Data PrivacyDigital Revolution in Indian Criminal Laws: Safeguarding Privacy Amidst Technological Progress

INTRODUCTION

The legal system of India is undergoing a revolutionary transformation. The Parliament in December 2023 took around 18 new legislations under consideration. Consequently, the three new criminal laws: the Bharatiya Nyaya Sanhita (hereinafter referred to as “BNS”), the Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as “BNSS”), and the Bharatiya Sakshya Adhiniyam (hereinafter referred to as “BSA”) lay ahead to replace the longstanding Indian Penal Code, 1860 (hereinafter referred to as “IPC”), the Code of Criminal Procedure, 1898 (hereinafter referred to as “CrPC”), and the Indian Evidence Act, 1872, respectively.

These changes aim to modernize the criminal justice system, incorporating digital technology and procedural efficiency. Simultaneously, it provides a new framework for the criminal justice ecosystem in India. The law is dynamic and must adapt and cater to the changing needs of society. As the digital world is fast-paced and the technology in India is advancing, the incorporation of the same in the criminal legislations will help India grow and serve society better.

However, these reforms also highlight crucial concerns about data privacy and individual rights protection. From e-registration of FIRs to digital summons, the scope of the increase in cybercrimes could potentially aggravate. Hence, it is pertinent to understand the digital privacy implications of these laws.

RISING CONCERNS ABOUT DATA PRIVACY UNDER THE NEW CRIMINAL LAWS

Utilizing the power of contemporary scientific technologies and modernizing the criminal justice system are two important goals of integrating technology and forensics into investigations. Additionally, this will enhance the standard of evidence, guarantee more accountability in police investigations, and safeguard the rights of both victims and accused parties.

As per the Government, the new criminal rules will be greatly aided by technology. For example, 90% of witnesses will appear through video chats, summonses will be sent via SMS, and orders will be delivered by courts three years after a FIR is filed.

The BNS has included, under Section 292, any content in electronic form under the sale of obscene books, and under Section 206 (non-attendance pertaining to the service of summons), the electronic records or digital summons. Several other provisions, such as Section 337 (relating to possession of a forged document) include electronic records and have been streamlined under the legislation to incorporate digitization.

Moreover, the BNS has reformed the provision of ‘sedition’ under the IPC. While the explicit mention of the word is removed, the offence of sedition still finds its place under the BNS through much more vague and wider terms included within its scope. The actions that impact the integrity, sovereignty, and unity of India are criminalized, and even electronic communications can constitute the offence under ‘seditious acts.’

The scope and vague provisions leave arbitrary power in the hands of the authorities, significantly affecting free speech and digital privacy for e-communications. It is crucial to determine what constitutes the offense of sedition, whether the e-communication is fake or tampered with, and to what extent such e-communications can be accessed under allegations of sedition. Additionally, the circumstances under which it is adequate and appropriate to invade e-communications must be clarified to protect individual privacy.

Likewise, under the BNSS, technology is being used at every stage, from crime scene visits to investigations and throughout the process of trial. This will help expedite the trial process and bring about transparency in the trial and it will enable accurate evidence collection.

Under BNSS, Section 2 (1):

“Sub Clause” a.  Includes audio-visual electronic means, and

“Sub Clause” f.  Includes electronic communication.

The BNSS introduces mechanisms for monitoring activities, requiring law enforcement agencies to obtain appropriate authorizations before conducting surveillance. These measures aim to prevent arbitrary or unlawful surveillance and protect individuals’ privacy rights. The new laws also emphasize the principle of data minimization, requiring law enforcement agencies to collect only the data necessary for a specific investigation. This approach helps limit the exposure of personal data and reduces the risk of misuse.

Under Section 54 of BNSS, the identification of arrested persons has included the use of audio-video electronic means. Additionally, under Sections 63 to 71, and 94, the issue of summons through electronic means, including SMS, etc., has been included. Even the recording of searches and seizures could be done via audio-video electronic means under Section 105. This implies that in the coming decades, a complete transition will be witnessed in the justice delivery system of India.

However, the inclusion of digital evidence and digital summons has a negative implication as well. The search and seizure can be done for various reasons, and even a person not directly involved in the trial could be mandated to provide the relevant digital evidence, such as that within the laptops, mobiles, etc. These devices contain a lot of information about the individual, which might not be relevant for the sake of proceedings; however, there is no effective monitoring of the extent of the necessary invasion. This could potentially affect the privacy of data and the right against self-incrimination.

Under BSA, Section 57 puts forth the recognition of electronic records as primary evidence. In keeping with the nation’s ongoing digital revolution, the BSA also contains provisions that permit the electronic presentation of even oral evidence. Section 2 (d) includes electronic records on emails, server logs, documents on PCs, laptops, or smartphones, messages, websites, voicemail messages saved on digital devices, and locational evidence within the ambit of ‘documents’.

The BSA includes detailed provisions for handling digital evidence, ensuring that it is collected, stored, and presented in a manner that protects the privacy of individuals. The law mandates the use of secure methods for recording and storing digital evidence, minimizing the risk of data breaches.

We must note that the right to privacy is recognized as a fundamental right under Article 21 of the Indian Constitution. The new laws incorporate this principle, ensuring that privacy considerations are integrated into all stages of criminal investigations and judicial proceedings. However, everything has two dimensions, and we cannot ignore the practical concerns arising from these laws on the issue of data privacy.

One major concern is data collection and storage. The laws mandate the digital recording of all stages of criminal investigations, which raises questions about the security of this data. The potential for data breaches and unauthorized access to sensitive information is significant, necessitating robust encryption and security measures to safeguard this data​.

