WHATSAPP MESSAGES: A NEW TYPE OF EVIDENCE TO LAND YOU IN LEGAL TROUBLE?
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With technology
overtaking this world, it has now also entered the judicial system slowly and
steadily in various aspects including online trials, online dispute resolution methods,
electronic evidences and online case tracking systems through Supreme Court and
High Court websites. Among these, admission and acceptance of electronic evidences
is an important development in the legal field, especially in the last decade.
Various amendments and
concretization of the Information and
Technology Act, 2000 as well as the Indian Evidence Act, 1872 have welcomed
e-evidences as leading evidences in courts. Sec 65 of the Indian Evidence Act helps the courts in examining the
evidentiary value of electronic evidences. Over the years various judgments
depending on electronic evidences in the form of phone calls, CDs, DVDs,
computer records have been passed and the recent ones including ‘Whatsapp
Messages’. All the electronic evidences are recognized as secondary evidences if
not produced in their original form according to sections 62 and 63 of the act.[1]
Till now Whatsapp was
considered to be an informal means of communication but now we find there are a
lot of important decisions and transactions being taken on it so as to act as
crucial evidence in the court of law. In the past 2 to 3 years there have been
a multitude of judgments on the validity of Whatsapp messages in courts as
evidences by different High Courts and the Supreme Court. Interestingly, the
courts have given multi facial judgments on the authenticity of Whatsapp in
legal matters. Whatsapp has been a widely used and easy media platform for
communication for the past 10 to 12 years. Therefore it may act as an important
link between the concerned parties and can be used to define relations between
the parties.
PRE-REQUISITES
FOR SUBMITTING ELECTRONIC EVIDENCES
As per Sec 65B of the Indian Evidence Act, 1872[2], there are certain
provisos as to how the contents of electronic evidence should be provided:
·
The evidence must be used by a person who
is in the lawful possession of the computer.
·
The content of the evidence must be fed in
the device during the regular use of the device.
·
It should be proved in the court of law
that the evidences are not tampered.
·
The evidence should be presented before
the court in its original form as it was when being regularly used through the
computer.
Moreover, whenever
evidence is to be submitted under this section it is mandatory to be
accompanied by a certificate for the identification of the electronic record as
well as containing the entire particulars of the electronic record viz. how was
it produced, showing that it was produced by the computer itself.
WHATSAPP
CHATS AS EVIDENCES
There have been a variety
of judgments on whether or not to accept Whatsapp messages as evidences,
whether they constitute as primary and secondary evidences and can they be
produced without a certificate as per sec 65B of the Indian Evidence Act.
Whatsapp forwards
With crores of Whatsapp
messages circulating on our devices, can a forwarded message act as evidence?
In the case of National Lawyers Campaign
for Judicial Transparency and Reforms vs. Union of India, 2017[3],
the Delhi High Court held that a forwarded a message without its original
sources unknown cannot be accepted as evidence as it does not comply with the
requirements mentioned in sec 65. This is because it generally becomes
difficult in such cases to form a reasonable belief that the concerned message
or post is true and authentic.
Certificates mandatory
Formerly the Supreme
Court of India had clarified that a certificate while submitting electronic
evidences is not necessary if the record is itself originally produced i.e. if
the concerned witness or party stand in the witness box with a laptop, mobile
or tablet in which the original information was first stored.
The High Court of Punjab
and Haryana in Rakesh Kumar Singla vs. Union of
India, 2021[4] propounded that
Whatsapp messages will have no evidentiary value unless supported by a
certificate as per sec 65B which is quite necessary to authenticize the
concerned electronic evidence. However, a court is free to rely on Whatsapp
messages once complied with the requirements.
Importance of Blue Ticks
If a blue tick appears
after a message/legal notice is received by a defaulter on his/her Whatsapp
account it will be treated same as receiving a legal notice physically, ruled
the Bombay High Court in the case of SBI
Cards and Payment Service Pvt Ltd vs. Rohidas Jadhav, 2018[5].
