Digital Justice - Analyzing The Role And Legal Admissibility Of Digital Forensic Evidence In India
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DIGITAL JUSTICE: ANALYZING THE ROLE AND LEGAL
ADMISSIBILITY OF DIGITAL FORENSIC EVIDENCE IN INDIA Aditi Sharma, B.A. LL.B. (Hons.), Law College Dehradun, Uttaranchal University, Dehradun, Uttarakhand, India Dr. Ratnesh Kumar Srivastava, Assistant Professor, Law College Dehradun, Uttaranchal University, Dehradun, Uttarakhand, India
ABSTRACT
The digital revolution in the country has also impacted crime, and subsequently law enforcement, and calls for use of digital forensic evidence to be used in a judicial process. This paper studies the quality of digital forensic evidence in the Indian legal system. It discusses the evolution of legislative provisions, such as the Information Technology Act, 2000, and amendments to the Bharatiya Sakshya Adhiniyam, which recognize the status of electronic records as admissible evidence. The establishment of the process of estimation was rooted from the various legal precedents including Anvar P. V. v. P. K. Basheer, and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and did play a role in enabling the procedural rules especially with respect to Section 63 certification.
But discrepancies in judicial interpretation and procedural compliance still hinder the smooth adoption of the digital evidence. The main challenges are providing data integrity, securing the chain of custody, and addressing forensic infrastructure shortfalls. To add to the confusion, there is no formalized standard around emerging technologies like blockchain-based records or AIgenerated deepfake evidence. The strengths and weaknesses of digital forensic evidence in India are backed by case studies — the 2001 Parliament attack and the Aarushi Talwar case. Summary: Specially, it proposes legislation for procedural clarification in its collection, stores the state status and in the forensic expertise of judicial employees.
Ensuring mandatory disclosure of such evidence for fair trials and updating the existing procedures and protocols to interrogate digital evidence would enhance confidence in forensics and strengthen justice in the digital age. Keywords: Digital Forensic Evidence, Indian Evidence Act, Section 63, Cybercrime, Blockchain, Chain of Custody, AI-generated Evidence
Introduction
Technology, growing exponentially, has transformed not only the worlds of commerce, communication and governance but also of crime and law enforcement. With the advent of the digital era, we witnessed a surge in the number of new-age crimes like cybercrime, financial frauds, data breaches, and tech-based crimes. At the same time, conventional crimes are nowadays typically associated with electronic footprints, and it is difficult to imagine a case in a modern courtroom that does not include electronic records and digital forensic evidence. This shift posed challenges to the Indian legal system, which has historically been firmly grounded in physical evidence. Judiciary and law enforcement agencies face several challenges relating to the authentication, admissibility, and procedural legality of digital forensic evidence.
It is the enabling provisions of various laws and case laws based in India, which have facilitated adopting such a transformation, including substantive laws like the “Information Technology Act, 2000” (IT Act), amendments to the “Bharatiya Sakshya Adhiniyam” (BSA) & the judicial pronouncements that have widened the field of digital evidence genuinely. Despite such progress, however, several challenges remain. With issues of data integrity, forensic expertise, judicial awareness and dynamic nature of cyber threats, utilization of digital forensic evidence in Indian courts still lacks the confidence as due process of the law in many cases is violated. 1 In both civil and criminal litigation, digital forensic evidence consisting of Electronic records, e-mails, call records, CCTV footage, Metadata, Blockchain-based transaction logs, is instrumental.
The pertinent legal framework has increasingly also been reflected in the legal system, as demonstrated, among other things, in the introduction of an amendment to the “Bharatiya Sakshya Adhiniyam, 1925”, which recognizes the admissibility of electronic evidence. Its reliability has often been the subject of judicial scrutiny, notably in landmark judgments such as “Anvar P. V. v. P. K. Basheer & Ors. 2“ which laid down important principles. In this context, the Supreme Court ruled that where the provisions of “Section 63 of the Bharatiya Sakshya Adhiniyam” (i. e. , the Indian Evidence Act) are concerned, an electronic record would not be admissible unless the conditions laid down under Section 63 were strictly complied with. The decision highlighted the need to show a certificate attesting to the originality and integrity of the electronic record.
Although this was a big step to standardize 1 P. Ganguli, "Admissibility of Digital Evidence Under Bharatiya Sakshya Sanhita: A Comparative Study with the Indian Evidence Act", available at: https://doi. org/10. 2139/ssrn. 4977238 (last visited on February 12, 2025).
2 [2014] 10 SCC 473.
digital evidence, there are practical challenges, including the challenge of obtaining such certificates when the case involves publicly available or widely distributed digital content. One of the foundational issues in digital forensic evidence is the integrity and chain of custody. Different to physical evidence, digital data is particularly prone to modification, deletion and unauthorized access. One of the most important of these is the concept of the “chain of custody”, meaning that digital evidence must remain unaltered from the time it is collected until the time it is used in court. In “Ram Singh v. Col. Ram Singh3“, the Supreme Court observed that a break in the chain of custody would make the evidence unreliable.
When it comes to digital evidence, this principle becomes all the more relevant, as cyber manipulation techniques are advanced and can modify metadata, timestamps, and file authenticity. This issue has started getting recognition in Indian courts, and is thus depending on forensic labs and certified experts for proof. But the bottleneck is the absence of adequate digital forensic infrastructure and trained personnel, often delaying investigations and compromising on the evidentiary value of critical digital records. 4 Digital forensic evidence plays an important role not just in cybercrimes, but in the broader umbrella of criminal justice. Electronic records are often found in cases of financial fraud, organized crime, terrorism and corruption. It was, therefore, held in “State (NCT of Delhi) v.
Navjot Sandhu5“ by the Supreme Court that call records, emails and digital communication were paramount in establishing conspiracy in the case of the Parliament attack of 2001. This precedent was a sign of the judiciary’s growing dependence on digital evidence. Likewise, the incorporation of CCTV footage in notable cases like the “Nirbhaya Case”6 demonstrated the role of digital forensic evidence in validating eyewitness accounts and meticulously reconstructing crime scenes. But, despite recognition in the courts of the importance of such evidence, its acceptance is still dependent on showing full technical compliance, proving certification and the forensic experts proving authenticity beyond a reasonable doubt.
