Cyber Evidence Archival Center

During the last week, Bengaluru witnessed a disturbing display of lawlessness by a group led by a son of a Congress MLA. The case involved a brawl in a Pub called “Farzi Cafe” in UB City in which another person was beaten to near death by the group.

Similarly there was another incident of VIP misbehaviour of another Congress worker sprinkling petrol and threatening destruction of a BBMP office also in the same week.

While the discussion on the incidents is outside the scope of this website, I would like to only discuss the role of “Digital Evidence” that plays an important part in both these incidents.

In both the incidents, there is video evidence and in one case the offence is an “Attempt to Murder” and in the other case it is “Threatening to commit arson and destruction of Government property”.  Both are very serious offences and requires a fair trial in a Court. The evidence available would therefore be very important.

But there are unconfirmed media reports indicating that since the offenders in both cases relate to the ruling party, the Police are favouring the accused and are unlikely to pursue the case properly. In the process, there will be a possibility of destruction or manipulation of the digital evidence which is in the form of CCTV footages.

The Video in the case of threat to burn BBMP office has already gone viral and is now in the public space. Courts can take cognizance of the incident even if the Police try to suppress it.

But in the incident related to the brawl in the Pub,  there are two videos one from the Farzi Cafe where the brawl first took place and the other from Mallya Hospital where the accused tried to break in perhaps to cause further hurt to the victim. Initial media reports suggest that the Farzi cafe Video has already been tampered with by the Police and will only show the victim slapping the accused and not the earlier first attack by the accused.

If the report is true, it is expected that the case will eventually not get proved in a Court of law and will be dismissed for lack of evidence. Worse still, the victim himself may be punished for attacking a respectable person who is the present accused and provoking him.

The incident highlights the importance of protecting the digital evidence which is extremely useful in such cases with CCTV cameras spread across the city and in most public establishments. Recently, Bangalore Police solved a case of harassment of a lady in the middle of the night only through the CCTV footage that was available.

But if CCTV footages become only tools of manipulation where at the discretion of the Police it would be used in certain cases and in certain other cases it would simply vanish, then the question of accountability for such CCTVs arise.

There is already an argument that installation of CCTV cameras is a threat to the Privacy of Citizens. This will only gets strengthened. The defence that it helps in “Security” falls flat because of the frequent misuse of the CCTV footage by the law enforcement to suit their political objectives.

I therefore request the Bangalore Police to make public the entire unedited version of the Farzi Cafe incident to the public in the interest of transparency in public life. The Court should also direct for such a disclosure.

I believe that Farzi Cafe owners would be having a copy of the video and unless they want to be called for taking sides in the dispute, should go public with the copy of the video in their hands. Since this Video would be relevant not only to the accused but also to the victim as well as other people who would be in the Cafe at the time of the incident, there is a “Public Interest” in the disclosure and Courts can order for the disclosure.

While some body who has the courage to face the wrath of Congress Government in Karnataka can take up the issue as a public interest litigation, the Courts also can take suo moto action if they consider the matter to be of consequence.

If however Farzi Cafe owners have deleted the evidence then they would be liable for prosecution under Section 65 of ITA 2000/8 and Section 204 of IPC for destruction of evidence. If manipulation of evidence has taken place after the Police took charge of the evidence, similar charge can be made on the police personnel also. Probably the Karnataka Human Rights Commission has the jurisdiction to investigate the matter.

It would be interesting to see how the case proceeds from here and what lessons the police and organizations like Farzi Cafe will take from the current incident on handling of CCTV footages which become “Potential Evidence” in criminal cases.

Our discussion would be incomplete without also highlighting why the recent decision on an SLP by the Supreme Court in the case of Shafhi Mohammad  was called by us as an “Recipie for Corruption…” If the order is to be accepted, then the CCTV footage which the Police will produce may be argued as acceptable as evidence without a Section 65B certificate. If the decision in the Basheer case is followed at least there will be one person who will look into the evidence and certify and while doing so will consider if the evidence is trustworthy or not. This important element of check on fraudulent production of digital evidence for admission would be removed if the Safhi Mohammad decision is to be considered as valid. Fortunately this is a two member order on an SLP where as the Basheer judgement is a three member judgement and hence it would prevail.

