Electronic evidence on trial: Courts must clarify

In this digital communication era, liberty, rights and conflicting claims are largely dependent on the authenticity of electronic records relied on by parties to disputes.

- Sidharth Luthra Bharti Yadav

Whether it be election disputes, criminal cases, or commercial cases, at every stage, the shift to electronic records renders traditional documentary evidence principles obsolete.

Since the Information Technology law was brought (albeit a decade late), there have been various attempts to define the contours for showing the authenticity of electronic records, which remains an ongoing exercise. In response to contemporary challenges, complemented by technological interventions, the Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaced the Indian Evidence Act (IEA) of 1872, attempted to offer a conducive mechanism for electronic evidence. Yet, older disputes continue to be tested under the IEA, keeping the issue alive. ¥

This is not a purely academic debate. Questions about the admissibility of electronic evidence arise in the full spectrum of litigation, whether in a routine property dispute before a district court, a corruption trial involving intercepted phone records, or an election petition hinging on digital proof. Since trial courts and district courts are the first points of entry for most litigants, the lack of clarity on whether an electronic record is primary or secondary, and what certification it requires, has a cascading effect on the course of justice. Each such dispute has the potential to travel up the judicial ladder, multiplying confusion and inconsistency along the way.