Naavi.org

To Whomsoever It May concern

Right now, I am asking one question to Mr Modi on why he is ignoring the need to remove the Digital Black Money which is taking roots in India. I hope I will receive the answer if not from Mr Modi, from any of his deputies.

(I am leaving aside the many good things Mr Modi has done during the last one year and ignoring the difficulties that  have arisen due to the COVID Crisis and the continued challenges posed by the anti national opposition.)

I am speaking of the “Crypto Currencies” lead by the “Bitcoin”, which is the digital black money that seems to have encroached upon us and mocking at all the honest tax payers who are contributing to the welfare of the economy while the corrupt are feeling victorious.

“Bitcoin” is an anonymous asset that poses itself as a currency to replace Indian Rupees. Once rupee is converted into Bitcoin, it can further be converted into many other crypto currencies all of which are anonymous. They can also be converted into some foreign currencies and convertible into any other foreign currency. It therefore facilitates havala transactions in a jiffy.

Bitcoins and other crypto currencies are held in  wallets which are as easy to set up as an e-mail account. There is no need to go through any stringent KYC process and people can use an anonymous Proton mail account and an online pseudonymous mobile number for additional authentication if required.

Bitcoins can be loaded onto the wallets and withdrawn through an exchange. Exchanges may have different forms of conducting KYC. After the various controversies some Indian exchanges have introduced some system of KYC but it would not be difficult to open benami accounts in these exchanges and transfer the bitcoins to other benmi wallets outside India. Even if the first account is identifiable, subsequently the Bitcoin can be transferred to an anonymous wallet, re -bought at a loss and account closed booking a capital loss while the original asset is converted into a benami wallet. It is a very effective money laundering operation.

Currently the exchanges in India are doing Bitcoin transactions following the helpful decision they extracted from the Supreme Court on the RBI’s prohibitory circular. It is therefore now possible to use the exchanges to link to Indian Bank accounts and transfer rupee balances in Banks into Bitcoins and later change it to other crypto currencies and foreign exchange without any control from RBI. Neither RBI nor any other department of the Government have tried to re-issue the RBI circular or ask for a review of the decision of the Supreme Court. Hence exchanges are now free to do their business of converting Indian rupees of investors into Bitcoins.

Initially the benami bank deposits will get converted and later, even honest tax payers will also start converting their rupee deposits into crypto currencies. The stock market investments will also get eroded to some extent and all other benami assets including gold may get converted into the crypto currencies.

Once we allow the termite of Bitcoin to settle down, it will gradually eat away all the rupee assets in our Banks and create a crisis in our financial systems.

Since Bitcoin is the currency of choice for “Bribery”, the entire community which is corrupt and want corruption to continue will not raise their voice against Bitcoin. The Cyber Crimes will also proliferate since Bitcoins are the currency of choice for ransomwares and operations in the deep web. The terrorists will also be happy since they can pay the sleeping cell operators in India through Bitcoins and not take the trouble of printing fake currencies.

In summary, Bitcoin is a perfect black money and presently it is allowed to be used freely in India.  One of the failures of your administration has been your inability to ban Bitcoins and Crypto Currencies.

I am sure that there are many excuses for not doing it and also shift the blame to RBI. None of the excuses however indicate that it is not possible to ban Crypto Currencies. Some experts are misguiding the Government that instead of “Banning” we should “Regulate”. It is easy to “ban” but tougher to “regulate”, though it is possible to achieve “Banning” through “Regulation”. But the Government is not keen on pushing through the draft bill which is already with the Ministry of Finance and under the cover of the Covid, Bitcoin is establishing itself.

Banning Crypto Currencies is like “Demonetizing the Virtual Currencies” and should have been done along with the demonetization of the high denomination currencies.

I wish the Government takes note of this failure and try to address this at least in the next session of the Parliament.

Naavi

Dear Friends of this Blog,

This Blog has been running since 1998 and on various occasions made comments on Cyber Law as it has been emerging in our country. These were meant to develop Cyber Jurisprudence in an area where even the Courts are learning.

