Cybercrime and digital policing: Efficacy of the Bharatiya Nyaya Sanhita, 2023

Abstract 

Digitalisation is steering a new era in development. It has dramatically changed how we communicate  with each other, the conduct and interaction with nature .It has also transformed the landscape of the  criminal activity. Embracing digitalisation is no longer a choice. It’s a necessity. It is a way of life,  simultaneously cyber crime is one of the fastest growing crimes in the era of digitalisation and new  kinds of threats are emerging all the time due to the changing technology, every now and then. As the  world continues to become more digitally connected, law enforcement agencies face an ever-evolving  challenge in adapting to technological 

advancements. With over 90% of reported crimes having a digital element (National Police Chiefs’  Council), it is essential that the police use technology effectively to tackle these crimes and enhance  their current capabilities. In this article, we are going to examine Bharatiya Nyaya Sanhita, 2023  (“BNS”) its efficacy at its counter on cybercrime and inculcating digital policing. Eight identify  significant strength of BNS 2023, such as recognition and penalisation of cybercrime. Section 353  aims to curb the spread of misinformation and disinformation by penalizing the act of making false  or misleading statements, rumours, or reports that can cause public mischief or fear. Organised  cybercrimes involving deepfake content can also be prosecuted under section 111. However,  challenges remain in terms of lack of infrastructure, adequate training, and continuous change or  evolving digital world, this article concludes that Bharti naya Sangeeta BNS 2023 offers a strong  competing mechanism for cyber crime, but it’s effectiveness lies in various other factors such as  infrastructural development, continuous adaptation to evolving digital threats, legislative reforms in  service training and public awareness, etc.

Introduction 

Rapid revolution of technology has essentially transformed everything. In addition to providing  convenience in our day-to-day life, it has also facilitated criminal activities, creating

unprecedented challenges for traditional criminal Justice system. In today’s interconnected world,  these activities have no physical boundary operating through networking system, Artificial  intelligence making it more complex and for reaching.

Conceding to the influence of digital revolution within the crime space, India has taken a historic step  by enacting Bharatiya Nyaya Sanhita (BNS 2023). This new criminal code substitutes, the colonial  era, Indian penal code, (IPC) 1860 , it marks a radical change in countries perspective to criminal  law. Also, it pays special attention to need of digital policing, making it one of the most progressive  legal reforms in contemporary history.

In general cybercrime may be defined as “Any unlawful act where computer or communication device  or computer network is used to commit or facilitate the commission of crime”. (cybercrime.gov.in) 

How BNS adresses cyber crime

Provision to deal with cybercrime under BNS : 

Cyber crime related to women 

Crimes over the internet could be in the nature of Cyber stalking ,Cyber bullying ,Cyber harassment  ,Identity theft, breach and violation of privacy/confidentiality, Voyeurism.

there exists certain legal provisions under BNS which can come in aid of a person who is a victim of  cyber violence. Prior to 2013, no law directly dealing with online harassment or crimes pertaining to  women in the cyber space. The 2013 Criminal Amendment Act to the Indian Penal Code, 1860 by  way of Section 354A to Section 354D which are as it is incorporated under BNS 2023 in section 75-

79 , these sections itself are not cyber crimes but can be committed in offline and online manner. Both  so section 75 to 79 of BNS 2023 takes under its ambit. The cyber form of offences mentioned. Section 294 concerns the transmission and publication of obscene material in any media (including  electronic), establishing punishment to include imprisonment and fines, with increased penalties for  repeated offending. This section represents a significant updating of traditional obscenity laws,  recognizing the unique difficulties surrounding digital content distribution mechanisms. The  legislation addresses various forms of digital obscenity including nonconsensual intimate imagery,  deepfake pornography, child sexual abuse material, and extremist content designed to promote  violence or hatred.

Organized Crime and petty organised crime 

Section 111 of the BNS introduces organized crime as a distinct offense, specifically including cyber crimes committed on behalf of crime syndicates. 

The section defines organized crime as continuing unlawful activity carried out by an individual or  group for any person who is a member of an organized crime syndicate or on behalf of such syndicate.  This definition encompasses various forms of cybercriminal activity, including distributed denial-of service attacks coordinated by multiple actors, sophisticated phishing campaigns operated by  criminal networks, ransomware-as-a-service operations, and coordinated social engineering attacks  targeting financial institutions and government agencies. Sec 112 it deals with the petty organised  crimes while the definition still focuses on traditional crimes, but it could be utilised in the cyber  space.

