Admissibility of digitized versions of documents in the Court of Law
Contents
21% of overall organizational productivity drops when extreme reliance is placed on paper-based documentation.
Retrieving information when stored in stacks comes as a challenge to 86% of workers, as a result of which 83% choose just to recreate a different version to end the excavation hunt.
Studies also show that SMEs across the globe lose anywhere around USD 5,11,02,554 annually trying to find the document they may be misfiled or mistagged.
There is more.
Paper-based documentation is also highly prone to catastrophic damages and also human errors.
An on-site storage facility might be the solution you need to stack these paper files, but it isn’t the most feasible solution when you need the power to:
- Secure these documents from damages, both natural and consequential.
- Retrieve these files whenever required.
- Have control over the information.
When you have such requirements, a more efficient solution is a Document Management System. One that can assist you in digitizing your corporate assets and automating workflows for a more streamlined business process.
But for businesses today that engage in highly confidential and high-value transactions, a significant concern is the legal admissibility of such electronic documents.
They can happily invest in a DMS for a more productive and efficient workforce. But the question is, will they be admissible in the Court of law once digitized?
To begin with, let us first understand what an electronic record is.
The term “Electronic Record” has been expressly mentioned in the following statutes:
An inclusive definition of the same has been provided in Section 2(t) of the I.T. Act:
“data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche.
Section 3 of the Indian Evidence Act, 1872 defines “Evidence” as:
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) [all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.
In layman’s terms, this is what one can deduce from the above-mentioned two provisions:
- Electronically generated or stored documents, data, records, and images come under the category of Electronic Records.
- When produced in the Court of law, such electronically stored, generated or transmitted documents are deemed as documentary evidence.
From this, it can be inferred that India’s law acknowledges the admissibility of electronic records as evidence in proceedings.
Let’s now go ahead and see what provisions of the law support the same.
Legal provisions regarding the admissibility of electronic records
The Indian Evidence Act
The Indian Evidence Act of 1872 deals with “Documentary Evidence” in chapter 5 of the act. The following are the provisions that deal with the admissibility of Electronic Records per se:
Section 64A and 65B are two major sections in play here. The former was incorporated in the act with the agenda so that the contents of such presented documents stay in compliance with the provisionary requirements of Section 65B.
Documentary evidence thus has to be justified as per the laid down provisions of Section 65B (2) to (5).
Also, such documents are admissible in the Court in the capacity of Documentary Evidence, without an original copy of the same, if an Electronic Certificate is issued by the authorized keeper of such device stating:
- That the condition of the such device was workable at the time of storage of such documents.
- That such device was operated and was under the supervision of an authorized person.
- Accurate description of such electronic medium.
- Details regarding: the working condition of such computer/s and how often such information was fed to the system.
As per Section 65B(4).
In such cases, the Indian Evidence Act of 1872 defines the original evidence as primary evidence, and secondary evidence is any copy or scanned record that is made leveraging the primary evidence.
Even though the provisions of the act were quite clear, the different judgements given by the apex court in the cases of Anvar P.V. Vs. P.K. Basheer and Others and Tomaso Bruno & Anr. Vs. The State of UP created a debate over the topic.
The question at hand, which was under debate due to several overlapping judgements, was: Whether or not submitting an Electronic Certificate is a necessity as per the provisions of the act?
As the pandemic approached and the dependability of the court system over electronic documents and records rose, the Hon’ble Supreme Court of India gave a verdict that eliminated the scope of vagueness and expressly interpreted the provision in question.
Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And ORS [2020 SCC OnLine SC 571]
In the above-mentioned landmark judgement, the apex court reaches the conclusion that presenting an Electronic Certificate as per the requirements of Section 65B(4) is a mandate for the proper admissibility of such evidence in the Court.
The bench further contended that in the absence of such a certificate, one could not resort to the provisions of 45A and seek assistance from oral evidence or experts to justify the same.
To conclude, it can be said that digitizing your documents with modern document management systems is a feasible solution since the admissibility of such documents is legalized. The critical thing to note here is that the ambit of Section 65 of the Indian Evidence Act 1872 is quite broad, and it thus covers any information that is created, stored or transferred electronically.
The Information Technology Act, 2000
The I.T. Act of 2000 also discusses the legal recognition of electronic records and their retention.
Section 4 of the Information Technology Act, 2000 states:
“Where any law provides that information or any other matter shall be in writing or the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is–
(a) rendered or made available in an electronic form; and
(b) accessible to be usable for a subsequent reference.”
This means that it is possible to meet such requirements of the Court without hampering the proceedings by relying on electronic records.
Similarly, Section 7 of the act states that whenever it is required by the country’s statutes to retain any specific document for a stipulated period, retaining such record to comply with the regulation in electronic form satisfies such requirement.
Enforceability of electronically executed documents
So far, we have gained clarity on the point that securing business documents or corporate assets in an electronic or digital format for future purposes is safe and admissible in the Court of law as per the statutes of our country.
But another very important point that arises amid this discussion is: whether those documents executed electronically are also admissible and enforceable in the Court or not.
To answer this question, let’s have a look at Section 10 of the I.T. Act, where it is duly mentioned that a contract can not be set aside as unenforceable merely on the grounds that such a contract has been executed via electronic mediums.
One very crucial aspect of executing such documents electronically is E-Signatures. Thankfully, the legislature of our country has given e-signatures the same legal recognition as traditional wet signatures. (Section 5 of I.T. Act)
However, in case of suspicion, the Court is always at liberty to ask for expert assistance or the public key listed in the Digital Signature Certificate to verify e-signatures.
Concluding Remarks:
The concern of businesses regarding the legal admissibility of digitized versions of their corporate documents is fair. The lack here is not the willingness to switch to something new and feasible but the knowledge that they need to be on the safer side.
Hopefully, this article gave you clear answers. To put it in perspective, opting for a Document Management System for storing, managing and creating your business information is not at all risky. If the time comes, you will have all the proofs and evidence you might need to prove your stand in the Court of law.
Contrary to this, if you choose to go with a storage facility or avoid the situation altogether, you might have to pay heavy penalties for negligence.
One feasible option available at your disposal is dox2U. A cloud-based DMS that will help you with document-related issues and also assists in meeting regulatory requirements.