Cyber Jurisprudence need not be considered only as what can be ascertained in the words of wisdom contained in a Court judgement as many law teachers may believe. I believe with my 40 plus years of teaching of law both in the Banking field and Cyber Law field that many times Courts depend on the views of the advocates who put across their views and the judges donot take an independent view of their own. Though in the higher courts, the judges are free to do so, they only respond when there is a constitutional view and even here, some judges swear by what is written in the Constitution and some say they have the power even to re-interpret the words written in the Constitution.  As a result the Courts do what they like to do  and some times give a slip to what is good for the society.

The Courts have supported Constitutional amendments from the earlier version to “Secular” version but will not support the reversal. Mr Ravi Shankar Prasad often speaks of the “Original Constitution” that had the pictures of Rama and Krishna, as he did in his lecture recently in the NLSUI- Madhava Menon Lecture series. But he does not say why today Indian constitution bars the teachings of Ramayana or Bhagavadgita openly in our schools. Every body have their own constraints including Mr Modi and Amit Shah or even the Chief Justice of India.

But we the Citizens of India in whose proxy name the Constitution is being protected by the Government and the Courts are often denied our right of expression.  Each one of us who have some vested interest try to be diplomatic in our expressions so that we donot offend one section or the other. The silence of the majority is therefore the bane of our society.

I have been speaking in good faith about many developments in the Cyber Law area in India through these columns trying to draw the attention of different decision makers.

As a citizen of India, I have felt it is my duty to draw the attention of Ministers as well as the Judicial authorities on many occasions so that they can do what is right for the society.

However, the persons in power who need to do their duty often are happy to keep quiet. Many of them may agree with what I say but donot have the opportunity to speak out or the courage to speak out.

I have therefore decided to open a series of articles under the series “To Whom So Ever It May Concern” (TWSEIMC) in which certain things relevant to the field of Cyber Jurisprudence would be discussed.

I hope like minded citizens join me in this campaign and try to draw the attention of the authorities  so that those who have the power can do what they can within the legal boundaries.

This series is not going to discuss purely political matters but try to restrict it to professional discussions.

Looking forward to your support.

Naavi

Today I will be speaking on Youtube live on Sec 65B of Indian Evidence act.

Interested persons can watch the session at

www.youtube.com/clue4evidencefoundation

From 12pm onwards

Topic: Legalities in Admissibility of Digital Evidences

Naavi

P.S: I presume that the Youtube live did not work due to some technical problems at the organizer’s end. I am sorry that many of the readers of this column were disappointed. If I get a copy of the recording, I will post it. Otherwise, I will record another lecture and post it. If any other organization wants to have a similar talk, I will be happy to speak once again.

I m providing a link to the video of the talk. In one place there is a small disturbance of about half a minute. Please ignore. I intend to receive queries if any and host another video if required.

The Bitcoin community in India is gloating over the predicament of RBI which had to confirm in an RTI reply that “as on date, no prohibition exists on any Banks providing the Bank accounts for Crypto Exchange companies or Crypto Traders”.  The above is a reproduction of an article in bitcoin.com that reflects this victory of black money merchants over RBI.

After getting the support of the three honourable judges of the Supreme Court and with neither the RBI nor the Central Government interested in taking any action to counter the effect of the Supreme Court judgement that directly promotes Black Money, Cyber Crime, Terror Financing  and Money Laundering.

Crypto Exchanges convert INR to Bitcoin or other Crypto Currencies, convert one crypto currency to another and convert crypto currency to a foreign currency like US dollar or Japanese Yen.

Hence for all those people in the Finance Ministry, the MeitY who are remaining silent at this open promotion of Digital Black money, the honest, tax paying citizens of India are asking the question whether you would like any Indian to keep his assets in the form of Indian Rupees or want all of us to convert our rupee balances to Bitcoins and make it available for havala transactions?