While there has been a trend in devising acceptance of digital evidence in courts, challenges related to interpretations of law and procedural adherence remain an impediment to smooth
3 [1985] 3 SCC 611.
4 R. Gupta, P. Bafna, "Digital Evidence and Its Admissibility Under the Indian Legal Regime", 16 International Journal of Communication Networks and Information Security 1436 (2024).
5 [2005] 11 SCC 600.
6 Mukesh v. State (NCT of Delhi), [2017] 6 SCC 1.
admissibility. In “Shafhi Mohammad v. State of Himachal Pradesh7“a prominent controversy occurred when the Supreme Court diluted the previous mandatory nature of “Section 63 certification” with respect to electronic records, asserting that such certification was not required if even the original source of electronic evidence was within reach, stating in the words of their judgment, that the presence of original source may be relied upon “without a certificate”. While this ruling left some ambiguity, specifically regarding evidence from thirdparty platforms (including social media, surveillance systems, cloud storage, etc. ), The expression in “Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors.
8“ which reiterated the requirement of what has been coined as a “Section 63” certificate but also allowed for some discretion on the part of courts to admit electronic evidence in exceptional circumstances. The variability of decision-making by courts highlights a need for a welldefined legislative framework regarding digital forensic evidence. Digital forensic evidence is governed by India’s procedural laws, most notably the recently enacted “Bharatiya Nagarik Suraksha Sanhita” (BNSS), which have a substantial impact on collection, preservation, and admissibility of such evidence in criminal trials. The “BNSS” outlines the investigative procedures that law enforcement agencies must follow to collect digital evidence using forensic-grade methodologies. A chronic problem has been their poor training of police and judicial officers to deal with cyber forensics.
While some jurisdictions, like the United States, afford a detailed scheme for guidance through a specific “Federal Rules of Evidence” that prescribes the admissibility of digital and electronic data, India’s law currently does not possess the specific procedural code applicable to electronic records in a unified manner. Until now, this gap has resulted in searches outturning essential digital evidence to be dismissed on the grounds of bad collection methods or faulty practices, even when it can prove guilt or innocence beyond a reasonable doubt. No amount of legislation or case law could shape technology fast enough to keep up with the innovation on the ground. New challenges arise, such as in the admissibility of blockchainbased records, data produced by artificial intelligence, and deepfake evidence. Blockchain’s immutable ledger can revolutionize digital forensic evidence.
Indian courts, however, have not laid down clear directions regarding the evidentiary value of it. Deepfake technology represents a new risk, where manipulated videos and audio recordings can be weaponized to
7 [2018] 2 SCC 801.
8 [2020] 7 SCR 180.
provide misleading evidence before the courts. Judiciary should also design robust systems of authentication and coalition with forensic experts to ensure digital evidence remains a medium of establishing justice rather than manipulation. Understanding Digital Forensic Evidence The importance of digital forensic evidence in gathering information and presenting it in courts can hardly be overestimated, especially during a time when we are increasingly affected by cybercrimes, financial frauds, digitally mediated offenses, etc. As the world becomes more dependent on e-records, webmail and other online tools or e-transactions that act as markers in today’s justice system, digital forensics has become integrated into it as one of the most essential sources of evidence.
This Lesson seeks to summarize the legislative developments that shaped the recognition and admissibility of digital forensic evidence in India, namely the “Bharatiya Sakshya Adhiniyam” and the “Information Technology Act, 2000”. Sections were amended to accommodate digital evidence, classifying electronic records as documents under “Section 3” of the ”Bharatiya Sakshya Adhiniyam” (Indian Evidence Act, 1872), enabling guidelines for their admissibility. The “Information Technology Act, 2000”(IT Act) provides legal recognition of digital records and is based on this information. Important digital forensic evidence characteristic is echoed in fundamental cases like “Anvar P. V. v. P. K. Basheer & Ors. 9“ is also as to the compulsive nature of compliance of “Section 65B of the Indian Evidence Act” for the admissibility of electronic records.
In this case, it was held that a certificate that authenticates electronic records is required for electronic evidence to be lawful. Yet despite the recognition of digital evidence within the legal framework, its applicability has proven to be riddled with obstacles to overcome, such as reliability, integrity, and procuring evidence following chain-of-custody protocols. 10 This form of evidence has been defined in the Fourth Edition of the National Institute of Standards and Technology (NIST) Special Publication 800-86, as digitally stored information, which includes a wide range of information such as documents, photographs, videos, emails, and other data capable of being analyzed, reproduced, or compared to be used in legal settings. Electronic records are broadly defined under Indian law as any data generated, received, or stored in a digital form.
This includes things such as emails, social media posts, metadata,
9 10 SCC 473.
10 H. B. Patil, A. Chowbe, "An Examination of Digital Evidence and Its Relevance for Indian Forensic", 30 Educational Administration Theory and Practice Journal (2024).
CCTV footage, text messages, blockchain, and even data from IoT (Internet of Things) devices. Digital evidence: each category offers its own challenges with respect to authenticity and admissibility. To illustrate, metadata, which contains information about the source, creation, or movement of a given digital file, is essential to establishing the integrity of electronic records. A recent example from our court is “State (NCT of Delhi) v. Navjot Sandhu11“, where call detail records (CDRs) were relied on to establish communication links between accused in the 2001 Parliament attack case, providing a glimpse at the central role digital evidence can play while investigating a crime. Just as CCTV footage is important evidence against the accused in Mukesh v. State (NCT of Delhi)12(famous as the Nirbhaya Case), so is video recording of a crime scene.
