The Indian Union Home Ministry has decided to suspend three provisions—Section 265, Section 266, and Section 308—of the newly enacted criminal law concerning the recording of evidence via videoconferencing from police stations. This decision was taken due to vehement protests by various bar associations in Delhi.
The Co-ordination Committee of all District Bar Associations, Delhi (CDCBAD), has been at the forefront of opposing the Bharatiya Nyaya Sanhita, 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Bharatiya Sakshya Adhiniyam, 2023 (BSA). These laws aim to modernise the colonial-era Criminal Procedure Code of 1973, the Indian Penal Code of 1860, and the Indian Evidence Act of 1872.
The new legislation, especially the BNSS, incorporates measures for managing electronic evidence, such as the ability to request access to digital communications and devices. This has prompted concerns among legal experts regarding potential impacts on individual privacy, freedom of expression, and protection against self-incrimination, reports MediaNama.
Section 94 of the BNSS explicitly allows courts or police officers to summon digital evidence, including electronic communications and devices. Section 185 permits police officers to conduct searches without a written order if they believe immediate action is necessary.
This means that the authorities have a free hand to confiscate mobile phones and other digital devices at will, which violates the right to privacy highlighted by the Supreme Court in the Puttuswamy judgement of 2017.
It should be noted that the authorities have always seized mobile phones and laptops in investigations in the past. This recent impetus on confiscating digital devices could have a bearing on privacy, especially the provisions that allow police to conduct searches without written orders.
This special focus on digital devices can manifest in increasing violations of the right to privacy at a time when our phones are considered to be an extension of ourselves. These devices contain sensitive data, including our personal photos, chats, browsing history, and app usage.
The seizure of mobile phones and other electronic devices violates the right to privacy and the right against self-incrimination. With full access to communication, courts and agencies can use the data against the individual. It should be noted that the right against self-incrimination has been granted under Article 20 (3) of the Indian constitution. Also, the right finds its place in Section 161(2) of the CrPC.
Article 20 (3) states: “No person accused of any offence shall be compelled to be a witness against himself.” Similarly, Section 161(2) of CrPC says: “Such person (the accused) shall be bound to answer truly all questions relating to such case put to him by officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.”
As you can see from the above sections, the seizure of electronic devices directly contradicts Article 20 (3) of the Indian constitution.
Other than that, the new criminal laws widen the scope of criminalising online speech against the State, which the experts believe could be used to target dissenters. Similarly, the ‘defamation’ clause can be used against comedians, artists, and satirists.
While the new criminal laws are necessary, they should not violate freedom of expression and the freedom to speak against the State.
Recently, the Press Club of India condemned the Indian government for infringing upon the media’s rights. Last month, the Indian government blocked a political satire by the Australian media house, The Juice Media.
Similarly, John Oliver’s show on Indian elections was blocked on YouTube and Jio Cinema. Also, Apple issued warnings to the Indian media personalities and opposition leaders about a possible cyberattack by mercenary spyware.
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