Evidence Law Project

The Concept of Primary

evidence and Secondary
evidence - and its
applicability in the case
of Electronic Documents
Monsoon Semester 2016

Shaishir Divatia - 214077

8-23-2016
Shaishir Divatia Candidate No. 214077

The Concept of Primary evidence and

Secondary evidence - and its applicability in
the Case of Electronic Documents

Table of Contents
1 Introduction ............................................................................................................................. 2
2 The Concept of Primary and Secondary Evidence .................................................................. 3
2.1 The Hearsay Rule ............................................................................................................. 3
2.2 Distinction between Primary and Secondary Evidence ................................................... 3
3 Legal Nature of Electronic Evidence....................................................................................... 4
3.1 Sections 65A and 65B New Evidentiary Rules for Electronic Records ....................... 4
4 Legal Position pre-Anvar v. Basheer ....................................................................................... 5
5 Anvar v. Basheer ..................................................................................................................... 6
6 Is this new position of law completely in the interests of justice? .......................................... 7
6.1 Ambiguity regarding nature of evidence .......................................................................... 7
6.2 Hindrances in for Whistle-blowers .................................................................................. 8
6.3 Conflict between Provisions and the Right against Self-Incrimination ........................... 8
7 Conclusion ............................................................................................................................... 8
Shaishir Divatia Candidate No. 214077

1 Introduction
As governance, commerce, and industry move into the 21st century and onto the digital age, it is
imperative for the law to keep pace with its subject, and progress congruently. Due to the
existence of businesses, transactions, and communications occurring in digital form, both in the
public and private sector, there has been a parallel rise in the number of legal conflicts and
clarifications before the Indian courts that concern electronic evidence. These cases are both of
civil and criminal nature, and the nature and admissibility of evidence put before the court
therein are of utmost importance to their ultimate result. There exist several new challenges
before the courts when addressing electronic evidence its unique character, coupled with its
vulnerability to easy fabrication and falsification, as well as its various new sources (emails,
SMS/MMS, social media, website data, etc.) and their ambiguous status in law.
Until recently, electronic documentary evidence was clubbed together with ordinary
documentary evidence and was to be adduced under Sections 61-65 of the Indian Evidence Act.1
It was subject to the same provisions as physical documents were, and this created scope for
great manipulation and abuse. Equally importantly, as will be discussed further in this essay, it
violated the hearsay rule, which is an essential tenet of evidence law. Thus, to rectify this, and
bridge the generally widening gap between the law and the digital age, the Information
Technology Act of 2000 (hereafter the IT Act) was enacted. This act not only defined
electronic record2, but also amended Section 59 of the Evidence Act3, excluding these
electronic records, much like documents, from the probative force of oral evidence. However,
instead of simply subjecting them to Sections 63 and 654, which expound the conditions for
adducing documents as secondary evidence, the IT Act inserted Sections 65A and 65B5, created
specifically to address the evidentiary rules for electronic records.
Thus, this essay will aim to discuss the overarching concepts of primary and secondary evidence,
with reference to electronic records. It will discuss the status and character of electronic evidence
in the Indian legal system, and the need for special provisions to address it separately from
ordinary documentary evidence. The essay will then explore the courts evolving position on
electronic records and the process for their adduction as evidence over the years, before finally
describing the current position of law, as laid down by the landmark Anvar P.V. v. P.K. Basheer6
judgment. The author will finally seek to critically analyse said judgment, and discuss the gaps
left in the law by the same, despite its many accomplishments.