Promoting enmity between different groups 

Section 196 of BNS deals with the promotion of amity between different groups on various grounds,  such as race, religion, place of birth, language, residence, et cetera. Primarily, this focuses on off-line  commission of offences but can also be relevant in cyberspace as it expressly uses the word electronic  means.

Enforcement Investigation and evidence 

Digital policing : 

Digital policing is application of digital technologies to transform all aspects of policing, enabling  enhanced delivery for all citizens while also improving internal operations and processes as well as  inter-agency cooperation (mpg.org.za).

Fundamentally it is the integration of technology into investigation, evidence collection, and criminal  procedures. The BNS (Bharatiya Nyaya Sanhita) mandates forensic investigations for serious crimes,  including cyber offenses. This involves the use of digital forensic labs, cyber tracking tools, and  expert analysis to support investigations.Victims can now file FIRs electronically, making the  reporting process more accessible. Police and courts can issues electronic summons, warrants, and  charge sheets, significantly improving procedural efficiency. Trials and testimonies may also be  conducted virtually in appropriate cases. All these digital policing procedures and investigation  procedures are supplemented to BNS 2023 through its complimentary procedural law that is BNSS

2023 which substituted the Criminal Procedure Code 1973, and the inclusion of digital evidence is  supported by the evidence law, that is BSA 2023 which replace Indian Evidence Act 1872.

Jurisdictional issue 

jurisdiction has always been a great issue to deal with for cyber crimes .

BNS 2023 attempts to set forth guidelines to enable clarity for establishing jurisdiction in digital offending, indicating how the venue can be determined, and the protocols for inter-agency collaboration. 

Successfully embracing new digital and technology resources will improve engagement and services for the  public. Through collaborative working and shared best practice, police forces can continue to drive efficiency  and increase data sharing, while reducing time and money spent on outdated systems. 

Assessment of efficacy of BNS 2023 

Strengths Stricter penalties 

Introduces enhanced punishments for cyberstalking, deep fake misuse, and online harassment.  Punishments are more proportional to the digital harm caused, especially to women and children.

Recognition of digital evidence 

BSA 2023 recognises the digital evidence in its definition clause 2(d)by broadening the definition of document,  including any other means and also electronic and digital records and definition of evidence 2(e) includes  digital records as a documentary evidence

Digital policing and integration of technology 

BNSS 2023 integrates the technology into investigation ,enquiry and trial procedure to make it more  efficient . Like e -FIR given ,summons ,warrants, charge sheets can also be in electronic form  ,Videography of investigation procedure, forensic expert investigation in serious offences ,use of digital  tools to collect evidence ,examination of witnesses through video conferencing ,and other major steps  taken to improve the procedural efficiency.

Classification of cyber offences Extra 

territorial jurisdiction 

The advancements in the level of punishment/penalties and integration of technology into investigation  ,inquiry and trial procedure reflect an advanced conceptualization of how modernday law is getting in line  with technological advancements to cater the threats of cyber space.

Challenges Evolving technologies 

Technology is a flute concept. It is evolving rapidly, and that makes it difficult to be in line with the resources  and laws. 

Resource constraints 

One of the major hurdle is deficiency of well equipped, cyber labs and foreign labs that makes it difficult for  the police officers or forensic experts to carry out the investigation properly.

Lack of specialisation 

Police officers and judicial officers that dealt with the traditional criminal justice system are not that aware of  the digital era and they are not in line with the digital education. So this lack of knowledge creates a gap which  hinders their efficiency.

Admissibility of digital evidence 

Although BSA 2023 recognises digital evidence, but still, there is a lot that lacks like authenticity , reliability,  and proper management of digital evidence.

Coordination with other laws 

There exist other laws to deal with cybercrime such as information technology act 2000 and digital personal  data protection act 2023BNS needs a clear coordination and synchronisation with these lots for a clear picture.

Balancing rights 

The increased reliance on digital policing and data collection raises a concern about the individual privacy and  individual rights due to possible miss use of data.

Suggestions 

Effective implementation 

Any law does not start breathing only when it is drafted. It is rather the working of human element with the  law that makes it lively. So is the case with BNS 2023, although various provisions have been made to deal  with the cyber crime under BNS, but still, it’s effectiveness depends on its practical implementation,  continuous assessment and monitoring is necessary to see if any loopholes and to rectify them timely.

infrastructural development 

BNS realise heavily on technology, so a good technologically sound infrastructure like cyber labs and forensic  labs, at each level from rural to cities to state all over country would reduce the disparities.

Skill development and training 

Police officers and judicial officers require extensive training and good skill with respect to the cyber crimes,  digital tools, electronic evidences and digital policing investigation, enquiry and trial procedures, procedures.  So to keep them in line with the new legal provisions and developments with the technological advancements.

