Cyber Evidence Archival Center

CEAC has been issuing Section 65B certificates signed by Naavi as the observer since the first such certificate was issued in 2004 in the Suhas Katti case.

So far, the Certificates are issued at the request of some body and given to the person who requests for the certificate. If the certificate is to be produced in a Court, the person who obtains it submits it as a document supporting his evidence under his affidavit.

In such cases, it is not necessary for the CEAC representative to be present in the Court to submit the report to the Court directly. In some cases however, the defence has convinced the Courts to summon my presence to either confirm that I have signed the report and to conduct a cross examination.

In such cross examination, as a Section 65B certifier, the objective can only be to question the integrity of the person providing the report as somebody who is hands in glove with one of the litigants and submitting a false evidence. Obviously, given the credentials of Naavi, this challenge to the credibility is only a formality and has not succeeded and will not succeed even in future.

At the same time, as a Section 65B certificate issuer, I can only state that I followed a certain procedure and made some observations and the results of the observations are in the report. Except for confirming my signature and re-iterating what is already written down in the report, it is not possible for me to add any value to the evidence beyond what is already been present.

It is only when I am invited by the Court as an “Expert Witness” , there is a possibility of my adding value to the evidence in a Court. However, in all instances where the Section 65B certificate is presented by me, it is not possible for the Court to invite me as an Expert.

Despite this, either because the counsels of either side insist on my presence or the limitations of a Section 65B certifier as a witness not being recognized by the Court, I am often asked to be present in Court proceedings as a witness .

This adds to the cost of the person who has taken the certificate since he has to bear the cost of my presence. At the same time, I have to spend my valuable time to attend such proceedings.

In view of the above, I am trying to restrict the issue of Section 65B certificates where the matter is being heard by Courts outside Bangalore.

Going forward, CEAC therefore would like to adopt the following process:

1. Where required, CEAC will provide the service to convert the electronic evidence into a Certified Computer Output as per Section 65B of Indian Evidence Act.
2. The Certificate in a digitally signed form would be hosted on the CEAC dropbox created for the litigant and access would be provided to the person who requests the Certificate.
3. The person who has requested the certificate would be given access to view and download the document from the archive.

In this case, the submission to the Court would be a section 65B certificate from the party who is authorized to view the Certificate and the signature of Naavi of CEAC would be like a contemporaneous certificate for change of status of the electronic document from its state in which Naavi observed it to the storage in the archive.

A template in which the second Section 65B certificate needs to be submitted to the Court would be made available to the person who gets the certificate.

This system would retain the credibility of the certificate as certified from a trusted third party and simplify its submission to the Court by the litigant.

This would be used in all forthcoming certifications. Further clarifications as required would be provided. This would be updated in the CEAC book in the next edition.

Naavi

Also see in Naavi.org

An interesting hypothetical case was referred to me today on the acceptability of the Section 65B certificate and its impact when a person forges a document, scans it and presents a section 65B certified print copy of the scanned document for admission in a Court.

The query is that ” If the original is not required to be presented”, then the forged document becomes admissible and it becomes difficult to prove the forgery. Therefore does it put the person who is disputing the forged document in a difficult position in law because of Section 65B?

The query is interesting. I am presenting my views on the query and be happy to receive other views.

The answer to the query requires application of both Section 65B interpretation as well as appreciation of paper evidence. Hence it is complicated.

In a practical situation, the presenter of the Section 65B certified Computer output (Presenter) may present the computer output in paper form or in electronic form. If it is in electronic form and in good resolution, the image can be viewed by the signature verifier and a view can be taken just as we verify an ink signature on paper though some of the parameters of verification such as the ink absorption on paper, overlapping, pressure may become little difficult on the scanned image. But parameters like “angle”, “Size”, “Strokes” “The dashes and dots” etc are visible even in the scanned image. A good signature verifier can take a reasonably accurate view of the forgery.

However if the image is of low resolution or it is presented in a print form with unclear printing, then verification is as challenging as when we have a thumb print on paper with smudges.

Normally, a signature verifier refuses to provide a positive opinion unless the image is clear enough and this will apply to a “Verifier of an image of a signature in electronic form on a scanned document”.

It is necessary for us to appreciate that admissibility of electronic document based on the Section 65B certificate is a matter which is different from admitting the signature of a person in the document which is scanned.