1
The Indian Evidence Act, 1872.
2
S. 2(1)(t), The Information Technology Act, 2000 - which defines electronic record as data, record or data
generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro
fiche.
3
Supra 1.
4
Ss. 63 & 65, The Indian Evidence Act, 1872.
5
Ss. 65A & 65B, The Indian Evidence Act, 1872.
6
Anvar P.V. v. P.K. Basheer and Ors., (AIR 2015 SC 180).
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2 The Concept of Primary and Secondary Evidence

2.1 The Hearsay Rule
Before understanding the concept of primary and secondary evidence in Indian law, it is essential
to under why there exists a need for such a distinction. The Indian Evidence Act has created this
distinction through its provisions7 in Chapter V of the Act, specifically for documentary (and
now electronic documentary) evidence. It is a traditionally principle of common law that oral
evidence (that is direct) may be employed to prove all forms of facts8. Documentary evidence
alone has been excluded from being adduced by oral evidence in Section 599, and all other facts
may be proved by oral evidence.
The reason for the creation of such a distinction is the Hearsay Rule. Simply explained, the
hearsay rule bars the use of out of court statements to prove a fact from being admitted as
evidence because of the inability of the opposing party to cross-examine the maker of the
statement.10 One of the landmark cases that laid down this principle in common law countries
worldwide was that of R v. Sharp11, where it was described as Any assertion other than one
made by a person while giving oral evidence in the proceedings is inadmissible as evidence of
any fact or opinion asserted12. The reason hearsay evidence is not recognized in common law is
the fact that it is impossible to determine the accuracy and veracity of such evidence, which is
usually done by way of cross-examination. Because the person who made the statement in
question is not present in the trial proceedings, it is impossible to cross-examine him, and
therefore such evidence is excluded from consideration. The hearsay rule in itself is complex and
layered, and there exist several caveats and exceptions, but it is unnecessary to delve into them in
the context of this essay.
What is pertinent to understand for the purpose of this essay, is that whilst the hearsay rule is
relatively direct and straightforward in its application to oral evidence, the same cannot be said
for documentary evidence. The reason oral evidence cannot be used to adduce documentary
facts, is because it would violate this aforementioned rule. Since a particular document is absent,
the veracity and accuracy of the oral evidence regarding the same cannot be verified using the
document, and thus, is hearsay evidence. Therefore, the Indian Evidence Act provides for the use
of primary and secondary evidence to adduce documentary facts and electronic records.

2.2 Distinction between Primary and Secondary Evidence

Primary evidence under the Indian Evidence Act, is what is deemed to be highest form of
evidence, in terms of accuracy and value. With regard to documents and electronic data, primary

7
Chapter V, The Indian Evidence Act, 1872.
8
Bhairav Acharya, Anvar v. Basheer and the New (Old) Law of Electronic Evidence, The Centre for Internet &
Society, http://cis-india.org/internet-governance/blog/anvar-v-basheer-new-old-law-of-electronic-evidence, last seen
on 22/08/2016.
9
S. 59, The Indian Evidence Act, 1872.
10
Hearsay Rule, Legal Information Institute Cornell University Law School,
https://www.law.cornell.edu/wex/hearsay_rule, last seen on 23/08/2016
11
R v. Sharp, [1988] 1 All ER 65.
12
Ibid.
Shaishir Divatia Candidate No. 214077

evidence of the contents of a particular document is the document itself. It is governed by

Section 62 of the Evidence Act, which dictates the nuances of the same.
Secondary evidence, in contrast, is what is presented in the absence of primary evidences, thus
the name. Section 63 defines and governs secondary evidences in Indian Law. It is an inferior
quality of evidence as compared to the former. However, it an essential means of reconciling the
hearsay rule with the often occurring impossibility of securing primary evidences, for there may
exist several situations where the original document or electronic record cannot be produced
before court. Section 65 further clarifies such situations, where secondary evidence be used
instead of primary evidence due to the non-availability of the latter.

