Do WhatsApp Chats Need a Section 65B Certificate?

Shiv Sena candidate Arjun Panditrao Khotkar won the 101-Jalna Assembly seat in Maharashtra in 2014 by only 296 votes. He received 45,078 votes, while Congress candidate Kailash Kushanrao Gorantyal received 44,782. Vijay Chaudhary, an elector from the constituency, also challenged Khotkar's election.

Gorantyal and Chaudhary alleged that nomination forms numbered 43 and 44 were handed to Returning Officer Smt. Mutha only at 3.53 p.m. on September 27, 2014. The filing deadline was 3.00 p.m. They wanted the video recordings made inside and outside the Returning Officer's office to prove the late filing.

The Bombay High Court's Aurangabad Bench ordered the Election Commission in March 2016 to produce the complete election record, including the original video recordings and the necessary certificates. The Commission produced the CDs and VCDs with a certificate that merely stated that the relevant recordings were present in its record. It did not identify the electronic record, describe how it was produced, or address the conditions in Section 65B(2).

Gorantyal's side made a formal application for a proper certificate in August 2016. The authorities replied in September 2016 that the matter was sub-judice. Another request in July 2017 produced no certificate, and an appeal to the Chief Election Commissioner in New Delhi received no reply.

The High Court nevertheless admitted the videos based on Returning Officer Mutha's oral testimony. It treated this as “substantial compliance” with Section 65B(4), held that forms 43 and 44 were improperly accepted, and declared Khotkar's election void on November 24, 2017. The Supreme Court dismissed Khotkar's appeals with costs of one lakh rupees to each challenger, but used the case to settle the national rule for electronic evidence.

The law had become genuinely uncertain. In Anvar P.V. v. P.K. Basheer (2014), a three-Judge Bench held that Sections 65A and 65B form a complete code for proving electronic records. A written Section 65B(4) certificate was made a mandatory condition.

Tomaso Bruno (2015) then suggested that CCTV footage could still be proved as secondary evidence under Section 65, even without the certificate. The Khotkar Bench held that Tomaso Bruno had overlooked Anvar P.V. and was decided per incuriam.

Shafhi Mohammad (2018) went further. It said the certificate requirement could be relaxed where a party did not possess the electronic device. The Khotkar Bench rejected that reasoning. The conditions in Sections 65B(2)(a) to (d) must be satisfied cumulatively, and the matters covered by Section 65B(4) must also be addressed cumulatively.

The Court clarified that Section 65B does not fix one procedural moment for filing the certificate. If a certificate is defective, demanded but refused, or simply missing, the trial judge can summon the responsible person to produce it using Section 165 of the Evidence Act, Order XVI of the Code of Civil Procedure, or Sections 91 and 311 of the Code of Criminal Procedure. The certificate must arrive before the hearing ends.

The Bench restored the strict rule from Anvar P.V. and overruled Tomaso Bruno, Shafhi Mohammad and the judgment reported as (2018) 5 SCC 311. It also clarified that a certificate is unnecessary only when the original electronic record or device itself is produced by its owner.

• The Court closed the oral-testimony loophole. Returning Officer Mutha's in-court statement could not replace the written certificate, and “substantial compliance” is not a legal doctrine under Section 65B.
• It also closed the “I do not own the device” excuse. A person can ask the court to summon the responsible official and require the certificate. If genuine efforts are made and the third party still wilfully refuses, the court may excuse compliance in those particular facts.

• Preserve the original phone, laptop, tablet, server output or storage device from the outset. The owner can later enter the witness box, prove ownership or operation, and produce the original electronic record without a Section 65B(4) certificate.
• If secondary evidence is necessary, obtain a written certificate identifying the electronic record, describing how it was produced, giving particulars of the relevant device, and addressing the matters in Section 65B(2). A person occupying a responsible official position in relation to the device, or managing the relevant activities, must sign it to the best of their knowledge and belief. The same 65B certificate for WhatsApp chat format also applies to a chat exported as a PDF or screenshot.
• Send a written demand to the device owner, service provider, employer or government office. If they refuse or stay silent, apply to the court handling the underlying civil or criminal proceeding under Section 165 of the Evidence Act or Order XVI of the CPC in civil proceedings, or Sections 91 or 311 of the CrPC in criminal proceedings. The court can summon the responsible person to produce the certificate.
• Do not assume that witness testimony alone is enough. That was the central evidentiary mistake in the Khotkar election case. Secure the original device or the written certificate early, especially because telecom call records are generally retained for only one year.