Naavi

After the Basheer judgement, there has been several discussions on the Section 65B (IEA) certification of electronic evidence for “Admissibility”. I suppose some clarity has dawned on the community with these discussions, though there are some areas which continue to create doubts.

In the recent SLP order issued by Supreme Court in the case of Shafhi Mohammad Vs State of Himachal Pradesh, the two member bench consisting of Adarsh Kumar Goel and Uday Umesh Lalit actually challenged the P.V Anvar Vs P. K Basheer judgement given by a three member bench and created confusion in the judicial circles.

One of the issues discussed in the Shafhi Mohammad case was how an electronic document present in a device not under the control of the producer of the evidence be produced for admissibility. The Court came to a very illogical decision that in such cases, Section 65B certificate itself is not required. We have already stated that the decision has to be ignored since a two member SLP order cannot over ride a three member Judgement.

Our objection to the order was that if at some point of time the presenter of evidence had access to an electronic document and today that document is not available for Section 65B certification, then it is a failure of the person in getting the Section 65B certificate at the time when he had access to it.

Since Section 65B certificate can be provided by any person who has a viewing access to the document, there should be no problem in getting the certificate if people are aware of the provision. Ignorance of law is not an excuse and hence if the original electronic document is no longer available and the earlier copy is not admissible because it is not Section 65B certified, then the evidence should be considered as lost.

Just because “Documentary Electronic Evidence” is lost, it does not mean that justice would be lost. It would be difficult of course but not entirely unthinkable.

For example, if you have just witnessed a murder before your eyes but did not take out your mobile and take a picture, the documentary evidence of murder is lost for ever. It does not mean that you can excuse the evidence itself since every body does not carry a camera around to capture the events happening around.

However, we are not trying to debate why the SLP order said what it said and whether it was out of ignorance or out of a need to challenge other Judicial order or for any other purpose. We have another point emerging out of the situation which we have already discussed but can be recalled again.

In many instances, we donot know if an electronic document before us is an “Evidence” or not. But an intelligent person would know if it is a “Potential Evidence”. For example, when we enter into a business deal, we want a written paper so that if tomorrow there is any dispute, we know what we have agreed upon. The document becomes an evidence if there is a dispute before a judicial authority. Until such time, it is a redundant piece of paper.

In the case of electronic documents, the “Potential Evidence” if any, has to be archived along with a Section 65B Certificate so that if and when it is required later, the electronic document is already bundled with the Certificate at the archival center.

Once such a document is archived, even if the original gets destroyed, the evidence is still admissible. However, no person should deliberately destroy an evidence which is in his hands since it may attract Section 65 or Section 67C of ITA 2008 or Section 204 of IPC if what is being destroyed is an “Evidence” at the time it was destroyed.

There is however the case where we may have an archived electronic document along with Section 65B certificate but the original which was in the hands of a third party (eg ISP/MSP). Though law provides that such a person can be summoned to  produce the evidence, many times this may not be practical or the document might have been removed in the ordinary course of business by the holder who did not know that it was “Evidential Matter”.

It was to accommodate such a situation that Shafhi Mohammad order came to the absurd conclusion  “Let’s do away with the Section 65B certificate itself”.

On the other hand, CEAC (Cyber Evidence Archival Center)  when confronted with the challenge in the E Commerce scenario, thought differently and introduced a service called “Evidence Drop Box”.

Evidence Drop Box is a service provided by CEAC to ensure that “Contingent Evidence” can be submitted for Section 65B certification without any cost and held in “Contingent” condition for a period of 30 days. By the end of this 30 day period if the person decides to use the “Contingent Evidence” as “Evidence”, he may request for a Section 65B certificate and acquire it at the cost specified by CEAC.

The “Contingent Evidence” becomes “Evidence” when the contingency materializes. For example, in an E Commerce transaction, when a purchase has been made on the basis of a product description that has been mentioned on the E Commerce website, the information provided about the product is a “Marketing Information” and is read before the purchase decision is made but is more often not kept on record. If subsequently, a “Dispute” arises and the buyer or the seller is claiming that the product description was not what the product supplied indicates, the “Marketing Information” becomes an “Evidence”. The “Dispute” is therefore is the contingency under which the contingent evidence turns into evidence.

