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White Black Legal – International Law Journal · ISSN 2581-8503
TECHNOLOGY AS THE NEW PROCEDURAL SAFEGUARD? A Critical Study of Digital Criminal Justice under the Bharatiya Nagarik Suraksha Sanhita, 2023
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Abstract
TECHNOLOGY AS THE NEW PROCEDURAL SAFEGUARD? A CRITICAL STUDY OF DIGITAL CRIMINAL JUSTICE UNDER THE BHARATIYA
NAGARIK SURAKSHA SANHITA, 2023
AUTHORED BY - KOMAL KAILASHNATH SHARMA
Institution - Shree L.R. Tiwari College of Law
Academic year or
designation- 5th Year BA.LL.B. (2026–2027)
ABSTRACT
The
Bharatiya Nagarik Suraksha Sanhita, 2023 shows a shift, towards using
technology in criminal procedures in India. Electronic communication, digital investigation, electronic
evidence, electronic service and virtual proceedings have become part of the
procedural framework. While these developments may improve accessibility,
efficiency and traceability, they also raise a deeper question that when does technology merely facilitate criminal
procedure, and when can it function as a procedural safeguard?
This
paper critically examines this question through a five-dimensional framework of
traceability, authenticity,
transparency, proportionality and accountability. It
analyses the role of technology across the criminal procedure lifecycle,
including digital initiation of proceedings, electronic service, investigation
and device custody, electronic evidence, virtual proceedings and the
consequences of technological failure. The study further deals with the
technological imbalance between State agencies and accused persons and
considers the continuing digital presence of criminal allegations even after
proceedings have concluded.
The
paper develops five interconnected concepts which are Chain of Digital Accountability, Functional
Equivalence, Digital Equality of Arms, Digital Failure Safeguard and Digital
Closure Protocol to assess whether technological processes
preserve meaningful procedural rights. It argues that digitisation by itself
does not guarantee fairness- electronic transmission may not amount to
meaningful notice, digital evidence may require greater verification, virtual
presence may not ensure meaningful participation, and technological capacity
may increase both investigative power and privacy risks.
The
study concludes that technology can operate as a procedural safeguard only when
its use remains traceable, verifiable,
transparent, proportionate and institutionally accountable. Digital
criminal justice should therefore move beyond technological adoption towards accountable digitisation, ensuring
that increased State capacity does not diminish individual procedural
protection.
Keywords: Bharatiya Nagarik Suraksha Sanhita, 2023; Digital
Criminal Justice; Procedural Safeguards; Electronic Evidence; Digital
Accountability; Due Process.
INTRODUCTION
Criminal process determines the manner in which the
coercive power of the State is exerted against an individual. It governs the
initiation of criminal proceedings, investigation, collection and preservation
of evidence, appearance before courts, adjudication and the communication of
judicial decisions. Its purpose, therefore, cannot be reduced to ensuring that
a case moves efficiently from one procedural stage to another. Criminal
procedure must also ensure that the exercise of State power remains subject to
fairness, legality and meaningful judicial scrutiny. The Supreme Court has
repeatedly treated Articles 14 and 21 as requiring substantive and procedural
fairness, recognising that “procedure established by law” must be just, fair
and reasonable.[1]
A major technology component has been added to this
procedural framework by the Bharatiya Nagarik Suraksha Sanhita, 2023
("BNSS"). Its provisions recognise electronic communication in the
initiation of criminal proceedings, electronic service of processes,
technological documentation during investigation and electronic modes of
conducting trials, inquiries and proceedings. Section 173, for instance,
permits information relating to a cognizable offence to be given by electronic
communication, while Section 530 provides for trials, inquiries and proceedings
to be held in electronic mode.[2] As a
result, technology is now integrated into criminal procedure rather than just
being an administrative tool used in conjunction with it.
This transformation presents an important
constitutional and procedural question. Does converting a procedural act into a
digital form necessarily make that process more protective of rights? An
electronic complaint may reduce barriers to approaching the police, but
questions remain regarding authentication, registration and subsequent
accountability. Digital investigation may enable investigators to preserve and
analyse substantial quantities of information, but the same capability may
expose personal and third-party data far beyond what is necessary for the
investigation. Virtual proceedings may improve access to courts, but physical
absence may also affect communication with counsel, effective participation and
the ability to follow or challenge evidence.
The constitutional significance of these concerns
becomes particularly clear in relation to privacy. In Justice K.S. Puttaswamy
(Retd.) v. Union of India, the Supreme Court recognised privacy as a
constitutionally protected right connected with liberty, dignity and individual
autonomy. The Court further developed proportionality as a means of examining
restrictions upon fundamental rights.[3]Digital criminal
investigation consequently raises a question not merely of whether the State
possesses technological access, but whether the particular access is legally
justified, directed towards a legitimate purpose and proportionate to that
purpose.
The problem is not technology itself. Digital systems
can create advantages that conventional paper-based processes may not provide.
Properly designed systems can create verifiable records, preserve procedural
histories, facilitate communication, assist in the preservation of evidence and
enable participation without physical presence. The difficulty arises when
technological capacity is mistaken for procedural protection. A system may
record everything without making the record reliable; transmit information
without ensuring meaningful notice; preserve evidence without making it
effectively challengeable; or collect extensive personal information without
adequately limiting its use.
This paper approaches that problem by distinguishing
between a digital procedural mechanism and a digital procedural safeguard. A
mechanism determines how a procedural act is performed. A safeguard performs a
further function that it constrains the exercise of State power, protects an
individual's procedural position, or facilitates meaningful scrutiny and
challenge. On this basis, the paper proposes five criteria for determining when
technology performs a safeguarding function: traceability, authenticity, transparency,
proportionality and accountability.
These criteria provide the analytical framework for
examining technology across the criminal-procedure lifecycle. Traceability asks
whether the procedural history can be reconstructed. Authenticity asks whether
a digital record or process can be reliably verified. Transparency asks whether
the affected person can understand and challenge what has occurred.
Proportionality asks whether technological powers are exercised only to the
extent necessary for a legitimate procedural purpose. Accountability asks who
bears responsibility when a technological process produces an error, loses
information, compromises participation or otherwise fails.
The inquiry also extends beyond the immediate stages
of investigation and trial. Digital criminal justice can have consequences
after proceedings have legally concluded because electronically stored
allegations, case records and searchable information may continue to shape an
individual's informational identity.
The paper does not contend that the BNSS's
technological provisions are inherently either rights-enhancing or
rights-restrictive. Instead, it argues that their constitutional value depends
upon the conditions governing their operation. The central proposition is that
technology can become a procedural safeguard only where its use is accompanied
by mechanisms capable of making the process traceable, authentic, transparent,
proportionate and accountable.
RESEARCH GAP
The rapid incorporation of technology into Indian
criminal procedure has already generated substantial legal scholarship. Recent
research has analyzed the statutory and evidential repercussions of the BNSS
and the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”), notably in relation to
electronic evidence, digital investigation, virtual proceedings and forensic
processes. The emerging scholarship therefore makes it difficult to sustain a
claim that the technological provisions of the BNSS remain completely unexplored.
The research gap lies elsewhere: in how these individual technological
mechanisms are conceptually connected to procedural safeguards and
constitutional accountability.
