CYBERCRIME AND DIGITAL POLICING: EFFICACY OF THE BHARATIYA NYAYA SANHITA, 2023

INTRODUCTION

The 21^st century is witnessing a digital era that enhances transactions, eases communication, and paves the way for development. However, it also carries unprecedented vulnerabilities. Cybercrimes encompass illegal activities carried out by using computers, the internet, or  various digital equipment. It varies from identity theft, cyberbullying, ransomware, hacking,  and virtual fraud. These crimes are often carried out by those who have sophisticated networks. The offenders easily escape by complicating the investigation procedure with the widespread exploitation of digital advancements and maliciously using these platforms. To address these  challenges, the existing legal framework underwent an amendment to transform the existing colonial framework of the criminal justice system. Indeed, these digital offenses have been  widely addressed by the Bhartiya Nyaya Sanhita. Yet it holds some lacunae that hold up the  pace of addressing the rapidly growing phenomenon of digital offenses. This paper sheds light  on the existing legal framework and its shortcomings, along with progressive recommendations  in the realm of cybercrime.

EVOLUTION OF CYBERCRIME LEGISLATION IN INDIA

The nation underwent an evolution of legal framework in regards with emerging cybercrimes.  Initially, the Information Technology Act 2000¹It is famously known as the first legislation  dealing with cyber law. It was enacted on 17^th October 2000 with 27 defined cyber crimes along  with penalties for each. However, the aforementioned framework lacked in keeping up with  technological advancements. So, it underwent an amendment, the Information Technology (Amendment) Act, 2008. This comes along with provisions for identity theft, child  pornography, and cyber terrorism while ensuring a well-guarded legislation.

However, the cybercrime surge required exponential reforms. The report shows an exponential  rise in the number of frauds, which increased by 900% between 2021 – 2024, and the losses were far higher, i.e., 22,812 crores.² The nation recorded 7000 daily cybercrime complaints in  2024.³ This escalating data showcases the shortcomings entrenched in the IT Act and calls for  a new framework that could keep pace with the rising cybercrimes.

¹ The Information Technology Act, 2000 (Act 21 of 2000).

² Editorial, ‘Cyber fraud in India surged 900% in four years, lost Rs 22,812 crore in 

2024’ Madhyamam (Kozhikode, 4 February 2025) <https://madhyamamonline.com/india/cyber-fraud-india surged-900-four-years-lost-rs-22812-crore-1376493> accessed 20 June 2025.

³ ANI, ‘Cybercrime surge in India: Over 7,000 daily complaints in 2024, key locations identified in Southeast  Asia’ ThePrint (New Delhi, 22 May 2024) <https://theprint.in/india/cybercrime-surge-in-india-over-7000-daily complaints-in-2024-key-locations-identified-in-southeast-asia/2097136/> accessed 20 June 2025.

The enactment of the Bharatiya Nyaya Sanhita⁴In 2023 replaced the colonial era Indian Penal  Code and which progressively encompasses provisions for cybercrimes. Section 11⁵of the  BNS encompasses varied organized crimes along with cybercrimes often committed by groups,  like data trafficking, scams, etc. The minimum prescribed punishment is of 5 years  imprisonment along with a least fine of 5 lakh rupees. The inclusion of this section showcases  the rising number of coordinated digital crimes. Furthermore, these were not previously  addressed by laws.

Section 75⁶ BNS deals with the offense of sexual harassment, inclusive of acts done digitally, like sending explicit content to someone. This provision addresses the prevalent act of harassment that widely happens on social media platforms.

Section 77⁷of the BNS deals with the offense of Voyeurism means the act of watching, taking  pictures, or distributing images of females without the consent of those involved in a personal  or private act. This is widely occurring through the use of digital devices by online  dissemination. In the case of first-time offenders, the punishment is imprisonment for one to  three years, and in cases of repeated acts of voyeurism, the punishment is imprisonment for up  to seven years.

Section 78⁸of BNS deals with the act of staking which also includes cyberstalking. It is a  cognizable and non-bailable offense with a punishment of maximum of three years  imprisonment with fine for first time offenders and up to five years with fine for subsequent  offender of cyberstalking.

Section 294⁹of BNS deals with the act of publishing or transmitting obscene materials on  online websites, apps, or other digital platforms. The punishment for these offenses is imprisonment and fines, and in case of repeated offenses faced with harsher penalties are faced.

Section 303¹⁰ of BNS deals with the act of cybertheft activities like data, phone, computer  software, or hardware. The first-time offenders are punished either with an imprisonment of up 

⁴ Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023).