The CEAC-Evidence Drop Box provides an opportunity to the buyer to deposit the evidence before he completes the purchase with no financial stake until the contingency arises.

It will take some time for the market to absorb the utility of this proposition and also some time for CEAC to automate and fine tune the certification process but it will be a boon to E Commerce in India.

Explore it next time when you make any online purchase.

Naavi

Naavi has published a few e-books as detailed here . 

In order to update the e-books a supplementary e-book exclusively on Section 65B titled “Section 65B of Indian Evidence Act clarified” has been published as an “Add-On E Book” and is being provided along with the e-books Cyber Crimes & ITA 2008 and Cyber Laws for Engineers.

Hope readers would find this  useful

Naavi

Viewers would have observed several News paper reports in the last few days with headlines such as 

“Courts can rely on Electronic Records without Certificate: SC” (Deccan herald), (Free Press Journal)

“Party Not In Possession Of Device From Which Electronic Document Is Produced Need Not Produce Sec. 65B Certificate: SC …” (Livelaw.in), 

Supreme Court says certificate not mandatory for making electronic evidence judicially admissible (Firstpost)

SC clears air on electronic records (Telegraph)

The report originated from a PTI report and has been diligently carried by many publications. There is no doubt that this report has created a perception in certain circles that the Supreme Court has issued a judgement that in effect over rules the three member judgement in the case of P V Anvar Vs P.K Basheer.

The perception however is incorrect and it is false and incorrect to state that Section 65B certificate is no longer required for admissibility of electronic documents.

This order of the Supreme Court in a Special Leave Petition (CRL No 2302 of 2017) signed by a two member bench Adarsh Kumar Goel and Uday Umesh Lalit must be seen in the limited context of the SLP.

A two member SLP order cannot be accepted as an over ruling of a three member judgement as has been explained in our earlier article.

It is amusing to see the Court accepting the argument of the Senior advocate Jayant Bhushan who is stated to have said that section 65B of the Evidence Act was a “procedural provision” intended to “supplement the law” by declaring that any information in an electronic record, “is admissible in any proceedings without further proof of the original”.

We must state that Section 65B is part of the Indian Evidence Act in the main and not in any supplementary rule and hence has the same judicial value as any another section of Indian Evidence Act.

The Court itself quoted

“whether a person who wants to take a recourse of alibi in a criminal trial with the help of boarding pass of a flight, where there was no signature and was just a printout from a computer, can that document be not relied by the court for want of such certificate.”

but went ahead to state

“These are the questions, which we need to deliberate,” the bench said, and added that courts cannot afford to deny acceptance of such documents for want of certificate under section 65B.”

The senior counsel suggested that

” the evidence should be accepted by the court and later sent for verification to technical labs to see if it was tampered or not”.

This argument is fallacious and puts the defence in an untenable position as to justify an electronic evidence that might have been totally fabricated.

One report quotes that the bench of Justices A.K. Goel and U.U. Lalit said

“if this were not permitted, it would be denial of justice to the person who is in possession of authentic evidence/witness….Thus, requirement of a certificate under Section 65B(4) is not always mandatory,”

The order indicates that the honourable judges have not properly appreciated the need for Section 65B certificate in the case of Electronic evidences and the harm that it would create to the system of justice.

According to the report, the Court had considered the views of four senior advocates who had been appointed amicus curie to assist in the interpretation of the provision and the result is a disappointing reflection of the understanding of the requirements of Section 65B by the amicus curie.

Mr. Jayant Bhushan,  Ms. Meenakshi Arora,  Ms. Ananya Ghosh,  Mr. Yashank Adhyaru and Ms. Shirin Khajuria, learned counsel, appearing for Union of India have been quoted in the judgement as having assisted the Court.

The order is a recipe for corruption in judiciary where corrupt advocates can collude with fraudulent litigants and produce false evidence and the corrupt judges admitting the evidence and challenge the defense to prove that the electronic evidence is wrong.

The bench appears to have only tried to facilitate production of false evidence and change the onus of proving that it is in admissible on the defense. This is highly dangerous and bad in law.

