Author: Dhruvi Varma, Thakur Ramnarayan College of Law

There have been many changes in criminal activities because of the fast development of digital technology. It has led to the emergence of various forms of cyber-crime, which include hacking, fraud, identity theft, and other crimes associated with digital technology. Unlike conventional crimes, cyber-crimes involve electronic evidence and, therefore, the application of digital forensics becomes extremely important during such cases. Thus, this paper aims at reviewing the legislative environment for the development of digital forensics in India with particular attention paid to laws on electronic evidence. It includes a discussion of changes in legal provisions from Section 65B of Indian Evidence Act, 1872 to Section 63 of Bharatiya Sakshya Adhiniyam, 2023 and procedural norms under Bharatiya Nagarik Suraksha Sanhita, 2023. Judicial opinions concerning the issue of electronic evidence in Arjun Panditrao Khotkar v. Kailash Gorantyal will be analyzed as well. In addition to that, challenges faced by digital forensics in India and the way they may be addressed taking into account international conventions such as the Budapest Convention will be discussed.

Keywords: 

Digital Forensics, Cyber Crime, Electronic Evidence, Bharatiya Sakshya Adhiniyam, Chain of Custody, Budapest Convention.

Taking into account the rapid development of information technologies, one can notice some shifts related to criminal behavior. Hacking, identity theft, Internet scam, terrorism, and stealing of confidential information have gained popularity among perpetrators. Since the new type of crimes has been detected, a number of issues regarding the investigation and prosecution processes have occurred because these offenses are different from classical crimes due to certain peculiarities. First of all, modern crimes do not leave much physical evidence; that is why electronic evidence becomes the only tool for detecting the criminals.

Therefore, digital forensics works as an effective instrument in preventing and combatting cybercrimes. With regard to its development in the context of the digital economy, India becomes one of the top countries where an increase in the number of crimes related to the growth in digital penetrations and banking transactions can be observed. It would be important to mention that the role of digital evidence in tackling such issues could not be ignored. Earlier, legal provisions regarding the certification of electronic evidence existed in Section 65B of the Indian Evidence Act of 1872. Judgements like the case of Arjun Panditrao Khotkar v. Kailash Gorantyal became a precedent for digital evidence principles.

From the above discussion, it is clear that India has put forward a new approach to its legal system in dealing with digital evidence. First, for example, section 63 of the 2023 Bharatiya Sakshya Adhiniyam, commonly called BSA, is a revision from the old law's section 65B on the certification of electronic record. Second, the new law, that is the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, provides greater power to police in handling digital evidence, as provided for by section 94 of this Act. Under the BNSS, the seizure of the digital device will form part of the evidence of the investigation scene, according to section 105.

In terms of an international perspective, inclusion of India into the Budapest Cyber Crime Convention proves yet again that cybercrimes are definitely an international matter. While India has not signed up for this convention, their participation in comparative research ensures that they abide by international norms concerning cyber-crimes. This is mainly due to the fact that the chief cause behind India’s reluctance to sign the convention revolves around data sovereignty issues.

The primary purpose of this study can be understood in terms of the identification of the effectiveness of the legal provisions relating to forensic techniques employed with digital technology during the process of investigating cybercrimes in India. It is intended to examine the laws, court decisions, procedures as well as any shortcomings pertaining to the implementation, technological availability, and cooperation between different jurisdictions. For the conduct of this research, a comparative and doctrinal method has been used, which provides a holistic view of law and technology in the cyber world of India.

The rise in the utilization of information technology has brought about significant changes regarding the methods used by criminals to commit their acts and how these criminal acts can be investigated. Cybercrime literature is known to consistently emphasize the aspect of digital crimes being quite different from conventional crimes since they are immaterial and utilize information technology tools in committing them. Authors like Majid Yar indicate that cybercrime has been seen as an important innovation regarding the way criminal acts are committed, calling for the development of new ways of handling these crimes.

