E-evidence, new criminal law, its implementation
The Indian government has recently enacted three new criminal laws, namely the Bharatiya Nyay Sanhita (replacing the Indian Penal Code), the Bharatiya Nagarik Suraksha Sanhita (replacing the Code of Criminal Procedure), and the Bharatiya Sakshya Adhiniyam (replacing the Indian Evidence Act). These laws are set to come into effect on July 1, 2024. However, Section 106(2) of the Bharatiya Nayay Sanhita (BNS), which imposes a 10-year imprisonment for fatal accidents if not reported immediately to the police, has been put on hold by the Central government.
The Ministry of Home Affairs (MHA) and State governments are actively preparing for a seamless transition to these new laws. While there have been some changes made in the Bharatiya Nagarik Suraksha Sanhita (BNSS) concerning investigations and police operations, the Bharatiya Nyay Sanhita (BNS) introduces a few new offences and amendments. On the other hand, the Bharatiya Sakshya Adhiniyam (BSA) has seen minimal changes, with only slight expansions in the scope of secondary evidence and adjustments in provisions related to electronic evidence.
In today's digital age, electronic evidence, also known as e-evidence, has become increasingly crucial in legal proceedings. It refers to any information stored or transmitted in digital form that can be used as evidence in court. This includes
- Digital documents: Emails, text messages, social media posts, word processing documents, spreadsheets, etc.
- Metadata: Information embedded within electronic files, such as creation date, modification history, and author information.
- Website content: Web pages, online transactions, and any digital information accessed or stored on websites.
- Multimedia files: Images, videos, audio recordings, etc.
- Device data: Information extracted from digital devices like computers, smartphones, and hard drives, including browsing history, call logs, location data, and application usage.
Importance of E-evidence
E-evidence plays a vital role in various types of cases, including
- Cybercrimes: Investigating and prosecuting online offences like hacking, identity theft, and cyberbullying.
- Financial crimes: Tracking fraudulent transactions, money laundering activities, and financial misconduct.
- Contract disputes: Proving the existence and terms of contracts made electronically.
- Intellectual property theft: Protecting copyrighted material and trademarks online.
- Personal injury and negligence cases: Capturing digital evidence of accidents, product defects, and other incidents.
Challenges of E-evidence
The use of e-evidence also presents certain challenges
- Authenticity and integrity: Ensuring that the evidence hasn't been tampered with or altered in any way before being presented in court.
- Admissibility: Meeting legal requirements for presenting digital evidence, which may vary depending on jurisdiction.
- Data privacy concerns: Balancing the need to use e-evidence for legitimate purposes with the right to privacy of individuals.
The Bharatiya Sakshya Adhiniyam (BSA), also referred to as the Indian Evidence Act, is a crucial piece of legislation that outlines the rules and principles governing the admissibility of evidence in legal proceedings in India. Enacted in 1872 and subsequently amended several times, the BSA plays a fundamental role in ensuring a fair and just legal system.
Key Features of the BSA
- Types of Evidence: The BSA categorizes evidence into two primary types: oral and documentary. Oral evidence refers to spoken statements made by witnesses in court, while documentary evidence encompasses written or printed records, including electronic records.
- Relevancy of Evidence: The BSA establishes the criteria for determining the relevancy of evidence, which is defined as any fact that is likely to make a fact in issue more or less probable.
- Admissibility of Evidence: The BSA specifies the conditions under which different types of evidence can be admitted in court. This includes rules related to hearsay evidence, expert opinions, and character evidence.
- Burden of Proof: The BSA assigns the burden of proof to the party asserting a claim, who must establish their case by presenting sufficient evidence.
- Witnesses: The BSA outlines the rules governing the examination and cross-examination of witnesses, including their competence and compellability.
Significance of the BSA
The BSA serves as a foundational framework for the Indian legal system, ensuring that all parties involved in legal proceedings have equal opportunity to present their evidence and arguments. By establishing clear guidelines for the admissibility and evaluation of evidence, the BSA contributes to the fair and impartial administration of justice.
Recent Amendments to the BSA
In 2023, the Indian Parliament passed the Bharatiya Sakshya (Second) Bill, 2023, which introduced several amendments to the BSA. Some of the key changes include:
- Recognition of Electronic Records: The BSA now explicitly recognizes electronic records as a form of documentary evidence, acknowledging the growing importance of digital information in modern society.
- Enhanced Provisions for Witness Protection: The amended BSA includes stronger measures to protect witnesses from intimidation and harassment, ensuring their safety and encouraging them to come forward with crucial information.
- Streamlining of Evidence Presentation: The amendments aim to streamline the process of presenting evidence in court, reducing unnecessary delays and promoting efficiency in legal proceedings.
3. Clarity on Electronic Records in New Criminal Laws
The newly enacted Bharatiya Nyay Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) have brought clarity to the definitions and provisions concerning electronic records.