Several states have witnessed a growing acceptance of blockchain records as a new category of digital evidence, based on their characteristic of immutability. On the other hand, Indian jurisprudence is yet to crystallize uniform precedents regarding the admissibility of statements as evidence creating a vacuum of legal certainty. 13 In order to ensure that digital evidence is reliable and admissible in court, the forensic process for handling it follows a structured methodology. It includes four main steps — identification, preservation, analysis, and presentation. Identification is the process of determining pertinent pieces of digital evidence, whether from a suspect’s hard drive, a cloud storage provider, or encrypted messaging apps. This phase is critical because a case can be undermined by the lack of keys digital artifacts.
After identifying evidence, the preservation step is where the evidence is protected from changes. Data is volatile in nature in the digital world, thus forensic experts are using techniques like making forensic copies, calculating hash values, and follow strict chain of custody to maintain its integrity. As illustrated in “Ram Singh v. Col. Ram Singh14“, a break in the chain of custody can lead to a situation wherein the evidence becomes inadmissible by raising the risk of eventual tampering. In the analysis phase, the digital evidence is evaluated and relevant insights are obtained, usually with the help of commercial software tools like EnCase, FTK (Forensic Toolkit), and Autopsy; Digging out deleted files, network logs etc. are some of the common tasks done by forensic experts using such tools.
Presentation stage: After the forensic analysis is complete, the findings are compiled in a format that can be understood by courts. Because of the complexity of digital evidence, expert
11 [2005] 11 SCC 600.
12 [2017] 6 SCC 1.
13 Deepali, R. D. Verma, "Role of Digital Forensics and Criminal Investigation in India", 5 International Journal of Research Publication and Reviews 87 (2024).
14 [1985] 3 SCC 611.
testimony is often needed to inform judges and lawyers — to whom this topic may be foreign — of technical concepts. In India, the lack of a standardized training methodology for judicial officers in digital forensics is a chronically entrenched problem and contributes to misinterpretation or total rejection of such key electronic evidence. Due to its increasing significance, digital forensic evidence is beset with several major challenges that impede its effective use in a legal context. The forefront cause being _ the volatility of digital data. While physical evidence is static, digital evidence can be modified, deleted, or corrupted in seconds. That is why is absolutely crucial that forensic teams work quickly, while at the same time adhering to the correct standards for data preservation. Encryption and anti-forensic technologies leave investigations even more complicated.
So many criminals now protect their digital traces with complex encryption, so that police agencies cannot reach incriminating data. Though decryption tools are available, breaking encryption is frequently an expensive, time-consuming endeavor that can delay criminal trials. The procedural requirements for digital evidence were another crucial challenge identified in the case of “Shafhi Mohammad v. State of Himachal Pradesh15“. In certain situations, the Supreme Court held that it could waive the laying of a “Section 65B” certificate and that led to the uncertainty that whether the procedural compliance for admission of digital evidence was required or not. This was later explained in “Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. ”16, where the Court reasserted “Section 65B” compliance for admissibility of electronic records except in exceptional cases.
Such uncertainty in the judicial landscape is part of the evolution of the law related to digital evidence in India. A second urgent need is for specialized forensic infrastructure and trained personnel. Cyber forensic labs in major metropolitan cities in India exist but smaller jurisdictions cannot afford to conduct high-quality forensic investigations. Private digital forensic firms are often used by law enforcement agencies, which have sparked concerns on bias and possible tampering of evidence. The backlogs of digital forensic cases have also resulted in delays in providing justice in criminal matters. In investigations of cybercrimes, financial fraud and digital harassment, lengthy investigations can render evidence stale because digital service providers do not hold on to records indefinitely. Similar problems were seen in “Basheer v. State of
15 [2018] 2 SCC 801.
16 [2020] 7 SCC 1.
Kerala”17 where delay in forensic analysis created challenges in connecting the accused to digital evidence. It calls for a stronger legal and procedural mechanism in India to facilitate fast and secure collection of digital forensic evidence. Focus areas: Establish dedicated cyber courts, increase judicial training in Digital forensics and invest in state-of-the-art forensic infrastructure. There are challenges in handling digital forensic evidence not just in India, but with India’s legal system adapting to rapid advances in technology, the risk of competent justice being delivered gets affected in safe hands here. Digital evidence has already proven to be a game changer in many high-profile cases, including the arrest of the Golden State Killer in the US, as the potential to enhance the efficiency of the criminal justice system.
Yet contradictions in judicial interpretations, procedural bottlenecks and technological limitations remain obstacles. With India transitioning to more digitalization, the need for codified, logical, and consistent application of the law would be requisite to preserve the worth of electronic records as evidence in a court of law. The balance of technological advancement and judicial regulation will shape the future of digital justice in India. By updating the legislative framework, improving forensic capabilities, and educating judges and litigants on complex digital issues, the justice system can equally tap into the potential of digital evidence while ensuring that the rule of law operates effectively in the digital era.
18 Legal Framework for Digital Evidence in India In the last twenty years, the legal scenario for digital forensic evidence in India has transformed into a sounder legal infrastructure, primarily in response to the advent of cybercrimes and the increasing dependence on electronic records for legal inference. In India, the law on digital evidence is a patchwork, which has been loosely built on amendments to the old the “Bharatiya Sakshya Adhiniyam” (Indian Evidence Act, 1872) and corresponding provisions under the “Information Technology Act, 2000” (IT Act) and procedural statutes like the “Bharatiya Nagarik Suraksha Sanhita” (BNSS). Key amendments to “Bharatiya Sakshya Adhiniyam”, reflecting the changes in relation to the admissibility of electronic records, in particular, “Sections 62 and 63” which list evidentiary requirements with respect to digital documents.
Whereas, the section 62 deals with what can be treated as evidence (electronic
17 [2017] 5 SCC 1.