Most of the academic works have addressed the technical aspects of digital forensic science. For instance, according to Eoghan Casey, the manipulation of digital evidence must always be conducted very carefully because even minor changes in this evidence may render it unreliable. In addition, the idea of chain of custody has been stressed as being crucial when dealing with digital evidence, since it prevents any form of tampering with such evidence.

For India, many academic conversations revolve around the statutory recognition and admissibility issues related to digital evidence. The Indian Evidence Act of 1872, introduced Section 65B, creating a pathway for the certification of admissibility of electronic records. This provision has received a lot of academic attention. For instance, Aparna Viswanathan argues that Section 65B’s legislative purpose is centered on the challenge of authentication of electronic evidence. It has, however, been pointed out that the complicated and stringent procedures that one must go through to meet the requirements of this section pose practical difficulties, particularly in relation to electronic evidence that is produced by a third party.

It is also important to regard the contribution of the courts in the development of the interpretations of these provisions. A landmark decision in this regard is Anvar P.V. v. P.K. Basheer. It was decided by the Supreme Court that it was absolutely essential for any electronic document to conform to Section 65B. Even more importantly, the decision taken by the Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Gorantyal established that it was imperative to strictly follow Section 65B of the Evidence Act in admitting electronic evidence.

There have been a few recent changes to the legislation that add one more perspective to the matter. In particular, the new legislation, the Bharatiya Sakshya Adhiniyam, 2023, replaces the old law with a new Section 63 which deals with electronic records. The legal academic interpretation of this Section shows that it seeks to include the same fundamental points as included in Section 65B. However, its main difference from the old Section is in the technological sophistication of its content. Another piece of legislation, the Bharatiya Nagarik Suraksha Sanhita, 2023, has been analyzed by academics with special attention being paid to innovations in search and seizure procedures as well as to documentation of a cyber crime. The requirement for video recording these activities is considered important.

International literature offers a number of other perspectives. For instance, Susan Brenner considers the Budapest Convention on Cybercrime to be the most elaborated international treaty concerning cyber crime. It is acknowledged by many academics as an efficient instrument against digital crimes. In contrast, Indian scholars point out that issues of national sovereignty and jurisdictional control have become obstacles to accession to the convention.

Even though there is plenty of material available in the form of academic work and research papers, some areas still seem to be lacking in the literature pool. For instance, most of the material usually covers one area or the other, but not both together. There has been little effort made to consider both technical and procedural aspects at once. Moreover, there has been very little mention made of the problems encountered by law enforcement agencies in India while dealing with such issues.

This research aims to analyze the legality of India’s digital forensic practices for cybercrime investigations using a doctrinal and comparative methodology. The range of the doctrinal method permits a study of primary resources relating to a particular law. The laws examined were the Information Technology Act of 2000, the Indian Evidence Act of 1872, and the Evidence Act, as amended by the Bharatiya Sakshya Adhiniyam of 2023. Relevant sections, especially Section 65B, and the revamp of Section 63 of the Indian Evidence act were also included. Lastly, the provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023, were also examined.

For the purposes of this research study, the paramount importance has been attributed to the use of case law, especially the leading ones, as they aid in the interpretation of a legislative provision. Landmark case law has been analyzed in order to distill the most important legislative and administrative components relating to the admissions and attestations of electronic evidence as established in the case of Arjun Panditrao Khotkar v. Kailash Gorantyal.                               

Along with the doctrinal approach, another comparison method has been utilized for analyzing the law of India within an international perspective. This includes reviewing the Budapest Convention on Cybercrime as a standard that can be compared to Indian practices with regards to cyber crime investigations and use of digital evidence. Even though India is not one of its parties, this study has revealed much useful information in terms of best practices, especially concerning cooperation among nations and harmonized procedures.

To enrich the discussion on digital forensics in India, books, journals, and policy reports as secondary sources have been used.

Application of the doctrinal as well as comparative research methods in this case is highly appropriate due to the very nature of the issue under consideration that is connected with digital forensics as being at the crossroads between law and technology. Although the application of the doctrinal method will allow making sure of the quality of the legal analysis, the comparative approach will help evaluate the efficiency of Indian legislation on the international scale.

