Assignment No. 1
“A Critical Analysis of Law R elating to Electronic Evidence”
THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL B HOPAL PAPER: Computer Forensics & Electronic Evidence DATE OF SUBMISSION: April 10, 2013 SUBMITTED BY: Atul Patel ROLL NO. : 2011/MS-CLIS/17 Declaration: I declare that t hat the work has been completely performed by me and a nd reasonable care
has been taken in acknowledging the respective authors where ever necessary.
Introduction: The rapid development of information and communication technologies over the past decade has revolutionized both business and individual practices. The proliferation of computers has created a number of problems for the law, as traditionally evidence relies on paper records but as more and more activities are carried out by electronic means, it becomes important that evidence of these activities be available to demonstrate the legal rights that flow from them. Now a day‘s most electronic records are, in practice, being admitted in litigation. However, courts have struggled with the traditional rules of evidence, with inconsistent results. The common term ―reliability‖ has caused confusion between the principles of authentication, best evidence, hearsay, and weight. With specific reference to evidence, following are considerations to be borne in mind when legislating: the nature of threshold that should apply to the admissibility of electronic evidence, the burden of proof on the proponent or opponent of the evidence, and the procedural requirements to ensure a proper examination of electronic evidence adduced before the court. As one of the largest world powers to undertake comprehensive electronic transaction legislation, India should enact statutes that are state – state – of-the-art. of-the-art.
1
1
Nandan Kamath, Law Relating Law Relating to Computers Internet & E-Commerce, E-Commerce, Chapter 3, page 50, para th 4, Ed. 4 RGNCLC, NLIU Bhopal
Page 1
Assignment No. 1
“A Critical Analysis of Law Relating to Electronic Evidence”
This critical analysis will outline the issues involved in applying the law of evidence to the Internet. It uses, for its base of reference, the Indian Evidence Act, 1872 and the enacted Information technology Act 2000. “Trust, but Verify”
Ronald Reagan -
Various Laws relating to Electronic Evidence in India: In India earlier for traditional evidences like paper based, the Courts are relied upon The Evidence Act, 1872 but with the enactment of The Indian Information Technology Act, 2000 roles of electronic evidences comes into purview. Also with the use of technology now-a-days criminals are using more and more electronic devices such as Mobiles, Computers, and Internet etc. Thus it is very much required to accept the electronic evidences gathered from scene of crime and then punish the culprit accordingly. These statutes define the electronic evidence and also mentioned the circumstances in which it is acceptable. The procedure followed in Indian Courts is given under The Code of Criminal Procedure, 1973 and in its chapter 23 it also mentioned the procedure relating to the evidence gathering etc. Although these laws recognize the electronic evidence but with the development in technology sometimes these laws are incompetent to do justice with victim as evidence collection and to maintain its integrity such that it is acceptable in court is not an easy task. So here the provisions relating to electronic evidence in different legislation are discussed as follows:
The Indian Evidence Act, 1872: Under the Section 3 the term ‗Evidence‘ is defined as follows: "Evidence" means and includes-(1) All statements which the Court permits or requires to be mad e before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) All documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence. Thus this definition included the electronic records as documentary evidence in the proceeding of the case, with the amendment made in year 2000. RGNCLC, NLIU Bhopal
Page 2
Assignment No. 1
“A Critical Analysis of Law Relating to Electronic Evidence”
Under Section 65A it is given that the content of the electronic records may be proved with the condition given in section 65B of the Act. While under Section 65B of the Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the following conditions are satisfied:
The document is produced in regular operation of a computer and within the lawful control of the authorized person.
In general information contained in the document was regularly fed up in computer.
Computer was working properly and if not then th e document was not affected.
The information contained in the electronic document reproduces from information in computer as ordinary course of action.
The evidence collected from the working of the computer networks also required to take care of above given conditions. Documentation is considered as a very important part of evidence collection as a certificate of doing will be collected from a person in charge of said activities. In Thus it has been seen that The Evidence Act is not sufficient as it only mentioned the proper operation of the computer and the requirement of certificate of acknowledgement from the authorized officials. It doesn‘t prescribe the principles necessary to be followed by the investigator in collection of the electronic evidence. Above section made it necessary that the evidence presented at court must be in its original form and un-tampered but does not prescribed the mechanism followed to do so. Also the method used for authenticating evidence is not prescribed. Thus in this context it is lacking what is really needed to do prosecute the culprit.
