The proposed Bharatiya Nagarik Suraksha Sanhita, 2023, allows law enforcement to summon or carry out search and seizure of digital devices such as phones and laptops, but this could violate the right to privacy as well as the right against self-incrimination, Member of Parliament Derek O’Brien pointed out in his dissent note attached to the parliamentary committee report on the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
The BNSS, 2023, is the proposed replacement for the Code of Criminal Procedure (CrPC), 1973.
Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023, allows the court or the police officer in charge to summon any document or thing required for an investigation as evidence. Notably, this proposed law explicitly includes summoning of digital evidence and covers any electronic communication such as messages, call recordings, and emails as well as electronic communication devices such as mobile phones, laptops, cameras, and any other electronic device that may be specified by the government through notification in the future. A court also has the right to order search and seizure of such evidence for various reasons including if the person in possession of the evidence is not expected to produce the same.
“A mobile device or a laptop contains a lot of information which might not be relevant to the case because electronic devices in today’s age contain all information pertinent to an individual’s general existence. So, there’s a question about the invasion of the right to privacy because of the scope of information that’s in these devices. Secondly, the collection of such devices might also go against the right against self-incrimination.” — MP Derek O’Brien
The Parliamentary Standing Committee on Home Affairs released its report on the BNSS on November 10 but did not have any comments or suggestions around the device seizure rules, hence resulting in Derek O’Brien bringing up these concerns in his dissent note.
We’ve elaborated on the concerns raised by Derek O’Brien here.
The government has also proposed other laws to replace the colonial-era Indian Penal Code (IPC) of 1860 and the Indian Evidence Act of 1872. You can read more about all these three drafts here.
Derek O’Brien’s dissent note, along with a dozen other dissent notes, also delves into numerous other shortcomings in the proposed bills such as the lack of a proper consultation process, the poor drafting of rules, the retaining of colonial-era rules, the lack of checks and balances to the government’s policing powers, and criticisms of various specific provisions.
- How The Three Bills Overhauling India’s Criminal Law Impact The Digital Ecosystem
- Indian Government Introduces Bills To Overhaul Criminal Laws: Indian Penal Code, CrPC, And Indian Evidence Act
- Here’s How Indian Government Justifies Search And Seizures Of Devices
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