Digital Evidence and Cybercrime: Admissibility and Challenges under Indian Law

Abstract

 In the twenty-first century, technology has a vast scope and reshaped almost every aspect of human life, which includes the way crime is committed, investigated and prosecuted. Digital evidence and cybercrime are two hot teas which always be on table to debate or to discuss. The digital age has given rise to new forms of criminal activities such as hacking, identity theft, online fraud, cyberstalking, and many such which rely heavily on electronic means. As a result, In India, the increasing prevalence of cybercrime and technology-driven offences has made reliance on electronic records inevitable.

When it comes to admissibility In India, the legal framework governing the same of digital evidence is primarily shaped by the Indian Evidence Act ,1872 {presently replaced with Bharatiya Sakshya Adhiniyam , 2023 that consolidates rules of evidence for fair trial} as amended by the Information Technology Act,2000 which lays down the conditions for their admissibility.                                                                              

Introduction

As we are in 21^st century the advancement of technology had reached the sky high and in result for the same the digital society has created where communication, commerce, and governance rely heavily on the electronic platforms. Alongside these benefits, there has been a risk of rise in cybercrimes such as hacking, identity theft and as such.

Digital evidence, however, is different from traditional evidence. It is intangible, can be altered easily without leaving any traces, for the same which also requires technical expertise to collect and present in court. Therefore, the questions of authenticity, reliability, and admissibility become central and also challenging for the same, even though provision are present in Evidence Act, but gaps still remain. 

However, this article seeks to explore the concept and legal framework of digital evidence and cybercrime in India, analyze its admissibility under existing law, highlights the challenges faced in practice, and suggestion for strengthening the justice system in the digital era.

Understanding Digital Evidence

In simple way looking into the meaning and nature of digital evidence refers to, information stored or transmitted in electronic form that maybe used in judicial proceedings.

When it comes to its types:

• Electronic communications
• Audio-visual materials
• Social media content, all such can be included in the meaning or the definition of the electronic evidence.

Legal Framework and Admissibility in India

• Indian Evidence Act,1872 [now Bharatiya Sakshya Adhiniyam ,2023]

Electronic Records, Section 61 shows that a document is an electronic record. Similar to a paper document, it can be used as proof.

Speaking about the admissibility of the electronic evidence section 63 of BSA,2023, says that where an electronic records to be admissible it needs the certificate stating how it was provided, detail of the device used and the signature of the person from system control all these three needs must be fulfilled to called it as electronic evidence.

• Admissibility of Electronic Evidence – A Modern Legal Necessity

In today’s digital age, evidence is no longer confined to paper documents or physical objects. Most of our transactions, communications, and activities leave a digital footprint email, WhatsApp messages, CCTV footage, call records, and even social media posts. But while these records are powerful proof, courts

cannot accept them blindly. There must be a guarantee that what is being presented is genuine, untampered, and reliable.

• The Bharatiya Sakshya Adhiniyam, 2023 (BSA) recognises this need. Under Section 61, electronic records are treated as documents, but their admissibility is subject to strict safeguards. The law insists on authenticity, relevance, and integrity.

One of the key safeguards is the certificate under Section 63(4) (earlier Section 65B of the Indian Evidence Act). This certificate must come from a person responsible for the device or system from which the record is produced. It should explain:

• Which device produced the record
• How the record was created
• That the device was functioning properly at the time
• Who is certifying the record and in what capacity

Without this certificate, most electronic evidence simply cannot be admitted in court — unless the original device itself is brought and examined before the judge.

This principle was firmly established by the Supreme Court in Anvar P.V. v. P.K. Basheer ¹   Court made it clear that the certificate requirement is not optional it’s a legal necessity to prevent manipulation of digital data.

Later, in Arjun Panditrao Khotkar ² the Court reaffirmed this rule but added that if the device itself is produced, a certificate is not needed.

In simple terms, the law says: “If you want the court to believe your digital proof, you must show where it came from, how it was made, and that it hasn’t been altered.”

As technology continues to evolve, this safeguard ensures that justice is based on trustworthy, verifiable evidence protecting both the rights of the accused and the integrity of the legal system.

• Information Technology Act, 2000

The IT Act gives the legal recognition to electronic records and the digital Signatures not only this the Act also defines the offences such as hacking, identity theft, and so on. This act is the complement to Evidence Act which ensure the legal validity of electronic evidence as equal as paper document. 

Challenges concerning the same

• Tampering risk, the digital data can easily be altered without leaving any trace which is a major concerning issue which has to be looked into and which leads to high risk of tampering the evidence matter concerning cybercrime.
• Jurisdiction problems, as we all know that the cybercrime doesn’t limit the jurisdiction I.e., which often cross the national border in result to this there will be a procedural hurdle.
• Technical complexity, as the cybercrime happens in the most sophisticated way it requires most skilled person or the authority to tackle it I.e. lawyers, judges, police often lack deep technical expertise. This is one such hurdle which is present even today after taking much necessary legal provision which basically show that to tackle the cybercrime day by day seems difficult as it happens in very sophisticated way.
• Privacy concerns, the right to privacy is recognized as the fundamental right under the article 21 of the Indian constitution when it comes to cybercrimes investigation they should have proper balance at the time of investigation. This balancing act is delicate where sometimes too much privacy protection can cribble the investigation, while too little can lead to surveillance and erosion of the freedom.

Suggestion: However, as we all know when there is advancement   in any field or platform it comes with its own hurdles or challenges so it is important to tackle such hurdles rather than just providing the legal provisions. So, in my opinion, skilled expertise is required to tackle the cybercrime the mere paper work/legal work is not sufficient for tackling the cybercrime.

Conclusion

In nutshell the advancement of technology created the digital society of which the concept of cybercrime came into the picture. Since from the initials  this concept is in discussion/ debate some of them blame the advancement on the other hand the provisions but nevertheless, the Indian law laid down the strict provisions no doubt about this but on the other hand there must be the precautionary measures as in how and what has to be done to tackle such crimes .As we know it is impossible to curb completely but through proper means and by using advanced technology tools it can be handled in more sensitive way at present .

References

1. Bharatiya Sakshya Adhiniyam, 2023, Sections 61 and 63.
2. Indian Evidence Act, 1872, Section 65B (repealed in 2023).
3. Information Technology Act, 2000, Sections 4, 5, 43, 66, 66C, 66D.
4. Ministry of Electronics and Information Technology (MeitY), Government of India, Information Technology Act, 2000 and Rules, available at: https://www.meity.gov.in.
5. Sharma, Surbhi, “Admissibility of Electronic Evidence in India: Challenges and Reforms,” Indian Journal of Law and Technology, Vol. 18, 2022.