Legal Realism & Bhartiya Sakshya Adhiniyam, 2023: Bridging Technological Gaps for Criminal Justice Reform
INTRODUCTION
The Legal Realism school of legal jurisprudence succinctly stated that the law is always of approaching nature. The Parliament legislates law penalizing certain act and categorizing it as an offence only once it comes to light. Examples can be a law on mob lynching. The freshly legislated Criminal Law Legislations, one of them being Bhartiya Nyaya Sanhita, 2023, now includes mob lynching as an offence. The same is the case with technological advancements. A recent attempt is made through enacting Bhartaiya Sakshya Adhiniyam, 2023 (hereinafter referred to as "BSA") to exhaustively provide for technological advancements as a means of evidence having admissibility and relevancy in the Courts of Criminal Justice in India. However, still concerns with respect to lack of proper safeguards, digital ignorance and likelihood of privacy breaches were raised.
BSA was also criticized by various experts on the ground that the changes brought into effect would have also been made by amending the Indian Evidence Act, 1872. To which, Senior Advocate and Former Additional Solicitor General, Pinky Anand stated: "Whenever you change the law, some allegation of the other is always made. The point of bringing a new law is that if you amend a law it tends to have various possible contradictions, some ethos that you don't want to repeat. You want to have a law with lesser colonial deference, so that we have our own laws. So, the concept of amendment is a gone concept."1
The present article is an attempt to examine whether the endeavours made by the Parliament are sufficient to put its motto of Criminal Justice Reforms into reality or still there exist a few concerns to be addressed. The article would not only navigate through the concerns but endeavour to provide the suggestions to good the same.
THE INDIAN EVIDENCE ACT, 1872 – LIMITATIONS
Before discussing the correlation between BSA and the recent technological developments, it is necessary to discuss where the existing colonial-era Indian Evidence Act, 1872 lacked with respect to technology. An amendment was made and put into effect on Nov. 20, 2022 by the Parliament to include digital records and electronic records as means of evidence. The said amendment also made forensic evidence admissible under Sections 3(3), 45, 73B and 89A of the Indian Evidence Act, 1872. However, it is quite surprising to note that even before this amendment brought into effect, the Courts of Criminal Justice through 'judge-made law' were already giving primacy to digital records and electronic records as means of evidence. In the case of State v. Qamrul Islam & Ors.,2 the Hon'ble Court stated that 'video footage' can be considered as a 'document' under the meaning of 'document' provided under Section 02 of the said 1872 Act. In the case of Rifat Murder Case (2020), the CCTV footage was considered as evidence under the Act.
Furthermore, apart from digital and electronic records, the forensic evidence is also used to be utilised by the Courts as means of evidence prior to this amendment. DNA, blood samples, fingerprint, etc. were considered as admissible form of forensic evidence by the Courts despite the Evidence Act, 1872 fail to mention the same. However, the said amendment restricted the definition of 'forensic evidence' to blood, semen, hair, organs, DNA, fingerprints, eye impression. This definition restricted the inclusion of new technology leading to forensic evidence through proteomics, molecular profiling, et al.
The said 'digital amendment' made to the Indian Evidence Act, 1872 was though broadened the contours of the legislation as well as lessened the confusion and disputes arising with respect to the definitions of 'digital records,' 'electronic records' and 'forensic evidence,' failed to encompass the needs of the hour.
Apart from the said amendment, hardly amendments were introduced to include technological advancements as means of evidence. The said amendment was the only major amendment made to the said Act in order to include the technological means which can facilitate in determining relevancy and admissibility of the evidence.
THE BHARTAIYA SAKSHYA ADHINIYAM, 2023 AND TECHNOLOGY – CORRELATION
The BSA first brought changes to the definition of 'document' under Section 2(d) of the Act, including digital records and electronic records as a part of document. The said section further encapsulates the illustrations defining what are electronic records. Furthermore, Section 61 of the BSA provides that both kind of evidence, electronic or digital evidence and documentary evidence shall be treated equally with respect to their legal effect, validity, and enforceability.
Furthermore, amendments to the definition of "evidence," as stated in Section 2(e), is made in order to establish facts under investigation. Electronic evidence in the form of a witness statement is now permitted as per the said definition. This also implies that under Section 2(e)(i), witnesses may now virtually appear before the Court and provide testimony, greatly streamlining and simplifying the process of delivering justice.
The Primary Evidence definition provided under Section 62 of the 1872 Act is now further enhanced providing that the original documents produced for the inspection to be done by the Court to support four new explanations about electronic and digital evidence. i.e.,
- Creation and storage in multiple files;
- Production from proper custody;
- Video recordings storage and simultaneous transmission, broadcast or transfer to another;
- Multiple storage spaces and temporary files
SHORTCOMING OF THE BHARTAIYA SAKSHYA ADHINIYAM, 2023 & SUGGESTIONS
The school of Legal Realism stated that a law cannot fulfil all the needs of the society. Irrespective of the fact, to whatever extent, the Parliament endeavours to make a legislation catering to the needs of each individual of society, the lacunas would still persist and with evolving nature of time, the laws will become more prone to the shortcomings. Due to these gaps existing, the Courts play a crucial role in overcoming these gaps. As a result, there also exist gaps in BSA, such as:
- Inadequate safeguards: The BSA Act permits the use of electronic records as primary evidence, which raises the possibility that these records may be tampered with during the adjudication process, which begins with an investigation and ends with the accused being found guilty or not. This tampering of electronic and/or digital records will persist unless special measures are taken to prevent it.
The Hon'ble Supreme Court recognised in Anvar P.V. v. P.K. Basheer: "Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."3
In addition, the Parliamentary Standing Committee on Home Affairs made a recommendation along these lines in Report No. 248: "The Committee believes that it is essential to protect the integrity and authenticity of digital and electronic records that are obtained during the course of an investigation because they are susceptible to manipulation."4 It was recommended that a clause be included requiring all digital and electronic records to be handled securely and that they be processed further using an appropriate chain of custody.
- Concerns about Digital Ignorance: One cannot ignore concerns of getting hacked and being prone to cybercrimes when it comes to computers and related gadgets. Moreover, India also has a very poor cyber-infrastructure, which can prevent hacking and other cybercrimes. With the rise of artificial intelligence, tampering with electronic devices has never been easier, especially in India, where most people are still mostly ignorant of technology. Under such conditions, there is an increased likelihood that electronic evidence and records will be handled unethically or carelessly mishandled; this implies that digital education must be provided to all component authorities responsible for handling such records as well as to those covered by this act.
- Privacy Breach Concerns: As digital information contains a tremendous amount of personal data that might be misused, the BSA's inclusion of electronic evidence raises privacy concerns. In the absence of stringent rules, there is a potential for monitoring, unapproved entry, and manipulation, thus compromising people's right to privacy and faith in the legal system.
CONCLUSION
In essence, while the BSA represents a significant milestone in the integration of technology into the legal system, there is still work to be done to fully realise its potential and address the challenges posed by the digital age.
Footnotes
1. New criminal law reform bills reflect new tech realities, says senior advocate Pinky Anand, Business Today, https://www.businesstoday.in/latest/in-focus/story/new-criminal-law-reform-bills-reflect-new-tech-realities-says-senior-advocate-pinky-anand-410565-2023-12-22, last seen on 26/04/2024.
2. AIR 1994 Supreme Court 1733.
3. AIR 2015 Supreme Court 180.
4. Standing Committee, Rajya Sabha, The Bharatiya Sakshya Bill, 2023.
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