Understanding How to prove WhatsApp chats and social media records under the IEA and BSA? is essential for legal professionals. following article provides clear insights into the procedures and legal requirements for presenting such evidence in Indian courts, including the importance of obtaining a Section 65B certificate and ensuring the authenticity of electronic records. Here is the procedure for proving WhatsApp chats and social media records under the Indian Evidence Act, 1872 (IEA) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA):
Proving Electronic Evidence Under the IEA and BSA
- Both the IEA and the BSA recognise electronic records as admissible evidence.
- The definition of “evidence” in both Acts explicitly includes electronic records. The IEA defines ‘documentary evidence’ as including electronic records produced for inspection by the court. The BSA defines ‘document’ as including electronic records on emails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence and voice mail messages.
- Oral admissions relating to the contents of electronic records are not considered relevant unless the genuineness of the electronic record itself is in question.
- Under both Acts, if a statement forms part of an electronic record, the court may require additional evidence to understand the context of the statement. This evidence could include the complete electronic record or information about the circumstances in which the statement was made.
Specific Procedures for Proving Electronic Records
Under the IEA:
- Sections 65A and 65B were introduced to the IEA by the IT Act, 2000, to address the admissibility of electronic records.
- Section 65A states that electronic records may be proved in accordance with Section 65B.
- Section 65B outlines the conditions for admissibility of electronic records as primary evidence:
- The electronic record must have been produced by a computer during a period when the computer was used regularly to store or process information for regular business activities.
- The type of information in the electronic record must have been regularly fed into the computer during those business activities.
- The computer must have been operating properly during the relevant period, or any malfunction must not have affected the accuracy of the electronic record.
- The information in the electronic record must be a reproduction or derivative of information fed into the computer during regular business activities.
- A certificate of authenticity is required to satisfy the conditions in Section 65B. The certificate must:
- Identify the electronic record and describe how it was produced.
- Provide details about the device used to produce the record, sufficient to prove it was produced by a computer.
- Address the matters related to the conditions for admissibility.
- Be signed by the person in charge of the computer or relevant activities.
- The IEA includes provisions for various presumptions relating to digital evidence:
- Gazettes in electronic form: Section 81A presumes the genuineness of electronic records appearing to be from the Official Gazette if produced from proper custody.
- Electronic agreements: Section 85A presumes that a contract exists if the parties’ digital signatures are affixed to an electronic record purporting to be an agreement.
- Secure electronic records and digital signatures: Section 85B presumes the integrity of a secure electronic record.
- Electronic messages: Section 88A presumes that an electronic message corresponds with the message inputted by the sender.
- Five-year-old electronic records: Section 90A presumes that the digital signature on an electronic record that is at least five years old and produced from proper custody was affixed by the signatory or an authorised person.
Under the BSA:
- The BSA replaces the certificate requirement in Section 65B of the IEA with a requirement to submit a more comprehensive certificate (specified in the Schedule) that includes hash values of the electronic record.
- The BSA updates terminology and references to align with contemporary technological advancements. For example, ‘computer’ is often replaced with ‘computer or communication device’, recognising the broader range of devices used to generate electronic records.
- The BSA includes specific provisions for video recordings.
Case Law Examples
- In Jagjit Singh v State of Haryana, the Supreme Court ruled that digital evidence in the form of interview transcripts from television channels was admissible, even though the petitioners refused to watch the recordings. This case demonstrated the court’s willingness to accept digital evidence even in the absence of strict adherence to procedural requirements.
- State (NCT of Delhi) v Navjot Sandhu involved the admissibility of mobile phone call records. The Supreme Court ruled that cross-examining a competent witness about the computer and call record printouts was sufficient to prove the call records. This case shows that meeting procedural requirements can sometimes be achieved through witness testimony and doesn’t always require strict adherence to certificate provisions.
It is important to note that the specific procedures and requirements for proving the admissibility of electronic evidence, including WhatsApp chats and social media records, can be complex and may vary depending on the specific circumstances of each case. Legal advice from qualified professionals is recommended.
READ MORE: Section 104 The burden of proof in the Bharatiya Sakshya Adhiniyam 2023, Secondary Evidence under Bharatiya Sakshya Adhiniyam 2023 : A Detailed Guide
Conditions Governing the Admissibility of Electronic Evidence Under the BSA
The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which consolidates and amends the laws of evidence in India, sets out specific conditions for the admissibility of electronic evidence. Section 63 of the BSA is central to this, stating that any information in an electronic record printed on paper, stored on various media or produced by a computer or communication device, is deemed a document and admissible in proceedings without further proof of the original, provided specific conditions are met.
Conditions for Admissibility
These conditions, as outlined in Section 63 (2) of the BSA, are:
- Regular Use for Business Activities: The electronic record must have been created, stored, or processed by the computer or communication device during a period when it was regularly used for these purposes for any activity regularly carried on by the person lawfully controlling the device.
- Regular Input of Information: The type of information contained in the electronic record, or the information from which it’s derived, must have been regularly fed into the computer or communication device in the ordinary course of those activities.
- Proper Functioning of the Device: The computer or communication device must have been operating properly throughout the material part of the period in question. If there were malfunctions, they must not have affected the accuracy of the electronic record.
- Information Derived from Regular Input: The information in the electronic record must reproduce or be derived from information fed into the computer or communication device in the ordinary course of the aforementioned activities.
