1. Evidentiary Weight: The Landscape Of Electronic Records.
The Indian Evidence Act, of 1872 (IEA), serves as the foundation for the admissibility of evidence in Indian courts. There has been a significant shift through Section 65B (1) of the Indian Evidence Act which recognises electronic records as evidence, this paves the way for operating digital information into the legal realm. Although, there are certain conditions imposed for such electronic records to be admissible in court by Section 65B (2) of IEA, this states: “Any information contained in an electronic shall be deemed to be a document, if, it satisfies the conditions mentioned under Section 65B (2), i.e. accompanied by a ‘Certificate/affidavit’ verifying the authenticity of the documents produced, without any further proof or pro- duction of the original”.
There is a mismatch between the pre-digital framework of the Indian Evidence Act and the complex structure of the evolving electronic evidence. There was a report published by the Law Commission of India in 2020. The report acknowledged this gap and suggested amendments to enhance the legal framework for electronic evidence. The amendments that were proposed focused on clarifying the concept of “best evidence” in the digital context, it focused on establishing a view of authenticity when it comes to electronic records generated through secured systems.
The effectiveness of the amendments relies heavily on how it’s implemented. It needs a swift implementation. Vidhi Centre for Legal Policy conducted a study in 2023, which highlighted the slow pace of the legislative reforms in India. This delay has a domino effect as it further creates a state of uncertainty for the courts when electronic evidence managed by EDMS is being handled. There needs to be clear, unambiguous and updated legal guidelines, in case of its absence the current situation would not change.
2. Digital Forensics: Safeguarding The Chain Of Custody
The electronic records need to have an integral foundation, which is important for their evidentiary value. EDMS implementation calls for a thorough digital forensic procedure which would in turn ensure a trial that demonstrates that there has been no temperance with the evidence (Chain of custody).
Building A Chain Of Custody:
- Audit Trails: Comprehensive audit trails should be maintained by EDMS such that it logs every user activity, including modification, creation of documents, and access attempts. This could lead to avoidance of tampering with any case documents because any changes made to a record would be tracked. An audit Trail documents any changes made in the physical record and is like a digital paper trail.
- Data security: Since EDMS has a digital foundation, this can give rise to the concern of data leaks and cyber security issues. To avoid this there should be data security measures like access, control, encryption, monitoring, access, data protection systems etc. Talking about access control, it limits access to the documents in the sense that it controls and dictates who can access particular documents and what actions we can perform with the documents. For example, if they can edit the document or we can just view it. Encryption, on the other hand, transforms the data into an unreadable text, this makes it uninterpretable unless a description key is used.
- Foreign Readiness: To make electronic evidence, transition, smooth and not hindering. There should be investment done by the courts in proper training given to anybody who would in turn be handling the electronic evidence. The training should be able to equip them with the technical know-how and skills for the collection of digital evidence, analysis and preservation. This can be compared to the physical evidence with the police, just as the police receive training for handling such physical evidence at crime scenes. Similarly, court personnel should also be receiving training and should be well-equipped to handle digital evidence effectively.
These measures are very important and the absence of these measures can have some serious consequences as exemplified in the case of Madras High Court (CB-CID, Chennai Vs. P. Kasinathan), in this case, the digital evidence submitted by the prosecution was dejected by the court due to lack of audit trails, proper documentation, this gave rise to concern regarding data integrity. This case plays a critical role in highlighting the role of digital databases in ensuring that the electronic evidence managed by EDMS is admissible.
3. Access And Equity:
Transitioning to EDMS raises questions about accessibility and equity when it comes to the Indian Judicial System. Digital literacy has a huge role to play in the implementation of EDMS, the absence of which puts some stakeholders at a disadvantage:- Lawyers And Litigants: the digital era is not too old. In today’s time. Some lawyers are not well equipped with digital knowledge and such lawyers might face challenges in the usage of EDMS interface, which in turn affects the representation of their clients. Similarly, there are litigants from the rural areas, who don’t have the technical know-how and have very limited access to technology, which would cause them to struggle to access the case documents electronically. This gave rise to a digital divide that could negate the “equal access to justice” principle.
- Public Access To Justice: In a country like India where there is a huge disparity within the population, there is still a huge chunk of people without basic access to the internet and computers. If the system is fully digitized, there would be barriers created for such individuals who can’t access the internet, this would hinder their ability and opportunity to stay in form, conduct research and track proceedings. This can in turn affect the image of the judiciary.
Conclusion:
India’s legal framework for online content moderation is anchored by several key legislations. The Information Technology Act, 2000, particularly its Section 69A, empowers the government to block online content in the interest of sovereignty, security, and public order. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, mandates social media intermediaries to follow due diligence and establish grievance redressal mechanisms. Additionally, the Indian Penal Code (IPC) addresses issues like defamation, obscenity, and incitement, while the Protection of Children from Sexual Offences (POCSO) Act, 2012, tackles child exploitation online. These frameworks collectively aim to balance freedom of expression with the need to protect users from harmful content.
