Admissibility Of Electronic Records Vis-À-Vis Commercial And Arbitral Proceedings

Sectors have, since the advent of the pandemic, adjusted to digital arenas for work. This notably includes the legal sector. This is a natural and necessary adjustment, given our reliance on digital mediums and given the digital revolution India has undergone in the last decade. The legal sector must adapt to keep up, specifically seeing how much information and evidence is gathered from electronic records nowadays.

When the Indian Evidence Act, 1872 (‘IEA’) was amended, Sections 65A and 65B were inserted which discuss the admissibility of electronic evidence. To reflect changing times, several special laws were enacted – one of which is the Commercial Courts Act, 2015. This article will focus on the admissibility of electronic records vis-à-vis the Commercial Courts Act, 2015 and the Arbitration and Conciliation Act, 1996. To comprehend the admissibility of electronic records, we must first investigate the definition of ‘evidence’.

Definition Of ‘Evidence’

Following the introduction of Sections 65A and 65B in the Indian Evidence Act, 1872, the definition of the ‘evidence’ under the Indian Evidence Act, 1872 was amended to include electronic records. Evidence is generally classified as oral, documentary, primary or secondary evidence.[1]

Oral evidence is statements that are made by witnesses before the court. Documentary evidence is documents that are produced by the witness before the court for inspection. The scope of documentary evidence has been expanded to cover all papers including electronic records produced before the court for review. Primary evidence is the original form of evidence that is authentic and is produced before the court for inspection. Secondary evidence generally means certified copies, copies made from original or compared with original, counterparts of documents as against the parties who did not execute them, and oral accounts of the contents of the document given by someone who has seen it.[2]

Secondary evidence is generally a substitute reproduced from the primary evidence. In toto, primary evidence shall have more evidential value than the former. Further, primary evidence which is an electronic record is produced before the court for inspection, it is not required to fulfil the conditions of Section 65B of the Indian Evidence Act, 1872. Whereas, when secondary evidence is reproduced or copied from the source of the electronic record, it is necessary to comply with the required conditions for the admissibility of such data to be produced before the court for inspection.

At Which Stage Should The Certification For Electronic Records Be Furnished Before A Court?

It is pertinent to note here that Section 65B of the Indian Evidence Act, 1872 does not speak at which stage such a certificate ought to be produced by the witness.

In Anvar P.V. v. P.K. Basheer[3] and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors.[4] the Apex Court held that a secondary form of an electronic record can only be admissible if it complies with the requirements of Section 65B.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors.[5], the Apex Court observed that the certificate may also be produced at a later stage depending on its facts and circumstances. It is for the court to decide whether to consider such a certificate at a later stage.

The Court further observed that in criminal cases, it can be produced at any stage during the trial as long as no prejudice shall be caused to either of the parties.

It is also important to highlight herein that as per the provision of Section 311 of the Code of Criminal Procedure, 1973, it is permissible for the court to order the production of such certificate if needed to make a decision on the case.

Applicability Of Section 65B Of The IEA Vis-À-Vis Arbitration Proceedings

Arbitration is a speedy mechanism that is quasi-judicial in nature and was introduced for the settlement of disputes between the parties outside the court. In general, this is an arrangement agreed upon by both the parties concerned if they wish to engage a third-party i.e., an arbitrator to settle any disputes between the parties concerned. The scope of courts is limited in arbitration proceedings. The award passed by the arbitrator is akin to a decree passed by the court.

According to Section 1 of the Indian Evidence Act, 1872 it is apparent that the provisions of the Evidence Act, 1872 do not apply to the proceedings before the arbitrator. As mentioned above, it is mandatory to fulfil the requirements of Section 65B of IEA for admissibility of the information contained in the electronic records when presented in court; there has been doubt as to whether this is also applicable to arbitration proceedings.

The Court was silent on this, due to which doubt had persisted in view of the provisions encapsulated under Section 1 of the Indian Evidence Act, 1872 – which bars its applicability to arbitration proceedings.

However, the Delhi High Court in Millennium School v. Pawan Dawar [6], recently cleared the air and held that Section 65B of the Indian Evidence Act, 1872 does not apply to the arbitration proceedings.

Applicability Of Section 65B Of The IEA Vis-À-Vis Commercial Proceedings Before Commercial Court

Due to developments in the Indian economy in view of trade and business, it was necessary for the introduction of the Commercial Court Act, 2015 to curb the disputes that arose from commercial transactions. The main objective of this act is to ensure speedy disposal of commercial disputes, which are usually high-stake matters. Several amendments were carried out to the Civil Procedure Code, 1908 in the Commercial Courts Act, 2015.

