I recently received a query about whether there is any case law which supports my view that even when a original memory card or CD is presented to the Court, a section 65B certificate is required.
I would like to elaborate on this query and submit my views.
Case Law and its limitations in an emerging area of technology
I understand that most practicing advocates consider that “Law Becomes a Law only when a Judge says so”. Hence the arguments in most cases except when it reaches the higher courts, is always on the case laws and not on interpretation of the law.
The Judicial interpretations are important in assigning meaning to the words contained in the written law but it can always be re-interpreted. A lower court’s interpretation can be re-interpreted by a higher court and a smaller bench interpretation can be re-interpreted by a larger bench.
Hence when we base our legal view only on the strength of some case law, we are on a temporary time period when a particular judgement is considered as a precedent.
True Experts on the other hand will/should ignore interpretations based solely on case law and will/should always argue with a fundamental interpretation with relation to the legislative intent and what is necessary to meet the objectives of the legislation.
Yes, this would be an “opinion” of a ” Deemed Expert” who may be not anybody who is “Certified by any government or judicial authority” or by passing an “Examination” in a University. But nevertheless, it cannot be ignored as our experience in the past under Sec 65B interpretation has proved.
It takes years for the Courts at higher levels to consider a legal issue, mull it over under different circumstances and contexts, hearing arguments of all hue and description and arrive at a near consensus view on a matter of legal interpretation of a law text, when it can be considered as a “Case Law”. In the meantime we should not curb our creative interpretation of the law and fail to challenge the decisions of the Court even if it comes from the highest Court.
In the domain of Information Technology Act 2000 and to the current date, which includes the Section 65B of Indian Evidence Act , I have always followed this principle that we need to dig up the truth from the current law until it is changed and all of us including the Courts at the highest level are in the process of understanding the law and interpreting them.
Some may consider it as not respecting the tradition where the arguments of practicing advocates start and end with ” In so and so vs so and so, the honourable Supreme Court said so and so and there rests my case, my lord”.
Fortunately, not being a practicing advocate gives me the creative freedom to think differently and let the Judges accept my view if they can hear me out fully and with an open mind. No disrespect is meant here for any judicial authority nor any arrogance is intended. It is a belief that “God sees the Truth but waits”.
I consider that Cyber Jurisprudence in Information Technology Law and Section 65B is still developing and hence what I say is an input which needs to be considered as a “School of Thought”. I may differ in certain respects with other seemingly logical views of other practicing advocates more vocal than me and more active in the Judicial Academies or Legal seminars. But I would not budge from my considered view.
My Considered view in respect of whether a Section 65B certification is required for an electronic document is presented in the form of a original memory card or hard disk is presented is an emphatic yes. The Court has to invite a person of its choice and ask him to view the electronic document and produce a Section 65B copy for the Court to appreciate.
Indian Philosophy shows us the way
The key to appreciate the above point is that an “Electronic Document that is a piece of evidence is not the memory card per se but the stream of binary data, the zeros and ones that are some where inside the memory card in the form of electric charge positive or negative”.
The memory card is the container or a box that contains the zeros and ones that when viewed in a special glass called a computer with appropriate hardware and software provides some human experience such as a sound or a readable document or a video.
The process of conversion of the stream of zeros and ones which is the “Original” evidence into a readable document or a hearable sound or a viewable video is dependent on a hardware-software combination such as a card reader, computer, operating system, monitor, speaker, audio processor, video processor, etc etc. Only when all these function properly in tandem the stream of zeros and ones become a humanly appreciable electronic document which the Judge considers as “Evidence”.
Therefore, while the original evidence such as memory card can be presented as a physical artefact that is an “evidence” and also admitted as an artefact, the question of who will view the binary content in that and say that it contains a letter written by X to Y or a photograph or an audio etc., remains.
If the Judge himself views the electronic document which is dependent on the system used, software used etc, then he becomes the person responsible under Section 65B to state that the computer which rendered the binary stream contained in the memory card rendered in a particular manner and will do so in future also in similar circumstances.
