This blog discusses how India’s new criminal laws aim to modernize the legal framework and notably incorporate provisions addressing electronic communication and electronic evidence. The Bharatiya Nyaya Sanhita 2023 (BNS) has introduced Section 111 to tackle organized crime, including cyber-crimes, by targeting continuing unlawful activities. However, the absence of a clear definition of "cyber-crimes" creates ambiguity. Additionally, Section 152 of the BNS replaces the sedition provision under the IPC. Sections 152 and 197(d) of the BNS, prohibit certain types of speech transmitted through traditional as well as electronic communication. However, the provisions contain broad terms that may lead to misinterpretation and wrongful arrests, potentially chilling free speech.
Further, the Bharatiya Sakshya Adhiniyam 2023 expands the formats and sources of electronic evidence, to include semiconductor memory and communication devices. It also enhances the importance of electronic evidence by classifying electronic records as primary evidence. Despite this progress, timely authentication of evidence remains a challenge due to the gaps in India's forensics infrastructure. Thus, there are apprehensions that the risk of prolonged legal proceedings may deter free speech. It is crucial that these new criminal laws balance democratic considerations with the need to address the technological evolution in crimes.
On the 1st of July, 2024, the criminal law framework of India was overhauled when three new laws came into force. The Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), the Bharatiya Nyaya Sanhita 2023 (BNS), and the Bharatiya Sakshya Adhiniyam 2023 (BSA) replaced the Code of Criminal Procedure 1973, the Indian Penal Code 1860 (IPC) and the Indian Evidence Act 1872 respectively. These laws were introduced to modernize India’s criminal law system which was based on British colonial-era legislations. As a result, a number of the changes brought about by the BNS and BSA interface with technologies like electronic communication and electronic records.
Among other things, the BNS (erstwhile IPC) has introduced provisions to tackle criminal activity in the digital realm. Take, for instance, Section 111, the provision punishing continuing unlawful activities. Continuing unlawful activities are offenses against which charges have been filed before a court multiple times (i.e., more than once) over a span of ten years. The provision specifically seeks to tackle organized criminal syndicates, an unlawful activity that was not addressed under the IPC or any other central law.[1] Importantly, Section 111 extends to cyber-crimes, which is also unprecedented. However, the BNS does not define the term. Section 2(39) of the BNS states that if an expression is not defined under the BNS, then the definition under the Information Technology Act 2000 (IT Act) may be relied upon. But the IT Act does not define “cyber-crimes” either. The absence of a definition or even an illustrative list of “cyber-crimes” creates ambiguity regarding the scope of Section 111 and may lead to inconsistencies in its enforcement.
Another manner in which the BNS has incorporated modern technology is by criminalizing specific types of speech transmitted via electronic communication, in addition to traditional forms. Sections 152 and 197(d) of the BNS prohibit speech that may endanger the sovereignty, unity, and integrity of India. Although the BNS does not contain a section titled “sedition”, Section 152 is a reconfigured version of the earlier sedition provision, Section 124A of the IPC.[2] Section 152 prohibits encouraging secession, armed rebellion, subversive activities, or feelings of separatist activities. Similarly, Section 197(d) targets false or misleading information that jeopardizes national integrity or security. These sections utilize broad terms like “subversive activities”, “endangering the unity of India” or “misleading information” but do not explicitly define them. This lack of clarity may lead to misinterpretation and wrongful arrests. The explanation to Section 152 excludes lawful critique of the government’s actions from prohibited speech. However, the clarification may be futile given the sweeping language of Section 152. Thus, Sections 152 and 197(d) of the BNS, especially their expansion to include electronic communications may have a chilling effect on speech.
The dismal track record of convictions under Section 124A of the IPC may presage the possible outcomes of sedition cases under the BNS as well. Data from the National Crime Records Bureau revealed that there were no convictions in sedition cases in 2022 or 2021. Further, in 2022, out of the 20 reported sedition cases, chargesheets were filed in only 30 percent of cases. Additionally, other national security laws like the Unlawful Activities (Prevention) Act (UAPA) have been used to retaliate against criticism of government authorities. Illustratively, in November 2021 journalists were arrested on UAPA charges in Tripura for covering reports of communal violence. The journalists were arrested for allegedly publishing fake news to “promote enmity between groups” and the Supreme Court later stayed the proceedings against them. Sections 152 and 197(d) of the BNS can be utilized similarly.
The criminalization of certain electronic communication under the BNS is supplemented by the BSA recognizing electronic records like emails, voicemails, location data, etc. as evidence. Under the erstwhile Evidence Act, the acceptable formats of electronic evidence were restricted to paper, optical, or magnetic forms such as CD ROMs. The BSA has now included semiconductor memory like SD cards as a format of electronic evidence and communication devices as a source of electronic records.[3] Consequently, messages, chats, or voice recordings on mobile phones can be produced before courts as evidence. The BSA has not only expanded the sources of electronic evidence but has also enhanced its significance. Previously the Evidence Act classified electronic records only as secondary evidence. If an original document, considered primary evidence, is unavailable, secondary evidence such as copies or descriptions can be presented to the court with its prior approval. Section 57 of the BNS now classifies electronic records as primary evidence and Section 61 declares that they have the same value as physical documents.
Interestingly, under Section 63 of the BSA, even copies of electronic records can be submitted as evidence, without needing proof of the original record. However, the Supreme Court previously noted that electronic evidence is susceptible to tampering and alterations.[4] To ensure the accuracy of the evidence, Section 63 adds conditions regarding the device from which the evidence is collected, such as that the device was in regular use and functioning properly. Further, Section 63(4) requires that electronic evidence must be accompanied by certificates signed by the person in charge of the computer or communication device and an expert. The expert referred to in Section 63(4) is notified by the central government[5], which raises concerns about their objectivity, particularly in sensitive matters.
Furthermore, the timely authentication of electronic evidence will depend on the availability of trained forensic experts. Forensics laboratories in India are plagued with 40 percent unfulfilled vacancies. The laboratories also suffer from high pendency, especially in divisions like cyber forensics and DNA profiling. As a result, timely authentication of electronic evidence may prove challenging, leading to prolonged legal proceedings. The possibility of lengthy legal proceedings, especially in combination with grave charges like sedition may deter free speech.
While the updated criminal laws are necessary to keep pace with the technical evolution of crimes, they also raise concerns about potential overreach. These concerns can be addressed by framing definitions to avoid misuse or misinterpretation of penal provisions. Thus, unambiguous laws and robust evidence authentication procedures will be crucial to balance democratic considerations with the need to penalize criminal activity.
__
[1] Organized crime is addressed at the State level under laws like The Maharashtra Control of Organized Crime Act 1989, The Uttar Pradesh Gangsters and Anti Social Activities [Prevention] Act 1986, and The Karnataka Control of Organised Crime Act 2000.
[3] Section 63 of the Bharatiya Sakshya Adhiniyam, 2023.
[4] Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180.
[5] Section 39 (2) of the Bharatiya Sakshya Adhiniyam, 2023.