PV Anvar v. PK Basheer: A Critique

By: Natansh Jain


Introduction

The advent of Information and Communication Technology (ICT) has had a huge impact on the manner in which people transact and communicate business nowadays. There has been an enormous increase in the transactions which are electronic in nature. Such an impact is not limited to business transactions only but it extends to the law of evidence as well. One of the inevitable outcomes has been the cognisance of electronic evidence by the courts in India. Sections 65A and 65B of The Indian Evidence Act (hereinafter ‘Evidence Act’) were introduced by the amendment in 2000. The objective of this amendment was to lay down the standards for admissibility and authentication of electronic evidence in the courts.

However, this endeavour for standardisation has not achieved much success. The primary reason behind this has been the divergence in the application of the law in courts across India. One such significant divergence is in the admissibility of electronic evidence under section 65B of the Evidence Act. In the case of P.V. Anvar v. PK Basheer (hereinafter ‘Anvar’), the Supreme Court (hereinafter ‘SC’) has restricted the possible way of authentication only to ‘certificates’ under section 65B(4).[1] This paper argues that in doing so, the SC has misstated the position of law. It is submitted that ‘the certification is not the only possible way of authentication of electronic evidence as envisaged under section 65B of the Evidence Act’.

Judicial Interpretation of Section 65B of the Evidence Act

The question of admissibility of electronic evidence was first raised in the case of State v. Mohd. Afzal (Hereinafter ‘Afzal’). The Delhi High Court held that “compliance with sub-sections (1) and (2) is enough to make and admissible and prove electronic evidence”.[2]

Further, in the case of State (NCT of Delhi) v. Navjot Sandhu (Hereinafter ‘Afsan Guru’), the SC held that “even if the requirements under section 65B(4) were not satisfied, evidence could be produced under sections 63 and 65 of the Evidence Act”.[3] This judgment resulted in a significant relaxation of standards for admissibility of electronic evidence. At the same time, various courts have also rejected both Afzal and Afsan Guru. Many courts chose to continue to press upon submission of certificate for authentication.[4]

On an overall analysis of the above-mentioned cases, it follows that the admission of electronic evidence has been based on judicial discretion. However, the SC made an effort to settle all these controversies in the case of Anvar. With the intention of bringing uniformity in practice, the SC interpreted section 65B as mandating one particular method of authentication, i.e., submission of the certificate as a compulsory pre-condition for admissibility of electronic evidence.[5]

The Case of Anvar has Misstated the Law under Section 65B

The SC rejected the ruling in Afsan Guru that the sections 61-65 of the Evidence Act can be used when the conditions mentioned under section 65B were not met. The Court applied the principle of generalia specialibus non derogant.[6] Therefore, the Court held that while sections 61-65 deal with the general documentary evidence (hence, the general law), section 65B refers to one special component- electronic records (hence, the special law). Therefore, it was held that electronic evidence can only be dealt with under section 65B.[7]

However, the conclusion which is an issue in this paper relates to the SC’s interpretation of section 65B(4). Section 65B(2) lays down four conditions for admission of electronic evidence.[8] The SC paraphrased section 65B(4) to add one more condition which shall also be satisfied for the authentication of electronic evidence. The Court stated that as per section 65B(4), a certificate ‘must’ be produced.[9] In other words, it means that in the absence of a certificate, the electronic evidence will be inadmissible.

It is submitted that it is not a dictum supported by the plain reading of the provision. On the contrary, the language of section 65B(4) merely states that a duly signed certificate which complies with any of the conditions mentioned in sub-clauses (a),(b) or (c), ‘shall be evidence’ of that content.[10] It is nowhere mentioned that a certificate ‘shall be submitted’ for the admission of any electronic evidence or that ‘all’ other methods of authentication are barred. In the absence of any such restriction, the dictum laid down by the SC is incorrect.

There are also policy decisions to disagree with this sort of interpretation of section 65B. It is that there is a need to establish the genuineness of electronic evidence under section 65B. However, before leaping into this argument, there is a preliminary concern that needs to be addressed. It is that the SC in Anvar opines that section 65B does not deal with the genuineness of the electronic evidence.[11]

According to the SC, “only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A – opinion of examiner of electronic evidence.”[12]

It is evident from the above-quoted paragraph that SC believes that the issue of genuineness cannot be dealt with at the stage of admissibility itself.[13] The SC is of the opinion that ‘genuineness’ is a question that arises after the admission of evidence. This seems to be incorrect for two reasons.[14] First, it is neither consistent with the plain language of section 65B nor with the policy behind it.[15] SC has itself acknowledged in the case of Anvar that the purpose behind the section is to ensure ‘authenticity and source’ of the evidence.[16] This is undoubtedly a question related to the genuineness of the evidence.