It is unfortunate that even Mr Modi our beloved PM and the so called Iron man of the day Mr Amit Shah have been rendered impotent against the might of Bitcoin and Black Money. Mr Ravishankar Prasad and Mrs Nirmala Sitharaman are not interested in making any move because they are not strong enough to challenge Black Money in any form.

Otherwise with one notification under Section 1(4) of Information Technology Act, Government could have added “Crypto Currencies” as one of the categories of electronic documents that are not recognized as an electronic document and removed the legal cover for the instrument. It could have added an explanation to Section 66F that promoting Crypto Currencies as currencies convertible  from INR could have been declared as “Cyber Terrorism” since it strikes a terror in the minds of all honest tax payers that the country is being taken over by black money merchants.

The RBI could have filed a case against any body projecting the Crypto Currency as a Currency not withstanding the Supreme Court judgement because the same judgement has upheld the right of the RBI to regulate the Crypto Currency.

Mr Modi should realize that Bitcoin on the loose is a threat greater than the  COVID 19 and he is either not being advised properly or has lost interest in checking the menace of Black money in India.

Perhaps Mr Modi has lost his battle on Black Money as much as Naavi is loosing the battle against Bitcoins.

Naavi

Section 65B of Indian Evidence Act has been perhaps the most difficult techno legal concept that was introduced by ITA 2000 (Information Technology Act 2000) which even after 20 years of its existence, is yet to be uniformly understood.

The reason why it is difficult for advocates and judges to quickly grasp the intricacies of Section 65B is that they keep looking at the section with a wrong perspective of “Secondary Electronic Evidence” and compare it with the secondary documentary evidence discussed in sections immediately before and after Sections 65A and 65B.

In order to understand Section 65A and 65B, we need to close our eyes to sections  62,63,64, 65  and  66 of Indian Evidence Act. Instead we need to keep in our mind, Sections 3, 17, 22A. Additionally we need to understand the way Computers represent data and data storage which we call as “Evidence” and try to extract in a manner which human beings can understand.

These sections regarding admissibility of electronic evidence came into the statute on 17th October 2000. It was used in 2004 in the AMM Court Egmore resulting in the historic conviction of Suhas Katti, which was the first case in which conviction was obtained under ITA 2000. However in many other cases Section 65B was referred to but was never seriously taken note of either by the Court or the advocates. In the Afzal Guru case in 2005, Supreme Court ignored the need for mandatory requirement of Section 65B certificate and it became a precedence until in 2014, in the PV Anvar Vs P K Basheer, the Supreme Court (3 member bench) categorically expressed that Section 65B Certificate was mandatory for admissibility of Electronic evidence. This judgement also distinguished between “Admissibility” and “Genuinity” and stated that at the Admissibility stage, Section 65B is mandatory. However, the genuinity of an admitted evidence could be questioned subsequently during the trial.

In 2018, while deciding on an SLP the Shafhi Mohammed Vs State of Himachal Pradesh, a two member bench of the Supreme Court over ruled the earlier 3 member judgement and stated that

a) Where the device in which the original electronic document is present is in the custody of the person presenting the evidence, Section 65B certificate is required

b) Where the device in which the original electronic document is present is not in the custody of the person presenting the evidence, Section 65B certificate is not required.

Shafhi Mohammad Judgement is Totally Illogical

This decision was completely illogical since in the case where the device holding the  electronic document is present, the presenter can as well bring it directly as an “Evidence Object” and let the Court appreciate the individual evidence contained there in in any manner it deems fit with or without certificate.

On the other hand, if a person claims that the device in which the electronic evidence is present (or was present and might have been deleted now) , is not in his posession, then he need not produce any Section 65B certificate and simply present a print out (or a CD etc) and claim that it has to be admitted as evidence.

As a result accepting this argument is a direct invitation for admitting manipulated electronic evidence in the hearing.

In fact the need for Section 65B Certificate is greater when the device containing the electronic document cannot be brought directly into the Court.

Primary Vs Secondary argument

In the case of an electronic document, it is better to avoid a distinction of “Primary” and “Secondary” documents and not look for sections in the Indian Evidence Act applicable for “Primary Electronic Evidence” and “Secondary Electronic Evidence”.

