WHATSAPP – Can It Be Considered As An Evidence In Sexual Harassment Cases?

INTRODUCTION

Social media, this word has transitioned from once being the talk of the town to now becoming synonymous to communication. It has crept into our lives in such a way that it is impossible to imagine a day without it. In India, as of 2022, 467 million active social media users, that’s up 4.2% compared to the stats in 2021. That means no one is alien to its existence. With it being the medium to greet everyone GOOD MORNING to wish birthdays, in recent years it has also shown its ugly sight by it becoming a way to scam innocent users and often we hear complaints about them being harassed online. So, naturally one asks the question whether a screenshot can become evidence to file a complaint. In the rest of this article, we’ll try to answer this question briefly.

THE LAW

It is coded in the Indian Evidence Act of 1872, specifically in Section 65A of the Indian Evidence Act, that yes, electronic evidence are admissible if they satisfy certain conditions which are mentioned in Section 65B of the same act.

1. The court must see the electronic record in person.
2. A certificate identifying the electronic record containing the information and outlining its creation procedure must be included with the electronic record.
3. A person in an official position responsible for the device’s operation or the supervision of the pertinent activities must sign the certificate.
4. The person presenting the electronic record must provide an accurate and comprehensive representation of the data included in the electronic record as evidence.

THE LAW’S APPLICATION IN CONTEXT TO A WHATSAPP MESSAGE

Therefore, if one wants to use a WhatsApp message as evidence, then it must satisfy the above stated conditions. So, the WhatsApp message must be submitted in electronic form before the hon’ble court. A document that identifies the electronic record containing the WhatsApp message and details how it was created must be provided along with the electronic record containing the message and a certification must be signed by an individual taking up a responsible official position.

There are several instances wherein, the hon’ble courts of India faced the question of whether WhatsApp is acceptable as evidence or not and through various judgements they have answered this query.

For instance, In the case of Anvar P.V. v. P.K. Basheer, the Supreme Court of India held that as long as the Indian Evidence Act’s rules are followed, electronic records like WhatsApp chats can be used as evidence in court. The court additionally ruled that computer programmes like hash values or digital signatures can be used to prove the validity of electronic records.

Also, the Supreme Court has cited WhatsApp chats as proof in Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another and stating that “the WhatsApp messages which are virtual verbal communications are a matter of evidence with regard to their meaning and its content to be proved during the trial by evidence in chief and cross-examination.”

But we must know that WhatsApp is secondary evidence in nature and not primary evidence. This means that unlike primary evidence they aren’t the best source of information and they can’t be admitted if they don’t meet the conditions laid down in section 65 of the Indian Evidence Act.

That is why a WhatsApp forward message lacking a known source was not considered as evidence by the Delhi High Court in the case titled National Lawyers Campaign for Judicial Transparency and Reforms v. Union of India.  As the court ruled that such a forwarded message cannot be treated as a “document” under the Evidence Act without the original (original source).

Concluding this article, there is no black-and-white answer to whether WhatsApp messages can be considered as evidence or not. The message shall only be considered as evidence only if it fulfils the legal requirements.

ITS IMPLICATION ON SEXUAL HARASSMENT CASES

Today, when everything is connected via technology, the relevance of private messaging apps has grown significantly. WhatsApp is a need for all of us to do our daily business. Additionally, WhatsApp and other social media platforms are used in the crimes. The number of cybercrimes is rising daily. Even online, women are frequently harassed, abused, and trolled.

Most of the victims find it difficult to gather evidence for cases of sexual harassment as most of them occur when no one is around. But the fact that WhatsApp messages are considered evidence not just in Internal Committee’s proceedings but also in the courts, is a sign of relief as the scope of justice is not limited to the four walls of IC.

The reason behind the emergence of the POSH Act was to keep up with the contemporary world we live in. To accept the fact that workplaces do have a tendency to become toxic towards their female employees. The fact that not just the POSH Act, but also the Indian Judicial System is leaving no stone unturned to keep up with time, is assuring that justice won’t be obstructed by the everchanging technology around us.

ABOUT THE AUTHOR

Hemansh Tandon is an advocate based in Delhi. He is an avid reader and has a keen interest in writing prose and verses.

REFERENCES

1. https://www.statista.com/statistics/284436/india-social-media-penetration/#:~:text=Social%20network%20penetration%20India%20Q3%202022&text=Growing%20digitalization%20efforts%20combined%20with,were%20active%20social%20media%20users.
2. https://www.localcircles.com/a/press/page/indian-women-internet-usage-survey
3. https://www.mondaq.com/india/arbitration–dispute-resolution/1280114/electronic-evidence–revisiting-the-basics#:~:text=Proving%20contents%20of%20Electronic%20Records&text=The%20aforesaid%20ambiguity%20is%20removed,record%20produced%20is%20in%20question%22.
4. https://www.indiacode.nic.in/bitstream/123456789/15351/1/iea_1872.pdf
5. https://corporate.cyrilamarchandblogs.com/2021/01/supreme-court-on-the-admissibility-of-electronic-evidence-under-section-65b-of-the-evidence-act/
6. https://lumierelp.com/articles/admissibility-of-e-evidence-are-whatsapp-chats-admissible-in-court/
7. https://sociallawstoday.com/are-whatsapp-chats-admissible-in-court/#ADMISSIBILTY_OF_ELECTRONIC_RECORD_UNDER_INDIAN_EVIDENCE_ACT
8. https://www.legalserviceindia.com/legal/article-5124-exploring-the-concept-of-primary-and-secondary-evidence.html#:~:text=Primary%20evidence%20is%20the%20main,exception%20to%20the%20general%20rule.
9. Are WhatsApp Chats Admissible in Court? – Social Laws Today

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