Cybercrime and Digital Policing: Efficacy of the Bharatiya Nyaya Sanhita, 2023

Introduction

The Bharatiya Nyaya Sanhita (“BNS”) of 2023 represents a sweeping reform of India’s criminal law architecture. Replacing the colonial-era Indian Penal Code (IPC), the BNS is designed to reflect modern realities, particularly the rise of cyber-dependent crime and the need for technologically empowered policing.² The law expressly recognizes cyber- organised crime and incorporates provisions that enable digital evidence collection, forensic investigation, and remote procedural mechanisms.³ These reforms are crucial, as previous legal regimes, including the IPC and the Information Technology Act, often proved inadequate to address sophisticated digital offenses, especially those committed by organised groups.

Yet, legislative reform is only part of the story: the BNS’s success will depend on its practical implementation. Without robust digital policing infrastructure, forensic capacity, and oversight mechanisms, the promise of stronger cybercrime law may go unfulfilled. This article critically examines the BNS’s core cybercrime provisions, explores its procedural innovations for digital policing, evaluates the strengths and limitations of its approach, and offers policy recommendations to ensure its effective deployment.

Cyber- Crime-Related Offences in BNS

One of the most significant additions in the BNS is Section 111, which criminalizes “continuing unlawful activity” as a form of organized crime.⁴ This definition spans traditional crimes like robbery and extortion, but crucially includes cyber- crimes, marking a deliberate legislative effort to treat organized cyber syndicates on par with physical crime networks.⁵ By folding cyber activity into organized crime, the BNS gives law enforcement clearer jurisdictional and prosecutorial tools to tackle digital crime rings, enabling longer-term investigations and recurring-activity tracking.

Another pivotal provision is Section 113, which deals with terrorist acts, including cyber-based threats to national security.⁶ This bridges a key gap: in the digital age, terrorism can leverage online infrastructure for recruitment, coordination, and cyberattack. The BNS empowers prosecutors to treat cyberterrorism with the seriousness that traditional terrorism commands.

Perhaps most transformative for individual rights is Section 116, which targets “synthetic media manipulation.”⁷ This provision penalizes the creation or dissemination of AI-generated content, commonly known as deepfakes that impersonates individuals without consent and causes reputational or psychological harm. While the law does not provide a technical definition of “deepfake,” its inclusion underscores the Legislature’s acknowledgment of emerging artificial intelligence risks.

Beyond organized crime, BNS also amends provisions related to harassment and privacy. As Vaishali Bhagwat, a practicing advocate, notes, the BNS introduces modernized stalking definitions: Section 78 penalizes persistent monitoring or use of electronic communication to harass a person, especially women.⁸ This redefinition accounts for digital stalking, a phenomenon that the IPC did not adequately address.

Procedural Reforms for Digital Policing

Legal provisions alone are insufficient, effective implementation requires strong procedural tools. The BNS pairs its merit-based offence framework with several innovations to modernize policing and evidence.

E- FIRs, Zero FIRs, and Remote Proceedings

To accommodate the borderless nature of cybercrime, the BNS enables e- FIRs; electronic registration of First Information Reports.⁹ Victims can file complaints online without being physically present at a police station. It also endorses zero-FIRs, allowing complaints to be registered irrespective of jurisdictional boundaries.¹⁰ These tools reduce barriers to reporting, especially in interstate or complex cyber cases.

Further, the BNS allows certain judicial and quasi- judicial processes such as testimonies, hearings, and case recordings to be conducted via video conferencing.11 In cyber cases, where witnesses or accused may operate remotely, this is especially useful.

Forensic Modernization

The BNS strongly emphasizes forensic investigation. It authorizes law enforcement to perform real-time data imaging, device seizure, and cloud data preservation.¹² Section 349 expands forensic sampling to include digital evidence, allowing seizure and imaging of volatile memory,mobile phones, and computers.¹³ Such capabilities are critical, as cyber evidence is often ephemeral and vulnerable to manipulation.

Admissibility of Digital Evidence

Under the BNS and its companion Bharatiya Sakshya Adhiniyam (BSA), digital records like WhatsApp chats, emails, CCTV recordings, and cloud-stored data are recognized as admissible evidence.¹⁴ The law mandates that such evidence be maintained with strict chain-of-custody protocols, and encourages use of government-endorsed platforms (e.g., e- Sakshya) for secure upload and storage.¹⁵ This standardization helps maintain evidentiary integrity and supports prosecutorial robustness.

Strengths and Opportunities

Legal Modernization

By integrating cybercrime into its centerpiece criminal statute, the BNS significantly reduces legal fragmentation. Organized cyber syndicates can now be prosecuted under the same regime as conventional crime, thus strengthening prosecutorial coherence.

Enhanced Victim Protection

The recognition of non-consensual intimate content and synthetic impersonation highlights the BNS’s victim-sensitive approach. These reforms provide legal recourse for digital harms that were previously difficult to remedy under outdated statutes.

