Chief Justice of India (CJI) D Y Chandrachud delivered the 20th D P Kohli Memorial Lecture on "Advancing Technology to Advance Criminal Justice" on 1 April, organised by the Central Bureau of Investigation (CBI) on CBI Raising Day.
His address illuminated critical issues arising at the crossroads of technology and criminal justice.
He emphasised the need for investigative agencies to "pick their battles."
His comments become even more critical considering the backdrop of the CBI's mounting case backlog. The CBI confronts an uphill battle in ensuring timely dispensation of justice with data released by the Department of Personnel, Public Training and Pensions revealing that a total number of 10,732 court cases were pending under trial in various courts as of 31 December 2022.
The latest report from the National Crime Records Bureau (NCRB) paints a grim picture of a nationwide case backlog exceeding 3.5 crore cases across various law enforcement agencies. These inefficiencies not only hinder the timely delivery of justice but also undermine public trust in the efficacy of law enforcement institutions.
The CJI also pointed out the increasing importance of technology in expediting investigations, highlighting initiatives like the Network for Evidence Tracing, Research, and Analysis (NETRA) Lab established by the Department of Personnel and Training. He commended the NETRA Lab for its role in enhancing the CBI’s ability to analyse electronic evidence, including mobile devices, cloud storage, and e-Discovery.
On the Delicate Balance Between Search/Seizure and Individual Privacy
In October 2023, a PIL was filed by the Centre for Public Interest Litigation (CPIL) and Software Freedom Law Centre (SFLC) claiming that the citizen’s right to privacy was being “endangered” by three surveillance programmes introduced by the Government (including NETRA). The PIL claimed that these surveillance systems allow central and state law enforcement agencies to intercept and monitor all telecommunications in bulk which is an infringement of the fundamental right to privacy of individuals.
The PIL cites the infringement of the landmark judgment in People Union of Civil Liberties (PUCL) v. Union of India which authorises the interception of communication as per a procedure, which consists of an oversight mechanism in the form of a review committee. This review committee meets once in two months when it has the task of reviewing 15,000 to 18,000 requests for interception which shows that the requests are being allowed routinely without any application of mind.
While citing NETRA as a leap forward, CJI Chandrachud emphasised the delicate balance between search/seizure provisions and individual privacy rights at the cornerstone of a fair and just society. He called for the establishment of multidisciplinary teams to tackle complex cases and underscored the need for clear guidelines and safeguards to prevent the misuse or abuse of technologies such as Artificial Intelligence (AI).
The CJI also referenced specific legislative provisions, including Section 94 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and Section 185 of the Bharatiya Sakshya Adhiniyam (BAS), 2023, which recently replaced the colonial-era Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872.
The new criminal laws aim to digitise every stage of a criminal investigation. For example, the BAS, 2023, includes “electronic and digital records” in the definition of “Document”. The new laws also grant courts and law enforcement agencies the authority to summon documents and materials, including digital evidence for investigation.
Exponential Growth in the Use of Digital Evidence by Investigative Agencies
Additionally, the CJI referred to the PIL filed by the Foundation for Media Professionals seeking guidelines for the seizure of personal electronic devices by investigating agencies. In December last year, the Court had directed Union agencies to adhere to the 2020 CBI (Crime) Manual on Digital Evidence until formal guidelines were established. A similar writ petition was also filed by digital media platform NewsClick and its founder, Prabir Purkayastha, and is currently pending before the Supreme Court.
The petition sought the issuance of guidelines regarding the search, seizure, examination and preservation of digital devices and data seized by law enforcement agencies, in response to recent raids conducted by the Delhi Police, targeting the residences and offices of journalists associated with the organisation. The raids, conducted under the Unlawful Activities (Prevention) Act, resulted in the arrest of Purkayastha and Amit Chakravarty, NewsClick's human resources head.
The CJI's remarks regarding privacy concerns in the context of evolving surveillance technologies strike at the heart of individual rights in the digital age. While technological advancements have undoubtedly enhanced law enforcement capabilities, they have also raised serious questions about the extent of state surveillance and its implications for civil liberties.
The exponential growth in the use of digital evidence by investigative agencies underscores the need for robust legal safeguards to protect individual privacy rights. The indiscriminate use of surveillance technologies without adequate oversight can infringe upon citizens' right to privacy and undermine democratic principles of freedom and autonomy.
The CJI's reference to specific legislative provisions highlights the evolving regulatory landscape governing the collection and utilisation of digital evidence in criminal proceedings. However, the mere existence of laws is not sufficient; effective implementation and judicial oversight are essential to ensure that these laws are applied judiciously and in accordance with constitutional principles.
Furthermore, the increasing issuance of summonses and warrants under these provisions raises concerns about the potential for abuse of power and the need for robust checks and balances to prevent misuse. Judicial scrutiny plays a crucial role in upholding the rule of law and safeguarding individual rights against state overreach.
(Moksha Tarini is a lawyer based in New Delhi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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