If we look at Section 17 of IEA (Indian Evidence Act), it states:

An admission is a statement, ¹[oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

Note that this section refers to a statement in three forms namely Oral, Documentary and Contained in Electronic Form.

The legislative intent in this section is to consider an “Electronic Document” as neither “Oral” nor “Documentary” but as a third category of statement different from the other two.

Section 22A and Section 59 speak of “Oral Evidence as to the contents of an Electronic document”.

Section 22A states that

Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.]

Section 59 states that

All facts, except the ¹[contents of documents or electronic records], may be proved by oral evidence.

These two sections address the elimination of whether an electronic document can be proved by oral evidence or not and clearly states it cannot be proved by oral evidence.

Then IEA discusses under Sections 61,62,63,64 65 and thereafter in 66, different aspects of documentry evidence discussing how proof of contents of documents are to be produced.

Section 61 introduces the concept of Primary and Secondary Evidence. Section 62 refers to “Primary Documents” being presented in the Court. and Section 63 refers to what is a secondary document. Sections 64 and 65 indicate instances when Secondary evidence may be used instead of the Primary evidence.

After thus exhausting the discussion on Oral and Documentary evidence, IEA addresses Electronic Evidence which is the third category of evidence referred to in Section 22A. Section 65A states clearly that this is a “Special Provision” and goes on to state that

The contents of electronic records may be proved in accordance with the provisions of section 65B.

After thus introducing the special nature of the Section 65B, the Act goes on to explain how “Admissibility” of electronic evidence is provided.

We must note that in respect of electronic documents, what is presented when a hard disk or a CD is produced is not the “Primary Document” but a container of electronic documents of which a part is the evidence document. Also, the secondary documents indicated  in Section 63 refer to copies made by mechanical process, copies made by comparison with the original etc. These donot apply to the Electronic Documents.

Hence what is applicable to electronic documents and how it may be produced for admissibility is entirely covered only under Section 65B and nothing else.

If we look at Section 65B, it contains 5 sub clauses of which the very first sub clause “Section 65B(1) sets the stage for the other 4 sub clauses.

Section 65B(1) clearly starts with the statement “Notwithstanding anything contained in this Act” and hence once again confirms that the earlier sections 62 to 65 are not to be brought in in the interpretation of this section.

Section 65(B) also indicates that the electronic evidence can be produced for admissibility in two forms, either as a Print form or as a copy in a media.. Both these forms of presentation of information are referred to as “Computer Output” for further sub sections.

Section 65B(1) then states that such a Computer Output shall be deemed to be also a document and shall be admissible as evidence without further proof or production of the original, if conditions mentioned further are satisfied.

Section 65B(2) then continues and states that the conditions referred to in sub section (1) in respect of the computer output shall be ….

Note the use of the words “In respect of the computer output” in Section 65B(2). This confirms that the conditions discussed under subsections (a),(b),(c) and (d) of 65B(2) refer to the “Computer output” which is the print out or the soft copy of the evidence.

Some experts are unable to appreciate that these conditions of Section 65B(2) donot refer to the so called “Original” but to the Computer Output which is also a document. These sub clauses (a), (b) (c) and (d) and all these 4 conditions should be satisfied and all of them refer to the generation of the “Computer Output” and not the “original”.

Sub section (3) is to confirm that the provisions of Section 65B(2) will stand even when the production of the computer output is not done by a single computer but by a network of computers.

Sub section (4) lists the contents of the Certificate to be issued. It essentially expects that the electronic document which is the subject evidence is identified, the manner of its generation explained along with the devices used. The Certificate has to be signed by the person who produced the computer output. The word “responsible official position” is with reference to a device belonging to a company and it should be considered as refering to the sole owner of a computer if he is an individual.

