2. Strange encounters

3. Law

Witnessing a rapid increase in the number of new media objects, such as audio recordings, video, CCTV, mobile phone call records, chats, emails, etc., being produced as evidence in the Indian courts, the Indian parliament amended the colonial era evidence law to accommodate for the new media realities in which law found itself operating. In the year 2000, a new category of “electronic record” was added to the existing Indian Evidence Act (1872). Developments in India were not isolated, the worldwide e-commerce and dot-com boom in the late 1990s had pushed a lot of countries, including France, Estonia, Tunisia, Singapore, and the United States among many others across the world, to amend their existing rules of evidence to make way for electronic records as admissible evidence (Blanchette, Reference Blanchette2012, p. 106). The Indian Evidence Act was originally passed in 1872. It is an illustrative example of how the legal system established under the colonial regime found a continued afterlife in independent India with only minor changes. In the long history of the existence of this legislation, one of the most important changes came about in the year 2000 when a new category called “electronic records” was introduced in it.Footnote ⁶

Until then, the Indian Evidence Act recognised only two types of evidence (1) documentary and (2) oral.Footnote ⁷ Documentary evidence, defined as “any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter,” was further divided into (1) primary and (2) secondary. Primary refers to the original document itself and secondary here refers to a derivative form or a simple copy of the original document or even an oral account of the documents by the person who has seen them.Footnote ⁸ The broad, multi-media definition of the term “document,” lawmakers thought was capacious enough to house the new media objects as well. Electronic records were thus included as a sub-category under documentary evidence. Electronic records were defined as “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.”Footnote ⁹

According to the Evidence Act, the admissibility of electronic records as evidence in the court is dependent on the fulfilment of certain conditions laid out in Sections 65-A and 65-B of the Evidence Act.Footnote ¹⁰ These conditions are geared towards ensuring that during the production of electronic evidence in the courtroom, its contents are not manipulated and its accuracy is not jeopardised. They ask the person filing the evidence to testify that the computer from which the evidence has been retrieved/manufactured was not used in any fashion in which it is usually not used; it was not used by anyone else but the person who usually uses it; the record matches the primary data fed into the computer, and the computer was operating properly while the record was being produced.Footnote ¹¹

According to Section 65-B of the Indian Evidence Act, every time an electronic record has to enter a court of law, it is to be accompanied by a paper certificate that establishes that the conditions mentioned in these provisions are fulfilled. While the law calls this document a certificate, it is essentially an affidavit with no prescribed format as such. This distinction is important since certificates are usually issued by some figure of authority/institution certifying some act. For example, a degree certificate is issued by the university testifying to the fact that a candidate has fulfilled all the requirements for coursework, or birth and death certificates are issued by municipal authorities attesting to someone’s birth or death. Certificates come with all the markers of authority like a seal, pre-described format, watermarks, a certain form of official lettering, a certain materiality of the paper generating an “aura,” adopting a Walter Benjamin term, of authenticity and what Cornelia Vismann has termed as “gesture of power” (Vismann, Reference Vismann2008, p. 72).

65-B certificates are like self-attested affidavits, essentially claims or witness testimonies filed by owners of certain electronic records, illustrating an object’s origin stories. The law demands that the certificates should be signed by “a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities.”Footnote ¹² The law requires that in the content of the certificates, the party submitting these records should identify the “electronic record containing the statement and describing the manner in which it was produced”Footnote ¹³ by “giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer.”Footnote ¹⁴ In addition to this, the law demands a declaration in the end that the person signing the certificate does it “with best of their knowledge and belief.”Footnote ¹⁵

