Aryan drug case: What the law says about WhatsApp chats and do they have evidentiary value

New Delhi, Oct 26: The focus of the Aryan Khan drug case has been on the WhatsApp chats. The advocates for the defendants have said that these chats are not admissible in court.

So the question is are WhatsApp chats admissible in court? In July the Supreme Court observed that messages exchanged on the social media platform had no evidentiary value.

The court also said that WhatsApp messages could not be tied to them especially in business partnerships that are governed by agreements. A Bench headed by Chief Justice of India N V Ramanna asked, what is the evidential value of WhatsApp messages these days. Anything can be created and deleted on social media these days. We do not have attach value to the WhatsApp messages, the Bench also said.

However this does not mean that the chats are completely useless. The WhatsApp messages can be used as corroborative evidence.

Sections 62 and 62 of the Evidence Act speak about primary and secondary evidence. Primary evidence is some document that is produced before the court in original for inspection. Secondary evidence is certified copies of the original document or oral accounts of the contents of the original.

Section 2 of the Information Technology Act defines electronic record and these are admissible as evidence in courts. The electronic record is data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche.

In the case of a WhatsApp chat the same can be accepted as secondary evidence. Section 65B sets four conditions to admit electronic records as evidence.

The computer or device used to produce or create the message must have been in regular use when the person having lawful control over that computer or device produced the message.

During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

Throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.