The rapid process of digitizing modern life has dramatically changed the concept of evidence in the context of criminal investigations. Being understood as any information with probative significance created or saved in the form of an electronic file or sent through electronic communication channels, digital evidence plays a vital role in the process of proving claims in both civil and criminal trials. Nowadays, emails, chats in social networks, server logs, and blockchain entries become key to demonstrating facts before a court.

In opposition to other types of evidence, the intangible, volatile, and replicable nature of digital evidence creates additional challenges for its investigation. The intangible character refers to the fact that digital evidence cannot be perceived as physically tangible objects. At the same time, the volatile nature of digital data raises concerns about its authenticity as it can easily be altered and even deleted. Finally, due to the replicable nature of digital information, several identical copies of evidence may exist at one point.

In such a scenario, the importance of metadata plays a very crucial part. Metadata is described as “data about data” and includes factors like timestamps, geographic location information, device IDs, and transaction records. In today’s world, courts are increasingly turning their attention toward metadata to establish the authenticity and origin of electronic documents. However, this demands a great deal of technical expertise, which is not available within the Indian legal system.

It therefore becomes essential for the idea of digital evidence to transcend mere definitions and encompass its technical weaknesses and evidentiary significance before formulating its legal framework.

The legal status of digital evidence in India has changed a lot, especially since the Indian Evidence Act of 1872 was replaced by the Bharatiya Sakshya Adhiniyam of 2023. The change is not just an amendment; it is a complete overhaul of the laws about evidence to make room for new technologies.

Amendments to the Indian Evidence Act, especially Section 65B, have added the idea of electronic evidence. This section talks about electronic evidence that can be used in court under certain conditions. However, the problem was how to understand Section 65B.

In this regard, the provisions contained in the Bharatiya Sakshya Adhiniyam, 2023 are helpful as they resolve any ambiguity regarding such requirements. Section 63 of the said Act substitutes the existing Section 65B of the Evidence Act and reinstates the principle of certification in respect of electronic documents. It marks a fundamental change towards certitude as far as procedures for introducing electronic evidence are concerned.

It is important to note that the judicial decisions played a critical part in the development of the legal framework concerning this question. In the well-known court case Arjun Panditrao Khotkar v. Kailash Gorantyal (2020), it was unequivocally asserted that it is mandatory to produce a certificate in accordance with Section 65B for the introduction of any evidence in the form of an electronic record.

In this regard, it may be concluded that the adoption of the Bharatiya Sakshya Adhiniyam is one more example of the legislative trends, which aim at harmonization of the Indian legislation with the legislation used abroad but which also consider national issues.

Another very important consideration concerning the proper handling of digital evidence is that of the chain of custody. The term "chain of custody" can be defined as a time-logged account of how the evidence was collected, handled, stored, and transmitted.

Given the vulnerability of digital information to tampering, the chain of custody is the mechanism by which courts can ensure that evidence brought before them remains untampered with and therefore reliable.

A break in the chain of custody, whether intentional or otherwise, could prove disastrous to the admissibility of any digital evidence, since it would mean that its integrity had been compromised in some way. Such a possibility may well result in an acquittal, despite the presence of considerable amounts of digital evidence.

With this understanding, the Bharatiya Nagarik Suraksha Sanhita, 2023, has brought about many procedural reforms. One of the most prominent changes is Section 105, which requires videography of the search and seizures performed. The purpose behind this provision is to promote transparency in evidence collection and make the process less open to allegations of evidence planting and tampering.

There are many reasons for mandating videography of evidence seizure. Apart from increasing the credibility of the investigative agency, it also makes India’s procedural laws more consistent with international digital forensic procedures.

However, like any other procedural reform, these will prove effective only when implemented effectively. Inefficient implementation and inadequate resources have been the bane of procedural reforms since time immemorial. Therefore, while India progresses on the legal front, it must also progress practically.

The statutory laws governing cyber-crimes are governed by both statutory laws namely The Information Technology Act, 2000 and the Bharatiya Nyaya Sanhita, 2023. Both laws are concerned with both aspects of the criminal act.

