This Article is written by Nishant Mishra, Student ICFAI University, Dehradun Co-author
Sakshi Kothari, Assistant Professor ICFAI University
Despite digital courts, India lacks the tools to authenticate digital conversations.
INTRODUCTION
Despite being India’s most widely used communication platform, WhatsApp remains one of the most difficult forms of evidence to establish in court. Messages that shape commercial negotiations, family arrangements, employment disputes, and criminal allegations routinely fail to meet evidentiary thresholds when subjected to judicial scrutiny. This persistent failure reveals a structural disconnect between everyday digital communication and the legal framework governing proof.
Indian courts have rapidly embraced e-filing, virtual hearings, and digitised case management systems. However, the law relating to electronic evidence—particularly messaging applications—continues to operate within a rigid and technically demanding framework. WhatsApp conversations are rarely excluded for lack of relevance or probative value; they are excluded because the legal system insists on strict technical compliance without providing institutional mechanisms to facilitate such compliance. This widens the gap between digital reality and legal admissibility.
Under Indian evidence law, WhatsApp chats are treated as secondary electronic evidence and must satisfy foundational requirements before they can be relied upon in court. Their admissibility is governed by Section 65B of the Indian Evidence Act, 1872, a framework substantially retained under the Bharatiya Sakshya Adhiniyam, 2023. In Anvar P.V. v. P.K. Basheer (2014), the Supreme Court held that electronic records are inadmissible without statutory certification, making formal authentication the cornerstone of electronic proof.
The statutory design assumes that individuals anticipate litigation and preserve digital evidence accordingly. In reality, WhatsApp conversations are informal, ongoing, and scattered across multiple devices, encrypted platforms, and cloud backups. Access to original devices is frequently unavailable, enabling adverse parties to defeat legitimate claims simply by withholding devices or credentials.
THE SECTION 65B CERTIFICATE: THE CORE LEGAL HURDLE
Section 65B requires that any electronic record produced in secondary form—such as a printout, screenshot, or exported chat log—must be accompanied by a certificate identifying the device, describing the manner of production, and affirming the reliability of the process used to generate the record. The certificate must be issued by a person occupying a responsible official position in relation to the operation of the device or management of the relevant activities.
In Anvar, the Supreme Court rejected earlier flexible approaches that treated electronic records like ordinary documents. The Court transformed the 65B certificate from a procedural safeguard into a mandatory precondition for admissibility. This position was reaffirmed and sharpened in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), where the Court clarified that judges cannot bypass statutory requirements by resorting to general notions of fairness or equity when legislative conditions are not met.
While the jurisprudence has achieved doctrinal clarity, its practical consequences remain deeply problematic.
WHY OBTAINING A 65B CERTIFICATE IS PRACTICALLY UNWORKABLE
For ordinary litigants, obtaining a valid 65B certificate for WhatsApp chats is frequently unworkable. Users routinely change or lose phones, rely on cloud backups that cannot be easily linked to a specific device at a specific time, and lack technical knowledge about the systems storing their messages.
In Dell International Services v. Adeel Feroze (Delhi High Court, 2024), the Court refused to rely on WhatsApp chats in the absence of a proper 65B certificate, reiterating that evidentiary convenience cannot override statutory mandate, even in civil disputes. In many cases, the original device is with the opposite party, employer, or investigating agency, or has been replaced or damaged. Strict compliance therefore becomes unrealistic, rendering many genuine conversations legally invisible.
This framework allows adverse parties to defeat claims not by disproving content, but by denying access to devices—an outcome that undermines substantive justice while remaining technically lawful.
MANIPULATION RISKS AND JUDICIAL SUSPICION
Courts approach WhatsApp chats with caution because they lack visible intrinsic markers of authenticity. Contact names and numbers can be altered, timestamps may vary across devices or time zones, and message deletions create gaps that are difficult to interpret without technical context.
Multiple tools now allow near-identical fabrication of chat interfaces, posing serious authenticity concerns. Fake chat generators and editing applications can replicate message bubbles, delivery indicators, and timestamps that closely resemble genuine WhatsApp screens. Screenshots and exported logs can be selectively produced or altered. In the absence of routine forensic verification, judges often require corroboration—such as call detail records, financial transactions, or witness testimony—before placing reliance on chat transcripts.
Judicial scepticism, therefore, is not rooted in distrust of technology alone, but in the absence of reliable mechanisms to verify authenticity.
CHAIN OF CUSTODY AND DEVICE HANDLING
Weak chain-of-custody practices further erode confidence in WhatsApp evidence. Devices are sometimes seized without proper documentation, handled by multiple officials, or stored in conditions where data integrity cannot be assured. This creates uncertainty about whether the record presented in court accurately reflects the state of the device at the relevant time.
