WhatsApp has over 1.2 billion users across the globe of which over 200 million belong to India alone. Naturally, all kinds of conversations are held over the platform including sensitive and private ones that are ostensibly encrypted to provide security to the users. However, in many instances, these conversations may prove to be vital to prove an accused person’s guilt or innocence with regard to the commission of wrongdoing. Since these conversations aren’t unequivocally reliable, the veracity of WhatsApp conversations as evidence in the court of law has been challenged time and again.
The issue has been subjected to various interpretations that are opposed to one another and thus it seems unclear whether the conversations held over this platform are viable or not. To provide clarity, relevant provisions under the Indian Evidence Act, 1872 must be examined.
Sections 65A and 65B of the Indian Evidence Act
- These provisions layout four conditions that must be satisfied in order to declare electronic records as evidence before the court. These conditions are:
- The computer output containing such information should have been produced by the computer during the period when the computer was used regularly to store or process information for the purpose of any activities regularly carried on during that period by the person having lawful control over the use of the computer.
- During such a period, information of the kind contained in the electronic record must have been regularly fed into the computer in the ordinary course of such activities.
- Throughout the material part of such a period, the computer must have been operating properly. In case the computer was not properly operating during such a period, it must be shown that this did not affect the electronic record or the accuracy of the contents.
- The information contained in the electronic record should of such nature that it can be derived from the information fed into the computer in the ordinary course of such activities.
The Indian Judiciary’s interpretation
Firstly, the Bombay High Court held that legal notices or messages sent through WhatsApp are valid legal evidence under law, and the blue tick over the messaging platform is valid proof that the recipient has accepted the physical copies of the communication. Later on, in the case of Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Ltd., the Supreme Court held that WhatsApp messages presented as virtual communications are matters of evidence with regard to their meaning and its contents and must be verified during the trial procedure by evidence-in-chief and cross-examination.
Justice A.K. Goel and Justice U.U. Lalit has also interpreted Section 65B and concluded that the provision must only be applied when such electronic evidence is presented by a person who holds the authority to produce such a certificate. Additionally, the apex court held that the requirement of a certificate to make electronic evidence admissible is not mandatory “wherever interest of justice so justifies”.
Basically, when a messaging thread over an application such as WhatsApp is to be produced as evidence before the court, the same must be affirmed by an official responsible for providing such validation under Section 65B of the Indian Evidence Act, 1972. In the practical sense, electronic records of conversations are not totally acceptable as evidence but can be considered so by the court’s discretion once it has passed the parameters et by law. To sum up, WhatsApp conversations can indeed be submitted as proof before the court of law but it must go through rigorous scrutiny and verification before it can be considered to be of material nature.