18 L. K. Vishnuprasad, "Critical Analysis of Admissibility of Forensic Evidence and Reports in the Criminal Justice System of India", 2 White Black Legal 16 (2024). records) and section 63 deals with conditions that will make an electronic record admissible. The previous law was necessary to acknowledge digital forensic evidence, as the courts were initially challenged with integrating digital documents in a legal system that largely depended on physical evidence. Also, the “IT Act, 2000” offers a complementary legal basis for electronic documents, as “Section 2(1)(t)” defines an “electronic record” comprehensively as data, images, sound, and digital signatures.
The Act’s amendment, which in addition to the various standardization efforts, introduces “Section 79A”, enables the government to designate digital forensic experts as “Examiners of Electronic Evidence” to facilitate the verification of electronic records authenticity. Moreover, under Section 3A of the IT Act, bills and invoices signed electronically have legal acceptance in court. Yet, the challenges associated with the procedure and evidentiary aspects of digital forensic evidence prevail and continue to generate substantial controversy over admissibility in Indian courts, despite these statutory provisions. The most important relevant statute is Section 63 of the Bharatiya Sakshya Adhiniyam, but judicial interpretation has helped shape the legal framework in India for digital forensic evidence. ONE- of the Monuments & Historical in Homage of the Significance is “Anvar P. V. v. P. K.
Basheer & Ors. Avadhoot Shankar Shinde v. State of Maharashtra19“, was a landmark in this regard, where the Supreme Court made it clear that compliance of the requirement” of “Section 63” is mandatory for the electronic records. Any electronic evidence that is going to be produced in a court has to accompany a certificate as per, which certifies its electronic origin, and states that the same has not been altered or tampered with. It overruled the previous decision in ”State (NCT of Delhi) v. Navjot Sandhu20“, which had ruled that electronic evidence could be admitted on general principles of evidence rather than strict compliance with statutory provisions. The necessity of a “Section 63” certificate has since turned-out to be the foundation of online evidence law in India.
However, this requirement posed considerable difficulties, especially where it was impossible to obtain a certificate, for example when the evidence was gleaned from social media sites, publicly available digital content or servers stationed abroad. On overcoming this impediment, the Supreme Court in “Shafhi Mohammad v. State of Himachal Pradesh21“ relaxed the mandatorily required “Section 63” certificate and held that the electronic evidence may be admitted unless a “Section 63” certificate is produced, subject to the condition that the original source of the electronic record was produced in the
19 (2014) 10 SCC 473.
20 [2005] 11 SCC 600.
21 [2018] 2 SCC 801.
Court. This judgment made it ambiguous to what extent “Section 63” compliance was required, resulting in conflicting interpretations by different High Courts. To address these inconsistencies, the Supreme Court recapitulated the issue in the case of “Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. 22“ which again laid down that “Section 63” certification was mandatory and “Shafhi Mohammad” ruling was incorrect. The Court further added that the certificate is necessary unless an exception applies (for example, in situations where the offering party does not control the electronic record), and proof of authenticity is required for the digital evidence to be admissible. These judicial pronouncements befit the dynamic nature of digital forensic evidence law program in India as well as the aspiration to strike a balance between procedural correctness and junkiness.
India’s acknowledgement of digital forensic evidence is a step forward, but there’s a long way to go—when held to international standards. The U. S. absence of specific electronic evidence, governed by the “Federal Rules of Evidence” (FRE) [5] “Rule 902(13) and 902(14)” of the FRE allows electronic records to be admitted without expert testimony if they go through a digital forensic process and are certified through that process. Specific procedures will be available to ensure that certifying digital (evidence is clear to all). The European Union also employs a data protection policy in the form of “General Data Protection Regulation” (GDPR) which highlights data integrity and security that governs the collection, storage, and processing of electronic evidence to ensure it is handled properly with privacy and authenticity in mind.
By stark contrast India’s own regime is in this respect materially more rigid and “Section 63” certification remains a bane in the path of laying digital forensic evidence. In other words, the primary purpose of a certification, at least from the standpoint of non-tampering and reliability, is achievable via much simpler means to that prescribed by “Section 63” certificates, and if not, critically important evidence may just never reach the court, ultimately, leading to injustice. The appointment of forensic experts for the analysis of digital evidence is another area where India falls short of international standards. Under section 79A of the IT Act, the government can appoint a forensic domain expert as an “Examiner of Electronic Evidence” to give her opinion on the authenticity of electronic records.
However, in practice, the number of these examiners is certainly inadequate, resulting in a delay in forensic verification and an over-
22 [2020] 7 SCC 1.
reliance on the private forensic labs. By comparison, the United States and United Kingdom enjoy some of the most long-standing forensic investigation units and tools available for the authentication of digital evidence. On a different note, in jurisdictions such as the EU, various digital forensic conventions comply with the principles of the General Data Protection Regulation (GDPR), which places restrictions on the collection of evidence done in such a way that it violates privacy rights. The challenge of achieving such balance between admissibility and privacy is one that India must grapple with, especially with growing reliance on digital forensic evidence by courts in both criminal and civil matters.
23 Admissibility of Digital Evidence: Judicial Trends and Challenges For several reasons — including concerns around authenticity, procedural regularity, and rapidly evolving technological challenges — digital forensic evidence has been one of the areas that has received considerable judicial scrutiny in India. More importantly, electronic records and evidence are mainly controlled under “Section 63 of the Bharatiya Sakshya Adhiniyam”, which is prescribing strict conditions with respect to admissibility of this type of evidence before the courts. It has been reiterated in “Anvar P. V. v. P. K. Basheer & Ors. ”24, the Supreme Court held that “the electronic record shall not be used for giving evidence or shall not be admitted in evidence” “unless” it was accompanied by a certificate under “Section 63.