Definition of "Document"
The term "document," as defined in the laws, includes electronic and digital records. An illustration provided in the definitions section clarifies that electronic records encompass emails, server logs, documents on computers, laptops, or smartphones, messages, websites, and locational information. Additionally, voice mail messages stored on digital devices are also considered documents.
Primary (Electronic) Evidence
Section 57 of the BNS outlines primary electronic evidence. One of the explanations provided states that if a video recording is simultaneously stored in electronic form and transmitted, broadcast, or transferred to another, each stored recording is considered primary evidence. This provision can help investigating agencies establish the culpability of cyber-criminals even if the original electronic record is destroyed, as it may be retrieved from other sources without diminishing its value.
Admissibility of Electronic Records
Section 63 of the BNS addresses the admissibility of electronic records. It includes terms such as "semi-conductor memory" and "any communication device" for better clarity. However, these terms do not alter the provision's impact, as the definition of "electronic form" in the Information Technology (IT) Act, 2000 already encompasses information generated, sent, received, or stored in computer memory. Similarly, the definition of "computer network" in the IT Act is comprehensive and includes "communication device."
Relevance of Computer Memory
It is important to note that computer memory, such as random access memory (RAM) and cache memory, is a type of semiconductor memory crucial for the efficient functioning of a computer. Although volatile in nature, this memory may reveal significant information if electronic devices are recovered and seized in a "power-on" condition.
4. Admissibility of Electronic Records under New Criminal Laws
The admissibility of electronic records under the newly enacted Bharatiya Sakshya Adhiniyam (BSA) is now settled. Although there are some changes in Section 63 of the BSA, the Supreme Court's ruling in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal & Ors. (2020) remains applicable. The Court emphasized that the required certificate under Section 65-B(4) of the Indian Evidence Act, now Section 63(4) of the BSA, is essential for the admissibility of electronic records.
Non-Obstante Clause and Complete Code
The provisions related to the admissibility of secondary evidence do not apply to electronic records under Section 65-B of the Indian Evidence Act, as it begins with a non-obstante clause. Sections 65-A and 65-B are considered a complete code by themselves. This non-obstante clause is retained in the BSA.
Submission of Certificate and Curable Defect
The Court clarified that while the certificate should generally be submitted with all other documents at the time of filing the police report and latest before the trial's commencement, the non-submission of such a certificate in time is a curable defect. If it is impossible to produce the required certificate, the court can exempt the mandatory production of the certificate.
Certificate Requirements
Section 63(4) of the BSA requires the certificate to be signed by two persons instead of one as required under the Indian Evidence Act. The first signature should be by the person in charge of the computer or communication device or the management of the relevant activities, and the second by an expert. A standard format of the certificate is prescribed in the Schedule to the BSA. The expert must verify the certificate by stating that a particular hash value is obtained by applying a specific hash algorithm.
Hash Algorithms
The standard format of the certificate lists 'SHA1, SHA256, MD5, and Other (legally acceptable standard)' as applicable hash algorithms. While MD5 and SHA1 have some vulnerabilities, SHA256 is considered more secure and should be used by agencies to ensure data integrity.
5. Preparedness for the New Electronic Record Format
- While expert certification may facilitate the court's admission of electronic records, it is likely to increase the workload of cyber laboratories.
- Nowadays, smartphones are involved in almost every crime, and many cases are resolved using call records and location information.
- However, if every certificate must be signed by an expert, the workload will significantly increase, especially as some cyber labs, such as those in Chhattisgarh, are not even notified under the IT Act to provide expert opinions on electronic records.
- It would have been more reasonable to require expert opinions only when the integrity of the seized electronic record is disputed during trial.
- In such cases, the courts could request expert opinions. It would have been sufficient if the investigating officer ensured that one of the hash algorithms was applied and the message digest was attached to the certificate before collection.
- There is now a need for a general awareness campaign about encryption methods, especially for private agencies that use electronic devices for security purposes.
- Additionally, enforcement agencies should use the time before July to ensure that the necessary infrastructure is in place to handle the added responsibilities.
Mains Pratice Questions
1. Discuss the significance of electronic evidence in modern legal proceedings and the challenges associated with its use. How can these challenges be addressed to ensure the integrity and admissibility of e-evidence in courts? (250 Words) 2. Evaluate the impact of the newly enacted Bharatiya Nyay Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam on the Indian legal framework. Discuss the challenges and opportunities presented by these laws in the context of electronic evidence and witness protection. (250 Words) 3. "Modernization of the legal system is essential to ensure its effectiveness and relevance in a rapidly evolving society." Discuss this statement in the context of the recent reforms introduced in India's criminal laws. (250 Words) 4. The implementation of new criminal laws necessitates effective stakeholder engagement and capacity building. Discuss the challenges in ensuring the smooth transition to the new Bharatiya Nyay Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) in India. (250 words) |