Existing scholarship has examined the importance of
electronic evidence and digital procedures under the BNSS, including e-FIRs,
electronic trials, chain of custody and the interaction between the BNSS and
BSA.[4]Other
recent work has focused more specifically on the evidentiary and forensic
dimensions of digital criminal justice, including authentication,
certification, and chain of custody and the institutional limitations of
forensic infrastructure.[5]Scholarship
has also considered electronic records and video conferencing in relation to
efficiency, summary trials, access to justice and due process.[6]Further
literature has examined digitalisation from the perspective of prosecution,
witness protection, search and seizure, and investigative powers.[7]
These studies provide an important foundation, but
they predominantly examine particular technological mechanisms, evidentiary
questions, institutional challenges or efficiency implications. Even where
procedural safeguards are discussed, they are generally considered in relation
to the specific mechanism under examination. This paper approaches the problem
differently. It asks whether these apparently separate mechanisms can be
evaluated through a single procedural-safeguard framework. It proposes that technology
should be treated as a procedural safeguard only where its operation satisfies
five interconnected requirements: traceability, authenticity, transparency,
proportionality and accountability.
The paper's contribution is consequently not another
catalogue of BNSS technology provisions. It examines the relationship between
technological capacity and procedural protection across the criminal-procedure
lifecycle. It further addresses questions that arise when technology fails,
when the State possesses substantially greater technological resources than the
accused, and when digital criminal records continue to affect an individual
after the proceedings have legally concluded.
The research thus shifts the inquiry from “What has
BNSS digitised?” to “Under what conditions does digitisation protect procedural
rights?” This distinction forms the basis of the paper's proposed Digital
Procedural Safeguard Framework.
RESEARCH QUESTIONS
The following research questions serve as the basis
for this study:
1.
In what ways has
technology been integrated into the various stages of criminal procedure in the
Bharatiya Nagarik Suraksha Sanhita, 2023?
2.
To what extent can
electronic processes under the BNSS strengthen traceability, authenticity,
transparency and accountability within criminal proceedings?
3.
What procedural
and constitutional concerns arise from increased reliance on digital
investigation, electronic evidence and virtual proceedings?
4.
Does electronic communication necessarily
ensure meaningful notice, participation and access to justice?
5.
How should privacy
and proportionality operate when digital investigation enables access to large
volumes of personal and third-party information?
6.
What procedural consequences should follow
where a technological system fails, electronic evidence is compromised, or
digital communication does not achieve its intended procedural purpose?
7.
Does the
technological advantage available to State agencies create a meaningful
imbalance between the prosecution and the accused, and if so, what safeguards
can address that imbalance?
8.
How should
criminal justice systems respond to the continued digital existence of
allegations and criminal records after proceedings have legally concluded?
9.
Under what
conditions can technology move beyond administrative efficiency and operate as
a genuine procedural safeguard?
OBJECTIVES
The objectives of this research are:
1.
Examine the
principal technological mechanisms incorporated into the BNSS and their
relationship with criminal procedural rights.
2.
Analyze whether
electronic processes improve the traceability, authenticity, transparency,
proportionality and accountability of criminal procedure.
3.
Examine the
constitutional implications of digital criminal justice with particular
reference to fairness, privacy, due process and meaningful participation.
4.
Evaluate the
procedural implications of electronic evidence, digital investigation and
virtual proceedings.
5.
Develop standards for addressing technological
failure without unfairly transferring institutional failures onto the
individual.
6.
Examine the
problem of digital equality of arms between State agencies and accused persons.
7.
Analyse the
continuing digital consequences of criminal proceedings after acquittal,
discharge, quashing or other final outcomes.
8.
Develop a Digital
Procedural Safeguard Framework capable of evaluating technology across the
criminal-procedure lifecycle.
9.
Propose practical safeguards that can enable
technological efficiency while preserving procedural fairness and
constitutional accountability.
HYPOTHESIS
The present study proceeds on the hypothesis that:
According to
the Bharatiya Nagarik
Suraksha Sanhita, 2023, "technological incorporation into criminal
procedure can increase procedural safeguards
only provided it is complemented
by suitable measures of traceability, authenticity, transparency, proportionality, and accountability."
The hypothesis is premised on the distinction between
technological efficiency and procedural fairness. The mere conversion of a
physical process into an electronic one does not necessarily make the process
more accessible, reliable or constitutionally compliant. Electronic
communication may fail to provide meaningful notice, digital evidence may
require independent verification, virtual proceedings may not always ensure
effective participation, and expanded investigative access to personal data may
create proportionality concerns.
The study therefore proceeds on the assumption that
technology becomes a genuine procedural safeguard only when the legal system
simultaneously provides the individual with an effective ability to know,
participate, verify, challenge and obtain a remedy in relation to
technologically mediated criminal processes.
RESEARCH METHODOLOGY
In order
to investigate the
role of technology in
criminal procedure under the Bharatiya
Nagarik Suraksha Sanhita, 2023,
this study adopts
a doctrinal, analytical,
and critical research technique.
The Constitution of India, the BNSS, the Bharatiya
Sakshya Adhiniyam, 2023, the Information Technology Act, 2000, the Digital
Personal Data Protection Act, 2023, and pertinent Supreme
Court and High Court rulings are among the primary legal materials used in
this doctrinal study. Statutory rules, procedural directions and
relevant institutional materials concerning technology-enabled criminal
proceedings are also considered where they directly inform the operation of the
statutory framework.
The research is analytical because it examines the
relationship between technological mechanisms and established principles of
criminal procedure, fairness, due process, privacy, proportionality, meaningful
participation and the ability to challenge State action. Judicial decisions are
analysed not merely for their outcomes but for the procedural principles that
can be applied to digital criminal processes.
The study is further critical in examining whether
technological mechanisms under the BNSS actually perform a safeguarding
function or merely improve procedural administration. For this purpose, the
paper develops five analytical criteria which is traceability, authenticity,
transparency, proportionality and accountability. Secondary materials,
including books, scholarly articles, legal commentaries, research papers and
institutional publications, are used to identify existing academic approaches
and locate the present study within the developing literature on digital
criminal justice.
The scope of the research is confined primarily to the
procedural implications of technology under the BNSS. The paper neither conducts an empirical evaluation of technology infrastructure nor makes unsubstantiated assertions about the actual performance of certain
organizations.
CONCEPTUALISING
DIGITAL PROCEDURAL SAFEGUARDS
The incorporation of technology into criminal
procedure requires a distinction between a digital procedural mechanism and a
digital procedural safeguard. A mechanism determines how a procedural act is
performed; a safeguard performs the additional function of controlling the
exercise of State power and protecting the procedural position of the person
affected by that power. When assessing the technological architecture presented by the Bharatiya
Nagarik Suraksha Sanhita, 2023 ("BNSS"),
this distinction is crucial.
The BNSS contains several provisions through which
technology becomes part of ordinary criminal procedure. Information about a cognizable offense may be communicated electronically under Section 173, subject to the legal necessity for authentication. Electronic summons service and associated procedures are recognized
in Sections 63 to 71. Section 193
incorporates requirements concerning the custody of electronic devices and
electronic communication of specified investigative information. Section 530
further provides for trials, inquiries and proceedings to be held in electronic
mode.[8]These
provisions demonstrate that digital technology is intended to operate across
multiple stages rather than as an isolated procedural convenience.