” That is, the certificate must authenticate the digital evidence and the document it contains, and it must confirm that it has been obtained from a trusted and reliable source. ) But practical challenges in securing such certification, especially where digital evidence is sourced from online platforms or third-party servers, have led to judicial flexibility in particular contexts. Where as in the case of “Shafhi Mohammad v. State of Himachal Pradesh”25, the Supreme Court bypassed the requirement of “Section 63” certification, by ruling that when the original electronic source was produced in the court, the mandatory requirement of “Section 63” certification would not be applicable. Confusion in this regard resulted in conflicting High Court decisions on the certification of electronic evidence. This stance was subsequently affirmed in the case of “Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal”26, the Supreme Court restated Section 63 certification being a must in other cases unless the 23 Jaydevsinh B. Vala, Vipul M. Vekariya, et. al. , "The Role and Importance of Digital Forensics and Digital Evidence in Cyber Crime Detection", 13 International Journal of Life Sciences, Biotechnology and Pharma Research 413 (2024).
24 (2014) 5 SCC 1.
25 [2018] 2 SCC 801.
26 (2019) 7 SCC 1.
electronic record is covered by the Exception therein. ” This case illustrated the judiciary’s determination to follow procedural rigor but preparedness to compromise that where elemental justice calls for it. Despite this, courts continue to struggle over the applicability of “Section 63” requirements, particularly in dealing with cybercrimes, financial fraud and digital transactions, sources of evidence situated on foreign servers that, it is impossible to secure certification from. 27 Chain of custody integrity is yet another major factor in the admissibility of digital forensic evidence. Digital evidence can be more complex since it is more susceptible to unauthorized access, alteration, and deletion, unlike physical evidence that can be collated and tracked rather easily. Chain of custody is a term used to describe the documented, unbroken transfer of evidence.
Breaking this chain can lead to omission of critical digital evidence, like in the case of Ram Singh v. Col. Ram Singh28, where the Supreme Court stated that it is important that the chain of custody is not broken, as any break in the chain would destroy the value of the evidence. Chain of custody issues in the digital context are a consequence of improper forensic handling, inadequate methods for secure data preservation, and procedural shortcomings at the part of investigating agencies. The digital evidence is often verified by forensic examiners from Central Forensic Science Laboratory (CFSL) or Indian Computer Emergency Response Team (CERT-In) in courts. Due to procreation in forensic examination shortage of expert professionals always lead to rejection of electronic records on the ground of procedural noncompliance. In the matter of “Basheer v.
State of Kerala29“, the court emphasized the necessity of properly maintained digital evidence, as the absence of an acceptable forensic process resulted in evidentiary inconsistencies. The challenge is further pronounced in law enforcement agencies with limited digital forensic capabilities, which in some instances sees critical evidence thrown out in court due to authenticity concerns. This procedural complication involved in processing digital evidence is an impediment to their effective and unimpeded acceptance by the courts, thereby suggesting the need for reforms in forensic infrastructure and investigative approaches. 27 Digital Forensics Collection, Preservation & Appreciation of Electronic Evidence, available at: https:// www. nja. gov. in/Concluded_Programmes/2021-22/P-1271_PPTs/ 1.
Digital%20Forensics%20Collection,%20Presservation%20and%20Appreciation%20of%20Electronic%20E vidence. pdf (last visited on February 17, 2025).
28 [1985] 3 SCC 611.
29 [2017] 5 SCC 1.
Judicial discretion is vital because it determines which digital forensic evidence made by a digital forensic expert will be accepted by the court, especially for the court to put into consideration matters that are expert in nature as the court will not be able to understand some parts of what a digital forensic witness has said. Digital forensics is a new and still-developing field, and many judges and practitioners have little formal training in the subject; often informal or external “forensics” experts are introduced in the case to verify the authenticity of electronic records and recover information to substantiate the evidence. Forensic laboratories like CFSL, CERT-In, etc. , prepare expert reports; however, failure of forensic analysis has resulted in contradictory findings and conflicting judicial precedents.
For example, in numerous call detail records (CDRs) cases, inclusion of digital evidence in forensic analysis has been significantly challenged. The reliance on private forensic firms for digital evidence analysis also raises questions of bias and conflicts of interest. Additionally, courts have rejected challenges on the basis of tampering or improper certification with respect to electronic evidence. In “Shamsher Singh Verma vs State of Haryana30“ the Supreme Court highlighted the fact that digital evidence is to be scrutinized in quite detail before it is admitted in a court of law. However, there are inconsistencies in legal decisions due to the disparate interpretations of digital evidence, given that judicial officers do not receive uniform training in digital forensics.
Hence, the importance of the judicial training related to the digital forensics as nowadays the courts are finding themselves in the midst of cases of cyber frauds, electronic evidence and cyberstalking etc. Emerging technology adds more types of digital evidence which makes litigation more complex. Novel technologies — including AI-generated evidence, deepfake videos, and blockchain-based transaction records — raise unique questions about whether they will be admitted in courts. AI-generated evidence, like machine-learning-based forensic analysis, has begun to permeate criminal investigations, but its reliability is hotly debated. We believe this increasing risk of bias and the potential for manipulated evidence to be presented to introduce a new category of legal regulation specifically for the AI-forensic tools and their evidence.
In the same vein, deepfake technology presents a grave threat to the evidential value of digital media. Deepfake videos — which utilize AI to produce increasingly lifelike false recordings — could be manipulated to mislead courts and call into question witness credibility. India does not currently have legal guidelines on the admissibility of AI-generated or deepfake evidence,
30 [2016] 15 SCC 485.
making it difficult for the courts to determine the reliability of such evidence. In contrast, density provides possible solutions for authenticating digital evidence because of its immutable ledger system. Despite the growing adoption of blockchain technology for financial transactions and contractual agreements, Indian courts still have not laid down a definitive law as to the admissibility of blockchain-based records. In jurisdictions like the United States, there are specific rules, known as the “Federal Rules of Evidence”, that outline the types of digital forensic evidence with defined criteria regarding their admissibility; however, India`s legal framework still lacks comprehensive laws on new-age digital evidence.
AI-generated evidence, deepfakes, and blockchain transactions exist outside the scope of specialized laws, leaving a legal gap that legislative reforms and judicial training will need to fill. 31 Case Studies: Digital Evidence in Action In India, several landmark cases have brought the role of digital forensic evidence to the fore and electronic records have emerged as critical to the outcome of the cases, whether in conviction or acquittal. Digital evidence found perhaps its biggest success story in the form of “State (NCT of Delhi) v. Navjot Sandhu32“, concerning the case of the 2001 attack of Indian Parliament. The case relied heavily on intercepted communications, including records of phone calls, to demonstrate the connections between the accused and terror groups.
