WhatsApp status in a court of law

The viability of a WhatsApp chat and other electronic material as a piece of evidence is under scrutiny.

A Delhi court recently ruled that WhatsApp chats cannot be taken as “substantive evidence” and it can at best be used as “a corroborative piece of evidence”. It is not the first time that a court through its observation and order has brought the authenticity of a WhatsApp chat as a piece of substantive evidence under scrutiny. In the past too, on multiple occasions, the viability of a WhatsApp chat and other electronic material as a piece of evidence has been scrutinised.

Threshold for using WhatsApp chat

In July 2024, Justice Subramonium Prasad of the Delhi High Court held that WhatsApp conversations cannot be admitted as evidence without a proper certificate as mandated under the Evidence Act, of 1872.

In July 2020, a three-judge bench of the Supreme Court in a case titled Panditrao Khotkar v. Kailash Kushanrao Gorantyal held that the requirement of a certificate under Section 65B(4) of the Indian Evidence Act, 1872 is a precondition to the admissibility of an electronic record in evidence.

However, the bench also clarified that if the device containing the original information is presented in court along with its owner or authorized user, a 'certificate' is not necessary.”

One of the earliest court judgments on the issue of the admissibility of electronic records can be found in a case titled State (NCT of Delhi) v. Navjot Sandhu. In this case, it was held that electronic records could be admitted even without strict compliance with Section 65B of the Evidence Act if authenticated by a competent witness. However, in another case titled Anvar P.V. vs. P.K. Basheer and others the apex court invoked the legal maxim ‘Generalia specialibus non derogant’ which translates into special law will always prevail over the general law and held section 65B is a complete code and special law, the general law under Section 63 and Section 65 must yield.

Change in Evidence Act to include electronic evidence 

When the Indian Evidence Act was enacted there was no concept of electronic or digital evidence. However, with the advent and advancement of information technology, digital and electronic evidence came to play an important role. Hence, the Evidence Act was accordingly amended to include the concept of electronic evidence and the IT Act of 2000 provided for amendment in the Indian Evidence Act, of 1872. Through the addition of sections 65A and 65B to the Evidence Act new guidelines related to the admissibility of electronic evidence were put in place.

The Information Technology Act, 2000 in Section 2(t) defines an electronic record as, ‘data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.’

Section 3 of the Evidence Act

Section 3 of the Evidence Act corresponding to section 2 of Bharatiya Sakshya Adhiniyam defines evidence as either oral or documentary. These can be further categorized into primary and secondary evidence. While electronic evidence is typically secondary, it becomes admissible as primary evidence if it meets the four conditions under Section 65(B)(2), making it a valid document under Section 65(B)(1).

Section 65B of the Evidence Act 

Section 65B of the erstwhile Evidence Act had provisions related to the admissibility of electronic records. Now, Bhartiya Sakshya Adhiniyam, 2023, which has replaced Evidence Act has corresponding sections, 62 and 63, that talk about the admissibility of electronic records.

Section 62 states that the contents of electronic records may be provided in accordance with the provisions of section 63. It states that any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (shall be deemed to be also a document and admissible as evidence if certain conditions as specified is fulfilled.

Drishti Judiciary in a blog lucidly enumerates the conditions which are:

 # Regular Use and Generation

Electronic records must be produced during a period of regular computer use.

The computer is used for consistent activities under lawful control.

# Information Input

The information must be regularly fed into the device.

Input is done in the ordinary course of regular activities.

# Operational Integrity

The computer must operate properly throughout the material period.

Any operational issues should not affect record accuracy.

# Reproduction Authenticity

Electronic records must accurately reproduce or derive from the original input information.

Section 329 of Bharatiya Nagarik Suraksha Sanhita

Section 329 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) which corresponds to Section 293 of the CrPC (replaced by BNNS) states that any document purporting to be a report under the hand of a government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding may be used as evidence in any inquiry, trial or other proceedings.