In the case of a paper document, if a person produces a forged paper, the signatory is not objecting to the content per-se but only to the signature. It is quite possible that he may say, I am aware that this document was given to me for signature but I refused to sign. Hence “Admission of the document” as evidence does not automatically admit the “Signature within”.

When a signed document is presented by one party and it is challenged as a “Forgery”, it is the responsibility of the presenter to produce additional evidence including the handwriting expert’s opinion to prove the signature. Similarly, in the case of the Section 65B certified document also, though the document as a whole is admitted as evidence at the request of the presenter if the Section 65B certificate is satisfactory, the Court may still expect the presenter to prove that the  signature as it appears is that of the person to whom he is attributing it to. This means that the onus of getting a handwriting expert to confirm the signature lies with the presenter.

If the document is unclear, the handwriting expert may refuse to give a conclusive proof. If he gives a negative report and the document is section 65B certified by a person who is not a “Trusted third party”, then the certifier needs to have a credibility of his own as otherwise he may be charged for perjury by the Court.

A professional Section 65B certifier will not certify a doubtful document and take this risk and a professional handwriting expert will not take the risk of a positive identification based on unclear document.

Hence Section 65B certificate alone though makes the document admissible for trial does not guarantee the “Genuineness” to be taken as established.

The Supreme Court in the Basheer judgement was very clear in making a distinction between “Admissibility” and “Genuineness” and it comes in handy to protect the honest person in the above case whose signature is forged as alleged.

Hence Section 65B does not in any way create an adverse impact in the situation.

Naavi

When the media cried out “Courts can rely on electronic records without certificate: SC”., based on the order of a two member bench of the Supreme Court, Naavi.org clearly stated that the order was incorrect and required to be corrected. ( Refer here)

This order was issued on January 30, 2018 and in a way negated an order of a larger bench in the case of PV Anvar Vs P.K Basheer.

Naavi.org has advanced its reasons why this order was both incorrect and also dangerous since it sought to remove an important safeguard provided in law for preventing false electronic evidence to be produced in litigation.

It is now good to know that the matter has been referred to a higher bench in the Civil Appeal nos 2407 of 2018 and 3696 of 2018 for clarification.

We presume that the decision in the P V Anvar case will be reiterated by the larger bench.

Refer:

SC order of 26th July 2019

The tragedy of Shafi Mohammad

Naavi

Supreme  court in the  of State of Karnataka  vs O.P.Hiremath ruled that non production  of Sec 65B certificate at the time of filing of charge sheet can be corrected later.

Naavi

Naavi joins the lighting of the lamp in inaugurating the workshop 

A Unique one day workshop was conducted in Chennai on 16th March 2019 on “Section 65B of Indian Evidence Act”.

The Workshop was inaugurated by Honourable Justice Sri M. Jaichandren, in the presence of Honourable Justice, Dr S. Vimala, Senior Advocates, Mr Masilamani and A Thiagarajan. Mr Na Vijayashankar (Naavi) as Founder Chairman of Foundation of Data Protection Professionals in India (FDPPI), and a pioneer in Section 65B, conducted the knowledge session. Mr S.Balu President of Cyber Society of India (CySi) and formerly head of the Cyber Crime division of Chennai organized the event.

The Print Version of the book with latest updation, titled “Section 65B of Indian Evidence Act Clarified” by Naavi was released during the event.

The workshop was unique because it was completely focussed on Section 65B which has been in operation since 17th October 2000 but whose importance had not been fully realized until the Supreme Court judgement in 2014 in P V Anvar Vs P.K. Basheer, declaring that it is mandatory for admissibility of electronic document as evidence.

Since then the difficulties in understanding the provisions of Section 65B has also come up for discussion in some fora even to suggest that it may need an amendment.

Naavi clarified the doubts regarding the section and also highlighted why Section 65B was a master stroke in ITA 2000.

An illustrative caricature drawn by Mrs Saranya Devi under the guidance of S.Balu which explained the concept and attracted attention during the workshop is reproduced below.

The caricature explains how unlike a human witness who reproduces an evidence from his brain memory is not asked for any certification (other than the deposition itself) while  a CCTV footage when produced as an evidence requires to be certified under Section 65B under the same logic that the “Computer Witness like a human witness needs to depose but can do so only with the assistance of a human who is the Section 65B certifier.”