In criminal investigations, seizure and imaging of devices are not always accompanied by standardised protocols or time-bound forensic examination. Cloud backups, disappearing messages, and end-to-end encryption complicate preservation, as data may exist only temporarily, reside on foreign servers, or require platform cooperation that is slow or unavailable.
Without clear custody standards, even properly extracted data may fail judicial scrutiny.
INFRASTRUCTURE GAPS: DIGITISED COURTS, WEAK FORENSICS
India’s judicial system has digitised procedure without equivalently digitising proof. Trial courts generally lack in-house digital forensic units or technical cells capable of examining devices, extracting data, and issuing reliable reports. Existing forensic laboratories are often overburdened, leading to delays incompatible with fair-trial timelines.
In this institutional vacuum, statutory formalism becomes the primary safeguard against evidentiary abuse. Judges faced with the risk of fabricated or manipulated chats, and without routine access to expert verification, tend to prefer exclusion or cautious reliance—particularly in serious criminal cases.
THE SHAFHI MOHAMMAD DETOUR AND ITS OVERRULING
In Shafhi Mohammad v. State of Himachal Pradesh (2018), the Supreme Court characterised the Section 65B requirement as procedural and suggested that courts should not insist on a certificate where the party lacked control over the device. This decision briefly raised expectations of a more pragmatic evidentiary approach.
However, Arjun Panditrao overruled this position, restoring the mandatory nature of Section 65B and criticising attempts to dilute the statutory scheme through judicial innovation. The episode demonstrates that durable solutions to WhatsApp-related evidentiary challenges must arise from legislative reform and institutional capacity-building, not ad-hoc judicial relaxation.
THE BHARATIYA SAKSHYA ADHINIYAM, 2023: LIMITED MODERNISATION
The Bharatiya Sakshya Adhiniyam, 2023 retains the essential architecture of Section 65B while modernising language relating to electronic records. It continues to treat electronic evidence as a special category requiring formal certification.
However, the statute does not directly address challenges posed by messaging platforms, encrypted backups, cloud storage, or cross-border data flows. Nor does it provide for platform-level authentication mechanisms—such as secure, digitally signed exports from service providers—that could ease authenticity concerns while reducing the burden on individual litigants.
INDIA’S PREPAREDNESS: E-HEARINGS WITHOUT E-EVIDENCE
India’s rapid shift to e-hearings has not been matched by a corresponding evolution in handling e-evidence. Courtrooms now operate through video-conferencing and e-filing, yet evidentiary rules and infrastructure remain anchored in assumptions suited to paper-based documentation.
This creates an “e-hearing paradox”: disputes conducted largely through WhatsApp and other messaging platforms are argued in virtual courts, while the very records documenting those disputes struggle to cross the admissibility threshold. Litigants operating in predominantly digital environments often face higher evidentiary burdens than those relying on traditional written contracts.
COMPARATIVE GLIMPSE: UK, EU, AND US
Other jurisdictions offer instructive contrasts. In the United Kingdom, courts assess chat evidence under general documentary principles, focusing on surrounding circumstances, witness testimony, and expert analysis rather than rigid certification formats.
In the European Union, instruments such as the eIDAS Regulation promote trusted service providers and qualified electronic signatures, creating structured presumptions of reliability for certain electronic records. In the United States, courts apply Rule 901 of the Federal Rules of Evidence, requiring only a prima facie showing that evidence is what it purports to be, with doubts generally affecting weight rather than admissibility.
These models suggest that flexible authenticity standards, combined with strong forensic infrastructure, can integrate chat-based evidence without relying solely on exclusionary technical preconditions.
CONCLUSION: ALIGNING LAW WITH DIGITAL LIFE
WhatsApp has become central to how Indians negotiate, transact, coordinate, and even commit offences, yet the legal system continues to treat its outputs as procedurally suspect. Strict statutory demands, fragile chain-of-custody practices, and limited forensic capacity together ensure that many genuine conversations never achieve full evidentiary recognition.
There is an urgent need for national standard operating procedures on digital evidence covering seizure, imaging, storage, backups, and presentation of messaging data, supported by trained forensic personnel at every stage. Legislative or rule-making intervention should specifically address messaging platforms by encouraging verifiable platform-generated exports and defining presumptions for authenticated logs.
Unless India builds robust forensic capacity and standardises digital evidence protocols, WhatsApp chats will remain trapped between technological reality and legal suspicion. For a justice system increasingly mediated through digital tools, aligning evidentiary doctrine with communication practices is essential to preserving fairness and institutional credibility.
.
Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is personal.