⁵ Bharatiya Nyaya Sanhita 2023, s 11.

⁶ Bharatiya Nyaya Sanhita 2023, s 75.

⁷ Bharatiya Nyaya Sanhita 2023, s 77.

⁸ Bharatiya Nyaya Sanhita 2023, s 78.

⁹ Bharatiya Nyaya Sanhita 2023, s 294. 

¹⁰ Bharatiya Nyaya Sanhita 2023, s 303.

to three years or a fine, or both. The repeated offender can face a rigorous imprisonment of at  least one year and up to five years, along with a fine.

Section 317¹¹ One of the BNS deals with the stealing of phones, computers, and data. This prescribed punishment is for those who possess the stolen property of another individual.

Section 318¹² of the BNS deals with the activities of fraud including cyberfraud, theft of one’s  password, creating bogus websites. The punishment is given as per the gravity of the offenses  committed.

Section 336¹³ of the BNS deals with offences like email spoofing and cyber forgery and it is  inclusive of the act of tarnishing the one’s reputation. The prescribed punishment either imprisonment up to 2 years or fine or even both.

Section 356¹⁴ Of BNS deals with the offences of defamation. Defamation means tarnishing one’s reputation via an untrue statement. This is inclusive of cyber defamation, like defaming  one via email. The prescribed punishment is either up to 2 years imprisonment, or fine or even  both.

JUDICIAL DEVELOPMENT IN CYBERCIME AND ITS RELEVANCE 

The key judgments in the realm of cybercrimes work as a guiding force for BNS. The following  cases represent the existing shortcomings in the Bharatiya Nyaya Sanhita:

1. Avnish Bajaj v. State, 2005¹⁵

The case is famously known as the Bazee.com case. The CEO of this online website, known for shopping, is involved in hosting the uploading of obscene content by one of its users.  He gets prosecuted. The Delhi High Court ruled in favor of the respondent while clarifying  that these websites work as intermediaries and cannot be held accountable after paying due  diligence, like taking down the obscene content. This case holds a significant role in  explaining the role of intermediaries, which can be devised under BNS to effectively address the cybercrimes committed by third parties. 

¹¹ Bharatiya Nyaya Sanhita 2023, s 317.

¹² Bharatiya Nyaya Sanhita 2023, s 318.

¹³ Bharatiya Nyaya Sanhita 2023, s 336.

¹⁴ Bharatiya Nyaya Sanhita 2023, s 356.

¹⁵ Avnish Bajaj v State (NCT of Delhi) 2005 (3) Comp LJ 364 (Del).

2. Shreya Singhal v. Union of India, 2015¹⁶

This case is a landmark judgment of the Supreme Court, which deals with Section 66A¹⁷ Of the Information Technology Act, 2000. Section 66A deals with the offense of sending offensive  and menacing messages via online platforms. But this is too broad and is being misused to limit the legitimate speech of individuals on social media platforms. The court ruled in favor of the  petitioner while striking down section 66A. The court held that it is unconstitutional and does  not fall under the reasonable restriction of Article 19(2)¹⁸ Of the Indian Constitution. The  judgment set up a precedent for ensuring the vague definition does not hinder an individual’s  fundamental rights. 

3. K.S. Puttaswamy v. Union of India, 2017¹⁹

The case of K.S. Puttaswamy v. Union of India is a landmark judgment of the Supreme Court  in the realm of constitutional jurisprudence. The court gave the doctrine of privacy safeguarded  by Article 21²⁰ Of the Indian Constitution. This judgment has a profound impact in the realm  of cyber laws, specifically cyber theft. 

LIMITATIONS OF THE BHARATIYA NYAYA SANHITA

The Bharatiya Nyaya Sanhita, 2023 is progressively includes the provisions for cybercrime.  Yet still following represents the shortcomings that hinder its effectiveness in addressing the  digital offenses in the evolving landscape.

1. One of the notable shortcomings is the lack of a clear and specific definition of cybercrime in the Bharatiya Nyaya Sanhita. Eventually, for definition, the reliance has to be made on the Information Technology Act, 2000 and which itself lacks a full  encompassing definition of cybercrime. This leaves the ambiguity, which difficult the  procedure of interpretation and effective enforcement difficult.
2. It does not include the cybercrime done via emerging technologies. This can be Artificial intelligence, blockchain, Internet of Things (IoT) and deepfakes. As cybercrimes is a rising phenomenon which corruptly using developing technology and  the lack of a legal safeguard indeed creates vulnerabilities.

