Joginder Singh Toor

TO promote and support electronic based commerce and the need to protect personal information, collected, used or stored in electronic devices an exhaustive legislation is required. The Information Technology Act enacted in 2000 had to be amended in 2008 to prevent ever growing computer based crimes and ensure security practices and provide procedures for a court of law on the admissibility, production and use of electronic records, electronic signatures, agreements and communications, as evidence.

The United Nations Commission on International Trade Law adopted the model law on “Electronic Signatures” which the U.N.Assembly accepted by a resolution Dec.12,2001 and recommended that all States accord favourable consideration to the said model law. Since the digital signatures are linked to specific technology it became necessary to harmonise the same with the model law.

Information Technology (Amendment) Act,2008 provides legal recognition to electronic records, where the law provides that information or other matter shall be in writing, or in typewritten or printed form or authenticated by electronic signatures affixed in the manner provided. It includes filing of an application or any other document with any office or authority or agency controlled by an appropriate government.

The cardinal question is how and when to use the electronic record in a court of law, having power to record evidence in civil and criminal cases. The Indian Evidence Act originally enacted in 1872 amended from time to time, envisaged traditional ways of recording and proving documents in evidence. It had to be amended consequent to the Information and Technology Act, defining “electronic signatures”, “electronic records”, “information” , “Secure electronic record” and the “Subscriber” in consonance with terms used in the I.T.Act. The term “Evidence” was also amended to include “all documents including electronic records produced for inspection of the court” and such documents shall be called “documentary evidence”.

Some safeguards are provided in the amended Evidence Act. An oral admission as to the contents of electronic records is not relevant if genuineness of the electronic record is in question. The Central Government is to appoint any department, body or agency of the Central or the State Government for providing expert opinion on electronic form of evidence. On this expert opinion the court would rely. Where the court has to form an opinion as to the electronic signature of any person the opinion of the certifying authority appointed under the I.T.Act, who issues an ‘Electronic Signature Certificate’ is to be a relevant fact.

How to prove the contents of electronic records in the court of law is given in added Section 65-B of the Evidence Act.
“65-B
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.”

Before evidence is recorded based on electronic record a certificate, identifying the electronic record containing the contents and describing the manner in which it was produced, giving such particulars of the device, involved in the production of that electronic record, showing that the electronic record was produced by a computer is to be produced. The certificate has to be signed by a person occupying a responsible official position in relation to the operation of the e-device or the management.

The information should be supplied to the computer in appropriate form by means of any equipment with or without human intervention and reproduced in the manner provided.

Evidence Act now provides certain presumptions as to the genuineness of certain documents, electronic gazette, electronic signatures, electronic agreements, records and communications if the same are produced and proved in accordance with manner provided and meet standards, security measures, intactness and proper custody of the equipment, e-devices and their contents.

This certainly is a significant change in the advanced atmosphere of electronic and digital technology.

[The writer is a senior advocate based in Chandigarh 91-9815133530. jogindersingh_toor@yahoo.com]

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