By Khushi Sheoran

Abstract

The newly introduced draft of Bharatiya Nagarik Suraksha Sanhita (BNSS), which might replace CrPC will substantially change the procedure of Indian criminal trials with the inclusion of technology. The BNSS widely mentions the term “electronic communication” and its uses, starting from the pre-trial stage of an “FIR” to the trial stage of “examination of witness.” This article is going to delve into the challenges that the Indian judicial system might face once the BNSS is formally enacted and the possible solutions for these loopholes.

INTRODUCTION: 

A legal revolution was brought about in the criminal laws in India by the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and its counterparts, the Bharatiya Nyaya Sanhita (BNS) and Bharatiya Sakshya Sanhita (BSS). The colonial-era judicial system, which had been in existence for many years, was changed by these reforms. With its provisions modified to incorporate technology, the BNSS represents a significant step towards a judicial system that is more modern and effective in terms of technology. The inclusion of technology in the process of criminal trials highlighted in BNSS will play a major role in helping the victims get easy access to justice. This article is going to reflect on the role of technology and how we can effectively navigate through the same.

PROVISIONS RELATING TO TECHNOLOGY IN BNSS

Considering the increase in cybercrimes and technology’s pivotal role in our everyday lives, certain new sections were introduced in the BNSS to actively involve and validate the use of technology in criminal trials. Here I will be shedding light on them, suggesting their practical benefits and difficulties in implementation. 

Section 2. (1) (a) and (f) of the Sanhita define “audio-video electronic” and “electronic communication” with the definitions being wide enough to encompass all necessary things like

“purposes of video conferencing, recording of processes of identification, search, and seizure of evidence, transmission of electronic communication”. 

Section 173 (1) of BNSS states, “Whenever someone informs the police about a cognisable offence which is committed, such information when given via electronic communication must be registered by the police within three days of the person giving it after taking their signature”. The addition of the term “electronic communication” while registering an FIR with the police will save the victim first, from the unnecessary hassle of visiting a police station and second the mandatory clause of registering such FIR within 3 days will bind the police to do their duty. Often the police are reluctant to register an FIR of the victim which increases the suffering of the victim even further as they aren’t able to access the foremost step to get justice. Now, the victim can easily write an email, and the police are bound to register the FIR within three days. This will definitely help the poor, who don’t have enough connections to get through the crooked system. Although this system of E-FIR is already being implemented in some states, it poses technical challenges as it needs a lot of checks and balances due to the huge number of FIRs being filed in India, where the victim might exaggerate the details for a higher punishment to the accused.  

Section 176 (3) of the BNSS talks about the collection of forensic evidence from the crime scene in case of an offense that is punishable for more than 7 years and also about recording such investigation in the form of a video. Considering the Indian problem of lack of infrastructure, the makers have thankfully added a clause in this sub-section providing that in case of unavailability of a forensics facility other state’s forensics facility shall be utilized until such facility is developed. However, this might cause a lot of hassle due to coordination between states and a tussle to access such resources as I initially pointed out there’s a general lack of infrastructure in India. To tackle such problems, the center can set up facilities which can be mutually utilized by several states in case a particular region lacks this forensic faculty. 

The Sanhita also mentions in Section 532 that “the issuance of summons and warrants, examination of complainant and witnesses, trial before Sessions Court and High Court, recording of evidence, and all appellate proceedings may be held in electronic mode or by electronic communication.” 

CHALLENGES AHEAD

Considering Section 2. (1) (a) and (f), Section 173, Section 176 (3) and Section 532 – mentioned above make almost the entire process of a criminal trial digital, it has its benefits and disadvantages. It will save essential resources of the nation like travel time, police protection of accused when brought to court, less rush in courts, and easy access of documents to clients and lawyers. It also brings with it the major challenge of creating a digital infrastructure for such a huge population with the vast number of cases pending in our courts and also the awareness about such infrastructure at the grassroots. The other common law jurisdiction, the UK, is facing a major challenge while embodying technology in their criminal trial. According to a House of Lords report released in March, there are several issues with the technology itself, as well as concerns about transparency in its deployment and oversight. The report concluded that they have discovered “a new Wild West, in which new technologies are developing at a pace that public awareness, government, and legislation have not kept up with.

We should use other nations as a model and take note of the challenges that they faced. As previously discussed, the United Kingdom has the “Wild West” dilemma; India may likewise face the difficulty of being a densely populated illiterate country. At this stage, the police force in India is mostly untrained to handle the digitalisation of the criminal process. Another problem is a lack of transparency, lawyers will not be able to adequately assess the credibility of evidence if police departments are not open and honest about the procedures they employ to gather, examine, and present evidence with the use of technology. 

In my opinion, one of the biggest challenges to be faced by these newly introduced provisions in BNSS is the advent of AI, especially “deep fakes”. The use of deepfakes is a potential threat to evidence in criminal trials. When Sec. 532 of the BNSS confers the power to hold examinations of witnesses and trials can be held virtually, it leaves a huge room for misuse of the same. Witnesses, accused and victim testimonies if done online might be a deepfake of the same person. As we know it’s almost impossible to detect a deep fake, recently a finance worker was tricked into paying £20 million when he was scammed by a deepfake video conference in which every individual apart from him was a deepfake created by AI. Not one person but multiple people can be mimicked by AI simultaneously. This can easily happen in cases of criminal trials, especially where high-profile people are involved as they make their way through the police system. Hence, the drafters of the BNSS should have made provisions to provide safeguards against such loopholes when the entire criminal trial of someone is at stake. 

CONCLUSION

The digitalisation of the criminal trial process in BNSS is a positive and progressive step, but essential loopholes like artificial intelligence and the practical implementation of such provisions need to be bridged. This can be done by making certain amends in the provisions before the BNSS is actually enacted or the same will have to flow from various judgements that will act as precedents for effective implementation of these provisions which have the potential to positively transform the legal system.

AUTHOR BIO: 

Khushi Sheoran is a law student at Jindal Global Law School. She is an ardent debater, environmentalist and international relations enthusiast. Her areas of interest include – ESG, International Law and Gender & Sexuality.