OPINION: A criminal law ‘reform’ that can cost us our digital freedoms

Legislative review by Parliamentary Committees is an indispensable tool for lawmakers to ensure that any new law introduced for passing is thoroughly assessed for constitutionality, state capacity, and other legal and functional aspects.

Such a review is all the more essential when it involves overhauling the country’s century-old criminal justice system.

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Undermined the importance of review

The PSC, however, fell remarkably short of this legitimate expectation. The review process was riddled with sealed-envelope discussions and missed opportunities, undermining its importance.

Though experts have widely documented the trickle-down effects of the laws on policy-making as well as the criminal justice machinery, we critically examine some new (and some repackaged) provisions and their impact on online speech, data privacy, and digital freedoms.

The new laws, though aimed at “decolonising” the legal system, manage to retain and even regress some antiquated concepts from the earlier Codes.

A befitting example is the sedition law. The constitutionality of Section 124-A IPC has been under the scanner for a while now because the law is a remnant of colonial times and cannot be retained in a democratic republic.

During the 2023 Monsoon Session debates, the home minister said this provision would be repealed.

However, it has emerged that we now have Section 152 BNS, which may not feature the term “sedition” but is a broader and vaguer version of it, thereby spelling trouble for free speech, specifically in the online realm.

It further demonstrates an utter disregard for the Supreme Court’s ongoing deliberation on Section 124-A IPC and the pause instituted on its usage.

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Undermine the importance of free political speech

Section 124-A IPC has been wielded indiscriminately in the past to suppress dissent and impose fetters on freedom of expression.

Section 152 of BNS, in addition to other restraints on speech via Sections 299 and 353, replicates this impact and widens the scope of its use.

With burgeoning digital media platforms and social media usage to voice one’s opinion, these provisions invariably undermine the importance of free political speech for the growth of democracy.

The inclusion of a term as vague as “endangers sovereignty or unity and integrity of India” in Section 152 of BNS paves the way for subjective assessment and narrows the freedom of individuals to exercise their right to express their disapproval online.

Moreover, unlike Section 124-A IPC, which allowed for a fine to be imposed as punishment, Section 152 of BNS makes sentencing more stringent by mandating imprisonment for all acts.

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Unclear on the definition of evidence

This is not the only instance where the laws borrow flawed concepts and provisions from the older Codes and widen their scope to exacerbate the damage.

BSA, repealing the Evidence Act, expands the definition of ‘documents’ to include electronic or digital records, which will now expressly include online communications on personal devices.

The definition is broad and covers any electronic communication such as messages, call recordings, and emails, as well as mobile phones, laptops, cameras, and other devices which “may be specified by the government at a later time”.

This significantly reforms what counts as admissible evidence but fails to provide the infrastructural means to ensure the security or maintenance of a proper chain of custody of digital evidence acquired in investigations.

Without adequate safeguards, private information or communication taken in as evidence may quickly become vulnerable to tampering, leaks or breaches.

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Guidelines to check misuse

Echoing Section 65B of the Evidence Act, BSA also requires a certificate for the admissibility of electronic evidence.

But now that electronic records are ‘documents’, it is unclear whether they will still need certification. Notably, as electronic records are classified as ‘documents’, there is a shift in their perception from secondary to primary evidence.

Seeing how electronic records can be tampered with in the absence of safeguards under the current BSA, giving it the moniker of ‘primary evidence’ only creates room for transgressions.

Speaking of transgressions, a rampantly misused tool by the Indian executive is the statutory power of search and seizure.

Instances involving the search and seizure of digital devices have increased recently, with news reports emerging of mobile phones being forcefully accessed by police officials to uncover information.

Such incidents necessitate the existence of procedural safeguards to ensure that the devices or the information contained therein are not misused or abused.

Also Read: Why India urgently needs a data protection law

Absence of safeguards in seizing digital evidence

As stated above, expanding the definition of ‘documents’ to include electronic or digital records, which is broad as it is, easily facilitates search and seizures of digital devices.

Section 94 of BNSS includes ‘electronic communication’ as a form of evidence that can be compelled to be produced, and Section 185 of BNSS authorises a police officer to search for any material or document, including digital devices, without a written order if they have ‘reasonable grounds’ for believing that the same must be obtained without undue delay.

Devices such as mobile phones and laptops may contain a plethora of personal information, including communication that could be privileged and unrelated to the case.

The discernible absence of safeguards and expansion of the ambit of digital evidence that can be seized legitimates the invasion of privacy and potentially violates an individual’s right against self-incrimination.

In the garb of efficiently including technological developments vis-a-vis criminal justice, the new laws shrink the space for our digital rights and open the doors for violating fundamental rights.

They bring little reform to the table but make their presence felt by excessively delegating executive control over constitutionally protected rights and freedoms, widening “colonial” concepts to make room for their misapplication, and leaving the criminal justice machinery in the throes of recalibrating with poorly written provisions.