The amendment to the Commercial Courts Act, 2015 had substituted the provisions encapsulated under Order XI of the Civil Procedure Code, 1908 by introducing Order XI Rule 6 applicable to proceedings under the Commercial Courts Act, 2015. This relates to the production of electronic records and how such electronic records ought to be produced for inspection before the Commercial Court.

The substituted Order XI Rule 6 applicable to the Commercial Courts Act, 2015 is as follows:

a) In case of disclosures and inspection of Electronic Records (as defined in the Information Technology Act, 2000 (21 of 2000)), furnishing of printouts shall be sufficient compliance with the above provisions.

b) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of electronic records may be furnished in electronic form either in addition to or in place of printouts.

c) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify ––

• the parties to such electronic record;
• the manner in which such electronic record was produced and by whom;
• the dates and time of preparation or storage or issuance or receipt of each such electronic record;
• the source of such electronic record and date and time when the electronic record was printed;
• in case of email ids, details of ownership, custody and access to such email ids;
• in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
• deponent’s knowledge of contents and correctness of contents;
• whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
• that the printout or copy furnished was taken from the original computer or computer resource.

d) The parties relying on printouts or copies in electronic form, of any electronic records, shall not be required to give inspection of electronic records, provided a declaration is made by such party that each such copy, which has been produced, has been made from the original electronic record.

e) The Court may give directions for the admissibility of Electronic Records at any stage of the proceedings.

f) Any party may seek directions from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs before admission of such electronic record.[7]

Under the substituted Order XI Rule 6 applicable to the Commercial Courts Act, 2015, it is required for the witness to give a declaration in detail regarding the electronic record that is being produced before the court for inspection. Even though a separate provision was introduced for the admissibility of electronic records in the Commercial Courts Act, 2015, most commercial courts across multiple jurisdictions are following the practice of admitting such electronic records when the witness complies with the requirements of the provision encapsulated under Section 65B of the Indian Evidence Act, 1872.

Whereas, in a few commercial courts in Bangalore and Delhi, the practice is to comply with both i.e., declaration on oath as per Order XI Rule 6(3) applicable to the Commercial Courts Act, 2015 as well as provision of a certificate under Section 65B of the Indian Evidence Act, 1872.

As emphasised earlier, it is mandatory to fulfil the requirements encapsulated under Section 65B of the Indian Evidence Act, 1872 for the admissibility of such electronic records. However, the Apex Court is silent on its applicability to the Commercial Courts Act, 2015.

The Way Forward

The Hon’ble Delhi High Court accorded clarity on the applicability of Section 65B of the Indian Evidence Act, 1872 in the arbitration proceedings. It was clarified that in view of Section 1 of the Indian Evidence Act, 1872, the provision under Section 65B of the Indian Evidence Act, 1872 does not apply to the arbitration proceedings. Hence, there is no need to file a certificate under Section 65B of the Indian Evidence Act, 1872 during arbitration proceedings.

In view of the above discussion, it is also evident that the legal precedents are silent on the applicability of the provisions under Section 65B of the IEA in proceedings before a Commercial Court even though there is a specific provision encapsulated under the Commercial Courts Act, 2015 for admissibility of the electronic record. Since the introduction of the Commercial Courts Act, 2015, this ambiguity has still not been resolved. Having said that, the current position of law is that since proceedings before any Commercial Court are judicial proceedings, the IEA shall apply to those proceedings in accordance with Section 1 of the Indian Evidence Act, 1872.

Therefore, seeing how much it varies across courts and regional precedents, it is strongly advisable to file a certificate under Section 65B of the IEA in the proceedings before a commercial court. In addition to the requirement of the certificate under Section 65B of the Commercial Court Act, 2015, it is also recommended to comply with the requirements under Order XI Rule 6 for a declaration on oath to be given in writing for the admissibility of electronic records.

As such, in proceedings before a commercial court for admissibility of electronic records, both the certificate under Section 65B of the IEA and the declaration on oath under Order XI Rule 6 of the Commercial Court Act, 2015 ought to be submitted to avoid objections or arguments regarding the admissibility of such electronic records.

• [1] Indian Evidence Act, 1872 § 3, No. 1, Acts of Parliament, 1949 (India)
• [2] Indian Evidence Act, 1872 § 59-63, No. 1, Acts of Parliament, 1949 (India)
• [3] Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180.
• [4]  Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors., (2020) 7 SSC 1.
• [5] Id.
• [6] Millennium School v. Pawan Dawar, 2022 SSC OnLine Del 1390.
• [7] Commercial Courts Act, 2015, Order XI Rule 6, No. 4, Acts of Parliament, 1949 (India).

Contributed by Gaurav Singh Gaur, Senior Associate & Ch. Harika Dutt, Associate