A gallery of eminent speakers made the event memorable.

A more detailed report on the event would be provided later.

During the event the Chennai Chapter of FDPPI (www.fdppi.in) was also inaugurated and Naavi explained why Section 65B is also relevant to the Data Protection Industry.

The event was a great success.

More information on the event will follow.

Naavi

Naavi has updated the E Book on Section 65B, titled “Section 65B of Indian Evidence Act Clarified” with an additional chapter on ‘Section 65B for Data Protection Professionals”.

A print copy of the above book is scheduled to be released in Chennai on March 16, along with the launching of the Chennai Chapter of FDPPI and a day long workshop on Section 65B organized jointly by Cyber Society of India (CySi) and FDPPI.

Naavi was the founder secretary CySi and a continuing life member, as also the Founder Chairman of FDPPI. Mr S.Balu the current president of CySi is also a member of FDPPI.

The E Book is currently priced at Rs 150/-. The Printed version of which limited copies would be available is priced at Rs 200/-. (Will be available at the conference at a concessional price of Rs 100/-).

Naavi

At present date, Quantum Computing stands towards traditional computing like a horse did towards the Wright Brothers’ plane. The horse was much faster, but the plane could move in a tridimensional space. And we all know how the horse and the plane evolved since then, now don’t we?

Geordie Rose founder of D-Wave, 2015

To address this topic and then to place it within a context of potential leverage towards themes such as Artificial Intelligence, Secure Corporate Communications, Competitive Edge towards the marketplace as well as others … it is mandatory to start by clearly defining WHAT computing is and WHERE does Quantum Computing stand out.

So, Computing as we know it

A computer is a device that manipulates data by performing logical operations, hence computing is that precise “manipulation” action which allows data to combine and translate into added value information.

The software is the set of instructions that convey what needs to be done with the data, while the hardware is the set of electronic and mechanical components over which the data operations take place according to the provided instructions.

While the core of our universe is the “subatomic world”, meaning the Quantum particles that make all the atoms’ basic components (Protons, Neutrons, and Electrons) the core of computing (as we, humans, have developed it) consists of two logical statuses, On and Off (1/ 0) and its “base element” is called the “bit”.

So, it is a binary system where the basic components (the bits) can univocally present a status of either “1” or “0”.

Mathematically, the human being has grouped this component in clusters of 8, called “bytes” and the logic behind those bytes is that from the bit to the far right towards the bit to the far left (of the 8), each would represent a base 2 exponential figure, meaning:

• the bit further to the right is 2 elevated to 0, therefore representing number 1
• the following to the left is 2 elevated to 1, therefore representing number 2
• the one farthest to the right will be the 2 elevated to 7, therefore representing 64

Now, the core of our “modern” computers started by splitting the Byte into two segments of 4 bits each, from left to right the first 4 would represent a number under the form of a base 2 power, while the other 4 bits would provide the information about which type of data was to the right: a number, a letter an instruction, other. This was called the ASCII table.

The evolution of computing led this initial context to grow both in terms of numbers of bits applied to deal with the information, as well as the speed at which those operations would take place.

From 8 bits in the mid-1990s we moved to 16, 32, 64 and so on while the speed raised from some megahertz to 1 gigahertz, then 2, 4 and it keeps evolving.

In 1965, Gordon Moore the co-founder of Fairchild Semiconductor and Intel, predicted (based on observation), that the number of transistors in a dense integrated circuit would double every two years for the following decade, therefore so would the computing capacity. In fact, the rate has been observed now for several decades, and that constitutes Moore’s Law.

Quantum Computing

Quantum computers are similar to “traditional” ones in the sense that they also use a binary system to characterize data, the difference lies in the fact that Quantum computers use one particular characteristic of subatomic particles (in specific the electrons), called the “Spin” to account for the status “0” or “1”.

The Spin is a rotational/vibration characteristic of subatomic particles that is “manageable” since it responds to magnetic fields, therefore, and in very, very simple wording, while in “traditional computers, humans control the bit status by applying or not power to a given bit; in Quantum Computers, we can affect the Status “Spin-up” which corresponds to “1” or “Spin Down” which corresponds to “0” by applying either variation to a magnetic field or a microwave focused pulse.

And what a difference this makes!

Once we move beyond the atomic world and start manipulating electrons one by one, very strange things take place.