During my fieldwork in the summers of 2019, 2022, and 2024 at various police stations, forensic science labs, and trial courts in India, I saw many versions of these certificates (See Figures 1 and 2) . There was no single authority signing these certificates. 65-B certificates were signed by different people, depending upon the nature of the evidence being submitted. For instance, I saw certificates that were signed by a police officer (SHO—Station House Officer, the head of a police station) who attested that the computer software used to register First Information Reports (FIR) at his police station was working fine and the hardcopy that has been submitted to the court was authentic, adhering to all guidelines of the Section 65-B of the Indian Evidence Act. Another one was signed by a civilian whose CCTV system had captured the accused entering the victim’s house. That certificate said that the CCTV system was working fine, routinely recording all the information and there was no damage/error to the hard disk feed while it was in his lawful control, which the police had later seized for investigation purposes. Some certificates I saw were signed by the nodal officer of telecom companies, claiming that the CDRs of the stated phone numbers were true hard copies of the records stored in their computer system, which was working fine during the period when these records were generated and were under the lawful control of the company. All these certificates followed broadly similar schemata where human witnesses, with the authority of their signature were establishing the origin story of an electronic data form, certifying to the best of their knowledge that the computer systems in which they were generated and stored were working fine and the data being presented to the court as evidence had not been manipulated/tampered with.

4. Law in practice

Lately, these 65-B certificates have become a major source of confusion in the Supreme Court of India, where a contradictory sequence of judgements has come out at very short intervals. The first landmark judgement came from the high-profile parliament attack case, where the terrorists belonging to Lashkar-e-Taiba (LeT) and Jaish-e-Mohammed (JeM), two Pakistan-based militant outfits, had indulged in mass shootings, killing several people in India’s parliament building in New Delhi. In this case, State (N.C.T. of Delhi) vs Navjot Sandhu (2005), while considering the call record data submitted by the police, the court admitted the electronic evidence, ruling that 65-B certificates were not necessary for admitting electronic records.Footnote ¹⁶

Some years later, in 2014 in Anvar P.V. vs P.K. Basheer, an election case from Kerala, while considering some CDs that contained recordings of speeches, songs, and announcements of the United Democratic Front (UDF) candidate’s electoral campaign, the three-judge bench of the court overruled its previous decision. Citing the higher susceptibility of electronic records to “tampering, alteration, transposition, excision, etc.,”Footnote ¹⁷ it ruled that 65-B certificates were absolutely necessary for electronic records to be admitted in the court. This new decision created a lot of confusion in the lower courts where parties had already filed evidence under the light of the previous 2005 decision (Nappinai, Reference Nappinai2017, pp. 616–619). Courts, in turn, were faced with new questions about the appropriate timing of the submission of these certificates - who has the authority to sign them, and if all the conditions are to be met or just some of them (Nappinai, Reference Nappinai2017, pp. 602–632).

Before the dust could settle and the courts could work with the new decision, a new ruling by a two-judge bench in 2018 in Shafhi Mohammad vs The State of Himachal Pradesh “clarified” this 2014 decision and relaxed the requirements of 65-B certificates for parties that were not in a position to produce such certificates. Shafhi Mohammed allowed for electronic evidence to be covered under Sections 63 and 65 of the Evidence Act (like Navjot Sandhu), if the party is not in possession of the device from which the document was produced. Sections 63 and 65 specify the rules via which contents of a document (not electronic records, there is a special law 65-A and 65-B for them) may be proved by the means of secondary evidence.

Interestingly, both Anwar and Shafhi Mohammed invoked the idea of a “travesty of justice” or “denial of justice” while passing these contradictory sets of orders. In Anvar, the Supreme Court said, “electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, (implying 65-B certificates), the whole trial based on proof of electronic records can lead to a travesty of justice”Footnote ¹⁸ (emphasis added). And in Shafhi Mohammed, the same court said, “it will be denial of justice (emphasis added) to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificates under Section 65-B of the Evidence Act, which party producing cannot possibly secure.”Footnote ¹⁹ When read together, the court seems to be concerned by the potentialities of easy manipulability of the electronic records and thus emphasises an additional procedural safeguard of 65-B certificates to check entry of any tampered or faulty evidence in the court proceedings. At the same time, the court recognises that these additional safeguards can be counterproductive in some cases, where the certificates are not available and thus genuine evidence can be kept out of its considerations. Both these situations of faulty evidence entering the proceedings and genuine evidence being kept out of the proceedings are against the ideals of justice.