The Information Technology Act 2000: This is an Act to provide the legal recognition for transactions carried out by means of electronic communication, which involves the use of alternatives to paper based methods of communication and storage of information. It also provides the recognition of electronic evidence and sometimes also helps in determining the evidence from digital devices and mechanism such as Computer, E-mail etc. the Section relevant in this context are discussed in short as followed: RGNCLC, NLIU Bhopal
Page 3
Assignment No. 1
“A Critical Analysis of Law Relating to Electronic Evidence”
In Section 3 of the Act it is prescribed that a person may authenticate an electronic document by affixing his digital Signature. By interpretation it may also concluded that while collecting the electronic evidence the certificate given by the authorized official may be authenticate by the digital signature so that it may easily verified in the court of law. The digital signature ensures integrity, authenticity and non repudiation which are necessary in verifying the electronic evidence during proceedings of trial. Under Section 4, it gives legal validity to electronic records. Some of the sections prescribed the authorities and mechanism in which these electronic documents can be used for legal proceedings. As such they are not relevant but depend on circumstances it may help in presenting the evidence in court. Under the Section 79A, which was introduced with the amendment of 2008; it is prescribed that for the purpose of the expert opinion on electronic form evidence before any court or other authority appoint any department or agency as an Examiner of electronic Evidence. It also defines the ―electronic form evidence‖ means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, and digital fax machines. But till today no such Examiner of Electronic evidence is appointed by the Central Government in the absence of the qualified professional in techno-legal field. As this problem will be cleared in near future and then we may hope for such expert.
2 In Ami tabh B agchi v. Era B agchi , AIR 2005 case the court provided Safeguards, which are to
be taken for the purpose of recording evidence through Audio-Video link. 3
In State of M aharashtra v. Prafu l B . Desai, The Supreme Court has observed that, where the evidence of a certain witness is necessary for the ends of the justice and the attendance of such a witness can‘t be procured without an amount of delay, the court may issue a Commission for recording the evidence by way of video conferencing.
2
AIR 2005 Cal 11
3
AIR 2003 SC 2053
RGNCLC, NLIU Bhopal
Page 4
Assignment No. 1
“A Critical Analysis of Law Relating to Electronic Evidence”
The Code of Criminal Procedures, 1973: Under Chapter 23, Evidence in Inquiries and Trials; mode of taking and recording evidence and commissions for the examination of the witness is prescribed. This consists of the method in which the record of evidence is to be maintaining such that it remains acceptable in court. But it is noticed that this doesn‘t contain the procedure for taking electronic evidence and how to generate documentation for the same. Although some of the rules also covered the procedure of electronic evidence but it is not sufficient. At least it is required that a general procedure for collecting the electronic evidence and how to keep it safe and untampered and may name some designated authority or specialist for this work.
ISO Standards: ISO Standard 27037, which is a standard for ‗Information technology - Security techniques -
Guidelines for identification, collection, acquisition, and preservation of digital evidence‘. This 4
standard provides guidelines for handling of digital evidences , these activities involves of its collection, identification, acquisition, and preservation such that its evidentiary value exist, and it would be accepted in the court of law. Evidence will only be acceptable in the court if it is collected properly. This means it should be collected in the procedure established by the law. If it is not so then it may happen that the evidence may lose its evidentiary value and very relevant evidence on the basis of which the case may be decided has been destroyed. Not only the collection of evidence is important but also acquisition and preservation of same is equally important.
But as this is only the standard and hence no legal applicability of this in the Indian Courts. The law enforcement agencies and corporate sector may presume the standards in drafting the best practices and policies for digital evidence collection. It is also my suggestion that if with the amendment in The Evidence Act, 1872 it is prescribed that during the collection of electronic evidence the agencies will keep in mind the practices given in the ISO 27037 and accordingly the integrity verification of the evidences will occur in court, so this may help the ambiguity existed in the Law of electronic evidence in India. 4
Digital Evidence Means: electronic equipment used to process or store digital data; ISO/IEC 27037
RGNCLC, NLIU Bhopal
Page 5
Assignment No. 1
“A Critical Analysis of Law Relating to Electronic Evidence”
Conclusion: This is to be attitude of approach, an important fact that needs to be kept in mind is that technology is rapidly expanding at speeds too fast for society. The statute drafters should thus be careful in applying strict rules, definitions and interpretations to the subject matter. Yet the framework must be broad and clear as to its content. With the enactment of IT Act 2000, the law recognizes the electronic counterparts of paper documents and signatures but there is no absolute way to verify its integrity and thus judges ought to exercise careful discretion as to testing the integrity of the data. There is not any strict method of deciding this, as integrity varies from system to system.
REFERENCES Books:
st
Justice Y V Chandrachud & V R Manohar, ‗The law of Evidence: 21 Ed. Reprint 2007‖, Wadhwa & Company Nagpur
M. Monir, ‗Textbook on The Law of Evidence‖, Universal Law Publishing Co. New Delhi, Ed. 8, August 2010.
Nandan Kamath, Law Relating to Computers Internet & E-Commerce, chapter 3, th
(Universal Law publishing Co., New Delhi, 5 Ed.,2012)
Acts:
The Information Technology Act, 2000
The Evidence Act, 1872
The Code of criminal Procedures, 1973
ISO Standard:
ISO/IEC 27037, Information Technology — Security techniques — Guidelines for identification, collection, acquisition, and preservation of digital evidence
RGNCLC, NLIU Bhopal
Page 6