Note: electrons are the particle of choice by two orders of reason, they are the “easiest” to extract from an atom and they behave and become photons once extracted, therefore, being able to transport information over distance as light wave particles.

Subatomic particles behave both as matter and waves, bearing the extraordinary characteristic of being able to represent both Spin-up and Spin Down status at the same given point in time.

Not to spend a couple of thousands of words describing in detail how this is possible and all the multidimensional implications that it represents (parallel universes and so on …), I will just advise you to take a look at Professor Richard Feynman lectures about Quantum Physics.

Now due to this specific characteristic of Quantum Computers (the Quantum particles), this is the point where any similarity between “traditional” computers and Quantum Computers ends.

Making the picture crystal clear, in a “traditional” computer to test all possible combinations within one set of just 4 bits so the one that applies to a given circumstance may be found, the machine goes about each of the following combinations one at a time.

Taking 16 different operations.

Now, since the Quantum computer’s bits (called Qubits) bear the capacity to represent both statuses at the same time, this process would merely require one single operation on a 4 Qubit Quantum computer!

If instead of “half a byte” (4 bits, like represented above), we speak of the latest generation software that deals with 128 bits, guess what? Analyzing all possible combinations amongst those 128 bits would require exactly one single operation on a 128 Qubit Quantum Computer!

I think that, by now, you are starting to get a picture of the involved potential, still let me give you a “hand” here; a 512 Qubit Quantum Computer would be able to analyze more data in one single operation than all the atoms that exist in the Universe.

And Quantum computing has a “Moore’s law” of its own, instead of the momentum being of doubling the processing capacity each two years, each new generation has proven to be 500 thousand times more powerful than the preceding one.

Going back to the analogy between the horse and the Wright Brothers’ plane, it’s like if they had given birth to the Lockheed SR 71 A Black Bird plane, which can fly at a speed of almost 2,200 miles per hour… now imagine what will happen a couple of generations into the future…

Constraints

Here are some constraints towards the establishment of real to the letter Quantum Computers:

• The environment

As previously mentioned, the phenomena that allow Quantum computing to be such a powerful tool resides in the ability of subatomic particles to simultaneously represent several states; in Physics, this is called “superposition”.

Now, opposite let’s say to Quartz, which is used in modern day clocks because its molecules present a constant vibratory rate that allows high precision at a wide range of environmental conditions from pressure to temperature, humidity, luminosity and so on …, superposition only happens if no external factors are “exciting” the subatomic particles, meaning the subatomic particles only behave like that before having been exposed to any external factor.

It would be enough to have a Quantum Computer Chip hit by sun light to render it inefficient.

Therefore, a Quantum Computer is basically composed of one chip the size of a finger nail and a support cooling and isolation shell the size of an SUV that ensures the required “sterile” and isolated operational environment, and it costs around $ 25 million.

• Algorithms

Writing algorithms for Quantum Computers requires the ability of thinking and taking into account the laws of Quantum Mechanics, therefore not the task for a common developer.

Peter Shor, from MIT, has developed one Quantum Algorithm (the “Factoring algorithm”) that led the Intel community to the verge of a nervous breakdown by rendering most encryption keys ineffective. Basically, while the most powerful standard computer would take hundreds of years of continuous processing to get there, if tomorrow any of us would have the chance of bringing home a Quantum Computer with the Factoring Algorithm embedded in a software piece, we could break any RSA encryption in a matter of seconds, making all the bank accounts or electronic transactions that we could “look at” absolutely transparent.

Lov Kumar Grover Ph.D. at Stanford and currently working at the Bell Laboratories developed a Database Query Quantum Algorithm that bears the uniqueness of being able to get the right information over a vast unstructured database over a few seconds. Like finding a needle in a colossal haystack within a few seconds.

• Particle manipulation

The existing current Quantum Computers are technically only partial quantum, since they are able to use strings of electrons and not yet each electron individually. However, a Laboratory experiment in Australia’s South Wales University has recently been able to do so, therefore, maybe the next generation of Quantum Computers will.

Potential

All of this is something that is being developed “as we speak”.

In 2011 the development stage of Quantum Computers allowed the tremendous accomplishment of calculating in one single operation the expression 3*5=15. Yes, just that …

Now back then (in 2011), Dr. Michio Kaku, who is one of the brightest minds of our era, stated in an interview that it was not clear by when would we have the first operational and useful Quantum Computers.

