An app for the collection and storage of evidence around every crime recorded in India. How modern indeed!
eSakshya, developed by the National Informatics Centre (NIC) with the ambitious aim of helping police record the scene of crime and the search and seizures and then upload them on to a cloud-based platform was one of the talking points when the three new criminal laws were rolled out. Many lauded the intention behind the new-age initiative in the Bharatiya Sakshya Adhiniyam, 2023, that replaces the Indian Evidence Act, 1872, but there were always doubts on whether all of India could keep up.
These fears have turned out to be real, as most states are struggling to catch up more than 15 days after the implementation of the laws. And further, it has led to questions being raised about whether cases being filed without the evidence having been registered on eSakshya will hold at all.
Leading Supreme Court lawyer Nipun Saxena explained the procedure that must be followed and why the delay in getting eSakshya up and running in most states is so problematic.
"According to the new laws, in any and all cases in which an FIR is being registered, there has to be digital evidence that is recorded and stored in the app according to procedure. This recording should then be sent to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class, according to section 105 of BNSS (Bharatiya Nagarik Suraksha Sanhita 2023).
"As this is not being done, the chain of custody is breached, and any defence lawyer would have a field day questioning the sanctity of the submitted evidence. There is absolutely no sanctity of the evidence in cases that have been registered from July 1 till date," he stated.
A long list of concerns
Despite the legal framework being in place, experts say the delays are being caused as there are several challenges. The viability of the app that is designed to be a centralised, cloud-based platform for uploading and managing legal evidence and case information is also under a cloud.
First, there are the growing concerns about the country's preparedness for this digital shift.
Many legal professionals and law enforcement officers have expressed doubts about the infrastructure and training required to effectively use the eSakshya app. For instance, do police stations in India's backward villages have the necessary phones? The transition from traditional paper-based systems to a completely digitised platform requires significant investment in technology and capacity building, which many believe has not been adequately addressed.
"Our system is ill-equipped," said T Asaf Ali, former Director General of Prosecution in Kerala. "No proper rules have been formulated regarding the execution of these laws, and no preparation has been done for their implementation."
Noufal CS, SCPO (Senior Civil Police Officer) in Kerala, highlights another concern -- the app is not functional in his state.
"We have been given training and classes about the three new laws, but not much has been told about the app. We know that there is going to be a digitisation, but we do not know the exact details," he added.
Baiju Krishnamoorthy IPS, Kerala Cadre, said that the Bureau of Police Research and Development (BPR&D) has issued Standard Operating Procedures (SOP) to assist police officers in implementing new provisions in the criminal laws.
"Every police officer is required to upgrade his skills regarding maintaining integrity of electronic records, the task of the (cyber) expert is likely to increase with many of the mandatory provisions coming into effect," he said.
"DIG-level officers from the Centre were sent to the states for training," Krishnamoorthy added.
The new mandate has also sparked a debate about the security of uploading sensitive evidence and case details to a cloud-based platform. Cybersecurity experts have raised alarms about potential data breaches, unauthorised access, and cyber attacks on government systems.
Mukesh Choudhary, a top cyber security expert in India, says that any mobile application must be tested for vulnerabilities and routine application audits must be conducted.
Audits of the cloud infrastructure, more frequent auditing than usual with designated teams for it, adherence to the Information Security Policy are some of the suggestions he gives for a more secure and streamlined operation.
A seven-hour video and what it highlighted
But at the same time, Choudhary also voices concerns around the evidence gathering.
"A video of the crime scene and evidence collection can take a lot of time. Recently there was a case in Rajasthan where a crime scene recording went on for 7 hours. If such a video were to be uploaded on the app, imagine the amount of data and the quality of internet that is required for the same".
Incidentally, Rajasthan is one of the states where the app has been recently launched.
Another requirement of the app is a high-speed internet.
Both Noufal and Choudhary share concerns about the difficulties this could pose. In a country like India where we have many rural areas and countless hilly terrains, getting network coverage for a normal voice call itself is sometimes difficult. How are they going to ensure internet connections that allow for long video uploads everywhere then? Who is going to pay for this? Will the government provide a reimbursement?
The video and evidence pertaining to any crime must be uploaded in the app and a designated hash value must be given. Policemen should be given training for it. But then this might be easier said than done.
An 'expert' question and confusion over grace period
According to the Indian IT Act 79A, the Centre must also provide an 'expert' for validating on electronic form evidence presented before any court or authority (Act 63 of the Bharatiya Sakshya Adhiniyam).
"In this case who is the expert?" Choudhary asked. "Is there a certificate program that identifies this?”
In states where the app is yet to be launched, the evidence is collected according to the old Act.
Krishnamoorthy says that they are now capturing videos of everything. "When the case comes to court, that digital evidence shall be submitted," he said.
When asked if they have been given any grace period till the time the app launches, he says that nothing of the sort has been explicitly mentioned. "The deadline was June 30 before the laws came into force. There is a lot of grey area in this. We are yet to get full clarity."
He also says the whole process of digitising everything could throw up many technological and infrastructural challenges. "We have drafted notifications based on the guidelines given by the government. Now we have to get legal experts to weigh in and then publish these notifications across the state," he said.
PA Rajan, who works with the Cyber Crime wing in Tamil Nadu, says that the situation is the same in his state. "Training has been done, and we know it is happening. We just don't know when."
In Odisha, the first state to register a case under the new laws, the app is ready for a roll out soon, say sources.
The New Indian Express tried to get in touch with the NIC and MHA for comments, but they did not respond.
The eSakshya app journey till date makes it clear that India's tryst with a fully digital judicial system is fraught with challenges. Only time will tell if all authorities can rise to the occasion and ensure that justice is handed out efficiently and securely in the digital age.
Choudhary has a final word of caution even if everything falls into place. "Usually applications are audited yearly, but loopholes in any application or technology can happen any time. Since it is a government application with sensitive and important information in it, there has to be a real-time monitoring," he warns.
The vigil to ensure justice has to be constant indeed.