Procedural Efficiency and Transparency

Digital reporting (e-FIR) and remote judicial processes increase access to justice. These measures reduce delays, improve transparency, and minimize physical risks for complainants.

Forensic Capability

Mandating forensic involvement in all serious crime investigations ensures that cybercrime responses are not ad hoc but systematic. Over time, this may foster capacity building across states and police units.

Alignment with Global Norms

 Although India is not a signatory to all international cybercrime treaties, the BNS’s provisions align with global best practices, particularly on digital evidence, organized cybercrime, and emerging AI-related threats.

Challenges and Limitations

Capacity and Resource Constraints

 The technical sophistication required by the BNS may overstretch law enforcement agencies, especially in states without well-equipped forensic labs. Many police units still lack trained cyber- forensics personnel, which could limit the law’s impact in practice.

Low Compliance with Digital Evidence Requirements

 Media reports show worrying compliance gaps. For instance, in Noida, only 13% of FIRs filed in the first year included digital evidence via the mandated e- Sakshya app.¹⁶ Technical issues, lack of training, or infrastructure bottlenecks may be major factors.

Privacy and Civil Liberty Risks

 The broad powers granted for data collection, surveillance, and content regulation raise serious privacy concerns. Without robust oversight and well- defined legal standards (especially around deepfake definitions), such powers risk misuse or abuse.

Overlap with Existing Laws

 The BNS must operate alongside the Information Technology Act, 2000, and the Digital Personal Data Protection Act. Differences in definitions, jurisdictional reach, and evidentiary protocols could create confusion for investigators and courts unless harmonized.

Ambiguous Definitions

 The absence of a technical definition for “synthetic media” or “deepfake” may lead to inconsistent application. Courts may struggle to adjudicate cases without clear scientific benchmarks.

Cross- Border Enforcement

 Cybercrime often cross-regional and international borders. While the BNS strengthens domestic prosecution, cross-jurisdiction challenges remain: data in foreign servers, cloud-based evidence, and coordination with non-Indian law enforcement require robust mutual legal assistance frameworks.

Policy and Implementation Recommendations

1.     Build Forensic Infrastructure and Capacity

• Establish state-level cyber- forensics labs with live data imaging
• Invest in continuous training for investigators, forensic scientists, and police
• Deploy mobile forensic units capable of responding to crime scenes and preserving volatile digital data.

2.     Improve Digital Evidence Compliance

• Strengthen the e-Sakshya platform’s usability, and ensure reliable connectivity for frontline officers.
• Mandate periodic audits of digital evidence submission and chain-of-custody
• Encourage standard operating procedures (SOPs) for digital evidence collection and processing.

3.     Safeguard Privacy and Limit Overreach

• Introduce judicial or independent review for access to personal data, especially in deepfake cases.
• Adopt clear, technology-neutral definitions for “synthetic media” in law or
• Establish oversight bodies to review surveillance practices and ensure adherence to human rights.

4. Harmonise Legal Frameworks

• Issue rules to align BNS with the IT Act and the Digital Personal Data Protection
• Clarify encryption, cross-border data access, and cloud investigation
• Promote state-level adoption of uniform protocols to prevent jurisdictional

5.     Enhance International and Inter-State Cooperation

• Strengthen mutual legal assistance treaties and cyber task
• Build joint forensic capabilities and shared data repositories across
• Engage in global cybercrime initiatives to standardize practice and improve cross- border response.

6.     Public Awareness and Reporting

• Launch nationwide campaigns to educate citizens on e-FIR, zero-FIR, and their digital rights.
• Partner with civil society to build trust in digital policing
• Provide accessible reporting channels for cyber victims, particularly marginalized

7.     Continuous Review Mechanisms

• Set up an expert advisory board (law, technology, ethics) to periodically review BNS cyber provisions.
• Introduce sunset clauses or scheduled reviews to adapt to evolving
• Encourage data-driven policy updates by tracking usage, compliance, and conviction statistics.

Conclusion

The Bharatiya Nyaya Sanhita, 2023 ushers in a new era in India’s criminal law, one that acknowledges the centrality of cybercrime and empowers law enforcement with digital tools and forensics to confront it. By embedding organized cyber- crime, synthetic- media offences, and digital evidence within its core structure, the BNS modernizes the justice system for the 21st century.

Yet, reform on paper is insufficient. The success of these legal innovations will hinge upon real- world implementation: robust forensics, reliable e- FIR uptake, strong data safeguards, and harmonized cross- statutory frameworks. Without these, the promise of BNS may remain aspirational.

If executed conscientiously, however, the BNS has the potential to transform digital policing in India, offering not just legal clarity, but also a lawful, rights-sensitive, and technologically sophisticated path toward justice in the digital age.