TMC VS CPM Morphed Photo Row: A Picture Worth a Thousand Words

Each picture is a story and each story is a part of big picture and the morphed photograph released by the TMC showing Union Minister, Shri Rajnath Singh offering sweets to former CPM Secretary Prakash Karat also indicate some hidden agenda behind the episode. Pictures are powerful and the adage that “a picture is worth a thousand words” is the main drive of various social networking platforms on the internet. People respond to picture, initiate a dialogue and share them.

The morphing of photograph on the internet has become rampant as photographs sharing contain an idea of visual narrative which speaks by itself or initiate transmission. Whatever may be the objective, stalking, defrauding, deceptive, the morphing has assumed an alarming proportion due to the ease with which it can be done and availability of the contents on the internet. The ubiquity of digital photography has changed, what it means to capture photos. No longer do we capture, then post them on Face-book or WhatsApp and leave them to be commented and circulated through the network and thus generating the easy contents for morphing for the cyber criminals.  

In the present case, the original picture showing Shri Rajnath Singh offering sweets to the Prime Minister Shri Narender Modi has been morphed owing to the availability of photograph on the internet media. The complaint was filed by the CPM with the Cyber Cell of Economic Offences Wing of Delhi Police and BJP also files the complaints with Kolkata Police. Upon filing of the complaints, the morphed photo was immediately removed from the websites of TMC.

The biggest challenge is the difficulty of establishing the morphing in such cases and advancement of technology has led to the rampant morphing for ulterior purpose with different objectives. The morphing of photograph is an offence of identity theft U/s 66C of IT Act 2000 which makes use of unique identification picture of any other person as cognizable offence and provides the punishment of imprisonment upto three years. 

An effective remedy for morphing is provided under the amended definition of forgery U/s 463/464 IPC where the only transmission of forged electronic record is a complete offence and for attracting forgery, it is not required to prove that the accused has morphed the photograph and merely connecting the accused with the transmission is sufficient to prove the forgery on the part of accused. Thus, keeping in view the complexity of fabrication in the digital world, the legislature has put the burden on the accused to prove his defence once it is a established that the accused has transmitted the morphed photograph. Thus, in the cases of morphing in the photograph, the accused can be prosecuted U/s 469 of IPC which is also a cognizable offence and more effective and compare to Section 66C of IT Act.

However, otherwise proving the morphing of photograph has its own challenges as if the digital media on which the morphing has been done, is recovered, it can be forensically proved that the morphing has been done. But if the original media is not recovered, it is very difficult to prove morphing from the copy of the morphed photograph. If the morphed photograph itself has been deleted, the prosecution may not be able to prove the morphing at all. Thus, in all the cases where digital photographs or CCTV footage is being filed as an evidence, it involves inherent risk of manipulation and if the copies are filed even alongwith certificate u/s 65B, the inherent risk is not eliminated but instead it get augmented.       

The filing of the copies of digital photographs or CCTV footage alongwith certificate u/s 65B creates a false impression of authenticity of evidence which infact does not exist and generates an error of likelihood of forged evidence to be treated as genuine one. The Section 65B evidence act only allows the admissibility but not authenticity and infact, authenticity is a bigger challenge. In the case of Anvar P.V. Vs P.K. Basheer [MANU/SC/0834/2014] as well as Kundan Singh Vs. The State [MANU/DE/3674/2015], the court has held that the genuineness of the secondary electronic documents has to be looked into by the court upon its admissibility U/s 65B.

Can the accused prove the fabrication of the electronic evidence from the secondary copy, the answer is NO. It would be the very difficult to prove the fabrication of secondary electronic evidence even by any forensic examination and thus, it is incumbent upon the prosecution, to get these original evidences forensically examined to be proved in court. The accused can always challenge the probative value of these evidences even through cross examination and the suggestions, if the evidence has not been accompanied with the report of forensic expert. Even otherwise, such secondary electronic evidences alongwith certificate U/s 65B are not admissible if they are not accompanied by the metadata as one of the prerequisite for admissibility of retained data U/s 7 of the IT Act 2000 and further, the original is also required to be maintained by the person producing the secondary copy. In absence of original being maintained, the fabrication of such evidence would become easy leaving out any possibility to verified authenticity or to prove the forgery at any stage and thus, the law requires the original evidence should be preserved.

The IT Act as well as the IPC does not provide the adequate remedy for prosecution of such offences as these offences are bailable. In such cases, an accused clothed with the protection order of the bail may not co-operate with the police and in the absence of the custodial interrogation, the police may not be able to recover the original media or connecting evidences to prove the offence of morphing. So there is an urgent need to amend the IT Act or IPC to enable the investigation agencies to collect the relevant digital evidence for prosecution of offenders in these cases. Infact, no other field does society has direct stake in getting technology right as in policing. With the rapidly changing technology, a future is envisioned so saturated with data and information that the police agencies will requires new ways to investigate, seize and present the evidence in court to prove the offence.

Neeraj Aarora

CISSP, CISA, CFCE, FCMA, CFE