Secondly, the dictum by the SC that genuineness “go to the weight of evidence and not to admissibility” is not proper.[17] If one analyses the Evidence Act, it is evident that it does not separate the process of splitting evidence into stages of admissibility, weight and relevance. The only indication to the stages of admissibility and relevance is under section 136. It states that “if the judge thinks a fact is relevant, he ‘shall’ admit it.[18] Therefore, it seems that the Act does not recognise admissibility and relevance as different evidentiary stages. Rather it conflates both of them.[19]

However, in spite of the silence of the Evidence Act on what needs to be considered at the stage of admissibility, there is sufficient jurisprudence of SC on the matter. The Apex Court has held that “reliability of the evidence must be established before it is admitted”.[20] It means that even if the information is relevant, it would not be admitted if not reliable.

It is submitted that this ‘genuineness’ is exactly what the four stipulations made under section 65B(2), seek to achieve. For example, according to section 65B(2), a person seeking to introduce computer output as evidence must ensure “that throughout the material part of the said period, the computer was operating properly.[21] If the computer in issue was not working properly during the specific time, it is highly likely that the evidence was not generated properly.

Similarly, “if the information contained in the computer output was not of the kind that was regularly fed into the computer in the ordinary course of the said activities[22], it would raise the question of its genuineness. Consequently, the objective of section 65B(2) is to ensure the genuineness of the electronic evidence. Thus, in contradiction to the explanation provided in the Anvar case, genuineness is a concern under section 65B.

It is submitted that section 22A is one of the avenues to establish this genuineness of electronic evidence. Section 22A of the Evidence Act explicitly bars the use of oral evidence for admission as to the contents of the electronic evidence. However, it makes an important point of distinction. It is that though oral evidence cannot be used to prove the contents of the electronic evidence, it can be used if there is a question as to the ‘genuineness’ of the electronic record.[23]

There seems to be no reason as to why the four conditions stipulated under section 65B(2) cannot be fulfilled by oral evidence as per section 22A of the Evidence Act. Consequently, it should be allowed to adduce oral evidence to meet the conditions under section 65B(2) and the certificate is not the only possible method of authentication envisaged under section 65B.[24]

Conclusion

Despite the good intention of bringing uniformity in the practice across courts, the SC has grossly misstated the position of law in the case of Anvar. The Court has instilled unnecessary rigidity in the application of section 65B. The Parliament of England has done away with the rigidity inadmissibility of electronic evidence in both criminal and civil proceeding.[25] It is for the Indian Parliament to follow suit and rationalize the conditions to be met for admissibility of electronic evidence. Till then, the Indian Law of Evidence on the admissibility of electronic evidence will continue to remain stringent in the light of Anvar case.

[1] Anvar PV v PK Basheer [2014] 10 SCC 473 .

[2] State v Mohd. Afzal, [2003] 107 DLT 385.

[3] State (NCT of Delhi) v Navjot Sandhu, [2005] 11 SCC 600 .

[4] Aniruddha Bahal v CBI [2014] 210 DLT 292 , Pradeep Kumar v State of Bihar [2014] SCC OnLine Pat 483.

[5] Anvar PV v PK Basheer [2014] 10 SCC 473 .

[6] It means that a special law, or a law enacted to cover specific situations, shall always prevail over a more generally applicable law.

[7] Anvar PV v PK Basheer [2014] 10 SCC 473 .

[8]), The Indian Evidence Act,  1872 Section 65B(2

[9] Anvar PV v PK Basheer, [2014] 10 SCC 473 .

[10] The Indian Evidence Act 1872, s 65B(4)

[11] Anvar PV v PK Basheer [2014] 10 SCC 473 .

[12] Anvar PV v PK Basheer [2014] 10 SCC 473 .

[13] Ashwini Vaidalingam, “Authenticating Electronic Evidence; Section 65B, Indian Evidence Act, 1872, 8(43)” [2015] NUJS Law Review, 15 .

[14] Kumar Askand Pandey, “Appreciation of Electronic Evidence: A Critique of Judicial Approach, 6(24)”  [2014] RMNLU Law Review, 35 .

[15] Id.

[16] Anvar PV v PK Basheer, [2014] 10 SCC 473 .

[17] Pandey, supra note 15, at 36.

[18]  The Indian Evidence Act 1872, s 136.

[19] Vaidalingam, supra note 14, at 16.

[20] RM Malkani v State of Maharashtra [1973] 1 SCC 471 , Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra [1976] 2 SCC 17 , Tukaram S Dighole v Manikrao Shivaji Kokate [2010] 4 SCC 329 .

[21]) The Indian Evidence Act 1872, s 65B(2)(c).

[22], The Indian Evidence Act 1872, s 65B(2)(b).

[23], The Indian Evidence Act 1872, s 22A.

[24] Vaidalingam, supra note 14, at 16.

[25] Pandey, supra note 15, at 38.


(Natansh is currently a student at National Law School of India University, Bangalore)