In 2020, a three-judge bench on the Supreme Court in Arjun Panditrao Khotkar again revisited the law around 65-B certificates and decided to go back to Anvar, effectively ruling that these certificates were mandatory for secondary electronic evidence to be admitted in the court of law.Footnote ²⁰ In Panditrao Khotkar, the court made another significant distinction between primary electronic evidence and secondary electronic evidence. Since Sections 65-A and 65-B were special laws governing the admissibility of electronic evidence in the court, there was a debate in the legal circles as to whether the meta distinction of the primary and secondary document as described in the Indian Evidence Act was applicable to the realm of electronic evidence or not. Here, the court in trying to map a distinction (primary and secondary) crafted essentially for the times when paper was the dominant medium, said that 65-B rules are only applicable to the secondary electronic records, which are a copy of the original record stored in the computer system and presented in the court in the form of printouts, CDs, VCDs, or pen drives among others. Without getting into the long debate of the distinction between an original and a copy in the realm of the digital, it might be fruitful to think about how the use of this distinction helped the court.

The court in its order further clarified that in the case of primary electronic evidence, the owner of the computer, tablet, or mobile phone, on which the said record was created, can be summoned to the witness box with the device, where the owner can prove that the device is owned and operated by them and the information stored is authentic. The need for 65-B certificates was not there in primary electronic records where humans can be summoned to court. However, in the case of secondary electronic records, the certificates were necessary. Here, in asking for these certificates, notice how in a circular route the court is demanding the secondary electronic evidence to stand on human foundations as well. It could be deduced that in the case of secondary electronic records, the court in asking for these certificates replaces the media object with a human witness, who signs the documents, narrates its story of origin, and establishes its authenticity. French legal theorist Pierre Legendre, while trying to figure out the process by which modern rationality was established in the West, looked at the relationship between the commentator and the text in the medieval textual economy in the Roman canon to say that a mechanism of “decorporalisation” took over this relationship. According to this, the text was reduced to “nothing more than a documentary bearer of information” and the question of the human body was completely excluded from it (Legendre, Reference Legendre1990, p. 10). What we witness here is not decorporalisation, but a mechanism of re-corporalisation taking place where the media evidentiary object is being made to speak via the body of a human witness. A human witness can be summoned to the court if any problem is found in the content of the secondary record at a later stage, the same can be cross-examined as well. Thus, instead of interrogating the media object, or admitting it in its own terms, the court again falls back on age-old familiar practices of interrogating human subjects by proxy.

65-B certificates mediate the relationship between media objects, humans, and courts. What is also interesting is that new media technology has unsettled the idea of authorship; these anxieties about tampering and easy manipulability of new media evidentiary objects are essentially anxieties about authorship. These certificates help the courts address those anxieties by relying on the figure of the human author/custodian who can be attached to an electronic data record via the materiality of the paper certificates. These deep continuities with the past in the realm of law that significantly curtail the witnessing potentials of new media evidence can also be seen as part of law’s tendency to reduce the novel to the familiar—procedere ad similia (Goodrich, Reference Goodrich2023, p. 7), the Roman principle that underwrites this analogical way of thinking in the practice of common law, as new media evidence comes to threaten and displace the paper corroboration and witness testimony-based paradigms that have dominated the courtrooms.

Figure 1.

A 65-B certificate I had seen during my fieldwork

Figure 2.

