The courts have always tried to keep pace with development in technology both with regard to the process of the system of justice and the cases that pass through it. The harmonization of the law relating to information technology and evidence by the Indian legislature, together with the positive approach of the Indian courts in recognizing and appreciating electronic evidence, has equipped India to meet the new challenges of the digital era. The Indian courts have observed that the judiciary always respond to changing needs with regard to the development of technologies and uses its own interpretative principle to achieve a balance when Parliament has not responded to the need to amend the legislation, having regard to the development in the field of science. The Supreme Court of India has recognized that law must, therefore be constantly adapted to the speed of change in society. Again the apex court has further laid down that the expanding horizon of science and technology has thrown challenges to lawyers and judges dealing with the proof of facts in disputes where advance techniques in technology have been used. Storage, processing and transmission of data on magnetic and silicon media have become cost effective and easy to handle. Conventional means of records and data processing have become outdated, and rules relating to admissibility of electronic evidence and its proof have been incorporated into Indian law. Law of Evidence,
England and Common Law Scenario
The House of lords held among other things that the evidential status of computer print-out was no different from that of a photocopy of a forged cheque. In general it would therefore be documentary hearsay. According to common law the evidence are categorized as Direct and Indirect evidences. The existence of a physical object constitutes direct evidence. The object can be proven by its production, or by the testimony or declaration (which must be admissible)of a person who actually perceived the object, hence the human perception of a screen print out is admissible. Further in terms of evidence in electronic format, judges have admitted a record of the product of mechanical devices and automatic recordings, including photographs, tape recordings, the movement of a ship as traced by the radar and automatically recorded on film, the print out of the results of a test undertaken on a breath test machine, video recording, EAT, and computer print outs etc. Now coming to Primary and Secondary evidence, the common law distinguishes between the both as the production of an original document to prove the content in question, and submission of inferior evidence, such as a copy of document, termed secondary evidence. The concept of primary and secondary evidence take a different shape when applied to material object that must be processed to be viewed. To be more precise about Primary and Secondary evidence. We can state that the primary evidence of a document in digital format differs from the primary evidence of a physical document. The original of a physical document such as a commercial contract between both parties, signed by the authorized representatives of both parties and acknowledge as the original document, is primary evidence of the content of the contract. Now if the contract was created on a computer, the physical document will be the original document where it is signed and adopted by both parties. However should the contract, which was subsequently acted upon by both the parties, only exist on a computer, the next consideration(the content of the document) will be to determine whether there is primary evidence of the document, and if so where it is located. The primary evidence will comprise the hard drive or storage media upon which the document resides. If the parties can agree that the contract is stored on a particular hard drive, then printing the document out on paper will provide...