By Prof Upendra Baxi
The Indian Evidence Act, 1872, (Act, hereafter) is no stranger to frequent amendments.1 But the Bharatiya Sakshya Bill (BSB) 2023, now offers a code seeking to repeal the Act, modifying two and introducing one entirely new provision. We reiterate that the PSC (Parliamentary Standing Committee) at least ponder why we need Sanhitas when statutory reforms will do equally well, more so when these retain the basic structure of the Act. And what may ever justify disengagement with the frontal critique of the law? 2
The BSB proposes substantial changes in the evidence law pertaining to digital evidence. Already, under the 2,000 amendments, Section 62 defines the term: digital evidence shall be “primary evidence”—which means the document itself that is produced before the Court. However, Section 63 of the Act speaks of secondary evidence that includes copies made from the original, certified copies, oral accounts of the contents of a document, etc. And Section 63(1) now adds the words “computer output” as meaning “any communication device or otherwise stored, recorded or copied in any electronic form”. Such material is now declared “admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible”.
While this is welcome in principle, the PSC ought to consider further details. First, different descriptions of digital evidence abound. For example, while the BSB offers definition of “computer output”, the Information Technology Act (ITA, hereafter) offers more comprehensive definitions of “computer”, “computer network”, “computer system”, “data”, “electronic form” and “electronic record”. Why did the first authors of the BSB feel it necessary to invent a new category and how it may relate to ITA in case of conflict should be more carefully considered by the PSC.
Second, in Anvar v. Basheer [(2014) 10 SCC 473. SCC 801], the Supreme Court held that Section 65B is a complete code for the admissibility of electronic evidence and shall not be affected by other provisions of the Act. Further, “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Act”.
Yet, it has been well suggested that “there is a need to formulate other safeguards as well—to ensure that privacy and confidentiality of the information contained in electronic records is protected.” Indeed, Justice Rohinton Nariman had in his judgment referred to the report submitted by a five-judge committee in November 2018 which had framed draft rules dealing with the preservation, retrieval and authentication of electronic records. I agree that “multiple steps are still needed to ensure the safety, retention and confidentiality of information obtained in the form of electronic evidence”.3
Third, the question of admissibility and relevancy—for example, the copious citing of WhatsApp messages in the electronic FIR as a basis for arrest and long pre-trial detention of the suspect—should lead the JPC to balance crime control considerations with fairness to the suspect/accused in the administration of justice, lest minimal human rights advertence in the making and unmaking of evidence law may be endangered.
Fourth, in so doing, the present normative trend of the Supreme Court of India (SCI) must be fully borne in view. The SCI has already agreed only last week to fully hear the question whether the bail requirement asking an accused the “Google Pin” is violative of fundamental right to privacy. And the SCI observations (on October 3, 2023) holding that a copy of written grounds of arrest must be furnished to the arrestee in a money laundering case also made the further observation that the enforcement agency has to “to be transparent, above-board” and “conform to pristine standards of fairness and probity and not be vindictive in its stand”. These requirements obviously must guide the PSC in further consideration of BSB.
It must also consider whether neuroscientific techniques like narcoanalysis, BEAP (Brain Electrical Activation Profile) or “brain mapping” and polygraph tests as a process of extracting confessions and then using them against the maker are violative of Sections 24, 25 and 26 of the Act. Selvi v Karnataka [AIR 2010 SC 1974] declared recourse to such techniques as constitutionally invalid. The right against self-incrimination is a constitutional right guaranteed by Article 20(3); the PSC ought to address considerable evidence regarding the unreliability of these tests and often the lasting harm to suspects and interrupt business as usual paradigm of policing and security maintenance cultures.4
The law on confessions has always been contentious in many aspects since the beginning of the Act. We look only at the continuation of Section 24 of the Act which provides that any “confession made by an accused person if caused by inducement, threat, or promise” is irrelevant.
The two provisos of Sections 28-29 of the Act make “relevant” certain types of confessions. Under the first proviso, a confession can become relevant if the inducement, threat, coercion or promise has, in the opinion of the court, been fully removed. Such a removal can only take place after the confession has been made in the first place. The proviso does not speak at all to their source and effectiveness, and the time, of the removal. The best that could be said in its support is that the entire matter is left to judicial interpretation. A small consolation when we shed so many tears even after 75 years of Independence on judicial workload and arrears! And, indeed, “the gold-standard” for the accused to be “compelled” to incriminate is adjudged by proof of “downright custodial torture” and “nothing else will amount to violation of article 20(3)”.5
More sinister, at least from the perspective of the suspect, or the accused in a criminal trial, is the second proviso which says that “a confession if otherwise relevant, does not become irrelevant merely because it was (i) made under a promise of secrecy; (ii) or is a consequence of a deception practiced on the accused person for obtaining such confession; (iii) or if the accused person was drunk; (iv) or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, (v) or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him.” Such a broad listing, of course, provided the colonial police and prosecutors with very wide discretion. Surely, the breach of promise of secrecy, outright deception, inebriation (strange that one would be in such a state during an investigation), roving answers, or systematic failure to give rights violations betray the conceptions of voluntariness. But even after Independence, and till now, these provisions have been continued despite strong pleas for “decolonization”, efficiency, and justice in the new code! Certainly, it is arguable to suggest a division of labour which moves the right against self-incrimination from the police station to the courtroom upon a retraction of the confession. But even so, may it still justify the BSB continuation?
Even today, as Professor Paul Roberts says: “Questioning in the police station typically occurs in a tense atmosphere and under conditions of relatively low visibility limiting opportunities for external scrutiny.” Besides, “just being suspected or accused may induce guilty feelings, as nearly everybody experiences… Those who genuinely do have something to hide or fear, meanwhile, may be susceptible to confusion and manipulation”. Further, “the scope for generating unreliable confessions is manifest” when we add “the natural tendency of the investigator to manipulate the suspect’s responses and interpret them in a way that confirms his own suspicions”.6 The JPC may well study with some profit the model of British PACE (Police and Criminal Evidence Act, 1984).
The PSC remit may be limited but continuation of so many provisions from the Act in the BSB remains problematic. While such continuation may well facilitate the validation of police investigatory cultures and even preserve old jurisprudence, it may still fall short of due acknowledgement of constitutionalisation of the structures and processes of evidentiary law.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer. This is the last article in a four-part series that looks at the three recent re-codification bills
1 There were many occasions of amendment—for example, 1872, 1887, 1891, 1899, 1919, 1926, 1927, 1934, 1949, 1951, 1953, 1983 and again in 1983, and 2000.
2 Ranbir Samaddar: “Beyond the Frame of Practical Reason: The Indian Evidence Act and Its Performative Life”, Diogenes, 2015, 60(3–4) 58–73 (2015).
3See, Bharat Vasani & Varun Kannan, “Supreme Court on the admissibility of electronic evidence under Section 65B of the Evidence Act” Blog entitled CORPORATE LAW, January 27, 2021. Also see. Payel Chatterjee Sahil Kanuga. “India: For Admissibility of Electronic Records, Certification Is Essential”, https://www.natlawreview.com/
4See, Jinnee Lokaneeta, The Truth Machines: Policing, Violence, and Scientific Interrogations in India (Hyderabad, Orient Longman 2020).
5 Khagesh Gautam, The Right Against Self-Incrimination Under The Indian Constitution (—SJD THESIS—‘Maurer School of Law: Indiana University Digital Repository) Maurer Law Maurer Theses and Dissertations.
6See Paul Roberts, “Confessions” in Roberts & Zuckerman’s Criminal Evidence. (Oxford University Press. Paul Roberts and Adrian Zuckerman (ed), 2022.