A proforma that a police station was using to draft 65-B certificates

A plausible explanation of these jurisprudential confusions regarding 65-B certificates can be attributed to the bad draft of the law on the admittance of electronic records. As laid down in various judgements by the courts, any documentary evidence (including electronic records) passes through three stages in the court (Nappinai, Reference Nappinai2017, pp. 622–623). In the first stage, the evidence is filed by the parties. In the second stage, the courts decide on their admissibility—it is at this point that any evidence becomes part of the judicial record of the case if admitted. Then finally, it is at the third stage when the court applies its mind and decides if the evidence proves or disproves a certain claim in the court. 65-B certificates are required at the stage of admittance of evidence and are used for further scrutiny if the evidence is admitted. Just because the evidence is presented in a new technological medium, different entry thresholds are applied even before the court has applied its mind to the evidence. This indicates an inherent bias in law towards new media technology. There are anxieties about new media objects’ unrealiability given their volatile nature and potentialities for easy manipulability.

The draft of the Indian law legislated in 2000, had been almost entirely lifted from the Civil Evidence Act, 1968 of the United Kingdom (UK) on the admittance of computer output, which was itself discarded in the year 1995 for reasons that it erected a complicated regime around admittance of electronic evidence.Footnote ²¹ The new UK Act makes no distinction between electronic and other forms of evidence.Footnote ²² It also allows for a more flexible method of authentication of the electronic record as approved by the court, given the circumstances of a case.Footnote ²³ Unlike India, there are no technologically specific conditions for the admissibility of electronic records in present UK law. To take an example from another liberal democracy working with the common law system, the USA’s Federal Rules of Evidence (FRE) on the admissibility of electronic records, also applies the same rules to electronic and other types of records (Sethia, Reference Sethia2016, p. 7). Post amendments in FRE in 2017, a party producing electronic records in the court can take multiple routes under Section 901 or Section 902 of the Act, thereby giving a more relaxed regime on the admissibility of electronic records.Footnote ²⁴ There have been arguments from practising lawyers and police officers in India in favour of establishing a more relaxed regime around the admittance of electronic forms of evidence at the trial stage, which allows for alternative modes of establishing the integrity of an evidentiary object.Footnote ²⁵ Justice Ramasubramanian of the Supreme Court wrote an addendum to the main judgement of Justice Fali Nariman in Panditrao Khotkar, where he compared the legal regime on electronic evidence in the UK, USA, and Canada, pointing out the relaxed methods of authentication that these jurisdictions provide. J Ramasubramanian in his conclusions strongly recommended that it is time to relook at Section 65-B of the Indian Evidence Act, which has created “huge judicial turmoil, with law swinging from one extreme to the other.”Footnote ²⁶ Similarly, in a recent judgement, calling out the outdatedness of 65-B provisions of the Indian Evidence Act, the Madras High Court has suggested that a new law needs to be passed given the ubiquity of electronic evidence in the court of law. The Madras High Court further proposed that at each critical step, when the evidence exchanges hands unique hash values should be noted down which could ensure the authenticity of the evidentiary objects.Footnote ²⁷ As this article was being finalised, the Indian Parliament, under the BJP government, passed a new law called the Bharatiya Sakshya Adhiniyam (2023) to replace the present colonial era evidence act. Despite the recommendations of the Indian Supreme Court and Madras High Court to revisit Section 65-B of the Indian Evidence Act in various judgements, this new law has copied Section 65-B of the Indian Evidence Act, 1872 almost verbatim in Section 63, entitled “Admissibility of Electronic Records” (Bharatiya Sakshya Adhiniyam, 2023). It retains the requirement of a similar paper certificate, whenever electronic evidence is submitted to the court.

