No certificate, no problem? SC on electronic evidence

They needed a certificate to admit electronic evidence. The authorities refused to give it. The Supreme Court had to decide—

For the Respondents in Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, the situation was maddening. They had the electronic records—CDs sitting in a sealed envelope on the judge's desk, containing crucial evidence in an election dispute. They had the law on their side, or so they thought. What they did not have was a piece of paper. And that piece of paper, a certificate under Section 65B of the Indian Evidence Act (the provision that governs the admissibility of electronic records as evidence), was the only thing standing between them and the admission of their evidence. They asked for it. They pleaded for it. They even went to the High Court to compel its production. But the authorities who held the original electronic records simply refused to hand over the certificate. On some pretext or the other, they said no. The refusal letter, stamped with a date two months old, sat in the file—a quiet monument to a dead end.

The question that landed before the Supreme Court was this: when a party has done everything humanly possible to get a mandatory certificate for electronic evidence, and the third party holding the original records willfully blocks the process, does the law still insist on the impossible?

When the CD arrived without the certificate

The case began as an election petition—a legal challenge to the outcome of an election. The Respondents wanted to rely on electronic records stored on CDs. Under Section 65B of the Evidence Act, a certificate is required to prove that the electronic record is authentic. This certificate must be signed by a person in charge of the computer or device from which the record was generated. Without it, the electronic record is, in the eyes of the law, invisible—it simply does not exist as evidence.

The Respondents did not own the original electronic records. The records were in the custody of a third-party authority—someone else entirely. The Respondents approached this authority and asked for the Section 65B certificate. The authority refused. The Respondents then moved the High Court, seeking orders to compel the authority to issue the certificate. The High Court directed the authority to cooperate. Still, the authority refused, offering one excuse after another. The courtroom fell silent as the Respondents' counsel read out the sequence of refusals from the record—each one a variation on the same theme: not possible.

The Respondents were stuck. They had the electronic records, but they could not use them. The trial court, bound by the strict language of Section 65B, refused to admit the CDs without the certificate. The Respondents appealed.

The mandatory wall of Section 65B

Section 65B(4) of the Evidence Act is unequivocal: a certificate is mandatory for the admission of secondary electronic records (copies of original electronic data, like a CD or a hard drive copy). The Supreme Court had previously held, in the landmark case of Anvar P.V. v. P.K. Basheer, that this requirement is not a mere formality. It is the bedrock of authenticity. Without the certificate, the electronic record cannot be admitted.

The Respondents did not dispute this. They accepted that Section 65B(4) is mandatory. Their argument was simpler: they had done everything they could. They had sought the certificate from the authority. They had sought the High Court's intervention. They had even invoked judicial mechanisms like Section 165 of the Evidence Act (the court's power to ask for documents), Order XVI of the Civil Procedure Code (the procedure for summoning witnesses and documents), and Section 91 of the Code of Criminal Procedure (the power to order production of documents). The authority had defied all of them.

The Respondents argued that the law could not demand the impossible. If the person who alone could issue the certificate refused to do so, and the courts could not compel them, then the mandatory requirement must yield to the reality of the situation. The Supreme Court, in its judgment, captured this directly: "the law does not demand the impossible"—a principle drawn from the Latin maxim lex non cogit ad impossibilia. The Court added that "when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused"—the maxim impotentia excusat legem.

Why the court looked at two Latin maxims

The Supreme Court agreed with the Respondents' position. The bench invoked those two principles that are as old as law itself: lex non cogit ad impossibilia (the law does not demand the impossible) and impotentia excusat legem (when a disability makes it impossible to obey the law, the alleged disobedience is excused). The courtroom fell silent as the Latin maxims were read out—their weight settling on the record like a final judgment on the matter.

The Court reasoned that the requirement under Section 65B(4) is indeed mandatory. But mandatory does not mean absolute. When a party has exhausted every reasonable avenue to obtain the certificate—including judicial orders—and the third-party authority still refuses, the party cannot be penalized for the authority's defiance. The law is not a trap. It is a framework for justice. And justice cannot be defeated by a third party's refusal to cooperate.

The Court clarified that this was not an exercise of its extraordinary powers under Article 142 of the Constitution (the Supreme Court's power to do complete justice in any case before it). This was a finding of law, grounded in precedent, meant to apply in all situations where procurement of the certificate is genuinely impossible. The file felt thin in the hands of the Respondents' lawyer—but the principle it contained was thick enough to shift the ground beneath electronic evidence law.

The key distinction the Court drew was between a party who negligently fails to obtain the certificate and a party who tries everything but is blocked by a third party. In the first case, the certificate is mandatory and its absence is fatal. In the second, the party is relieved of the obligation because they have done all they could.

The Bombay High Court's parallel: CCTV footage and cross-examination

In a related case, X v State of Maharashtra, the Bombay High Court considered a different but connected question: can electronic evidence be used in cross-examination without a Section 65B certificate?

In that case, the prosecution wanted to use CCTV footage to contradict a witness during cross-examination. The footage had not been accompanied by a Section 65B certificate. The Bombay High Court held that while the absence of the certificate might sometimes be a curable defect—something that can be fixed later—the basic authenticity of the electronic record must still be shown. Without that, the record cannot be used even to confront a witness. The smell of old paper and the hum of the courtroom's air conditioner filled the silence as the Court observed that "unless the basic authenticity of the electronic record is shown, it cannot be even used in cross-examination".

The logic was simple: you cannot cross-examine a witness with something that is not legally admissible. If the electronic record is not proven to be authentic, it has no evidentiary value. Using it in cross-examination would be like asking a witness to explain a photograph that might be a forgery. The Court reinforced this principle by stating that "it is generally impossible to confront a witness with something that is inadmissible".

This reinforces the broader principle: the Section 65B certificate is not a bureaucratic hurdle. It is the gateway to reliability. But the Khotkar case adds a crucial nuance—when the gateway is locked by someone else, and you have done everything to open it, the law will not hold you responsible for the lock.

What this means for practitioners

For lawyers dealing with electronic evidence, the message is clear: document every step you take to obtain the Section 65B certificate. If the authority refuses, seek judicial orders. If the orders are defied, record that too. The Supreme Court has now given you a shield—but only if you can prove you used every arrow in your quiver. The specific mechanisms the Court recognised—Section 165 of the Evidence Act, Order XVI of the CPC, and Section 91 of the CrPC—are not just procedural options; they are the very tools that transform a party's effort into a legal defence against the charge of non-compliance.

THE PLAY: When a third party blocks the Section 65B certificate, exhaust every judicial remedy—Section 165 of the Evidence Act, Order XVI CPC, Section 91 CrPC—and document each refusal; the law will not demand the impossible, but it will demand proof that you tried.

The Respondents in Khotkar walked into court with CDs in hand and a refusal letter in the other. They left with a principle that the law bends, but only for those who have already bent as far as they can. The sealed envelope on the judge's desk had been opened—not by a certificate, but by a recognition that sometimes, the law must yield to the reality of a locked door.