Viewers would have observed several News paper reports in the last few days with headlines such as
-“Courts can rely on Electronic Records without Certificate: SC” (Deccan herald), (Free Press Journal)
-“Party Not In Possession Of Device From Which Electronic Document Is Produced Need Not Produce Sec. 65B Certificate: SC …” (Livelaw.in),
-“Supreme Court says certificate not mandatory for making electronic evidence judicially admissible” (Firstpost)
-“SC clears air on electronic records” (Telegraph)
The report originated from a PTI report and has been diligently carried by many publications. There is no doubt that this report has created a perception in certain circles that the Supreme Court has issued a judgement that in effect over rules the three member judgement in the case of P V Anvar Vs P.K Basheer.
The perception however is incorrect. It is false and incorrect to state that Section 65B certificate is no longer required for admissibility of electronic documents.
This order of the Supreme Court in a Special Leave Petition (CRL No 2302 of 2017) signed by a two member bench Adarsh Kumar Goel and Uday Umesh Lalit must be seen in the limited context of the SLP.
A two member SLP order cannot be accepted as an over ruling of a three member judgement as has been explained in our earlier article.
It is amusing to see the Court accepting the argument of the Senior advocate Jayant Bhushan who is stated to have said that section 65B of the Evidence Act was a “procedural provision” intended to “supplement the law” by declaring that any information in an electronic record, “is admissible in any proceedings without further proof of the original”.
We must state that Section 65B is part of the Indian Evidence Act in the main and not in any supplementary rule and hence has the same judicial value as any another section of Indian Evidence Act.
The Court itself quoted
“whether a person who wants to take a recourse of alibi in a criminal trial with the help of boarding pass of a flight, where there was no signature and was just a printout from a computer, can that document be not relied by the court for want of such certificate.”
but went ahead to state
“These are the questions, which we need to deliberate,” the bench said, and added that courts cannot afford to deny acceptance of such documents for want of certificate under section 65B.”
The senior counsel suggested that
” the evidence should be accepted by the court and later sent for verification to technical labs to see if it was tampered or not”.
This argument is fallacious and puts the defence in an untenable position as to justify an electronic evidence that might have been totally fabricated.
One report quotes that the bench of Justices A.K. Goel and U.U. Lalit said
“if this were not permitted, it would be denial of justice to the person who is in possession of authentic evidence/witness….Thus, requirement of a certificate under Section 65B(4) is not always mandatory,”
The order indicates that the honourable judges have not properly appreciated the need for Section 65B certificate in the case of Electronic evidences and the harm that it would create to the system of justice.
According to the report, the Court had considered the views of four senior advocates who had been appointed amicus curie to assist in the interpretation of the provision and the result is a disappointing reflection of the understanding of the requirements of Section 65B by the amicus curie.
Mr. Jayant Bhushan, Ms. Meenakshi Arora, Ms. Ananya Ghosh, Mr. Yashank Adhyaru and Ms. Shirin Khajuria, learned counsel, appearing for Union of India have been quoted in the judgement as having assisted the Court.
The order is a recipe for corruption in judiciary where corrupt advocates can collude with fraudulent litigants and produce false evidence and the corrupt judges admitting the evidence and challenge the defense to prove that the electronic evidence is wrong.
The bench appears to have only tried to facilitate production of false evidence and change the onus of proving that it is in admissible on the defense. This is highly dangerous and bad in law.
The earlier provision where a Section 65B certificate was required introduced an intermediary to assist the Court who could be liable for false evidence if the certificate was “Not in good faith” and the content was fraudulently constructed. Now this thin layer of security has vanished. It appears that the Judges did not have the vision to look beyond the air line boarding ticket and thought that if necessary they can summon an airline official to corroborate the evidence.
But they seem to be unaware that electronic evidence may consist of e-mails and websites and in many cases the evidence could have been removed after they have been certified by a 65B certifier and in such cases the credibility of the Certifier was alone the trusted support for the Court. Now the Court seems to accept the electronic evidence as presented and let the adversary prove that it is wrong.
The Court has forgotten that there is no Section 79A certified Digital Evidence Examiner at present and there will never be sufficient number of such organizations in future to forensically examine the “Genuineness” of the document. The Basheer judgement had clearly segregated the “Admissibility” from the “Genuineness” and had indicated how the two should be handled by the Court. The current order has completely ignored this part of the Basheer judgement and has gone on its own line of thinking which is wrong.
If this rule is honoured, falsification of electronic evidence will be a rule and judicial process can be easily frustrated and production of false evidence and false witnesses will proliferate. Honest persons will be left to fight the false evidence presented by dishonest advocates and accepted as admissible by corrupt judges and incur disproportionate cost of litigation.
It is possible to ignore this order since it cannot over rule the larger bench order. But the misperception created by this order and the ignorant media stating it many times over is likely to mislead many judges in lower courts to believe that this is an operative order.
This order is an open challenge by the two member bench on a larger bench decision and has the effect of disrupting the judicial process.
The media blitz is perhaps orchestrated by some vested interests with an intention to slip in some Electronic documents as evidence in their respective cases where Section 65B evidence is not available and cannot be produced now.
Courts have allowed the earlier presented evidence to be resubmitted with Section 65B certificate but in some cases the evidence may be no longer available for certification.
No doubt some genuine parties would have been affected by this. But if so, such cases are because they did not know the law and ignored the need for Section 65B certificate and submitted their evidence earlier.
If law is sought to be changed because these parties and their advocates were ignorant, we will be opening doors for a large scale fraud in presentation of false and manipulated electronic evidence. It should not be done.
I request the Chief Justice of India to take steps to limit the damage caused by this order.
I got to know about Shafhi Mohammad vs HP on 8th Feb., and was astonished to learn how some of those in senior most judiciary can be so unmindful that their rendition would in effect overrule an exhaustive interpretation of law by a higher bench (read PV Anvar, by three judge bench). The order in Shafhi Mohammad has in fact lowered the sanctity of section 65B(4) from substantive law to that of merely a procedural formality which can be waived by the courts. The judges in PV Anvar had rightly observed that the electronic evidence is more susceptible to alteration, tampering, transposition and excision etc. In view thereof, the safeguards as per 65B(4) were held to be mandatory for the evidence to be admissible. It must be borne in mind that computer technology has advanced to such a level that in some cases the tampering might be done so clandestinely that it would be difficult even for experts to discover the same, if they do not have access to the original. The trial courts in India are not well equipped to deal with such situations. In Shafhi Mohammad vs HP excessive discretion has been given to the trial courts with regard to taking a call on admissibility of electronic document unaccompanied by certificate under sec. 65B(4), which will lead to divergent views being taken by different trial courts under similar circumstances.
Leaving aside the issues involved in this particular case, it is likely to set a dangerous precedent where the rule “only higher bench can overrule a smaller bench” can be undermined and violated by judges who might be overzealous to let their own views hold the field, despite a contrary view held by a superior bench. More than anything else, it will degrade our cherished judicial system.
I wish somebody may take up the matter with the Supreme Court.
Dear Navi sir. .
Thanks for Your correct and great expert statement published on the recent wrongful order on 65b ..but this wrong order has started damaging case in the lower court. one court is taking reference of this recent order/rule for admitting some computer print outs. That one party has falsely alleged that received this from one email. These papers are totally fabricated to just harrase the opp party.
Please suggest us to defend on this urgently.
Now a days small children are fabricating photos and videos etc in their mobile apps to play. If court support this wrong order then people dump fabricated printouts and its copied CD etc in the court to harrase opp parties by damaging valuable time of court
See my latest post.