Section 65B(4) states that the Certificate is adequate if it is stated as “To the best of the knowledge and belief” of the person signing. This limitation is not a dilution of the certificate but an acknowledgement that “What a person can certify as having seen” has certain uncertainties that are inherent to the technology and stating anything as “An absolute Truth” is not feasible. The inclusion of this limitation shows that the drafting has been done in a practically acceptable manner and not just for the theoretical satisfaction of  lawyers who want to attack the evidence on one ground or the other.

Subsection 65B(5) adds certain contingent events that may arise due to the technical reasons such as use of an input from a computer or other automated devices (Perhaps it would even cover input through AI algorithms), information that may incidentally become available etc.

Overall, Section 65B has been very intelligently constructed and there is a meaning to every subsection used in the Section. This has been well recognized in the P V Anvar Vs P K Basheer judgement which came to the right conclusion that the certificate is mandatory.

Why Certification has to be mandatory

There is another technical reason why a Court cannot accept any electronic document as evidence without a human being taking responsibility to confirm even if the so called original is in the hands of a judge.

Understanding this requires a journey into the technical world of how data is stored in a computing device and how it is interpreted.

We know that all computer documents are recorded and stored in the form of a sequence of Zeros and Ones.. These Zeros and Ones reside in side the media such as the hard disk or CD either in the form of “Charge” or “No Charge” or “Pits” and “Lands” (Pits and lands refer to the way data is represented in a CD) etc. If in a portion of the hard disk there is charge, we call it as a representation as “One”. If not we call it as “Zero”. A sequence of 8 such zones constitute a byte and several bytes in a sequence form a meaningful letter or number. Whether a sequence is a number or a letter has to be determined in the context.

The “Evidence” therefore in its original form is in the form of “Charge” or “No Charge” or “Pits” and “Lands”. No human being can see a hard disk or a CD and read the data by looking at the platters or the CD surface.

The “Original Evidence” is therefore always in the form of humanly unreadable data elements. It can only be made “readable” by a human when the data is read by another device such as a hard drive  or CD drive connected to a computer which picks up the data and processes it through a software application which itself rides on a hardware. Then the interpretation based on the configuration of the computer appears on the screen as readable text.

Similar processing has to be done to the sequence of binary data  to render them as a sound through the speakers or image or video.

Hence in rendering any binary sequence into a human experienceable form of text, audio or video there are many software and hardware computer elements which are used. If any of these function in an inconsistent manner the binary sequence may show up differently. So the same data seen by different persons in different computers, different operating systems, different applications may appear differently.

What Section 65B does is that it designates a person who is reliable to the Court as a witness to observe the binary in a standard device and let the Court know what he saw. In order to ensure that any different observations are reconciled, the certifier who provides the certificate will record the process and the devices used so that any other person using the same type of devices would come to a similar conclusion. If he has used some strange methods and rendered the evidence, then the Court can question him why he used a non standard method and come to a conclusion whether the method used for rendering the evidence was correct or not. For this purpose the Court may use a Section 79A accredited digital evidence examiner or let the other party to counter with another expert.

Even when the Court has on hand what people normally refer to as the “Original Evidence”, what the Judge has is the CD or the hard disk or say a pen drive. If he looks at it from outside, no evidence is visible. If the Judge wants to view the document than he has to use a computer, with the right software and hardware an view it. What he views would be conditional to what devices he uses and what configuration he uses. If he has a black and white monitor and views a colour picture, he may not see what he should see. If he views a Microsoft Word document in a PDF viewer or even a Note pad, he would not see any document. If he opens a .mp4 file in a audio software, he will not see any picture. If therefore he has used certain method to view the document, then the judge himself becomes  a self certifying Section 65B observer.

Since it is not proper for the Judge to be a witness himself, even in the case of the original electronic document container being in his hands, the Judge should rely on a trusted third party to provide the Section 65B evidence and not view and record the electronic evidence himself.

This delicate issue was recognized by the magistrate who was adjudging the Trisha Defamation case in the Chennai Egmore AMM court some time in 2004. No other court till date has recognized this aspect.

Looking at all the points made above, Section 65B has been well drafted and mandatory certification is unavoidable.