Additionally, the Digital Personal Data Protection Act, 2023 (hereinafter referred to as  “DPDP Act”) has been enacted to protect the personal data and ensure the privacy of  people’s data. The DPDP Act applies specifically to  personal data and includes both non-digital and digitally collected data. The principles of data protection revolve around the idea of consent, i.e., that the processing of data must be done only for the lawful purpose for which consent has been given by the data principal.

In view of the above, it is difficult to find a balance between the idea of consent under DPDP Act and the mandatory providing of data under the new criminal laws. The data can be accessed beyond the necessary extent and beyond the idea of consent under the new criminal laws, hence affecting the objectives of the DPDP Act.

Moreover, enhanced surveillance powers granted to law enforcement agencies under these laws can lead to increased monitoring of individuals, aiming to improve crime detection and prevention. However, this also poses risks to individual privacy and civil liberties. The balance between effective law enforcement and the protection of privacy rights is delicate, requiring careful oversight and regulation.

As highlighted time and again, the use of artificial intelligence (hereinafter referred to as “AI”) in criminal investigations can improve law enforcement efficiency but also raise ethical and privacy issues. AI systems process vast amounts of personal data, potentially leading to biases and discrimination. Ensuring transparency and accountability in AI usage is crucial to mitigating these risks. The importance of balancing the state’s interest in effective law enforcement with the individual’s right to privacy is crucial. And there is a need to protect the privacy of people under the new criminal laws.

SAFEGUARDS AND RECOMMENDATIONS FOR PRIVACY PROTECTION

Implementing the new criminal laws is a complex process that requires careful planning and coordination among various stakeholders. The Ministry of Home Affairs has been proactive in testing digital tools like the e-Sakshya app to streamline the implementation process. It is a smartphone application designed to assist law enforcement in documenting crime scenes, conducting searches and seizures related to criminal cases, and uploading the resulting files to a cloud-based platform. Once the process is finished, the police officer will need to upload a selfie. According to the information given with State police stations, each recording could last no more than four minutes, and many of these files could be uploaded for every FIR.

Further, another major digital tool has been released by the National Crime Records Bureau (hereinafter referred to as “NCRB”) before the implementation of new criminal legislation. ‘NCRB Sankalan of Criminal Laws,’ a recently released mobile application, seeks to function as a thorough guide that compiles pertinent details about the impending legal reforms into a single, easily navigable platform. The app’s section-by-section comparison of the old and new laws is one of its main advantages; it helps users understand the changes brought about by the new criminal legislation. This comparison chart is useful for usage in places with poor Internet connectivity since it has a strong search feature that guarantees effective retrieval of specific information even when offline.

The use of such technology can enhance the efficiency of criminal investigations by automating routine tasks and analyzing large volumes of data. However, it is essential to ensure that AI systems are transparent, accountable, and free from biases. The MHA has emphasized the importance of adopting AI in a manner that respects privacy and upholds the rule of law​.

Strong encryption and other security measures should be implemented to protect digital records and data collected during criminal investigations, preventing unauthorized access and data breaches. Further, regular audits and updates to security protocols can ensure that data remains protected against evolving threats.

Independent oversight bodies should be established to monitor the use of digital tools and data by law enforcement agencies, ensuring accountability and preventing misuse. These bodies should have the authority to investigate complaints and enforce data protection regulations.

Law enforcement authorities should be trained in data privacy and cybersecurity best practices to mitigate the risks associated with the misuse of digital tools. This ensures that privacy considerations are integrated into all stages of criminal investigations. Additionally, public awareness and participation are crucial in discussions about the new laws and their impact on data privacy. Public consultations and awareness campaigns can educate citizens about their rights and the safeguards in place to protect their privacy​.

CHALLENGES AND FUTURE DIRECTIONS

Despite the safeguards and provisions incorporated in the new laws, several challenges remain. Ensuring the effective implementation of these laws requires continuous efforts from all stakeholders, including the judiciary, law enforcement agencies, and civil society. Key challenges include infrastructure and resources, developing clear legal frameworks and standards, building public trust and confidence, and international cooperation.

Implementing digital tools and technologies requires significant investment in infrastructure and resources. Ensuring that all law enforcement agencies have access to the necessary tools and training is critical for the success of the new laws​.

Developing clear legal frameworks and standards for the use of digital tools and AI in criminal investigations is essential. These frameworks should provide detailed guidelines on data handling, privacy protections, and accountability mechanisms​.

Cybercrime and digital fraud often involve cross-border elements, requiring international cooperation and coordination. India needs to engage with other countries and international organizations to develop effective strategies for combating cybercrime​.

AMLEGALS REMARKS

The new criminal laws in India represent a significant move towards modernizing the justice system and integrating digital processes. These reforms are designed to enhance the efficiency and transparency of criminal investigations, making the legal process faster and more reliable. For instance, the use of digital evidence collection and management can help streamline investigations and court proceedings.

However, these advancements also bring substantial challenges, particularly regarding data privacy and the protection of individual rights. As law enforcement agencies gain more access to digital data, there is a risk of misuse or overreach. To address these concerns, India must implement comprehensive data protection laws that clearly define the limits of data access and usage.

Additionally, strong oversight mechanisms are essential to ensure that the authorities do not abuse their powers. This includes establishing independent bodies to monitor law enforcement activities and enforce accountability. Public involvement is also crucial in this process, as continuous dialogue and feedback from citizens can help refine these laws and ensure they serve the public interest.

Ultimately, by carefully balancing the needs of law enforcement with the rights of individuals, India can ensure that these new criminal laws contribute to building a fair and just society. This balance will help foster public trust in the legal system and ensure that technological advancements are used to promote justice and protect individual freedoms.

– Team AMLEGALS assisted by Ms. Akansha Yadav (Intern)

For any queries or feedback feel free to connect to mridusha.guha@amlegals.com or liza.vanjani@amlegals.com