Summary: This article examines the necessity of furnishing an electronic evidence certificate for proving the contents of documents in electronic form during arbitration proceedings. While an electronic evidence certificate has been held as a mandatory requirement in court proceedings, some courts have relaxed the said requirement for arbitrations. However, in certain cases, it has been observed that arbitrators have considered the absence of such an electronic evidence certificate as a factor for holding certain documents as inadmissible. Subsequently, given the restricted scope of judicial review concerning arbitral awards, such observations are typically insulated from challenge, thereby raising risks during litigation.
Under evidence law, the contents of a document must be proven either by presenting the original document (primary evidence), or by submitting copies as secondary evidence. However, providing primary evidence of electronic documents such as e-mails and video recordings is impractical, as it would require submitting devices such as computers, tablets, or mobile phones to the courts. Therefore, the contents of such electronic records are often proved through secondary evidence, in accordance with Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) (corresponding provision to the erstwhile Section 65B of the Indian Evidence Act, 1872).
As per the aforesaid provision, where a statement in evidence is sought to be given basis an electronic record, a certificate is required to be produced, detailing, inter alia, the particulars of the device, the electronic record that contains the statement, and provide undertakings related to proper storage of information and the working condition of the device. The requirement of a certificate under Section 63 of the BSA has been held as a mandatory condition for admissibility of evidence by way of electronic records.[1]
However, the Delhi High Court relaxed this mandatory requirement for arbitration proceedings in Millennium School v. Pawan Dawar,[2] stating that the absence of a Section 63 certificate cannot be the only ground for holding the evidence inadmissible. However, on this subject, the waters are muddled as arbitrators have treated the requirement of such certificate as one of the main grounds to render evidence inadmissible. Further, due to the limited scope of Section 34 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”), High Courts seldom interfere at such stage.
Analysis of the Implementation of Section 63, BSA, requirement in Arbitration Proceedings
In Millennium School (supra),the Delhi High Court observed that (i) Section 19 of the Arbitration Act stipulates that an arbitral tribunal shall not be bound by the BSA, and (ii) Section 1 of the BSA provides that the statute is not applicable to arbitral proceedings, and accordingly concluded that the requirement of a certificate under Section 63 of the BSA is not mandatory. Therefore, an arbitral tribunal cannot disregard evidence on the sole ground that the certificate under Section 63 is not provided or is defective. Further, in Scholastic India (P) Ltd. v. Kanta Batra,[3] the Delhi High Court has on similar lines stipulated the non-applicability of Section 63 of the BSA to arbitration proceedings.
However, in Aez Infratech (P) Ltd. v. Snowtemp Engineering Co. Ltd.,[4] the Delhi High Court observed that the arbitral tribunal had, inter alia, disallowed the claimant’s reliance on the statement of accounts for, in addition to containing various discrepancies, not being supported by an affidavit under Section 63 of the BSA. This led to the arbitrator concluding that the statement of accounts could not be relied upon. The Delhi High Court noted that while exercising powers under Section 34, courts cannot sit in appeal against the findings of the arbitrator. It concluded that a Section 34 court cannot substitute the opinion of the arbitrator, because the arbitrator is ultimately responsible for adjudicating the quality of evidence presented by the parties. Only if the opinion is completely perverse or unreasonable, can a Section 34 court interfere.
Similarly, in Indraprastha Gas Limited v. Pawan Casting,[5] the Delhi High Court observed that the arbitral tribunal had rejected the admissibility of certain photographs and videos because their authors and sources were unknown, and it was not compliant with Section 63 of the BSA. However, the court also held that under Section 34 of the Arbitration Act, the court cannot re-evaluate and reappreciate evidence and supplant the arbitral tribunal’s opinion. It observed that while the non-production of the Section 63 certificate was one of the main grounds for the arbitral tribunal rejecting the evidence, it was not the sole ground.
Although, the absence of a certificate for proving the contents of electronic records under Section 63 of the BSA is not fatal as per Millennium School (supra), it appears that arbitrators often rely on this deficiency as the primary ground for deeming evidence inadmissible. Such evidence is then excluded from the purview of the High Courts’ scrutiny and interference under Section 34 of the Arbitration Act.
Couched in myriad of reasonings for denying reliance upon the electronic records, observations by arbitral tribunal pertaining to the fatality of the non-production of a certificate under Section 63, BSA, become impervious to the scrutiny of the courts under Section 34 of the Arbitration Act. Such practices highlight the continued enforcement of the requirement of the certificate for proving the contents of electronic records and increasing the risks associated with its non-production.
Since the production of a certificate under Section 63 of the BSA has been held to be non-fatal for admissibility of evidence in arbitration proceedings, arbitral tribunals should ideally not insist on it. However, basis the ground realities and the prevalent practices of arbitral tribunals, parties ought to take a conservative approach and produce the said certificate. Arbitral tribunals may continue to regard the absence of the certificate under Section 63 of the BSA as a primary ground for holding the evidence inadmissible. Furthermore, given the limited jurisdiction of a Section 34 court, a successful challenge might be difficult.
[1] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571.
[2] 2022 SCC OnLine Del 1390.
[3] 2022 SCC Online Del 2351.
[4] 2019 SCC OnLine Del 9415.
[5] 2021 SCC OnLine Del 3050.