The constitutional significance of this transformation
must nevertheless be assessed against established principles of procedural
fairness. In Maneka Gandhi v. Union of India, the Supreme Court rejected a
narrow understanding of procedure under Article 21 and held that the procedure
affecting personal liberty must satisfy requirements of fairness and
reasonableness.[9]The
principle is particularly relevant where technology changes the manner in which
a person receives notice, participates in proceedings, encounters State
investigative power or challenges material relied upon against them.
Similarly, the recognition of privacy as a fundamental
right in Justice K.S. Puttaswamy (Retd.) v. Union of India becomes significant
where digital criminal investigation permits access to extensive quantities of
personal information.[10]The
technological ability to collect or process information cannot, by itself,
determine the constitutional legitimacy of such access. Questions of purpose,
necessity, proportionality and safeguards remain relevant.
A.
Traceability
Traceability
concerns whether a procedural event can subsequently be reconstructed. A
traceable system should permit identification of relevant procedural actions,
their sequence and, where appropriate, the authority responsible for them.
Electronic records can potentially strengthen traceability by creating
time-stamped and reproducible procedural histories.
However,
traceability is meaningful only where the underlying record is reliable. A
detailed digital trail of an unreliable or improperly generated record cannot
itself establish procedural legitimacy.
B.
Authenticity
Authenticity
concerns whether the digital record or process can be reliably verified.
Electronic evidence raises particular concerns because digital information may
be copied, modified, transferred or reproduced without obvious physical
indicators of alteration. In order to demonstrate the integrity and evidentiary validity of electronic
records, the statutory framework governing them becomes crucial.
Authenticity
must also be distinguished from truth. Establishing that a digital record is
genuine does not automatically establish that every factual proposition
contained within it is true. The former is a question of reliability and
provenance; the latter remains a matter for evidentiary evaluation.
C.
Transparency
Transparency
requires that the affected person be able to understand the procedural action
sufficiently to exercise the corresponding legal right. Consequently,
electronic transmission cannot always be equated with meaningful notice, just
as virtual presence cannot automatically be equated with meaningful
participation.
Transparency
therefore includes accessibility, comprehensibility, disclosure and a realistic
opportunity to respond or challenge.
D.
Proportionality
Proportionality
operates as a limiting principle on the expanded informational capacity of
digital criminal justice. A digital device may contain substantially more
information than is relevant to a particular investigation. Therefore, the
question is not just whether information is technically accessible, but also
whether the legitimate purpose for which it is sought justifies the level of
access.
This
dimension connects digital criminal procedure with constitutional privacy
principles and prevents technological convenience from becoming a substitute
for legal necessity.
E.
Accountability
Accountability
asks who bears responsibility for a digital procedural action and what remedy
exists when the process fails. A technological system cannot become an
independent bearer of legal responsibility. Decisions concerning its adoption,
operation, preservation and correction remain attributable to institutions and
authorized persons. This becomes particularly important where technological
failure results in missed notice, loss of evidence, interruption of proceedings
or inaccurate digital records.
The
five dimensions are interdependent. Traceability without authenticity may
produce a detailed but unreliable record; authenticity without transparency may
leave the affected person unable to challenge it; transparency without
proportionality may expose excessive personal information; and all four without
accountability may leave procedural failure without an effective remedy.
DIGITAL INITIATION AND ELECTRONIC
PROCESSES UNDER THE BNSS
The first point at which technology encounters an
individual's rights within the criminal process is often the initiation and
communication of proceedings. The BNSS significantly expands the role of
electronic communication at this stage. Section 173 permits information
relating to a cognizable offence to be given by electronic communication, while
Sections 63 to 71 provide for electronic modes concerning summons and their
service.[11] These provisions show why digital
transmission cannot be automatically
equated with procedural compliance, but they also have the ability to lower administrative and
geographical barriers.
A.
Electronic
Information and the Digital Initiation of Criminal Process
Section
173 permits information relating to a cognizable offence to be communicated
electronically, with the informant required to authenticate it within the
statutory period.[12]The provision can make the
first point of contact with the criminal justice system more accessible,
particularly where physical presence at a police station presents practical
difficulties.
Its
significance, however, extends beyond convenience. Registration of criminal
information can itself have serious consequences for individuals. The
constitutional importance of timely registration is reflected in Lalita Kumari
v. Government of Uttar Pradesh, where the Supreme Court held that registration
of an FIR is mandatory where information discloses a cognizable offence,
subject to the limited circumstances in which a preliminary inquiry is
permissible.[13]The BNSS retains this basic
procedural architecture while introducing an electronic route for
communication.
The
digital format therefore creates a new accountability question that what
happens between electronic submission and formal registration? A technically
successful transmission should not permit an electronically submitted complaint
to disappear into an administrative system without a traceable outcome. A
meaningful digital process should permit the procedural history of the
information to be reconstructed from receipt and authentication to
registration, allocation, investigation and communication of subsequent
developments. This paper describes this as the Chain of Digital Accountability.
B. Electronic Summons and Meaningful
Notice
The
BNSS also permits electronic service of summons and related processes. Sections
63 to 71 establish the statutory framework for summons, including electronic
modes of service and the preservation of proof of service.[14]The
principal advantage is obvious that electronic communication can substantially
reduce delay and make service less dependent upon physical delivery.
Nevertheless,
transmission and notice are not identical concepts. A summons' legal aim is to
give the individual in question enough information to fulfilll the legal
responsibility placed upon them, not just to get a message out of a
court-controlled system.
This
distinction becomes particularly important when different statutory notices
carry different legal consequences. In proceedings concerning Section 35 of the
BNSS, the Supreme Court has specifically cautioned against treating electronic
communication under the general electronic-proceedings provision as
automatically authorising service of a Section 35 notice through WhatsApp or
other electronic modes. The Court emphasised that the statutory requirements
governing such notice cannot be circumvented merely by relying upon electronic
modes.[15]
The
principle emerging from this distinction may be termed Meaningful Notice that
the reliability required for electronic service should correspond to the legal
consequence attached to the communication.
C. The Graduated Reliability Principle
This
leads to a further proposition of this paper, the Graduated Reliability
Principle. Not every electronic communication should require an identical level
of authentication, proof of receipt and verification. The greater the
procedural consequence of non-compliance, the stronger the justification for
requiring reliable proof that the communication reached the intended recipient
in a legally sufficient manner.
For
example, an informational communication may require less rigorous verification
than a notice where failure to respond may affect liberty or result in
significant procedural consequences. This approach prevents the language of
technological efficiency from obscuring differences in legal consequence.
D. Applying the Five-Part Framework
The
digital initiation and service mechanisms under the BNSS can consequently be
assessed through the proposed framework:
1. Traceability-
electronic submissions and service should leave a verifiable procedural trail.
2. Authenticity-
the system should establish that the communication originates from the
authorised source and reaches the intended recipient through a legally
recognized channel.
3. Transparency-
the person should be able to understand what has been communicated and what
action is required.
4. Proportionality-
the system should not demand unnecessary personal information merely to
facilitate digital communication.
