Are Call Recordings Admissible in Indian Courts?

In an era where technology pervades every aspect of life, the question of whether call recordings are admissible in Indian courts is particularly relevant, especially under the scrutiny of the Supreme Court of India. The legal framework governing the admissibility of such evidence in India is nuanced, requiring a comprehensive understanding of various laws, judicial interpretations, and procedural norms set by the Union of India.

Legal Framework Governing Admissibility

Bharatiya Sakshya Adhiniyam, 2023 (which replaced the Indian Evidence Act, 1872 with effect from 1 July 2024):

Section 2 of the Bharatiya Sakshya Adhiniyam (BSA) defines evidence to include both oral and documentary evidence, and documentary evidence expressly includes electronic records such as tape recordings and call recordings.
Sections 61 to 63 of the BSA address the admissibility of electronic records. In particular, Section 63 (which corresponds to the former Section 65B of the Indian Evidence Act) provides that any information contained in an electronic record, which is printed, stored, recorded, or copied, shall be admissible as evidence if certain conditions are met.

Information Technology Act, 2000:

Section 2(t) defines “electronic record”, aligning with the definitions provided in the BSA, 2023 (and the former Section 65B of the Indian Evidence Act, now Section 63 of the BSA).
Section 2(r) and Section 2(v) provide further definitions crucial for understanding the scope of electronic records, which include call recordings that can be tendered as evidence in court.

Conditions for Admissibility under Section 63 of the BSA (formerly Section 65B) For a call recording to be admissible as evidence, the following conditions must be satisfied:

Original or Copy Requirement:

The recording must be either the original or a certified copy of the original to be considered valid evidence.

Computer Output:

A call recording often serves as a valid form of electronic evidence in a court of law. This involves technical safeguards, such as ensuring compliance with Section 63 of the BSA (formerly Section 65B of the Indian Evidence Act) and making sure the evidence submitted is intact. The recording must have been produced by a computer or communication device that was in regular use over the relevant period, as specified under Section 63 of the BSA. This implies that the device must have been functioning properly and that the information fed into it must have been regular and without any alteration.

Certificate Requirement:

A certificate is essential for establishing the authenticity of recorded electronic evidence. It must accompany the recording under Section 63(4) of the BSA (formerly Section 65B(4) of the Indian Evidence Act) to render the recording admissible, particularly for recordings of phone conversations. This certificate should detail the process by which the recording was produced, affirming the integrity and authenticity of the recording. The person occupying a responsible position in relation to the operation of the device or the management of the relevant activities must sign this certificate, and the signature must be affixed before the recording is produced before the court.

Judicial Interpretations and Landmark Judgments

State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005), in which the Supreme Court accepted a telephonic recording as electronic evidence.

In this case the Supreme Court had held that electronic records could be proved even without a certificate, under the general provisions on secondary evidence. This view has since been overruled by Anvar P.V. v. P.K. Basheer (2014), so it no longer represents the law.

Anvar P.V. v. P.K. Basheer & Others

The Supreme Court emphasized that strict compliance with Section 65B (now Section 63 of the BSA) is mandatory for the admissibility of secondary electronic records. This judgment overruled Navjot Sandhu, which had allowed for some flexibility in this regard. The Court held that, without the prescribed certificate, secondary electronic evidence such as a call recording is inadmissible.

Tomaso Bruno & Anr v. State of Uttar Pradesh (2015)

This decision had suggested that the best evidence rule applies to electronic evidence and that failure to produce CCTV footage could be held against the prosecution. However, Tomaso Bruno was later declared per incuriam (decided in ignorance of the binding law) by the Supreme Court in Arjun Panditrao Khotkar, so its reasoning on electronic evidence should not be relied upon.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

This three-judge bench decision is the controlling precedent on electronic evidence. The Supreme Court conclusively held that the certificate under Section 65B(4) of the Indian Evidence Act (now Section 63(4) of the BSA, 2023) is a mandatory pre-condition for the admissibility of secondary electronic records, including call recordings. It clarified Anvar P.V., overruled Shafhi Mohammad, and held Tomaso Bruno to be per incuriam.

Practical Considerations

Authentication Ensuring that the call recording is authentic and has not been tampered with is crucial, as the evidence submitted must be accurate for it to be admissible. This involves maintaining a clear chain of custody and using reliable software for recording and storage. In several cases, courts have accepted a telephonic recording provided it met all the legal requirements.
Privacy Concerns, including potential violations of the right to privacy, especially in the context of an authorized recording of telephone conversations. The admissibility of call recordings also involves considerations of privacy, particularly when the recording of calls is presented as recorded electronic evidence. Recording a conversation without the consent of the parties involved can raise legal and ethical issues, especially when the phone tapping is a serious offense or recording without the consent is carried out.
Relevance and Materiality of a recorded conversation, particularly in the context of call recording as evidence. Even if a call recording is admissible, its relevance and materiality to the case must be established, considering the authority behind recording. The recording should contribute to proving or disproving a fact in issue, as required by court order.