The Information Technology Act can therefore be termed as the primary statute regulating cyber crimes. These include offences of computer abuse, unauthorised access and data theft, identity theft, and impersonation. The laws governing these offences include Section 43 which deals with liability for unauthorized access, Section 66 which governs liability for computer related offences, Section 66C and 66D which governs identity theft and impersonation respectively.

Whereas the Bharatiya Nyaya Sanhita incorporates ancient principles of criminal law into the modern technological context, technology has allowed for offenses such as forgery, cheating, and fraud to be committed, making them a part of the criminal code.

Cyber crimes have become increasingly complex and advanced with time. They range from phishing scams, ransomware, stalking, and large-scale hacking among others. The aspect of anonymity that comes with cyberspace renders it difficult for law enforcement agencies to conduct investigations in such spaces.

The hybrid system of laws in India shows that people are trying to close the gap between new technology and its regulation by making specific cyber laws that work with common law.

Though India possesses an elaborate legal system with provisions dealing with cybercrime and related issues, there still exist certain problems concerning the process of using digital evidence.

1. Technical Challenge:

The biggest challenge in handling digital evidence can be described as its technical character. It might be difficult for a judge or lawyer or any other person involved in the case investigation to comprehend some aspects of encryption, blockchain, or cloud computing.

2. Chance for Manipulation:

Another important problem connected with the usage of digital evidence relates to possible manipulation. As opposed to regular paper documents, digital evidence can be modified without any visible traces; therefore, special measures should be adopted in order to protect it.

3. Jurisdictional Difficulties:

A problem which can also arise in connection with the use of digital evidence is related to cybercrimes committed in other countries or by means of computers belonging to foreign states. It is especially difficult when the data storage is located abroad.

4. Infrastructure Problems:

At last, one can mention a number of problems concerning the absence of laboratories and professionals who will be able to examine and analyze collected evidence.

The Budapest Convention on Cybercrime is the first international convention against cybercrime that was introduced in the year 2001 and offered an important framework for dealing with electronic evidence. The Budapest Convention contains various provisions relating to issues including but not limited to harmonization of domestic legislation, technological advancement, and international cooperation.

However, India opted not to be a member of this convention. As the main reason for not joining, one can note that India prioritizes data sovereignty and national security in relation to the Budapest Convention as the latter entails international access to data under particular conditions. Thus, India sees joining this international agreement as a possible threat to its sovereignty.

Since India is not part of the Budapest Convention, the country employs other means of cooperation including bilateral arrangements and MLATs. Such cooperation may be effective in combating cybercrime; however, it is usually rather labor-intensive.

The issue of India's non-joining the Budapest Convention illustrates the dilemma between international cooperation and national sovereignty.

It is very important to get, keep, and analyze electronic evidence, and digital forensic science is a big part of that. This process includes using certain tools and methods to help get data back, analyze it, and present it in a way that is acceptable.

Some important aspects of digital forensic science are:

• Disk Imaging - creating replicas of digital media devices

• Network Forensics - analyzing online actions performed by a person through the internet

• Cell Phone Forensics - obtaining information from mobile phones

Digital evidence is usually authenticated based on the precision of the forensic techniques used. Courts generally use expert opinions to validate digital evidence and authenticate the information derived from the findings.

Nevertheless, digital forensics in India is a relatively new concept that requires standardization of procedures and certification of forensic labs. Professional development of personnel in this field must also be ensured.

As observed from the discussion made above, it is apparent that there have been a number of developments in the laws of forensic investigation due to the complexity involved in cybercrimes. From the transition of laws from Indian Evidence Act, 1872 to Bharatiya Sakshya Adhiniyam, 2023, it is obvious that attempts have been made by the lawmakers to make sure that there are changes in the laws governing evidence as far as the issue of genuineness of the evidence is concerned. One of the ways through which time taken in certification can be minimized is by amending section 65B to section 63.