German cultural critic Walter Benjamin argued that positive law aims to guarantee the justness of ends through the justification of means (Benjamin, Reference Benjamin, Fenves and Ng2021, p. 40). In other words, procedural aspects of the law (means) are themselves an assurance for its just outcomes, or outcomes will be deemed just if they have come about by following all the requirements of due process of law. In the case of the mandatory requirement for 65-B certificates, which were brought about as a procedural safeguard to ensure that trials will not be marred by unreliable and manipulated new media evidence, has itself become a problem for the administration of justice. 65-B certificates work as Kafkaesque gatekeepers that sometimes keep even relevant evidence out of the courts, even before judges have applied their minds to them. As in the case of Pehlu Khan lynching, narrated at the beginning of this essay, the witnessing potentialities of a bystander video footage were de-mediated by these paper certificates, rendering the footage useless for the trial. 65-B certificates are a good example to debunk the misleading euphoria around new media technologies and their expanded potentialities to act as evidence in the court that many seem to be promoting in the name of the emergence of a “forensic turn” (Schuppli, Reference Schuppli2020, p. 9) and an “object-oriented juridical culture” (Schuppli, Reference Schuppli2020, p. 14). We can see that media objects are not directly intelligible to law. Research has shown us that their access to law is determined by a series of mediating processes like lawyerly presentations, expert testimonies, the gaze of the judges and jury, structures of feelings, forensic manipulations, technological apparatuses, courtroom architecture, societal subtexts (racist, gendered, classist attitudes that inform participants), and norms and rules of the juridical forum in which these objects participate as witnesses (Feldman, Reference Feldman1994; Mnookin, Reference Mnookin1998; Cole, Reference Cole2001; Parker, Reference Parker2015; Moore, Reference Moore2022; Kruse, Reference Kruse2016; Bechky, Reference Bechky2021; Schwartz, Reference Schwartz2009; Ristovska, Reference Ristovska2021). Given these multiple mediating processes, there is no guarantee that these new kinds of evidence will yield the desired results from the juridical forums.

In the two encounters, I mentioned at the beginning of this article, why were the police so forgetful and careless? Was it a genuine oversight that happens when we deal with paper, or was there a motivation behind that carelessness? In the Pehlu Khan case, given the political circumstances surrounding that case, the oversight seemed more than an innocent mistake. Benjamin, identifying two functions of violence as law-preserving and law-positing (or law-making), noted that both these forms of violence are present as a spectral mixture in the police force, especially in democracies where the separation between the two functions gets suspended (Benjamin, Reference Benjamin, Fenves and Ng2021, p. 47). Police in its operations has the power to both legislate and execute the law simultaneously, or in other words, in every act of execution of the stated law (or its interpretation), it simultaneously legislates a new law on the ground. Here, we see that even though the text of the law required the police to furnish these certificates along with the video footage, the police did not do so, rendering the evidence in the court inadmissible. Thus, it predetermined the fate of the trial (case-law decision) by executing (or not) the law in a particular way. The mandatory requirement of 65-B certificates thus augments these dual functions of making and preserving law or in other words, significantly enhances the discretionary powers present in the police force.

Fieldwork at police stations in a Hindi-speaking town in North India in the summer of 2024 revealed that 65-B certificates are used flexibly by the police force in their everyday investigations. IOs (Investigating Officers) at various stations mentioned to me that they often get the CDRs from the telecom agencies without any 65-B certificates. They use these uncertified records to carry out investigations and ask for certificates from the nodal agents of telecom companies only if they decide to include a particular record as evidence in the case diaries submitted to the court. These days police heavily relies on advanced surveillance tools, electronic records, and databases to identify and track criminals, however, very little of these activities and new media-based investigative labour of the police is revealed in the case diaries submitted to the court. Case diaries, I have come to realise, do not reflect the actuality of the investigation processes carried out by the police, they are an evidence-backed narrative of investigation made up by the police to argue a case in the courtroom. Often investigations are done using a lot of methods that are technically outside the bounds of law, but paperwork is done keeping in mind the legal limits. One of the constables while describing this practice said, “police ki karni aur kathni mein bahut farak hota hai,” “there is a huge difference between what the police does and what the police says.” An inspector shared with me that, “writing case diaries is like writing novels, we need to write a believable story based on evidence, within the bounds of the laws.” While discussing the use of CCTV footage and bystander footage as evidence during investigations, some police officers told me that ordinary citizens are often reluctant to get involved in cases as it means regular trips to courts to give testimony in ongoing trials or sometimes even violent threats from the parties involved. People are not ready to sign 65-B certificates for CCTV footage even if an incident is captured on their camera systems. Thus, even if the police officers use CCTV footage or bystander footage obtained from citizens to resolve a case or identify the suspects, they are often not shown in the case diaries submitted to the court because it is hard to get hold of these certificates from citizens. Even though Indian law under Section 91 CrPC (The Code of Criminal Procedure) and Section 165 of the Indian Evidence Act, 1872 has given police and judges the power to demand any document from anyone for an investigation, these powers are selectively used by the police in everyday cases, as it means more work at their end. Courts usually send CCTV footage and mobile footage for forensic analysis, which delays the case proceedings by a year or two, given the time that labs take to make their reports, therefore, police officers are even more reluctant to use video footage as evidence in everyday cases. Given the complexity of the law on the admissibility of electronic evidence, they often use alternative narratives based on human testimonies and anonymous informers instead of electronic forms of evidence to build a case for the courtrooms, even if investigations are carried out using electronic means such as CDRs and CCTV footage. They explained to me that it is difficult to argue a case based on electronic evidence in the court given the complicated legal regime around them.

