DIGITAL INVESTIGATION ACT

Law evolves with the passage of time slowly reflecting the changed reality of human existence and when the reality completely transforms in a short period of time, law is left behind. The admissibility of electronic evidence today has turned out to be the biggest challenge to the justice delivery system. That impacts the backend investigation on the digital mode and capability to make a connect, that underlying thread or in recreating the story of a transaction or a series of it. The laws in place has it’s own challenges, too feeble to make impact on the digital, social and economic challenges of today’s existence. As we move further, through and out, of the COVID-19 times, digital investigation would become the crux of criminal cases and civil too.

With the IT Act and the relevant changes in the Indian Evidence Act and the corresponding laws, it seems to be a wild goose chase. The skills is one part of story, the flak falls squarely on the Police’s shoulder and other investigating agencies. Finally, getting conviction is the job of the investigating officer / agency, rest can be accepted as bystanders. The digital ecosystem which has grown like a jungle is broadly out of control of most of the nation states. The system was designed to be global and so it is, where the governments, investigations, preventing criminal activities are not a part of the design element. Ease of information, communication and it’s commercialisation have been it’s intention. Creating a new legal regime for the consequent world has certainly not been playing on their minds at all.

It has been after years of its creation, the governments realised that there are no laws to govern this new audacious world. Without understanding this animal, laws were enacted globally to help legal authorities to fulfil the tasks, the governments are mandated, in any democratic country. The citizen’s rights are very clearly defined, how can they be denied of it, just because the different pillars of democracy are not getting a hang of it. What can the location of server do to criminal investigation? What impact the incorporated geographical location mean to companies like Google, Facebook etc ? How does it impact criminal investigation? Company laws of one country can become a fait accompli of another country. From the Indian Information Technology Act of 2000 to the latest GDPR of 2018 of the European Union, are all facing the same fate.

Without considering the digital realities of the world, laws cannot enacted. So, for this reason, thus far, it has been self defeating. A Digital Investigation Act, something on the lines of the Criminal Procedure Code needs to be enacted. A digital procedural law. It’s should address the real issues to the last detail. The legal presumption in the digital world will have to looked into afresh. The methods and tech tools also should get enmeshed with the procedure. The procedure would be technical enablement of what can be done in the investigation and the substantive law has to take care of the rest. Between the two, the digital reality can be handled much better from a criminal justice standpoint. How the overall unfair digital equilibrium would be tackled is another story.

A DETAILED DIGITAL INVESTIGATION PROCEDURAL LAW IS A MUST.
Sanjay Sahay

Have a nice evening.