Revolutionising digital forensics: India’s new legal frontiers

India's legal system has transformed with the enactment of the Bhartiya Nyay Sanhita (BNS), the Bhartiya Nagarik Suraksha Sanhita (BNSS) and the Bhartiya Sakshya Adhiniyam (BSA). The new laws aim to modernise the criminal justice system, making it more effective, efficient and accessible. Technological advancements have facilitated these reforms, streamlined judicial processes and enhanced citizen protection.

The primary goal is to create a just and fair legal system that is attuned to the digital age and the diverse needs of society. Understanding the specific changes and their implications is crucial, as they will reshape India's judicial landscape by redefining evidence and investigation approaches and expanding the scope of offences.

Developments in the field of digital forensics in India

Due to technological innovation and evolving threats, digital forensic evidence is rapidly growing in importance. The new law emphasises the role of audio-video technology in supporting police crime scene investigations. “Audio-visual electronic means” include video conferences, recording identification procedures, conducting searches and seizures, transmitting electronic communications, and other uses designated by the state government.

A specific provision mandates the ‘recording of search and seizure through audio-video electronic means.’ Under Section 105 of the BNSS, police officers must record the audio-video of any place they search or items they seize. This recording, along with the seizure list, must be forwarded to the district magistrate, the sub-divisional magistrate, or the judicial magistrate of first class immediately. Some of the significant developments of the BNSS are:

• Under Section 176(3) of BNSS, it is mandatory to collect forensic evidence at crime scenes for offences punishable with seven or more years of imprisonment.

• Section 176(1) stipulates that rape victims' evidence should be recorded at their home or another preferred location, preferably by a female police officer, and in the presence of a parent, guardian, or social worker. This evidence can also be recorded using audio-video technology, such as mobile phones.

• Section 180(3) allows witness statements to police to be recorded using audio-video means, though this is at the discretion of the police officer.

• Section 54 permits recording statements of identifiers during test identification parades via audio-video technology if the identifier is mentally or physically disabled.

• In session cases, audio-video means can be used for the disposition of evidence or statements from witnesses, police officers, public servants, or experts under Section 254. Similarly, in the trial of warrant cases under Sections 265 and 266, courts may permit the use of audio-video technology for examining witnesses at a location designated by the state government.

• Section 308 allows the examination of the accused through electronic means, such as audio-video conferencing, at state-designated locations.

• Section 349 broadens the range of forensic samples that can be collected under a magisterial order per Section 311A of the Code of Criminal Procedure (CrPC), 1973. These samples may include fingerprints, voice samples, signatures and handwriting. This evidence can be collected from any person, even if they are not directly connected to the offence or investigation.

The BNSS’ passage is a major evolution for digital forensics in India. The law describes the processes for collecting, preserving and presenting audio-visual evidence in court and highlights its significance. This has several advantageous effects:

Intensified cybercrime inquiries: Digital forensic evidences are very essential for the investigation of cybercrimes. BNSS provides a legal foundation for collecting and utilising this evidence, which encourages more exhaustive investigations and prosecutions.

Enhanced efficiency: Digital forensic evidences are very helpful for law enforcement organisations to save time and money in the investigation process.

Enhanced admissibility of evidence: Digital evidence is more likely to be admitted in a court of law when the chain of custody is upheld according to clear criteria.

But in addition to the advantages, the BNSS also brings up some issues and problems to think about:

Awareness: The public, legal experts and law enforcement officers must all be informed about the BNSS's provisions and the use of digital forensics in investigations.

Resource restrictions: There is a requirement of the establishment of appropriate digital forensics labs, hiring of competent personnel, experts and specialist equipment for the implementation and maintaining the provisions of the BNSS.

Privacy issues: Due to the more stringent investigation process, there is a rise in the number of cases of privacy issues and data breach. There is a need for an effective investigation process to be balanced with national as well as personal data security.

Judicial trend

In State (NCT of Delhi) v. Navjot Sandhu (2005), the Court addressed the admissibility of electronic records, ruling they could be accepted without a certificate under Section 65B (4) of the Indian Evidence Act, though this was later overruled in Anvar PV v. PK Basheer (2014), reinstating the certificate requirement. The Supreme Court also emphasised on the necessity of a certificate under Section 65B for the admissibility of electronic records. In Manu Sharma v. State (NCT of Delhi) (2010), digital evidence played a crucial role in the conviction in the Jessica Lal murder case, while the Madras High Court in Unnikrishnan v. State (2011), ruled that digital photographs are primary evidence, negating the need for negatives, provided they comply with Section 65B of the Evidence Act.

In K Ramajayam v. Inspector of Police (2016), the Court ruled against relying on external evidence for electronic records' admissibility, reinforcing Anvar PV's principles. In P Gopalkrishnan v. State of Kerala (2020), the Court mandated that electronic records on memory cards or pen drives be treated as documents, allowing accused access to cloned copies for defence, with privacy concerns addressed through restricted access and court directives.

The way forward

The BNSS marks a significant advancement in integrating digital forensics into India's legal framework. The new legislation emphasises on the importance of audio-visual evidence and sets clear protocols for its acquisition, storage, and presentation in legal proceedings, leading to a more effective approach to investigating cybercrime. However, for India to fully harness the benefits of digital forensics, several areas need further development.

Law enforcement officers, attorneys and the public require a deeper understanding of digital forensics and its role in the legal system. Enhanced collaboration between law enforcement, businesses and academia is crucial to foster innovation, research and skill development in digital forensics. Given the transnational nature of cybercrime, efficient international cooperation is vital for evidence collection and prosecuting offenders. By addressing these challenges, India can ensure that digital forensics plays a crucial role in upholding the law and delivering justice in the digital age.

Ravi Sharma is an advocate practicing before the Delhi High Court.

Mahak Jain is a second year B.A.LL.B. student at DNLU, Jabalpur.