The earlier provision where a Section 65B certificate was required introduced an intermediary to assist the Court who could be liable for false evidence if the certificate was “Not in good faith” and the content was fraudulently constructed. Now this thin layer of security has vanished. It appears that the Judges did not have the vision to look beyond the air line boarding ticket and thought that if necessary they can summon an airline official to corroborate the evidence.

But they seem to be unaware that electronic evidence may consist of e-mails and websites and in many cases the evidence could have been removed after they have been certified by a 65B certifier and in such cases the credibility of the Certifier was alone the trusted support for the Court. Now the Court seems to accept the electronic evidence as presented and let the adversary prove that it is wrong.

The Court has forgotten that there is no Section 79A certified Digital Evidence Examiner at present and there will never be sufficient number of such organizations in future to forensically examine the “Genuineness” of the document. The Basheer judgement had clearly segregated the “Admissibility” from the “Genuineness” and had indicated how the two should be handled by the Court. The current order has completely ignored this part of the Basheer judgement and has gone on its own line of thinking which is wrong.

If this rule is honoured, falsification of electronic evidence will be a rule and judicial process can be easily frustrated and production of false evidence and false witnesses will proliferate. Honest persons will be left to fight the false evidence presented by dishonest advocates and accepted as admissible by corrupt judges and incur disproportionate cost of litigation.

It is possible to ignore this order since it cannot over rule the larger bench order. But the misperception created by this order and the ignorant media stating it many times over is likely to mislead many judges in lower courts to believe that this is an operative order.

This order is an open challenge by the two member bench on a larger bench decision and has the effect of disrupting the judicial process.

The media blitz is perhaps orchestrated by some vested interests with an intention to slip in some Electronic documents as evidence in their respective cases where Section 65B evidence is not available and cannot be produced now.

Courts have allowed the earlier presented evidence to be resubmitted with Section 65B certificate but in some cases the evidence may be no longer available for certification.

No doubt some genuine parties would have been affected by this. But if so, such cases are because they did not know the law and ignored the need for Section 65B certificate and submitted their evidence earlier.

If law is sought to be changed because these parties and their advocates were ignorant, we will be opening doors for a large scale fraud in presentation of false and manipulated electronic evidence. It should not be done.

I request the Chief Justice of India to take steps to limit the damage caused by this order.

Naavi

On September 18, 2014, the famous P.V.Anvar Vs P.K Basheer judgement was delivered by the three member Supreme Court bench consisting of the then CJI, Kurien Joseph along with Justices R.M. Lodha and Rohinton Fali Nariman in which it was unambiguously declared as follows:

“Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B.”

“The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:”

“Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A – opinion of examiner of electronic evidence.”

“The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”

“the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so.”

The judgement in the Basheer case clarified the law as it existed since 17th October 2000 and was not a new law. It was unfortunate that though Thiru D. Arul Raj a magistrate of the Chennai AMM court had correctly interpreted Section 65B way back in 2004, other judges of even higher Courts including in the case of Navjot Sandhu (alias Afsan Guru), were unable to understand and interpret the Section 65B of Indian Evidence Act properly. Basheer case judgement was therefore a milestone in the interpretation of Section 65B as it stands today.

It is therefore surprising that in the case Shafhi Mohammad vs State of Himachal Pradesh SLP (Crl) no 9431/2011 and SLP (crl) No (S) 9631-9634/2012, the Supreme Court bench of two judges namely Justices Adarsh Kumar Goel and Uday Umesh Lalit has passed an order date January 30, 2018 which apparently not in agreement with the Basheer Judgement.

Earlier there was another judgement Sonu@Amar Vs State of Haryana which was instantly interpreted as rejecting the Basheer judgement. But actually this was a very measured judgement in which the Judge had acknowledged that it was a special circumstance in which he was rejecting the appeal which sought relief on the ground that an earlier completed trial and conviction should be reviewed because the electronic evidence was not certified under Section 65B. He stated in no unclear terms that Basheer judgement is effective as on the date but it would not be practical to review all completed judgements and hence would not agree for the review.

Shahfi Mohammad order

The current case of Shahfi Mohammad should be also looked at in the context of how the two judge bench justifies a rejection of an earlier three member bench and whether there are any “Exceptional circumstances” for the same. Otherwise, it is difficult to see how a smaller bench is over ruling the larger bench.

