[This Article is authored by Pankaj Nagar and Bhavika Maheshwari, 2nd Year students at Hidayatullah National Law University, Raipur]

Introduction: Unpacking the Digital Evidence Dilemma

In a recent case, a single-judge bench of the M.P. High Court allowed the husband to submit WhatsApp chats of his wife that were collected without her consent and held that the family court can accept chats collected without consent in matrimonial matters. The judgment draws attention to issues of consent, constitutional protection, and the admissibility of cyber evidence. In the contemporary era of technology, evidence extends beyond tangible items and witnesses. Due to the extensive application of technology, WhatsApp messages, emails, and recordings on tape are also utilized as evidence in the courts. Following the enactment of the Information Technology Act, 2000, the Indian Evidence Act, 1872 (“The Act”) was amended in the year 2000 to grant legal recognition to digital evidence under Section 65B of the Act. The legislative model of regulating digital evidence requires an assessment of the material’s reliability and credibility, as well as a certificate requirement as a condition precedent to prove authenticity. The framework in place, however, is silent on the further question of how the evidence is procured, whether it is voluntarily given by the accused, illegally obtained, or surreptitiously gleaned without their knowledge. This quietness has created a constitutional paradox, Often struggles to balance between the pursuit of justice and the simultaneous protection of fundamental rights, which includes the right to privacy and protection against self-incrimination, as rooted in Article 21 and Article 20(3) of the Constitution.

This blog will examine the major loopholes in our legal system’s admission of digital evidence, focusing on its constitutional and procedural aspects. Firstly, the non-consensual admission of digital evidence; secondly, the inconsistency between evidentiary rules and constitutional safeguards; and lastly, the article will conclude with a reflective overview.

Judicial Dilemma: Provisions, Precedents & Pitfalls

Digital evidence in Indian courts has never been on a single road; its admissibility does not depend on constitutional rights but upon the judicial interpretations and procedural pitfalls. Pertaining to evidence, the Indian Evidence Act is the most prominent and comprehensive legislation of our country, which was replaced by the Bhartiya Sakshya Adhiniyam in 2023. Before the advent of the Information Technology Act 2000, there was no direct framework to govern the digital records in the court of law. Subsequently, the Indian Evidence Act was amended in 2000 to incorporate Section 65B, which extends legal recognition to electronic evidence, including emails, chats, online agreements, and CCTV photographs. Where the electronic evidence is submitted under Section 65B of the Act as secondary evidence, a certificate must also be presented under Section 65B (4) of the Act (or under Section 63(4) of the BSA). Subsequently, with the enactment of Bhartiya Sakshya Adhiniyam, under section 57, digital evidence was classified as primary evidence instead of secondary. However, the concerned provisions highly focus on the authenticity and credibility of the electronic evidence, while there is a lack of any provisions regarding the legality and manner in which that evidence is acquired, especially when it is obtained without the consent of the accused.

In the case of R. M. Malkani vs. State of Maharashtra, the Hon’ble Supreme Court, while admitting the tape recording which was obtained without the consent of the accused, ruled that the concerned evidence can be admitted at the discretion of the court, based on the relevance, authenticity, and accuracy of the evidence. Similarly, in Anvar P.V vs. P.K. Basheer, the Hon’ble Apex Court focused solely on the requirement that electronic evidence must be backed by a Section 65B certificate under the Indian Evidence Act. The Court didn’t even consider whether chats were obtained consensually or not. Likewise, in Rakesh Kumar Singla vs. Union of India and M/S. Karuna Abhushan Pvt. Ltd. vs. Shri Achal Kedia, the judiciary reiterated that compliance with Section 65B of the IEA is mandatory, but again remained silent on the manner of acquisition.

Justice on Trial: The Struggle with Illegal Evidence

The absence of statutory guidance regarding the admissibility of illegally obtained evidence is seriously concerning, as it hinders the process of a fair trial and undermines the constitutional safeguards guaranteed to the accused. The judicial trends in the discussed precedents indicate that when it comes to the admissibility of evidence, it relies on two factors: a) Relevance of evidence, and b) legality of evidence. However, priority is given to the former, even if the evidence is illegally obtained. The Supreme Court in Pooran Mal vs Director of Inspection case held that relevance is the only ground for admitting evidence, and its illegality doesn’t render the evidence inadmissible unless there is an express or implied prohibition.

The legal principle of the fruit of the poisonous tree emerged in the United States and extends to exclude evidence obtained through illegal means, such as a confession, an illegal search, or seizure, stating that if the source “tree” is unlawful, then the result “fruit” is also unlawful. Conversely, this principle doesn’t have any counterpart in India.

The admissibility of the illegal evidence directly conflicts with the constitutional provisions of fair trial and fundamental rights. In the case of Selvi & Ors. vs. State of Karnataka & Anr., the apex court held that Article 20(3) of the Indian Constitution safeguards an accused against self-incrimination, forming an essential element of the right to a fair trial under Article 21. Contrarily, the priority of the Indian Judiciary is on the relevance of the evidence and a certificate, regardless of the manner of its acquisition. This approach not only undermines the rights of the accused but can also substantially lead to indirect compulsion (coerced confessions, stolen documents), thereby compromising the fairness of the trial, violating Article 21, and conflicting with the very spirit of protection given to the accused under Article 20(3).

The legislation which is responsible for maintaining the harmony overlooks this clash between the admissibility of evidence and the enforcement of fundamental rights. This silence is troubling, especially when privacy is a fundamental right. Initially, privacy did not have the status of a fundamental right. In M.P. Sharma vs. Satish Chandra, the Court held that personal liberty could not be enjoyed meaningfully when there is no protection from unlawful searches. This case gave the first direction for the need to recognize privacy as a fundamental right. In 2017, the landmark case of K.S. Puttaswamy v. Union of India cemented privacy as an intrinsic part of Article 21. Despite this fundamental recognition, in practice, the judiciary places its major emphasis on technical certification under Section 65B of the IEA, while totally neglecting the manner in which it is obtained. Thereby, it subverts the accused’s protection against self-incrimination under Article 20(3) and violates his privacy under Article 21.

Conclusion

In the age of technology, justice cannot be sought at the detriment of fundamental rights. The admission of digital evidence must walk in harmony with legality, consent, and justice. Ostensibly, fundamental rights may appear intact, but their actual guarantee becomes illusory when their own guardian bypasses them. The Judiciary, on whom the accused places utmost trust for a free and fair trial, which simultaneously recognizes privacy and a fair trial as a fundamental right, and on the flip side, overlooks its violation in practice. When consent and legality are ignored while admitting digital evidence, the accused is left with little or no assurance that his basic rights will be upheld. Thus, making constitutional rights mere formalities rather than meaningful protections. This is a pressing requirement for the legislature to take some decisive action and provide clarity on this fundamental issue, ensuring alignment with procedural laws and constitutional mandates. Thereby ensuring that the Indian legal system can endeavor justice without eroding an individual’s privacy, dignity, trust, and integrity in the administration of justice in the present age.