3 Legal Nature of Electronic Evidence

Before the year 2000, electronic records were treated akin to documents under law in India, and
were subjected to the same standards as documentary evidence were, under the Indian Evidence
Act. Secondary evidence of these electronic documents was adduced via printed copies of the
same, the authenticity of which was affirmed by a competent signatory. As per Section 65, the
signatory could then be subjected to cross examination to verify the veracity and accuracy of the
documents. This procedure allowed electronic documents to be adduced as secondary evidence,
and also complied with the provisions laid down under Sections 63 and 65 of the Evidence Act.
Thus, the Indian legal system merely adapted the growing complexity of technology to outmoded
provisions established by a 19th century statute. It was therefore inevitable, with the rampant
growth and proliferation of technology, the increasing use of digital mediums to document and
store data, and the inherent complexities of the same, that law needed to evolve to meet the
changing standards of reality. Thus, as mentioned earlier, the parliament introduced the
Information Technology Act of 2000, which made three major changes pertinent to this essay.
First, it defined electronic records as data, record or data generated, image or sound stored,
received or sent in an electronic form or micro film or computer generated micro fiche. Second,
it amended Section 59 of the Evidence Act to exclude electronic data from the ambit of
adduction by oral evidence (reapplication of the hearsay rule discussed in the context of
documents above). And finally, instead of allowing these electronic records to be subject to the
conventional tests of secondary evidence, it inserted two new provisions in the Evidence Act
Sections 65A and 65B, as evidentiary rules for electronic records.

3.1 Sections 65A and 65B New Evidentiary Rules for

Electronic Records
Section 65A of the Evidence Act established the fact that the contents of electronic records may
be adduced using the provisions under 65B, thereby creating a separate procedure for the same
much like Section 61 which performs a similar function for documentary evidence. However, it
is pertinent to note that the use of the word may13 in the drafting of the provision creates an

13
S. 65A, The Indian Evidence Act, 1872. - The contents of electronic records may be proved in accordance with
the provisions of section 65B.
Shaishir Divatia Candidate No. 214077

opportunity, without making it mandatory, which later caused ambiguity and problems in
implementation, as will be later discussed in this essay.
Section 65B is the more substantive provision of the two, as it lays out the special conditions and
procedure to prove electronic records as secondary evidence. Section 65B (2) highlights the
conditions under which a copy of an original electronic record may be adduced. These are, in
brief - (a) at the time of the production of the electronic record, the computer used to create it
must be in regular use by its lawful user (b) the data contained in the electronic record must have
been regularly fed into the computer over the ordinary course of activities; (c) the computer must
operating properly, and if not, such mal-operation must not affect the accuracy and nature of the
information; and, (d) the electronic must be a reproduction of the original information fed into
the computer.
Section 65B (4) is also important to note, for it lays down additional conditions before such
electronic records can be adduced as secondary evidence. It mandates the production of a
certification from a person in a responsible official position in relation to the computer in
question, identifying the electronic record in question, along with a description of the device
used to create it, as well as testifying to adherence of conditions laid down in sub section (2) of
the same provision.

4 Legal Position pre-Anvar v. Basheer

However, it is unfortunate to note that these special provisions (sections 65A and 65B) and the
law created therein have rarely been employed by Indian courts in the past 16 years since their
enactment. What is most disappointing is that the cause of this non-adoption of the provisions
has not always involved a legal position taken by court in the first instance. The sad reality is that
the third-tier courts of the Indian system the lower level judiciary and trial courts where
evidence is discovered, is extremely ignorant and inept with regards to technological changes
and advancements. Trial court judges simply do not possess the technological know-how to
comprehend the changes made by the IT Act, and for this reason, continue to treat electronic
records as documentary evidence. They are able to do this using for several reasons the
reasoning that the use of the word may in Section 65A does not preclude parties from adducing
electronic records as evidence through other provisions, is primary in this case. The courts
therefore continue to bypass Sections 65A and 65B, in favour of the conventional Sections 63
and 65 which govern the adduction of documentary evidence.
This practice seemed unlikely to change, not least because of the deeply entrenched ignorance
and technological ineptitude of Indias lower judiciary, but also ratification of this position of
law by various high courts and the Supreme Court. The defining case in the Supreme Court was
the infamous Parliament Attacks case14 where the division bench dismissed the defences
challenge to the accuracy of certain call data records (CDRs) admitted as evidence by the
prosecution, which were supposed to be reproductions of the original electronic records. This
challenge was made on the basis of the fact that these CDRs did not meet the certification
requirements under Section 65B. However, for reasons that suspected to have taken emotional

