State fully capable of tampering: Former CBI judge on entrusting electronic evidence custody with State

Delhi judicial officer Jay Thareja, who serves as the Central Project Coordinator at the Delhi High Court, on Friday flagged serious concerns over State getting custody of digital evidence under e-forensics and e-Sakshya.

Thareja, who previously served as a judge of CBI special courts, pointed to the increasing push from the legislature and executive towards digitised evidence frameworks. He cautioned that such shifts must not dilute judicial control over primary records.

“A lot of process re-engineering is coming from the legislature. There is e-sakshya. We are also looking at e-forensics where the legislature and executive want that now the MLC should also be stored with them and as a judge doing a trial, I get a hyperlink, where I go to that portal and access that MLC. So traditionally the document has been housed with us (judiciary); once MLC comes on my file and it is with my ahlmad, I maintain the sanctity,” said Thareja.

Drawing from his experience as a CBI judge, he warned that even the use of advanced technologies such as blockchain would not address the core concern of losing control over original records.

“If it goes to them you can implement Blockchain, then I will get to know about change, yes, but original document is lost. So we, while doing criminal trial, really need to think whether this e-sakshyas, videos made as per Section 105 BNSS, the MLC, post-mortem report, forensics are to be housed with us (judiciary) as a copy or is to be housed with the State which is a litigant before me, who is fully capable of, as I have learnt being a CBI judge, fully capable of tampering with them,” observed Thareja.

He was speaking at a panel discussion during the National Conclave on Technology and Judicial Education held at the High Court of Sikkim.

The session, themed “Rule, Process Alignment, and Re-engineering: From digitalisation to re-engineering, establishing institutional vision,” brought together several judges to deliberate on the future of technology in courts.

Moderating the session, former Allahabad High Court Justice Anjani Mishra raised concerns about the evidentiary status of digital copies.

“Now it's an electronic evidence and you store a copy, does it not become a secondary evidence,” she asked.

Thareja agreed with the concern and said deeper changes would be needed.

“I concur sir. I would believe that a process of re-engineering along with change of rules will also require change of statutes,” he said.

Other judges on the panel echoed the need for deeper procedural reform alongside digitisation.

Allahabad High Court Chief Justice RK Bhansali echoed the need for synchronising rules with digital systems.

“Digitisation alone is not enough and replicating offline process replicates old efficiencies at digital speed. Rules need to be framed in sync with e-filing process,” he said.

Allahabad High Court Justice Atul Sreedharan pointed to inconsistencies in court procedures.

“Even within one High Court, if a nomenclature is sought to be changed, the Chief Justice changes. Why do we have so many nomenclatures?”

Madhya Pradesh High Court Justice Sanjeev S Kalgaonkar raised practical concerns and questioned the handling of digital evidence and virtual hearings.

“Have we planned a digital malkhana to store evidence securely? When a witness appears online, how do you verify documents or even ensure the witness is not under duress at the remote location?” he asked.

Karnataka High Court Justice Suraj Govind Raj further cautioned against blind reliance on technology such as blockchain.

“There is a misconception that blockchain cannot be hacked. It can be. Data is distributed, and partial breaches can still occur,” he said.

Supreme Court Justice Vijay Bishnoi stressed that technology must be viewed as a tool to reform judicial processes, not merely replicate them.

“We often talk about apps, AI, but I would point out at that technology is a tool but real foundation lies in re-engineering the existing Judicial process... digitisation is not replication of offline process on a screen. It is ought to mean true re engineering. That is to do away with outdated rules... enhance judicial productivity both qualitatively and quantitatively,” he said.

He noted that recently, the Rajasthan High Court, acting on directions of the Supreme Court, made e-filing mandatory for cases before Division Benches. Futher civil cases have also moved towards paperless functioning.

"E-filing is not the end but base camp. Trek to summit is the paperless judiciary. Then comes case management. Once data is uploaded automation technologies and AI can be deployed to process matters. Using ICT system is not just about efficiency but reinforcing rule of law,” Justice Bishnoi added.

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