E-evidence, new criminal law, its implementation
Context:
Three new criminal laws, Bharatiya Nyay Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, are set to be enforced from July 1, 2024.
- Section 106(2) of the Bharatiya Nayay Sanhita, pertaining to the reporting of fatal accidents, has been put on hold by the Central government.
- The Ministry of Home Affairs and State governments are preparing for a smooth transition, with minor changes made to the laws to accommodate new provisions and offenses.
Relevance:
GS-02 (Government policies and interventions)
Mains Question:
Discuss the implications of the upcoming enforcement of new criminal laws in India, with a focus on the admissibility of electronic evidence. Analyze the challenges posed by the requirement for expert certification and propose strategies to address these challenges for effective implementation of the laws. (250 words)
Dimensions of the Article:
- Major Provisions of Bharatiya Nagarik Suraksha (Second) Sanhita, 2023
- Clarity on Electronic Record
- Admissibility of Electronic Records
- Preparedness to Adopt New Format
Major Provisions of Bharatiya Nagarik Suraksha (Second) Sanhita, 2023:
- The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) replaces the Criminal Procedure Code, 1973 (CrPC), introducing notable changes:
- Detention Conditions: BNSS2 revises rules for undertrials, limiting release on personal bond for severe offenses like life imprisonment or multiple charges.
- Medical Examination: It broadens access to medical examinations, permitting any police officer, not just a sub-inspector, to request one.
- Forensic Investigation: BNSS2 mandates forensic investigation for crimes punishable by at least seven years’ imprisonment, requiring experts to collect evidence at crime scenes and electronically document the process, with states lacking forensic facilities to utilize resources from other states.
- Sample Collection: BNSS2 expands the authority to collect finger impressions and voice samples, even from individuals not under arrest, surpassing the CrPC’s provisions for specimen signatures or handwriting orders.
- Timelines: BNSS2 imposes strict deadlines, including medical reports for rape victims within 7 days, judgments within 30 days (extendable to 45), victim progress updates within 90 days, and charge framing within 60 days from the first hearing.
- Court Hierarchy: While the CrPC organizes criminal courts hierarchically, BNSS2 eliminates the distinction of Metropolitan Magistrates in cities with over a million people.
Clarity on Electronic Record:
- The new criminal laws provide clarity on electronic records, including definitions and admissibility.
- Electronic records, encompassing emails, server logs, and messages stored on digital devices, are now explicitly considered as documents.
- Moreover, the law distinguishes between primary and secondary electronic evidence, facilitating investigations into cybercrime.
Admissibility of Electronic Records:
- While there are some changes in the admissibility of electronic records under the new laws, the Supreme Court’s ruling in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal & Ors. (2020) remains relevant.
- The requirement of a certificate for the admissibility of electronic records is upheld, ensuring the integrity of digital evidence. However, non-submission of the certificate at the initial stage is deemed curable, provided it is produced later in the trial.
Preparedness to Adopt New Format:
- The requirement for expert certification of electronic records poses logistical challenges, particularly for cyber laboratories. With smartphones being integral to most crimes, the workload on cyber labs is expected to surge.
- Awareness campaigns on encryption methods and ensuring infrastructure readiness are crucial in preparing enforcement agencies for the transition.
Way Forward:
- As India moves towards the enforcement of new criminal laws with enhanced provisions for electronic evidence, it is essential to address logistical and procedural challenges.
- Awareness campaigns and capacity building initiatives are necessary to equip enforcement agencies and cyber laboratories for the increased workload. Moreover, the judiciary must adapt to the evolving landscape of digital evidence to ensure fair and efficient trials.
- By fostering collaboration between stakeholders and investing in technology and training, India can strengthen its criminal justice system in the digital age.
