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  • Debmalya Biswas

Archaic Application of the Hearsay Rule to Electronic Evidence

Introduction

Technology consistently presents unprecedented challenges to our legal system. The law must be sufficiently fluid in this regard. This was eloquently highlighted in Ramasubramanian J.’s concurring opinion in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (hereinafter Arjun v. Kailash), [1] wherein he elaborated upon the need to “relook at Section 65B.” This article is an effort in that direction.


The position of Indian law on hearsay is not conducive to admitting newer forms of evidence, as shall be shown. Towards that end, this article shall firstly examine the position of Indian law on the hearsay concerns arising from electronic evidence, and try to highlight the inherent distrust of technology as the base of this position. In doing so, the requirements imposed on the adducing of electronic evidence shall be explained. Secondly, the piece would cover certain species of electronics that merit an exception to the hearsay principle.


The Rule Against Hearsay

Hearsay refers to any statement made out of court by a person who is not a witness when it is introduced to establish the truth of the matter asserted. It is well-settled that the rule against hearsay is essentially based on the tenet of reliability. Now, Sections 59 and 60 require cross-examination of declarants whenever evidence is being furnished. However, cross-examination is only one of the tests of reliability and not the sole metric. Therefore, the appropriateness of the rule against hearsay ought only to be based on its ability to exclude only inherently unreliable evidence, and not reliable evidence that has merely not been cross-examined.


Hearsay and Electronic Evidence in India

Historically, legal systems have been deeply suspicious of electronic evidence. This stemmed from concerns about electronic devices and records being susceptible to tampering. Across jurisdictions, earlier statutes imposed high burdens on the admissibility of electronic evidence. This was also observed in India, with old verdicts [2] routinely expressing suspicions regarding the worth of e-evidence. [3]


Now, such restrictive statutes have largely been abandoned in foreign jurisdictions, by amendments or liberal judgements. Consequently, foreign jurisdictions are now much more receptive to technological evidence, as described in the presumption of reliability. Regrettably, India continues to be inimical towards such evidence. In this light, the IEA provisions regarding the admissibility of electronic evidence may be examined, in consonance with the binding precedent, i.e., Arjun v. Kailash. [4]


As explained, Indian courts believe that electronic evidence is inherently susceptible to tampering and manipulation. [5] In a way, when a person tampers with electronic records, it leads to a different statement being made. To take a very simplistic example, assume that the timing of transaction of a transaction is recorded as 11:50:25 PM; this amounts to a statement that a particular event occurred at the mentioned time. Now, assume that this record is unduly and anonymously modified, and the recorded time is changed. Then, a different statement is made, compared to what was initially recorded. Now, the maker of this new statement is not a witness; this, by definition, is hearsay and raises questions of reliability. To assuage these concerns, Sections 65A and 65B were introduced.


Thus, Indian law considers all electronic evidence to be unreliable hearsay evidence, unless they abide by the newly-added sections. This is evidenced by the practice of deeming electronic evidence inadmissible unless they do not fulfil the conditions laid down by Section 65B.


Section 65B(2) specifies some conditions that must be fulfilled by electronic evidence. It requires that the computer operate properly, be regularly used etc. In furtherance, Section 65B(4) posits that a certificate must be adduced along with electronic evidence. This certificate must attest to any of three possible things as given in the subsection. They are: “identifying the electronic record containing the statement and describing the manner in which it was produced; giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; and to any of the matters to which the conditions mentioned in sub-section (2) relate.” The certificate is also required to be signed by “a person occupying a responsible position concerning the operation of the relevant device or the management of the relevant activities.” Of course, the identity and designation of this person depend on the evidence in question in the instant case. For example, in a case where the impugned evidence was Call Data Records (“CDRs”), the Nodal Officer of the mobile network provider company (in that case, Reliance Communications), was deemed to be the appropriate certifying authority.

In Arjun v. Kailash, Nariman J. asserted that Section 65B represents the entire code applicable to electronic evidence.[6] Thus, all forms of electronic evidence must abide by Section 65B. [7]  He further argued that certification per Section 65B(4) was mandatory.[8]  Additionally, the court asserted that although Section 65(B)(4) uses the word “any”, a certificate under that Section must certify all the matters listed therein.[9] 


To reiterate, these provisions were enacted to address the hearsay and reliability concerns regarding electronic evidence. By interpreting the sections to require the fulfilment of the Indian Evidence Act’s burdensome[10]  conditions for admissibility, Indian law reflects its fundamental distrust of all forms of electronic evidence. Yet, some species of e-evidence need not be subjected to these rigours. 


Particular Types of Electronic Evidence as Exceptions to the Hearsay Rule

This chapter seeks to restructure the understanding of all forms of electronic evidence as rife with concerns of hearsay and unreliability, by demonstrating certain forms of electronic evidence that merit exemptions to the rule against hearsay. In this endeavour, the first step is to understand the specificities of hearsay.


Laurence Tribe’s Framework

Here, reliance may be placed upon Tribe’s exposition of hearsay in his Harvard Law Review article entitled “Triangulating Hearsay.” Tribe represents the rule against hearsay as a Testimonial Triangle, as shown below.