Let’s however analyze what the Court has stated in this case.

Para 12 of the order states:

“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.”

We must first note that this is an observation on a SLP and does not constitute a law overturning the Basheer judgement. Hence the position as stated in the Basheer judgement remains as the precedent as of date.

Being an order on an SLP, the order should be considered as an observation applicable for the specific context and is not a precedent set.

In this case the question that arose was whether the videography of the scene of crime captured during investigation as a part of Standard operating Procedure could be used as evidence. In the process there was a misunderstanding about how the admissibility has to be proved and who has to issue a Section 65B certificate.

My views on “Who can provide a Section 65B Certificate” been explained earlier and going through the explanation given earlier, it is clear that  the reference in this case itself was misplaced and the order could have been disposed off differently if the Court had rightly recognized the essence of the section which it did not.

The Court has worked under the premise that it would be procedurally difficult if the person who did the videography, (which would be the law enforcement person in the case of body cameras) is to be considered as the person who has to provide the Section 65B certificate. If this view is taken, then there would certainly be operational issues. In order to avoid this, the Court went ahead and declared that the Basheer case judgement was to be ignored and Afsan Guru case judgement has to be recognized.

It went ahead to state

“If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65B(4). ” 

“Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act. Primary evidence is the document produced before Court and the expression “document” is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. “

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 a
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.”

The reason given out by the bench that we should not make it difficult for law enforcement to produce the electronic evidence captured with the body cameras by procedurally putting them in a spot that only the person who is the lawful owner of the body camera should provide the certificate is acceptable.

But we disagree with the Court’s resolution of the problem by invoking Sections 63 and 65 and bringing in the discussion of the primary and secondary evidence.

This was not necessary since Section 65B does not place the restrictions which the Court believed that existed.

Section 65B clearly stats that it is not necessary to produce the “Original” electronic document that is the “Evidence”, to be admissible. It is sufficient to produce the “Computer Output” in its place.

The “Original” document is a “Stream of binary data” when it was first created in a device used for creating the “Original” electronic document that is the subject matter of admissibility as evidence.

It is always the “Secondary rendition” of an electronic document that is made available to the Court as evidence in the form of “Computer Output” as defined in Section 65B. The “Computer Output” is produced by the person who views the “Original Stream of Binary Data” and makes a copy either on another media or as a print out. (In the instant case since the document is a video, it is more appropriate to consider an electronic copy).

The person who makes this electronic copy as  a “Computer Output” is the person who has to provide a Section 65B certificate stating where he saw the original version of the document, what device he used to view it and how he converted it into a copy as produced.

This person could be the video operator back in the Police control room to whom the video recordings are deposited by the field personnel and not necessarily the field personnel himself.

If we accept this interpretation of Section 65B being a certification of the computer output and not certification of the original binary stream, the Court would have realized that the apparent issue referred to it was not a matter of concern at all in developing a standard operating procedure.

The field personnel may deposit the first container of the electronic document (which contains is the Original stream of data) like depositing any hardware or article collected from the crime scene with a certificate. At best each day when they submit the “Memory Card or  Tape”, they may record the “hash value” of the document.

The deposit letter may state, “I deposit herewith a tape marked ……. with hash value under SHA-256 alogorithm of ……” and carry his signature.

If the person who is depositing an electronic document does not want to deposit the whole container but only a document which is part of the data contained there in, then he has to make a copy of the document into another media device with a  hash which needs to carry a Sec 65B certificate. This process can be automated so that as soon as the field operative returns to the lab, he connects his equipment to a storage device which downloads the data, calculates the hash value and incorporates the Section 65B clauses and obtains the digital signature of the person before archiving the deposit.

Most disk cloning hardware has this facility of making a copy along with a hash and a certificate slip that can be signed.

Any subsequent retrieval of the deposit can be made by the back room person who can provide his Section 65B certificate starting from what he saw in the archival computer. (As suggested by the concept of contemporaneous certification by the  High Court of Madhya Pradesh at Jabalpur, S.Tiwari Vs Arjun Ajay Singh in an order dated 17th January 2017, regarding E.P. no 01/2014).