However, apart from this, the effectiveness of the measures not only hinges on how the laws themselves have been framed but also on how enforceable these measures are going to be. One of the commonest problems that arise pertains to the chain of custody of the digital evidence. According to the Bharatiya Nagarik Suraksha Sanhita, 2023, there are some measures which provide for search and seizure through video documentation; yet, even if the above measures will prove effective, the effectiveness of the measures will hinge greatly on the competence of the agencies carrying out the investigation and their familiarity with the subject matter. Any mistake in handling the evidence may cause the entire evidence to be disallowed.

Another very crucial factor that should be taken into consideration when talking about this topic is the degree of technical proficiency possessed by the police. This subject is one that involves very advanced science. Despite the existence of new legislation, which has been adopted to deal with this problem, it is quite obvious that there exists a great discrepancy between legislation and practice.

Jurisdiction also poses another problem that makes the issue of cybercrime enforcement quite complicated. To start with, since these crimes take place in cyberspace, most cases of cybercrimes will definitely go beyond the limits of any particular nation since these crimes can take place using computers located in other countries. Even though these guidelines are clearly specified through the Budapest Convention on Cybercrime, which is accepted internationally as a means of dealing with these cases, there are some nations like India, who do not wish to become parties to this agreement.

The process of interpretation conducted by judges has an important role in closing this gap. The judicial bodies have repeatedly stressed the importance of adherence to the procedure when considering digital evidence in order to increase its credibility. Nevertheless, a rigid interpretation on the part of the judicial system can sometimes obstruct the use of the evidence even if it is undoubtedly credible but fails to follow the procedures.

In summary, although it can be stated that the Indian government has made some significant steps in relation to digital forensic legislation, their success will largely depend on the implementation of the guidelines set. However, addressing the issues discussed above will be key to the effectiveness of the law.

This technology has evolved quite rapidly over the course of the period, and technological advancement has made a huge difference in criminal investigation and crime detection. In view of the rise in instances of cybercrime, there is an acute need for digital forensics technology. The role of digital forensics in crime solving is indispensable in this age.

This truth is also proven by the conclusions drawn on the basis of the current research, since a lot of substantial amendments will be introduced into the legislative framework in India on account of the mentioned tendencies. The adoption of the Bharatiya Sakshya Adhiniyam, 2023 instead of the Indian Evidence Act, 1872 is viewed as the main one concerning the utilization of electronic evidence in court proceedings. More specifically, it can be stated that the amendments made regarding the formulation of Section 65B via Section 63 are aimed at eliminating any uncertainties and securing some procedural rights. On the other hand, some improvements will also be implemented as regards the Bharatiya Nagarik Suraksha Sanhita, 2023.

With regard to digital evidence in India, however, the judiciary cannot be ignored here. The reason is that significant cases like Arjun Panditrao Khotkar v. Kailash Gorantyal have contributed to developing guidelines that would ensure consistency throughout the process. From the above discussion, it can clearly be seen that there is an exclusive method for dealing with digital evidence in India.

However, there are certain issues that still need to be addressed. Technical complexities, susceptibility to manipulation, geographical limitations, and lack of hardware hinder the effectiveness of the forensic approach. It is evident that there is a certain discrepancy between theory and practice, which needs to be resolved through improving the capabilities of forensic analysis.

In terms of international relations, India would have been justified in having just grounds for being reluctant to adopt the Budapest Convention on the basis of data sovereignty. Conversely, the Budapest Convention gives India an opportunity to compare itself with other nations and raise its standards as far as digital evidence is concerned without compromising its sovereignty.

In conclusion, it is true that the Indian Government has made some commendable efforts for setting up a contemporary legal framework for handling digital evidence, but all such initiatives will prove to be futile if the laws are not properly implemented. There should be a combined approach to guarantee a proper legal system through the use of laws, technology, and diplomacy.

• Council of Europe, Convention on Cybercrime, Nov. 23, 2001, ETS No. 185.

• Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

• Majid Yar, Cybercrime and Society (2d ed., Sage Publications 2013).

• Aparna Viswanathan, Cyber Law: Indian and International Perspectives (LexisNexis 2012).

• Information Technology Act, No. 21 of 2000, §§ 43, 66, 66C–66D (India).