Is the Evidence Law in India all set to be overhauled?

By Maithili Parikh, Government Law College, Mumbai.

The Indian Evidence Act was originally passed by the Imperial Legislative Council in 1872 and contains a set of rules and allied issues governing admissibility of evidence in Indian Courts, an area of law of unparalleled importance in advocacy and litigation. The enactment and adoption of this code of law was a path-breaking judicial measure and completely metamorphosed the previous traditional customs of evidence, which were in practice. Just like all other branches of law, the Law of Evidence in India needs to constantly evolve with the rapidly growing society and its practices. Surprisingly, the Indian Evidence Act, has been amended only once in 2000. However in order to combat the increasing magnitude of cyber crimes, the NDA Government is considering overhauling the current law in order to replace it with a more modern and comprehensive amendment.

In order to examine the growing scope of cyber crimes and efficiently draft the changes that are necessitated, an expert group has been constituted under the Ministry of Home Affairs, headed by Dr. Gulshan Rai, National Cyber Security Coordinator. It proposed the establishment of a National Cyber Crime Coordination Center which would cost a whopping Rs. 500 Crore to the Government but would be linked to NATGRID and CCTNS with branches across States to tackle cyber crime. The report includes a suggestion to initiate specialized wings as advisory bodies with officers who will be able to act better on such cyber crimes.

The Committee primarily expressed its gravest concerns regarding the crimes committed by the ‘dark web’ and has asked security agencies to develop mechanisms that would be equipped to cope with such crimes. Bringing to light the exponential increase in the rate of cyber crime, which was almost 50% from 2013 to 2014, Dr. Gulshan Rai expressed his dismay in the comparatively poor rate of convictions. According to data available with the National Crime Records Bureau, 4,356 cases of cyber crime were reported in 2013 compared with 2,876 in 2012. The NDA Government is proposing to make “cyber crime” distinct in all treaties that it signs with foreign countries, in the form of a separate head and rightly so, which would be useful in coordinating their domestic and international legal efforts and in promoting global cooperation in this sensitive area. This would be particularly useful in building the much needed consensus for issues like child pornography that plague India.

Complementary to other proposed measures, the Government is exploring the possibility of establishing a separate agency for online reporting of cyber crime cases. This is also driven by the fact that, when law enforcement agencies have started accepting online complaints, it would only be logical to include a provision for online submission of evidence. However, in order to substantially impact the statistics of cyber crime convictions and act as a deterrent to such crimes, the Committee has recommended a complete overhaul of the Evidence Act. An amendment in the relevant parts of the Act would also ensure that a situation does not arise wherein the case is registered online but the corresponding evidence, generated online, and cannot be treated as evidence under the penal sections.

Currently Section 65B(2) of the Act provides, that for any electronic evidence to be introduced and permissible in Court, a certification along with a signature of the concerned person, to whom the computer belongs, has to be submitted. The certification is meant to build a prima facie validity to the evidence and to fix accountability to the person producing the evidence. It is to be understood that the certification only provides verification of the conversion of electronic evidence from one form to another form, in which it can be presented to Court. Section 65B provides assurance to the Court that this process of conversion has been undertaken with correct procedural formalities. Moreover, it does not validate the truthfulness of the evidence, only conveys to the Court, what exists in cyberspace. However the most blaring inadequacy of this provision of law is that it does not take into account the fact that the computer itself could have been tampered with.

Further, this provision fails to sustain the leaps and bounds that have been made by technology, as it cannot be applied to mobile-based web applications such as WhatsApp and other popular messenger services frequently used. In this context, it would be absolutely vital to note cyber expert Pavan Duggal’s comment on the possibility of an amendment. Mr. Duggal elucidated that when in 2000 the Evidence Act was amended in the “era of personal computers”, however now it has to be revolutionized to be in step with the times of “mobile phones and cloud computing.”
As technology advances, it appears that men find more devious methods to hoodwink the law, and to ensure the sanctity of trials and efficiency in convictions of the guilty, an urgent amendment of the Indian Evidence Act needs to be undertaken. The introduction of electronic evidence has brought about several changes in the mechanism of evidence as dynamic the law is, it must evolve to cope with the changes. The Expert Group has submitted its report to Rajnath Singh, Home Minister, who will evaluate the proposed changes in law and otherwise. However before any amendments are undertaken, it would only be hopeful that some clarification is provided regarding the ambiguous provisions of Section 65B and the certification required under the section.