5. Accountability-
responsibility should remain identifiable where information is not registered,
service fails or an electronic record is incorrectly maintained.
The
significance of these requirements is that they transform electronic
communication from a question of speed into a question of procedural
reliability. The objective is not to reject
digital processes because they introduce new risks, but to ensure that those
risks do not undermine the procedural rights that the underlying physical
process was intended to protect.
DIGITAL INVESTIGATION AND THE CHAIN
OF DIGITAL ACCOUNTABILITY
The evidential relationship between the State and the
individual is fundamentally altered when technology is used into criminal
investigations. A standard investigation may involve physical documents,
objects and witnesses whose collection and handling can often be observed or
reconstructed through comparatively tangible records. Digital investigation is
different. A single device may contain vast quantities of communications,
photographs, location information, financial records, browsing history and information
belonging to persons other than the accused. The investigative value of such
material is substantial, but so is the possibility of over-collection,
alteration, loss or misuse.
The BNSS recognises this changed investigative
environment. Section 193 requires the police report to contain, among other
matters, information concerning the sequence of custody of an electronic device
where such device is relevant to the investigation.[16] This requirement is important because it shifts the
emphasis from the manufacture of a digital device to the
device's procedural history and the data it contains.
A.
From
Chain of Custody to Chain of Digital Accountability
Traditional
chain-of-custody principles primarily ask whether an item produced before the
court is the same item that was collected during investigation and whether its
integrity has been maintained. In digital investigations, that inquiry remains
essential, but it is insufficient by itself.
The
more appropriate question is not merely that who possessed the device? It is
also that who accessed the information, for what purpose, through what process,
what was extracted, what was retained, and what was ultimately disclosed?
This
paper therefore proposes the concept of a Chain of Digital Accountability. It
consists of five interconnected stages:
1. Seizure
- identification and lawful acquisition of the device or digital material;
2. Preservation
- protection against alteration, deletion or contamination;
3. Acquisition
- extraction or copying of relevant information through an identifiable
process;
4. Analysis - examination of the information,
including the tools and methodology used where legally relevant; and
5. Disclosure - making relevant material
available in a manner that permits meaningful scrutiny and challenge.
The
intention is not to impose an artificial requirement that all technical
operations be included in the trial record. Rather, the objective is to ensure
that where digital evidence materially affects an individual's liberty, its
procedural history remains sufficiently reconstructable to permit judicial
scrutiny.
B.
Authenticity
Is Not the Same as Truth
The
distinction between authenticity and truth becomes particularly important in
digital investigations. The Supreme Court's jurisprudence on electronic records
has consistently treated the proof of electronic material as a matter requiring
compliance with the applicable evidentiary framework. Arjun Panditrao Khotkar
v. Kailash Kushanrao Gorantyal, while interpreting Section 65B of the Indian
Evidence Act, distinguished the original electronic record from computer
outputs and emphasised the statutory requirements governing proof of electronic
records.[17]The BSA has the statutory
framework for electronic and digital records was later reorganized, but the
fundamental issue is still that a court must be able to ascertain the nature of
the digital material and how its evidentiary status is formed before assessing
what it establishes.
Accordingly,
a hash value, metadata, forensic image or certificate may assist in
establishing integrity or provenance, but none should be treated as
independently establishing the truth of the factual proposition for which the
material is relied upon. Authenticity protects the reliability of the record;
substantive evidentiary evaluation determines its significance.
C.
Digital
Investigation and Proportionality
The
capacity of digital forensic tools also creates a privacy problem that is
qualitatively different from many conventional searches. A mobile phone may
contain information that is entirely unrelated to the suspected offence and may
include communications and personal information concerning family members,
colleagues or other third parties.
The
constitutional right to privacy therefore imposes an important constraint upon
digital investigation. In K.S. Puttaswamy (Retd.) v. Union of India, the
Supreme Court recognised privacy as a constitutionally protected right and
applied proportionality to restrictions upon that right.[18]Subsequent
Supreme Court decisions have articulated proportionality through considerations
including legitimate purpose, suitability, necessity and balancing of competing
interests.[19]
The
implication for digital investigation is that the ability to access information
cannot itself constitute the justification for accessing it. Investigative
relevance should remain connected to the purpose for which access is
authorised. Where a device contains information substantially beyond that
purpose, appropriate safeguards concerning search, review, retention and
disclosure become necessary.
D.
Disclosure
and the Accused's Ability to Challenge
Digital
investigation also changes the meaning of disclosure. Providing the accused
with a large volume of electronic material does not necessarily constitute
meaningful disclosure if the material is technically inaccessible, poorly
organised or impossible to understand without specialised tools.
The
procedural value of disclosure lies in enabling the accused to know the
material relied upon and to challenge it effectively. Consequently, the Digital
Equality of Arms principle developed in this paper requires attention not
merely to whether electronic material has technically been supplied, but
whether the accused has a reasonable opportunity to inspect, understand and
contest material capable of affecting the outcome.
This
is particularly important where the prosecution possesses specialised forensic
tools, trained personnel or proprietary software that the accused cannot
reasonably access. The State's technological advantage should not become an
evidentiary advantage insulated from meaningful scrutiny.
E.
The
Five-Part Application
Digital
investigation can therefore be evaluated through the proposed framework:
1. Traceability-
the history of seizure, preservation, acquisition, analysis and disclosure
should be reconstruct able.
2. Authenticity-
the integrity and provenance of electronic material should be capable of
verification.
3. Transparency-
the accused should have sufficient information to understand and challenge
material relied upon.
4.
Proportionality- In order to prevent needless information intrusion,
investigative access must stay linked to a valid aim.
5. Accountability-
responsibility for investigative decisions and failures should remain
attributable to identifiable authorities.
The
significance of the Chain of Digital Accountability is ultimately that it
places a procedural obligation alongside technological capability. The more
powerful the State's capacity to discover digital information becomes, the
greater the need for a corresponding capacity to explain, verify, limit and
account for its use.
Digital
investigation can consequently operate as a procedural safeguard when its
technological power is accompanied by institutional discipline. Without that
discipline, the same technology that preserves evidence and improves
investigative accuracy may also enable indiscriminate data collection, obscure
the investigative process and make
meaningful challenge more difficult.
ELECTRONIC EVIDENCE AND DATA
MINIMISATION
The increasing dependence upon digital investigation
necessarily places electronic evidence at the centre of contemporary criminal
procedure. The Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) expressly recognises
electronic and digital records within the evidentiary framework. Section 61
provides that an electronic or digital record cannot be denied admissibility
merely because it is electronic or digital, subject to the requirements of
Section 63. Section 63 establishes the statutory conditions governing the admissibility
of electronic records produced from computers and communication devices.[20]
This statutory recognition is important, but
admissibility should not be confused with reliability or relevance. A digital
record may satisfy the conditions necessary for admission while still requiring
careful judicial evaluation of what it establishes. The distinction between
authenticity, admissibility and probative value is therefore central to a
rights-sensitive digital criminal process.
A.