I therefore urge advocates and experts who are trying to support the faulty Shafhi Mohammad judgement to realize that they are not correct in their view point and should not mislead the bench which is hearing the reference in the case of Arjun Panditrao Khotkar V. Kailash Kushanrao Gorantyal.

I wish any of the readers of this article forward a copy of this article to the honourable bench  of the Supreme Court which is now hearing/or has heard the reference related arguments presented by otherwise eminent advocates.

Naavi

When we order an expensive device like a Mobile or laptop online and end up receiving a package containing stones as the above unfortunate gentleman is reported to have received, one wonders how to recover the loss.

The E Commerce platform may be reluctant to take the blame as this could be a fraud committed by a courier boy who may not be traceable at all. There may also be cases where because some fraudulent buyers have made false claims of such nature, the E Commerce platform or the merchant may not take the blame and accuse the customer himself that he is not telling the truth.

There are also issues of fake products being delivered or products of a different specifications and lesser value being delivered. In some of these cases the E Commerce platform may accept returns but in some cases they may not.

The Consumer in such cases need to initiate other actions to ensue that his grievance is resolved.

In Indian law, every Intermediary such as the E Commerce platform need to disclose a “Grievance Redressal Process” and the name and contact of the Grievance redressal officer for the website. Often most websites donot have such contacts disclosed on the website or the App.

Most service providers display a Terms of Contract which is accepted as a “Click Wrap Contract” which is not recognized under Information Technology Act and renders the contract as an “Implied Standard Form Contract” which can be disputed in a Court.

Further the Terms are under the custody of only one of the parties to the contract namely the platform and the Consumer does not have any control on changes that may be made to the terms. (Similar issues are also faced in respect of consents given on the basis of the version of a privacy policy as present on a website on the date of transaction”

As a result of the above, pursuing the legal case in a Court of law to claim damages for the lost money would be almost impossible even if the jurisdiction is a local Court. Amazon and Snapdeal have a Court jurisdiction in Delhi while Flipkart has a court jurisdiction in Bangalore which itself makes it expensive and impossible for buyers from any other place to take legal action.

In such cases, we need the following.

1. A Dispute resolution Mechanism which is easy to use and not very expensive.
2. Evidence about the fact that the package was not containing the product

Naavi suggests that we should make it mandatory for such intermediaries to ensure that the Courts in the place where purchase is made must have the jurisdiction to resolve the disputes. In one of the cases related to adjudication in Chennai, Punjab National Bank had argued that the customer has to file the case in Delhi instead of Chennai since the head quarters of the Bank was in Delhi. At that time a complaint had been made to RBI that Bank’s license should be cancelled outside Delhi, if they insist on this jurisdiction and then they agreed to proceed with the case.

In order to render the jurisdiction in a physical location irrelevant, the disputes should be resolved with the use of “Online Dispute Resolution”. With the increased use of Video conferencing even in Court proceedings, it should now be possible for a system like what has been recommended under www.odrglobal.in could be used for the purpose of online dispute resolution. This would sort out the problem of court jurisdiction to a large extent.

Additionally Naavi has activated a service under CEAC Drop Box (Refer www.ceac.in) and a new service called CEAC-EDB-Video Service to address the requirements of Evidence Collectio.

The CEAC-EDB service can be used to capture the Terms of Service as well as the Privacy Policy of a Website as also the product specifications offered by the seller for sale.

Where the unboxing of the expensive item purchased has to be evidenced, an advance appointment has to be fixed with CEAC and a registrar will then make a Video observation of the unboxing and record it in his computer with a CEAC certificate.

Both CEAC-EDB and CEAC-EDB-Video can be claimed with CEAC certification within 30 days of the dropping or at such extended time as agreed upon payment of the necessary fees.

Dropping of static documents will be available free but creation of CEAC-EDB Videos will be charged. Retrieving the certified copies of both would also require payment of fees.

The fees will be quoted based on the duration of the video and the size of the files.

These twin services would perhaps be able to sort out the evidentiary problems that may be faced by victims of the E Commerce delivery frauds.

Naavi