By: Dipak Kurmi
The three recently enacted criminal laws – Bharatiya Nyay Sanhita (replacing the Indian Penal Code), Bharatiya Nagarik Suraksha Sanhita (replacing the Code of Criminal Procedure), and Bharatiya Sakshya Adhiniyam (replacing the Indian Evidence Act)—are scheduled to take effect on July 1, 2024. Simultaneously, the implementation of Section 106(2) of Bharatiya Nayay Sanhita (BNS), which mandates a 10-year imprisonment for fatal accidents not promptly reported to the police, has been temporarily suspended, as officially notified by the Central government.
The Ministry of Home Affairs (MHA) and various State governments are actively preparing for a seamless transition. Modifications in the Bharatiya Nagarik Suraksha Sanhita (BNSS) pertaining to investigative processes and police operations have been implemented. While a few new offenses and alterations have been introduced in the Bharatiya Nyay Sanhita (BNS), the core content of the Indian Evidence Act, 1872 remains largely unchanged in the context of the Bharatiya Sakshya Adhiniyam (BSA). Noteworthy adjustments include a slight expansion in the scope of secondary evidence and some revisions in the provisions related to electronic evidence within the BSA.
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Clear guidance regarding electronic records is provided in the definitions section. As an example accompanying the definition of “document,” which encompasses electronic and digital records, it is clarified that items such as emails, server logs, documents stored on computers, laptops, or smartphones, messages, websites, and locational information (the term “information” is suggested instead of “evidence”) are all considered as documents. Additionally, voice mail messages stored on digital devices fall within the scope of the defined term.
Likewise, the provision addressing primary (electronic) evidence (Section 57) is elucidated through Explanations, providing clear guidance. One of these four explanations specifies that in cases where a video recording is both stored in electronic form and simultaneously transmitted, broadcast, or transferred elsewhere, each of the preserved recordings is considered primary evidence. This could prove beneficial for investigative agencies in establishing the culpability of a cyber-criminal, even if the original electronic record is destroyed to refute allegations. The value of such evidence remains intact when collected from alternative sources, preventing its diminishment.
Section 63, addressing the admissibility of electronic records, incorporates terms like ‘semi-conductor memory’ and ‘any communication device’ for enhanced clarity. It’s noteworthy that these inclusions do not alter the provision’s impact, as the definition of ‘electronic form’ outlined in the Information Technology (IT) Act, 2000 encompasses information generated, sent, received, or stored in ‘computer memory.’ Likewise, the comprehensive definition of ‘computer network’ in the IT Act covers ‘communication device.’ Therefore, the terms used in Section 63 align seamlessly with the broader definitions provided in the IT Act.
It’s important to note that the computer’s primary memory, encompassing random access memory (RAM) and cache memory, essentially constitutes semi-conductor memory. This type of memory is vital for the efficient and rapid operation of a computer. Despite its volatile nature, this memory can disclose crucial information when electronic devices are recovered and seized in a ‘power-on’ condition.
The matter concerning the admissibility of electronic records is well-established. While there are certain alterations in Section 63 of the BSA (equivalent to 65-B of the Indian Evidence Act), the precedent set by the Supreme Court in the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal & Ors. (2020) remains equally applicable to the new provisions. The Court, in this instance, affirmed that the requisite certificate under Section 65-B(4) – now Section 63(4) of the BSA – is indispensable for admitting electronic records. Notably, other provisions related to the admissibility of secondary evidence do not apply to electronic records, given that Section 65-B of the IE Act commences with a non-obstante clause, and both Section 65-A and Section 65-B constitute a comprehensive legal framework in themselves. The non-obstante clause from the Indian Evidence Act is preserved in the BSA.
The Court emphasized that if obtaining the necessary certificate from the individual in possession of an electronic device proved challenging, an alternative recourse was available. Namely, an application could be submitted to a judge, seeking the production of the required certificate from the person involved, particularly in situations where the individual declined to provide it willingly.
The Court determined that while the certificate should ideally be submitted along with all other documents during the filing of the police report, and at the latest, before the commencement of the trial, any failure to do so in a timely manner is considered a curable defect. Notably, as Section 65-B (and now Section 63 of the BSA) does not specify the precise stage at which the certificate must be presented to the court, the court retains the discretion, in suitable cases, to permit the prosecution to introduce the certificate at a later stage without prejudicing the accused during the trial. The Court further emphasized that in cases where compliance with the law is impossible, the alleged disobedience can be excused. In simpler terms, if producing the required certificate is deemed impossible, the court has the authority to waive the mandatory requirement for its submission.
Section 63(4) of the Bharatiya Sakshya Adhiniyam stipulates that the certificate must bear the signatures of two individuals, a departure from the Indian Evidence Act’s requirement for only one. The first signature is to be provided by the person overseeing the computer, communication device, or relevant activities’ management, while the second must come from an expert. The BSA includes a predefined format for the certificate in its Schedule. The expert’s verification involves stating that a specific hash value is derived by applying a particular hash algorithm. Here, a hash function refers to an algorithm translating one sequence of bits into another, typically smaller, set known as the “hash result.” This process ensures that an electronic record consistently produces the same result whenever the algorithm is executed using the same electronic record as input. This computational infeasibility prevents the reconstruction of the original electronic record from the algorithm’s hash result. While the Central Government has not issued any notification under the IT Act regarding hash algorithms for encryption in the secure use of the electronic medium, the standard certificate format in the BSA enumerates ‘SHA1, SHA256, MD5, and Other (legally acceptable standard)’ as applicable hash algorithms.
While MD5 (Message Digest5) and SHA1 (Secure Hash Algorithm1) are acknowledged to have certain vulnerabilities, SHA256 is widely regarded as more secure. Consequently, agencies are encouraged to utilize SHA256 to safeguard the integrity of data.
The introduction of expert certification, while aiding the court in admitting electronic records, poses the potential to escalate the workload for cyber laboratories. Given the pervasive use of smartphones in contemporary crime, where call records and location information play pivotal roles in investigations, the demand for expert-signed certificates may strain cyberlabs with an abrupt surge in workload. Many cyber laboratories, including some in Chhattisgarh, may face challenges as they might lack sufficient manpower. Additionally, certain cyberlabs may not even be officially notified under the IT Act to provide expert opinions on electronic records.
It would have been a more reasonable approach if expert opinion were required only when the integrity of the seized electronic record is contested by the opposing party during the trial. In such instances, the courts could always seek expert input. The investigating officer could have sufficed by ensuring that one of the hash algorithms was applied and the message digest was attached to the certificate before its collection.
An immediate and comprehensive awareness campaign is essential now to educate the public about encryption modes and methods, especially targeting private agencies utilizing closed-circuit televisions or other electronic devices for security purposes. Concurrently, enforcement agencies should utilize the time leading up to July to establish the necessary infrastructure, ensuring they are well-prepared to shoulder the additional responsibilities that may arise. (The writer can be reached at dipaknewslive@gmail.com)