Authenticity,
Integrity and Evidentiary Value
Electronic
evidence differs from many conventional forms of evidence because its
reproduction does not necessarily result in a visibly distinguishable physical
copy. Emails, messages, server records, location information, photographs,
audio files and other digital material can exist across multiple systems and
devices. The BSA's definition of “document” expressly includes electronic and
digital records such as emails, server logs, computer records, smartphone data,
messages and locational evidence.[21]
The
legal question is therefore not simply whether a digital record exists, but
whether the court can sufficiently determine its provenance and integrity. This
reinforces the Chain of Digital Accountability developed in the preceding
section. Preservation, extraction and production must remain capable of
explanation where the reliability of the material is disputed. At the same
time, authenticity should not be allowed to become a substitute for substantive
evaluation. Digital evidence should therefore be assessed through ordinary
principles of relevance, reliability and proof in addition to the requirements
specifically applicable to electronic records.
B.
Data
Minimisation as a Procedural Requirement
The
greater concern arises before the digital material reaches the courtroom. The
same device that contains potentially relevant evidence may also contain
enormous quantities of intensely personal and irrelevant information.
A
smartphone can simultaneously contain evidence relating to an alleged offence
and information concerning health, finances, family relationships, professional
communications, photographs, location history and communications with persons
who have no connection with the investigation.
The constitutional privacy framework provides an important limitation.
Justice K.S. Puttaswamy (Retd.) v. Union of India recognised privacy as a
fundamental right and connected it with dignity, autonomy and liberty.[22]Where digital investigation
interferes with privacy, the existence of investigative utility must therefore
be considered alongside the legality and necessity of the interference.
This
paper accordingly proposes Data Minimisation as a procedural principle of
digital investigation. It does not require investigators to ignore potentially
relevant information. Rather, it requires the scope of collection, examination,
retention and disclosure to remain connected to the legitimate purpose for
which the investigative power is exercised.
C.
Disclosure
Must Be Usable
Digital
evidence also changes the nature of disclosure. A prosecution may technically
provide thousands of electronic files to the accused while still making
effective scrutiny difficult. File volume, unfamiliar formats, inaccessible
software, poor organisation or the absence of relevant metadata may transform
formal disclosure into an ineffective procedural exercise.
The
objective of disclosure is not merely to transfer data. Its purpose is to give
the accused a significant chance to comprehend and contest evidence used by the
prosecution.
This connects electronic evidence directly with Digital Equality of Arms. The
same concern applies to exculpatory material.
D.
Retention
and the Lifecycle of Digital Evidence
The
evidentiary lifecycle does not necessarily end when material is admitted or
rejected at trial. Digital material may continue to exist across investigative
databases, court systems and institutional archives. This creates a distinction
between retention for a legitimate legal purpose and indefinite exposure or
unrestricted accessibility.
The
distinction becomes particularly significant when a proceeding concludes
without conviction. A criminal justice system may have legitimate reasons to
preserve an underlying judicial record while having substantially weaker
reasons to permit unrestricted dissemination of every associated personal
detail. This issue is developed further in the paper's discussion of the
digital afterlife of an accused person.
The
central proposition emerging from this analysis is therefore-
“Authenticity
protects the reliability of what the State uses; proportionality protects the
individual from what the State does not need to use.”
Electronic
evidence can consequently strengthen criminal justice only when the legal
system regulates not merely whether digital information can be used, but also
how much information is collected, how its integrity is established, how it is disclosed, and what happens to it after its
procedural purpose has ended.
VIRTUAL PROCEEDINGS AND MEANINGFUL
PARTICIPATION
The use of audio-video technology in criminal
proceedings represents one of the most visible forms of digital transformation
under the BNSS. Section 530 expressly provides that trials, inquiries and
proceedings may be held in electronic mode.[23]The provision has the
potential to reduce geographical barriers, facilitate the appearance of persons
who cannot conveniently attend court physically and reduce delays associated
with transporting accused persons, witnesses or experts. The High Court of Uttarakhand's
2025 rules, for example, recognise electronic hearings, video-conferencing
appearances, recording of witness testimony and several other procedural stages
through audio-video means.[24]
Yet the legal significance of virtual proceedings
cannot be assessed solely by asking whether a person was technically present on
screen. The
more important question is whether the electronic mode preserves the procedural
function of physical participation.
A.
From
Physical Presence to Functional Equivalence
The
Supreme Court addressed the validity of video-conferencing for recording
evidence in State of Maharashtra v. Dr. Praful B. Desai, holding that recording
evidence through video-conferencing could satisfy the requirement of the
witness being present before the court where the essential features of
examination and cross-examination were preserved.[25]The
decision demonstrates that physical presence is not necessarily the only means
through which a procedural function can be achieved.
The
principle can be extended into what this paper terms Functional Equivalence-
“Where
criminal procedure is conducted through electronic means, the electronic
process should preserve the substantive procedural function of its physical
counterpart.”
Functional
equivalence does not require technological and physical proceedings to look
identical. It requires them to provide materially comparable procedural
opportunities.
B.
Virtual
Presence Is Not Necessarily Meaningful Participation
A
person may technically appear through video conference while experiencing
interruptions, inadequate audio, limited visibility or an inability to
communicate privately with counsel. These circumstances demonstrate why virtual
presence and meaningful participation must remain conceptually distinct.
The
distinction is particularly important for an accused person. Criminal
proceedings may involve questions of liberty, evidence, identification,
examination of witnesses and legal submissions. If technological conditions
prevent the accused from following proceedings or communicating effectively
with counsel, the formal availability of a video link cannot by itself
establish meaningful participation.
The
same concern applies to witnesses. A video link may make testimony
geographically possible, but the integrity of testimony may depend upon the
witness being able to hear questions clearly, understand objections and respond
without technological distortion.
C.
Digital
Evidence and the Right to Challenge
Virtual
proceedings also affect the presentation and examination of electronic
evidence. The Supreme Court's proceedings in CBI v. Mohd. Yasin Malik
illustrate that technological methods may be used to facilitate participation
and transmission of material in proceedings conducted through video conference.
The Court dealt with the appearance of the respondent through video conference
and procedural arrangements surrounding the proceedings.[26]
The
broader principle is that technology should facilitate, rather than diminish,
the opportunity to confront and challenge material relied upon in a criminal
proceeding. A digital document displayed on a screen, for example, should
remain capable of being identified, examined and questioned in accordance with
the applicable evidentiary rules.
Thus,
the question should not be whether the court can display evidence
electronically. It should be whether the parties have a realistic opportunity
to examine and contest it.
D.
Technological
Failure During Material Proceedings
The
possibility of technological failure introduces another procedural concern.
Connectivity may be interrupted during the examination of a witness, an
accused's response, the presentation of evidence or a material submission. Not
every interruption will affect the fairness of the proceeding. However, where
the interruption occurs at a procedurally significant moment, simply continuing
the hearing may create an incomplete or unreliable record.
The
court should therefore distinguish between technical inconvenience and material
procedural prejudice. Where the latter occurs, appropriate remedies may include
repetition of the affected portion, adjournment, restoration of an opportunity
to cross-examine or another effective procedural cure.
E.
Applying
the Five-Part Framework
Virtual
proceedings illustrate the operation of the five dimensions particularly
clearly:
1. Traceability-
the electronic proceeding should generate a reliable record of what occurred.
2. Authenticity- recordings and electronic
documents should remain capable of verification.
