By Rajyavardhan Singh

Background

On August 22, 2024, the Supreme Court took up the question of whether the operational applicability of the ruling in Anvar P.V. v. P.K. Basheer (“Anvar”) should be prospective or retrospective. In Anvar, the Court had effectively overruled State (N.C.T.) of Delhi v. Navjot Sandhu (“Navjot Sandhu”), and held that in order to make electronic records admissible by way of secondary evidence, it must be done by mandatorily adducing the required certification as prescribed under Section 65B(4) of the Indian Evidence Act, 1872 (“Evidence Act”).

In this article, I examine the jurisprudence following Anvar and how the Courts have treated the operational applicability of the ruling, arguing that a retrospective application is the only position good in law. I further submit a more radical vision, suggesting a return to the position in Navjot Sandhu, which recognised that Section 65-B must not be treated as the only method for accepting electronic evidence. 

Anwar and its ‘Aftermath’

The reason I use the word “aftermath” is precisely because of the negative connotation it carries. Following the decision in Anvar (September 2014), the jurisprudence on the proviso has been ambiguous and inconsistent—to say the absolute least. The very first conflict arose in Kundan Singh v. State (“Kundan”), where it was held that the court does not require a certificate under Section 65B to be filed, implicitly indicating a prospective application of Anvar.

Similarly, in Sonu @ Amar v. State of Haryana (“Sonu”), a division bench of the Supreme Court, while aware of their limitations compared to the three-judge bench in Anwar, did not apply the Anwar ruling prospectively but suggested a need for the same without providing a definitive conclusion. 

Notably, in 2018, another division bench of the Supreme Court in Shafhi Mohammad v. State of Himachal Pradesh (“Shafhi Mohd.”), while “clarifying” the position of Section 65B, went against Anwar yet again. The court noted that Sections 65A and 65B are not exclusively exhaustive on the subject of electronic evidence and that the stringency of a mandatory requirement for the original certificate can be relaxed in the interest of justice, given that the provisos are merely procedural in nature. 

Khotkar’s Settlement and the Faulty Reliance in Sonu

Finally, in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (“Khotkar”), a three-judge bench of the Supreme Court in 2020 upheld the Anvar ruling and settled this “aftermath”, stating that a certificate complying with Section 65B is a mandatory requirement indeed, else the electronic evidence shall be rendered inadmissible in the eyes of the court. Through this ruling in Khotkar, the court, although not explicitly, but implicitly made the ruling in Anvar retrospective by reinforcing its principles without temporal limitations and by stating that inadmissibility objections can be raised at any stage. Thus, Anvar continued to be the correct position of law (still is, more on that later), and the observations in Shafhi Mohd. and others were declared per incuriam.

However, in 2023, the decision in Sundar @ Sundarrajan v. State (“Sundar”) acted as nothing less than a spoilsport to a well-settled position of law. The court in Sundar, while relying on Sonu, dismissed objections concerning the absence of certificates in accordance with Section 65B. The Court reasoned that such objections couldn’t be raised at the appellate stage if not raised during the trial. However, in Khotkar, it was clearly stated in the judgement that the absence of a 65B certificate makes electronic evidence inadmissible. Moreover, Khotkar also allowed the objections to be raised at any time. As if this was not enough, to add another layer to the faulty interpretation in Sundar, relying on the dicta in Sonu yet again (which, let me remind you, was overruled in Khotkar), the court validated a prospective application of Anvar, which was mere suggestive opinion and not a definitive conclusion.

‘Anwar in Retrospect’

In this light, of what has been discussed so far, I submit that a retrospective application of Anwar remains the only position good in law. Because more than the provision being a procedural quibble, the issue surrounding the same is also a matter of interpretational consistency in courts, as Article 141 of the Constitution makes it necessary for the Supreme Court’s interpretation to be binding on all courts of law. Khotkar, which upheld Anwar, established a clear procedure for the admissibility of electronic evidence. Further, Khotkar’s implicit endorsement of retroactive application by allowing objections to inadmissibility at any stage only reinforces this position. Even in terms of the hierarchy of judgments, Khotkar, as a larger bench decision, takes precedence over conflicting division bench rulings like Sonu. Furthermore, evidentiary rules, particularly those which consider admissibility, typically apply only in retrospect unless having explicitly been stated otherwise.

However, the perils that a retrospective application of law brings forth are quite obvious. It will lead to its application in all pending litigations, as well as the possibility that someone might wish to appeal a prior judgement, which would only overburden the ever-overburdened courts. More importantly, what is rather less discussed in the discourse surrounding 65B is that a retrospective application of the same, would hamper cases in which the evidence was never collected in the specific method as mandated in Anwar. This would render evidence that was once entirely valid now defective. Therefore, even though applying Anwar retrospectively stands as the only position good in law, implementing this dicta is not feasible for all practical purposes. Moreover, what this conundrum also highlights is the inherent lack of clarity regarding the law in question, given the number of conflicting judicial opinions on the same. 

Additionally, the very fact that Section 5 of the U.K. Civil Evidence Act 1968, which was the primary source of inspiration while drafting Section 65B, has since been repealed in favour of a more relaxed approach to the admissibility of electronic evidence provides solid grounds to question the effectiveness of the provision in question.

Revisiting Navjot Sandhu

A brief revisit to Navjot Sandhu can prove to be rather insightful as it recognized how Section 65B must not be treated as an exhaustive code on the admissibility of electronic evidence in court. Pertinent to note, the Court held that there can be no bar in adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 and 65. To this end, upon a perusal of Sections 63 and 65, it is understood that while Section 63 defines what secondary evidence is, including certified copies, copies made from the original by mechanical processes, counterparts of documents, and oral accounts of the contents of a document, this broad definition allows for various forms of electronic records to be admissible as secondary evidence. Section 65, on the other hand, lays out the conditions that must be satisfied for that evidence to be admissible in court. Therefore, electronic evidence under Sections 63 and 65 can be navigated into being admitted as secondary evidence as batted for in Navjot Sandhu provided it satisfies the conditions laid out in these sections. 

This way, if the original electronic record is inaccessible, a printout or a digital copy could be admitted under Section 65, provided the circumstances justify it. This, in turn, would not only relax the stringent conditions necessary under Section 65B, but would also truly be in the interest of justice. For what is truly important should be the reliability and accuracy of the evidence rather than the form in which it is submitted.

About the author:

Rajyavardhan Singh is a 2nd-year student at Rajiv Gandhi National University of Law Punjab.