With three new criminal laws now in effect as of July 1, India’s courtrooms are navigating a landmark shift. The transition was supported by extensive preparation from lawyers and judges, including orientation sessions and the provision of free reading materials. The summer of 2024 is brimming with anticipation because of the transformative legal reforms in the Indian criminal justice system.
Lawyers, police officers, and judges across India are immersing themselves in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS); the Bharatiya Nyaya Sanhita (BNS); and the Bharatiya Sakshya Adhiniyam (BSA). These new statutes, which replaced the colonial-era Criminal Procedure Code (CrPC), Indian Penal Code (IPC), and Indian Evidence Act (IEA) on July 1, mark a new era for India’s criminal justice system.
Introduced in the Lok Sabha on August 11, 2023, during Parliament’s Monsoon Session, India’s three new criminal laws were passed in December 2023 after extensive debate during the Winter Session. These laws aim to modernise and decolonise the Indian legal system, embracing technological advancements and replacing outdated British-era legislation with provisions tailored to contemporary Indian society and values.
The BSA’s emphasis on adapting to digital innovations highlights its role in bringing India’s criminal justice system into line with modern technological realities. This shift is more than just a legislative revision; it represents a dramatic stride towards modernising the system to reflect contemporary challenges, particularly those of the digital age.
The Indian Evidence Act (IEA) of 1872, ground-breaking for its time, established a comprehensive framework for evidence admissibility. It defined admissible evidence, differentiated primary and secondary evidence, and emphasised witness testimony. However, as technology progressed and societal norms shifted, the IEA struggled to keep pace, particularly with the complexities of electronic evidence.
Key Updates in BSA
The BSA keeps much of the Evidence Act’s framework while introducing necessary modifications to handle current concerns. One of the most notable changes is the broadening of secondary evidence to incorporate electronic data. This acknowledges the expanding use of digital communication and commerce in everyday life. Under the BSA, electronic records such as emails, server logs, and digital documents are now officially recognised as admissible evidence, giving a more defined framework for their use in court proceedings.
The BSA has expanded the definition of documentary evidence to encompass electronic records. This shift is critical, given the growing reliance on digital documentation in both personal and professional settings.
Electronic records and video recordings are now clearly included as primary evidence, while oral and written admissions and testimony from document examiners are considered secondary evidence. This transition guarantees that the law keeps up with technological advancements, allowing judges to deal with digital evidence more effectively.
The BSA addresses the admissibility of electronic records, with an emphasis on their integrity. It allows electronic recordings kept or processed by computers to be accepted as evidence, as long as they meet certain authenticity requirements. The Act establishes the use of hash algorithms and expert certification to ensure the reliability of digital evidence, lowering the danger of tampering and fraud.
Another important shift is the ability to provide oral evidence electronically. This allows witnesses, accused persons, and victims to testify online, which is a significant advancement in an age where distant communication is common. This change not only increases the accessibility of the court process, but also protects vulnerable witnesses who may find it impossible or perilous to appear in court physically.
The BSA also specifies the provisions for joint trials, especially when one of the accused has fled or failed to respond to an arrest warrant issued against them. This guarantees that the trial process is not excessively delayed or jeopardised, demonstrating a practical approach to dealing with complex criminal matters.
Concerns and Suggestions
While the BSA provides much-needed clarity and modernisation, it also raises some concerns, most notably about the integrity and admissibility of electronic records.
The vulnerability of digital evidence to tampering and alteration is a serious concern. Permitting electronic evidence does raise concerns about tampering, much like it does with traditional evidence. However, the nature of electronic evidence creates particular issues because it may be edited or erased with minimal traces, sometimes without the tangible marks of tampering that are visible with traditional evidence, such as documents or physical objects.
Furthermore, advanced technology enables sophisticated tampering tactics, which might be more difficult to detect than physical evidence alteration. In Anvar P.V. v. P.K. Basheer & Others (2014), the Supreme Court of India had addressed these dangers, emphasising the importance of strong protections to prevent miscarriage of justice.
To address these problems, the BSA authorises courts to consult with an Examiner of Electronic Evidence to establish an opinion on the authenticity of electronic documents. This rule ensures that digital evidence is subject to expert assessment, which increases its trustworthiness. However, the practical application of this rule necessitates significant investments in training and infrastructure. Law enforcement and the judiciary must be equipped with the appropriate tools and knowledge to properly manage and evaluate electronic evidence.
Incorporating international best practices can help to strengthen the BSA. The European Union’s Draft Directive Proposal on Mutual Admissibility of Evidence and Electronic Evidence in Criminal Proceedings 2020 provides useful insight on how to have better implementation of the BSA.
Firstly, it is critical to implement strong authentication criteria. Cryptographic technologies and hash algorithms can be used to verify that electronic evidence produced in court is verifiably authentic and unaltered. Secondly, involving IT professionals in the forensic analysis process is critical. These specialists play an important role in evaluating digital evidence and delivering expert views on its integrity, in line with world’s best practices. Finally, establishing a robust chain of custody for electronic evidence is critical. This involves meticulous documentation of its secure management, storage, and transfer of electronic evidence to prevent unauthorised access or tampering, ensuring its admissibility.
The BSA’s successful implementation demands a comprehensive approach, encompassing thorough training for law enforcement, judges, and legal practitioners. Awareness campaigns and workshops can familiarise stakeholders with the new provisions, fostering a seamless transition. Equally crucial is the development of robust infrastructure to support this digital transformation within the legal system. This includes equipping courtrooms with the technology to handle electronic evidence effectively, ensuring secure storage facilities for digital documents, and bolstering cybersecurity measures to safeguard sensitive data.
The Bharatiya Sakshya Adhiniyam (BSA) marks a watershed moment in India’s road to a modern and robust criminal justice system. By revising the requirements of the Indian Evidence Act to match the reality of the digital age, the BSA closes important gaps and provides much-needed clarity and flexibility. However, the effectiveness of this new regulation is dependent on its proper execution. Ensuring the integrity and legitimacy of electronic evidence, protecting against coercion and custody abuse, and investing in the required infrastructure and training are all critical measures.
By accepting these changes and fully preparing for their implementation, India can ensure that its criminal justice system is ready to face the challenges of the 21st century while providing justice efficiently and equitably.
The author is Research Fellow at India Foundation. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect News18’s views.
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