14 Nov 2023 12:42 PM GMT
The Bharatiya Sakshya Bill and the Bharatiya Nagarik Suraksha Sanhita - which are introduced by the Union Government to replace the Indian Evidence Act and the Code of Criminal Procedure - has no provision to safeguard the authenticity and integrity of digital evidence, observed the Department-related Parliamentary Standing Committee on Home Affairs.
The Bharatiya Sakshya Bill (BSB) has provision for treating electronic and digital records produced from proper custody as primary evidence (Explanation 5 to Clause 57).
It observed that the Bill has no mention about ensuring the maintenance of a proper chain of custody of digital and electronic records acquired during investigations. In this regard, the Committee noted that provision of maintaining proper chain of custody has already been incorporated within the ambit of criminal laws in developed countries such as United States of America (USA) and United Kingdom (UK). Therefore, the Committee suggested that an appropriate provision in this regard be incorporated in the Bharatiya Nagarik Suraksha Sanhita (BNSS).
In the report regarding the Bharatiya Sakshya Bill, the Committee recommended :
"The Committee is of the opinion that safeguarding the authenticity and integrity of electronic and digital records acquired during the course of investigation is crucial due to the fact that such evidences are prone to tampering. The Committee takes into account the suggestion submitted before the Committee and recommends that a provision may be inserted to mandate that all electronic and digital records acquired as evidence during the course of investigation are securely handled and processed through proper chain of custody. Appropriate provision in this regard may be made in the Bharatiya Nagarik Suraksha Sanhita, 2023."
These recommendations assume relevance in the backdrop of growing concerns over the seizure of personal electronic devices by investigating agencies. In the backdrop of NewsClick raids , a group of media organizations wrote to the Chief Justice of India seeking proper guidelines on digital seizure. Recently, while considering a writ petition filed by the Foundation of Media Professionals, the Supreme Court observed that the seizure of digital devices was a matter of serious concern and told the Centre that better guidelines are needed for the investigating agencies to balance journalistic interests and investigative needs. In another similar petition filed by a group of academicians (Ram Ramaswamy v. Union of India), the petitioners submitted a set of draft guidelines, which suggest, inter-alia, the need for a judicial warrant to seize academic, journalistic or privileged information in digital devices.
Provisions in BNSS on digital evidence
Let us look at the provisions facilitating the digitalization of procedures in criminal law and particularly digital evidence under the Bharatiya Nagarik Suraksha Sanhita Bill 2023(BNSS)-
Opposition raises concerns
TMC MP Derek O’Brien posted his dissent, particularly on section 94 of BNSS which allows the summoning of digital evidence. He stated “A mobile device or a laptop contains a lot of information which might not be relevant to the case because electronic devices in today's age contain all information pertinent to an individual's general existence. So, there’s a question about the invasion of the Right to Privacy because of the scope of information that’s in these devices. Secondly, the collection of such devices might also go against the Right against self-incrimination.”
On the admissibility of electronic evidence, the Leader of Congress party MP Adhir Ranjan Choudhary pointed out that section 63 conflicts with sections 61 and 62 of BSB. As per section 61, all electronic records are to be treated at par with paper records when proved in accordance with section 59. However, Section 63 lists the conditions required for the admissibility of electronic evidence.
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Report on Bharatiya Sakshya Bill here
Report on Bharatiya Nagarik Suraksha Sanhita here
Report on Bharatiya Nyaya Sanhita here.