ISSUE 2 ADVANCED ARGUMENTS ( FOR THE APPELLANT)

1. unrestricted utilization of electronic evidence compromising the right

to privacy.
The unrestricted utilization of electronic evidence jeopardizes the right to
privacy. A pivotal moment in affirming the right to privacy as a fundamental
right occurred in the case of Justice K.S. Puttaswamy v. Union of India
(2017), where a 9-judge bench established its protection under Article 21 of
the Indian Constitution. This significant ruling not only acknowledged the
right to privacy but also emphasized its fundamental nature, highlighting its
safeguard against unwarranted intrusions by both state and non-state entities.

Furthermore, it is emphasized that the collection of electronic evidence should

adhere to stringent legal safeguards and requirements, such as obtaining
warrants and ensuring that the surveillance is targeted and proportionate. Failure
to do so, they argue, undermines the constitutional protection of privacy and
sets a dangerous precedent for unchecked state surveillance.
The invasive examinations of the appellants' phones undeniably violate privacy
and contravene the right against self-incrimination. Respecting the provisions of
Article 20(3) of the Constitution, as established in the case of State of Bombay
vs Kathi Kalu Oghal (1961)13, the courts affirmed that individuals have the
right to decline unlocking their phones for investigative authorities if they
reasonably believe that providing access could lead to self-incrimination
involving sensitive material.
In conclusion, the appellants posit that the use of electronic evidence in their
case violates constitutional principles, including the right to privacy and
freedom of speech. The Supreme Court's deliberation on this matter will not
only impact the outcome of the case but will also set a precedent for the
intersection of constitutional rights and electronic evidence in the context of
national security concerns.
 2. Questionable framework for the admissibility of electronic evidence
due to lack of regulations.
The legal framework for admissibility of electronic evidence is described in
Section 65A and 65B of the Indian Evidence Act, 1872, it prescribes a distinct
framework that governs the admissibility of electronic evidence. There have
been multiple litigations over the scope and ambit of Section 65B, with
divergent views taken by the Apex Court.
Under Section 65A of the Evidence Act, the contents of electronic records have
to be proved as evidence in accordance with the requirements of Section 65B.
Both Sections 65A and 65B were inserted through the Indian Evidence
(Amendment) Act, 2000, and form part of Chapter V of the Evidence Act, which
deals with documentary evidence. In Anvar v. Basheer, it was clarified that as
Section 65B begins with a non-obstante clause, if forms a complete code for the
admissibility of electronic evidence. The bench held that any documentary
evidence by way of an electronic record under the Evidence Act can be proved
only in accordance with the procedure prescribed under Section 65-B in the
light to Section 59 and 65A. Section 65-B deals with the admissibility of the
electronic record.

In the current situation, the appellants encountered a scenario in which the

electronic evidence used against them lacked the necessary certification. This
absence gives rise to concerns about the credibility and trustworthiness of the
evidence. The absence of the certificate required by Section 65B raises a
substantial question about whether the electronic evidence was unchanged,
authentic, and legally admissible.

Moreover, there have been a blatant disregard of due process during search and
seizure. The appellants allege that the police had not provided them with “hash
values” of the devices seized from them. A hash value is a unique numerical
value, equivalent to fingerprints for computer files, which investigating
agencies must provide when seizing an electronic device. Therefore, the
electronic evidence so seized in this case should not be admissible before the
Hon’ble Court.
3. Authenticity of the electronic evidence seized

Evidence remains admissible as long as it is relevant, and it is crucial to

acknowledge that the mere admission of evidence does not inherently
prove any fact. The Supreme Court, in various cases such as Yusufalli
Esmail Nagree19 and Anvar P. V., has recognized that electronic records
are susceptible to tampering. Consequently, the standard of proof for
authenticity and accuracy must be more rigorous compared to
documentary evidence. Specifically, voice recordings and WhatsApp
texts of the appellant pose an elevated risk of tampering and are notably
challenging to verify. In today's technological landscape, with the
prevalence of AI and deepfake technology, replicating call recordings has
become more feasible.

Considering the accessibility of a device with an OTP and recognizing

that the police have confiscated electronic evidence from the appellants,
the possibility of tampering or manipulation by the police and authorities
cannot be dismissed. Therefore, mere participation in a WhatsApp group
or the seizure of electronic evidence does not unequivocally establish
guilt, especially considering the potential for manipulation and
unauthorized access to digital platforms.
Hence, this represents a multi-layered invasion of privacy and a serious
infringement of the constitutionally guaranteed right to life under Article
21 of the Constitution.