Bar Bench Review 2026: Pranjali Shukla Wins 2nd Position for Research on Digital Evidence under BNSS

DIGITAL EVIDENCE UNDER BNSS: THE PANOPTICON OF PROCEDURE

It is concerning and alarming that why our own Indian citizens are never satisfied by the laws and justice we provide them.?

It’s because of a simple reason, that our legislature just make laws, but fails to see the scope of the execution of that law on the ground level, and then there’s is a simple outcome which sound like, “that why to make such laws which potray you as the best on a global level, when your own people are subject to the sufferings on their very own land.”

And the recent example to that is BNSS, Bharatiya Nagarik Suraksha Sanhita, 2023[i], one which in itself contains the word “suraksha” means “safety” but is ending up exploiting its very own procedure leading to injustice and here are the reasons that why such thing is happening;

THE HISTORICAL RUPTURE:

For over the centuries when the justice system has relies on pen and paper work; now comes the drastic change of the evidences being digitally produced. Suddenly the people who cannot even use a android phone properly are expected to keep up with the new technologies and perform the critical procedures of hashing and cloning. Now let’s come to the reality that our system is dynamic and trying to keep up with the modernization, but there are still some loopholes. Such as, according to Section 57[ii] of BSA, the digital evidences would be considered as “primary evidences”, but the concern here is that in a generation out there which is able to crack codes and acess the national level papers, is able to make deepfakes, is updated with the dangerous AI uses that we can’t differentiate between real and fake, and for that sake there is not even a training programme for the constable and officials to make them familiar with the digital world.

THE GROUND- REALITY APPROACH:

Now let’s come to the reality, which was refered above; the best example to that is the Section 105[iii] of BNSS, which mandates the audio and video recording of the search and seizure taking place. According to the report by Ministry Of Home Affairs, there are 17,379 sanctioned police station in India, from which 9,378 are in rural areas. If according to law, every search and seizure is documented then the state will end up having the petabytes of high definition data daily. Yet the state is dangerously silent on the architecture of the data storage. If there would no “National Cloud” kind of storage then this data would end up in a local harddrive , USB or personal cloud storage, which will lead to lost files, corrupted device and tampering of the evidence. Furthermore during such search and seizure , most of the times the authorities end up overreaching their power by searching beyond the limit and unrelated data and as said in the landmark case of Ram Ramaswamy v. Union of India[iv],  the petitioners successfully argued—and the Court acknowledged—that modern digital devices are not mere physical objects but an "extension of the self," containing sensitive personal data, medical records, and private conversations, thereby making their unregulated seizure a direct violation of Article 21.

THE ILLUSION OF HIGH- TECH JUSTICE:

The BNSS has made a vital shift in criminal justice system from the physical procedure and appearences to virtual technological substitutions. Under Section 176(3)[v] of the BNSS there is a mandate; for any offense punishable by seven years or more, a forensic expert must physically visit the crime scene to collect evidence, and the entire process must be videographed. Now it is scientifically sound in theory; but there is a infrastructural deficit to it, because India has limited number of forensic experts, vans and labs, because of which if the the crime has taken place then the police have to wait for enough long period to fulfil this mandate. And this delay can be the threat to right of speedy trial established under Husainara Khatoon vs. State of Bihar[vi].

Furthermore under Section 266[vii], the examination of witnesses can be done via audio-video means, which is a useful method to reduce the movement of witnesses by reducing the risk to their life and respecting their choice. But this very same method includes a misuse, which is that maybe someone can confine the witness, threaten or coerce them to give false testimony, because who from the mere screen can know that what’s happening on the other side behind the screen. When a witness is cross-examined via a lagging screen in a remote village, the presiding judge is entirely stripped of the ability to observe the witness’s physical demeanor—a critical component of assessing truthfulness. The Supreme Court of India in it’s Suo Moto Guidelines On Video Conferencing (2020)[viii], which held during pandemic, it was said that the justice must be accessible, and the "digital divide" cannot be allowed to compromise the fairness of the proceedings.

CONCLUSION- The Bharatiya Nagarik Suraksha Sanhita,2023 is a good attempt to make things more structured and accessible, but the means to imply all these on groundlevel are not enough, for now there are huge infrastructural gaps which are leading to the inefficiency of law. There are still some aspects which are left to explore and where the law is silent upon that how those things are going to be executed, such as how a constable or inspector who are from early times will learn to hash or clone a digital device, and how will they certify it. The solution to these problem are that; there should be more recruitments for forensic experts and the labs or vans should be present near every sanctioned police station so that there is no delay. There should be “National Cloud Storage” or a official storage of each police station so that there the investigations can be accessed properly by court or officials without having a second thought of them being contaminated. There should be separate cameras given for videography or audiography so that officials don’t use their personal phones and later on the evidence get synced to their cloud or drive, which can be accessible by person who is unrelated to the facts of the case. And last but not the least, there should be a particular software which can crosscheck the digital evidences being presented so that the risk of them being AI contaminated can be reduced.

[i] The Bharatiya Nagarik Suraksha Sanhita (BNSS) is Act No. 46 of 2023

[ii] The Bharatiya Sakshya Adhiniyam, 2023, § 57, No. 47, Acts of Parliament, 2023 (India).

[iii] The Bharatiya Nagarik Suraksha Sanhita, 2023, § 105, No. 46, Acts of Parliament, 2023 (India)

[iv] Ram Ramaswamy v. Union of India, W.P. (Crl.) No. 138 of 2021 (India).

[v] The Bharatiya Nagarik Suraksha Sanhita, 2023, § 176, cl. 3, No. 46, Acts of Parliament, 2023 (India).

[vi] Hussainara Khatoon v. Home Sec’y, State of Bihar, (1980) 1 SCC 81 (India)

[vii] The Bharatiya Nagarik Suraksha Sanhita, 2023, § 266, No. 46, Acts of Parliament, 2023 (India).

[viii] In re Guidelines for Court Functioning Through Video Conferencing During Covid-19 Pandemic, (2020) 6 SCC 686 (India)