an “original” (or primary evidence) as against a “copy” (or secondary evidence) in the context of electronic evidence deserves more discussion than has been granted hitherto.

This paper argues that while the definition of secondary electronic evidence in Arjun Panditrao addresses the ephemeral nature of electronic evidence to some degree, it does not account for the inherently dynamic nature of an “original” document on the source computer. Additionally, it argues that while the added explanations to the BSA address this dynamism, Explanation 5 makes §63 lose its teeth by classifying documents produced ‘from proper custody’ as primary documents. It argues that these documents should be subject to further scrutiny, to ensure that data is not manipulated or lost in the process of retrieval.

Part II explores the way in which secondary electronic evidence has been defined or illustrated. It critiques Anwar’s incomplete illustration and endorses the definition in Arjun Panditrao for performing an origin-identification function, essential given the peculiar characteristics of digital evidence. Part III highlights, however, that the dynamic nature of electronic records further blurs this line between ‘original’ and ‘copy’, something that Arjun Panditrao fails to account for. Part IV argues that while the added Explanations 4, 6 and 7 help account for Arjun’s shortcomings, Explanation 5 (which classifies documents produced ‘from proper custody’ as primary documents) renders §63 obsolete. It argues that these documents should be subject to further scrutiny to protect data integrity during the process of retrieval. Part V concludes by arguing that in the absence of sufficient procedural safeguards for official identification, retrieval and analysis of electronic records, such electronic records cannot be assumed to be akin to primary records. Thus, it becomes necessary to produce the §63 certificate even in this case.

II. Dissecting the Definition of Secondary Electronic Evidence

Anvar does a superficial job of explaining secondary electronic evidence. The illustration in Anvar (¶24) only hints at a definition. CDs used for announcements and songs would fall under primary evidence. However, if the announcements were recorded by using other instruments and fed into a computer, CDs made from the recordings fall under secondary evidence. Aside from this obiter, it does not provide a broader definition or characterisation of primary or secondary electronic evidence that can be applied more generally.

Arjun Panditrao (¶30-32) fares better in defining the original or primary electronic record. It reads “without further proof or production of the original” to mean that “original” in §65B refers to the “original electronic record” contained in the “computer in which the original information is first stored-and the computer output containing such information”. Certification is unnecessary, for instance, if the owner of a device could “[attest] that the concerned device, on which the original information is first stored, is owned and/or operated by him.”

Thus, Arjun reads original to mean “origin” or source – a test similar to the ‘first instantiation’ test. Teppler highlights that the test is useful to authenticate electronic records, as the term “original” has no inherent value in case of electronic evidence. Mason also points out the issue of “originality” that has arisen with the shift to digital mediums from analogue mediums. His observations are reiterated in Arjun’s concurring judgement(¶87). Digital objects may be altered and then put back into its constituent parts in a manner that makes it impossible to distinguish the original and copy – akin to “droplets of rain that fall, merge, then divide”. This is unlike a physical document, whose uniqueness is an attribute underlying its authenticity. Copies, no matter how effectively made, usually fall short on certain minor elements. Thus, the concept of the “original” document has no application to digital documents. Instead, there may be many ‘duplicate original’ files that were generated at the same or different times.

In this context, the first instantiation test provides a source identification function, allowing one to determine the “characteristics of the source of the data, the environment… and provenance of the initial creation of digital data.” Thus, the test in Arjun is a functional one, adapted to address the inherently malleable nature of digital data. This clarifies the distinguishing character of the two CDs in Anvar’s illustration – the CDs used for the announcement, being the source, were primary electronic records.

Thus, while Anvar rules on secondary electronic evidence without adequately explaining the term, Arjun Panditrao provides a definition that is theoretically sound, accounting for the mutable character of digital evidence. However, the definition in Arjun still suffers from certain limitations, as highlighted in the next section.

III. The Origin Test & the Dynamism of “Original” Computer Records

The reference to the “original” document in the source computer in Arjun is under-inclusive as it does not account for the temporary nature of the “original” documents in a computer.  Arjun holds that primary electronic evidence is the record extracted from the computer in which the “original” document is first stored. However, there may be more than one copy of a particular document in a source computer. If multiple, marginally different versions of the document are created, it is not easy to determine which one of them is the “original” on a given computer.

To understand why multiple versions of a document may come to be, it would help to picture an electronic document as a process rather than as an object. An electronic document is not an object – it has no existence independent of its software. Rather, it is a process by which unintelligible pieces of data are assembled, processed, and made legible.

Therefore, the very act of working on a document may end up creating numerous copies in the form of earlier drafts, which may persist on the computer even after the author finishes editing the document. The creation of multiple copies may occur volitionally, inadvertently, or in the regular course of use of documents. A hard drive may store multiple copies of earlier versions of data and even retain supposedly irretrievable files. A particular case is that of automatic backups of recent drafts saved by word processing applications. Deletion of a file also does not ensure that the data itself is eliminated – such content is usually recoverable unless overwritten by new data. Further, the very act of opening a document is also recorded as metadata, modifying the document information each time it is opened.

What is the implication of this? If even simple acts such as retrieving documents, or viewing existing documents, modifies their data, the “original” document would often be the subject of multiple inadvertent revisions. In such a case, the document that is the “original” no longer has an active existence, being constantly modified. While the definition in Arjun makes sense insofar as it attempts to requisition the first source computer, it must not lose sight of the fact that even the “original” document in the computer has a dynamic existence, being an object of constant change.