Four years after, in 2015, D-Wave (a Canadian company that produces Quantum Computers), after having developed a Quantum Computer for Lockheed Martin (the company that amongst many other military assets produced the F-22 Raptor fighter jet), produced another one which resources are being shared by Google, NASA and USRA to perform calculations that normal computers (no matter how powerful they are), are not capable of accomplishing within a reasonable time frame (meaning less than 100 years working non-stop).

This last machine is being used (since 2015) for the purpose of:

• Artificial Intelligence investigation and development
• Development of new drugs
• Autonomous machine navigation
• Climate change modeling and predictions
• Traffic control optimization
• Linguistics

Building a Quantum Computer doesn’t mean a faster computer, yet a computer that is fundamentally different than a standard computer.

Doctor Dario Gil, Head of IBM Research

We are flabbergasted by the number of things standard computers are capable of solving and how fast they do it, yet there are several things they are either not capable of solving or it would take them so much time that it would bring us no benefit.

Can’t think of any?

Well, here are some:

M=p*q – If someone gives you a given number M which is the product of two unknown very large prime numbers (p and q) and asks you to find them, although there are only two prime numbers that meet the requirement this is extremely hard to accomplish and would require several sequential divisions by prime numbers until you get there. It is in fact so difficult that it is used as the basis for RSA encryption, remember from above?

By the way, the D-Wave machines are not yet at the maturity point which allows dealing with such extremely complex problems.

Highly advanced alloy leagues – molecules for when electron orbits overlap and while dealing with well-known simple elements, like Hydrogen and Oxygen it is very easy to determine the outcome of such combination H2O or water, if we use highly complex elements while attempting to create new materials, that requires tremendous computing power and trial and errors, because those molecular bonds depend on Quantum Mechanics.

The simplest example can mean 2 to the power of 80 combinations in need of being calculated to reach the solution that leads to a stable molecule, which would take years on a standard computer but just minutes in the current state of Quantum Computing capacity.

The most recent D-Wave computer was successfully used in 2016 by a joint team composed of participants from Google, Harvard University, Lawrence Berkeley National Laboratories, Tufts University, UCS Santa Barbara and University College of London to simulate a Hydrogen molecule. This opens the door for the accurate simulation of complex molecules which may result in exponentially faster achievements with much fewer expenditure achievements in the fields of medicine and new materials.

Logistics optimization – Logistic systems are some of the most complex days to day contexts that humans face which have a tremendous financial impact on the global economy. Let’s consider the example of DHL, this international corporation’s Core Business is based on getting a given physical asset from geography A to geography B within a time frame that its clients are expecting when hiring them. To accomplish that, the company has several “back to back” running services contracts with logistic operators, besides having its own fleet of planes, boats, and cars. Nevertheless, having the entire system optimized even under perfect conditions, where no strikes or natural disasters happen is hard enough because a one-minute delay at reaching a given traffic light may impact the 1-day delay in delivering the asset across the Globe. Quantum computing will allow, through data input from live monitoring sensors across the Globe, to constantly optimize routes and available cargo space, in a way that could easily represent a 600% profit increase over current operational standards or a significant price reduction towards clients, while assuring accurate and optimized delivery timings.

Predicting the future – ever watched “The Minority Report” with Tom Cruise? In the movie, although through a different process, computation was able to show what had over 90% probability to happen concerning potential crimes. Dealing with a complex scenario, the likes of an international crisis, it is “merely” a matter of computing power which can deal with an exponentially larger range of influencing co-factors that may affect the result. A standard computer would take years to reach the most probable outcome of such crisis, long after the crisis had been “naturally” solved, yet a Quantum Computer can show the top 5 most probable outcomes within a matter of minutes, therefore becoming a priceless decision support tool.

Artificial Intelligence – to begin with, let’s define Intelligence as the ability to acquire new knowledge and change one’s opinion based on such new information. Now The contribution of Quantum Computing to the potential of AI once again pertains speed and this time around “speed of thought”. How powerful would it be a “mind” that could analyze a complex scenario (like the above-mentioned logistics nightmare of a DHL alike company) and promptly decide which course of action to take and where to improve things in terms of processes by assessing that some established workflow is no longer suitable?

The problem would then be, having AIs making decisions and replacing them with new ones at a rate that humans had no time to understand the underlying motives, hence no saying in the approval/ disapproval of such strategic actions.

