By Adv Rishabh Kumar
Published on: October 30, 2023 at 00:25 IST
Digital communication platforms, such as WhatsApp, have had a profound significance on society in recent years. They have revolutionized the way we communicate and interact with each other, and have become an essential part of our daily lives. WhatsApp chats are increasingly being used as evidence in courts around the world. However, there is no one-size-fits-all answer to the question of whether or not WhatsApp chats are admissible as evidence.
The admissibility of WhatsApp chats will depend on the specific facts and circumstances of each case, as well as the laws of the jurisdiction in which the case is being heard. The question that arise is whether WhatsApp chat can be used as Prima facie evidence against an accused? This articles will provided provide a comprehensive overview of the admissibility of WhatsApp chats as evidence in court.
Significance of Digital Communication
WhatsApp, in particular, has become one of the most popular digital communication platforms in the world, with over 2 billion active users. It is used by people of all ages and backgrounds to stay in touch with friends and family, collaborate with colleagues, and access information and services.
- Increased connectivity: Digital communication platforms have made it easier than ever to stay in touch with people, regardless of where they are in the world. This has helped to break down barriers and create a more interconnected global society.
- Enhanced communication: Digital communication platforms have also enhanced the way we communicate with each other. They allow us to share text, images, videos, and other types of content in a variety of ways. This has made communication more expressive and engaging.
- Improved access to information and services: Digital communication platforms have also improved our access to information and services. They allow us to connect with businesses, government agencies, and other organizations directly. This has made it easier for us to find the information and services we need, when we need it.
- Empowered communities: Digital communication platforms have also empowered communities by giving them a voice and a platform to organize and mobilize. This has led to increased social and political participation.
Evidentiary Value of WhatsApp chats
Initially when one could not delete chats there was a solidarity in the value of chats. With the edit function, the proficiency of WhatsApp chats to be considered as concrete evidence plumets. Not only can people edit their responses they can also delete their chats. Post deleting of chats whatsapp was accepted as evidence in courts.
Following are the Essentials for making what’s app Chat Admissible
- Relevance: WhatsApp chats must be relevant to the case at hand. They should have a direct or indirect connection to the matter being adjudicated. If the chats do not bear relevance to the case, they may not be admitted as evidence.
- Authenticity: To establish the authenticity of WhatsApp chats, the party presenting them as evidence must prove that the chats are genuine and have not been tampered with. This can be done through witness testimony or forensic analysis.
- Admissibility Rules: Indian law recognizes electronic evidence, including WhatsApp chats, under the Information Technology Act, 2000. However, the admissibility of electronic evidence is subject to specific rules and procedures, and the evidence must meet the requirements of the Indian Evidence Act, 1872.
- Chain of Custody: It’s crucial to establish a proper chain of custody for the electronic evidence. This ensures that the evidence has not been tampered with or altered between the time it was obtained and its presentation in court.
- Expert Testimony: In cases where the authenticity of WhatsApp chats is contested, expert testimony from a forensic expert may be required to validate the evidence and ensure its admissibility.
- Privacy Concerns: Indian courts also consider privacy concerns, and the right to privacy has been recognized as a fundamental right by the Supreme Court. While WhatsApp chats may be admissible, the court may take into account privacy implications and limit the use of certain private information.
- Cross-Examination: The opposing party has the right to cross-examine the evidence and challenge its authenticity or relevance.
Electronic Evidence under Indian Evidence Act, 1862
In India, electronic evidence, including WhatsApp chats, is admissible in court if it adheres to the provisions of the Indian Evidence Act, 1872. Section 65B of the Act governs the admissibility of electronic records.
WhatsApp is one of the most widely used messaging platforms in the country, and therefore, conversations on this platform are often subject to scrutiny in legal cases.
Section 65 deals with the issue of admissibility of electronic evidences that includes emails, chats, and social media posts. Electronic evidence is considered secondary evidence as it is a product of the original device.
Section 65B differentiates between information from the original device and the copies made off of it. The device becomes the primary evidence and the copies become the secondary evidence.
Section 65B (2) lay down following essential for making electronic evidence admissible :
- The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
- During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
- Throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
- The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
To admit electronic evidence, a Section 65B certificate is required. This certificate is a declaration that the electronic record presented in court is a true copy of the original and is in compliance with the legal requirements. Without this certificate, electronic evidence may be deemed inadmissible.
Admissibility of whats app Chat and Indian Court
In earlier cases WhatsApp was considered to be a legitimate source of evidence but post update where one can remove or delete messages it’s become very dicey evidence to admit.