Based on the calls made by the perpetrator on satellite phones, the power of digital forensic techniques was exposed and how digital evidence can aid counter-terrorism. The Supreme Court upheld call detail records (CDRs) and even email exchanges as credible evidence, establishing that electronic records, if duly authenticated, can be not only good evidence but great tools for prosecutors. In financial fraud and cybercrimes case too, metadata or IP logs have played a crucial role in securing convictions. A few major online banking fraud cases have successfully tracked and connected cybercriminals to illegal transactions utilizing digital footprints like IP address logs and transaction timestamps. This is possible by virtue of “Section 63 of the Bharatiya Sakshya Adhiniyam” (i. e. certification of electronic records).
However, alongside a vast range of successes in this area, there has also been a number of challenges regarding the use of digital forensic evidence with procedural factors leading to a number of outright rejections of critical electronic evidence. 31 Sunaina Jeevnani, "Role of Forensic Evidence in Indian Criminal Justice System", 4 Indian Journal of Legal Review 580 (2024).
32 [2005] 11 SCC 600.
One of the most talkative cases in respect to digital forensic evidence in India was the Aarushi Talwar case which is formally referred to as “Dr. Rajesh Talwar & Anr. v. CBI & Anr. 33“. The Aarushi murder case, a gruesome murder case of 14-year-old Aarushi Talwar and domestic help Hemraj Banjade, laid bare the serious deficiencies in the handling of digital evidence by investigative agencies. In an investigation where the Central Bureau of Investigation (CBI) tried to build a timeline of events on the fateful night of the incident based on backtracking digital forensic evidence, starting with call records, email exchanges and Internet browsing history. However, much of the electronic data was dismissed by the court or didn’t sufficiently corroborate the prosecution’s case because digital evidence was poorly collected, preserved and analyzed.
The forensic examination of Aarushi’s mobile data and deleted calls could have elucidated the sequence of events leading to her murder; however, in this case too, there were serious lapses in the documentation process of evidence, including the failure to properly seal and store devices, raising red flags about the chain of digital evidence scrutinized by law enforcement and presented before the court. Also, the forensic reports on the extraction of deleted SMS and emails did not strongly stand in the favor of the prosecution, causing the acquittal of the accused by the Allahabad High Court.
The Aarushi Talwar case is a cautionary tale on the need to preserve and protect the chain of custody for any digital forensic evidence, as any procedural blunder or negligence will lead to the exclusion of postulated critical digital recordings from the judicial process — thus jeopardizing the course of justice itself. Similarly, not obtaining a certificate under the provision of ‘Section 63 of the Bharatiya Sakshya Adhiniyam’ has also caused many rejections of that digital evidence۔ In the case of “Tomaso Bruno v. State of Uttar Pradesh34“, the Supreme Court dealt with the admissibility of CCTV footage in a murder case.
Notably, the prosecution sought to rely on surveillance footage to show the presence of the accused at the scene of crime which was deemed inadmissible in the absence of a proper “Section 63” certificate, authenticating the footage to be a true and accurate representation of the actual video. Digital evidence, no matter how likely to be relevant, cannot be relied on unless the certification requirements are met: the Court reiterated this key point. This decision highlighted the importance of following evidentiary protocol in presenting electronic records in the courtroom. Such challenges have led to exclusions in a number of cybercrime cases, where email correspondences and WhatsApp messages were not
33 [2013] 82 ACC 637.
34 [2015] 7 SCC 178.
admitted as evidence on the ground that proper authentication could not be provided under “Section 63. ” Such exclusions emphasize the procedural challenges involved in the consideration of digital forensic evidence and underline the requirement of forensic training to be imparted to law enforcement agencies so that digital forensics evidence is collected and presented in conformity with the law. Barring the challenges faced in the Indian forensic landscape, the digital forensic evidence acts an irreplaceable tool of investigation in the Indian legal system, especially in the matters of cybercrimes, financial fraud, and in issues surrounding organized crime. A number of cybercriminal2s have been convicted in recent years based on metadata, IP logs, and forensic recovery of deleted data.
Many cases of online harassment or cyberstalking have relied on IP address tracking and forensic analysis of social media activity for law enforcement to prosecute, as was the case with one of many similar incidents. Courts have given increasing weight to the probative value of digital records in such cases in statutory and common law jurisdictions, as long as the electronic records have been authenticated according to the principles laid down by the law. But the law remains vague in the face of cases involving advanced digital manipulation techniques, like deepfake videos and Al-generated evidence, in which existing legal provisions don’t specify whether the evidence would be admissible.
The lack of a universally accepted method for validating altered digital information introduces ambiguity in judicial processes and underscores the need for immediate reforms in digital forensic practices. The above case studies show the success and challenges in the way of the digital forensic evidence in India. While electronic records have become an important cog in securing convictions in cases like the Parliament attack and cyber fraud, lapses in procedural requirements have resulted in critical pieces of evidence being kept out in cases like Aarushi Talwar and Tomaso Bruno. These cases shed light on the need for reform of forensic practices, judicial training, and legislative clarity around the nature of digital evidence. India thus needs to shift to a more unified digital forensics protocol that gives the same weight to the digital evidence as we do to physical evidence.
These challenges, if addressed, will help us to achieve the full potential of utilizing digital forensic evidence for making our justice delivery systems more efficient and trustworthy. 35 Systemic Challenges and Future Directions The legal ecosystem in India, however, displays certain systemic caveats as far as enforcement of digital forensic evidence in a court of law is concerned. Of these challenges, the most prominent is probably, the technical limitations, and infrastructure constraints of law enforcement agencies and forensic labs in dealing with digital evidence. The total lack of digital forensic labs in the Indian scenario brings down the donations of electronic evidence to be collected, preserved and analyzed in a cost-effective yet timely way.