We can however say that the onus of providing the Section 65B certificate shifts from the person producing the memory card to the Court.
The fact that an electronic document residing in Yahoo Group server could be accepted as evidence based on a certificate produced locally by a private person like me was established in the Suhas Katti case in 2004 itself. There was no need for the “hard disk of yahoo group” to be produced in the Court. I suppose this is a universally accepted fact as of now that where there is a Section 65B certificate of a computer output, there is no need for the production of the original electronic document.
In the Basheer case one thing that I did not agree was a reference to the CD in which the offending speech or song was contained as a “Original”. This term has to be correctly defined. The terminology that should have been used here was the “First Container of the stream of electronic data elements that constitute the evidence in question” instead of the “Original CD”.
We should refrain from confusing between the “Stream of zeros and ones” which are “Binary impulses recorded for future reference and interpretation” in some form, and the container in which these are held together for the time being.
Imagine the situation where a laser computer screen is created in front of your eyes in free space where you see the information that you normally see on a computer monitor. The words are now floating in the air and there is no surface on which they seem to lie. This clearly establishes the fact that “binary stream” can exist and actually does exist independent of the “Container”.
Another easy way to understand this is in the concept of the “Soul” and the “Body” in Indian philosophy. Does soul exist independent of the body?.. Indian philosophy agrees that Soul exists independent of the body and that when a person dies, the soul leaves the body and ultimately finds another body in which its past life memories are in tact and if there is a right environment, the erased and reformatted memory of the soul in the past life can be rendered in the new body. The soul perhaps exists in this transitory state until it merges itself with the “Paramatma” which we call “Attaining Moksha” in some forms of philosophy.
Without going deeper into philosophy, we should conclude that
a) “Electronic Document means a stream of binary data arranged in such a manner that under appropriate rendition of the stream through a computer device, it produces the human experience of a readable document or an audio or a video.”
b) A memory card or a hard disk is a device which holds the stream of binary data and makes it available to be used as a hardware which becomes part of the larger computer system that renders the human experience of a stream of binary data.
I have earlier referred to the Trisha Defamation Case in Chennai AMM Court where I was invited by the Magistrate in a similar circumstance when the CD was already in his hands and there was no need for an external party to certify it in ordinary prudence.
I appreciate the vision of the magistrate D. Arul Raj who correctly interpreted the law that he should not take the responsibility of writing in the judgement, “I viewed the contents of the CD which contained so and so information… which contravenes such and such law…etc”. He decided that he requires a third party to certify it and provide him a Section 65B certificate. In this case, I was the person called upon to do so.
Unfortunately This did not go into a judgement (as I understand) since the complainant later withdrew the complaint.
In my opinion, Cyber Jurisprudence does develop not only from the Judgements, but also from the views that emanate from the experts.
Remember that after Afsan Guru judgement in 2005, many were quoting that I was not correct in maintaining that Section 65B certificate was mandatory for admissibility. But it took 9 more years of erroneous reading of the law to be upturned by the Basheer judgement in 2014.
In between I continued to hold my view and also argue with experts particularly in the national Police Academy who were listening to me on the one hand and also looking at the Afsan Guru judgement and spotted the discrepancy. Most other experts had not even observed this discrepancy and hence not raised the issue in any forum for a larger debate until the Basheer judgement reflected what I was saying all along.
Similarly, any of the views that I have expressed here may not be today the popular view or a view that is necessarily supported by a judgement. But I am confident that judgements will eventually follow what I have stated here.
May be there will be occasions when I will revise my view or the law itself may change. But presently my view is that
“Even when the original binary stream is presented in the container to the Court, the container has to be opened and the binary stream has to be interpreted with the assistance of hardware and software and hence it is necessary for the Judge to take the assistance of a Section 65B Certifier reliable to it.”
“It can be a Section 79A certified agency if available or other persons on whom the Court reposes confidence.”