The Delhi High Court, in a judgment delivered by Justice Subramonium Prasad in Dell International India v. Adeel Feroze, held that WhatsApp conversations and other electronic communications cannot be admitted as evidence in legal proceedings without a valid certificate under Section 65B of the Indian Evidence Act, 1872. The Court ruled that electronic records produced without the requisite certification cannot form the basis of any legal proceedings.
Background
The dispute arose in a commercial context where one party sought to rely upon WhatsApp messages exchanged between the parties as evidence of contractual commitments and communications. The opposing party challenged the admissibility of these electronic records on the ground that they were produced without the mandatory certificate under Section 65B of the Indian Evidence Act, 1872.
The question of electronic evidence admissibility has been a recurring area of judicial interpretation since the Supreme Court's landmark decision in Anvar P.V. v. P.K. Basheer (2014), which established that electronic records are admissible only when accompanied by a Section 65B certificate. The subsequent decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) by a three-judge Bench reinforced the mandatory nature of this requirement. Despite these precedents, lower courts and tribunals have frequently encountered situations where parties attempt to tender WhatsApp screenshots, email printouts, and other digital communications without proper certification.
Key Holdings
The Delhi High Court reaffirmed the following principles regarding electronic evidence:
Mandatory certification: WhatsApp messages, being electronic records within the meaning of the Information Technology Act, 2000, must be accompanied by a certificate under Section 65B of the Indian Evidence Act for admissibility. This requirement is mandatory and not merely directory.
Screenshot insufficiency: Mere screenshots or printouts of WhatsApp conversations do not satisfy the evidentiary requirements. The certificate must identify the electronic device from which the record was produced, describe the manner in which it was produced, and certify the authenticity of the electronic record.
No foundation without certification: Electronic records tendered without a valid Section 65B certificate cannot form the basis of any legal proceedings, whether civil or criminal. Courts cannot rely upon such uncertified records even for corroborative purposes.
Authentication requirements: The Court clarified that the certificate must be provided by a person who had been in charge of the device or had responsibility for the relevant activities at the material time, ensuring a proper chain of custody for the electronic evidence.
Implications for Practitioners
This judgment serves as a critical reminder for litigators who routinely seek to rely upon digital communications in commercial disputes. The practical challenge lies in obtaining a compliant Section 65B certificate, particularly in adversarial situations where the relevant device may be in the possession of the opposing party or a third party.
Practitioners should establish evidence preservation protocols at the earliest stage of any dispute. This includes identifying the electronic devices from which WhatsApp messages or other digital communications need to be extracted, securing custody or access to those devices, and obtaining certificates from persons with direct knowledge of the device and its operation.
With the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replacing the Indian Evidence Act for proceedings initiated after 1 July 2024, the corresponding provision in Section 63 of the BSA continues the certification requirement with substantially similar language. The underlying principle therefore remains unaffected by the statutory transition, making this judgment relevant for proceedings under both regimes.