Safer communications – Quantum Cryptography, what is it?

We have seen that a Quantum Computer has the power to crack our state of the art current encryption pillars, but if it has the power to crack it, it has the power to create something better.

The problem of what we now can reach as methods of encrypting messages is that all of them depend on pre established keys, either unique or combinations of public and private keys and those keys are difficult to crack but only because of the methodology within reach of standard computers.

Now, Quantum Encryption cleverly exploits the initial problem of dealing with particles that behave like a wave until there is an attempt to observe them when they immediately behave like a particle.

Photons, if paired or entangled using the appropriate language, will each maintain their relative spin regardless of space or time, so four pairs of photons that transport each a status “01” conveyed by their spin, creating, therefore, a qubyte that is represented by “01010101” or any other combination for that matter, will maintain this “information” unaltered for as long as they are not “excited” and any attempt to read the code will immediately destroy it.

This bears the power of effectively creating unbreakable, full proof secure messaging.

P.S: This is a guest post published at the request of  Karl Crisostomo of tenfold.com and has reference to our earlier article titled “Section 65B interpretation in the Quantum Computing Scenario”

Naavi

We draw attention of the public on our earlier article on the interim view expressed by a bench of the Supreme Court on January 30, 2018, which was headlined by most news publications as “Courts can rely on electronic records without certificate: SC”

We had commented in the context “Recipe for corruption in Judiciary- Supreme Court judgement in Shafhi Mohammad V State of Himachal Pradesh“.

This was a two bench order on an SLP but it had stated in the order that

“An apprehension was expressed on the question of applicability of conditions under Section 65B(4) of the Evidence Act to the effect that

if a statement was given in evidence, a certificate was required in terms of the said provision from a person occupying a responsible position in relation to operation of the relevant device or the management of relevant activities.

It was submitted that if the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate couldnot be mandatory.

It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronicrecord, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original.

This provision could not be read in derogation of the existing law on admissibility of electronic evidence.”

The Court quoted one judgement of 1985 and an American judgement of 1972, (delivered long before Section 65B was conceived for electronic evidence) which stated “…it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. “

A case was made out  through two other cases to state

 “Scientific and electronic evidence can be a great help to an investigating agency.”

 “new techniques and devices are order of the day”

“threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant.”

Then the judges referred to the Anvar PV Vs P.K. Basheer case as well as the Navjot Sandhu (alias Afsan Guru) case which it over ruled.

The two member bench referred to the Tomasho Bruno (2015) and Ramsingh (1985 judgement) and went on to conclude

“it can be safely held that electronic evidence is admissible and provisions under Sections 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions.”

Proceeding further, the two member bench over ruled the judgement of the three member bench in Basheer Judgement which took into account the recent developments in technology and had examined the question of Section 65B in great length and made the following statements.

“Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject.”

” The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by  person who is in a position to produce such certificate being in control of the said device and not of the opposite party.”

“In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.”

Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.

Now the bench has released its final judgement in the case and a final order has been issued on 3rd April 2018.

We therefore re-visit the judgement on what is stated in the final order, read in conjunction with what was stated in the earlier order of January 30, 2018.

We would like to state that we have no disagreement to the use of Videography by Police through body cameras which was central to the discussions in this case. We are not in disagreement even with the use of  Surveillance, Profiling, use of Artificial intelligence in Policing etc which are opposed to the policy of “Privacy Protection” which are dear to the Supreme Court judges.

But we are in disagreement with the views of the bench as to the conclusions that they have drawn and also to the fact that they have gone against the tradition of not trying to over rule a verdict of the higher court.

We do agree that the Court should exercise discretion when “Justice so justifies” to bend some rules temporarily. This was done in the Sonu @ Amar judgement  for the right cause and we support it. However the judgement in the Shafhi Mohammad Case is boarne out of a wrong interpretation and hence needs to be opposed.

Our opinion on the reasons of why this judgement is bad for the society and is wrong in law is presented below. This is not to show any disrespect on the Court but to engage in an academic debate on a point where we feel that technology related interpretation has gone wrong in this instance and needs to be corrected if necessary.

However, we feel that this being a two member decision relevant to a specific reference cannot create an over riding law against the three member judgement though the Judges seem to think that it should be.

More discussion will follow…

Naavi