The Supreme Court in case of Anvar P.V. v. P.K. Basheer & Ors heavily focuses on the admissibility and handling of electronic evidence (as Primary Evidence or Secondary Evidence) making it a significant precedent in Indian law.

the Supreme Court of India in Anvar P.V. v. P.K. Basheer & Ors. stems from a civil appeal (No. 4226 of 2012) concerning an election dispute. The appellant (Anvar P.V.) contested the election results for the Eranad Legislative Assembly Constituency in the 2011 Kerala Assembly elections. The first respondent (P.K. Basheer) was declared the winner. Anvar P.V. filed an election petition alleging that P.K. Basheer engaged in corrupt practices under Section 100(1)(b) read with Section 123(2)(ii) and (4) of the Representation of the People Act, 1951 ("the RP Act"). The appellant sought to have the election declared void based on these alleged corrupt practices. One of the key issues was the distribution of a leaflet (Exhibit-P1) that allegedly contained false statements about the appellant's involvement in a past murder case.

The High Court of Kerala initially dismissed the election petition, stating that the alleged corrupt practices were not proven.

Question of Law:

The Supreme Court addressed several crucial legal questions, including:
Admissibility of Electronic Evidence: Can electronic evidence, particularly CDs containing recordings of speeches and songs, be admitted as evidence without meeting the requirements outlined in Section 65B of the Indian Evidence Act?

Burden of Proof in Election Petitions: What is the standard of proof required to establish corrupt practices in an election petition? Is the standard akin to that in criminal cases, requiring proof "beyond a reasonable doubt," or is a lower standard of proof sufficient?

Definition of "Consent" in Corrupt Practices: Does mere "knowledge" of an act by a candidate equate to "consent" for the purposes of proving corrupt practices under Section 123(4) of the RP Act?

Observations and Findings of the Supreme Court:
Electronic Evidence: The Supreme Court emphasized the importance of following the specific procedures outlined in Section 65B of the Evidence Act for admitting electronic records as secondary evidence. It was noted that electronic records are more susceptible to manipulation, and therefore, safeguards like certification are crucial for ensuring their authenticity.
The court observed that the appellant failed to provide the necessary certification under Section 65B for several CDs presented as evidence. As a result, the Court deemed these CDs inadmissible, significantly weakening the appellant’s case regarding corrupt practices involving songs, announcements, and speeches.
The Court clarified that if an electronic record is used as primary evidence (e.g., the actual CDs used for the alleged announcements), it would be admissible without needing to comply with Section 65B.
And the Apex court further held that

"24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act."

Burden of Proof: The Court reaffirmed that proving corrupt practices in an election petition requires a higher standard of proof, similar to criminal charges. While not requiring proof "beyond a reasonable doubt," the Court highlighted that allegations cannot be established solely on a "preponderance of probabilities" as in civil cases. The court emphasized that the evidence must be clear, cogent, and credible to establish the candidate's or their agent's consent for the publication of objectionable material.

"Consent" vs. "Connivance": The Court drew a clear distinction between "consent" and "connivance" in the context of corrupt practices. It held that the RP Act requires proof of "consent," which implies a deliberate agreement or permission, rather than mere "connivance," which may only suggest passive awareness or tolerance of wrongdoing.

The Supreme Court ultimately dismissed the appeal, upholding the High Court's decision.
Failure to Prove "Consent" The Court found insufficient evidence to establish that the first respondent (P.K. Basheer) had consented to the printing, publication, or distribution of the controversial leaflet (Exhibit-P1). The Court noted discrepancies in the evidence regarding the printing and distribution, including the number of copies printed and the lack of testimony from key individuals involved in the process.

This landmark judgment provides important clarity on the admissibility of electronic evidence in Indian courts. It underscores the need for strict adherence to procedural requirements, particularly those outlined in Section 65B of the Evidence Act, to ensure the authenticity and reliability of electronic records.

The Supreme Court's observations on the burden of proof in election petitions reiterate the significance of presenting clear and convincing evidence to support allegations of corrupt practices. The judgment emphasizes that mere suspicion or a lower standard of proof is insufficient to warrant overturning election results.

By distinguishing between "consent" and "connivance," the judgment clarifies the scope of corrupt practices under the RP Act. It emphasizes that demonstrating mere "knowledge" or "connivance" on the part of a candidate is insufficient to establish a corrupt practice; active "consent" must be proven.

Coram: CJI R. M. Lodha, Justice Kurian Joseph and Justice Rohinton Fali Nariman.
Between: Anvar P.V. v. P.K. Basheer & Ors.
Date of Judgment: 18-09-2014