IV. Minor Corrections & Major Consequences of the BSA

While the BSA still lacks a clear definition or explanation of primary electronic evidence, under the Explanations to §57, certain types of electronic evidence are classified as primary evidence. This section shows that while Explanations 4, 6 and 7 make minor refinements to the definition in Arjun, Explanation 5 undermines the entire framework of admissibility in §63.

The primary changes made in the BSA are as follows: Per explanation 4, all electronic records that were stored simultaneously or sequentially in multiple files are primary evidence. Explanation 7 clarifies that even if the record is stored in multiple storage locations in a computer resource, each such automated storage is primary evidence. Under Explanation 6, video recordings that are “simultaneously stored in electronic form and transmitted or broadcast or transferred to another”, are primary evidence. These changes provide some certainty to the issue of the dynamism of electronic records, where each “copy” in a given computer would be treated as an “original” or primary evidence, provided creation of both the original and copy was contemporaneous. §63 certificate now also requires mentioning the hash value of the electronic record. The hash function accounts for the inherent dynamism of electronic records – even a minor change to the document will now be reflected by a change in the hash value. This helps identify any tampering.

However, under Explanation 5 to §57, electronic records produced from proper custody are treated as primary evidence. As highlighted above, electronic records are inherently malleable. Experts in the field emphasize that even the process of retrieval of electronic documents has the capability of destroying integral information. Thus, even when documents are produced from ‘proper custody’, safeguards are essential to ensure the integrity of extracted documents. Globally, standards such as the ISO standards are recognised and modelled upon, which carry detailed guidelines for the identification, collection, acquisition and preservation of digital evidence. However, barring general provisions in the IT Act and the CBI Manual, India does not have proper guidelines based on such international practices. The IT Act (§78, §80) restricts itself to mentioning safeguards prior to collection of evidence – the focus is on search and seizure.[1] While §7 does explain conditions for retention of electronic records, it does not specify any forensic tools to validate such records, or to ensure that a copy of a record is an adequate substitute for the original, unlike the §63 certificate.

It may be noted that §193(3)(i) of the Bharatiya Nagrik Suraksha Sanhita, 2023 has introduced a requirement that the police must include a report on the sequence of custody in case of electronic devices while filing the charge-sheet. This is an important step towards authentication of electronic records. However, this is only indirect evidence of tampering. An unbroken chain of custody does not in itself prove that records have not been corrupted. The authenticity depends not only upon the existence of a document outlining the chain of custody, but also upon the reliability of the documentation itself and the reliability of the purported custodians. The admissibility of such documents per se becomes particularly dangerous in the background of cases such as Bhima Koregaon (Romila Thapar v. UOI) and RG Kar, where the police themselves were alleged to have tampered with or planted electronic evidence. In contrast, the §63 certificate has a two-tier certification – first, by the owner/manager/operator of the device, and second, by an expert. Further, under the BSA, the hash value of the record must be attested to at each stage of admission, to prove that the evidence was untouched since it was first acquired. Any alteration made to the file would also alter the hash value. Provided the hash was kept securely and communicated to the defence at an early stage, it serves as a secure authenticating process.

While indeed, the provision allows the accused to challenge such evidence, procedural limitations mean that such a challenge may be noted and reserved for judgement later in the trial, rather than a conclusive determination at the time of admission. If a case is made out solely on unauthenticated electronic evidence, prima facie admitting such evidence impacts the procedural rights of an accused. This is because the documents will likely be considered during the pre-trial stage, such as framing of charges and bail applications. In case of special offences, where the threshold for bail is a prima facie case, such documents may be the sole reason for denying bail. By allowing such evidence to impact procedural outcomes such as bail and discharge, it has the potential to affect a person’s right to liberty and fair trial.

Thus, it is posited that the said explanation should be reconsidered, and that the §63 certificate should be mandatorily produced even in case of such production from proper custody. This should be done firstly, to ensure that the record has not been tampered with by the police themselves, and secondly, to ensure that the record has not been modified or damaged in the process of retrieving the electronic record. This paper acknowledges the various limitations associated with the §63 certificate, as highlighted in existing literature.  However, it posits that an artificial demarcation that treats only electronic evidence produced from proper custody as primary evidence, in the absence of sufficient safeguards for identification, retrieval, analysis, accords it with an authenticity it may not possess in truth. The position would be different if the §63 certificate requirement were removed entirely – then, each document would be assessed on its own merit vis-à-vis authenticity. The explanation to §57, apart from removing the §63 certificate requirement for documents produced from proper custody, creates a legal fiction that the document is the equivalent of the primary record – thus, according it with the legitimacy of the source document. However, as highlighted above, procedural safeguards during the process of retrieval, identification and analysis are inadequate, and do not form an adequate substitute for the §63 certificate.

V. Conclusion

The case of Arjun Panditrao attempted to introduce an origin-based definition of electronic evidence. While it accounted to some extent for the ephemerality of electronic documents, it failed to account for the dynamism of such records, even when stored on the same computer device. The amendments to the BSA account for this inherent dynamism of electronic records to a certain degree. However, by shielding records collected by investigative authorities from scrutiny, the new Explanation 5 makes the entire §63 lose its teeth. Given the fear of tampering by investigative authorities, the fairness problems that may arise and also the issues related to the proper retrieval and preservation of evidence, it is argued that §63 must continue to apply to evidence produced from police custody. This is essential to ensure that there has been no intentional tampering or accidental damage or modification caused by the process of retrieval.

[1] Even this framework is seen as inadequate. The Foundation for Media Professionals recently filed a writ petition under Article 32, seeking the formulation of proper guidelines to regulate the search and seizure procedure for digital devices in India. The case is currently pending before the Supreme Court.

* The author is a student of the Batch of 2028 at the National Law School of India University.