This article is written by Ankita Ghosh, of Brainware University.
Cybercrime is not a future threat anymore. It exists and is developing even more quickly than the law itself. Having grown as a source of opportunity and also as a source of vulnerability, phishing scams and identity theft to online extortion and fake misuse have all been made possible by India digital growth. The Indian Penal Code, 1860 (IPC) was written in pre-digital times. Though the IPC provisions were interpreted creatively and gave remedies to cyber offenses through courts, the law was unclear. The new criminal law, the BNS replacing the IPC, tries to modernize the criminal law: Identifying technology-aided crimes.
Enhancing the provisions on organized crime
The problem of online fraud, impersonation, and intimidation. Focusing on intent and digital modus operandi. Rather than having an entirely different cyber law, BNS is actually collaborating with the IT Act, sealing the loopholes that allow cyber offenses to intersect with traditional crimes. Important BNS Provisions of Cybercrime.
The following are some of the provisions of the BNS that are rather pertinent to cybercrime:
Section 111 – Organized Crime Includes cyber fraud cartels, rogue call centers, ransomware collectives and web-based financial rackets.
Section 318 – Cheating Transfers to phishing, counterfeit sites, and Internet investment frauds.
Section 336 – Forgery: Applicable to counterfeit online documents, altered e-mails and deceitful digital records.
Section 356 – Defamation Defames via social media and online.
Section 351 – Carrying out criminal threats. It is used in cyberstalking, doxing, and threats on the Internet. These provisions afford the prosecution of cyber offenses even outside the ambit of the full application of the IT Act. In the case of On-line defamation and Free Speech.
Shreya Singhal v. Union of India
Relevance under BNS: As much as BNS needs to stand criminal defamation, it should now be administered with constitutional safeguard in consideration. When it comes to considering BNS provisions on online speech, courts would turn to Shreya Singhal in their efforts to make sure that criticism is not incriminated simply because it is in digital form.
State of Tamil Nadu v. Suhas Katti (2004)
Relevance under the BNS, like behavior is now prosecuted as criminal intimidation, defamation and harassment provisions, and not necessarily as a court has to bend the pre-existing IPC definitions. This is a learned experience in legislation concerning early cybercrime cases. In the case of Electronic Evidence and Digital Proof.
Anvar P.V. v. P.K. Basheer (2014)
Relevance under BNS: cases of cybercrime do not escape the need to use digital evidence in their investigations, including call records, emails, transaction logs. This ruling is important, and it will see to it that the convictions made under BNS are grounded on the procedure and sound electronic evidence.
Relevance under BNS Section 111:
This is an important provision when it comes to addressing cybercrime syndicates that carry out frauds on the grand scale, crypto scams, and dark net activities. It gives law enforcement an opportunity to punish the whole network and not only the individuals who commit crimes. The reason why BNS is important in the Cybercrime Era. The BNS has its strength in its integration strategy. It does not view cybercrime as a technical offense but sees it as a collection of traditional crimes being carried out using contemporary tools.
Key advantages include:
- More straightforward prosecution in case of inadequate provisions of the IT Acts.
- More severe penalties in case of repeat and organized cybercriminals.
- More judicial discretion in reading digital crimes.
- Adherence to the stipulations of the constitution and the verdict.
However, this will only be effective with the police training, forensic capacity and judicial awareness.
Difficulties in BNS Implementation of Cybercrime
The unavailability of technical expertise at the ground level of law enforcement is one of the main issues in implementing the Bharatiya Nyaya Sanhita, 2023 to cybercrime. Although the BNS offers more substantive offenses to address cyber-enabled offenses, the effective implementation will rely on the capacity of the police officers to comprehend digital evidence, online platforms and new technologies. Cybercrime cells in most of the districts are understaffed and Possible spelling mistakes found. leading to poor investigation, poor charge sheets and poor conviction rates. The other significant challenge is collecting and storing digital evidence. Electronic records play a very important role in cybercrime investigations: emails, server logs, IP addresses and trails of transactions. Adhering to legal provisions, especially in the Section 65B of the Indian Evidence Act, is usually ignored. Any administrative oversight during certification or information processing may make important evidence inadmissible to undermine a prosecution under BNS.
The jurisdictional complexity also makes the application of BNS more complex in cases of cybercrime. More often than not, cyber crimes cut across states or even other foreign jurisdictions, so it is not easily determined which jurisdiction holds territorial jurisdiction. Though prosecution of offenses can be done under BNS regardless of the respective locations of commissioning the act, there is still a problem of coordination between the state police forces and international forces in cases where the perpetrators may be anonymized or reside under coded networks. The other difficulty is the duplication of the use of the BNS and the Information Technology Act, 2000. Though such overlap may be effective in prosecution, it causes confusion as far as which charges should be framed. The inconsistency in the application of the provisions can result in the delays in the procedures and defense issues. Conflictual prosecutorial guidelines are needed to make both statutes harmonized in use. There is a challenge to the rapid development of cybercrime methods. Such offenses include misuse of deepfakes, cryptocurrency fraud, and artificial intelligence-enabled scams, which are changing more rapidly than legal changes. Despite the use of a technology neutral approach by BNS, its effectiveness relies on the ability of the judicial interpretation to keep up with technological change.
Conclusion
The Bharatiya Nyaya Sanhita, 2023 is not an independent cyber law, however, and it is a natural development of criminal jurisprudence in the digital society. The BNS boosts capabilities of India in responding to current challenges by addressing cyber-enabled crimes by applying the old criminal principles. Phishing attacks to cyber-bullying and orchestrated cyber-related fraud, the BNS is the tool that the courts have the capability to hold people under account and yet equally empowered to comply with all constitutional rights.
Frequently Asked Questions
Is the BNS a substitute of the IT Act over cybercrime?
No. The BNS is in collaboration with the IT Act. Prosecution of offenses related to cyber could be in both, depending on the case.
What BNS provision is the most important to cybercrime?
Section 111 (organized Crime) becomes very important, particularly in online fraud cases on a massive scale as well as in scam networks.
Is cheating on the Internet punishable according to BNS?
Yes. Section 318 addresses cheating and even cheating using the digital platform.
Is BNS speech criminalized in social media?
The law says that something is really bad when it goes beyond what’s allowed for things like saying mean things about someone trying to scare them or doing things that are hateful. The courts have to make sure they are following the rules that’re in our constitution to protect people. The courts must use these rules to help them make decisions about things, like defamation, intimidation or hate-related crimes.
Can someone be taken to court, for cyberstalking under the Broadcasting and National Security laws I mean under the BNS laws?
Yes. The cases regarding cyberstalking are covered by the provisions on intimidation, harassment, and defamation.
References
https://indiankanoon.org/doc/110813550
https://indiankanoon.org/doc/187283766