While agencies like CFSL and CERT-In assist cyber forensic investigations, the number of cyber-related cases has outstripped the capacity of these institutions. However, many law enforcement agencies, especially in smaller jurisdictions, lack the advanced forensic tools that are often needed to access encrypted or deleted data. What’s more, the absence of cohesive forensic processes from one state to another leads to inconsistencies in how digital evidence is handled as well, to the point that some cases have been thrown out in court because of procedural errors. Moreover, investigators suffer from old forensic tools and methods which are very much challenging. In many cases, forensic methods deployed to scrutinise electronic evidence have not evolved as quickly as the digital threat, such as deepfake videos, cryptocurrency paths, and advanced encryption systems.
When they need high-tech forensic analysis, investigators often rely on private forensic firms, raising issues of bias and data integrity and possible conflicts of interest. Such measures are even more important because law enforcement officials are not trained in the science of forensics, which further compromises digital investigations, as officers often do not follow the proper chain of custody which may result in digital evidence being thrown out of court. To overcome this, India needs to invest in modern forensic infrastructure, approval processes for labs, and cutting-edge digital technology for law enforcement agencies to promote the credibility and admissibility of electronic records. Inconsistent approach of the judiciary to digital forensic evidence needs procedural reforms and legal reforms as are necessary to nullify this.
A major head of dispute has been the opposing interpretations of what was at the heart of these proceedings — the admissibility of electronic evidence as governed by “Section 63” of the Bharatiya Sakshya Adhiniyam. In “Anvar P. V. v. 35 Roshna Zahan Badhon, "Analysis on Admissibility of Digital Evidence in Present Era in the Context of Bangladesh", 10 International Journal of Law 18 (2024).
P. K. Basheer & Ors. ” Whereas a strict adherence of “Section 63” being “mandatory” was laid down in “Anvar P. V v. PK Basheer36“ during which subsequent rulings like “Shafhi Mohammad v. State of Himachal Pradesh37“ diluted this requirement creating a lot of confusion in lower courts. The Supreme Court subsequently sought to clarify the matter in “Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. 38“, re-checked and conformed with the final decision that in the case of “Section 63” certification is must but as can be deviated in some of respective cases, where the party producing the evidence is not in control of the electronic record. All these conflicting judicial pronouncements underline the immediate need for Legislative amendments that establish a uniform and clear framework for the admissibility of digital evidence.
In addition, the procedure for certification in accordance with “Section 63” remains onerous, especially in matters with an evidence mishmash like social media platforms, encrypted messaging services, and cloud-based data storage. Courts often deal with the challenge of expecting the digital evidence to originate from a third-party platform hence obtaining a certification from the author of the electronic record becomes difficult. By virtue of these hurdles, the reformatting of list of stakeholders looking to come-out with reformatting of the legislation ought to introduce radical reformations in the certification process and make it digitized, by allowing the digital forensic examiners appointed under the captioned clause to certify electronic records to overcome the misguidances while admitting digital evidences.
Also, there is a need for the “Bharatiya Nagarik Suraksha Sanhita” to be updated by India regarding procedural laws, to provide clear guidelines on the collection, preservation and submission of electronic evidence so that there is no dissonance in judicial interpretations. 39 Capacity building is yet another avenue that has been important since a long time and specifically requires a push to strengthen the utility of digital forensic evidence in India. One of the major challenges to use of electronic evidence in courts is poor digital literacy skills of judges, lawyers and investigators. Judicial officers at the lower court level (such as the local magistracy) encounter challenges interpreting digital forensic reports and assessing electronic evidence technical reliability such as hearsay.
This strangeness often manifests itself in misplaced skepticism toward digital records or over-reliance on forensic experts, both of which create inconsistency in judicial determinations. To address this lack of knowledge,
36 [2014] 10 SCC 473.
37 [2018] 2 SCC 801.
38 [2020] 7 SCC 1.
39 Ravi Sharma, Mahak Jain, "Revolutionising Digital Forensics
India’s New Legal Frontiers", Bar & Bench, July 27, 2024. specialists in digital forensics programs should train judges and prosecutors to have an insight into electronic evidence, blockchain transactions, accessing and analyzing metadata, as well as investigating cybercrime. In addition, laws need to ensure that there is ongoing training to keep police and forensic investigators up to date with developments in the leading digital forensic techniques, including breaking encryption, recovery of data, and the use of artificial intelligence in forensic analysis. The Role of public-private partnerships in bolstering forensics in India Law enforcement agencies can work with technology companies and cybersecurity experts to develop cutting-edge investigative strategies and forensic techniques to keep up in line with the changing digital paradigm.
Multiple law enforcement organizations in developed nations, particularly the US and the UK, are collaborating with private forensic organizations to process digital caseloads and present relevant digital forensic evidence for adjudication. India too should follow this approach; to leverage its strong technology sector to augment forensics and to bring in the worlds of law and technology. Upon obtaining such evidence, other issues arise that touch on the ethics of using digital forensic evidence, which shall be addressed, including the trade-offs between privacy rights and investigatory efficiency. The decryption debate, under the “Information Technology Act, 2000”, has been one of the most hotly contested issues in the last few years, where law enforcement agencies called for greater powers to access encrypted data in the national interest and to investigate crimes.
Although digital forensics needs to decrypt electronic records its identity for criminal activity, lack of substantive law pervading decryption leads us to privacy concerns. So, it is no wonder, then, that the debate has taken a turn as end-to-end encryption technologies have gained popularity, especially in the case of messaging applications, such as WhatsApp and Signal, which make it exceedingly difficult for law enforcement agencies to access encrypted communications. The courts in India have had differing views on the issue, with some judgments emphasizing the investigative agencies’ right to search and seize digital records, while others underline the constitutional right to privacy as affirmed in “Justice K. S. Puttaswamy (Retd. ) v. Union of India”40.
