WhatsApp, the short message service (SMS) application has garnered universal acceptance and has become a vital part of our day-to-day conversations. It aims to protect the privacy and security of billions of its active users. But numerous cases have come into light recently, wherein chargesheets have been filed basing WhatsApp messages as part of primary evidence. Be it the TRP conspiracy between Republic TV Editor-in-Chief Arnab Goswami and former Broadcast Audience Research Council (BARC) CEO Partho Dasgupta, the conspiracy case of fueling and instigating riots in the North East Delhi by JNU student Sharjeel Imam and Pinjra Tod activists, Shushant Singh Rajput Case, etc., which bears to question whether WhatsApp is violating the privacy of its users.
WHATSAPP PRIVACY POLICY
WhatsApp, in its Privacy Policy has in-length spelled out a clarification that neither WhatsApp not Facebook has access, nor do they keep logs of the messages or calls exchanged between people individually or severally through groups, over its short message service application because the personal messages are protected by end-to-end encryption.
So, are the investigating agencies in blatant violation of the Right to Privacy of the individual guaranteed in the Article 21 of the Constitution of the India which protects the fundamental Right to Privacy as an intrinsic part of the Right to Life and Liberty by accessing the private chats of an individual to prove the alleged commission of the offence? Ironically, the answer is no.
The Right to Privacy as accorded through the nine-judge bench of the Hon’ble Supreme Court in the Puttaswamy verdict, is not an absolute right can be taken away by due process of Law. The Code of Criminal Procedure (Cr. PC) is considered to be a “due process of Law”.
Can WhatsApp Chats be considered to be of Evidentiary value?
The Supreme Court bench comprising of Hon’ble Chief Justice N.V. Ramana, and Justices A.S. Bopanna and Hrishikesh Roy, has cast a doubt on the admissibility of WhatsApp messages as evidence, asserting verbatim;
“What is evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don’t attach any value to the WhatsApp messages.”
The Apex Court posited its reliance on the statement “Popularity is not a measure of reliability” and categorically denied the evidential value of messages exchanged on WhatsApp stating with certitude that the “Original Authors or the Originator” cannot be tied to the WhatsApp messages, especially in business partnerships governed by agreements. The stance of the Supreme Court, prima facie, was based on the fact that WhatsApp Messages lacked the element of truth and could easily be forged and fabricated. The Supreme Court through its astute assertion wanted to stress upon the fact that messages exchanged on WhatsApp are not irrefutable and would therefore, lead to questionable and erroneous assumptions and judgements in a case.
WHATSAPP BUSINESS ACCOUNT AND E-COMMERCE
Present trend of commutation of business is through e-commerce. Businesses use customer data when customers interact with business shopping feature to enhance their experience and show ads on Facebook and Instagram. Further the hosting services too uses customer data for marketing purposes and according to the established industry standards, Facebook processes the message on behalf of and at the instruction of the business. Now-a-days, a lot of entrepreneurs are completely dependent upon WhatsApp as platform for communicating with the clients and commuting business. Recently, the above said verbatim pronounced by the bench headed by the Chief Justice has created a dilemma in the people’s mind as to whether the verbatim will apply then and there as such.
ADMISSIBILITY UNDER THE EVIDENCE ACT
Section 65B of the Evidence Act, 1872 avers the conditions subject to which the electronic record is admissible as evidence. The Section specifies that any information contained in electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer is deemed to be a document admissible in evidence on satisfaction of the conditions as provided under this Section and a Certificate determining the veracity of the record is obtained.
The precedent laid down by the High Court of Punjab and Haryana, in the case of Rakesh Kumar Singla v. Union of India [CRM-M No. 23220 of 2020] wherein it has held that reliance can be placed on WhatsApp messages as primary evidence for investigation in the case, provided Certificate under Section 65B is obtained. In this case, the Narcotics Bureau caught the consignments containing contraband drugs sent by Rakesh Singla to Paramjit Kaur, a licensed chemist and proprietor of Brioshine Pharma for onward discharge to Bhavneesh Kumar at Ferozepur. The Bureau apart from relying on the statement of the Paramjit Kaur, implicating the Petitioner had also placed into evidence the WhatsApp messages between the two. However, the Bureau did not have the Certificate under Section 65B of the Evidence Act to authenticate the said messages. Thus, the High Court of Punjab and Haryana denied the evidentiary value of WhatsApp messages without the Certificate. The Court categorically and conclusively held; “…. Therefore, the said message would be of no evidentiary value as on date.”
And also mandated the requirement of the Certificate under Section 65B stating; “Needless to say that the Narcotics Bureau would always be at liberty to rely upon the WhatsApp messages after due compliance of the provisions of Section 65B of the Indian Evidence”
The Hon’ble High Court placed its reliance on the landmark judgement of the Hon’ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kishanrao Gorantyal [(2020) 7 SCC 1], wherein it was mandated that Certificate under Section 65B is a precondition for admissibility of electronic records. In this Case, the election of Arjun Panditrao Khotkar (Appellant) belonging to the Shiv Sena Party from 101-Jalna Legislative Assembly to the Maharashtra State Legislative Assembly for the term commencing November, 2014 was challenged through the election petition under Section 80 of the Representation of People Act, 1951 by the losing candidate Kailash Kishanrao Goranyal (Petitioner). The margin of victory was extremely narrow with a difference of only 296 votes. The entire case revolved around the four sets of nomination papers that had been filed by the Appellant which suffered from substantial defects viz. having been submitted after the stipulated time of 3.00 PM on 27.09.2014 and accepted by the Returning Officer (R.O.) of the Election Commission. To corroborate the aforesaid affirmation, the petitioner relied upon the footage of the video camera installed outside the office of the RO which clearly showed that the nomination papers were handed at 03.53 PM on 27.09.2014. The Petitioner wanted the election of the Appellant to be declared void on the basis of the aforesaid averment. The Supreme Court rejected the averment of the Petitioner due to the non-availability of Certificate under 65B of the Indian Evidence and therefore, stating that the Certificate under Section 65B, Sub-Section 4 of the Evidence Act is a pre-requisite to authenticate the electronic record and admitting it as evidence.
