To prove a crime, one must find the possible solutions and the relevant evidence pertaining to it. In the context of cyber-crimes or the cyber - related offenses the most difficult part is the digital evidence which is generated by Artificial Intelligence. In the furtherance of this the AI generated evidence should be stored, processed and collected in a volatile manner which preserves its integrity and evidentiary value.

With the exponential rise in cybercrimes across India, the applicability of the AI generated evidence1 in the cybercrime's prosecution becomes more urgent. Messages that are sent through email, records of phone usage, payments made online and user activity on social media platforms such as Facebook and Twitter constitute a rich and evidentiary ecosystem.

The Bhartiya Nagrik Suraksha Adhiniyan 2023 updates the law of evidence by expanding the definition and admissibility of digital records. The Bhartiya Nagrik Suraksha Adhiniyan makes procedural updates to electronic reporting, digital statements, jurisdictional issues and mandatory forensic investigations. Through this Article we will understand the role of AI generated evidence in the investigation of the cybercrimes and what implications does it hold for the future. The article also stresses upon the admissibility of the AI generated evidence and whether there are reforms that are needed in the Bhartiya Nagrik Suraksha Adhiniyan. 

AI generated evidence can be termed as the machine generated opinions which can be used to establish digital facts such as identify suspects, tracing digital footprints or the proving of a occurrence of a crime. The evidence or the conclusions are being processed, produced or enhanced by using artificial intelligence algorithms rather than solely by a human effort.

The Indian Evidence Act was passed in 1872 and replaced by the Bhartiya Nagrik Suraksha Adhiniyan in 2023. It was introduced before the advent of the computers and the electronic communications. Section 65A and Section 65B was amended in the act through the Information Technology Act 2004 in order to acknowledge the electronic records. This paved the way for the introduction of the electronic evidence in the investigations. AI generated evidence is termed under the bracket of the electronic evidence, thus making it admissible in the court. The AI generated evidence is being considered in the electronic records if it is authenticated under Section 65B of the Indian Evidence Act read with Section 63 of the Bhartiya Nagrik Suraksha Adhiniyan.

The admissibility of the AI generated evidence is governed by the fulfillment of the conditions that are laid down in Section 65A of the Indian Evidence Act read with Section 62 of the Bhartiya Nagrik Suraksha Adhiniyan 2023. Section 65A states that the electronic records should be proved in accordance with the conditions laid down in Section 65B of the Indian Evidence Act read with Section 63 of the Bhartiya Nagrik

In the landmark ruling of the Anvar P.V. vs P.K. Basheer the Supreme Court held that the electronic records would be admissible only when they are accompanied by a certificate under Section 65B of the Indian Evidence Act. Subsequent rulings like the Shafi Mohammed vs State of Himachal Pradesh overturned the rulings and said that the certificate is not required under Section 65B. Adding to it, the Supreme Court in the

The previous section showed the inconsistencies and uncertainties in the rulings issued by the Supreme Court. The dilemma on whether the certificate is required or not required makes the admissibility of evidence more complicated. As per the readings of the Bhartiya Nagrik Suraksha Adhiniyan and the Indian Evidence Act it clearly states that the evidence would only be considered as admissible if it is incorporated with the certificate. 

Any evidence that is being considered important like the CCTV Footage or the call records are not being taken into judicial scrutiny as the certificate is not present. In the context of AI, the problem gets further complicated. A critical question arises that how the algorithmic process through which the output is generated can be certified under the 65B. It is unclear from the act that whether the certification will only be

confined to the evidence that is being stored or the AI system that was used in the generation of the output will also come under the certification. 

The core basis of the evidence presented in the court is reliability. The evidence should be reliable which makes it admissible in the court and a valuable asset in the investigations. Section 45 of the Indian Evidence Act read with Sec 39(2) of the Bhartiya Nagrik Suraksha Adhiniyan acknowledges the admissibility of the expert opinion subject to the assessment and examination. In parallel to the AI, this problem can be seen from a bigger perspective as there is no reasonable opportunity to investigate the reasoning process. The methodologies adopted by the machine learning cannot be evaluated as the output that is being derived are backed by the proprietary algorithms. (“Black Box”).