3. Transparency-
participants should be able to understand the proceeding and its procedural
consequences.
4. Proportionality-
technology should be used to facilitate participation without creating
unnecessary restrictions or surveillance.
5. Accountability-
responsibility should be identifiable where technological conditions materially
compromise participation.
Technology
can expand access to criminal courts, but access is meaningful only when
accompanied by effective participation. A video link that technically connects
an accused to a courtroom but prevents meaningful communication with counsel or
effective engagement with evidence may satisfy connectivity while failing the
deeper requirement of procedural fairness. The appropriate constitutional
approach is consequently one of functional equivalence rather than
technological substitution.
WHEN TECHNOLOGY FAILS - PROCEDURAL CONSEQUENCES OF DIGITAL FAILURE
The effectiveness of a digital criminal justice system
cannot be assessed only by examining situations in which technology operates
successfully. A procedural system that increasingly depends upon electronic
communication, digital evidence and virtual proceedings must also determine who
bears the consequences when the technology fails. Connectivity failures,
corrupted files, inaccessible platforms, lost electronic records, defective
transmission and technical incompatibility can affect the ability of an accused,
witness, victim or court to perform a procedural act. The legal system must
therefore distinguish between an ordinary technical inconvenience and a
technological failure capable of producing procedural prejudice.
This issue assumes greater significance because
digital systems are increasingly becoming institutional infrastructure rather
than optional conveniences. The Supreme Court's 2026 National Conference on
Judicial Process Re-engineering and Digital Transformation specifically
emphasised robust digital preservation, disaster-recovery mechanisms,
standardised electronic-evidence management and institutional control over
technological transformation.[27]
A.
Technology
Failure as a Procedural Event
A
failure in a digital criminal process may occur at several stages. An
electronic summons may not reach its intended recipient; a virtual hearing may
be interrupted; a digital file may become inaccessible; electronic evidence may
be overwritten before preservation; or a system-generated record may contain an
error.
The
important question is whether the failure has merely inconvenienced the
proceeding or has altered a person's ability to exercise a procedural right.
The
Madhya Pradesh High Court's judicial training material concerning electronic
evidence specifically identifies preservation during trial, CCTV, call-detail
records, mobile data and compliance with Sections 193, 230 and 503 BNSS as
connected issues requiring judicial attention.[28]This
reflects the broader point that preservation is itself a procedural
responsibility.
B.
Institutional
Technological Responsibility
This
paper proposes the principle of Institutional Technological Responsibility-
“Where
a criminal procedure is conducted through a technological system selected,
controlled or mandated by the State or court, a person should not ordinarily
suffer an adverse procedural consequence merely because that system failed,
unless the failure is attributable to that person or the governing law
expressly provides otherwise.”
The
principle does not create immunity from procedural requirements. A person who
deliberately refuses to use an available system, provides false information or
causes the technical failure cannot automatically rely upon technological
failure as a defence.
The
Supreme Court has also recently emphasised, in interpreting electronic
communication under the BNSS, that statutory restrictions on electronic modes
cannot simply be bypassed in the name of technological convenience. The Court
linked those restrictions to the protection of Article 21.[29]
C.
The
Technological Attribution Test
To
determine whether a technological failure should affect procedural rights, this
paper proposes a five-stage Technological Attribution Test-
1. Identify
the failure - What exactly failed?
2. Identify
control - Which institution or participant controlled the relevant
technological system?
3. Assess
reasonable accessibility - Could the affected person reasonably have avoided or
corrected the failure?
4. Determine
material prejudice - Did the failure affect a substantive procedural
opportunity?
5. Identify
the cure - Can the prejudice be effectively remedied?
This
approach prevents every technical problem from becoming a ground for reopening
proceedings while ensuring that material technological failures receive
appropriate procedural attention.
D.
Irreversible
Digital Failure
Some
technological failures cannot be completely cured. Electronic material may be
automatically overwritten; a corrupted recording may not be recoverable;
metadata may be lost; or a relevant communication may never have been
successfully transmitted.
In
such circumstances, the legal response cannot be based upon the assumption that
every digital loss is equivalent to the loss of a physical document. The court
may need to consider whether the unavailable material was potentially material, whether its absence prejudices a party and
whether alternative evidence can adequately address the loss.
DIGITAL EQUALITY OF ARMS AND
CONSTITUTIONAL CONCERNS
The digitalisation of criminal procedure does not
distribute technological capacity equally among the participants in a criminal
proceeding. Investigating agencies and prosecution authorities may have access
to forensic laboratories, specialised software, centralised databases, trained
technical personnel and interconnected criminal-justice platforms. An accused
person, particularly one without substantial financial or technical resources,
may not possess comparable capacity to understand, verify or challenge
technologically generated material. The resulting concern is not whether the
State and accused must possess identical technology, but whether the accused
retains a meaningful ability to contest the exercise of State power.
This paper therefore uses the expression Digital
Equality of Arms to describe the procedural condition in which technological
advantages available to the State do not become an unreviewable evidentiary or
investigative advantage.
A.
Technological
Asymmetry and the Accused
The
problem begins with the nature of digital evidence itself. A prosecution may
rely upon forensic extraction, location records, device data, server
information or other technically generated material that an accused may be
unable independently to reproduce or interpret. Formal disclosure of such
material may therefore be insufficient if the accused cannot reasonably
understand its origin, methodology or significance.
The
requirement of equality of arms does not mean that every accused must be
provided with the same technological infrastructure available to the State.
Rather, it requires procedural arrangements capable of ensuring that
technological complexity does not prevent meaningful challenge. This is
particularly important where the State's investigative power extends to
personal digital devices. Section 94 of the BNSS permits a court or police
officer, subject to the statutory requirements, to require production of
documents, electronic communications and communication devices likely to
contain digital evidence.[30]The breadth of such material
makes judicial supervision particularly important.
In
October 2025, the Supreme Court clarified the procedural handling of digital
devices produced under Section 94. Where an investigating officer directs
production of a digital device, the direction is to produce the device before
the jurisdictional court; the court is then to hear the concerned party and
advocate regarding objections to the information sought from the device.[31]This approach is significant
because it places an element of judicial scrutiny between investigative access
and unrestricted examination of potentially extensive personal information.
B.
Articles
14 and 21 in the Digital Context
The
constitutional framework reinforces this requirement. Article 14's guarantee
against arbitrary State action and Article 21's protection of personal liberty
operate together to require fairness in criminal procedure. Maneka Gandhi v.
Union of India established that procedure affecting personal liberty cannot be
arbitrary and must satisfy standards of fairness and reasonableness.[32]
Digital
criminal procedure does not create an alternative constitutional standard. If
anything, the increased informational and investigative capacity of the State
makes the existing standards more significant. The concern can be expressed
through a simple proposition- “Digitisation should expand the State's capacity
to discover evidence without diminishing the accused's capacity to challenge
it.”
This
requires courts to examine not merely whether digital material has been
collected lawfully, but whether the accused has received a meaningful
opportunity to understand and contest material upon which the prosecution
relies.
C.
Technology
as a Constraint on State Power
Technology should not be viewed exclusively as an instrument that
strengthens the prosecution. Properly designed systems may also constrain State
action.
