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E-EVIDENCE , NEW CRIMINAL LAWS , ITS IMPLEMENTATION
Syllabus:
- GS 2 : Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation.
Why in the News?
- Three new criminal laws, namely the Bharatiya Nyay Sanhita, Bharatiya
Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, are set to replace existing legislations on July 1, 2024.
- However, certain provisions, such as Section 106(2) of the Bharatiya Nayay Sanhita, have been put on hold by the Central government.
Source: HT
Preparation for Implementation:
- The Ministry of Home Affairs and State governments are gearing up for the smooth transition.
- Amendments have been made in the Bharatiya Nagarik Suraksha Sanhita, especially concerning investigation and police functions.
- While the Bharatiya Sakshya Adhiniyam sees few changes, some alterations have been introduced, including broadening the scope of secondary evidence and refining provisions related to electronic evidence.
About Section 106(2) of the Bharatiya Nayay Sanhita
- Section 106(2) of the Bharatiya Nayay Sanhita mandates ten years of imprisonment for fatal accidents if not promptly reported to the police.
- This provision aims to ensure timely reporting of accidents, holding individuals accountable for negligence or intentional avoidance of reporting such incidents.
- However, its implementation is currently on hold, as notified by the Central government, pending further review and clarification.
| About New Criminal Law Bills
Bharatiya Nyaya (Second) Sanhita, 2023: Major Provisions: 1. Offences and Incorporation: · BNS2 replaces the IPC, maintaining existing provisions while introducing new offenses like organized crime, terrorism, and group-related grievous hurt or murder. · Community service is introduced as a form of punishment. 2. Terrorism and Organized Crime: · Terrorism and organized crime are defined, with penalties ranging from death or life imprisonment to fines. 3. Mob Lynching: · BNS2 identifies mob lynching as a punishable offense, carrying life imprisonment or the death penalty. 4. Sexual Offences Against Women: · Raises the age threshold for gangrape victims and criminalizes deceptive sexual acts or false promises. 5. Sedition Revisions: · Eliminates the sedition offense, focusing on penalizing activities related to secession, armed rebellion, or actions endangering national sovereignty. 6. Death by Negligence: · Elevates punishment for causing death by negligence from two to five years under Section 304A of the IPC. 7. Supreme Court Compliance: · Aligns with Supreme Court decisions, excluding adultery as an offense and introducing life imprisonment alongside the death penalty for certain offences. Criticism: · Criminal responsibility age remains low. · Iconsistencies in child offense definitions. · Concerns over sedition provisions. Bharatiya Nagarik Suraksha (Second) Sanhita, 2023: Major Provisions : 1. Detention Conditions: Alters rules for under trials, restricting release on personal bond for severe offenses. 2. Medical Examination: Allows any police officer to request medical examinations, broadening accessibility. 3. Forensic Investigation: Mandates forensic investigation for crimes punishable by at least seven years’ imprisonment. 4. Sample Collection: Extends power to collect finger impressions and voice samples. 5. Timelines: Introduces strict timelines for various judicial processes. 6. Court Hierarchy: Eliminates the role of Metropolitan Magistrates. Criticism: · Lack of safeguards in property attachment. · Restrictions on bail for multiple charges. · Contradictory directives on handcuff use. Bharatiya Sakshya (Second) Bill, 2023: Major Provisions 1. Documentary Evidence: Expands the definition to include electronic records. 2. Oral Evidence: Permits electronic provision of oral evidence. 3. Admissibility of Electronic Records: Grants equivalent legal status as paper records. 4. Joint Trials: Introduces joint trials for absent accused. Criticism: · Admissibility issues of information from accused in custody. · Unincorporated Law Commission recommendations. · Lack of safeguards against tampering of electronic records. |
New Offences Introduced:
Promise to Marry:
- Criminalizes deceitful promises to marry, including consensual sexual activity.
- Covers false promises of employment or promotion, inducing marriage after suppressing identity.
Mob Lynching:
- Codifies offences linked to mob lynching and hate-crime murders.
- Applies when a mob of five or more individuals commits murder based on factors like race, caste, or personal belief.
Organised Crime:
- Tackles organised crime within ordinary criminal law.
- Distinguishes punishment based on whether death is caused by the offence.
Terrorism:
- Incorporates terrorism into ordinary criminal law.
- Adopts language from the Unlawful Activities Prevention Act but with broader definitions for terror financing.
Attempt to Suicide:
- Criminalizes attempting suicide to compel or restrain a public servant from discharging official duty.
- Prescribes jail term and community service.
Deletions:
- Unnatural Sexual Offences: Section 377, criminalizing homosexuality, repealed.
- Adultery: Offence of adultery, previously struck down by the Supreme Court, omitted.
- Thugs: Section 310, associating certain individuals as “thugs,” fully omitted.
- Gender Neutrality:
- Tweaks various laws, especially concerning children, for gender neutrality.
- Offences related to procuration and kidnapping were standardized irrespective of gender.
About Electronic Evidence
(E- Evidence)
- Clarity on Electronic Evidence:
- Definitions section provides precision regarding electronic records, including emails, server logs, documents on electronic devices, and locational evidence.
- Provision dealing with primary evidence (Section 57) offers clarity on video recordings stored electronically, aiding in cybercrime investigations.
- Admissibility of Electronic Records:
- Despite changes in Section 63 of the Bharatiya Sakshya Adhiniyam, the Supreme Court’s ruling in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal & Ors. (2020) remains applicable.
- The required certificate under Section 63(4) of the BSA is crucial for admitting electronic records.
- Non-submission of the certificate in time is considered a curable defect, with courts having the discretion to allow its submission at a later stage.
- Expert Certification and Hash Algorithms:
- Section 63(4) mandates the certificate to be signed by two persons – one in charge of the electronic device and an expert.
- The standard format of the certificate includes hash algorithms like SHA1, SHA256, and MD5 for integrity verification.
- While SHA256 is preferred for security, challenges may arise due to increased workload for cyber laboratories.
Solutions / Way Forward :
- The requirement for expert certification may strain cyber laboratories, necessitating an increase in manpower and infrastructure.
- General awareness drives on encryption methods are essential, especially for private agencies using electronic devices for security.
- Enforcement agencies must ensure preparedness before July to handle the added responsibilities effectively.
Conclusion:
As India prepares to implement new criminal laws, particularly concerning electronic evidence, clarity, and preparedness are paramount. Addressing challenges such as expert certification and infrastructure readiness will be crucial in ensuring the smooth transition and effective enforcement of the revised legal framework.
Source:
Mains Practice Question:
Discuss the challenges and implications of implementing the new criminal laws, particularly focusing on electronic evidence, and analyze the measures needed to address these challenges effectively.