I therefore consider that the objective of the order on SLP was fine but the order itself was incorrect.

I am sure that many who think that the Court can do no wrong may object to my view and say irrespective of what is my opinion, it is the opinion of the Supreme Court which matters. I agree. But any order even from the Supreme Court is valid only until it is over turned by a superior court or the bench.

The subject order is an order on an SLP from a 2 member bench against an earlier judgement by a three member bench. Hence its validity is restricted to the specific context and I urge everybody including the Supreme Court to re consider the order because it is likely to be mis-interpreted by many other lower courts in future.

Further, when an electronic document is in the custody of either the respondent or with an intermediary, there is provision for demanding presentation of the document and hence the question of a required electronic evidence being contained in a device not under the control of the presenter does not arise unless the person who is in possession of the original recording refuses to cooperate with the Court.

Since the procedure for allowing the electronic document to be lead in evidence is simple and only requires an access to be provided to the document for certification to an independent trusted party, there should be no objection by the holder of the evidence to provide the evidence.

In some cases because the Police try to demand that the entire hard disk or the computer has to be seized instead of simply capturing the piece of document that is an evidence, the holder of the document may hesitate to deposit the device or participate in the process of providing the evidence.

If the Standard operating procedure recognizes that for provision of an electronic document (which is a stream of binary data), it is not necessary to seize and produce the entire hard disk, then the procedure for getting such documents from the person who is holding it would be easy.

If however the document does not exist as claimed one party, nothing can be done to produce it. In such cases, the presenter of the document cannot be allowed to present any copy that he claims to be the correct electronic copy to the Court and claim that he is not under an obligation to provide a section 65B certified copy as per the SLP order, it will enable fraudulent electronic documents to be produced in the Court.

The bench which has given this order has not recognised this risk and hence the order should be rescinded at the earliest.

P.S: 

My view above is contrary to what the head line of a corresponding article in livelaw.in suggests. The article is titled “Party Not In Possession Of Device From Which Electronic Document Is Produced Need Not Produce Sec. 65B Certificate: SC [Read Order]…”

I request the readers to consider the view point mentioned here before jumping into any conclusions.

I welcome comments and would be happy to elaborate further if required.

Naavi

Also Refer:

Special Leave Petition in Indian Judicial System

HCs can hear petition even after an SLP is dismissed

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 as amended 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 when a original memory card or hard disk is presented before the Court”

is an emphatic yes. 

In such cases, 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 looking glass called a computer with appropriate hardware and software, provides some human experience such as a text, a sound 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, besides the header information that precedes the binary representation of the evidentiary content.

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 a 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 to be sorted out.

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 then say that the onus of providing the Section 65B certificate shifts from the person producing the memory card to the Court itself.

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 part that I did not agree with 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. But no such surface actually exist. 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.  (Hypnotic age regression). 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.

In an earlier article, I have 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 argued 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. Such a certifier can be a Section 79A certified agency if available or other persons on whom the Court reposes confidence.”

Naavi

Today, CNN IBN News carried a report on sale of fake goods on E Commerce platforms at heavy discounts. E Commerce platforms such as Flipkart, Amazon, Snapdeal and ShopClues were highlighted as platforms in which fake sellers are selling sports goods such as Footballs. The presentation of the program was clearly to blame the online platforms as instruments of violation of intellectual property rights.

The program was led by one of the “Brand Protecting service” companies. During the program, it was stated that many test purchases were made and fake footballs in a well known brand name were recovered by conducting raids on stockists at Meerut.

There was one firm voice in the panel of speakers which was from the CEO of mouthshut.com which was drowned by the anchor who was not interested in any view other than what she had set to hear. She was one of the new breed of inexperienced but arrogant journalists who invite specialists as guests but think that the anchor knows more than anybody else.

What this CEO was trying to make out was that the problem of “Fake Goods” was a problem which also applies to offline market places and the program should not appear to project online market places as the villains. I do agree with this view which was not properly projected by the anchor.

At the same time, I also agree that the online market places should exercise better due diligence in selection of merchants and also keep advising the prospective buyers to look out for fake buyers and report it to them.

