New Delhi: With the Narcotics Control Bureau (NCB) probing an alleged Bollywood-drug nexus and Delhi Police investigating the northeast Delhi riots, WhatsApp chats of the accused have emerged as key evidence in the cases.
On Wednesday, actors Deepika Padukone, Sara Ali Khan and Shraddha Kapoor were issued summons by the NCB in the drugs probe case. A day earlier, Padukone’s manager Karishma Prakash and a talent management agency’s chief executive officer, Dhurv Chitgopekar, were summoned on the basis of chats exchanged via WhatsApp, allegedly discussing drugs.
According to media reports, these chats were between Padukone and her manager from 2017, in which the words “maal” (presumed to be referring to marijuana) and “hash” were used.
In the national capital, the Delhi Police last week filed a charge sheet in a special court against 15 people for allegedly using WhatsApp groups formed in December 2019 to organise the riots that tore through the city’s northeast district in February.
But, can chats on WhatsApp be cited as evidence in court? What are the legal nuances pertaining to electronic evidence? ThePrint checks the relevant laws and speaks to a Supreme Court advocate to find out.
The evidence: WhatsApp data
The chats being used in the investigations of the two cases mentioned is actually data taken from the suspects’ phones.
WhatsApp does not store any of its users’ chat data — such as messages, images, audio clips or videos — in their servers. All data is stored locally on the device itself. The NCB and Delhi Police had discovered the messages on the devices of those under investigation.
However, WhatsApp does keep records of users’ metadata — such as phone numbers involved in an exchange, timestamps on messages, IP addresses, location and contacts data etc. Government agencies can access this after making an official request for the data from WhatsApp.
The question: Is it admissible in court?
A WhatsApp chat can be used as legal evidence as an “electronic record”.
According to Section 2(1)(t) of the Information Technology Act, 2000, an electronic record is defined as “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche…”
Also, under Section 65(B) of the Indian Evidence Act (IEA), 1872, electronic records have been recognised as admissible evidence. However, there is a technicality as the law categorises electronic records as either primary or secondary evidence, and the court treats these two forms of evidence differently.
The catch: Primary vs secondary electronic evidence
The general rule of law of evidence is that when primary evidence (original document) is available, secondary evidence (reproduction) is not admissible. However, this does not strictly apply to electronic evidence for practical purposes.
For example, large servers or original devices cannot be expected to be brought before the court in each case.
Primary electronic evidence is when an original device, such as a phone or laptop containing the document, is presented in court. Secondary electronic evidence is the ‘output’ of the contents of an electronic record, such as soft copies, print outs, text documents, screenshots, etc.
Secondary electronic evidence must meet certain conditions detailed under Section 65(B)(2) of the IEA to prove it is an accurate representation of the original electronic record and has not been tampered with.
For instance, it says that the information should have been produced by the computer while being used by the “person having lawful control over the use of the computer”. This person should also have been using the computer “for the purposes of any activities regularly carried on” by him. It also says that the computer should be operating properly during the period over which such information is produced. If the computer wasn’t operating properly, then this shouldn’t have affected the electronic record or the accuracy of its contents.
According to Section 65(B)4 of the same Act, a self-declarative certificate must be signed by a person in real-time control of the original device from which such electronic records are retrieved, as a final stamp that the required conditions have been met.
However, the mandatory nature of the certificate has been brought into question during different cases.
Finally, a three-judge bench settled the law while hearing the Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal and Ors case. The bench said a certificate is mandatory but added that such a certificate under Section 65B(4) is “unnecessary” if the original document itself is produced. The court also clarified that if the party is unable to get the certificate despite having explored all options available under law, then the court may excuse the requirement.
Supreme Court advocate and former judge Bharat Chugh told ThePrint that several features of WhatsApp make evidence retrieved from the platform admissible in court.
“In the case of a WhatsApp chat, auto-archiving conversations through designated mail service providers or using the ‘export chat’ option to retrieve the chat as a separate document or an electronic record is just as good as primary evidence and admissible in court when accompanied with its meta data and a certificate under section 65B of the IEA,” he said.
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