| PYQ Relevance: 1. Impact of digital technology as a reliable source of input for rational decision-making is a debatable issue. Critically evaluate with suitable examples. (2021) 2. Examine the scope of Fundamental Rights in light of the latest judgment of the Supreme Court on the Right to Privacy. (2017) |
Note4Students:
Mains: Important Legislations and Amendments.
Prelims: Bharatiya Nyay Sanhita; Bharatiya Nagarik Suraksha Sanhita; Bharatiya Sakshya Adhiniyam;
Mentor comments: The Ministry of Home Affairs (MHA) and State governments are preparing for a smooth transition of Bharatiya Nagarik Suraksha Sanhita (BNSS) which was passed in December 2023 and will be in effect from 1st July 2024. While some changes have been made in the BNSS in connection with investigation and police functioning, the scope of secondary evidence has been slightly broadened and some changes have been made in the provisions relating to electronic evidence in the Bharatiya Sakshya Adhiniyam
Let’s Learn.
Why in the News?
Some changes have been made in the provisions relating to electronic evidence in the Bharatiya Sakshya Adhiniyam 2023, which is to replace the Indian Evidence Act.
Context of the News:
- The three newly enacted criminal laws, the Bharatiya Nyay Sanhita (to replace the IPC), the Bharatiya Nagarik Suraksha Sanhita (to replace the CrPC), and the Bharatiya Sakshya Adhiniyam (to replace the Indian Evidence Act) are to come into force on July 1, 2024.
- Significantly, Section 106(2) of the BNS, which prescribes 10 years imprisonment for fatal accidents if they are not immediately reported to the police, has been put on hold, as notified by the Central government.
- Some changes have been made in the Bharatiya Nagarik Suraksha Sanhita (BNSS) in connection with the investigation and police functioning.
The scope of secondary evidence has been slightly broadened and some changes have been made in the provisions relating to electronic evidence in the Bharatiya Sakshya Adhiniyam.
| Key Highlights of the Bhartiya Nyay Sanhita (BNS) Act, 2023: 1. The Bharatiya Nyay Sanhita retains most offenses from the IPC (1860). It adds community service as a form of punishment. 2. Sedition is no longer an offense. Instead, there is a new offense for acts endangering the sovereignty, unity, and integrity of India. 3. The BNS adds terrorism as an offense. It is defined as an act that intends to threaten the unity, integrity, security or economic security of the country, or strike terror in the people. 4. Organized crime has been added as an offense. It includes crimes such as kidnapping, extortion, and cyber-crime committed on behalf of a crime syndicate. Petty organized crime is also an offense now. 5. The BNS retains the provisions of the IPC on rape and sexual harassment. It does not consider recommendations of the Justice Verma Committee (2013) such as making the offense of rape gender-neutral and including marital rape as an offense. The BNS omits Section 377 of IPC which was read down by the Supreme Court. This removes rape of men and bestiality as offenses. 6. Murder by a group of five or more persons on grounds of certain identity markers such as caste, language, or personal belief will be an offense with a penalty of life imprisonment or death, and with a fine. 7. Most importantly, it criminalizes ‘deceitful’ promises to marry. |
The Clarity specified on New Provisions related to Electronic Records is as follows:
- On Electronic Records: Definition of “document” includes electronic records on emails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence, and voice mail messages stored on digital devices, etc.
- On Primary Electronic Evidence: Video recordings stored in electronic form are primary evidence. This may help the investigating agencies in fixing the culpability of a cyber-criminal.
- Section 63: ‘Semiconductor memory‘ and ‘communication device’ don’t change the impact of the provision. However, the IT Act, 2000 has a definition of “electronic form” in a broad view.
Present Dilemma on Data Integrity:
- Admissibility of Electronic Records: The law regarding the use of electronic records is clear, with specific requirements for their admissibility. A recent Supreme Court judgment emphasized the necessity of a certificate under Section 65-B (4) for electronic records to be admissible.
- This certificate, now under Section 63(4) of the BSA, must be signed by two individuals: the person in charge of the device and an expert. While timely submission of this certificate is preferred, its absence can be rectified without harming the accuser’s rights.
- Ensuring Data Integrity: The certificate includes a hash value obtained through a specific algorithm to ensure data integrity. The use of secure hash algorithms like SHA256 is recommended to safeguard data integrity, as opposed to potentially vulnerable algorithms like MD5 and SHA1.
Challenges associated with preparedness to adopt New Format:
- Preparedness with Cyber Environment: Expert certification for electronic records admission will increase cyber laboratories’ workload as most crimes involve smartphones, with call records and location data aiding investigations.
- Lack of Human Resource: Requiring expert-signed certificates for every record may strain cyberlabs lacking manpower. For example, some cyberlabs (such as in Chhattisgarh) are not even notified under the IT Act to give expert opinion on electronic records.
- Need Optimal Opinion: Expert opinion should be sought only when record integrity is disputed during trial.
Way Forward:
- Need for an Awareness Drive: A general awareness campaign on encryption methods is needed, especially for private agencies using electronic devices for security.
- Infrastructure Readiness: Enforcement agencies must prepare infrastructure before July to handle increased responsibilities effectively.
References:
https://prsindia.org/billtrack/the-bharatiya-nyaya-second-sanhita-2023
References: https://www.thehindu.com/opinion/op-ed/the-economic-case-for-investing-in-indias-children/article67896821.ece