It will be inferred that the required document was not only delivered but
opened as well.
Concluding contracts
In Ambalal Sarabhai Enterprise Ltd vs. KS Infraspace LLP Ltd, 2020,[6] the Supreme Court observed
that, contracts can be concluded on electronic platforms and can be used as
evidences during trials. However, Courts should not rely on individual words to
decipher offer and acceptance in the concerned chats, rather the messages
indicating the formation of contract must be thoroughly read and understood
cumulatively to infer whether there was a concluded contract or not. Therefore
the courts have now agreed that contracts can be formed through electronic
mediums provided that they comply with the Indian Contract Act, 1872 and
Information Technology Act, 2000.
WHATSAPP
CHATS AND INVESTIGATIONS[7]
Can investigation
officers and courts force someone to reveal their Whatsapp chat, is another
crucial debate going on currently, considering the amount of personal
information contained in these chats. Owing to this issue, some questions have
been raised like Can officers compel you to unlock password protected apps to
access Whatsapp chats? Will this amount infringement of the Right to Privacy under Article 21 of the Indian Constitution?
Can the security and investigation agencies crack someone’s encrypted Whatsapp
data so that they can retrieve the deleted chats?
There might be duel responses for these questions. Some may say that an accused cannot be compelled to open his chats as it is a direct infringement of Article 21 i.e. Right to Privacy which is the most sensitive issue going on based on social media platforms only and Article 20 of the Constitution as Article 20(3) mandates that “no person accused of an offence shall be compelled to be a witness against himself.”
Section 91 of the Code of Criminal Procedure, 1973, provides that police officers under certain circumstances may issue summons to produce any document or any other thing if necessary for any investigation or trial.[8] Similarly during primary investigation, to access encrypted Whatsapp data, security and investigating agencies can take a user’s phone and create a clone of it on another device. This gives them a complete access even to deleted data like phone records, e-mails, messages, images etc. However it has been stated that it is generally very difficult for police authorities to access Whatsapp chats on a person’s phone as they need to have credible information that some incriminating information exists on the accused’s phone.
Nonetheless, it may also
be sometimes very necessary in some heinous and grave offences especially in
offences like rapes, murders or drug dealings to access personal chats of
people involved in the case, to take the investigations ahead and do best
justice for the suffered.
CONCLUSION
Thus, considering
Whatsapp chats as evidences is comparatively a new area in the legal field.
Witnessing multilateral opinions on this subject matter it would be interesting
to know how this issue develops in India. As advancements in technology catch a
faster pace, all eyes are keen as to if and how will it play a role in the
legal fraternity. With a lot of people accusing the social media companies
themselves for breach of privacy, the role of courts in using these platforms
for the victim and against the accused will be a highlighting one. Only time
will tell how this issue will turn out in India.
[1] Use of Electronic Evidence in
Judicial Proceedings, www.mondaq.com (last visited Feb 14, 2021)
[2] Indian Evidence Act, 1872,Sec 65B,
Acts of Parliament (India)
[3] National Lawyers Campaign for
Judicial Transparency and Reforms vs. Union of India, 2017, Delhi High Court,
4447/2017
[4] Rakesh Kumar Singla vs Union Of India on 14 January, 2021 CRM-M No.23220 of 2020 (O&M)IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGAR
[5] SBI Cards and Payment Service Pvt Ltd vs. Rohidas Jadhav, 2018, NOTICE NO. 1148 OF 2015 IN EXECUTION APPLICATION NO. 1196 OF 2015
[6]Ambalal Sarabhai Enterprise Ltd vs. KS Infraspace LLP Ltd, 2020, CIVIL APPEAL NO(s). 9346 OF 2019
[7] Whatsapp Chats and Criminal
Investigation: A Legal Analysis, www.barandbench.com ,(last visited 17 Feb, 2021)
[8] The Code of Criminal Procedure, 1973,
Sec 91, Acts of Parliament (India)
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