14
State (N.C.T of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600.
Shaishir Divatia Candidate No. 214077

considerations into account as much legal reasoning15 (given the high-profile, terrorism character
of the case), the court clarified that that Irrespective of the compliance of the requirements of
Section 65B which is a provision dealing with admissibility of electronic records, there is no bar
to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections
63 & 65. Citing the validity of adducing such evidence under Sections 63 and 65, the court
clarified that Section 65 allows the use of secondary evidence if the original document is such
that it is not easily movable. It was said that It is not in dispute that the information contained in
the call records is stored in huge servers which cannot be easily moved and produced in the
court. Therefore, it was held that that even in the case of non-fulfilment of conditions
prescribed under Section 65B, electronic records could be adduced as documentary evidence
under Sections 63 and 65 of the Evidence Act.
This case raised several doubts and suspicions regarding the integrity of prosecution evidence in
trials related to national security or political importance. The Supreme Court also admitted in its
judgement that the law pertaining to wiretaps and interception of phone calls was violated in
several instances. The IT Act envisaged unique provisions for electronic evidence for exactly this
reason that printed forms of electronic records have a great scope for manipulation and abuse.
The Supreme Court in this instance went beyond the scope of its duties and certified the evidence
itself, without even examining the CDRs against the original electronic records. Thus, it
amounted to adduction of hearsay evidence, which was what the new provisions were created to
avoid in the first place.
This was the prescribed legal position in India until 2014, and several high court judgements also
followed suit in that period. The case of Rakesh Kumar v. State16 is an example of this, where the
Delhi High Court held that that irrespective of compliance with the requirements of Section 65B,
there exists no bar in adducing secondary evidence under the other provisions of the Indian
Evidence Act. This case too, dealt with a challenge on the authenticity of CDRs, which were
used to place an individual in the vicinity of the deceased on the day he was murdered.

5 Anvar v. Basheer
This position of law was finally overturned in 2014, in Anvar v. Basheer17, where the Supreme
Court overruled its previous ruling regarding the admissibility of electronic records as secondary
evidence as made in the Navjot Sandhu18 case. The court held that any electronic record can
only be adduced as evidence in accordance with the procedure prescribed under Section 65B of
the Evidence Act.
The facts of the case in Anvar, revolved around the allegation of corrupt practices in a particular
election, that were to be proved using CDs that contained the certain speeches, songs and
announcements made by the candidate, that were in violation of the laws under the

15
Supra 8.
16
Rakesh Kumar v. State & Ors., (2009) DLT 658.
17
Supra 6.
18
Supra 14.
Shaishir Divatia Candidate No. 214077

Representation of Peoples Act.19 However, these CDs were not produced with the certificate
mandated under Section 65B (4), and thus, could not be adduced into evidence as per that
provision. It was contended that the CDs in question could be proved as evidence through other
provisions (Sections 63 and 65) as held in Navjot Sandhu. However, this contention was rejected
by the Supreme Court, who held that that Sections 65A and 65B were a complete code in
themselves for adduction for secondary electronic evidence, and that non-compliance with their
provisions would lead to inadmissibility of the evidence in question.
The Supreme Court further substantiated this unequivocal return to the special law created using
two explanations. The first was the legal maxim of generalia specialibus non derogant, which
states that special law will always prevail over general law. Using this principle, the court held
that electronic evidence would be wholly and solely governed by the new provisions inserted
specifically for this purpose by the IT Act, and not the conventional provisions used for general
secondary documentary evidence.
The Supreme Court also observed that Section 65B begins with a non-obstante clause, which
means that it overrules all other provisions that contradict or clash with the same in the Indian
Evidence Act. The bench observed, It may be noted that the Section starts with a non obstante
clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained
in an electronic record which is printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer shall be deemed to be a document only if the conditions
mentioned under sub- Section (2) are satisfied, without further proof or production of the
original.