Most online market places offer “Return” options with no questions asked and hence dissatisfied customers have a remedy to tackle “Quality” issues. Some online market places run “Rating of Dealers” and “Product Reviews” which try to provide information to the buyers.

Finally, coming to the legal issues,

I believe that the present laws under Section 79 of ITA 2000/8 are good enough to bring “Negligent” market places to book and make them responsible for selling of spurious goods. But the argument and suggestions should be on the basis of “What Due Diligence” is required and whether Flipkart of Amazon are following the best practices. There is certainly no reason for new laws to be framed just to tackle E Commerce issues. 

The marketing platforms should look at their systems on how to ensure that bad dealers are identified and eliminated without discouraging small traders without an offline brand image also using the online platforms as instruments of marketing their products.

There are many success stories of unknown individuals harnessing the global marketing opportunities provided by the Flipkarts and Amazons and this should not be discouraged.

I feel that some of the products sold by small traders are as good as branded items and the brand owners may be making unfair trading profit which should be discouraged.

For this purpose, every online platform should offer their small unknown dealers to sell goods under “Unbranded” category and where possible under a “Verified” tag where the platform takes some responsibility to set quality parameters and test the products before they tag them. There could be different rating systems that can be tagged along so that the buyer knows from whom the product is being delivered and serviced before making the buying decision.

Since there are lakhs of products being sold, it may not be practical for the market place to provide such verification tag to all the products but an attempt can be done in this direction with the help of consumers and consumer organizations. There are many individuals who voluntarily test products and put out YouTube videos. The online platforms can tag the product reviews to such online reviews and incetivize feedback on products from genuine customers.

In fact, mouthshut.com itself is a platform which many online buyers check before making a purchase. May be there could be more of such online review posting mechanisms so that they provide unbiased views on a product sold by a market place and donot become platforms that can be compromised by the product sellers.

The effort therefore should be to have more “Consumer Awareness” and “Consumer Empowerment options” supplemented by a robust grievance redressal mechanism.

The Consumer awareness option will work if used before a purchase. In case the buyer has  problems after the purchase, there should be a proper grievance redressal mechanisms other than the “Free Return” option if required. Such options should be only by ODR mechanism (Online dispute resolution mechanism). The Consumers who really have a problem that has to be resolved  beyond the “Return” option need to ensure that there is proper “Evidence” of what they bought in. It is in this context that they need to explore the use of services like “CEAC-EDB”. (Evidence Drop Box Service of CEAC.IN)

Unfortunately the program on CNN IBN did not have a single word on what can be done by the online market places to improve the consumer interest.

The Government of India as I understand has issued some instructions on product presentation which will come into effect in the next few months which include guidance on what information needs to be presented as a product label.

Additionally, all “Branded Product Suppliers” who are concerned about the online market places being misused should provide an online reporting system where consumers can report “Suspected Fake Product” sold on any platform so that they can respond quickly and stop the sales quickly.

In a bid to promote this culture, a free,  single window service would be provided from CEAC-EDB that if any consumer reports a “Suspected Fake Product sold on an E Commerce Website”,  CEAC will forward the report to the concerned Brand owner…

-provided the brand owner registers his interest to receive such reports from consumers.

(I invite the brand owners to first send an designated e-mail through which CEAC can deposit the Suspected Fake Product Report. If they donot respond and provide a contact e-mail, it will be difficult for CEAC-EDB to continue this offer.)

Once a report on a suspected fake product report is received by CEAC from a consumer, the consumer would be asked to provide supporting information before it is registered and action initiated. Full process for this would be developed in due course and would be posted on CEAC website and also informed to the complainant through e-mail.

The fact that a “Suspected Fake Product Report” was sent to the brand owner would be kept on record and if the brand owner does not reply and take counter action, it may be deemed as “Lack of Due Diligence” by the brand owner and demonstration of “Forbearance” in any trade mark related disputes that may follow.

May be more is required to be done in this direction rather than media simply projecting that the E Commerce websites are the villains who engage in “Fake Product Marketing”.

If the online platform adopts meaningful due diligence and the consumer is properly empowered with pre-sale information and post sale service, then E Commerce the problem of fake goods sale can be effectively tackled.

Naavi