The Indian Evidence Act has been amended by the Information Technology Act, 2000, to provide for presumptions in respect of electronic documents. A summary of these new provisions is given below.
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(a) Presumption as to electronic agreements:
ADVERTISEMENTS:
S. 85A provides that the Court shall presume that every electronic record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signatures of the parties.
(b) Presumption as to electronic records and digital signatures:
Under S. 85B, in any proceedings involving a secure electronic record, the Court shall presume, unless the contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
Until the contrary has been proved, the Court shall presume that the secure digital signature is affixed by the subscriber with the intention of signing or approving the electronic record.
ADVERTISEMENTS:
However, except in the case of a secure electronic record or a secure digital signature, there is no presumption regarding the authenticity and integrity of the electronic record or any digital signature.
(c) Presumption as to Digital Signature Certificates:
Under S. 85C, unless the contrary is proved, the Court shall presume that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information, which has not been verified, if the Certificate was accepted by the subscriber.
(d) Presumption as to electronic messages:
ADVERTISEMENTS:
Under S. 88A, the Court may presume that an electronic message forwarded by the originator through an electronic mail (e-mail) server to the addressee to whom the message purports to be addressed, corresponds with the message as fed into his computer for transmission. However, the Court shall not make any presumption as to the person by whom such message was sent.
(e) Presumption as to electronic records which are five years old:
S. 90A provides that where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court considers proper in that particular case, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him in this behalf.
What is proper custody as regards electronic records. – It is clarified that electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally would be. However, no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable. (Explanation to S. 90A)