The article argues that situations wherein the adjudicator is required to move from points A to C through point B, can be classified as situations where the rule against hearsay may be triggered. The left leg pertains to the fallibilities of the evidence being rendered. Herein, hearsay concerns arise due to the vagueness of the statement, or the mala fide motives of the declarant. On the right leg, Tribe represents objective failings of the mental state of the declarant. In essence, the left leg signifies comparatively deliberate misrepresentations that taint the testimony of the declarant, while the right leg represents negligent errors arising from the imperfect nature of the mind.


Tribe analyses the exceptions to the hearsay principle, and notices that all of them require one good leg to be enough to override hearsay concerns. If applied to electronic evidence, the premise becomes that electronic evidence with one good leg should not be excluded as Hearsay.


Electronic Evidence with a Strong Left Leg

A strong left leg implies evidence that is not tainted by the imperfect nature or motivations of the mind. Here, the forms of evidence that do not require human interventions may be discussed.


Some verdicts have argued that evidence that does not require human interventions should be exempted from the rule against hearsay because this necessarily implies that the concerns highlighted in the left leg would not be applicable. Thus, such evidence has a strong left leg and thus warrants an exception.


Some electronic devices operate autonomously and furnish records through the process of automation. This is deemed to be a recognition that technology can replace human efforts, and the same ought to be recognised, as held in the Statue of Liberty case.[11] In this case, the evidence in question was automatically-generated radar records. Other such examples are self-executing Automatic Stock Control Systems and Automated Inventory Management Systems, both of which enter into transactions and generate documents without human intervention.


A more prominent example is the Internet of Things (“IoT”), which is regarded as one of the most influential forms of technology. IoT enables all the participants of its ecosystem to transmit and act on mutually-shared data without the need for any human intervention whatsoever. IoT is extensively used in intelligent sensors, smart farming systems, automated traffic solutions etc. The significance of IoT can be gauged from the fact that there is a total investment of over $15 Billion in IoT in India at present, with over 50 Billion connected devices. The boom of IoT in India signifies that the law must account for and accommodate evidence arising through the use of IoT technology, which shall necessarily be devoid of human involvement, resolving concerns of human tampering. Interestingly, the possibility of creating this distinction is unquestionably foreclosed by Section 65B(5)(a), which bars any distinction between evidence generated “with or without human intervention.”

The above demonstrates certain species of electronic evidence that arise independently of any human intervention. Thus, they can serve as an exception to hearsay.


Electronic Evidence with a Strong Right Leg

The right leg of the testimonial triangle pertains to concerns that arise due to an erroneous perception at the first instance, or due to fading of memory. Regarding the first concern, it has already been demonstrated that there is a significant presumption of reliability in favour of computers. By extension of the same presumption, it follows that computers record information as received. This addresses concerns about faulty perceptions and memory.

Next are the concerns that arise through the effluence of time. Technology neither forgets information like humans nor does it let information deteriorate, due to backup facilities. Therefore, the real concern in this regard is the threat of electronic evidence being unduly tampered with.


Another major complaint[12] raised against electronic evidence is tampering. It is contended that concerns of tampering do not arise in certain types of technologies as they have a good right leg. The most prominent example of such technology is Blockchain. Blockchain is of immense economic significance to India and is extensively used across industries. Essentially, a blockchain network is a form of a Distributed Ledger system for recording transactions and tracking assets electronically. The features of blockchain that are pertinent to the present explanation are that blockchain is largely incorruptible and immutable. Therefore, no party can unauthorisedly edit the contents of a blockchain network. Moreover, it is endowed with a Hash function, which is used to track the integrity of the network. Very simply, the hash function returns an invalid output whenever anyone tries to modify the contents of the blockchain network.


Consequently, the records contained in blockchain networks are rendered immune to tampering. Hence, right leg concerns do not arise. Moreover, given that blockchains are widely regarded as the future of data recording, these concerns would largely become a rarity. Therefore, this form of electronic evidence has one strong leg which is enough to constitute an exception to the rule against hearsay.


Due to this, several jurisdictions have explicitly deemed blockchain data records to be directly admissible in legal proceedings. Owing to its tremendous economic significance and usage potential in India, it is imperative that India follows suit and carves out an exception for this form of electronic evidence.


Conclusion

The law needs to account for the advantages brought by technological advancements. As it stands today, the law of evidence classifies all forms of electronic evidence to be susceptible to hearsay concerns arising from tampering. However, as Tribe demonstrates that having one strong leg is considered enough to override the rule against hearsay, it has been highlighted that some types of pervasive technologies need not be hit by the hearsay rule. Thus, it is required that policymakers recognise these concerns and adopt a more admission-friendly procedure.

 

[1] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1 (hereinafter Arjun v. Kailash).

[2] Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147.

[3] Karnika Seth, Computers, Internet and New Technology Laws (3rd edn, Lexis Nexis 2013).

[4] Arjun v. Kailash (n 1).

[5] ibid.

[6] ibid.

[7] ibid.

[8] ibid.

[9] ibid.

[10] Refer Chapter IV.

[11] The Statue of Liberty Owners of Motorship Sapporo Maru v Owners of Steam Tanker Statue of Liberty,

[1968] 1 WLR 739.

[12] Yusufalli Esmail Nagree v. State of Maharashtra (n 2).


This article has been authored by Debmalya Biswas, a third-year student at National Law School of India University (NLSIU), Bengaluru. This blog is a part of RSRR’s Rolling Blog Series.

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