The absence of codified policy on the treatment for encrypted digital evidence introduces ambiguity for law enforcement entities and technology companies, underscoring the need for a legislative framework that explicitly delineates the boundaries of lawful interception and decryption activities while preserving individual’s privacy rights. In cases involving AI-generated digital evidence, deepfake technology, and
40 [2017] 10 SCC 1.
digital surveillance tools, ethical issues also turn up. As forensic analysts rely more on AI, concerns arise about bias, data quality, and accountability of machine-generated evidence. The emergence of deepfake technology, which allows for the generation of super-realistic manipulated video, adds a new challenge for courts trying to assess the authenticity of digital recordings. As no specific provisions exists under Indian law to regulate or even admissibility of AI evidence under the provisions of Indian Evidence Act, which calls for establishing legal safeguards against manipulated data. Ethics also plays a role in digital surveillance, with much concern surrounding mass data collection and governmental overreach. However, checks and balances are essential to ensure investigative practices do not come at the expense of the most basic rights.
41 Overcoming these systemic hurdles and envisaging a way forward for digital justice in India must involve a multi-pronged approach encompassing legal reforms, forensic infrastructure, capacity building, and ethical safeguards. The availability and use of digital forensic evidence in criminal and civil litigation is ever-increasing and, therefore, there is an urgent need to review and redraft the legal framework in India to provide clarity, consistency, and efficiency in how electronic records are handled in the legal system. The legislature will need to amend the existing law to segregate the procedural complexities with regard to certification under “Section 63” and clearly lay down the test for admissibility of new-age digital evidence such as AI-generated content, deepfakes, and blockchain transactions.
Enhancing the reliability of electronic evidence remains critical, and will require the expansion of a legal forensic infrastructure (e. g. , through additional accredited digital forensic labs) and granting law enforcement agencies with effective investigative tools. In addition, enhancing digital literacy across the entire ecosystem of crime-fighting agencies — all the way from judges to district attorneys and investigators— through dedicated training programs will eliminate information asymmetries between legal and technical knowledge. Data protection and the ethical implications of privacy, decryption and AI-based forensics should be addressed through properly defined policies to strike the right balance between the need for investigations and respect to fundamental rights.
With opponents creeping into dark corners of the web to commit digital crimes, the legal system in India needs to strengthen itself and advance proactively with technology to ensure justice, transparency and due process are upheld. Strengthening the legal 41 Rahul K. Bharati, Pragati G. Khodke, et. al. , "Forensic Bytes: Admissibility and Challenges of Digital Evidence in Legal Proceedings", 11 International Journal of Scientific Research in Science and Technology 24 (2024). and procedural framework for digital forensic evidence will enhance the efficiency of the judiciary and ensure that electronic records become a reliable and integral part of India’s justice system in the digital age. 42 Conclusion In India, the status of digital forensic evidence analysis shows significant progress and challenge interplays to the integration of electronic records in the legal system.
This verdict prominent the recognition of digital evidence, under the Bharatiya Sakshya Adhiniyam and the Information Technology Act, 2000, as a critical component to facilitating the modernization of evidentiary framework of India. Notably, landmark judicial pronouncements such as Anvar P. V. and Arjun Panditrao Khotkar case laid down the proposition, mandating Section 63 certification as a pre-requisite to establish the genuineness of electronic records. Yet conflicting interpretations have occurred as seen in Shafhi Mohammad case marring clarity and resulting in variable admissibility of digital evidence. These issues are compounded by the absence of a specialized forensic infrastructure, delays in procedures, and inadequate training of judicial officers and law enforcement agents.
The acceptance and dependency on e-records in complex and high-profile litigations in Indian courts show that these all have come a long way in supporting Criminal and Civil litigations. In this world of increasing cyber-crimes, financial frauds and also AI-assisted digital forgery, however, a stricter and quicker framing is necessary in the legal architecture of the country especially on the crime prevention and justice side of the story. Ingesting digital evidence — as we have discussed personally and collectively — is persistently bottlenecked by lack of technical and procedural mechanisms to seamlessly ingest digital evidence.
For such scenarios, ranging from social media content, records formed in cloud environments, and blockchain transactions, interception of digital system output would be virtually impossible; hence a need to have an incorruptible and flexible statutory framework. Second, the chain-of-custody arguments and the potential for digital evidence tampering both necessitate stricter forensic policies referring to the reliability of electronic records. India’s investment in forensic infrastructure needs to be more robust, with more accredited cyber forensic labs as well as training programs for law enforcement agencies. A judicial training program that focuses on 42 Shagun Kothari, Digital Evidence in Criminal Investigation, available at: https://lawfullegal. in/digitalevidence-in-criminal-investigation/ (last visited on February 19, 2025).
digital forensics will help the judges and magistrates keep pace with technology within the confines of the law. Moreover, in the long term, sound legislative policies concerning privacy, government surveillance, and the admissibility of AI-generated evidence will mitigate but not eliminate their misuse and will also help enable effective law enforcement. The conundrum is that as the importance of such digital forensic evidence continues to increase, so the capacity to hack, tamper with or otherwise compromise such digital evidence becomes a two-edged sword as it provides powerful tools for justice but shortcuts the ever-present specter of challenges to credibility of evidence and fraud on the process.
Balancing the preservation of constitutional rights against the backdrop of the rapid speed of technology evolution, and managing them as per need, shall be the key to ascertain the larger future of digital justice in the country. This may entail, among other things making the processes through which evidence is gathered multidisciplinary and efficient, expanding the capacity and use of judicial officials to include specialized knowledge of digital forensics, while also ensuring the legislative framework reflects the growing public interest in new digital applications. Addressing these gaps will enable India to build a digitally competent judiciary using forensic technology to enforce the law without infringing on individuals’ rights in the data age. 43 43 Nitish Gaur, Forensic Evidence in Criminal Investigations in India, available at: https://recordoflaw.
in/forensicevidence-in-criminal-investigations-in-india/ (last visited on February 12, 2025).