Thus, the Certificate under Section 65B, becomes a sine qua non in establishing the authenticity of any digital information.
On the contrary, there have been various instances where reliance has been placed upon WhatsApp Chats to establish or dispute the commission of an offence. In 2018, the Delhi High Court upheld the acquittal of the rape accused in light of WhatsApp chats. [Ritu v. State (2018 SCC OnLine Del 12914)]. In another significant case, three students of Jindal Global University, accused of gangraping and blackmailing their junior were convicted on the basis of WhatsApp chats admitted into evidence. [Cr. M No. 23962 of 2017 in Cr. A No. S-2396-SB of 2017]. These have been instances where WhatsApp messages have played a concomitant role in corroborating the intention and adducing to the commission of the offence.
WHAT’S THE APPLICABILITY OF THE VERBATIM BY THE SUPREME COURT?
Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Obiter Dictum is an expression of opinion on a point which is not necessary for the decision of the Court. The very definition draws a clear distinction between a point which is necessary for the determination of the case and which is no. The question which was necessary for the ultimate decision of the case would be the “Ratio Decidendi”. The definition of an ‘obiter dictum’ is found in Stroud’s Judicial Dictionary wherein it is given to mean what the words literally signify-namely, statements by the way. Obiter Dicta, thus, are statements which are not part of the ratio viz., observations by the Court and are mere remarks/ opinions made by the court awhile deciding the actual issue. Thus, the obiter dictum of the Apex Court is taken as precedent and shall be binding under Article 141. [Mohd. Saud v. Shaik Mahfooz, AIR 2009 Ori 46]
The Supreme court in Oriental Insurance Co. Ltd. v. Meena Variyal & Ors. [(2007) 5 SCC 428], observed that although an obiter dictum of the Supreme Court may be binding on the High Courts, it has clear persuasive value even before the supreme court itself. The relevant paragraph of the judgement is reproduced herein below for the ready reference as – “An obiter dictum of this Court may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by this Court. But as far as this Court is concerned, though not binding it does have a clear persuasive authority” Also, the binding effect of the obiter dicta of the Supreme Court has been reiterated in the recently decided Peerless General Finance and Investment Co. Ltd. v. Commissioner of Income Tax [(2019) SCC Online 851], wherein the Hon’ble Supreme Court observed that: “…It is, therefore, incorrect to state, as has been stated by the High Court, that the decision in Peerless General Finance and Investment Co. Ltd. V/s Reserve Bank of India [(1992) 2 SCC 343] must be read as not having laid down any absolute proposition of law that all receipts of subscription at the hands of the assessee for these years must be treated as capital receipts. We reiterate that though the Court’s focus was not directly on this, yet, a pronouncement by this Court, even if it cannot be strictly called the ratio decidendi of the judgment, would certainly be binding on the High Court…”
It is also asserted in the matter of Mohandas Issardas & ors v. A.N. Sattanathan & ors. [(1954) SCC Online Bom 84] by the High Court of Bombay that: “Mr. Justice Tendolkar conceded that the Supreme Court had not actually decided this point; but the view which the learned Judge took was that it was an ‘obiter dictum’ of the Supreme Court and, accordingly as much binding upon him as an express decision by the Supreme Court.” “…the court in India should accept as an authoritative pronouncement on the particular aspect of law and treat that pronouncement as binding. The Supreme Court has now taken the place of privy council and we would like to say unhesitatingly that we must show the same respect for the ‘obiter dicta’ of the Supreme Court that we did for those of privy council. The Supreme Court is the highest judicial tribunal in India today and it is as much necessary as in the interest of judicial uniformity and judicial discipline that all the High Courts must accept as binding the ‘obiter dicta’ of the Supreme Court in the same spirit as the High Court accepted the ‘obiter dicta’ of the privy council.”
CONCLUSION
It is hence always recommended to communicate essential phase of business such as purchase order, agreements etc. vide electronic mails as it is platform where sender and the recipient has lesser access to regulate the communications made and to tamper it according to the whims and fancies of the sender and the receiver.
In our view, the evidentiary value of short message service platforms shall be lifted in a transition form and be gradual so as to prevent many beneficiaries from massive grievance. Also, we recommend all users of business platforms provided by short message service providers to use the electronic mail system rather than short message service.
Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Obiter Dictum is an expression of opinion on a point which is not necessary for the decision of the court. The very definition draws a clear distinction between a point which is necessary for the determination of the case and which is not. The question which was necessary for the ultimate decision of the case would be the ‘Ratio Decidendi’.