Conclusion

Call recordings are indeed admissible in Indian courts, provided they meet the stringent requirements now laid out in the Bharatiya Sakshya Adhiniyam, 2023 (which replaced the Indian Evidence Act, 1872) and are supported by the certificate mandated by Section 63(4) of the BSA (formerly Section 65B(4)). These requirements are elaborated below in the context of recorded conversations that are to be presented as valid evidence in a court of law. Stringent Requirements under the BSA, 2023

Original or Certified Copy:

The recording must be the original or a certified copy of the original to be admissible in a court of law. This ensures the integrity of the evidence submitted, preventing tampering or alterations.

Computer Output:

The recording must be produced by a computer that was regularly used to store or process information during the time period in question, especially for the recording of phone call between two people. This condition ensures the reliability of the recording process and minimizes the chances of manipulation, thereby validating it as admissible evidence.

Certificate Requirement: The certificate is mandatory for admissibility of secondary electronic evidence.

A certificate must accompany the recording, in line with the requirements of Section 63(4) of the BSA (formerly Section 65B(4) of the Indian Evidence Act). This certificate should confirm that the recorded conversation is unaltered and can be accepted by the court as evidence. It must:
Describe the manner in which the electronic record was produced.
Identify the device used to produce the record.
Confirm that the recording retains its integrity, having been made without any alterations.
Be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities. This certificate acts as a validation of the recording’s authenticity and reliability, thereby making the electronic evidence admissible before the court.

Ensuring Authenticity and Relevance is necessary, particularly where calls are recorded without the consent of all parties.

Authentication:

Ensuring the authenticity of the call recording is crucial for it to be evidence in court. The party to the conversation must verify this. This involves:
Maintaining a clear chain of custody from the moment the recording without any interruption is made until it is presented in court.
Using reliable methods and software for recording and storing the call to prevent any tampering, ensuring the legal integrity of call recording in India.
Documenting the process meticulously to provide evidence of the recording’s authenticity, ensuring it can be used as evidence in court under Section 63 of the BSA (formerly Section 65B). The required certificate must be duly signed to verify this.

Relevance:

The call recording must be directly relevant to the case to be admissible in evidence. Any recording of phone conversations must meet the relevance criteria, especially where the recording was made without the consent of the parties. It should contribute to proving or disproving a key fact in issue. Courts will assess:
Whether the content of the recording, such as a phone conversation, has a significant impact on the matters being litigated and its admissibility as evidence in court.
The context in which the recording was made, such as whether it was a telephonic conversation, and its relevance to the overall narrative of the case.

Evolving Legal Landscape: The evolving legal landscape in India continually assesses how recording calls becomes crucial in legal proceedings.

Staying Updated:

The legal framework governing electronic evidence, including recording phone calls and phone tapping, is continuously evolving with advancements in technology and changing judicial interpretations. It is crucial for individuals and legal practitioners to: understand the requirements for recording calls as admissible in evidence.
Keep abreast of the latest amendments in laws related to electronic evidence and the legality of call recording orders issued.
Follow recent judgments and case law that provide interpretations and clarifications on these laws, including the specifics of recording as evidence in court, and the court held that these standards are essential.Understand the implications of new technologies on the admissibility of evidence and authenticity of electronic evidence within the context of legal proceedings.

Adapting to Changes: Including recent amendments and judicial interpretations of Section 63 of the BSA (formerly Section 65B of the Indian Evidence Act).

As technology evolves, new methods of recording and storing electronic evidence emerge. Legal practitioners must be adaptable and ready to integrate these new technologies while ensuring compliance with existing legal standards, especially in the context of recording of calls.
This includes understanding the technical aspects of new recording devices and software, as well as the legal implications of their use in the context of the right to privacy and call recording in India.

In summary, while call recordings are admissible in Indian courts, meeting the legal requirements, such as complying with the certificate requirement under Section 63(4) of the BSA, 2023 (formerly Section 65B(4) of the Indian Evidence Act), is critical. Ensuring the recording’s authenticity, obtaining the necessary certification, and demonstrating its relevance to the case are key factors for it to be admissible in evidence, especially when the recording is used as recorded electronic evidence. As the legal landscape continues to evolve, staying informed about current laws and judicial interpretations is essential for effectively navigating the admissibility of electronic evidence in legal proceedings. This comprehensive approach ensures that electronic evidence, including that obtained from recording phone conversations, upholds the principles of justice, fairness, and reliability in the judicial process.

Are Call Recordings Admissible in Indian Courts?