Judging Chats: The Legal Maze Of Whatsapp Evidence In India

In 2024, the Canadian court in the case of South West Terminal Ltd. vs. Achter Land and Cattle Ltd. held that a “thumbs up” emoji in a text message was a valid form of acceptance in a contract. This case highlights the evolving role of electronic signatures and electronic evidence.

The Indian courts and statutes are advanced and accept the evolution of digital communication. From casual chats to business agreements, WhatsApp chat plays an effective role in the digital age. Here, the courts get surrounded with a tricky question: “Can a WhatsApp chat or text be treated as a reliable source of evidence?” Several judgments and provisions will help to know the procedures and parameters of accepting WhatsApp chat as evidence.

Two main laws that control how electronic evidence can be used in court are the Bharatiya Sakshya Adhiniyam, 2023, and the Information Technology Act, 2000. Before the Bharatiya Sakshya Adhiniyam came into the criminal grassland, electronic evidence was handled under the Indian Evidence Act, 1872. Section 65B of IEA, 1872, which got replaced by Section 63 of BSA, 2023, is about the admissibility of electronic records. Section 2(1)(t) of the IT Act, 2000, defines electronic records. WhatsApp chats are recognized as electronic evidence records under the umbrella of Indian law. When BNS, 2023, was not in force, electronic evidence fell within the sphere of Sections 65A and 65B of IEA, 1872. Now, it falls within the ambit of Sections 62 and 63 of BSA, 2023.

There is a set of provisions they must meet to get the chats admissible in the court. The printout or the copy of WhatsApp chats can be considered as a document that derives its relevance from Section 63(1) of the BSA. But all the conditions to be met that Section 63 of the BSA provides. WhatsApp chats are the product of computer output, to make it admissible before the court, and the conditions are described under Section 63(2) of BSA, 2023.

To verify the authenticity of the WhatsApp chats, a certification of admissibility is required to be attached with the printout or copy of WhatsApp chats, as laid down under Section 63(4) of BSA, 2023. The certificate brings to light that the electronic record produced by a properly functioning communication device and data has not been changed. Also, identify the electronic record containing the statement and elaborate on the manner in which it was produced. At last, the certificate must be signed by the appropriate authority as mentioned in Section 63(4) of BSA, 2023. The certificate stated 63(4) plays a protagonist character for admissibility of WhatsApp chats as evidence. The certificate can be issued by a person who owns the responsibility of the device. Lastly, if the WhatsApp chats and the Section 63(4) certificate are prepared, then it is ready to submit in the court as secondary evidence. The submission of WhatsApp chats can be in both physical and digital submission with a mandatory 63(4) certificate.

The accumulation and preservation of evidence that maintains the authenticity is the crucial step in proving the WhatsApp chats in court. Taking screenshots of chats, exporting chat history, and making a forensic copy ensures that data is preserved in its original form. Moreover, if the WhatsApp chats are submitted to the court in the same communication device where the chats were done, it comes under primary evidence. Therefore, in this case no 63(4) certificate is required to be attached.

The Indian judiciary has coined the admissibility of electronic evidence, which includes WhatsApp messages, in several landmark cases. In State (NCT of Delhi) v. Navjot Sandhu (2005), the Supreme Court allowed electronic records without strict compliance with Section 65B of IEA, 1872. It held that such records could be admitted if authenticated by a competent witness. In the case of Anvar P.V. vs. P.K. Basheer and others (2014), the Supreme Court held that Section 65B of the Indian Evidence Act holds a complete code and a special law administrating the admissibility of electronic records. Invoking the rule of interpretation "Generalia specialibus non derogant"—which means that general provisions must yield to special provisions. The court stated that the general provisions under Sections 63 and 65 have no application in the context of secondary evidence pertaining to electronic records. Such evidence is exclusively governed by the special provisions contained in Sections 65A and 65B.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantayal (2020), the Supreme Court settled the controversy on electronic evidence. It held that a Section 65B (4) certificate is not required if the original device is produced and the owner testifies. If the device is part of a larger system or network that can't be brought to court, then compliance with Section 65B (1) and a 65B (4) certificate is compulsory. This ruling clarified the procedure for admitting electronic records. In SBI Cards & Payment Services Pvt. Ltd. vs. Rohit Jadhav (2018), the Bombay High Court stated that WhatsApp messages can be used as evidence if they come within the Section 65B certificate. The court also pointed that the "blue tick" on WhatsApp reflects that the message was received and read by the other person. In M/S. Karuna Abhushan Pvt. Ltd. v. Shri Achal Kedia (2020), the Delhi High Court held that WhatsApp and Facebook chats are valid legal evidence, with a blue tick indicating the message was read. The court emphasized that proving such chats requires compliance with Section 65B of the Indian Evidence Act.

In conclusion, validating WhatsApp messages in court addresses effectively with both legal and technical complication. While Sections 62 and 63 of the Bharatiya Sakshya Adhiniyam, 2023, render a legal framework for admissibility, challenges like data manipulation, technical hurdles, and privacy issues make the process demanding. To make certain the integrity of such evidence, it is highly prerequisite to involve forensic experts who can preserve and analyse the data through forensic imaging. Therefore, an expert approach is crucial for effectively presenting WhatsApp messages as reliable evidence in court.

Authors are pursuing LL.M in Criminal Law under Sardar Patel University of Police, Security and Criminal Justice, Jodhpur. 

Views Are Personal.