After the enactment of Cyber Law, all e documents are recognised in evidence as good as any other document. Indian Evidence Act was also amended in line with it. But It is evident that email as evidence in India has not reached or been used to its full potential just yet. The government and the courts have chosen to ignore the obvious possibilities that email offers as evidence and have elected to stick to the straight and narrow. Further, the amended sections of the Evidence Act are poorly worded and difficult to understand without muddling up their true intent and as a result, are difficult to interpret as well. The evidence in India may be considered not adequate as the courts might find it too difficult to understand due to the lack of competence of judges.
The changes made to the Evidence Act relevant in application to emails are as follows:
(1) Definition of Evidence: The definition of Documentary evidence was expanded to include electronic records.
(2) Definition of Admission: was expanded to include admissions in form of electronic documents.
(3) Addition of S.22-A: It was added to limit the relevance of oral admissions as to the contents of electronic records to when the genuineness of the electronic record is questioned.
(4) Addition of S.65-A and S.65-B: Section 65-A refers to the provisions of S.65-B for the proving of electronic records.
Section 65-B talks about the admissibility of electronic records. The conditions for admissibility of information are as follows:
(1) The computer was regularly used by a person having lawful control over the use of the computer.
(2) The information required or derived was regularly fed into the computer in the ordinary course of the said activities.
(3) The Computer was operating properly, or if not, the defect did not affect the electronic record or the accuracy of the contents.
The information contained in the electronic record reproduces or is derived from such information on a computer in the ordinary course of nature.
The section also goes on to assume that transactions in multiple computers can be considered to be from one computer for the purpose of investigation. Further, the computer output once taken out must be certified by a person occupying a responsible official position in relation to the managing of such electronic evidence.
(1) Section 85-B (a): This sub-section lays down the presumption that a court shall presume that a secure electronic record is secure since the time when it was first secured.
(2) Section 88-A: This is the only section that directly deals with emails as such. It states that the presumption that exists in the court is that an email first sent by the originator is presumed to be the same as the one that is received. However, the courts will not make any presumptions as to who sent the message.
One major problem that exists with the amended provisions is that there is great emphasis in the substantive provisions on the computer itself and not the data that is retrieved from it. For example, there is only one substantive provision that deals directly with email or other media such as chat which are not stored on the computer of entry of data but on the server. Further, now that torrents have come into being, the data only exists in the internet, not on any specific computer. This shows how technology is moving ahead and law is falling behind.
