The case of Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal* in the Indian Supreme Court

Some observations

 

By Stephen Mason, co-author of Mason and Seng Electronic Evidence and Electronic Signatures, 5th edn published 1 August 2021 and available to download in PDF

Part of this case deals with video evidence. The members of the court considered the provisions of s65A and s65B of the India Evidence Act in the context of evidence in electronic form.

Ramasubramanian, J kindly referred to the article I wrote: Electronic evidence and the meaning of ‘original’, Amicus Curiae The Journal of the Society for Advanced Legal Studies, Issue 79, Autumn, 2009, 26 – 28, available at

Ramasubramanian, J covered some of this topic in his judgment, but seemed to be unaware of the scholarship on this topic, presently set out in Chapter 5 ‘The presumption that computers are ‘reliable’’ in Stephen Mason and Daniel Seng, editors,  Electronic Evidence and Electronic Signatures (5th edn, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2021). Open Access PDF version in the Humanities Digital Library.

This topic has been covered in Electronic Evidence since the second edition of 2010. The first 3 editions had a chapter on India, written by Manisha T. Karia, Advocate-on-Record in the Supreme Court of India, New Delhi and Tejas D. Karia, Partner with Amarchand & Mangaldas & Suresh A. Shroff & Co, Advocates & Solicitors in New Delhi, and the first edition was also reprinted in India.

It might be considered to be useful to set out the provisions of s65A and s65B in full, below.

I have highlighted sections that call for comment, especially in the light of the content of Chapter 5 (text in red) and Chapter 10 (text in blue) in Electronic Evidence and Electronic Signatures.

65A. Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of section 65B.

65B. Admissibility of electronic records.—

(1) Notwithstanding anything contained in this 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

As discussed in Chapter 5 of Electronic Evidence and Electronic Signatures, not a single judge or any item of legislation has attempted to define what operating properly actually means. On this precise point, see the following (also noted below) in particular:

Peter Bernard Ladkin, Bev Littlewood, Harold Thimbleby and Martyn Thomas CBE, The Law Commission presumption concerning the dependability of computer evidence, 17 Digital Evidence and Electronic Signature Law Review (2020) 1 – 14

Peter Bernard Ladkin, Robustness of software, 17 Digital Evidence and Electronic Signature Law Review (2020) 15 – 24

A major point has been missed: This is the presumption that computers are reliable, as asserted by the Law Commission in 1997. This is inaccurate, as noted in Chapter 5 of Electronic Evidence and Electronic Signatures, yet appears to be the implied thrust of the judgment by Ramasubramanian, J.

Given the significance of the Post Office Horizon scandal in England and Wales (in which the presumption had been used for a number of years to prosecute subpostmasters and subpostmistresses), it is suggested that lawyers and judges (also, naturally, professors and lecturers of evidence) should not ignore the commentaries in relation to this particular issue in the following references:

Chapter 5 in Stephen Mason and Daniel Seng, editors, Electronic Evidence and Electronic Signatures (5th edn, 2021) Open Access PDF version in the Humanities Digital Library

Peter Bernard Ladkin, Bev Littlewood, Harold Thimbleby and Martyn Thomas CBE, The Law Commission presumption concerning the dependability of computer evidence, 17 Digital Evidence and Electronic Signature Law Review (2020) 1 – 14

Peter Bernard Ladkin, Robustness of software, 17 Digital Evidence and Electronic Signature Law Review (2020) 15 – 24

Paul Marshall, The harm that judges do – misunderstanding computer evidence: Mr Castleton’s story, 17 Digital Evidence and Electronic Signature Law Review (2020) 25 – 48

James Christie, The Post Office Horizon IT scandal and the presumption of the dependability of computer evidence, 17 Digital Evidence and Electronic Signature Law Review (2020) 49 – 70

The article below was prepared from a report requested by Alex Chalk MP, Parliamentary Under Secretary of State at the Ministry of Justice, who invited Paul Marshall, Barrister, in August 2020 to submit a paper to the Ministry of Justice on suggestions for improving the existing approach to the proof in court proceedings of computer-derived evidence. The paper has been sent by the Ministry of Justice to the Chair of the Civil Rules Committee. It is anticipated that the Ministry will also pass it to the Chair of the Criminal Procedure Rules Committee.

Paul Marshall, James Christie, Peter Bernard Ladkin, Bev Littlewood, Stephen Mason, Martin Newby, Jonathan Rogers, Harold Thimbleby and Martyn Thomas CBE, Recommendations for the probity of computer evidence, 18 Digital Evidence and Electronic Signature Law Review (2021), 18-25.

Draft Convention on Electronic Evidence, for which see article 4 – replicated at para 7.128 in Electronic Evidence and Electronic Signatures

A more recent article is:

Michael Jackson, An approach to the judicial evaluation of evidence from computers and computer systems, 18 Digital Evidence and Electronic Signature Law Review (2021) 50 – 55

Apparently the Law Commission are now considering re-visiting this presumption: Justice in the digital age.

I wrote a paper asking the Law Commission to consider a revision of this presumption, but it was ignored: ‘Electronic evidence: A proposal to reform the presumption of reliability and hearsay’, Computer Law and Security Review, Volume 30 Issue 1 (February 2014), 80 – 84.

For the avoidance of doubt, this issue does not just refer to England and Wales, but other common law countries, including Kenya, for which see:

Isaac Rutenberg, Stephen Kiptinness and Abdulmalik Sugow, Admission of electronic evidence: Contradictions in the Kenyan Evidence Act, 18 Digital Evidence and Electronic Signature Law Review (2021), 35-49

Although the issue of the appropriate witness is an apparently peripheral issue, the issue of who is the appropriate witness to adduce evidence in electronic form is separate from the qualification to assess its trustworthiness and integrity. It will be useful for lawyers and judges to consider Chapter 10 in Electronic Evidence and Electronic Signatures in the future, and establish the appropriate qualifications for a person to offer reliable and competent comments in relation to the technicities of electronic evidence. Just because a person is employed as a plumber (or a manager) in a nuclear power station, this employment does not give them the qualifications to comment on how the software controlling the power station works, or whether it is reliable (whatever ‘reliable’ means).

Herewith calls to educate judges and lawyers:

Editorial in 2010

I published a free syllabus in 2013 when I published the following articles:

Denise H. Wong, Educating for the future: teaching evidence in the technological age, 10 Digital Evidence and Electronic Signature Law Review (2013) 16 – 24

Deveral Capps, Fitting a quart into a pint pot: the legal curriculum and meeting the requirements of practice, 10 Digital Evidence and Electronic Signature Law Review (2013) 23 – 28

Will things change? Those seeking justice deserve to know that members of the legal profession are apprised of the recent developments regarding the presumption of reliability and are taking steps to ensure that there is no repetition of the recent miscarriages of justice.

*Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571

 

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