Section 105 of the BNSS, for example, requires the process of search and
seizure to be recorded through audio-video electronic means and transmitted to
the Magistrate.[33]Such
recording can create an objective procedural record against which disputed
accounts of the search may subsequently be examined.
Similarly, the requirement in Section 193 concerning the sequence of
custody of an electronic device can create an evidentiary trail capable of
subjecting investigative handling to judicial scrutiny.[34]
D. Digital
Equality of Arms Framework
The
analysis supports six practical requirements-
1. Meaningful
disclosure - relevant digital material must be provided in a usable form.
2.
Technical
understandability- The accused should be given a fair chance to comprehend the creation or interpretation of important digital content.
3. Opportunity
for verification - where authenticity or methodology is disputed, meaningful
verification should be possible.
4. Preservation
of potentially exculpatory material - digital evidence should not be preserved
solely according to its apparent usefulness to the prosecution.
5.
Reasonable technical assistance -
appropriate cases may require access to
technical expertise necessary to challenge complex evidence.
6.
Protection against
excessive data access - investigative technology should not expose information
beyond what is reasonably necessary for the legitimate purpose.
These requirements do not seek to obstruct legitimate
investigation. They seek to ensure that investigative sophistication does not
make judicial scrutiny merely theoretical.
THE DIGITAL AFTERLIFE OF AN ACCUSED
PERSON
The conclusion of proceedings is typically seen in
criminal procedure as the end of the immediate procedural interaction between
the State and the accused. An FIR, charge-sheet, judgment, order, news
report or database entry may remain searchable long after the legal proceedings
have concluded. The result is a distinction between legal finality and digital
permanence: a proceeding may be legally over while its digital representation
continues to affect the person concerned.
This problem is particularly significant where the
final outcome is an acquittal, discharge or quashing. A person may therefore
experience what this paper describes as a digital afterlife of accusation the
continued association of an individual's name with criminal
allegations even after the legal process has moved beyond those allegations.
A.
Legal
Finality and Digital Persistence
Whether
or not criminal records should be erased is not the only issue. Criminal
justice institutions may have legitimate reasons to preserve judicial and
investigative records. The more specific question is whether permanent
name-based searchability and unrestricted public accessibility are necessary
for retention.
The
distinction between retention and accessibility is increasingly recognised in
Indian judicial discourse. In Laksh Vir Singh Yadav v. Union of India, decided
by the Delhi High Court in May 2026, the Court considered petitions concerning
de-indexing and masking of judicial records and digital content, including
cases involving acquittal, discharge and quashing. The Court treated
informational privacy, dignity and the practical effect of digital
searchability as relevant considerations, while also recognising the competing
importance of open justice and public interest.[35]
This
distinction permits four different responses to digital criminal information:
1. Erasure
- removal of the underlying information;
2. Masking
- removal or concealment of identifying particulars;
3. De-indexing
- preventing name-based search results from directly locating the material
while retaining the source;
4. Restricted
accessibility - limiting access according to legitimate legal or institutional
purposes.
These
remedies should not be treated as interchangeable.
B.
The
Digital Closure Protocol
The
analysis supports the Digital Closure Protocol proposed in this paper. When
criminal proceedings legally conclude, digital systems should be capable of
recognising and accurately reflecting that conclusion.
The
protocol should involve:
1. identifying
the final legal outcome;
2. updating interconnected records;
3. assessing
the continuing legal purpose of retention;
4. assessing
the appropriate level of public accessibility;
5. providing
mechanisms for correction, masking or de-indexing where legally justified; and
6. preserving
the integrity of the underlying judicial record.
THE DIGITAL PROCEDURAL SAFEGUARD
FRAMEWORK
The preceding analysis demonstrates that the
technological provisions of the BNSS cannot be evaluated adequately by asking
whether a particular process has become electronic. Electronic initiation,
digital investigation, electronic evidence, virtual proceedings and digital
record management each alter the manner in which criminal procedure operates,
but their constitutional and procedural value depends upon the safeguards
accompanying their use. Therefore, the main contribution of this article is to
assess these mechanisms using a single Digital Procedural Safeguard
Framework that consists of five interrelated dimensions: accountability,
traceability, authenticity, transparency, and proportionality.
A. Traceability
Traceability
concerns whether the history of a procedural action can be reconstructed. In
digital criminal procedure, this includes identifying when information was
received, when an electronic process was issued or served, how a device was
handled, how evidence was extracted and what subsequent procedural actions
occurred.
Traceability
is particularly significant because digitisation can either strengthen or
weaken institutional visibility. A properly designed electronic system can
create a reliable audit trail; an inadequately designed system may instead
create an opaque administrative layer in which actions are difficult to
reconstruct.
B.
Authenticity
Authenticity
concerns whether the digital record or process can be verified. It requires
attention to provenance, integrity, preservation and the applicable evidentiary
requirements.
The
importance of authenticity is particularly evident in electronic evidence. A
digital record cannot acquire evidentiary reliability merely because it has
been generated electronically. Its origin, integrity and manner of production
may remain relevant to judicial assessment. The principle also applies to
electronic communication and virtual proceedings. The system should be able to
verify that an electronic record is authentic and hasn't been inappropriately
altered when a procedural consequence depends on it.
C. Transparency
Transparency
requires more than electronic availability. A procedural action must be capable
of being understood and challenged by the person affected by it.
This
principle underlies the distinction developed earlier between electronic
transmission and meaningful notice. Similarly, the concept of Functional
Equivalence requires virtual proceedings to preserve the substantive
opportunities associated with physical participation.
Transparency
therefore requires the system to answer practical questions: What has happened?
What information has been relied upon? What action is required from the
individual? What opportunity exists to challenge the action?
D. Proportionality
Proportionality
limits the use of technological capacity. Digital systems permit the State to
collect, connect and analyse substantially more information than may have been
practically accessible through conventional investigative methods.
This
is particularly significant in relation to digital devices. The presence of
potentially relevant information on a device does not mean that all information
contained on that device is equally relevant or necessary. The privacy
implications of digital investigation therefore require the State's
technological capacity to remain connected to a legitimate procedural purpose.
Data minimisation, limited retention and appropriate restrictions on access are
consequently not merely data-management principles. Within digital criminal
procedure, they become components of procedural proportionality.
E.
Accountability
Accountability
is the connecting element of the framework. A technological system cannot
itself bear constitutional responsibility. Responsibility remains with the
institutions and persons who authorise, operate, maintain and rely upon the
system.
This
becomes particularly important when technology fails. The Digital Failure
Safeguard developed in this paper proceeds from the principle that a person
should not ordinarily suffer an adverse procedural consequence merely because a
State-controlled or court-controlled technological system failed. The
appropriate response requires consideration of control, material prejudice and
available remedies.
Accountability
also extends beyond individual procedural events. Where a digital criminal
record fails to reflect an acquittal, discharge or other final outcome, the
system should provide a mechanism for correction or appropriate restriction.
This is the basis of the Digital
Closure Protocol.
FINDINGS
The preceding analysis establishes that the
technological transformation introduced by the BNSS presents both procedural
opportunities and new forms of procedural risk. The principal finding of this
study is that digitisation does not independently produce fairness. Its
contribution to criminal justice depends upon the legal and institutional
safeguards surrounding its operation.