5. Paper, law, and state

The arbitrariness associated with 65-B certificates in terms of their use in the courts reveals a deeper underlying tension between law and new media technology. To understand the stubborn presence of paper in a rapidly digitalizing legal system, one needs to appreciate the deep roots of paper as a medium in the constitution of modern states and legal systems. According to Bruno Latour, paper forms the material foundation of our social institutions. He notes that even though fun is made of the red tape and paperwork practices prevalent in bureaucracy and other places considering them as futile and unnecessary, “in our cultures ‘paper shuffling’ is the source of an essential power, that constantly escapes attention since its materiality is ignored” (Latour, Reference Latour, Lynch and Woolgar1990, p. 26). Max Weber, early in recognising the central role of paper and written documents in the formation of bureaucratic institutions, wrote that “the combination of written documents and a continuous operation by officials constitutes the office (bureau)” (Hull, Reference Hull2012b, p. 18). Cornelia Vismann has demonstrated that historically speaking, files (standing here for paper documentation practices and recording instruments) and law have always constituted each other (Vismann, Reference Vismann2008). Vismann argues that media technological developments in the processes of recording, binding, writing, data-collection, or what the German media theorists would collectively call cultural techniques (Siegert, Reference Siegert2015; Vismann, Reference Vismann2013) influence the legal frameworks as well (Vismann, Reference Vismann2008, p. xiii). Ethan Katsh, for instance, argued that the system of precedent in modern law was only possible after the medium of print allowed standardised copies of legal orders to be distributed and preserved (Katsh, Reference Katsh1989, p. 20).

Understanding documents as “talking things” that have the unique ability to deliver the same story, again and again, David Levy argues that most of our social institutions like science, law, government, administration, religion, education, and business corporations rely on the stabilising power of documents to achieve their goals (Levy, Reference Levy2001, pp. 62–89). James Scott in Seeing like a State argued that one of the major functions of the modern state has been to produce forms of writing and paperwork to make citizens and spaces more legible for taxation, conscription, and prevention of rebellion (Scott, Reference Scott1998, pp. 11–52). Generating paperwork like identification documents and land deeds among others has been an attempt to control what was deemed uncontrollable, to stabilise moving entities, and to quicken their processing for the purposes of governance. Media theorist Ben Kafka in the context of post-revolutionary France noted that the essential function of the production and preservation of paperwork in the modern bureaucratic state was to render it accountable to society (Kafka, Reference Kafka2012, p. 38).

