Electronic Evidence
In India, electronic records can only be brought into evidence if accompanied by a certificate signed by a responsible person describing how it was produced and details of the computer involved in its production. Unless we remove these offline measures and replace them with digital certificates and other forms of electronic authentication, digital dispute resolution will be crippled.
This article was first published in The Mint. You can read the original at this link.
In this column, I often describe the many ways in which India is digitizing itself. Thanks to our foundational infrastructure of identity and payments, we’ve built many innovative products, from digital lending solutions and public health platforms to location-based digital commerce solutions. Since all these technologies leverage one or the other of our foundational infrastructure elements and are built on open standards, they will easily achieve population scale and inherently resist the centralisation that inevitably leads to a few commercial entities gaining a disproportionate advantage.
Online Disputes
But even as we build these core digital platforms, it is important that we pay adequate attention to various ancillary aspects of the digital ecosystem that are critical to its long-term sustainability. I have already written about the need to develop online dispute resolution (ODR) solutions, both to cater to the increasingly digital nature of our transactions as well as to align resolutions more closely with our online way of functioning:
There is a crying need to develop an appropriate complaint handling mechanism to address disputes that arise on these platforms. Any such system we build should be capable of functioning online and operating at a scale that enables it to deal with the high volume of disputes they will doubtless need to process. Ideally, they should be capable of processing some portion of the disputes using automated decision-making algorithms that leverage the digital nature of the platform and the underlying e-commerce transactions.
It is heartening to see that the government has taken this seriously and that NITI Aayog has released a detailed report on ODR. But even just in relation to digital disputes, there are other areas that need urgent reform.
A case in point is the law of evidence, particularly as it relates to electronic records.
Electronic Records
According to Section 65B of the Evidence Act of 1872, an electronic record can only be admitted as evidence if it is accompanied by a certificate signed by a responsible person describing the manner in which the electronic record was produced as well as details of the computer or device that was involved in its production.
When this provision was first introduced into the Evidence Act (in the year 2000), the primary concern of regulators was to ensure that electronic records stored on computers were faithfully represented in physical printouts, which were the only way in which these records could be produced as evidence in courts. That was a time before platform technologies, and it made sense for the law to require a person responsible for the computer system in question to certify that the machine was being regularly used to store and process information of the kind contained in the electronic record, and that it was not out of operation or otherwise malfunctioning in a way that would affect the e-record or the accuracy of its contents.
Evidence in the Cloud
Today, the digital platforms we use for e-commerce, digital payments and the like are hosted solutions that are not only not located on a single computer or device, but reside on the cloud—on servers managed by hosting service providers that literally have no knowledge of the data that resides on their servers. The electronic records we rely on as evidence are often generated on the fly, in the course of API-driven interactions between the computer systems of multiple entities. This makes the requirements of Section 65B not only onerous, but also, most often, impossible to fulfil.
Indian courts have struggled to find a solution that gives proper effect to the requirements of Section 65B in the context of modern digital transactions. The many cases that have dealt with the issue have resulted in widely differing judgements. Finally, in July last year, in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal, a three-judge bench of the Supreme Court sought to finally put the controversy to rest.
In that case, the Supreme Court observed that the owner of the computational device was free to step into the witness box and prove that the device on which the electronic record was first stored is owned and operated by him. Having done that, the electronic records contained in it would be adduced as primary evidence. If this is not possible—if there is no option but to have the electronic record extracted in the form of a printout—the only way it can be validly adduced as evidence is if accompanied by a certificate under 65B(4).
Consequences
This ruling of the Supreme Court is now law of the land in relation to the admissibility of electronic records. As a result, electronic records can now only be adduced as evidence if accompanied by a Section 65B certificate. This means that going forward, every digital transaction must identify in some individual the responsibility for confirming that the electronic records to be relied upon as evidence in case of a dispute meet the requirements of the Indian Evidence Act, as set out in Section 65B. If this protocol is applied to ecosystems that are being designed to be open and non-discriminatory, it will place an impossible burden on the manner in which they can be built.
That said, the Supreme Court had little choice but to rule in the manner it did. After all, the judiciary can only interpret the law, not amend it. But just because the judges were constrained in this manner didn’t mean that the unfortunate consequences their decision would inevitably have were agreeable to them.
Justice Ramasubramanian, for one, felt compelled to express his angst through an anguished supplemental opinion. After analysing laws from around the world, he pointed out that all major countries have come to terms with developments in technology and accordingly fine-tuned their legislation to take a more modern approach to digital evidence. The time has come, he implored the country, to take another look at Section 65B and make it more reflective of present times.
I hope Parliament is listening.