6 Is this new position of law completely in the

interests of justice?
Whilst there is much to celebrate regarding the position taken by the Supreme Court in Anvar v.
Basheer, and the progressive nature of the provisions that it upholds, there is no doubt that such
provisions are still rife with ambiguities and imperfections. There exists not only confusion with
the position of law after Anvar20, but also problems in implementation of the procedure under
Section 65B, which now solely governs secondary electronic evidence.

6.1 Ambiguity regarding nature of evidence

The first of the several questions raised by the Anvar judgment is regarding the nature of
evidence itself. The court drew a problematic distinction between instances where CDs and
printouts are primary evidences, and where CDs and printouts were to be secondary evidences.
The popular understanding entailed that all CDs and printouts would be secondary evidence.
However, the court drew an artificial distinction, stating that if the CDs presented were directly
used for the songs and announcements, then they would be treated as primary evidence.

19
The Representation of Peoples Act, 1951.
20
Supra 6.
Shaishir Divatia Candidate No. 214077

However, if the CDs presented were created using a computer that already stored such
information, then they would become secondary evidence.
The definition under 65B does not create a distinction between CDs, themselves used for
announcements and CDs which were created using information fed into a computer - as both
may be created by a computer. Thus there exists an ambiguity regarding the very nature of
electronic evidence after his judgment.

6.2 Hindrances in for Whistle-blowers

A second problem foreseen by legal scholars after this judgment is the possible impediments to
whistle-blowers who engage in wire-tap leaks to uncover frauds and other means of
governmental abuse of power. These wiretap leaks in the past have played an important role in
unearthing such instances of corruption or illegality, such as the famous 2G spectrum scam by
A.K Raja. These conversations in the past were brought to the attention of the Supreme Court
after being recorded on to CDs. However, with the new provisions under 65B (4) which
necessitate the production of a certificate from an individual in a responsible official position, it
will be immensely difficult for a whistle-blower obtain such a certification without the
government finding out of such an attempted act of whistle-blowing.

6.3 Conflict between Provisions and the Right against Self-

Incrimination
Another similar problem, created by this same requirement of a certificate, is likely to be cause
by conflict between Section 65B (4), and Article 20(3) of the Indian Constitution.21 There exist
questions regarding the admissibility of electronic evidence seized from the computers of the
accused, as a certificate under S.65 (4) B cannot be forcibly taken from him, for he is protected
by the right against self-incrimination as guaranteed to him by the Constitution.

7 Conclusion
In conclusion, the importance of the Anvar judgment cannot be underestimated. The need for law
to evolve with the fast-growing use of technology in all spheres of life is great, and Sections 65A
and 65B contribute to that to a great extent.
However, as observed, the problems in the Anvar judgment as well as the new provisions cannot
be neglected. Section 65B lays down several strict conditions, non-compliance with which may
render extremely important evidence inadmissible. While this beneficial in most cases, there
exist several scenarios where such provisions would impede the complete dissemination of
justice. This can include one-off cyber-crimes, where the perpetrator of the crime did not
regularly feed that particular data into the computer in question, and the same was not used to
regularly store such information. In such an instance, the conditions under 65B (4) will not
complied with.

21
Art. 20(3), the Constitution of India.
Shaishir Divatia Candidate No. 214077

Thus, in order to deal with electronic evidence in the best possible manner, it is essential to re-
examine the provisions drafted in the Evidence Act, as well as evolve and revitalise the lower
judiciary of the Indian legal system, so as to enable trial judges to make better decisions whilst
admitting electronic evidence.