In the context of South Asian states of the past and present, recent studies by historians, such as Bhavani Raman, Miles Ogborn, and Hayden Bellenoit along with the writings of anthropologists such as Akhil Gupta, Nayanika Mathur, Shrimoyee Nandini Ghosh, and Mathew Hull, have collectively demonstrated that paperwork and practices around it have played and continue to play a constitutive role in state formation and not just an instrumental one (Raman, Reference Raman2012; Ogborn, Reference Ogborn2007; Bellenoit, Reference Bellenoit2017; Gupta, Reference Gupta2012, p. 153; Mathur, Reference Mathur2016, p. 5; Ghosh, Reference Ghosh2019; Hull, Reference Hull2012b). In a very Foucauldian vein, they collectively argue that the state gets constituted by the everyday acts of reading, writing, file transfers, meetings, surveys, and audits. The key methodological move in this set of scholarship is not to assume that the state exists as an a priori conceptual or empirical object but to understand how it comes into being and then study it as a relational set of material practices (Mathur, Reference Mathur2016, p. 5). In this imagination, the state is fundamentally a scattered entity, which is brought together into an assemblage or an apparatus by everyday bureaucratic papery activities.

Historians of early colonial administration in India have revealed that paper certificates with signatures in the form of land deeds, lease documents, certificates, registers, stamp papers among others emerged as technologies of authentication in colonial India primarily because the colonial master always mistrusted native’s claims (Raman, Reference Raman2012, pp. 137–160; Bellenoit, Reference Bellenoit2017, pp. 118–154). Native mendacity and their proclivity to commit forgery were seen as one of the major motivations to regulate and standardise paper practices in colonial collectorates and courts. The colonial administrators undertook fundamental administrative reforms in the eighteenth and nineteenth centuries that inculcated a culture of “forensic mode of recordkeeping,” (Raman, Reference Raman2012, p. 54) where the records were underwritten by an evidentiary paradigm that sustained a mode of proof synchronous with modern jurisprudence as it was being developed in the metropole. The forensic mode of viewing documents made them self-evident, objects that could speak for themselves, and that could be mined for content. Writing from the archives of South India’s Madras presidency, Raman shows during the early colonial period there were fundamental changes in the attestation practices of written claims. Previously the oral testimonies of Kanakkans (Tamil scribes) had a lot of value, this was displaced by the need to produce signed paper records for corroboration like land deeds, stamp papers, lease documents, certificates, and registers. The emergence of a paper-based corroboration paradigm for authentication, along with the techniques of signatures, fingerprints, seals, and oaths, trumped over the oral testimonies of the natives. This should be seen as a crucial development in the history of modern law, as paper here emerged as a technology of truth-telling during this time. Paper certificates as bureaucratic technologies of authentication thus have a racist and colonial genealogy to work as a remedy when the problems of mistrust arise in law. We have seen previously in this article that lawmakers and judges in India work with the assumption that new technology is inherently volatile, more susceptible to manipulation and tampering, and thus difficult to control for juridical purposes. Judges, by emphasising the need for these paper trails in the form of certificates, tread familiar grounds of established courtroom practices of handling paper. In doing so, they also try to preserve a sense of control and domination over these seemingly volatile new media objects such as video, audio, and images, which otherwise can generate unpredictable, immediate, and visceral responses in the courtroom.