Clear definition 

Cybercrime is not defined under BNS 2023 , a clear definition can help to reduce the chances of varied  interpretation and potential misuse.

Public awareness 

Public awareness can lead to them being aware about their individual rights and cyber crimes. So the number  of cyber crimes reported will be increased. That will make it easier to be combated.

By remitting these practical and systematic protests India can fully comprehend to dynamic and contemporary  just criminal justice system.

Conclusion 

The Bharatiya Nyaya Sanhita 2023 represents a breakthrough in India’s approach to cybercrime and digital  policing. cybercrime is a growing concern as digital crime in India increases ,BNS addresses these challenges  through various provisions, but challenges do exist and BNS 2023 by integrating comprehensive digital offense  provisions into the primary criminal code, the legislation demonstrates recognition of cybercrime as a central

challenge for the criminal justice system. The BNS 2023’s emphasis on digital forensics, organized  cybercrime, and enhanced evidence collection procedures provides a solid foundation for addressing  contemporary digital threats. However, the legislations effectiveness will depend on its implementation and

continuous monitoring along with various other factors such as infrastructure ,in service training ,agencies,  coordination, resource allocation, coordination with other laws, public participation. Although BNS addresses  many shortcomings. Still ongoing challenges that exist like the ambiguity of the definition, resource constraint  and lack of International Corporation. The future of BNS 2023 will also require continuous adaptation to  technological developments to keep pace with the technological advancements and also, we need to strike a  balance between crime prevention and digital rights protection. BNS 2023 leads India to a better evolving  landscape of cyber crime, but its true success will be in its practical implementation and effective investigation  prosecution. And prevention of digital offences in the coming years.

References 

Statutes & Government Sources

1. Bharatiya Nyaya Sanhita, 2023, No. 45 of 2023 (India).
2. Bharatiya Nagarik Suraksha Sanhita, 2023, No. 46 of 2023 (India).
3. Bharatiya Sakshya Adhiniyam, 2023, No. 47 of 2023 (India).
4. Information Technology Act, 2000, No. 21 of 2000 (India).
5. Digital Personal Data Protection Act, 2023, No. 22 of 2023 (India).
6. Ministry of Electronics & Information Technology (MeitY), Cybercrime—Definition and Resources, available at https://cybercrime.gov.in.
7. National Crime Records Bureau, Crime in India Report (various years).
8. National Police Chiefs’ Council (NPCC) (U.K.), Cyber Crime Annual Assessment (2022).

Books & Academic Literature

9. Pavan Duggal, Cyberlaw: The Indian Perspective (4th ed. 2021).
10. Aparna Vishwanathan, Cyber Crime, Information Technology, and Security (2019). 11. Vivek Sood, Cyber Crimes, Electronic Evidence & Investigation: Legal Issues (2020). 12. Nandan Kamath, Law Relating to Computers, Internet & E-Commerce (2022).
11. Orin S. Kerr, Computer Crime Law (5th ed. 2019).
12. Majid Yar & Kevin F. Steinmetz, Cybercrime and Society (3d ed. 2019).

Journal Articles & Research Papers

15. V. McGuire, The Changing Dynamics of Cybercrime: Emerging Threats and Law Enforcement Challenges, 14 Int’l J. Cybersecurity 45 (2021).
16. R. Bhatnagar & S. Singh, Digital Forensics and Criminal Justice in India, 12 Indian J. Criminology 122 (2020).
17. A. Sharma, Deepfakes and the Law: Regulatory Gaps in India, 8 Tech. & Pol’y Rev. 77 (2022). 18. K. Rao, Cyberstalking and Online Harassment: Legal Framework in India, 5 J. Law & Tech. 54 (2021).

Reports, Policy Papers & International Sources

19. Interpol Global Crime Trend Report (2023).
20. UNODC Cybercrime Study (2021).
21. McAfee Labs, The Hidden Costs of Cybercrime Report (2021).
22. Microsoft Digital Crimes Unit, Cyberthreat Intelligence Review (2023).
23. National Cyber Security Strategy of India (Draft 2023), Ministry of Home Affairs.

Web References & Institutional Resources

24. Microsoft Policy Centre, Digital Policing and Law Enforcement Transformation, https://mpg.org.za (visited Nov. 2024).
25. CERT-In, Incident Response Guidelines (2023), available at https://cert-in.org.in. 26. Indian Cyber Crime Coordination Centre (I4C), Annual Cyber Safety Report (2023). 27. Ministry of Home Affairs, Handbook for Digital Evidence, Forensic Standards, (2022).