Critical analysis of the law on admissibility of electronic evidence in India

The law of electronic evidence has been an evolving methodology in India. Section 65-B of the Indian Evidence Act 1872 governs the admissibility of electronic records. This provision is going to be replaced by Section 63 of the Bharatiya Sakshya Adhiniyam 2023. The introduction of Section 65-B in the Indian Evidence Act changed the outlook on how electronic records were admitted as evidence. Section 65-B mandates the production of a certificate to authenticate the electronic record for it to be admissible as evidence in a trial. What followed, was a series of litigations where the Supreme Court of India took divergent views on the mandatory nature of the certification requirement. Indian courts have, on various occasions expressed their view to bring in a simple procedure to adduce electronic evidence, as key pieces of evidence should not be disregarded on grounds of procedural inaccuracies. This paper aims to show how the position of the law in the United Kingdom has changed with the everchanging developments in technology and highlights the flexibility provided by the English Courts by disregarding mere procedural anomalies in admitting electronic records into evidence. This paper also provides a critical analysis on the current scheme of the law which is focused on two main aspects: (1) The admissibility of electronic records as evidence and (2) the authenticity of such records while also analyzing the relevant provisions of the Bharatiya Sakshya Adhiniyam 2023. The authors have analysed the Supreme Court’s judgement in the case Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, which currently is the case that has settled the law of admissibility of electronic evidence in India. Through the lens of various case laws, this paper also aims to highlight the need for a change in the legislation to take effect in India.