The Bombay High Court, in SBI Cards and Installment Administrations Pvt. Ltd. v. Rohit Jadhav (2018), Court observed that the defaulter had gotten the notification in WhatsApp as well as opened that notice. At that point, Bombay High Court held that after sending a message through WhatsApp, if a blue tick appears, then the informing application is viewed as factual verification that the Respondent had gotten that notice which is viewed as legitimate Evidence.
In the case of Shafi Mohammad v. Territory of H.P. (2018) the Supreme Court, in this case, held that the necessity of the declaration under Section 65B of the Evidence Act according to the judgment of Anvar P.V. isn’t needed in the accompanying two cases:
A party who doesn’t have a device from which the document is delivered can’t be required to produce a certificate under Section 65-B (4) of the Evidence Act. The pertinence of the authentication being procedural can be relaxed by the Court wherever interest of justice so legitimizes.
To settle the two unique interpretations between Anvar P.V. and, Shafi Mohammad, the mater alluded to larger Bench of Hon’ble Supreme Court of India in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors, settled on July 14 2020. The Supreme Court held that the certificate needed under Section 65B of the Indian Evidence Act is a condition precedent for any electronic proof’s admissibility.
But now since people can delete their messages as well as other parties phones it has become redundant. Hence as per Apex Court ruling in in the case of Hardev Ram Dhaka V Union Of India Writ Petition(s) (Civil) No(s). 611/2020 issuing notice of service via WhatsApp, Mail or any other electronic mode has not been allowed.
The Hon’ble Supreme Court of India on July 14, 2021 in A2Z Infraservices Ltd. Versus Quippo Infrastructure Ltd reiterated that WhatsApp chats serve no evidentiary value without the certificate of authenticity under Section 65B of the Evidence Act.
Legal Challenges in admissibility of whats app chat
Using WhatsApp messages as evidence in legal proceedings can present several legal challenges, both in India and in many other jurisdictions. Some of the common legal challenges associated with WhatsApp messages as evidence include:
- Authentication and Tampering: One of the primary challenges is proving the authenticity of WhatsApp messages. It’s relatively easy for individuals to alter or forge messages, and ensuring that the messages presented in court are genuine and have not been tampered with is essential. This may require expert testimony or forensic analysis.
- Hearsay: WhatsApp messages are often considered hearsay evidence, as they are statements made outside of the court by someone not testifying. Hearsay evidence is generally not admissible unless it falls under an exception or is excluded by a specific rule.
- Privacy Concerns: WhatsApp messages often contain personal and private information. Courts need to balance the admissibility of such evidence with individuals’ right to privacy, especially in cases where the messages were obtained without the consent of the parties involved.
- Legal Procedures for Electronic Evidence: In many jurisdictions, including India, there are specific legal procedures and requirements for the admission of electronic evidence, including WhatsApp messages. Failure to follow these procedures can result in the evidence being deemed inadmissible.
- Chain of Custody: Establishing a proper chain of custody for electronic evidence is crucial to prove that the messages have not been altered or tampered with. If this chain of custody cannot be adequately demonstrated, the evidence’s credibility may be challenged.
- Cross-Examination: The opposing party has the right to cross-examine the evidence and witnesses who present WhatsApp messages. This can involve questioning the authenticity, relevance, or context of the messages.
- Admissibility Criteria: WhatsApp messages must meet admissibility criteria laid out by the relevant legal framework. This can include the Information Technology Act or Electronic Evidence Acts in some jurisdictions. If the evidence does not meet these criteria, it may not be admissible.
- Expert Testimony: In cases where the authenticity or integrity of WhatsApp messages is in dispute, expert testimony from forensic experts or digital analysts may be required to validate the evidence.
- Chain of Communication: Establishing the chain of communication can be challenging, especially in group chats. It may be necessary to demonstrate who participated in the conversation and who sent specific messages.
- Data Protection Laws: In some jurisdictions, the use of WhatsApp messages as evidence may also raise issues related to data protection and consent, particularly if the data was obtained without the consent of the parties involved.
- Cross-Border Issues: If the parties involved in a legal case are in different countries, questions related to the applicability of local laws and international treaties may arise when attempting to use WhatsApp messages as evidence.
Conclusion
In conclusion, the admissibility of WhatsApp chats as evidence in court is a complex issue with no easy answer. However, as per the recent Supreme Court recent ruling we can say that WhatsApp chats may be considered electronic evidence under the Indian Evidence Act, 1872 and can be admissible in court of law with compliance to section 65 B. To be admissible as evidence, WhatsApp chats must be authenticated and their chain of custody must be maintained. Courts are increasingly becoming more familiar with digital evidence and are more willing to admit WhatsApp messages into evidence in certain cases.