1.
Digitalisation can
strengthen procedural traceability. Electronic communication, digital records
and electronic custody information can create a more reconstructable procedural
history. However, this advantage depends upon reliable audit trails and proper
institutional maintenance.
2.
Electronic
transmission cannot automatically be equated with meaningful procedural notice.
The legal significance of a communication depends upon the consequence attached
to it. This supports the Graduated Reliability Principle, under which greater
procedural consequences require correspondingly stronger standards of
authentication and proof of service.
3.
Digital
investigation expands both evidentiary capability and privacy risk. A single
device can contain extensive information unrelated to the offence under
investigation. Consequently, technological capacity must remain subject to
purpose limitation and proportionality.
4.
Authenticity and
truth remain distinct. Establishing the integrity or provenance of an
electronic record does not by itself establish the truth of the proposition
contained within it. Digital evidence therefore requires both technical
verification and ordinary judicial evaluation of relevance and probative value.
5.
Virtual presence
does not necessarily amount to meaningful participation. The procedural
function of physical participation must be preserved when proceedings are
conducted electronically. This is the basis of the paper's principle of
Functional Equivalence.
6.
Technological
inequality can affect the fairness of criminal proceedings. State agencies may
possess greater forensic and technological resources than an accused. The
appropriate response is not identical technological capacity, but a meaningful
opportunity for the accused to understand, verify and challenge technologically
generated evidence.
7.
Technological
failure must be treated as a procedural issue. Where a State-controlled
technological system prevents a person from exercising a procedural right, the
resulting prejudice should not automatically become that person's procedural
default. This supports the proposed Digital Failure Safeguard.
8.
Criminal procedure
can have consequences beyond legal finality. Digital records may continue to
associate an individual with criminal allegations even after acquittal,
discharge or quashing. The legal status of a proceeding should therefore be
capable of being accurately reflected within relevant digital systems.
RECOMMENDATIONS
Based on these findings, the study recommends the
following:
1.
Adopt uniform
digital procedural standards. Rules and institutional protocols should
incorporate the five requirements of traceability, authenticity, transparency,
proportionality and accountability into technology-enabled criminal processes.
2.
Establish
standardised digital audit trails. Significant electronic procedural actions
should generate verifiable records identifying the relevant action, time,
authorised user or institution and subsequent modification where applicable.
3.
Introduce
graduated standards for electronic service. The reliability and proof required
for electronic communication should correspond to the legal consequence
attached to the communication.
4.
Strengthen
preservation and disclosure of electronic evidence. Electronic material should
be preserved through reliable procedures, and disclosure should be sufficiently
organised and accessible to permit meaningful scrutiny by the accused.
5.
Incorporate a
Digital Failure Safeguard. Where a court or State-controlled technological
system fails, courts should consider attribution, material prejudice and
available remedies before imposing an adverse procedural consequence.
6.
Strengthen Digital
Equality of Arms. The accused should have a fair chance to comprehend and
contest the source, technique, and interpretation of any technologically
difficult evidence that significantly impacts the case.
7.
Apply data
minimization to digital investigation. With the proper restrictions about
irrelevant and third-party information, investigative access should stay
related to the lawful reason for which it is authorized.
8.
Establish a
Digital Closure Protocol. Legally significant outcomes such as acquittal,
discharge and quashing should be capable of being accurately reflected in
interconnected digital records, while distinguishing legitimate retention from
unrestricted public accessibility.
9.
Maintain
identifiable human responsibility. Technological systems should assist criminal
justice institutions without displacing institutional responsibility for
consequential procedural decisions or system failures.
The recommendations collectively support a broader
proposition: the objective of digital criminal justice should not be maximum
digitisation, but accountable digitisation. Technology should increase the
State's ability to administer criminal justice without correspondingly reducing
the individual's ability to understand, participate in and challenge that
process.
CONCLUSION
The Bharatiya Nagarik Suraksha Sanhita, 2023 signifies
a substantial change in the way criminal proceedings can be started, looked
into, recorded, and carried out. By recognising electronic communication,
digital records, electronic service and proceedings through electronic means,
the BNSS places technology within the ordinary architecture of criminal justice
rather than treating it merely as an administrative convenience. The
significance of this transformation, however, cannot be measured by the extent
to which physical processes are replaced by digital ones.
This study has demonstrated that digitisation and
procedural fairness are not synonymous. Electronic communication may improve
accessibility without guaranteeing meaningful notice; digital investigation may
improve evidentiary capacity while increasing privacy risks; electronic
evidence may be technically authentic without conclusively establishing the
truth of its contents; and virtual proceedings may provide physical-distance
solutions without necessarily ensuring meaningful participation. Technological
failure may also create procedural prejudice if institutional failures are
automatically attributed to the individual.
The hypothesis advanced by this paper is therefore
supported: technology can strengthen procedural safeguards under the BNSS only
when technological capacity is accompanied by appropriate legal and
institutional controls. The five dimensions developed through this study are
traceability, authenticity, transparency, proportionality and accountability
which provides a framework for determining whether a digital mechanism actually
performs a safeguarding function.
The paper's additional concepts are the Chain of
Digital Accountability, Functional Equivalence, Digital Equality of Arms,
Digital Failure Safeguard and Digital Closure Protocol which demonstrate how
these principles can operate at different stages of the criminal-procedure
lifecycle. Together, they shift the focus from technological adoption to
technological responsibility.
The central concern is therefore not whether
technology should have a place in criminal procedure. Its place is already
established. The more important question is how that technological power should
be governed. A rights-sensitive digital criminal justice system must ensure
that the State's increased capacity to collect, process and communicate
information is accompanied by an equally meaningful capacity of the individual
to understand, verify, challenge and obtain a remedy.
In the end, the number of electronic processes or the
speed at which information flows through institutional systems should not be
used to gage the legitimacy of digital criminal procedure. It should be
measured by whether the transition to digital procedure preserves the
constitutional values that criminal procedure exists to protect.
“Technology should not merely make criminal justice
faster; it must make the exercise of criminal justice more traceable,
verifiable, proportionate and accountable.”
Only when that condition is satisfied can
technology genuinely move from being a mechanism of procedural administration
to a safeguard of procedural justice.
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Yadav v. Union of India, 2026 SCC OnLine Del. (May 29, 2026), https://indiankanoon.org/doc/4658201/
How to Cite This Article
KOMAL KAILASHNATH SHARMA, TECHNOLOGY AS THE NEW PROCEDURAL SAFEGUARD? A Critical Study of Digital Criminal Justice under the Bharatiya Nagarik Suraksha Sanhita, 2023., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. Volume 4, Issue VOLUME 4 ISSUE 2, October 2026, pp. 128-162. Available at: https://www.whiteblacklegal.co.in/details/technology-as-the-new-procedural-safeguard-a-critical-study-of-digital-criminal-justice-under-the-bharatiya-nagarik-suraksha-sanhita-2023
Author & Publication Record
Authors: KOMAL KAILASHNATH SHARMA
Registration ID: 107130 | Published Paper ID: WBL7130
Year: Oct- 2026 | Volume: 4 | Issue: 2
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 128-162
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