INTRODUCTION
The criminal justice system has always relied upon written evidence, oral testimonies and physical objects. However, with the rapid digitalisation, the fundamental nature of evidence has been altered to meet the needs of the present. Now, conversations are digitally encrypted and leave digital imprints; often, the events are recorded using electronic audio and video means. This shift in technology has been acknowledged by the Bhartiya Nagrik Suraksha Sahita,[1] and now evidence can be presented in court through audio, video, and electronic means in criminal proceedings.
A significant step has been taken to modernise the proceedings, but a very important question arises? Can courts fully trust the electronic evidence presented in the age of artificial intelligence, as AI is capable of making any material object seem reliable and accurate? Now the concern is not about admissibility only, it is also about manipulation, fabrication and reliability and on what standards the digital evidence will be evaluated.
LEGAL RECOGNITION OF DIGITAL EVIDENCE
Even before the enactment of the BNSS, Indian courts had started seriously dealing with electronic evidence. Section 65B of the Indian Evidence Act, 1872,[2] can be considered a turning point as it laid down the exact criteria for the acceptance of electronic records. The BNSS, though it has replaced the Code of Criminal Procedure,[3] is still on the same line of collecting, producing, and depending on electronic material for investigation and trial. Nevertheless, legislative approval does not mean that challenges related to authenticity, source integrity, and procedural fairness matters that the courts have been repeatedly dealing with are automatically resolved.
The Supreme Court’s ruling in Anvar P. V. v. P. K. Basheer[4] is still the leading authority on electronic evidence in India. The Court ruled that electronic records can only be admitted as evidence if the conditions of Section 65B are met in letter and spirit, including the submission of a certificate detailing the process of creation of the electronic record.
DIGITAL EVIDENCE UNDER THE BNSS: A PROCEDURAL SHIFT
The BNSS has shown a clear legislative intent to adapt to modern technologies. The law has acknowledged that digital evidence is no longer supplementary and it is central to the criminal trial and investigation.
Digital evidence may include:
- Call recordings and voice notes,
- CCTV footage and videos on mobile phones,
- Emails, chats, social media messages,
- Electronic logs,
- Watch history on streaming platforms.
Nowadays, the social media algorithm is so strong that the moment you discuss something on a call or search it on Google, your whole social media delivers the content for the same. So, the technologies have advanced, but they have their own share of disadvantages.
THE RISK OF MANIPULATION AND FABRICATION
The technological advancement has made it accessible for people to alter the digital content. Edited audio clips, fake screenshots of chats, selectively trimmed videos, and manipulated metadata and whatnot. There are so many apps and AI Bots available to the general public for making deepfakes and manipulating the evidence.
In such a context, the risk is not hypothetical; now that the court is relying upon robust electronic evidence, there needs to be some mechanism to check the authenticity of the evidence produced. There is a possibility of miscarriage of justice, either by wrongful conviction or wrongful acquittal. A defence lawyer can present fabricated evidence in court to prove his client innocent, and this will lead to injustice to the other party and also will not serve as a deterrent. This concern does not undermine the digital evidence, but there is a need for procedural safeguards and judicial scrutiny.
Tomaso Bruno v State of Uttar Pradesh (2015),[5] “the Supreme Court recognised the evidentiary value of electronic records such as CCTV footage and emphasised that adverse inference may be drawn when such evidence is withheld. At the same time, the judgment implicitly acknowledged that electronic evidence must be handled with care, as its absence or alteration can materially affect the outcome of a trial.”
THE DELUSION OF OBJECTIVITY IN DIGITAL EVIDENCE
The idea that digital evidence is objective is one of the riskiest presumptions. Digital logs, recordings, and videos frequently seem objective and truthful. However, technology records data that can be generated, altered, or selectively captured rather than reality.
Conventional ideas of proof have been further undermined by the development of artificial intelligence. These days, deepfake technology can produce audio and video content that is identical to real recordings. Timestamps can be changed, messages can be made up, and metadata can be removed. The mere fact that electronic content exists in such a setting tells us very little about its veracity. The fairness of criminal trials is directly impacted by this reality, which turns authenticity from a technical problem into a constitutional issue.
CHAIN OF CUSTODY AND THE FRAGILITY OF DIGITAL TRAILS
Authenticity in digital evidence is inseparable from process. In contrast with physical evidence, the deterioration of which comes visibly, digital evidence can be invisibly changed. And the entire evidentiary value could be compromised-a single break in the chain of custody: unauthorised access, delayed seizure, improper storage.
There was brief judicial confusion in Shafhi Mohammad v. State of Himachal Pradesh, [6]where the Court seemed to relax the requirements of certification in particular cases. This position was later clarified to prevent dilution of safeguards. The judicial trajectory is clear: flexibility cannot come at the cost of credibility. Especially under the BNSS, where electronic evidence is no longer exceptional, maintaining rigorous procedural standards becomes indispensable.
CAN COURTS TRUST WHAT THEY SEE?
The increasingly common use of electronic evidence compels the courts to reorient and seek legal adaptation to a basic change in what constitutes proof. Where images can lie, and recordings can deceive, the old assumption that “seeing is believing” no longer has absolute value. Trust in digital evidence must therefore be earned through procedure, not presumed through presentation.
CONCLUSION: TRUST MUST BE BUILT, NOT ASSUMED
Digital evidence has transformed the criminal justice system but has also exposed its vulnerabilities. The aim of the judiciary is not to distrust the digital evidence presented in the court. Rather, there is a demand for more organised procedures, scrutiny and judicial vigilance. What will be considered just or fair in today’s increasingly digital world will not be determined by how high-tech or sophisticated a piece of evidence looks, but rather how rigorously or comprehensively that evidence was assessed.
Author’s Name: Sana Sachdeva (Maharaja Agarsen Institute of Management Studies, Rohini, Delhi)
References:
[1] Bharatiya Nagarik Suraksha Sanhita 2023.
[2] Indian Evidence Act 1872.
[3] Code of Criminal Procedure 1973 (repealed).
[4] Anvar P V v P K Basheer (2014) 10 SCC 473.
[5] Tomaso Bruno v State of Uttar Pradesh (2015) 7 SCC 178.
[6] Shafhi Mohammad v State of Himachal Pradesh (2018) 2 SCC 801.