¹⁶ Shreya Singhal v Union of India AIR 2015 SC 1523.

¹⁷ Information Technology Act 2000, s 66A.

¹⁸ Constitution of India 1950, art 19(2).

¹⁹ K S Puttaswamy v Union of India (2017) 10 SCC 1.

²⁰ Constitution of India 1950, art 21.

3. Cybercrimes are not bound by boundaries means it is an emerging territorial and extra territorial phenomenon. The existing legal framework is insufficient in addressing the cross-border cyber illegal activity, which leaves a jurisdictional gap and works as a haven and an escape for offenders.
4. The BNS does include a broader investigating agency. But the problem lies in its effective enforcement, as the enforcement agencies like police departments still lack the required technical knowledge, expertise, and dedicated infrastructure. This highly showcases its inefficiency in the practical enforcement of the progressive provision for  cybercrimes in the BNS.
5. The broad provisions like obscenity, defamation, and digital harassment can be misused to suppress legitimate dissent. It widely ends up affecting individuals’ digital freedom. 6. The lack of any substantive support to cyber victims besides fines and punishment of offenders is also a problem because these crimes have a deep impact on the psychology of the victim.
6. Additionally, the problem lies in maintaining the pace of the existing framework with evolving and emerging cyber threats daily.

These abovementioned shortcomings represent the existing hindrances of the Bhartiya Nyaya Sanhita.

RECOMMENDATIONS

To overcome the aforementioned shortcoming in the Bharatiya Nyaya Sanhita, 2023, effectively, the following recommendations can help enhance the nation’s capacity to combat rising cybercrimes.

1. The incorporation of a clear and inclusive definition of cybercrimes into the BNS, or creating a dedicated framework for cybercrimes. This would help in easing the work by providing clarity to enforcement agencies, citizens, and judicial bodies in having a  deeper understanding with a clear understanding, of the enforcement mechanism of  cybercrimes.
2. Being attentive towards emerging cyber offences which widely involves artificial intelligence, blockchain, deepfakes, Internet of Things (IoT), and other developing technologies. setting up a standing committee or expert panel could aid in monitoring  along with tackling the aforementioned evolving technology phenomenon.
3. Providing training programmes for the enforcement agencies, like police, judicial officers, to conduct a proper, speedy investigation by using digital devices. The investment in setting up the digital infrastructure and laps is a requirement for effective  enforcement of the framework on the practical level.
4. The cross border cyber activities is a growing phenomena which can be tackled by bilateral, multilateral agreement between nations for information sharing. An alignment and participation in global cybercrime framework would help in showing a  commitment towards combating the emerging cybercrimes on global level.
5. By setting up a clear procedural safeguard and proving judicial oversight can counter the misuse of the cybercrime’s provisions.
6. Conducting a transparent procedure could help in maintaining a balance between required security and freedom rights.
7. By providing counselling, legal aid can help victims substantially in coping with the post-traumatic stress of the illegal activity.
8. To educate citizens regarding cyber safety, reporting mechanism, remedies can be done by setting effective public awareness camps.
9. By including dedicated and detailed chapters of cyber crime in the school works could help in reducing their vulnerability.
10. Additionally, conducting regular investigations of existing laws with technology experts can help in speeding up and combating the emerging illegal cyber activities.

The abovementioned suggestions can contribute to building a strong and dynamic legal  framework in combating the rising problem of cybercrime.

CONCLUSION 

The nation is undergoing a digital revolution, which has highly contributed to the nation’s development. Yet it holds unprecedented risks. The enactment of the Bharatiya Nyaya Sanhita,  2023, is a progressive step towards addressing the cyber illegal activities in the digital age. This  legal framework is widely acknowledged due to the complexity of the illegal activities  occurring in cyberspace. Yet it holds significant shortcomings that hinder effective  enforcement. For instance, a lack of a clear definition leaves wide ambiguities, and potential  misuse of broader provisions obstructs the effectiveness of the legal framework. The judicial

developments like Shreya Singhal, K.S. Puttaswamy, and Avinsh Bajaj play a vital role in the  realm of cyber law. The nation requires a strong legal framework to deal with the

unprecedentedly rising cases of illegal activities happening in cyberspace. Investing in setting  a robust institutional framework, spreading public awareness, and ensuring a transparent procedure are vital for creating a resilient system in response to rising cybercrimes. The paper  is concerned with drawing attention to the need for reform to include them in the existing  definitions, creating a new international framework, and key agreements in combating cyberthreats in the global age.