If you are threatened or abused on the telephone, and you record the conversation, what is its evidentiary value in court? Electronic records are documentary evidence because they are sourced from electronic devices. For instance, in the case of WhatsApp chats, the data is stored in mobile phones in an encrypted mode. Call recordings would also lie in audio files on the mobile instrument. This will need to be converted into a readable format as evidence through print outs of the messages or transcripts of the conversations, and transferred on to a compact disc or pen drive. The nature of the evidence thus changes in form when it is copied or printed from a mobile phone or a laptop. The process of transferring or copying may result in changes that may affect the authenticity of the electronic record.
Section 2(1)(t) of the Information Technology (IT) Act, 2000, defines ‘electronic record’ as data, images, sound, stored, received or sent in an electronic form.Through the IT Act, the Indian Evidence Act was amended by the insertion of Section 65B, which lays down the procedure for the admissibility of electronic records. Under sub section (2), four conditions are stipulated. The drafting of these parameters are so poorly drafted and can give you a migraine! Shorn of legalese, the evidence should have originated from that particular electronic device during the same period and been in regular use and under the control of the lawful user. The information derived should have originated in the ordinary course of work. The electronic device should have been in proper working condition so as to not affect the accuracy of the content. The evidence should be an exact replica of the data on the device.
Under Section 65B(4) of the Evidence Act, a certificate identifying the electronic record, describing the manner of production, furnishing the particulars of the device and signed by a responsible official in relation to the operation of the device, must accompany the evidence. Strangely, the Supreme Court in State Vs Navjot Sandhu, better known as the Parliament Attack case, had observed that there was “no bar to adducing secondary evidence” without this certificate. It had referred to observations of the House of Lords in the case of R Vs Shepard: “The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case.”
This decision was over-ruled in Anvar P.V. Vs P.K. Basheer, in an election related matter. A three judge Bench of the apex court held that “the purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.” The Court went on to clarify that “all these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition and excision without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.”
A common query is whether you need the permission of the other person before recording a conversation. This is why many service providers like banks notify callers that their ‘conversation is being recorded for training purposes’. But with apps that automatically record telephone conversations by default, consent hardly ever arises. Moreover, if you want to record a conversation as evidence, forewarning the person may be counter productive! In the UK, the concept of ‘one party consent’ exists, which allows recording by a party to the conversation, as opposed to interception by a third party. With privacy now a fundamental right in India, such recordings may soon become another grey area, although the Justice Puttaswamy case in the Supreme Court did not settle the issue of admissibility of evidence obtained in a manner that infringes the right to privacy.
A Delhi court recently dealt with a case in which a husband planted a device in the bedroom of his estranged wife to secretly record her telephonic conversation with her friend. The husband had filed a petition for divorce on the ground of cruelty and sought to rely on the recording that he claimed was defamatory. Although the court found the husband’s act to be an invasion of his wife’s right to privacy, as the Puttaswamy case was that privacy was available against the state and non State entities, it held that the evidence was still admissible. It relied on Section 14 of the Family Courts Act, which empowered it to receive, as evidence, any report, statement, document, information on matters that may assist it in adjudication of a dispute. It opined that “the question of admissibility has been defined only under the Indian Evidence Act and there is no way that appreciation of admissibility of evidence can be carried out under the Constitution of India.”
This verdict may well be tested in higher tiers of judicial wisdom. In the process, a clearer interpretation on the admissibility of recorded conversations, obtained without consent, through the prism of privacy, may hopefully emerge.
(The writer is an advocate at the Madras high court, columnist & author)