Satisfying the Conditions with a Certificate
To satisfy these conditions, Section 63 (4) mandates the submission of a certificate along with the electronic record every time it’s presented for admission. The format of this certificate is detailed in The Schedule of the BSA and must contain the following information:
- Identification and Production: Identify the electronic record and describe its production method.
- Device Particulars: Provide details about the device involved in producing the record, sufficient to demonstrate it was produced by a computer or communication device.
- Addressing Admissibility Conditions: The certificate should cover any matters related to the conditions for admissibility outlined in Section 63 (2).
- Signatures: The certificate must be signed by both the person in charge of the computer, communication device, or relevant activities and by an expert.
Hash Values and Expert Verification
Significantly, the BSA’s certificate format requires the inclusion of hash values for the electronic record, obtained using a legally acceptable standard algorithm like SHA1, SHA256, or MD5. This adds an extra layer of verification to ensure the integrity and authenticity of the electronic record.
The involvement of an expert in verifying and certifying the electronic evidence further strengthens its admissibility. While the BSA does not define the term ‘expert’, it is clear that their role is crucial in authenticating the electronic record and providing a professional opinion on its validity. It’s advisable to consult with legal professionals to understand the qualifications and expertise required for an individual to be considered an ‘expert’ in this context.
Equivalence of Electronic and Paper Documents
Importantly, Section 61 of the BSA states that electronic or digital records are admissible as evidence solely based on their electronic nature. The BSA ensures these records have the same legal effect, validity, and enforceability as any other document, removing any potential bias against electronic evidence.
In conclusion, the BSA establishes robust and clear conditions for the admissibility of electronic evidence. These conditions aim to ensure the reliability and authenticity of the evidence while recognising the growing prevalence and importance of electronic records in contemporary legal proceedings. The use of hash values, expert verification, and a detailed certificate format all contribute to a strengthened framework for handling electronic evidence in Indian courts.
Format of the 65B Certificate
The format for the 65B Certificate is provided in The Schedule of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The certificate is divided into two parts: Part A to be filled by the party producing the electronic evidence and Part B to be filled by an expert.
Part A: Information Provided by the Party
This section requires the party submitting the electronic evidence to provide identifying information, including:
- Personal details: Name, relationship to head of household, residential address, and employment details.
- Source of the electronic record: Identifying the specific device or digital record source, including details such as make, model, colour, serial number, IMEI, UIN, UID, MAC address, Cloud ID or any other relevant information.
- Confirmation of lawful control and regular use: The party must affirm that the device was under their lawful control and used regularly for creating, storing, or processing information for regular activities. They must also confirm the proper working order of the device and that the information was regularly fed into the computer during the ordinary course of business.
- Hash value: The party needs to declare the hash values of the electronic record obtained through a legally acceptable standard algorithm (e.g., SHA1, SHA256, MD5). They must also enclose a hash report with the certificate.
- Control over the device: The party must specify whether they owned, maintained, managed, or operated the device in question.
Part B: Information Provided by the Expert
- Personal details: The expert provides their name, relationship to head of household, residential address, and employment details.
- Confirmation of the source: The expert confirms the source of the electronic evidence, mirroring the information provided in Part A.
- Hash value: The expert also declares the hash value of the electronic record and specifies the algorithm used to generate it, aligning with the information given in Part A.
The Certificate and Section 63 of the BSA
The certificate is directly referenced in Section 63 (4) of the BSA. This section outlines the requirements for submitting electronic evidence, stating that the certificate must be submitted along with the electronic record at each instance where it is being submitted for admission.
Section 63 (4) also specifies that the certificate will be evidence of any matter stated in it. The person providing the information in the certificate does so to the best of their knowledge and belief.
FAQs on How to prove WhatsApp chats and social media records under the IEA and BSA?
1. How to prove WhatsApp messages in court?
WhatsApp messages can be proved by submitting them as electronic evidence along with a certificate under Section 65B of the Indian Evidence Act or the corresponding provision in the Bharatiya Sakshya Adhiniyam (BSA) 2023.
2. What is the evidentiary value of WhatsApp chat?
WhatsApp chats have evidentiary value if they are accompanied by a valid Section 65B certificate. The content must be relevant to the case and authenticated by the sender/receiver.
3. How to obtain a certificate under Section 65B?
A person in charge of the electronic device or the computer system from which the messages are retrieved must issue a certificate under Section 65B, verifying the authenticity and integrity of the data.
4. How to use WhatsApp as evidence?
WhatsApp messages can be used as evidence by presenting printed or digital copies with a Section 65B certificate. The authenticity of the messages must be proven.
5. What is Section 65B(4) of the Evidence Act?
Section 65B(4) mandates that the certificate must contain details about the electronic record, the manner in which it was produced, and the device used. The certificate should be signed by an authorized person.
6. What is Section 65 of the Indian Evidence Act?
Section 65 deals with secondary evidence of documents. It permits secondary evidence in cases where primary evidence (original document) is unavailable.
7. Are Instagram chats valid in court?
Yes, Instagram chats are admissible if they are presented with a Section 65B certificate and their authenticity is established.
8. Is WhatsApp evidence admissible in court?
Yes, WhatsApp evidence is admissible if it is supported by a Section 65B certificate and is relevant to the case.
9. Can WhatsApp screenshots be used as evidence?
Yes, WhatsApp screenshots can be used, but they must be accompanied by a Section 65B certificate to be admissible.
10. Are screenshots admissible in court in India?
Yes, screenshots are admissible as electronic evidence, provided they meet the requirements of Section 65B and are proven to be authentic.