But isn’t paper also susceptible to manipulation, tampering, and forgery? There is no material quality about paper that lends it the aura, function, and power to authenticate new media objects. Paper is as prone to distortion as other media formats. What then explains the need for paper trails? Focusing on the materiality and affordances of paper, Sellen and Harper in The Myth of the Paperless Office have argued that the coming of new technologies does not replace the use of paper in organisations, but transforms it (Sellen and Harper, Reference Sellen and Harper2002, p. 16). They say, it is important to understand that workplace practices have developed alongside paper as dominant media technology, and that ideas about paper are embedded deep into work procedures, which makes it hard to replace it with new mediums. Similarly, Jacques Derrida in a speculative tone has noted that “for a certain time to come, a time that is difficult to measure, paper will continue to hold a sacred power. It has the force of law, it gives accreditation, it incorporates, it even embodies the soul of the law, its letter, and its spirit” (Derrida, Reference Derrida2005, p. 58). Progressing on the line of thinking proposed by Eyal Weizman and Thomas Keenan on “aesthetics, as the judgment of senses,” (Weizman and Keenan, Reference Weizman and Keenan2012, p. 24) Pallavi Paul has argued that the manner in which evidentiary media “objects are seized, their presentation in and address to the forum, and finally keeping pace with their afterlives are all aesthetic acts” (Paul, Reference Paul and Narrain2022, p. 235). In that case, the mandatory presentation of these paper certificates could also be read as essentially habitual organisational performances demanded by law, to generate an aesthetic sense of relational authenticity, trust, and stability in legal systems. Building on the conceptual vocabulary of Jacques Rancière, paper seems firmly embedded in the aesthetic regime of law, where aesthetics is defined as an established “mode of articulation” (Rancière, Reference Rancière and Rockhill2004, p. 81) within a particular sensible order. The stubborn presence of paper in our law enforcement systems can then be explained as a mixture of sheer organisational habits, deep embodied historicity, symbolic capital of paper media in legal institutions, and a sense of stability and control that paper seemingly continues to provide in the prevailing aesthetic regime of law. In other words, paper still carries a currency of trust that new media forms fail to generate in the legal system. In a media materialist vein, one can argue that modern law, despite all the digitalization, continues to be essentially a technology of paper.

6. Coda: paper in the age of the digital

The case of 65-B certificates in an increasingly digitalizing India illustrates that the move from paper states to paperless states is full of contradictions. “Hybrid” seems to be the best word for now to describe the conditions under which the digital operates (Muller, Reference Muller and Spengler2014, p. 263; Sundaram, Reference Sundaram2021). While the new technology increases efficiency and quickens the service delivery mechanism for the state, it still has not been able to generate the same amount of trust that paper in its sacred power seems to embody. The case of 65-B certificates is not an isolated instance in the Indian legal system but reveals a larger dynamics at play in this period of digital transformation. During my fieldwork at police stations and forensic labs, the junior-level clerical staff there often lamented about the fact that even though the higher authorities are pushing the use of digital platforms for everyday work, it is not that registers have been abandoned. Each entry made into the digital system has a simultaneous paper entry in a file or register as well. Effectively, their clerical work has doubled. One head constable, while showing me the FIR register in his police station, informed me that it is critical that we maintain these registers, “what if the computer system crashes one day? What if the software hangs?” He told me that the software that they are currently using for documentation purposes is not perfect, for instance, they sometimes do not have the option of adding certain penal codes in the FIR, in those instances, they have to add certain things manually by writing over with a pen on the printout of the FIR copy which has to be given to the investigating officer or is entered in the court records. Another instance shows how unique paper practices pervade the documentation logics of law enforcement systems. A head constable was preparing a case file that was to be sent to the court. He took a printout of the FIR he had registered in the computer software and made a strange marking of sorts using his pen on its backside. I asked him why was he doing it. He explained to me that this case might be heard in court in five years and added, “during this time, I would forget that I had registered this FIR. It is also possible that someone bribes the court staff and replaces this original copy with something else. If after five years, I am summoned to the court to give testimony then this unique pen marking will help me remember that this is indeed the original FIR that I had registered in the computer system.” Police officers during my fieldwork had shown me more than 80 kinds of paper registers that they maintain even today.

Thinking of this more critically, even if we do away with the physical paper as we know it, law’s information organizing methods are still steeped in the epistemic forms derived from paper bookkeeping and recording practices. The data entry software I had seen at the police stations and forensic labs only remediated the format of the paper register into the digital. The Supreme Court registry also demands scans of paper documents during e-filing. Despite the active promotion of e-filing and paperless courts, my fieldwork at the Supreme Court of India revealed that the majority of judges and the registry of the Supreme Court of India still use paper books, a paper replica of the original case files, as workhorses for everyday court activities. New technologies bring about new ways of creating, organising, and distributing information, which law and legal institutions actively resist by falling into the familiar paper epistemes and practices, thus explaining the stubborn presence of paper in a legal system that is increasingly undergoing an internal mediatised transformation to adapt itself to a new digital media ecology.